Application by WorkPac Mining Pty Ltd
[2016] FWC 251
•14 January 2016
[2016] FWC 251
DECISION
| Fair Work Act 2009 | |
| s.185 - Application for approval of a single-enterprise agreement | |
| WorkPac Mining Pty Ltd | |
| (AG2015/5584) | |
| DEPUTY PRESIDENT ASBURY | BRISBANE, 14 JANUARY 2016 |
Application for approval of the Traineeship and Mining Services Enterprise Agreement 2015
- application for approval refused.
1. BACKGROUND
[1] WorkPac Mining Pty Ltd (WorkPac) applies in accordance with Part 2-4 of the Fair
Work Act 2009 (the Act) for approval of the Traineeship and Mining Services Enterprise
Agreement 2015 (the Agreement). The parties to the Agreement are WorkPac and employees
described in the Agreement as “Field Team Members” or “FTMs”, for whom classifications
and rates of pay are prescribed by the Agreement. The Agreement applies to the exclusion of
all Awards and other Agreements. The nominal expiry date is expressed to be four years after
the date on which the Commission may approve the Agreement.
[2] After considering the application for approval, the terms of the Agreement and the
Form F17 Employer’s statutory declaration in support of an application for approval of an
enterprise agreement, I had concerns about:
Whether a Notice of Employee Representational Rights (NERR) in the
prescribed form had been given to employees;
Whether Workpac had taken reasonable steps to explain the terms of the
Agreement and the effect of those terms; and
Whether the Agreement passed the better off overall test (BOOT. [3] On 23 September 2015, Mr Andrew Thomas, National Industrial Officer of the
Construction, Forestry, Mining and Energy Union Mining & Energy Division (the CFMEU)
corresponded with the Commission advising that the CFMEU had a large number of members
employed by WorkPac in NSW and Queensland and is a party to another Agreement with
another company in the WorkPac Group. Mr Thomas stated that the CFMEU was concerned
that the Agreement left employees worse off than if they were employed under the relevant
Award and further, that the Agreement had not been genuinely agreed to. The CFMEU
foreshadowed that should WorkPac be unwilling to provide the CFMEU with the Form F16
Application for approval of an enterprise agreement and Form F17 Employer statutory
declaration in support of approval of enterprise agreement filed with the Agreement the
CFMEU would seek that the Commission provide it with those documents.
[2016] FWC 251
[4] On 30 September 2015, the CFMEU again wrote to the Commission to advise that
WorkPac had neither agreed nor refused to provide the Application for approval and the
Employer Statutory Declaration and sought that the Commission provide those documents.
The CFMEU said that it required the documents to properly make submissions to the
Commission in opposition to the application for approval of the Agreement. The CFMEU
submitted that the Commission had in the past provided such documents and the documents
would ultimately be publicly available in any event.
[5] On 2 October 2015, I declined the request to provide the Form F16 and Form 17 to the
CFMEU. I also directed the CFMEU to provide an outline of submissions setting out the
Union’s concerns regarding the application for approval of the Agreement. On 15 October
2015, the CFMEU filed a 25 page submission, comprising 62 paragraphs, setting out its
concerns.
[6] I listed the application for approval of the Agreement for Hearing on 30 October 2015.
WorkPac did not object to the CFMEU being given permission to be heard in relation to
whether the Agreement passes the BOOT. I decided to grant the CFMEU permission to be
heard generally, on the basis that, as provided in s. 590 of the Act, I considered it appropriate
to hear from the CFMEU in order to inform myself about the questions that arose in the
1
application for approval of the Agreement.
[7] Further submissions from the parties were received following the Hearing. On 24
November 2015, WorkPac corresponded with the Commission and advised that the Company
was happy for the Commission to “close out” the file on the basis of the submissions made by
the Company and that did not “see the value” in another formal Hearing.
[8] For the reasons set out below I have concluded that WorkPac has not given
employees a NERR in the prescribed form and that the application for approval of the
Agreement must be refused. In the event that WorkPac makes a further application for the
approval of the Agreement, I have also dealt with the issues of whether, on the basis of the
information set out in the form F17 Statutory declaration, WorkPac has taken reasonable steps
to explain to employees the terms of the Agreement and the effect of those terms as well as
whether the Agreement passes the BOOT.
2. ISSUES
2.1 Notice of employee representational rights (NERR)
[9] My concerns about whether the provisions of the Act in relation to giving the NERR
to employees have been complied with arise from the contents of the Form F17 – Employer’s
statutory declaration in support of an application for approval of an enterprise agreement.
The Form F17 Statutory Declaration was completed by Mr Howard Powell, National
Employee Relations Manager of WorkPac, and filed with the application for approval of the
Agreement. The Form F17 is in question and answer form and requires an applicant for
approval of an enterprise agreement to provide information about various matters including
steps taken to comply with pre-approval processes in Chapter 2, Part 2-4 of the Act.
[10] In relation to steps taken by WorkPac to give notice to employees of their right to be
represented by a bargaining representative, Mr Powell declared in response to question 2.3
that communications were sent to employees by SMS and email. The text of the SMS
[2016] FWC 251
message and the email were set out in item 2.3 of the Statutory Declaration. The Statutory
Declaration at item 2.3 does not include any information about the date that the SMS message
and the email were sent to employees. According to Mr Powell’s declaration, the SMS
informed FTMs that they could to go to a nominated website for “docs relating to proposed
agreement.” The first paragraph of the email said to have been sent to employees is as
follows:
“Dear WorkPac FTM,
This letter serves to provide you with adequate information relating to the negotiation
of a new Traineeship and Mining Services Enterprise Agreement.”
[11] The text of the email goes on to set out some, but not all, of the terms of the NERR
prescribed in Regulation 2.1 (the first paragraph of the prescribed form of the notice is
omitted) and then a paragraph follows which states:
“As part of this process we wish to provide you with the information you will need to
make an informed decision when you are asked to vote. We will notify you in advance
of voting details and instructions. We are however highly conscious of the
environment and if we were to issue you all of the supporting paperwork in paper
form, it would require the destruction of a small rainforest. Accordingly, we have
provided you access to a dedicated website [website address] … where the following
documents are contained…”
[12] The list of “web links” set out below this paragraph includes one entitled
“Representational Rights Notification”. After the list of “web links” the text of the email goes
on to set out the complete NERR specified in Regulation 2.1. Below the text of the NERR the
following paragraph appears:
“Information forthcoming:
Voting instructions
If you are unable to access computer facilities to view these documents, we can
either provide you access at any of our Business Centres nationally or send them
out to you in the mail. Our preference is that you visit one of our business centres
however as these documents collectively represent many hundreds of pages.
Should you have any queries what so ever, please feel free to either contact a
WorkPac representative on [number] … (toll free number) or [email address] or
you can access our website using [website address]. We thank you for being a
FTM and look forward to finalising the arrangements for this agreement.”
[13] As previously noted, the date on which this email was sent is not stated. There is also
a copy of an NERR in the required form attached to the Statutory Declaration and marked
“Attachment 1”. It is not clear whether that document was attached to the email or whether it
was contained in a web link included in the email. I also note that the complete version of the
NERR embedded in the text of the email and the version that is Attachment 1 to the Statutory
Declaration, state that WorkPac Mining Pty Ltd and its subsidiaries give notice that it is
bargaining in relation to an enterprise agreement and that it is proposed to cover employees in
the black coal mining industry. This statement is at odds with clause 1.2 of the Agreement
[2016] FWC 251
which states that the WorkPac Mining Pty Ltd is party to the Agreement and to clause 1.4
which states that the Agreement is binding in respect of employees engaged in mining both
Coal and Non-Coal.
[14] At the Hearing I questioned Mr Powell about the information set out in the Statutory
Declaration in relation to the NERR. I put to Mr Powell that it was not clear from the
information provided how the NERR was given and, in particular, whether it was embedded
in an email to employees or attached to an email or whether employees had to access the
NERR by way of a web link. I also put to Mr Powell that the information contained in the
Employer declaration seemed to indicate that the NERR was embedded in an email that also
had other content.
[15] In response to my questions, Mr Powell said that the NERR was given personally to
2
all employees and was also attached to an email rather than being embedded in an email.
When I put to Mr Powell that this assertion was inconsistent with the statement made in the
Statutory Declaration, Mr Powell said that the NERR was set out in an email and also
attached to the email and in addition employees were provided with a web link to the NERR.
Mr Powell said in relation to this matter:
“Yes, so what we were basically trying to do was double-up in case, because our
employees are located on, you know, remote locations and they have trouble
sometimes with electronic email and we have trouble getting access to them. So what
we do is trifold in terms of putting it in the email as well as an attachment, because in
case they can't open up that attachment. We also set up a website when we're doing
agreements for eligible employees to access that has all the relevant information
regarding the agreement-making process. So apologies if there is some confusion in
3
relation to that.”
[16] Mr Powell also said that WorkPac would provide a further Statutory Declaration
clarifying the fact that the NERR was attached to the email sent to employees.
[17] On 10 November 2015, WorkPac provided further submissions and material in respect
of the application for approval. This included a statutory declaration made by Ms Nicole
Thompson, Senior Industrial Relations Advisor for the WorkPac Group of Companies. Ms
Thompson states that she was responsible for the process of giving the NERR to eligible
employees of WorkPac. On 2 July 2015, Ms Thompson directed WorkPac’s Head of
Information, Communication and Technology to send an email to relevant employees. The
email was sent on 3 July 2015 and was annexed to Ms Thompson’s statutory declaration. The
annexed email contains the same text as set out in item 2.3 of the Employer Statutory
Declaration. In particular it confirms that the email contained two versions of the NERR – the
first commencing at paragraph 2 of the email is not complete and the second is sandwiched
between other content.
[18] According to Ms Thompson, the email of 3 July 2015 contained a hyperlink to a
website on WorkPac’s intranet site dedicated to the Agreement. That intranet site contained
another hyperlink to the NERR. A copy of the NERR that was available at the hyperlink was
also attached to Ms Thompson’s statutory declaration. That version of the NERR is in the
prescribed form and is identical to the document appended to the Form F17. It also contains
the same reference to WorkPac Mining Pty Ltd and its subsidiaries and states that the
Agreement is proposed to cover employees that are engaged in the black coal mining industry.
[2016] FWC 251
[19] Also on 2 July 2015, Ms Thompson directed WorkPac’s Head of Information,
Communication and Technology to send an SMS to relevant employees. That SMS was sent
on 3 July 2015 and included a request that employees go to a particular website by clicking on
a link in the SMS for “docs relating to proposed Agreement”. The link set out in the SMS
was a link to the same website set out in the email to employees. There was no evidence of
the NERR being given personally to employees.
[20] In further written submissions, WorkPac submitted that the Act does not specifically
require the Commission to consider the content of a purported NERR and further that the Full
4
| Bench Decision in Peabody Moorvale Pty Ltd v CFMEU | does not provide an analysis of its |
conclusion in respect of this issue at [45] where the Full Bench said:
“The consequence of failing to give a Notice which complies with the content and form
requirements of s.174(1A) is that the Commission cannot approve the enterprise
agreement.”
[21] WorkPac instead submitted that the Commission is “arguably” only indirectly required
to have regard to the NERR as a result of the operation of ss.181(2) and 188(1)(a)(ii) of the
Act. WorkPac submitted that s.181(2) of the Act does not require that an NERR be given to
employees “let alone in any strict form”. What WorkPac submits to be the case is that the Act
requires that employees not be requested to approve a proposed agreement until at least 21
days after the last NERR is given to employees.
[22] WorkPac relied upon its Statutory Declaration filed at the time of the originating
application, the additional declaration of Ms Thompson and its submission that the NERR
was given in a manner consistent with the Regulations. WorkPac submits that the primary
method of distribution of the NERR to employees – by email – was consistent with r 2.04(5)
of the Regulations. The alternative or “secondary” method of distribution was via SMS,
which was said to be consistent with r 2.04(8).
[23] The CFMEU submitted that WorkPac has not complied with r 2.04(5) because there is
no evidence that the email addresses used were either the employees email address “at work”,
as required by r 2.04(5), or evidence that it was sent to another email address nominated by
the employee, as required by r 2.04(5). Further, the CFMEU submitted that even if r 2.04(5)
had been complied with in respect of the email address used, WorkPac has still failed to
comply because the email address does not contain a link that “take(s) the employee directly
to a copy of the notice on the employer’s intranet” as required by the Regulation.
[24] The CFMEU also submitted that the link in the emails was not a link to WorkPac’s
intranet but rather to a publicly available website, which is uncharacteristic of a company’s
intranet. Similar issues are said to arise in respect of the SMS of 3 July 2015. In respect of the
SMS of 3 July 2015, the CFMEU submits that the SMS makes no reference to the NERR, in
any way. This meant that an employee receiving the SMS had no idea what documents were
contained on the link or the purpose of those documents.
[25] The CFMEU submitted that apart from the method of giving the NERR, the NERR
was deficient in its content. The NERR was “buried” amongst a large number of documents
within a webpage. The CFMEU submitted that this scenario was analogous to that in Peabody
where the Full Bench considered that the NERR in that matter was invalid because it had been
[2016] FWC 251
given collectively with other documents that were found to constitute the NERR. The
CFMEU accepted that Peabody made clear that an employer is not prevented from given
additional documents at the same time of giving the NERR, and what is part of the NERR is a
matter of fact.
[26] The CFMEU also submitted that whether additional material is “misleading or
intimidatory” is of relevance to whether the agreement has been genuinely agreed. That the
NERR was listed among 14 separate documents, which included the proposed agreement and
documents regarding the voting process, was said to be misleading. The CFMEU submitted
that the Commission should conclude that employees were misled into believing that
regardless of the NERR the proposed agreement was already finalised and being voted on;
that is, it was not open to bargaining.
[27] In submissions in reply, WorkPac said that the email addresses used for employees
were “an employee email address that each individual employee has nominated as its
preferred means of email communication with the Company and is the usual means of email
communication between the Company and the Employee”. WorkPac submitted that there was
no evidence to the contrary.
[28] WorkPac disputes the CFMEU’s characterisation of the link to its intranet website and
submits that the link directs employees to a website dedicated to the Agreement and that it is
not in dispute that that website contained the NERR. WorkPac submits that any distinction
between an ‘internet’ and ‘intranet’ site is an irrelevant distinction. WorkPac maintained its
submission that the NERR available on the intranet link was a valid notice in respect of its
content and form. WorkPac made no reply submissions about the fact that the NERR was
copied twice into the body of the email. WorkPac also disputed the CFMEU’s submission
that the fact that the NERR was contained in a number of other links had the effect of being
misleading. WorkPac submitted that no employee was misled and that there was no evidence
before the Commission to the contrary.
2.2 Genuine Agreement
[29] In relation to the point at which various pre-approval steps were taken, at item 2.5 of
the Statutory Declaration, it is stated that on 1 May 2015, an SMS was sent to all employees
directing employees to a website address for information relating to the Agreement vote. This
SMS message is different to the one referred to in item 2.3 of the Statutory Declaration. The
Statutory Declaration goes on at item 2.5 to state that an email was sent to all employees on 9
September headed “Voting information” and stating that:
WorkPac notifies it has complied with the relevant sections of the Act for
making an Agreement;
The access period has started; and Voting will commence on 18 September 2015.
[30] In item 2.8 of the Statutory Declaration, it is stated that the employer initiated
bargaining and gave the last notice of employee representational rights on 3 July 2014 and
that the voting commenced, and the Agreement was made, on 18 September 2014. In relation
to the steps that WorkPac took to explain the terms of the Agreement, and the effect of those
terms, to the relevant employees, as required in s. 180(5) of the Act, the Employer declaration
at item 2.6 states:
[2016] FWC 251
“FTMs whose first language is not English had access to a language translator
document (Attachment 3) which allowed them access to a translator if required.
Each FTM under the age of 21, through the Notice of Representational Rights
(Attachment 1) was invited to have a parent or guardian involved in the negotiation
process.
Each FTM was given access to a dedicated website which contained a copy of the
agreement and also the explanatory information. The website also contained
frequently asked questions (Attachment 2)
Each of our FTMs was also given access to a toll free help line and email service. All
queries were able to be tracked and responded to either immediately or a short turn
around basis.”
[31] An identical response is provided at item 2.7 in response to a question about what
WorkPac did to take into account the particular circumstances and needs of employees in
providing an explanation about the terms of the Agreement. The language translator
document referred to in these responses states that:
“If you are having difficulty in understanding the information attached, please contact
a member of the WorkPac team on [1800 number] or email [email address] to
arrange for an interpreter.”
[32] The document sets out that paragraph in Spanish, Dutch, French, German, Greek,
Italian, Portuguese, Vietnamese, Indonesian, Malay, Thai and Filipino.
[33] The Employer Statutory Declaration also indicates that employees were provided with
access to a dedicated website which contained a copy of the Agreement and “explanatory
information”. The Employer Statutory Declaration further states that the website contained
“frequently asked questions” which are said to be Attachment 2 to the Statutory Declaration.
That attachment is in fact a document entitled: “FTM Briefing: Traineeship and Mining
Services Enterprise Agreement 2015” and makes no reference to “Frequently Asked
Questions”. The Briefing document contains the following statements:
WorkPac has indicated to all Bargaining Representatives that negotiations
have been finalised for the proposed Enterprise Agreement. Accordingly,
WorkPac has the obligation to provide you a detailed understanding of the
proposed enterprise agreement and its contents prior to seeking approval
from all eligible FTMs.
Post this briefing consistent with the Fair Work Act 2009 (Cth) the ‘access
period’ will commence on Wednesday 9 September 2015, where you will be
emailed a copy of the Agreement which upon successful outcome will be
submitted to the Fair Work Commission for registration.”
[34] The briefing document then goes on to list the clauses in the Agreement by subject
matter and in some cases includes brief descriptions of the contents of the clauses or
statements to the effect that some of the clauses are consistent with the Act or the National
Employment Standards. The briefing document contains contact information and website
[2016] FWC 251
details for employees who are seeking further information. This document also states that the
“access period” will commence on Wednesday, 9 September 2015 and that a final copy of the
Agreement will be emailed to employees.
[35] In response to the question at item 2.5 in the Statutory Declaration about when
employees were notified of the date and place at which the vote for the Agreement would
occur, the text of an email said to have been sent to employees on 9 September 2015 is set
out. The text of the email states that a copy of the proposed “document” is attached and that it
can also be accessed on a website, at an address set out in the email. It is possible that the
address is a hyperlink although this is not apparent from the Statutory Declaration. The email
text also states that voting for or against the Agreement opens at 6.00 am on Friday, 18
September 2015 and closes at 9.00 pm on Friday, 18 May 2015 (obviously this date is an
error).
[36] In relation to whether the Agreement has been genuinely agreed to by employees the
CFMEU submits that terms in the Agreement are “either confusing to the extent that the
employees could not have understood their meaning and impact or the term establishes
consequences that are not apparent on their face to a person with little understanding of the
legal implications of agreements”. The CFMEU submits that in the particular circumstances
of these employees it is reasonable to conclude that they could not have been expected to
understand the nuances of particular terms and it was the employer’s onus to establish that it
has taken reasonable steps to explain the agreement.
[37] Specifically, the CFMEU relied upon three clauses of the Agreement it said gives rise
to a concern about genuine agreement; Clause 1.5 –Scope and Intent of Agreement; Clause
8.1.4 – requiring that outcomes or decisions of the Commission under the disputes procedure
are consistent with the Victorian Building Code, the Building Code 2013 (Cth) and the Fair
and lawful Building Sites Code 2014 (Cth) (the Building Codes); and Schedule 3 of Annexure
A – Flat Rates.
[38] In respect of Clause 1.5, the CFMEU submits that the clause obliges an employee to
comply with WorkPac policies and procedures as well as those of the host or client employer
at which the employee is working. A breach of a relevant policy by an employee may expose
the employee to civil penalties under the Act for breach of an Agreement. The CFMEU’s
concern is that this may occur in circumstances where employees cannot be aware of the
terms of the host or client’s policies and procedures or those of WorkPac. These polices are
also subject to unilateral change by the relevant employer. Further, the CFMEU submits that
there is no evidence that the effect of this clause was explained to employees.
[39] Clause 8.1.4 of the Agreement provides, essentially, that disputes must be dealt with
or resolved in a manner consistent with the various Building Codes. The CFMEU submits that
in the absence of a full explanation of each of the Building Codes, the employees could not be
expected to have understood their impact. The CFMEU also submits that the clause does not
deal with a situation of inconsistency between the Building Codes, and that the Building
Codes are subject to unilateral amendment by a third party, outside the scope of the
Agreement. The provision is said to be confusing and the consequences of the clause are not
apparent or capable of being easily known by a person working in a coal mine.
[40] Annexure A of the Agreement sets the minimum rates of pay and other conditions,
applicable under the Agreement to employees working in the coal mining industry. Schedule
[2016] FWC 251
3 of Annexure A is a large table setting out flat rates payable to employees in the coal mining
industry. The clause contains 648 separate wages rates. The CFMEU submits that whilst the
table does provide the factors that lead a person to identify the applicable minimum flat rate,
the flat rate is an all up rate and it is not clear how that rate was calculated. Without an
indication as to how the all up rates were reached, the CFMEU submits that employees could
not have genuinely agreed to those rates.
[41] The CFMEU submits that the broader context in which the WorkPac group of
companies operate is relevant to considering whether the Agreement has been genuinely
agreed to. The CFMEU is currently a party to the WorkPac Pty Ltd Mining (Coal) Industry
Enterprise Agreement 2012 (the 2012 Agreement). The CFMEU submits that the 2012
Agreement covers the same classifications, work and geographical area as the Agreement
subject of these proceedings. The 2012 Agreement nominally expires on 27 June 2016. The
minimum rates of pay under the 2012 Agreement are in excess of those contained in the
Agreement by as much as $2 per hour in some cases.
[42] The CFMEU states that because of these matters it cannot be said that the consent of
the employees was informed and that there was an absence of coercion so that the
Commission could be satisfied that the employees have genuinely agreed to the Agreement.
2.3 BOOT Issues
[43] The CFMEU submitted that on an overall consideration, the Commission could not be
satisfied that the Agreement passed the BOOT. Given the number of clauses put in issue by
the CFMEU it is convenient to deal with them each in turn and the responses provided by
WorkPac in relation to those issues. The CFMEU has considered the application of the BOOT
only in respect of its coverage, being within the coal mining industry. The relevant Modern
Award is the Black Coal Mining Industry Award 2010 (the Award). The CFMEU’s
submissions in relation to the BOOT and the responses to those submissions by WorkPac are
as follows.
Clause 1.5 – Scope and Intent of the Agreement: In addition to dealing with this
clause as giving rise to a reasonable belief that employees had not genuinely agreed to the
Agreement, the CFMEU also submitted that it was a relevant BOOT consideration. The
CFMEU submits that this clause leaves employees worse off because it is a matter that is not
provided for in the Award, it allows for policies and procedures outside of the Agreement to
be unilaterally varied at any time and will to that extent be binding upon employees. As
previously noted, the clause states that policies and procedures do not form part of the
Agreement, but requires that employees will comply with any WorkPac policies and
procedures that the Company may implement and in addition will comply with specific client
policies and procedures relevant to the employee’s assignment. The clause also states that to
the extent that policies and procedures place obligations on WorkPac they are guides only and
are not contractual terms, representations or conditions upon which employees may rely.
[45] WorkPac submits that clause 1.5 of the Agreement expressly states that the procedures
and policies of the company do not form a part of the Agreement but that in any event the
policies and procedures referred to in clause 1.5 were available to employees during the
access period for the Agreement. WorkPac further submits that in considering an application
for approval of an Agreement it is not the Commission’s role to consider the future
enforceability of a clause.
[2016] FWC 251
Clause 3 – Individual Flexibility: The CFMEU submitted that Clause 7 of the Award
– “Award Flexibility” – contains a number of provisions that are not in the Agreement as
follows:
| | Clause 7.2 – providing that a flexibility agreement can only be made after employment |
| has commenced; | |
| | Clause 7.7 – providing that any proposal from an employer must be put in writing, |
| with consideration given to translating the proposal as necessary; |
[47] The CFMEU submitted that these clauses are in the Award for the protection of
employees and their absence leaves an employee worse off under the Agreement. This
submission was advanced notwithstanding that the Agreement contains the model flexibility
term required by s. 202(1) and s. 203 of the Act.
[48] WorkPac submits that it is a matter for the Commission whether it will incorporate the
model flexibility term from the Award into any decision to approve the Agreement. WorkPac
submits that the CFMEU’s submission is without merit as a flexibility agreement under the
Agreement can only be made with an employee already covered by the Agreement. Further,
the Act stipulates that the flexibility term require that an employee be better off overall under
a flexibility agreement in any event.
Clause 6 – No Extra Claims: The Award does not contain any prohibition on
employees pursuing extra claims during the life of the Agreement, Clause 6 prohibits extra
claims. The CFMEU submits that this is a detriment to employees.
[50] WorkPac accepts that the Award does not contain a prohibition against extra claims.
WorkPac submits however that this is not a matter for the BOOT and the clause will not
prevent the parties from varying the Agreement in accordance with the Act but rather,
prevents employees from engaging in unlawful industrial action within the nominal expiry
date of the Agreement.
Clause 7.4 – Part-Time [Employees]: Under the Award a part-time employee is an
employee who works less than 35 hours per week. The Agreement provides that a part-time
employee is one who works on average less than 35 hours per week; the Agreement does not
define over what period the hours are to be averaged. Further, the Award provides that part-
time employees are entitlement to be paid at overtime rates for all time worked in excess of
their agreed hours. The Agreement does not provide for overtime in such a case.
[52] To address this issue WorkPac offered an undertaking that, in respect of part-time
employees in the black coal industry, clause 10.3 of the Award will apply.
[53] Clause 7.5 – Casual Employment: The Award does not provide for casual
employment for employees engaged in production and engineering classifications. The
CFMEU submits that an employee engaged in production and engineering under the Award
would have to be full-time or part-time. The CFMEU further submits that the casual loading
payable under the Agreement does not compensate for the reduced job security inherent in
casual employment. Casual employees are not entitled to notice of termination, redundancy
or, in some cases, to make a claim for unfair dismissal. Further, the CFMEU submits that
[2016] FWC 251
where casual employment is found in agreements in the black coal mining industry, those
agreements pass the BOOT in contrast with the Agreement in the present case.
[54] WorkPac submits that the Award does not prohibit casual employment as submitted by
the CFMEU and further that it is not uncommon for casual employees to be engaged in such
classifications. The casual loading payable under the Agreement is the same as that under the
Award.
Clause 7.6 – Termination of Employment: The CFMEU submits that the termination
of employment provisions in the Agreement are less beneficial than the Award in a number of
respects. They are:
| | The Agreement requires an employee of greater than one year’s service to provide |
| more notice of their resignation than they otherwise would have to under the Award; | |
| | The Agreement allows WorkPac to withhold payments to an employee on resignation |
| if the employee fails to give the required notice; | |
| | The Award provides for payment of accrued personal leave in certain circumstances |
| whereas the Agreement does not; | |
| | Under the Award, if an employer dismisses an employee while the employees is on |
| paid personal leave, the employer must pay the employee until the accrued personal | |
| leave entitlement is exhausted or the employee is fit for duty; the Agreement does not | |
| provide for this entitlement; | |
| | The Agreement provides for abandonment of employment after a period of absence of |
| 2 rostered days whereas the Award does not; and | |
| | The Agreement has a broad definition of serious misconduct when compared with the |
| Award which does not define the term. |
[56] WorkPac has offered an undertaking in respect of termination of employment and
notice of termination of employment in circumstances of redundancy.
[57] WorkPac otherwise submits that the CFMEU’s concerns regarding termination of
employment are not matters relevant to the BOOT. WorkPac submits that the definition of
serious misconduct in the Agreement are instances of what may constitute serious misconduct
as opposed to what will amount to serious misconduct.
Clause 8 – Disputes Settlement Procedure: This issue overlaps to some disagree with
the issue identified by the CFMEU in respect of genuine agreement. The CFMEU submitted
that clause 8 of the Agreement requires that any outcome of dispute resolution before the
Commission must be consistent with the Building Codes. The Award dispute clause does not
require this consistency. The CFMEU referred to the Full Bench Decision in CFMEU v CSR
5
| Limited t/a Viridian New World Glass | (Viridian) to support the proposition such a term |
would not produce sufficient certainty to satisfy the BOOT. WorkPac submitted that the issue
identified by the CFMEU in respect of the disputes settlement procedure was not relevant to
the BOOT.
Clause 9 – Classifications: Clause 9.1 provides that at the commencement of an
assignment, the employee will be notified of their classification level. The CFMEU submits
that this amounts to a unilateral right in WorkPac to alter an employee’s classification and,
therefore, rate of pay. There is no provision in the Award to this effect.
[2016] FWC 251
[60] WorkPac submitted that it is a national labour hire supplier that provides employees
for fixed task or project specific arrangements. Each assignment is therefore at a particular
classification for the duration of that assignment. WorkPac submits that it is not its intention
to alter an employee’s classification during a fixed assignment to the employee’s detriment or
without consultation.
Clause 11 – Allowances: The CFMEU submits that the allowances provided for in the
Agreement are less than, or marginally above, the equivalent allowances provided for in the
Award. The Agreement also provides that allowances will not be increased for the life of the
Agreement whereas some allowances in the Award automatically increase in accordance with
calculations provided for in the Award.
[62] WorkPac proposed an undertaking in relation to allowances to the effect that the meal
allowance in Annexure A to the Agreement will be increased to meet the Award rate plus an
additional 1%, and that all allowances will be maintained at 1% above the Award entitlement.
Clause 13 – Redundancy: The CFMEU submits that the redundancy provisions in the
Award are significantly better than the redundancy provisions in the Agreement.
[64] WorkPac submits that the relevant reference for consideration of redundancy is the
Act, rather than the Award. WorkPac submits that a number of Agreements in the industry
prescribe the NES as being the basis for entitlements to redundancy. However, WorkPac has
offered an undertaking in respect of redundancy that clause 13.2 of the Agreement will only
apply to Annexure B employees – being employees engaged in non-coal mining. WorkPac
further undertakes that employees under Annexure A of the Agreement, being those engaged
in coal mining, will received their entitlement to redundancy from clauses 14.3 and 14.4 of
the Award.
Clause 15, and 8 of Annexure A – Public Holidays: The CFMEU submits that the
penalty rates payable to an employee under the Agreement are worse than an employee would
enjoy under the Award. Under the Award an employee would be entitled to receive the public
holiday penalty in addition to any other penalty that may be payable for that particular shift
(eg afternoon shift penalty). Under the Agreement the public holiday penalty is payable on the
ordinary rate of pay, that is, without any other penalty that may be applicable.
[66] In addition, the Award prescribes that where shifts are greater than 8.5 ordinary hours,
an employee can expect not to work at least 2 public holidays per year. The Agreement does
not contain such a term.
[67] WorkPac submits that the effect of clauses 15 and 8 of Annexure A of the Agreement
apply in the same way as the Award. Base rate employees working ordinary hours on public
holidays are entitled under the Agreement to be paid double time at the ordinary rate of pay,
which is the applicable base rate plus loadings. WorkPac did not address the additional item
identified by the CFMEU being the entitlement to at least 2 public holidays a year off roster.
Clause 16 – Consultation: The CFMEU submits that the consultation term in the
Agreement provides for an employee to appoint a representative but does not give that
representative any part in the consultation process. The Award obliges an employer to involve
an employee representative in consultation by the provision of information and discussing the
change with the representative. The Award also requires consultation in relation to regular
rosters and ordinary hours of work.
[2016] FWC 251
[69] WorkPac submits that it has incorporated the model term prescribed by the
Regulations into the Agreement. WorkPac submits that this clause should be compared with
the Act and that it is the Commission’s discretion to “apply” the “model clause from the
Award” into the Agreement.
Overtime – Clause 4.3 of Annexure A and clause 10.1 – Flat Rate: In relation to
overtime, the CFMEU submits that the Award provides for additional circumstances and
classes of employees where overtime is paid for at the rate of double time to those in the
Agreement – namely Employees who work a roster which requires ordinary shifts on public
holidays and not less than 272 hours in a year on Sunday, and those who work a roster
requiring ordinary shifts on the Saturday or Sunday where the majority of rostered hours on
the Saturday and Sunday shifts fall between midnight Friday and midnight Sunday. The
CFMEU also submits that the Agreement provisions for payment of double time on Sundays
do not apply to “base rate FTMs” where an RDO system is in place, in contrast with the
Award where an employee working on Sunday under the Award would be entitled to be paid
for such work at the rate of double time.
[71] The CFMEU also submits that meal breaks prior to and during overtime are not
provided for in the Agreement and are provided for in the Award. Further, the CFMEU
submits that the flat hourly rate for overtime set out in the Agreement does not enable
determination of the overtime component and that rate is in many instances, less than the
overtime rate for an equivalent base rate employee.
[72] WorkPac submits that the CFMEU’s objection in relation to the Sunday overtime rate
for base rate employees working an RDO system is dealt with in clause 4.5.3 of Annexure A
to the Agreement. In relation to meal breaks WorkPac submits that the intent is that the meal
break provided for in non-rostered overtime will be without loss of pay and this is reinforced
in Annexure A to the Agreement.
Personal Carer’s Leave: The CFMEU submits that under the Award, an employee’s
personal carer’s leave entitlement of 105 hours accrues on commencement of employment
and is credited to the employee on each anniversary of the commencement of employment.
The Agreement provides that the personal carer’s leave entitlement accrues progressively. As
a result, employees under the Award have access to their personal carer’s leave entitlements
earlier than employees under the Agreement.
[74] In relation to personal carer’s leave, WorkPac proposes that the reference to
progressive accruals is “removed and replaced with the words ‘The FTM shall be entitled to
105 hours of personal/carers leave on commencement and on each anniversary of
commencement’ ”.
Rostered Days off: The Agreement provides for employees who work on a rostered
day off to be paid at the ordinary flat rate. Under the Award an employee working on a
rostered day off would be entitled to be paid for that day and to have another day off in lieu or
to be paid for work on the rostered day off at overtime rates. The Agreement also does not
contain the Award provision entitling employees to another day off when an RDO falls on a
public holiday.
[2016] FWC 251
[76] WorkPac submits that the CFMEU submission calculates the RDO as an isolated day
worked and does not take into account the uplift in the rates under the Agreement across the
entire roster cycle.
Accident Pay: The Agreement does not contain any provision for accident pay in
contrast with the Award, which provides for accident pay of up to 78 weeks. Taking into
account the Queensland Workers’ Compensation system, an employee would be worse off
under the Agreement.
[78] In relation to Accident Pay, WorkPac proposed an undertaking that it will apply the
Award provisions to employees under Appendix A of the Agreement.
Wage Rates: The Agreement provides for alternative methods of payment for
employees – a base rate with additional allowances/penalties or a flat rate – at the discretion
of the employer. CFMEU submits that the base rates in the Agreement are approximately 1%
above those in the Award. With respect to the flat rates in the Agreement there are a large
number of such rates based on a number of combinations of hours per week, shift work
(rotating or non-rotating), weekend or weekday work and whether employees are casual or
permanent employees. The flat rates also compensate for annual leave loading. There is no
explanation in the Agreement about how the myriad of rates has been determined. It is
submitted that the Commission cannot be satisfied that the rates would satisfy the BOOT due
to the lack of explanation about the calculation of the rates. It is also submitted that there are
a range of circumstances in which employees will be paid less than they would receive under
the Award for working a certain number of hours per week. In relation to Trainee rates it is
submitted that they are in some cases, less than the rates for Trainees under the Award.
[80] WorkPac submitted a number of calculations described as flat rate scenarios said to
demonstrate that employees under the Agreement will be paid more than they would be paid
under the Award. In relation to Trainee rates, WorkPac submitted that the CFMEU
calculations were based on a divisor of 35 working hours when Schedule D of the Award
provides that Trainee rates are based on a 38 ordinary hour working week.
3. CONSIDERATION
3.1 Was a valid NERR given to employees
[81] The provisions of the Act relating to the NERR requirements are as follows:
173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that
is not a greenfields agreement must take all reasonable steps to give notice
of the right to be represented by a bargaining representative to each
employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement. Note: For the content of the notice, see section 174.
[2016] FWC 251
Notification time
(2) The notification time for a proposed enterprise agreement is the time
when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement;
or
(b) a majority support determination in relation to the agreement comes into
operation; or (c) a scope order in relation to the agreement comes into operation; or
(d) a low-paid authorisation in relation to the agreement that specifies the
employer comes into operation.
Note: The employer cannot request employees to approve the agreement under
section 181 until 21 days after the last notice is given (see subsection 181(2)).
When notice must be given
(3) The employer must give the notice as soon as practicable, and not later
than 14 days, after the notification time for the agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a notice to an employee under
subsection (1) in relation to a proposed enterprise agreement if the
employer has already given the employee a notice under that subsection
within a reasonable period before the notification time for the agreement.
How notices are given
(5) The regulations may prescribe how notices under subsection (1) may be
given."
[82] In relation to how notices may be given, r.2.04 of the Regulations prescribes:
“2.04 Notice of employee representational rights—how notice is given
(1) For subsection 173(5) of the Act, each of the following is a manner in which the
employer for a proposed enterprise agreement may give employees who will be
covered by the agreement notice of the right to be represented by a bargaining
representative for the agreement.
(2) The employer may give the notice to the employee personally.
(3) The employer may send the notice by pre-paid post to:
(a) the employee’s residential address; or
(b) a postal address nominated by the employee.
[2016] FWC 251
(4) The employer may send the notice to:
(a) the employee’s email address at work; or
(b) another email address nominated by the employee.
(5) The employer may send to the employee’s email address at work (or to another
email address nominated by the employee) an electronic link that takes the
employee directly to a copy of the notice on the employer’s intranet.
(6) The employer may fax the notice to:
(a) the employee’s fax number at work; or
(b) the employee’s fax number at home; or
(c) another fax number nominated by the employee.
(7) The employer may display the notice in a conspicuous location at the workplace
that is known by and readily accessible to the employee.
(8) Subregulations (2) to (7) do not prevent the employer from using another manner
of giving the notice to the employee.”
[83] Section 174 of the Act deals with the content and form of the NERR and provides:
“174 Content and form of notice of employee representational rights Application of this section
(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an
employee.
Notice requirements
(1A) The notice must:
(a) contain the content prescribed by the regulations; and (b) not contain any other content; and (c) be in the form prescribed by the regulations. (1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), the regulations must ensure that the notice complies with this section.
Content of notice—employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:
[2016] FWC 251
(a) in bargaining for the agreement; and (b) in a matter before the FWC that relates to bargaining for the agreement.
Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining representative for the agreement; the organisation will be the bargaining representative of the employee. Content of notice—bargaining representative if a low paid authorisation is in
operation
(4) If a low paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and
subsection 176(2) (which deal with bargaining representatives for such agreements).
Content of notice—copy of instrument of appointment to be given
(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an
employee’s employer).”
[84] The effect of these provisions is that the NERR must be in the form prescribed by the
Regulations and contain only the prescribed content. In Peabody Moorvale Pty Ltd v
6
| CFMEU | a five member Full Bench of the Commission considered the content requirements |
of the Act with respect to a valid NERR and the consequences of failure of an employer to
comply with those requirements, holding that that:
“The consequence of failing to give a Notice which complies with the content and form
requirements of s.174(1A) is that the Commission cannot approve the enterprise
agreement. We note that this does not prevent the employer from recommencing the
bargaining process, completing the pre-approval steps (including the giving of valid
Notices) and making application to have the resultant enterprise agreement approved
by the Commission.
In our view s.174(1A) is clear and unambiguous. There is simply no capacity to depart
from the form and content of the notice template provided in the Regulations. A failure
to comply with these provisions goes to invalidity. We agree with the Minister's
submissions on this point, that is:
[2016] FWC 251
"A mandatory template is provided in the Regulations. The provisions make it
clear that there is not scope to modify either the content or the form of the
Notice other than as set out in the template."
Taking into account the considerations identified in Project Blue Sky we have
concluded that the legislative purpose of s.174(1A) is to invalidate any Notice which
modifies either the content or form of the Notice template provided in Schedule 2.1 of
7
the Regulations.”
[85] The Full Bench in that case considered the effect of additional material accompanying
a document that complied with the form and content of Schedule 2.1, stating that in those
circumstances, a question arises as to how to distinguish between the material accompanying
a NERR and material that alters the content of the NERR. The Full Bench held that:
"…First, s 174(1)(A)is not to be construed so as to preclude an employer from
providing additional material to its employees at the same time as the notice is given
to them. Subsection 174(1)(A) is directed at the form and content of the Notice. It does
not require the notice to be provided in isolation and to construe the provision in that
way would produce some absurd results, for example, it would prevent an employer
from providing employees with a simple covering letter or an offer of interpreter
services..
Secondly, where additional material accompanies a document which contains the
content, and is in the form, prescribed in the Regulations, the issue to be determined is
what purports to be the Notice. This is a question of fact.
Thirdly, where additional material is provided with the Notice and that material has
the character of being, for example, misleading or intimidatory, then this will be
relevant to the Commission's assessment of whether the enterprise agreement had
been 'genuinely agreed' by the employees. However, it is not a basis for finding that a
8
Notice has not been given in accordance with the Act.”
[86] The Full Bench in Peabody went on to hold that:
“The 21 day requirement in s.181(2) is met if there was a period of at least 21 days after
the last Notice was given before employees were asked to approve the proposed
agreement. This requirement is not met unless the Notice is validly issued under s.173
and a Notice will be valid provided that it complies with the content and form
requirements of s.174(1A).”
[87] The information in the Form F17 Statutory Declaration in relation to this matter is
confusing and the evidence seeking to clarify the information in the Form F17 Statutory
Declaration, given orally by Mr Powell and in the further Statutory Declaration made by Ms
Thompson has done little to clarify the situation.
[88] It appears from the information provided in the Employer’s Statutory Declaration, at
item 2.3, that two versions of the NERR were embedded within the text of an email. The
question – as identified by the Full Bench in Peabody – is what purports to be the notice. In
the present case, there are a number of versions, each purporting to be the notice. The email
sent to employees on 3 July (according to Ms Thompson) contained two versions of the
[2016] FWC 251
NERR. The version at the beginning of the email is incomplete and is accordingly not in the
required form. The second version, embedded in the email, has content above and below it so
that it is not clear what is part of the notice and what is additional content. It is also the case
that the introductory paragraph of the email sent to employees states that it provides
employees with adequate information relating to the negotiation of the Agreement. The email
stands alone. There is no indication that it contains a Notice which WorkPac is required to
give to employees. Contrary to Mr Powell’s submission, there was no other version of the
NERR attached to the email. Accordingly, I am unable to accept that the email sent to
employees on 3 July 2015 contained a NERR in the required form.
[89] It is also necessary to decide whether WorkPac met its obligation to give an NERR to
employees in the required form by virtue of the document contained in the weblink set out in
the email of 3 July 2015 and the SMS message. The version contained in the weblink
document is in the prescribed form. As previously noted, Regulation 2.04 prescribes a
number of ways in which a NERR may be given and these include sending it to an email
address or emailing the employee an electronic link that takes the employee directly to the
NERR. The Regulation also provides that the employer is not prevented from using another
method to give the Notice to an employee, and I accept that the Regulation would permit
sending employees an SMS message containing a weblink that takes them directly to the
NERR. However the Regulation simply permits electronic media to be used to fulfil the
requirement to “give the notice”. The term “give” connotes some positive action on the part
of the employer.
[90] I do not accept that an employer can comply with the requirements to give the NERR
in the required form to employees, by simply sending them an email or an SMS that includes
a weblink to the NERR. At very least, the employer is required to give the NERR by
emailing or otherwise sending the employee the weblink in a way that identifies that the
purpose of the communication is to give the NERR and to identify how the notice can be
accessed – for example: “We are required to give you a Notice of Employee Representational
Rights. It is attached to this email/SMS message in the form of a weblink.” As a matter of
prudence an email or SMS message attaching a NERR or containing a weblink to it should
give an alternative method for an employee to obtain the document if the attachment will not
open on the device the employee is using or the weblink does not operate. If the email or SMS
message contains weblinks to other documents, then the employer runs the risk of creating
confusion about which document is the NERR.
[91] In the present case, the weblink to the NERR was included in a list of other weblinks,
set out in a lengthy and confusing email which made no specific mention of the requirement
that WorkPac give the NERR to employees and did not direct their attention to either of the
versions of the NERR in the email or the weblink containing yet another version. To add to
the confusion the email contained two versions of the NERR, one incomplete and both
sandwiched in with other information that was not part of the prescribed content for a NERR.
It is probable that employees, having read a lengthy and confusing email containing two
different versions of the NERR, would not have opened the weblink to the third version. This
is particularly so given that the email makes no reference to direct the attention of employees
to the weblink, which is one in a list of other links.
[92] There is no indication to employees that one of the weblinks set out in the email is a
link to a notice which is required to be given to them. Instead the text above the list of
weblinks suggests that they are links to documents that are merely “supporting paperwork”,
[2016] FWC 251
the printing of which “would require the destruction of a small rain forest”. The reference to
the weblink documents implies that they are of little consequence. The SMS message sent to
employees suffers from the same deficiencies as the email – it does not alert employees to the
fact that they are being given the NERR. The SMS message simply directs employees to a
website and informs them that they will find “docs relating to proposed agreement”. The
SMS messages does not take employees directly to a copy of the NERR and it does not direct
the attention of employees to the NERR.
[93] While environmental consciousness is admirable, it is not an excuse which can
overcome the invalidity resulting from the failure to give a NERR in the prescribed form to
employees. I doubt that printing a single page that comprises the NERR and physically
giving it to thirty employees who were to be covered by the Agreement would have had any
impact on the environment. However, if WorkPac wanted to use electronic media to give the
Notice, all the Company had to do was send an SMS or email with a direct link to the NERR
stating that the weblink in the SMS message or the email is a link to a Notice of Employee
Representational Rights, which WorkPac is required to give to employees, and to inform them
of an alternative source of the NERR if the weblink did not work. If the Company was
concerned that the weblink might not work, or employees may not be able to open an email
attachment, then a NERR in the prescribed form could have been included in the body of an
email in a way that clearly delineated it from other content.
[94] The submission made by WorkPac in relation to the Full Bench Decision in Peabody
is wrong and misunderstands that Decision. There is nothing indirect about the provisions of
the Act in relation to the requirement to give an NERR in the prescribed form and the
Decision in Peabody could not be clearer in its articulation of those requirements and the
repercussions of failure to comply with them. The manner in which WorkPac purported to
give employees the NERR was a debacle and in my view the confusion surrounding the entire
exercise leads to a conclusion that an NERR in the prescribed form has not been given to
employees as required by the Act. As a result the Agreement has not been validly made and
cannot be approved.
[95] Even if the NERR was validly given, it is also the case that the two versions of the
NERR which contain all of the required content – the NERR embedded in the email amongst
the other material, and the Notice in the weblink – also contain factually incorrect
information. Both of these Notices refer to WorkPac Mining Pty Ltd and its subsidiaries
seeking to negotiate the Agreement when the employer party is WorkPac Mining Pty Ltd and
there is no reference in the Agreement to any subsidiaries. Further, both versions of the
NERR incorrectly state that the Agreement is proposed to cover employees in the black coal
industry in circumstances where the Agreement proposes to cover, and appears to have
always proposed to cover, employees in the mining (Coal) and mining (non-coal) industries.
3.2 Was the Agreement genuinely agreed to?
[96] I am also of the view that the Agreement was not genuinely agreed to and if I was
satisfied that an NERR in the required form had been given to employees, I would not
approve the Agreement on the basis of the information contained in the Form F17 Employer
Statutory Declaration. My reasons for this conclusion are set out below.
[2016] FWC 251
[97] For the purposes of being satisfied that employees have genuinely agreed to an
enterprise agreement, the Commission must consider the requirements set out in s. 188 of the
Act. Section 188 of the Act is in the following terms:
“188 When employees have genuinely agreed to an enterprise agreement
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.”
[98] Section 180(5) of the Act relevantly provides:
“Terms of the agreement must be explained to employees etc.
(5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the
relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the
particular circumstances and needs of the relevant employees.”
[99] In relation to the explanation of the terms of a proposed enterprise agreement to
employees, a Full Bench of the Commission, in McDonald Australia Pty Ltd v Shop
9
| Distributive and Allied Employees’ Association | , held that there is no absolute requirement to |
ensure that particular outcomes are achieved, and that the section requires only that the
employer take reasonable steps to ensure the terms and conditions are explained to all
employees. Further, the Full Bench held that there is no requirement that there be a full
explanation of the terms of an agreement, but rather that the employer takes reasonable steps
to ensure that an explanation is provided.
[100] In the present case, there is insufficient information in the Form F17 Employer
Statutory Declaration upon which I could be satisfied that the employer has taken any steps to
explain the terms of the Agreement to employees, much less whether those steps are
reasonable. It appears that the extent of the explanation provided by WorkPac about the terms
of the Agreement and their effect, is that employees were provided with a series of weblinks
including a link to the Agreement and a link to a briefing document.
[2016] FWC 251
[101] The briefing document is little more than a list of clauses in the Agreement with no
explanation about the effect of those clauses. There is a web link to “Frequently Asked
Questions” and that document is said to be appended to the Form F17 Statutory Declaration.
The only document appended to the Form F17, which in any way meets the description of
“Frequently Asked Questions” relates to the ballot process rather than to the terms of the
Agreement. The translation document said to have been provided to employees whose first
language is not English, simply invites them to request a translator if they need assistance to
understand attached information, which I assume (in the absence of any information) was the
briefing document. The Statutory Declaration also states that employees under the age of 21,
through the NERR, were invited to have a parent or guardian involved in the negotiation. I
can see no reference to such an invitation in any of the versions of the NERR set out in the
Form F17 or in the appended NERR, and such an addition would have rendered the NERR in
any event.
[102] I do not accept that the obligation to explain the terms of the Agreement and the effect
of those terms has been met in circumstances where employees were provided with little more
than a web link to a copy of the proposed Agreement and a range of other documents, none of
which constitute an explanation of the Agreement or the effect of its terms. Had I been
satisfied that an NERR in the prescribed form had been given to employees, I would have
required more information about how WorkPac explained the terms of the Agreement and the
effect of those terms.
[103] The fact that employees work at remote locations does not remove the obligation of an
employer to take reasonable steps to explain to them the terms of a proposed agreement. The
explanation may be by way of face to face meeting, telephone conference or other electronic
means. If an explanation is given in writing then it should comprise more than a list of
clauses in an agreement and a number of documents the relevance of which is not explained
to employees who may access them.
[104] I also have concerns that the evidence in this matter, while not entirely clear, indicates
that bargaining was commenced by the provision of the NERR (in the email and SMS of 3
July 2015) and that at the same time employees were provided with a proposed agreement and
advised, in the “briefing document” said to have been available on the weblink in the email
and SMS, as follows:
“negotiations have been finalised for the proposed Enterprise Agreement”
[105] The email of 3 July 2015 also refers to a document titled “Voting Instructions”. This
document was not in evidence before me but the provision of information regarding a
proposed vote for an enterprise agreement at the same time as the NERR and the proposed
Agreement is given to employees, may be indicative of a lack of genuine agreement and of an
employer simply going through the motions to present what is in effect an “agreement” that is
a fait accompli.
3.3 Does the Agreement pass the BOOT?
[106] Notwithstanding the submissions made by WorkPac in respect of the BOOT, I
continue to have concerns about whether the Agreement passes the BOOT. There have been
numerous Decisions of the Commission, including Full Bench Decisions, where the
[2016] FWC 251
consistent view has been expressed that in applying the BOOT test – and previously the no
disadvantage test (NDT) – consideration is given to a comparison between the terms of the
10
relevant award and the terms of the proposed agreement.
[107] The BOOT (as with the NDT before it) is applied on a global basis rather than line by
line. A provision of a proposed agreement that when considered alone, may be less beneficial
than a corresponding provision in a relevant modern award, will not result in the proposed
agreement failing the BOOT if there are other more beneficial provisions in the proposed
agreement which offset the less beneficial provision such that employees are better of overall.
For example, a modern award that is a reference instrument for the purposes of applying the
BOOT to a proposed agreement may provide that overtime is payable at the rate of time and
a-half for the first three hours and double time thereafter. The proposed agreement may
provide that a flat hourly rate that is less than the overtime rates in the relevant modern award,
is payable for all hours worked including those that would be ordinary hours and those that
would be treated as overtime hours under the modern award.
[108] In this scenario, employees may be better off overall if they are paid the loaded rate
for all time worked and if their total remuneration is more than it would have been if the
award rates, including overtime and other penalty payments or loadings, had applied. It may
also be relevant to a consideration of whether a proposed agreement passes the BOOT in
those circumstances that the flat hourly rate feeds into other entitlements under the proposed
agreement such as the rate at which employees are paid for leave. Employees may volunteer
to work overtime in this scenario and be paid a flat hourly rate for such overtime, and be
better off overall than they would have been under the relevant award.
[109] It may also be relevant for an analysis of whether an Agreement passes the BOOT that
the Agreement contains provisions imposing a right or obligation, or giving and entitlement
not found in a relevant Award. An additional right or entitlement may be considered to be a
benefit, while an obligation or a restriction not found in a relevant Award may be a detriment.
[110] In the present case, the base rates in the Agreement are approximately 1% in excess of
those in the Award. There is little margin to offset removal of Award entitlements or to
impose additional obligations on employees not provided for in an Award. The following
provisions of the Agreement when compared to the Award, in my view, cause the Agreement
not to pass the BOOT:
Clause 1.5 of the Agreement obliges employees to comply with policies and procedures of both WorkPac and unspecified clients in circumstances where there is no requirement that those policies be given to or even explained to employees; they may be exposed to civil penalty for breach of the Agreement for failing to comply with policies and procedures; and WorkPac is not bound to comply with its own procedures in respect of employees; The termination of employment provisions in clause 7.6 require an employee to give additional notice than that prescribed in the Award and expose employees to having deductions from their wages for additional periods of notice not given by them; The Agreement does not include provisions from the Award in relation to personal leave entitlements on termination of employment;
[2016] FWC 251
Ordinary hours of work for part-time employees under the Agreement exceed the maximum ordinary hours that can be worked by such employees under the Award; The meal allowance in the Agreement is less than the same allowances under the Award and there is no capacity for the meal and other allowances under the Agreement to be increased during its life; The redundancy provisions in the Award are more beneficial than the
redundancy provisions under the Agreement;
The entitlements to payment for public holidays under the Award in terms of payment for work and requirements for rostering on public holidays found in the Award are not included in the Agreement; The provisions in the Agreement in relation to public holiday payments for base rate employees are not clear; It is not apparent that the flat hourly rate under the Agreement results in
employees being better off than they would be under the Award in
circumstances where there is no information about the way in which hours may
be worked or the overtime that may be required in any roster cycle;
It is not clear that the Agreement provides for overtime meal breaks in the same terms as the Award; The manner in which personal carer’s leave accrues under the Agreement is not consistent with the terms of the Award; The Agreement does not provide for Accident Pay in contrast with the Award which does contain such provision; Employees on the flat hourly rate are not paid an additional amount for work on rostered days off in circumstances where they would be entitled to be paid at overtime rates under the Award;
[111] I leave for another occasion the very real issue that the undertakings that would be
required to address these matters may result in significant changes to the Agreement, contrary
to the requirement in s. 190(3)(b).
[112] In respect of the other BOOT issues raised by the CFMEU, I do not accept that
inclusion of the model flexibility term prescribed by the Act and Regulations is a detriment to
employees simply because a relevant award provides for a different flexibility term. A “no
extra claims commitment” simply reflects the fact that the agreement sets wages and
conditions of employment for a specified term and that in return for that certainty, employees
will not make claims for matters not provided for in the Agreement. The inclusion of a casual
employment provision will not of itself cause an agreement to fail the BOOT and there are
many agreements in the Coal industry which provide for casual employment which have been
held to pass the BOOT. The Agreement includes the model consultation term prescribed by
the Act and the Regulations, and I do not accept that it is appropriate to compare that term
with the consultation term in the Award for the purposes of the BOOT.
[113] I do not accept the CFMEU submissions about the dispute settlement procedure. The
clause in question in this matter is distinguishable from that before the Full Bench in
11
| Veridian. | The clause in the Agreement in the present case simply provides that any outcome |
or decision of the Commission under the dispute settlement procedure must be consistent with
any relevant building code. The Commission would be unlikely to issue a Decision or
Recommendation under a dispute settlement procedure that would put an employer in breach
[2016] FWC 251
of a statutory or other obligation that would cause loss or damage to the employer. In
contrast with the clause considered in Veridian, the clause in the present case does not provide
for the terms of the Agreement as it operates in the future, to be altered. I accept that the
employer provides employees on hire and that employees accept positions at the levels
offered. The Agreement does not give the employer any right in this regard that the employer
would not have under the Award.
4. CONCLUSIONS
[114] A mandatory template for a valid NERR is provided in Schedule 2.1 of the Fair Work
Regulations 2009. The template makes clear that it cannot be modified other than as set out in
the template, which provides for some information to be added (such as the name of the
employer, the name of the proposed agreement and its proposed coverage) and allows for
some content to be deleted where it is not relevant to the employer.
[115] The template is available on the Fair Work Commission website at
in both word and PDF formats. The Commission also publishes a Guide to the NERR
emphasising the need for conformity with the template and providing information about how
to complete the NERR including information that should be added to it and an explanation of
the circumstances in which content that is not relevant to the particular employer or
employees may be deleted.
[116] A number of Full Bench Decisions have emphasised that failure to give a notice
complying with the requirements of the Act and Regulations in relation to form and content,
goes to validity. In short, where the requirements have not been met the Commission cannot
approve an agreement.
[117] It should be a simple matter for employers to download the template NERR from the
Commission's website, include the required information in the introductory paragraph, delete
the content that is not relevant, and give it to employees. The Regulations provide for a
variety of mechanisms in which the NERR can be given, which range from physically
handing it to employees to providing it electronically. It is difficult to conceive of how the
process of giving the NERR to employees could be simpler or how the implications of failure
to comply with the requirements to give employees a NERR in the required form could be
clearer.
[118] The WorkPac Group of companies is large and has human resource management
expertise. I can only wonder at why, knowing that the giving of a valid notice is an essential
step in the approval of an enterprise agreement, WorkPac turned what should have been a
simple exercise into the debacle that it became. It is particularly surprising given that another
Company in the WorkPac Group had an application for approval of an enterprise agreement
refused in circumstances where the method of giving a NERR to employees was to send them
an SMS message stating that they should go to a website to “view some important
documents”. In that case Commissioner Raefelli refused to approve an agreement because the
12
text message did not refer to the fact that the documents related to the agreement.
Notwithstanding that the email and the SMS message in the present case indicated that the
weblinked documents related to the Agreement, as a matter of prudence, an essential
document such as a NERR should not be provided by way of a generic SMS message or email
that also refers to other documents.
[2016] FWC 251
[119] Once again I am in the position of being required to refuse to approve an agreement on
the basis of what should be a simple administrative matter. The application for approval of
the Agreement is dismissed and an Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code C, PR576084>
1
CFMEU v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940.
2
Transcript of proceedings PN10 and PN14.
3
PN22.
4
[2014] FWCFB 2042.
5
[2015] FWCFB 3889.
6
[2014] FWCFB 2042.
7
Ibid at [40] to [47].
8
Ibid.
9
(2010) FWAFB 4602.
10
Re MSA Security Officers Certified Agreement 2003 PR937654; BUPA Care Services Pty Ltd [2010] FWAFB 2762;
Mondex Group Pty Ltd [2015] FWC 1148; Agri Labour Australia Pty Ltd [2015] FEC 5332; MP Resources Pty Ltd
[2015] FWC 6820; Samphie Pty Ltd t/a Black Crow Organics [2010] FWAA5060; Top End Consulting Pty Ltd [2010]
FWA 6442.
11
[2015] FWCFB 3889.
12
[2010] FWA 4247.
2
0
0