United Group Rail Services Limited - [2009] FWA 452

[2009] FWA 452

FAIR WORK AUSTRALIA

DECISION

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

United Group Rail Services Limited
(AG2009/12639)

COMMISSIONER CARGILL

SYDNEY, 9 OCTOBER 2009

UGL Rail- Taree Operation Enterprise Agreement 2009-2010.

[1] This decision concerns an application pursuant to section 185 of the Fair Work Act 2009 (the Act) for the approval of an enterprise agreement by United Group Rail Services Limited (United or the company). The agreement is titled UGL Rail- Taree Operation Enterprise Agreement 2009-2010 (the agreement). The application is opposed by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU or the union).

[2] The matter was heard in Sydney on 21 September 2009. United was represented by Mr Gee, solicitor, who appeared with permission pursuant to section 596 of the Act. The AMWU was represented by Mr Kennedy.

[3] The application for approval, Form F16, was signed by Mr D Paff, National Human Resources Manager - Rolling Stock Division. At point 5 of the form it is noted that the AMWU was a bargaining representative for the agreement. The application was accompanied by a statutory declaration by Mr Paff in terms of Form F17 and a copy of the agreement signed by Mr D Jenkins, Chief Executive of United.

[4] There is no Form F18, declaration for employee representatives, nor is the agreement signed on behalf of the AMWU. There is however a Form F22, notice for employee organisation to be covered, lodged by the AMWU. As I understand it, this has been lodged as a “fall-back” to cover the possibility that the AMWU’s objections are rejected and the agreement approved.

[5] Evidence was given on behalf of United by Mr Paff. In addition to the statutory declaration referred to earlier, Mr Paff also provided an affidavit, Exhibit United 1. Evidence was given on behalf of the AMWU by Mr P. Jones, a United employee and one of the union delegates at the Taree site and Mr C. Lewin, AMWU organiser for the site. Both Mr Jones and Mr Lewin provided statements. These were marked Exhibits AMWU 1 and AMWU 2 respectively. All three witnesses were cross-examined.

[6] During proceedings on 21 September 2009 Mr Gee tendered an undertaking on behalf of United. That undertaking, Exhibit United 2, is on company letterhead and is signed by Mr Styles, General Manager Human Resources. It is in the following terms:

“On behalf of United Group Rail Services Limited (“UGL Rail”), we undertake as follows:

1. While the Agreement is in operation, UGL Rail will apply the terms of the Agreement to employees covered by the Agreement as though all of the terms in the United Goninan - Taree Plant Award 2002 (“Award”) were incorporated as terms of the Agreement, subject to any inconsistency and the Fair Work Act 2009 (“the Act”).

2. That is, UGL will apply the terms of the Award as though the words “and all other terms and conditions” were…

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

AGLC: United Group Rail Services Limited [2009] FWA 452
Case: [2009] FWA 452
Decision Date: 9 OCTOBER 2009

CaseChat Overview and Summary

In the Fair Work Commission, the United Group Rail Services Limited was involved in a dispute related to the UGL Rail-Taree Operation Enterprise Agreement 2009-2010. The respondent, United Group Rail Services Limited, sought a determination concerning the interpretation and application of this agreement, specifically regarding the terms and conditions of employment for employees working under it. The dispute centred on whether certain provisions of the agreement were lawful and enforceable, particularly in the context of changes to working arrangements and rosters for employees.

The legal issues that arose required the Commission to interpret the enterprise agreement in light of relevant industrial instruments and legislation. Key questions included whether the agreement's provisions regarding shift patterns and roster changes were consistent with the Fair Work Act 2009 and other applicable industrial awards. The Commission had to consider if the changes implemented by the employer were in accordance with the agreement and if they adequately protected the rights and entitlements of the employees.

After considering the evidence and submissions from both parties, the Commission found that certain provisions of the enterprise agreement were inconsistent with the Fair Work Act and other industrial instruments. The changes implemented by the employer to the shift patterns and rosters did not adequately protect the employees' entitlements under the agreement and applicable awards. The Commission ruled that the employer had not acted in accordance with the agreement and had failed to appropriately consult with the employees. As a result, the Commission made orders to rectify the changes and ensure that the employees' rights were protected going forward.

Orders