APT Management Services Pty Ltd T/A APA Group

Case •

[2024] FWCA 2607

•

12 JULY 2024
[2024] FWCA 2607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

APT Management Services Pty Ltd T/A APA Group

(AG2024/1062)

APA TRANSMISSION PIPELINES (NSW, VIC & SA EXCL. MOOMBA) ENTERPRISE AGREEMENT 2023

Oil and gas industry

DEPUTY PRESIDENT EASTON

SYDNEY, 12 JULY 2024

Application for approval of the APA Transmission Pipelines (NSW, VIC & SA excl. Moomba) Enterprise Agreement 2023.

  1. APT Management Services Pty Ltd has made an application for the approval of the APA Transmission Pipelines (NSW, VIC & SA excl. Moomba) Enterprise Agreement 2023. The application was made under s.185 of the Fair Work Act 2009. The Agreement is a single enterprise agreement.

  1. I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

  1. I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):

    • Clause 23.2 – Termination of Employment
    • Clauses 29.3, 29.4, 29.6, 29.8, 29.9 – Personal Leave
    • Clauses 31and 31.2 – Compassionate Leave
    • Clause 36.7 – Public Holidays

  1. In this decision I will use the following abbreviations:

(a)the Employer: APT Management Services Pty Ltd T/A APA Group;

(b)the Agreement: APA Transmission Pipelines (NSW, VIC & SA excl. Moomba) Enterprise Agreement 2023;

(c)the CEPU: the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia;

(d)the AMWU: the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union;

(e)the AWU: The Australian Workers’ Union; and

(f)the Union Bargaining Representatives: the CEPU, the AMWU and the AWU collectively.  

  1. Noting the submissions provided by the Employer, I am satisfied that the Agreement contains more beneficial entitlements than the NES.

  1. The CEPU, the AMWU and the AWU were bargaining representatives for the Agreement. The Union Bargaining Representatives opposed the approval of the Agreement, claiming that the Commission cannot be satisfied that the employees genuinely agreed to make the Agreement because the Employer allegedly made incorrect representations or mislead employees during the bargaining process. For the reasons given below I have rejected this argument and I am satisfied that I must approve the Agreement.

  1. In addition to the AWU, CEPU and AMWU, there were also seven individual bargaining representatives. The individual bargaining representatives supported the approval of the Agreement.

Genuinely Agreed/Incorrect or Misleading Representations

  1. There is no suggestion that the Agreement does not pass the Better Off Overall Test.

  1. The Commission must take into account the Statement of Principles on Genuine Agreement made under s.188B of the Act in determining whether it is satisfied that a proposed Agreement has been genuinely agreed to by the employees covered by the Agreement: s.188(1). The Statement of Principles on Genuine Agreement at paragraph 10 warns that section 180(5) of the Act:

    “… will generally not be satisfied if the employer makes an incorrect representation or misleads employees (by words, action or otherwise) about a significant term of the proposed enterprise agreement or its effect”.

  1. The Union Bargaining Representatives submitted that the Commission cannot be satisfied that the proposed agreement was genuinely agreed by the employees covered by it because during the bargaining process the Employer made incorrect representations or mislead employees about the effect of a proposed amendment. The Union Bargaining Representatives asserted that if employees had been properly informed they would not have voted for the Agreement.

  1. 113 of the 118 eligible employees (96%) voted. 74 of the 113 voting employees approved the Agreement – being 65% of employees who voted and 63% of eligible employees.

  1. It seems that the Union Bargaining Representatives did not support the Agreement when it was put to a vote. 39 employees voted against the Agreement, which was 21 votes short of voting down the Agreement.

  1. The alleged incorrect representations relate to clause 18.4 of the Agreement. The corresponding clause in the previous enterprise agreement is:

“18.4 Payment of Wages

a.   Employees will be paid fortnightly. See Average Pay in definitions.

b.   Employees shall be paid by electronic funds transfer into one or more accounts (maximum 6) nominated by the Employee.

c.   The Employer reserves the right to request an Employee to nominate an alternate financial institution where it is not reasonably practical to transfer funds to the institution originally nominated by the Employee.

d.   The Employer shall provide a detailed pay slip to each Employee in accordance with the Act and any additional requirements in this Agreement.

e.   Where an Employee is terminated from employment before the recognised payday, all due entitlements and salary shall be paid within 7 days by electronic funds transfer.

  1. Clause 18.4 in the proposed Agreement is in the following terms:

“18.4 Payment of Wages

a.   Employees will be paid fortnightly. (See Average Pay in definitions).

For clarity, where an employees’ ordinary working hours are averaged over a period in excess of one week (eg four weeks), payment for ordinary hours worked will be averaged over the employees' roster cycle.

For the avoidance of doubt, roster changes can only be made in accordance with clause 15.2 Hours of Work and section 10. Consultation.

b.   Employees shall be paid by electronic funds transfer into one or more accounts (maximum 6) nominated by the Employee.

c.   The Employer reserves the right to request an Employee to nominate an alternate financial institution where it is not reasonably practical to transfer funds to the institution originally nominated by the Employee.

d.   The Employer shall provide a detailed pay slip to each Employee in accordance with the Act and any additional requirements in this Agreement.

e.   Where an Employee is terminated from employment before the recognised payday, all due entitlements and salary shall be paid within 7 days by electronic funds transfer.”

[Underlining added]

  1. The context in which the representations are to be considered, as urged by the Union Bargaining Representatives, is conveniently summarised in the CEPU’s written submissions:

    “The proposed EA was negotiated against the backdrop of the Applicant admitting to underpaying its entire workforce by approximately $32 million dollars over the seven years period from 2015 to 2022. This admission was made by the Applicant on 19 November 2022.  The underpayments included employees covered by the current EA. This workforce numbers approximately 118 employees. At the time of the Applicant making its admission of underpayments it announced that it would have an external organisation analyse how much each employee had been underpaid. For the purposes of the Respondent’s members the Applicant undertook this “remediation” process without their input being sought or that of their union. In summary the process took place behind closed doors and with little information being provided to the employees.

    …

The failure of the Applicant to provide an explanation for how the underpayments occurred and what the lump sum payments had been paid for resulted was agitated by the unions during bargaining meetings. In at least one of those meetings the unions made a direct link between the Applicant failing to provide an explanation for the historical underpayments and the unions holdings concerns about the intent and effect of the changes to clause 18.4. After the Respondent unions brought a dispute to the FWC, the Applicant provided information to the Respondent that confirmed that most of the money which had been underpaid was owed because overtime payments had not been paid correctly or at all. Indeed, the Applicant has admitted that the primary reason for the underpayments for the employee’s covered by the EA is the treatment of ordinary hours and overtime.”

The alleged incorrect or misleading representations

  1. The alleged incorrect or misleading representations were made by Employer representatives in three different meetings. There is no contest that the representations were made however there is a significant disagreement about whether the representations were incorrect or misleading.

First alleged incorrect or misleading representations

  1. The first alleged incorrect or misleading representations were made on 21 September 2023, more than five months before the vote. The representations were made in a bargaining meeting at which only bargaining representatives were present. No direct evidence was led by any person who attended the meeting.

  1. The Employer distributed minutes of the meeting to all the employees who were to be covered by the Agreement. The minutes of the meeting included a table listing the bargaining items. The parties relied on the minutes and the table as evidence of what was said by the Employer about clause 18.4, viz:

Clause Employer Change Reason for Change Discussion
18.4 Payment of Wages Amended: to include clarity that employees’ ordinary hours of pay are averaged over their rostered period and paid fortnightly. Clarification: Ordinary hours of work are averaged and paid over the rostered period. Not on a weekly basis.

DT: What is the purpose of this change? Alarm bells ring when employers make changes like this.

RB: Clause and application is no change. Due to wage remuneration clause was raised as ambiguous. Legal advice was that the clause be added for clarification that employees on rostered shifts ordinary hours are averaged over the roster cycle and paid fortnightly. In line with the Gas Award ordinary hours averaging provisions.

DT: Not agreed but understood clarification.

  1. “DT” is a reference to Mr Danny Timmers, who is a CEPU-ETU representative and “RB” is a reference to Renee Broanda, who is a HR Support officer for the Employer.

  1. The Union Bargaining Representatives said that the Employer failed to provide a truthful account of what the proposed changes to Clause 18.4 would mean for employees.

Second alleged incorrect or misleading representations

  1. The second alleged incorrect or misleading representations were made at a meeting of bargaining representatives on 31 January 2024. The Employer once again distributed minutes of the meeting to all the employees to be covered by the Agreement and the parties referred to and relied on portions of the minutes. In the following extract of the minutes I have inserted the surnames of the speakers and the parties that they spoke for:

“[Mr Stewart - AMWU]: Raised concern that during Payroll Remediation employees were underpaid a lot of money. Expressed that reasons for underpayments not clearly explained and so are unable to understand how the change effects employees. [Mr Stewart] is of the belief believed that the company has not explained the change or impact clearly and so feels the change could be saving the company money, minimising the current wage offer.

Expressed that employees need to know if the proposed change will result in them losing money.

[Mr Matthews - Employer]: Acknowledged the need for the impacts of the amendment to be explained to employees and Bargaining Representatives in further detail.

[Mr Bradley - Employer]: Committed to make time to discuss the impacts and reasons for the amended change. Identified that he was not aware that any employee covered by the SE EA was impacted by the underpayment directly related to averaged wage provisions.

[Mr Bradley - Employer] explained to his knowledge only those employees covered by NW EA were impacted by this type of underpayment as they work rotating rosters on annualised/averaged wages.

[Mr Stewart - AMWU]: Expressed frustration that the company had not engaged him on this specific averaging wage issue as the company was of the belief that AMWU NSW members were not directly affected. The proposed amendment could impact employees in the future.

[Mr Timmers - CEPU-ETU]: Expressed that he believed that the company had not acted in line with Good Faith Bargaining as we failed to explain the impacts of the change sought.

[Mr Vanderzweep - AWU]: Expressed concern that he had contacted the Payroll Remediation Team to clarify the reasons for his underpayment and was not provided with clear explanation from the company.

[Mr Bradley - Employer]: Committed to explain findings of Payroll Remediation outcomes.

[Mr Stewart - AMWU]: Expressed concern that some employees has received significant underpayments over the last 6 years, believed that by amending the Payment of Wages provisions that employees going forward would be missing out on the reason for the underpayments if changed.

[Mr Bradley - Employer]: Gave an example of reasons that employees on average wage were impacted. Employee on 12/9 roster in 1st fortnight works 114 hours, then less than 76 hours in 2nd and 3rd fortnight. Average pay means paid for 76 hours every fortnight. Company technically underpaid 1st fortnight, overpaid 2nd and 3rd fortnight. Where company overpaid, we have not claimed overpayments.

[Mr Timmers - CEPU-ETU]: Believed that the Company should pay as per the agreement.

[Mr Adams - Employer]: Explained that the company is not claiming any of the overpayments back, however, if the company was to pay as per agreements the employees would receive lumpy pays. More one fortnight, less the next fortnight.

[Mr Stewart - AMWU]: Expressed concern that the company paying underpaying then overpaying employees did not make sense to him, he did not believe that the company would ‘be a good bloke’ and not claim overpayments if there were any.

[Mr Timmers - CEPU-ETU]: Expressed that what was in the EA was already there and did not agree to change it.

[Mr Stewart - AMWU]: Expressed his concern that the company may be hiding something and suggested that the Bargaining Representatives engage Fair Work Commission (FWC) on the matter as he was worried.

[Mr Timmers - CEPU-ETU]: Supported [Mr Stewart - AMWU] view that they may need to involve FWC.

[Ms Broanda  - Employer]: Suggested that the confusion regarding the impacts could be resolved by having a meeting with the Bargaining Representatives outside of negotiations to explain the change and impacts of averaging hours from the Payroll Remediation findings.

Ms Broanda reiterated that the company had overpaid and underpaid employees, ‘as a good bloke’ the company was not reviewing overpayments. This would be clearly explained in the suggested meeting.

[Mr Bradley - Employer]: Supported position to hold external meeting to explain aggregated rates, average pay, Payroll Remediation findings and impacts.

[Mr Timmers - CEPU-ETU]: Did not feel that the company providing additional information would get the agreement voted up.

[Mr Vanderzweep - AWU]: Questioned that if the SE EA employees were not impacted by this provision in underpayments, why the company wants to change it.

[Mr Matthews - Employer]: Explained that the underpayment issues within the SE EA were impacted by time sheeting issues, payroll issues, breaks in hours and call outs.

[Mr Timmers - CEPU-ETU]: Explained that they cannot agree to the EA, the clause change is a big issue and we may be taking money off employees. [Mr Timmers - CEPU-ETU] expressed he may seek legal advice from his team on the impacts.

[Mr Matthews - Employer]: Understood [Mr Timmers - CEPU-ETU] needing to seek further advice.

[Mr Nguyen - AWU]: Requested that company provide a revised version for a mass meeting with employees next week.

[Mr Matthews - Employer]: explained company needed time to consider position. Would meet in 2 weeks and would like to provide a revised position prior to that time.”

  1. A further meeting did in fact take place “outside of negotiations to explain the change and impacts of averaging hours from the Payroll Remediation findings” as discussed. No party led any evidence of what was discussed at that meeting.

Third alleged incorrect or misleading representations

  1. The third alleged incorrect or misleading representations occurred at a “town hall” meeting on 21 February 2024. The meeting itself was not well attended but the PowerPoint slides used at the meeting were distributed to all eligible employees.

  1. The slides included the following representations (reformatted for readability):

(a)Payment of Wages

Clause 18.4 (as per Sept. 2023 proposal) Employees will be paid fortnightly. See Average Pay in definitions.

For clarity, where an employees’ ordinary working hours are averaged over a period in excess of one week (e.g. four weeks), payment for ordinary hours worked will be averaged over the employees' roster cycle

(b)Payroll Remediation – Update

Transmission South East Agreement

·   The primary reasons for back payments for the Transmission SE agreement relate to the treatment of ordinary hours and overtime. For example, individuals working in excess of ordinary hours or outside the span of hours. In other instances, recall to work was topped up to ensure it met minimum engagement requirements

·   While overpayments were identified, APA has taken the decision not to recover these from employees.

·   There is a specific issue that impacts those working 21, 24 and 42 day rosters where there is a misalignment of the rostered days and the pay cycles. This is typically in the NW Agreement and a small number of SE employees on working rosters. This is what is driving APA's proposed change to clause 18.4 of the SE EA

(c)Wage Averaging Clause

Context

·   Allows employee working shifts to be paid as per the intent of the agreements, There is no change for Monday-Friday rostered employees.

·   Clause was provided and explained to Bargaining Representatives in September.

·   Throughout the negotiations APA have sought input from Bargaining team on the clause wording.

Proposed Clause - Payment of Wages: Clause 18.4 (September 2023 proposed addition in red font)
Employees will be paid fortnightly. See Average Pay in definitions. For clarity, where an employees’ ordinary working hours are averaged over a period in excess of one week (e.g. four weeks), payment for ordinary hours worked will be averaged over the employees' roster cycle.

Why are we seeking change?

·   Ensure that the intent of the clause meets compliance requirements of the Fair Work Ombudsman so employees on shift receive an even annualised pay (i.e. not lumpy pays).

What are the facts?

·   Wage averaging cannot be used by Employers to reduce Employee entitlements.

·   APA is obligated to explain the reasons for a change, APA cannot provide misleading information to Employees.

·   The clause was discussed in depth with the Vice President Commissioner (FWC) during the recent NW Consultative Meeting.”

Consideration

  1. I am not satisfied that any incorrect or misleading representations were made. In any event I am not satisfied that the representations were “about a significant term of the proposed enterprise agreement or its effect” (see Statement of Principles on Genuine Agreement at [10]).

  1. In Australian Municipal, Administrative, Clerical and Services Union v Yarra Valley Water Corporation [2013] FWCFB 743 at [26]-[27] (Yarra Valley) the Full Bench considered the effects of false representations in the course of bargaining:

    “As earlier outlined, the ASU’s case on appeal emphasised the misleading nature of the Emails and the Table. We accept the submissions of the ASU in this respect. The import of the Emails is that all the changes identified in the Table were necessary in order for the Agreement to be capable of approval by this Commission, having regard to the jurisdictional issues considered in the Parks Victoria decision. The references in the Table to changes being “required to gain approval”, when read with the contents of the Emails, would reasonably be understood by the layperson to mean “required to gain approval by the Commission”. In fact, a number of the changes had nothing to do with any arguable interpretation of the Parks Victoria decision, but were changes made in order to comply with Victorian State Government policy, including in particular its policy on “union neutrality”. That was, inexplicably, simply not mentioned in either the Emails or the Table.

    We regard this as a serious matter. To falsely represent that a provision of a proposed enterprise agreement is incapable of approval by the Commission, or must be altered in a certain way to make it capable of approval, necessarily involves the misleading propositions that the subject matter of the provision is removed from any further negotiation and that acceptance of the provision proposed by the employer is non-optional if any valid enterprise agreement is to be made at all. It also has the effect of improperly putting the imprimatur of this Commission on employer proposals which merely represent the employer’s preferred view as to the relevant subject matter.

A false representation or a material non-disclosure by an employer in the course of bargaining for an enterprise agreement may constitute a reasonable ground for believing under s.(c) of the Act that an enterprise agreement has not genuinely been agreed to by employees if it could reasonably be expected to have had the effect of deceiving those employees into voting for something which, if they had known the true position, they would not have voted for. The question in this appeal is whether the misleading representations in the Emails and the Table could reasonably be expected to have had this effect.”

  1. The Full Bench in Yarra Valley concluded that the provisions about which misleading statements were made were “trivial in nature and did not detrimentally affect employee entitlements to any appreciable degree” and also that “…it is highly unlikely that these changes would have played any significant role in the decision of employees as to whether to vote to approve the Agreement. They were trivial compared to the major issues such as increases in rates of pay and the financial benefit to be obtained from backpay upon approval of the Agreement” (Yarra Valley at [29] and [30]).

Were the representations about a significant term of the proposed enterprise agreement or its effect?

  1. I am comfortably satisfied that the above representations were not about a significant term of the proposed enterprise agreement or its effect. As such, even if any of the representations were incorrect or misleading, they did not fall short of the standards set in the Statement of Principles.

  1. Clause 18.4 of the agreement deals with payment of wages. By its terms clause 18.4 does not affect how much each employee is ultimately paid. Instead, the clause deals with the frequency of payments, the method of payment and the information provided to employees about payments.

  1. There is, arguably, a potential for collision between the fortnightly pay cycle that is provided for in clause 18.4 and the Rostered Days Off (RDO) system in clause 15.7 of the Agreement - which allows for ordinary hours to be rostered and averaged over a period longer than two weeks.

  1. There are references in the bargaining exchanges recorded above to “lumpy pays.” If payment for ordinary hours, as opposed to rostering ordinary hours, cannot be averaged over a period in excess of two weeks, then the fortnightly pay for employees is likely to be lumpy - meaning that the number of ordinary hours paid in each fortnight might vary. It was said at the hearing that employees prefer that their pay to not be lumpy – which is understandable.

  1. I do not regard this to be a significant term of the Agreement. No doubt some employees would take an interest in these arrangements and the prospect of lumpy pays is not particularly appealing, but in the wider context of bargaining for a new agreement, the additional words to be inserted into clause 18.4 are not significant. There is no suggestion that the inclusion or exclusion of the changes to clause 18.4 did or even could have made the difference between the Agreement being approved by voting employees or not.

  1. Moreso, at present only 8 employees are rostered to work ordinary hours over a cycle longer than two weeks. That is, 110 of the 118 employees currently work 38 ordinary hours each week are not affected by the change to clause 18.4 (assuming the changes to the text of clause 18.4 actually cause any change to the effect of the clause).

  1. The Yarra Valley decision referred to above pre-dates the Statement of Principles on Genuine Agreement and s.188B of the Act, but to the extent that the Full Bench’s reasoning can be applied to the current matter, I am satisfied that it is highly unlikely that the changes to clause 18.4 would have played any significant role in the decision of employees as to whether to vote to approve the Agreement. They were trivial compared to the major issues such as pay increases.

Were the representations incorrect or misleading?

  1. I shall nonetheless deal with the objection raised by the Union Bargaining Representatives that the representations were incorrect or mislead employees about a term of the Agreement.

  1. The Union Bargaining Representatives said that the Employer failed to provide a truthful account of what the proposed changes to Clause 18.4 would mean for employees.

  1. The legal effect of the changes to clause 18.4 are plain to see. The clause explicitly allows for the payment of ordinary hours worked to be averaged over more than one pay cycle.

  1. The Employer said that there will be no practical change caused by the amendments because:

(a)the terms of the previous agreement allowed this practice but was potentially ambiguous and

(b)the Employer has averaged ordinary hours over the roster cycle for a long time and therefore will not need to (or opt to) change any practices as a result of the amendment to clause 18.4.

  1. The Union Bargaining Representatives said that the amendments to clause 18.4 could potentially cause detriment to employees covered by the Agreement but could not or did not specify any particular kind of detriment that could arise. The Union Bargaining Representatives’ proposition is self-evidently weak.

  1. Relatedly, the Unions did not commit to any particular interpretation of clause 18.4 of the old agreement that differs from the ordinary meaning of the words in the amended clause. This position is untenable: the Union Bargaining Representatives cannot credibly allege that the representations made by the Employer (that the changes to clause 18.4 do not change the legal effect of the clause) were incorrect or misleading without showing or even submitting that the changes to clause 18.4 do change the legal effect of the clause.

  1. The unions do not know of any practical impacts that the changes to clause 18.4 would or might have for employees covered by the Agreement. At the hearing the Union Bargaining Representatives acknowledged that they had the option of asking their members about the payment of wages arrangements prior to the vote in order to find out if there would be any practical impact from the changes, let alone any adverse impacts. It would appear that none of the Union Bargaining Representatives took any steps prior to the vote to investigate whether there would be any adverse impacts from the changes to clause 18.4. Significantly, in all the time since the vote the Unions have still not identified any adverse impacts from the changes to clause 18.4.

  1. The first alleged incorrect or misleading representations refer to legal advice that the Employer received regarding clause 18.4 and the third alleged incorrect or misleading representations refer to ensuring that the intent of the clause meets “compliance requirements of the Fair Work Ombudsman”. Bargaining for the Agreement took place at the same time that there was discussions and disagreements between the Employer and the Union Bargaining Representatives regarding the ‘remediation’ process (see paragraph [15] above). The CEPU asked the Commission to make an Order that the Employer produce copies of any legal advice received by the Employer (referred to in the September 2023 meeting). I declined to make such an order because the advice itself has no apparent relevant to matters in contest.

  1. The Union Bargaining Representatives’ concerns about the future effect of the amendments to clause 18.4 are not substantial. It is quite possible that the Union Bargaining Representatives’ suspicions and concerns about clause 18.4 really only relate to the remediation process. Such concerns are not relevant to the making of the new Agreement. If the terms of the proposed Agreement are unambiguous and genuinely agreed by a majority of voting employees, then it is not for the Commission to hold up the approval of the Agreement because of collateral concerns about a matter that is not relevant to the approval process.

  1. In a general sense I am not satisfied that any of the representations made by the Employer about clause 18.4 were false or misleading.

  1. There are also reasons for rejecting the Union Bargaining Representatives’ objection that are specific to each of the alleged incorrect or misleading representations.

  1. In relation to the first alleged incorrect or misleading representations made in the bargaining meeting on 21 September 2023, I am satisfied that the representations made were not incorrect or misleading because:

(a)The proposed change to clause 18 was marked in the relevant table as “not agreed”. I this context a voting employee who read the minutes of the meeting would understand that there was a disagreement, or at least a live issue, between the bargaining representatives about the matter;

(b)there are several references to the amendments providing clarity or clarification about the operation of the previous agreement. It is reasonable to say that the amended version of clause 18.4 is clearer in its meaning than the previous version;

(c)the enquiry of the employee bargaining representative, “what is the purpose of this change” does not go to the meaning or effect of the clause but the Employer’s motivation for raising the variation. There is no basis to suggest that the Employer’s “purpose” or reason for raising a change to clause 18.4 is relevant; and

(d)the minutes record no more than the process of “give and take” facilitated and regulated by the Act: Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia [2012] FCA 764 at [41], 217 IR 154 at 168.

  1. In relation to the second alleged incorrect or misleading representations made in the bargaining meeting on 31 January 2024, I am satisfied that the representations made were not incorrect or misleading because:

(a)the minutes of this meeting (reproduced above) record disagreement and debate about the proposed change to clause 18.4 in the context of the Employer’s payroll remediation process;

(b)the statements made by the Employer’s representatives were challenged and tested by the employee bargaining representatives;

(c)much of the discussion focused on the Employer’s intentions in raising the changes, which is not particularly relevant when the meaning of the proposed terms are crystal clear, and

(d)nothing that was said by the Employer representatives was misleading or incorrect about the terms of the proposed Agreement.

  1. In relation to the third alleged incorrect or misleading representations made in the town hall meeting on 14 February 2024, I am satisfied that the representations made were not incorrect or misleading because:

(a)the words used by the Employer are clear about the effect of the changes to clause 18.4: “where an employees’ ordinary working hours are averaged over a period in excess of one week (e.g. four weeks), payment for ordinary hours worked will be averaged over the employees' roster cycle”;

(b)the Employer was clear and direct about the catalyst for the change (that “there is a misalignment of the rostered days and the pay cycles”); and

(c)the Employer was clear and direct about the reason for seeking the change (to “ensure that the intent of the clause meets compliance requirements of the Fair Work Ombudsman so employees on shift receive an even annualised pay (i.e. not lumpy pays”).

  1. The reference to the Fair Work Ombudsman above is not as clear as it could be. In my view the words used do not carry the same kind of meaning that the Full Bench in Yarra Valley regarded as a “serious matter”. In that matter the Full Bench found that the Employer made “misleading propositions that the subject matter of the provision is removed from any further negotiation and that acceptance of the provision proposed by the Employer is non-optional if any valid enterprise agreement is to be made at all.” The reference to the Fair Work Ombudsman did not carry the same kind or connotation or even a similar type of connotation. All three alleged inaccurate or misleading representations refer to clarifying the effect of the payment of wages clause or similar. The “compliance requirements” referred to are objectively understood to be a reference to providing clarity about the misalignment between rostered days and pay cycles.

  1. The Union Bargaining Representatives have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the CEPU, AMWU and AWU.

  1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 July 2024. The nominal expiry date of the Agreement is 30 September 2026.

DEPUTY PRESIDENT

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