Australian Capital Territory

[2021] FWCA 109

[2021] FWCA 109

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Capital Territory
(AG2020/3291)

ACT PUBLIC SECTOR MEDICAL PRACTITIONERS ENTERPRISE AGREEMENT 2017-2021

Health and welfare services
DEPUTY PRESIDENT DEAN	SYDNEY, 11 JANUARY 2021

Application for approval of the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 – whether single interest employers – whether terms explained to employees – application approved.

[1] An application has been made for approval of an enterprise agreement known as the ACT Public Sector Medical Practitioners Enterprise Agreement 2017-2021 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 by the Australian Capital Territory (the ACT).

[2] Employees affected by this application presently work under the ACT Public Sector Medical Practitioners Enterprise Agreement 2013 – 2017 (the 2017 Agreement), the nominal expiry date of which was 30 June 2017.

[3] The Agreement is stated by the ACT to be a ‘single-enterprise agreement’ as that term is used within s.172(2) of the FW Act. The Agreement though covers both the ACT and “the Chief Executive of Calvary Health Care ACT Limited (Calvary) on behalf of the Australian Capital Territory”, with it being submitted the two are single interest employers engaged in a common enterprise (see s.172(5)(a)), with the common enterprise being the provision of public health services within the ACT.

[4] The Agreement has some history. It followed a protracted bargaining period of some three years. A previous application was made (AG2020/116) for its approval which was the subject of a number of objections by Mr John Wilson, a lawyer and bargaining representative on behalf of two employees, Drs Ashton and Berry, proposed to be covered by the Agreement. In a decision dated 29 May 2020 1, Commissioner Wilson found that the explanation of the Agreement to relevant employees in relation to one provision of the Agreement was insufficient and accordingly declined to approve the Agreement (the First Decision).

[5] A hearing was conducted on 11 December 2020 to hear Mr Wilson’s objections to the approval of the Agreement. At the hearing, Mr Andrew Pollock of Counsel appeared with permission for the ACT. Mr Wilson appeared for Drs Ashton and Berry. Mr Steve Ross appeared for the Australian Salaried Medical Officers Federation ACT Branch (ASMOF) and Mr Tony Chase appeared for the Australian Medical Association ACT Branch (AMA).

[6] For the reasons that follow, I am satisfied that the Agreement meets the requirements of the Act for approval.

Permission to be represented

[7] Mr Wilson objected to permission being given for the ACT to be represented by Mr Pollock on the basis that the ACT was capable of representing itself through its employed solicitors. I note that Mr Wilson did not require permission as he had been appointed as a bargaining representative for Drs Ashton and Berry.

[8] A Full Bench of the Commission 2 has recently confirmed that:

“The principles concerning the proper interpretation and application of s 596(2) are well established. The assessment of whether permission should be granted under s 596 involves a two-step process. The first is consideration as to whether one or more of the criteria in s 596(2) is satisfied. The consideration required by this first step involves the making of an evaluative judgment akin to the exercise of a discretion. It is only where the first step is satisfied that the second step arises, and involves a consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) does not of itself dictate that the discretion is automatically to be exercised in favour of granting permission.” (footnotes omitted)

[9] In deciding to exercise my discretion and grant permission, I was satisfied that granting permission would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s596(2)(a)) as Mr Pollock had had carriage of the matter in the previous proceedings and was accordingly familiar with the issues, and had prepared the submissions and evidence for this application. Complexity in this matter arises in relation to the nature of the objections taken by Mr Wilson, and in particular whether the ACT and Calvary are engaged in a common enterprise. In deciding to grant permission for the ACT to be represented, I also considered that issues of unfairness in granting permission to Mr Pollock did not arise given Mr Wilson is an experienced employment lawyer.

Evidence and submissions

[10] Extensive evidence was given and submissions made. While all of the material filed by the parties has been carefully considered, it is not set out in full detail below.

[11] In support of the approval, evidence was given by Mr Russell Noud, Executive Group Manager, Industrial Relations and Public Sector Employment, ACT Government. Mr Noud is the lead bargaining representative for the ACT on all ACT public sector enterprise agreements.

[12] He outlined the arrangement between the ACT and Calvary to provide health services in the ACT, outlined the explanation of terms of the Agreement provided to employees, and annexed numerous documents including the ‘Explanatory Notes’ and ‘Material Referenced’ which were provided to all relevant employees via email, and were available via the ACT’s ‘Health Hub’ portal. He also gave evidence about what is referred to as the ‘Radiology Scheme’, the explanation of which was found to be insufficient in the First Decision.

[13] Mr Noud also provided the F17 form on behalf of the ACT, and highlighted the answers in Part 3.4 of the F17 titled ‘Explaining the terms of the agreement’ which set out the steps taken by the ACT to explain the terms. I note a separate F17 was provided on behalf of Calvary and was in similar terms.

[14] In his witness statement, Mr Noud provided the following summary of the steps taken:

“(a) on 30 September 2020, documents titled ‘Explanatory Notes’ (a copy is annexed and marked ‘RNW-4’) and ‘Material Referenced’ (a copy is annexed and marked ‘RNW-5’) were provided to all employees via an email message from Louise Procter, on behalf of Dr Damian West (a copy is annexed and marked ‘RNW-6’). These documents were also available on the Health Hub. The email included a link to the MPEA, the Explanatory Notes and the Material Referenced;

(b) where employees were on personal leave, the link was sent to their personal email address. Where employees did not have email access, hard copy notices containing the relevant internet address were sent to their postal addresses;

(c) on 30 September 2020, the Explanatory Notes and Material Referenced were provided to relevant Calvary employees via an email message from Kanta Toraskar on behalf of Ms Rosalyn Everingham. The email included a link to the MPEA, the Explanatory Notes and the Material Referenced. These documents were also available on the Calvary Connect Intranet. A reminder email was also sent to Calvary employees on 7 October 2020 to inform employees of the voting period and voting process. A copy of this correspondence is annexed and marked ‘RNW-6.1’;

(d) from 30 September 2020, the Explanatory Notes and Material Referenced documents were accessible to all employees via the whole of government portal public website. This is a public-facing website accessible from outside the public service IT environment;

(e) all staff were invited to attend online information sessions on 6, 8 and 9 October 2020. I am informed by Ms Consen-Lynch that employees were made aware of the information sessions by email, bargaining updates on the intranet hub, weekly update from the CEO, notices posted throughout the hospital and on the notice board in the staff canteen. A copy of relevant correspondence is annexed and marked “RNW-7”;

(f) persons attending the information sessions were provided with a PowerPoint presentation. A copy of the PowerPoint presentation is annexed and marked ‘RNW-8’;

(g) an email inbox was advertised to employees who wanted further information or explanation at [email protected]; and

(h) a FAQ document was provided to all Senior Medical Officers and Junior Medical Officers on 27 October 2020. A copy of this is annexed and marked ‘RNW-9’.

[15] In terms of the explanation provided to employees regarding clause 46, Rights of Private Practice (which provides for the ‘Radiology Scheme’), Mr Noud gave evidence that the Explanatory Notes set out an explanation of clause 46. When the adequacy of the explanation of the Radiology Scheme was considered in the First Decision, the explanation to employees comprised some two paragraphs, but this had since been expanded to approximately two and a half pages. He referred to the considerable correspondence between Mr Wilson and the ACT regarding the Radiology Scheme some of which was annexed to his witness statement.

[16] Mr Steven Linton, Director Industrial Relations, Canberra Health Services, ACT Government, also gave evidence about the Radiology Scheme. After setting out some background and context of the Special Employment Arrangements (SEAs) and Attraction and Retention Incentives (ARins), which are used by the ACT to provide above-Agreement payments or benefits to certain employees, Mr Linton confirmed that the SEA that currently applied in terms of the Radiology Scheme was SEA 301, which was annexed to his witness statement. Mr Linton also set out the basis on which he said Drs Ashton and Berry were provided (either directly or through Mr Wilson) with information about and an explanation of the applicable Radiology Scheme.

[17] Mr Wilson provided two witness statements. The first statement annexed a number of documents primarily comprising correspondence between Mr Wilson and the ACT regarding the bargaining process and the Radiology Scheme. The second statement set out aspects of his instructions from those he represented in response to emails from Mr Linton and Mr Noud regarding the applicable SEAs and ARins.

Issues for consideration

[18] The Agreement, if approved, will cover over 1,100 employees in medical practitioner classifications as listed in the Agreement, who are employed by the ACT or Calvary.

[19] The approval of the Agreement is supported by all parties with the exception of the two employees Mr Wilson represents. ASMOF, in confirming its support for the approval of the Agreement, noted that the protracted approval process had resulted in disputation and hardship for the employees who will be covered by the Agreement and this will continue if it is not approved.

[20] A number of the objections to the approval of the Agreement agitated by Mr Wilson and dealt with in the First Decision are made again now. The current objections can be summarised as follows:

a. The Agreement is not a single-enterprise employer agreement and is unable to be approved as such, because the ACT and Calvary are not engaged in a common enterprise (no common enterprise);

b. In contravention of s180(5) and (6) the employer did not take all reasonable steps to ensure that the terms of the Agreement and the effect of those terms were explained to them in an appropriate manner (insufficient explanation), and

c. The obligations of s188(1) were not met (no genuine agreement).

[21] I now turn to deal with each of the objections.

No Common Enterprise

[22] The First Decision found that the two employers are engaged in a common enterprise and for the purposes of s172(5) they are single interest employers.

[23] Mr Wilson submitted that this finding in the First Decision was wrong, and made submissions in substantially the same terms (albeit in more detail) to contend that the two employers were not engaged in a common enterprise.

[24] For the reasons set out in the First Decision and which are not repeated here, I am satisfied and find that the two employers are single interest employers engaged in a common enterprise.

[25] I note briefly Mr Wilson’s reliance on the decision of Munro J in Qantas Airways Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Qantas) 3. In contrast, this is not a case where the ACT has simply sought to outsource part of its functions. Rather, the Network Agreement demonstrates what the ACT described as a fully integrated operational relationship between the ACT and Calvary that can be plainly distinguished from the circumstances in Qantas.

[26] The existence of the common enterprise is also evidenced by the fact that there have been many previous enterprise agreements jointly covering the relevant employees of the ACT and Calvary in which the ACT and Calvary have been considered single interest employers.

Insufficient Explanation

[27] Mr Wilson contended that there was insufficient explanation in respect of the Agreement in two respects. First, it was generally not sufficiently explained, and second, there was insufficient explanation to Drs Berry and Ashton about the provisions of the ‘Radiology Scheme’ in the Agreement.

Generally insufficient explanation

[28] Mr Wilson’s submissions in regarding the sufficiency of the explanation (or lack thereof) provided to employees are as follows:

“40. In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (‘One Key Workforce’), the Federal Court considered the requirements needed to satisfy s 180(5), at [112]:  

whether all reasonable steps were taken to ensure that the effect of the terms of the Agreement was explained in an appropriate manner is a question of substance, not form…a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach a state of satisfaction” 
…. 
In order to reach the requisite state of satisfaction that s 180(5) has been complied with, the Commission [is] required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and the needs of the employees and the nature of the changes made by the Agreement. 


41. The purpose of s 180(5) is to ‘enable the relevant employees to cast any informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement’ (One Key Workforce at [115]).  

42. In Construction, Forestry, maritime, Mining and Energy Union v Ditchfield Mining Services Pty Ltd [2019] FWCFB 4022, the Full Bench of the Fair Work Commission reiterated the general propositions outlined in One Key Workforce and considered the following criteria for determining whether s 180(5) has been satisfied at [63]-[68]: 

First, whether an employer has complied with the obligation in s 180(5) depends on the circumstances of the case. 

Secondly, the focus of the enquiry whether an employer has complied with s 180(5) is first on the steps taken to comply, and then to consider whether: 

•  The steps taken were reasonable in the circumstances; and 

•  These were all the reasonable steps that should have been taken in the circumstances. 

Thirdly, the object of the reasonable steps that are to be taken is to ensure that the terms of the agreement, and their effect, are explained to relevant employees in a manner that considers their particular circumstances and needs. This requires attention to the content of the explanation given. 

Fourthly, an employer does not fall short of complying with the obligation of s 180(5) of the Act merely because an employee does not understand the explanation provided.  

43. The demographics of the employees covered by the Agreement were declared in the Form 17 to be:  

a. Female: 567 

b. Non-English-Speaking Background: 314  

c. Aboriginal or Torres Strait Islander: 9 

d. Disabled: 15 

e. Part-time: 272 

f. Casual: 35 

g. Under 21 years of age: 0 

h. Over 45 years of age: 314 

44. 1,149 employees were eligible to vote. 314 (or 27%) of these were from non-English speaking backgrounds. Applying One Key Workforce, it is not sufficient for the Applicant to merely state that they took reasonable steps to ensure the explanation was provided in an appropriate manner. The Applicant must demonstrate what steps, if any, they took explain the Agreement to employees from culturally and linguistically diverse backgrounds. The same is to be said in relation to the other types of employee referred to at paragraph 43 above. 

45. The Applicant declares in Form 17 that the Explanatory Notes were written in ‘non-technical, plain English’. This does not fulfil the requirements identified and described in sections 180(5) and (6). The Applicant has not identified any other steps they took to ensure the terms of the agreement were explained to employees from non-English speaking backgrounds.  

46. Moreover, the Explanatory Notes do not explain the terms and the effect thereof of the majority of provisions in the agreement at all. 

47. Nor do the Explanatory Notes explain the effect of an enterprise agreement with reference to ss 50 – 54 of the Act. 

48. Only 333 employees registered a vote, or 28.98% of those eligible. The low level of voting raises a serious question as to whether the terms of the agreement were explained in an appropriate manner taking into account the particular circumstances and needs of the relevant employees. 

49. As to section 180(6)(c), the Agreement covers all ‘junior doctors’ employed by the Applicant and the Territory. Such persons were not represented by ASMOF and it is unclear as to how many of them appointed AMA – ACT as their bargaining representative. No explanation has been given by the Applicant as to how the needs of such persons for whom the AMA – ACT was not their bargaining representative were taken into account in any explanation provided or purportedly provided to such persons.”

[29] In reply, the ACT submitted that the applicable principles as to the operation of s.180(5) were distilled by a Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Limited 4 (Ditchfield), which are set out in Mr Wilson’s submissions above.

[30] In addition, the ACT submitted two further relevant propositions can be added:

(a) first, a requirement to take all reasonable steps does not extend to all steps that are reasonably open in a literal or theoretical sense. Put another way, whether a step is “reasonable” is to be assessed in full context. That context logically must include consideration of the other steps being taken by the employer. A particular step may be reasonable considered in isolation. But it may be superfluous (and hence not reasonable to require it) where the employer has taken other steps which achieve s 180(5)’s object by other means. Otherwise, s 180(5) would place too burdensome an onus on employers: it would set the bar for compliance at the limits of the imagination of objectors and the Commission, and risk equating ‘all reasonable steps’ with ‘all conceivable steps’.

(b) second, s 180(5) calls for a practical approach: it does not compel an employer to provide a detailed explanation of each and every term of an agreement. Nor does it compel an employer to conduct a clause-by-clause comparison of the proposed Agreement and its predecessor. An employer’s explanation of the terms and effect of those terms to employees may not be perfect, but still satisfy the requirement in section 180(5). Employers cannot be expected to be totally objective and knowledgeable, and mistakes and omissions will occur.

[31] Mr Pollock argued that Mr Wilson’s submission in relation to this objection failed for two reasons. First, the Agreement covers doctors. Whether or not from a non-English speaking background, each is required to satisfy English language requirements to be registered as a medical practitioner. Each has, by virtue of their occupation, undertaken extensive tertiary and postgraduate study. The ACT was plainly not required to provide a different explanation for that cohort to satisfy s.180(5) in those circumstances. Second, a cursory view of the Explanatory Materials shows them to be in non-technical plain English, and readily understandable to the employees which the characteristics of those to be covered by the Agreement applied.

[32] In terms of Mr Wilson’s contention that some different explanation was reasonably required to be given to the female cohort in order to meet the requirements of s.180(5), the ACT submitted that this submission was unexplained by Mr Wilson, and was inexplicable.

[33] Quite frankly, to seriously contend that any of these medical practitioners required a different explanation because they were female, Aboriginal, employed on a part time basis, or any other demographic, is inexplicable and is rejected. There is simply no reason as to why a female doctor warrants a different explanation to a male doctor, nor is there any reason why a part time doctor needs a different explanation to a full-time doctor. The same can be said for each of the different demographic groups, with the possible exception of those with a disability (and depending on what the disability was).

[34] In terms of Mr Wilson’s submission around the low level of voting, Mr Pollock pointed to the evidence given by Mr Noud that the response rate was on par with the two previous agreements, and also contended that it did not follow that a 30% response rate meant the Agreement was not genuinely made.

[35] I am satisfied that the voting rate was not materially different to previous agreements. In any event, I accept the submission made by ACT that the Commission could not safely draw any inferences about the ACT’s compliance with s.180(5) from the number of employees who voted.

[36] Overall, I am not satisfied that the level of voting raises any question, let alone a serious question, as to whether the terms of the agreement were explained in an appropriate manner taking into account the particular circumstances and needs of the relevant employees for the reasons outlined above.

[37] In terms of paragraph 49 of Mr Wilson’s submissions set out above, ASMOF contended that Mr Wilson’s submission was wrong because its rules entitled it enrol members as Medical Officers, and it did have members employed by ACT who are so classified. ASMOF also submitted that at all material times it was a bargaining representative for all classifications of employee covered by the Agreement. I accept the submissions made by ASMOF in this regard, which were not challenged by Mr Wilson during the hearing.

[38] In relation to Mr Wilson’s submission that the ACT was required to explain the effect of an enterprise agreement with reference to ss.50-54 of the Act, I agree with the submissions made by ACT that what is required of s.180(5) is an explanation of the terms of the agreement and their effect. It does not require an explanation of how an enterprise agreement is given statutory force.

[39] Mr Wilson’s reliance on the decision in One Key does not, in my view, support his arguments in relation to the sufficiency of the explanation provided to employees. The factual circumstances are distinguishable, particularly because in the present application there is considerable evidence before the Commission as to the explanation given to employees and the process by which this was done.

[40] Mr Noud in his evidence clearly sets out the steps taken to explain the terms and their effects to employees. The content of the explanation, as set out in the documents provided to employees and annexed to Mr Noud’s witness statement, is in my view reasonable having regard to all the circumstances.

[41] Having considered all of Mr Wilson’s arguments in relation to this objection, I am satisfied, based on the evidence before the Commission, that the explanation to employees as to the terms and the effect of the major provisions of the Agreement was sufficient.

Insufficient explanation of the Radiology Scheme (clause 46 of the Agreement)

[42] It was this issue in the First Decision, that being the insufficient explanation of clause 46 (Rights of Private Practice) of the Agreement dealing with the Radiology Scheme, that was the basis for the Agreement not being approved.

[43] In summary, Mr Wilson again contended that the ACT did not provide a proper explanation of the Radiology Scheme in response to his request for same. He also contended that a proper explanation of the terms of the Radiology Scheme required the ACT to give what he described as “a truthful and accurate explanation” of “the situation”, suggesting this had not been done.

[44] In response, the ACT submitted that it was useful to understand what the Radiology Scheme is, that being a means to deliver in a structured way over-agreement payments to medical practitioners. The Schemes can comprise SEAs and ARins. The ACT contended that the Agreement does not incorporate the SEAs or ARins that comprise the Radiology Scheme but rather prescribes certain facilitative terms governing how the Radiology Scheme in place at any given time is implemented.

[45] The ACT acknowledged that in the previous proceedings, the explanation provided to employees simply noted that the Agreement incorporated the Radiology Scheme but did not give details about the effect of these terms. By comparison, the Explanatory Materials now provided the following explanation in relation to clause 46:

“Rights of Private Practice (Clause 46)

The responsibility of both the employer and all specialists and senior specialists to ensure that every effort is made to promptly bill private patients has been made more explicit, and the obligation of the employer to provide appropriate support for private practice billing, including the recovery of outstanding accounts, has been clarified.

A new term – ‘Scheme Pay’ has been introduced and defined to provide clarity as to what allowances are taken into account in the calculation of private practice payments. Scheme pay includes base pay plus allowances paid under Clause 42 (On-call and Recall Arrangements) and 58 (Management Allowance).

The Rights of Private Practice arrangements have been amended to include the specific and consolidated details of the Pathology Scheme, the Radiology Scheme and the Radiation Oncology Scheme, which are currently set out in group or individual ARINs outside of the Agreement.

Having the Schemes set out in the Agreement will provide a greater degree of transparency, clarity and consistency of the entitlements available to all staff, as well as removing the existing requirement for annual review applying to external arrangements.

A provision has been included to provide a mechanism for addressing any inadvertent disadvantage arising from the incorporation of the schemes in the EA (46.11-46.13). This includes circumstances where an employee is financially disadvantaged in respect to their private practice entitlements by moving to one of the schemes in sub-clauses 46.5.4 to 46.10.

Pathology Scheme (Clause 46.5.4)

…

Radiology Scheme (Clause 46.5.5)

The ‘Radiology Scheme’ as referenced in Clause 47.4(e) of the current EA has been through a number of iterations since its introduction, including through the use of SEAs and ARINs, with a number of enhancements introduced over time. These have seen both the method of calculation simplified, and the benefits increased. Current arrangements are provided for in the group ARIn/SEA 301 (the Radiology Scheme as it currently stands) and individual ARIns giving effect to that group ARIn/SEA 301.

As there are differences in the practical application of the current arrangements for individuals, every radiologist currently accessing the ‘Radiology Scheme’, has had the details of their specific entitlements under the existing arrangements and the proposed arrangements provided to them in separate correspondence. This includes options for preserving positions for existing superannuation entitlements.

The consolidated Radiology Scheme:

• specifies the levels of entitlement as specific percentages of base salary, as opposed to set dollar amounts, allowing for ease of indexation;

• retains the existing level of contribution to the private practice fund; and

• introduces a safeguard against variation by requiring the agreement of at least 50% of radiologists before any change can be made to the Radiology Scheme.

The consolidation and incorporation of these arrangements into the Agreement provides both transparency and clarity around the Radiology Scheme.

Specialist Radiation Oncology Scheme (Clause 46.5.6)

…”

[46] I am satisfied that the ACT’s explanation of the Radiology Scheme met the requirements of s.180(5). Specifically, I am satisfied that the ACT explained to employees how the Radiology Scheme currently applies and the effect of the relevant terms of the Agreement (if approved).

[47] The Explanatory Materials set out above in my view constitutes an adequate and compliant explanation of the terms of clause 46 of the Agreement, having clearly set out the source of the current Radiology Scheme (ie SEA 301), details of the consolidated Radiology Scheme and how payments are treated for superannuation purposes, etc. I also note the evidence of Mr Linton that employees participating in the Radiology Scheme had been sent a tailored explanation of their entitlements in this regard.

[48] The ACT also points to the fact that it provided ‘extensive further explanations’ to Mr Wilson concerning his client’s entitlements under the Radiology Scheme in response to an 87 paragraph letter sent by Mr Wilson on 4 August 2020.

[49] Finally, I also note that in the course of proceedings dealing with a bargaining dispute filed by ASMOF regarding the negotiation of the Agreement after the First Decision was issued, Mr Wilson was given the opportunity to comment on the content of the Explanatory Materials but elected not to do so.

Other issues arising regarding s180(5)

[50] Mr Wilson also argued that a failure by the ACT to explain the Medical Practitioners Award 2020 (the Award) to relevant employees meant the Commission could not be satisfied that s.180(5) had been complied with.

[51] The ACT, in reply, argued that s.180(5) does not require a comparative explanation between an enterprise agreement on the one hand and an underpinning modern award on the other which by operation of s.57 of the Act does not apply to the relevant employees at that time. In support of this argument the ACT relied on the decision in Ditchfield where the Full Bench said:

“[71] Compliance with s.180(5) will not always require an employer to identify detriments in an agreement vis-à-vis the reference instrument, or for the employer to provide an analysis between the agreement and the relevant reference instrument, particularly in circumstances where an existing enterprise agreement, not a reference instrument, applies to the employees in their employment with the employer. The question of compliance with s.180(5) is to be judged against the circumstances that pertain at the time at which compliance was required. Section 57 of the Act makes clear that a modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment. In the present case, when the explanations were given, no enterprise agreement applied to the employees and the Award did apply. An explanation of the effect of the terms of the Agreement vis-à-vis the Award was therefore capable of being relevant to the evaluative assessment of whether all reasonable steps were taken to explain the terms of the Agreement and the effect of those terms.” 5

[52] Applying the reasoning in Ditchfield, I am satisfied that in this case the ACT was not required to explain the Award to the relevant employees given there was an existing enterprise agreement applied to them. Accordingly, this objection is rejected.

Satisfaction as to s.180(5)

[53] Overall, I am satisfied that the ACT took all reasonable steps to explain the terms of the Agreement and their effect, taking into account the particular circumstances and the needs of the relevant employees.

[54] I respectfully agree with the following set out in the First Decision:

“[75] In assessing whether there has been a sufficient explanation of the terms of the Agreement and the effect of those terms these matters of context are to be taken together with the size and professional seniority of the workplace, as well as that this is a replacement of an earlier agreement. It would be reasonable in such a context for the explanation which is given to focus on the things of important difference. In the same way that a medical specialist may not require underpinning first-principles training to be given afresh to them each time they are given training about a new care treatment or drug it may be expected that experienced, well-educated public sector employees do not require a first-principles explanation about legislation or employment advancement protocols they have been working under for some time.” 6

[55] Finally, I note that the union (ASMOF) involved in representing the majority of employees takes no issue with the content of the explanation given to employees.

No Genuine Agreement

[56] Mr Wilson made the following submissions in arguing the Agreement has not been genuinely agreed to by the employees:

“51 Section 188(1) of the FWA provides an enterprise agreement will have 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: 

b. Subsections 180(2), (3) and (5) (which deal with pre-approval steps); 

c. 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  

d. 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 

e. There are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.  

52. In One Key Workforce, the Federal Court considered that the phrase “genuinely” implies more than “mere agreement” and requires consent “of a higher quality” at [141].

53. Section 188(1)(c) is to be given a broad interpretation, encompassing ‘any circumstance which could logically bear on the question of whether the agreement of the relevant employees was genuine’ One Key Workforce at [142].

54. Notably, where an agreement covers a range of occupations or classes of employees, explanation of the terms of agreement alone may be insufficient to demonstrate genuine consent One Key Workforce [155]. This is because the ‘employees who voted may be indifferent to the impact of an agreement on other employees or prospective employees in occupational classifications outside their own training or experience’ at [155].

55. As was outlined by Buchanan J (Besanko and Barker JJ agreeing) in John Holland, employees will presumably act out of self-interest in approving an enterprise agreement at [33]. As a result, it may not be fair for an enterprise agreement voted upon by a small number of employees ‘to cover a wide range of other classifications and jobs in which they may have no conceivable interest’ at [83].

56. John Holland was followed by the Federal Court in One Key Workforce who reiterated at [156] that:  

The legislative objective of achieving “fairness through an emphasis on enterprise-level collective bargaining” could be undermined if the employees who vote on the agreement have no basis for appreciating its nature and terms. What is required by s 186(a)(a) is genuine agreement. To construe that requirement as mandating an informed and genuine understanding of what is being approved is consistent with the text of the provision (as defined) and accords with its underlying purpose. 

57. The Agreement covers all medical practitioners employed by the ACT Government and Calvary. This is a significantly wide array of employees, ranging from registrars all the way to specialists, and encompassing incredibly varied fields and specialisations. Of note, the Agreement encompasses the Anaesthetists Extra Surgery Scheme, the Pathology Scheme, the Radiology Scheme, and the Specialist Radiation Oncology Scheme. The employees subject to these schemes cover a diverse range of expertise and classification and invariably have differing interests. 

58. As outlined above, only 28% of eligible employees voted, with only 302, or 26% of eligible voters,voting to approve the Agreement. This raises questions as to whether 26% of eligible voters constitutes genuine agreement, noting the wide range of employees and interests covered by the Agreement. 

59. It also raises a question, given that Dr West’s email of 30 September 2020 was sent to undisclosed recipients, as to whether in fact, section 180(2) was complied with.”

[57] Most of these submissions have been dealt with earlier in this decision and are not repeated again here.

[58] In relation to Mr Wilson’s ‘question’ about whether the ACT complied with s.180(2) because there is no list of employees before the Commission to which Dr West’s email was sent, I accept the evidence of Mr Noud that the mailing list comprised each of the employees to be covered by the Agreement. There was no evidence brought by Mr Wilson to support a finding that the list was incomplete.

Conclusion and final matters

[59] In summary, having considered all of the matters raised by Mr Wilson and in light of the evidence before the Commission, 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. In particular, I am satisfied and find that the ACT and Calvary:

a) are a single-enterprise employer and engaged in a common enterprise,
b) have taken all reasonable steps to ensure the terms of the Agreement and the effect of those terms were explained to them in an appropriate manner; and
c) the agreement has been genuinely agreed to by the employees covered by the Agreement.

[60] I note that clauses 82, 85 and 153 of the Agreement, relating to personal leave, annual leave and voluntary redundancy, are likely to be inconsistent with the NES. However, noting clause 5.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[61] ASMOF, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[62] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 January 2021. The nominal expiry date of the Agreement is 31 October 2021.

DEPUTY PRESIDENT

 1   [2020] FWC 2745.

 2   Kaur v Hartley Lifecare Incorp[2020] FWCFB 6434 at [21].

 3   Print S5768 (8 May 2000).

 4   [2019] FWCFB 4022.

 5 Ibid at [71].

 6   [2020] FWC 2745 at [75].

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