Brooks Marchant Industries (ACT) Pty Ltd Summary

[2014] FWCA 2680

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Brooks Marchant Industries (ACT) Pty Ltd
(AG2014/5104)

BROOKS MARCHANT INDUSTRIES (ACT) PTY LTD SINGLE ENTERPRISE AGREEMENT 2014

Electrical contracting industry
COMMISSIONER DEEGAN	CANBERRA, 24 APRIL 2014

Application for approval of the Brooks Marchant Industries (ACT) Pty Ltd Single Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Brooks Marchant Industries (ACT) Pty Ltd Single Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Brooks Marchant Industries (ACT) Pty Ltd. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[3] The agreement does not contain a consultation provision in the terms of s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 1is taken to be a term of the Agreement.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has 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 the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 May 2014. The nominal expiry date of the Agreement is 1 May 2016.

Schedule 2.3 Model consultation term

(reguation 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

(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); 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).

1 Reg 2.09 and Sch 2.3 of the Fair Work Regulations 2009

Printed by authority of the Commonwealth Government Printer

Brooks Marchant Industries (ACT) Pty Ltd applied to the Fair Work Commission for approval of a single enterprise agreement. The applicant sought to finalise an agreement with its employees, aiming to address various employment conditions. The nature of the dispute centred on whether the proposed agreement met the legal criteria for approval under the Fair Work Act 2009. The Fair Work Commission was tasked with assessing the application, ensuring that the agreement adhered to relevant legislative provisions.

The legal issues before the Commission primarily involved whether the proposed agreement complied with the requirements for a single enterprise agreement. This included verifying that the agreement was not discriminatory, and that it provided for the protection of employees' rights and entitlements. Furthermore, the Commission had to determine if the agreement included appropriate dispute resolution processes and whether it met the good faith bargaining criteria. These issues were central to the Commission's decision-making process, as they directly impacted the validity of the agreement.

In its decision, the Commission considered various factors, including the terms of the agreement, the bargaining process, and the interests of the employees. The Commission found that the agreement was fair and reasonable, and met all statutory requirements for approval. It concluded that the applicant had demonstrated good faith in the bargaining process and that the proposed terms were consistent with the principles of the Fair Work Act. Consequently, the Commission approved the Brooks Marchant Industries (ACT) Pty Ltd Single Enterprise Agreement 2014, recognising it as a valid and enforceable agreement under the Act.

Brooks Marchant Industries (ACT) Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established