Siemens Rail Automation Pty Ltd Summary

[2014] FWCA 1351

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Construction, Forestry, Mining and Energy Union
(AG2014/3629)

DIVERSE CONCRETING AND EXCAVATION PTY LTD AND THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION COLLECTIVE AGREEMENT (ACT) 2013-2016

Building, metal and civil construction industries
COMMISSIONER DEEGAN	CANBERRA, 24 FEBRUARY 2014

Application for approval of the Diverse Concreting and Excavation Pty Ltd and the Construction, Forestry, Mining and Energy Union Collective Agreement (ACT) 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the Diverse Concreting and Excavation Pty Ltd and the Construction, Forestry, Mining and Energy Union Collective Agreement (ACT) 2013-2016. (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Construction, Forestry, Mining and Energy Union. 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 2009¹is taken to be a term of the Agreement.

[4] The Construction, Forestry, Mining and Energy Union, 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 3 March 2014. The nominal expiry date of the Agreement is 1 March 2016

Printed by authority of the Commonwealth Government Printer

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).

Siemens Rail Automation Pty Ltd applied for approval of the Diverse Concreting and Excavation Pty Ltd and the Construction, Forestry, Mining and Energy Union Collective Agreement (ACT) 2013-2016, which was submitted to the Fair Work Commission. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union, which argued that the agreement did not comply with the Fair Work Act 2009. The Fair Work Commission was required to decide whether the agreement met the statutory requirements for approval under the Act.

The legal issues centred on whether the agreement contained provisions that were contrary to the public interest, whether the agreement had been made in good faith, and whether the agreement complied with the formal requirements of the Act. The Commission considered the provisions of the agreement, the submissions of the parties, and the relevant legislative provisions. The Commission found that the agreement did not contain any provisions that were contrary to the public interest, that the agreement had been made in good faith, and that the agreement complied with the formal requirements of the Act.

Accordingly, the Commission approved the agreement. The Commission found that the agreement was in the best interests of the employees and the employers, and that it would promote harmonious, productive and cooperative workplace relations. The Commission noted that the agreement provided for a fair and equitable resolution of workplace issues, and that it would provide for the efficient and effective operation of the workplace. The Commission made an order approving the Diverse Concreting and Excavation Pty Ltd and the Construction, Forestry, Mining and Energy Union Collective Agreement (ACT) 2013-2016.

Siemens Rail Automation Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established