City of Fremantle T/A City of Fremantle

[2021] FWCA 5913

[2021] FWCA 5913

FAIR WORK COMMISSION

DECISION

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

City of Fremantle T/A City of Fremantle
(AG2021/6756)

CITY OF FREMANTLE OUTSIDE WORKFORCE AGREEMENT 2021

Local government administration
DEPUTY PRESIDENT BEAUMONT	PERTH, 28 SEPTEMBER 2021

Application for the approval of the City of Fremantle Outside Workforce Agreement 2021

[1] City of Fremantle T/A City of Fremantle (the Applicant) has made an application for the approval of an enterprise agreement known as the City of Fremantle Outside Workforce Agreement 2021 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] 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.

[3] In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[4] It was brought to the attention of the Applicant and the organisations who sought to be covered by the Agreement, namely the Australian Municipal, Administrative, Clerical and Services Union, the Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemeteries and Racecourses, Public Authorities Water Boards Union, and the Construction, Forestry, Maritime, Mining and Energy Union (together, the Organisations), that based on the application made and supporting documentation provided, the Commission was not yet satisfied that the Applicant had taken all reasonable steps to ensure that (a) the terms of the Agreement, and the effect of those terms, had been explained to the relevant employees; and (b) the explanation was provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

[5] Directions were issued for the Applicant and the Organisations to file submissions, witness statements and any other supporting material regarding the issue concerning compliance with s 180(5) of the Act. Having received the materials, I considered it appropriate to determine the matter on the papers, an approach which was agreeable with both Applicant and the Organisations.

[6] It should be noted that additional issues arose during consideration of the application and Agreement. Having been informed of those issues the Applicant addressed them accordingly. Those issues are also traversed.

Notice of Employee Representational Rights

[7] By way of background, the Agreement covers those employees of the Applicant who work in the operations of the Applicant and perform manual labour. 1 The relevant employees were previously covered by the City of Fremantle Outside Workforce Agreement 2015-2018.2

[8] On 16 January 2019, an email was sent to the relevant employees attaching a Notice of Employee Representational Rights (NERR). However, ‘the notification time’, as understood by reference to s 173(2) of the Act, was 1 March 2019.

[9] Mr Bogoevski, the Senior Project Officer People and Culture, explained that in 2019 the Applicant’s enterprise agreement for its ‘inside’ employees was about to expire and the agreement covering its ‘outside’ employees, the City of Fremantle Outside Workforce Agreement 2015-2018 had expired on 30 June 2019. 3 In January 2019, the Applicant had finalised its preparation for negotiation for the ‘inside’ employees and the Executive Leadership Team of the Applicant had approved the commencement of bargaining.4 However, the Applicant’s position had not yet been finalised for the ‘outside agreement’.5

[10] Unaware that the Applicant needed to finalise its position regarding the ‘outside agreement’ prior to initiating bargaining for an enterprise agreement, Mr Bogoevski said that he sent the NERR to relevant employees via email and also caused to have a copy printed and placed in the employee break room at the Applicant’s Depot. 6 The Applicant’s Executive Leadership Team gave its approval to commence bargaining for the ‘outside agreement’ on 1 March 2019.7 Mr Bogoevski noted that during the period of 16 January 2019 and 1 March 2019, two employees commenced employment with the Applicant.8

[11] The Applicant submitted that two employees were not provided with a NERR and as such the Applicant did not comply with s 173(1) of the Act. However, it was of the view that it was a minor technical error, and the Commission should accordingly exercise discretion under s 188(2) of the Act to nevertheless conclude that the Agreement had been genuinely agreed to by the relevant employees.

[12] The Applicant pressed that throughout the bargaining process and, after the NERR had been issued, the Applicant sent out communications to its employees advising them of the progress of the negotiations. As a result, the two employees knew that the current enterprise agreement had expired and that the Applicant, employee bargaining representatives and the Organisations were bargaining for its replacement.

[13] In the circumstances, I am satisfied, having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 9 (Huntsman), this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, having regard to the evidence of Mr Bogoevski, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act in this respect.

Explanation of the terms of the Agreement

[14] Turning to compliance with s 180(5) of the Act, the Applicant submitted that on 23 July 2021, Mr Bogoevski sent an email to all relevant employees advising them that a meeting would be held on Thursday, 29 July 2021, to explain the proposed agreement to the employees. The email in part read:

Dear colleagues,

The City, along with the employee bargaining representatives, have agreed on a final version of the proposed Outside Agreement, which is attached for your consideration.

Please review the City of Fremantle Outside Agreement 2021. You will be asked to vote on this agreement on Tuesday the 3 August, 2021, 9am-2pm. Voting will be conducted via secret ballot.

The City will also be holding an information session to explain the agreement to employees, Thursday 29/7/21 at 7am.

…

[15] The meeting was held on 29 July 2021 and was facilitated by a Consultant engaged by the Applicant. 10

[16] It appears that on commencement of the meeting the Consultant made a judgment based on his observation of certain employees that they may speak English as a second language; his witness statement in this respect was at best objectionable. It would seem that having engaged in conversation with the same employees, the Consultant was thereafter satisfied that they were able to converse with him fluently in English.

[17] The Consultant gave evidence that he informed the group in attendance at the meeting that the proposed agreement excluded the Local Government Industry Award 2020, and also advised of changes that were being made to the proposed agreement. 11 In his evidence, the Consultant listed the changes traversed with the group.12 At the end of the meeting the Consultant allowed time for questions.13

[18] The Applicant held the view that the abovementioned step constituted the taking of all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, had been explained to the relevant employees in an appropriate manner. The Applicant pressed that all employees had received the email dated 23 July 2021 and all had the opportunity to attend. The Applicant continued that whilst no attendance record was taken at the meeting, there was no evidence to suggest that it was not well attended. In short, the Applicant submitted that no consideration was given to any employees who may have been absent from the meeting and no other steps were taken by the Applicant to explain the terms of the Agreement.

[19] The following observations are made. The Applicant did not provide evidence of the rosters worked by the relevant employees, the steps taken to accommodate those employees on days off, annual or other paid leave, and whether the meeting was accessible for the relevant employees who may have been assigned work tasks that did, or did not, enable them to attend the meeting on 29 July 2021. There appeared to be minimal evidence given regarding those employees from a non-English speaking background notwithstanding that the Form F17 identified that five employees came from such background. No other explanatory material was distributed, and no other information session was provided. It is therefore clear that no explanatory memorandum was circulated to all employees to be covered by the Agreement and no other steps were taken to explain the Agreement

[20] The Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemeteries and Racecourses, Public Authorities Water Boards Union (LGRCEU) submitted that there was no doubt that the existence of a cohort of an unknown (but limited size) workforce that may not have had the advantage of the presentation on 29 July 2021, was a matter to be carefully considered by the Commission.

[21] The LGRCEU continued that its witness, Mr Andrew Johnson, LGREU Secretary, had provided evidence that LGRCEU delegates had informed Mr Johnson that the presentation was attended by all who were on duty that day as it was a paid meeting conducted in ordinary working hours. 14 According to the LGRCEU, it had 48 financial members whose terms and conditions would be covered by the Agreement if approved.

[22] Mr Johnson stated that:

a) the bulk of the Agreement carried over existing terms and conditions;
b) aside from emails and conversations with delegates and members, the LGRCEU prepared and circulated information documents to delegates for distribution and discussion with members;
c) no delegates raised any concerns about the completeness of the presentation provided on 29 July 2021; and
d) it was Mr Johnson’s view that the members had a thorough understanding of the issues involved in the negotiations and the terms that they ultimately voted to adopt. 15

[23] The Australian Municipal, Administrative, Clerical and Services Union (ASU) submitted that from the discussions with its membership that would be covered by the Agreement, none of them attended the meeting held by the Applicant on 29 July 2021. This was notwithstanding that all were aware the meeting was taking place, and none were absent from work on the day that the meeting took place.

[24] Ms Tamika Payne provided evidence on behalf of the ASU. Ms Payne explained that about five days prior to 29 July 2021 she received an email from Mr Bogoevski notifying that a meeting would take place regarding the Agreement at 7am on 29 July 2021. Ms Payne said that she did not attend the meeting on 29 July 2021, as it commenced before her rostered start time for her shift that day. 16 Ms Payne added that even if she was at work at the time the meeting was held, she would not have attended as she believed the position she held with the Applicant would not have been amenable to her attending the meeting in business hours.17

[25] According to Ms Payne, she did see other explanatory material circulated by the Applicant by email and she had regard to that material, at least. 18 However, she did not observe any material being circulated that was directed to employees to be covered by the Agreement who spoke English as their second language.19 Ms Payne said that she worked with a colleague who spoke English as their second language and understood that the casual employee was not working on 29 July 2021.

[26] While the ASU voiced its objection to the crude manner by which the Consultant ascertained that employees of cultural and linguistically diverse backgrounds were present at the meeting, it noted that the explanation provided about the Agreement to those employees was made in an appropriate form given that the employees’ English proficiency was more than satisfactory to understand the Consultant’s explanation. However, the ASU observed that no further evidence was provided by the Applicant to prove that reasonable steps were taken to appropriately explain the Agreement to employees, of cultural and linguistically diverse backgrounds, that were not present at the meeting on 29 July 2021. 20

[27] The ASU continued that regarding employees that were absent from the meeting on 29 July 2021, it was open to doubt whether the Applicant had taken all reasonable steps to ensure that all employees to be covered by the Agreement had the Agreement explained to them such that the employees genuinely agreed to the Agreement, as understood by reference to s 186(2)(a) of the Act.

[28] However, the ASU pointed out that the Agreement might otherwise be approved under s 188(2) on the basis that the non-compliance with s 180(5) was a minor procedural or technical error. The ASU added that in the circumstances, the magnitude of the non-compliance with s 180(5) was not such that the Commission could not reach a state of satisfaction that the employees to be covered by the Agreement genuinely agreed to the Agreement in accordance with s 186(2)(a).

[29] Based on the evidence before me I am not satisfied that the Applicant complied with s 180(5) of the Act. Whilst the Applicant was provided with ample opportunity to illuminate the circumstances of its workforce, including rosters worked, accessibility to the meeting, and the provision of explanatory materials, the information provided was limited to the extent that this Commission was left with little option, but to proceed to list the matter for hearing and issue directions.

[30] However, having now received the evidence and submissions of the Organisations, including the evidence of Mr Johnson and Ms Payne, in addition to the materials of the Applicant, I am satisfied that the agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirements set out in s 180(5). I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to, within the meaning of s 188(2) of the Act.

The location of the Vote

[31] While the notification of the vote did not provide the place of the vote as required by s 180(3)(a), Mr Johnson submitted that mass meetings of staff were held at the Applicant’s Depot. The Depot was known as the central location used by all staff covered by the Agreement and was the base for the commencement and cessation of work. Mr Johnson stated that the LGRCEU did not received any advice from its members that they did not know where the ballot would be conducted. 21

[32] Mr Bogoevski explained that since 2009, two agreements had been registered. 22 He stated that the ballot for employees on both occasions had taken place at the Applicant’s Depot.23 Further, in 2020 the Applicant had asked the relevant employees to approve a proposed agreement by way of ballot in the October, the ballot was held at the Depot, but the agreement was not voted up.24

[33] Notwithstanding the omission of the place of the vote from the vote notification, I am satisfied that having regard to the decision of the Full Bench in Huntsman, this constitutes a minor procedural or technical error for the purposes of s 188(2)(a). Further, having regard to the evidence of Messrs Johnson and Bogoevski, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to, within the meaning of s 188(2) of the Act.

Conclusion

[34] Subject to the undertakings referred to at paragraph [2], and on the basis of the material contained in the application, accompanying declarations, witness statements and submissions, 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.

[35] The Organisations being bargaining representatives for the Agreement, have given notice under s 183 of the Act they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the Organisations, I note that the Organisations are covered by the Agreement.

[36] The Agreement was approved on 28 September 2021 and, in accordance with s 54, will operate from 5 October 2021. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE513177  PR734159>

Annexure A

 1   Form F17 Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) Q.4.

 2   Form F17 Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) Q.7.

 3   Witness Statement of Goran Bogoevski 3 September 2021 (First Statement Bogoevski) [9].

 4 First Statement of Bogoevski [12].

 5   Ibid.

 6 First Statement of Bogoevski [13].

 7 First Statement of Bogoevski [15].

 8 First Statement of Bogoevski [16].

 9   [2019] FWCFB 318.

 10   Witness Statement of Stephen James Farrell (Farrell Statement) [4].

 11 Farrell Statement [10].

 12   Ibid.

 13 Farrell Statement [11].

 14   Witness Statement of Andrew Johnson (Johnson Statement) [10].

 15   Johnson Statement [13] – [16].

 16   Witness Statement of Tamika Payne (Payne Statement) [2].

 17 Payne Statement [2].

 18 Payne Statement [3].

 19 Payne Statement [4].

 20 Payne Statement [6].

 21 Johnson Statement [15].

 22 First Statement of Bogoevski [18].

 23 First Statement of Bogoevski [19].

 24 First Statement of Bogoevski [20].