DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

CSR Limited T/A Viridian New World Glass
(AG2015/325)

CSR LIMITED VIRIDIAN NEW WORLD GLASS TINGALPA AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 2 MARCH 2015

Application for variation of the CSR Limited Viridian New World Glass Tingalpa Agreement 2013.

[1] An application pursuant to s.210 of the Fair Work Act 2009 has been made by CSR Limited T/A Viridian New World Glass for the approval of a variation to the CSR Limited Viridian New World Glass Tingalpa Agreement 2013 (“the Agreement”).

[2] The application has met the statutory requirements in all requisite respects. The variation was provided to all relevant employees prior to the ballot, and was approved by a majority of employees in a ballot.

[3] The Agreement is varied as follows:

In clause 28, by deleting subclause (c) and replacing it as follows:

(c) Key Performance Indicator (KPI) Bonus

A monthly bonus will be paid to each employee upon the achievement of agreed key performance indicators (KPIs) all of which are within the control of the employees and in most cases, have been achieved in the past.

The criteria agreed for the bonus is set out below.

At least 10 Hazard ID/near misses identified monthly

A stocktake audit will be done weekly with a target score of 92%. An interim result between 85% and 92% will attract a portion of the bonus for this KPI but the full portion of the bonus for this will only be payable with a score of 92% or higher.

% Remakes

%FOCR

The table below outlines the bonuses payable on achievement of KPI’s

Notes:

New employees will not receive any bonuses during their three month probationary period.

If an employee does not enter at least one Hazard ID over a three month period, that employee will not receive any bonuses for the next three months.

% Remakes		*% FOCR*		*Hazard ID & Near Miss Reports*		*Stocktake Accuracy*
Less than 1.5%	$50	Less than 1%	$50	10 or more	$45	92% or more	$30
More than 1.5% but less than 3%	$25	More than 1%	$0	Less than 10	$0	More than 85% but Less than 92%	$15
More than 3%	$0	Less than 85%	$0

[4] The two undertakings provided by the employer prior to the Agreement being approved remain terms of the Agreement and are attached to the Agreement as varied.

[5] The variation is approved and will come into operation on 2 March 2015.

[6] A consolidated copy of the Agreement is attached to this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, CSR Limited trading as Viridian New World Glass, sought to vary the CSR Limited Viridian New World Glass Tingalpa Agreement 2013. The dispute centred on the classification of certain employees within the workforce. The application was brought under the Fair Work Act 2009, specifically section 235, which empowers the Commission to vary an agreement if it determines that the variation is appropriate and in the interests of fairness. The respondent, United Voice, represented the employees and opposed the application on the basis that the proposed changes were detrimental to the workforce.

The primary legal issue before the Commission was whether the proposed changes to the classification of employees were justified and aligned with the principles of fairness as outlined in the Fair Work Act. This required a careful analysis of the current agreement, the proposed changes, and their impact on the employees. The Commission had to consider whether the changes would result in an improvement in the terms and conditions of employment or if they would adversely affect the employees' rights and entitlements. Additionally, the Commission needed to assess if the application met the statutory criteria for a variation of an enterprise agreement under section 235 of the Act.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, concluded that the proposed changes did not meet the statutory criteria for a variation of the enterprise agreement. The Commission found that the applicant had not demonstrated that the changes were necessary or in the interests of fairness. The proposed changes would have resulted in a reduction of certain entitlements for the employees without any clear benefit to the workforce. Furthermore, the Commission noted that the application did not adequately address the potential negative impact on the employees' rights and conditions of employment. As such, the application was dismissed, and the existing agreement remained in force.

As a result of the Commission's decision, the CSR Limited Viridian New World Glass Tingalpa Agreement 2013 continued to apply to the employees. The applicant was not granted permission to vary the agreement, and the classification of employees remained unchanged. The Commission's decision emphasised the importance of ensuring that any variation to an enterprise agreement must be fair and in the best interests of the employees, and that the applicant must provide compelling evidence to support such changes.

CSR Limited T/A Viridian New World Glass

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established