[2017] FWC 1818 [Note: An appeal pursuant to s.604 (C2017/2070) was lodged against this decision.] - refer to Full Bench decision dated 8 August 2017 [[2017] FWCFB 3202 for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(AG2016/3877)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 31 MARCH 2017

Application for approval of the JBU Enterprise Agreement 2016 - whether agreement genuinely agreed to by employees covered by the agreement – agreement not approved.

[1] An application was made on 12 July 2016 for approval of an enterprise agreement known as the JBU Enterprise Agreement 2016 (the Agreement). The application was made by Broadspectrum (Australia) Pty Ltd T/A Broadspectrum (Broadspectrum) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Background

[2] In its Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) Broadspectrum deposed inter alia that:

the date of notification time (i.e. the date on which it initiated bargaining) was 6 June 2016;

the date on which the last Notice of Employee Representational Rights was given to an employee who would be covered by the Agreement was 9 June 2016;

voting for the Agreement commenced on 4 July 2016;

the Agreement was made on 5 July 2016;

four employees would be covered by the Agreement; and

three employees cast a valid vote in respect of the Agreement, with all three employees voting to approve the Agreement.

[3] The Agreement was initially approved by the Fair Work Commission (the Commission) on 18 November 2016 1, with that decision preceded by an earlier decision setting out the Commissioner’s reasons for concluding that the Agreement should be approved2. While United Voice (UV) was not a bargaining representative for the Agreement, it participated in a conference convened by the Commissioner regarding the application seeking approval of the Agreement. However, UV’s request to be heard in respect of the application was never formally determined by the Commissioner. In the proceedings before the Commissioner, UV opposed the approval of the Agreement on the basis that the group of employees covered by the Agreement was not fairly chosen and the Agreement had not been genuinely agreed to3.

[4] UV subsequently appealed the decision to approve the Agreement, with the appeal Full Bench in its decision of 14 February 2017 4 quashing the decision to approve the Agreement and referring the application for approval of the Agreement to the Commission as currently constituted for determination. In its decision the Full Bench found that it was unnecessary to determine whether permission to appeal should be granted and whether the appeal should be upheld by reference to the two grounds of appeal initially advanced by UV. Instead, the Full Bench decided to grant permission to appeal and to uphold the appeal on procedural fairness grounds based on previously undisclosed ex parte communications passing between the Commissioner’s chambers and Broadspectrum which traversed material facts in dispute and appeared to have had a material effect on the outcome of the application for the approval of the Agreement5.

[5] In light of the Full Bench decision, the application seeking approval of the Agreement was listed for mention and directions on 27 February 2017. At the directions hearing UV sought and was granted the right to be heard in respect of the application on the basis that it would assist the Commission in determining the matter. The Transport Workers Union of Australia (TWU) attended the directions hearing and requested that it also be heard regarding the application. The TWU’s request is discussed further below. Directions were issued by the Commission on 28 February 2017, with the application heard on 10 March 2017.

[6] On 1 March 2017 Broadspectrum filed its material in accordance with the Directions issued by the Commission. The material comprised copies of the contracts of employment of the four employees involved in making the Agreement 6 and two position description documents7. In forwarding that material to the Commission and UV, Broadspectrum made an application under s.594 of the Act that the documents “be maintained as confidential to the parties to the proceedings strictly for the purposes of these proceedings only given the sensitive commercial-in-confidence nature of all the contractual information to the Applicant and the respective employees.”8 The Commission issued an Order9 to that effect on 7 March 2017.

[7] At the hearing on 10 March 2017, Mr John Snaden of Counsel appeared with permission for Broadspectrum and Mr Stephen Bull, an Industrial Coordinator/Legal Practitioner with UV, appeared for UV. Ms Amanda Lawton, Broadspectrum’s General Manager, Human Resources Development, Bids and Transitions, gave evidence for the Applicant, while Mr Rhys Barker, Broadspectrum’s General Manager, Innovation and Transformation, gave evidence as a result of an Order to Attend issued by the Commission following an application by UV.

Request to be heard by the TWU

[8] On 15 February 2017, i.e. the day after the appeal decision was handed down, the TWU sent an email to the Commission requesting that it be heard in respect of the application seeking approval of the Agreement. In support of its request, the TWU relied upon the reasons it advanced in the appeal proceedings as to why it should be heard in those proceedings, though the Full Bench declined to grant the TWU’s request.

[9] As noted above, the TWU attended the directions hearing convened by the Commission on 27 February 2017. The Directions issued by the Commission on 28 February 2017 required the TWU “to file with the Commission and serve on the all other parties more detailed reasons in support of its request to be heard in the matter by close of business Friday, 3 March 2017” (emphasis as per original). By way of background, the TWU had not been a bargaining representative for the Agreement.

[10] In its more detailed reasons the TWU contended that it should be heard because, among other things:

it would be able to provide information on how the Agreement would operate in practice;

the Serco WA CS & CS & TWU Agreement 2015 10 (the Serco Agreement) would be overtaken by the Agreement if approved; and

it had rights under the Serco Agreement which would be lost if the Agreement were to be approved.

[11] The Commission advised the parties on 7 March 2017 that it was not prepared to grant the TWU’s request with reasons for that decision to be set out in the Commission’s decision regarding the application seeking approval of the Agreement. Those reasons are set out below.

[12] With regard to the first ground relied upon by the TWU, in this case the primary objection to the Agreement being approved is that the Agreement was not genuinely agreed to. While information as to how the Agreement would operate in practice might be of passing interest, it would not in my view assist the Commission in determining that issue.

[13] As to the other grounds relied upon by the TWU, those issues were considered by the Full Bench in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd 11 (Collinsville) where the Full Bench observed:

“Sixthly, the CFMEU’s reliance on rights that it had under agreements which previously applied to work at the Collinsville coal mine is misconceived in that whatever else might be said about the content of those agreements, they did not cover the employees who are now covered by the Agreement when the agreement was made and they did not cover Collinsville. Consequently the CFMEU had no particular right under those agreements vis-a-vis the employees or Collinsville, and so no right of the CFMEU is affected by the approval of the Agreement.” 12 (References not included)

[14] Drawing on the decision in Collinsville, I note that the Serco Agreement does not cover employees covered by the Agreement, nor does it cover Broadspectrum or provide any particular rights to the TWU in respect of Broadspectrum’s employees (including those employees covered by the Agreement). Accordingly, no right of the TWU would be affected by approval of the Agreement.

[15] In the absence of any compelling reasons, I therefore declined the TWU’s request to be heard in the matter.

The Applicant’s case

[16] As previously mentioned Ms Lawton gave evidence for Broadspectrum. Key aspects of Ms Lawton’s oral evidence were that:

she started work on Broadspectrum’s bid for the Western Australian Government’s court security and custodial services contract (the CS&CS contract) in January 2016 13;

Mr Barker was brought in as acting General Manager Justice in early to mid-April 2016 pending Mr David Denny’s commencement as General Manager in August 2016 (Mr Denny was relocating from Scotland) 14;

she sought approval to engage the four employees involved in bargaining for the Agreement after considering the work involved in preparing Broadspectrum’s various bids for correctional services work, including the CS&CS contract, adding that there were “some 22 plus” online training modules which had to be developed 15;

the four employees were doing pre-preparation work for the CS&CS contract bid and understood they would transition to positions covered by the two position descriptions tendered by Broadspectrum 16 when it took over the CS&CS contract on 24 March 201717;

one of the four employees had a HRF endorsement (a particular form of vehicle licence) and was suitable for Broadspectrum’s prisoner transport role, another had operational experience and would transition to a Care and Custody Officer (CCO) role probably in the control centre and another was a supervisor currently working in that area 18;

in respect of Contracts #3 and #4 19, the employees were internal applicants who were employed by Broadspectrum on Nauru and who received a Justice Project Allowance of $36,000 per annum as part of their Nauru package of terms and conditions, adding that the Allowance was maintained while they worked on the CS&CS contract bid in order to access their skills and that both employees were aware that the Allowance would cease when the CS&CS contract work commenced on 24 March 201720;

three of the four employees were based in Perth, with the other employee based in Melbourne and in Perth intermittently 21;

in respect of contract #1 22, the employee was an external candidate based in Perth who was engaged on a part-time basis, adding that the person resigned around late August 2016 to care for their daughter’s children as a result of an injury sustained by their daughter23;

the person had not previously worked in a court, a prison or in court transport and had no prior correctional experience 24;

the duties performed by the employee while working for Broadspectrum involved drafting training material and developing induction material, adding that the employee had previously worked in the mining sector where she had a number of rostering clerks reporting to her and that she had a Certificate IV in training as well a strong safety background 25;

in respect of contract #2 26, the employee was also an external candidate based in Perth and was engaged on a part-time basis27;

she disagreed that she hired two part-time employees because it would be handy to have additional persons to form a cohort to make an enterprise agreement, adding that she offered two people jobs to capitalise on the intellectual property that they each brought to their respective roles 28;

the employee party to contract #2 had a safety background and a vehicle licence which would enable them to drive persons in custody vehicles, worked casually driving buses in Perth, had no prior experience in the justice system, had never worked in a prison, court transport or a court, was still employed by Broadspectrum working on the CS&CS contract, would be working as a driver under the CS&CS contract in due course, and was currently undertaking a Certificate III in Correctional Services so that they could work as a CCO 29;

the employee commenced work on 3 June 2016 when assigned the task of preparing drug and alcohol and safety behavioural training modules, with those modules written in a generic way such that they could be used elsewhere (were Broadspectrum successful in respect of other correctional services related bids) 30;

she was not aware of the person’s terms and conditions of employment having changed since contract #2 was signed 31;

the person would work on a full time basis from 24 March 2017 32;

could not confirm when the Justice Unit referred to in Broadspectrum’s Form F17 was established 33;

in respect of contract #3 34, the employee was an internal applicant who had been working on Nauru, was based in Melbourne, came to Perth intermittently and had a Certificate IV in Correctional Services35;

the employee assisted her with the community services side of the CS&CS contract bid, researching the various indigenous communities which Broadspectrum would be working with and making contact with the relevant communities in relation to people which Broadspectrum would be hiring in the various regions, adding that the employee’s work was also used in respect of another bid for correctional work 36;

the employee had returned to Nauru around December 2016 having been offered and accepted a promotion 37;

contract #3 was offered on a temporary basis for the period 1 June to 30 November 2016 because at the time the employment offer was made Broadspectrum had not yet been awarded the CS&CS contract 38;

the reference to “Immigration Justice contract” in contract #3 was in her opinion an error 39;

the employees subject to contracts #1 and #2 both knew that if Broadspectrum did not win the CS&CS contract there would be no justice work for them going forward 40;

in respect of contract #4 41, the employee was an internal candidate who was also from Nauru, had a Certificate IV in Correctional Services, was originally based in Melbourne but moved to Perth around late May 2016, remains in Perth working on the CS&CS contract and would take up a supervisory role under the contract on 24 March 201742;

the employee was aware that payment of the Justice Project Allowance would cease when they took up that supervisory role under the CS&CS contract 43;

she was unable to say what the employee would be paid when working under the CS&CS contract but agreed that it would not be $58,000 per annum 44;

in respect of contracts #3 and #4, the remuneration provided for in those contracts was reflective of what the individuals were paid while working on Nauru 45;

the four employees were hired on common law agreements and were subsequently made aware that Broadspectrum needed to put in place an enterprise agreement, disputing that the employees’ capacity to participate in bargaining was one of the reasons why they were hired 46;

it was part of Broadspectrum’s commercial strategy to have in place an enterprise agreement prior to the commencement of the CS&CS contract because it would provide stability 47;

Broadspectrum initiated bargaining in relation to the Agreement, initiated meetings and information sessions in respect of the proposed agreement and produced a draft of the Agreement 48;

there was no disputation about what the base rates of pay in the Agreement should be 49;

she did not believe that the four employees would be paid exactly the same rates as in the Agreement because they were bringing other skills to the table, adding that she did not know what rates the employees would be paid going forward 50;

the four employees appointed themselves as bargaining representatives shortly after being engaged 51;

she disagreed that Broadspectrum had suggested to the employees that they appoint themselves as bargaining representatives to avoid the involvement of industrial organisations in the bargaining process 52;

the West Australian Government did not require a current enterprise agreement for the CS& CS contract 53; and

at the time they were engaged none of the four employees worked on anything other than justice related business 54.

[17] At the hearing Broadspectrum continued to rely on its Form F17 and tendered copies of the ex parte emails exchanged between it and the Commissioner’s chambers 55 prior to the application being determined initially (those emails were set out in the Full Bench’s appeal decision56). Key aspects of Broadspectrum’s submissions at the hearing were that:

in this case there were no issues in dispute regarding ss.186(2)(c), 186(2)(d), 186(4), 186(4A), 186(5), 186(6), 187(3) and 187(4) of the Act, it was unsure as to whether UV had an issue regarding s.186(2) of the Act and it did not think that there was an issue in respect of s.186(3) of the Act;

the Justice Business Unit (JBU) was in existence at the time the vote on the Agreement took place, referring to Ms Lawton’s evidence that work on Broadspectrum’s CS&CS contract bid commenced in early 2016 and Mr Barker’s evidence that he was appointed acting General Manager of the JBU in April 2016;

it had always been true that the four employees who were eligible to vote on the Agreement did not at the time of their engagement perform mainstream conventional corrections type work, contending nevertheless that the employees were employed for the purposes of performing corrections related work;

the fact that none of the four employees were involved in performing prisoner transport or welfare at the time of their engagement was not enough to conclude that none of them had been engaged to perform correctional work that fell within one of the classification descriptors set out in Schedule B of the Corrections and Detention (Private Sector) Award 2010 57 (the Corrections Award) which were called up by clause 17.2 of the Agreement, adding that Ms Lawton’s evidence was that all four employees were engaged for the purposes of being deployed to such work;

even if the view was taken that the preparation of training modules and other operational documents fell outside the work contemplated by the classification descriptors in the Corrections Award, drawing on Ms Lawton’s evidence that the Care and Custody Officer (Inc Escorts) position description 58 applied to three of the employees while the Court Supervisor position description59 applied to the other employee, one could not automatically conclude that the employees were not corrections employees;

there was no doubt in this case that each of the four employees were employed to perform tasks of a kind falling within the classification descriptors of the Corrections Award;

in the alternative, if the work performed by the four employees did not come within the classification descriptions of the Corrections Award then the four employees most certainly qualified for coverage under the Clerks – Private Sector Award 2010 60 (the Clerks Award);

the Commission should therefore conclude that all four employees were employees to whom the classifications and Agreement applied;

the circumstances in this case were very different from those which existed in Re KCL Industries Pty Ltd 61 (KCL);

there was no decision where the Commission had found that an agreement had not been genuinely agreed to, or that there might be reasonable grounds for believing that it had not been genuinely agreed to, merely because the employees who voted on the agreement were paid more than the remuneration provided for in the particular agreement;

the employees’ consent in this case should not be swept aside as inauthentic just because they have employment contracts under which they get paid more than under the Agreement;

the four employees’ employment was precarious because the business was in its infancy and it did not have any work, adding that their employment was precarious regardless of how the employees voted on the Agreement;

UV’s contention that the employees’ work was not correctional work because the CS&CS contract was not in place was not consistent with the decision in Carpenter v Corona Manufacturing Pty Ltd 62 (Carpenter); and

the Full Federal Court decision in Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd 63 (ALDI) had nothing to do with this case.

[18] Beyond this, Broadspectrum disputed a number of aspects of UV’s submissions and also referred to a number of other authorities, including Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Manufacturing Workers’ Union v Sustaining Works Pty Ltd 64, Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd65, Construction, Forestry, Mining and Energy Union v Sparta Mining Services Pty Ltd66 and BGC Contracting Pty Ltd67.

UV’s case

[19] UV submitted that the Commission should not approve the Agreement. More specifically, UV submitted among other things that:

there was no clear evidence that the JBU existed well prior to 6 June 2016 or that the cohort were employees of the JBU at the commencement of bargaining and up to the vote for the Agreement;

the employment of the employee covered by contract #1 68 appeared to commence after the bargaining period had commenced;

contract #2 69 was dated 7 June 2016 and appeared to have been accepted by the employee on 8 June 2016, adding that as a result the employee was potentially not properly part of the cohort;

contract #3 70 appeared to indicate that the employee was not engaged to work within the JBU as it referred to a full-time temporary position “at our Immigration Justice contract”;

in respect of contract #4 71 it was reasonable to question whether the employee was non-managerial and therefore potentially not properly part of the cohort;

all members of the cohort had significant unresolved questions concerning their status;

in circumstances where a person was employed in some capacity by a facilities management company seeking to win tenders from government to manage correctional facilities or core transport functions, such work was not covered by the Corrections Award;

with the exception of the supervisor, none of the employment contracts supplied by Broadspectrum were readily identifiable with the position that the employees allegedly held during the making of the Agreement;

there was a disconnect between the cohort’s terms and conditions of employment during bargaining and the substance of the bargain made;

in relation to contracts #3 and #4, it was problematic that the employees were paid a significant additional allowance broadly to coincide with their participation in the making of the Agreement;

a proper conclusion was that each of the cohort assumed that if their employment continued that they would maintain their superior common-law arrangements; and

in addition to remuneration that was significantly in excess of the Agreement’s base rates, the employment contracts provided for terms and conditions that appeared to be in excess of the Agreement and related to conditions enjoyed by Broadspectrum employees generally, e.g. contracts #1 and #2 referred to “additional paid parental leave for eligible employees”.

[20] At the hearing, UV contended, inter alia, that an analysis of the Corrections Award classification descriptors indicated that employees had to actually be working in or in connection with a correctional facility, adding that the work of the four employees who made the Agreement did not fulfil this requirement and that work of that nature did not exist as the CS&CS contract had not yet been signed at the time the Agreement was made. As to the alternative proposition put by Broadspectrum, i.e. that the employees were covered by the Clerks Award, UV described that as an absurd suggestion on the basis that the employees were disconnected from any meaningful participation in the bargaining process because they literally would not know what they were bargaining for.

[21] In summary, UV submitted that the Commission should not approve the Agreement as a result of concerns as to whether the Agreement had been genuinely agreed to as per s.186(2)(a) of the Act in circumstances where, among other things, the remuneration paid to the employees was well in excess of that provided for under the Agreement, the employees were not properly classifiable as correctional workers, the cohort was small, the employees were hired very close to the commencement of bargaining and the Justice Project Allowance was paid to two of the employees.

[22] In support of its submissions, UV relied on several authorities, including KCL, ALDI, AKN Pty Ltd t/a Aitkin Crane Services 72 and Thiess Pty Ltd73.

[23] Finally, I would note that on 10 March 2017 prior to the hearing UV forwarded several documents to the Commission and Broadspectrum, including a document issued by the Western Australian Department of Corrective Services in November 2016 titled Project Summary Report Court Security and Custodial Services Contract 74. Among other things the document included the following timetable regarding the CS&CS contract75:

Phase	Description	Date
Approval and Planning Phase	Minister announced contract with Serco would not be extended	16 JUNE 2015
Approval and Planning Phase	Cabinet approved establishment of Project Steering Committee and approved funding for project costs	19 October 2015
RFT Phase	Cabinet approved procurement process	14 December 2015
	RFT released	26 February 2016
	Mandatory industry briefing session	14 March 2016
	Site visits commenced	18 March 2016
	Vehicle inspection	20 March 2016
	Site visits completed	22 March 2016
	Interactive tender workshops commenced	27 April 2016
	Interactive tender workshops completed	3 May 2016
	Deadline for lodging Proposals	17 June 2016
Contract Negotiation Phase	Minister approved Preferred Respondent	29 August 2016
	Broadspectrum announced as Preferred Respondent	31 August 2016
	Negotiations commenced	16 September 2016
	Minister approved final terms of the Agreement	27 October 2016
Transition Phase	Contract executed/signed	27 October 2016
Transition Phase	Transition commences	28 October 2016
Service Commencement	Transition completed	23 March 2017

Barker’s evidence

[24] Key aspects of Mr Barker’s oral evidence were that:

he was aware of the JBU in February 2016 76;

he commenced as acting General Manager of the JBU in April 2016, adding that in that role he had administrative responsibility for the staff working on preparing the tender for the CS&CS contract 77;

as acting General Manager of the JBU he did not work with JBU employees in a day-to-day sense 78;

he had no involvement in the preparation of Broadspectrum’s bid for the CS&CS contract, the engagement of the employees to assist with the preparation of that bid, setting the terms and conditions of employment for those employees, the preparation of the Agreement or bargaining for the Agreement 79; and

he had no knowledge of the processes that took place in the course of bargaining for the Agreement 80.

The statutory framework

[25] The relevant provisions of the Act are set out below.

186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(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; and

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).

Requirement that the group of employees covered by the agreement is fairly chosen

(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.

Requirement that there be no unlawful terms

(4) The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

Requirement that there be no designated outworker terms

(4A) The FWC must be satisfied that the agreement does not include any designated outworker terms.

Requirement for a nominal expiry date etc.

(5) The FWC must be satisfied that:

(a) the agreement specifies a date as its nominal expiry date; and

(b) the date will not be more than 4 years after the day on which the FWC approves the agreement.

Requirement for a term about settling disputes

(6) The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.

Note 1: The FWC or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

Note 2: However, this does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).

187 When the FWC must approve an enterprise agreement—additional requirements

Additional requirements

(1) This section sets out additional requirements that must be met before the FWC approves an enterprise agreement under section 186.

Requirement that approval not be inconsistent with good faith bargaining etc.

(2) The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.

Requirement relating to notice of variation of agreement

(3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), the FWC must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).

Requirements relating to particular kinds of employees

(4) The FWC must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.

Note: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.

…

188 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.” (Underlining added)

Consideration of the issues

[26] With regard to the statutory considerations set out in ss.186 and 187 of the Act, based on the material contained in Broadspectrum’s Form F17 and the other material before the Commission I am satisfied that the requirements of ss.186(2)(c), 186(2)(d), 186(3), 186(4), 186(4A), 186(5), 186(6) and 187 of the Act are met (as the Agreement is not a multi-enterprise agreement, s.186(2)(b) is not relevant in this case). What is in contest in this case is whether or not the Commission can be satisfied that s.186(2)(a) of the Act, which requires that the agreement has been genuinely agreed to by the employees covered by the agreement (underlining added), is met. Section 188 of the Act sets out when employees have genuinely agreed to an enterprise agreement. Based on the material before the Commission I am satisfied that the requirements of ss.188(a) and 188(b) are met. However, as can be seen from above, UV contends that there are reasonable grounds for believing that the Agreement was not genuinely agreed to by employees. While UV cites a number of reasons for that view, the two primary grounds that it relies upon are:

(i) the work performed by the four employees involved in making the Agreement was not covered by the Agreement as it fell outside the classifications covered by the Agreement; and

(ii) as all four employees were paid remuneration well in excess of that provided for in the Agreement, they had no stake in the Agreement.

[27] An analysis of the material before the Commission indicates that:

work was underway on Broadspectrum’s CS&CS contract bid in January 2016;

Broadspectrum was also bidding for various other correctional services contracts in 2016;

Mr Barker was appointed as acting General Manager of the JBU in April 2016;

contracts #1 and #2 were both dated 7 June 2016, specify 3 June 2016 as the commencement, were signed by the employees on 12 and 8 June respectively, and state that the position title is “Care & Security Officer”;

contracts #3 and #4 were dated 24 May 2016 and 6 June 2016 respectively and were signed by the respective employees on 25 May 2016 and 8 June 2016;

contract #3 states the position title is “Care & Welfare Officer”, while contract #4 cites the position title as “Care & Welfare Supervisor”;

the position titles specified in the employment contracts, i.e. Care & Security Officer, Care & Welfare Officer or Care & Welfare Supervisor, do not align with the position descriptions tendered by Broadspectrum 81 or the classifications in the Agreement despite the latter being made shortly after the employment contracts were signed;

the employment contracts do not specify the duties of the respective positions;

of the four employees, two continue to be employed by Broadspectrum in the JBU, one resigned in late August 2016 and the other was promoted to a position on Nauru (which is outside the JBU) in December 2016;

in terms of the employment backgrounds of the four employees, two were existing Broadspectrum employees working on Nauru, one had a mining sector background and the other worked as a casual bus driver;

based on Broadspectrum’s advice to the Commissioner who first determined the application, the work undertaken by the four employees involved:

“… establishing the systems and processes that potential clients expect Broadspectrum to have in place. They have worked on drafting, compiling and reviewing policies and operating manuals to suit the day-to-day operational requirements of tender requirements of the client as well as those required legislative by the client. They have been involved with the technical requirements of Broadspectrum bids for WA Court Security and Custody Services, Wandoo (WA), John Morony Correctional Facility (NSW) and Mt Gambier (SA). In addition to the processes and procedures for handling persons in care (PICs), they have worked on rostering and staffing requirements, methods for maximising staffing efficiencies, ways of ensuring OHS compliance given the nature of the work. As Broadspectrum wins work they will be engaged in their roles on those contracts.” 82(underlining added);

based on Ms Lawton’s evidence, the work undertaken by the four employees involved drafting training material, developing induction material, preparing drug and alcohol and safety behavioural training modules, and assisting her with the community services side of the CS&CS contract bid;

Broadspectrum was announced as the “Preferred Respondent” for the CS&CS contract on 31 August 2016 with the contract executed/signed on 27 October 2016;

prior to being awarded the CS&CS contract, Broadspectrum had no correctional services work;

it was intended that three of the four employees would transition to Care and Custody Officer (Inc Escorts) positions, with the other employee to transition to a Court Supervisor position when Broadspectrum commenced performing the CS&CS work;

Broadspectrum was scheduled to commence the delivery of services under the CS&CS contract on 24 March 2017;

the employees were each paid well in excess of the rates of pay in the Agreement, with the premium ranging from around $28,000 per annum to over $50,000 per annum (based on the Agreement’s minimum weekly wage and inclusive of the Justice Project Allowance where applicable);

in respect of two of the four employees, the remuneration provided for in their employment contract was to maintain their existing remuneration;

the Care and Custody Officer (Inc Escorts) position description 83 set out the position objective as follows:

“Responsible for maintaining a safe and secure environment for the transfer of PICs from police lock-ups to courts and Other Movement Services. To provide custodial care of PICs at a court in a caring and humane manner, whilst adhering to the requirements of good security, and to transport PICs to prisons in accordance with the instructions of the court”;

the Care and Custody Officer (Inc Escorts) position description set out the primary responsibilities and key deliverables under the headings “Court duties” and “Escort duties” and states, inter alia, that “This person may also be required to undertake any other activities as required”;

the Court Supervisor position description 84 set out the position objective as follows:

“The Position of a Court Supervisor is that of a Senior Care and security Officer who works full-time in uniform in a court and is personally responsible for the safe, secure and efficient performance of a specific court.

The role is to ensure the correct deployment of staff to courts and additionally to ensure the efficient performance of Care and Custody and Care and security Officers under his/her control in his/her court and the efficient management of custody areas within courts.”; and

the Court Supervisor position description also set out the primary responsibilities and key deliverables of the position in greater detail and states that “This person may also be required to undertake any other activities as required”.

[28] In ALDI Justice White stated:

“134 The matters listed in s 188 to which the FWC is to have regard in determining whether there has been genuine agreement to an enterprise agreement seem, with the possible exception of (c), to be of an objective kind. Nevertheless, it is the genuineness of the agreement by particular persons which the FWC is to assess, these persons being the employees “covered by” the agreement. There is, accordingly, an inherent requirement in s 186(2)(a) and s 188 that there be such persons. That is to say, it is implicit in s 186(2)(a) that there be persons covered by the agreement whose genuineness in agreeing to it (on the basis identified in s 188) can be assessed by the FWC. Persons who will become covered by the agreement only at some time in the future do not answer that description, even if they did, by some means, vote to approve it.

135 Further, in my opinion, the expressions “will be covered” and “covered by” in the scheme established by Pt 2-4 are counterpoints. Sections 172 to 181 use the former expression because they are concerned with the sequence of events until an enterprise agreement is made and because a contemplated enterprise agreement cannot cover anyone until it is made. The immediate change to the present tense following the final step in the sequence, that is, the making of the agreement (s 182), is an indication that those whom it was previously contemplated would be covered by the agreement are now, on the making of the agreement, covered by it (subject of course to the approval the FWC and the commencement of operation of the agreement pursuant to s 54). The change in terminology occurs because the work done by the term “will be covered” is complete. Because the two expressions are counterpoints, the expression “who will be covered by the agreement” is a reference to those who, upon the making of the agreement, are covered by it and is not a reference to those who, at some future time will become covered by it.”

[29] Drawing on the decision in ALDI and the analysis at paragraph [27] above, the fact that the four employees were engaged by Broadspectrum in May and June 2016, the Agreement was made on 5 July 2016, Broadspectrum was not announced as the “Preferred Respondent” for the CS&CS contract until 31 August 2016, the CS&CS contract was not executed/signed until 27 October 2016 and that Broadspectrum did not commence delivery under the contract until 24 March 2017 when considered together, raise doubts as to whether the employees were “covered by” the Agreement at the time at which it was made.

[30] Exploring that issue further, I note that Clause 2 – Coverage and Application of Agreement states that the Agreement:

“… shall cover and apply to:

(a) Broadspectrum (Australia) Pty Ltd; and

(b) Employees of Broadspectrum (Australia) Pty Ltd engaged within the Justice Business Unit in the classifications listed in Clause 17 in the Commonwealth of Australia.”

[31] Clause 2.2 of the Agreement states that the Agreement “shall not cover or apply to any managerial Employees.” Further, clause 17.2 of the Agreement provides that Schedules B of the Corrections and Clerks Awards ‘will apply for the purposes of determining the appropriate classification level for an Employee covered by this Agreement.”

[32] Schedule B of the Corrections Award includes the following classification descriptors which appear to align with the classifications to which appear to align with the classification descriptions tendered by Broadspectrum.

“B.5 Court Security Officer

B.5.1 A Court Security Officer is an employee who has fulfilled the training requirements set down for a Trainee court security officer, or who has been assessed as meeting these requirements through the employer’s RPL program, and whose indicative tasks will be limited to those specified therein.

B.5.2 The primary objective of the Court Security Officer is to ensure, on a day-to-day basis, the security of prisoners, staff, judiciary and the public within a court complex.

B.5.3 Indicative tasks for a Court Security Officer are to:

● Escort prisoners within a centre to the court/s when they are required on a day-to-day basis in accordance with approved routines and policies.
● Assist the centre in the administration of legal visits.
● Assist in searching of prisoners entering and leaving the centre, if required.
● Escort prisoners from the centre to external venues as required.
● Assist with the maintenance of the static security requirements of the centre, reporting, orally and in writing, any unusual behaviours or occurrences which could result in a breach of security.
● Comply with the Occupational Health and Safety legislation, other relevant legislation and EEO/EOWA requirements and contribute to the maintenance and improvement of safety and equity in the workplace.
● Organise for the repair of minor damage to furniture and fittings.
● Other duties as directed by the Centre Manager.

B.5.4 Competencies of a Court Security Officer are:

● Demonstrated knowledge of the Operating Manual and other policies and procedures of the employer.
● Demonstrated high level of communication skills, including the ability to negotiate and interact with people from various ethnic backgrounds.
● Ability to write comprehensive reports and correspondence.
● Ability to initiate new ideas and apply creative solutions to the resolution of problems.
● Ability to be decisive and handle situations in a firm, fair and equitable manner.
● Basic level of computer literacy.
● Demonstrated knowledge of EEO, Affirmative Action Plan and Workplace Health and Safety Principles.

B.6 Court Security Supervisor

B.6.1 A Court Security Supervisor is a person selected on merit to ensure on a day-to-day basis, the efficient delivery of prisoners to court/s within the centre by scheduling the prisoners in accordance with the court lists.

B.6.2 Indicative tasks for a Court Security Supervisor are to:

● On a daily basis ensure the prisoners are available for escort to the appropriate courts at the correct time.
● Identify the number of officers required each day and ensure the rosters are prepared, maximising the staffing efficiencies.
● Comply with the Safe Work Australia Act 2008 (Cth), other relevant legislation and EEO/EOWA and contribute to the maintenance and improvement of safety and equity in the workplace.
● Organise external escorts when required.
● Monitor and maintain the dynamic and static security requirements of the centre reporting, orally and in writing, any unusual behaviours or occurrences which could result in a breach of security.
● Supervise the Court Security Officers on a daily basis.
● Participate in quality assurance teams as assigned by management, in order to assist with the implementation of the quality standards in the centre.
● Other duties as directed by the Operations Manager or Centre Manager.

B.6.3 Competencies of a Court Security Supervisor are:

B.7 Custody Officer

B.7.1 A Custody Officer is an employee who has fulfilled the training requirements set down for a Trainee court security officer and has experience as Court Security Officer, or who has been assessed as meeting these requirements through the employer’s RPL program, and whose indicative tasks will be limited to those specified therein.

B.7.2 The primary objective of the Custody Officer is to ensure, on a day-to-day basis, the security and welfare of persons in custody in the centre.

B.7.3 Indicative tasks for a Custody Officer are to:

● Supervise the behaviour and activities of the prisoner in the centre on a day-to-day basis in accordance with approved routines and policies.
● Interact with the prisoners and respond to their needs through the provision of services in an appropriate manner in accordance with relevant legislation and the Operating Manuals.
● Monitor and maintain the dynamic and static security requirements of the centre reporting, orally and in writing, any unusual behaviours or occurrences which could result in a breach of security.
● Participate in the reception, induction and transfer of prisoners in accordance with client directions and centre policy and procedures.
● Assist with the supervision of prisoner visits, including families, solicitors etc.
● Comply with Occupational Health and Safety legislation, other relevant legislation and EEO/EOWA requirements and contribute to the maintenance and improvement of safety and equity in the workplace.
● Participate in quality assurance teams as assigned by management, in order to assist with the implementation of the quality standards in the centre.
● Other duties as directed by the Shift Manager and/or Centre Manager.

B.7.4 Competencies of a Custody Officer are:

B.8 Prisoner Escort Transport Officer

B.8.1 A Prisoner Escort Transport Officer is an employee who has fulfilled the training requirements as set down by the applicable transport contract in which they are employed. These requirements include as a minimum the successful completion of a formal structured induction program and an appropriate vehicle licence.

B.8.2 The primary objective of the Prisoner Escort Transport Officer is to ensure the humane and secure transportation (by road, rail and air) of prisoners.

B.8.3 Indicative tasks of a Prisoner Escort Transport Officer are to:

● Ensure that prisoners are received and handed into and from their custody in accordance with procedures concerning identification, documentation and receipt of property and cash.
● Ensure all property, cash and documents have been securely stored on the vehicle.
● Ensure the safe transport of prisoners from the collection to delivery point and primary responsibility for the security of prisoners during the escort.
● Ensure that prisoners in their custody are treated with care and sensitivity at all times including interacting with prisoners to their needs through the provision of services and assistance in an appropriate manner in accordance with the relevant legislation and the Operating Manual (or other procedures applying to the escort).
● Deal with complaints in accordance with procedures.
● Provision of timely incident reports in respect of all reportable incidents and follow other reporting requirements.
● Ensure that vehicles and equipment are in a safe and proper working order and are searched and cleaned prior to leaving base.”

[33] As previously noted, the alternative proposition put by Broadspectrum was that the employees were covered by the Clerks Award with clause B.5 and B.6 specifically referred to at the hearing 85. Schedule B of the Clerks Award sets out those classification descriptors as follows:

B.5 Level 4

B.5.1 Characteristics

Employees at this level will have achieved a level of organisation or industry specific knowledge sufficient for them to give advice and/or information to the organisation and clients in relation to specific areas of their responsibility. They would require only limited guidance or direction and would normally report to more senior staff as required. Whilst not a pre-requisite a principal feature of this level is supervision of employees in lower levels in terms of responsibility for the allocation of duties, co-ordinating work flow, checking progress, quality of work and resolving problems.

They exercise initiative, discretion and judgment at times in the performance of their duties.

They are able to train employees in Levels 1–3 by personal instruction and demonstration.

B.5.2 Typical duties/skills

Indicative typical duties and skills at this level may include:

(i) Secretarial/executive support services which may include the following: maintaining executive diary; attending executive/organisational meetings and taking minutes; establishing and/or maintaining current working and personal filing systems for executive; answering executive correspondence from verbal or handwritten instructions.

(ii) Able to prepare financial/tax schedules, calculating costings and/or wage and salary requirements; completing personnel/payroll data for authorisation; reconciliation of accounts to balance.

(iii) Advising on/providing information on one or more of the following:

● employment conditions;
● workers compensation procedures and regulations; and
● superannuation entitlements, procedures and regulations.

(iv) *Applying one or more computer software packages, developed for a micro personal computer or a central computer resource to either:

● creating new files and records;
● maintaining computer based management systems;
● identifying and extract information from internal and external sources; or
● using of advanced word processing/keyboard functions.

(v) Call centre customer contact team leader …

* Note: These typical duties/skills may be either at Level 3 or Level 4 dependent upon the characteristics of that particular level.

B.6 Level 5

B.6.1 Characteristics

Employees at this level are subject to broad guidance or direction and would report to more senior staff as required.

Such employees will typically have worked or studied in a relevant field and will have achieved a standard of relevant and/or specialist knowledge and experience sufficient to enable them to advise on a range of activities and features and contribute, as required, to the determination of objectives, within the relevant field(s) of their expertise.

They are responsible and accountable for their own work and may have delegated responsibility for the work under their control or supervision, including, scheduling workloads, resolving operations problems, monitoring the quality of work produced and counselling staff for performance and work related matters.

They would also be able to train and to supervise employees in lower levels by means of personal instruction and demonstration. They would also be able to assist in the delivery of training courses. They would often exercise initiative, discretion and judgment in the performance of their duties.

The possession of relevant post secondary qualifications may be appropriate but are not essential.

B.6.2 Typical duties/skills

Indicative typical duties and skills at this level may include:

(i) Apply knowledge of organisation’s objectives, performance, projected areas of growth, product trends and general industry conditions.

(ii) Application of computer software packages within either a micro personal computer or a central computer resource including the integration of complex word processing/desktop publishing, text and data documents.

(iii) Provide reports for management in any or all of the following areas:

● account/financial;
● staffing;
● legislative requirements; and
● other company activities.

(iv) Administer individual executive salary packages, travel expenses, allowances and company transport; administer salary and payroll requirements of the organisation.

(v) Call centre principal customer contact leader …

An employee who holds a Diploma—Front Line Management or equivalent is to be classified at this level when employed to perform the functions defined.”(Underlining added)

[34] A comparison of the evidence regarding the work undertaken by the four employees who made the Agreement and the classification descriptors in the Corrections and Clerks Awards indicates that the work performed by the four employees at the time the Agreement was made bears little, if any, resemblance to the classification descriptors set out above. The only possible exception is in respect of contract #4 on the basis of that employee’s potential supervisory responsibilities, which would potentially bring that position within the coverage of the Clerks Award.

[35] As to whether or not the work performed by the employees was covered by the Agreement’s classifications, as previously mentioned, Broadspectrum relied on the decision in Carpenter. In that case a Full Bench of the then Australian Industrial Relations Commission observed that:

“In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not ‘‘employed in the process, trade, business or occupation of . . . soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials’’ and was not, therefore, covered by the award.” 86 (References not included, underlining added)

Ms Lawton’s evidence was that she sought approval to engage the four employees after considering the work involved in preparing Broadspectrum’s various bids for correctional services work, including the CS&CS contract, and that there were “some 22 plus” online training modules which had to be developed. This suggests that the primary purpose the employees were engaged for was to undertake the necessary preparatory work relating to the various tenders for correctional services work which Broadspectrum was pursuing rather than work performed by the classifications listed in clause 17 of the Agreement. While I note Broadspectrum’s email response to the Commissioner which stated that “As Broadspectrum wins work they will be engaged in their roles on those contracts” 87, I also note that employees would not have transitioned to those operational roles until 24 March 2017 when Broadspectrum commenced work under the CS&CS contract. This is some 260 days after the Agreement was made. This does not support a finding that the principal purpose for which the employees were employed was the positions specified in their contracts or that they were therefore covered by the Agreement.

[36] In summary, the above analysis does not support a finding that the Agreement was genuinely agreed to as the employees were not covered by the Agreement when it was made.

[37] Against that background, it is not necessary for me to consider whether the employees had a stake in the Agreement given that their remuneration was well in excess of that provided for in the Agreement.

Conclusion

[38] For all the above reasons, I consider that there are reasonable grounds for believing that the Agreement was not genuinely agreed to by the employees. As a result, I am not satisfied that the Agreement was genuinely agreed to as required by s.186(2)(a) on the basis that the employees who made the Agreement were not covered by the Agreement at the time it was made. Accordingly, the Agreement cannot be approved. An Order dismissing the application will be issued in conjunction with this decision.

Appearances:

J. Snaden of Counsel for the Applicant.

S. Bull for United Voice.

Hearing details:

2017.

Canberra and Sydney:

March 10.

1 [2016] FWCA 8209

2 [2016] FWC 7936

3 Ibid at [8]

4 [2016] FWCFB 871

5 Ibid at [11]

6 Exhibit 1

7 Exhibit 2

8 Exhibit 6

9 PR590781

10 AE416207

11 (2014) 246 IR 21

12 Ibid at paragraph 60

13 Transcript at PN97

14 Ibid at PN109-116

15 Ibid at PN130

16 Exhibit 2

17 Transcript at PN136

18 Ibid at PN141-143

19 Exhibit 1

20 Transcript at PN144-150

21 Ibid at PN161;

22 Exhibit 1

23 Transcript at PN179-191

24 Ibid at PN193-207

25 Ibid at PN212-215

26 Exhibit 1

27 Transcript at PN223-224

28 Ibid at PN225-228

29 Ibid at PN234-250

30 Ibid at PN251-269

31 Ibid at PN270-271

32 Ibid at PN273

33 Ibid at PN277-294

34 Exhibit 1

35 Transcript at PN295-301

36 Ibid at PN306-310

37 Ibid at PN311-316

38 Ibid at PN325

39 Ibid at PN329-333

40 Ibid at PN326-328

41 Exhibit 1

42 Transcript at PN349-363

43 Ibid at PN364

44 Ibid at PN372-375

45 Ibid at PN384

46 Ibid at PN401-403

47 Ibid at PN412-415

48 Ibid at PN423-425

49 Ibid at PN434

50 Ibid at PN443

51 Ibid at PN461

52 Ibid at PN475-488

53 Ibid at PN500

54 Ibid at PN534

55 Exhibits 4 and 5

56 [2016] FWCFB 871 at [22] and [24]

57 MA000110

58 Exhibit 2

59 Ibid

60 MA000002

61 (2016) 257 IR 266

62 (2002) 122 IR 387

63 [2016] FCAFC 161

64 [2015] FWCFB 4422

65 (2015) 247 IR 55

66 [2017] FCFB 781

67 [2017] FWC 852

68 Exhibit 1

69 Ibid

70 Ibid

71 Ibid

72 [2015] FWCFB 1833

73 [2017] FWC 718

74 Ibid at page 12

76 Transcript at PN588

77 Ibid at PN596-598

78 Ibid at PN604

79 Ibid at PN631-635

80 Ibid at PN636

81 Exhibit 2

82 Exhibit 5

83 Exhibit 2

84 Ibid

85 Transcript at PN693

86 (2002) 122 IR 387 at paragraph 9

87 Exhibit 5

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