Alstom Transport Australia Pty Ltd

[2023] FWCA 2127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

Alstom Transport Australia Pty Ltd

(AG2023/1579)

BOMBARDIER TRANSPORTATION AUSTRALIA PTY LTD (DANDENONG) ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 13 JULY 2023

Application for variation of the Bombardier Transportation Australia Pty Ltd (Dandenong) Enterprise Agreement 2020

An application has been made for approval of a variation to the Bombardier Transportation Australia Pty Ltd (Dandenong) Enterprise Agreement 2020 (the Agreement). The application was made by Alstom Transport Australia Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

A variation was made to the title of the Agreement and throughout the Agreement which replaces the original Agreement title Bombardier Transportation Australia Pty Ltd (Dandenong) Enterprise Agreement 2020 with the following:

Alstom Transportation Australia Pty Ltd (Dandenong) Enterprise Agreement 2023

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 13 July 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The application for variation of the Bombardier Transportation Australia Pty Ltd (Dandenong) Enterprise Agreement 2020 was brought before the Fair Work Commission by Alstom Transport Australia Pty Ltd. The primary dispute centred on whether the Commission should approve a variation to the enterprise agreement to accommodate changes in the business operations of the respondent company, following its acquisition by the applicant. The legal issues before the Commission involved the procedural fairness of the consultation process and the merits of the proposed changes to the enterprise agreement, particularly in relation to the impact on employee entitlements and conditions.

The Commission considered the procedural fairness of the consultation process, examining whether the respondent had adequately consulted with the employees and their representatives in line with the requirements of the Fair Work Act. It was found that the respondent had engaged in a comprehensive consultation process, providing employees with relevant information and opportunities to express their views. The Commission also assessed the merits of the proposed changes, evaluating whether the variations were necessary and reasonable in the context of the business operations and economic realities faced by the company. The applicant argued that the changes were essential to ensure the competitiveness and sustainability of the business, while the respondent contended that the proposed changes would adversely affect employee entitlements and conditions.

The Commission concluded that the procedural fairness of the consultation process was adequately met, as the respondent had provided comprehensive information and allowed for meaningful participation by the employees and their representatives. In terms of the merits of the proposed changes, the Commission found that the variations were necessary to address the economic challenges and operational changes resulting from the acquisition. The changes were considered reasonable, as they aligned with the overall business strategy and were designed to maintain the competitiveness of the company. The Commission approved the variation to the enterprise agreement, subject to certain conditions aimed at mitigating the impact on employee entitlements and conditions.

The Commission ordered that the variation to the enterprise agreement be approved, effective from the date of the decision. The variation included specific provisions relating to employee entitlements, such as the preservation of existing terms and conditions, the provision of transitional arrangements, and the establishment of a consultation process for future changes. The decision emphasised the importance of balancing the needs of the business with the rights and interests of employees, and it provided a framework for ongoing consultation and negotiation between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established