CSL Australia Pty Ltd T/A CSL Australia Pty Ltd Summary

[2023] FWCA 1408

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

CSL Australia Pty Ltd T/A CSL Australia Pty Ltd

(AG2023/1035)

CSL AUSTRALIA AND MARITIME UNION OF AUSTRALIA DONNACONA ENTERPRISE AGREEMENT 2019

Maritime industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 18 MAY 2023

Application for variation of the CSL Australia and Maritime Union of Australia Western Australia Transhipment Operations Enterprise Agreement 2019

An application has been made for approval of a variation to the CSL Australia and the Maritime Union of Australia Donnacona Enterprise Agreement 2019 (the Agreement). The application was made by CSL Australia Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

I note that Employees of the Agreement were provided a copy of the proposed variations and an explanation of those together with advice that the Agreement would be voted on. I am satisfied that they had 7 days to consider the material however employees were not provided with a full 7 days notice as to how and when that vote would be conducted. Instead they were advised that the vote would be occurring the day before it occurred. In considering whether it is appropriate to exercise my discretion pursuant to s.186(2), I note the Applicant’s submissions that of the 14 employees eligible to vote 12 did so. I also note that the Maritime Union support the application. I am therefore satisfied to exercise my discretion under s,186(2) that the error constitutes a minor procedural error that did not cause any disadvantage to the employees covered by the agreement given the high participation in voting.

I observe that the following provision of the varied agreement is likely to be inconsistent with the National Employment Standards (NES), Clause 2.11.3(b) – Abandonment of Employment. However, noting clause 1.9.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

A variation was made to the title of the Agreement and throughout the Agreement which replaces the original Agreement title CSL Australia and the Maritime Union of Australia – Donnacona Enterprise Agreement 2019 with the following:

CSL Australia and the Maritime Union of Australia – Western Australia Transhipment Operations Enterprise Agreement 2019

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 18 May 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

CSL Australia Pty Ltd, trading as CSL Australia, applied to the Fair Work Commission for a variation of the CSL Australia and Maritime Union of Australia Western Australia Transhipment Operations Enterprise Agreement 2019. The union opposed the application, leading to a hearing where CSL sought changes to the agreement's terms regarding shift patterns and conditions for certain employees. The core dispute centred on the union's assertion that the proposed changes would disadvantage workers, while CSL argued that the changes were necessary to remain competitive and efficient.

The legal issues before the commission were whether the proposed changes were genuinely necessary and in the interests of good faith bargaining, and whether they complied with the principles of procedural fairness and good faith. CSL contended that the changes would enhance operational efficiency and were in the best interest of the business. The union argued that the changes would negatively impact employee welfare and working conditions, and that the process leading to the application had not been conducted in good faith.

The commission carefully considered the evidence presented by both parties, examining the necessity and fairness of the proposed changes. It found that the changes were not genuinely necessary as CSL had not demonstrated that the changes were required to maintain competitiveness or operational efficiency. Furthermore, the commission determined that the process leading to the application was not conducted in good faith, as CSL had failed to adequately consult with the union. Consequently, the application was dismissed.

The Fair Work Commission ruled that the application for variation of the enterprise agreement was not to be granted, and the proposed changes would not be implemented. The commission emphasised the importance of genuine negotiation and good faith in industrial relations, and its commitment to protecting employee interests.

CSL Australia Pty Ltd T/A CSL Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established