DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bombardier Transportation Australia Pty Ltd T/A Bombardier Transportation
(AG2020/2965)

BOMBARDIER TRANSPORTATION AUSTRALIA PTY LTD (DANDENONG) ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT CLANCY	MELBOURNE, 2 NOVEMBER 2020

Application for approval of the Bombardier Transportation Australia Pty Ltd (Dandenong) Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Bombardier Transportation Australia Pty Ltd (Dandenong) Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bombardier Transportation Australia Pty Ltd T/A Bombardier Transportation. The Agreement is a single enterprise agreement.

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

[3] I observe that clauses 27.3, 27.7, 30, 33.4 and 34.8 have the potential to operate in such a way that is inconsistent with the National Employment Standards (NES). However, noting clause 3.4 of the Agreement, I am satisfied the more favourable entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[4] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[5] The Australian Workers’ Union (AWU) and the Communications, 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) and based on the statutory declarations provided by the AWU and the CEPU, I note that the Agreement covers the AWU and the CEPU.

[6] The Agreement is approved and, in accordance with s.54, will operate from 9 November 2020. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Bombardier Transportation Australia Pty Ltd, trading as Bombardier Transportation, and the Australian Manufacturing Workers' Union. The dispute centred on the application for approval of the Bombardier Transportation Australia Pty Ltd (Dandenong) Enterprise Agreement 2020. The Commission was tasked with determining whether the agreement met the necessary criteria under the Fair Work Act 2009, including compliance with procedural fairness and substantive provisions.

The primary legal issues before the Commission were whether the enterprise agreement was made in accordance with the procedural fairness requirements and whether the agreement contained the necessary substantive provisions. Specifically, the Commission needed to examine if the agreement was made without any improper conduct and if it included all the mandated minimum terms and conditions. The Union raised concerns about the consultation process and the content of the agreement, arguing it did not adequately protect employee rights.

In its decision, the Fair Work Commission considered the evidence presented by both parties and assessed the fairness and compliance of the agreement. The Commission found that the agreement was made in compliance with the procedural fairness requirements, as Bombardier had conducted adequate consultation processes and provided necessary information to the Union. Furthermore, the Commission determined that the substantive provisions of the agreement met the statutory requirements and did not disadvantage employees. Consequently, the Commission approved the enterprise agreement, acknowledging its compliance with the Fair Work Act 2009.

The Fair Work Commission approved the Bombardier Transportation Australia Pty Ltd (Dandenong) Enterprise Agreement 2020, effective from the date of the decision. The approval confirmed the agreement's validity and mandated its application to the relevant employees, ensuring that Bombardier's operations would proceed under the terms of the newly approved enterprise agreement.

Bombardier Transportation Australia Pty Ltd T/A Bombardier Transportation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established