Boeing Defence Australia Limited

[2021] FWCA 3123

[2021] FWCA 3123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boeing Defence Australia Limited
(AG2021/5139)

BOEING DEFENCE AUSTRALIA LIMITED AVIATION TRADES ENTERPRISE AGREEMENT 2021 TO 2023

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 2 JUNE 2021

Application for approval of the Boeing Defence Australia Limited Aviation Trades Enterprise Agreement 2021 to 2023.

[1] Boeing Defence Australia Limited (company) has made an application for approval of an enterprise agreement known as the Boeing Defence Australia Limited Aviation Trades Enterprise Agreement 2021 to 2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] In a form F18A declaration lodged in the Commission, a bargaining representative for the Agreement raised a concern about the content of the company’s F17 declaration, contending that it had omitted to bring to the Commission’s attention a late change that was made to the terms of the proposed agreement shortly before the commencement of the pre-vote seven day ‘access period’ (see s 180(4) of the Act). The change in question was the removal from the third paragraph of Schedule B, which concerns payment of per diem travel allowances, of the word ‘incidentals’. The bargaining representative contended that this change was made without consultation and after the conclusion of the formal negotiations, and that because it was ‘rushed through’, the change did not receive appropriate scrutiny prior to the commencement of the access period. The bargaining representative said that the change was not referred to in the company’s explanatory summary document that was provided to employees and that the company’s F17 was inaccurate, insofar as it represented that employees were provided with a summary of all the new terms of the Agreement. He also contended that the company had acted outside the bounds of good faith bargaining.

[3] In reply, the company submitted that, after the conclusion of the regular weekly meetings, bargaining had continued: the company offered bargaining representatives the opportunity to have further meetings, but none were requested; the company sent to the bargaining representatives a copy of the proposed agreement and asked for feedback on the text; the Australian Workers’ Union (AWU) proposed certain changes to the wording of the per diem arrangements (but not in respect of the removal of the word ‘incidentals’); and after further consultation the wording of this provision was altered. The company submitted that on 19 April 2021, a bargaining representative sent an email to the company and the other bargaining representatives, querying why the per diem rate did not include an amount for incidentals. A company representative replied, setting out the company’s position on this matter. The company noted in its submission to the Commission that the removal of the word ‘incidentals’ was marked up in a copy of the Agreement that was distributed to employees. It maintained that it had taken all reasonable steps to explain to employees the terms of the Agreement and the effect of those terms, as required by s 180(5) of the Act, and that it had indeed bargained in good faith.

[4] On 31 May 2021, following an exchange of correspondence concerning these matters, I advised the company and the other bargaining representatives that I proposed to determine the application on the papers not before 5.00pm on 2 June 2021 and that any further submissions they wished to make should be submitted before this time.

[5] Based on the information before the Commission, I do not consider that the concerns raised by the bargaining representative reveal or suggest that any of the approval requirements in ss 186 and 187 of the Act have not been met. There is nothing inherently wrong with late changes to a proposed agreement. In the present case, the company made a change to the per diem provision. This change was marked up in a copy of the Agreement that was sent to employees. The proposed agreement was put to a vote. It was approved by employees. The removal of the word ‘incidentals’ was not referred to in the summary document, but I do not regard this as a significant matter.

[6] In his submissions to the Commission, the bargaining representative stated, among many other things, that the company had offered to delay the vote on the Agreement, but that he had declined the offer. It is therefore difficult to see any basis for a contention that the change was ‘rushed through’. Further, in response to my direction that he advise the Commission whether he supported or opposed the approval of the Agreement, the bargaining representative stated that ‘the vote should stand’ because employees had been waiting patiently for a pay rise and he did not want to delay it ‘for an issue with no immediate financial impact.’ In light of this acknowledgement, I see no reason why the change ought to have been included in the summary document, or why it necessarily needed to be explained to employees at all.

[7] Section 180(5) requires an employer to ‘take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained to the relevant employees’. I consider that the company took such steps. I note that an explanation can comprise things other than summary documents and comparative tables. The distribution of a revised copy of the Agreement with changes marked up can form part of the process of explaining the terms of an agreement. It did so in this case. Further, there is nothing that causes me to have a concern that the company failed to bargain in good faith, or that the Agreement was not genuinely agreed to by the employees. Nor do I consider that the matters raised in the F18A give rise to concerns that any other approval requirement has not been met.

[8] The bargaining representative suggested that the company should give an undertaking to restore the reference to ‘incidentals’ in the Agreement. There is no basis for the Commission to seek or accept such an undertaking, because I do not have a concern that the matter raised by the bargaining representative is indicative that a requirement in ss 186 and 187 has not been met (see s 190(1)(b)).

[9] I note that two employees were not provided with the details of the voting arrangements before the start of the access period for the Agreement. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s 188(2)(a), and that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[10] The company has provided a written undertaking in response to a concern raised by the Commission, a copy of which is attached in Annexure A. I am satisfied that it will not cause financial detriment to any employee and that it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[11] Subject to the undertaking, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

[12] The AWU, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) and based on its declaration, I note that the Agreement covers the AWU.

[13] The Agreement was approved on 2 June 2021 and, in accordance with s 54, will operate from 9 June 2021. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

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Annexure A