[2015] FWCFB 6463
FAIR WORK COMMISSION

DECISION


Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 4 – The enterprise instrument modernisation process.
Sch. 6, Item 6 – The modern enterprise awards objective.

CSR & Holcim Staff Association
(EM2013/36)

Industries not otherwise assigned

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER LEE



MELBOURNE, 16 NOVEMBER 2015

Application to make a modern enterprise award to replace the CSR Staff (Consolidated) Award 2000 – modern awards objective – minimum wages objective – object of Fair Work Act – application refused.

Introduction

[1] On 15 December 2014, we issued a decision 1 (the 2014 decision) on an application made on 19 November 2013 to the Fair Work Commission (the FWC) by the CSR & Holcim Staff Association (the Association).

[2] The application is to make a modern enterprise award to replace the CSR Staff (Consolidated) Award 2000 (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] On 1 July 2015, the Full Court of the Federal Court of Australia in CSR Limited v CSR & Holcim Staff Association 3 made orders quashing the 2014 decision and requiring the FWC to determine the application of the Association according to law.

[4] This decision so determines the 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.

[5] CSR Limited (CSR) and the Association relied on the submissions, evidence and other material they presented to us leading to the 2014 decision but supplemented and updated those submissions, evidence and material for developments since the 2014 decision, including the 1 July 2015 Full Federal Court decision. The Australian Industry Group in a written submission also supported the making of a modern enterprise award to replace the CSR Award 2000.

[6] We granted both CSR and the Association 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

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

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

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

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

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

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

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

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

[15] In CSR Limited v CSR & Holcim Staff Association, 5 in considering the 2014 decision, the Full Federal Court said:

Consideration of the application

[16] 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.

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

[18] 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.

[19] When we made the 2014 decision, CSR had four divisions:

[20] On 1 May 2015, CSR entered a joint venture with Boral Limited (Boral) to combine CSR’s and Boral’s brick operations into a new joint venture company known as Boral CSR Bricks Pty Limited. In an agreed statement of facts put to us by CSR and the Association it was said:

[21] However, an Expert Report on modern award coverage dated 15 September 2015 that they presented to us suggested that the Road Transport and Distribution Award 2010 8 would also cover some of the persons covered by the CSR Award 2000 but for that enterprise instrument.

[22] 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”.

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

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

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

[26] 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))

[27] The CSR Award 2000 has its origins in a consent award made in settlement of an industrial dispute in 1944, 9 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.

[28] 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))

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

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

[31] “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.”

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

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

[34] CSR and the Association presented material indicating that the modern awards listed below would cover a substantial number of the persons who are covered by the CSR Award 2000 but for that enterprise instrument. We accept that the modern awards listed below would cover a substantial number of the persons who are covered by the CSR Award 2000 but for that enterprise instrument.

[35] The modern awards are:

[36] CSR and the Association also presented material indicating that a substantial number of the persons covered by the CSR Award 2000 would be award free but for the CSR Award 2000. We accept that a substantial number of the persons who are covered by the CSR Award 2000 would be award free but for the CSR Award 2000.

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))

[37] 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.

[38] Some of the terms and conditions of employment in some of the six 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 some penalty rates, part-time engagement provisions and junior rates.

[39] CSR and the Association pointed out some of these by way of the footnotes to their written submissions of 17 October 2014. In those footnotes they said:

[40] Nonetheless, some of the provisions of the six 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.

[41] 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”. 16 However, for reasons we set out later, we think these are likely to be short run ramifications.

[42] Some of the terms and conditions of employment in some of the six 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 proposed CSR Award 2015. Nonetheless, some of the provisions in those six modern awards are less beneficial for the salaried employees covered by the CSR Award 2000 and more beneficial for CSR than those in the proposed CSR Award 2015.

[43] In written submissions dated 11 September 2015, having regard to the “Safety Net Entitlements Table” they had submitted, CSR and the Association maintained that the CSR Award 2000 and the proposed CSR Award 2015 provides, overall, a superior safety net of minimum entitlements than each of the modern awards (other than the miscellaneous award) that would cover the persons covered by the CSR Award 2000 but for that enterprise instrument. 17

[44] However, the “Safety Net Entitlements Table” is not comprehensive. For example, the “Safety Net Entitlements Table” does not compare the shift allowance entitlement under clause 37.3(b) of the Manufacturing and Associated Industries and Occupations Award 2010 with any provisions of the CSR Award 2000 or the proposed CSR Award 2015.

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))

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

[46] CSR and the Association 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, they said that some of the provisions of the CSR Award 2000 and the proposed CSR Award 2015 are more beneficial for the salaried employees covered, or who would be covered, by them compared to those in the enterprise agreements. The more beneficial provisions include termination notice, redundancy benefits, annual leave benefits, jury service and public holidays.

[47] Further, CSR and the Association provided the aforementioned “Safety Net Entitlements Table” and a classification structures table setting out the classification structure and other terms and conditions of employment in the CSR Award 2000, the proposed CSR Award 2015 and some of the relevant modern awards. As already indicated, they also provided some written submissions in that regard.

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

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

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. 19

Clause 16.3 of the CSR Award 2000 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. 20

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. 21

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. 22

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) Redundancy shall be paid in accordance with the Redundancy and Retrenchment Agreement entered into between the company and the Association.” 24

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. 25

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). 26 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. 27

The Colonial Sugar Refining Officers (Males) Award 1961 had three classification groups. Group I was for those not classified in Group 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. 28

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. 29

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. 30

[50] We are aware that:

[51] CSR and the Association pointed out that the enterprise-specific terms and conditions of employment in the CSR Award 2000 to which we have referred are more beneficial than comparable provisions in the NES. We accept that. They added the following:

[52] We deal with item 6(2) of Schedule 6 later in this decision.

[53] The points made in this added submission need to be considered against the fact that their proposed CSR Award 2015 does not apply to an employee of Bricks Australia Services Pty Limited employed on an annual salary who was not employed by CSR on an annual salary immediately prior to the commencement of their employment with Bricks Australia Services Pty Limited.

[54] Further, as we have previously indicated, the classification structure sought by CSR and the Association in their proposed CSR Award 2015 is not that in the CSR Award 2000. In addition, the actual base salary CSR affords employees covered by the CSR Award 2000 at classification Levels 1 to 3 of its proposed CSR Award 2015 and the total fixed remuneration CSR affords such employees at classification Levels 4 to 5 of its proposed CSR Award 2015, compared to the annual base salary in the proposed CSR Award 2015 for such employees, is as follows: 33

[55] Information CSR and the Association has provided to us about the employees covered by the CSR Award 2000 who would be covered by a modern award (other than the miscellaneous award) but for the CSR Award 2000 indicates that less than 1% of such employees are classified below Job Grade 3. 36

[56] Information CSR and the Association has provided to us about the employees covered by the CSR Award 2000 who would be award free but for the CSR Award 2000 indicates that none are classified below Job Grade 3 and less than half are classified below Job Grade 9. Indeed, about 85% of them are classified at Job Grades 7 and above, and some 75% are classified at Job Grades 8 and above.

[57] The actual base salary or total fixed remuneration CSR affords employees covered by the CSR Award 2000 is considerably higher than the annual salary at classification Levels 1 to 5 in the CSR Award 2000.

[58] Moreover, it is not readily apparent why CSR would lose some of its talented staff if the CSR Award 2000 was terminated. Nor is it evident how many of the employees covered by the CSR Award 2000 comprise 30% of CSR’s senior staff.

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))

[59] In regard to item 4(5)(f) of schedule 6 of the TPCA Act, CSR and the Association submitted that if the proposed CSR Award 2015 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. 37

[60] In addition, they submitted that the making of their proposed CSR Award 2015 would not have any impact on CSR’s ongoing viability or competitiveness. They went on to submit that if the proposed CSR Award 2015 is not made then CSR will be required to comply with numerous different modern awards, each with their own unique working arrangements, with associated compliance costs and actions, and transitional difficulties including detrimental competition and flexibility effects. They also said that the bargaining position of the salaried employees of CSR will be negatively impacted. 38

[61] 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.

[62] 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 the proposed CSR Award 2015 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 collective bargaining for the making of an enterprise agreement or enterprise agreements between CSR and the employees covered by the CSR Award 2000. The FW Act emphasises enterprise-level collective bargaining as a means of achieving productivity. 39 There is no sound reason for concluding that such collective bargaining at CSR would not be a means of improving its productivity and ongoing viability and competitiveness. Our reconsideration of the Association’s application, in the light of the decision in CSR Limited v CSR & Holcim Staff Association40, has therefore lead us to conclude that the ongoing viability or competitiveness of any enterprise carried on by the persons covered by the CSR Award 2000 is likely to be inhibited by the absence of such collective bargaining, as a source of opportunity in respect of those matters is precluded.

[63] The likely impact on the persons covered by the CSR Award 2000 of a decision not to make the proposed CSR Award 2015 would, in the short run, be:

[64] However, given this impact if the proposed CSR Award 2015 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 CSR and the Association to persuade us that this is not likely were unconvincing, 41 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 CSR Award 2015 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 any enterprise carried on by them would not be inhibited or detrimentally impacted.

[65] We think the likely impact on the persons covered by the relevant modern awards of a decision to not make the proposed CSR Award 2015 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 the likely impact on the ongoing viability or competitiveness of any enterprise carried on by them being no different to that before the making of the modern enterprise award.

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

[66] We accept that CSR and the Association support the making of a modern enterprise award. A ballot conducted by them also shows that of the 1717 employees covered by the CSR Award 2000, 753 employees support the Association’s application to modernise the CSR Award 2000, 18 employees are against it and 42 employees are undecided.

[67] CSR and the Association also submitted that since 1 July 2015 a large number of employees of CSR, currently employed under the CSR Award 2000, have expressed their concerns about the loss of their safety net entitlements under the CSR Award 2000.

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

[68] There are no other relevant matters prescribed by regulations.

Modern awards objective - Item 6 of schedule 6

[69] In the proceedings leading to the 2014 decision, no party provided submissions on the factors in s.134 of the FW Act. However, subsequent to the Full Federal Court decision in CSR Limited v CSR & Holcim Staff Association, in respect of item 6 of schedule 6 of the TPCA Act, CSR and the Association submitted that s.134(1) of the FW Act requires the FWC to have regard to each of the factors set out in ss.134(1)(a) to (h). They submitted ss.134(1)(c), (e), (g) and (h) are neutral factors in respect of the Association’s application and went on to make submissions on the other factors.

[70] Item 6(1) of schedule 6 of the TPCA Act provides, as we have set out, that the modern awards objective applies to the FWC making a modern enterprise award under Division 2 of schedule 6.

[71] Item 6(2) of schedule 6 of the TPCA Act provides that in applying the modern awards 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 enterprise.

[72] We have previously considered enterprise specific terms in the CSR Award 2000. We recognise that the proposed CSR Award 2015 has some terms and conditions tailored to reflect employment arrangements that have been developed in relation to CSR, some terms and conditions tailored to reflect those in modern awards, and some terms and conditions tailored to reflect desired new arrangements for CSR.

[73] With that in mind, we turn to deal with the provisions of s.134(1) of the FW Act in the light of item 6 of schedule 6 of the TPCA Act.

Relative living standards and the needs of the low paid (s.134(1)(a))

[74] In respect of s.134(1)(a) of the FW Act, CSR and the Association submitted that:

[75] In support of this submission CSR and the Association relied on the minimum base salaries for and typical roles covered by the classification levels under the proposed CSR Award 2015 and the minimum annual wage rates in the following modern awards:

[76] The classification Level 1 minimum base salary under the proposed CSR Award 2015 is commensurate with that for classification Level 3 under the Clerks - Private Sector Award 2010 and about $8,000 per annum higher than the lowest annual wage rate in the other modern awards which are relevant.

[77] The classification Level 2 minimum base salary under the proposed CSR Award 2015 is the same as that for the highest incremental salary point at classification Level 1 of the Professional Employees Award 2010 and $12,000 per annum higher than the lowest annual wage rate for what are said to be commensurate classification levels in the other modern awards which are relevant.

[78] The classification Levels 3 to 5 base salaries under the proposed CSR Award 2015 are the same as the minimum annual wage rate for classification Levels 2 to 4 of the Professional Employees Award 2010 and higher than the minimum annual wage rate for classification Level 5 of the Clerks - Private Sector Award 2010. However, we are not satisfied as to the comparability of classification Levels 3 to 5 under the proposed CSR Award 2015 with classification Levels 2 to 4 of the Professional Employees Award 2010.

[79] For example, classification Level 2 of the Professional Employees Award 2010 is said to be comparable to classification Level 3 of the proposed CSR Award 2015, with both being said to cover an “Engineering Manager”. 42 However, classification Level 2 of the Professional Employees Award 2010 covers an experienced professional who “plans and conducts professional work without detailed supervision but with guidance on unusual features and is usually engaged on more responsible assignments requiring substantial professional experience.”43 Whereas classification Level 3 of the proposed CSR Award 2015 covers an Engineering Manager.

[80] It is classification Level 3 of the Professional Employees Award 2010 which covers an employee who “outlines and assigns work, reviews it for technical accuracy and adequacy, and may plan, direct, coordinate and supervise the work of other professional and technical staff.” 44 Further, it is classification Level 4 of the Professional Employees Award 2010 which covers an employee who “supervises a group or groups including professionals and other staff, or exercises authority and technical control over a group of professional staff.”45

[81] The minimum base salary for classification Level 3 under the proposed CSR Award 2015 is $43,875. The minimum annual wage rate for classification Levels 3 and 4 under the Professional Employees Award 2010 is $58,879 and $66,407 respectively.

[82] Further, the breadth of the classification description for each classification level in the proposed CSR Award 2015 together with the actual base salary or total fixed remuneration paid to some employees within each classification level suggests that for those employees the proposed annual base salary for each classification level in the proposed CSR Award 2015 is considerably less than it should be.

[83] For example, classification Level 5 in the proposed CSR Award covers a “General Manager Finance” at Job Grade 13 with a proposed annual base salary of $66,407. However, classification Level 5 in the proposed CSR Award also covers the “CFO – CSR Limited” at Job Grade 19 with a proposed annual base salary of $66,407. The actual total fixed remuneration of the “CFO-CSR Limited” is undisclosed but is presumably above $159,591.

[84] Nonetheless, on balance, taking into account all of the considerations in respect of s.134(1)(a) of the FW Act, including those to which we have referred in respect of item 6(2) of schedule 6 of the TPCA Act about applying the modern awards objective, we find that “modern awards – including in the present context established by item 6 of the schedule [6 of the TPCA Act] modern enterprise awards [including the proposed CSR Award 2015] – together with the national employment standards,” would “‘provide a fair and relevant minimum safety net of terms and conditions’ taking into account” 46 relative living standards and the needs of the low paid.

The need to encourage collective bargaining (s.134(1)(b))

[85] In respect of s.134(1)(b) of the FW Act, CSR and the Association submitted that:

[86] We also consider it is relevant that the existence of the CSR Award 2000 has not encouraged collective bargaining within the meaning of the FW Act. In that circumstance, we think the proposed CSR Award 2015, as part of a fair and relevant safety net of terms and conditions, is unlikely to encourage collective bargaining.

[87] Taking into account all of the considerations in respect of s.134(1)(c) of the FW Act, including those to which we have referred in respect of item 6(2) of schedule 6 of the TPCA Act about applying the modern awards objective, we are strongly of the view and find that “modern awards – including in the present context established by item 6 of the schedule [6 of the TPCA Act] modern enterprise awards [including the proposed CSR Award 2015] – together with the national employment standards”, would not “‘provide a fair and relevant minimum safety net of terms and conditions’ taking into account” 47 the need to encourage collective bargaining.

The need to promote flexible modern work practices and the efficient and productive performance of work (s.134(1)(d)); and

The need to provide additional remuneration for:

[88] CSR and the Association considered ss.134(1)(d) and 134(1)(da) of the FW Act together.

[89] In their submissions on ss.134(1)(d) and 134(1)(da), CSR and the Association referred to the significant number of CSR employees covered by the CSR Award 2000 that would not be covered by a modern award if the CSR Award 2000 was terminated without the proposed CSR Award 2015 being made and the deleterious effect on their safety net.

[90] With respect to s.134(1)(d) of the FW Act, we also recognise the terms of the proposed CSR Award 2015 are relevant, including its award flexibility terms. Although, the award flexibility terms have limits. We are conscious that making the proposed CSR Award 2015 would largely maintain the status quo and is likely to result in no collective bargaining for the making of an enterprise agreement or enterprise agreements between CSR and those covered by the CSR Award 2000, with the loss of an attendant opportunity to promote flexible modern work practices and the efficient and productive performance of work. Not making the proposed CSR Award 2015 is likely to quickly lead to collective bargaining for such an enterprise agreement or enterprise agreements, with the attendant opportunity to promote such matters.

[91] Taking into account all of the considerations in respect of s.134(1)(d) of the FW Act, including those to which we have referred in respect of item 6(2) of schedule 6 of the TPCA Act about applying the modern awards objective, we find that “modern awards – including in the present context established by item 6 of the schedule [6 of the TPCA Act] modern enterprise awards [including the proposed CSR Award 2015] – together with the national employment standards” would not “‘provide a fair and relevant minimum safety net of terms and conditions’ taking into account” 48 the need to promote flexible modern work practices and the efficient and productive performance of work.

[92] In considering s.134(1)(da) of the FW Act, we also consider it is relevant that:

[93] Taking into account all of the considerations in respect of s.134(1)(da) of the FW Act, including those to which we have referred in respect of item 6(2) of schedule 6 of the TPCA Act about applying the modern awards objective, we find that “modern awards – including in the present context established by item 6 of the schedule [6 of the TPCA Act] modern enterprise awards [including the proposed CSR Award 2015] – together with the national employment standards”, would not “‘provide a fair and relevant minimum safety net of terms and conditions’ taking into account” 49 the matters in s.134(1)(da) of the FW Act.

The likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden (s.134(1)(f))

[94] In their submissions on s.134(1)(f) of the FW Act, CSR and the Association submitted there would be a negative impact on the business of CSR if the proposed CSR Award 2015 is not made, essentially for the reasons they gave in respect of items 4(5)(e) and (f) of schedule 6 of the TPCA Act. They said that, in particular, the flat classification structure presently facilitates innovation and assists employee development and advancement by giving considerable flexibility to deploy employees across the different businesses operated by CSR.

[95] However, for the reasons we gave earlier, we think that if the proposed CSR Award 2015 is not made it is likely there would quickly be collective bargaining between CSR and their salaried employees and their bargaining representatives for the making of an enterprise agreement or enterprise agreements. Such an enterprise agreement or enterprise agreements could cover the matters CSR submits would otherwise negatively impact on their business if the proposed CSR Award 2015 is not made. In addition, for the reasons we gave earlier, we think that if the proposed CSR Award 2015 is made it is likely there would be no collective bargaining for the making of an enterprise agreement or enterprise agreements between CSR and the employees covered by the CSR Award 2000. In the result, we think it is likely CSR’s productivity would be inhibited from the loss of an attendant opportunity in respect of that matter.

[96] CSR and the Association also submitted that, in so far as s.134(1)(f) of the FW Act is addressed to business more generally, that part of the consideration is neutral.

[97] However, we consider it is relevant in respect of s.134(1)(f) of the FW Act that making the proposed CSR Award 2015 is likely to result in CSR having a safety net comprising a modern enterprise award whereas its competitors would not. The likely impact of this on business more generally, including on productivity, employment costs and the regulatory burden, being no different to that before the making of the modern enterprise award.

[98] Taking into account all of the considerations in respect of s.134(1)(f) of the FW Act, including those to which we have referred in respect of item 6(2) of schedule 6 of the TPCA Act about applying the modern awards objective, we find that “modern awards – including in the present context established by item 6 of the schedule [6 of the TPCA Act] modern enterprise awards [including the proposed CSR Award 2015] – together with the national employment standards”, would not “‘provide a fair and relevant minimum safety net of terms and conditions’ taking into account” 50 the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden.

The likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy (s134(1)(h))

[99] As we have indicated, CSR and the Association submitted that s.134(1)(h) of the FW Act is a neutral factor in respect of s.134(1) of the FW Act and item 6 of schedule 6 of the TPCA Act.

[100] We do not accept that is so. As they submitted in respect of s.284(1)(a) of the FW Act, CSR is not an insignificant employer in the context of Australian industry and operates throughout the country. Making the proposed CSR Award 2015 is likely to result in no collective bargaining for the making of an enterprise agreement or enterprise agreements between CSR and those covered by the CSR Award 2000. In the result, it is likely CSR’s sustainability, performance and competiveness would be inhibited from the loss of an attendant opportunity in respect of those matters. This, in turn, is likely to have a detrimental impact on the sustainability, performance and competitiveness of the national economy.

[101] Taking into account all of the considerations in respect of s.134(1)(h) of the FW Act, including those to which we have referred in respect of item 6(2) of schedule 6 of the TPCA Act about applying the modern awards objective, we find that “modern awards – including in the present context established by item 6 of the schedule [6 of the TPCA Act] modern enterprise awards [including the proposed CSR Award 2015] – together with the national employment standards”, would not ‘“provide a fair and relevant minimum safety net of terms and conditions’ taking into account” 51 the matters in s.134(1)(h) of the FW Act.

The need to promote social inclusion through increased workforce participation (s.134(1)(c))

The principle of equal remuneration for work of equal or comparable value (s.134(1)(e))

The need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards (s.134(1)(g))

[102] We accept CSR’s submissions that ss.134(1)(c), (e) and (g) of the FW Act are neutral factors in respect of s.134(1) of the FW Act and item 6 of schedule 6 of the TPCA Act and conclude they are such neutral factors in this case.

[103] As a result, taking into account those submissions and the considerations to which we have referred in respect of item 6(2) of schedule 6 of the TPCA Act about applying the modern awards objective, we find that “modern awards – including in the present context established by item 6 of the schedule [6 of the TPCA Act] modern enterprise awards [including the proposed CSR Award 2015] – together with the national employment standards”, would provide “‘a fair and relevant minimum safety net of terms and conditions’ taking into account” 52 the factors in ss.134(1)(c), (e) and (g).

Conclusion on s.134(1)

[104] Having regard to our above findings on each of the factors in s.134(1) of the FW Act in the context of item 6 of schedule 6 of the TPCA Act, including the considerations that led to those findings, on balance we conclude that if we made the proposed CSR Award 2015, then we would not be ensuring that “modern awards – including in the present context established by item 6 of the schedule [6 of the TPCA Act] modern enterprise awards [including the proposed CSR Award 2015] – together with the national employment standards, ‘provide a fair and relevant minimum safety net of terms and conditions’ taking into account” 53 the factors in s.134(1) of the FW Act. In this case, our findings on the factors in ss.134(1)(b), (d), (da), (f) and (h) outweigh our findings on the other factors.

Minimum wages objective - Item 6 of schedule 6

[105] CSR and the Association submitted that, in this case, the minimum wages objective has less significance than the factors in item 4(5) of schedule 6 of the TPCA Act and s.134(1) of the FW Act. However, they said that to the extent the minimum wages objective is relevant in this case it is supportive.

[106] Item 6(1) of schedule 6 of the TPCA Act provides, as we have set out, that the minimum wages objective applies to the FWC making a modern enterprise award under Division 2 of schedule 6.

[107] Item 6(2) of schedule 6 of the TPCA Act provides that in applying 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 enterprise.

[108] In our view, the minimum base salaries and associated classification structure in the proposed CSR Award 2015 cannot be regarded as tailored to reflect employment arrangements that have been developed in relation to CSR.

[109] The classification structure in the proposed CSR Award 2015 does not reflect that in the CSR Award 2000. Further, over the course of these proceedings, CSR and the Association have proposed different sets of minimum base salaries for the classification structure in their proposed modern enterprise award. Initially basing their set of minimum base salaries along the lines of the minimum actually being paid to the employees covered by the CSR Award 2000 or who would be covered by the proposed CSR Award 2015. Then, subsequently, proposing a set of minimum base salaries based on the minimum wages in what they considered to be a comparable classification in a modern award that would cover some of the employees covered by the CSR Award 2000 but for that enterprise instrument. As we have indicated, however, we are not satisfied that classification Levels 3 to 5 of the proposed CSR Award 2015 are comparable with classification Levels 2 to 4 of the Professional Employees Award 2010 and, therefore, that the minimum annual salary at classification Levels 2 to 4 of the Professional Employees Award 2010 is appropriate for classification Levels 3 to 5 of the proposed CSR Award 2015.

[110] We recognise that the casual loading in the proposed CSR Award 2015 is tailored to reflect employment arrangements that have been developed in relation to CSR.

[111] With that in mind, we turn then to deal with the provisions of s.284(1) of the FW Act in the light of item 6 of schedule 6 of the TPCA Act.

The performance and competiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth (s.284(1)(a))

[112] In respect of s.284(1)(a) of the FW Act, CSR and the Association submitted that s.284(1)(a) substantially overlaps with ss.134(1)(f) and (h) of the FW Act. Accordingly, CSR and the Association relied on their submissions in respect of s.134(1)(f) with necessary changes being made. They had submitted s.134(1)(h) is a neutral factor. They added that CSR is not an insignificant employer in the context of Australian industry and operates throughout the country. As a result they said that the positive effects that would be facilitated by making the proposed modern enterprise award would contribute to the achievement of s.284(1)(a) of the FW Act.

[113] However, as we have indicated, we think that if the proposed CSR Award 2015 is not made it is likely there would quickly be collective bargaining between CSR and their salaried employees and their bargaining representatives for the making of an enterprise agreement or enterprise agreements. The attempts of CSR and the Association to persuade us that this is not likely were unconvincing, 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 CSR Award 2015 and the immediate impetus afforded by a modern enterprise award not being made, including the content of the modern awards that would then apply. Such an enterprise agreement or enterprise agreements could, amongst other things, cover the classification structure in the proposed CSR Award 2015.

[114] Moreover, as we have also indicated, making the proposed CSR Award 2015 is likely to result in CSR, a not insignificant employer, having a different safety net to that of its competitors, with the minimum wages for some roles within the classification structure in the proposed CSR Award 2015 being considerably more or less than the minimum wages for similar roles in a modern award or considerably less than they should be as award minimum wages.

[115] The minimum wages in the modern awards have been set taking into account the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth. Further, the proposed annual base salary for each classification level in the proposed CSR Award 2015 bears no resemblance to that in the CSR Award 2000, even taking into account the lack of variation to the rates of salary in the CSR Award 2000 since 2005, and is often less than the actual base salary or total fixed remuneration paid at each classification level in the proposed CSR Award 2015.

[116] Taking into account all of the considerations in respect of s.284(1)(a), including those to which we have referred in respect of item 6(2) of schedule 6 of the TPCA Act about applying the minimum wages objective, we are strongly of the view and find that making a modern enterprise award with the minimum wages and attendant classification structure in the proposed CSR Award 2015 would not establish and maintain a safety net of fair minimum wages, taking into account the performance and competitiveness of the national economy, including productivity, business competitiveness and viability, inflation and employment growth.

Promoting social inclusion through increased workforce participation (s.284(1)(b))

[117] In their submissions on s.284(1)(b) of the FW Act, CSR and the Association submitted that to the extent the classification structure in the CSR Award 2000 and the proposed CSR Award 2015 assists employee development and advancement and gives considerable flexibility to deploy employees across different businesses, the classification structure encourages increased workforce participation.

[118] In their submissions in respect of a similarly worded factor in s.134(1)(c) of the FW Act, CSR and the Association submitted that this was a neutral factor. We concurred in the circumstances of this case.

[119] The considerations relevant to s.284(1)(b) of the FW Act, including those to which we have referred in respect of item 6(2) of schedule 6 of the TPCA Act about applying the minimum wages objective and the rather tentative submissions made by CSR and the Association in respect of s.284(1)(b) of the FW Act, are not sufficient to persuade us that in this case s.284(1)(b) is also other than neutral in respect of s.284(1) of the FW Act and item 6 of schedule 6 of the TPCA Act. We find that making a modern enterprise award with the minimum wages and attendant classification structure in the proposed CSR Award 2015 would establish and maintain a safety net of fair minimum wages taking into account the factor in s.284(1)(b) of the FW Act.

Relative living standards and the needs of the low paid (s.284(1)(c))

[120] In respect of s.284(1)(c) of the FW Act, CSR and the Association submitted that it overlaps with s.134(1)(a) of the FW Act. Accordingly, CSR and the Association relied on their submissions in respect of s.134(1)(a) with necessary changes being made.

[121] In respect of a similarly worded factor in s.134(1)(a) of the FW Act we concluded that “modern awards – including in the present context established by item 6 of the schedule [6 of the TPCA Act] modern enterprise awards [including the proposed CSR Award 2015] – together with the national employment standards”, would “‘provide a fair and relevant minimum safety net of terms and conditions’ taking into account” relative living standards and the needs of the low paid.

[122] For similar reasons, including those to which we have referred in respect of item 6(2) of schedule 6 of the TPCA Act about applying the minimum wages objective, we find that making a modern enterprise award with the minimum wages and attendant classification structure in the proposed CSR Award 2015 would establish and maintain a safety net of fair minimum wages, taking into account relative living standards and the needs of the low paid.

The principle of equal remuneration for work of equal or comparable value (s.284(1)(d))

[123] CSR and the Association submitted in respect of s.284(1)(d) of the FW Act that in the CSR Award 2000 and the proposed CSR Award 2015 there is no distinction between the rates and structures on any discriminatory basis.

[124] In their submissions in respect of a similarly worded factor in s.134(1)(e) of the FW Act, CSR and the Association submitted that this was a neutral factor. We concurred in the circumstances of this case.

[125] The considerations relevant to s.284(1)(d) of the FW Act, including those to which we have referred in respect of item 6(2) of schedule 6 of the TPCA Act about applying the minimum wages objective and the submissions made by CSR and the Association in respect of s.284(1)(d) of the FW Act, are not sufficient to persuade us that in this case s.284(1)(d) is also other than neutral in respect of s.284(1) of the FW Act and item 6 of schedule 6 of the TPCA Act. We find that making a modern enterprise award with the minimum wages and attendant classification structure in the proposed CSR Award 2015 would establish and maintain a safety net of fair minimum wages taking into account the factor in s.284(1)(d) of the FW Act.

Providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability (s.284(1)(e))

[126] CSR and the Association submitted in respect of s.284(1)(e) of the FW Act that the junior rates in the proposed CSR Award 2015 “are favourably compared with other potentially applicable modern awards, and Award Free Employees, in Annexure 5 of the [11] September 2015 Submissions [of CSR and the Association].” 54 They also submitted that while the proposed CSR Award 2015 does not specifically address employees to whom training arrangements apply and employees with a disability, they had no objections to it including such provisions.

[127] We accept CSR and the Association are prepared to include relevant provisions regarding training arrangements and disability in a modern enterprise award covering them.

[128] We also assume the junior rates in the proposed CSR Award 2015 would, in effect, mostly apply at the lower levels of its classification structure.

[129] Taking into account all of the considerations in respect of s.284(1)(e), including those to which we have referred in respect of item 6(2) of schedule 6 of the TPCA Act about applying the minimum wages objective, we find that making a modern enterprise award with the minimum wages and attendant classification structure in the proposed CSR Award 2015 would establish and maintain a safety net of fair minimum wages, taking into account providing a comprehensive range of fair minimum wages to junior employees, employees to whom training arrangements apply and employees with a disability.

Conclusion on s.284(1)

[130] Having regard to our conclusions on each of the factors in s.284(1) of the FW Act in the context of item 6 of schedule 6 of the TPCA Act, including the considerations that led to those conclusions, on balance we conclude that making a modern enterprise award with the minimum wages and attendant classification structure in the proposed CSR Award 2015 would not establish and maintain a safety net of fair minimum wages, taking into account the factors in s.284(1) of the FW Act. In this case, our finding on the factor in s.284(1)(a) outweighs our findings on the other factors.

Discretion

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

Conclusion

[132] We are not persuaded to make a modern enterprise award or the proposed CSR Award 2015 to replace the CSR Award 2000.

[133] 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.

[134] Not making the modern enterprise award would thereby overcome the historical inertia with respect to such collective bargaining, with attendant opportunity from the collective bargaining. It is likely the ongoing viability or competitiveness of any enterprise carried on by them would not be inhibited or detrimentally impacted.

[135] 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 collective bargaining for the making of an enterprise agreement or enterprise agreements. The ongoing viability or competitiveness of any enterprise carried on by them is likely to be inhibited by the absence of such collective bargaining.

[136] The likely impact on the persons covered by the relevant modern awards of a decision to not make such a 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 such a modern enterprise award would largely be the status quo, with the likely impact on the ongoing viability or competitiveness of any enterprise carried on by them being no different to that before the making of the modern enterprise award.

[137] 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. However, a substantial number of those covered by the CSR Award 2000 would be award free but for the CSR Award 2000. 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 who would be covered by the proposed CSR Award 2015 and, consequently, less and more beneficial for CSR than those in the CSR Award 2000 and the proposed CSR Award 2015.

[138] 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 and the proposed CSR Award 2015. However, the content of the subject matters often varies from that in the CSR Award 2000 and the proposed CSR Award 2015, with the content in the CSR Award 2000 and the proposed CSR Award 2015 in some instances being more beneficial and in other instances being less beneficial for the salaried employees covered by the CSR Award 2000 and who would be covered by the proposed CSR Award 2015 and, consequently, less and more beneficial for CSR.

[139] The CSR Award 2000 and the proposed CSR Award 2015 contain 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 CSR and the Association 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.

[140] 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.

[141] Clearly CSR and the Association support the making of the proposed CSR Award 2015 to replace the CSR Award 2000. Further, 753 employees of the 1717 employees covered by the CSR Award 2000 clearly support the Association’s application to modernise the CSR Award 2000.

[142] 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.

[143] We have earlier considered, in detail, the matters in item 6 of schedule 6 of the TPCA Act.

[144] We concluded that if we made the proposed CSR Award 2015 then we would not be ensuring that modern awards, including in the present context established by item 6 of the schedule 6 of the TPCA Act modern enterprise awards, including the proposed CSR Award 2015, together with the NES, provide a fair and relevant minimum safety net of terms and conditions taking into account the factors in s.134(1) of the FW Act.

[145] We also concluded that making a modern enterprise award with the minimum wages and attendant classification structure in the proposed CSR Award 2015 would not establish and maintain a safety net of fair minimum wages, taking into account the factors in s.284(1) of the FW Act.

[146] In addition, we are not persuaded by the discretionary matters submitted by CSR and the Association 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, CSR’s and the Association’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.

[147] 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.

[148] For the above reasons therefore, we have decided not to make a modern enterprise award, including the proposed CSR Award 2015, to replace the CSR Award 2000.

[149] CSR and the Association submitted that “the objects [of the FW Act] have limited perhaps no, relevance” 55 to schedule 6 of the TPCA Act. Nonetheless, they said that “to the extent that the objects of the FW Act have significance, … the object in s 3(b) of the FW Act is strongly supportive” with the “other objects” being of “considerably less (if any) relevance”.56

[150] To the extent the object of the FW Act is relevant, we conclude that it does not alter our decision not to make a modern enterprise award, including the proposed CSR Award 2015, to replace the CSR Award 2000. Contrary to the submissions of CSR and the Association, we think s.3(b) of the FW Act does not support the application before us because, as we have indicated, granting the application would not “provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by … ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders”. 57 The “other objects” of “considerably less (if any) relevance”, as CSR and the Association put it, also do not support the application. Not making the modern enterprise award is not contrary to the object of the FW Act.

[151] 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:

N Keats, solicitor, for the CSR & Holcim Staff Association.

F Parry of Queens Counsel and B Jellis of Counsel for CSR Limited.

Hearing details:

2015.

Melbourne.

September 22.

Final written submissions:

13 October, 2015.

 1   CSR & Holcim Staff Association [2014] FWCFB 7351.

 2   AP777812.

 3   [2015] FCAFC 95.

 4   (2012) 214 IR 434.

 5   [2015] FCAFC 95.

 6   Ibid at paragraphs 16 to 18.

 7   Updated Statement of Agreed Facts dated 11 September 2015 in EM2013/36.

 8   MA000038.

 9   No. 5944, (1944) 51 CAR 885.

 10   MA000002.

 11   MA000084

 12   MA000029.

 13   MA000010

 14   MA000065.

 15   MA000038.

 16   Joint written submissions of the parties dated 17 October 2014 in matter EM2013/36 at paragraph 20.

 17   Written submission of the parties dated 11 September 2015 at paragraph 45.

 18   No 5944, (1944) 51 CAR 885.

 19   Ibid.

 20   Ibid.

 21   Print C4761, (1976) 174 CAR 768.

 22   Print Q9684.

 23   Print K2636.

 24   Print P3598.

 25   Print K2636.

 26   Print G6911.

 27   Print C4761, (1976) 174 CAR 768.

 28   Print A8228, (1961) 97 CAR 195.

 29   Print A6067, (1958) 88 CAR 648.

 30   Print A3837, (1954) 78 CAR 719.

 31   MA000065.

 32  Submissions of CSR Limited dated 11 September 2015.

 33   Written response from CSR to further directions made on 14 September 2015, at Appendix F and Written response from CSR to further matters arising out of hearing on 22 September 2015 at paragraph 29.

 34   Levels 1 to 3.

 35   Levels 4 and 5.

 36   Written response from CSR to further matters arising out of hearing on 22 September 2015 at Appendix F.

 37   See, for example, Joint submissions of the parties dated 29 July 2014 at paragraphs 5 to 6; Further statement of agreed facts dated 30 September 2014; Further joint submissions of the parties dated 17 October 2014; Submissions of CSR Limited dated 11 September 2015 at paragraphs 57 to 59; and Updated statement of agreed facts dated 11 September 2015 at paragraphs 19 to 26.

 38   Ibid.

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

 40   [2015] FCAFC 95.

 41   See, for example, transcript in EM2013/36 at PN 100-108, 182-183, 188-189, 193-197, 211 and 227-231.

 42   Submissions of CSR Limited dated 11 September 2015 and Updated statement of agreed facts dated 11 September 2015 at Annexure 4.

 43   Professional Employees Award 2010, Schedule B, clause B.1.7.

 44   Professional Employees Award 2010, Schedule B, clause B.1.9(e).

 45   Professional Employees Award 2010, Schedule B, clause B.1.11(e).

 46   CSR Limited v CSR & Holcim Staff Association [2015] FCAFC 95 at paragraph 16.

 47   Ibid.

 48   Ibid.

 49   Ibid.

 50   Ibid.

 51   Ibid.

 52   Ibid.

 53   Ibid.

 54   Response from CSR to further matters arising out of hearing on 22 September 2015 at paragraph 18(e).

 55   Ibid at paragraph 4.

 56   Ibid at paragraph 11.

 57   Fair Work Act 2009 (Cth), s.3(b).

Printed by authority of the Commonwealth Government Printer

<Price code G, AP777812  PR572045 >