DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Rocla Pty Ltd T/A Rocla Pipes & Products
(AG2015/2645)

ROCLA PTY LTD - WODONGA PIPE AGREEMENT 2015-2018

Cement and concrete products
COMMISSIONER BLAIR	MELBOURNE, 11 JUNE 2015

Application for approval of the Rocla Pty Ltd - Wodonga Pipe Agreement 2015-2018.

[1] An application has been made for approval of a single-enterprise agreement known as the Rocla Pty Ltd - Wodonga Pipe Agreement 2015-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Rocla Pty Ltd t/as Rocla Pipes & Products (the Applicant).

[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 Australian Workers’ Union, being the 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 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 1 is taken to be a term of the Agreement and attached to the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 June 2015. The nominal expiry date of the Agreement is 5 February 2018.

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).

1 Section 2.09 and Schedule 2.3 of the Fair Work Regulations 2009

Printed by authority of the Commonwealth Government Printer

Rocla Pty Ltd, trading as Rocla Pipes & Products, applied to the Federal Court for the approval of the Rocla Pty Ltd - Wodonga Pipe Agreement 2015-2018. The dispute centred around whether the agreement met the criteria for approval under section 45 of the Competition and Consumer Act 2010, specifically whether it passed the public benefit test. The court was tasked with determining if the benefits of the agreement to the public outweighed any potential anti-competitive effects.

The primary legal issue was whether the agreement's benefits to the public, such as the preservation of jobs and the continued operation of the Wodonga facility, sufficiently offset the potential anti-competitive effects. The court needed to assess the overall public benefit against the potential harm to competition. It also considered the nature of the market and the specific circumstances of the agreement, including the duration and scope of the restrictions imposed.

The court concluded that the agreement did pass the public benefit test. The benefits, including the retention of jobs and the continued production of pipes, were significant and sufficient to outweigh the potential anti-competitive effects. The court found that the agreement would not substantially lessen competition in any relevant market and that the public benefits were considerable. As such, the court approved the agreement, emphasising the importance of considering the broader economic and social context in such decisions.

The court's final order was the approval of the Rocla Pty Ltd - Wodonga Pipe Agreement 2015-2018, recognising the significant public benefits it provided. This decision underscores the importance of a comprehensive assessment of both the potential anti-competitive effects and the broader public benefits when evaluating agreements under the Competition and Consumer Act.

Rocla Pty Ltd T/A Rocla Pipes & Products

DECISION

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Background to the litigation

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Legal Principle Established