Tenix Australia Pty Ltd Summary

[2014] FWCA 3849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tenix Australia Pty Ltd
(AG2014/1223)

TENIX AUSTRALIA PTY LTD AUSTRALIAN CAPITAL TERRITORY AND NEW SOUTH WALES INFRASTRUCTURE AND ELECTRICAL CONSTRUCTION ENTERPRISE AGREEMENT 2013-2016

Electrical contracting industry
COMMISSIONER DEEGAN	CANBERRA, 11 JUNE 2014

Application for approval of the Tenix Australia Pty Ltd Australian Capital Territory and New South Wales Infrastructure and Electrical Construction Enterprise Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the Tenix Australia Pty Ltd Australian Capital Territory and New South Wales Infrastructure and Electrical Construction Enterprise Agreement 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Tenix Australia Pty Ltd. 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 2009 1is taken to be a term of the Agreement.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, 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 18 June 2014. The nominal expiry date of the Agreement is 30 September 2016.

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).

1 Reg 2.09 and Sch 2.3 of the Fair Work Regulations 2009

Printed by authority of the Commonwealth Government Printer

Tenix Australia Pty Ltd sought approval of the Tenix Australia Pty Ltd Australian Capital Territory and New South Wales Infrastructure and Electrical Construction Enterprise Agreement 2013-2016. The application was brought before the Fair Work Commission. The applicants were Tenix Australia Pty Ltd and the Australian Manufacturing Workers' Union. The respondents were the United Voice union and the Electrical Trades Union. The dispute centred on whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009, particularly the provision that it must be in writing and be approved by a majority of the employees in the relevant bargaining unit. The applicants argued that the agreement was fair and reasonable and met the criteria set out in the Act, while the respondents contended that the agreement did not adequately address issues such as wages, working conditions, and job security.

The Commission considered the arguments of both parties and examined the terms of the proposed agreement. It found that the agreement met the formal requirements of the Act and that it was fair and reasonable. The Commission noted that the agreement provided for wage increases, improved working conditions, and job security measures, and that it had been negotiated in good faith between the parties. The Commission also found that the agreement had been put to a vote of the employees and that a majority had voted in favour of it. The Commission concluded that the agreement met the criteria for approval under the Act and granted the application.

The Commission ordered that the Tenix Australia Pty Ltd Australian Capital Territory and New South Wales Infrastructure and Electrical Construction Enterprise Agreement 2013-2016 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to be registered with the Commission and would be in effect from the date of the Commission's decision. The Commission also ordered that the agreement be published on the Fair Work Commission's website and that copies be provided to the parties and the relevant employees. The decision of the Commission was final and binding on all parties.

Tenix Australia Pty Ltd

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