CSR Limited

[2024] FWCA 1365

[2024] FWCA 1365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

CSR Limited

(AG2024/863)

CSR LIMITED WELSHPOOL WA ENTERPRISE BARGAINING AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 17 APRIL 2024

Application for approval of the CSR Limited Welshpool WA Enterprise Bargaining Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the CSR Limited Welshpool WA Enterprise Bargaining Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by CSR Limited (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 28 March 2024.

1. The notification time for the Agreement under s.173(2) was 28 June 2023 and the Agreement was made on 7 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements (BOOT) are those applying on and from 2023.[1]

1. On 4 April 2024, the Employer was invited to address aspects of the Agreement, including through the provision of an undertaking. In the correspondence, I sought submissions from the employer in regard to a BOOT issue concerning clause 33.2 of the Award which provides   a penalty for employees on afternoon or night shift, including payment of 150% (first 3 hours) and 200% thereafter. The proposed Agreement does not appear to provide an equivalent provision.   In response, the employer provided submissions that the pattern of work identified in Clause 33.2 of the Award does not currently apply and will not apply during the life of the Agreement. I accept these submissions.

1. The following clauses appear inconsistent with the National Employment Standards (NES):

·  Public Holidays: Clause 21.1 of the Agreement states that by agreement between the employer and the majority of employees, a substituted public holiday can be taken. This appears contrary to s115(3) of the Act which provides that a substitution is between the employer and individual employee – not the majority and that each employee is entitled to be absent on a public holiday.

·  Public Holidays: Clause 21.1 of the Agreement lists public holidays and includes ‘any additional proclaimed or gazetted public holidays in the Perth metropolitan area’. s115 of the Act provides that, in relation to the additional days, “any other 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, other than a day or part day, or a kind of day or part day, that is excluded by the regulations from counting as a public holiday.” It is unclear whether the limiting of the additional days to those in the Perth metropolitan area would be seen as a ‘region’ under the Act or whether this clause 21.1 purports to reduce additional public holidays to be taken.

·  Deduction/withholding of monies due to the employee under the NES on termination: Clause 24.2 b) states that if an employee fails to give the appropriate period of notice, the company has the right to withhold monies due to the employee to a maximum amount equal to the ordinary time including shift loadings for the period of notice. The effect of this is that this clause appears to permit the employer to deduct employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). This raises the issue that this provision may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. Clause 2.5 of the Agreement acts as an effective NES precedence clause, in that is states “The National Employment Standards (NES) as prescribed by the Fair Work Act will apply to all employees covered by this Agreement. This Agreement provides terms that are ancillary or incidental to the operation of an entitlement of an employee under the NES, or terms that supplement the NES, but only to the extent that the effect of those terms are not detrimental to an employee in any respect when compared to the NES.” As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has provided written undertakings dated 10 April 2024. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, and 193 of the Act as are relevant to this application for approval have been met.

1. Considering the proposed Agreement on this basis, having regard to s.193A I am satisfied that the BOOT is met. I note that should the employment practices with regard to classifications and work pattern change as identified at [4] above, an application under s.227A is available for a reconsideration of the BOOT.

1. The United Workers' Union 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) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date of the Agreement is 7 November 2027.

COMMISSIONER

Annexure A

[1] 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 Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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