Civil Sydney Pty Limited

[2020] FWCA 1033

[2020] FWCA 1033

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Civil Sydney Pty Limited
(AG2020/75)

CIVIL SYDNEY PTY LIMITED ENTERPRISE AGREEMENT 2019 - 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 27 FEBRUARY 2020

Application for approval of the Civil Sydney Pty Limited Enterprise Agreement 2019 - 2023

[1] Civil Sydney Pty Limited has made an application for approval of an enterprise agreement known as the Civil Sydney Pty Limited Enterprise Agreement 2019 - 2023 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] On 18 February 2020, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), which was not a bargaining representative for the Agreement, sent to my chambers a brief submission outlining two concerns it had identified in relation to the approval requirements for the Agreement. On 24 February 2020, the company, represented by the Master Builders Association (MBA), provided a written submission in response. My associate then inquired of the CFMMEU whether it sought to be heard. On 25 February 2020 the CFMMEU wrote to my chambers advising that, if a hearing was to be held, it would seek leave to be heard, but that if the matter was to be determined on the papers, it relied on its submission and asked the Commission to have regard to them. I advised the parties that I would determine the matter on the papers and that I would take the union’s submission into account.

[3] The first matter raised by the union concerned the company’s response to question 2.5 on the F17 statutory declaration form. This stated that the company had provided employees with access to the Building and Construction General On-Site Award 2010 (Construction On-Site Award), which is incorporated into the Agreement by reference, by way of an email containing a web link to the award. The union queried whether the company had taken all reasonable steps to ensure that employees were either given or had access to the incorporated award, as required by s 180(2) of the Act.

[4] The company’s statutory declaration affirmed that, in advance of a meeting with employees on 20 December 2019 to discuss the Agreement, the company had sent to employees an email containing copies of the Agreement and the existing enterprise agreement. The email also contained web-links to both the Construction On-Site Award and the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award). Attached to the company’s written submissions was a copy of this email, dated 19 December 2019. The company’s submissions noted that copies of the two awards had previously been sent to employees by email on 25 November 2019.

[5] I understand the union’s first concern to raise the question of whether providing a PDF copy of, or web-link to, an award is sufficient to satisfy the requirement in s 180(2)(b) that the employer take all reasonable steps to ensure that employees are given, or have access to, a copy of any material incorporated by reference into an enterprise agreement. In my view, at least in the present case, providing the awards to employees in this way complied with s 180(2). There is nothing to suggest that providing the materials to the employees in question by way of email was somehow an inappropriate medium, such that employees did not really have, in substance, proper access to the documents. There is nothing to suggest that any of the employees had any difficulty in accessing the awards. I note from the F17 that none of the employees covered by the Agreement at the time of the vote had a disability or came from a non-English speaking background.

[6] To the extent that the union contends that compliance with s 180(2)(b) requires physical access to the relevant documents, I disagree. Section 180(2) contemplates two alternatives. Employees must either be ‘given a copy’, during the access period for the agreement, of the written text of the agreement and materials incorporated by reference; or, throughout the access period, employees must ‘have access’ to a copy of these materials. I see no reason why either of these requirements cannot be satisfied through electronic communication, but particularly so in the case of providing employees ‘access’ to materials. ‘Access’ means a way, means or opportunity of approach. It does not connote physical possession.

[7] In the present matter, employees had access to the relevant materials throughout the ‘access period for the agreement’, which is defined in s 180(4) as the seven-day period ending immediately before the start of the vote on the agreement. Access to all of the materials was provided to employees by 20 December 2019, which was before the start of the access period; the vote on the Agreement commenced more than seven clear days later, on 6 January 2020. I conclude that the company complied with s 180(2)(b).

[8] The CFMMEU’s second concern related to the steps taken by the company to explain to employees the terms of the Agreement and the effect of those terms. The union said that, although the company’s F17 referred to a discussion concerning the ‘comparative differences’ between the relevant awards, the previous enterprise agreement and the proposed agreement, it did not contain any further information detailing the nature of the comparison, nor did the application include any material from bargaining representatives in that regard. The union queried whether the Commission could conclude that the company had taken all reasonable steps to explain the terms of the Agreement and their effect, as required by s 180(5).

[9] The company submitted that on 20 December 2019, a formal ‘discussion meeting’ was held at the company’s premises to explain the terms of the Agreement and the effect that those terms would have on employees’ conditions of employment, and that during the meeting, reference was made to the provisions of the Construction On-Site Award and the Manufacturing Award, both of which are incorporated into the Agreement. The company explained to employees that the former would be relevant for employees engaged as construction foundation workers, the latter for engineering and mechanical employees working at the depot. The explanation of the Agreement also addressed the material changes that had been made to the terms and conditions of the existing enterprise agreement.

[10] Attached to the company’s written submissions were copies of two documents provided to employees for the purposes of the ‘discussion meeting’. One was a document entitled ‘Enterprise Agreement - Content Guide’, which lists the clause number and title of the provisions of the current enterprise agreement and identifies the corresponding provision of the new Agreement. The other was a document headed ‘EA - Discussion Meeting Guide’, which contains a section dealing with ‘notable provisions in the enterprise agreement’, and explains, among other things, that the Agreement incorporates the Construction On-Site Award and the Manufacturing Award. There follows a table comparing rates of pays, various allowances, and redundancy benefits under the two awards, the current agreement and the proposed agreement, with a column containing comments and explanations.

[11] I note that this second document contains an error. In a section containing information on ‘how industrial instruments interact’, it says that, where an award term has been ‘omitted’ from an agreement, the applicable provision in the underpinning award will apply. This was broadly the position that once applied under the Workplace Relations Act 1996; certified agreements prevailed over awards to the extent of any inconsistency. However, under the current legislation, a modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee (see s 57). However, the error is of no consequence in the present case, because clause 3.4 of the Agreement states that the two awards are incorporated into the Agreement, and that award provisions will apply where the Agreement is silent.

[12] In my assessment, the company took all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, were explained to employees, taking into account their circumstances. The company prepared and distributed documents that assisted employees to understand the terms of the Agreement and their effect, making relevant comparisons. At the discussion meeting, the general manager used these documents in conjunction with each of the awards and the existing enterprise agreement to explain the Agreement to employees.

[13] As to the union’s submission that the application does not disclose any material from the individual bargaining representatives, I am unclear as to how this might have affected the quality of the explanation, or what material the bargaining representatives might have been expected to provide. Perhaps the union is referring to the fact that the bargaining representatives did not submit F18A statutory declarations. However, they are only required to do so if they wish to inform the Commission of the matters set out in rule 24(4). I note that in the present matter, each employee appointed himself as a bargaining representative.

[14] The meaning of ‘all reasonable steps’ in s 180(5) has been addressed in various authorities. 1 Whether particular steps are reasonable depends on the circumstances existing at the time the obligation arises. I would note that, as a matter of ordinary English, a requirement that a person take ‘all reasonable steps’ does not mean that the person must take each and every conceivable step that might be reasonable. To ‘take all reasonable steps’ is a turn of phrase that means to take the steps that are reasonably required. There may be hundreds of potentially reasonable steps, any one or more of which might amount to ‘all reasonable steps,’ depending on the circumstances. Having considered the content of the company’s explanation in this case, I am satisfied that it complied with s 180(5).

[15] There was a note of consternation in the company’s submission that it was ‘necessary to remind the Commission’ of the principles in CFMMEU v Collinsville Coal Operations Pty Ltd [2014] FWCFB 7940. The company said that it has no obligation to recognise the CFMMEU as a party, that the union was asserting a right to be heard that did not exist, and that the Act does not provide for intervention by a non-party. In fact, the principles in Collinsville were not in dispute. The union never sought to be covered by the agreement. And it did not assert a right to be heard. It simply asked to be heard.

[16] Under s 590, the Commission may inform itself in relation to a matter in such manner as it considers appropriate. I appreciate that from the employer’s perspective, the intervention of a non-party raising concerns about approval requirements is unwelcome. However, the Commission must reach a state of satisfaction on a wide range of statutory requirements before approving an enterprise agreement. The approval process under the 2009 Act is mandatory, detailed and prescriptive. Before approving an agreement, I consider it preferable to understand at least the essence of any concern that is raised about compliance with approval requirements, provided that it is prima facie of substance. In some cases, a concern will prove to have little merit and will quickly be put to one side. Often, a concern will reveal a problem that is capable of redress through employer undertakings or use of the Commission’s discretion under s 188(2) to approve agreements despite minor procedural or technical errors. If a concern has substance but is ignored, the opportunity to rectify the problem will be missed, and an approval decision will be exposed to appeal by a person ‘aggrieved’ for the purpose of s 604, with the consequence that the validity of the enterprise agreement may be called into question.

[17] I have taken the CFMMEU’s submissions into account and concluded that the concerns raised do not disclose any non-compliance with the relevant approval requirements or otherwise present an obstacle to the Agreement’s approval.

[18] The Commission raised other matters with the company which have been resolved to my satisfaction. It is not necessary to address those matters here. On the basis of the materials before me, I am satisfied that each of the requirements of ss 186, 187 and 188 as is relevant to this application for approval has been met.

[19] The Agreement was approved on 27 February 2020 and, in accordance with s 54, will operate from 5 March 2020. Under clause 3.1.2, the nominal expiry date of the Agreement is four years from the date of approval by the Commission, namely 27 February 2024.

DEPUTY PRESIDENT

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 1   See for example the summary in AWU v Rigforce Pty Ltd[2019] FWCFB 6960 at [35]-[36].