Carey Baptist Grammar School

[2022] FWCA 4051

[2022] FWCA 4051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Carey Baptist Grammar School

(AG2022/3854)

Carey Baptist Grammar School Employee Agreement 2022

Educational services
COMMISSIONER LEE	MELBOURNE, 18 NOVEMBER 2022

Application for approval of the Carey Baptist Grammar School Employee Agreement 2022– non-compliance with s.180(3) – satisfied appropriate to exercise discretion under s.188(2) – not satisfied that notification to casual employees of the vote by SMS and/or personal email was a reasonable step under s.180(3) – application approved.

Introduction

1. An application has been made for approval of an enterprise agreement known as the Carey Baptist Grammar School Employee Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Carey Baptist Grammar School (the Applicant or Carey). The Agreement is a single enterprise agreement.

1. I had a number of concerns about the Agreement. These concerns were raised with the Applicant by way of correspondence. With the exception of my concerns as to compliance with s.180(3) and a concern as to whether casual employees who voted for the Agreement were eligible to do so, the other concerns raised were resolved by way of submissions and undertakings.

1. It is apparent that the Applicant did not notify the relevant employees of the voting details by the start of the access period as required under s.180(3) of the Act. The employees were provided with 6 clear days’ notice, rather than the 7 clear days required. In the circumstances, the Agreement can only be approved if I consider it appropriate to exercise the discretion available under s.188(2) of the Act.

1. There was also a concern as to the inclusion of casual employees in the voting cohort and whether all of those employees were employed at the time within the meaning of s.180(2) of the Act.

1. I conducted a Hearing on both 7 October and 3 November 2022 in order to deal with these issues. The Applicant and the Independent Education Union (IEU) appeared, made submissions and provided evidence. The Applicant made submissions to the effect that while they accept there was an error, that it was a minor error and that in all the circumstances it was not likely to have disadvantaged employees. The IEU submitted that while the error is undoubtedly procedural or technical, the Commission should be in doubt as to whether the error was not likely to have disadvantaged employees having regard to:

“a. Number of voters and the narrow margin of the vote;

b. Evidence of discontent;
c. A questions as to whether all the 113 casual employees who were permitted to
vote were “employed at the time”; and
d. The extremely high proportion of part-time and casual employees
e. The efficacy of the steps undertaken”[1]

1. As to the casual voting cohort, detailed evidence was provided by the Applicant setting out the numbers of casual employees who actually voted in the ballot. I deal with that evidence below.

Legislation

1. Section 188(2) of the Act is in the following terms:

“188 When employees have genuinely agreed to an enterprise agreement

…

(2)          An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a)     the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b)    the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.”

1. It is noted in the Full Bench of decision of Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2] (Huntsman) that:

“The word ‘likely’ in s.188(2(b) means ‘probable’ in the sense that there is an odds-on chance of it happening, rather than merely being some possibility of it happening. The word ‘disadvantaged’ suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the Act.”

1. Consistent with the decision in Huntsman, I consider that the delay of one day in notifying employees of the time, place and method of the vote was a minor error. The circumstances in this matter, where there was a delay of one day, are analogous to one of the examples given by the Full Bench as one “likely” to be considered minor. I see no reason to consider the error as anything other than minor and no party contended otherwise.

1. As to whether employees were likely to have been disadvantaged by that error, the assessment needs to take into account the particular circumstances of the employees and the impact of the error.

1. In this matter, 64% of the employees covered by the Agreement cast a valid vote. The Applicant submits that this was a higher proportion of employees than those who voted for the last Agreement. The evidence shows that despite the majority voting for approval, there was a significant number who voted against approving the Agreement. The outcome of the vote was 410 employees cast a valid vote, with 218 voting to approve. The IEU contend that 64% is not a high rate of participation and note that the Diocese of Sale, which comprises 43 schools, had a voter turnout for an agreement approval of 73%, which they submit is typical of the industry. Furthermore, in 2020, Carey Baptist Grammar School conducted a ballot to vary the Carey Baptist Grammar School Employee Agreement 2018 that covered employees at that time and that 72% responded to that ballot.

1. The vote took place over 6 to 8 September 2022. The Applicant submits that the fact that the vote took place over more than one day a relevant circumstance when there is only a delay of one day in notification. 

1. The information as to the time place and voting method was first provided to employees on 30 August 2022 by way of an intranet daily message post.[3] The Applicant sent the notification to each employee’s work address. There was some evidence that posters reminding employees to vote were exhibited in the workplace, although the photo of the poster provided simply reminds people to vote without providing any other information beyond advising staff to look at their inbox.

1. During the access period, the Applicant conducted some further information activities. On 30 and 31 August 2022, briefings were held for junior, middle school and senior school staff where they were reminded of the process, including the vote. There was a recorded briefing by the Principal and the Director which was sent to employees on 30 August 2022 and staff were emailed a link to the recording of the briefing. There was a Principals’ forum on 5 September 2022 which referred to the vote and when it was to commence. The third-party vote provider, Vero, issued an email to all Agreement covered staff on 5 September 2022 providing them with information about the vote. Further email reminders were sent on 6 September 2022.

1. Having regard to the evidence, I am satisfied that employees were not likely to have been disadvantaged by the error. The fact that the vote took place over more than one day, combined with the extensive communications that took place during the access period, leads me to conclude that in all the circumstances it is not probable that employees were disadvantaged in that they were not substantively prevented from exercising their rights.  There was a higher proportion of employees who voted for this Agreement than the most recent agreement that covered the employees. While approximately 9-10% more than that proportion voted for the the Diocese of Sale agreement and the variation to the Carey Baptist Grammar School Employee Agreement 2018,[4] that evidence is not sufficient to satisfy me that it was an “odds on chance” that there would be a greater voter turnout in light of the time period of the ballot and the totality of the actions taken to advise employees of the ballot. I am not satisfied it was probable that the number of employees who voted would have been different given the delay of one day in providing the notice, taking into account all the circumstances.

Casual employees

1. The second issue of concern pertains to the casual employees and whether casual employees who were not eligible were provided the opportunity to vote. The Applicant requested and was granted time to be able to ascertain detailed information as to the actual number of casuals who voted, who those casuals were (but not how they voted) and whether they were employed at the time and therefore eligible to vote, or not. I issued an order to produce against the company that conducted the ballot, Vero, to provide the relevant information.

1. The information elicited showed that of the 113 casual employees that voted, only 88 of those actually worked during the access period. Therefore, 25 employees voted who were not eligible to vote. However, relevantly only 5 casual employees actually voted at all. Of the 5 that actually voted, only one of those was not eligible to vote. While the IEU submitted that there was a question as to the provenance and accuracy of the material provided, that evidence was not challenged at the hearing, and I see no reason not to accept it. It is apparent that the single vote of the ineligible casual would not have altered the outcome of the vote. In the circumstances, I am satisfied that the inclusion of the one employee who actually voted was a minor error that was unlikely to have disadvantaged employees.

Were all reasonable steps taken to inform casual employees of the vote?

1. The fact that so few casual employees actually voted gave rise to a further concern which was highlighted by the IEU. This was whether all reasonable steps were taken to inform casual employees, as a particular cohort of employees, of the time, place and method of the vote, given their particular circumstances. The IEU provided witness statements from 3 staff members which referred to evidence from unnamed casual staff members they claimed that they had spoken to. Ms Nadia Lynch gave evidence she spoke to a casual employee who claimed to have worked on 31 August 2022 (and was therefore eligible to vote) but that she was not aware of the vote, and that she has a “Carey email” but does not access it for her casual work and that communication about work is sent to her email address. A second casual employee who Ms Lynch spoke to said that he did not have an “operative” Carey email account. He did not know about the vote and did not vote.

1. Ms Trudi Smith gave evidence about a casual employee who worked the week of 15 to 19 August 2022, and then from 3 to 7 October 2022. That employee did not receive an email about the vote. However, that employee was not employed during the access period and therefore was not employed “at the time”. 

1. Mr Adam Lovell gave evidence that an employee that he spoke to worked on 31 August 2022 (and was therefore employed at the time) and that his employee number (which was not provided to the Commission) does not appear on the lists of casual employees provided by Carey who were invited to vote. As the number is not provided, I am not in a position to be able to verify that claim. The evidence of Mr Lovell is that the employee he spoke to has a Carey email account, but they could not access it because their password had expired many months before and they did not think it was necessary to reactivate it as the school books work via “phone”.

1. On the basis of this evidence, the IEU submits:

“The evidence of casual employees, to the extent that it is available to the Commission, is that casual employees do not rely on their work email. They receive notification of shifts by text message, phone and personal email. If casual are staff are routinely engaged by these means and not by Carey email addresses, then contacting them by the same means in relation to the terms of their employment over the next (up to) three years is surely a “reasonable step”. It was not taken, and so the employer cannot establish that it took “all reasonable steps” as required under s.180.”[5]

1. I have considered that evidence and associated submissions.

1. As to the evidence, I do not place significant weight on the hearsay evidence as to what the practice of a small number of unidentified casual employees is in regard to communication with the employer. In any event, if I was to accept that evidence as demonstrating the practice in respect to those particular employees, there is not a sound basis to assume that is the practice for all, or even most casual employees. This is particularly so given the evidence shows that two of the casual employees actually have a Carey email address, but simply choose not to access it. This is not a sound evidentiary basis to find that it was a reasonable step for the Applicant to communicate with casual employees via “phone”, presumably by SMS.

1. Further, even if it is accepted that the employees which are the subject of the evidence were unaware of the vote or not give the opportunity to vote, it would not change the outcome even if all of them voted, and they all voted against the Agreement. Finally, the evidence is largely consistent with the proposition advanced by the Applicant that Carey employees, including casuals, have a work email address. There is an expectation of the school that employees correspond with the school via the intranet and the associated email.[6] The employees may choose not to access information provided to that email address, but that is a matter for those employees. The evidence adduced by the IEU, on which I place little weight given it is all hearsay, does not satisfy me that it was reasonable, in all the circumstances, for the employer to take the step to advise casuals as a discrete group, of the information about the vote by SMS or personal email.

1. The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Independent Education Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

·   Clause 14.2 – Compassionate Leave.

1. However, noting the undertaking provided by the Applicant, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 November 2022.  The nominal expiry date of the Agreement is 25 November 2025.

COMMISSIONER

Annexure A

[1] IEU’s Submissions 4 October 2022 at [12].

[2] [2019] FWCFB 318.

[3] Applicant’s Outline of Submissions dated 29 September 2022.

[4] [2020] FWC 6437.

[5] IEU’s Submissions dated 28 October 2022 at [10].

[6] Transcript at PN316.

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