Robert Bosch (Australia) Pty Ltd T/A Bosch

[2019] FWCA 5025

[2019] FWCA 5025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Robert Bosch (Australia) Pty Ltd T/A Bosch
(AG2019/2042)

ROBERT BOSCH (AUSTRALIA) PTY LTD 2016 ENTERPRISE AGREEMENT

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 19 JULY 2019

Application for termination of the Robert Bosch (Australia) Pty Ltd 2016 Enterprise Agreement.

[1] On 14 June 2019, Robert Bosch (Australia) Pty Ltd T/A Bosch lodged an application pursuant to s.222 of the Fair Work Act 2009 (Act) to terminate the Robert Bosch (Australia) Pty Ltd 2016 Enterprise Agreement (2016 Agreement). The Applicant is the employer covered by the 2016 Agreement.

[2] The 2016 Agreement is a single enterprise agreement and its nominal expiry date was 31 December 2018.

[3] The employee organisations covered by the Agreement are the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers’ Union (AWU), National Union of Workers (NUW), the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU).

[4] The 2016 Agreement covers all employees of Robert Bosch (Australia) Pty Ltd except executive employees. The 2016 Agreement contains chapters confined to defined scopes of coverage of the company’s operations.

[5] In August 2018 negotiations commenced for a new enterprise agreement. All five unions were involved in the negotiations as bargaining agents.

[6] During negotiations it was agreed that there are two distinct groups impacted by the negotiations for a new agreement. It was agreed that one group would be covered by the proposed new agreement and the second group (approximately 76 percent of employees currently covered by the 2016 Agreement) would be no longer covered by the 2016 Agreement or the proposed new agreement.

[7] The group proposed to be covered by the new agreement are those covered by chapters 2 and 3 as well as technical officers employed in the FCM, TEF/BAMS and manufacturing departments.

[8] I am satisfied that employees proposed to no longer be covered by an enterprise agreement received information on the proposed changes, attended information sessions, including the provision of Q & As, had attended focus groups and written material was distributed. Documentation to apply to that category of employees was provided by way of draft work instructions/ policies, confirmation of employment conditions and other relevant materials.

[9] Similarly, the category of employees proposed to be covered by the new agreement received information, attended information sessions and received written materials.

[10] The process of informing employees, process of consultation and the action taken to conduct a vote of employees was not contested.

[11] A vote of employees commenced on 6 June 2019 and concluded on 12 June 2019. Of the employees covered by the agreement the majority voted and 75.15 percent voted in favour of terminating the Agreement.

[12] The employer also provided an undertaking in the event the 2016 Agreement is terminated and the replacement agreement is not in place to protect the terms and conditions of employees to be covered by the replacement agreement.

[13] I conducted a conference with the company and union bargaining representatives on 2 July, 2019. The parties discussed and agreed on a variation to the undertaking proposed by the employer following the conference. The agreed undertaking operates so that for a period of six months from the effective date of the Commission’s decision to terminate the 2016 Agreement or until the date the new agreement commences operation, whichever is the earlier; the employer will maintain the terms and conditions attached to the 2016 Agreement to employees who will be covered by the new agreement. The undertaking is subject to apply to employees who are engaged or subsequently employed in a position that is or will be covered by the new agreement at the time the 2016 is terminated or after such time. The employer further undertakes to consider extending the duration of the undertaking to a further maximum period of six months under certain circumstances.

[14] The employer, the AWU, the ETU and the NUW advised that they were content for the application to be determined on the papers.

[15] The relevant provisions of the Act are as follows:

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[1] Based on the material contained in the statutory declaration filed with the application, I am satisfied that:

(a) the Applicant complied with s.220(2) of the Act;

(b) the termination was agreed to in accordance with s.221(1) of the Act;

(c) there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) taking into account the views of the unions, who are covered by the Agreement and who do not oppose its termination

[1] Taking into account all of the circumstances, I consider that it is appropriate to terminate the Agreement.

[2] The termination will operate from 19 July 2019.

[3] An order giving effect to this decision will be issued separately in PR710487.

COMMISSIONER

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