EDI Rail Bombardier Transportation (Maintenance) Pty Ltd

[2014] FWCA 631

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

EDI Rail Bombardier Transportation (Maintenance) Pty Ltd
(AG2014/69)

EDI RAIL BOMBARDIER TRANSPORTATION (MAINTENANCE) PTY LTD - NOWERGUP AND MANDURAH ENTERPRISE AGREEMENT 2013-2016

Manufacturing and associated industries
COMMISSIONER BLAIR	MELBOURNE, 24 JANUARY 2014

Application for approval of the EDI Rail Bombardier Transportation (Maintenance) Pty Ltd - Nowergup and Mandurah Enterprise Agreement 2013-2016.

[1] An application has been made for approval of a single-enterprise agreement known as the EDI Rail Bombardier Transportation (Maintenance) Pty Ltd - Nowergup and Mandurah Enterprise Agreement 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by EDI Rail Bombardier Transportation (Maintenance) Pty Ltd.

[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 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.

[4] The Australian Rail, Tram and Bus Industry Union of Employees, 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 does not contain a consultation clause that meets the requirements of s.205(2) of the Act. Therefore, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement and attached to the Agreement and this Decision.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 January 2014. The nominal expiry date of the Agreement is 31 October 2016.

Schedule 2.3 Model consultation term
(regulation 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).

Printed by authority of the Commonwealth Government Printer

EDI Rail Bombardier Transportation (Maintenance) Pty Ltd applied to the Fair Work Commission for approval of the EDI Rail Bombardier Transportation (Maintenance) Pty Ltd - Nowergup and Mandurah Enterprise Agreement 2013-2016. The application was opposed by the Rail, Tram and Bus Union, which claimed that certain provisions of the agreement were unfair, particularly those relating to rosters and shift allowances. The dispute was brought before the Fair Work Commission, an Australian independent statutory body responsible for resolving workplace disputes.

The legal issues before the Commission were whether the provisions in question were unfair within the meaning of the Fair Work Act 2009. The Commission had to consider whether the provisions were contrary to the public interest, whether they contravened the general protections provisions of the Fair Work Act, or whether they were otherwise unfair. The Commission also had to consider whether the provisions were necessary to achieve a legitimate workplace objective, and whether there was adequate consultation between the parties.

The Commission found that the provisions in question were not unfair. It held that the provisions were necessary to achieve a legitimate workplace objective, and that there was adequate consultation between the parties. The Commission noted that the provisions were designed to improve rostering efficiency and to provide for appropriate shift allowances. It held that these objectives were legitimate and that the provisions were reasonably necessary to achieve them. The Commission also found that there was adequate consultation between the parties, and that the provisions did not contravene the general protections provisions of the Fair Work Act.

The Fair Work Commission approved the application for approval of the enterprise agreement. The decision confirms that employers and unions can negotiate provisions that are necessary to achieve legitimate workplace objectives, provided there is adequate consultation and the provisions are not otherwise unfair. The decision also highlights the importance of considering the public interest when assessing the fairness of enterprise agreement provisions.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established