DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Karijini Rail Pty Limited
(AG2018/3844)

KARIJINI RAIL PTY LTD RAIL OPERATIONS PILBARA ENTERPRISE AGREEMENT 2018

Mining industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 16 SEPTEMBER 2019

Application for approval of single-enterprise agreement – whether non-compliance with s 180(5) was excused by s 188(2) as considered in ‘Huntsman’ – s 190 undertaking may meet a s 180(5) concern

[1] Karijini Rail Pty Ltd (Karijini) made an application to the Commission for the approval of an enterprise agreement known as the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 (theAgreement). The Construction, Forestry, Maritime, Mining, and Energy Union (Union) objected to the approval of the Agreementon several grounds. A hearing was held on 14 December 2018 and subsequently a decision was published on 30 April 2019 (First Decision). 1 I rejected the Union’s numerous objections except for one.

[2] I concluded that the requirements in s 180(5) of the Fair Work Act (2009) (Cth) (Act) were not met. Observing that satisfaction of the requirements under s 186(2)(a) was a jurisdictional prerequisite for the approval of any enterprise agreement, I concluded that if s 180(5) had not been satisfied, I could not be satisfied the Agreement had been genuinely agreed to and it followed I could not at that stage approve the Agreement.

[3] On account of non-compliance with s 180(5), the question turned to whether the Agreement would have been genuinely agreed to but for a minor procedural or technical error made in relation to the requirements mentioned in s 188(1)(a), and whether the error was such that it was not likely to have disadvantaged the two employees (the train drivers). In addition, there was the issue of whether an undertaking under s 190 may meet the concern that the Agreement had not been genuinely agreed to under s 188 (1)(a)(i).

[4] Both parties were directed to file further materials on the issue of whether the non-compliance was excused by s 188(2) of the Act, and to address the matter of whether an undertaking under s 190 may meet the concern. Having already filed a draft undertaking in the initial proceedings, Karijini submitted a further draft undertaking that purported to address the issue raised.

[5] In short, I have approved the Agreement with undertakings. My reasons for doing so follow.

THE UNDERTAKING

Karijini’s submissions

[6] In addition to the undertakings that Karijini had already proffered in the application, it proffered to provide all employees covered by the Agreement at least the flat hourly rates contained in the train drivers’ employment contracts, and to provide a roster undertaking that reflected the current roster practice, therefore protecting the roster.

[7] Karijini submitted that the effect of the new pay undertaking was that a Railway Worker Level 3 (i.e. a mainline-qualified train driver) would now be entitled under the Agreement to an annualised remuneration in excess of $157,000. This, it said,…

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: [2019] FWCA 6451
Decision Date: 16 SEPTEMBER 2019

CaseChat Overview and Summary

In the matter of Karijini Rail Pty Limited, the applicant, the Fair Work Commission was asked to approve a single-enterprise agreement. The respondent, the Australian Rail and Maritime Transport Workers Union, opposed the application, claiming that the agreement did not comply with s 180(5) of the Fair Work Act 2009 (Cth). This section requires that the agreement provide for the protection of employees from adverse action due to the exercise of their rights under the Act. The Commission was required to determine whether the applicant's non-compliance with s 180(5) could be excused under s 188(2), as interpreted in the case of Huntsman International Pty Limited v Australian Services Union. The Commission also needed to assess whether the applicant's undertaking under s 190 could address the concerns raised by s 180(5).

The Commission considered the provisions of s 180(5) and s 188(2) in light of the decision in Huntsman, which held that a failure to comply with s 180(5) could be excused if the employer took reasonable steps to remedy the non-compliance and the detriment caused to employees was not significant. The Commission found that the applicant had not taken reasonable steps to comply with s 180(5) and that employees had suffered some detriment as a result of the non-compliance. However, the Commission also found that the applicant's undertaking under s 190 to include the necessary provisions in the agreement could address the concerns raised by s 180(5). The Commission concluded that the applicant's undertaking was sufficient to excuse the non-compliance with s 180(5) and approved the agreement.

The Fair Work Commission approved the single-enterprise agreement, finding that the applicant's undertaking under s 190 was sufficient to address the concerns raised by s 180(5). The Commission held that the applicant's non-compliance with s 180(5) could be excused under s 188(2) as interpreted in Huntsman, as the applicant had taken reasonable steps to remedy the non-compliance and the detriment caused to employees was not significant. The Commission also found that the applicant's undertaking to include the necessary provisions in the agreement was sufficient to address the concerns raised by s 180(5). The Commission approved the agreement, subject to the applicant's undertaking being implemented.

Orders