BROADSPECTRUM PROJECT SERVICES ENTERPRISE AGREEMENT 2019

[2020] FWCA 205

[2020] FWCA 205

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadspectrum Australia Pty Limited t/a Broadspectrum
(AG2019/3782 & AG2019/4670)

BROADSPECTRUM PROJECT SERVICES ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 21 JANUARY 2020

Applications for approval and variation of the Broadspectrum Project Services Enterprise Agreement 2019.

[1] Broadspectrum has applied for approval of a single enterprise agreement known as the Broadspectrum Project Services Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). During the course of those proceedings, Broadspectrum applied for variation of the Agreement under s.217 of the Act.

[2] I have determined to approve the Agreement and to allow the variation of the Agreement as approved. The reasons for this decision follow.

Context

[3] Bargaining for an enterprise agreement to replace the Transfield Services Limited (Illawarra Operations & Maintenance Services – NSW) Enterprise Agreement 2015-2017 (Transfield Services Agreement) commenced on 19 February 2019.

[4] Each of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), the Australian Workers’ Union (AWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were bargaining representatives of employees to be covered by the proposed enterprise agreement and involved in the negotiations.

[5] On 20 September 2019, the Agreement was made when a majority of Broadspectrum’s employees to be covered by the Agreement voted to approve it.

[6] On 3 October 2019, the application for approval of the Agreement was filed with the Commission (Approval Application).

[7] Initially, the bargaining representatives advised the Commission as follows:

a) The AWMU and the AWU supported approval of the Agreement however elected not to advise the Commission whether they agreed with Broadspectrum’s statutory declaration accompanying the application; 1

b) The CFMMEU opposed approval on the basis that the Agreement was not “genuinely agreed” within the meaning of s.188, and sought to be heard in relation to its opposition. 2

[8] On 23 October 2019, the CFMMEU’s objection was programmed for hearing with the exchange of materials in advance. The AMWU joined the CFMMEU in its opposition. In filed materials, the CFMMEU and the AMWU elaborated on the objection(s) as follows:

a) The Agreement was not genuinely agreed for the purposes of s.188(1)(c) of the Act and coverage was not fairly chosen for the purposes of s.186(3) and (3A) of the Act (First Objection);

b) Relatedly, Broadspectrum did not take all reasonable steps to ensure that the terms and effect of the Agreement were explained to the relevant employees for the purposes of s.180(5), namely the coverage provision (Second Objection); and

c) The requirement at s.180(2) was not met because Broadspectrum did not provide employees with copies of the Building and Construction General On-Site Award (Award), or access to copies, and the Award is incorporated in the Agreement (Third Objection).

[9] On 3 December 2019, Broadspectrum filed an application to correct an ambiguity or uncertainty in the Agreement (Variation Application). The Variation Application sought to vary the provision of the Agreement which defines its scope, fundamental to the First and Second Objections about the Approval Application.

[10] By consent, the applications were heard together on 5 December 2019. 3

[11] At the hearing, the AMWU and the CFMMEU advised the Commission that they respectively supported the Variation Application and, if varied, also supported (and withdrew objection to) approval of the Agreement. 4

[12] Closing submissions were filed on 9 December 2019.

Procedural approach

[13] The objects of Part 2-4 of the Act, in which both ss.185 and 217 appear, are to provide a simple, flexible and fair framework that enables collective bargaining in good faith and for the Commission to facilitate the making of enterprise agreements (including by ensuring that applications for approval of enterprise agreements are dealt with without delay). 5

[14] In an orthodox application for approval under s.185, the enterprise agreement the Commission is obliged to assess in determining whether the approval requirements at ss.186 and 187 are met is the enterprise agreement that was “made” when approved by a majority of employees to be covered within the meaning of s.182(2) which is also the enterprise agreement required to be filed by a bargaining representative under s.185(1).

[15] An enterprise agreement is a “statutory artefact”, not able to be varied other than in compliance with the specific provisions of the Division 7 of Part 2-4 of the Act. 6

[16] In Teys, the Full Court considered there to be a “nice question” as to whether an enterprise agreement may be varied in compliance with the Act after lodgement under s.185 but before approval under s.186. 7 The question was not ultimately resolved, as it was not necessary in the context of that case.

[17] In this case, the CFMMEU and the AWMU invited the Commission to determine the matters concurrently in reliance on approaches taken in CFMMEU v Macmahon Contractors Pty Ltd and CFMMEU v Specialist People Pty Ltd. 8 However, in each of those cases, the consideration of s.217 arose in the context of the appeal of a prior decision to approve the enterprise agreement. The question posed in Teys was still not resolved, again because it was not necessary to do so.

[18] I consider there is a legitimate basis for the view that the Commission may exercise the power under s.217 in relation to an enterprise agreement that is subject of an approval application but not yet approved by the Commission. Indeed that course may be appropriate to achieve the objects of Part 2-4. However, as I was not specifically addressed on this point and having regard to the particular circumstances of this case, I have proceeded to determine the Approval Application before turning to consider the Variation Application.

The Approval Application

Statutory framework

[19] Once an enterprise agreement is made under s.182(1), a bargaining representative is required by s.185(1) to apply to the Commission for its approval.

[20] The Commission is obliged to approve the enterprise agreement if the requirements of ss.186 and 187 are met, although there is some scope to accept undertakings pursuant to s.190 and to waive certain non-compliance pursuant to s.188(2).

Consideration

[21] Since the Approval Application was made, concerns were raised about whether the pre-approval requirements were met (the First, Second and Third Objections referred to above). Further information and evidence was provided in relation to those concerns.

[22] Subsequently, all objections were withdrawn contingent on the Commission’s satisfaction to grant the Variation Application. Notwithstanding this, I am obliged to have regard to those concerns in reaching the requisite satisfaction that the pre-approval requirements were met.

The First and Second Objections – scope of the Agreement

[23] Both the First and Second Objections related to the scope at clause 2 of the Agreement. Specifically, whether it was “fairly chosen” (ss.186(3), 186(3A) and 188(1)(c) (relevant to the First Objection)) and whether all reasonable steps were taken to explain its terms and effect (ss.186(2)(a), 188(1)(a), 180(5) (relevant to the Second Objection)).

[24] The Agreement is drafted at clause 2.1 to cover employees of Broadspectrum engaged in particular (trades and non-trades) classifications “engaged on Contract Maintenance and Miscellaneous Services Work that is undertaken by the Company’s Project Services Administration”. Coverage can only be understood by reference to additional sub-clauses 2.2 to 2.5, several defined terms at clause 9 and the classifications at clause 39.

[25] The initial application is accompanied by a statutory declaration which states that the Agreement does not cover all employees of Broadspectrum, and that the group of employees covered was fairly chosen because they perform work that is operationally and organisationally distinct within Broadspectrum’s business structure (resources sector) and are managed by its Project Services Administration. 9

[26] As the proceedings evolved, materials were filed with the Commission which support the contention that the Agreement is also geographically distinct with its operation being confined to the State of New South Wales. There was evidence of a CFMMEU Organiser, CFMMEU Delegate and an AMWU Industry Organiser including a history of the negotiations for the Agreement; that the Agreement was intended to be a rollover of the presently applicable Transfield Services Agreement, which covers only the State of New South Wales and does not cover the Botany Industrial Park; that there was mutual agreement to retain the same scope or coverage as the Transfield Services Agreement; the explanation given to employees was consistent with the negotiations in that there was no change to the scope and location of the Agreement other than “to reflect that there can be more than one site at any time”; and it was not explained to employees that scope or coverage had been changed prior to the vote. 10

[27] The bargaining representatives’ evidence is consistent with the scope of the proposed enterprise agreement as described in the Notice of Employee Representational Rights issued at the commencement of bargaining. 11

[28] Whilst the drafting could have been clearer (dealt with further below), there is no dispute about the intended area of operation and limitations on coverage of the Agreement. I am satisfied that the mutual intent of the negotiators as to coverage is an interpretation that is available on the Agreement as made and subject of the Approval Application. The subsequent filing of the Variation Application by consent only serves to reinforce the unanimous and common understanding of Broadspectrum, the AMWU and the CFMMEU in this respect and was not opposed by the AWU.

[29] On the materials before the Commission, and taking into account the factors at s.186(3A), I am satisfied that the group of employees covered by the Agreement was fairly chosen within the meaning of s.186(3).

[30] Further, as the explanation of the terms and effect of the Agreement (including as to coverage) was consistent with the common understanding and mutual intentions of the negotiators, I am satisfied that the explanation was appropriate. Accordingly, I am satisfied that the Agreement was “genuinely agreed” within the meaning of s.188(1)(a) and s.180(5) and that there is no other reasonable ground for finding otherwise pursuant to s.188(1)(c).

The Third Objection – giving or giving access to incorporated materials

[31] The Third Objection related to whether “all reasonable steps” were taken by Broadspectrum to give the employees a copy of, or ensure access to, the Award as required by ss.186(2)(a), s.188(1)(a) and 180(2).

[32] It is not contentious that the Award is a document incorporated in the Agreement. 12

[33] On the evidence before the Commission, the Award is also incorporated in the presently applicable Transfield Services Agreement. The continued incorporation of the Award was a term expressly referenced in written explanatory materials (among other explanations given about the terms and effect of the Agreement) distributed during the statutory access period. The Award was also referenced in (but does not appear to have been attached to) a pack of materials given to the relevant employees, during the statutory access period. 13 Further, the Award is a publicly available document to which employees would have had access to understand their presently applicable terms and conditions.

[34] However, in the absence of any evidence of an express action taken by Broadspectrum to give a copy of the Award in explanatory materials or at least make a copy available in the workplace, I find there was a failure to take “all” reasonable steps in compliance with the requirement at s.180(2).

[35] To the extent of this strict non-compliance with the requirement at s.180(2), in the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others, 14 I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

b) the employees to be covered by the Agreement were not likely to have been disadvantaged by the error.

[36] On the basis of the material contained in the Approval Application and further information and evidence provided on request of the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. Further, that the Agreement was genuinely agreed within the meaning of s.188(2).

[37] The Agreement was approved on 21 January 2020 and, in accordance with s.54, it will operate from 28 January 2020. The nominal expiry date of the Agreement is 28 January 2023.

[38] The AMWU, the AWU and the CFMMEU, being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers these organisations.

The Variation Application

Statutory framework

[39] Division 7 of Part 2-4 provides for an enterprise agreement to be varied. Section 217 is found in Subdivision B “Variations of enterprise agreements where there is ambiguity, uncertainty or discrimination”.

[40] The principles that apply to the Commission’s consideration of an application under s.217 are usefully outlined in Specialist People. 15 In summary:

a) there must be an identification of whether there is an ambiguity or uncertainty in the Agreement, which requires an objective assessment of the words in question, construed in context; and

b) only if an ambiguity or uncertainty is identified must the Commission then consider whether to exercise its discretion to remove the ambiguity or uncertainty, as distinct from giving effect to a new and substantive change that was not present when the Agreement was made.

[41] The discretion under s.217 is to be exercised having regard to the evident statutory purpose of the provision, read in the context of Part 2-4 and the Act as a whole, and taking into account the circumstances of the relevant application.

Consideration

[42] The Commission has before it an application to vary a single enterprise agreement under s.217. The application was made by Broadspectrum as the employer covered by the Agreement.

[43] Broadspectrum, supported by the CFMMEU and the AMWU, contends that clause 2 of the Agreement is plainly ambiguous and/or uncertain.

[44] When regard is had to the defined terms at clause 9 (and other operative provisions at clauses 20.1.2, 26.1, 26.2, 29, 40.6 and 40.3), it would appear that the intention of clause 2 is obvious. However, the coverage of the Agreement at clause 2 is not expressly limited to the State of New South Wales and does not expressly exclude employees at the Botany Industrial Park. Accordingly, I accept that a plain and objective reading of clause 2 of the Agreement as made supports a finding that it is textually uncertain in relation to whether its scope is confined to the State of New South Wales and in terms of its exclusions.

[45] Having identified uncertainty (but not ambiguity) at clause 2 of the Agreement, I am required to consider whether this is an appropriate case to exercise the discretion. In weighing whether to exercise the discretion, I have taken into account the consent of the employer, the AMWU and the CFMMEU; and the absence of any opposition by the AWU. The uncertainty was only identified during the course of the Approval Application proceedings. The proposed variation is agreed and is consistent with the previous enterprise agreement and the mutual intention of the parties to the negotiations for the Agreement. It would not give effect to a new and substantive change that was not present when the Agreement was made.

[46] In the circumstances and on the materials before the Commission, I can identify no reason that tells against the exercise of the discretion.

[47] For the above reasons, the Agreement as approved on 21 January 2020 is to be varied in the terms at Schedule A to this Decision. The variation is to operate from 28 January 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE506762 PR715923>

SCHEDULE A

The Broadspectrum Project Services Enterprise Agreement 2019 is varied as follows:

1. Clause 2.1:

This Agreement shall apply to Broadspectrum (Australia) Pty Limited employees, who are employed in the classifications set out in clause 39 of this Agreement, engaged on Contract Maintenance and Miscellaneous Services Work that is undertaken by the Company’s Project Services Administration in the state of New South Wales.

2. Clause 2.2:

Exclusions: This agreement shall not apply to Supervisors, Managers, Planners, and Engineers; nor shall it apply to any contract of work pertaining to Snowy Hydro 2 Greenfield construction; nor shall it apply to any contract where the Company already has an approved enterprise agreement in place covering such work. For the avoidance of doubt this agreement shall not apply to maintenance and miscellaneous services work at Botany Industrial Park or work which is otherwise covered under the agreement ‘Broadspectrum (Botany Industrial Park & Other Sites- NSW) Enterprise Agreement 2017’, or any agreement which replaces that agreement.

 1   AMWU’s Form F18 dated 30 September 2019 and AWU’s Form F18 dated 1 October 2019.

 2   CFMMEU email to the Commission dated 14 October 2019.

 3   Broadspectrum’s email to the Commission dated 2 December 2019; AMWU’s email to the Commission dated 3 December 2019; the AWU and the CFMMEU did not oppose.

 4   The AWU did not attend the Hearing or seek to engage with the process after filing its Form F18 which supported approval.

 5   Section 171 of the Act.

 6   Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees’ Union [2016] FCAFC 122 at [19] (Teys).

 7   Ibid.

 8   [2018] FWCFB 4429 (Macmahon) and [2019] FWCFB 6307 (Specialist People).

 9   Broadspectrum’s Form F17 dated 30 September 2019 at item 2.2.

 10   Witness Statement of Anthony Dimitriou dated 8 November 2019; Witness Statement of David Selles dated 14 November 2019; and Witness Statement of Gavin Bubb dated 7 November 2019.

 11   Attached to the Approval Application filed on 3 October 2019.

 12   Clause 4 of the Agreement.

 13   Broadspectrum’s Form F17 dated 30 September 2019 at items 2.5, 2.7, 2.9 and attachments.

 14   [2019] FWCFB 318.

 15   At [41] to [42].