BMD Urban Pty Ltd
[2024] FWCA 3645
•18 OCTOBER 2024
| [2024] FWCA 3645[Note: An appeal pursuant to s.604 (C2024/7593) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
BMD Urban Pty Ltd
(AG2024/1084)
BMD URBAN PTY LTD ENTERPRISE AGREEMENT 2023
| Building, metal and civil construction industries | |
| COMMISSIONER SIMPSON | BRISBANE, 18 OCTOBER 2024 |
Application for approval of the BMD Urban Pty Ltd Enterprise Agreement 2023
On 4 April 2024, an application was made for approval of an enterprise agreement known as the BMD Urban Pty Ltd Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to section 185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by BMD Urban Pty Ltd (the Applicant / BMD). The Agreement is a single enterprise agreement.
Procedural history
On 11 April 2024, the Construction, Forestry and Maritime Employees Union (CFMEU) sought documents relating to the proposed agreement and to be heard. Redacted documents were provided the same day.
There are three individual bargaining representatives and one HSR representative who were involved in the bargaining for the Agreement. Each provided a Form F18A providing their views and concerns about the approval of the Agreement. The Applicant also engaged Drayton’s Workplace Consulting Pty Ltd (Drayton’s) to assist it and advise on the bargaining process.
The matter was initially listed for hearing on 3 June 2024.
On 29 May 2024, the Applicant sought an adjournment to allow one of its witnesses, Ms Morgan Moy, a reasonable period of convalescence after having a baby and to allow it to be legally represented. The representative selected was also unavailable on the listed hearing date. On 31 May 2024, the CFMEU opposed the granting of legal representation. Directions were set for the filing of further materials on the issue of representation.
On 19 June 2024, I issued a decision granting the Applicant leave to be legally represented in the matter.[1] On 1 July 2024, the CFMEU appealed this decision. On 26 August 2024, the appeal was dismissed.[2]
The matter was relisted for hearing on 24 and 25 September 2024.
On 18 September 2024, the CFMEU submitted an application for the production of documents of the Applicant. I sought the Applicant’s view before making a determination. Having reviewed both parties’ submissions, and given the Applicant had consented to providing many of the documents sought without the need for the Order to be issued, I directed that the Applicant provide the consented documents and declined to order the production of any contract of service between Drayton’s and the Applicant.
On 20 September 2024, the CFMEU submitted an application for the attendance of Mr Greg Power as a witness for the hearing. I sought the Applicant’s views, and after reviewing the submissions, on 23 September 2024, determined that his evidence would not be sufficiently relevant to compel his attendance.
On 23 September 2024, the CFMEU appealed both interlocutory decisions. In further correspondence later that day, the CFMEU also sought that I recuse myself from the matter.
I heard submissions on the recusal application at the commencement of the hearing on 24 September 2024 and issued an ex-tempore decision given in transcript dismissing the application. The hearing proceeded with witness evidence.
Concerns of the Employee Bargaining Representatives
Earl Le Bas
Mr Earl Le Bas noted in his Form F18A that employees did not support the approval of the Agreement, detailing:
·“sometimes workers performing same job on the same site covered under separate/different EA with different work conditions and rates within.
·Not willing to pay workers that perform tasks at a higher level
·First aid allowance not paid unless first aid is performed, rather than certified to perform
·Voting process not transparent, 3rd party used is related to the employers consultant to the WA, results are not disclosed, national agreement but only reps from Brisbane and Victoria
·NERR process not enforced in Victoria for representative.”
Mr Le Bas also noted that the Form F17 was not provided to the employee bargaining representatives for comment.
In later correspondence, Mr Le Bas provided the following additional concerns:
·“use of 3rd party who is related to the Applicant representative
·The mobile number that sent the voting message see attached, is the same number that is used by Dan Power see attached who has an email address affiliated with Draytons who is the EB consultant for the Applicant and as such is a conflict of interest in this matter, and therefore I have no confidence that the process was fair
·Concerns that the Agreement was a national agreement but was only voted on by employees in Brisbane and Victoria
·…this is a third generation agreement and we have only had bargaining representatives from QLD in the past Enterprise Agreement. As a result of this, we were surprised to hear from the Applicant that this proposed Agreement was going to cover a much broader workforce and geographical area and it was only brought to our attention by the Applicant that the proposed Agreement had this coverage in the past without our knowledge also without any input or conversations from other states or territories covered under the Agreement
·Concerns that the NERR process was not enforced in Victoria – as per the attached statement schedule 2.1 provided by the employer I believe this process has not been followed after having a phone conversation with the Victorian representative.”
Mr Le Bas was called to give evidence in the matter. Mr Le Bas confirmed that he had read and understood the Summary of the Agreement document provided by the Applicant and had voted in the ballot. He also confirmed he had not contacted Ms Moy about any confusion or concerns he had about the Summary of Agreement document despite having her contact details through the access period. He confirmed that no employees had come to him with questions or concerns about the Summary of Agreement document and that he had attended toolbox meetings led by the Applicant.
Wayne Barram
Mr Wayne Barram noted in his Form F18A that employees did not support the approval of the Agreement. In summary, Mr Barram noted that he had called the number from which he received the ballot text message and asked who it was. Mr Barram confirmed it was Mr Dan Power, brother of Greg Power, who had been negotiating the Agreement on behalf of the employer. Mr Barram also mentioned that he was concerned that some votes may have been discarded as there was no “standard time” noted in the ballot message, and some states were in daylight savings time. In Mr Barram’s later submitted witness statement, he confirmed the contents of his Form F18A in more detail and added that after he discovered that Mr Dan Power’s number had been used for the vote, he had called Mr Trent Harvey and Mr Earl Le Bas to tell them.
In his witness statement, Mr Barram went on to submit that as Mr Dan Power is not an unbiased third party, and it cannot be proved that the voting process was secure. Further, he submitted that the vote text message did not contain any authentication process using a PIN, payroll number or date of birth to confirm the recipient and voter was an employee. He submitted that with this in mind, the vote could not be authenticated.
Mr Barram gave evidence at the hearing that he was confused at what the actual outcome of the vote was as he was originally told 70%, then 60-something%, and it was not clear. Mr Barram stated that he was upset that the votes he believed (and had told his colleagues) had been sent to an independent third party had actually been sent to the Applicant’s consultant, which he did not believe was independent. Mr Barram’s evidence was that he was not aware there was a Victorian representative involved in bargaining. Mr Barram’s evidence was that he believed it was not fair that he had been led to believe the voting was sent to an independent party and to later find out that (in his opinion) it was not, and had to go back to his colleagues and inform them. He believed that the lack of disclosure led him to feel misled.
Mr Barram’s evidence was that he was concerned that there was no specification of what time zone the vote was to be conducted within, and held concerns that colleagues in Western Australia for example would not have had the same amount of time to cast a vote, and the lack of clarity could have caused confusion. Ms Moy confirmed in her evidence that the vote was intended to be held between 9:00am 20 March 2024 Queensland time, until 9:00am 21 March 2024 Queensland time.
Mr Barram’s evidence was that toolbox meetings did take place however he had some trouble reading and the supervisor who led the meeting had expected attendees to have read the material. Mr Barram also raised concern that one colleague had had issues with accessing his emails in order to be able to access and read the summary of the Agreement. The supervisor told him to leave it with him to solve, however Mr Barram was not able to confirm that the employee was able to access the document. Mr Barram confirmed his view that the Agreement should not be approved.
Mr Barram confirmed that he voted in the ballot. Mr Barram confirmed that he had told his workmates to vote with their hearts and that it was only after the ballot that he discovered that Drayton’s conducted that ballot. In cross examination he was asked if he was aware if any of the colleagues had been aware that Drayton’s had conducted the vote and confirmed he was not. He was then asked if any colleagues had later come to him to say that they “hadn’t voted with their hearts.” He stated he was not aware of any.
Mr Barram confirmed that he received and read in detail the summary of the Agreement terms. He confirmed he had read it to the best of his ability. He confirmed he had not contacted Ms Moy to ask for clarification or state that he did not understand the summary. He was asked if due to literacy levels of some of the employees a simple voting process was beneficial. He did not agree, and stated that even so, he believed people would have been able to remember their employee number or date of birth. He confirmed that no one had come to him to say they did not understand the text message sent to vote in response.
Trent Harvey
Mr Trent Harvey submitted a Form F18A on 19 April 2024 in which he stated that employees did not support the approval of the Agreement, noting:
·“Employees feel EBA is unfair
·Voting could be too open to being untruthful
·HR just ticked a box in regards to bargaining, but had no intention to change their stance. Employees feel they are not listened to.
·Lack of consultation, as very few numbers are on Urban EBA. Lets of construction EBA workers.
·Saif when working on a constructions job, there is no extra allowances as employees feel jobs priced at Construction EBA rates.
·Allowances and rates are not very clear and no time awarded to representatives to get answers as HR stopped bargaining before questions could be asked.”
Mr Harvey submitted a further Form F18A on 21 May 2024 declaring that he opposed the approval of the Agreement. In summary he said:
·Workers believe the enterprise bargaining agreement is predetermined and the Applicant has no intention to change their stance
·Workers who attended a toolbox meeting stated the person conducting it didn’t seem to care about it, so didn’t provide much information or rushed through
·He attended one toolbox meeting which was specially arranged for him as he had asked why it was not addressed properly by the site team
·He stated that he had been instructed to read the toolbox himself but he had requested all employees under the Agreement hang around after pre-start to go over the toolbox
·Workers felt they couldn’t vote how they actually wanted to as they didn’t know if the bosses could see how they voted and didn’t want to lose their jobs if they voted against the Agreement and the bosses found out
·He confirmed Mr Barram’s evidence that he had been informed of Mr Dan Power’s phone number being used for the vote; and
·He joined the chorus of concern for the use of Mr Dan Power and lack of independent third party to conduct the vote.
Mr Harvey also confirmed that the Form F17 was not provided to the employee bargaining representatives for comment. In separate correspondence to the Commission, Mr Harvey provided further information on his concerns, summarised below as being that:
·The Agreement was unfair
·When raising issues and points, representatives were promptly told by Ms Morgan Moy and Mr Dan Power (of Drayton’s Workplace Consulting) that “BMD must remain competitive in the market”
·The enterprise bargaining agreement is a predetermined idea from HR and voting does not matter
·Concern with how employees were to know who was messaging, and how records were kept
·Not once did he receive a toolbox or any proper correspondence despite working over multiple sites
·Other than a Foreman mentioning it at pre-start, there was no other correspondence
·When questioned about allowances and conditions, the Applicant had stated allowances were included in the hourly rate but had not provided a breakdown of this.
Mr Trent Harvey confirmed at a directions hearing prior to the substantive hearing that he was no longer an employee of the Applicant. He did not attend the hearing to give evidence.
Michael Harvey
Mr Michael Harvey filed a Form F18A in the matter declaring that he opposed the approval of the Agreement. In summary, he said:
·Employees asked for RDOs to be added to the Agreement but were shot down as it was a national agreement and not everyone wanted it
·Employees had no information about the Agreement until February when it (the previous enterprise agreement) ended in December the year prior
·Employees had no opportunity to discuss their future Agreement
·The voting system seemed flawed and he was aware of some employees not getting the message to vote
·He is not a bargaining representative but is a Health and Safety Representative (HSR) who was trying to be a voice for his coworkers
·He was not aware of other state representatives
·He felt there was no “bargaining”, just “one-way traffic”
·There was a lack of consultation information given to employees
·He felt that the Applicant tried to sweeten the Agreement with backpay from February, but the previous Agreement had expired in December, 3 months prior.
Mr Michael Harvey gave evidence at the hearing confirming that he was not a nominated bargaining representative, but a HSR who was invested in the outcome of the Agreement as he had been approached by colleagues with concerns.
Mr Harvey stated that a HR representative from the Applicant, Mr Alex Barr, attended a meeting in Victoria, but Mr Harvey did not feel that the representative listened to any of the concerns raised, did not take notes or absorb any of the requests. Mr Harvey confirmed that he had attended toolbox meetings, but they were very short and were not well attended by employees. Mr Harvey’s evidence was that he could not recall what exactly was said at the meetings as so much time had passed since those meetings took place.
In cross examination, Mr Harvey was asked to confirm that he received the summary of the Agreement sent to all employees. He confirmed he had read it and understood the contents of it prior to voting.
Submissions
The CFMEU’s initial position was in opposition to approving the Agreement as it did not believe the Agreement had been genuinely agreed to. The CFMEU referred to s.188B of the Act, which sets out what is required to be included in the statement of principles on genuine agreement, set out below:
188B Statement of principles on genuine agreement
(1)The FWC must, by legislative instrument, make a statement of principles for employers on ensuring that employees have genuinely agreed to an enterprise agreement.
(2)The FWC must publish the statement on the FWC’s website and by any other means that the FWC considers appropriate.
(3)The statement must deal with the following matters:
(a) informing employees of bargaining for a proposed enterprise agreement;
(b) informing employees of their right to be represented by a bargaining representative;
(c) providing employees with a reasonable opportunity to consider a proposed enterprise agreement;
(d) explaining to employees the terms of a proposed enterprise agreement and their effect;
(e) providing employees with a reasonable opportunity to vote on a proposed agreement in a free and informed manner, including by informing employees of the time, place and method for the vote;
(f) any matter prescribed by the regulations for the purposes of this paragraph;
(g) any other matters the FWC considers relevant.
The CFMEU submitted that the voting method and voting process was not transparent. It noted that there is no mandate on a particular voting method and it is at the discretion of the employer, however, the following were issues the CFMEU took with the process:
(a)the irregularities of the voting process or election or ballot or electronic method;
(b)the voting process was not conducted by an independent third party to ensure impartiality and fairness;
(c)the votes cast were not counted by an independent third party;
(d)no security measures were in place to ensure the right persons voted and to make sure that those voters only voted once;
(e)the virtual voter role had no authentication process with a numeric PIN or payroll number or date of birth so a true valid vote could not be authenticated (voter administration);
(f)employees employed at the time by BMD who would not be covered by the agreement, had in fact voted on the EA - ‘voting process’ described in s.181(1) of the Act and ss.186(3)–(3A) of the Act (relating to coverage);
(g)some employees/workers/people who voted weren’t covered by the classifications in the agreement and those will not be covered by the agreement, for example, managers, supervisors, and administrative staff voted - an enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer (determined by reference to the scope and coverage terms[3]) - Notice to all employees of ballot to approve enterprise agreement of 12 March 2024;
(h)therefore, the enterprise agreement was not “made” by a majority of the employees who cast a valid vote to approve the enterprise agreement;
(i)the method of voting (set of rules) and scrutiny of the process (the counting) was unfair as it did not only involve those employees covered by the agreement and was the result of a conflict of interest;
(j)the employer did not take all reasonable steps to inform employees of the voting time (noting daylight saving time and AWST), place, and method before the start of the access period for the agreement[4] or the voting method to be used[5]; and therefore
(k)the Commission could not be certain that (1) the agreement was made by the employees who will be covered by the agreement to approve the proposed agreement with a majority vote or (2) that a majority vote occurred, nor that a majority of employees cast a valid vote, i.e. a vote to approve the enterprise agreement.[6]
The Applicant relied on the sworn statement of Mr Dan Power and also submitted that Drayton’s implemented measures to ensure both the right persons voted and that those voters only voted once, specifically:
(a)The SMS Ballot was sent only to those employees employed at the time who will be covered by the Enterprise Agreement (Valid Voter);
(b)Each SMS Ballot vote was received from and recorded against a mobile number which was deidentified but nevertheless associated with a Valid Voter (Voter Contact Number);
(c)No more than one (1) vote was received and recorded for each Voter Contact Number.
The CFMEU submitted that the Commission should not rely on any unsworn statements, assertions without documentary evidence, or uncontested statements from the bar table made by the Applicant.
The union went on to contend that the evidence would not satisfy the Commission in the sense referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 at [361] – [362]. That is, a person or persons who were not entitled to do so cast votes in the making of the Agreement, with the result that votes from persons other than those entitled to cast a valid vote were recorded. The union also submitted that the vote result was not able to be properly scrutinised as the ballot results were not provided to the Commission or bargaining representatives.
The Applicant provided a redacted (to all parties) and unredacted (to Chambers only) screenshots of the text message sent to employees and screenshots of each individual vote.
The CFMEU submitted that while the Commission is not bound by the rules of evidence, parties to the application must be able to test the evidence and the source must be identified. It alleged that the Applicant has not provided evidence in a manner able to be examined as large sections of Form F16 and Form F17 provided to the CFMEU as an intervenor and not a party to the bargaining process were redacted.
The union contended that in determining relevance, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact of the probability of the existence of a fact in issue in the proceeding.
The CFMEU submitted that the alleged independent third party that the Applicant engaged to facilitate the ballot process was in fact not independent as it was the Employee Relations Consultant group engaged as a bargaining representative of the Applicant in the bargaining process. Further, the CFMEU argued that a Jones v Dunkel[7] inference should be implemented by the lack of or failure to provide a contract of service, and should weigh in favour of a finding that there was in fact a conflict of interest in hiring Drayton’s as the ballot agent.
The Applicant submitted in response to that the contention so far as it relates to a conflict of interest, an independent third party and an impartial process, is nonsensical in circumstances where the Act permits an employer to conduct a voting process and count a vote itself without independent third party oversight.
The Applicant went on to say that little factual basis had been provided by the Employee Bargaining Representatives and the CFMEU for concluding that a conflict of interest arises from Drayton’s conducting and counting of the vote except to identify the potential existence of a familial relationship and that Drayton’s provides consulting services to the Applicant.
The Applicant relied on the sworn statement of Mr Dan Power of Drayton’s to confirm that:
(a)Drayton’s provides consulting services on commercial terms to the Applicant and the Applicant’s associated entities (Consulting Arrangement).
(b)Drayton’s has an established history of invoicing the Applicant, and being paid by the Applicant, in respect of its consulting services, irrespective of the outcome of a vote to approve an enterprise agreement.
(c)There is an established history of the Consulting Arrangement persisting, unabated, irrespective of the outcome of a vote to approve an enterprise agreement.
(d)Drayton’s, its directors and/or employees, have no familial relationship to the Applicant, its directors and/or employees.
(e)Drayton’s is not an associated entity of the Applicant.
(f)Independent of the Consulting Arrangement, Drayton’s has no relationship with or financial or commercial interest in the Applicant or the Applicant’s associated entities.
The CFMEU submitted that the test of conflict of interest is described in the case of Boardman v Phipps [1967] 2 AC 46, 124 where Lord Upjohn held:
“In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you can imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in a conflict.”
The CFMEU submitted that where a conflict of interest arises private interests may improperly influence the performance of individual or collective official duties and responsibilities comprising integrity, ethical behaviour and trust in the voting process and the making of an enterprise agreement. It went on to contend that an actual conflict of interest means there is a reasonable likelihood of a financial benefit, either direct or indirect, or a personal benefit to BMD or a Contractor or Consulting Company.
Alternatively, a perceived conflict of interest means where a member of the public, who is familiar with the purpose and functions of the Commission and the constraints under which it operates, might reasonably assume that there is a conflict, even if there is not.
The union submitted that, in this case, the relevant persons from the two organisations, being BMD and Drayton’s, are all related to the Power family and therefore there was a conflict in that a business relationship existed, which included a financial interest, personal relationships and/or holding other board positions with organisations with whom the agency might regularly deal.
The CFMEU further referred to the case of Chan v Zacharia (1984) 154 CLR 178 per Deane J at [198] – [199] where it was stated that the scope and objective of the conflict of interest rule is to prohibit the fiduciary from being swayed by considerations of personal interest and misusing their position for personal advantage. The union then referred to the Corporations Act 2001 (Cth) regarding whether an obligation is or is not a fiduciary duty and the differing levels of duties and powers and liability the obligation held.
The union concluded that in considering the totality of the voting process and the duty to avoid a conflict of interest, the Commission cannot be satisfied that the employees had genuinely agreed to the proposed Agreement as the covered employees may not have been chosen in a fair way and that there were voting irregularities as the ballot wasn’t conducted by an independent third party.
Mr Dan Power gave evidence at the hearing. During cross examination he confirmed that there was no contract of service between Drayton’s and BMD, but that Drayton’s provided services on an ad hoc basis to BMD in whatever capacity they required. He stated that he was not aware of a contract of service now, but there may have been one when the business relationship was initially made, some 18 years ago.
Mr Power was asked what the outcome sought as part of the contracting arrangement was – if it was the approval of an Agreement suitable to BMD or to generally assist BMD with the process. He advised that the services provided were assistance but agreed that the contract would likely fall away if there were circumstances where an Agreement was voted down or not approved several times in a row. The union advanced the position that the company therefore has a financial interest in the continuing relationship between BMD and Drayton’s. Mr Power agreed with this to an extent but declined the proposition that Drayton’s would have any reason to ensure that the vote was in BMD’s favour just because of the business relationship.
Mr Power confirmed that the services Drayton’s provided to BMD are common services they provide to all clients. Mr Power was asked if he agreed it was unethical for Drayton’s to have been acting for BMD in the bargaining process and to conduct the ballot as the ballot agent. He disagreed with this and repeated that this service was offered to all of Drayton’s clients. When asked if he had informed the employee bargaining representatives at bargaining meetings that he was not a nominated bargaining representative but merely a consultant there to assist, he said he had not and that would be at the discretion of the client. He was not aware if the Applicant had informed the bargaining representatives of this relationship.
Mr Dan Power was not able to be examined on any fiduciary duties as he was not the owner of Drayton’s.
Mr Power was asked about the conduct of the ballot, how he ensured votes were not counted twice, and how the voters were verified. Mr Power’s evidence was that he was provided a spreadsheet of phone numbers to issue a ballot text message to, and then recorded the vote received in a spreadsheet. His evidence was that once a response was received, even if a second message was received, he did not count the vote twice as he had already recorded a vote against that phone number.
Mr Power was asked about alternative balloting methods including calling a generic number and following prompts to confirm. His evidence was that he was not aware of these other methods and in the years Drayton’s had been providing balloting services he had not considered using them. He was asked if he saw a problem with Drayton’s conducting a ballot of employees where it had acted as a consultant of BMD during the bargaining process and he said he did not.
Ms Morgan Moy, the HR Business Partner of the Applicant who prepared and signed the Form F16 Application and Form F17B Declaration, was also called to give evidence at the hearing.
Ms Moy’s evidence was that she had attended one or two toolbox meetings herself, and was kept appraised of when others had occurred by supervisors running the other meetings. At question 22, the Form F17B outlined the toolbox meeting dates, and the bargaining process undertaken with the employee bargaining representatives.
Ms Moy confirmed that on 12 March 2024, an email was sent to employees with the ballot notice, informing them of the date and method of the ballot. She said employees were encouraged to contact the Applicant with any questions or concerns regarding the ballot process. On 13 March 2024, toolbox meetings were held on each site to notify employees of the upcoming ballot.
Ms Moy confirmed she had not been contacted by any employees with questions or concerns about the content of the Summary of Agreement document distributed to all employees during the access period nor with concerns about the ballot process. She confirmed her email address and phone number were at the bottom of every email she sent regarding bargaining so her view was that she was available and contactable if employees had concerns.
Her evidence on the conduct of the ballot was that she had produced a list of mobile phone numbers from the payroll system, issued an email to employees informing them she would be sending a test text message to confirm all employees were able to receive a message, sent test text messages to those numbers and came across approximately 6 employees whose phone numbers needed to be updated. Once those phone numbers had been updated, she removed the employee names and provided the completed list to Mr Dan Power at Drayton’s on 19 March 2024 to issue the ballot text message on 20 March 2024.
Ms Moy submitted that Drayton’s had been engaged as an independent third-party consultant to conduct an SMS ballot. She was aware that the third party sent the SMS message to all employees via their phones and employees were able to cast their votes by replying “yes” or “no” to approving the Agreement.
Her evidence was that she was then provided a short summary of the result on 21 March 2024, in the form of a table, which stated:
“Yes: 84
No: 40
Total voted: 124
Total sent: 165”
She did not receive the filled-out spreadsheet Mr Power completed and which he later provided in confidence to Chambers, which noted each vote and the phone number from which the vote came. Ms Moy was asked why the Applicant had not completed the vote ballot itself. She stated that she thought that the employees might not have been comfortable submitting their vote that way and so that employees were given a fair and reasonable opportunity to participate in the ballot.
When pressed on the relationship between the Applicant and Drayton’s, she explained that they were not nominated bargaining representatives on behalf of the Applicant but had attended bargaining meetings to assist the company with meeting its obligations. She was clear that her view was that Drayton’s was a third party as it was not an associated entity of the Applicant. Therefore, she submitted that they were independent and able to conduct the ballot as such.
In later examination, she conceded that she could see why some employees might have been concerned about impartiality once they became aware that Drayton’s conducted the ballot. However, she concluded that there was no actual conflict of interest, even if there was a perceived one.
BOOT concerns
The CFMEU also raised initial concerns that the Agreement does not pass the better off overall test (BOOT) because:
·There was no distant work payment equivalent to the Award entitlement;
·The living away from home allowance and overtime meal allowance were less than the Award;
·There is incorrect classification matching between the Agreement and the Award;
·There is a cap on redundancy contributions in that the company’s liability to pay redundancy pay may be offset by the company making payments to a redundancy fund, which mirrors the Award however the Agreement contains a phrase that payments will cease on the employee’s maximum entitlement being reached in payments;
·There is a loss of higher duties payments which is less beneficial than the Award;
On 15 April 2024, the Commission raised matters with the Applicant, seeking further information, submissions or undertakings on apprentice and trainee overtime and shiftwork and averaging provisions.
The Applicant provided an undertaking that the terms and conditions of the Building and Construction General On-site Award 2020 would apply on the apprentice and trainee matter and submitted that working a compacted week is reasonably common in the construction industry and specifically with remote work. An undertaking on averaging was also provided so that the working of the alternative rosters will be by agreement with the relevant employees, to provide consistency with the relevant Award.
The CFMEU stated at the hearing that they did not press the BOOT objections. At the conclusion of the hearing the parties sought a copy of the transcript and an opportunity to file written submissions, which was granted.
The CFMEU submissions in summary stated that notwithstanding that Greg Power did not give evidence, and that the Applicant did not adduce evidence concerning the conflict of interest as asserted in CFMEU submissions, from the evidence before the Commission it was evident to the CFMEU that:
(a)the Applicant has taken all reasonable steps to give the notice of employee representation rights in accordance with s.173(1);
(b)the Applicant has taken all reasonable steps to ensure employees were given or had access to incorporated materials during the access period in accordance with s.180(2);
(c)the Applicant appropriately explained the terms and effect of the Agreement to relevant employees in accordance with s.180(5);
(d)employees requested to vote on the Agreement who were eligible within the scope of ss.188(1)(b), 182(1) and 181(1) voted on the making of the Agreement;
(e)the other applicable requirements of ss.186 and 187 were met in relation to the Agreement;
(f)therefore, the Commission is able to be satisfied that the Agreement was genuinely agreed to by the employees covered by the Agreement (s.186(2)(a)) because the decision maker would be satisfied the Agreement was made in accordance with s.182(1) and as required by s.188(1)(b);
(g)BOOT undertakings would be able to be accepted under s.190 by the Commission to address any additional concerns raised by the CFMEU and others;
(h)the CFMEU’s conclusion is that, if any undertakings are sought by the Commission, proffered by BMD and agreed by the CFMEU and others, and are accepted pursuant to s.190 by the Commission, then the Agreement passes the BOOT; and
(i)accordingly, the Commission would be satisfied that the Agreement was genuinely agreed to by the employees covered by it as required by s.186(2)(b).
The Applicant’s submissions in summary were that Ms Moy was cross-examined regarding the content of the Form F17B she signed and caused to be filed in the Commission. The Applicant submits that the evidence given by Ms Moy was reliable. Ms Moy answered the questions put to her and made concessions where appropriate.
There was no evidence led by the CFMEU or the other bargaining representatives that impugned the evidence given by Ms Moy regarding the matters set out in the F17B, or otherwise.
The evidence shows that BMD Urban took all reasonable steps to ensure the terms of the Proposed Agreement, and the effect of those terms, were explained to the employees within the meaning of s.180(5) of the Act. Extensive efforts were made between 7 December 2023 and 13 March 2024 to ensure that BMD Urban complied with the requirements of s.180(5)(a) of the Act.
The evidence of the bargaining representatives confirmed that they understood the terms of the Proposed Agreement set out in the Summary Document.
Ms Moy and Mr Dan Power gave reliable and truthful evidence regarding the voting process utilised by the Applicant for approval of the Proposed Agreement.
There was no requirement pursuant to the Act for the Applicant to engage an “independent” third party to conduct an electronic ballot. Relevantly, in this matter, the Applicant did engage Drayton’s to conduct an SMS ballot, and Mr Power was the person who conducted the ballot. The process followed by Mr Power is set out extensively in his evidence.
Whilst it is the evidence of Mr Power that he was only notified of three employees who did not receive a ballot, and not four as indicated by Ms Moy, the Applicant submits that the discrepancy has no material effect on the outcome of the ballot where 124 Valid Votes were cast, 84 of which voted “Yes” to approve the Enterprise Agreement.
The Applicant submitted the Commission can be satisfied that the enterprise agreement has been genuinely agreed to by employees, and that the Commission would be satisfied that the Proposed Agreement passes the better off overall test, taking into account the undertakings provided by the Applicant.
Having considered all of the evidence and submissions, I am satisfied that the agreement has been genuinely agreed to. The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.
The undertakings were offered on 18 April 2024 and the bargaining representatives have not opposed acceptance of the undertakings in the course of the proceedings.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
Conclusion
The Agreement is approved and will operate in accordance with s.54 of the Act.
COMMISSIONER
Appearances:
T Spence, Counsel for BMD Urban Pty Ltd.
E Dalgleish, Construction, Forestry and Maritime Employees Union.
Mr M Harvey, for himself.
Mr W Barram, for himself.
Mr E Le Bas, for himself.
Hearing details:
2024
Brisbane
24 September.
Final written submissions:
9 and 10 October 2024.
[1] [2024] FWC 1589.
[2] [2024] FWCFB 355.
[3] Cimeco Pty Ltd [2012] FWA 526 (McCarthy DP, 16 January 2012) at para. 28; see also Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 2206 (Ross J, Hamilton DP, Spencer C, 12 April 2012).
[4] Fair Work Act 2009 (Cth), s.180(3) (see also ss.186(2)(a) and 188(1)(a)(i)).
[5] Fair Work Act 2009 (Cth) s.180(3).
[6] Fair Work Act 2009 (Cth) s.182.
[7] [1959] HCA 8; (1959) 101 CLR 298.
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