CSL Australia Pty Ltd

[2023] FWCA 2492

[2023] FWCA 2492

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

CSL Australia Pty Ltd

(AG2023/2427)

THE CSL AUSTRALIA PTY LTD AND MARITIME UNION OF AUSTRALIA GOLIATH ENTERPRISE AGREEMENT 2022

Maritime industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 10 AUGUST 2023

Application for approval of the CSL Australia Pty Ltd and Maritime Union of Australia Goliath Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement to be known as the CSL Australia Pty Ltd and Maritime Union of Australia Goliath Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by CSL Australia Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Undertakings

1. The Employer has provided written undertakings dated 4 August 2023. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Seagoing Industry Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Non-compliance under s.180(2)

1. There was an issue raised by the Commission with the Employer regarding compliance with s.180(2)(a)(ii) of the Act. Having regard to the submissions of the Employer provided on 4 August 2023, I find that this issue also constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[1] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[2]

Coverage of employee organisation(s)

1. The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[3]

1. I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 August 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

ANNEXURE A

[1] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[2] Ibid.

[3] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW Act), that commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was before 6 June 2023. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023.  This Agreement was made after 6 June 2023. 

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