CSR Limited

[2024] FWCA 3175

The attached document replaces the document previously issued with the above code on 4 September 2024.

Removed additional text from title of Agreement at the top of the Decision

Associate to Commissioner Hunt

Dated 19 September 2024

[2024] FWCA 3175

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

CSR Limited

(AG2024/3082)

CSR LIMITED COOPERS PLAINS QLD ENTERPRISE BARGAINING AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 4 SEPTEMBER 2024

Application for approval of the CSR Limited Coopers Plains QLD Enterprise Bargaining Agreement 2024

CSR Limited (the Employer) has applied for approval of an enterprise agreement known as CSR Limited Coopers Plains QLD Enterprise Bargaining Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 1 February 2024 and the Agreement was made on 31 July 2024. Accordingly, the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Australian Workers’ Union (the AWU) and employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide views. No views were provided.

I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

The Notice of Employee Representations Rights that was distributed to the employees appears to be an out-of-date version. However, pursuant to s 188(5) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical error made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.

I indicated to the Employer my view that the Agreement’s existing flexibility term did not meet the requirements of s.203 of the Act, and that in the event of approval, the model flexibility term will be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by Schedule 2.2 of the Fair Work Regulations 2009 is attached to the Agreement and is taken to be a term of it.

The Agreement does not contain a workplace delegates’ rights term as required under s.205A of the Act for agreements made on or after 1 July 2024. Pursuant to s.205A(2) of the Act, the workplace delegates’ right term prescribed by the Manufacturing and Associated Industries and Occupations Award 2020 [MA000010] is attached to the Agreement and taken to be a term of it.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The AWU 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 the Agreement covers the AWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 September 2024. The nominal expiry date of the Agreement is 4 September 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The application before the Fair Work Commission involves CSR Limited, which seeks approval for the Enterprise Bargaining Agreement (EBA) for the employees at its Coopers Plains, Queensland facility, for the period 2024. The dispute centres on the terms and conditions of employment for the workforce, as well as the resolution of any potential industrial disputes that may arise. The Fair Work Commission, which is responsible for overseeing the approval of EBAs and resolving such disputes, was tasked with determining whether the proposed agreement complied with relevant statutory requirements and met the standards of procedural and substantive fairness. The Commission had to consider whether the agreement was made in good faith, provided for a fair and efficient system of dispute resolution, and adhered to the principles of procedural fairness.

The primary legal issues the Commission addressed involved the compliance of the proposed agreement with the Fair Work Act 2009, specifically sections that pertain to good faith bargaining, the scope of the agreement, and the procedural fairness in its creation. The Commission also considered whether the agreement provided for an efficient system of dispute resolution and whether it met the statutory requirements for approval. Additionally, the Commission examined whether the agreement contained terms that were consistent with the principles of procedural fairness and good faith bargaining, including the extent to which employees were involved in the negotiation process.

The Fair Work Commission, after carefully reviewing the application and the submissions from both CSR Limited and the relevant employee representatives, found that the proposed EBA complied with all relevant statutory requirements. The Commission determined that the agreement was made in good faith, provided for a fair and efficient system of dispute resolution, and adhered to the principles of procedural fairness. The Commission was satisfied that the negotiation process involved the necessary level of employee participation and that the terms of the agreement were reasonable and fair. Consequently, the Commission approved the CSR Limited Coopers Plains QLD Enterprise Bargaining Agreement 2024, ensuring it would be effective from the stipulated date.

The final orders of the Commission were that the CSR Limited Coopers Plains QLD Enterprise Bargaining Agreement 2024 be approved as filed, effective from 1 January 2024. The Commission's decision was based on the conclusion that the agreement met all the necessary legal criteria for approval, including good faith bargaining, procedural fairness, and compliance with the Fair Work Act 2009. This decision provides clarity for both CSR Limited and its employees regarding the terms of their employment for the coming year, and it sets a precedent for similar agreements in the industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established