Broadspectrum (Australia) Pty Limited T/A Broadspectrum
[2020] FWCA 1513
•3 APRIL 2020
| [2020] FWCA 1513 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Broadspectrum (Australia) Pty Limited T/A Broadspectrum
(AG2019/5031)
BROADSPECTRUM (FACILITIES MAINTENANCE AND MISCELLANEOUS SERVICES) ENTERPRISE AGREEMENT 2019
Electrical contracting industry | |
COMMISSIONER WILSON | MELBOURNE, 3 APRIL 2020 |
Application for approval of the Broadspectrum (Facilities Maintenance and Miscellaneous Services) Enterprise Agreement 2019.
[1] An application has been made for approval of an enterprise agreement known as the Broadspectrum (Facilities Maintenance and Miscellaneous Services) Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Broadspectrum (Australia) Pty Limited T/A Broadspectrum. The Agreement is a single enterprise agreement.
[2] On 23 December 2019, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) wrote to the Fair Work Commission (the Commission) requesting access to the documents filed in the matter advising they intended to file a Form F18 Statutory Declaration and request an opportunity to be heard. An exchange of correspondence occurred between the union and the Commission following this request with the CEPU ultimately withdrawing their request to be heard in the matter.
[3] In the usual course, my Chambers sent correspondence to the parties named in the initiating application setting out the concerns I held in relation to the Agreement in respect of pre-approval matters, the National Employment Standards and the Better Off Overall Test (BOOT). This correspondence was sent on 18 February 2020.
[4] The employer provided undertakings on 26 February 2020 in response to the matters set out in the correspondence of 18 February 2020. The individual bargaining representative confirmed his support of the proposed Undertakings.
[5] In addition to the concerns set out by me, the Commission received correspondence from an employee to be covered by the proposed Agreement Mr Gary McDonald setting out several concerns. The concerns set out by Mr McDonald are addressed later in this decision.
[6] On reviewing the material provided by the employer, I was not satisfied that all of the matters raised by me had been adequately addressed. I therefore caused further correspondence to be issued to the named parties on 6 March 2020 laying out my remaining concerns and informing the parties of the key themes raised in the correspondence received from Mr McDonald. That correspondence provided:
“1. That the group to be covered by the proposed Agreement was not fairly chosen (s.186(3). Specifically it is argued that there is an unfairness caused by the fact that the Agreement, covering a relatively small number of people nationally, will if approved cover employees otherwise covered by five modern awards. The argument put to the Commission is largely to the effect that there is no commonality of purpose between the different groups.
2. That there has not been genuine Agreement (s.186(2)) and in particular;
a. The things done to commence bargaining, as well as the bargaining itself were not genuine. It appears to be put forward that there was insufficient notification about when bargaining would take place or that employees had an opportunity to either attend bargaining in person, or to appoint a bargaining representative to bargain on their behalf.
b. The bargaining itself was not in good faith with no opportunity to scrutinise the employer’s claims or to put forward employees’ own claims;
c. The notification of the ballot in the ballot itself was unfair with employees not having an opportunity to participate in the ballot because they were not at work on the day in question.
3. Lastly, that the Agreement does not leave all employees better off overall with detriment to be found in leave entitlements, loadings hours of work and shift work.” 1
[7] The 6 March 2020 correspondence set out filing Directions and set the matter down for Hearing on 20 March 2020. A copy of the correspondence was also provided to Mr McDonald.
[8] In compliance with my Directions, the Applicant filed a Statutory Declaration declared by Mr Daniel Dal Bon and filed the documentation referred to in the Form F17 Employer’s Statutory Declaration, the individual bargaining representative filed a confidential Statutory Declaration and Mr McDonald filed submissions and sought to be heard at the Hearing.
[9] Amended Undertakings were also proffered by the Applicant on 13 March 2020 in response to the indicated outstanding concerns. The individual bargaining representative again confirmed his support of the proposed Undertakings.
[10] The matter proceeded by way of Hearing before me on 20 March 2020.
SCOPE OF THIS DECISION
[11] This is a decision relating to provisions within the Act’s Part 2 – 4, Enterprise Agreements.
[12] Part 2 – 4, Division 3 (Bargaining and representation during bargaining) sets out certain procedural steps for the commencement of bargaining and bargaining itself. These requirements arise for consideration.
[13] Part 2 – 4, Division 4 (Approval of enterprise agreements) contains requirements to be satisfied for the Commission to approve an Enterprise Agreement.
[14] In relation to the matters set out within Subdivision B (Approval of enterprise agreements by the FWC), whether s.186(3) has been satisfied (on the subject of “fairly chosen”) requires determination. No matters within s.187 arise for determination.
[15] The Commission is also required to consider whether any concerns it holds in relation to s.186 may be remedied through an Undertaking given under s.190.
[16] The provisions of Subdivision D (Unlawful terms) does not require consideration.
[17] The provisions of Subdivision E (Approval requirements relating to particular kinds of employees) does not require consideration.
[18] No matters within Subdivision F (Other matters) arise for determination (dealing with
the model flexibility and consultation terms).
THE EMPLOYEE’S OBJECTIONS
Whether BOOT met
[19] Mr McDonald argued that several matters of the BOOT would cause the Commission not to be satisfied the test had been passed. In particular, he submitted that clauses on leave entitlements, loadings, hours of work and shift work are less beneficial to employees that the comparable Award provisions.
Genuine Agreement
[20] Mr McDonald also raised several concerns with s.186(2) of the Act addressing matters of genuine agreement. The matters canvased by Mr McDonald included that the process to commence bargaining as well as bargaining itself were not genuine, that there was insufficient notification of bargaining, insufficient notification of the right to appoint a bargaining representative, the bargaining was not in good faith and that the ballot was unfair as not all employees were given the opportunity to participate in the vote.
“Fairly Chosen”
[21] Matters of the group of employees to be covered by the Agreement not being fairly chosen were also raised by Mr McDonald in that the group of employees chosen do not share a commonality of purpose.
[22] Clause 2.1 (Application) provides:
“This Agreement will cover any Employee of the Company who is classified in any of the classifications/levels listed in Appendix 1 of this Agreement and who is performing Facilities Maintenance & Miscellaneous Services Work on any contract the Company has with any of its clients nationally. Provided the terms of this Agreement will not apply where the Company already has an approved enterprise agreement in place covering such work.”
CONSIDERATION
[23] I am satisfied all of the matters raised by me concerning pre-approval requirements, the National Employment Standards and the BOOT have been satisfactorily addressed through Undertakings or submissions on the subjects.
[24] I must then turn to considering the objections raised by Mr McDonald.
Whether BOOT met
[25] The concerns raised by the Commission covered numerous matters including the definition of a shiftworker, annual leave, personal leave and redundancy, stand down provisions, above-agreement payments, shift penalties and overtime.
[26] These concerns were responded to with Undertakings which I accept, or as a result of what the Applicant has said in their reply, I no longer identify the matter as a concern.
[27] The Applicant asserts that the Agreement leaves all employees better off overall, with Mr Dal Bon declaring:
“the Applicant submits that the Agreement, and the undertakings it has proposed to address concerns relating to leave entitlements, loadings, hours of work and/or shift work provisions; when taken as a whole, will leave employees better off overall than the terms of the relevant modern awards.” 2
[28] Mr McDonald disagrees with the declaration of Mr Dal Bon and maintains his opposition to approval of the Agreement:
“I consider that the employer incorrectly claims that all employees are better off overall. This is factually incorrect –there is profound detriment of conditions and entitlements to be found in the application arrangement being proposed; leave entitlements, loadings hours of work, allowances , nothing of the new rules which apply to an annualized wage arrangement that may potentially seek to ‘buy out’ monetary entitlements under the stores award to minimum wages, allowances, overtime and penalty rates, and annual leave loading. Nothing of the deception called -shift work which is a s 9 major change, change to roster and hours of work, times of hours of work, & lacks any fair remunerative incentive.” 3 (spelling and formatting as per original)
[29] Mr McDonald’s objections do not contain specific examples of employees failing to be better off overall but rather contains a narrative that Warehouse/Stores employees prefer the entitlements afforded to them under the modern award.
[30] I am not persuaded that any of the foregoing matters raised by Mr McDonald would either leave me not satisfied the BOOT has been passed, or would require seeking further undertakings. I am satisfied that the benefits provided by the Agreement are not eroded to such an extent as to leave employees other than better off overall.
Genuine Agreement
[31] The Applicant submits that the Agreement was genuinely agreed pursuant to s.186(2) of the Fair Work Act 2009.
[32] The Notice of Employee Representational Rights (NERR) was distributed to each employee covered by the proposed Agreement. The NERR was in the compliant format. Prior to the vote, in-person meetings were convened during work hours for the purpose of explaining the terms of the Agreement to effected employees. 4 The employer submits that although there were some employees who were unable to attend these meetings, Mr Dal Bon “made reasonable attempts to engage with all employees covered by the proposed Agreement in face-to-face meetings and to provide direct access to employees via email and/or telephone contact for the purposes of explanation and/or clarification of terms and conditions applying under the proposed Agreement”.5
[33] The format of the meetings was a page-by-page review of the Agreement with working examples provided to employees to aid the explanation of the terms of the Agreement. The employer declares that the outcome of the meetings resulted in employee-negotiated changes being made to the Agreement and these changes were reflected in the Agreement put to employees for the vote. 6 Further, the employer was flexible in being available for employees to ask questions, in addition to Mr Dal Bon being available via email and telephone contact, employees at the correctional facility; where the majority of effected employees to be covered by the Agreement are based, the on-site Human Resources Manager was available to discuss the Agreement with “any of the Facilities Maintenance or Stores employees working at the Correctional Centre during normal business hours.”7
[34] In response to Mr McDonald’s assertions that the bargaining was not conducted in good faith, the employer concedes that although there were difficulties faced in the scheduling of the meetings to explain the terms of the Agreement, there was always alternative opportunities provide to employees to contact the employer to discuss and the bargaining was at all times conducted in open communications. 8 In addition, the notification of the vote was done so in a fair way and no employees notified the employer that they had an objection to the date or method of vote.
[35] Mr McDonald disagrees on the subject and submits:
“I believe the applicant’s EA application is a intentional contrivance, a stitch-up being carried out by the employer to deny us proper representation and notification, to just cross off our AWARD- assuming ignorance of ourselves ; and indeed, eliminate workplace employment rights of myself as a stores/warehouse officer and all the storeman who are employed per the (Storage Services & Whole Sale Award 2010[MA 000084]. I am very disappointed in my employer’s unfair actions; I strongly ask the commission to Dismiss the unfair application.” 9
“Mr Dal Bon employer representative and Mr Turi Anderson who the commission informed me is the trades employee representative have been absent collaborative bargaining interaction regarding this matter with myself or Stores employees.” 10
“Significantly in my view that my employer failed to comply with s 173 of the Fair Work Act (the ACT) the employer has not & did not take All reasonable steps to give notice of right to be represented by a bargaining representative (THE NOTICE) to each Stores/Warehouse employee – (specially Myself) who the employer attempts to drag into this agreement. I declare that the things done to commence alleged bargaining, as well as the alleged bargaining itself were not genuine. That there was not notification about when initial bargaining process or bargaining process would take place or that any of us Stores employees had an opportunity to either attend bargaining in person with appropriate notification(s) of bargaining rights, information’s, or to appoint a bargaining representative to bargain on our behalf – and that agent was not Mr Turi Anderson.
No compliant Notice was provided, no notice was provided in the prescribed time, no notice with prescribed content required by the Fair Work Regulations 2009 was provided to me or any Stores/Warehouse officer. Therefore, I ask the Commission to disapprove, dismiss the agreement lodged by the Applicant Employer. And affirm my and my fellow employees contracted Storeman’s Award (Storage Services & Whole Sale Award 2010[MA 000084] to prevail.” 11 (spelling and formatting as per original)
[36] I am satisfied that the Applicant has complied with its obligations to notify employees it intended to initiate bargaining and to provide employees with a compliant NERR, and that it acknowledged those persons appointed as a bargaining representative (ss.173 – 176). I am also satisfied that the employer has complied with the requirements of s.186(2) and that no genuine agreement issue arises that would prevent the Agreement from being capable of approval.
“Fairly Chosen”
[37] Section 186 of the Act sets out the requirements to be satisfied after which the Commission must approve an Enterprise Agreement. One of the requirements is that the Commission must be satisfied that the group of employees covered by the Agreement was “fairly chosen”.
[38] Section 186 provides:
“186 When the FWC must approve an enterprise agreement – general requirements
…
(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.
(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.”
[39] The issue for determination in this matter, as it pertains to the matter of “fairly chosen” is whether Clause 2 (Application) allows a finding that the group of employees covered by the agreement was “fairly chosen”, as it includes a small number of employees who would otherwise be covered by 5 separate modern awards. As set out above, the scope of the Agreement is drafted broadly, with it being intended by Broadspectrum to have national operation in relation to any of its contracts performing Facilities Maintenance & Miscellaneous Services Work other than work which may be covered by another enterprise agreement. The Agreement defines Facilities Maintenance & Miscellaneous Service work to mean the following (Clause 8):
“… work, excluding contract cleaning services work, to either directly or indirectly service, repair, replace, renovate, rehabilitate, refurbish, revamp, maintain, install, overhaul, upgrade and/or upkeep any property, equipment, asset, house, building, or any other similar or like structure or any associated infrastructure of the aforementioned, where the Company has a contract to perform Facilities Maintenance & Miscellaneous Services Work”.
[40] In determining whether a group of employees is “fairly chosen” Aerocare Flight Support Pty Ltd (t/as) (Aerocare Flight Support) v Transport Workers’ Union 12sets out the relevant considerations:
“[26] The following principles may be gleaned from earlier decisions concerning s.186(3)-(3A):
● the expression “the group of employees covered by the agreement” in s 186(3) refers to the whole class of employees to whom the agreement might in future apply, not the group of employees who actually voted on whether to make the agreement;
● the references in s.186(3) and (3A) to whether “the group of employees covered by the agreement was fairly chosen” are, in the case of a non-greenfields agreement made with a group of employees, particularly a small group, references to a choice made by the employer;
● a Member’s decision as to whether or not they are satisfied that the group of employees covered by an agreement was “fairly chosen” involves a degree of subjectivity and the exercise of a very broad judgment or value judgment, and in a broad sense can be characterised as a discretionary decision;
● in an appeal from a decision of that nature, it will be necessary for the appellant to demonstrate error in the decision-making process of the type identified in the House v The King in order for the Full Bench to set aside the decision;
● once it has been determined that an agreement does not cover all of the employees of the employment, it is necessary for the Commission to make a finding as to whether the group of employees who are covered is geographically, operationally or organisationally distinct, and then take that matter into account and give it due weight, having regard to all other factors;
● if the group of employees covered by the agreement is geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen; conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen;
● however while the question of whether the group of employees covered is geographically, operationally or organisationally distinct must be evaluated and given due weight having regard to all other relevant considerations, that is not a determinative consideration in that it is not necessary to make a finding that the group is geographically, operationally or organisationally distinct in order to be satisfied that it was fairly chosen;
● the selection of the group of employees to be covered on some objective basis, as opposed to an arbitrary or subjective basis, is likely to favour a conclusion that the group was fairly chosen;
● the relevant considerations will vary from case to case, but the word “fairly” suggests that the selection of the group covered was not arbitrary or discriminatory, so that for example selection based upon employee characteristics such as date of employment, age or gender would be likely to be unfair; and
● it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreement’s coverage and the employees excluded.” 13 (references removed)
[41] The Applicant submits that that there is commonality of purposes between the group of employees to be covered by the proposed Agreement:
“the employee group covered by the proposed Agreement was fairly chosen from within the Applicant’s business. The chosen employee group comprises three employee subgroups who deliver on-site contract services within industries and in occupations covered by the relevant modern awards.
The chosen employee subgroups include trade qualified and non-trade employees who perform work associated with two of the Applicant’s clients within the States of New South Wales (11 employees covered) and Victoria (1 employee covered).” 14
[42] The group of employees to be covered by the Agreement as declared in the Form F17 Employer’s Statutory Declaration accompanying the application for approval declares:
“The Agreement covers employees of the Company who are performing Facilities Maintenance & Miscellaneous Services Work on any contract the Company has with any of its clients nationally. Provided the terms of this Agreement will not apply where the Company already has an approved enterprise agreement in place covering such work (operationally distinct) – e.g. the proposed EA will not apply to facilities maintenance work performed for the Department of Defence under the Company’s Defence Base Services contract in the State of South Australia, which is covered by: AG2018/2743 – Broadspectrum SA Defence Facilities Enterprise Agreement 2018.
Further, the Agreement does not cover employees of the Company who are employed in managerial, supervisory, clerical or administrative staff roles.” 15
[43] The matter of fairly chosen was the subject of cross-examination and questions by me to Mr Dal Bon in the Hearing. On the responses provided I accept the evidence of Mr Dal Bon that there are 2 contracts that would be covered by the Agreement should it be approved.
[44] Mr McDonald on the subject of “fairly chosen” rejects the explanation provided by the Applicant and submits that:
“It is correct that “there is no commonality of purpose between the different groups.” It is my view I and Stores employees have been targeted , that this application is attempt to involuntarily incorporate (Storage Services & Whole Sale Award 2010[MA 000084] Stores officers including (Myself)into a exploitative “Miscellaneous agreement arrangement “– One- we have not agreed to, and not consented to, nor to be lumped in the mix with other awards.” 16 (spelling and formatting as per original)
[45] Having considered the submissions from the Applicant and Mr McDonald on the subject of “fairly chosen”, I am satisfied that it is not unreasonable to extend the coverage of the Agreement to include Storeworkers and Warehouse employees of the Applicant. I am therefore satisfied that the group of employees to be covered by the Agreement is “fairly chosen”
[46] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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 are taken to be a term of the agreement.
[47] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
[48] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 April 2020. The nominal expiry date of the Agreement is 3 April 2024.
COMMISSIONER
Appearances:
Mr D. Dal Bon, for the Applicant
Mr T. Anderson, Individual Bargaining Representative
Mr G. McDonald, Employee to be covered by the Agreement
Hearing details:
2020.
Melbourne (via telephone);
20 March.
Annexure A
1 Email correspondence from the Fair Work Commission to parties, 6 March 2020.
2 Statutory Declaration of Mr Dal Bon, 13 March 2020.
3 Outline of Submissions of Mr McDonald, 16 March 2020.
4 Statutory Declaration of Mr Dal Bon, 13 March 2020.
5 Ibid.
6 Ibid.
7 Ibid.
8 Ibid.
9 Outline of Submissions of Mr McDonald, 16 March 2020.
10 Ibid.
11 Ibid.
12 (2017) 270 IR 385.
13 Ibid.
14 Statutory Declaration of Mr Dal Bon, 13 March 2020.
15 Form F17, Employer’s Statutory Declaration, 20 December 2019, item 2.2.
16 Outline of Submissions of Mr McDonald, 16 March 2020.
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