[2016] FWCFB 3153

The attached document replaces the document previously issued with the above code on 1 June 2016.

At ‘Appearances’ on page 15, insert J Snaden for the respondent.

Denise Jelfs

Associate to Senior Deputy President O’Callaghan

Dated 16 June 2016

Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [2016] FWCA 1385 of Commissioner Roe at Melbourne on 30 March 2016 in matter number AG2016/2224 - public interest not established - appealable error not established - appeal dismissed.

[1] This is an appeal by the Australian Rail, Tram and Bus Industry Union (the ARTBIU) against a decision by Roe C 1 to approve the Railtrain Pty Ltd Rail/Civil Maintenance & Operations Pilbara Enterprise Agreement 2016 (the Agreement). The only element of that approval decision with which the ARTBIU takes issue is that the Commissioner did not include a note, pursuant to s.201(2) of the Fair Work Act 2009 (the FW Act) so as to state that the ARTBIU was covered by the Agreement. The ARTBIU asserts that the Commissioner was obliged to make such a note and that his failure to do so meant that he acted outside of his jurisdiction.

[2] Railtrain is a contractor to the Fortesque Minerals Group (FMG). There is no dispute that the Agreement is limited to the rail maintenance work undertaken by Railtrain on railway lines owned and operated by FMG in the Pilbara. There is also no dispute that Railtrain undertakes railway related work for other railway operators throughout Australia. In the application for approval of the Agreement, Railtrain stated:

2.1 What is the industry of the employer(s)?

“Labour hire in the rail industry. The agreement the subject of this Application concerns work that exclusively relates to work in the mining industry in the Pilbara region.”

[3] The Commissioner had before him a statement of agreed facts in the following terms:

“AGREED STATEMENT OF FACTS

1. On 1 February 2016, Railtrain Pty Ltd (Applicant) applied to the Fair Work Commission (Commission) for the approval of the Railtrain Pty Ltd Rail/Civil Maintenance & Operations Pilbara Enterprise Agreement 2016 (Agreement), by way of Form F16 (Application). The Applicant indicated that there were no employee organisation bargaining representatives for the Agreement.

2. On 2 February 2016, the Australian, Rail, Tram and Bus Union, Western Australian Branch (ARTBU) filed with the Commission a Form F18 statutory declaration, indicating that the ARTBU was a bargaining representative for the Agreement and giving notice that if approved, the ARTBU wanted to be covered by the Agreement. For the purposes of section 183(2) of the FW Act, a copy of this "notice" has been provided to the Applicant.

3. On 4 March 2016, the ARTBU provided a list of its "members" it says are employed by the Applicant. No-one on that list was employed by the Applicant as at 4 March 2016. One "member" of the ARTBU on that list was formerly employed by the Applicant, but their employment came to an end on 1 March 2016 (Member).

4. The Member was employed as a Rail Worker Level 4 under the terms of the Agreement undertaking work at Fortescue Metals Group Ltd (FMG), located exclusively in the Pilbara region of Western Australia. The Member was employed by the Applicant in this role during the negotiations for the Agreement and at the time that the Agreement was made.

5. The Applicant's contract with FMG is to perform rail line defect rectification work. This is essentially maintenance of rail line that occurs between rail haulages to maintain and replace any defected rail line.

6. The Agreement sets out the relevant classification descriptions in Appendix 1 to the Agreement. The Rail Worker Level 4 description provides:

"Railway Worker - Level 4

An Employee at this level:

• Understands and applies quality control techniques

• Exercises good interpersonal and communication skills

• Exercises discretion within the scope of this level

• Performs work under limited supervision either individually or in a team environment

• Operates lifting equipment incidental to their work

• Performs non-trade tasks incidental to their work

• Inspects products and/or materials for conformity with established operational standards

• Take possession of track and protect workgroups from rail traffic"

7. The Member was not employed as a "track protection officer" or required to perform any "track protection officer" duties including "Take possession of track and protect workgroups from rail traffic".

8. Appendix 1 to the Agreement also sets out the indicative tasks of the Railway Worker Level 4 under the Agreement, which include:

• operating a range of railway construction equipment including: forklifts, front end loaders, gemcos, tie crane, scarifiers, rail lifting jack threader and pettibone crane

• Shunt Rolling Stock

• Holds a certificate of competency for slewing mobile cranes up to 20 tonnes

• Rigger and Scaffolder holding an advanced certification

• Track Protection Officer

9. A Railway Worker Level 4 under the Agreement is only required to operate minimal equipment such as Pettibone Crane and Front End Loader because of the maintenance nature of the work. The Member was not required to shunt rolling stock.

10. Since 13 August 2015, the Member exclusively performed work in the Rolling Maintenance Shed (RMS) at the Thomas Yard located at FMG in the Pilbara region up until his last date of employment being 1 March 2016. The AMS workshop duties involved knuckle change-outs on iron ore wagons, break block replacements on ore wagons, wheel hallowing measuring on wheels, operating overhead cranes and assisting tradespersons with trade related functions.

11. In addition to the RMS workshop duties, the Member from time to time was involved in level crossing removals and reinstalls and if in the vicinity, was required to assist disabled trains to apply handbrakes in emergencies.

12. If the Member was still employed by the Applicant, and performed work under the Agreement once in operation, he would have continued to be employed as a Railway Worker Level 4 and primarily performed RMS workshop duties as described above.” 2

[4] Section 201 of the FW Act relevantly states:

“201 Approval decision to note certain matters

Approval decision to note model terms included in an enterprise agreement

Approval decision to note that an enterprise agreement covers an employee organisation

“(2) If:

(a) an employee organisation has given a notice under subsection 183(1) that the organisation wants the enterprise agreement to cover it; and

(b) the FWC approves the agreement;

the FWC must note in its decision to approve the agreement that the agreement covers the organisation.”

[5] Section 183 of the FW Act states:

“183 Entitlement of an employee organisation to have an enterprise agreement cover it

(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.

(2) The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement.

Note: The FWC must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).”

[6] Section 176 of the FW Act relevantly states:

“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 a low-paid authorisation is in operation—the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

Bargaining representatives for a proposed multi-enterprise agreement if a low-paid authorisation is in operation

(2) If:

(a) the proposed enterprise agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation; and

(b) an employee organisation applied for the authorisation; and

(c) but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;

the organisation is taken to be a bargaining representative of such an employee unless:

(d) the employee is a member of another employee organisation that also applied for the authorisation; or

(e) the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or

(f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).

(3) Despite subsections (1) and (2):

(a) an employee organisation; or

(b) an official of an employee organisation (whether acting in that capacity or otherwise);

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

Employee may appoint himself or herself

(4) To avoid doubt and despite subsection (3), an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.

Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).”

[7] Finally, for these purposes, s.53(2)(a) of the FW Act states:

“53 When an enterprise agreement covers an employer, employee or employee organisation

….

Employee organisations

(2) An enterprise agreement covers an employee organisation:

(a) for an enterprise agreement that is not a greenfields agreement—if the FWC has noted in its decision to approve the agreement that the agreement covers the organisation (see subsection 201(2)); or

…”

[8] In his decision the Commissioner addressed the standing of the ARTBIU in the following terms:

“[9] I must note that the RTBU is covered if it is entitled to represent the industrial interests of its Member in relation to work that will be performed under the Agreement.

[10] Railtrain have submitted that there are two questions embedded within Section 176(3) namely: (1) Is the RTBU entitled to represent the industrial interests of the Member covered the Agreement? and (2) Is RTBU entitled to represent the Member’s industrial interests in relation to work that will be performed under the Agreement?

[11] Railtrain submit that the phrase “in relation to work that will be performed under the Agreement” would have no work to do if the provision was simply about the issue of union eligibility. Railtrain submit that in some sections of the Act the phrase “entitled to represent the industrial interests” is used whilst in others the longer phrase found in Section 176(3) is used.

…

[15] I do not consider it helpful to construct two separate tests as suggested by Railtrain. Union eligibility rules are of either an occupational or industry character. If the rule is of an occupational character then a person might be eligible to join a union because of their usual occupation but they may be employed by an employer to perform work which does not include that occupation. In such circumstances the union would not be eligible to be a bargaining representative because it would not be entitled to represent the industrial interests of the employee in relation to the work that will be performed.

[16] Where the union rule is of an industry nature then it is the industry of the employer which will determine eligibility. If the industry of the employer falls within the eligibility rule then it follows that the union will be entitled to represent the industrial interests in relation to the work that will be performed by the employee. However, it is possible for an employer to be in more than one industry. The industry or industries of the employer in relation to the work covered by a particular Agreement might be different from the industry or industries of the same employer covered by a different Agreement. For example, maintenance employers performing work for the mining industry are in some cases engaged in the Mining Industry, in some cases they are engaged in the Manufacturing or Maintenance Industry and in other cases they are engaged in both industries.

[17] The Member was employed by Railtrain as a Rail Worker Level 4 under the Agreement. The work that is performed by a Rail Worker Level 4 includes the work listed in Appendix 1 to the Agreement. The work performed by the Member included performing maintenance work on Fortescue Metals Group’s (FMG) rail rolling stock and carrying out maintenance work on FMG’s rail system. The Member would have continued to perform these duties under the Agreement.” 3

[9] Having then considered the uncontested evidence put to him by FMG, the Commissioner addressed the rules of the ARTBIU. He concluded:

“[28] It is self evident that the Member worked performing maintenance work in or in connection with a railway system that is owned and controlled by a private company which is located within the Commonwealth of Australia. However, I am satisfied that unless Railtrain is engaged in the Railway Industry in respect to the work covered by the Agreement, the RTBU is not eligible to be a bargaining representative for the Member.

[29] Railtrain submit that the work is in the mining industry not the railway industry.

[30] Railtrain submit that the RTBU is not a party to other similar agreements. Railtrain point to submissions made during the process of creating the Rail Industry Award 2010 and Mining Industry Award 2010. Railtrain submit that the RTBU did not seek to assert an interest in the Mining Award or to assert that the private railway systems in the Pilbara were covered by the Rail Award. I am satisfied that the exclusions in the Rail Industry Award and the inclusions in the Mining Industry Award ensure that the work of Railtrain in the Pilbara is covered by the Mining Industry Award or the Manufacturing and Associated Industries and Occupations Award and not the Rail Industry Award. The RTBU supported the relevant exclusions from the Rail Industry Award for private mining railway systems and their inclusion in the Mining Industry Award.

[31] I accept the submission of Railtrain that the history of award coverage is relevant to the proper interpretation of union rules. (AMWU v ResMed [2016] FWCFB 22 at paragraph 81) This is because Awards were historically based upon industrial disputes which were in turn linked to union eligibility. The connection has been weakened under current legislation but the history is still relevant. The exclusion of private mining railway systems which are not interconnected and or available for general use has been a feature of relevant rail awards for many years. The inclusion of such private mining railway systems in the mining industry has also been a feature of relevant mining awards for many years.

[32] The RTBU has not sought to assert that it has a right to cover employees of FMG, Rio Tinto or BHP who operate or maintain their private mining railways in the Pilbara. They have effectively accepted that they operate in the Mining Industry. The RTBU argued that those companies like Railtrain who are contracted by FMG, Rio Tinto or BHP to do that work are in a different situation. The RTBU argue that they operate in the Rail Industry and not the Mining Industry.

[33] I am satisfied that Railtrain generally operates in the Rail Industry. However, the Agreement is in the Mining Industry and or the Manufacturing/Maintenance Industry and that part of Railtrain’s operations covered by the Agreement are confined to the Mining Industry and or the Manufacturing/Maintenance Industry. I am therefore not satisfied that the RTBU is entitled to represent the industrial interests of the Member in relation to work that will be performed under the agreement.” 4

[10] The ARTBIU appeal is made on the basis the provisions of the FW Act provide that the Commission is required to include in an approval decision, a note that an employee organisation is a bargaining representative in relation to the Agreement if that organisation has given written notice under s.183(1) and the Agreement is approved. That note cannot be given if the employee organisation is not eligible to have as members, employees covered by the Agreement.

[11] The ARTBIU assert that the Commissioner’s decision was in error in terms of the finding that the ARTBIU was not entitled to represent the industrial interests of its members under the Agreement. The ARTBIU assert that:

“The error made by Roe C occurred because:

a. Roe C misdirected himself by looking at the industry of FMG rather than the industry of the particular work that we performed under the agreement; and/or alternatively
b. Roe C erred by failing to find that the work performed by the appellant’s member fell within the railway industry, the mining industry and the manufacturing/maintenance industry; and/or alternatively
c. Roe C erroneously adopted a narrow meaning of the words “Railway Industry” in the appellant’s rules. If Roe C had read the rules broadly, as was required by law, then he would have been satisfied that the term “Railway Industry” was broad enough to cover any person who performs maintenance work on railway lines and rail rolling stock.” 5

[12] The ARTBIU position is that the Commissioner erred because, irrespective of whether consideration of the industry of the employer or the relationship between the work of the employee in question and the industry in question, was applied, a finding that the ARTBIU was entitled to represent the industrial interests of its member in relation to the work that the member would have performed under the Agreement was required to be made.

[13] The ARTBIU rules relevantly state:

(1) The following shall be eligible to become members of the Union:-

(i) permanent or casual employees, including persons training for employment, in the tramway services of Australia and motor omnibus services and trolley bus services and light rail services run in conjunction therewith or controlled thereby, and also employees of the State Transit Authority of New South Wales, the Public Transport Corporation of Victoria, the State Transport Authority of South Australia, the Metropolitan Transport Trust Tasmania, the Brisbane City Council and the Metropolitan (Perth) Passenger Transport Trust and any Commonwealth, State or Local Government, in tramway or motor omnibus or trolley bus or light rail services together with such other persons whether employed in the industry or not who at any time when training for employment or working in the tramway, trolley bus, motor omnibus or light rail services have been admitted as members and who continue that membership.

Provided nothing in this paragraph (i) shall permit the Union to enrol as members persons employed in the States of Victoria, Queensland, Tasmania and Perth as clerks, ticket examiners, depot starters, assistant depot starters or inspectors; and

(ii) an unlimited number of employees employed in or in connection with the Railway and Tramway industry or industries governed and controlled directly by the Governments of the Commonwealth of Australia and the State of Queensland, New South Wales, Victoria, South Australia, Western Australia and Tasmania, or indirectly by such Governments, or any of them through Commissioners, Boards, Managers, Directors, or other means, and also all railway systems in the Commonwealth of Australia owned and controlled by private persons or companies, and the Secretary and/or any employee of the Railway Institute established by or under the direction or with the approval of the Commissioners, Boards, Managers, Directors or other controlling authorities of any of the railway systems in the Commonwealth of Australia; and

(iii) (a) an unlimited number of railway employees (adult or junior, male or female) who become and remain members of the Union and persons who while being members of the Union retire from the railway industry upon the ground of ill health or having reaching retiring age and whose membership has not been terminated pursuant to these Rules;

(b) for the purposes of sub-paragraph (iii)(a) above, “Employee” or “Railway Employee” means any officer or employee employed by any Railway Department and also any officer or employee employed in any railway system in the Commonwealth owned or controlled by private persons in corporations other than officers in a supervisory position employed at an annual rate of salary and shall include the Secretary or any employee of any Railway Institute established by or under the direction or with the approval of the Railway Commissioner or other controlling authority of any railway system in the Commonwealth and “Railway industry” has a corresponding meaning; and

(iv) an unlimited number of persons employed in the Railway Train Running Industry including Locomotive Drivers, Electric Train Drivers, Firemen, Electric Helpers, Chargemen and Cleaners, Packers and Trimmers, Wash-out Men, Wash-out Men’s Assistants, Motor Drivers and any other worker engaged in and about the working or management of or incidental to any Steam Locomotive or Motor driven by electricity or other power used on any Railway;

Provided that, except as provided in Sub-Rule 4(3), 12(3) and 12(4), a person shall only be eligible to remain as a member while he/she continues to meet one or other of the eligibility criteria specified in the foregoing paragraphs.” 6

[14] Alternatively, the ARTBIU argues that, in the event that the Commissioner approached his consideration of the ARTBIU rules from the perspective of the industry of the employer, the work that was undertaken by its member was work included in the Agreement and that this work was clearly within the eligibility rules of the ARTBIU. If it was the case that the test required consideration of the employer’s industry, the ARTBIU asserts that the Commissioner’s decision was in error in that Railtrain provides rail workers to undertake work on rail systems throughout Australia and the Commissioner erred in restricting his considerations to the industry within which FMG operates.

[15] Thirdly, the ARTBIU assert that the Commissioner erred by not construing its rules broadly, consistent with numerous authorities to this effect. 7 The ARTBIU asserted that the Commissioner erred in finding that, firstly, the employee must be working in, or in connection with, the railway industry. Secondly, that the employee must be employed in, or in connection with, the railway system in the Commonwealth of Australia owned or controlled by a private person or company. The ARTBIU contended that the Commissioner’s finding that its member work in, or in connection with, a railway system in the Commonwealth of Australia which was owned or controlled by a private company was inconsistent with his finding that the work performed by that member was not in connection with the railway industry and reflected a narrow interpretation of the words “railway industry”.

[16] Section 604(1) provides that an appeal can only proceed with the permission of the FWC. Section 604(2) requires that the FWC must grant permission if it is satisfied that it is in the public interest to do so.

[17] The ARTBIU asserts that the appeal is in the public interest because employees covered by the Agreement would suffer an injustice if there was no union party to the agreement in that this will affect the ability to enforce the Agreement on behalf of employees. Secondly, the ARTBIU asserts that, when the Agreement reaches its nominal expiry date, the effect of the Commissioner’s decision is to exclude the ARTBIU from representing its members in the next round of bargaining. Finally, the ARTBIU asserts that the appeal is in the public interest because of the errors in the Commissioner’s decision and the extent to which rectification of those errors is, of itself, in the public interest and that the spectre of judicial review supports reconsideration of the Commissioner’s decision through this appeal.

[18] The Railtrain position is that the public interest does not arise with respect to this decision in that the appeal is not sufficiently arguable and the ARTBIU has no members working for Railtrain in the Pilbara. Further, that employees covered by the Agreement will not be disadvantaged in that they have the right to activate enforcement proceedings. Railtrain assert that the Commissioner’s decision does not impact on the proper exercise of entry rights pursuant to Part 3-4 of the FW Act. Railtrain agreed that the ARTBIU could not be a bargaining representative in the future but asserted that this reflected a proper approach to construction of its own rules and that the spectre of judicial review ought not dictate that the public interest be enlivened.

[19] Railtrain asserts that, in any event, the Commissioner’s decision was not in error. It argues that a proper approach to the analysis of the ARTBIU rules required the Commissioner to take into account the “substantial character” 8 of the business activities undertaken by Railtrain under the Agreement. Railtrain assert that the rail transportation of ore within the Pilbara is an integral component of the Pilbara mining operations undertaken by FMG. Railtrain assert that the ARTBIU rules need to be applied in the context that railways in the Pilbara are regarded as part of mining rather than part of the railway industry.9 Railtrain relied on agreements reached between various unions, including the ARTBIU to this effect, together with agreed exclusions of the ARTBIU from the Mining Industry Award 2010 and, the Rail Industry Award 2010 relative to work which solely relates to the “transportation, handling and loading of metals, minerals, ores or substances using the plant or infrastructure (including the rail and/or ports) of the mine operator or a related company”.10

[20] Accordingly, Railtrain asserted that, for the purposes of s.176(3) of the FW Act, the work undertaken by the ARTBIU was not in, or in connection with, the railway industry and the ARTBIU was not entitled to represent that member in relation to that work so as to be a bargaining representative in relation to the agreement.

Consideration

[21] As we have stated, an appeal under s.604 of the FW Act requires the permission of the Commission. Section 604(2) states:

“604 Appeal of decisions

…

(2) Without limiting when the FWC may grant permission, the FWC must grant permission if the FWC is satisfied that it is in the public interest to do so.

Note: Subsection (2) does not apply in relation to an application for an unfair dismissal (see section 400).”

[22] We have considered the utility of the appeal in this context.

[23] We are not satisfied that the absence of a note providing that the ARTBIU is covered by the Agreement represents a form of inherent unfairness to the employees covered by the Agreement. No other union or employee organisation is covered by the Agreement. It is common ground that the ARTBIU does not have a member covered by the Agreement and has not had such a member over the duration of the Agreement. The ARTBIU did not participate in the bargaining process for the Agreement.

[24] We are not satisfied that the Commissioner’s decision limits the capacity of an employee covered by the Agreement to exercise their rights under the Agreement. Clause 26 of the Agreement establishes dispute settlement procedures which enable employees to obtain representation. Further, the provisions of the Agreement are enforceable under the FW Act. Section 540(2) states:

“540 Limitations on who may apply for orders etc.

Employees, employers, outworkers and outworker entities

…

(2) An employee organisation or a registered employee association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision in relation to an employee, only if:

(a) the employee is affected by the contravention, or will be affected by the proposed contravention; and

(b) the organisation or association is entitled to represent the industrial interests of the employee.”

[25] To the extent that the effect of the Commissioner’s decision is that it means that the ARTBIU is unable to apply for an order to enforce the Agreement, this is irrelevant at the present time as the ARTBIU does not have a member engaged under the Agreement and, in any event, is dependent on the coverage issue which we have considered later in this decision. In any event, we are not persuaded that this is a matter of particular significance.

[26] We do not consider that a note to the effect that the ARTBIU is an organisation covered by the Agreement has any other particularly relevant effect on the fair operation of the Agreement or on the exercise of other rights such as entry rights which are provided for under the FW Act. Consequently, we do not consider that the Commissioner’s decision manifests an injustice to the employees covered by the Agreement.

[27] To the extent that the ARTBIU assert that the public interest in this matter is enlivened because the Commissioner’s decision means that it is unable to represent the interests of members in future agreement negotiations, we think this is entirely dependent on the nature of any such agreement proposals. The capacity of the ARTBIU to represent the industrial interests of members to be engaged under a future agreement must depend on the scope and the coverage of that future agreement. Accordingly, consideration of public interest in this respect is, in our view, premature.

[28] Thirdly, the ARTBIU position that the Commissioner’s decision is plainly wrong and, accordingly, should be corrected in the public interest, requires consideration of the decision itself. In this matter it is not clear that the Commissioner’s decision has broader implications and, consequently, it would be very unusual for an Appeal Bench to grant permission unless error on the part of the decision maker was identified.

[29] In his decision, the Commissioner considered the relevant rules of the ARTBIU. We are satisfied that he considered those rules on the basis of a broad interpretation consistent with the proper approach to the interpretation of union rules. 11

[30] We are satisfied that the Agreement operates exclusively in the Pilbara. Clause 2 of the Agreement states:

“2. PARTIES BOUND AND APPLICATION OF AGREEMENT

2.1 This Agreement shall cover:

(a) RaiLtrain Pty Ltd (ACN 145 155 666) (Employer);

(b) the Employees of the Employer employed in the classifications contained in Clause 6 - Classifications and Base Rates of Pay of this Agreement when engaged in rail operations and maintenance works on resources project sites in the Pilbara Region (Employees).

'Pilbara Region' means the region defined by Schedule 1 to the Regional Development Commissions Act 1993 (WA) comprising of the following local government districts: Shire of Ashburton, Shire of East Pilbara, Shire of Roebourne and the Town of Port Hedland.”

[31] Further, the unchallenged evidence of Mr Butler, a Director and the General Manager of Railtrain, before the Commissioner was that:

“45 The key contracts that Railtrain has with its clients in the Pilbara include a defect elimination project contract with FMG (FMG Contract) which commenced in January 2014. The key aspects of this contract involve:

(a) removing defects from the railway line;

(b) plating all the welds;

(c) contingency labour to assist FMG to undertake maintenance work;

(d) working on FMG programmed rail maintenance schedules;

(e) distressing, switch replacements, FROG replacements and Rolling Stock Maintenance Workshop (RSM Workshop); and

(f) remedial works: for example if a derailment occurs, Railtran will assist with the realignment of sleepers, shutdown work and the removal and replacement of any section of damaged track.

46 All FMG contract work is carried out at the FMG mine site which includes the FMG railway line, which is owned and operated by FMG exclusively for its iron ore mining operations within the Pilbara above the 26^th parallel (South). Almost all of this work occurs on a “live track”, with scheduled works occurring between trains.” 12

[32] And further,

“55 From my knowledge and experience of working in the rail industry for over 30 years and in the Pilbara since 2003, I know that:

(a) The Pilbara railway lines were built specifically to cover the vast distances from mine to port;
(b) They are privately owned, self-contained and isolated from the railway lines in the rest of Australia;
(c) The railway lines form part of an integrated supply-chain consisting of mine, rail and port operations by the mining companies;
(d) The railway lines are wholly supportive of the mining industry (iron ore), which is the only industry of substance in the region;
(e) The Pilbara railway lines are some of the longest, heaviest rail haulage routes in the world; and
(f) They were purpose built to standard gauge Association of American Railroads loading gauge, rather than to the narrow gauge rail that was employed for the majority of the railway lines in Western Australia.

56 The Pilbara ore railways are unlike general freight and passenger railway lines. The sole purpose of the Pilbara railway lines is the production of iron ore. 13

…

58 From my knowledge, the only union that Railtrain has communicated with in respect of its operations in the Pilbara is the CFMEU. This matches my history of working in the mining industry in the Pilbara, during which time my dealings with unions in relation to mining companies in the Pilbara have always been with the CFMEU. Rail work in the Pilbara from my experience has always been considered to be in the mining industry, not the rail industry.”

[33] Notwithstanding a broad application of the ARTBIU rules, we think it must follow from the established custom and practice, endorsed by the ARTBIU, that it accepts that these rules do not provide for coverage of employees who are engaged in mining activities in the Pilbara. Indeed, the position adopted by the ARTBIU in the Award Modernisation process with respect to both the Rail Industry Award and the Mining Industry Award clearly indicates that the ARTBIU regarded the rail transportation of material between mines in Western Australia and ports, when conducted on railways owned and operated on behalf of mining companies were not part of the railway industry. 14 This position is reflected in the provisions of the Railway Industry Award 2010. The position now argued by the ARTBIU appears to be substantially at odds with the limitations on its own rules which it has consistently acknowledged.

[34] Consequently, and substantially because of these commitments made by the ARTBIU, we see no obvious error in the position adopted by the Commissioner to the effect that the ARTBIU was not entitled to represent the industrial interests of its member such that the conditions of s.176(3) were met. Had the ARTBIU historically adopted or established a different position with respect to coverage of employees in the Pilbara, we, together with the Commissioner, may well have reached a quite different conclusion.

Conclusion

[35] We are not satisfied that the ARTBIU has established error on the part of the Commissioner or that, in the absence of any such established error, permission to appeal should be granted. The appeal is dismissed on this basis.

Appearances:

C Fogliani of counsel, for the Appellant.

S Wood of senior counsel and J Snaden, for the Respondent.

Hearing details:

2016.

Perth:

May 10.

 1   [2016] FWCA 1385

 2   Appeal Book – Agreed Statement of Facts, pages 96 - 98

 3   [2016] FWCA 1385, paras [9]-[11] and [15]-[17]

 4   [2016] FWCA 1385, paras [28]-[33]

 5   Appellant’s Outline of Submissions, 26 April 2016, para 9

 6   Appeal Book, pages 132 and 133, RBTU Rules, Rule 4(1)

 7   such as CFMEU v CSBP Ltd [2012] FCAFC 48 at [48]-[49]

 8   Exhibit R1, para 5.6

 9   Exhibit R1, paras 5.12 - 5.18

 10   Rail Industry Award 2010, cl 4.2

 11   see decision, [2016] FWCA 1385, para [31]

 12   Appeal Book, pages 106 – 107, paras 45 and 46

 13   Appeal Book, pages 108 – 109, paras 55, 56 and 58

 14   Appeal Book, page 468, para 2 (Pre drafting outline of submissions of the CFMEU)

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