GM Holden Ltd

[2013] FWCA 6421

[2013] FWCA 6421

FAIR WORK COMMISSION

DECISION

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

GM Holden Ltd
(AG2013/8761)

HOLDEN ENTERPRISE AGREEMENT 2011

Vehicle industry
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 10 SEPTEMBER 2013

Application for variation of the Holden Enterprise Agreement 2011.

[1] On 27 August 2013, GM Holden Ltd applied, pursuant to s.210 of the Fair Work Act 2009 (the Act) to vary the Holden Enterprise Agreement 2011 1 (the Agreement). The application was supported by each of the organisations covered by the Agreement:

● The Australian Workers’ Union;

● “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU);

● The Association of Professional Engineers, Scientists and Managers, Australia;

● Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;

● National Union of Workers; and

● Australian Municipal, Administrative, Clerical and Services Union.

[2] The variation to the Agreement was negotiated to facilitate the securing of investment of future models - the Next Generation Program - in the Holden Vehicle Operations Plant in South Australia and only affects employees in South Australia. The agreement, as varied, is expressed in terms that the variations will have effect if General Motors confirms that the Next Generation Program will proceed and will cease to operate if it proceeds but is subsequently cancelled.

[3] The variation inserts a new clause 1.9 into the Agreement, which applies the terms of a new Attachment 12 in respect of South Australian employees from the date on which General Motors confirms that the Next Generation Program is to proceed, and inserts a new Attachment 12 in the form of the agreement, substantially amended. The new clause 1.9 is in the following terms:

“1.9 Attachment 12

Attachment 12 contains agreed changes to entitlements and working conditions for all employees employed by Holden in South Australia who are covered by the work classifications set out in Part 5 of this Agreement (“South Australian employees”).

The provisions of this Attachment 12 will apply to South Australian employees (and to Holden and the Unions in relation to those employees) from the date General Motors confirms that the Next Generation Program is to proceed. Until such confirmation is provided, this Attachment 12 shall have no effect.

If General Motors were to cancel the Next Generation Program, Attachment 12 would cease operation a month from the day that announcement is made by Holden subject to the following terms:

(a) the changes set out in Attachment 12 will cease to apply to South Australian employees (and to Holden and the Unions in relation to those employees), though without prejudice to any rights or entitlements accrued while the Attachment was in operation; and

(b) South Australian employees will receive the base wage/salary rate increase that would have occurred in November 2013, if any, under the 2011 Agreement (i.e. the pre-varied Agreement), which increase will only be applicable for wages/salaries payable in respect of prospective periods on and from the day on which the announcement was made by Holden.

Any provision in Attachment 12 that is in conflict with the provisions set out in the Holden Enterprise Agreement 2011 will prevail to the extent of any inconsistency.”

[4] Consistent with s.210 of the Act:

● The applicant GM Holden Ltd is a person covered by the agreement;

● The application was accompanied by:

● a signed copy of the variation;

● a copy of the agreement as proposed to be varied; and

● all declarations that are required by the procedural rules to accompany the application.

● The application was within 14 days after the variation was made on 16 August 2013.

[5] The information within the Form 23A filed by GM Holden Ltd, was endorsed in the Form F23B filed by each organisation. It was comprehensive and provided a detailed summary of the variations and tables of the terms and conditions in the reference instrument which are more beneficial and less beneficial than the agreement as varied. The extensive material provided, greatly assisted the application of the approval requirements within s.211 of the Act.

[6] Section 211 of the Act provides that the Fair Work Commission (the Commission) must approve a variation of an enterprise agreement if satisfied that had an application been made under s.185 of the Act for the approval of the agreement as proposed to be varied, the Commission would have been required to approve the agreement under s.186. The basic rule within s.186 of the Act is that the Commission must approve the agreement under this section if the requirements set out in this section and s.187 of the Act are met. Accordingly, I must approve the variation if the agreement, as varied, meets the statutory requirements within ss.186 and 187 of the Act.

[7] I am satisfied that the agreement as varied meets the requirements of s.186: I am satisfied that:

● the agreement, as varied, has been genuinely agreed to by the employees covered by the agreement;

● whilst some of the variations within Attachment 12, should they operate, concern matters within the National Employment Standards, the terms of the agreement, as varied, do not contravene s.55 of the Act;

● the agreement, as varied, passes the better off overall test. Whilst the terms and conditions within Attachment 12, should they operate, are less beneficial than those within the agreement as initially made, I am satisfied that each employee would be better off overall under the agreement, as varied, applied to the employee than the relevant award;

● the group of employees covered by the agreement, as varied, was fairly chosen;

● the agreement, as varied, does not include any unlawful terms;

● the agreement, as varied, does not include any designated outworker terms; and

● the agreement, as varied,contains a term about settling disputes, consistent with the requirements of s.186(6) of the Act.

[8] I am also satisfied that the requirements set out in s.187 of the Act, where relevant, are met.

[9] I am satisfied that the agreement as proposed to be varied does not specify a date as its nominal expiry date which is more than 4 years after the day on which the Commission approved the agreement.

[10] I am satisfied that there are no serious public interest grounds for not approving the variation.

[11] There is no other statutory basis upon which would prevent approval of the variation.

[12] I note that the agreement was initially approved by Commissioner Gay, subject to undertakings which were attached to the agreement. 2 I also note that those undertakings are contained within Attachment 12, such that the agreement, as varied, will continue to operate subject to those undertakings.

Conclusion

[13] The application is approved and a copy of the document entitled “Variation to the Holden Enterprise Agreement 2011” is at Attachment A and the consolidated copy of the agreement, as varied is attached to this decision.

[14] The variation will operate from 10 September 2013.

SENIOR DEPUTY PRESIDENT

ATTACHMENT A

Variation to Holden Enterprise Agreement 2011

1. Insert a new “clause 1.9” as follows:

“1.9 Attachment 12

Attachment 12 contains agreed changes to entitlements and working conditions for all employees employed by Holden in South Australia who are covered by the work classifications set out in Part 5 of this Agreement (“South Australian employees”).

The provisions of this Attachment 12 will apply to South Australian employees (and to Holden and the Unions in relation to those employees) from the date General Motors confirms that the Next Generation Program is to proceed. Until such confirmation is provided, this Attachment 12 shall have no effect.

If General Motors were to cancel the Next Generation Program, Attachment 12 would cease operation a month from the day that announcement is made by Holden subject to the following terms:

(a) the changes set out in Attachment 12 will cease to apply to South Australian employees (and to Holden and the Unions in relation to those employees), though without prejudice to any rights or entitlements accrued while the Attachment was in operation; and

(b) South Australian employees will receive the base wage/salary rate increase that would have occurred in November 2013, if any, under the 2011 Agreement (i.e. the pre-varied Agreement), which increase will only be applicable for wages/salaries payable in respect of prospective periods on and from the day on which the announcement was made by Holden.

Any provision in Attachment 12 that is in conflict with the provisions set out in the Holden Enterprise Agreement 2011 will prevail to the extent of any inconsistency.”

2. Insert a new “Attachment 12” as attached.

 1   AE894332,  PR524534.

 2   [2012] FWAA 4593, at paras 3-4.

Printed by authority of the Commonwealth Government Printer

<Price code T, AE894332  PR541093>