CS Energy Limited Trading AS Cs Energy [2025] FWCA 1471 (2 May 2025)

s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Application for variation of the Callide Power Station Enterprise Agreement 2024

[1] CS Energy Limited Trading AS Cs Energy (the Applicant) has applied to vary the Callide Power Station Enterprise Agreement 2024 (the Agreement) under s 217 of the Fair Work Act 2009 (the Act) to remove ambiguity or uncertainty.

[2] The Agreement was approved by the Fair Work Commission (the Commission) on 13 December 2024 and came into operation on 20 December 2024. Its nominal expiry date was 29 February 2028.

[3] The Association of Professional Engineers, Scientists and Managers, Australia (APESMA); the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU),the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU); the Mining and Energy Union (MEU); and the Australian Municipal, Administrative, Clerical and Services Union (ASU) are parties bound under clause 1.2 of the Agreement.

[4] The MEU, ASU, ETU, APESMA and AMWU, each of whom are covered by the agreement, were provided a copy of the application and have confirmed they have no objections to the proposed variations.

[5] The parties consented to the matter being dealt with on the papers.

[6] The Applicant is seeking for the Commission to vary the Agreement as follows:

To vary clause 5.1.5(1)(b) and (c) such that it reads as follows:

"(1) The following categories of employees will be offered a flexible hours of work arrangement as outlined in this clause:

(b) Professional employees (except those within the engineering discipline) at

(d) Other employees as defined in Other Employees."

To rectify the list of reference errors to the correct reference as fully detailed in Attachment 1 to the Application; and

To vary clause 4.1.1(10) and (11) such that it reads as follows:

(10) "The minimum shift rate applicable for an employee working on the 24-hour 7 day unit operations roster is Operations Grade 6.0. Employees who relieve onto this roster will be paid this rate as a minimum while working on the roster."

(11) "The minimum shift rate applicable for an employee working on the 24-hour 7 day coal operations roster, is Operations Grade 5.0. Employees who relieve onto this roster will be paid this rate as a minimum while working on the roster."

by removal of the footnote at the bottom of the page after Attachment 12 (page 105) as follows:

"Availability/call out allowance as per table 3.9(b) of Part A of this Agreement

^ Ordinary hour of work for that day refers to ordinary hours for a standard attendance.

~ If called in prior to 7 am Tuesday (where the Monday is the Public Holiday) minimum 4 hour Overtime would apply."

[7] For completeness, I have reproduced in Annexure A to this decision a table showing the current clause, and the variation sought.

[8] Clause 5.1.5 provides the categories of flexible hours of work arrangements offered to employees as follows:

(b) Professional employees (except those within the engineering discipline) at Professional Grade 10 Level 1 and above

(c) Professional employees within the engineering discipline at Professional Grade 10, Level 2 and above. (emphasis added)

[9] The Applicant says the eligibility requirement is repeated in the Agreement but is materially different within Attachment 3 "Day Work Employees - Aggregated Salary Rate" whereby the opposite is provided as follows in line with the below:

Professional employees (except those within the engineering discipline) at Professional Grade 10 Level 2 and above - essentially non engineering; and

Professional employees within the engineering discipline at Professional Grade 10, Level 1 and above. (emphasis added)

[10] Therefore, the relevant provision within clause 5.1.5(b) and (c) of the Agreement are materially different to those set out in Attachment 3, creating ambiguity and uncertainty for some employees covered by the Agreement.

[11] The Applicant submits Attachment 3 accurately reflects the agreement reached between the bargaining representatives and believe that the ambiguity has resulted from a simple typographical error when drafting clause 5.1.5. The variation sought seeks to remove the ambiguity by ensuring clause 5.1.5 reflect the same provisions as are accurately reflected in Attachment 3.

[12] Attachment 1 to the Application lists a number of referencing errors that the Applicant says need to be rectified.

[13] The Applicant submits that the word version of the Agreement that was approved by employees contained the correct references. A copy of this document was attached as Attachment 2 to the application.

[14] It is suggested that at some stage following the vote of eligible employees, the document was corrupted, resulting in the final PDF version which contained a number of incorrect references. This incorrect version was filed and approved by the Commission.

[15] The Applicant submits that the amendments sought will ensure the agreement accurately reflect the agreement that was approved by employees and will cure any ambiguity or uncertainty.

Clause 4.1.1(10) and (11) and Footnotes on Page 103

[16] When reviewing the Agreement for referencing errors as set out in Attachment 1, the parties noted:

That clause 4.1.1(10) referred to grade 6 and clause 4.1.1(11) referred to Grade 5. To avoid uncertainty, these should be amended to read Grade 6.0 and Grade 5.0 so that there can be no mistake that it is these grades as opposed to Grade 6.1 or Grade 5.1 that apply. (emphasis added)

That the footnote on its own page 105 of Attachment 3 and detailed as below, does not relate to the above Attachment 12 and as such should be removed in order that it does not create confusion.

[17] Section 217 of the Act provides:

Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.

[18] Section 217 of the Act allows the Commission to vary an enterprise agreement to remove an ambiguity or uncertainty. The Commission must first identify whether there is any ambiguity or uncertainty in the agreement.[1] This is a jurisdictional prerequisite to the exercise of the discretion to vary the agreement. If ambiguity or uncertainty is identified, the Commission must then consider whether to exercise its discretion to vary the agreement. In exercising its discretion, the Commission may remove ambiguity or uncertainty, but is not to give effect to a new and substantive change to the agreement.[2]

[19] Determining whether there is ambiguity or uncertainty is a different task to interpreting enterprise agreements.[3] In ascertaining ambiguity or uncertainty, the Commission should take a broad approach and is not constrained by the principles of agreement interpretation.[4] In undertaking any of its functions, including in finding ambiguity or uncertainty, s 578 of the Act requires the Commission to take account of equity, good conscience and the merits of the matter and the objects of the Act including the particular part of the Act.

[20] I am satisfied that there is an ambiguity in the clauses referred to. While the words of the clauses have a reasonably clear meaning and could be interpreted, the ambiguity arises regarding the inconsistencies noted above.

Does the variation remove that ambiguity or uncertainty?

[21] I am of the view that the variation proposed removes any ambiguity. I have given

consideration to the fact that the application, is supported or not contested by the Unions, and the application demonstrates a common intention with how the ambiguity should be removed.[5]

[22] I accept the submissions made in the application that the agreement as presently drafted includes unintentional inconsistencies that have created ambiguity. On that basis, the jurisdictional prerequisite is satisfied. I am satisfied that the proposed amendment will remove the ambiguity or uncertainty. Accordingly, I will exercise my discretion to vary the Agreement as requested by the Applicant noting the parties jointly support the variation.

[23] The application notes oversights during the drafting process of this Agreement have resulted in ambiguity. There is common intention and joint support for the variation to operate from the date of the Agreement's approval. I am satisfied that it is appropriate in this matter to retrospectively vary the Agreement and that the Act allows me to do so.[6] The consolidated version of the Agreement, as varied, is attached to this decision.

[24] In accordance with s 217(2) of the Act, the variation operates from 13 December 2024.

[25] An order will issue separately.

5.1.5. Flexible hours of work arrangement -Management, Professional and Other Employees

"(1) The following categories of employees will be offered a flexible hours of work arrangement as outlined in this clause:

(b) Professional employees (except those within the engineering discipline) at Professional Grade 10 Level 1 and above

(d) Other employees as defined in Other Employees."

5.1.5. Flexible hours of work arrangement -Management, Professional and Other Employees

"(1) The following categories of employees will be offered a flexible hours of work arrangement as outlined in this clause:

(b) Professional employees (except those within the engineering discipline) at Professional Grade 10 Level 1 2 and above

(d) Other employees as defined in Other Employees."

To rectify the list of reference errors to the correct reference as fully detailed in Attachment 1 to the Application, outlined in Annexure B;

(10) "The minimum shift rate applicable for an employee working on the 24-hour 7 day unit operations roster is Operations Grade 6. Employees who relieve onto this roster will be paid this rate as a minimum while working on the roster."

(11) "The minimum shift rate applicable for an employee working on the 24-hour7 day coal operations roster, is Operations Grade 5. Employees who relieve onto this roster will be paid this rate as a minimum while working on the roster."

Footnote at the bottom of the page after Attachment 12 (page 105) as follows:

"Availability/call out allowance as per table 3.9(b) of Part A of this Agreement

^ Ordinary hour of work for that day refers to ordinary hours for a standard attendance.

~ If called in prior to 7 am Tuesday (where the Monday is the Public Holiday) minimum 4 hour Overtime would apply."

Removal of the footnote at the bottom of the page after Attachment 12 (page 105).

Annexure B: "Attachment 1 - List of Reference Errors to be Rectified"

The undertaking is included at page 3 as well as on the last page of the agreement after the EGT&S Award Attachment 16.

It should only appear once after the EGTS Award Attachment 16.

There are incorrect page references throughout the Contents table.

The contents page should be as per the Contents page in Attachment 3.

1.6(1) Relationship to Award(s) and National Employment Standards

"This Agreement operates in conjunction with and incorporates the terms of Division 1 of the Electricity Generation, Transmission & Supply Award - State (Queensland) 2002 (EGTS Award) which is attached at Attachment 16 - Electricity Generation, Transmission and Supply Award State 2002However, the other terms of this Agreement including Attachments prevail over the terms of the EGTS Award to the extent of any inconsistency. Where this Agreement is silent the EGTS Award applies."

This Agreement operates in conjunction with and incorporates the terms of Division 1 of the Electricity Generation, Transmission & Supply Award - State (Queensland) 2002 (EGTS Award) which is attached at Attachment 16. However, the other terms of this Agreement including Attachments prevail over the terms of the EGTS Award to the extent of any inconsistency. Where this Agreement is silent the EGTS Award applies.

"All Callide Employee (CE) levels are referenced within 100 of this Agreement."

All Callide Employee (CE) levels are referenced within Attachments 1-6 and 12 of this Agreement.

3.2(1) Employees with Alternative Individual Agreements

"CS Energy may offer employment conditions under an Alternative Individual Agreement (AIA) to employees who are Professional Grade; 10 Level 5, Level 11, Level 11.1, Level 11.2 and Managerial Grade 11 Level 0 or above. Such AIA attracts an additional 17.4%. The rates for these employees are contained in the AIA Employees' salaries (Attachment 6 - ALTERNATIVE INDIVIDUAL AGREEMENT EMPLOYEE). These rates, when first developed for the Callide Power Station Enterprise Certified Agreement 2005 were 1.9% above the Management Employee rates of the Callide Power Station Enterprise Certified Agreement 2002, which included the previous 15.5% for hours worked."

CS Energy may offer employment conditions under an Alternative Individual Agreement (AIA) to employees who are Professional Grade; 10 Level 5, Level 11, Level 11.1, Level 11.2 and Managerial Grade 11 Level 0 or above. Such AIA attracts an additional 17.4%. The rates for these employees are contained in the AIA Employees' salaries (Attachment 6). These rates, when first developed for the Callide Power Station Enterprise Certified Agreement 2005 were 1.9% above the Management Employee rates of the Callide Power Station Enterprise Certified Agreement 2002, which included the previous 15.5% for hours worked.

3.2(2) Employees with Alternative Individual Agreements

"Employees on AIAs may transfer to their substantive level under Attachment 5 - MANAGERS, PROFESSIONALS, OTHER (AS DEFINED) (Flexible Working Hours - Average 40 Hour Week) by giving at least one (1) months' notice to CS Energy. The substantive level of an AIA role for these purposes is the classification of this position within this Agreement having regard to the Salary Progression Table ( 73)."

Employees on AIAs may transfer to their substantive level under Attachment 5 by giving at least one (1) months' notice to CS Energy. The substantive level of an AIA role for these purposes is the classification of this position within this Agreement having regard to the Salary Progression Table (Attachment 1).

"In determining the amount CS Energy shall contribute to a complying superannuation fund for the benefit of a casual employee, CS Energy shall contribute Superannuation as per Superannuationof the amount obtained by multiplying the casual employee's ordinary hourly rate of pay by the number of hours actually worked up to but not exceeding 36.25 hrs per week."

"In determining the amount CS Energy shall contribute to a complying superannuation fund for the benefit of a part time employee, CS Energy shall contribute Superannuation as per Superannuationof an amount obtained by multiplying the part time employee's ordinary hourly rate of pay by the number of hours that the employee is ordinarily rostered to work in that calendar week."

In determining the amount CS Energy shall contribute to a complying superannuation fund for the benefit of a casual employee, CS Energy shall contribute Superannuation as per clause 4.5 of the amount obtained by multiplying the casual employee's ordinary hourly rate of pay by the number of hours actually worked up to but not exceeding 36.25 hrs per week.

In determining the amount CS Energy shall contribute to a complying superannuation fund for the benefit of a part time employee, CS Energy shall contribute Superannuation as per clause 4.5 of an amount obtained by multiplying the part time employee's ordinary hourly rate of pay by the number of hours that the employee is ordinarily rostered to work in that calendar week.

"In the event that an employee's job diminishes or ceases to exist as a result of new technology or work methods, the employee will be offered an alternative position within the station pursuant to the redeployment provisions of the Redundancy Agreement (106)."

In the event that an employee's job diminishes or ceases to exist as a result of new technology or work methods, the employee will be offered an alternative position within the station pursuant to the redeployment provisions of the Redundancy Agreement (Attachment 13).

Relevant salary levels are contained in Attachments 1 to 6.

"Employees as defined in Operations Employee will receive the applicable shift rate for all work performed while on that roster and at other times as approved by CS Energy."

Employees as defined in clause 2.9 will receive the applicable shift rate for all work performed while on that roster and at other times as approved by CS Energy.

"For details of the aggregated salaries for these employees refer to 73 and 83."

For Details of the aggregated salaries for these employees refer to Attachments 1 to 5.

"The Overtime Rate is 1.9 x Aggregated Rate. For actual rates, see Attachment 8 - ADMINISTRATIVE DESCRIPTORS - PRODUCTION (Clause 2.5) OR OTHER (Clause 2.8). "

The Overtime Rate is 1.9 x Aggregated Rate. For actual rates, see Attachments 2,3 and 5

4.1.3.2 Operations Overtime Rate - 7 Day continuous shift roster

"On Shift: The Overtime Rate is [((Aggregated Hourly Rate/1.42) x 2) + (Aggregated Hourly Rate - (Aggregated Hourly Rate/1.42)]. For actual rates, see Attachment 9 - MANAGERIAL/SPECIALIST DESCRIPTORS - MANAGEMENT (Clause 2.6) OR PRODUCTION (Clause 2.5)"

On Shift: The Overtime Rate is [((Aggregated Hourly Rate/1.42) x 2) + (Aggregated Hourly Rate - (Aggregated Hourly Rate/1.42)]. For actual rates, see Attachment 4

"For the purposes of the Salary Progression Table 73 "or equivalent experience" means and includes but is not limited to the following:

Accredited training that is comparable to the relevant typical qualification, or other competencies, skills, certifications, or experience or any other such training relevant to the typical qualification of the position, within the applicable classification and grade.

For the purposes of the Salary Progression Table Attachment 1 "or equivalent experience" means and includes but is not limited to the following:

"Defined Classifications, as outlined in the Salary Progression Table 73, have been modelled from the Modern Award and adapted for Callide Power Station. Positions are classified in one of the following grades:

(a) Technical grade;

(b) Administrative grade;

(c) Managerial / Specialist grade;

(d) Professional grade; or

(e) Operations grade"

Defined Classifications, as outlined in the Salary Progression Table Attachment 1, have been modelled from the Modern Award and adapted for Callide Power Station. Positions are classified in one of the following grades:

(a) Technical grade;

(b) Administrative grade;

(c) Managerial / Specialist grade;

(d) Professional grade; or

(e) Operations grade

"4.5.2 Progression for Callide Employees is as follows:

(a) For Production employees (Operations Employee), management employees (Management Employee), Professional employees (Professional Employee) and Other employees (Other Employees) progression is provided via a time-based system over an annual period from the relevant anniversary date as follows:

Employment start date for new employees or;
Twelve (12) months after the date on which the Agreement is approved by a valid majority of employees for existing employees.

Annual salary level progression would occur on the employee's anniversary date. By way of example, an employee commencing at Level 0 will progress as per the below table:

(b) For Operations employees (Operations Employee) progression is provided via a Hybrid system which combines time-based progression along with the gaining of competencies as prescribed within the Callide Procedure for Operations Employee Development System (CAL - CMP - PL - 0009)."

4.2(5) Progression for Callide Employees is as follows:

(a) For Production employees (clause 2.9), management employees (clause 2.6), Professional employees (clause 2.7 ) and Other employees (clause 2.8) progression is provided via a time-based system over an annual period from the relevant anniversary date as follows:

2. Twelve (12) months after the date on which the Agreement is approved by a valid majority of employees for existing employees.

Annual salary level progression would occur on the employee's anniversary date. By way of example, an employee commencing at Level 0 will progress as per the below table:

(b) For Operations employees (clause 2.9) progression is provided via a Hybrid system which combines time-based progression along with the gaining of competencies as prescribed within the Callide Procedure for Operations Employee Development System (CAL - CMP - PL - 0009).

Clause 4.2(10) progression which also impacts the following subclause numbering

(10) "The Parties recognise that should an individual disagree with any part of their salary level progression, the matter will then progress as per the Grievance procedure in

(11) Grievance Procedure.

(12) Where additional positions are required for the Station Resource Plan and are not in the existing Salary Progression Table then additional positions can be added by agreement with the BIC.

(13) Implementation of this new progression system, upon approval of this Agreement, shall entail the following additional guidelines:....."

(10) The Parties recognise that should an individual disagree with any part of their salary level progression, the matter will then progress as per the Grievance procedure in clause 7.1 .

(11) Where additional positions are required for the Station Resource Plan and are not in the existing Salary Progression Table then additional positions can be added by agreement with the BIC.

(12) Implementation of this new progression system, upon approval of this Agreement, shall entail the following additional guidelines:......

To support the learning and development of Callide Employees, CS Energy will ensure:........

Clause 4.7.4(3), (4), (5) and (6) Superannuation - numbering

Section 1.01 "4.7.4 Superannuation

(1) Employees may salary sacrifice their superannuation compulsory and voluntary contributions in accordance with the Australian Tax Office rulings & guidelines as well as Superannuation Trust Deed Provisions.

(2) Salary sacrificing of employee contributions to superannuation may occur, providing the arrangements comply with relevant legislation.

(3) Provided that, in relation to members of the Defined Benefit section of the Brighter Super Superannuation Fund who elect to salary sacrifice employee superannuation contributions, CS Energy shall, despite any salary sacrificing arrangements entered into, ensure that the salary for superannuation purposes is calculated and is consistent with the full salary rate applicable to the employees classification as specified in this Agreement

(4)

(5) Salary levels and Rates, Salary Levels and Rates).

(6) Should an employee elect to salary sacrifice employee contributions pre-tax, the amount of standard employee contributions will be grossed up to cover the 15% contribution tax, which will apply.

(7) Employees who elect to salary sacrifice their superannuation contributions must not exceed the current financial year's Australian Taxation Office contribution limits that can be claimed by the CS Energy as a tax deduction. These limits are the sum of employee and CS Energy contributions. These figures are updated each financial year by the Australian Taxation Office."

Section 1.02 4.7.4 Superannuation

(1) Employees may salary sacrifice their superannuation compulsory and voluntary contributions in accordance with the Australian Tax Office rulings & guidelines as well as Superannuation Trust Deed Provisions.

(2) Salary sacrificing of employee contributions to superannuation may occur, providing the arrangements comply with relevant legislation.

(3) Provided that, in relation to members of the Defined Benefit section of the Brighter Super Superannuation Fund who elect to salary sacrifice employee superannuation contributions, CS Energy shall, despite any salary sacrificing arrangements entered into, ensure that the salary for superannuation purposes is calculated and is consistent with the full salary rate applicable to the employees classification as specified in this Agreement (clause 4.1 , Salary Levels and Rates).

(4) Should an employee elect to salary sacrifice employee contributions pre-tax, the amount of standard employee contributions will be grossed up to cover the 15% contribution tax, which will apply.

(5) Employees who elect to salary sacrifice their superannuation contributions must not exceed the current financial year's Australian Taxation Office contribution limits that can be claimed by the CS Energy as a tax deduction. These limits are the sum of employee and CS Energy contributions. These figures are updated each financial year by the Australian Taxation Office.

4.7.5 Motor Vehicle Novated Leasing(5), (6), (7) and (8) - numbering

"However, in relation to members of the defined benefits section of the Brighter Superannuation Fund who elect to salary sacrifice a novated lease of a motor vehicle, CS Energy shall ensure that salary for superannuation purposes is calculated upon the full salary rate applicable to the employee's classification as specified in clause specified in this Agreement

Salary Levels and Rates, Salary Levels and Rates).

However, in relation to members of the defined benefits section of the Brighter Superannuation Fund who elect to salary sacrifice a novated lease of a motor vehicle, CS Energy shall ensure that salary for superannuation purposes is calculated upon the full salary rate applicable to the employee's classification as specified in clause specified in this Agreement (clause 4.1 , Salary Levels and Rates).

"The rates of pay in 73 to 6 contain an amount in compensation for all allowances that may apply to work at Callide with the exception of those referred to in this clause."

The rates of pay in Attachments 1 to 6 contain an amount in compensation for all allowances that may apply to work at Callide with the exception of those referred to in this clause.

"Employees entitled to a meal allowance under Meal Break/Rest Pause will receive the relevant amount prescribed in the table below, for each meal unless CS Energy provides such meal for them."

Employees entitled to a meal allowance under clause 5.4 will receive the relevant amount prescribed in the table below, for each meal unless CS Energy provides such meal for them.

(1) "Should no CS Energy provided transportation be available (as per

(2) Transport) the employee will be able to utilise a taxi at CS Energy's expense or their own vehicle for which they will be paid mileage of 20km for each one way occurrence at relevant CS Energy policy or tax office rates, whichever is the greater.

(3) The number of occurrences CS Energy will pay for various work-related events are set out below based on a per request basis:

(1) Should no CS Energy provided transportation be available (as per clause 8.1) the employee will be able to utilise a taxi at CS Energy's expense or their own vehicle for which they will be paid mileage of 20km for each one way occurrence at relevant CS Energy policy or tax office rates, whichever is the greater.

(2) The number of occurrences CS Energy will pay for various work-related events are set out below based on a per request basis:

"Employees may be required to undertake periods of Short-Term Shift Work ( (Short Term Shift)."

Employees may be required to undertake periods of Short-Term Shift Work (clause 5.7).

5.1.4(2) Employees who relieve onto Coal and Station Plant Operations Shift Roster

"Where less than seven (7) days' notice is provided to relieve onto an operations shift roster, availability allowance will be paid as per Availability Allowance (7) of this Agreement. In addition to availability allowance, payment for shifts agreed to relieve onto between one to four shifts, will be paid at the relevant overtime rate in accordance with this Agreement. "

Where less than seven (7) days' notice is provided to relieve onto an operations shift roster, availability allowance will be paid as per clause 4.8.2 (7) of this Agreement. In addition to availability allowance, payment for shifts agreed to relieve onto between one to four shifts, will be paid at the relevant overtime rate in accordance with this Agreement.

"These employees will follow Day Workers conditions (Day Workers) once hours are balanced."

These employees will follow Day Workers conditions (clause 5.1.2) once hours are balanced.

"(d) Other employees as defined in Other Employees."

"Prior to an employee being required to make an election under Flexible hours of work arrangement - Management, Professional and other employees(2, the relevant member of the SBU will be provided with an opportunity to discuss the options available and answer any questions the employee may have. In order to facilitate such discussion, CS Energy will notify the SBU of new employees who are eligible for the flexible working arrangement (Flexible hours of work arrangement - Management, Professional and other employees)."

(3) Prior to an employee being required to make an election under clause 5.1.5 (2), the relevant member of the SBU will be provided with an opportunity to discuss the options available and answer any questions the employee may have. In order to facilitate such discussion, CS Energy will notify the SBU of new employees who are eligible for the flexible working arrangement, clause 5.1.5.

5.1.5(4) Flexible hours of work arrangement - Management, Professional and Other Employees

"Employees who exercise the option to work a flexible 40-hour week will receive a salary 25% greater than the aggregated salary applicable to employees working a 36.25-hour week, paid in accordance with 83. This loading is in recognition of the additional ordinary hours and flexibility in working hours to meet CS Energy's reasonable operational requirements. The 25% loading is an all-purpose loading and is used in calculating all paid leave, the rate of pay applicable to an employee returning to work from parental leave on a flexible work arrangement under the FWA, retrenchment and superannuation entitlements."

Employees who exercise the option to work a flexible 40-hour week will receive a salary 25% greater than the aggregated salary applicable to employees working a 36.25-hour week, paid in accordance with Attachment 5. This loading is in recognition of the additional ordinary hours and flexibility in working hours to meet CS Energy's reasonable operational requirements. The 25% loading is an all-purpose loading and is used in calculating all paid leave, the rate of pay applicable to an employee returning to work from parental leave on a flexible work arrangement under the FWA, retrenchment and superannuation entitlements.

5.1.5(5) Flexible hours of work arrangement - Management, Professional and Other Employees

"An employee may, after having made an election to work either option outlined in Flexible hours of work arrangement - Management, Professional and Other Employees(2) above elect to transfer to or from the flexible hours of work arrangement upon the giving of at least one (1) month's written notice to CS Energy. In order to avoid any doubt, this means that an employee may revert from a flexible forty (40) hour working week to a 36.25 ordinary hour week or from a 36.25 ordinary hour week to a flexible forty (40) ordinary hour week. Where an employee reverts from a flexible forty (40) hour week to a 36.25-hour week they will no longer be entitled to the 25% loading. An employee may only make two such elections in any 12-month period provided that CS Energy may agree to waive this requirement in exceptional circumstances and agreement shall not be unreasonably withheld."

An employee may, after having made an election to work either option outlined in clause 5.1.5 (2) above elect to transfer to or from the flexible hours of work arrangement upon the giving of at least one (1) month's written notice to CS Energy. In order to avoid any doubt, this means that an employee may revert from a flexible forty (40) hour working week to a 36.25 ordinary hour week or from a 36.25 ordinary hour week to a flexible forty (40) ordinary hour week. Where an employee reverts from a flexible forty (40) hour week to a 36.25-hour week they will no longer be entitled to the 25% loading. An employee may only make two such elections in any 12-month period provided that CS Energy may agree to waive this requirement in exceptional circumstances and agreement shall not be unreasonably withheld.

5.1.5(6) Flexible hours of work arrangement - Management, Professional and Other Employees

"Employees undertaking a flexible hours of work arrangement as outlined in 37. will have all ordinary hours in excess of forty (40) each week recorded as self-managed time (SMT). SMT is accrued time which may be taken off in lieu at a later time. SMT can only be accrued up to a maximum of forty (40) hours in the system. Any SMT sought to be accrued in excess of forty (40) hours within the system, will be rejected and hours thereafter will be paid as overtime. An employee's SMT balance will be recorded on their pay slip."

(6) Employees undertaking a flexible hours of work arrangement as outlined in clause 5.1.2 (2)(b). will have all ordinary hours in excess of forty (40) each week recorded as self-managed time (SMT). SMT is accrued time which may be taken off in lieu at a later time. SMT can only be accrued up to a maximum of forty (40) hours in the system. Any SMT sought to be accrued in excess of forty (40) hours within the system, will be rejected and hours thereafter will be paid as overtime. An employee's SMT balance will be recorded on their pay slip.

"If there is a requirement for maintenance employees to provide 24-hour coverage, then the appropriate shift rosters (11 excluding short term shift) can be utilised."

If there is a requirement for maintenance employees to provide 24-hour coverage, then the appropriate shift rosters (clause 2.11 excluding short term shift) can be utilised.

"All employees are to be rostered as equal as possible per year. Each employee is responsible for ensuring that the same skill type is available for their roster/s when unable to complete their allocation. Remuneration for this roster is as per 30 Availability Allowance and will be paid in the week the roster is worked. "

(3) All employees are to be rostered as equal as possible per year. Each employee is responsible for ensuring that the same skill type is available for their roster/s when unable to complete their allocation. Remuneration for this roster is as per clause 4.8.2 Availability Allowance and will be paid in the week the roster is worked.

"Employees are entitled to the payment of meal allowances as per 33 for (a) to (e) above. Where an employee is directed to work through their meal break, the hours worked until such break is taken is to be claimed as Overtime (20)."

(5) Employees are entitled to the payment of meal allowances as per clause 4.8.8 for (a) to (e) above. Where an employee is directed to work through their meal break, the hours worked until such break is taken is to be claimed as Overtime (clause 4.1.3).

6.1.6 - Annual Leave Conditions for Employees undertaking flexible work arrangements

"Annual Leave Conditions for Employees undertaking flexible work arrangements under 38."

"Annual Leave Conditions for Employees undertaking flexible work arrangements under clause 5.1.5. "

6.6.4 Public Holidays for Employees working an 8 or 6 day fortnight roster

"A nominated relief shift worker or non-continuous shift worker who was formerly a continuous shift worker who takes long service leave shall be paid as follows. Their current salary point in the appropriate On-Shift Operations Employees salary table (81) for the period of long service leave accrued after 1 July 1980 as a continuous shift worker and the rate as determined in i., ii., or iii. above for the period as relief shift worker or non-continuous shift worker after 1 July 1980."

A nominated relief shift worker or non-continuous shift worker who was formerly a continuous shift worker who takes long service leave shall be paid as follows. Their current salary point in the appropriate On-Shift Operations Employees salary table (Attachment 4) for the period of long service leave accrued after 1 July 1980 as a continuous shift worker and the rate as determined in i., ii., or iii. above for the period as relief shift worker or non-continuous shift worker after 1 July 1980.

"Subject to 1.7 the matters to be dealt with in those procedures shall include all grievances or disputes between an employee and CS Energy in respect of any matter arising under the Agreement, any matter arising under the National Employment Standards and any matter pertaining to the relationship between the employee and CS Energy. Such procedures shall apply to a single employee or to any number of employees."

Subject to clause 1.7 the matters to be dealt with in those procedures shall include all grievances or disputes between an employee and CS Energy in respect of any matter arising under the Agreement, any matter arising under the National Employment Standards and any matter pertaining to the relationship between the employee and CS Energy. Such procedures shall apply to a single employee or to any number of employees.

"The Parties to this Agreement note the exclusion of dispute resolution procedures relating to the Energy and Jobs Plan Queensland Energy Workers' Charter and Energy Industry Council (the Charter and the EIC) in 8.12 of this Agreement, however, this does not relate to operational matters at the Callide plant."

The Parties to this Agreement note the exclusion of dispute resolution procedures relating to the Energy and Jobs Plan Queensland Energy Workers' Charter and Energy Industry Council (the Charter and the EIC) in clause 8.12 of this Agreement, however, this does not relate to operational matters at the Callide plant.

"the arrangement entered into meets the genuine needs of CS Energy and the employee in relation to the matters mentioned in 7.3 (b); and"

the arrangement entered into meets the genuine needs of CS Energy and the employee in relation to the matters mentioned in clause 7.3 (b); and

"CS Energy shall allow workplace union delegates reasonable time and facilities during normal working hours to attend to union duties in line with 7.5."

CS Energy shall allow workplace union delegates reasonable time and facilities during normal working hours to attend to union duties in line with clause 7.5.

"Before exercising any entitlement under 7.5, a union delegate must give CS Energy written notice of their appointment or election as a union delegate."

Before exercising any entitlement under clause 7.5, a union delegate must give CS Energy written notice of their appointment or election as a union delegate.

"7.5.2 provides for the exercise of the rights of union delegates set out in the FWA."

Clause 7.5.2 provides for the exercise of the rights of union delegates set out in the FWA.

"A union delegate may communicate with eligible employees for the purpose of representing their industrial interests (including, but not limited to those issues identified at (3))."

A union delegate may communicate with eligible employees for the purpose of representing their industrial interests (including, but not limited to those issues identified at clause 7.5.2 (3)).

Heading of clause is incorrect and currently reads: "Exercise of Entitlements under 7.5"

"A union delegate's entitlements under 7.5 are subject to the conditions that the union delegate must, when exercising those entitlements:

7.5 does not require CS Energy to provide a union delegate with access to electronic means of communication in a way that provides individual contact details for eligible employees.

7.5 does not require an eligible employee to be represented by a union delegate without the employee's agreement.

unreasonably hinder, obstruct or prevent the exercise of the rights of a union delegate under the FWA or 7.5.

Heading should read: Exercise of Entitlements under Clause 7.5

A union delegate's entitlements under clause 7.5 are subject to the conditions that the union delegate must, when exercising those entitlements:

Clause 7.5 does not require CS Energy to provide a union delegate with access to electronic means of communication in a way that provides individual contact details for eligible employees.

clause 7.5 does not require an eligible employee to be represented by a union delegate without the employee's agreement.

unreasonably hinder, obstruct or prevent the exercise of the rights of a union delegate under the FWA or clause 7.5.

7.5.6 Interaction with other clauses of this Agreement

"Other clauses of this Agreement may give additional or more favourable entitlements to union delegates (however described). If an entitlement of a union delegate under another clause of this Agreement is more favourable to the delegate than an entitlement under 7.5, the entitlement under the other clause applies instead of the entitlement under 7.5."

Other clauses of this Agreement may give additional or more favourable entitlements to union delegates (however described). If an entitlement of a union delegate under another clause of this Agreement is more favourable to the delegate than an entitlement under clause 7.5, the entitlement under the other clause applies instead of the entitlement under clause 7.5.

"In addition, contractors and/or their employees will not be appointed to any position as permanent employees without fulfilling all the requirements of the normal advertising and selection processes. Refer to 3.10 for minimum requirements."

In addition, contractors and/or their employees will not be appointed to any position as permanent employees without fulfilling all the requirements of the normal advertising and selection processes. Refer to clause 3.10 for minimum requirements.

"Union nominated safety representatives (3.9) will be trained then utilised in conjunction with Station Management to carry out safety audits on external contractors."

"CS Energy shall produce a station resource plan (during the business planning process) each year based on information in the Computer Managed Maintenance System (SAP) or the relevant replacement Computer Managed Maintenance System and other justifications. This plan shall run from July to June. The resource plan shall nominate the skills and numbers required to fulfil the known work requirements. CS Energy will maintain this resource level using CS Energy employees. The plan will be presented to the BIC prior to June each year. This plan will be produced in the agreed format as per the template in 118."

"To aid the consultation process referred to in 8.2.3(1) above,.."

"A sub-committee of the BIC (including a representative from each relevant Union should they wish) will conduct a review of the current day to day arrangements occurring on site. Audits of contracting arrangements will occur on a twelve (12) month basis by the sub-committee of the BIC however this will not remove the company's requirements to report as per 8.2.3(8)."

Union nominated safety representatives (clause 3.9) will be trained then utilised in conjunction with Station Management to carry out safety audits on external contractors.

CS Energy shall produce a station resource plan (during the business planning process) each year based on information in the Computer Managed Maintenance System (SAP) or the relevant replacement Computer Managed Maintenance System and other justifications. This plan shall run from July to June. The resource plan shall nominate the skills and numbers required to fulfil the known work requirements. CS Energy will maintain this resource level using CS Energy employees. The plan will be presented to the BIC prior to June each year. This plan will be produced in the agreed format as per the template in Attachment 15.

To aid the consultation process referred to in clause 8.2.3(1) above, .....

A sub-committee of the BIC (including a representative from each relevant Union should they wish) will conduct a review of the current day to day arrangements occurring on site. Audits of contracting arrangements will occur on a twelve (12) month basis by the sub-committee of the BIC however this will not remove the company's requirements to report as per clause 8.2.3(8).

"Project Work - Project Work includes capital projects (design, installation and commissioning, overhauls major work, OpEx projects (excluding routine maintenance work on plant that is defined in (2) production work), forced and planned unit outages, conveyor belt installation."

Project Work - Project Work includes capital projects (design, installation and commissioning, overhauls major work, OpEx projects (excluding routine maintenance work on plant that is defined in (clause 8.2.4 (2) production work), forced and planned unit outages, conveyor belt installation.

"Shift Operator Technician Trainees, when required to go onto shift as part of their training pathway (or development program), shall not be classified as Shift Relief Operator Technician or Shift Operator Technician. They shall be supernumerary and shall not receive compensation under 6.6.1 of this Agreement. However, they shall be entitled to provisions under 4.1.1 Aggregated salary and 6.6.2 Public Holidays. "

Shift Operator Technician Trainees, when required to go onto shift as part of their training pathway (or development program), shall not be classified as Shift Relief Operator Technician or Shift Operator Technician. They shall be supernumerary and shall not receive compensation under clause 6.6.1 of this Agreement. However, they shall be entitled to provisions under clause 4.1.1 Aggregated salary and clause 6.6.2 Public Holidays.

8.12(1) Queensland Energy and Jobs Plan (QEJP) and Workers Charter

"The Parties to this Agreement are committed to the Queensland Energy and Jobs Plan - Queensland Energy Workers' Charter (Charter), (112) (as modified from time to time) and the Energy Industry Council (the Workers Charter and the EIC) as the mechanism to manage change. "

The Parties to this Agreement are committed to the Queensland Energy and Jobs Plan - Queensland Energy Workers' Charter (Charter), (Attachment 14) (as modified from time to time) and the Energy Industry Council (the Workers Charter and the EIC) as the mechanism to manage change.

"Apprentices will be paid the following percentage of 75 Day Work Employees, Technical Grade 3.1, Level 0 of this Agreement. "

Apprentices will be paid the following percentage of Attachment 2 Day Work Employees, Technical Grade 3.1, Level 0 of this Agreement.

"Trainees will be paid the following percentage of 75 Day Work Employees, Administrative Grade 3, Level 0 of this Agreement."

CS Energy Limited Trading AS Cs Energy [2025] FWCA 1471 (2 May 2025)

At a glance

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Decision date

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Judgment (226 paragraphs)

CS Energy Limited Trading AS Cs Energy [2025] FWCA 1471 (2 May 2025)

Legislation Cited (1)

Cases Cited (1)