C & L Constructions (WA) Pty Ltd

[2019] FWCA 4815

[2019] FWCA 4815

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

C & L Constructions (WA) Pty Ltd
(AG2019/1074)

C & L CONSTRUCTIONS (WA) PTY LTD ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 10 JULY 2019

Application for approval of the C & L CONSTRUCTIONS (WA) PTY LTD ENTERPRISE AGREEMENT 2019.

[1] C & L Constructions (WA) Pty Ltd (C&L) has made an application for the approval of an enterprise agreement known as the C & L CONSTRUCTIONS (WA) PTY LTD ENTERPRISE AGREEMENT 2019 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] There were several issues identified concerning the pre-approval steps. The first concerned whether the Agreement had been ‘genuinely agreed’ to by the employees covered by the Agreement.

Genuinely agreed to – was there compliance with s 180(5)

[3] Section 188(1) of the Act provides that an agreement has been genuinely agreed to by the employees covered by the agreement if the Commission is satisfied that the employer has complied with requirements set out in that section, including those in s 180(5) of the Act.

[4] Further s 180(1) of the Act requires that before an employer requests a group of employees to approve an enterprise agreement by voting for it, the employer must comply with requirements including the requirement at s 180(5) that:

The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

[5] The issue at the heart of the requirement in s 180(5) of the Act is to ensure genuine and informed consent to the terms of the proposed agreement. 1

[6] Whether s 180(5) has been complied with involves an evaluative judgment. 2 This is because the Commission must assess whether ‘reasonable steps were taken by the employer’.3 Whatever steps may be necessary will depend upon the facts and circumstances of each particular case; but it has been found that those steps are not satisfied by a person reading – without explanation – the terms of an agreement to an employee.4

[7] The Form F17 set out the steps taken by C&L to explain the terms of the Agreement. Attached to the Form was the explanatory material that C&L had relied upon to provide, in part, its explanation to the relevant employees. 5 Having reviewed the material provided, it was observed that at clause 6.4 of what was referred to as the ‘Explanation Sheet’ there was a section titled ‘What increase in hourly rates can be expected?’ It noted that C&L would review the rates of pay and allowances to ensure that the rates met all award obligations including increases due to the Fair Work Commission’s National Wage Decision. It was further observed that the wage rates under the Agreement were not significantly higher than the reference instrument. Given that the period of operation of the Agreement was some four years, it was reasonable to assume that at some point during the operation of the Agreement the rates of pay and allowances would be the same as that provided by the reference instrument (ie not better off overall than the rates of pay under the relevant award).

[8] The issue that therefore arose was whether the explanation that was provided to employees informed them that during the operation of the Agreement the rates of pay and allowances would be equivalent to those in the Building and Construction General On-Site Award 2010. Meaning the rates of pay would not be better off overall.

[9] C&L was directed to file submissions and evidence in response to the first issue. Mr Bernie O’Reilly, a Consultant engaged by C&L to assist with the pre-approval steps, gave evidence of the explanation that he had provided to the relevant employees at the Faulkner Park site in Belmont on 21 March 2019. 6 Similarly, Mr Mark Hudston, a fellow Consultant engaged by C&L, met with relevant employees at Midland on 25 March 2019, and like Mr O’Reilly, expressed that the employees were informed that the Agreement established base rates of pay only, and that such rates would be reviewed annually to ensure they met the award obligations including increases due to the National Wage Decision.7

[10] I am satisfied that in the circumstances of this case C&L took all reasonable steps to explain the terms of the Agreement and their effect to the relevant employees. The steps taken were comprehensive and the explanation content appears detailed.

Were the twenty-three employees employed at the time?

[11] On 13 June 2019, C&L was invited to provide submissions in light of the Full Bench’s recent decision in Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd t/as Manly Fast Ferry [2019] FWCFB 7224 (Manly Fast Ferry), as all of the employees with whom the Agreement was made were casual employees.

[12] In Manly Fast Ferry the Full Bench noted that ‘a person who is a casual employee but who is not working on a particular day or during a particular period, is unlikely to be employed on that day or during that period’, 8 and thus, unlikely to be ‘employed at the time’ as the phrase is relevant to the criteria in s 181 of the Act.

[13] In response to this invitation, C&L provided detailed written submissions, and a Statutory Declaration of Mr Ross Barden, Operations Manager. Attached to Mr Barden’s Statutory Declaration were copies of employee records of the employees (the employees) who voted to approve the Agreement and would be covered by it. Having been informed that the records provided did not cover the day of the vote, Mr Barden filed a further Statutory Declaration to which further records for the employees were attached.

[14] The employee records include copies of payments made to, and hours worked by, the employees from 18 January 2019 through 4 April 2019. Relevantly, during this period the Agreement was negotiated and made. Having considered those records, I am satisfied that the employees were employed at the time, as the term is understood by s 181(1) of the Act. Additionally, the timesheets make clear that all 23 employees were regularly engaged through the entire agreement making process.

Conclusion

[15] The Employer has provided written undertakings. A copy of the undertakings are attached as Annexure A. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. No objections were raised.

[16] 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.

[17] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[18] The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

[19] The Agreement was approved on 10 July 2019 and, in accordance with s 54, will operate from 17 July 2019. The nominal expiry date of the Agreement is 9 July 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A

 1   Coles Supermarkets Australia Pty Ltd v Shop, Distributive and Allied Employees Association Print T2319 [20].

 2   One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 [105].

 3   Ibid.

 4 Ibid [103].

 5   Employers statutory declaration in support of the application for approval of an enterprise agreement (other than a greenfields agreement) of Ross Barden dated 5 April 2019 (Form F17).

 6 Statutory Declaration of Mr Bernie O’Reilly dated 18 June 2019 [2].

 7 Statutory Declaration of Mr Mark Hudston dated 18 June 2019 [2].

 8   Manly Fast Ferry [2019] FWCFB 7224 [22].