ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – s.739 Fair Work Act 2009 – application to deal with a dispute arising under the CBH Kwinana Plant Operators Collective Union Agreement 2013 (the Agreement) – respondent decided to engage 11 additional casual employees to work as Plant Operators – applicant contended respondent was required to but did not comply with clause 34 Consultation about Change (Consultation clause) of Agreement before engaging casual employees – respondent argued Consultation clause did not apply in the circumstances – issue whether Consultation clause in Agreement applied in the particular circumstances and whether there was an obligation to consult – applicant contended engaging additional casual employees was a change in the organisation of labour or to the structure of the workforce and was a ‘significant effect’ – further argued change would result in diminution of opportunities to work overtime for some existing employees – respondent contended applicant’s interpretation of Consultation clause was strained, oversimplified and pedantic – argued ‘change’ meant an act or process through which something becomes different – noted it had a casual pool of employees available to perform work on a casual basis and had a long history of engaging casual employees during busy periods – argued therefore engagement of casual employees was not a ‘change’ through which its business became different but a continuation of a system that pre-dated the Agreement – construction of Consultation clause – Commission held not all likely changes to composition or size of a workforce will be likely to have a significant effect – held if the clause was to mean obligation to consult applied when there was a change that had any effect on employees, the word ‘significant’ would not have been used – use of ‘significant’ twice in clause cannot be ignored – onus on applicant to provide evidence to support its application – Commission found no evidence that between when new casual employees began work at end of November 2016 and February 2017 there had been any actual effect on existing employees let alone evidence of a significant effect – found no evidence of diminution of opportunities for existing employees – Commission found on the evidence engaging additional casual employees was not likely to have a significant effect on existing employees – no obligation for respondent to notify employees or hold discussions under Consultation clause – respondent not required to comply with Consultation clause prior to engaging additional casual employees – dispute determined. The Maritime Union of Australia v Co-Operative Bulk Handling Limited t/a CBH Group
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