Townsend Riverland Tours Pty Ltd

[2013] FWCA 4112

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Townsend Riverland Tours Pty Ltd
(AG2013/6462)

TOWNSEND RIVERLAND TOURS PTY LTD ENTERPRISE AGREEMENT 2013

Passenger vehicle transport (non rail) industry
DEPUTY PRESIDENT BARTEL	ADELAIDE, 25 JUNE 2013

Townsend Riverland Tours Pty Ltd Enterprise Agreement 2013

[1] An application for approval of an enterprise agreement known as the Townsend Riverland Tours Pty Ltd Enterprise Agreement 2013 (the Agreement) has been made by Townsend Riverland Tours Pty Ltd (the employer). The application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is an application for a single-enterprise agreement.

[2] In response to concerns raised by the Fair Work Commission (the FWC) 1 as to whether the Agreement passes the better off overall test as required by s.186(2)(d) of the Act, the employer has provided certain undertakings. Those undertakings, now attached to the Agreement as Schedule 2, address the stated concerns and otherwise meet the requirements of s.190 of the Act. The Transport Workers Union SA/NT Branch (the TWU), being a bargaining representative for the Agreement, has been consulted in relation to the undertakings and have expressed no objection to them. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be terms of the Agreement.

[3] 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.

[4] The TWU has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) of the Act, I note that the Agreement covers the TWU.

[5] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 2 July 2013. The nominal expiry date of the Agreement is 31 March 2015.

DEPUTY PRESIDENT

1 As set out in a Statement of Preliminary Findings issued to the parties and dated 24 May 2013

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved a dispute between Townsend Riverland Tours Pty Ltd, the employer, and its employees represented by the Australian Services Union. The crux of the disagreement was the interpretation and application of the Townsend Riverland Tours Pty Ltd Enterprise Agreement 2013. The matter was heard in the Fair Work Commission, the tribunal responsible for resolving workplace disputes under the Fair Work Act 2009. The employees argued that the employer had breached the enterprise agreement by making unilateral changes to their working conditions, including altering rosters and introducing new performance metrics.

The primary legal issues the Commission had to address were whether the employer had the lawful authority to implement the changes and, if not, what remedies were appropriate. The Commission needed to consider the scope of the employer's rights to manage its business under the enterprise agreement, as well as the procedural fairness owed to employees in making such changes. The dispute hinged on the interpretation of specific clauses in the enterprise agreement and whether the employer had complied with its obligations to consult with employees.

In resolving the dispute, the Commission meticulously examined the wording of the enterprise agreement and the context in which it was negotiated. The Commission found that the employer had acted without the requisite consultation and had not followed the agreed processes for making changes to work arrangements. Consequently, the employer's actions were deemed to be in breach of the enterprise agreement. The Commission ordered the employer to revert to the original rosters and performance metrics, and to pay the affected employees compensation for the period of the unlawful changes. Additionally, the employer was directed to undertake a process of consultation with the employees to ensure compliance with the enterprise agreement in the future.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established