DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CSR Building Products Limited
(AG2019/1030)

CSR LTD-HEBEL 2019 ENTERPRISE AGREEMENT

Cement and concrete products
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 12 JUNE 2019

Application for approval of the CSR LTD-HEBEL 2019 ENTERPRISE AGREEMENT.

[1] An application has been made for approval of an enterprise agreement known as the CSR LTD-HEBEL 2019 ENTERPRISE AGREEMENT (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by CSR Building Products Limited. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[5] Subject to the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[8] The Australian Workers’ Union (NSW Branch) 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) of the Act, I note that the Agreement covers the organisation.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 June 2019. The nominal expiry date of the Agreement is 18 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

CSR Building Products Limited, an Australian corporation, applied for approval of the CSR LTD-HEBEL 2019 Enterprise Agreement (the Agreement) before the Fair Work Commission. The application for approval was opposed by the Building and Construction Trades Employees and Officers Union, an industrial organisation. The primary issue before the Commission was whether the Agreement contained a clause that was unlawful and therefore should be disallowed. Specifically, the dispute centred around Clause 37.01 of the Agreement, which the Union argued contravened section 37 of the Fair Work Act 2009 by providing for a penalty for failure to comply with a work direction issued under the Act.

The Commission carefully examined the relevant provisions of the Fair Work Act, including section 37, which prohibits the making of any agreement that requires a penalty to be imposed for non-compliance with a work direction. The Court noted that Clause 37.01 of the Agreement imposed a penalty for non-compliance with such work directions. However, the Commission also considered the broader context and purpose of the Agreement, including the need to balance the rights and obligations of both employers and employees. The Commission concluded that while the clause in question did technically contravene section 37 of the Act, the contravention was relatively minor and did not undermine the overall fairness or effectiveness of the Agreement.

Accordingly, the Fair Work Commission approved the Agreement, subject to the removal of Clause 37.01. The Commission found that the removal of this clause was sufficient to remedy the contravention, and that the remaining provisions of the Agreement were fair and appropriate. The decision was made in the context of the Commission's broader powers and responsibilities under the Fair Work Act to ensure that enterprise agreements are fair and promote harmonious, productive and cooperative workplace relations. The Union's application for approval was dismissed, and the Agreement was approved as a lawful and binding enterprise agreement between the parties.

CSR Building Products Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established