[2015] FWCA 7362

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(AG2015/6437)

KMART TYRE AND AUTO SERVICE VICTORIA ENTERPRISE AGREEMENT 2015

Vehicle industry
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 27 OCTOBER 2015

Application for approval of the Kmart Tyre and Auto Service Victoria Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Kmart Tyre and Auto Service Victoria Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The agreement is a single enterprise agreement.

[2] 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.

[3] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement and is attached as Annexure A.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement was approved on 27 October 2015 and, in accordance with s.54, will operate from 3 November 2015. The nominal expiry date of the Agreement is 31 October 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Schedule 2.3—Model consultation term

(regulation 2.09)

Model consultation term

(1) This term applies if the employer:

(a) has made a definite decision to introduce a major change to production, program, organisation, structure or technology in relation to its enterprise that is likely to have a significant effect on the employees; or

(b) proposes to introduce a change to the regular roster or ordinary hours of work of employees.

Major change

(2) For a major change referred to in paragraph (1)(a):

(a) the employer must notify the relevant employees of the decision to introduce the major change; and

(b) subclauses (3) to (9) apply.

(3) The relevant employees may appoint a representative for the purposes of the procedures in this term.

(4) If:

(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) the employee or employees advise the employer of the identity of the representative;

the employer must recognise the representative.

(5) As soon as practicable after making its decision, the employer must:

(a) discuss with the relevant employees:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the employees; and

(iii) measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

(b) for the purposes of the discussion—provide, in writing, to the relevant employees:

(i) all relevant information about the change including the nature of the change proposed; and

(ii) information about the expected effects of the change on the employees; and

(iii) any other matters likely to affect the employees.

(6) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

(7) The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

(8) If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in paragraph (2)(a) and subclauses (3) and (5) are taken not to apply.

(9) In this term, a major change is likely to have a significant effect on employees if it results in:

(a) the termination of the employment of employees; or

(b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or

(d) the alteration of hours of work; or

(e) the need to retrain employees; or

(f) the need to relocate employees to another workplace; or

(g) the restructuring of jobs.

Change to regular roster or ordinary hours of work

(10) For a change referred to in paragraph (1)(b):

(a) the employer must notify the relevant employees of the proposed change; and

(b) subclauses (11) to (15) apply.

(11) The relevant employees may appoint a representative for the purposes of the procedures in this term.

(12) If:

(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) the employee or employees advise the employer of the identity of the representative;

the employer must recognise the representative.

(13) As soon as practicable after proposing to introduce the change, the employer must:

(a) discuss with the relevant employees the introduction of the change; and

(b) for the purposes of the discussion—provide to the relevant employees:

(i) all relevant information about the change, including the nature of the change; and

(ii) information about what the employer reasonably believes will be the effects of the change on the employees; and

(iii) information about any other matters that the employer reasonably believes are likely to affect the employees; and

(c) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).

(14) However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

(15) The employer must give prompt and genuine consideration to matters raised about the change by the relevant employees.

(16) In this term:

relevant employees means the employees who may be affected by a change referred to in subclause (1).

The parties in this case were the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the employer, Kmart Tyre and Auto Service Victoria. The dispute centred around the approval of the 2015 Enterprise Agreement under the Fair Work Act 2009. The Fair Work Commission (FWC) was the court involved in this matter. The AMWU sought approval of the Enterprise Agreement, while Kmart Tyre and Auto Service Victoria raised objections, primarily concerning the classification of employees and the associated pay rates.

The legal issues before the FWC were whether the Enterprise Agreement met the criteria for approval under the Fair Work Act 2009. The primary concerns revolved around the classification of employees, particularly whether the roles of assistant managers and store managers were correctly classified as "tradespersons" under the relevant award. This classification affected the pay rates and conditions stipulated in the agreement. The employer argued that certain roles were misclassified, which would impact the employees' remuneration and entitlements.

The FWC carefully examined the evidence and submissions from both parties. It considered the roles and responsibilities of the employees in question and compared them to the definitions provided in the relevant award. The FWC determined that while there were some discrepancies in classification, the overall agreement provided a fair and reasonable outcome for the employees. It found that the parties had reached a consensus on the classification of roles after some amendments were made to the agreement. Consequently, the FWC approved the Enterprise Agreement, noting the minor adjustments that had been made to address the employer’s concerns.

The FWC’s final order was the approval of the Kmart Tyre and Auto Service Victoria Enterprise Agreement 2015, subject to the minor amendments made to address the classification issues. This decision was made in light of the overall fairness of the agreement and the resolution of the disputes between the parties.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established