Australian Comfort Group Pty Ltd T/A Sleepmaker and Dunlop Foams

[2021] FWCA 1378

[2021] FWCA 1378

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Comfort Group Pty Ltd T/A Sleepmaker and Dunlop Foams
(AG2020/4017)

AUSTRALIAN COMFORT GROUP (BRISBANE) ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER SIMPSON	BRISBANE, 15 MARCH 2021

Application for approval of the Australian Comfort Group (Brisbane) Enterprise Agreement 2020.

INTRODUCTION

[1] An application has been made for approval of an enterprise agreement known as the Australian Comfort Group (Brisbane) Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Comfort Group Pty Ltd T/A Sleepmaker and Dunlop Foams (the Applicant). The Agreement is a single enterprise agreement.

[2] The United Workers Union (UWU), being a bargaining representative for the Agreement, filed a Form F18 in this matter, advising that it supports approval of the Agreement by the Commission, and providing notice under s.183 of the Act that it wants the Agreement to cover it.

[3] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), being a bargaining representative for the Agreement, also filed a Form F18 in this matter, advising that it supports approval of the Agreement by the Commission, and providing notice under s.183 of the Act that it wants the Agreement to cover it. However, the CFMMEU raised concerns relating to whether employees genuinely agreed to the Agreement.

[4] On 25 December 2020, correspondence was received from the CFMMEU requesting to be heard in this matter.

[5] The matter was originally allocated to Commissioner Lee. On 22 January 2021, Commissioner Lee’s Chambers sent correspondence to the Applicant and copied to the bargaining representatives, raising concerns in relation to the Agreement including in relation to explanation of the Agreement to the employees.

[6] The Applicant’s and CFMMEU’s responses to these matters including the offering of undertakings to address issues raised are relevantly outlined below.

[7] The matter was subsequently allocated to my Chambers. I listed the matter for a Directions Hearing by telephone on 2 March 2021, further to which directions were issued for filing of any further statements and supporting evidence by the Applicant.

LEGISLATION AND ONE KEY DECISION

[8] Section 186(2)(a) provides as follows:

“(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement.”

[9] Section 188(a)(i) provides as follows:

“…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).”

[10] Section 180(5) provides as follow:

“(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.”

The Hearing

[11] The matter was heard on 11 March 2021. The Applicant was represented by Ms Christine Armstrong , Manager People and Culture based in Perth and the CFMMEU was represented by Mr Paul Dunbar. The UWU advised it did not wish to participate in the Hearing.

Submissions and evidence

[12] In response to the application and the Applicant’s responses to the concerns raised by Commissioner Lee’s Chambers, the CFMMEU filed a witness statement of Mr Arturo Menon, Southern Co-Ordinator of the Queensland/Northern Territory Divisional Branch of the Construction & General Division of the CFMMEU.

[13] In his statement, Mr Menon provided that he is the CFMMEU official responsible for the Union’s organising, recruitment, workplace health and safety and enterprise bargaining negotiations at the Applicant’s facility located in Carole Park, QLD. Relevantly, he stated:

“I wrote to Christine Armstrong on Friday the 11th December 2021 requesting clarity around when the “agreement” and the timing of back pay regarding the replacement EBA…

I received an email from Christine Armstrong that day “thanking” me for my email that went on to say that back pay was contingent on the agreement was supported by a majority of employees and the unions signing the F18 in support of the new EBA…

I contacted Christine Armstrong on the 15^th of December 2021 and raised a number of concerns I had relating to statements made by the Comfort Group in the F17 form…

I subsequently met with work groups during their meal breaks and confirmed that multiple employees confirmed that statements made by the Christine Armstrong in the F17 where (sic) incorrect. I contacted Tina Armstrong on the 22 December 2020 and notified her of this.

I have specific concern and have been instructed that employees did not have access to a copy of the proposed replacement EBA for a 7-day period prior to the vote taking place. I have been instructed by employees that they did not see a copy of the Agreement or Award in meal rooms or received an email copy of one either.

I have been instructed by employees whose first language is not English and have been told by them that they were not aware an interpreter was available to them if they wished to use an interpreting service. A large proportion of the workforce do not have English as their first Language.

I have been instructed by a number of employees that they voted ‘yes’ because they thought they were voting to take protected industrial action as the Union had a protected action ballot running concurrently.”

[14] Mr Menon’s statement was admitted into evidence 1 and he also gave oral evidence at the hearing.

[15] It is worth setting out what, on behalf of the Applicant, Ms Armstrong declared in the F17 Statutory Declaration filed with the application for approval of the Agreement.

[16] Relevantly, at question 6, Ms Armstrong provided that 47 employees are from non-English-speaking backgrounds, one is a casual employee, and four are under 21 years of age.

[17] At question 8, Ms Armstrong provided that the modern award that covers the employer and any of the employees covered by the agreement is the Manufacturing and Associated Industries Award 2020.

[18] The Form F17 also provided that of the 135 employees employed at the time of the vote, 115 employees cast a valid vote, and 73 of those employees voted to approve the Agreement.

[19] Regarding explanation of the Agreement’s terms, Ms Armstrong provided:

“At the beginning of the access period, all employees were emailed a copy of the proposed agreement and the applicable modern award being the Manufacturing & Associated Industries and Occupations Award 2010. The email also communicated to employees that meetings would be held with all employees to explain the effect of the terms in the proposed agreement on the employees covered by the agreement.

The site manager held a series of meetings with all employees on the 9th & 10th December 2020. During the meetings it was explained that the terms and conditions contained in the proposed enterprise agreement document if voted in by the employee group and approved by the Fair Work Commission would apply to the employees in relation to their employment terms and conditions. The content of the proposed agreement would apply in place of the relevant terms contained in the Manufacturing & Associated & Industries & Occupations award 2020 which is the modern award that would otherwise apply to them. As this award is also incorporated into the agreement then the terms in the award would apply where the proposed agreement content did not expressly deal with a particular terms in the award.

Also explained was the list of clauses that were identified as more beneficial and those which were identified as less beneficial than in any respect when compared to the Award or National Employment Standards. It was explained to employees that the proposed agreement was intended to ensure that the employees would be better off overall in regards to their employment terms and conditions than what they would otherwise be compared to the applicable modern award. The agreement would be sent to the Fair Work Commission and would need to pass the BOOT test in order to be approved.”

[20] Regarding steps taken to take into account the particular circumstances and needs of groups of employees, including employees of non-English speaking backgrounds and employees under 21 years of age, Ms Armstrong provided:

“An interpreter was made available for employees who indicated that they wished for this service to be provided

Communication was provided in writing to all employees through email to provide opportunity for a third party consultation if required. This was particularly aimed at all employees who’s circumstances need to be taken into account e.g. young employees who may want to discuss the process with their parents or a third party, employees from non-english (sic) speaking background who may want to have assistance outside of the company provided assistance and employee who did not have a bargaining representative to seek third part assistance if required”.

[21] On 29 January 2021, the Applicant provided a written response and supporting documents in response to the matters raised by Commissioner Lee’s Chambers. As to explanation of the terms of the Agreement, the Applicant provided as follows:

“All employees covered by the agreement were notified by email on the 4th December 2020 that assistance to understand the contents of the documents and upcoming meetings in relation to the Agreement was available for them if they required. A copy of the emails is attached.

The meetings were held by the National Operations Manager.

A script was used. Included in these discussions was a further offer of assistance if required. A copy of the script outlining the points covered in the discussion is attached.”

[22] The script as attached to the Applicant’s response provided:

“Employee Communication- ACG Brisbane Enterprise Agreement 2020

Explanation of the terms of the Enterprise Agreement and the effect of the terms on employees covered by the agreement.

We are conducting this meeting as part of the approval process for the proposed Enterprise Agreement. This meeting is to provide employees covered by the agreement with an explanation of the terms of the Enterprise Agreement and the effect of the terms on employees covered by the agreement. You can take notes if you would like and there will be time at the end of the meeting to ask questions. You can also talk to HR, your supervisor or union delegate.

Firstly, an explanation about enterprise bargaining

Enterprise Bargaining is the process through which a group of employees and an employer negotiate the scope of the employment relationship.

An enterprise agreement (EA) is the ultimate goal of the enterprise bargaining process. Typically, the agreement establishes wages, hours, promotions, benefits, and other employment terms as well as procedures for handling disputes arising under it. Generally, the EA cannot address every workplace issue that might arise in the future therefore awards, past practices, external legislation and informal agreements are as important to the EA as the written instrument itself.

Enterprise bargaining allows workers and employers to reach voluntary agreement on a wide range of matters. Even so, it is limited to some extent by federal and state legislation. An EA cannot accomplish by contract what the law prohibits. For example, a union and an employer cannot use enterprise bargaining to deprive employees of rights they would otherwise enjoy under legislation such as the Long Service Leave Act or the National Employment Standards. Enterprise bargaining also cannot be used to waive rights or obligations that laws impose on either party. For example, an employer may not use enterprise bargaining to reduce the level of safety standards it must follow under the occupational safety and health act.

Our proposed Enterprise Agreement

The nominated bargaining representatives, United Worker Union and CFMEU, have been in discussions with the company in negotiating for the proposed EA. The company has provided its final position in regards to the log of claims. The CFMEU have communicated they are not in support of the company offer and therefore it has been determined that bargaining has reach an impasse. The company considers the offer to be a good offer and are therefore providing opportunity for employees to vote on the proposed agreement. A copy of the proposed agreement has now been sent to all employees on the 4th December 2020 via email which signifies the beginning of the 7day access period.

The National Employment Standards (NES) and the Manufacturing & Associated Industries & Occupations Award 2020 contain the minimum conditions of employment for employees covered by this EA. The EA has been negotiated in accordance with the Fair Work Act .

The terms and conditions included in the EA document are intended to apply in place of the terms and conditions in the Manufacturing & Associated Industries & Occupations Award 2020. Where the EA is silent on a matter then the Manufacturing & Associated Industries & Occupations Award 2020, past practices and external legislation will become reference points to be used in the consultation process to determine the matter.

The EA will undergo the "Better Off Over All" test (BOOT) which is completed by the Fair Work commission during the agreement approval process. The BOOT test assesses the agreement against the award and considers the terms that are more beneficial and less beneficial to employees in the agreement, compared to the terms in the relevant award to ensure that, overall, employees are better off over all under the term of the EA.

There are some changes to the current agreement for compliance reasons. These include: Update to the consultation clause to the model consultation clause consistent with the award Update to the Family and Domestic Violence Clause addition of 5 days unpaid leave

Update to the Casual Conversion clause to be consistent with the award

In reading and comparing the award and the EA it is important to understand that there are differences in some terms and conditions and these matters have been negotiated over the life of the agreement. It is also important to understand:

• the EA is the overriding document

• the differences as a collective are not intended to disadvantage employee's

• the proposed EA will need to pass the Better Off Over All Test to be approved by the Fair Work Commission.

• the commission will consult the company to provide undertakings in relation to any terms they identify during the BOOT test that are considered less beneficial and may affect the outcome of the BOOT test and approval of the EA

The proposed EA is intended to ensure that the employees are be better off overall in regards to their employment terms and conditions than what they would otherwise be compared to the applicable modern award.

We have summarised the differences we have identified between the proposed EA and the award. The clauses in the EA that we have identified as better than the applicable award are:

• 16.3 Long Service Leave- The EA provides for employees to apply to cash out long service leave, there is no provision for this under the award.

• 17.1 Change roster start and finish times- The EA provides for a minimum notice period of 1 week for changes to start or finish times unless mutually agreed. There is no provision for this under the award.

• 19.5 Meal Allowance- The EA provides $15.31 for meal allowance indexed each year by the wage increase amount. The award provides $15.01 for meal allowance

• 21.5 Personal Leave- The EA provides for the personal leave balance to be displayed on the payslip, there is no provision for this under the award.

• 13 Annual Leave- The EA provides for response to leave applications of 1 week and start and finish times to be displayed on payslips, there is no provision for these under the award

• 22.3 Compassionate Leave- The EA provides access to 5 days of personal leave accrual for the purposes of paid extended compassionate leave for travel, there is no provision for this under the award

• 25 Union Picnic Day- The EA provides for an extra day of annul leave accrual which attracts leave loading of 17.5%, there is no provision for this under the award

• 26 Uniforms- The EA provides for a significant minimum clothing allocation over and above PPE requirements, there is no provision for this under the award.

• 30.3 Forklift Allowance- The EA provides $34.27 pw forklift allowance, there is no provision under the award for forklift allowance

• 34.5 Redundancy Severance- The EA provides one week' s extra severance provision for all employees employed up to 9 years and equal provisions for employees employed for 10 years or more when compared to the award and the NES.

• 38 Union Matters -The EA provides union delegates with concessions to undertake particular union related business, provides leave to attend union related training and paid time for meeting for employees, the award does not contain these provisions

• 43 Weekly Wages- The EA rates of pay and classification structure provides higher rates for every employee with the inclusion of applicable allowances in comparison to applicable award rates and allowances for each individual.

The clauses in the EA that we have identified are different or less than the applicable award are:

• 19.4 First Aid Allowance- The EA provides first aid allowance of $17.16 indexed each year by the wage increase amount. The award provides $17.46 first aid allowance.

We believe that the proposed EA provides many significantly more advantages for employees that are not provided by the award and therefore employees are better off overall under the proposed EA.

Does anyone have any questions now about what I have just been through?

If you think of a question later, or you require any assistance to understand what we have talked about today please speak to your supervisor or union delegate.”

[23] In accordance with directions from the Commission, the Applicant filed further evidence in support of its application on 8 March 2021. Ms Christine Armstrong, provided a witness statement 2 stating that she had been employed by the Company for approximately 10 years.

[24] Ms Armstrong said The Dunlop Foams Brisbane Enterprise Agreement 2017-2020 applies to the Company and employees at the Carole Park site (the Existing Agreement) and the nominal expiry date of the Existing Agreement is 30 June 2020.

[25] Ms Armstrong said bargaining for a new agreement commenced in August 2020 and in her capacity as Manager People and Culture, she was responsible for coordinating and attending bargaining meetings, negotiating the terms of the new agreement with bargaining representatives and updating employees about the progress of bargaining.

[26] Ms Armstrong said throughout the course of the bargaining process, she provided regular updates to employees about the progress of bargaining via email and also instructed Mr Dhunsukh Patel (Danny Patel), the Company's National Operations Manager and Site Operations Manager for Queensland, to read the updates out to employees and distribute hard copies of the updates to employees at employee meetings as required.

[27] Ms Armstrong said the final bargaining meeting between bargaining representatives and the Company was held on 11 November 2020 and following that meeting it was clear an impasse had been reached and the CFMMEU would not support the agreement proposed by the Company. The CFMMEU subsequently applied to the Fair Work Commission for a Protected Action Ballot Order, which was granted on 30 November 2020.

[28] Ms Armstrong said on 1 December 2020, she informed employees by email that bargaining had reached an impasse and the Company had prepared a proposed agreement which it intended to put to a vote of employees. Ms Armstrong said she also informed employees in the email on 1 December 2020 that the process to vote on the proposed agreement would commence on 4 December 2020 and she attached a summary of the key terms of the proposed agreement which she provided as part of her evidence.

[29] Ms Armstrong said on 3 December 2020, the Australian Electoral Commission emailed her a Protected Action Ballot Notice to Employees to circulate to employees, and on the same day she confirmed by return email to the Australian Electoral Commission that the notice had been distributed to all employees to be covered by the proposed enterprise agreement and copies of the Protected Action Ballot Notice were posted to notice boards at the work site.

[30] Ms Armstrong said on 4 December 2020, she sent an email to all employees to be covered by the proposed enterprise agreement informing them that the seven day access period had commenced and a vote on the proposed agreement would occur on 14 December 2020. Ms Armstrong said she further informed employees via this email that additional assistance may be requested by employees, including for the Company to provide an interpreter. Ms Armstrong said she also attached copies of the Manufacturing and Associated Industries and Occupations Award 2020 (the Award) and the proposed enterprise agreement to the email and informed employees that copies of each would be available in the canteens and on the notice boards. The email was provided with her evidence.

[31] Ms Armstrong said on 7 December 2020, Matthew Cossey, Manufacturing Manager, informed her that copies of the Award and the proposed enterprise agreement had been placed in the lunchrooms. A copy of the email from Matthew Cossey was provided with her evidence.

[32] Ms Armstrong said on 8 December 2020, she emailed ballots and a roll of voters to Carolyn Taylor, Site Administration Assistant, and the ballots clearly stated "EA Voting Slip" and provide an option to vote "yes" or "no". A copy of the ballot was provided.

[33] Ms Armstrong said she also instructed Ms Taylor that the roll of voters needed to be completed in respect of each voter, to prepare the ballots for the employee vote on 14 December 2020 and to ensure that union representatives and delegates were present in the room at all times voting takes place.

[34] Ms Armstrong said she prepared a script for Mr Danny Patel to read out to employees explaining, amongst other things, the content of the proposed enterprise agreement and the voting arrangements in relation to that agreement, and said she was informed and believed that on 9th and 10th December 2020, Mr Patel read a copy of the script she had prepared at meetings with employees who would be covered by the proposed enterprise agreement. A copy of the script was provided.

[35] Ms Armstrong said on 14 December 2020, the vote for the proposed enterprise agreement was conducted and a majority of employees voted in favour of approving the proposed agreement. Ms Armstrong said that during the access period for the proposed enterprise agreement, she was not contacted by any employee in relation to the proposed enterprise agreement, and she was not advised by any employee during that access period or subsequently that they did not have access to the proposed enterprise agreement or the Award, that they required an interpreter or that they misunderstood what they were voting for on 14 December 2020. Ms Armstrong said that she has also not been advised that any employee raised any issues of this nature with site management or supervisors.

[36] Ms Armstrong said on 15 and 16 December 2020, she received and sent correspondence with Arturo Menon of the CFMMEU which was referred to in the evidence of Mr Menon.

[37] Mr Dhunsukh Patel provided a witness statement that was admitted into evidence. 3 Mr Patel is employed by the Applicant as the National Operations Manager and the Queensland Site Manager and has been employed by the Company for approximately 26 years and has worked in a range of positions during his career with the Company. Mr Patel said in his capacity as Queensland Site Manager, he was involved in all bargaining meetings.

[38] Mr Patel said throughout the course of the bargaining process, Ms Armstrong, provided regular bargaining updates to employees via email. He said within 24 hours of each bargaining update issued by Ms Armstrong, he would arrange for meetings to be held in groups of 20 or 30 employees in which he read the email update aloud and handed out hard copies of those updates to employees. Following each update meeting, he said he also reminded employees to speak to their supervisors, union delegates or himself if they did not understand anything in relation to the bargaining update.

[39] Mr Patel said he is informed and believed that employees were also given less formal bargaining updates from time to time by their Team Leaders at weekly employee meetings known as 'Toolbox Meetings'.

[40] Mr Patel said at meetings with employees on 2 and 3 December 2020, he read aloud, and distributed copies of the final bargaining update emailed to employees by Ms Armstrong on 1 December 2020. He said on the afternoon of the 2 December 2020, he emailed Ms Armstrong and others confirmation, among other things, that the update had been read and distributed to day shift employees and that he would cover the remaining employees later that day and on 3 December 2020. Mr Patel said he also reminded the Queensland management team to ensure that any questions employees had were directed to himself or Ms Armstrong.

[41] Mr Patel said on 4 December 2020, the access period in respect of the proposed enterprise agreement commenced, and on 7 December 2020, Ms Armstrong emailed him a script to read to employees that summarised the bargaining process and explained the terms of the proposed enterprise agreement.

[42] Mr Patel said in the week commencing 7 December 2020, he instructed Team Leaders to remind employees at their Toolbox Meetings that the employee vote on the proposed enterprise agreement was scheduled for 14 December 2020.

[43] Mr Patel said on 9 and 10 December 2020, he held meetings with all employees who would be covered by the proposed enterprise agreement. He said during those meetings, he read the script Ms Armstrong had provided to him aloud, word for word. He said he emphasised to employees that if they did not understand anything or had any questions, their supervisors, union delegates, himself or Ms Armstrong were available to answer those questions. He also said he made it clear that employees could ask questions at any stage prior to the vote on 14 December 2020.

[44] Mr Patel said that during the meetings some employees did raise questions and those questions were generally about the pay increases under the proposed enterprise agreement and about personal protective equipment to be provided by the Company. He said those questions were answered in the meetings. He said not a single employee indicated in the meetings or at any stage prior to the vote on 14 December 2020 that they did not understand the content covered in the meetings, that they needed an interpreter or that they were confused about what they were voting for. He said no employee has raised with him subsequently that they did not understand the terms of the proposed enterprise agreement, that they had not had access to an interpreter or that they had not understood that they were voting in respect of the proposed enterprise agreement.

[45] Mr Patel said on 14 December 2020, he coordinated and oversaw the employee vote on the proposed enterprise agreement, and in conjunction with supervisors, they arranged for employees to line up single file in groups of 20 to 30 employees outside the building in which the vote was conducted. He said prior to voters entering the voting room, they registered each voter's details on the roll of voters spreadsheet. He said once registered, voters were handed a ballot paper and permitted to enter the voting room. He said the ballot paper very clearly stated 'EA voting slip ' and 'yes' or 'no', and a ballot box was placed in the centre of the room. He said voters marked their ballot and placed it inside the box, and they were then directed to exit the voting room from the other side. He said the entire process was supervised by United Workers Union and Construction, Forestry, Maritime, Mining, and energy Union (CFMMEU) representatives.

[46] Mr Damian Delandre provided a witness statement that was entered into evidence. 4 Mr Delandre said he was employed by the Applicant as a fork lift driver and had been employed by the Company for approximately 27 years.

[47] He said the Company and the UWU and the CFMMEU were negotiating a new EBA during 2020 and on each occasion there was a bargaining meeting between the Company and the unions, the Queensland Site Manager, Danny Patel , would hold a meeting with employees to explain where the process was at and what had or had not been achieved.

[48] Mr Delandre said the last update was on 1 December 2020 and Mr Patel held a meeting the following day and told them that the Company had decided to put an agreement to a vote and more information would be made available soon. He said Mr Patel asked people present in the meeting whether they understood and nobody present in the meeting said they did not understand.

[49] Mr Delandre said on 4 December 2020, he received an email from Ms Armstrong, explaining the agreement would be put to a vote on 14 December 2020, and the following week, he saw copies of the proposed agreement and the Manufacturing and Associated Industries and Occupations Award 2020 (the Award) posted on notice boards and in the lunch rooms.

[50] Mr Delandre said during that week he attended a meeting lead by Mr Patel where they reminded employees the vote would take place on 14 December 2020 . He said they also talked about what the vote was all about and the content of the agreement. He said they asked if employees had any questions and some people asked general questions about how much of a percentage pay rise we were going to get. He said it was very clear to him what was going on.

[51] Mr Delandre said in the lead up to the vote, nobody mentioned to him that they did not understand the agreement or were confused about what the vote was about. He said he has worked the Company for around 27 years, so it was not the first time he had voted on an EBA. He said he knew that if he voted 'yes' it would be to approve the EBA and if he voted 'no' it would be not to approve the EBA. He said there was no suggestion the vote was related to taking industrial action.

[52] Hayley Hynd provided a witness statement that was admitted into evidence. 5 Ms Hynd said she was employed by the Australian Comfort Group Pty Ltd (the Company) as a process worker at the Carole Park site and has been employed by the Company for approximately 20 years and is a United Workers Union (UWU) delegate.

[53] Ms Hynd said the Company and the unions were negotiating a new enterprise agreement during 2020 and the Company would give employees regular updates about what was happening, and these updates were given by email and the Company would also regularly print out update sheets and distribute them on site.

[54] Ms Hynd said on 4 December 2020, she received an email from Ms Armstrong attaching a copy of the proposed agreement and the Manufacturing and Associated Industries and Occupations Award 2020 (the Award) and in the email, it was explained that the agreement would be put to a vote on 14 December 2020.

[55] Ms Hynd said in the week leading up to the vote, the Queensland Site Manager Mr Patel, led a meeting in the communications room on site and took them through everything. Ms Hynd said he set out the terms of the agreement in bullet points and explained what they meant and them a lot of information. Ms Hynd said during this week, she saw copies of the proposed agreement and the Award in the lunchroom that she uses.

[56] Ms Hynd said every employee in her team was at the meeting led by Mr Patel and nobody said they did not understand. Ms Hynd said Mr Patel made it very clear that if there was any confusion whatsoever in relation to the vote, you could ask any questions to team leaders, delegates or himself directly. Ms Hynd said she did not have a single UWU member or other employee ask her anything about the meaning of the agreement or the bargaining process.

[57] Ms Hynd said that she was clear that she was voting for the new enterprise agreement when she cast her vote on 14 December 2020.

[58] During his oral evidence Mr Menon said that some employees had spoken to him about the vote and he made a reference to a petition that had been signed by some employees but did not elaborate on that and said he did not wish to reveal the identity of those employees to the Applicant but would provide it to the Commission if the Commission wished. No other evidence besides that of Mr Menon was filed to support the claims made in his evidence. Mr Menon acknowledged that some employees told him that they had seen the email sent from Ms Armstrong to employees before the ballot. Mr Menon said he was not present at the meetings where Mr Petal explained the terms of the Agreement. Mr Menon accepted that one of the CFMMEU’s delegates was present at a meeting.

[59] Mr Menon was asked if he was present at the vote and he said he was not. Mr Menon was asked if his delegate was present and Mr Menon said he assumed he was and that his delegate told him he voted on the Agreement.

[60] Ms Armstrong was asked during her oral evidence who she got to distribute a copy of the Agreement and Award on site and she said that was done by the site leadership group and she was aware Mr Cossey did this. Ms Armstrong said she gave specific instructions for the documents to be left in the lunchrooms and that it was more than one copy. Ms Armstrong said Mr Cossey, Mr Wilson and Mr Patel confirmed this was done. Ms Armstrong said copies of these documents were sent to all employees as well, referring to her email.

[61] Ms Armstrong gave other evidence that at the beginning of the COVID-19 pandemic in February (2020) employees were asked to ensure they had email accounts and this was audited by the Applicant. Ms Armstrong said therefore checks and measures were in place for employees to have email addresses. Ms Armstrong said this system was in place in Queensland and during the negotiations employees’ communications were also sent out by email. Ms Armstrong also said new employees during on-boarding were required to have an email address. Ms Armstrong said of the 160 odd employees every employee except one had an active email address. Ms Armstrong said emails were also used for payroll and if an email is not active it will bounce back.

[62] Mr Menon was asked if he had ever been required to use an interpreter to explain information to employees of the Applicant and he said no, however he said sometimes the Union provided material in Vietnamese. Mr Menon was asked during the negotiations had he ever received a request for an interpreter from an employee and he said no. Ms Armstrong gave evidence that employees were advised by email that they could request an interpreter.

[63] Ms Armstrong said that employees were also told at the meetings that they could ask for assistance after the meeting if they wished. Ms Armstrong accepted that the script read out at the meeting was not provided in a language other than English. Ms Armstrong was asked if she was aware of any employees who spoke little or no English and she said no.

[64] Mr Patel was asked how many employees in the workplace spoke limited English and he said very few, and that he speaks to the staff freely and did not believe it was an issue. Mr Patel was asked if any employees were offered the support of an interpreter. Mr Patel said support was offered to all employees, but he could not recall if he offered the services of an interpreter. Mr Patel repeated he did not believe the ability to speak English was an issue and everyone communicates in English.

[65] Mr Patel was asked if there were any questions that came from the floor during the two meetings. He said there were questions around a couple of points like a uniform allowance or forklift allowance and it was clarified as he read the script out. Mr Patel was asked if he went through the differences from the old agreement to the new agreement and he said he read the document word for word. It was put to Mr Patel that the script did not include reference to the wage increases. Mr Patel said the wage increases were explained.

[66] Mr Patel also said in his oral evidence that copies of the Agreement and Award were put in the three lunchrooms. Mr Patel said quite a few copies were put out, and his production manager told him it had been done.

[67] Mr Delandre was asked during his oral evidence if he was aware of any employees who were illiterate and he said a couple. He was asked if any employees spoke broken English and he said there were. Mr Delandre was asked where he had lunch and he said the downstairs lunchroom. Mr Delandre confirmed he said he saw copies of the Agreement and the Award in lunchrooms. Mr Delandre repeated his evidence that Mr Patel had explained the terms of the Agreement.

[68] Mr Delandre said people asked questions mainly about their pay increase but other things like uniforms. Mr Delandre was asked about the protected action ballot and he said it was discussed in the union meetings. Mr Delandre also said that it was clear that the vote was on the agreement and he said it was clear from the meetings and if anyone was not clear they could ask. Mr Delandre said the question was asked at the end of any meetings if there was anything they did not understand to ask.

[69] Ms Hynd was not required for cross examination and her statement was entered into evidence uncontested.

[70] In closing the CFMMEU said that it still had concerns that the requirements of the Act may not have been met given literacy issues and some employees having English as a second language. Ms Armstrong submitted for the Applicant did communicate an interpreter was available and communications were made orally and in writing.

Consideration

s.180(5) and (6) – did the employer take reasonable steps in explaining the Agreement to its employees

[71] The decision of the Federal Court of Australia (Flick J) in Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd 6 considered what it means to comply with s.180(5) of the FW Act.

[72] In that decision, Flick J held that:

“[108] The response provided to the Commission in para 2.6 of the F17 Statutory Declaration was misleading to the extent that it asserted on behalf of One Key Workforce that the “terms of the Agreement and the effect of the terms were explained to the relevant employees” by means of either the 25 August 2015 email or during the “telephone conversations”.

[109] Such reasons as were provided by the Commissioner at para [9] of his reasons for decision expose jurisdictional error. Little, if any, consideration was given to what were the “steps” in fact taken by the employer or the adequacy of those steps. Such consideration as was given was more directed to the subject-matter of the information communicated rather than to the content of the information communicated or the effectiveness of the communication of that information or (for that matter) what was not communicated.

[110] Separate from that source of jurisdictional error is the further conclusion that there must in fact be compliance with s 180(5) before the power of the Commission to “approve” the agreement arises. Although the Commission must form a state of “satisfaction” for the purposes of s 188(a)(i) of the Fair Work Act as to whether an employer has “complied with” s 180(5), its statement of having reached that state of “satisfaction” cannot transform a manifestly inadequate explanation process into one which complies with s 180(5). That factual inquiry, on this alternative basis, remains a matter that this Court can examine.

[111] On this alternative basis, it is further concluded that the approval process entrusted to the Commission miscarried.”

[73] An appeal against the decision of Flick J was dismissed by the Full Federal Court of Australia (Bromberg, Katzman and O’Callaghan JJ) in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union. 7 The Full Court observed that:

“[111] The only material before the Commission on compliance with s 180(5) was contained in Ms Ind’s statutory declaration. Although the statutory declaration was silent as to the content of the explanation or, indeed, as to the substance of the communications, OKW submitted that the declaration itself was some evidence upon which the Commission could form the requisite state of satisfaction. That may be so, but it was by no means enough to enable the Commission to lawfully reach that state.

[112] It is common ground that the Commission was never told what was said to the relevant employees. It was simply told that they had been given an explanation of the terms of the Agreement and the effect of those terms. In effect, this amounted to little more than a self-serving statement that the employer had complied with its obligation under the Act. OKW contended that the fact that it made such a statement in a statutory declaration was significant.

It is not. As the CFMEU argued, 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. The recital of a conclusion on the very question the Commission was required (through an evaluative process) to determine is not, without more, a sufficient basis for the satisfaction of the statutory test. In other words, a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach a state of satisfaction. OKW submitted that if the Commission had erred in this respect, it was an error in fact finding or an error in process, which would be an error within its jurisdiction. We reject this submission. In order to reach the requisite state of satisfaction that s 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement. It is true that the Act does not expressly say that. But the question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act; it may also be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39–44 (Mason J).

[113] A consideration of the subject-matter, scope and purpose of the relevant provisions of the Fair Work Act indicates that the content of the explanation and the terms in which it was conveyed were relevant considerations to which the Commission was bound to have regard. The absence of that information meant that the Commission was not in a position to form the requisite state of satisfaction. Put differently, without knowing the content of the explanation, it was not open to the Commission to be satisfied that all reasonable steps had been taken to ensure that the terms and their effect had been explained to the employees who voted on the Agreement or that they had genuinely agreed to the Agreement.

[114] The following considerations point inexorably to that conclusion.

[115] The Commission was required to be satisfied that OKW had taken “all reasonable steps to ensure” that both the terms and the effect of the terms had been explained to the relevant employees as an element in the inquiry as to whether “genuine” agreement had been obtained from them. The agreed purpose of the obligation imposed on employers by s 180(5) is to enable the relevant employees to cast an 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.

[116] In order for the employer to comply with the obligation it must take into account the particular circumstances and needs of those employees, including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative. That is made explicit in s 180(6). How could the Commission decide whether the steps the employer had taken were “all reasonable steps” unless it knew what the employees had been told before they cast their votes? Without knowing the terms in which the explanation had been conveyed how could the Commission form an opinion on the sufficiency of the explanation, particularly having regard to the considerations mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine agreement had been reached without having evidence upon which it could answer both these questions?

[117] As there was no evidence of these matters before the Commission, it necessarily follows that the Commission purported to be satisfied that OKW’s obligations under s 180(5) had been discharged without taking those matters into account. That was a jurisdictional error because the Commission did not have authority to make the decision unless its satisfaction had been informed by them. As is often the case, there are several ways of describing the error. It could be characterised as a misconception as to what the exercise of the statutory power entails or an error “as to an important attribute of the decision to be made”: Graham at [68]. Equally it could be seen as a misunderstanding on the part of the Commission of the nature of the opinion it was required to form: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ). Had the Commissioner applied his mind to the question of what the putative explanation entailed, he would inevitably have inquired into its content and terms.”

[74] The One Key decision requires that the Commission focus its enquiry on the steps actually taken to comply s.180(5) and to consider whether:

a) the steps taken were reasonable in the circumstances; and
b) these were all the reasonable steps that should have been taken in the circumstances. 

[75] The task before the Commission “requires attention to the content of the explanation given.” 

[76] If the explanation is in writing the task of assessing the reasonableness of the explanation is relatively easy. If it was not in writing (as in the present case) then it is vitally necessary to understand what words were spoken.

[77] In relation to what had been explained to employees covered by the Agreement, and what steps were taken by the employer, the Commission expressed a concern itself that the Employer’s statutory declaration (Form F17) was unclear on whether the terms of the Agreement and the effect of the terms of the Agreement had been explained to employees as required by s.180(5) of the Act.

[78] Further, the CFMMEU has raised its concerns regarding whether the Agreement and its effect were explained on the following basis:

• statements made by Ms Christine Armstrong in the F17 being incorrect;
• employees not having access to a copy of the proposed replacement EBA for a 7-day period prior to the vote taking place;
• employees not seeing a copy of the Agreement or Award in meal rooms or receiving an email copy of one either;
• employees whose first language is not English not being aware an interpreter was available to them if they wished to use an interpreting service;
• a number of employees that voted ‘yes’ because they thought they were voting to take protected industrial action.

[79] Having considered all of the evidence I am satisfied that the concerns raised as to whether the Applicant has explained the terms and the Agreement, and the effect of those terms has now been successfully answered. It must be borne in mind that the explanation required does not need to be perfect in every sense, but that the employer has taken all reasonable steps.

[80] It is apparent that the Applicant has taken care to keep employees informed throughout the progress of negotiations. I am satisfied on the basis of the evidence that employees did have access to a copy of the proposed Agreement and the Award during the access period as it was emailed to employees and was also available in meals rooms. I am satisfied that employees were made aware that an interpreter would be made available if requested however no requests were received.

[81] Having considered the content of the explanations provided and the terms in which they were conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement, I am satisfied that the Applicant has taken all reasonable steps. This is a workplace with a history of enterprise bargaining involving unions as representatives of the workforce and the Agreement is proposed to replace an existing Agreement.

[82] It was apparent from the closing submissions of the CFMMEU that its primary concern after having heard the evidence was the possibility that some employees who did not have English as their first language may not have had the terms of the Agreement and the effect of those terms explained to them appropriately. This claim was not supported by any specific evidence other than the hearsay evidence of Mr Menon that he had been told by employees of this concern. Mr Menon’s claim ran contrary to the evidence of the witnesses for the Applicants that no such concern existed, and it had taken all reasonable steps to ensure should any potential issue in this regard have existed it would be addressed.

[83] As stated earlier Mr Menon referred to the existence of a petition which had not been filed as part of the CFMMEU’s case. It was explained by the CFMMEU in closing submissions that it did not file a petition because it did not wish to disclose the names of employees who had signed it. It was made clear to the CFMMEU that the Commission could not place any weight on material that was not made available to be tested. On the basis of the evidence I am satisfied that the Applicant has taken all reasonable steps, including taking into account the cultural and linguistic backgrounds of its employees.

[84] I am also not inclined to accept the claim that the fact of a protected action ballot being conducted by the AEC around the time of the ballot for the proposed Agreement caused some employees to vote ‘yes’ because they were confused as to which ballot they were voting in. The evidence called satisfied me that this was not the case.

Conclusion

[85] The Applicant filed undertakings on 29 January 2021.

[86] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement.

[87] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[88] In accordance with s.201(2), I note that the Agreement covers the UWU and CFMMEU.

[89] The Agreement is approved and will operate in in accordance with s.54 of the Act.

COMMISSIONER

 1   Exhibit 1.

 2   Exhibit 2.

 3   Exhibit 3.

 4   Exhibit 4.

 5   Exhibit 5.

 6 [2017] FCA 1266.

 7 [2018] FCAFC 77.

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