CSR Limited T/A CSR Lightweight Systems

[2019] FWCA 8683

[2019] FWCA 8683

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

CSR Limited T/A CSR Lightweight Systems
(AG2019/4461)

CSR LIMITED WELSHPOOL WA ENTERPRISE BARGAINING AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 23 DECEMBER 2019

Application for approval of the CSR Limited Welshpool WA Enterprise Bargaining Agreement 2019.

[1] CSR Limited T/A CSR Lightweight Systems has made an application for the approval of an enterprise agreement known as the CSR Limited Welshpool WA Enterprise Bargaining Agreement 2019 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[1] The Applicant has provided written undertakings. 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.

[2] In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[3] Section 180(2) of the Act obliges an employer to take all reasonable steps to ensure that during the access period of an agreement the relevant employees are given a copy of material incorporated by reference in the agreement. Clause 14.8 of the Agreement is identified as a ‘Gyprock warehouse grandfather clause’. It provides:

Provisions in section 15.4 “Payment for Overtime Hours Worked” of the CSR Building Products (WA Enterprise bargaining Agreement 2006 shall be carried forward and applied in this agreement.

[4] When asked whether all reasonable steps were taken to provide the relevant employees with access to this particular clause, the Applicant conceded that it was not given to the employees at the relevant time. However, the Applicant continued that the content of cl 14.8 was longstanding having appeared in the following predecessor agreements: (a) CSR Limited Welshpool WA Enterprise Bargaining Agreement 2009 1 (approved 9 February 2010 AG 2009/21404); (b) CSR Limited Welshpool WA Enterprise Bargaining Agreement 20132 (approved 9 May 2013, AG 20139/6157); and (c) CSR Limited Welshpool WA Enterprise Bargaining Agreement 20163 (approved 21 June 2016, AG 2016/1272). The Applicant stated that there was only one employee at the Welshpool site that was affected by cl 15.4 of the ‘CSR Building Products (WA Enterprise bargaining Agreement 2006’, and the provision in cl 14.8 preserved that condition for that one employee.

[5] In the circumstances, I am satisfied that having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 4 this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, having regard to the content of the statutory declaration I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[6] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[7] The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

[8] The United Workers' Union (the organisation),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), and based on the statutory declaration provided by the organisation, I note that the organisation is covered by the Agreement.

[9] The Agreement was approved on 23 December 2019 and, in accordance with s 54, will operate from 30 December 2019. The nominal expiry date of the Agreement is 7 November 2023.

DEPUTY PRESIDENT

Annexure A

 1   [2010] FWAA 944.

 2   [2013] FWCA 2892.

 3   [2016] FWCA 4008.

 4   [2019] FWCFB 318.

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