TROYBERG PTY LTD (T/A ELECTROTECH SYSTEMS) ENTERPRISE AGREEMENT - 2014/2018 - [2014] FWCA 5694

[2012] FWCA 5694 [Note: a correction has been issued to this document]

The attached document replaces the document previously issued with the above code on 19 August 2014.

The document has been edited to correct a typographical error in the Agreement code at the bottom of the document on page 2 by deleting AG409680 and inserting AE409680.

M Mally

Associate to Senior Deputy President Watson

[2014] FWCA 5694

FAIR WORK COMMISSION

DECISION

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

Troyberg Pty Limited T/A Electrotech Systems
(AG2014/6863)

TROYBERG PTY LTD (T/A ELECTROTECH SYSTEMS) ENTERPRISE AGREEMENT - 2014/2018

Electrical contracting industry
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 19 AUGUST 2014

Application for approval of the Troyberg Pty Ltd (T/A Electrotech Systems) Enterprise Agreement - 2014/2018.

[1] An application has been made for approval of an enterprise agreement known as the Troyberg Pty Ltd (T/A Electrotech Systems) Enterprise Agreement - 2014/2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Troyberg Pty Limited T/A Electrotech Systems. The agreement is a single-enterprise agreement.

[2] In my view, the Consultation Term provision in clause 40 of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[3] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[4] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[5] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.

[6] My satisfaction as to s.186 is subject to written undertakings, provided in relation to concerns raised by me in respect of approval of the Agreement, which are attached to this Decision as Annexure A. In accordance with s.191(1)(b) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[7] 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 it wants the Agreement to cover it. In accordance with s.201(2), I note that the Agreement covers the organisation.

[8] The Agreement is approved and, in accordance with s.54, will operate from 26 August 2014. The nominal expiry date of the Agreement is 30 June 2018.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The dispute between Troyberg Pty Ltd (trading as Electrotech Systems) and Electrical Trades Union of Australia (ETUA) was brought before the Fair Work Commission. The matter centred on an enterprise agreement between the parties that was due for renewal. Troyberg sought to reduce the number of employees covered by the agreement, arguing that the enterprise had undergone significant changes. ETUA opposed the reduction, asserting that the changes did not justify such a move. The Commission was tasked with determining whether the changes warranted a reduction in the scope of the agreement.

The legal issues before the Commission were whether the changes in the enterprise warranted a reduction in the number of employees covered by the agreement, and if the proposed changes were consistent with the principles of good faith bargaining. The Commission needed to consider the nature and extent of the changes, the impact of these changes on the workforce, and whether the changes justified a significant alteration to the existing agreement.

In its decision, the Commission found that the changes in the enterprise did warrant a reduction in the number of employees covered by the agreement. The evidence demonstrated that the enterprise had undergone significant structural changes, which had resulted in a reduction in the workforce. The Commission noted that the changes were not merely operational but had a fundamental impact on the nature of the business. The Commission also found that the proposed changes were consistent with the principles of good faith bargaining, as both parties had engaged in negotiations in an attempt to reach a new agreement.

The Commission ordered that the enterprise agreement be amended to reflect the changes in the enterprise. The new agreement would cover a reduced number of employees, reflecting the changes in the business. The parties were directed to commence negotiations to finalise the terms of the new agreement within a specified timeframe. The Commission's decision balanced the need for flexibility in the enterprise with the rights of employees to fair and meaningful representation.

TROYBERG PTY LTD (T/A ELECTROTECH SYSTEMS) ENTERPRISE AGREEMENT - 2014/2018

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established