CSL Limited T/A CSL Limited and CSL Behring (Australia) Pty Ltd

[2019] FWCA 920

[2019] FWCA 920

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

CSL Limited T/A CSL Limited and CSL Behring (Australia) Pty Ltd
(AG2018/6605)

CSL LIMITED CSL AGREEMENT 2015

(ODN AG2015/7454)  [AE417083]

Pharmaceutical industry

COMMISSIONER CIRKOVIC

MELBOURNE, 14 FEBRUARY 2019

Application for termination of the CSL Limited CSL Agreement 2015.

[1] CSL Limited T/A CSL Limited and CSL Behring (Australia) Pty Ltd (the Applicant) made an application to the Fair Work Commission (the Commission) under section 225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the CSL Limited CSL Agreement 2015 (the Agreement).

[2] The Agreement came into operation on 25 December 2015 and its nominal expiry date is 30 June 2018.

[3] The Applicant filed a statutory declaration of Mr Warren Fridell, declared 27 November 2018 (the Statutory Declaration).

[4] I issued directions on 11 January 2019, directing the Applicant to serve the directions and its application upon any employee organisation covered by the Agreement by close of business on 18 January 2019. On the afternoon of 11 January 2019 the Applicant served the relevant material on the following organisations:

(a) the Community and Public Sector Union (CPSU);

(b) the National Union of Workers (NUW); and

(c) the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

(collectively the Unions).

[5] The directions requested that any opposition to the application be filed by close of business 25 January 2019. The NUW and CPSU provided written submissions in objection to the application on 24 and 25 January 2019 respectively.

[6] The matter was listed for conference on 6 February 2019 and was attended by the Applicant and all three Unions.

[7] Following the conference, by email on 7 February 2019 the Respondent confirmed that the Applicant “has not, and will not, request that the termination date specified in the [Commission’s] decision be a date that is prior to the date on which the CSL Agreement 2018 commences operation”.

[8] The CSL Agreement 2018 was approved by me on 8 February 2019 ([2019] FWCA 780) and will operate from 15 February 2019.

[9] On 8 February 2019, on the basis of the conference and the Respondent’s email in [7] above, the NUW on behalf of all three Unions confirmed that the Unions withdrew their objections to the application.

Legislation

[10] Section 225 of the Act provides who may apply to the Commission to terminate an enterprise agreement after it has passed its nominal expiry date. Section 225 is as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[11] Section 226 of the Act provides when the Commission must terminate an enterprise agreement. Section 226 is as follows:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

Consideration

Standing

[12] As the Agreement has passed its nominal expiry date and the Applicant is the employer covered by the Agreement, I find that the Applicant has standing to make the application pursuant to section 225(a) of the Act.

Public Interest

[13] In relation to whether the termination of the Agreement is in the public interest, the Applicant declares in its Statutory Declaration that:

“24. Affected employees are currently covered by the [Agreement] which nominally expired on 30 June 2018. The [CSL Agreement 2018] is not expressed to cover the affected employees.

25. All affected employees support the [Applicant’s] application to terminate the [Agreement] given the improved access to increase their take home pay. That is, the affected employees understand that terminating the [Agreement] will provide them with the potential to earn higher remuneration based upon individual accountability, market salary movements and the overall business performance.

26. There is no identifiable detrimental impact to the public generally in terminating the [Agreement].

27. Given all of the above, [the Applicant] submits it would not be contrary to the public interest should the FWC approve the termination of the [Agreement] once the [CSL Agreement 2018] has been approved.”

[14] In the circumstances, noting in particular the Unions’ withdrawal of their objections following the conference, I am satisfied that it is not contrary to public interest to terminate the Agreement pursuant to section 226(a) of the Act.

Views, Circumstances and Likely Effect of Termination

[15] The Agreement covers all three of the Unions. The objections in the submissions from the CPSU and NUW were that termination of the Agreement would leave the affected employees, whom are not covered by the 2018 Agreement, without coverage by an enterprise agreement and potentially without coverage of a modern award. The Unions also submitted that the Agreement should not be terminated retrospectively.

[16] The Applicant declares in its Statutory Declaration that, if the Agreement is terminated:

“The termination and subsequent transition of the affected employees to the global remuneration framework will mean that they will:

a. be more closely aligned to their colleagues in comparable roles across the global organisation; and

b. benefit from having access to additional entitlements aimed at rewarding their discretionary effort and contribution to the business.”

[17] I note again that following the conference and the Applicant’s email of 7 February 2019, the Unions’ withdrew their objections to the Application.

[18] Taking into account all the circumstances, prescribed by section 226(b)(i)-(ii) of the Act, I consider that it is appropriate to terminate the Agreement.

Conclusion

[19] For the reasons above, the Agreement must be terminated pursuant to section 226 of the Act.

[20] Noting that the CSL Agreement 2018 will operate from 15 February 2019, an Order will be issued terminating the Agreement with effect from 15 February 2019.

COMMISSIONER

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