Application by The Northcott Society
[2021] FWC 2964
•28 MAY 2021
| [2021] FWC 2964 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Application by The Northcott Society
(AG2021/3943)
COMMISSIONER WILSON | MELBOURNE, 28 MAY 2021 |
Application for approval of the Northcott Enterprise Agreement 2021 - 2023.
[1] The Northcott Enterprise Agreement 2021 – 2023 (the Agreement) was made on 10 February 2021 when voting for the Agreement concluded with a majority of those voting doing so in favour of making the agreement. The Agreement covers employees of the Northcott Society (Northcott), a NSW based disability services provider. At the time of the vote the Agreement covered 2,448 employees; 1,870 employees voted in a ballot of whom 1,087 voted to approve the Agreement. 1
[2] This decision concerns objections to the Fair Work Commission’s approval of the Agreement by the Community and Public Sector Union (CPSU) and the Australian Nursing and Midwifery Federation, NSW Branch (ANMF), as well as addressing concerns raised by the Health Services Union – New South Wales Branch (HSU), which neither supports or opposes approval of the Agreement.
[3] For the reasons set out below I have found there were errors made by Northcott in two respects which lead to me not being satisfied the Agreement was genuinely agreed. I am of the preliminary view that the identified errors are of the type that may be the subject of an exercise of discretion by the Commission under s.188(2) of the Act and that there is no other impediment to approval of the Agreement. Directions will be issued for the purposes of affording the parties an opportunity to provide their views on the subject of an exercise of discretion under s.188(2) before finally determining the subject. The Directions also seek the views of bargaining representatives about undertakings proposed by Northcott.
BACKGROUND
[4] The Agreement was submitted by Northcott to the Commission for approval on 24 February 2021. Each of the three unions was a bargaining representative during bargaining and each filed declarations summarising their interests and concerns. There were no other employee or union bargaining representatives. After lodgement the application was the subject of initial consideration by the Commission in the usual way, with certain matters of concern being raised. In the course of this preliminary consideration, it was apparent that at least some of the unions’ objections may require formal determination by the Commission and may not be able to be overcome through the provision of further explanatory information or submissions or remedial undertakings.
[5] In particular the CPSU objected to the approval of the Agreement on several grounds, including that it had not been the subject of genuine agreement since numerous eligible casual employees were not invited to participate in the ballot.
[6] As a result, and after several exchanges between the parties and the Commission, directions were issued for the matter to be heard, preceded by the filing of submissions and evidence from each party. A hearing of the matters in dispute was held on Monday, 12 April 2021. At the hearing Mr John Lovell and Ms McIntosh of Ashurst appeared for Northcott. Mr Selvin, of Counsel, appeared for the CPSU, instructed by Mr D Allen and Ms J Moore. Ms P Kelly appeared for the ANMF and Mr E Yap for the HSU. Permission for Northcott and the CPSU to be represented in these proceedings by a lawyer was granted by me, pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).
[7] Ms Victoria Karraz and Mr Glynn Tyrell gave oral evidence at the hearing on behalf of Northcott. Ms Karraz is Northcott’s IR/ER Consultant and made the Form F17, Employer’s Declaration filed in these proceedings. Mr Tyrell is Northcott’s Human Resources Manager and provided a witness statement as well as giving oral evidence.
[8] Ms Jessica Moore, Ms Frances Henry and Mr Joshua Alvarado provided witness statements on behalf of the CPSU, however were not required for cross-examination and did not give oral evidence. Ms Moore is a CPSU Industrial Officer, and Ms Henry and Mr Alvarado have performed work for Northcott over some years.
THE COMMISSION’S PRE-HEARING CONCERNS
[9] In accord with the Commission’s usual process after an application for approval of the Agreement is made, the Agreement’s conformity with the Act’s approval obligation was considered after which a number of matters of concern were identified to the parties in correspondence dated 18 March 2021. Those matters together with Northcott’s responses may be summarised thus;
• A concern that the agreement did not properly define a shiftworker for the purpose of the National Employment Standards (NES). Northcott submitted that although the agreement does not include a specific definition of shiftworker for NES purposes, all employees who are defined as shiftworkers for NES purposes in the applicable modern award are entitled to an additional week’s annual leave under the agreement. The submission satisfied the Commission’s concern.
• Whether the annual leave provisions of clause 32.12 incorporated a policy and whether its terms were consistent with the NES. Northcott submitted that the annual leave policy is a separate policy not incorporated into the Agreement and that the policy cannot operate to reduce the benefit of the NES or any term of the Agreement. The response did not initially satisfy the Commission’s concern and is dealt with further in this decision.
• Whether the absence of maximum daily hours was relevant for assessment of the better off overall test (BOOT). Northcott submitted that its practice is to pay employees overtime for any work performed after 10 hours per shift and the Agreement expressly provides this for part-time and casual employees. Further it applies rostering and break provisions of the agreement so that full-time employees are not rostered or required work more than 10 ordinary hours. As a consequence, Northcott provided an undertaking on the subject.
• A concern regarding assessment of the BOOT for payments to early afternoon shift workers. Northcott’s response on the subject did not initially resolve the matter for the ANMF and is dealt with further in this decision.
• Whether work break arrangements were less beneficial than those provided by one of the reference awards, the Social, Community, Home Care and Disability Services Industry Award (the SCHADS Award). Northcott submitted that the break provisions may be regarded as more beneficial under the Agreement. The submission resolves the Commission’s concern.
• Whether broken shift provisions were less beneficial than the SCHADS Award. Northcott submitted that broken shift may only be worked by mutual agreement which differs from the award which contains no such limitation. Northcott’s response resolves the Commission’s concern in this regard.
• Whether the absence of an annual leave loading for day workers employed under the SCHADS Award gave rise to a BOOT issue. Northcott submitted that the agreement does not provide for annual leave loading for day workers but does provide all day workers in classifications covered by the award with an entitlement to 5 weeks annual leave, which is more generous than the award and the accordingly such employees are better off overall. Northcott’s response resolves the Commission’s concern in this regard.
• Whether the absence of certain SCHADS Award allowances might give rise to a BOOT concern. Northcott’s response resolves the Commission’s concern.
[10] As will be seen from the foregoing, only one of the Commission’s concerns remains live, being the matter of a reference to a policy within the annual leave clause. That subject is dealt with further in this decision, as is the matter of further incorporated policy identified by the ANMF, as well as that union’s objection on the matter of payments to early afternoon shift workers.
[11] It will also be seen from the above that Northcott has indicated a preparedness to provide undertakings in certain respects and its response dated 22 March 2021 set out draft undertakings for consideration by the Commission. The original undertakings were amended and added to on 19 April 2021 following the hearing and are now comprised of the following;
“1. Notwithstanding clauses 24.1 or 25.1 of the Agreement, the Employer will not roster or require an employee to work more than 10 ordinary hours per shift.
2. Notwithstanding clause 24.1 of the Agreement, the Employer will ensure that ordinary hours of work for employees who are day workers will be worked within the following span of hours:
a. for employees classified in Groups 1, 2 and 3 of Schedule A to the Agreement – 6.00am and 8.00pm, Monday to Sunday; and
b. for employees classified in Groups 4 and 5 of Schedule A to the Agreement – 6.00am and 6.00pm, Monday to Friday.
3. For employees classified in Groups 1, 2 and 3 of Schedule A to the Agreement and Assistants-in-Nursing, the Employer will supply the employee with an adequate meal where the Employer has adequate cooking and dining facilities or pay the employee a meal allowance of $13.56 in addition to any overtime payment as follows:
a. when required to work more than one hour after the usual finishing hour of work or, in the case of shiftworkers, when the overtime work on any shift exceeds one hour; and
b. provided that where such overtime work exceeds four hours a further meal allowance of $13.56 will be paid.
4. Clause 32.12 is of no effect and will not be relied upon by the Employer.
5. The words "subject to the employer's time off in lieu policy" in clause 26.3.a. are of no effect and will not be relied upon by the Employer.
6. Where, during a fortnightly pay period, an Assistant-in-Nursing works a shift that commences after 12noon and ends between 6.00pm and 7.30pm, Northcott undertakes to ensure that the amount paid to the Assistant-in-Nursing for all ordinary hours worked during the fortnightly pay period is greater than the amount that would otherwise be payable to the Assistant-in-Nursing if such hours were worked under the Nurses Award 2010.”
[12] The subject matters of Undertakings 4, 5 and 6 are dealt with further in this decision.
[13] I am satisfied for the purposes of s.190 that the undertakings may be accepted by me and that none are likely to cause financial detriment to any employee covered by the Agreement or to result in substantial changes to the Agreement, noting that no bargaining representative argued to the contrary. While I hold the view that the views of the bargaining representatives about the foregoing undertakings have been sought it is appropriate to put the matter beyond doubt, and so each bargaining representative will be given an opportunity after the publication of this decision to provide such views about the undertakings set out above as they wish to give.
MATTERS IN DISPUTE AT THE HEARING
[14] The CPSU, ANMF and HSU are the only union bargaining representatives and there were no employee bargaining representatives in the bargaining which preceded the making of the Agreement. The matters in dispute identified by each of the unions in the hearing may be summarised thus;
• The CPSU opposes approval of the Agreement arguing it is not the product of genuine agreement and that insufficient steps were taken by Northcott to explain the terms of the Agreement and the effect of those terms insofar as a reduced wage rate is concerned as well as omitting to explain a reduction in recall to duty payments and failing to adequately explain different travel arrangements.
• The HSU neither supports or opposes approval of the Agreement, identifying a concern that Northcott’s classification matching between the underpinning SCHADS Award and the Agreement is not accurate.
• The ANMF opposed approval of the Agreement in the hearing, however, does not pursue that opposition having reached agreement with Northcott on the terms of a further undertaking addressing its concerns. The concern held by the ANMF was related to the shift penalties for afternoon shift workers engaged on a shift finishing between 6.00 PM and 7.30 PM.
CONSIDERATION
[15] As will be evident from the summary set out above, consideration of the Agreement for approval requires inquiry as to whether Northcott complied with the required pre-approval steps for the provision of materials to all eligible employees (s.180(2)) and notified them of the vote for the agreement (s.180(3)); whether it explained the terms of the proposed agreement and the effect of those terms (s.180(5); whether the agreement has been genuinely agreed (ss.186(2)(a) and s.188); and whether the agreement passes the BOOT (s.186(2)(d)).
[16] The question of whether the Agreement passes the BOOT goes to two relevant matters; whether the matching of the Agreement’s classifications for social and community service employees with those in the SCHADS Award is accurate and whether the most recent Northcott undertaking dealing with afternoon shift workers provided in order to address the concerns expressed by the ANMF is sufficient. Each of these matters will be considered together and it is convenient to deal with these matters first.
[17] The objections relating to the provision of materials to employees, notification of the vote and genuine agreement each arise from the same factual base, being the allegation that some eligible casual employees were excluded from the voting process. These matters will be considered together.
[18] The CPSU’s objection about the adequacy of the explanation of the Agreement will be considered separately.
SCHADS classification matching
[19] The HSU argued to the Commission in its Form F18 that Northcott had put forward incorrect classification matching with the SCHADS Award for the purposes of the BOOT with its submissions on the subject including;
“7.1. At Question 9 and Attachment 2 of the Employer’s F17 Declaration, the employer identifies how the classifications in the proposed agreement match to the classifications in the modern award with regard to Group 1 employees under the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award).
7.2. On a line-by-line comparison between the proposed agreement and the SCHADS Award, the classification matching in the Employer’s F17 Declaration appears to be correct. However, the classification descriptors with respect to Group 1 employees distort the responsibilities that these employees actually perform.
7.3. For example, with regards Group 1, Level 2.2 employees under the proposed agreement, the classification descriptors in the proposed agreement mischaracterise and omit the actual duties and responsibilities performed by these employees.
7.4. Specifically:
a. The administering of medication is not a “routine activity which requires the practical application of basic skills and techniques”. Rather, it is either a:
i. Social and community services employee level 2 responsibility: an “activity requiring the application of established work procedures and may exercise limited initiative and/or judgment within clearly established procedures and/or guidelines” (Schedule B.2.2(a) SCHADS Award)
ii. Social and community services employee level 3 responsibility: “(n) where prime responsibility lies in a specialised field, employees at this level would undertake at least some of the following;…(ii) perform duties of a specialised nature” (Schedule B.3.2(n)(ii) SCHADS Award)
iii. For example, workers who give insulin injections require diabetes awareness and management training and workers who administer epilepsy medication need training in medication-specific emergency management procedures.
b. Group 1, Level 2.2 employees do not work under “close direction” as they often work independently as sole workers;
c. Further the classification descriptors in the proposed agreement omit responsibilities listed in the SCHADS Award that Group 1, Level 2.2 employees actually perform, including the following :
i. implementing client skills and activities programmes under limited supervision either individually or as part of a team as part of the delivery of disability services (Schedule B.2.2(k) SCHADS Award);
ii. supervising or providing a wide range of personal care services to residents under limited supervision either individually or as part of a team as part of the delivery of disability services (Schedule B.2.2(l) SCHADS Award); and
iii. planning, cooking or preparation of the full range of meals under limited supervision either individually or as part of a team as part of the delivery of disability services (Schedule B.2.2(m) SCHADS Award).”
[20] Northcott’s submissions on the HSU’s objection noted the matter had been raised at an earlier time before Commissioner Saunders (as he then was) during proceedings for approval of the current Agreement approved in 2017;
“5. The HSU, by way of a Form F18 dated 22 March 2021 and short submissions dated 23 March 2021 submits that the corresponding SCHADS classification for Group 1, Level 2.2 employees is SCHADS Level 2. By extension, the HSU contends that the SCHADS classification for each of the higher grades in Group 1 should be one grade higher than identified by Northcott.
6. The HSU acknowledges that, on a "line-by-line comparison" between the Agreement and the SCHADS Award, the "classification matching" undertaken by Northcott appears correct.1 The HSU then goes on to contend that the classification descriptors in the Agreement mischaracterise and omit actual duties and responsibilities performed by employees.
7. Similar arguments were advanced by union bargaining representatives in 2017 during the approval process for the current enterprise agreement. In his decision approving the current enterprise agreement, Commissioner Saunders accepted Northcott's classification matching between the Agreement and the SCHADS Award. Northcott's classification matching for the Agreement currently before the Commission is consistent with the findings of Commissioner Saunders in approving the predecessor agreement.
8. Northcott adopts the reasoning of Commissioner Saunders. Consistent with the decision of Commissioner Saunders, the Commission should undertake the BOOT assessment based on a comparison of the classification descriptors in the Agreement and the Award.” (footnotes omitted)
[21] The decision approving the current agreement dealt with the classification matching issue in the following way;
• It noted that the classification descriptions in the agreement differed from the relevant modern awards and that Northcott and three unions, the HSU, ANMF and CPSU were in dispute about classification matching. 2
• The decision undertook a detailed comparison of “the characteristics and responsibilities of levels 1, 2 and 3 under the Enterprise Agreement against the various levels in the SCHADS Award”, 3 from which;
“[54] It is clear from the comparison set out in the table in the previous paragraph that there is a close alignment between the characteristics and responsibilities of:
• a level 1 (group 1 – Supports) employee under the Enterprise Agreement and a level 1 social and community services employee under the SCHADS Award;
• a level 2 (group 1 – Supports) employee under the Enterprise Agreement and a level 1 social and community services employee under the SCHADS Award; and
• a level 3 (group 1 – Supports) employee under the Enterprise Agreement and a level 2 social and community services employee under the SCHADS Award.
[55] The SCHADS Award classifications do not expressly address the responsibilities of “transporting and assisting clients to access the community” or “administer medication, as required”. However, one of the responsibilities for a level 1 social and community services employee under the SCHADS Award is to “undertake routine activities which require the practical application of basic skills and techniques.” [SCHADS level 1 – B.1.1(a), emphasis added]. This could include assisting clients to use public transport to access the community or “administer medication, as required” at a basic level.”
[22] In finality the decision found the BOOT had been passed;
“[63] In light of the close alignment between the characteristics and responsibilities of the classifications of employees in the Enterprise Agreement with the “matching” classifications in the SCHADS Award, as contended for by the Employer, coupled with the other matters referred to in paragraphs [55] to [62] above, I am satisfied that it is appropriate in the circumstances of this case to assess whether the Enterprise Agreement passes the BOOT by considering classes of employees defined by the classifications in the Enterprise Agreement. Because the Enterprise Agreement affects each employee within a classification in the same way, I can assess a hypothetical employee in each of the classifications under the Enterprise Agreement against the “matching” classification under the relevant modern award. For the reasons set out above, I agree with the Employer’s classification “matching”.
[64] I have reviewed the position descriptions for Support Workers produced by the Employer in response to an order for the production of documents and relied on by the Unions in these proceedings. I am satisfied that the position descriptions do not cause me to alter my assumption, under s.193(7) of the Act, that an employee in a particular classification under the Enterprise Agreement would be better off overall if the Enterprise Agreement applied to that class than if the relevant modern award applied to that classification of employee. …” (endnote omitted)
[23] In the hearing of this matter, the HSU accepted that its debate with Northcott as to the correct matching of classifications was a matter that predated the making of this Agreement and that its approval did not disturb the rights of either party in respect of the debate.
[24] I am satisfied that consideration of the history of the matter, together with the explanations given in the hearing and consideration of whether the Agreement can be approved notwithstanding the HSU’s concern leads to the conclusion that there is no impediment to approval of the Agreement at least in respect of this matter. The HSU’s concern is an historical one and approval of the Agreement does not disturb its rights in that regard. To the extent the HSU’s concern connects with the statutory criteria for approval of the Agreement, including matters of the BOOT, it is apparent from the material before me the Agreement may be approved even if the HSU is correct in its contentions. I therefore regard the HSU’s objection, at least as made to these proceedings, as being fully satisfied.
Undertakings 4 and 5 – incorporated policies
[25] A concern was initially raised by the Commission with the Applicant regarding the possible incorporation of a policy in the Agreement’s Clause 32.12, dealing with annual leave, and later by the ANMF in respect of Clause 26.3, the subject of which is time off in lieu of overtime,
[26] The concern expressed by the Commission in respect of the annual leave clause was in these terms;
“3. Annual leave - Clause 32.12 - states ‘For all other annual leave conditions, please refer to the employer’s Annual Leave Policy.’ It is unclear if this policy is intended to be incorporated, further this policy has not been provided and it’s unclear if it is consistent with the NES.”
[27] Northcott responded by advising that the policy relates largely to rules and processes for applying for leave and that it cannot operate to reduce the benefit of the NES or any term of the Agreement. 4 As a result of this response, the Commission pressed its concern and invited an undertaking from Northcott.
[28] Correspondence from the ANMF on 25 March 2021 identified a further policy incorporation in respect of clause 26.3 which deals with the subject of time off in lieu, in the following terms;
“26.3 Time Off In Lieu (TOIL)
a. An employee who works approved additional hours outside ordinary hours may be compensated by way of time off in lieu of overtime, subject to the employer’s time off in lieu policy.”
[29] Through its 25 March 2021 correspondence the ANMF invited provision of an undertaking on that subject as well.
[30] After the hearing Northcott provided the undertakings set out above. Pertinently, the effect of the undertakings is to provide that Clause 31.12 is of no effect and will not be relied upon and that the words “subject to the employer’s time off in lieu policy” in clause 26.3.a are also of no effect and will not be relied upon. The provision of these undertakings satisfies the Commission’s concerns on the matter of incorporated policies.
Undertaking 6 – Payment of weekday afternoon shift penalties to nurses
[31] The Commission’s initial “concerns” correspondence from 18 March 2021 identified a matter for the attention of the Applicant regarding the payment of weekday afternoon shift penalties to nurses as follows;
“5. Afternoon shift: The afternoon shift trigger for nurses (cl. 22.1(d) of the Agreement) appears to be inconsistent with the afternoon shift trigger contained in cl. 29.1(d)(i) of the Award. The effect of this is that a shift finishing between 6pm-7:30pm attracts the afternoon shift penalty under the Award but not the Agreement.”
[32] Northcott responded on 22 March 2021 in the following way;
“This is correct, shifts for employees in the Nurses classifications (Group 5) covered by the Agreement that finish before 7.30pm will not meet the criteria of an Afternoon Shift in clause 22.1(d) of the Agreement and will not attract a shift penalty. However, employees in Group 5 classifications are still better off overall under the Agreement based on the higher wage rates compared to the Nurses Award 2010. In particular, the hourly wage rates for Group 5 employees range from $1.87 (AINs) to $6.90 (ENs) per hour more than the corresponding Award rates.” 5
[33] Although this response satisfied the Commission’s concern, the ANMF continued to hold a concern that the matter had not been adequately addressed and more pertinently that the BOOT was not met because of the above concern. In its correspondence to the Commission dated 23 March 2021, the ANMF advised in some detail how it considered nurses working weekday afternoon shifts may not be better off overall;
“Our calculations indicate that a permanent full-time or part-time Assistant in Nursing (equivalent to a Nursing Assistant under the Award) who works weekday afternoon shifts that end between 6 and 7.30pm would not be better off under the proposed agreement. The following table indicates they would be between 3.57% and 0.66% worse off.
Nurses’ Award from July 2020 | Northcott Agreement | Difference | ||||
Base rate | Weekday afternoon shift | Base rate | Weekday shift ending 6-7.30pm | |||
Nursing Assistant | Assistant in Nursing | |||||
1st year | $21.65 | $24.36 | $23.52 | $23.52 | -$0.84 | -3.57% |
2nd year | $22.01 | $24.76 | $24.27 | $24.27 | -$0.49 | -2.02% |
3rd year and thereafter | $22.37 | $25.17 | $25.03 | $25.03 | -$0.14 | -0.56% |
Experienced (holder of relevant cert III) | $23.09 | $25.98 | $25.81 | $25.81 | -$0.17 | -0.66% |
We have not identified sufficient benefits in the agreement and not in the Award to balance off this reduction so as to make the nurses better off overall.”
[34] In the course of the hearing for this matter, Northcott argued that the incidence of early finish afternoon shift was relatively low. The Commission should take account of the fact that such hours as the employees might work needed to be balanced with the hours they worked elsewhere in their roster. Further, it should be noted that the Agreement provided more favourable hourly rates than those in the Award and so no BOOT issue arose. Northcott submitted the following on these matters;
“We have provided the ANMF with some information earlier today about the number of instances in which this type of shift that starts after 12 noon and finishes between 6 and 7.30 pm might be said to arise. Now, the analysis that we've provided to the ANMF and to ask, perhaps, that they reconsider their position indicates that this is not at all a common shift pattern. My apologies, Commissioner - our analysis is such that there is only one shift roster that regularly adopts this shift pattern. The only employees working that roster are employed as assistants in nursing year 4 plus. In those circumstances, if you consult the table properly prepared by the ANMF, the difference in the rate under the applicable award - the nurses' award - for an afternoon shift is $25.98. The rate under the agreement - the standard rate for all shifts, considerably higher than the base rate of $23.09 and just 17 cents less than the applicable rate under the award for an afternoon shift.
We say that in circumstances where the pattern of shift only rarely includes this particular shift, that the other hours in any given shift cycle will more than compensate an employee and result in them remaining better off overall under the agreement than under the award. If it would assist the Commission, we could certainly make that analysis of those four assistants in nursing available and provide that breakdown of shifts. But my submission to you is it's only very rarely that such shifts are said to arise. The analysis over a 16-week period, it gives you an example: there were 43 such shifts of more than 10,000 worked by nurses covered by the agreement and in those circumstances, no BOOT issue should be considered to arise.” 6
“…So the overwhelming majority of hours are worked at the higher ordinary rate under the agreement. We say secondly that the shifts that are of concern - those starting after midday but finishing between 6 and 7.30 - are only presently worked by assistants in nursing year four. The difference there is only 18 cents per hour between the afternoon shift rate under the nurses' award and the ordinary hourly rate under the agreement. We'd accept that the difference is somewhat greater at the lower classification levels. But in any event, there is not a sufficient number of shifts worked that would fall within these particular parameters that it would result in an employee being worse off. Indeed, employees will be better off.” 7
[35] In the hearing the ANMF identified its residual concern as being the possibility “that the clause within the proposed agreement would allow the employer to engage people in the future on different patterns of employment - for instance, five days a week on that shift, between 6.30 and 7.30, which would substantially disadvantage the employee in comparison to what they would get under the award”. 8
[36] As a result of these matters, the Commission invited Northcott to enter into discussions with the unions about the ANMF’s concerns. That in turn led to Northcott providing a new Undertaking 6, which provides the following;
“6. Where, during a fortnightly pay period, an Assistant-in-Nursing works a shift that commences after 12noon and ends between 6.00pm and 7.30pm, Northcott undertakes to ensure that the amount paid to the Assistant-in-Nursing for all ordinary hours worked during the fortnightly pay period is greater than the amount that would otherwise be payable to the Assistant-in-Nursing if such hours were worked under the Nurses Award 2010.”
[37] The ANMF has since confirmed it accepts Northcott’s further undertaking. 9
[38] I am satisfied that the undertaking adequately deals with the identified concern and may be accepted by the Commission in resolution of the matter. Further, I am satisfied an opportunity was given to the other two bargaining representatives, the CPSU and the HSU, to provide their views about the proposed further undertaking on the subject and that neither has done so.
Casual employees’ participation in the vote
[39] Northcott is a large disability services provider with a large proportion of its workforce employed on a casual basis. The declaration filed by Northcott in support of its application, the Form F17, disclosed that the Agreement covered 2,448 employees at the time of the vote. Of those covered by the Agreement, 1,870 cast a valid vote and 1,087 of those votes were in favour of approval. 10 The same declaration recorded that 711 employees were casual.11
[40] Evidence given on behalf of Northcott by Mr Tyrell included that as at 28 January 2021, the date on which voting commenced, the organisation employed 932 casual employees of whom 708 were provided with access to the voting portal at some stage over the course of the voting period. 12 Northcott deemed the other 224 casual employees to be ineligible to participate in the ballot for several reasons; some had died, some had their employment terminated, and some had an insufficient connection to be eligible;
“7. Northcott identified 224 casual employees as ineligible to vote. This group comprised:
(a) 2 persons who were recorded in the system as deceased;
(b) 32 persons who were recorded in the system as terminated;
(c) 9 persons who were working for Northcott in another Agreement-covered role on a permanent basis and were already eligible to vote on that basis;
(d) 14 persons had been hired but never in fact worked a shift;
(e) 3 persons had been on long term absences from work while receiving workers’ compensation and had not attended for work;
(f) 77 persons did not work at all in the three month period before the commencement of the voting period (28 October 2020 and 5 February 2021) and were not, as at 28 January 2021, rostered to work during the voting period; and
(g) 87 remaining persons who did not work during the access period and were not, as at 28 January 2021, rostered to work during the voting period.” 13
[41] Northcott’s reasoning about the eligibility of casual employees is that eligibility could arise because the employee worked in one or both of two relevant periods; namely “those as at 28 January 2021 who had worked during the access period of 20 to 27 January 2021 or were rostered to work during the voting period of 28 January 2021 to 10 February 2021”. 14 For the purposes of consistency, these two periods are referred to in this decision as the Access Period and the Voting Period.
[42] The CPSU mounts two objections to how Northcott determined voting eligibility. It objects that some employees were denied a vote when they were actually entitled to vote; and it objects that steps taken by Northcott to allow employees entry to the voting process after it had commenced were inappropriate.
Whether exclusion of casual employees was in error
[43] The first limb of the CPSU casual voting objections concerns decisions taken by Northcott which resulted in some casual employees being unable to participate in the vote for the Agreement when they were entitled to do so, meaning that the Commission may not be satisfied the Agreement has been genuinely agreed. Its concerns and objections on the subject commenced relatively soon after the Voting Period commenced. Members informed the union they had not been provided with voting details despite working during either or both the Access Period and the Voting Period. 15 The CPSU became concerned some employees may be unjustifiably excluded from voting and communicated its concern to Northcott;
“23. On 5 February 2021, the CPSU wrote to Northcott advising that a number of members employed as casual employees had been excluded from the voting process. The letter asked Northcott to contact all employees to enable them to participate in the ballot.
24. On 8 February 2021, Northcott replied to the CPSU letter to the effect that only casuals employed at the time the request to vote was made were eligible to vote. The letter also indicated that Northcott had, on 28 January 2021, sent a text message to all casual employees who had not been provided with access to the voting portal inviting them to contact Northcott if they had worked or would be working during the period 21 January to 10 February 2021.” 16
[44] The correspondence to Northcott referred to by the CPSU in the above passage was included as an attachment to the union’s Form F18, with it setting out its concerns in this manner;
“The union has been contacted by a number of members employed on a casual basis with Northcott to advise that they have been excluded from access to the voting in the above ballot and in particular that they have not been supplied with the voting portal link particulars relating to the proposed Enterprise Agreement.
We are instructed that this is purportedly on the basis that casual employees may not have been rostered on to work during the voting period despite the following:
1. A number of our members have been employed on a casual basis working regular shifts with Northcott for up to four years;
2. That some casual staff rostered during the voting period, have also been excluded from the voting portal hosted by Elections Australia contrary to the requirements of section 181of the Fair Work Act 2009.
We draw your attention to the Full Bench decision of the Fair Work Commission in McDermott Australia Pty Ltd v AMWU [2016] FWCFB 2222 which held that casual employees not working during the voting period are still entitled to vote on their proposed enterprise agreement. In particular, we note the Full Bench comments at paragraph [35) of the decision as follows:
‘In our view it would be inappropriate and counter intuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on to work on the day/s of the vote, or during the 7-day access period. There are obvious implications for voting manipulation adopting this approach’.
Accordingly, we request urgent confirmation that Northcott will contact all casual employees for the purpose of enabling those employees to participate in the ballot for the proposed Enterprise Agreement and request that you advise your position by close of business on Monday 8 February 2021.” 17
[45] Northcott rejected the union’s concerns in its response to the CPSU, dated 8 February 2021;
“In relation to point 1 in your letter and the request for Northcott to enable all casual employees of Northcott to participate in the vote, we make the following points:
• Northcott has requested all eligible employees (including eligible casual employees) to vote on the Proposed Agreement.
• Casual employees are eligible to vote on a proposed enterprise agreement if they are employed at the time the request to vote on the proposed enterprise agreement is made. It is clear that not all employees identified in Northcott systems as casual employees will be eligible to vote on the Proposed Agreement. Contrary to the CPSU's request, it is not open to Northcott to simply provide all casual employees recorded on Northcott's systems with the opportunity to vote on the Proposed Agreement when some of those employees would in fact be ineligible to vote. Accordingly, we cannot agree to the CPSU's request that we contact all casual employees and ask them to vote on the Proposed Agreement.
In relation to point 2 of your letter, Northcott has taken the following steps to ensure that all eligible casual employees have access to the voting portal in order to vote on the Proposed Agreement, including by:
• using rostering data to identify all casual employees rostered to work during the period 21 January to 10 February 2021 (the access and voting periods) and providing those employees with access to the voting portal from the start of the voting period (or as soon as possible thereafter);
• undertaking verification with managers to identify all casual employees who were eligible casual employees to ensure they had been provided with access to the voting portal; and
• providing a mechanism for a casual employee to request access to the voting portal if eligible. In particular, on 28 January 2021, Northcott sent a text message to casual employees who had not been provided with access to the voting portal. This text message invited those casual employees to contact Northcott if they had worked or would be working during the period 21 January to 10 February 2021. Northcott has validated all such requests, and provided eligible casual employees with access to the voting portal.” 18
[46] As set out above, Northcott identify 224 casual employees as not being eligible to participate in voting for the Agreement. Within this group, 77 had not worked in the 3 months before the Voting Period commenced and 87 did not work during the Access Period and were not rostered during the Voting Period. The balance of 60 people includes 14 who had been engaged to work but had never worked a shift, and 3 who were absent on long term workers’ compensation.
[47] In a workplace with significant numbers of employees, it is inevitable the numbers of those who are covered or who may be eligible to vote will vary depending on when and how the relevant assessment is made. The same observation may be made about those engaged casually. The fluidity of the situation was noted by Jessup J in National Tertiary Education Industry Union v Swinburne University of Technology 19 (Swinburne). After observing there were three broad stages associated with enterprise bargaining, pre-bargaining steps, bargaining and the making of the agreement, Jessup J noted that bargaining may take many months and that the group’s composition may vary over time and that a request to approve an agreement will be a request to be made to the group employed at the time, being the whole of the access period;
“…The legislature must have contemplated that employees would, in the normal course of labour turnover, come and go during an extended bargaining period. There should, therefore, be no assumption that the employees employed at the notification time for the agreement under s 173 would be the same employees as those employed “at the time” of the provision of a copy of the agreement under s 180, or as those employed “at the time” of the employer’s request under s 181.
Indeed, in my view, the legislature must be taken to have made the contrary assumption. The architecture of these provisions inescapably involves the perception that those who are provided with a copy of the agreement and are requested to vote, on the one hand, need not be the same as those who were, at some previous point, notified of their representational rights, on the other hand. Those to whom a request under s 181(1) should be addressed are confined, in my view, to those who are employed at that time. No other conclusion makes sense of the statutory scheme.
It is not necessary to consider whether employees to whom a copy of the proposed agreement was given under s 180 should, or may, be included within the requested group under s 181. The present case does not depend on such fine distinctions. However, and although the question was not argued, I would be disposed to the view that the “time” referred to in s 180(2)(a) is the whole of the “access period”. Since that period is, at its later boundary, contiguous with the time of the request under s 181, the better view may be that such employees should be so included.” 20
[48] There is no dispute that Northcott’s permanent employees were properly notified and invited to vote on the proposed agreement. The dispute is instead centred on the steps taken by Northcott to notify and include casual employees.
[49] On 20 January 2021, Northcott issued a notification that a vote for the proposed enterprise agreement would be conducted between 28 January 2021 and 10 February 2021. This notification coincided with the start of the Access Period. 21 The 20 January 2021 notification was sent by email “to the Northcott email address for all permanent employees eligible to vote on the Agreement and all active casuals within the relevant classifications”. The subject line of the email was “Voting on the new Enterprise Agreement opens next week” and its contents included the following relevant statements;
“Your opportunity to vote on the new EA will open on Thursday 28 January 2021. Staff who are eligible to vote will receive an email with a link to the voting portal.”
“Who can vote?
All eligible staff (i.e. staff covered within the proposed Enterprise Agreement classification structure) will be able to vote, even if they are on leave.
Casual staff are eligible to vote if they work during the ballot period (28 January – 10 February) and/or in the calendar week immediately before it (20 January – 27 January).
If you believe you are eligible to vote but do not receive an email by 29 January, please contact [email protected].” 22
[50] The Access Period email contained links to several documents and was followed by a text message referring to the forthcoming opening of voting and where further information could be found. The message was sent “to the personal and work mobile numbers for all permanent Northcott employees eligible to vote on the Agreement and all active casuals within the relevant classifications”. 23
[51] Section 180(3) provides so far as is relevant;
“180 Employees must be given a copy of a proposed enterprise agreement etc.
Pre-approval requirements
(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.
Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i) the written text of the agreement;
(ii) any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.
(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:
(a) the time and place at which the vote will occur;
(b) the voting method that will be used.
(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).
…” [(4A) – (4C) omitted]”
[52] It may be seen from the section that;
• s.180(2) requires Northcott to take all reasonable steps to ensure relevant employees being those “employed at the time who will be covered by the agreement” are either given a copy of certain materials “during the access period for the agreement” or to ensure they have access to the documents “throughout the access period for the agreement”; and
• s.180(3) requires Northcott to take other steps to notify the relevant employees of voting arrangements.
[53] The evidence supports a finding that Northcott complied with s.180(2), at least as to the temporal aspects of its obligations. However, there is little evidence on which I can rely that would allow me to be satisfied that the Voting Notification was given to all “relevant employees” by the start of the Access Period and that which I have is largely the general material referred to above having been sent “to the Northcott email address for all permanent employees eligible to vote on the Agreement and all active casuals within the relevant classifications” and by text message. Instead of satisfying me that Northcott met the substance of s.180(3)’s requirement that the “relevant employees” be notified of the voting arrangements by the start of the Access Period, the evidence instead suggests relevant employees were notified in several stages (which is the second limb of the CPSU’s casual employee voting objections and dealt with later).
[54] How and why Northcott’s difficulties with the s.180 notifications occurred may be discerned from the explanation given in the evidence of Mr Tyrell, Northcott’s Human Resources Manager. Different parts of Northcott have different rostering systems and practices. Some use a system known as “Carelink” and publish rosters in advance of them being worked. Other parts of the business, including accommodation services “do not publish rosters into Carelink in advance. Rather, rosters are created in advance generally in hard copy form, and are uploaded to Carelink after the employee works the relevant shift. On some occasions, there can be a delay of a week or two after a person works a shift before their shift is entered into Carelink”. 24 There are also some parts of the business which do not use Carelink at all, such as Northcott’s administrative services.25
[55] Emerging from Mr Tyrrell’s evidence is obvious uncertainty on the part of Northcott, or at least an incompleteness about which casual employees may be eligible to vote. In short, Northcott did not at 20 January 2021, the start of the Access Period, have a complete list of the “relevant employees”, being those “employed at the time who will be covered by the agreement”. Instead, the complete list was only finally compiled after the Access Period had commenced with the evidence showing endeavours to obtain the required information started around the same time as the start of the Access Period and continuing well into the Voting Period. In particular the following chronology may be discerned; 26
• Wednesday, 20 January 2021
• Start of the Access Period
• Thursday 21 January 2021
• “on or around” that date Northcott ran a report of all casuals rostered on Carelink between 21 January 2021 and 10 February 2021, which showed 421 employees.
• Mr Tyrrell instructed Ms Karraz to email managers of business units which did not use Carelink. The request was to ascertain “confirmation of casual employees who had worked since the access period commenced or who were rostered to work during the remainder of the access period and voting period”.
• Wednesday, 27 January 2021
• The Access Period closed;
• The information sought by Ms Karraz on the instruction given by Mr Tyrrell on 21 January 2021 was completed (with me accepting at least some of the information may have been received earlier than that date); with it being the case that “By 27 January 2021, an additional 25 casuals had been identified as eligible to vote”.
• Thursday, 28 January 2021
• Start of the Voting Period;
• Mr Tyrrell instructed Ms Karraz to contact business units not using Carelink for confirmation of the casual employees who had worked during the access period or who were rostered to work during the voting period as well as to review updates to Carelink to identify all such employees;
• The first tranche of 446 casual employees were invited to participate in the vote.
• Friday, 29 January and Monday, 1 February 2021
• The second tranche of 221 casual employees were invited to participate in the vote;
• Thursday, 4 February 2021
• The third tranche of 29 casual employees were invited to participate in the vote.
• Monday, 8 and Tuesday 9 February 2021
• The fourth tranche of 12 casual employees were invited to participate in the vote.
• Wednesday 10 February
• The Voting Period ended at 5 PM.
[56] Northcott’s problems with compiling a complete list of relevant employees appear to have come about because of two reasons. Northcott has different rostering practices in different business units (while many parts of the business use a central rostering system, some do not). Likely there was also a contribution caused by the formulation used by Northcott to determine casual eligibility, namely that “Casual staff are eligible to vote if they work during the ballot period (28 January - 10 February) and/or in the calendar week immediately before it (20 January - 27 January)”.
[57] Jessup J in Swinburne noted that the group of employees required to be given a proposed agreement under s.180 need not be the same group to be requested under s.181 to approve the agreement. Such situation plainly is possible here. The Full Bench however has noted there is a need in considerations of this type to guard against voting manipulation through selection of a particular access or voting period. In McDermott Australia v AMWU 27 (McDermott) the Full Bench considered an appeal relating to an agreement in which 36 employees had been requested to vote on the agreement recording that it had been held at first instance that;
“…They were casual employees in the ordinary sense of being daily hire employees. They were not actually engaged in work or being paid at that time. Accordingly, it is apparent on the evidence that the employees who voted for the Agreement were not employed at the time.” 28
[58] The Full Bench then recorded it was not the case that casual employees ought be excluded because they were not performing work at the time of the vote and that Swinburne neither stood for the proposition that a casual employee need be “employed at the time” or “usually employed”;
“[35] The Commissioner was of the view that there was something wrong with the vote occurring while employees were not actually performing or being paid for performing work at the time of the vote. This in our view was incorrect; the status of the 36 casual employees at the time of the vote is a natural and expected phenomenon of being employed on a casual contract as per the Full Bench decision in Smiths Snackfood. In our view it would be inappropriate and counter intuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on to work on the day/s of the vote, or during the 7 day access period.22 There are obvious implications for voting manipulation adopting this approach. Swinburne is not authority for the proposition that a casual employee is only “employed at the time” they are rostered to work and are being paid. Swinburne eschewed the proposition that employed at the time included “usually employed”. In this matter as per cl 8 – Work Cycles of the Agreement, casual employees work a cycle of 21 days on duty and 21 days off duty (unless otherwise agreed); employees are not paid during their 21 day period off duty.”
[59] Neither is it the case that a determination about eligibility should be made on the basis of whether the employee was regular and systematic casual employee. In Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd T/A Manly Fast Ferry 29 (Noorton), the matter under appeal dealt with casual employees employed by Manly Fast Ferries with it being noted “Forty four employees cast a valid vote and 23 employees voted to approve the Agreement. One vote the other way would have had the result that the Agreement would not have been made”.30
[60] The Full Bench in Noorton encouraged an enquiry into the circumstances of casual employees in order to ascertain whether they may be employees for the purposes of s.180 and s.181. It is insufficient in such circumstances to include or exclude them only because they are regular and systematic casual employees;
“[30] As we have earlier noted, there was an absence of evidence before the Deputy President about the nature of the engagement which underpinned the casual employment of the persons who were asked to vote to approve the Agreement. It is plain on the evidence that at least some of the employees who were asked to vote to approve the Agreement did not work on the day of the vote or during the access period. It is difficult to see how one can conclude that these employees were “employed at the time” without evidence about the terms under which they were engaged. It is equally difficult to see how one can conclude that particular casual employees were “on leave” at the relevant time without evidence about the terms under which these casual employees were engaged.
[31] That the employer “considers” the employees are regular and systematic casual employees takes the matter no further. First, because the subjective opinion of the employer is not relevant to ascertaining objectively the nature of the employment. Secondly, that a person is engaged on a regular and systematic basis is not inconsistent with the person being a casual employee whose employment is ended at the conclusion of each engagement and relevantly was not “employed” at the time he or she was asked to vote or during the access period. There is no evidence, for example, of a firm advance commitment from Noorton to continuing and indefinite work according to an agreed pattern of work which was given to any particular casual employee. This is because there is a complete absence of any material which goes to the nature of the engagement of the casual employees at issue.
[32] During the appeal, Noorton referred to the decision in McDermott Pty Ltd v the Australian Workers’ Union and Anor in aid of the Deputy President’s conclusion that the cohort of casual employees who were asked to vote were employed at the time. Whilst we may have some misgivings about the correctness of McDermott, it is unnecessary for us to express a concluded view. The decision is plainly distinguishable on the facts. The critical conclusion in McDermott was that the casual employees “accepted on-going employment” with McDermott as evidenced by the employer’s payroll records and the evidence of Mr McMahon, and as such they were employed by McDermott at the time the Agreement was made. Their employment comprehended work within McDermott’s scope of work for the Project. Unlike the facts in Swinburne, the casual employees were employed at the time, they were not in a cohort of “likely to be engaged” or “usually employed.” The reasoning adopted by the Full Bench in McDermott might be said to be more akin to a conclusion that the relevant employees were not “casual employees” at all but rather were “ongoing employees” who had accepted “ongoing employment”.
[33] There was no evidence before the Deputy President that the casual employees who were asked to vote to approve the Agreement accepted ongoing employment with Noorton. As we have already observed, there was no evidence about the nature of the casual employment of the employees or the terms under which these employees were engaged. The decision in McDermott therefore provides no assistance.” (endnotes omitted)
[61] Further, Noorton held there is a need for cogent evidence on the subject of the employee’s employment status in order to discharge the obligation to be satisfied the agreement has been made;
“[35]For these reasons, we consider that the Deputy President erred in his conclusion that the relevant employees who are casual employees and who were asked to vote to approve the Agreement were all “employees employed at the time”. It is to be remembered that the vote to approve the Agreement succeeded in effect by one vote. This required some not insignificant attention to that which the evidence did or did not disclose vis-a-vis individual members of the cohort of employees who were asked to approve the Agreement. It follows that on the basis of the paucity of evidence before the Deputy President about the nature of, and the terms under which employees were engaged as casual employees by Noorton, he could not be satisfied that the Agreement was made in accordance with s.182(1) of the Act and so could not be satisfied as to s.186(2)(a).” 31
[62] Evidence was received in this matter in the form of witness statements from two people who have been employed at various times by Northcott but who were not required for cross-examination. Each reported that they had not been invited to vote for the Agreement while believing that they were entitled to do so. Their circumstances may be summarised as follows;
Francis Henry 32
• Francis Henry had been employed by the NSW State Government entity previously operating Northcott commencing in 1999. In November 2017 her employment was transferred to Northcott with her receiving a letter of offer from the organisation at about the same time. Amongst other things the letter of offer stated;
“Continuation of your employment status
Your existing employment has now transferred to Northcott Supported Living. This means you will continue to be employed on the same basis as you were employed immediately prior to the transfer. That is, as a permanent (ongoing), fixed term (temporary) or casual employee. Any temporary arrangements (e.g. reduced hours for return to work) will not affect your contractual employment status.” 33
• For several years until August 2020 Ms Henry had been working an average of 3 to 5 shifts per week for Northcott. Unfortunately, in August 2020 her health began to decline and she took fewer shifts and as a consequence “temporarily ceased working due to my declining health on 26 November 2020 until 6 February 2021”.
• In January 2021 when she expressed an interest in returning to work she was told that she would need to do some further training before she could. Ms Henry then commenced training of some level. That included two hours of computer training in February; three hours fire training in March; a full day unspecified subject course in April and a full day first-aid refresher in May 2021. She either was paid or expects to be paid for all of the training. When she was asked to cover shifts on 10 and 23 March she was unable to do so “due to logistics” and in late March when she queried when she would be able to return to work was told that such could occur when she was up-to-date with her training and when shifts became available.
Joshua Alvarado 34
• Joshua Alvarado was employed by the NSW State Government entity previously operating Northcott from 2008. From that date until 2018 he worked on a number of Northcott’s premises and since 2018 has worked exclusively in one home.
• As with Ms Henry, his employment was transferred to Northcott in November 2017 and was provided with a letter of offer making the same statement about the continuation of his employment status as with Ms Henry. In 2019 he became qualified as a teacher and his hours with Northcott changed to weekends and during school holidays, with him working at least one or two shifts every fortnight during the school term and then three shifts during the school holidays. He estimates that the shifts are an average 5 to 8 hours duration.
• He was not employed or rostered during the Access and Voting Period; “There was no particular reason for this and it was not out of the ordinary. The most recent shift I had worked was on 18 January 2021”. When Mr Alvarado queried his eligibility to vote for the agreement he was told he was not eligible because he was not working during the voting period and was disappointed that such was the case. Between 10 February 2021 and 8 April 2021 when Mr Alvarado signed his witness statement he worked four shifts for Northcott.
[63] The witness statement of the CPSU’s Jessica Moore related similar reports to the union from other members. After noting that members have explained to her that the Northcott model of care relies heavily on utilising casuals and that there is no group home within Northcott that does not utilise casual employees Ms Moore advised that;
“After the Ballot for the Northcott Agreement went out to vote on 28 January 2021 industrial staff at the CPSU/PSA started to receive reports about the voting process, of particular concern was employees were having to identify themselves as being eligible to vote resulting in:
a. some employees who did work but did not get access to the portal; or
b. some employee who when identifying themselves as needing access took several days to get access.” 35
[64] There are some obvious practical difficulties for an employer employing significant numbers of casual employees working variable hours and seeking to comply with its obligations under ss.180 – 181. Those practical difficulties are likely made no less difficult for reason of the fact that some casual employees will sometimes pick up work at relatively short notice and work, even though not formally rostered to do so.
[65] So far as is relevant, s.180 requires all reasonable steps be taken by an employer at two different points in time by the start of the access period the employees employed at the time must be notified of the time and place of the vote and the voting method (s.180(3)); and during the access period, employees must be given a copy of prescribed materials, or they must have access to copies of the materials throughout the access period. (s.180(2)). Section 181 requires the employer notify employees employed at the time to approve the agreement by voting for it.
[66] The Full Bench has found that the requirements in s.180(2), (3) and (5) operate in respect of the same cohort of employees and the formulation of “relevant employees” in s.180(2)(a)) is the same formulation as is used in s.181(1). Further, there is an intention within the Act to ensure new employees are included in the “fixed cohort” of relevant employees for the purposes of s.180 but that the cohort may not crystallise until the end of the access period and at that time an employer may make a request that employees employed at that time who will be covered by the agreement vote to approve it. 36
[67] In a practical sense, on 20 January 2021 Northcott had to provide information materials to certain casual employees, being those “employed at the time who will be covered by the agreement”. Separately at another time it had to “take all reasonable steps to notify the relevant employees” of voting arrangements. The timing of the notification is flexible; it may be no earlier than 21 days after the day of the last Notice of Employee Representation Rights (s.181(2)) and it may be no later than by the start of the access period. Against these matters it should be recalled that because of the issues identified in Swinburne, the composition of relevant employees may well be different between the start of the Access Period and the end of the Voting Period.
[68] The formulation adopted by Northcott for eligibility for casuals to participate in the vote has two parts; “those as at 28 January 2021 who had worked during the access period of 20 to 27 January 2021 or were rostered to work during the voting period of 28 January 2021 to 10 February 2021”. 37 Both parts require a factual enquiry by Northcott; did the person actually work in the first period? Were they rostered to work in the second?
[69] Northcott’s circumstances, summarised from its submissions, include that the size and scale of its organisation and variety of rostering methods (or their absence) mean that a point-in-time listing of employees satisfying either list is not readily available.
[70] The CPSU’s objection on this matter is that “the Commission cannot be satisfied that the Agreement was genuinely agreed to because Northcott excluded a large group of casual employees who were employed at the time of the vote and who would be covered by the Agreement from access to the required documents during the access period and/or from the voting process”. 38
[71] The evidence available about this contention includes on the one hand the CPSU statements which identify a series of contacts from members about their eligibility to vote and on the other that from Northcott’s Mr Tyrrell who referred to the several waves of contact with eligible voters, as well as Northcott’s determination there were 224 ineligible casual employees and how he categorised them. There is not a suggestion from the CPSU that the “large group of casual employees” deemed ineligible when actually eligible is larger than the group identified by Mr Tyrrell.
[72] Perusal of the categories identified by Mr Tyrell (shown at [40] above) and the numbers of people within them shows the following;
• The first, second and third categories are best treated as not reasonably included in a list of ineligible casual employees, since on no reasonable basis could the people within them be said to be “employees employed at the time”. The three categories refer to 43 people; being those recorded as having died (2 people), employment terminated (32), or being eligible to vote for reasons other than their casual employment status (9);
• The fourth category deals with people who have been hired but not worked a shift (14);
• The fifth of Mr Tyrell’s categories refers to people on long term workers’ compensation absence (3);
• The sixth category is of people who did not work in the 3 months before the Voting Period and were not rostered to work during that period (77);
• The seventh and final category is of people whose circumstance did not meet the eligibility criteria set by Northcott because they did not work during the Access Period and were not as at 28 January 2021 rostered to work during the Voting Period (87).
[73] The Full Bench noted that some of the issues associated with these matters in Appeal by Shop, Distributive and Allied Employees Association and Others (SDA) were foreshadowed in the Explanatory Memorandum to the Fair Work Act. In particular, the Memorandum deals with the circumstance in which some temporary separation from the workplace which resolved during the access period with SDA holding the following;
“[35] In relation to the obligation to provide access to the proposed agreement, the Explanatory Memorandum also states (at paragraph 740):
“There may also be situations where an employee commences employment or returns to work during the access period. For example, a new employee may commence employment during the access period or an existing employee who was leave, such as maternity leave, may return to work during the access period. In situations such as these, the employer must take all reasonable steps to ensure that the employee is given a copy of the agreement and other materials on the day the employee commences employment or returns to work. FWA will consider whether the employer took all reasonable steps to ensure that relevant employees were given access to the agreement during the access period in deciding whether to approve the agreement.”
[36] The above passages indicate an express acknowledgement that the constitution of the workforce may change during the access period and an intention to accommodate this by ensuring that new employees are included in the fixed cohort of employees to whom the s 180 requirements relate. It is also implicit that if new employees engaged during the access period will form part of the fixed cohort of “relevant employees” for the purpose of the s 180 requirements, this cohort will not crystallise until the end of the access period. That is the same time at which the employer may, pursuant to s 181(1), make a request that employees employed at that time who will be covered by the agreement vote to approve it. This supports the conclusion that the requirements in s 180(2), (3) and (5) and the request that may be made pursuant to s 181(1) once these requirements have been complied with operate by reference to the same cohort of employees.”
[74] The Full Bench then expressly found that if employees were not employed at the “time” referred to in s.181(1) as construed by it then they did not have any entitlement to participate in the voting process. In the context of the Full Bench’s reasoning on the subject of time, including its reference to the Explanatory Memorandum which deals not only with new employees but also returning employees, the proposition arises that even though one may be regarded as having an employment contract of some subsisting nature, the test of eligibility is not of whether the person is an employee but of whether the person is one of the “employees employed at the time”. Numerous parts of the Act draw a distinction between someone who is an employee and an employee who is employed at a particular time or on a particular basis.
[75] In summary, Swinburne involved a situation in which a proposed enterprise agreement was provided to those employees employed at the time as well as all sessional employees of the university. In finality, the court held that the obligation on Swinburne was to provide notification of those employees employed at the notification time and that it was misleading to include everyone in the provision of information an invitation to vote. The later matter of McDermott held that it was inappropriate and counter intuitive to disenfranchise employees on the basis that they were not rostered during the seven day access period voting period. Although expressing misgivings about the correctness of McDermott on the subject of whether the cohort of casual employees who were asked to vote were employed at the time, but without determining the question, 39 Noorton found that it was difficult to conclude “that these employees were “employed at the time” without evidence about the terms under which they were engaged”.40
[76] I am satisfied from these considerations that the following may be said about each of Mr Tyrrell’s seven categories of the casual employees he deemed ineligible to participate in the vote for the Agreement;
• As already mentioned I do not consider there is a case for the employees within the first, second and third categories to be considered eligible to vote for the agreement. It was reasonable for Northcott to exclude them from inclusion within the pool of eligible employees for the reason that they had either died or were no longer an employee of Northcott or for some other reason they already had a vote for the making of the Agreement;
• It was reasonable for Northcott to exclude from the vote people who may have been hired for future work but had not yet worked any shift for Northcott including during the access period or the voting period. They were not “employees employed at the time”.
• The fifth category is of 3 people who were absent on long term workers’ compensation. Without evidence as to their terms of engagement it is difficult to conclude they should not have been invited to participate in the vote. 41 Depending on the facts of their particular case they may well be “employees employed at the time”.
• The sixth category consists of 77 people who did not work in the 3 months before the Voting Period and were not rostered to work during that period. Both Ms Henry and Mr Alvarado are likely within this category.
Ms Henry had an ongoing connection with the enterprise for many years, however the strength of that connection broke to some degree over last year and this, first with a reduction in hours from August 2020 and then a full withdrawal from work in November 2020. By February 2021 she was ready to return to work, however Northcott required her to undertake training before she could be considered for work and by late March 2021 none had been performed or rostered (although some had been offered). Whether or not Northcott’s decisions in those respects was fair and in accordance with its obligations are not the subject of this decision. Instead what is the subject is whether Ms Henry had an entitlement to vote for the Agreement since she was one of the people employed at the time, assessed in accordance with the criteria set out above. I doubt that she was. She may have had some claims to return to work but she was not, at the time the Access Period started, one of the “employees employed at the time”. Likely she was an employee, but she was not one “employed at the time”.
A similar situation emerges with Mr Alvarado whose latter periods of employment by Northcott revolved around his teaching commitments. Despite him saying that he would do at least two shifts for Northcott on weekends during school term he had not done any since mid-January 2021 and did not have any rostered in the near future. I therefore do not find that he was an employee employed at the time of the Access Period or the Voting Period.
• The seventh category is of 87 people. I hold a concern that the exclusion from eligibility of those people within the seventh category, of those who did not work during the Access Period and were not as at 28 January 2021 rostered to work during the Voting Period was an error on Northcott’s part since it had the potential to exclude people who were relevant employees. While the Access Period spans a period of three weeks, the nature of casual employment is often such as to suggest that the variability of employment rosters as well as factors outside of employment would likely mean that at least some of the 87 had a reasonable case to say they should be allowed to vote. Then again, it is likely some of the people may not have such a case. However, there is an absence of evidence about the circumstances of the people involved. 42 Because of that absence of evidence I cannot conclusively determine their eligibility.
[77] The consequence of this consideration is that there are potentially 90 casual employees who may have been incorrectly assessed as not being “employees employed at the time” and thereby not given an opportunity to vote for the making of the Agreement. The 90 comprise the 3 on long-term workers’ compensation absences and the 87 in Mr Tyrell’s seventh category.
[78] In context though these are 90 people out of the 2,448 employees covered by the Agreement and are to be compared with the 1,870 employees who voted in the ballot. The effect of an issue similar as this is referred to by the Full Bench in SDA when undertaking redetermination of the application for approval;
“[43] In relation to that element of the genuine agreement requirement in s 188(1)(b), there remains an issue to be dealt with arising from the fact that Kmart erroneously included in the voting cohort persons employed after the start of the voting process on 21 November 2018 up to 28 November 2018 who had not been employed immediately before the commencement of the voting process or during the access period. It is necessary to consider whether this error is capable of affecting the conclusion that a majority of employees who were eligible to vote in accordance with s 181(1), and who voted, cast a valid vote to approve the Agreement. The reported outcome of the vote (in the Form F17 statutory declaration of Ms White) was that 23,110 employees voted, and 21,191 of those voted in favour of approval of the Agreement. We were advised by senior counsel for Kmart, and we accept, that its records disclosed that 1,422 employees who were employed after the voting process commenced but had not been employed at the time of the request/access period were included in the voting cohort. That being the case, it is clear that Kmart’s error could not have affected the overall result and that the Agreement was made in accordance with s 182(1).”
[79] The circumstances of this matter are likely not dissimilar since Northcott’s error also would likely not have affected the overall result. Even if all 90 of the affected employees were given an opportunity to vote and did so, voting against the making of the Agreement, it would still have been made.
[80] As a result of the foregoing considerations, I find that Northcott was in error in excluding from the vote for the agreement up to 3 employees on long-term workers’ compensation absences and 87 casual employees solely on the basis that they did not work during the Access Period and were not, as at 28 January 2021, rostered to work during the Voting Period.
Additions to the roll of voters
[81] The second limb of the CPSU’s objection about casual voting relates to the fact that those casual employees who were considered eligible by Northcott to participate in the vote were invited to do so in four tranches commencing on 28 January 2021 and ending on 9 February 2021, the day before the voting closed. The first tranche was on 28 January 2021, the first day of the voting period and with a comprising 446 employees is obviously the largest of the four notifications. The second tranche, a few days later on 29 January and 1 February 2021 invited 221 casual employees to participate. The third and fourth tranches respectively on 4 February and then on 8 and 9 February 2021 invited the participation of 29 and then 12 casual employees. In relation to the situation the CPSU argued that Northcott had engaged in the exercise of expanding the cohort of casuals entitled to vote and it did this by “allowing casual employees who worked during the access and/or voting periods, but had not been otherwise granted access to the relevant material, a vote”. 43 It argued with reference to SDA that such was not permissible.
[82] The error ascertained by the Full Bench in SDA dealt with the fact that a considerable number of employees had been employed after the voting process commenced and were included in the voting cohort when it should be taken that the role of voters is closed when voting commences;
“[37] In the Decision, the Deputy President determined that those to whom a request might be directed under s 181(1) includes employees first engaged in the period from the commencement of the voting process until its end, and also casual employees who worked in that period but who did not work during or at the end of the access period. The basis of that approach is not identified in the Decision. It was not arrived at through any process of the proper construction of s 181(1). The Deputy President made reference to Swinburne and to a Full Bench decision which summarised the effect of Swinburne, CFMMEU v Noorton Pty Ltd t/a Manly Fast Ferry, but neither of these decisions provides any support for the approach taken by the Deputy President. It is, with respect, logically nonsensical that a request for employees to vote to approve a proposed agreement remains operative on an ongoing basis even after voting has already commenced and even, perhaps, after a majority have already voted to approve the agreement and it has therefore been “made” in accordance with s 182(1). Such an approach would defeat the purpose of s 180, since it would allow newly-engaged employees to vote who had not been given access to the agreement or have it explained to them. It would also give rise to the practical difficulty, where there is an extended voting period, that an employer would have to continually add to the “roll” of voters and provide with a means of voting any new employees who are engaged up until the very end of the voting process. That practical difficulty is amply illustrated in this case whereby Kmart, which erroneously took the same approach as the Deputy President, attempted to add to the voting cohort employees employed on or after 21 November 2018, but could not reach a practical solution as to how employees employed on or after 28 November 2018 could be added to the electronic voting system and therefore introduced an arbitrary cut-off date. We consider it unlikely that the FW Act intended to establish a hitherto unknown and novel process of voting whereby the “roll” of voters is not closed when voting commences, but may be added to as voting continues.”
[83] The explanation given by Mr Tyrrell in his evidence as to why there were several waves of rostering invitation refers to the organisation’s different rostering practices;
“12. Different business areas with Northcott have different rostering practices. In particular:
(a) some areas of the business publish rosters in advance by logging the roster into a database called "Carelink". Carelink is a centralised rostering system used by payroll to calculate pay based on shifts worked;
(b) some areas of the business, including accommodation services, do not publish rosters into Carelink in advance. Rather, rosters are created in advance generally in hard copy form, and are uploaded to Carelink after the employee works the relevant shift. On some occasions, there can be a delay of a week or two after a person works a shift before their shift is entered into Carelink; and
(c) some areas of the business, such as Administrative services, do not use Carelink at all.
13. On or around 21 January 2021, Northcott ran a report of all casuals rostered on Carelink between 21 January 2021 and 10 February 2021, which showed as at that date there were 421 casuals rostered to work in that period.
14. On 21 January 2021, I instructed Ms Victoria Karraz (IR/ER Consultant employed by Northcott) to email managers of casual employees that do not use Carelink at all, such as Administrative services, requesting confirmation of casual employees who had worked since the access period commenced or who were rostered to work during the remainder of the access period and voting period. By 27 January 2021, an additional 25 casuals had been identified as eligible to vote.” 44
[84] The first tranche of casual voters comprises 446 people; which correlates with the details of 13 and 14 above. The second, third and fourth tranches comprise 262 people, with the derivation of those numbers and the staging of Northcott’s voting requests dealt with by Mr Tyrrell in the following way;
“17. Also on 28 January 2021, I instructed Ms Karraz to contact managers of casual employees that did not publish rosters in Carelink to request confirmation of casual employees who had worked during the access period or who were rostered to work during the voting period. I also instructed Ms Karraz to review updates to Carelink to identify all such employees.
18. As a result of the above steps, Northcott sent voting links to a further 262 eligible casual employees. Of those, voting links were sent to 221 employees on 29 January and 1 February 2021 (being the second and third business days of the two week voting period). A further 29 voting links were sent on 4 February 2021, with the remaining 12 voting links sent on 8 and 9 February 2021.”
[85] Ms Karraz’s evidence confirmed that not all business units rostered in periods that would overlap with the dates of the Access Period or Voting Period. 45
[86] What emerges from consideration of these matters is that Northcott was not certain by the start of the Access Period or even by the start of the Voting Period which of its casual employees met its own definition for eligibility to vote. That situation seems to have arisen not because of any heightened levels of churn amongst its workforce but rather because it did not have comprehensive central visibility of work performed or rostered by its casual employees.
[87] I am not satisfied from the evidence that the voting may be characterised as a situation in which the roll of voters was not closed when voting commenced. Instead, the evidence shows that although Northcott had a fixed definition of those who would be eligible to vote, namely “those as at 28 January 2021 who had worked during the access period of 20 to 27 January 2021 or were rostered to work during the voting period of 28 January 2021 to 10 February 2021”, and that such definition meant the cohort would not change the fact was that the identity of those who could vote was not precisely known by the time of the commencement of the Access Period. To some extent, this is a product of the definitions used by Northcott which require two examinations in respect of any given casual employee – did they work in the Access Period?; are they rostered to work in the Voting Period? To another extent it is a product of the different rostering systems used by Northcott.
[88] While those observations may be made and the practicalities of compilation of the voting roll are obvious, the practicalities were Northcott’s to own and control. In the same way accounting procedures might be put in place to ensure stock is accurately counted on a particular date or accounts payable for a soon-to-close accounting period are required to be submitted by a nominated date Northcott could have set a series of instructions for its business units and rostering staff that required certainty about the people who worked during the Access Period or were rostered in the Voting Period to be disclosed by a nominated date and time. For example, it could have been stated to the managers of the business units concerned;
“You are required to provide to Northcott’s head office by 4 PM on Wednesday 27 January 2021 a report of all people who worked during the Access Period and a report of all people who are rostered to work during the Voting Period. The reports must identify employees by their full name and Northcott payroll number and provide a current email address and phone number.”
[89] Such an instruction could have been issued to business unit managers several weeks or a month in advance of the date by which the material was required. The core of the reports could most likely be completed well in advance, although certainly some finessing close to the date and time of its submission would be required to ensure the accuracy of the reports.
[90] The errors made by Northcott in this regard are likely twofold. It was an error to allow a situation in which those invited to vote were added to during the voting period and in the case of the last tranche of 12 employees only a day or two before the vote closed. SDA disapproves of a situation in which a request to vote is given after voting has commenced and potentially even after an agreement has been made 46 (not that such would be known to anyone in the case of vote conducted by secret electronic ballot). The procedure adopted by Northcott was also possibly not in conformity with Northcott’s obligation to provide access to information required by s.180(2). This aspect is indicated as a possible error since the evidence is ambiguous as to whether all employees were provided with access to the relevant materials whether or not they were eligible to vote or whether it was provided to employees selectively in accordance with an assessment by Northcott they were eligible to vote.
Conclusion on casual voting
[91] In summary, I have found Northcott was in error in several respects in relation to the voting of casual employees. The errors are matters that would cause me to form the view there is not genuine agreement to the Agreement since I am unable to be satisfied of two relevant matters;
• First, I am not satisfied all employees were provided with the information required by s.180(2) or notified of the voting arrangements as required by s.180(3) or had the terms of the agreement and the effect of those terms explained to them (s.180(5)). In these regards, I note that it may be the case that ALL Northcott employees were provided with this information, and that the group of 90 casual employees excluded from voting nevertheless received the information, however the evidence on the subject is incomplete.
• Second, I am not satisfied all employees were requested to approve the agreement by voting for it since up to 90 casual employees were excluded.
[92] After consideration of the circumstances by which these errors came about as well as the circumstances of Northcott’s business and employment arrangements, my inclination is to consider this to be an error of the type to which s.188 applies. I am of the preliminary view these matters may be minor procedural or technical errors of the nature contemplated by s.188(2) and that it may then be appropriate for me to exercise a discretion in that regard and find the Agreement is nonetheless genuinely agreed.
[93] Section 188 is in these terms:
“188 When employees have genuinely agreed to an enterprise agreement
(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174.”
[94] The purpose and use of s.188(2) was discussed by the Full Bench in the matter of Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others (Huntsman). 47 In that matter, the Full Bench held that a failure to comply with a procedural requirement will constitute a “procedural error” with a procedural requirement being one which requires an employer to follow a particular process or course of action.48 A procedural error is to be distinguished from a technical error which includes an obligation to comply strictly with the form and content of an instrument. While a single error may have both procedural and technical components, what constitutes a “minor” error calls for an evaluative judgement having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances. The Full Bench then concluded this about the characterisation and determination of minor errors:
“7. Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a ‘minor error’. For example, informing the employees of the matters in ss.180(3)(a) and (b) just after the start of the 7 day access period (say 6 days before the start of the voting process) is likely to be a ‘minor error’ in most cases. But it will depend on the circumstances. If it is the first Agreement at the enterprise; the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a ‘minor error’. Conversely, only informing the employees of the time and place at which the vote will occur some 4 days before the voting process starts may be a ‘minor error’ where there is a history of bargaining at the enterprise; the Agreement is, in effect, a ‘roll over’ Agreement; the employer takes further active steps to remind employees of the time and date of the vote; and a high proportion of employees actually vote.” 49
[95] I consider the appropriate course in this matter is to invite the parties’ consideration of my preliminary views and to give them an opportunity to provide such further material as they wish me to consider before determining the subject and to afford them an opportunity to be heard. Directions for that purpose will be issued at the same time as this decision.
Whether sufficient steps taken to explain the terms of the Agreement.
[96] The CPSU contends that insufficient steps were taken by Northcott to explain the terms of the Agreement and the effect of those terms insofar as a particular wage rate is concerned, as well as omitting to explain a reduction in recall to duty payments and failing to adequately explain different travel arrangements. The CPSU particularised its argument on these matters in the following manner (each with reference to materials in attachments to Northcott’s Form F17 Employer’s Declaration, signed by Ms Karraz);
a. Particulars of the wage rate for a Disability Support Worker ('DSW') 4 to 10 describes that it will 'revert from $30.95 per hour' although fails to specify that the wage rate will be reduced (page 6 of Attachment 7).
b. The statement that 'Shift Loadings & Allowances' provide a 'higher on-call allowance than under the Copied State Award ('CSA')' omit the detail that recall to duty under the CSA is currently paid at a more beneficial 'minimum of four hours work at the appropriate overtime rate' as per Clause 10(3)(i) of the Crown Employees NSW Department of Communities and Justice (Community Living Award) 2019 and therefore represents a reduction in the conditions of employment.
c. Attachment 25A of the Respondent's Form 17 declaration, incorrectly states that there was no equivalent provisions relating to Travel (page 18) despite multiple provisions in the CSA in respect of Travel Compensation (Clause 26 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009), Excess Travel Compensation (Clause 27), Waiting Time (Clause 28), Meal Expenses (Clause 29) and particularly Allowance payable for use of a private vehicle (Clause 36).” 50
[97] Northcott’s submissions firmly rebut the first two of the CPSU concerns, highlighting errors on the part of the union and submitting that its information on those subjects (rates for DSW 4 – 10 employees and the recall to duty allowance) accurately reflect the respective entitlements. It does, however, concede an “inadvertent omission” of information provided for the last of the concerns (travel expenses) although submitting the omission likely did not disadvantage any person or impact their decision;
• In relation to the DSW 4 to 10 rate, Northcott point out that the relevant material does not say the DSW 4 to 10 rate will "revert from $30.95" per hour, but rather that it says, “revert to $30.95 per hour”. 51 I am satisfied that the information material circulated by Northcott states what the organisation contends.52 Accordingly, no argument of incomplete or insufficient information may be made out on this subject.
• On the matter of recall to duty allowance, Northcott submit that the page following that referenced by the CPSU correctly compares the payments to the referenced State Award and that accordingly there is no omission on its part. 53 I am satisfied that the information material circulated by Northcott states what the organisation contends.54 Accordingly, no argument of incomplete or insufficient information may be made out on this subject.
• On the matter of travel expenses, Northcott acknowledge that the relevant information to employees does not include reference to clauses 26 – 29 and 36 of the referenced State Award and submit it was an inadvertent omission. However, it submits that the provisions are addressed in another of its information materials and that;
“In any case, it is implausible that the absence of references to those provisions would have disadvantaged any Disability Support Workers voting on the Agreement or impacted their decision, taking into account that:
(a) employees employed as Disability Support Workers only rarely undertake duties in which they incur travel, accommodation and meal expenses; and
(b) the Agreement does not propose significant changes to those conditions.” 55
While such submission may explain the consequences of the error, it does not mean there was no error and it does not mean that what may be only a minor error does not require further consideration. Northcott’s obligation under s.180(5) was to “take all reasonable steps” to ensure the terms and the effect of the terms of the proposed agreement were explained. While I am satisfied that such was endeavoured to be done, the explanation given to employees otherwise under the Community Living Award was incorrect in one respect. My preliminary view on the matter is that it is a minor procedural or technical error of the type contemplated in s.188 and that the Commission is able to exercise its discretion and find that there is genuine agreement notwithstanding the error. In the same way as for the matter of the excluded casual employees, the parties will be invited to provide their views about an exercise of discretion by the Commission.
CONCLUSION
[98] For the reasons set out above I am satisfied the statutory criteria for approval of the Agreement have been met other than for the matter of genuine agreement. My concern in respect of genuine agreement is limited to two matters, namely the excluded casual employees and the information provided by Northcott to employees working under the Community Living Award about the effect of the Agreement’s terms in respect of travel expenses. My preliminary view is that notwithstanding such concerns I may still be satisfied there is genuine agreement for reason the matters are minor procedural or technical errors to which the provisions of s.188(2) apply.
[99] Before deciding the matter, I invite the parties to provide their views. I also invite the views of the bargaining representatives about each of the undertakings given by Northcott and proposed to be accepted by me. Those views if any are to be given within 7 days of the date of this decision.
[100] Directions for these purposes will be issued at the same time as this decision. Any party objecting to an exercise of discretion under s.188 will have 7 days from the date of this decision, followed by a 7 day period for those supporting an exercise of discretion. If needed a hearing on these matters will be held on Thursday, 17 June 2021. The Directions will be in the following form;
[1] The Commission is of the preliminary view that a discretion may be exercised under s.188(2) of the Act in order to make a finding it is satisfied the Northcott Enterprise Agreement 2021 – 2023 is genuinely agreed despite the following errors on the part of the Applicant, The Northcott Society;
1. In relation to up to 90 casual employees;
a. the possible failure to provide them with the information required by s.180(2);
b. and the failure to include the employees in Northcott’s request to the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it; and
2. An inaccuracy within Northcott’s explanatory materials on the subject of travel expenses and its assertion that a relevant State Award had no equivalent provisions.
[2] Any person or bargaining representative opposing the Commission’s exercise of discretion on any or all of the above matters is directed to file and serve such material as they desire the Commission to take into account by no later than Friday, 4 June 2021 at 4 PM.
[3] Any person supporting the Commission’s exercise of discretion on any or all of the above matters is directed to file and serve such material as they desire the Commission to take into account by no later than Friday, 11 June 2021 at 4 PM.
[4] Further, the Commission invites the bargaining representatives in this matter to provide their views in writing about the undertakings given by Northcott and set out at paragraph [11] of its decision dated 28 May 2021, [2021] FWC 2964. Such views, if any, are to be filed and served by no later than Friday, 4 June 2021 at 4 PM. Should Northcott desire to respond, such is to be filed and served by no later than Friday, 11 June 2021 at 4 PM.
[5] Should a hearing on the above matters be sought by any person or bargaining representative or the Commission considers a hearing to be desirable such hearing will be on Thursday 17 June 2021 at 10 AM.
[6] Liberty to apply generally is given to all parties for further or alternative directions.
COMMISSIONER
Appearances:
Mr J Lovell and Ms O McIntosh, Solicitors for the Applicant
Mr T Selvin, of Counsel for the Community and Public Sector Union
Ms P Kelly, for the Australian Nursing and Midwifery Federation
Mr E Yap, for the Health Services Union
Hearing details:
Melbourne (via video conference);
12 April;
2021.
Final written submissions:
19 April 2021 for the Applicant
27 April 2021 for the Community and Public Sector Union
Printed by authority of the Commonwealth Government Printer
<PR730105>
1 Form F17, Employer’s Declaration, items 25 & 26, Hearing Book p.118.
2 Northcott Enterprise Agreement 2016 – 2018 [2017] FWCA 2164, [47], [48].
3 Ibid, [53].
4 Correspondence from Northcott’s solicitors, 22 March 2021; Hearing Book pp.473 – 474.
5 Ibid.
6 Transcript, PN 334 – 335.
7 Transcript, PN 337.
8 Transcript, PN 392.
9 Email from ANMF, 19 April 2021.
10 Form F17,item 26; Hearing Book p.118.
11 Ibid, item 6; Hearing Book p.81.
12 Exhibit A1, Witness Statement of Glenn Tyrell, [6]; Hearing Book p.488.
13 Exhibit A1; Hearing Book p.488.
14 Form 17; item 20; Hearing Book p.109.
15 Exhibit CPSU 5, Submissions of the CPSU, [21]; Hearing Book p.525.
16 Ibid.
17 Form F18, Declaration of an employee organisation, Attachment TP-01; Hearing Book pp.498 – 499.
18 Ibid, Attachment TP-02; Hearing Book pp.500 – 501.
19 [2015] FCAFC 98; 251 IR 209.
20 Ibid, [23] – [25].
21 Form F17, item 20; Hearing Book p.108.
22 Ibid, Attachment 12; Hearing Book pp.180 – 181.
23 Ibid, item 20; Hearing Book p.108.
24 Exhibit A1, [12(b)]; Hearing Book p.489.
25 Ibid.
26 Ibid, [16] – [18]; Hearing Book pp.489 – 499.
27 [2016] FWCFB 2222; 255 IR 146.
28 Ibid, [7].
29 [2018] FWCFB 7224.
30 Ibid, [5].
31 Ibid.
32 Exhibit CPSU 2, Witness Statement of Francis Henry; Hearing Book pp.560 - 561.
33 Ibid, Attachment FH – 01; Hearing Book p.562.
34 Exhibit CPSU 4, Witness Statement of Joshua Alvarado; Hearing Book pp.570 – 571.
35 Exhibit CPSU 5, Witness Statement of Jessica Moore; Hearing Book p.535.
36 Appeal by Shop, Distributive and Allied Employees Association and Others [2019] FWCFB 7599; 291 IR 233, [34] – [36].
37 Form 17; item 20; Hearing Book p.109.
38 Exhibit CPSU 5, Submissions of the CPSU, [25]; Hearing Book p.525 the reference to SDA is a reference to Appeal by Shop, Distributive and Allied Employees Association and Others [2019] FWCFB 7599; 291 IR 233.
39 [2018] FWCFB 7224, [32].
40 Ibid, [30].
41 See Noorton, [2018] FWCFB 7224, [30].
42 Ibid.
43 Exhibit CPSU 5, [36]; Hearing Book p.528.
44 Exhibit A1; Hearing Book p.489.
45 Transcript, PN 149 – 150.
46 [2019] FWCFB 7599, [37].
47 [2019] FWCFB, [318].
48 Ibid, [117] (2) – (3).
49 Ibid, [117].
50 Exhibit CPSU 5, [41]; Hearing Book pp.530 – 531.
51 Exhibit A2, [36]; Hearing Book p.486.
52 Form F17, Attachment 7, Simplified Guide; Hearing Book p.153.
53 Transcript, PN 295 – 296.
54 Form F17, Attachment 7, Simplified Guide; Hearing Book pp.153 – 154.
55 Exhibit A2, [40] – 41]; Hearing Book pp.486 – 487.