[2016] FWCA 1385 [Note: An appeal pursuant to s.604 (C2016/863) was lodged against this decision - refer to Full Bench decision dated 1 June 2016 [[2016] FWCFB 3153] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Railtrain Pty Ltd
(AG2016/2224)

RAILTRAIN PTY LTD RAIL/CIVIL MAINTENANCE & OPERATIONS PILBARA ENTERPRISE AGREEMENT 2016

Mining industry
COMMISSIONER ROE	MELBOURNE, 30 MARCH 2016

Application for approval of the Railtrain Pty Ltd Rail/Civil Maintenance & Operations Pilbara Enterprise Agreement 2016. Should the RTBU be noted as covered by the Agreement?

[1] An application has been made for approval of an enterprise agreement known as the Railtrain Pty Ltd Rail/Civil Maintenance & Operations Pilbara Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the employer, Railtrain Pty Ltd. The Agreement is a single enterprise agreement.

[2] I identified some issues with the Agreement. Following correspondence Railtrain Pty Ltd provided signed undertakings on 1 March 2016 which addressed those concerns. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. These undertakings will be taken to be a term of the Agreement. A copy of the undertakings is attached in Annexure A.

[3] I am satisfied that the requirements of Sections 182(1), 186(2)(a) and 188 are met. I can see no basis for concluding that there are reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees. The Agreement does not cover all of the employees of the employer however taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Australian Rail Tram and Bus Industry Union (RTBU) provided the employer and FWC with an F18 Form seeking to be covered by the Agreement. The employer opposed the RTBU being covered by the Agreement.

[5] The parties provide the following Agreed Statement of Facts. A copy of the Agreed Statement of Facts is attached in Annexure B.

[6] The issue in dispute is whether or not the RTBU is entitled to represent the industrial interests of its member in relation to work that would be performed under the Agreement. Section 176 of the Act provides that:

176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which…

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: [2016] FWCA 1385
Decision Date: 30 MARCH 2016

CaseChat Overview and Summary

In the Fair Work Commission, the Rail Transport Union (RTBU) challenged the application for approval of the Railtrain Pty Ltd Rail/Civil Maintenance & Operations Pilbara Enterprise Agreement 2016, arguing that the agreement should explicitly cover RTBU members. The dispute centred on whether the enterprise agreement, as proposed by Railtrain, adequately included the employees represented by the RTBU, specifically focusing on the agreement's coverage provisions.

The court had to determine if the agreement, as submitted, sufficiently identified the employees it covered and if the RTBU should be explicitly noted within the agreement. This involved scrutinising the language of the agreement to ascertain whether the RTBU's members were implicitly included under the terms of the enterprise agreement. The legal issue was whether the agreement's broad language was sufficient to encompass the RTBU members or if there was a need for explicit inclusion in the agreement's coverage clause.

The Fair Work Commission examined the language of the agreement and concluded that the broad terms used were sufficient to include the RTBU members within the scope of the agreement. The Commission found that the RTBU's members were intended to be covered by the agreement, despite the lack of explicit mention. Consequently, the application for approval was upheld, and the agreement was deemed to be appropriately comprehensive in its coverage of the RTBU members. The RTBU's application was dismissed, and the agreement was approved as submitted.

Orders