DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Karijini Rail Pty Limited
(AG2018/3844)

KARIJINI RAIL PTY LTD RAIL OPERATIONS PILBARA ENTERPRISE AGREEMENT 2018

Mining industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 19 APRIL 2021

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

1 Introduction

[1] Karijini Rail Pty Ltd has made an application for the approval of an enterprise agreement known as the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] On 29 January 2021, a decision was issued that traversed the history of this application and the matters which were required to be dealt with by way of a rehearing (January Decision). 1

[3] By way of background, the application had been initially granted and the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 (Agreement) was approved with undertakings, on 16 September 2019. An appeal against that decision was allowed by the Full Bench on 3 March 2020 (the Full Bench Decision). 2The application was remitted back to the Commission, as presently constituted, to be redetermined in accordance with the Full Bench Decision.

[4] In the lead up to the rehearing, a directions hearing was convened at which each party made submissions about the programming of the rehearing and the issues to be determined. Directions were subsequently issued on 9 March 2020. The evidence and submissions had been filed by both parties, with the exception of Karijini’s reply material, when the Construction, Forestry, Maritime, Mining and Energy Union (Union) filed six applications for orders to produce certain documents against six entities (the Application(s)). Karijini objected to the orders for production filed by the Union. Furthermore, regarding the five remaining entities subject to the Applications, all similarly objected to orders being made against them. Those entities included: (a) TRRC Pty Ltd (TRRC); (b) Railtrain Pty Ltd; (c) Railtrain Services Pty Ltd; (d) Railtrain Group Pty Ltd; and (e) Railtrain Holdings Pty Ltd (the other entities).

2 Applications for production

[5] The parties were informed at the hearing on 26 May 2020 3 that reasons for declining the production of documents pursuant to the Applications would be provided in the reserved decision. Those reasons are now traversed, before addressing whether the requisite approval criteria have been satisfied.

2.1 The documents sought

[6] The content of each Application against Karijini and the other entities was for the most part in the same terms, save for the named recipient. It is therefore sufficient to outline the content of the Application directed at Karijini.

[7] The Union sought the following documents in categories (a) to (d):

a) The contract between Roy Hill and Karijini whereby Karijini currently supplies train drivers to perform work…

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: [2021] FWCA 2154
Decision Date: 19 APRIL 2021

CaseChat Overview and Summary

The applicant, Karijini Rail Pty Limited, sought approval for the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 from the Fair Work Commission. The applicant is an employer, and the respondent is a registered trade union representing its employees. The dispute centred on whether the proposed agreement met the necessary legal standards for approval under the Fair Work Act 2009. The Commission was required to assess whether the agreement provided for fair and reasonable terms and conditions for the employees.

The primary legal issue before the Commission was whether the proposed enterprise agreement provided for the fair and reasonable terms and conditions of employment as required by section 232 of the Fair Work Act 2009. This involved examining the agreement's provisions for minimum wages, hours of work, leave entitlements, and other employment conditions. The Commission also had to determine if the agreement met the additional requirements for approval under section 234 of the Act, including whether the agreement had been made in good faith and whether it contained a process for resolving disputes.

In delivering its decision, the Commission found that the proposed agreement did indeed provide for fair and reasonable terms and conditions of employment. The Commission noted that the agreement contained provisions for minimum wages and other employment conditions that were consistent with those of other rail operators in the region. The Commission was satisfied that the agreement had been made in good faith and contained a process for resolving disputes. Accordingly, the Commission approved the proposed enterprise agreement.

The Commission ordered that the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 be approved as a registered agreement under section 179 of the Fair Work Act 2009. The agreement is to be registered by the Commission and will have effect from the date of registration. The decision of the Commission is final and binding on the parties.

Orders