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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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 employer to explain as a pre-approval requirement under s.180(5)(a).  

1. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). I am satisfied the error was minor because, on any basis in the circumstances, the Agreement (very) comfortably passed the BOOT – and more readily when compared to the Rail Industry Award - and there was no information given to me that the absence of information about the change from the Manufacturing Award to the Rail Industry Award presented a concern. Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act. As the Agreement was intended to incorporate terms of the Manufacturing Award, there is no ‘genuine agreement’ question arises about that issue.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Australian Rail, Tram and Bus Industry Union and Communications (ARTBIU) and Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

1. The Agreement was approved on 24 April 2023 and, in accordance with s.54 of the Act, will operate from 1 May 2023. The nominal expiry date of the Agreement is 26 September 2026.

DEPUTY PRESIDENT

[1]     See CFMMEU v Ditchfield Mining Services Pty Ltd[2019] FWCFB 4022 at [71], and CFMMEU v Karijini Rail Pty Ltd[2020] FWCFB 958 referring to same.

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