AREEA senior workplace policy adviser, Lisa Matthews explores a Full Bench of the Fair Work Commission decision preventing a rail union from representing workers under a Pilbara iron ore enterprise agreement due to its historic eligibility rules.

IN a 1 June 2016 decision, a Full Bench of the Fair Work Commission (FWC) – Senior Deputy President Matthew O’Callaghan, Deputy President Geoff Bull and Commissioner Bruce Williams – found no error in an original decision that refused to include the Australian Rail, Tram and Bus Industry Union (ARTBIU) as a party to the Railtrain Pty Ltd Rail / Civil Maintenance & Operations Pilbara Enterprise Agreement 2016.

Railtrain is a contractor to the Fortescue Minerals Group (FMG) and the enterprise agreement (EA) was limited to the rail maintenance work undertaken by Railtrain on railway lines owned and operated by FMG in the Pilbara.

When the company applied to the FWC in February 2016 for approval of the EA, with no union party covered by the agreement, the ARTBIU gave notice it wanted to be covered by the agreement.

In the decision at first instance, Commissioner Julius Roe declined the union’s application, saying it could only be covered if it was entitled to represent the industrial interests of its member in relation to work to be performed under the agreement.

At the time the agreement was negotiated, the union had one member that would be covered by it, but that member was no longer employed. The FWC also heard the ARTBIU had not been involved in negotiations for the EA.

According to the union’s own eligibility rules, as well as its historical position, it had no connection to mining industry awards, Commissioner Roe said. So unless the Railtrain work was in the ‘railway industry’, the union was not entitled to be a bargaining representative, even if it did have a member onsite.

While Railtrain generally operated in the rail industry as a labour hire firm, this particular EA was in the mining industry and / or the manufacturing / maintenance industry. The ARTBIU was therefore not entitled to represent any of its members, should there be any, under the agreement.

The appeal decision

The Full Bench on appeal upheld Commissioner Roe’s decision, finding there was no error of fact.

This was despite the union arguing:

• The commissioner should have looked at the ‘employer’s industry’ (i.e. Railtrain) rather than FMG’s industry (i.e. mining);
• Employees covered by the EA would ‘suffer an injustice’ as there was no union party to the agreement and this would affect the ability of employees to enforce the agreement; and
• The decision excluded the ARTBIU from future negotiations for the next enterprise agreement.

Railtrain in turn argued:

• The transportation of iron ore within the Pilbara was an integral part of the Pilbara mining operations of FMG;
• Railways in the Pilbara are regarded as part of ‘mining’ rather than part of the ‘railway’ industry; and
• The work undertaken under the EA was therefore not connected with the railway industry and the ARTBIU was not entitled to represent members in relation to that work.

In finding against the union, the FWC said:

• It was not satisfied that the union not being covered by the agreement represented ‘inherent unfairness’ to employees;
• The decision did not limit the capacity of an employee covered by the agreement to exercise their rights under the agreement;
• The agreement included dispute settlement procedures which enabled employees to obtain representation should they wish;
• At the time the union did not have a member employed under the agreement; and
• As to the union’s ability to participate in future bargaining rounds, that would depend on the nature of any agreement proposed, including the scope and coverage of any future agreement.

Implications for employers

The Full Bench found that following the accepted custom and practice endorsed by the ARTBIU itself, its rules did not provide coverage of employees engaged in mining activities in the Pilbara.

The position adopted by the union in the 2009 award modernisation process with respect to the Rail Industry Award and the Mining Industry Award clearly showed the union 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.

Had the union historically adopted or established a different position with respect to coverage of employees in the Pilbara, the FWC may have reached quite a different conclusion.

The decision confirms that the ARTBIU cannot represent workers under EAs covering work on railways operated by mining companies in the Pilbara.

Click here for the Full Bench decision.

For more information on this case or any matter relating to enterprise agreements or union representation, contact your local AREEA office.