Canterbury Meats Pty Ltd

[2014] FWCA 2917

[2014] FWCA 2917

The attached document replaces the document previously issued with the above code on 2 May 2014.

A number of typographical errors and changes to punctuation and grammar have been made throughout this Decision. The following changes have also been made.

In the second sentence of paragraph [3] the name of the BFUE has been corrected.

Revisions have been made to phrasing and expression in paragraphs [2], [7], [28], [33], [36] [44], [45], [49], [50], [54], [59], [32] and [64].

Annalise Quint

Associate to Commissioner Lewin

Dated 23 May 2014.

[2014] FWCA 2917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Canterbury Meats Pty Ltd
(AG2014/3819)

CANTERBURY MEATS ENTERPRISE AGREEMENT 2013

Meat Industry
COMMISSIONER LEWIN	MELBOURNE, 2 MAY 2014

Application for approval of the Canterbury Meats Enterprise Agreement 2013 - approval opposed - Notice of employee representational rights - explanation of terms of Agreement - access to written text of Agreement and incorporated terms - employees of diverse cultural and linguistic backgrounds - all reasonable steps - whether Notice of employee representational rights must be in languages other than English - whether explanation of terms of Agreement likewise - whether access to written text of Agreement and incorporated terms likewise.

Introduction

[1] This decision concerns an application by Canterbury Meats Pty Ltd (Canterbury) for approval of the Canterbury Meats Enterprise Agreement 2013 (the Agreement), under s.185 of the Fair Work Act 2009 (the Act). The Agreement was made on 13 February 2014. On that day a ballot of employees whose employment would be covered by the terms of the Agreement was held in accordance with s.181 of the Act. The result of the ballot, as shown in material supplementing the Application 1 for approval, was as follows:

How many employees will be covered by the agreement? 440

How many employees cast a valid vote? 345

How many employees voted to approve the agreement? 175

[2] The Australasian Meat Industry Employees Union (AMIEU), was a Bargaining Representative for the Agreement, AMIEU opposes the approval of the Agreement. The AMIEU submit that the Agreement has not been genuinely agreed to by the employees whose employment would be covered by the Agreement, as required by s.186 (2) (a)of the Act.

[3] During bargaining for the Agreement there was another organisation which was a bargaining agent for the Agreement, namely, the Bacon Factory Union of Employees (the BFUE). BFUE does not oppose the approval of the Agreement.

[4] S. 186 of the Act prescribes the circumstances when employees will have genuinely agreed to the terms of an enterprise agreement to cover their employment.

[5] The provisions of s. 186 (2) (a) are set out below:

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)).

[6] The AMIEU submit that Canterbury have failed to comply with the requirements of s. 188 (a) (i), as referred to in Note 1 of s. 186 (2) of the Act, namely the pre-approval steps prescribed in s. 180 of the Act, which refer to the terms of s.188 of the Act.

[7] The terms of s. 188 is set out below:

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.

[8] The AMIEU also submit that Canterbury failed to comply with s. 173 and s. 174 of the Act and the relevant Regulations, which require that when enterprise bargaining is to commence an employer must take all reasonable steps to give relevant employees a Notice of representational rights, the content of which is specified by the legislation.

The Proceedings

[9] The matter was heard in Brisbane on 15 April 2014. Mr Dalgliesh appeared for the AMIEU. Mr Pratt appeared for Canterbury.

[10] The following persons gave evidence

• Mr W Stiff - Managing Director of Canterbury



• Mr Dong Hwan Kim - Labourer, Canterbury - Korean interpreter used



• Mr Daniel Clarke - Slaughter man, Canterbury



• Mr Kevin Rielly - Slaughter man, Canterbury

Issues for Determination

[11] In order to consider the application for approval of the Agreement in light of the AMIEU’s submissions it is convenient to summarise the issues which must be determined on the basis of what has been put to the Commission. It seems to me that the following questions must be answered:

Did Canterbury take all reasonable steps:

• to give to each employee whose employment would be covered by the Agreement a Notice of representational rights as prescribed by the Act and the Regulations?



• to ensure that the content of that Notice was as prescribed?



• to ensure that the relevant employees were given access throughout the access period (prescribed by s. 180 (4) of the Act) to a copy of the written text of the Agreement and any other material incorporated by reference in the Agreement?



• to explain the terms of the Agreement to the relevant employees in an appropriate manner, having regard to the culturally and linguistically diverse background of the employees whose employment would be covered by the Agreement?

Notice of Representational Rights; s. 173 and s. 174 of the Act

[12] Mr Stiff filed an Affidavit and testified to the truth of its contents which are as follows:

1. I am the Managing Director of Canterbury Meats (CM).

2. I have owned and operated CM since its establishment in July 2000.

3. CM provides direct processing services to John Dee Warwick Pty Ltd’s Export Establishment located in Warwick, Queensland.

4. From the year 2000 we have provided second shift boning operations which expanded to plant wide operations, including Slaughter and day Boning operations, in August 2006.

5. I have been onsite at Warwick since September 1992. During that time I have managed all industrial relations on site. Prior to late 2013 I have never had any communications with the Australasian Meat Industry Employees’ Union (AMIEU).

6. CM originally employed production labour under the Ham, Bacon and Smallgoods State Award. This award became a NAPSA before full transition to the Federal Modern Award.

7. Our first Canterbury Meats Enterprise Agreement 2009-2012 was certified by Commissioner Asbury in February 2010.

8. In the absence of any new agreement we continue to work to this 2010 Agreement.

9. Since July 2000 I have worked with the Bacon Factories Union of Employees as the recognised Union on site. The BFUE was a signatory to the 2010 Agreement and was the appointed bargaining representative for the 2013 Agreement.

10. We publically posted the Notice of Employee Representational Rights (“Notice”) in February 2013. On 11th February 2013 I sent an email to our Personal Officer requesting the public posting and display of the Notice. The Notice was placed on our staff notice board accordingly. A copy of my email and Notice is attachment “WS-1” to this affidavit.

11. Following the Notice being displayed negotiations were commenced with employee and BFUE representatives.

12. Negotiations continued through 2013 with 2 ballots held in late 2013.

13. Numerous information sessions were held through late 2013 with all employees prior to the first ballot. These sessions were held in different locations depending upon the size of the group involved (different teams differ in number). Some sessions were held in our Training Room others in our large amenities the Loadout Section. All employee attendances to these sessions were paid and the sessions were conducted during work (paid) time.

14. In total 7 sessions were conducted in order to allow all employees access to at least one information session.

15. BFUE representation was present at all information sessions. All attendee to these sessions were encouraged to speak and to ask questions.

16. Numerous informal explanatory discussions were held on the factory floor between Pat Bohan our Assistant Works Manager and individual employees over the ensuing period.

17. Printed copies of the entire Agreement were made available in the Personnel Office and lunch rooms prior to the first ballot and as a reprint before the second ballot. All employees were told they could take a full copy of the agreement from the Personnel Office at any time. There was a pile of agreement copies made available for employees to take if they wanted to.

18. At various times though 2013 and early 2014 the BFUE posted notices relevant to the negotiations and upcoming ballots. In total six separate notices were posted. The BFUE notices are attachment “WS-2” to this affidavit.

19. Following final negotiations on 3rd February 2014 I issued a letter which was handed to all staff. This letter was also posted as an A3 Poster in conspicuous places around the CM plan (Letter Notice). A copy of the Letter Notice is attachment “WS-3” to this affidavit. The Letter Notice set out the final negotiated changes to the agreement and advised of the ballot arrangements.

20. The “final negotiated changes” mentioned in the paragraph above were purely concerning the timing of payment. I thought it important to briefly address what I had become aware of were a number rumours that I felt had the potential to confuse employees. This was most disappointing as we had made considerable effort to not only negotiate the agreement but also inform staff of the agreement content. The relevant pay rates and increase timings were attached to the issued letter and poster.

21. The entire 2013 agreement was much in line with the 2010 agreement except for minor administrative details and the fact that we had negotiated that employees could be called in to work up to 6 mandatory Saturday shifts of 6 hours production time. Saturday shifts of 6 hour production time. Saturdays were to be paid at overtime rates, should the Company have a requirement to schedule production. Base rates were increase as part of negotiations.

22. Written notifications of the second ballot were provided to foreign workers throughout the plant. These notifications were in Korean and Chinese and were circulated by our Production Supervisor, namely John Calvert. A copy of the Korean notification is attachment “WS-5” to this affidavit.

23. The third ballot was held on 13th February 2014. At this vote the majority of employees voted YES to accept the Canterbury Meats Enterprise Agreement 2013. This is the agreement that was lodged with the accompanying forms; F17 and F18, for registration.

24. We employ some employees on 417 Working Holiday Visas. Employment of these visa holders is strictly limited to a maximum 6 month period on site. The itinerant nature of these “back packers” means that employment is often of a duration that is much less than 6 months. Visa’s can be issued to any foreign country that has a reciprocal arrangements with Australia.

25. Visa Holders are supplied by the Australian Immigration Department with a three page typed English text which outlines the terms and conditions of the Visa. A copy of the document and email sent from Dong Hwan Kim is attachment “WS-6” to this affidavit.

26. Employees on site are employed pursuant to the terms of our current Enterprise Agreement 2009-2012.

27. All employees must be inducted in our Hygiene, Health and Safety and general requirements before commencing employment. Our induction program is given in English. All employees sit an open book written exam and must demonstrate competency in reading, comprehension and writing in English as tested against our Employee Induction Booklet to commence employment. Results are held on the employee’s file in our Personnel Office. A copy of the Employee Induction Handbook is attached “WS-7” to this affidavit.

28. The exam results of Dong Hwan Kim, Jyun Yo Ou and Hao Wen Chu are attachment “WS-8” to this affidavit. As a comparison, two exam results from Australian Residents, namely Robert Dunn and Chris Gooch are attachment “WS-9” to this affidavit.

29. I am aware that Kevin Rielly terminated employment with Warwick Bacon company Warwick P/L on 11th June 2004. At that time this Company employed all Slaughter Floor staff. Some 2 years later he reapplied for employment on site by written application after previously working at both Killarney Abattoir and Oakey Abattoir for unknown periods. On the 7th August 2006 Rielly first commenced employment as weekly hire on trial with Canterbury Meats Pty Ltd. His employment continues to this point. He has not worked for us for approximately 7.5 years.

[13] At the conclusion of the hearing, I reached the view that Canterbury had not satisfied me that Mr Stiff’s instructions for the posting of relevant notices had been effected and that, as a matter of fact, the notices had been posted as instructed. I provided an opportunity for Canterbury to file an affidavit by the person who posted the notices.

[14] An Affidavit was filed by Ms L Lousick on 16 April 2014 as follows:

I, Leah Ann Lousick, of 6 Iceberg Court, Warwick, Queensland, take oath and say as follows:

1. Iam employed as the First Aid Officer, RRTWC (Rehabilitation and Return to Work

Coordinator), and Stores Manager with Canterbury Meats Pty Ltd.

2. I have worked for Canterbury Meats Pty Ltd since the 11th of August 2006.

3. On the 11th of February 2013 I received 9 copies of the Notice of Employee Representational Rights (“Notice”) from the Personnel Officer, Pauline Stewart. On the same date, I “sticky” taped the Notice up in the Smoking Area, Laundry, Training Room, Blue Lunch Room and at the Laundry Shute. I pinned the Notice to the notice boards in the Main Lunch Room, Lunch Room 1, Lunch Room 2 and Lunch Room3,.

4. A copy of the Notice is attachment “LL-1” to this affidavit.

[15] An opportunity to have Ms Lousick appear and give evidence subject to cross examination in relation to the content of her Affidavit and to make submissions in relation to the Affidavit was provided to the AMIEU. The AMIEU did not seek to do so. I have decided to admit the Affidavit of Ms Lousick as evidence and accept the truth of its contents for the purposes of my decision.

[16] Consistently with my view expressed in Bland v CEVA Logistics (Australia) Pty Ltd 2, I would not be satisfied that the requirements of s. 173 of the Act have been complied with merely because an instruction were issued for a notice to be posted or given to employees if no action were in fact taken on the instruction.

[17] However, on what is before me, I see no reason to reject Mr Stiff’s evidence and that of Ms Lousick that the notices were distributed and posted as instructed. It is quite possible that some employees did not see the notices for reasons that are not ascertainable. However, I must determine if the steps which were taken as a matter of fact can be judged as “all reasonable steps” in the circumstances of the case.

[18] On what is before me, the steps taken were sufficiently extensive to be adequate to meet the criteria of all reasonable steps to give each employee a Notice of representational rights, having regard to the nature of the workplace, its work organisation, and the number of relevant employees involved.

[19] The content of the Notice of representational rights exhibited is as follows:

Schedule 2.1 Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174 (6)

Canterbury Meats Pty Ltd gives notice that it is bargaining in relation to an enterprise agreement (the Canterbury Meats Enterprise Agreement 2013) which is proposed to cover employees that are currently subject to the Canterbury Meats Enterprise Agreement 2009-2012.

What is an enterprise agreement?

An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Australia.

If you are an employee who would be covered by the proposed agreement:

You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Australia about bargaining for the agreement.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

[If the agreement is not an agreement for which a low-paid authorisation applies -include.]

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.

Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Australia Help Line on 1300 799 675.

[20] The AMIEU submit that the content of the Notices referred to in the evidence of Mr Stiff and Ms Lousick does not meet the statutory requirements.

[21] S.174 (1A) of the Act prescribes as follows in relation to the content of a Notice of representational rights to be given under s.173 of the Act:

Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.

[22] The relevant Regulation from the Fair Work Regulations 2009 (the Regulations) is Schedule 2.1 of the Regulations and the content thereby is prescribed as follows:

Schedule 2.1—Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174(6)

[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].

What is an enterprise agreement?

An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.

If you are an employee who would be covered by the proposed agreement:

You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

[If the agreement is not an agreement for which a low-paid authorisation applies—include:]

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.

[If a low-paid authorisation applies to the agreement—include:]

Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation.

[if the employee is covered by an individual agreement-based transitional instrument—include:]

If you are an employee covered by an individual agreement:

If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:

● the nominal expiry date of your existing agreement has passed; or

● a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).

Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Commission Infoline on [insert number].

[23] The AMIEU submits that the content of the Notice of representational rights issued by Canterbury is as prescribed by the Regulations, however, only in the English language and is therefore deficient because the relevant employees are from diverse cultural and linguistic backgrounds. For this reason, the AMIEU submit that, in order to comply with the statutory requirement, the Notice of representational rights should have been given in multiple languages, namely, what I will call the “mother tongues” of all of the relevant employees whose employment would be covered by the Agreement.

[24] The AMIEU submit that I should infer such an obligation fell upon Canterbury from the terms of s.180 (5) of the Act. The provisions of s. 180 (5) of the Act are as follows:

Terms of the agreement must be explained to employees etc.

(5) 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.

[25] I have considered this submission and decided that it must be rejected. My reasons are as follows.

[26] First, s.174 of the Act is highly prescriptive of the requisite content of the Notice of representational rights. Notably, s. 174 (1A) (b) prohibits the inclusion of any content other than that prescribed by the Regulations. Moreover, the capacity for the making of relevant Regulations is effectively circumscribed in considerable detail by the legislation. In my view, this evidences an intention of the legislature that the Notice of representational rights is to be given in accordance with the words of the statute and the Regulations and not in any other words which might potentially convey a different meaning. This policy would be undermined by a potential loss of the precision of language and meaning if the Notice of representational rights were to be translated into numerous other languages.

[27] Second, the Regulation does not prescribe content other than in the English language.

[28] Third, I discern differential considerations in the scheme of - Division 3 - Bargaining, and representation during bargaining of Part 2-4 Enterprise Agreements of the Act. Notably, the obligation to take all reasonable steps to explain the terms of an enterprise agreement to employees in a manner which takes into account diverse cultural and linguistic backgrounds and to provide the explanation in a manner appropriate thereto does not appear Division 3 of Part 2-4, which imposes the obligations in relation to the Notice of employee representational rights. Rather, that obligation appears in Division 4 of Part 2-4 of the Act.

[29] Should multilingual Notices of representational rights have been contemplated by the Parliament when the Act was made one might reasonably expect the inclusion in s. 174 of similar terms to those prescribed in s. 180 (5) (b) and s. 180 (6) (a).

[30] Moreover, the Act was amended with effect from 2012 3 so as to incorporate s. 174 (1A), the amendment dealt very specifically with the content of the Notice of representational rights. This amendment gives no indication that the Notice is to be given in multilingual terms or that reasonable steps to give the Notice require multilingual Notices where the relevant employees are from culturally and linguistically diverse backgrounds. Given that the subject of the legislative provisions has been recently considered I should not conclude that the legislature requires the provision of the Notice in languages other than English.

[31] Fourth, the inference submitted by the AMIEU would have very significant consequences for the conduct of enterprise bargaining. This consideration can be explained in the particular circumstances of this matter and more broadly.

[32] Ms Stiff’s evidence identified some of the linguistic backgrounds of the employees whose employment would be covered by the Agreement. This included Korean, Mandarin, Arabic, Hindi and Tagalog speakers and possibly more.

[33] The submission of the AMIEU is that Notices of employee representational rights in all these languages would have to have been issued in order for Canterbury to comply with the provisions of s.173 and s.174 of the Act.

[34] The Commission is an expert tribunal and may take notice of notorious relevant facts. It is not unknown, indeed not unusual, for many languages, sometimes greater than one hundred, to form the linguistic background of employees in Australian workplaces. The implications of the inference the AMIEU submit should be drawn in relation to the relevant statutory provisions are of enormous significance for the conduct of enterprise bargaining, however desirable the policy implications of such an inference might be considered. In this respect the following objective of Part 2-Enterprise Agreements of the Act is relevant.

171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) makingbargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay

[35] In the absence of clear legislative direction in the Act, the submission of the AMIEU in relation to the inference to be drawn in relation to the highly specific legislative provisions for the conduct of enterprise bargaining and representation during bargaining under the Act must be weighed against the terms of subparagraph (a) of s171. The inference proposed by AMIEU would not make enterprise bargaining simpler, it is questionable if it would make it more flexible, it might be considered fairer but would add much complexity to the process.

[36] Fourth, the acceptance of the AMIEU’s submission must lead to collateral implications for other provisions of Division 4. It would be contradictory to accept that an inference should be drawn that, in relevant circumstances, Notices of representational rights should be given in all relevant languages and simultaneously conclude that, in the same circumstances, providing access to the written text of an enterprise agreement and other material incorporated by reference need not be provided in multiple languages in order for compliance with s. 180 (2) to occur.

[37] It needs little elaboration to signify the consequence of accepting the submission of the AMIEU for the enterprise bargaining process provided for by the Act. If all the inherent aspects arising from the inference the AMIEU would have me draw apply to all of the pre approval steps, with which an employer must comply for the making and approval of an enterprise agreement, in my view, the conduct of enterprise bargaining would be much more complex and burdensome that was contemplated when the Act was made and would not accord in practical terms with s.171 (a). I see no evidence of an intention on the part of the legislature which would justify drawing the inference proposed by the AMIEU.

[38] Accordingly, I find that where there are employees whose cultural and linguistic backgrounds are diverse the Act does not and was not intended to require that an employer must take all reasonable steps to give the Notice of employee representational rights prescribed by s.173 and s.174 in languages other than English While this may be desirable in some circumstances there is no statutory requirement that such steps be taken.

[39] Even if I am wrong in this finding, in the circumstances of this case, for reasons below, I do not consider that reasonable steps to give employees the Notice of representational rights in languages other than English needed to be taken in order for the relevant employees to genuinely agree to the terms of the Agreement.

[40] In my judgement, on the evidence before me, which will become clearer below, relevant employees of Canterbury from culturally and linguistically diverse backgrounds would have been able to read a Notice of employee representational rights as posted by Ms Lousick.

[41] As revealed in my discussion of the evidence below, the employment practices of Canterbury, in particular the mandatory induction examination conducted in the English language referred to in Mr Stiff’s Affidavit, satisfies me that the relevant employees of Canterbury are more probably than not sufficiently competent in the English language to be able to read and understand the notice of representational rights.

[42] Thus, providing the Notices as prescribed by the Act and the Regulations in English satisfied the relevant statutory requirements, in the circumstances of this case, for the employees to genuinely agree to the terms of the Agreement as part of the enterprise bargaining process, as prescribed by the Act.

Access to written terms

[43] I do not consider that it was necessary for Canterbury to provide access to the written text of the Agreement and any incorporated material in languages other than English.

[44] In my view, an obligation to provide access to the written text of the Agreement and any incorporated terms in English arises because those terms are the text of the Agreement that will become legally effective. Such terms are only legally intelligible in English.

[45] The statutory obligation imposed by s.180 (5) and (6) for the explanation of the terms of the Agreement clearly contemplates that the form of the written text of the Agreement and any incorporated terms and the meaning of the text are to be approached differently in the enterprise bargaining process.

[46] The legislature clearly contemplated that without explanation access to the text of an Agreement may be inadequate for the purpose of understanding the terms of a proposed enterprise agreement, both for English speaking persons and persons from culturally and linguistically diverse backgrounds. In my view, it will often be the case that the written text of an Agreement will require explanation of the terms of the Agreement to persons whose first language is English because of requirements for expression of legally enforceable terms in the text of the Agreement.

[47] It is the explanation of the written text which must be in a manner appropriate to the circumstances of all employees, including the relevant employees of diverse linguistic and cultural backgrounds.

Explanation of the terms of the Agreement

[48] It is submitted by the AMIEU that the required explanation of the terms of the Agreement was not given in a manner that was appropriate to the relevant employees because those employees were of culturally and linguistically diverse backgrounds and the explanation was provided only in English.

[49] For reasons which arise from my discussion of the evidence of Mr Kim below and the employment practices of Canterbury, in particular the mandatory induction examination, I am satisfied that explanation of the terms of the Agreement in English was adequate to meet the obligation on Canterbury to take all reasonable steps to explain the terms of the Agreement.

Evidence of Mr Kim

[50] Mr Kim is a young Korean man who commenced work with Canterbury on 4 February 2014. Mr Kim is travelling in Australia on a s. 416 holiday visa, as it seems are a number of the 58 employees of Canterbury of diverse cultural and linguistic backgrounds identified in the submissions of the AMIEU.

[51] Prior to employment with Canterbury, Mr Kim was employed at an abattoir in Wagga, New South Wales. Mr Kim initiated enquiries about employment opportunities with Canterbury by email and corresponded further concerning his employment by Canterbury accordingly. This email correspondence was tendered in evidence. It demonstrates competence in written English of a good standard. Mr Kim said that a friend assisted him with this correspondence.

[52] Mr Kim gave evidence that he studied English at school in Korea between grades three and 10. Mr Kim also informed the Commission that English is a compulsory subject for all South Korean school children between grades three and 10.

[53] Mr Kim provided Canterbury with a Resume in the course of his application for employment. The Resume discloses that Mr Kim studied English literature and linguistics at the Catholic University of Dageu, Seoul.

[54] Following university studies in Seoul, Mr Kim travelled to Canada and studied English subjects while in that country. During his stay in Canada, Mr Kim worked in a voluntary capacity as an interpreter to assist Korean immigrants to Canada.

[55] Like all employees of Canterbury, before being engaged it was compulsory for Mr Kim to pass a written induction examination. The examination is extensive and based on an operational and safety handbook that was exhibited 4. The handbook is of 39 pages and contains detailed information on the abattoir’s work organisation, work rules and occupational health and safety requirements. The examination is “open book” and no interpreter or translator is involved. Prospective employees are required to read and refer to the handbook and answer questions in writing. Some questions are multiple choice, some require answers to be recorded, in writing, in English.

[56] Mr Kim’s completed examination sheet is highly accurate, his writing is neat and easily legible and is grammatically correct. In the circumstances his effort and results could only be described as highly commendable. In my view, Mr Kim’s examination sheet exhibits a high level of proficiency in English.

[57] For purposes of comparison the examination sheets of a Mr Dunn and a Mr Gooch, employees of Canterbury were also tendered. It would seem that these two employees are English speakers. Mr Kim’s examination sheet is of a favourably comparable standard of English language expression.

[58] When giving his evidence, Mr Kim attested to the truth of an affidavit he made on 15 March 2014. I asked Mr Kim to read the affidavit and whether he understood the contents of the affidavit. The affidavit was in English. Mr Kim affirmed he understood the content of the affidavit.

[59] On the basis of the evidence, I find that Mr Kim is literate in English to the degree that he would have been easily capable of reading and understanding any of the notices provided by Canterbury and by the BFUE in relation to the proposed enterprise agreement, understanding the explanation of the terms of the Agreement, and understanding any notice in relation to voting for the Agreement. Indeed Mr Kim confirmed that he had read and understood a written notice of the voting process for the Agreement in relation to the terms of the Agreement in English.

[60] The evidence of Mr Kim concerning the induction examination is of some significance. Mr Stiff’s evidence establishes that all applicants for employment must pass this examination and in the event that they do not they are not employed.

[61] In addition to Mr Kim, the AMIEU had intended to call two Mandarin speakers, Mr Ou and Mr Chu. These persons did not give evidence. Canterbury tendered the induction examination sheets for those employees. Both sheets evidence adequate English literacy of a comparable degree to that of Mr Kim.

[62] On what is before me, the evidence is sufficient to satisfy me that persons whose mother tongue is not English who pass the induction examination are, more probably than not, likely to be able to read a Notice of representational rights, read notices distributed by Canterbury or the BFUE in relation to bargaining for the Agreement, and read notices concerning voting for the Agreement. The evidence also satisfies me that such persons, more probably than not, would be able to understand an explanation of the terms of the Agreement given in English.

Conclusion

[63] For all of these reasons, I conclude that Canterbury took all reasonable steps:

• to give to each employee whose employment would be covered by the Agreement a Notice of representational rights as prescribed by the Act and the Regulations,



• to ensure that the content of that Notice was as prescribed,



• to ensure that the relevant employees were given access throughout the access period (prescribed by s. 180 (4) of the Act) to a copy of the written text of the Agreement and any other material incorporated by reference in the Agreement,



• to explain the terms of the Agreement to the relevant employees in an appropriate manner, having regard to the culturally and linguistically diverse background of the employees whose employment would be covered by the Agreement.

[64] Accordingly, the statutory requirements for making the Agreement were complied with and the employees genuinely made the Agreement by a majority of those eligible to vote for the Agreement who did so on 13 February 2014.

[65] I have given consideration to the requirement that the Agreement must pass the better off overall test prescribed by s.190 of the Act. I am satisfied that it does.

[66] Both the AMIEU and the BFUE have indicated that they wish to be covered by the Agreement should it be approved and will be so covered.

[67] The Agreement meets the statutory requirements for approval and is so approved and in accordance with s.54 of the Act will operate from seven days after the approval of the Agreement by the Fair Work Commission. The nominal expiry date of the Agreement is 30 June 2017.

COMMISSIONER

 1 F17.

 2   2011FWAFB7453.

 3 Fair Work Amendment Act 2012 (Cth) (Amendment Act) (Part 5 of Schedule 4); Fair Work Amendment Bill 2012 Explanatory Memorandum (Part 5).

 4   Exhibit A1 (WS - 7).

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