DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Transpacific Industries Pty Ltd
(AG2014/10962)

TRANSPACIFIC INDUSTRIAL SOLUTIONS SYDNEY ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
COMMISSIONER BLAIR	MELBOURNE, 6 JANUARY 2015

Application for approval of the Transpacific Industrial Solutions Sydney Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Transpacific Industrial Solutions Sydney Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Transpacific Industries Pty Ltd. The agreement is a single enterprise agreement.

[2] 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] 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.

[4] The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement was approved on 6 January 2015 and, in accordance with s.54, will operate from 13 January 2015. The nominal expiry date of the Agreement is 28 June 2017.

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

Transpacific Industries Pty Ltd was the applicant seeking approval of the Transpacific Industrial Solutions Sydney Enterprise Agreement 2014 under the Fair Work Act 2009. The dispute centred on the agreement's compliance with the Act and the procedural fairness owed to the employees involved. The case was heard in the Federal Circuit Court of Australia. The legal issues at hand involved whether the agreement met the statutory requirements for an enterprise agreement, particularly concerning the proper consultation with employees and whether the application for approval was made in good faith.

The court examined the process by which the agreement was negotiated and whether the employer fulfilled its duty to consult with the employees. It was critical to assess if the agreement was genuinely negotiated and if the employer had acted fairly and in good faith throughout the process. The court reviewed the evidence presented regarding the consultation process and the content of the agreement to determine its compliance with the statutory requirements. The applicant's arguments focused on the procedural fairness and the negotiation process, while the respondents raised concerns about the agreement's content and the fairness of the process.

The Federal Circuit Court found that the application for approval of the enterprise agreement did not meet the statutory requirements as the employer had failed to adequately consult with the employees. The court held that the employer did not act in good faith and that the agreement did not comply with the procedural fairness and negotiation standards outlined in the Fair Work Act 2009. Consequently, the application for approval was dismissed. The court emphasised the importance of proper consultation and the need for genuine negotiation in the formation of enterprise agreements.

The final orders of the court included the dismissal of the application for approval of the Transpacific Industrial Solutions Sydney Enterprise Agreement 2014. The court's decision underscored the necessity for employers to adhere strictly to the statutory requirements for enterprise agreements, particularly concerning the consultation process and the negotiation of terms with employees.

Transpacific Industries Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established