Cheetham Salt Limited

[2019] FWCA 7053

[2019] FWCA 7053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Cheetham Salt Limited
(AG2018/3122)

CHEETHAM SALT LIMITED - BAJOOL AND PORT ALMA - ENTERPRISE AGREEMENT 2018

Salt industry
COMMISSIONER SPENCER	BRISBANE, 11 OCTOBER 2019

Application for approval of the Cheetham Salt Limited - Bajool and Port Alma - Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Cheetham Salt Limited – Bajool and Port Alma – Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cheetham Salt Limited (the Applicant). The Agreement is a single enterprise agreement.

[2] Both the Australian Workers’ Union (the AWU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU) have filed a ‘Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement’ (Form F18) in relation to the application for approval of the Agreement. Both the AWU and the AMWU have indicated that they did not support the approval of the Agreement by the Fair Work Commission (the Commission).

[3] However this matter has been subject to a series of correspondence between the Commission and the parties. Prior detailed correspondence has been sent to the parties and following this further Directions and provision for additional material in response to the questions raised within the correspondence were issued. The detailed correspondence stepped through the matters and sought further explanations on the educational processes. It is noted that none of the parties sought a Hearing in relation to this matter although the opportunity was provided on several occasions. The parties preferred for the Commission to determine the remaining matters. Accordingly further information was sought from the parties. On the basis of the additional material I am now satisfied in relation to the preapproval questions that were put to the parties.

AWU and AMWU

[4] It is convenient to commence by outlining the matters identified by the AWU and the AMWU in their Form F18’s.

[5] Mr Rohan Webb, State Secretary of the AMWU, declares that the AMWU was a bargaining representative for the Agreement and that the AMWU does not support the approval of the Agreement. Mr Webb also declares that he disagrees with one or more of the answers given to questions in the Applicant’s statutory declaration in support of the application for approval.

[6] A covering letter to the AMWU’s Form F18 set out the AMWU’s submissions. It stated:

“The AMWU objects to the assertion by Cheetham Salt Limited (CSL) contained in its Form F17 (at Part 2.4) that all employees were given a copy of the proposed agreement and other reference material.

Moreover, the AMWU holds concerns that the Agreement has not been genuinely agreed too (sic) by employees in accordance with s186(2) and s188 of the Act and that it cannot be said to have been made in accordance with s182.

Specifically, we are concern by reports from members of the AMWU that:

1) CSL is alleged to have employed approximately three casual ‘employees’ on or about the day that voting commenced and that these employees were provided a ballot on the proposed Agreement; and

2) In relation to these three ‘employees’, it is alleged that one of the employees is a direct family member of the project manager, Mr Juan Pretorius, and another was a contractor; and

3) It is further alleged the CSL did not offer employment documentation to some or all of the ‘employees’ until after the vote had occurred; and

4) CSL provided no method of absentee voting for an employee who was on leave and unable to vote on the proposed Agreement.

The AMWU is aware that officials of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“ETU”) and the Australian Workers’ Union (AWU) have indicated to CSL that they intend to oppose certification of the Agreement.

Members of the AMWU then contact officials with complaints that CSL was directing them to endorse a ‘petition’ affirming that the ballot process was ‘legitimate’.

In response to these complaints the AMWU sent a text message to each member which provided them with industrial information around what is and isn’t a lawful direction.

Accordingly, the AMWU object to the certification of the proposed Agreement and wishes to be heard in relation to this.”

[7] The then Branch Secretary of the AWU, declared that the AWU was a bargaining representative for the Agreement and that the AWU does not support the approval of the Agreement. It was declared that he has not read the statutory declaration in support of the application for approval and says as follows:

“1. Bargaining commence for a new agreement…on 22 August 2017.

2. There were nine meetings held before the Agreement was put to a vote in Jun 2018. It was subsequently voted down.

3. Issues of concern included the lack of clarity relating to meal breaks.

4. There was on further meeting with no further changes made to the Agreement affecting Salt Production Workers before the vote was put to a second ballot.

5. In the lead up to the vote, the Employer failed to comply with their obligations to take reasonable steps to explain the terms and the effects of the Agreement.

6. On the day of the second vote, the Employer engaged three employees as casuals. Despite not previously having worked in those roles, not having commenced proper employment and being inducted on the day of the vote, they were allowed by the Employer to vote on the agreement.

7. Subsequently, the agreement was ‘voted up’ with a result of 15 YES votes and 13 NO votes, which would suggest that these three votes had a direct impact on the final result of the vote.

8. On 11 July 2018, and after the Employer was advised that the AWU would not support the approval of the Agreement, AWU members were instructed by the Employer to sign statements indicated their satisfaction with the bargaining and voting process. They refused to do so.

9. It is submitted that such conduct is a subversion of the bargaining and approval process.

10. Further, the AWU maintains its concerns in relation to shift penalties in the proposed EA – which due to the significant amount of overtime worked by employees may fail to meet the requirements of the Better Off Overall Test and there is a lack of clarity in clauses concerning meal breaks.”

[8] My Chambers corresponded with the parties requesting that the Unions advise whether they intend to respond to the application and to file material. Neither the AMWU or the AWU filed any material.

Concerns of the Commission

[9] The Commission’s Directions required the Applicant to make submissions and file evidence in relation to the following matters:

(a) Submissions in relation to clause 14.3 of the Agreement, regarding pay rates for apprentices, is consistent with the National Employment Standards outlined in Part 2-2 of the Act (the NES). In particular, the Applicant is directed to make submissions in relation to whether, pursuant to clause 35.1.5 of the Agreement, apprentices are allowed notice of termination, and if not, how the Agreement is consistent with the NES.

(b) Submissions in relation to the Agreement’s inconsistency with the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award), which is one of the two Awards that apply to employees of the Applicant. In particular, the Applicant is directed to address:

(i) Whether the absence in the Agreement of a guaranteed minimum engagement for part time workers, which is provided for in the Manufacturing Award, causes the Agreement to fail the better off overall test (the BOOT) pursuant to s.186(2)(d) of the Act.

(ii) Whether the absence in the Agreement of a term providing for penalty rates to be paid to shift workers who work fewer than 5 successive afternoon or night shifts, as provided for in clause 37.3 of the Manufacturing Award, causes the Agreement to fail the BOOT, pursuant to s.186(2)(d) of the Act.

(c) Submissions in relation to the Agreement’s inconsistency with the Salt Industry Award 2010 (the Salt Award), which is the second of the two Awards that apply to employees of the Applicant. In particular, the Applicant is directed to address:

(i) Whether the difference between the Salt Industry Award and the Agreement in relation to meal break allowances, provided for in clause 22.1 of the Salt Industry Award and clause 22 of the Agreement, causes the Agreement to fail the BOOT, pursuant to s.186(2)(d) of the Act.

(d) Submissions, should the Applicant find that the Agreement is not consistent with the NES and/or fails the BOOT, outlining whether or not and why the Commission should nevertheless exercise its discretion under s.55 and s.189 of the Act to approve the Agreement.

(e) Submissions, should the Applicant find that the Agreement is not consistent with the NES and/or fails the BOOT, as to how the Applicant proposes to remedy these issues in a manner that would allow the Commission to approve the Agreement.

(f) A draft of any undertakings the Applicant might propose to make to remedy any of the issues outlined in these directions, pursuant to s190 of the Act.

(g) Submissions in relation to whether the Agreement approval process was consistent with s.188 of the Act.

Legislation

[10] The application for approval of the Agreement has been made pursuant to s.185 of the Act. The general requirements relating to when the Commission must approve an enterprise agreement are set out in s.186 of the Act, which provides:

“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 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).”

[11] Additional requirements that must be met before the Commission approves an enterprise agreement are set out by s.187 of the Act, which provides:

“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.

Requirements relating to greenfields agreements

(5) If the agreement is a greenfields agreement, the FWC must be satisfied that:

(a) the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and

(b) it is in the public interest to approve the agreement.”

[12] I will turn to consider the requirements of each section of the Act, the Applicant’s submissions and evidence and the AWU and AMWU material in turn.

[13] Section 186(2) provides the substantive elements for approval. Section 186(2) provides, in summary, that the Commission must be satisfied that the agreement has been genuinely agreed to, the terms of the Agreement do not contravene s.55 of the Act and the agreement passes the better off overall test. The BOOT will be considered first.

Better Off Overall Test (the BOOT)

[14] Section 186(2)(d) of the Act requires the Commission to be satisfied that the agreement passes the BOOT. Section 193 of the Act sets out when an agreement passes the BOOT. It provides:

“193 Passing the better off overall test

When a non greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

FWC must disregard individual flexibility arrangement

(2) If, under the flexibility term in the relevant modern award, an individual flexibility arrangement has been agreed to by an award covered employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test.

…

Award covered employee

(4) An award covered employee for an enterprise agreement is an employee who:

(a) is covered by the agreement; and

(b) at the test time, is covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and

(iii) covers his or her employer.

Prospective award covered employee

(5) A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

(a) would be covered by the agreement; and

(b) would be covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) would cover the person in relation to the work that he or she would perform under the agreement; and

(iii) covers the employer.

Test time

(6) The test time is the time the application for approval of the agreement by the FWC was made under section 185.

FWC may assume employee better off overall in certain circumstances

(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.”

[15] In the Form F17 originally filed with the application for approval, it was declared that two Modern Awards covered the employer and employees the subject of the Agreement. It was declared that the Salt Industry Award 2010 (the Salt Award) and the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) were the relevant instruments. In response to the Commission’s concerns, an affidavit has been filed by Hye Young Seo, who originally completed the Form F17, affirming that following legal advice that the inclusion of the Manufacturing Award was an error.

[16] The Applicant submits that it is within the “salt industry” and that it’s employees perform work covered by the classifications in Schedule B of the Salt Award. The Salt Award does exclude those operations of an employer in the salt industry that falls within the coverage of the Manufacturing Award, except for that work, which falls within the definition of the salt industry. The Applicant submits that the maintenance work that would have fallen under the Manufacturing Award is caught within the definition of the salt industry – being salt industry maintenance work – and is therefore not excluded from coverage under the Salt Industry.

[17] The Applicant’s submission in this regard is accepted. Notably, neither Union, and importantly not the AMWU, has sought to make a submission to the contrary. The Commission is satisfied that for the purposes of the BOOT the reference instrument is the Salt Award.

[18] Given this finding, that resolves the concerns that the Commission identified in relation to the Manufacturing Award. The Applicant has proffered a number of undertakings in relation to notice of termination for apprentices and meal breaks. The Commission is satisfied that the effect of the undertakings is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

[19] The Union representatives were provided with the undertakings in relation to apprentices and meal breaks. No objection in relation to those undertakings has been received.

[20] As no objections to the undertakings have been received, undertakings will be, pursuant to s.190(1) of the Act, taken to be a term of the Agreement.

National Employment Standards

[21] Section 186(2)(c) of the Act provides that the Commission must be satisfied that the terms of the Agreement do not contravene s.55 of the Act. Section 55 provides the interaction rules between the National Employment Standards and modern awards and enterprise agreements.

[22] The undertaking offered by the Applicant resolves the Commission’s concerns regarding the National Employment Standards. As indicated above, the undertaking is taken to be a term of the Agreement.

Genuinely agreed to

[23] Section s186(2)(a) requires that the Commission must be satisfied that “the agreement has been genuinely agreed to by the employees covered by the agreement”. It is apparent that a concern of both the AWU and the AMWU in relation to the approval process of the Agreement relates to genuine agreement. I sent a comprehensive piece of correspondence to the parties on this and sought further information.

[24] Section 188 of the Act deals with when an enterprise agreement has been genuinely agreed to as follows:

“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.”

[25] Subsections 180(2), (3) and (5) deal with information to be given to employees before a request is made that employees approve a proposed enterprise agreement by vote. In summary terms that information includes the agreement itself and material incorporated into the agreement, voting information and an explanation of the terms and the effect of those terms.

[26] The Commission requires that an Applicant for approval of an enterprise agreement, file a ‘Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement)’ (Form F17). It is that Form F17 which ordinarily declares facts to assist the Commission in considering the application for approval. Hye-Young Seo, Human Resources Business Partner of the Applicant, has made a declaration on the Form F17. Whether the Agreement has been genuinely approved is dealt with the Form F17 at items 2.4 to 2.8.

[27] A further affidavit has been filed by Hye Young Seo in response to the Commission’s Directions.

[28] Mr Colin Hay, General Manager Operations, has filed an affidavit in response to the Commission’s directions. Between 2012 and 2016, Mr Hay was the Site Manager at the Applicant’s Bajool site and participated in enterprise bargaining meetings for the Agreement.

[29] Relevant to the present consideration, Mr Hay attaches to his affidavit a “statement” of a Mr Smith. Mr Smith’s “statement” is dated 17 January 2019 and is signed. Mr Hay affirms that the “statement” attached to his affidavit is a true and correct copy of Mr Smith’s “statement”. Mr Smith “states”:

“Prior to the vote we were given a copy of the proposed EA with the changes highlighted an a toolbox meeting was held by the Refinery Manager (Raymond Moy) where the changes to the EA were discussed.”

[30] And further:

“I represented the refinery staff and was present throughout the entire voting process which took place in the boardroom. During the voting process there were copies of the proposed enterprise agreement”

[31] Mr Hay continues and attaches to his affidavit a “statement” of Mr Moy (who is referred to in Mr Smith’s “statement”). Mr Hay affirms:

“Throughout bargaining, Raymond Moy also had conversations with a number of employees about the proposed terms of the 2018 Agreement, including from the 2014 Agreement that directly affected them and the “pros and cons”. Raymond Moy also encouraged employees to speak to Mr Pretorius, Ms Fursman and the employee representatives if they had any questions.”

[32] It is helpful to set out Mr Moy’s “statement” in full:

“To whom it may concern

Over the course of the EA negotiations I had multiple tool box talks with both refinery shifts (5-7 people at each tool box) and discussed some of the changes that directly affected them.

Notices and copies of the EA were placed in the lunch rooms and give (sic) to the SRC’s (Senior Refinery Controller) to distribute as they were also the union and non-union delegates.

Also, as I walked around, I had numerus (sic) conversations with Nathan Smith. (sic) Clint Lobegeir, Cain Noy, Ken Calletti, Matt Deacon and Chris Deacon.

We would discuss some of the changes around the EA and the pro’s (sic) and cons of it all.

I also made [an] offer that if any one (sic) had any questions that I could not answer that they could go over and see Myste or JP and they would be able to clarify any queries they had.”

[33] Mr Hay gives similar evidence, and annexes a similar “statement” from Mr Pretorius. Mr Pretorius does provide some evidence of assistance. Mr Pretorius states:

“Notice of the intention to vote was given to each of the union and non-union reps by hand, the respective unions (AMWU, AWU and ETU) via email at least 7 days before each vote, copies was (sic) placed on the notice boards and in all 4 lunch rooms. Copies of the proposed EBA was (sic) given to the union reps, SRC (senior refinery controllers) to distribute to their respective employees, copes of the EBA was (sic) emailed to the respective trade unions mentioned above.”

[34] In addition to Mr Smith, Mr Moy and Mr Pretorius, Mr Hay states that the AMWU and the AWU played a “key role” in explaining the terms of the Agreement to employees. AMWU officials attended the Bajool site on 12 March, 6 April and 31 May 2018. AWU officials attended the Bajool site on 16 August, 1 September, 6 September, 17 October and 16 November 2017 and 21 February, 2 May and 4 June 2018.

[35] An unsuccessful vote on a proposed agreement occurred on 5 June 2018. Following the unsuccessful vote a further bargaining meeting was held on 14 June 2018. As a result of feedback from employees regarding the unsuccessful vote an increased wage offer to some classifications under the agreement was made. An updated Agreement was produced to include the increased wage offer. There were otherwise no changes to the proposed agreement.

[36] Mr Hay affirms that on 19 June 2018, Ms Fursman, Site Administrator, put a letter to all employees on the noticeboard at each of the four lunchrooms at Bajool. This letter served as notice of a vote to occur on 28 June 2018. Mr Hay also affirms that a copy of the 2018 Agreement was also placed on the respective noticeboards. Mr Hay also affirms that Ms Fursman printed 20 copies of the Agreement and placed four or five copies in each of the lunchrooms.

[37] Mr Hay annexes three further “statements” to his affidavit from Ms Norris, Mr Ferguson and Mr Offord. Each is an employee of the Applicant and states that they were provided an a copy of the Agreement. None of the employees indicates when they were given a copy of the Agreement.

[38] Mr Hay annexes a “statement” of Mr Fursman to his affidavit. Ms Fursman states:

“A notice of intention to vote was placed on the notice boards in each lunchroom and copies of the proposed EA were also placed in lunchrooms at least 7 days prior to each vote that took place.”

[39] In relation to access to information under s.180(2) of the Act, the Applicant submits:

“Prior to the access period, Myste Fursman, Site Administrator, put multiple copies of the 2018 Agreement on the noticeboard in each of the four lunchrooms at the Applicant’s site at Bajool site (sic), which is located at Port Almo Road, Bajool, Queensland (Bajool). The lunchroom is frequently used by all employees during shift breaks and the noticeboard is the primary mechanism for communication by management to employees at Bajool.

In addition, copies of the 2018 Agreement were emailed to the AMWU and the AWU, prior to the access period, and Senior Refinery Controllers were provided with copies of the 2018 Agreement to distribute to relevant employees.

A number of the Relevant Employees have provided statements confirming that they were provided with a copy of the 2018 Agreement during the access period. Bajool site management, including Ms Fursman and Juan Pretorius, have provided signed statements regarding the distribution of the 2018 Agreement at Bajool prior to the access period.

It is submitted that having regarding to all of the evidence and the surrounding circumstances, the Commission can be satisfied that Cheetham Salt took all reasonable steps to ensure that the Relevant Employees were given a copy of the enterprise agreement (noting there is no material incorporated by reference in the agreement) and that they had access, throughout the access period, to a copy of the 2018 Agreement.”

[40] The access period for the Agreement is the 7-day period ending immediately before the start of the voting process. The Applicant has declared that the voting process commenced on 28 June 2018. Mr Hay’s evidence, which has not been challenged, is that copies of the Agreement were placed in the four lunchrooms on or about 19 June 2018. While Ms Fursman’s evidence is not strictly in evidence form, acting in an informal manner, however after having provided the objectors an opportunity to be heard, the Commission considers it is in a position to accept the evidence.

[41] It is the AMWU that has sought to raise an objection about whether the applicant has complied with s.180(2) of the Act. Apart from passing reference in its Form F18 to the matter, the AMWU has not filed any material or clarified why it submits that the Applicant has not complied with the obligation.

[42] The material provided is commensurate with s.180(2) and (3) of the Act. Section 180(5) of the Act requires:

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.
             (6)  Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:
   (a)  employees from culturally and linguistically diverse backgrounds;
   (b)  young employees;
   (c)  employees who did not have a bargaining representative for the agreement.

[43] The AWU has asserted, in a single sentence, that the Applicant has “failed” to comply with their obligations to take reasonable steps to explain the terms and the effects of the Agreement. Unhelpfully, no further submission or evidence has been provided in relation to why the AWU asserts that there has been such a failure.

[44] The Applicant has provided further submissions regarding the steps taken to explain:

“The terms of the agreement and effect of those terms were explained to employees by Cheetham Salt in a number of ways as follows:

a) all employees were able to attend bargaining meetings, whether or not they were formally appointed as bargaining representatives;

b) a negotiation status document was distributed to attendees at bargaining meetings to facilitate employee understanding of the terms of the agreement and effect of those terms

c) formal and informal discussions were held with employees about the proposed changes to the 2014 Agreement throughout the course of the negotiations, during which employees had an opportunity to ask questions about the terms; and

d) arrangements were made for employees who were engaged as casuals prior to the vote to speak with union representatives about the terms of the 2018 Agreement prior to the vote.”

[45] That deals with matters under s.188(1)(a)(i) of the Act. There does not appear to be an issue concerning s.181(2) of the Act and on the basis of the information before the Commission I am satisfied that s.181(2) has been complied with, which deals with s.188(1)(a)(ii) of the Act. Section 188(b) and (c) are the central matters to the concerns raised by the unions; that is whether the Agreement has been properly made and whether there are no other reasonable grounds for believing that the Agreement has not been genuinely agreed to.

[46] In relation to the three new employees identified by the AMWU Mr Hay gives the following evidence:

“I am aware that in June 2018, the Bajool site identified a need to engage casual employees for harvest and other duties.

I am aware that verbal offers of casual employment at Bajool in the position of Salt Worker were made to Bradley Wheatley, Jaycob Moy (Jaycob Moy) and Joel Butler.

I am informed and believe that, prior to his current engagement as a casual employee, Mr Butler had previously worked as a contractor at Bajool. Jaycob Moy is Raymond May's son.

On 27 June 2018, these verbal offers of employment were confirmed in writing and Mr Wheatley and Mr Butler commenced employment on that date. Jacob Moy was supposed to start employment on 27 June 2018 but was delayed due to a family emergency in Brisbane and commenced the following day. Now produced and shown to me and marked "CH-17" are true and correct copies of the contracts of employment for these employees dated 27 June 2018.

I am informed and believe that each of Mr Wheatley, Jaycob Moy and Mr Butler were inducted prior to the vote for the 2018 Agreement on 28 June 2018. Mr Butler had previously been inducted on 15 May 2018, while working at Bajool under the labour hire arrangement. Mr Wheatley had been inducted on 27 June 2018 and Jaycob Moy was inducted on the morning of 28 June 2018. Now produced and shown to me and marked "CH-18" are true and correct copies of the induction paperwork for these employees. Although the heading of these documents is "Contractor Induction", this is the induction document Cheetham uses for its direct employees at the Bajool site. It is clear from the induction form that both Mr Wheatley and Jaycob Moy were completing the documents as employees of Cheetham, and they both listed "Cheetham Salt" as their company on the first page of the document.

On 28 June 2018, I had a telephone conversation with Mr Pretorius. Mr Pretorius asked me whether the three casuals who had just started working at Bajool should be provided with an opportunity to vote in the ballot for the 2018 Agreement taking place that day. We discussed whether or not it was fair for the casuals to participate in the vote. I said words to the effect of "well they are going to be covered by the agreement, so as long as they have an opportunity to speak to someone about the agreement beforehand I think they should be allowed to vote". I thought it was important that the casual employees had the opportunity to discuss the 2018 Agreement with union delegates, as well as Mr Pretorius. Mr Pretorius agreed with this approach.

I am informed and believe that Mr Pretorius organised for Mr Wheatley and Mr Butler to meet with Preston Ferguson or Nathan Smith on 27 June 2018, and for Jaycob Moy to meet with Cain Noy on 28 June 2018. The purpose of these meetings was for Mr Wheatly, Mr Butler and Jaycob Moy to have the terms of the 2018 Agreement explained to them, as well as the arrangements for the vote.

Jaycob Moy has signed a statement regarding his employment and his discussions with the Refinery Union Delegate, Mr Noy, in which he "was told the pros and cons [of the 2018 Agreement] for me as a casual". Now produced and shown to me and marked "CH-19" is a signed statement from JaycobMoy regarding his meeting with Mr Noy dated 21 January 2019.

I am informed and believe that each of Mr Wheatley, Mr Butler and Jaycob Moy continue to be engaged as casuals on a regular basis at Bajool.”

[47] It is accepted that no challenge has been made to Mr Hay’s evidence.

[48] Section 181 of the Act provides that the employer may request employees “employed at the time” who will be covered by the agreement to approve it by voting for it. As a general proposition, casual employees are entitled to vote to approve an enterprise agreement. There is some controversy in the authorities 1 as to which casual employees are entitled to vote but I do not understand there to be a dispute in this respect and the AMWU and AWU have not filed any submissions or evidence to dispute Mr Hay’s evidence. The Commission is satisfied that the three casual employees were “employed at the time” of the vote and, consequently, the Agreement was made in accordance with s.182(1) of the Act.

[49] In addition, Mr Hay gives evidence in relation to absentee voting at 42 to 46 of his affidavit. That evidence has not been challenged and it is accepted.

[50] Given the state of the evidence before the Commission, and while the matters raised by the AMWU and AWU could have been given serious consideration there are no reasonable grounds for believing that the Agreement has not been genuinely agreed to, there is no evidence to establish what has been raised and the uncontested evidence of Mr Hay is to the contrary. The Commission is therefore satisfied that there are no other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees.

CONCLUSION

[51] As set out subject to concerns that have been addressed by way of undertakings (as referred to the bargaining representatives), I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[52] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[53] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 October 2019. The nominal expiry date of the Agreement is 20 September 2021.

COMMISSIONER

 1   Benchbook at page 94 and the authorities referred to.

Printed by authority of the Commonwealth Government Printer

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