Bombardier Transportation Australia Pty Ltd v Alstom Transport Australia Pty Limited (No 2)

Bombardier Transportation Australia Pty Ltd v Alstom Transport Australia Pty Limited (No 2) was a case heard by the Federal Court of Australia where the court was required to approve a scheme of arrangement for a corporate reconstruction or amalgamation. The scheme involved the transfer of all assets and liabilities from Bombardier, a wholly owned subsidiary, to Alstom Transport, another wholly owned subsidiary, both of which share the same sole member. The court had to consider various factors, including compliance with conditions precedent, the fairness and reasonableness of the scheme, and the impact on employees, particularly in relation to enterprise agreements made under the Fair Work Act 2009. The court also had to consider whether the scheme was proposed to avoid Chapter 6 of the Corporations Act 2001.

The legal issues before the court involved determining whether the scheme met the statutory requirements for approval under section 411(4)(b) of the Corporations Act 2001, and whether the orders under section 413 of the Act were appropriate for facilitating the scheme's implementation. The court had to assess the fairness and reasonableness of the scheme, the adequacy of disclosure to shareholders, and the impact on employees. The interaction between the scheme and existing enterprise agreements was also a significant consideration.

The court found that all conditions precedent to the scheme had been met or waived, as certified by both parties. The court held that it was not necessary to second-guess the commercial judgments inherent in the certificate provided by the parties. The scheme was deemed fair and reasonable, and the shareholders' approval was indicative of its inherent fairness. The court was satisfied that the scheme was not proposed to avoid Chapter 6 of the Corporations Act and that the necessary disclosure had been made to shareholders. The court concluded that it was appropriate to approve the scheme and make the necessary orders for its implementation. The court considered the impact on employees, particularly in relation to the transfer of enterprise agreements, and concluded that the orders under section 413 were appropriate to facilitate the scheme.

Pursuant to section 411(4)(b) of the Corporations Act 2001, the scheme of arrangement was approved. Orders were made under section 413(1) to facilitate the implementation of the scheme, including the transfer of assets and liabilities from Bombardier to Alstom Transport, the continuation of legal proceedings, and the deregistration of Bombardier. The court also addressed the implications of the Fair Work Act 2001, ensuring that Alstom Transport would be covered by the enterprise agreements that previously covered Bombardier, and that Bombardier would no longer be covered. The court granted liberty for further applications to be made under section 413 of the Act as necessary or desirable. Finally, Bombardier was required to notify all its employees and relevant unions of the scheme's approval and the proposed deregistration within seven days of the orders.