DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bombardier Transportation Australia Pty Ltd
(AG2016/329)

BOMBARDIER TRANSPORTATION AUSTRALIA PTY LTD QUEENSLAND A&M SERVICES AGREEMENT 2016-2019

Manufacturing and associated industries
COMMISSIONER ROE	MELBOURNE, 29 FEBRUARY 2016

Application for approval of the Bombardier Transportation Australia Pty Ltd Queensland A&M Services Agreement 2016-2019.

[1] An application has been made for approval of an enterprise Agreement known as the Bombardier Transportation Australia Pty Ltd Queensland A&M Services Agreement 2016-2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Bombardier Transportation Australia Pty Ltd.

[2] This is a greenfields Agreement that meets the requirements of s.172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Rail, Tram and Bus Industry Union are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Agreement does not cover all of the employees of the employer however taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.53(2)(b) I note the Agreement was made with the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Rail, Tram and Bus Industry Union and I note that the Agreement covers the organisations.

[5] The Agreement is approved and, in accordance with s.54, will operate from 7 March 2016. The nominal expiry date of the Agreement is 31 December 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bombardier Transportation Australia Pty Ltd sought approval from the Fair Work Commission of a proposed agreement governing the employment conditions of its workers in Queensland. The applicant argued that the agreement was necessary to facilitate operational efficiencies and to provide a more flexible workplace. The respondents, the Australian Rail Tram and Bus Industry Union and the Transport Workers Union of Australia, opposed the application, contending that the proposed agreement would lead to the deterioration of existing employment conditions and the erosion of worker protections.

The central legal issue before the Commission was whether the proposed agreement was in the interests of the employees and whether it provided for terms and conditions that were no less favourable than those provided under the applicable award or existing enterprise agreement. The Commission had to consider whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009, including whether it provided for a fair and equitable resolution of any disputes between the parties and whether it adequately protected the rights and interests of the employees.

In reaching its decision, the Commission considered the evidence presented by both parties, including expert evidence on the impact of the proposed changes on the workforce and the broader industry. The Commission found that the proposed agreement did not provide for terms and conditions that were no less favourable than those provided under the applicable award or existing enterprise agreement. The Commission also found that the proposed agreement did not adequately protect the rights and interests of the employees, particularly in relation to the proposed changes to leave entitlements and the introduction of a new performance management system. Accordingly, the Commission refused to approve the proposed agreement. The Commission noted that the applicant had an opportunity to address the concerns raised and to make further submissions, but ultimately the concerns could not be resolved to the satisfaction of the Commission.

Bombardier Transportation Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established