CSR & Holcim Staff Association

[2014] FWCFB 7351 [Note: this decision has been stayed by the Federal Court pending determination of Federal Court proceedings NSD1374/2014.]

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 4 - Application to make a modern award to replace an enterprise instrument.

CSR & Holcim Staff Association
(EM2013/36)

Various industries
SENIOR DEPUTY PRESIDENT ACTON DEPUTY PRESIDENT HAMILTON COMMISSIONER LEE	MELBOURNE, 15 DECEMBER 2014

Application to make a modern enterprise award to replace the CSR Staff (Consolidated) Award 2000 - application refused.

Introduction

[1] On 19 November 2013, the CSR & Holcim Staff Association (the Association) made an application for the Fair Work Commission (the FWC) to make a modern enterprise award to replace an enterprise instrument. The enterprise instrument is the CSR Staff (Consolidated) Award 2000 1(the CSR Award 2000).

[2] The application was made pursuant to item 4 of schedule 6 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[3] This decision determines that application. In doing so we turn to set out the relevant statutory provisions and then consider the application against the statutory provisions, before concluding in respect of the application.

[4] Submissions in respect of the application were made to us by the Association and CSR Limited (CSR). We granted both permission to be represented by a lawyer having regard to the provisions of s.596(2)(a) of the Fair Work Act 2009 (Cth) (the FW Act). We considered it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter as it involved consideration of provisions of the TPCA Act and their interaction with the FW Act. Further, there was no objection to both sides being so represented.

Statutory provisions

[5] Item 2 of schedule 6 of the TPCA Act defines an “enterprise instrument”.

[6] Item 4 of schedule 6 of the TPCA Act deals with the enterprise instrument modernisation process as follows:

“4 The enterprise instrument modernisation process

(1) The enterprise instrument modernisation process is the process of making modern awards under this Division to replace enterprise instruments.

(2) On application, the FWC may make a modern award (a modern enterprise award) to replace an enterprise instrument.

(3) The application may be made only:

(a) by a person covered by the enterprise instrument; and

(b) during the period starting on the WR Act repeal day and ending at the end of 31 December 2013.

(4) A modern enterprise award must be made by a Full Bench.

(5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following:

(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;

(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;

(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);

(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;

(e) the extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment;

(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;

(g) the views of the persons covered by the enterprise instrument;

(h) any other matter prescribed by the regulations.

Note: A variation referred to in paragraph (c) may, for example, be a variation to reflect the outcome of the AFPC’s final wage review under the WR Act, or to include transitional arrangements in the modern award.

(5A) If the FWC makes a modern enterprise award before the FW (safety net provisions) commencement day, the modern enterprise award must not be expressed to commence on a day earlier than the FW (safety net provisions) commencement day.

Note: For when a modern enterprise award is in operation, see item 17.

(6) The regulations may deal with other matters relating to the enterprise instrument modernisation process.”

[7] Item 6 of schedule 6 of the TPCA Act is also relevant. It provides as follows:

“6 The modern enterprise awards objective

(1) The modern awards objective and the minimum wages objective apply to the FWC making a modern enterprise award under this Division.

(2) However, in applying the modern awards objective and the minimum wages objective, the FWC must recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. This is the modern enterprise awards objective.

Note 1: See also item 11 (enterprise instrument modernisation process is not intended to result in reduction in take-home pay).

Note 2: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).”

[8] The modern awards objective is set out in s.134 of the FW Act as follows:

“134 The modern awards objective

What is the modern awards objective?

(1) The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and
(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(da) the need to provide additional remuneration for:

(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”

[9] The minimum wages objective is set out in s.284 of the FW Act as follows:

“284 The minimum wages objective

What is the minimum wages objective?

(1) The FWC must establish and maintain a safety net of fair minimum wages, taking into account:

(a) the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth; and

(b) promoting social inclusion through increased workforce participation; and

(d) the principle of equal remuneration for work of equal or comparable value; and

(e) providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.

This is the minimum wages objective.

When does the minimum wages objective apply?

(2) The minimum wages objective applies to the performance or exercise of:

(a) the FWC’s functions or powers under this Part; and

(b) the FWC’s functions or powers under Part 2-3, so far as they relate to setting, varying or revoking modern award minimum wages.

Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the modern awards objective also applies (see section 134).

Meaning of modern award minimum wages

(3) Modern award minimum wages are the rates of minimum wages in modern awards, including:

(a) wage rates for junior employees, employees to whom training arrangements apply and employees with a disability; and

(b) casual loadings; and

(4) Setting modern award minimum wages is the initial setting of one or more new modern award minimum wages in a modern award, either in the award as originally made or by a later variation of the award. Varying modern award minimum wages is varying the current rate of one or more modern award minimum wages.”

[10] Items 7 and 8 of schedule 6 of the TPCA Act deal with the terms of modern enterprise awards. They provide as follows:

“7 Terms of modern enterprise awards

(1) Subject to this item and item 8, Division 3 of Part 2-3 of the FW Act (which deals with terms of modern awards) applies in relation to a modern enterprise award made under this Division.

Note: See also item 16A (how the FW Act applies to the enterprise instrument modernisation process before the FW (safety net provisions) commencement day).

Increases in entitlements

(2) If the making of a modern enterprise award results in an increase in an employee’s entitlements, the modern enterprise award may provide for the increases to take effect in stages.

Industry-specific redundancy schemes

(3) If a modern award includes an industry-specific redundancy scheme in relation to a particular industry, and the FWC makes a modern enterprise award that covers persons who operate in that industry, the FWC may include the industry-specific redundancy scheme in the modern enterprise award.

8 Coverage terms

Coverage terms must be included

(1) A modern enterprise award must include terms (coverage terms) setting out, in accordance with this item:

(a) the enterprise or enterprises to which the modern enterprise award relates; and

(b) the employer or employers, employees and organisations that are covered by the modern enterprise award.

Enterprises

(2) A modern enterprise award must be expressed to relate:

(a) to a single enterprise (or a part of a single enterprise) only; or

(b) to one or more enterprises, but only if the employers all carry on similar business activities under the same franchise and are:

(i) franchisees of the same franchisor; or

(ii) related bodies corporate of the same franchisor; or

(iii) any combination of the above.

Employers and employees

(3) A modern enterprise award must be expressed to cover:

(a) a specified employer that carries on, or specified employers that carry on, the enterprise or enterprises referred to in subitem (2); and

(b) specified employees of the employer or employers covered by the modern enterprise award.

Organisations

(4) A modern enterprise award may be expressed to cover one or more specified organisations, in relation to:

(a) all or specified employees covered by the award; or

(b) the employer, or all or specified employers, covered by the award.

Outworker entities

(5) A modern enterprise award must not be expressed to cover outworker entities.

How coverage etc. is expressed

(6) For the purposes of subitem (2), an enterprise must be specified:

(a) if paragraph (2)(a) applies to the enterprise– by name; or

(b) if paragraph (2)(b) applies to the enterprise—by name, or by the name of the franchise.

(7) For the purposes of subitems (3) and (4):

(a) an employer or employers may be specified by name or by inclusion in a specified class or specified classes; and

(b) employees must be specified by inclusion in a specified class or specified classes; and

Employees not traditionally covered by awards etc.

(8) A modern enterprise award must not be expressed to cover classes of employees:

(a) who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or

(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.

Note: For example, in some industries, managerial employees have traditionally not been covered by awards.”

[11] Item 9 of schedule 6 deals with the termination of enterprise instruments and relevantly provides as follows:

“9 Variation and termination of certain instruments to take account of enterprise instrument modernisation process…

(2) The FWC must, as soon as practicable after a modern enterprise award that is made to replace an enterprise instrument comes into operation:

(a) terminate the enterprise instrument (if it has not already terminated under subitem (1)); and

(b) vary or terminate (as appropriate) any of the following (modernisable instruments):

(i) other award based transitional instruments;

(ii) transitional APCSs;

(iii) other Division 2B State awards;

so that employees who were covered by the enterprise instrument are no longer covered by those modernisable instruments.

Note 1: The main provisions about transitional instruments are in Schedule 3, the main provisions about transitional APCSs are in Schedule 9, and the main provisions about Division 2B State awards are in Schedule 3A.

Note 2: This item does not limit the effect of any other provision of this Act under which a modernisable instrument ceases to cover a person from a time earlier than when the instrument is terminated or varied under this item.

(3) If the FWC decides not to make a modern enterprise award to replace an enterprise instrument, the instrument terminates when that decision comes into operation…

(4) If, by the end of the period specified in paragraph 4(3)(b), no application under item 4 or 5 has been made in relation to an enterprise instrument, the instrument terminates at the end of that period.”

[12] Items 4 and 6 of schedule 6 of the TPCA Act were considered by the Full Federal Court of Australia in Yum! Restaurants Australia Pty Ltd v Fair Work Australia Full Bench. 2 In Yum, the Full Federal Court stated:

“21 Items 4 and 6 operate together such that the ‘objective’ set forth in item 6(2) forms part of the single decision-making process engaged in when considering ‘whether or not to make a modern enterprise award’. There are not two clearly separated decision-making processes whereby item 4(5) alone dictates the considerations to be taken into account when deciding whether or not to make a modern enterprise award and thereafter separate consideration is given to the objectives referred to in item 6 when determining the content of the modern enterprise award. Rejected are the submissions advanced by Senior Counsel on behalf of the Respondents that consideration should be given at the outset to whether or not an award should be made, and only thereafter to the content of any award.

22 So much, it is concluded, necessarily follows from:

the conceptual difficulty of determining whether a modern enterprise award should be made without at the same time giving consideration to the possible content of a modern enterprise award, if one were to be made;

the conceptual difficulty of even embarking upon the process of determining whether or not to make a modern enterprise award free of any consideration being given to the ‘modern enterprise awards objective’;

the terms of item 4(5) itself which refer at the outset to a composite decision-making process of ‘deciding whether or not to make a modern enterprise award, and in determining the content of that award’;

the heading to Div 2, the heading to item 4 and the terms of item 4(1) which refers to a single ‘enterprise instrument modernisation process’; and

the terms of item 4(5)(f), in particular, namely a legislative mandate to consider ‘the likely impact … of a decision to make, or not make, the modern enterprise award’.

23 Limited assistance may also be gleaned from the Explanatory Memorandum to the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 (Cth) which provided in part as follows:

256. The modern enterprise awards objective requires FWA to recognise that modern enterprise awards may provide tailored terms and conditions of employment that reflect arrangements that have developed in relation to specific enterprises.

257. The intention of this item is that the factors listed in paragraphs 134(1)(a)-(h) and 284(1)(a)-(e) of the [Fair Work Bill 2008] relating to the modern awards objective and minimum wages objective respectively should apply to the making of modern enterprise awards, as they do to the making of modern awards generally. However, the minimum terms and conditions for a modern enterprise award may not necessarily be the same as those that apply to an industry or occupation-based modern award.

258. An enterprise may have developed employment arrangements over a period of time that meet the particular needs of that enterprise and reflect the way in which the enterprise operates. The criteria that FWA will apply in deciding whether to make a modern enterprise award require FWA to consider any enterprise specific arrangements that apply in a particular enterprise. FWA will be able to maintain any enterprise specific arrangements in a modern enterprise award where it considers that this is appropriate to do so.

The explanation provided, perhaps, proffers little further guidance than is provided by the terms of items 4 and 6. But the explanation is consistent with the process being a single integrated process which requires consideration of the objective in item 6 at the time the initial decision as to whether or not to make a ‘modern enterprise award’ is made…

34 Properly construed, it is respectfully considered that the reasons of the Full Bench expose the fact that it approached the task of considering those matters which it was required to ‘take into account’ (item 4(5)) and also ‘recognise[d]’ the ‘modern enterprise awards objective’ set forth in Item 6.

35 It may be queried whether item 6(2) is properly to be characterised as a ‘modification’ of the modern awards objective. Item 6(2) unquestionably requires the Full Bench to ‘recognise’ that modern enterprise awards may provide terms and conditions ‘tailored to reflect employment arrangements’. A modern enterprise award may thus contain terms ‘tailored’ in the manner specified and thereby provide a different safety net.
36 Whatever may be the correct characterisation of item 6(2), it is considered that the reasons for decision of the Full Bench properly ‘recognise’ that a modern enterprise award may contain different terms and conditions. Indeed, the reasoning process of the Full Bench repeatedly grappled with the prospect of whether a modern enterprise award should be made to accommodate different enterprise-specific terms and conditions. The manner in which it approached and weighed the competing considerations was a matter entrusted to the Full Bench; any error would be an error within jurisdiction. Rather than exposing a decision-maker ‘overborne by the need for a single national modern award standard’, those reasons reveal that the Full Bench considered whether there should be ‘terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprise …’.”

Consideration of the application

[13] There is no dispute and we accept that the CSR Award 2000 is an enterprise instrument within the meaning of schedule 6 of the TPCA Act.

[14] The CSR Award 2000 has the following coverage clause:

“3.2 This award shall be binding upon the Association and its members and those eligible for membership of the Association and on the employer in respect of the employment of an employee in the States of Queensland, New South Wales, Victoria, South Australia, Western Australia, Tasmania, the Australian Capital Territory, the Northern Territory or elsewhere, and shall come into operation from the first pay period commencing on or after 7 July 2000 and shall remain in force for a period of twelve months.”

[15] The “Employer” is defined in the CSR Award 2000 as “CSR Limited”. The origins of CSR date back to 1855 and a partnership formed to refine sugar. In 1887, The Colonial Sugar Refining Company Limited was established. That company diversified into building materials and construction from 1939. The company became CSR in 1973 and diversified into the natural gas and oil industries in the latter part of the 1970s and early 1980s. In 2003, CSR sold its interests in heavy building products, in 2007 CSR acquired glass businesses and in 2010 CSR sold its sugar and ethanol business.

[16] CSR currently has four divisions:

CSR Bradford which manufactures and markets glasswool, rockwool, foil insulation and ventilation products.

CSR Bricks and Roofing which manufactures and markets bricks and roofing products.

CSR Lightweight Systems which has four business units manufacturing plasterboard and related products, fibre cement sheeting, commercial ceilings, and autoclaved aerated concrete.

Viridian which manufactures, processes and distributes glass products to the building and construction industry.

[17] An “Employee” is defined in clause 5 of the CSR Award 2000 as “a salaried employee of the employer employed at a yearly rate of pay by the employer or on secondment to any subsidiary or any associated company of the employer.”

[18] The “Association” is defined in clause 5 of the CSR Award 2000 as the “CSR & Rinker Salaried Staff Association”, a predecessor to the applicant in the matter before us.

[19] As we have indicated, the application before us was made to the FWC on 19 November 2013.

[20] In these circumstances we are satisfied the application before us conforms with item 4(3) of schedule 6 of the TPCA Act.

[21] We turn then to the other matters in item 4 of schedule 6 of the TPCA Act.

The circumstances that led to the making of the enterprise instrument rather than an instrument of more general application (Item 4(5)(a))

[22] The CSR Award 2000 has its origins in a consent award made in settlement of an industrial dispute in 1944, 3 which has been varied almost invariably by consent between the Association or its predecessors and CSR or its predecessors ever since. The variations to the CSR Award 2000 since it was made have been predominantly to reflect Full Bench decisions of the AIRC of national application rather than decisions particular to CSR.

[23] The CSR Award 2000 and its predecessors rather than an instrument of more general application largely appear to have been made pursuant to the consensual settlement of industrial disputes limited to the Association or its predecessors, on the one part, and CSR or its predecessors and subsidiaries, on the other part, having regard to the confined eligibility rule of the Association and its predecessors. The current eligibility rule of the Association, which is set out below, does not seem to be relevantly different from that of the originally registered organisation.

Whether there is a modern award (other than the miscellaneous award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process (Item 4(5)(b))

[24] As we have indicated, the “application and duration” clause of the CSR Award 2000 relevantly provides as follows:

“3. APPLICATION AND DURATION…

3.2 This award shall be binding upon the Association and its members and those eligible for membership of the Association and on the employer in respect of the employment of an employee in the States of Queensland, New South Wales, Victoria, South Australia, Western Australia, Tasmania, the Australian Capital Territory, the Northern Territory or elsewhere, and shall come into operation from the first pay period commencing on or after 7 July 2000 and shall remain in force for a period of twelve months.”

[25] The membership rule of the Association relevantly provides as follows:

“5 - MEMBERSHIP

The members of the Association shall be such salaried employees as have already signed or shall hereafter sign an application for membership in the form set out in the Schedule hereto and whose application shall have been accepted by the Executive Council. Provided that any application for membership by a salaried employee which the Executive Council shall refuse to accept shall be referred by the Executive Council to a General Meeting of the Association to be held within three months of the date of the Application and such General Meeting may accept such Application.”

[26] “Salaried employee” is defined in the rules of the Association as meaning “a person employed by the Company at a yearly rate of pay but does not include the Managing Director and such other executive officers of the Company as shall be agreed between the Association and the Company from time to time.”

[27] “The Company” is defined in the rules of the Association as including CSR.

[28] The “rates of salary” clause of the CSR Award 2000 relevantly provides as follows:

“4. RATES OF SALARY

4.1 The minimum award rate of annual salary for adult employees shall be in accordance with the following 5 level structure:

Level 1	$28,622
Jobs requiring a basic level of secondary education possibly supplemented by some skills training and on the job experience. (Typically, but not exclusively, jobs performed by people carrying out a range of basic clerical, administrative, secretarial or technical duties).
Level 2	$30,065
Jobs requiring secondary education supplemented by specific skills training and a minimum of about three years relevant experience or jobs requiring trade or equivalent qualifications. (Typically, jobs performed by experienced people providing functional support for the work of others).
Level 3	$33,216
Jobs requiring secondary education normally to HSC or equivalent standard supplemented by high level skills training and/or a minimum of three years of relevant experience, or jobs requiring knowledge normally acquired through tertiary education. (Typically, skilled functional jobs and first line supervisory jobs in commercial, scientific or other technical disciplines).
Level 4	$36,469
Jobs requiring a degree or equivalent tertiary qualification plus a minimum of three years of experience in the relevant discipline, or its equivalent by way of high level skills training and on the job experience. (Typically, specialised functional positions and senior supervisory positions in commercial, scientific or other technical disciplines).
Level 5	$42,769
Jobs requiring a degree or equivalent tertiary qualification plus a minimum of five years of experience in the relevant discipline, or its equivalent by way of high level skills training and on the job experience. (Typically, senior functional positions and management positions).”

[29] The Association and CSR submit, and we accept, that the following modern awards would cover some 641 of the persons who are covered by the CSR Award 2000 but for that enterprise instrument:

Clerks - Private Sector Award 2010 4 (198 salaried employees).

Storage Services and Wholesale Award 2010 5 (141 salaried employees).

Joinery and Building Trades Award 2010 6 (18 salaried employees).

Manufacturing and Associated Industries and Occupations Award 2010 7 (201 salaried employees).

Professional Employees Award 2010 8 (83 salaried employees).

[30] The Association and CSR also submit that some 835 salaried employees covered by the enterprise instrument would not be covered by any modern award (other than the miscellaneous award) but for the enterprise instrument. These salaried employees include senior business managers, professional engineers, accountants, administration officers, legal professionals, human resource professionals, Information Technology professionals, production engineers, project managers, logistics professionals and sales professionals.

[31] The Association and CSR provided a list of these 835 salaried employees. They submitted as follows:

“28. While the parties have considered and addressed alternate Modern Award coverage of CSR’s employees in the event no Modern Enterprise Award is made …, a number of CSR’s employees will completely lose coverage under any Modern Award. This is despite the fact that a range of employees’ position titles might indicate, on a preliminary basis, that the employee is covered by an industry or occupation based Modern Award. This arises out of the specific coverage and exclusions in existing Modern Awards and their application to CSR’s enterprise. Some specific examples of the non-alignment between existing Modern Awards and CSR’s enterprise are set out below.

Professional Employees Award 2010

29. This award provides for both occupational coverage of degree-qualified (or equivalent) professional engineering and scientific employees and industry coverage of employees employed by employers who are ‘principally engaged in the information technology industry, the quality auditing industry or the telecommunications services industry’. It is only the occupational aspect of the coverage of this Award which has any potential application to CSR absent an enterprise award being made.

30. Within the occupational streams of coverage under the Professional Employees Award, the classifications are limited to professional engineers ranging from graduates (holding a 4 - 5 year degree or equivalent) through to Level 5 Experienced Engineers who are required to exercise a ‘considerable degree of originality, ingenuity and judgement, and knowledge of more than one field of, or expertise (for example, acts as their organisation’s technical reference authority) in a particular field of professional engineering’ in the course of their duties. It is submitted that it is only this stream of coverage which will have any, albeit limited, application to CSR’s employees who are qualified and experienced engineers. CSR does not employ any professional employees who would fall within the scope of coverage of the scientific stream of the Professional Award.

31. It is submitted that the majority of CSR’s information technology and telecommunications staff are likely to be award free in the event no modern enterprise award is made by the Commission…

Clerks–Private Sector Award 2010

32. The Clerks Award provides occupational coverage of employees engaged wholly or principally in clerical work and administrative work of a clerical nature. While the parties consider that a range of junior to mid-level clerical employees would become covered by the Clerks Award (in the event that no modern enterprise award was made), there are also a wide range of employees whose duties involve some clerical work (as defined in clause 2), however these employees will fall outside of the coverage of the Clerks’ Award as their positions are more senior than the highest level (Level 5) of the Clerks’ Award.

33. Employees whose roles encompass some clerical work but are likely to fall outside the scope of the classifications contained in the Clerks Award include (but are not limited to) employees who work in fields including, human resources, accounts and finance, marketing, sales, project management; customer service; learning and development, health and safety, logistics and business development…

Commercial Sales Award 2010 and the General Retail Industry Award 2010

34. CSR employs a number of employees in roles which, on some level, encompass duties involving selling CSR products to CSR customers. These roles include Account Managers, Customer Service Managers, Sales Managers and Consultants, and Merchandising employees.

35. While one might expect some of these employees to ordinarily be covered by the Commercial Sales Award or the Retail Award, these Awards do not have any application to CSR’s enterprise, and as such CSR’s sales employees identified …, are likely to become award-free in the event no modern enterprise award is made.

36. It is submitted that the Commercial Sales Award 2010 is unlikely to cover any of CSR’s employees as coverage is limited to;

a. Commercial Travellers;

b. Merchandisers; and

c. Advertising Sales Representatives;

each being defined as ‘person[s] employed, substantially away from the employer’s place of business’. CSR does not have any employees which would fall within this definition.

37. Similarly, the coverage of the Retail Award is limited such that the definition of ‘general retail industry’ for the purpose of the scope of coverage in clause 4 of the Award does not include either:

a. retail activities conducted from a manufacturing … establishment; or

b. clerical functions performed away from the retail establishment;

which is likely to encompass the work performed by CSR’s employees whose duties otherwise involve the retail of CSR products to customers.” 9 [Footnotes omitted]

[32] These submissions have not enabled us to assess how many of the 835 salaried employees said not to be covered by a modern award would be covered by a modern award (other than the miscellaneous award) but for the enterprise agreement. We were only provided with those salaried employees’ position titles, not their job descriptions or the circumstances in which they perform their duties. However, we are prepared to assume a significant number of the salaried employees would not be covered by any such modern award.

The content, or likely content, of the modern award referred to in item 4(5)(b) of schedule 6 of the TPCA Act (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process) (Item 4(5)(c))

[33] The content of the modern awards to which we have just referred are terms and conditions of employment largely set having regard to the content of relevant predecessor industry and/or occupational awards and notional agreements preserving state awards (NAPSAs), as well as legislative requirements concerning the making, variation and review of modern awards.

[34] Some of the terms and conditions of employment in some of the five modern awards that would cover the salaried employees but for the CSR Award 2000 are more beneficial for those employees and less beneficial for CSR than those in the CSR Award 2000. Examples of this are the casual loading, some penalty rates, part-time engagement provisions and junior rates.

[35] The Association and CSR pointed out some of these by way of the footnotes to their written submissions of 17 October 2014.

[36] In those footnotes they said:

“23 The Enterprise Instrument contains a Monday to Friday day work and shift work span of hours based upon the shift work span of hours (See clause 13.1.3 of the Enterprise Instrument). Working ordinary hours on Saturday and Sunday is also available via the payment of fixed rate loadings (See clause 12.1.4 & 12.1.5 of the Enterprise Instrument). Whereas the respective Modern Awards have quite distinct spans of ordinary hours. All weekend work conducted by persons covered by the Joinery Award and the Storage Services & Wholesale Award would be prohibited during the Transitional Period unless the majority of employees consent to working ordinary hours on the weekend. These impacts are not illusory, for example almost all of CSR’s 95 Gyprock Trade Centres currently operate 6:00am - 4:00pm Monday to Friday and 7:00am to 11.00am or 6:00am to 4:00pm on Saturday, and would be impacted by the differing span of ordinary hours as follows:

(i) Storage Services & Wholesale Award - 7:00am to 5:30am Monday to Friday with no ordinary hours on Saturday unless with the approval of the majority of employees concerned (See clause 22.1(d) of the Storage Services & Wholesale Award);

(ii) Manufacturing Award 6:00am to 6:00pm Monday to Friday with no ordinary hours on Saturday unless with the approval of the majority of employees concerned (See clause 36.2(b) of the Manufacturing Award); and

(iii) Clerical Award 7:00am-7:00pm Monday to Friday and 7:00am - 12:30pm on Saturday;

Subject to CSR being able to obtain the majority of employees’ consent in all of its Gyprock Trade Centres then they will need to be shut on Saturdays, being a critical trading day for the business. In addition, none of these stores could open prior to 7:00am (a lot presently open at 6:00am) which will substantially impact upon business sales to early morning trade customers.

In addition to the above, the Joinery Award has a default 40 hour working week based on a 4 week RDO system. No RDOs operate under the Enterprise Instrument. Again, CSR would need to make substantial operational alterations to the working hours for 18 employees who would be covered by the Joinery Award or alternatively attempt to obtain the majority of employees consent to revert back to a 38 ordinary hour working week (See clause 28.2 of the Joinery Award).

In all scenarios it cannot be assumed as to the majority of employees vote, or that CSR’s operations would not be impacted during the period from the termination of the Enterprise Instrument and any successful vote.

²⁴ The Enterprise Instrument contains generous shift loadings that largely mirror the operations of the Manufacturing Award. However they are in direct conflict with both the availability, timing and penalty rates in other relevant Modern Awards:

(i) No shift work provisions exist under the Storage Services & Wholesale Award such that ordinary hours cannot be worked outside the limited span of hours. This prevents persons covered by that Modern Award working any shifts as part of their ordinary hours and requires a complete re-evaluation of their working hours (including family responsibilities linked to those working hours) and remuneration levels;

(ii) The Joinery Award defines 4 different types of shifts work- each of these shifts does not align with the Manufacturing Award. In addition the shift loadings under the Joinery Award range from 25% to 50% which is far in excess of current shift provisions;

(iii) The span of hours associated with shift work under the Clerks Award is hour out of alignment to the Manufacturing Award.

²⁵ The current part time engagement model under the Enterprise Instrument provides flexibility in terms of changes to the agreed working pattern and working hours. Overtime is payable when the employee exceeds 38 ordinary hours per week. Whereas the part time models under the relevant Modern Awards (See cl 11 of the Joinery Award) all have substantially greater restrictions on the ability to vary the agreed part time working hours along with when overtime is payable (in excess of the agreed hours of work). At the commencement of the Transitional Period CSR would need to reengage each of the relevant part time employees to work within the Modern Award part time engagement model.

²⁶ The Modern Awards provide for varying minimum engagements for casual employees- 3 hours under the Clerks Award (see clause 12), 7.6 hours under the Joinery Award (see clause 12) and 4 hours under the Manufacturing Award (see clause 14) and Storage Services Award (see clause 11). This operational inconsistency will limit CSR’s rostering practices.”

[37] Nonetheless, some of the provisions of the five modern awards are less beneficial for the salaried employees covered by the CSR Award 2000 and more beneficial for CSR than those in the CSR Award 2000 as the enterprise-specific provisions in the CSR Award 2000 highlighted below indicate.

[38] We accept that if the FWC decided not to make a modern enterprise award to replace the CSR Award 2000 there would be a number of significant ramifications for both CSR and the affected employees, including for CSR “upfront compliance projects costs of $300,000 - $400,000 and ongoing increased annual overhead of $550,000”. 10 However, for reasons we set out later, we think these are likely to be short run ramifications.

The terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument (Item 4(5)(d))

[39] In regard to item 4(5)(d) of schedule 6 of the TPCA Act, the Association and CSR submitted that its competitors are a mix of national, state, regional and local organisations, with the larger and more significant competitors being:

CSR Bradford - Fletchers Insulation Pty Limited and Knauf Insulation Pty Ltd.

CSR Bricks and Roofing - Boral Limited, Selkirk Brick Pty. Ltd., Bristile Pty Ltd, Bluescope Steel Limited, Stramit Corporation Pty Limited, Lysaght® and Colorbond®.

CSR Lightweight Systems - Boral Limited, Knauf Australia Pty Limited and BGC (Australia) Pty Ltd.

Viridian - G James Pty. Ltd., Moen Pty Ltd and National Glass Pty. Ltd.

[40] The Association and CSR also submitted that none of these named competitors have a comprehensive “staff” enterprise award, rather their “staff” are covered by a modern award or are award-free. They went on to submit that the “wages” employees of many of these named competitors are covered by enterprise agreements, however some of the provisions of the CSR Award 2000 are more beneficial for the salaried employees covered by it compared to those in the enterprise agreements. The more beneficial provisions include termination notice, redundancy benefits, annual leave benefits, jury service and public holidays.

[41] Further, the Association and CSR provided tables comparing the classification structure and other terms and conditions of employment in their proposed modern enterprise award compared to the classification structure and other terms and conditions of employment in relevant modern awards and, as already indicated, provided some written submissions in that regard.

[42] We accept these submissions relevant to item 4(5)(d) of schedule 6 of the TPCA Act, while recognising their limits which include that:

the submissions are not nearly comprehensive, notwithstanding us providing the Association and CSR with the opportunity to provide further material, 11

the “wages” employees of CSR’s competitors include the equivalent of some of the “salaried” employees of CSR,

CSR is party to numerous enterprise agreements in the industries in which the salaried employees covered by the CSR Award 2000 operate, and

the submissions do not indicate that there are provisions of the CSR Award 2000 which are less beneficial for the salaried employees, and more beneficial for CSR, compared to those in the enterprise agreements of their competitors.

The extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment (Item 4(5)(e))

[43] The enterprise-specific terms and conditions of employment in the CSR Award 2000, the enterprise instrument, which were highlighted to us include:

Notice on termination by employer

Clause 9.1 of the CSR Award 2000 provides for a full-time or regular part-time employee to receive one month’s notice of the termination of their employment by CSR.

A similar provision was included in the 1944 consent award. 12

Public holidays

Clauses 15.1 and 15.1.1 of the CSR Award 2000 also specify Easter Saturday, Labour day or Eight hour day, Melbourne Cup day (Melbourne only), State Foundation day (Western Australia), Adelaide Cup day (South Australia) and one additional day in Queensland, New South Wales, Tasmania, Northern Territory and the Australian Capital Territory as public holidays which shall be granted by CSR without deduction of pay.

A similar provision was included in the 1944 consent award. 13

Limitation on the deferral of taking annual leave

Clause 16.3 of the CSR Award entitles an employee to take annual leave during the calendar year immediately succeeding the period of accrual and to be deferred by agreement between the employee and CSR with the period of deferment not exceeding two years from the date of accrual.

A similar provision was included in the 1944 consent award. 14

Annual leave loading

Clause 16.9 of the CSR Award 2000 entitles an employee to a loading of 20% on pay for annual leave subject to a limit of $1,852 in respect of annual leave accrued in the 12 months to 31 December each year, with the payment to be made in December each year and calculated on the salary then applying unless otherwise agreed between the employee and CSR.

A similar provision was first included in the CSR Officers Award 1974. 15

Jury service

Clause 18 of the CSR Award 2000 entitles a full-time or part-time employee attending for jury service to have their pay made up to what they would have received for working ordinary time.

A similar provision was first included in the CSR Staff (Consolidated) Award 1998. 16

Redundancy pay

Clause 23 of the CSR Award 2000 entitles an employee on retrenchment, other than an employee whose contract of employment is casual, seasonal or for a specific term or specific project or who accepts an offer of an alternative position with CSR, to three months salary plus 0.7 months salary per year of completed service, pro-rata to completed days of service up to a maximum of two years salary and payment of accrued annual leave and annual leave loading and accrued long service leave.

A provision for redundancy pay was first inserted into the CSR Staff (Consolidated) Award 1992 17as follows:

“22 REDUNDANCY PAY
(a) Redundancy shall be paid in accordance with the Redundancy and Retrenchment Agreement entered into between the company and the Association.” 18

The operative provisions of the unregistered Redundancy and Retrenchment Agreement were included in the CSR Award 2000 when it was made.

Classification structure

We have earlier set out the classification structure in the CSR Award 2000. It is a five level, generic structure dating back to the making of the CSR Staff (Consolidated) Award 1992. 19

It affords the same minimum salary to salaried employees within a classification level across the businesses of CSR and facilitates movement within and across CSR’s business units and regions of operation.

Different classification structures have been provided in predecessor awards.

The CSR Officers’ (Consolidated) Award 1987 had six categories, being Category I (Administrative and commercial), Category II (Office Services), Category III (Technical), Category IV (Supervisory), Category V (Graduates), and Category VI (Sales and Marketing). 20 Within each category there were various classes.

The CSR Officers Award 1974 had three classification groups, being for generalists, technicians or technical officers, and graduates or experienced graduates, with various occupations within each group. 21

The Colonial Sugar Refining Officers (Males) Award 1961 had three classification groups. Group I was for those not classified in Groups II or Group III. Group II was for a Technical field officer, Factory accountant, Chemist, Engineer or Draughtsman who did not possess the qualifications for Group III. Group III was for relevantly degree or diploma qualified persons. 22

The Colonial Sugar Refining Officers (Males) Award 1958 had two classification groups, Group I and Group II, with CSR having a discretion as to which chemists, engineers and draughtsmen were included in Group II. 23

The Colonial Sugar Refining Officers (Males) Award 1954 had four classification groups, being a Commercial group, Intermediate group, Technical group (including chemists, engineers and draughtsmen) and General group, with the General group having three classes and classification into a class made by CSR. 24

[44] We accept the CSR Award 2000 contains some enterprise-specific terms and conditions of employment. However, we are also aware that:

the National Employment Standards (NES) in the FW Act require notice of termination of employment and the Professional Employees Award 2010 25 requires an employer to give an employee one month’s notice in order to terminate their employment;

the NES in the FW Act also provide for any day or part-day declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday to be regarded as a public holiday with associated entitlements;

the NES in the FW Act provide that an employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year, for paid annual leave to be taken for a period agreed between an employee and their employer, and that an employer must not unreasonably refuse to agree to a request by their employee to take paid annual leave;

annual leave loading is a common feature of modern awards and is generally set at 17.5%;

the NES in the FW Act provide for some payment for jury service and make up pay for jury service is provided for by Victorian legislation;

the NES in the FW Act provide for a lesser amount of entitlement to redundancy pay for employees with continuous service with a non-small business employer; and

the classification structure in the CSR Award 2000 is not that sought by the Association and CSR in their proposed modern enterprise award.

The likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in item 4(5)(b) of schedule 6 of the TPCA Act, of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons (Item 4(5)(f))

[45] In regard to item 4(5)(f) of schedule 6 of the TPCA Act, the Association and CSR submitted that if a modern enterprise award is not made the salaried employees currently covered by the CSR Award 2000 would suffer a reduction in some terms and conditions of employment and a number would lose award coverage with consequences, for example, for their statutory unfair dismissal protection. Further, they submitted that CSR would lose the flexibility they have with the breadth of coverage of the CSR Award 2000, which allows CSR to incorporate any additional business activity either within its existing business model or a new business line and to better attract and retain desirable staff.

[46] In addition, they submitted that the making of their proposed modern enterprise award would not have any impact on CSR’s ongoing viability or competitiveness, as it replicates currently applicable terms and conditions of employment. They went on to submit that if the proposed modern enterprise award is not made then CSR will be required to comply with five different modern awards, each with their own unique working arrangements, with associated compliance costs and actions and transitional difficulties and the bargaining position of the salaried employees of CSR will be negatively impacted.

[47] These submissions fail to refer to the more beneficial terms and conditions of employment in the relevant modern awards that would cover the salaried employees, which would also positively impact on those salaried employees’ bargaining position.

[48] We think that when the totality of considerations is taken into account the likely impact on the persons covered by the CSR Award 2000 of a decision to make a modern enterprise award is that the existing terms and conditions of employment of the salaried employees as set out in the CSR Award 2000 would largely be maintained through the modern enterprise award and, consistent with the past, no enterprise agreement being made. It is likely there would be no detrimental impact on the ongoing viability or competitiveness of any enterprise carried on by the persons covered by the CSR Award 2000.

[49] The likely impact on the persons covered by the CSR Award 2000 of a decision not to make a modern enterprise award would, in the short run, be:

for all of the salaried employees, a reduction in some terms and conditions of employment,

for those salaried employees covered by a modern award, an increase in some other terms and conditions of employment,

for some of those salaried employees not covered by a modern award, some loss of other entitlement, and

for CSR, less flexibility and higher compliance costs and actions, as well as other transitional difficulties.

[50] However, given this impact if a modern enterprise award is not made, we think it is likely there would quickly be collective bargaining between CSR and the salaried employees and their bargaining representatives for the making of an enterprise agreement or enterprise agreements. The attempts of the Association and CSR to persuade us that this is not likely were unconvincing, 26 particularly given the history of consent in respect of the terms and conditions of employment in the CSR Award 2000 and the negotiation of the proposed modern enterprise award and the immediate impetus afforded by a modern enterprise award not being made, including the content of the modern awards that would then apply. As a consequence, it is likely the ongoing viability or competitiveness of the enterprise carried on by them would not be detrimentally impacted.

[51] We think the likely impact on the persons covered by the relevant modern awards of a decision to not make the modern enterprise award would be that they would be subject to the same modern award coverage as those currently covered by the CSR Award 2000 when that enterprise instrument terminates on the decision to not make the modern enterprise award. It is not evident that there would be any detrimental impact on the ongoing viability or competitiveness of any enterprise carried on by them. The likely impact on such persons of a decision to make the modern enterprise award would largely be the status quo, with no detrimental impact on the ongoing viability or competitiveness of any enterprise carried on by them.

The views of the persons covered by the enterprise instrument (Item 4(5)(g))

[52] We accept that the Association and CSR support the making of a modern enterprise award. According to a plebiscite of the salaried employees covered by the CSR Award 2000, the vast majority of such employees support the application for the Association and CSR proposed modern enterprise award. At the time of the plebiscite that proposed modern enterprise award had some terms and conditions of employment vastly superior to those in the CSR Award 2000. However, before us the Association and CSR proposed amendments which significantly reduced the salaries at Levels 3 to 5 of the proposed classification structure and aligned the coverage of the proposed modern enterprise award with that of the CSR Award 2000. In these circumstances, we also accept that the salaried employees covered by the CSR Award 2000 support the making of a modern enterprise award with some terms and conditions of employment vastly superior to those in the CSR Award 2000, being a modern enterprise award which is different to that ultimately proposed to us by the Association and CSR.

Any other matter prescribed by regulations (Item 4(5)(h))

[53] There are no other matters prescribed by the regulations.

Discretion

[54] In the exercise of our discretion, in addition to matters previously raised, the Association and CSR submitted in support of the making of a modern enterprise award that:

neither of them participated in the making of modern awards,

the award modernisation process is not designed to affect reductions in the safety net of employees’ conditions,

the making of their proposed modern enterprise award is not contrary to relevant objects in the FW Act or the modern awards objective and would not undermine the safety net provided by modern awards or create overlap,

CSR is a unique business and ought be entitled to the continued application of an enterprise instrument for the purposes of competition, career and talent development, business growth and change, and reducing overheads, and

the Association and CSR have developed a unique culture and approach to industrial relations, including minimal industrial disputation, facilitated by the enterprise instrument.

[55] The Australian Industry Group (AIG) supported the making of a modern enterprise award to replace the CSR Award 2000 essentially for the reasons advanced by the Association and CSR.

Conclusion

[56] We are not persuaded to make a modern enterprise award to replace the CSR Award 2000.

[57] Our consideration of the factors in item 4(5) of schedule 6 of the TPCA Act indicates that the likely impact on the persons covered by the CSR Award 2000 of a decision to not make such a modern enterprise award would be some short run changes. However, there would quickly be collective bargaining between CSR and the salaried employees and their bargaining representatives for the making of an enterprise agreement or enterprise agreements.

[58] Not making the modern enterprise award would thereby overcome the historical inertia with respect to such collective bargaining, with attendant opportunities from further enterprise agreements of enhanced “productivity and fairness”. 27

[59] The likely impact of a decision to make such a modern enterprise award on the persons covered by the CSR Award 2000 would be largely the maintenance of the terms and conditions of employment in the CSR Award 2000 in the modern enterprise award and, consistent with the history between the persons, no enterprise agreement being made.

[60] In either instance it is likely there would be no detrimental impact on the ongoing viability or competitiveness of the enterprise carried on by them.

[61] The likely impact on the persons covered by the relevant modern awards of a decision to not make the replacement modern enterprise award would be that they would be subject to the same modern award coverage as those currently covered by the CSR Award 2000 when that enterprise instrument terminates on the decision to not make the replacement. It is not evident that there would be any detrimental impact on the ongoing viability or competitiveness of any enterprise carried on by them. The likely impact on such persons of a decision to make the replacement modern enterprise award would largely be the status quo, with no detrimental impact on such ongoing viability or competitiveness.

[62] But for the CSR Award 2000, a substantial number of the persons covered by the CSR Award 2000 would be covered by one of the modern awards to which we have earlier referred, with a significant number not being covered by any modern award. Precisely how many would be award-free is unclear. As to the content of the modern awards, their terms and conditions of employment have been largely set having regard to the content of relevant predecessor awards and NAPSAs and legislative requirements. Some of the provisions in the modern awards are more beneficial and some less beneficial for the salaried employees covered by the CSR Award 2000 and, consequently, less and more beneficial for CSR than those in the CSR Award 2000.

[63] Not making a modern enterprise award for those persons covered by the CSR Award 2000 would result in them having more similar arrangements in respect of their terms and conditions of employment to those that apply in the industries in which they operate where some “staff” are covered by the modern awards and others are award-free and where an enterprise agreement applies to some “wages” employees who are the equivalent of some of those covered by the CSR Award 2000. As to the actual terms and conditions of employment applying in those industries, the subject matters of those terms and conditions are generally reflected in the CSR Award 2000. However, the content of the subject matters often varies from that in the CSR Award 2000, with the content in the CSR Award 2000 in some instances being more beneficial and in other instances being less beneficial for the salaried employees covered by the CSR Award 2000 and, consequently, less and more beneficial for CSR.

[64] The CSR Award 2000 contains enterprise-specific terms and conditions of employment. However, as we have indicated, a different classification structure has existed in predecessors to the CSR Award 2000 and a different classification structure to that in the CSR Award 2000 is sought by the Association or CSR for a modern enterprise award. In addition, the other enterprise-specific terms and conditions of employment highlighted to us are available at least in part under the NES or the relevant modern awards that would cover the salaried employees covered by the CSR Award 2000 but for that enterprise instrument and/or are of limited application.

[65] The circumstances that led to the making of the CSR Award 2000 rather than an instrument of more general application are the longevity of its predecessors and the consent settlement of industrial disputes, limited as they were by the confined eligibility rule of the Association and its predecessors.

[66] Clearly the Association and CSR support the making of a modern enterprise award to replace the CSR Award 2000. However, the views of the salaried employees covered by that enterprise instrument are less certain, as the plebiscite only asked them about the making of a particular form of modern enterprise award.

[67] The FWC must apply the modern awards objective and the minimum wages objective to the making of a modern enterprise award, while recognising modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. The modern awards objective requires the FWC to take into account, amongst other things, the need to encourage collective bargaining.

[68] In our view, in this case the likely impact on the persons covered by the CSR Award 2000, and the persons covered by the relevant modern awards, of a decision to make, or not make, the modern enterprise award strongly supports not making the modern enterprise award to replace the CSR Award 2000. As we have indicated, if we do not make the modern enterprise award the likely impact would quickly be collective bargaining between CSR and the salaried employees and their bargaining representatives for the making of an enterprise agreement or enterprise agreements. We regard the other factors in item 4(5) of schedule 6 of the TPCA Act as supporting the making of the modern enterprise award, although some of the other factors do not unambiguously do so. Nonetheless, in this case the other factors in item 4(5) of schedule 6 of the TPCA Act are not sufficient in our view, either individually or collectively, to outweigh the strong support item 4(5)(f) of schedule 6 provides for not making the modern enterprise award.

[69] Further, we are not persuaded by the discretionary matters submitted by the Association and CSR to make a modern enterprise award to replace the CSR Award 2000. We have already dealt with some of these directly or indirectly. In addition, we point out that it is not evident why they did not participate in the making of modern awards or how their participation would have affected the outcome. Moreover, the Association’s and CSR’s unique culture and approach to industrial relations tends to support our view that it is likely there would quickly be collective bargaining for the making of an enterprise agreement or enterprise agreements covering the salaried employees currently covered by the CSR Award 2000, and not making the modern enterprise award is not contrary to the content of objects of the FW Act or the relevant objectives and may well promote much of it.

[70] We were referred to various Full Bench decisions concerning the making of modern enterprise awards and/or the termination of enterprise instruments. However, those decisions tend to turn on the facts relevant to them.

[71]
For the above reasons therefore, we have decided not to make a modern enterprise award to replace the CSR Award 2000. Pursuant to item 9(3) of schedule 6 of the TPCA Act, the CSR Award 2000 therefore terminates at the date of this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

S. Crawshaw, senior counsel, with N. Keats for CSR & Holcim Staff Association.

G. Boyce, counsel, with M. Robinson for CSR Limited.

Hearing details:

2014.

Sydney:

October 1.

Final written submissions:

Joint submissions of the parties, 17 October 2014.

The Australian Industry Group, 22 October 2014.

CSR Limited, 24 October 2014.

1 AP777812.

2 (2012) 214 IR 434.

3 No. 5944, (1944) 51 CAR 885.

4 MA000002.

5 MA000084.

6 MA000029.

7 MA000010.

8 MA000065.

9 Joint written submissions of the parties dated 17 October 2014 in matter EM2013/36.

10 Ibid at paragraph 20.

11 Transcript in EM2013/36 at PN280.

12 No. 5944, (1944) 51 CAR 885.

13 Ibid.

14 Ibid.

15 Print C4761, (1976) 174 CAR 768.

16 Print Q9684.

17 Print K2636.

18 Print P3598.

19 Print K2636.

20 Print G6911.

21 Print C4761, (1976) 174 CAR 768.

22 Print A8228, (1961) 97 CAR 195.

23 Print A6067, (1958) 88 CAR 648.

24 Print A3837, (1954) 78 CAR 719.

25 MA000065.

26 See, for example, transcript in EM2013/36 at PN100-108, 182-183, 188-189, 193-197, 211 and 227-231.

27 Fair Work Act 2009 (Cth), s.3(f).

Printed by authority of the Commonwealth Government Printer

[2014] FWCFB 7351

15 DECEMBER 2014