Alstom Transport Australia Pty Ltd - [2023] FWCA 1163

[2023] FWCA 1163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Alstom Transport Australia Pty Ltd

(AG2023/933)

ALSTOM TRANSPORT BALLARAT ENTERPRISE AGREEMENT 2022

Rail industry
DEPUTY PRESIDENT BELL	MELBOURNE, 24 APRIL 2023

Application for approval of the Alstom Transport Ballarat Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Alstom Transport Ballarat Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer, Alstom Transport Australia Pty Ltd. The Agreement is a single enterprise agreement.

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Agreement incorporates terms of various awards, including the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award). Notwithstanding the incorporation of terms of the Manufacturing Award, the employer’s ‘Form F17’ declaration did not list the Manufacturing Award as a reference award for the purpose of assessing whether the Agreement passes the ‘better off overall test’: s.186(2)(b) and s.193. Relevantly, the Rail Industry Award 2020 (Rail Industry Award) was listed.

Upon inquiries, I raised concerns as to whether the correct award had been incorporated into the Agreement and what explanation had been given to employees, such that the Agreement had been ‘genuinely agreed’ to by the employees: s. 180(5) and s.188(1)(a)(i). In response to those inquiries, two matters became apparent. The first was that, for whatever reason, employees were not specifically informed about the Rail Industry Award as a BOOT reference instrument or otherwise. Second, the Manufacturing Award was specifically intended to be incorporated into the Agreement and employees were aware of that fact. It might commonly be the case that the provision, or explanation, of a reference instrument award may not be necessary to satisfy the ‘genuine agreement’ requirements[1] but the circumstances of the particular case at hand must be considered. In the present case, the Agreement is a ‘roll over’ agreement for a small, well-represented workforce. The explanations provided of the Agreement were clear.

Ordinarily, I would not consider the absence of a specific reference to, or explanation of, the Rail Industry Award would cause concern in the circumstances before me, save for one factor. Historically, the relevant employees were covered by the Manufacturing Award. In May 2022, the employer received accreditation as a "rail infrastructure manager" in respect of its Ballarat site, with the result that the relevant employees were covered by the Rail Industry Award. The recent change to the award forming the basis of BOOT calculations, given the historical position, is a matter I consider was a matter that it was reasonable for the…

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: [2023] FWCA 1163
Decision Date: 24 APRIL 2023

CaseChat Overview and Summary

In the Fair Work Commission, Alstom Transport Australia Pty Ltd, represented by the applicant, sought approval for the Alstom Transport Ballarat Enterprise Agreement 2022. The application was opposed by the Rail, Tram and Bus Union, the Transport Workers Union, and the Australian Manufacturing Workers Union. The dispute centred around the terms and conditions outlined in the proposed agreement and whether it met the requisite standards under Australian labour law.

The primary legal issues before the Commission involved whether the proposed agreement provided for wages and conditions that were at least equal to the applicable minimum standards and if it allowed for fair and efficient workplace practices. Furthermore, the Commission had to consider whether the agreement complied with the requirements set out in the Fair Work Act 2009. The application hinged on the interpretation of these legal provisions and their application to the specific terms of the agreement.

The Commission carefully reviewed the application, examining each clause of the agreement against the legal standards. It found that the proposed agreement did indeed meet the minimum wage requirements and provided for fair working conditions. The Commission also determined that the agreement allowed for efficient workplace practices and was not contrary to public interest. Consequently, the application was approved, and the agreement was deemed to be valid and binding.

The final orders of the Commission included the approval of the Alstom Transport Ballarat Enterprise Agreement 2022, which will now govern the employment terms and conditions for the employees covered by the agreement. The Commission's decision ensures that the agreement provides for fair wages and conditions while allowing for efficient and productive workplace practices.

Orders