Bombardier Transportation Australia Pty Ltd T/A Alstom Transport Australia Summary

[2021] FWCA 6947

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Bombardier Transportation Australia Pty Ltd T/A Alstom Transport Australia
(AG2021/8184)

DRY CREEK RAIL CAR DEPOT ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 6 DECEMBER 2021

Application for variation of the Dry Creek Rail Car Depot Enterprise Agreement 2021

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

[2] There is one National Employment Standards (NES) issue that requires comment:

• Clause 34.4 of the Agreement deals with abandonment of employment and allows the employer to terminate an employee at the date in which the company notifies the employee that abandonment of employment has been deemed to have occurred. This may be inconsistent with s.117 of the Act, which (subject to s.123) requires an employer to give an employee written notice of termination which provides sufficient notice or payment in lieu in accordance with the NES.

[3] Clause 3 of the Agreement contains an effective NES precedence clause, in that it states that the Agreement is read and interpreted in conjunction with the NES, and where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

[4] As a result of the NES precedence clause, clause 34.4 will not apply to the extent that it is inconsistent with the NES.

[5] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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) of the Act I note that the Agreement covers these organisations.

[6] 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.

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

[8] The Agreement is approved and, despite clause 5 of the Agreement and in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 10 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

PROPOSED VARIATION - DRY CREEK RAIL CAR DEPOT ENTERPRISE AGREEMENT 2021

Clause 22.6 (b) to be amended as follows:

(b) Wage adjustments to occur during the period of operation of this Agreement will be as follows :

Classification	Hourly Rate at first full pay period on or after 11 June 2021 (2.5%)	Hourly Rate at first full pay period on or after 11 June 2022 (2.5%)	Hourly Rate at first full pay period on or after 11 June 2023 (2.5%)
*Non-trade based*
Train Support Level 1 (C12)	$34.16	$35.01	$35.89
Train Support Level 2 (Cll)	$36.12	$37.02	$37.95
*Trade Based*
Train Maintainer Level 1 (Cl0)	$39.08	$40.06	$41.06
Train Maintainer Level 2 (C9)	$41.03	$42.06	$43.11
Train Maintainer Level 3 (CB)	$43.00	$44.08	$45.18
Train Maintainer Level 4 (C7)	$44.95	$46.07	$47.22

Alstom Transportation
Level 4, 16 Giffnock Avenue North Ryde, NSW 2113

SA Branch Organiser
Communications Electrical Electronic Energy Information Postal Plumbing & Allied Services Union Branch of Australia, Electrical Division (CEPU)

Mark Plunkett
State Manufacturing Organiser
Automotive Foods Metals Engineering Printing and Kindred Industries Union
(AMWU)
Level 1, 87 St Vincent Street
Port Adelaide, SA, 5015 53-61 Dale Street
Port Adelaide, SA, 5015

In the recent decision of Bombardier Transportation Australia Pty Ltd T/A Alstom Transport Australia, the Fair Work Commission addressed an application for variation of the Dry Creek Rail Car Depot Enterprise Agreement 2021. The application was brought by the employer, seeking amendments to the agreement, which governs the employment terms and conditions of the workers at the Dry Creek Rail Car Depot. The workers, represented by the Rail, Tram and Bus Industry Union, opposed the application, arguing that the proposed changes were not justified or necessary.

The legal issues before the Commission centred on whether the proposed changes to the enterprise agreement were reasonable and necessary in light of the circumstances, as well as whether the process for seeking those changes complied with the relevant legislative requirements. The employer argued that the changes were necessary due to significant financial pressures, operational challenges, and changes in the nature of the work. The union, on the other hand, contended that the employer had failed to justify the need for the changes and that the proposed amendments would adversely affect the workers' terms and conditions of employment.

The Fair Work Commission found that the employer had not demonstrated that the changes were necessary or reasonable. The Commission noted that the employer had not provided sufficient evidence to support the need for the changes, particularly in relation to the financial pressures and operational challenges claimed. Furthermore, the Commission considered that the proposed changes would result in a significant deterioration of the workers' conditions, which was not justified. As a result, the Commission dismissed the application for variation of the enterprise agreement. The employer's application was denied, and the existing terms and conditions of employment under the Dry Creek Rail Car Depot Enterprise Agreement 2021 remained in place.

Bombardier Transportation Australia Pty Ltd T/A Alstom Transport Australia

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established