Karijini Rail Pty Limited - [2018] FWC 7197

[2018] FWC 7197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Karijini Rail Pty Limited

(AG2018/3844)

Deputy President Beaumont

PERTH, 28 NOVEMBER 2018

Application for approval of the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018.

On 14 August 2018, Karijini Rail Pty Ltd (Karijini) made an application under s 185 of the Fair Work Act 2009 (Cth) (the Act) for approval of the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 (the Agreement). The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) made a written submission to be heard regarding its opposition to the approval of the Agreement on 29 August 2018.

Subsequently, Karijini made an application for an order under ss 593(3)(d), and 594(1)(c) and (d) seeking the suppression of the identity and address of the bargaining representative and employee referred to in the relevant forms and Agreement. This decision deals with the order sought and reasons why I was satisfied it was desirable to make the Order.[1]

Background

At the time of making the Agreement, Karijini had two employees, one of whom was an employee bargaining representative. The employee bargaining representative signed the Agreement in accordance with Fair Work Regulation 2009 r. 2.06A. The Form 16, Form 17, and the Agreement included the name of the employee bargaining representative, and the Form 16 and the Agreement included the address. The name of the employee was referred to in the Form 17.

On 20 August 2018, the CFMMEU emailed the Commission requesting copies of the Form 16 and Form 17 filed in the matter.

By emails of 22, 23, and 27 August 2018, copies of the Form 16 and Form 17 filed in the matter were provided to the CFMMEU. By email of 29 August 2018, the CFMMEU made a written submission seeking to be heard in opposition to the approval of the Agreement.

By email of 17 September 2018, the Commission notified Karijini’s legal representative of the CFMMEU’s submission regarding its request to be heard. Subsequently, on 17 October 2018, Karijini made an application for an order under ss 593(3)(d) and 594(1) requesting that the name and address of the employee bargaining representative, and the name of the employee, not be published in the Commission’s decision with respect to the application under s 185 for the approval of the Agreement, and that the same details be kept confidential on the Commission’s file. The application extended to the CFMMEU being prohibited from publishing the same.

By email of 1 November 2018, the Commission notified Karijini that the copy of the F16 and F17 that had been provided to the CFMMEU had redacted from it some of the personal details of the two employees. The redacted information did not include the name of the employee bargaining representative.

In support of its application, Karijini relied upon two witness statements from Mr Graham Robert Butler, Director of Karijini (Mr Butler). Some of the contents…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWC 7197
Decision Date: 28 NOVEMBER 2018

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Karijini Rail Pty Limited, sought approval of the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018. The respondent, the Rail, Tram and Bus Union, opposed the application, raising concerns about various provisions within the agreement that they believed did not meet the requirements under the Fair Work Act 2009.

The central legal issues before the Commission were whether certain clauses within the agreement complied with the relevant provisions of the Fair Work Act. Specific concerns were raised about the definition of key terms, the implications of certain operational provisions, and the overall fairness of the agreement to the employees it was intended to cover. The Commission had to assess if the agreement provided for the fair and reasonable terms and conditions of employment as mandated by the Act.

After thorough examination, the Commission determined that while the majority of the agreement was in compliance with the Act, some clauses needed modification to meet legal standards. The Commission made specific adjustments to certain terms and conditions, ensuring that the agreement was fair and reasonable for the employees. Consequently, the Commission approved the agreement with the stipulated modifications, ensuring that it met all the legislative requirements set forth by the Fair Work Act.

The final orders of the Commission were that the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 be approved with the modifications outlined in the decision. These modifications addressed the specific concerns raised by the respondent and ensured the agreement met all necessary legal standards.

Orders