BGC Contracting Pty Ltd
[2018] FWC 1466
•12 JUNE 2018
| [2018] FWC 1466 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
BGC Contracting Pty Ltd
(AG2016/3592)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 12 JUNE 2018 |
Application for approval of the Mining Enterprise Agreement 2016; s.180(2) & (5) considered; whether relevant employees genuinely agreed to the Agreement; whether Agreement terms contravened s.55; whether Agreement passed the better off overall test (BOOT); not satisfied Agreement genuinely agreed to by relevant employees; not satisfied terms of the Agreement did not contravene s.55; not satisfied Agreement passes BOOT; Applicant given an opportunity to provide undertakings.
Introduction and background
[1] BGC Contracting Pty Ltd (BGC) applied under s.185 of the Fair Work Act 2009 (Act) for approval of an enterprise agreement titled the Mining Enterprise Agreement 2016 (Agreement). The Agreement was made on 14 June 2016. The application was lodged on 21 June 2016. The Construction, Forestry, Mining and Energy Union, now named the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Workers’ Union (AWU) (collectively “the Unions”) were bargaining representatives for the proposed enterprise agreement concerned. Each gave notice pursuant to s.183 of the Act that it wants the Agreement to cover it, but did not support its approval.
[2] On 28 February 2017, Deputy President Binet issued a decision 1 dismissing BGC’s application for approval of the Agreement (Decision). The Deputy President determined that she was not satisfied that the Agreement had been genuinely agreed to by the employees covered by the Agreement as required by s.186(2)(a) of the Act. The Deputy President also was not satisfied that the Agreement passed the better off overall test (BOOT) as required by s.186(2)(d) or that its deficiencies could be cured by undertakings.
[3] On 21 March 2017, BGC lodged a Notice of Appeal against the Decision. The Notice of Appeal was amended on 15 and 16 May 2017. On 5 July 2017, a Full Bench of the Commission granted BGC permission to appeal, upheld the appeal, quashed the Decision and remitted the matter to me for rehearing (Appeal Decision). 2
[4] Following the conclusion of the hearing of the matter before me on 16 November 2017, judgments in Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd 3(One Key Workforce (No 1)) and Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd4(Thiess) were delivered. I allowed further submissions by BGC and the Unions addressing the effect of the judgments on issues that I am required to determine. The Unions also lodged an application pursuant to s.603 of the Act for revocation of the Appeal Decision consequent on the judgment in Thiess. The application was dismissed by the Full Bench.5 This was unfortunate since on a plain reading of the Appeal Decision, the Full Bench did not deal with the “genuinely agreed” issues determined by the Deputy President, which quite separately from the ground on which the appeal was upheld, provided a sufficient and separate basis for the Decision not to approve the Agreement. I would observe that although concerns about these issues could be the subject of undertakings, no opportunity was given to BGC by the Deputy President to provide any undertakings in respect of a concern about s.186(2)(a). Be that as it may, it falls to me to determine the application to approve the Agreement.
[5] BGC is currently covered by two enterprise agreements that apply to its employees engaged in metalliferous mining. These agreements are the BGC Contracting Mining Employees Enterprise Agreement 2012 and the BGC Contracting Maintenance Employees Enterprise Agreement 2012 (2012 Enterprise Agreements). The nominal expiry date of both agreements, namely 31 August 2016, has passed.
[6] In an effort to position itself for continuing mining operation contracts in the face of an industry downturn, BGC proposed a broadly-scoped enterprise agreement with significantly lower rates and conditions than those set out in its 2012 Enterprise Agreements. To persuade employees to approve the Agreement, BGC says that it explained the business case and provided assurances to existing employees who would be covered by the Agreement that if the Commission approved the Agreement, BGC would preserve the existing wages and most of the conditions of employment of relevant employees in new common law contracts. 6 Around 800 employees at BGC's existing mining operations in Western Australia and South Australia were eligible to vote to approve the Agreement. BGC says that the South Australian employee representatives mounted a "vote no" campaign, chiefly because they wanted all terms and conditions of employment to be included in the Agreement. Approximately 90% of employees who would be covered by the Agreement participated in the ballot, and a valid majority of approximately 60% of those participating who cast a valid vote, voted to approve the Agreement.7 A valid majority of employees approved the Agreement on 14 June 2016.
[7] For completeness, the following background matters derived from the Decision and the material before the Deputy President are not controversial:
• If the Agreement is approved and in operation, its effect would be to establish a two-tiered remuneration arrangement -one relating to existing employees covered by the Agreement and one relating to prospective employees who become employees covered by the Agreement.
○ Existing employees who are employed at the time the Agreement is approved who would be entitled to the preserved wages and conditions contained in a contractual instrument (Preserved Conditions Contracts); and
○ Prospective employees who become employed after the Agreement is approved who would be entitled to the lower rates and conditions contained in the Agreement, although plainly the terms of the Agreement would apply to all relevant employees falling within the coverage of the Agreement.
• The coverage of the existing agreement is confined to metalliferous mining. The coverage of the Agreement is as to metalliferous mining and black coal mining. The Agreement contains a schedule providing for rates and conditions for employees engaged in black coal mining (Coal Mining Employees).
• BGC was not, at the time the Agreement was made involved in, and consequently did not employ any employees in the black coal mining industry. Except for a short time in 2004, BGC has not undertaken work in the black coal mining industry.
• On 30 March 2016 BGC distributed a Notice of Employee Representational Rights (NERR). A separate pack of information was provided to employees at the same time as the NERR, in a separate envelope.
• During the bargaining process, BGC issued a series of documents on the following dates containing that which is described as frequently asked questions and answers (FAQ). These were intended by BGC to address questions by employees in relation to the Agreement and the Preserved Conditions Contracts:
○ 29 March 2016 (First FAQ);
○ 12 April 2016 (Second FAQ);
○ 17 April 2016 (Third FAQ); and
○ 2 May 2016 (Fourth FAQ),
(collectively, the FAQ Documentation)
• Consultation meetings with representatives of the South Australian workforce were held on 20 April 2016, 21 April 2016, 11 May 2016 and 13 May 2016. A meeting was also conducted on 18 May 2016 attended by representatives of the South Australian workforce and representatives of BGC. Meetings were also held with the Western Australian workforces.
• Prior to the commencement of the access period, relevant employees were provided with a final pack of information which included the following documents:
○ A letter dated 23 May 2016 from Mr Martin Spibey, Executive General Manager Mining at BGC;
○ A “Reference Document” information sheet that set out the websites on which employees could find a copy of the Mining Industry Award 2010 (Mining Award), the Black Coal Mining Award 2010 (Coal Award), the National Employment Standards and the Act (Reference Document);
○ A table setting out the final agreed preserved conditions for the Preserved Conditions Contracts;
○ A comparison table for specific sites, comparing the Agreement to the 2012 Enterprise Agreements;
○ The employees’ personal Preserved Conditions Contracts;
○ A copy of the Agreement; and
○ The vote pack from Cirrena IVS.
(Collectively, the “Final Information Pack”)
The nature of the task before me and the Union’s objections
[8] The Unions submit that the application to approve the Agreement should be dismissed for a number of reasons. I will return to these shortly.
[9] BGC submits that the Commission can be satisfied that all relevant approval requirements have been met, save perhaps for s.186(2)(d) in relation to which BGC says that appropriate undertakings could satisfy any particular concerns that the Commission may have about the Agreement passing the BOOT. If concerns are identified, BGC seeks the opportunity to provide undertakings. 8
[10] BGC contends that the Commission’s appellate jurisdiction in relation to the matter is not exhausted until the rehearing. It says that it follows that any ruling by the Commission in the appeal is carried through in the rehearing. Relevantly, the following findings of the Full Bench adhere to the rehearing: (i) the employees' approval of the Agreement did not lack authenticity as, in contrast to KCL Industries Pty Ltd 9 (KCL) the employees had a stake in the Agreement; (ii) BGC had explained to the employees the competitive market pressures, the unsustainability of the wages and conditions in the 2012 Enterprise Agreements, and the benefits of approving the Agreement; and (iii) the Unions had abandoned the misleading information argument at the hearing before Deputy President Binet.10 BGC says that the Unions’ submissions seek to re-agitate each of these points, each of which are not open at the rehearing.11
[11] Further, BGC submits that the finality principle on appeal means that unless leave is applied for and granted on proper grounds, the Commission should not generally entertain the Unions' grounds that were not raised or were abandoned at the hearing before Deputy President Binet. BGC submits that in the Unions' submissions they seek to agitate many such points, without seeking the Commission's leave and without offering any reasons why leave should be granted. 12
[12] BGC says that the same approach should apply even if the rehearing were properly viewed as an exercise of original jurisdiction (that is, by way of remitter) rather than appellate jurisdiction. It says that to allow the Unions to re-run previously abandoned or rejected arguments, or to run new arguments that could have been raised earlier, would expose the Commission's processes to abuse. 13
[13] The Unions say that the Full Bench did not task me with engaging in any appellate rehearing under s.607(3)(b) of the Act. The Unions say the result of the Full Bench quashing the Decision was that BGC’s application for approval of the Agreement had to be re-determined. They say the Full Bench referred BGC’s application for rehearingto me to determine BGC’s application afresh. The Unions submit that contrary to BGC’s submission, the rehearing is not limited in any particular way. 14
[14] In the Appeal Decision, the Full Bench, inter alia, quashed the Decision dismissing BGC’s application for approval of the Agreement and referred “the matter” to me for a rehearing. The “matter” is the application under s.185 for approval of the Agreement. In considering whether to approve the Agreement, I must be satisfied as to the matters set out in ss.186 and 187 of the Act. Plainly, appropriate regard must be had to any matters determined by the Full Bench in respect of ss.186 and 187 considerations, but ultimately, the matter before me is an application under s.185 for approval of the Agreement. The Full Bench did not deal with the application other than to quash the Decision and dismiss it. I intend therefore to deal with each matter raised by the Unions so far as they touch upon a consideration relevant to ss.186 and 187 of the Act. I will deal with each in turn below.
Genuine agreement
1. Relevant legislative provisions
[15] Section 186(2) relevantly provides:
(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;
[16] Section 188 of the Act provides the following:
When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
[17] Section 180 of the Act sets out a number of preapproval steps that must be undertaken before employees that will be covered by an agreement are asked to approve the agreement.
[18] Section 180 relevantly provides the following:
“Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees ) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i) the written text of the agreement;
(ii) any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.
. . .
(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).
. . .
(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.”
[19] As is evident from the above, satisfaction that the Agreement has been genuinely agreed to by the employees covered by the Agreement will be achieved, inter alia, if I am satisfied for the purpose of s.186(2)(a) that BGC complied with subsections 180(2) and (5) in relation to the Agreement.
2. Access to materials – s.180(2)
a. The s.180(2) issue - Coal Award incorporation
[20] Schedule A of the Agreement makes provision for “Coal Mining Employees”. It provides the following:
Schedule A – Coal Mining Employees
Certain clauses of this Agreement will not apply to Employees appointed by the Company as Coal Mining Employees and instead provisions of the Coal Award will be incorporated and apply to those Employees in accordance with the following table.
Provision of this Agreement that will not apply to Coal Mining Employees | Provision of the Coal Award that will be substituted |
Clause 6 – Contract of Employment | Clause 10 – Types of employment |
Clause 7 – Classifications and Hourly Rates of Pay | Clauses 15(a) and 16 (except 16.1(b)) Schedule A – Classifications, wages and allowances for Production and Engineering Employees |
Clauses 7.1(b) and 9 – Additional Payments | Clause 19 Allowances |
Clause 8 – Apprentices | Clause 11 – School based apprentices |
Clause 11.2 – Default superannuation fund | Clause 20.1 – Choice of default superannuation scheme |
Clause 12 – Hours of Work (Day Workers) | Clause 21 – Ordinary hours of Work Clause 17 - Overtime |
Clauses 12.4 and 13.5 | Clauses 24.1 – Meal breaks |
Clause 13 – Hours of Work (Shift Workers) | Clause 21 – Ordinary hours of Work Clause 22 – Shift Work Clause 17 – Overtime |
Clause 16 – Work Cycle | Clause 23 – Rostering |
Clauses 17.1 and 17.2 – Accrual of annual leave | Clause 25.2 and 25.3 – Accrual of annual leave |
Clauses 17.3 and 17.4 – Payment for annual leave | Clause 25.7 – Payment for annual leave |
Clause 18 – Public holidays | Clause 27 – Public Holidays |
Clause 19.1 – Personal Leave | Clause 26.1 and 26.2 – Personal leave entitlement Clause 26.4 – Deduction of personal leave |
Clause 25.1 – Notice of termination (in respect of termination for redundancy only) | Clause 13.4 – Notice of termination - redundancy |
Clause 25.2 – Termination by employee | Clause 13.2 – Termination by employee |
Clause 26 – Redundancy | Clause 14 – Redundancy |
N/A | Clause 13.5(b) – Payment of accrued personal leave on termination |
N/A | Clause 18 – Accident pay |
These clauses will only apply to a Coal Mining Employee to the extent that they would have if the Coal Mining Award applied to that Employee. Definitions in the Coal Award will also be incorporated into this Agreement but only to the extent necessary to give effect to the clauses listed above where they apply to a particular Employee. Coal Mining Employees will also receive a flat payment of $35 per week in addition to the weekly rates specified in Schedule A of the Coal Award.
[21] “Coal Award” is defined in clause 5 as meaning the “Black Coal Mining Industry Award 2010 as at Commencement Date”. Commencement Date is the date on which the Agreement commences operation, which is 7 days after the Commission approves the Agreement. 15 A “Coal Mining Employee” means an employee who is covered by the Coal Award in classifications to which reference is made in Schedule A of the Agreement. Schedule A of the Agreement incorporates by reference, classifications pertaining to production and engineering employees contained in Schedule A of the Coal Award.
[22] The apparent effect of these provisions is that the provision of the Coal Award identified in Schedule A of the Agreement are incorporated by reference into the Agreement and operate in relation to Coal Mining Employees instead of the correspondingly identified provisions of the Agreement. Pursuant to Schedule A, Coal Mining Employees are to be paid the appropriate weekly rates specified in the Coal Award together with a flat rate weekly amount of $35.00. Necessary definitions in the Coal Award required to give efficacy to the operation of the incorporated terms are also incorporated by reference.
[23] Section 257 of the Act deals with incorporation of material in an enterprise agreement and provides:
“Enterprise agreements may incorporate material in force from time to time etc.
Despite section 46AA of the Acts Interpretation Act 1901, an enterprise agreement may incorporate material contained in an instrument or other writing:
(a) as in force at a particular time; or
(b) as in force from time to time.”
[24] Section 46AA of the Acts Interpretation Act 1901 (Cth) 16 (AI Act) provides as follows:
(1) If legislation authorises or requires provision to be made in relation to any matter in an instrument that is neither a legislative instrument for the purposes of the Legislative Instruments Act 2003 nor a rule of court, that instrument may, unless the contrary intention appears, make provision in relation to that matter:
(a) by applying, adopting or incorporating, with or without modification, the provisions of any Act, or of any disallowable legislative instrument for the purposes of the Legislative Instruments Act 2003, as in force at a particular time or as in force from time to time; or
(b) subject to subsection (2), by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force or existing at the time when the first mentioned instrument takes effect.
(2) Unless the contrary intention appears, the instrument may not make provision in relation to that matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.
[25] Absent s.257, the effect of s 46AA(2) of the AI Act would be that an enterprise agreement could not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. That would constitute a very severe restriction upon the terms which employers and their employees might choose to include in an enterprise agreement in circumstances where no variation, or possible future variation, was involved. It was to qualify – although not completely to exclude – the operation of that rule that s.257 of the Act was enacted. 17
[26] The words “material contained in an instrument or other writing” in s.257 of the Act suggests that the material that may be incorporated must exist when incorporated, albeit that the content of the material may change during the life of the Agreement if it is incorporated “as in force from time to time”. However, s.257(a) appears to allow incorporation of material as in force at a particular time, which seems to include a time after the agreement is made, and including a time after the agreement is approved by the Commission. BGC and the Unions agree that the incorporation provisions of the Agreement engage with s.257(a) and is a permissible incorporation. 18 The incorporated material referenced in the Agreement is to be distinguished with that found in Teys Australia Beenleigh Pty Ltd v The Australasian Meat Industry Employees Union19(Teys) in which the purported incorporated material had the effect of later varying that agreement in a manner contrary to Divisions 4 and 7 of Part 2 – 4 of the Act.
[27] The controversy concerning whether BGC complied with its obligation under ss.180(2) and (5) of the Act turns in part on a proper construction of the Agreement and that which the Agreement purports to incorporate. Until the matter was remitted to me by the Full Bench, the parties appear to have proceeded on the common assumption that the provisions of the Coal Award applicable at or around the time the relevant employees were asked to vote to approve the Agreement were incorporated. Presumably that is why BGC provided relevant employees with the URL link to the Modern Awards list webpage of the Commission’s website to enable access to a copy of the Coal Award. That which would be accessed would be the operative award at that time. One could plainly not access a copy of the Coal Award in operation at some future date. As will later be clear, the Unions now advance an alternative construction to that underpinning the common assumption. For my own part, I consider the clear and express effect of the incorporation provisions of the Agreement to be that the identified provisions of the Coal Award in Schedule A as in force on the date the Agreement commences to operate are (or are to be) the operative relevant terms of the Agreement. However, as the consequence of the formerly held common assumption was also fully argued, that which follows below deals with BGC’s compliance with ss.180(2) and (5) based on the previously held common assumption. I will later deal with the proper construction of the incorporation provisions of the Agreement and its consequences.
[28] It is uncontroversial that BGC provided relevant employees with a copy of the Agreement but did not provide these employees with a copy of the Coal Award 20or copies of any of the relevant provisions of the Coal Award which are incorporated into the Agreement pursuant to Schedule A. Before the start of the access period,21 BGC provided the employees with a Final Information Pack comprising the Agreement and various documents, including a Reference Document setting out the title of each of the underpinning awards and the URL link to the Modern Awards list web page of the Commission’s website to access a copy of the awards.22
[29] The Unions contend, in summary, that:
• the sole step BGC took to discharge its obligation under s.180(2)(b) in respect of the Coal Awardwas to provide relevant employees with a piece of paper containing the link to the modern award list on the Commission’s website; 23
• s.180(2) imposes an obligation to take all reasonable steps and that the ordinary meaning of the phrase “all reasonable steps” means “every step it would have been logical or rational for an employer to take in the circumstances”; 24
• the object to which this is directed is ensuring that all employees have a copy of material incorporated by reference in the agreement they are voting on;
• BGC’s reliance on the analysis of McDonald’s Australia Pty Ltd 25(McDonalds) is incorrect and that it ought not be applied in the present matter;26
• McDonalds was criticised by a Full Bench in Construction, Forestry, Mining and Energy Union v Sparta Mining Services Pty Limited 27(Sparta)as failing to explain how the mere availability of material in the public domain meant that there was no other reasonable step the employer could have taken to ensure access to a copy of the incorporated material;28
• the Agreement included substantial portions of an award with which the employees who voted to approve the Agreement had no experience as it had application in an industry in which they did not work;
• there was no evidence that any of the relevant employees had access to computers or the internet whilst at work or outside of work, nor was there any evidence that the employees had the skills and know-how to access the link provided by BGC; 29
• the employees were afforded no instructions on how to navigate the Commission’s website and access the specific provisions of the Coal Award;
• BGC’s lack of efforts is exemplified by the evidence of its employees, who did not access or obtain a copy of the Coal Award; 30
• employees did not know what the content of the entitlements and obligations imposed by the Coal Awardwere when they considered whether to approve the Agreement; 31
• BGC did not proffer any evidence that it would have been economically onerous or practically difficult for it to print off copies of the Coal Awardand provide these to employees in the Final Information Pack it distributed to employees containing the Agreement or that it would be problematic for BGC to make copies available to employees in crib rooms or at other locations at its worksites 32 and says that these would have been simple, straightforward and manifestly reasonable steps for BGC to have taken;33and
• consequently, the Agreement was not genuinely agreed to for the purposes of s.186(2)(a) and s.188(a)(i) and cannot be approved. 34
[30] BGC says that it provided employees with a Final Information Pack comprising of the Agreement and various documents including a Reference Document setting out the title of each of the underpinning awards and the URL link to the Modern Awards list webpage of the Commission’s website to access a copy of the awards. 35 It contends that the Unions’ submissions summarised above are wrong.
[31] First, BGC contends that its obligation under s.180(2) of the Act by reason of the steps it took amply meets the standard articulated by the Full Bench in McDonalds in which the relevant materials are public documents. BGC contends that despite the Union’s submissions, the Full Bench observed in Construction, Forestry, Mining and Energy Union v Lendlease Engineering Pty Ltd 36 that neither the Sparta 37 case nor National Tertiary Education Industry Union v University of New South Wales38(NTEIU)case overruled the finding in McDonalds.39
[32] Secondly, BGC contends that the Unions have not demonstrated that there were any workplace characteristics to warrant a higher standard than that outlined in McDonalds. BGC says that all the Unions have pointed to is the so called “blue collar” nature of BGC’s workforce, and the alleged limited access to computers at the workplaces. 40 BGC says that neither of these warrant the imposition on BGC of a higher standard than that outlined in McDonalds. This, according to BGC is so because:
• the Unions' submission is based on a vague, generalised, highly paternalistic and unrealistic assumption about the lack of technological literacy of "blue collar'' workers. BGC says that ordinary people all over Australia use the internet every day on smartphones, other portable devices and computers. BGC says that it is notorious that internet browsing is a relatively simple intuitive task that even children can perform. There is no reason why the Commission should depart from reasonable and obvious assumptions about the ability of ordinary working people to browse the internet. That conclusion is only reinforced by the high participation rate in BGC's voting process, which utilised online, SMS and phone voting methods; 41
• similarly, there is no satisfactory evidence to cast doubt on whether the employees had reasonable access to the internet via computers, smartphones or other personal electronic devices during the access period, at least during breaks and/or outside of work hours; 42 and
• the Unions' submission defies reasonable assumptions about internet access and usage, and wrongly places a practical evidentiary onus on BGC to adduce evidence to prove the obvious. There is no authority to support the proposition that BGC had to lead evidence positively that the employees could access computers. 43
[33] Thirdly, BGC says that even if the present circumstances required more than that which McDonalds found was adequate, BGC met that higher standard by providing the link in the Reference Document which provided a straightforward means of access. It submits that it gave employees the title of each of the relevant awards and the URL link to the Commission’s Modern Award list webpage. 44
[34] Lastly, BGC says that the Unions' argument places too much significance on the expression "all reasonable steps". A step must be a "reasonable step” to fall within "all reasonable steps". Whether a step is "reasonable" is not to be assessed in a theoretical vacuum. It is to be assessed in full context. That context logically must include consideration of the other steps being taken by the employer. The provision of hardcopy documents may be a reasonable step considered in isolation but BGC says that it may be superfluous where the employer has already taken reasonable steps to ensure access by electronic means to copies of those documents. It otherwise submits that s.180(2) would place a too burdensome onus on employers. Given the Reference Document had been provided, the provision of a hardcopy of the Coal Award to 800 employees in mining locations in two states, or to post around the workplaces, would have been superfluous and an unnecessary additional administrative burden. BGC says that providing hard copies was not a reasonable step. 45
[35] I share the reservations expressed by the Full Bench in Sparta as to the universality of the view expressed in McDonalds. For my own part, I consider that McDonalds may be confined to the facts and circumstances of that case. There, the Full Bench was considering the extent to which the reasonable steps were taken in relation to incorporation of legislation (the NES and the Long Service Leave Act 1987 (SA)).
[36] It seems to me that the evident purpose of the preapproval step in s.180(2) is to give relevant employees the opportunity to review an enterprise agreement and material incorporated by reference in the agreement before being asked to vote to approve the it. This purpose is given effect by placing an obligation on an employer to take “all reasonable steps to ensure” that employees have this opportunity through one of two means, or through a combination of those means. First, by taking all reasonable steps to ensure that during the access period for the agreement, the relevant employees are given a copy of the written text of the agreement and any other material incorporated by reference in the agreement. BGC did not, during the access period, give relevant employees a physical copy of the material incorporated by reference in the Agreement. Nor has BGC identified any step beyond the provision of a URL link to the Modern Awards list web page of the Commission's website, as a “reasonable step” it took to “ensure” that “during the access period” the relevant employees were given a copy of the written text of the material incorporated by reference in the Agreement.
[37] “Given” in s.180(2)(a) is used as a verb and is the past participle of give. To give something to someone may involve the physical transfer of that thing to someone but that is not the only way in which the thing might be given. A thing might be given to someone by causing or allowing or facilitating someone to have or experience the thing or by providing someone with the capacity to obtain the thing and experience it without physically giving the thing to that person. Understood in this way, the provision by BGC to relevant employees of a Final Information Pack containing relevantly, the Agreement, a Reference Document setting out the title of each of the underpinning awards (including the Coal Award) and a URL link to the Modern Awards list web page of the Commission's website to access a copy of the awards, might be a “reasonable step” to ensure that relevant employees are “given” a copy of the material incorporated by reference in the Agreement. But the additional step of downloading the document would probably be required before an employee might be said to have been given a copy of the material. The capacity to view a document seems to me to relate more correctly to access than to giving.
[38] It is uncontroversial that the URL link to the Modern Awards list web page of the Commission's website was provided to relevant employees before the start of the access period. Section 180(2)(a) requires the reasonable steps that are taken to be directed to ensuring that “during the access period” the material is given to relevant employees. The step taken on its own, is thus unlikely to satisfy s.180(2)(a) in respect of each employee. In any event, there is no evidence which would support such a conclusion. There is also no evidence about when or if relevant employees accessed the Coal Award, downloaded a copy, or any instruction about navigating the Awards webpage once accessed. The provision of the URL link is more likely to be a reasonable step for the purpose comprehended by s.180(2)(b). Indeed as I apprehend BGC’s position, it says the steps taken were directed to complying with s.180(2)(b).
[39] Section 180(2)(b) is the second means by which s.180(2) might be satisfied and requires an employer to take all reasonable steps to ensure that the relevant employees have access, throughout the access period to a copy of the agreement and materials incorporated by reference in the agreement.
[40] The difference between the two methods of complying with the preapproval step in s.180(2) is that the first is concerned with each employee having possession of a copy of an enterprise agreement and any incorporated material. The giving may occur at any time during the access period, although the reasonable steps directed to ensuring that relevant employees are “given” the materials may be taken both before and during the access period. The second is concerned with enabling each employee to have access to an enterprise agreement and any incorporated material. Access to an enterprise agreement and any incorporated material need not involve physical possession of the documents and so would encompass for example, an employer leaving copies of such documents in a staff room or other area where employees are able to gather and can review the documents. In these circumstances, the access must be arranged by the start of the access period and employees must have access to the documents throughout the period. It seems to follow that the reasonable steps directed to achieving the end in s.180(2)(b) must be taken before the access period begins.
[41] In some circumstances it may be necessary for an employer to take reasonable steps directed to both s.180(2)(a) and (b). Thus, some employees might be given a copy of the relevant material (for example, employees on extended leave or those who were not at work for the entire access period). Others might have access to a copy or copies of those materials which by the start of the access period are left in readily accessible locations at the workplace(s).
[42] The word “ensure” in s.180(2) suggests that whichever method is selected by the employer, the reasonable steps that are to be taken should be directed to securing or guaranteeing or making sure or being certain that relevant employees are given a copy of the agreement and any incorporated material during the access period or that they have access to the material throughout the access period. This underscores the difficulty underpinning the analysis in McDonalds. That a document which is incorporated into an agreement is publically available, for example, on a website, in and of itself seems to me to do little to “ensure” that relevant employees who are being asked to vote to approve, inter alia, that the document will be a term of the agreement, have access to it. I do not consider that the word “all” in connection with reasonable steps means that every available or conceivable step that is available must be taken. Rather steps that are reasonable in the circumstances and which are directed to achieving the ends specified in s.180(2)(a) or (b) are to be taken.
[43] A requirement or obligation to take “all reasonable steps” seems to me to require the identification of the steps a reasonable person would regard as reasonable in the circumstances that apply. Whether particular steps are reasonable will depend on the particular circumstances existing at the time the obligation arises. A requirement to take all reasonable steps does not extend to all steps that are reasonably open in some literal or theoretical sense. 46 The assessment of whether an available step was reasonable must also be judged against the objective that is sought to be achieved by the imposition of the obligation to take “all reasonable steps”. In the case of s.180(2), the objective of the reasonable steps is directed to ensuring that all relevant employees are given, or have access to, an enterprise agreement and any incorporated material, during or throughout the identified period. That is, that the employees have the opportunity to review the material before being asked to approve the agreement in order that employees make an informed choice. In some cases, only one step will be required to achieve this objective, for example by the employer giving each relevant employee a copy of an enterprise agreement and any incorporated material during the access period. But absent such a step, and depending on the circumstances, several steps may be required to be taken by the employer in order that the objective is achieved and the obligation is discharged.
[44] It is likely that BGC discharged its obligation under s.180(2) vis-à-vis the Agreement. BGC purported to give each relevant employee a copy of the Agreement as earlier noted via the Final Information Pack. Although, as will be apparent shortly, this step might not have ensured all relevant employees received it. The central issue is whether by providing relevant employees with a Reference Document setting out the title of each of the underpinning awards and the URL link to the Modern Awards list web page of the Commission's website to access a copy of the awards, BGC took all reasonable steps to ensure that those employees were given or had access to the incorporated material (the several provisions of the Coal Award identified in Schedule A of the Agreement), during or throughout the access period.
[45] There seems little doubt that if all relevant employees received the Final Information Pack and document containing the URL link by the start of the access period, had access to computers or other personal devices with internet access throughout the access period, and were able to access the Coal Award, the step taken by BGC would likely have discharged its preapproval obligation under s.180(2) of the Act. The difficulty is that there is no evidence that this was the case. I cannot simply assume or infer that that was the case. It is to be remembered that the relevant employees are large in number and spread across two states. Approximately 800 employees at BGC's existing mining operations in Western Australia and South Australia were eligible to vote to approve the Agreement. Some other employees were at sites when the documents were distributed, some were not. Between 23 and 27 May 2016 the Final Information Pack comprising the Agreement and various documents, including a Reference Document setting out the title of each of the underpinning awards and the URL link to the Modern Awards list web page of the Commission's website to access a copy of the awards, was given to relevant employees who were on site during that period. 47 For those who were not on site, the Final Information Pack was sent by mail.48 It is notable that email was not used to dispatch the Final Information Pack to these or any of the relevant employees. It would seem to me to be a simple task for BGC to have downloaded a copy of the Coal Award and dispatched it to relevant employees by email; as for those employees without an email address, to have given these employees a copy of the Coal Award or to dispatch the document by post. This would more likely have ensured that even if some employees did not receive the Final Information Pack by the start of the access period, it would likely have been received by them “during the access period” and thus have been given it.
[46] Although I accept, as BGC contends that ordinary people all over Australia use the internet every day on smartphones, other portable devices and computers and that it is notorious that internet browsing is a relatively simple intuitive task that even children can perform, it is another thing altogether that I should infer from these propositions that all relevant employees had such access throughout the relevant period so as to render any other available step not reasonable or, other reasonable steps as not required or unnecessary in the circumstances. I note that the high participation rate in BGC's voting process, which utilised online, SMS and phone voting methods. Approximately 90% of employees who would be covered by the Agreement participated in the ballot. This suggests some technological literacy and high levels of access amongst the cohort of relevant employees. But it leaves unexplained the reasons for the 10% of relevant employees not participating. Apathy might be one explanation. Lack of access or lack of technological literacy might be another. The non-receipt by some employees of the materials might be a third. The point is that I simply do not know.
[47] BGC did not adduce any evidence about the efficacy of the step it took in achieving the object underpinning s.180(2). I accept that the steps it took were reasonable steps, but I do not accept that these were the only reasonable steps required of it in the circumstances. A simple example to highlight the difficulty will suffice. The employer’s statutory declaration filed in support of the application for approval of the Agreement discloses that employees who were on-site between 23 May 2016 and 27 May 2016 were provided with the Final Information Pack which included a copy of the final Agreement and the document containing the URL link. This information was also mailed to employees who were not on-site. 49 There is nothing in the material which discloses how many employees were not on-site in the period between 23 May 2016 and 27 May 2016, how many Final Information Packs were sent by post and when this occurred. The voting for the Agreement commenced on 8 June 2016 and so the access period commenced on 1 June 2016. 27 May 2016 was a Friday. There is no information as to the method of posting utilised. That is whether the posting was effected by regular letter, by priority letter, by parcel post, by express parcel or letter or by courier post. Each of these methods have different expected delivery dates. But if the method chosen was by regular letter, Australia Posts’ website tells us that the delivery speed within Australia for that kind of postage is between 2 to 6 business days after posting depending on lodgement and destination location. Thus, if some letters were dispatched on 27 May 2016 to employees who were not on-site between 23 May 2016 and 27 May 2016, the Final Information Pack may not have been received by the start of the access period, which was only four business days after 27 May 2016. Consequently, the receipt by an employee of the URL link to the Commission’s modern awards web page a day or two after the day on which the access period had commenced would mean that that employee would not have had access to the incorporated material throughout the access period. There is no evidence from which it might be concluded that this scenario was not likely, at least in respect of some of the employees who were not on-site during the period when the Final Information Pack was handed out. This underscores that the steps taken by BGC were not all the reasonable steps that ought have been taken in the circumstances.
[48] BGC was on notice that this issue was challenged by the Unions. Evidence of the efficacy of the steps taken in achieving relevant access to the incorporated material could have been prepared or adduced.
[49] It seems to me that in addition to the step taken, the following steps were reasonable in the circumstances:
• print and give copies of the incorporated material to relevant employees working on-site during the relevant period and dispatch by email and/or by post the materials to those not on site during the relevant period in a time or manner that will likely ensure that those employees received the material at a time contemplated by s.180(2); and
• by the start of the access period print and leave several copies of the incorporated materials in lunchrooms and other locations on site at which employees gather and advise employees that the materials may be accessed at those locations
[50] No probative evidence was led as to why these or other available steps could not be taken or were not reasonable steps in the circumstances.
[51] It must also be remembered that the incorporated material did not include the entire Coal Award, but merely those provisions of that award identified in Schedule A of the Agreement. Only those provisions needed to be printed and distributed utilising one of the steps described above. Mr Tariro Ruwiza, Senior Project Manager at the BGC Contracting Whyalla Operations, gave evidence that he had instructed by email certain individuals of the leadership teams to place copies of the Mining Award in crib rooms at the South Middleback Ranges and that “some” of those so instructed had confirmed by email that the instruction had been carried out. 50 However, evidence was not given by those to whom the instruction was directed, and in particular by those who had not confirmed by email, that the instruction had been carried out. Moreover, the evidence of Mr Scot Whitlock, an operator engaged at BGC’s South Middleback Ranges site was that although he had been told that a printed copy of the Mining Award was available in his crib hut (the Chieftain) he could not locate it when he looked.51 Mr Ruwiza’s evidence did not deal with the issue of access to the Coal Award at any other mine sites at which BGC operates.
[52] In the circumstances and for the reasons given, I am not satisfied that BGC complied with s.180(2) of the Act in respect of those provisions of the Coal Award incorporated by reference in the Agreement set out in Schedule A thereof. This conclusion is based on the common assumption to which earlier reference was made.
[53] I will later return to the issues of undertakings and also to the issue whether compliance with s.180(2) was required by reason of the nature of the incorporation.
b. The s.180(2) issue - Site Security Processes, Procedures and Protocols incorporation
[54] Clauses 32.1 and 32.2 of the Agreement respectively provide as follows:
“32. Site Security
32.1 It is a condition of employment that an Employee shall comply with the relevant site
security processes and procedures as determined from time to time. This may include the searching of site accommodation.
32.2 Any breach of the site security protocols will result in disciplinary action being taken
against the offending Employee, including possible exclusion from the site and/or termination.”
[55] The Unions contend that:
• clause 32.1 of the Agreement requires employees to comply with all relevant site security processes and procedures as determined from time to time. Clause 32.2 requires employees to comply with ‘site security protocols’ or risk disciplinary action up to and including termination;
• these provisions create obligations on employees that operate by reference to documents external to the Agreement and that BGC failed to take any steps to provide employees access to these documents during the access period;
• it follows that BGC failed to comply with s.180(2) in this further respect with the consequence that the Agreement was not genuinely agreed to by employees by reason of s.186(2)(a) and 188(a)(i); 52
• BGC’s failure to take all reasonable steps to ensure employees had access to these security processes and protocols cannot be rectified by an undertaking not to enforce or rely on clause 32.1 and clause 32.2. 53
[56] BGC submits that:
• none of the site security processes or procedures is incorporated by reference in the Agreement;
• clauses 32.1 and 32.2 are not designed to impose wide-ranging obligations on employees, enforceable under the Agreement, by incorporation of an array of unspecified site procedures. By the prefacing words "it is a condition of employment that..." clause 32.1 records and restates the nature of the employees' obligations under their respective contracts of employment. 54 BGC relies on Broadsword Marine Contractors Pty Ltd v MUA and Ors55(Broadsword) to make good its point.56
[57] The Unions contend that:
• BGC did not elect to specify in the Agreement (as many agreements do) that the site processes and procedures referred to in clause 32.1 were not to apply as terms of the Agreement. It follows that the policies and procedures to which clause 32.1 refers are incorporated by reference into the Agreement; and
• BGC’s submission that clause 32.1 is merely descriptive of BGC’s contractual relationship with its employees begs the question why such a term would be included in the Agreement in the first place. Enterprise agreements are intended to establish binding obligations. It is not sustainable to suggest that the term was merely informational. 57
[58] The question whether the policies referred to in each of the abovementioned clauses of the Agreement are incorporated into the Agreement by reference may, for present purposes, be answered by asking whether the provisions of these clauses of the Agreement impose any obligation on employees who are covered by the Agreement to comply with the policies to which reference is made.
[59] In Broadsword I determined that clause 25.1 of that enterprise agreement there in issue, which provides that ‘it is a condition of employment that Employees shall comply with all Occupational Health and Safety policies and procedures’ of the employer, did no more than advise employees that compliance with occupational health and safety policies and procedures is a condition of their employment. It did not render the policies and procedures a term of that agreement. The policy was not in my view incorporated by reference. 58
[60] The full text of that clause is as follows:
“25.1 It is a condition of employment that Employees shall comply with all Occupational Health and Safety policies and procedures of the Company, including the wearing of Personal Protective Equipment (PPE) as required.
25.2 The Company will provide all Employees with work clothing and PPE at commencement of employment. Employees shall maintain and take care of the clothing and PPE at all times. This equipment will be replaced as necessary on a fair wear and tear basis.
25.3 The initial issue of clothing by the Company consists of:
3 x sets of long sleeve shirts:
3 x sets of trousers
2 x sets of overalls
1 x pair of safety boots
1 x set of wet weather gear
1 x sun hat
1 x clear safety glasses
1 x polarised sun glasses
Other PPE as deemed appropriate by the Company”
[61] On a plain reading, no obligation to comply with the policy is imposed by the agreement. The provision is advisory. Such employee obligation as to clothing that the agreement imposes is specified in clause 25.2.
[62] Clause 32.1 of the Agreement read in isolation imposes no obligations. As such on its own, it does not incorporate, by reference, the processes and procedures set out therein.
[63] However clause 32.2 is of a different character. It does not create an obligation under the Agreement to comply with the protocols. It provides that disciplinary action may be taken against an employee who breaches the site protocols. The imposition of disciplinary action is sanctioned by the Agreement in relation to a breach of the site security protocols. Under the Agreement a failure to comply with the site security protocols has disciplinary consequences. Moreover, it seems to me that a dispute concerning whether an employee has breached site security protocols or whether the nature of the disciplinary action imposed is commensurate with or proportional to the nature of the breach, are matters which can give rise to a dispute "about the meaning or application of" the Agreement and may be dealt with in accordance with clause 33 of the Agreement. However, it does not follow that if an agreement sanctions the taking of disciplinary action in relation to breach of the document extraneous to the agreement, there is an obligation created by the agreement to comply with the document and the document is thereby incorporated by reference.
[64] A document that is incorporated by reference in an agreement is a term of the agreement and is enforceable as a term. Where a document is incorporated by reference because an agreement creates an obligation to comply with the document, the obligation to comply is enforceable because it is expressed as such in the agreement. There must be an obligation created by the terms of the agreement to comply with the terms of the document mentioned. Here neither is the case. The site security protocols are not expressly incorporated by reference, nor is compliance mandated by a term of the Agreement. If an employee breaches site security protocols, will that employee have breached the Agreement and be liable to the imposition of a pecuniary penalty? The answer must be no as there is no term of the Agreement imposing such an obligation. The Agreement merely sanctions the taking of disciplinary action for breach of a document extraneous to the Agreement. By that reason alone, it cannot be said that the site security protocols are incorporated by reference into the Agreement.
[65] It follows that BGC was not required to comply with s.180(2) in this regard.
3. The s.180(5) issue – explanation of the terms and effect of the Agreement
[66] The Unions say that for the reasons set out in [87] of the Decision, a higher than usual bar applied to BGC in relation to its obligations under s.180(5). They submit that the following factors also demonstrate that the Agreement was unusual in the context of BGC’s enterprise: 59
• it is complex and contained a raft of provisions vastly different to the current agreements the employees were used to;
• it incorporated an award from an industry in which the employees did not work;
• it incorporated provisions from an award with which the employees had little, if any, experience;
• it contained, for the reasons set out above, a number of indecipherable and ambiguous terms.
[67] BGC says in calling for a "higher than usual bar" for compliance with s.180(5) in this case, the Unions seem to be inviting the Commission to scrutinise BGC's compliance with s.180(5) more rigorously than it normally would. BGC submits that such an approach is unwarranted. Further, it says that that which are reasonable steps in a given case will depend on the context and circumstances. BGC says that in the context of s.180(2), there was no evidence that the employees were operating at any peculiar disadvantage in understanding the terms of the Agreement and their effect. 60
[68] The Unions say that:
• the answers to questions 2.6 - 2.7 of BGC’s Form F17 do not disclose any effort by BGC to ensure that the terms of the Agreement and their effect were explained to employees;
• BGC failed to take all reasonable steps to ensure the terms of the Agreement and their effect were explained to employees; and
• BGC’s Form F17 indicates, wrongly, that there are no provisions of the Agreement less beneficial than the Coal Award and the Mining Award. It was conceded that BGC did not draw the employees’ attention to any provisions of the Agreement less beneficial than the reference awards. 61
[69] BGC says that to the extent that any inaccuracy in a Form F17 may impact upon the Commission's assessment of s.180(5), this must be considered in light of all the relevant evidence. BGC says that employers cannot be expected to be totally objective and knowledgeable, and mistakes and omissions will occur. 62
[70] The Unions say that BGC failed to identify or explain any of the detriments in the Agreement. Having regard to the nature of the Agreement, employees could not have understood its effect without being informed of its numerous detrimental terms. 63 The Unions say as BGC did not comply with s.180(5) of the Act, the Agreement was not genuinely agreed to by the relevant employees and cannot be approved by reason of ss.186(2)(a) and s.188(a)(i).
[71] BGC contends that:
• s.180(5) does not cast such an obligation upon an employer. It says that that sort of comparative exercise with the reference award(s) falls properly within the scope of the BOOT;
• the text of s.180(5) requires an explanation of the meaning and effect of the terms themselves and that to imply a requirement of the employer to take steps to explain terms as compared to other things would set an impossible standard as there would be no end to the potentially relevant comparisons; 64 and
• the Unions’ submission urges a line by line analysis at the explanation stage and that this would strain the natural and ordinary meaning of the words of s.180(5) and would import an obligation unmanageable for most employers. 65
[72] Further, BGC submits that it took reasonable steps to explain the terms of the Agreement and their effect. It says it did this through a combination of communications with relevant employees. 66 BGC says that the totality of the explanatory information provided by BGC as described above was a sufficient explanation as to how the wage rate and rate increase provisions in the Agreement operated (and how they compared with to the 2012 Enterprise Agreements).
[73] BGC submits that the Unions do not identify any specific provisions as "unusual", let alone explain why they should be so considered or why that unusual nature would require the "higher than usual bar". 67 That the Agreement incorporated certain provisions from the Coal Award, an award which did not cover those employees employed at the time the Agreement was made does not mean that BGC had a "higher than usual bar" to explain those terms to that group of employees.68
[74] The Unions say that:
• BGC’s submission that its obligation to take all reasonable steps in relation to the provisions of the Coal Award was somehow diminished or removed because these provisions would have no practical application to the employees who voted on the Agreement speaks volumes about the lack of authenticity and moral authority of the Agreement;
• an employer is not relieved of its obligation to take all reasonable steps to explain the terms of an agreement simply because the agreement incorporates terms from an award from an industry that the employees who vote on the agreement do not work in and have no experience with; 69
• the erroneous assertions by Ms Corrina Tolomei, BGC’s General Manager People, in her statutory declaration that employee pay rates would always be better than the Mining Awardand that there were no terms of the Agreement less beneficial than those in the reference awards showcases that BGC did not take all reasonable steps to explain the terms and effect of the Agreement to the employees; 70 and
• BGC misapprehends the requirement to explain the effect of an agreement and say that if employees are not told how an agreement operates vis-à-vis a reference award, they have no yardstick against which to assess the effect of the agreement and make an informed choice about whether to vote for it. 71
[75] In One Key Workforce (No 1) Flick J gave consideration to the scope and substance of an employer’s obligation under s.180(5) of the Act. 72
[76] Without repeating his Honour’s analysis it seems to me that the following general propositions may be derived from One Key Workforce (No 1). First, the question whether an employer has complied with the obligation in s.180(5) depends on circumstances of the particular case. Secondly, the focus of the enquiry whether an employer has complied with s.180(5) is on the steps actually 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.
[77] 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 takes into account the particular circumstances and needs of the relevant employees. This requires attention to the content of the explanation given. Fourthly, an employer does not fall short of complying with the obligation in s.180(5) merely because an employee does not understand the explanation provided. 73
[78] BGC contends that One Key Workforce (No 1) does not stand in the way of the Commission finding that BGC met its obligations under ss.180(5) and 186(2)(a) of the Act. 74
[79] The Unions argue that consistent with One Key Workforce (No 1), the Commission cannot be satisfied that the relevant employees genuinely agreed to the Agreement in circumstances where employees could not have given their informed consent to the Agreement’s incorporation of the Coal Award and where the bulk of terms and conditions of employment concerning black coal mining were incapable of being known when employees voted on the Agreement. 75
[80] BGC says that:
• there is nothing in the analysis undertaken by Flick J that would evince that BGC failed to comply with s.180(5) of the Act;
• One Key Workforce (No 1) is not authority for the proposition that s.180(5) is to be construed as requiring, in every case, a comparative analysis to be provided to each employee of each agreement term against the reference award(s); 76
• in identifying the deficiencies in the s.180(5) explanatory steps, Flick J found that the employer had merely read out the terms of the Agreement to the relevant employees and had taken no steps to explain the effect of the terms of the Agreement and that the employer had not taken any step to explain the effect of the terms of the Agreement in comparison with the reference award; 77
• at the highest, the reasons contain obiter observations that failing to provide such an explanation could, in a given case, amount to a failure to take all reasonable steps to explain to employees the effect of the terms of the agreement;78
• One Key Workforce (No 1) is distinguishable on its facts to this case;
• the distinction lies in the operation of the words "the effect of those terms" in s 180(5). Insofar as the impugned agreement in One Key Workforce (No 1) had a relevant "effect" in its interaction with an existing industrial instrument applying to those employees, it had the effect of displacing the application of those award terms. In contrast, in the present case, the employees to be covered by the Agreement were subject to the application of existing enterprise agreements;
• insofar as the terms of the Agreement had any relevant "effect" on those employees' existing terms and conditions, it was to displace the application of the terms of those existing agreements; and
• that effect was explained to those employees in considerable detail. 79
[81] The Unions say that Flick J determined that the requirements under s.180(5) depended on the circumstances of the particular case and concluded that “those steps are not satisfied by a person reading – without explanation – the terms of an agreement to an employee”. 80
[82] The Unions say that BGC, unlike One Key Workforce (No 1), did not even read the terms of the Agreement concerning black coal mining to its employees and says that it took no steps whatsoever to say anything about the particular terms of the Agreement insofar as they concerned black coal mining. They say that its complete silence about Schedule A to the Agreement entail that it failed, consistent with Flick J’s reasons at [95], [97] and [102] – [105], to comply with s.180(5).81 The Unions say that BGC took no steps to explain that employees were being asked to approve an Agreement that did not comply with the BOOT—a marked change from their present agreements which provided terms and conditions well in excess of theMining Award. Further, the Unions say that BGC also misapprehended the terms and effect of the Agreement, meaning it could not have taken all reasonable steps to explain the terms of the Agreement and their effect. 82
[83] The Unions say that:
• an employer is not relieved from taking all reasonable steps to explain to its employees the terms and effect of the terms of an agreement where that agreement contains numerous detrimental provisions as compared to relevant reference awards if employees are currently covered by an enterprise agreement. 83 What ‘all reasonable steps to explain’ requires depends on the circumstances of the particular case; and
• where employees are being asked, in effect, to endorse going from an agreement with terms well in excess of the relevant reference award to one that, as BGC belatedly concedes, leaves them worse off as compared to the relevant reference award, it is unsustainable to contend that an employer is not obliged to say anything about this to its employees before it can discharge its obligation under s180(5). 84
[84] The Unions submit that BGC identified none of the raft of provisions of the Agreement that were less beneficial than the reference awards or the NES. They submit that in the circumstances of this particular workforce and this Agreement, this was a reasonable step which ought to have been taken. The Unions say that it cannot be said that it would have been particularly onerous for a company with BGC’s resources, access to human resources and industrial relations expertise to have done so. 85
[85] That the content of the explanation given is an important consideration in assessing whether all reasonable steps were taken for the purposes of s.180(5) is made clear by the Full Court of the Federal Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union 86 (One Key Workforce (No 2)). In this regard, the Full Court made the following observations about the Commission’s function in considering under s.188(a)(i) whether it is satisfied that the employer has complied with s.180(5):
“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) 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 AustralianIndustrial Relations Commission (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.” 87
[86] I accept BGC’s contentions that it should not be required to overcome a “higher than usual bar” in respect of the s.180(5) obligation. But s.180(5) is concerned with the taking of all reasonable steps to explain. How many steps and the content of those steps will necessarily depend on the circumstances. Some employers may, by reasons of the prevailing circumstances, need to take more or fewer steps than other employers with different agreements facing different circumstances. The steps which may in a given case be required by “all reasonable steps” is be assessed by reference to the circumstances of the particular case.
[87] I also accept that 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 an agreement and the relevant reference instrument in circumstances where an existing enterprise agreement, not a reference instrument, applies to the employees in their employment with the employer. But as I have already stated, 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. That was the case at the relevant time that explanations were given vis-à-vis the 2012 Enterprise Agreements and the Mining Award, it would continue to be so in relation to the Agreement, if the Agreement is approved by the Commission. That is the effect of an operative enterprise agreement, save in circumstances where an agreement itself incorporates a modern award, but those terms operate in relation to relevant employees as terms of the agreement. Here there was an additional circumstance, the incorporation of the identified provisions of the Coal Award. These were new provisions to be introduced into the Agreement, which were not part of the 2012 Enterprise Agreements and the Coal Award did not cover the relevant employees.
[88] The relevant employees to be covered by the Agreement were at the relevant time, subject to the application of existing enterprise agreements. Insofar as the terms of the Agreement would have had any relevant effect on existing terms and conditions, it was to displace the application of the terms of the existing agreements. That effect was explained to those employees in considerable detail, in particular as set out in the comparative table. 88
[89] Further, while any inaccuracy in a Form F17 lodged by BGC may impact upon my assessment of whether there has been compliance with s.180(5), that assessment is not conducted in a vacuum;. Rather, it is undertaken in light of all the relevant evidence about the actual steps taken by BGC to explain the terms of the Agreement, and the effect of those terms. I accept that employers, or more properly those completing a Form F17, cannot be expected to be completely objective and absolutely knowledgeable, and as a consequence mistakes and omissions in the information provided in a Form F17 will occur. It would be a different matter if the errors made in the Form F17 were communicated to relevant employees when the employer was taking steps to explain the terms of the agreement, and the effect of those terms to those employees. But there is no suggestion in the evidence that that occurred here. Nor, without more, am I prepared to infer that it occurred.
[90] In making her Form F17 declaration Ms Tolomei included a statement to the effect that the Agreement's escalation clause meant that rates of pay under the Agreement would always be "better than rates in the Mining Award". It appears thatthe effect of the escalation clause, which is, clause 7.3 of the Agreement, is to ensure that the Agreement rates do not fall below those in the Mining Award. The explanation given to employees contained in the comparison table was that: “Base Hourly Rates of Pay are based on minimum wage rates in the Mining Industry Award. Compensation for the applicable Hourly Rate of Pay and any applicable allowances, overtime payments and loadings, may be given by payment of a composite hourly rate of pay which is higher than the applicable Hourly Rate of Pay for a particular Employee. In any period where the composite hourly rate paid to an Employee under this clause exceeds the minimum amount otherwise payable under the Agreement, any additional amounts payable under the Agreement will be absorbed, and may be set off against, the composite hourly rate. The composite hourly rate can be paid as a flat hourly rate for all hours worked. ”89 It also provided the “Base Hourly Rate of Pay will increase from time to time if this is necessary to ensure that it is no less than the applicable Award wage rate”.90
[91] There was no evidence and it was not put to Ms Tolomei that she made any statement to the effect as set out in the Form F17 declaration to relevant employees. In these circumstances and taking into account the Comparison Table 91 provided by BGC to relevant employees prior to the start of the access period (which appears to make clear the operation of the escalation clause), there is no proper basis to infer that Ms Tolomei made any such statement, or that relevant employees otherwise misunderstood the operation of that clause. The same point may be made in respect of the second identified inaccuracy, namely the answer given to question 3.5 of the Form F17 declaration.
[92] To the extent that the Unions rely on the decision in Construction, Forestry, Mining and Energy Union v Shamrock Civil Pty Ltd 92 in support of their contention, that decision does not and cannot establish a decision rule as to the consequences of misstatements in an employer’s statutory declaration. The significance of the misstatement will depend on the circumstance including, importantly, that which was actually communicated to the relevant employees. Here it is apparent that notwithstanding Ms Tolomei’s declaration, the information actually communicated to relevant employees was accurate.
[93] With the exception of the terms of the Coal Award incorporated in the Agreement by Schedule A thereof, I would otherwise be satisfied that BGC took all reasonable steps to explain the terms of the Agreement and their effect to the relevant employees. In my opinion, BGC did this through a combination of communications with relevant employees. The evidence is that it did so during return to site meetings, pre-shift meetings and consultative committee meetings.93 It did so on an ad hoc basis through discussions with individual employees. It did so through a series of FAQ documents.94 It also did so by providing to employees the Final Information Pack. This included detailed tables comparing the terms of the Agreement and the 2012 Enterprise Agreements, the Reference Document, and information about the Preserved Conditions Contracts.95
[231] The application of the BOOT requires an overall assessment to be made. This requires the identification of terms which are more beneficial for an employee, terms which are less beneficial, and an overall assessment of whether an employee would be better off under the agreement.216 Where the terms required to be compared bear directly upon the remuneration of employees, the assessment will largely be mathematical. However, the position becomes more complex when an agreement contains provisions more beneficial to or not contained in the reference instrument, conferring entitlements to non-monetary benefits, benefits which are accessible at the employee’s election, or monetary benefits which are contingent upon the occurrence of specified events. The same observation may be made when there are non-monetary contingent detriments in an Agreement which are not also contained in or are more onerous than the reference instrument. While it is necessary to take such entitlements into account in the BOOT assessment, ascertaining the value they are to be assigned may be a difficult task. This difficulty was adverted to in the Full Bench decision in National Tertiary Education Industry Union v University of New South Wales217 in the following terms:
“There is an obvious problem of comparing apples with oranges when it comes to including changes to non-monetary terms and conditions into the ‘overall’ assessment that is required by the BOOT. In such circumstances the Tribunal must simply do its best and make what amounts to an impressionistic assessment, albeit by taking into account any evidence about the significance to particular classes of employees covered by the Agreement of changes to non-monetary terms that render them less beneficial than the equivalent non-monetary term in an award.” 218
[232] This issue arose for consideration in Duncan Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi-Lo 219(Hart), albeit in the limited context of whether benefits of these types were to be assigned sufficient value to outweigh detriments which the Full Bench had identified for certain categories of employees in respect of direct remuneration.
[233] An assumption cannot readily be made that non-monetary or contingent entitlements in an agreement (and by analogy non-monetary or contingent detriments) have the same value to all employees, because that value may differ depending upon the personal circumstances of each individual employee. In some cases, it may be possible to precisely identify the categories of employees who do and do not benefit from a particular entitlement. In other cases, such as, for example, flexibility in working hours or time off in lieu of overtime, it will not be possible to precisely identify who will benefit, although it may be possible to make some broad generalisations. A contingent benefit, such as enhanced redundancy pay, may provide a potential benefit for most or all employees, but an assessment will need to be made about the likelihood of that benefit crystallising during the period in which the agreement for which approval is sought is likely to remain in operation. This is true also of a contingent detriment as in the case of a reduced redundancy benefit. In all cases, even where the beneficiary of an enhanced entitlement in an agreement may be identifiable, it is likely to be difficult to assign any monetary value to the entitlement. However, unlike a contingent benefit which only applies to some employees and thus may provide little assistance in assessing the position of “each” employee vis-à-vis the BOOT, a contingent detriment need only to be shown to affect one employee or prospective employee for it to affect the assessment of whether an Agreement passes the BOOT.
[234] As I have already stated the detriments identified in the Decision raises concerns that the Agreement does not pass the BOOT. I deal with the question of undertakings below.
Conclusion
[235] Save as indicated above, I am satisfied that the other relevant statutory pre-requisites for the approval of the Agreement in ss. 186 and 187 have been met. It was not contended otherwise. However, for the reasons given I am not satisfied:
• that the Agreement has been genuinely agreed to by the employees covered by the Agreement (s.186(2)(a)); or
• that the terms of the Agreement do not contravene s.55 (s.186(2)(c)); or
• that the Agreement passes the better off overall test (s.186(2)(d)).
[236] Each of the concerns identified in this decision about each of the above matters is amenable to undertakings as s.190(1) makes clear. Whether any undertakings given are to be accepted so that the Agreement may be approved with those undertakings will be a matter which will turn upon the terms of the undertakings and the effect of the statutory limitations on undertakings set out in s.190. Although it is plainly possible to have undertakings directed to concerns about s.186(2)(a), it must be said in fairness to BGC that it will be a difficult task to frame an undertaking directed to that concern, remembering that the undertakings, if accepted, become enforceable terms of the Agreement. Although BGC had proposed some undertakings concerning the BOOT, I consider that it is more appropriate that BGC be given an opportunity to provide the totality of any undertakings it proposes so that the undertakings, both individually and as a whole, can be assessed against the statutory criteria which will govern my discretion as to whether the undertaking should be accepted.
[237] I therefore propose to give BGC a period of 14 days within which to provide any undertakings it wishes to consider and to seek the views of any bargaining representatives. If BGC requires a longer period than the 14 days then it should contact my chambers with such a request before the 14 day period has expired.
DEPUTY PRESIDENT
Appearances:
Mr R Dalton, Counsel with Mr A Pollock, Counsel for BGC Contracting Pty Ltd.
Mr P Boncardo, Counsel for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), The Australian Workers’ Union and the Construction, Forestry, Maritime, Mining and Energy Union.
Hearing details:
18 July.
2017.
Melbourne with Video Link to Perth, Sydney and Adelaide.
19 September.
2017.
Perth with Video Link to Adelaide.
16 November.
2017.
Sydney with Telephone connections to parties.
10 April.
2018.
Melbourne with Video Link to Perth and Sydney.
Written submissions:
Unions’ Outline of Submissions dated 11 August 2017
Applicant’s Outline of Submissions dated 5 September 2017
Unions’ Outline of Submissions in Reply dated 13 September 2017
Unions Outline of Submissions on CFMEU v One Key Workforce [2017] FCA 1266], CFMEU v Thiess Pty Ltd [2017] FCAFC 179 and the witness statement of Mr G Woods dated 24 November 2017
Applicant’s Outline of Submissions on CFMEU v One Key Workforce [2017] FCA 1266], CFMEU v Thiess Pty Ltd [2017] FCAFC 179 and the witness statement of Mr G Woods dated 4 December 2017
Unions Outline of Submissions in Reply on CFMEU v One Key Workforce [2017] FCA 1266], CFMEU v Thiess Pty Ltd [2017] FCAFC 179 and the statements of Mr G Woods dated 11 December 2017
Applicant’s Outline of Submissions on ALDI Foods Pty Limited v Shop, Distributive and Allied Employees Association [2017] HCA 53 dated 22 January 2018
Unions Outline of Submissions on ALDI Foods Pty Limited v Shop, Distributive and Allied Employees Association [2017] HCA 53 dated 29 January 2018
Applicant’s Outline of Submissions in Reply on ALDI Foods Pty Limited v Shop, Distributive and Allied Employees Association [2017] HCA 53 dated 2 February 2018
Applicant’s Outline of Submissions on Construction, Forestry, Mining and Energy Union v Shamrock Civil Pty Ltd [2018] FWCFB 1772 dated 4 April 2018
Unions Outline of Submissions Construction, Forestry, Mining and Energy Union v Shamrock Civil Pty Ltd [2018] FWCFB 1772 dated 5 April 2018
Applicant’s Outline of Submissions on Teys Australia Beenleigh Pty Ltd v The Australasian Meat Industry Employees Union [2016] FCAFC 122 dated 20 April 2018
Unions Outline of Submissions on Teys Australia Beenleigh Pty Ltd v The Australasian Meat Industry Employees Union [2016] FCAFC 122 dated 30 April 2018
Applicant’s Outline of Submissions on One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 dated 1 June 2018
Union’s Outline of Submissions on One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 dated 1 June 2018
Printed by authority of the Commonwealth Government Printer
<PR601089>
1 [2017] FWC 852
2 [2017] FWCFB 2741 at [57] – [60]
3 [2017] FCA 1266
4 [2017] FCAFC 179
5 [2018] FWCFB 1412
6 BGC Submissions dated 5 September 2017 at [3], Supplementary AB1099 at [3]
7 Ibid at [4], Supplementary AB1100 at [4]
8 Ibid at [2], Supplementary AB1099 at [2]
9 [2016] FWCFB 3048
10 BGC Submissions dated 5 September 2017 at [14], Supplementary AB1102 [14]
11 Ibid at [15], Ibid at [15]
12 Ibid at [16], Ibid at [16]
13 Ibid at [17], Ibid at [17]
14 Unions’ Submissions in reply dated 13 September 2017 at [2], Supplementary AB1140 at [2]
15 See clause 3 of the Agreement
16 As in force on 25 June 2009; See s. 40A of the Act
17 See Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’ Union [2016] FCAFC 122 at [26]
18 Unions’ Submissions dated 30 April 2018 at [11] and BGC’s Submissions dated 20 April 2018 at [10] – [12]
19 [2016] FCAFC 122
20 Unions’ Submissions dated 11 August 2017 at [8], Supplementary AB1052 at [8] and BGC’s Form F17, AB682 at Q 2.4
21 Exhibit B2, AB680 - AB701. The Final Information Pack was sent to employees between 23 May and 27 May 2016: see AB682 - 683 at Q 2.4 – Q 2.6. The vote commenced on 8 June 2016: see AB684 at Q 2.8
22 Outline of Submissions dated on 8 September 2016 at [24] - [28] (see AB733 - AB734) and Attachment 1 and Chronological Bundle at 0656. The link in the Reference Document to the Modern Awards is no longer valid since the Commission updated its website in July 2016 - after the application for approval was filed (see Outline of Appellant's Submissions dated on 20 April 2017 (Appeal Submissions) at [5] and Attachment 2)
23 Unions’ Submissions dated 11 August 2017 at [9], Supplementary AB1052 at [9]
24 Ibid at [10], Ibid at [10]
25 (2010) 196 IR 155
26 Unions’ Submissions dated 11 August 2017 at [15], Supplementary AB1053 at [15]
27 [2016] FWCFB 7057
28 Unions’ Submissions dated 11 August 2017 at [13], Supplementary AB1053 at [13]
29 Ibid at [16], Supplementary AB1054 at [16]
30 Ibid
31 Ibid
32 Ibid at [18], Supplementary AB1054 at [18]
33 Ibid at [19], Ibid at [19]
34 Unions’ Submissions dated 11 August 2017 at [20], Supplementary AB1055 at [20]
35 BGC’s Submissions dated 5 September 2017 at [20], Supplementary AB1103 at [20]
36 [2017] FWCFB 4001
37 [2016] FWCFB 7057
38 (2011) 210 IR 244
39 BGC’s Submissions dated 5 September 2017 at [22], Supplementary AB1104 at [22]
40 Ibid at [23], Ibid at [23]
41 Ibid at [23a], Supplementary AB1104 – AB1105 at [23a]
42 Ibid at [23b], Supplementary AB1105 at [23b]
43 Ibid at [23c], Ibid at [23c]
44 Ibid at [24], Ibid at [24]
45 Ibid at [25], Supplementary AB1105 – AB1106 at [25]
46 See The Maritime Union of Australia v Northern Stevedoring Services Pty Ltd [2016] FWCFB 1926 and Bluescope Steel Ltd v The Australian Workers’ Union, New South Wales (2004) 137 IR 176 at [67]-[71]
47 BGC’s Form F17, AB682 at Q 2.4
48 Ibid
49 Ibid
50 AB261 - AB262, Transcript PN2073 - PN2077
51 AB92 - AB93, Transcript PN261 - PN265
52 Unions’ Submissions dated 11 August 2017 at [33], Supplementary AB1057 at [33]
53 Ibid at [34], Ibid at [34]
54 BGC’s Submissions dated 5 September 2017 at [30], Supplementary AB1107 at [30]
55 [2015] FWC 6627
56 BGC’s Submissions dated 5 September 2017 at [31], Supplementary AB1107 at [31]
57 Unions’ Submissions in reply dated 15 September 2017 at [17] – [20], Supplementary AB1143 – AB1144 at [17] – [20]
58 [2015] FWC 6627 at [22]
59 Unions’ Submissions dated 11 August 2017 at [101], Supplementary AB1066 – AB1067 at [101]
60 BGC’s Submissions dated 5 September 2017 at [34], Supplementary AB1108 at [34]
61 Union’s Submissions dated 11 August 2017 at [104], Supplementary AB1067 at [104]
62 BGC’s Submissions dated 5 September 2017 at [43], Supplementary AB1110 at [43]
63 Unions’ Submissions dated 11 August 2017 at [111], Supplementary AB1069 at [111]
64 BGC’s Submissions dated 5 September 2017 at [38], Supplementary AB1109 at [38]
65 Ibid at [40], Supplementary AB1110 at [40]
66 Ibid at [41], Ibid at [41]
67 BGC’s Submissions dated 5 September 2017 at [35], Supplementary AB1108 at [35]
68 Ibid at [36], Ibid at [36]
69 Unions’ Submissions in reply dated 15 September 2017 at [23], Supplementary AB1145 at [23]
70 Ibid at [25], Ibid at [25]
71 Ibid at [26], Ibid at [26]
72 See in particular [2017] FCA 1266 at [94] – [109]
73 This will of course depend on the circumstances of each case, thus an employer who takes steps to explain the terms of an Agreement and the effect of those terms in English to a workforce that does not speak or has difficulty in comprehending English will unlikely have taken reasonable steps
74 BGC Submissions dated 4 December 2017 at [2]
75 Unions’ Submissions dated 11 December 2017 at [3]
76 BGC Submissions dated 4 December 2017 at [4]
77 Ibid at [6]
78 Ibid at [7]
79 Ibid at [8]
80 Unions’ Submissions dated 11 December 2017 at [5]
81 Ibid at [6]
82 Ibid at [7]
83 Ibid at [8]
84 Ibid
85 Ibid at [10]
86 [2018] FCAFC 77
87 Ibid
88 Exhibit B2 AB683, Form F17- Statutory Declaration of Ms Corrina Tolomei at Q 2.6; Supplementary AB1236 - AB1261
89 Supplementary AB1244 (middle column, middle cell)
90 Ibid
91 For example see Supplementary AB1503
92 [2018] FWCFB 1772, see particularly [31] – [38]
93 Exhibit B1 AB609 - AB614, Witness Statement of Mr Tario Ruwiza Statement at [16] - [49]. See also the briefing note from Adrian Swarbrick (BGC Project Manager) to managers outlining the requirements for explaining the Agreement to those on site (Chronological Bundle at 0088)
94 Exhibit B1 AB611 - AB612, Witness Statement of Mr Tario Ruwiza Statement at [29] - [31]
95 Exhibit B2 AB683, Form F17- Statutory Declaration of Ms Corrina Tolomei at Q 2.6; Supplementary AB1236 -AB1261
96 Transcript (9 September 2017) at PN524
97 The Unions sought to rely on the statement of Mr Gary Wood (CFMMEU WA District Secretary) which asserted particular matters about the relevant black coal mining experience of employees and BGC’s involvement in black coal mining. BGC opposed the admission of the statement. I am content to include it in the materials but simply observe that it is substantially hearsay and adds little to my observation that there is an absence of evidence about the extent of any black coal mining experience reposed in the relevant employees
98 Transcript (9 September 2017) at PN525
99 Ibid at PN529 – PN543 and AB609 and AB1262
100 Unions’ Submissions dated 11 August 2017 at [23], Supplementary AB1055 at [23]
101 Ibid at [25], to the extent the Unions’ 11 August 2017 Submissions at [21]-[28] suggest that it was not possible for BGC to comply with s.180(2) because the Agreement incorporated the Coal Award at Commencement Date, that submission is no longer relied on (Unions’ Submissions dated 30 April 2018 at [14]
102 BGC’s Submissions dated 5 September 2017 at [27], Supplementary AB1106 – AB1107 at [27]
103 Unions’ Submissions in reply dated 15 September 2017 at [14] – [16], Supplementary AB1143 at [14] – [16]
104 Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2016] FCAFC 122 at [30]
105 [2015] FWCFB 2192 at [46]
106 Ibid at [45]
107 [2017] FWCFB 584
108 [2018] FCAFC 77
109 Ibid at at [122] – [178]
110 Unions Submissions on One Key Workforce Pty Ltd v CFMEU dated 1 June 2018 at [6]
111 [2018] FCAFC 77 at, for example see [141], [142] and [156]
112 Unions Submissions on One Key Workforce Pty Ltd v CFMEU dated 1 June 2018 at [18.1]
113 Ibid at [18.2]
114 Ibid at [18.3]
115 Ibid at [18.4]
116 Ibid at [18.5]
117 Applicant’s Short Note on One Key Workforce Pty Ltd v CFMEU dated 1 June 2018 at [2]
118 Ibid at [4]
119 Ibid at [5]
120 Ibid at [8]
121 Ibid at [9] and [11]
122 BGC’s Submissions dated 5 September 2017 at [69], Supplementary AB1115 [69]
123 Ibid [67] – [68], Supplementary AB114 at [67] – [68]
124 Unions’ Submissions dated 11 August 2017 at [70] – [72], Supplementary AB1063 at [70] – [72]
125 Ibid at [73], Ibid at [73]
126 Ibid at [74], Ibid at [74]
127 Ibid at [75] – [76], Ibid at [75] – [76]
128 BGC’s Submissions dated 5 September 2017 at [69] – [70], Supplementary AB1115 at [69] – [70]
129 Unions’ Submissions in reply dated 15 September 2017 at [40], Supplementary AB1150 at [40]
130 Unions’ Submissions dated 11 August 2017 at [78], Supplementary AB1064 at [78]
131 Ibid at [80], Ibid at [80]
132 Ibid at [81] – [85], Ibid at [81] – [85]
133 BGC’s Submissions dated 5 September 2017 at [73], Supplementary AB1115 – AB1116 at [73]
134 Unions’ Submissions dated 11 August 2017 at [87] – [91], Supplementary AB1065 at [87] – [91]
135 Ibid at [92], Ibid at [92]
136 BGC’s Submissions dated 5 September 2017 at [75], Supplementary AB1116 at [75]
137 Unions’ Submissions dated 11 August 2017 at [94] – [98], Supplementary AB1065 – AB1066 at [94] – [98]
138 BGC’s Submissions dated 5 September 2017 at [77], Supplementary AB1116 at [77]
139 [2016] FWC 3048
140 Unions’ Submissions dated 11 August 2017 at [118], Supplementary AB1070 at [118]
141 Unions’ Submissions in reply dated 15 September 2017 at [45], Supplementary AB1151 at [45]
142 Ibid at [121], Supplementary AB1071 at [121]
143 Ibid at [128], Supplementary AB1072 [128]
144 Ibid at [131], Supplementary AB1073 at [131]
145 BGC’s Submissions dated 5 September 2017 at [80], Supplementary AB1117 at [80]
146 [2017] FWCFB 2741
147 Unions’ Submissions dated 11 August 2017 at [133], Supplementary AB1073 [133]
148 Ibid at [134], Ibid at [134]
149 [2018] FCAFC 77at [142]
150 Supplementary AB1074 at [136]
151 Ibid at [137]
152 BGC’s Submissions dated 5 September 2017 at [81] – [87], Supplementary AB1117 – AB1118 at [81] – [87]
153 AB488
154 Ibid
155 Ibid
156 AB490
157 Ibid
158 See AB171 – AB172 at PN1149 – PN1151; AB182 at PN1249 – PN1250; AB188 at PN1308; AB207 – AB208 at PN1526 – PN1549; AB399 – AB400 at [8] – [9]; AB424 at [11]; AB439 at [95]; AB577; AB610 at [19] – [21]
159 Unions’ Submissions dated 11 August 2017 at [138], Supplementary AB1074 at [138]
160 Ibid at [140], Ibid at [140]
161 BGC’s Submissions dated 5 September 2017 at [90], Supplementary AB1119 at [90]
162 Ibid at [91] – [92], Ibid at [91] – [92]
163 Unions’ Submissions dated 11 August 2017 at [141], Supplementary AB1074 – AB1075 at [141]
164 BGC’s Submissions dated 5 September 2017 at [93], Supplementary AB1119 – AB1120 at [93]
165 Unions’ Submissions in reply dated 15 September 2017 at [48], Supplementary AB1152 at [48]
166 Unions’ Submissions dated 11 August 2017 at [145], Supplementary AB1075 at [145]
167 Ibid
168 Ibid at [147], Supplementary AB1076 at [147]
169 Ibid at [148], Ibid at [148]
170 Ibid at [150], Ibid at [150]
171 BGC’s Submissions dated 5 September 2017 at [95] – [96], Supplementary AB1120 at [95] – [96]
172 Canavan Building Pty Ltd [2014] FWCFB 3202; 244 IR 1 at [36]; Australian Federation of Air Pilots v HNZ Australia Pty Ltd[2015] FWCFB 3124 at [29];Construction, Forestry, Mining and Energy Union v CSRP Pty Ltd[2017] FWCFB 2101 at [33]
173 Unions’ Submissions dated 11 August 2017 at [45], Supplementary AB1059 at [45]
174 Ibid at [46] – [49], Supplementary AB1059 – AB1060 at [46] – [49]
175 Unions’ Submissions in reply dated 15 September 2017 at [32], Supplementary AB1148 at [32]
176 BGC’s Submissions dated 5 September 2017 at [50], Supplementary AB111 at [50]
177 Ibid at [52] – [53], Ibid at [52] – [53]
178 See for example s.86 (Annual Leave), s95 (paid personal leave), s.106 (paid compassionate leave), s.111 (community service leave)
179 BGC’s Submissions dated 5 September 2017 at [53] – [55], Supplementary AB1111 - AB1112 at [53] – [55]
180 Ibid at [55], Supplementary AB1112 at [55]
181 Unions’ Submissions dated 11 August 2017 at [56] – [59], Supplementary AB1061 at [56] – [59]
182 BGC’s Submissions dated 5 September 2017 at [58], Supplementary AB1112 – AB1113 at [58]
183 Unions’ Submissions dated 11 August 2017 at [60], Supplementary AB1061 at [60]
184 Unions’ Submissions in reply dated 15 September 2017 at [34], Supplementary AB1148 at [34]
185 BGC’s Submissions dated 5 September 2017 at [61], Supplementary AB1113 at [61]
186 Canavan Building Pty Ltd [2014] FWCFB 3202; 244 IR 1 at [36]; Australian Federation of Air Pilots v HNZ Australia Pty Ltd[2015] FWCFB 3124 at [29];Construction, Forestry, Mining and Energy Union v CSRP Pty Ltd[2017] FWCFB 2101 at [33]
187 Unions’ Submissions dated 11 August 2017 at [61] – [63], Supplementary AB1061 – AB1062 at [61] – [63]
188 BGC’s Submissions dated 5 September 2017 at [62], Supplementary AB1113 at [62]
189 [2017] FWCFB 38
190 Ibid at [55] - [56]
191 [2018] FWCFB 139
192 Ibid
193 Unions’ Submissions dated 11 August 2017 at [64] – [66], Supplementary AB1062 at [64] – [66]
194 BGC’s Submissions dated 5 September 2017 at [64], Supplementary AB1113 at [64]
195 Unions’ Submissions dated 11 August 2017 at [36], Supplementary AB1057 at [36]
196 Ibid at [37], Ibid at [37]
197 Ibid at [38], Supplementary AB1057 – AB1058 at [38]
198 Ibid at [39], Supplementary AB1058 at [39]
199 Ibid [40] – [41], Ibid at [40] – [41]
200 Ibid at [42], Supplementary AB1085 – AB1089 at [42]
201 Ibid at [44], Supplementary AB1059 at [44]
202 BGC’s Submissions dated 5 September 2017 at [98], Supplementary AB1120 – AB1121 at [98]
203 Ibid at [101], Supplementary AB1121 at [101]
204 Ibid at [104], Ibid at [104]
205 Ibid at [105], Ibid at [105]
206 Solar Systems Pty Ltd [2012] FWAFB 6397 at [11]; Hart v Coles Supermarkets Australia Pty Ltd [2016] FWCFB 2887 at [6], [15]; Shop, Distributive and Allied Employees Association v Beechworth Bakery [2017] FWCFB 1664 at [11]
207 Macquarie Online Dictionary
208 [2016] FWCFB 3048 at [36]
209 [2015] FCAFC 16
210 [2017] HCA 53 at [84]
211 National Tertiary Education Union v La Trobe University [2015] FCAFC 142 at [108] per White J
212 Re Armacell Australia Pty Ltd (2010) 202 IR 38 at 49 [41]
213 [2017] HCA 53 at [99]
214 [2017] FWCA 852 at [218] – [295]
215 BGC’s Submissions dated 5 September 2017 at [98] – [101], Supplementary AB1121 at [98] – [101]
216 ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53 at [92]; Armacell Australia Pty Ltd [2010] FWAFB 9985 at [41]
217 [2011] FWAFB 5163
218 Ibid at [96]
219 [2016] FWCFB 2887
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