Snowy Hydro Limited

[2015] FWCA 2929

[2015] FWCA 2929

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Snowy Hydro Limited
(AG2015/2181)

SNOWY HYDRO LIMITED GAS OPERATIONS AND MAINTENANCE (VALLEY POWER) ENTERPRISE AGREEMENT 2015

Electrical power industry
SENIOR DEPUTY PRESIDENT HARRISON	SYDNEY, 30 APRIL 2015

Application for approval of the Snowy Hydro Limited Gas Operations and Maintenance (Valley Power) Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Snowy Hydro Limited Gas Operations and Maintenance (Valley Power) Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Subject to the comments I make in paragraphs [3] and [4] below, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Clause 11 of the Agreement (Change management and Consultation) does not meet the requirements of s.205(1A) of the Act. Pursuant to s.205(2), the model consultation term is taken to be a term of the Agreement. A copy of the model term is attached at Annexure A.

[4] In considering whether the Agreement passes the better off overall test as required by s.186(2)(d) of the Act, I have noted the applicant’s submissions dated 28 April 2015 regarding additional hours likely to be worked on weekends. A copy of those submissions is on the file for this matter. In light of those submissions, I am satisfied that the Agreement does pass the better off overall test.

[5] The Agreement is approved. In accordance with s.54(1) it will operate from 7 May 2015. The nominal expiry date of the Agreement is 30 September 2018.

SENIOR DEPUTY PRESIDENT

Annexure A

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).

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