Cockburn Cement Limited

[2022] FWCA 3315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cockburn Cement Limited

(AG2022/3153)

Cockburn Cement Limited Union Enterprise Agreement Munster, Kwinana and Woodman Point 2022

Cement and concrete products
COMMISSIONER WILLIAMS	PERTH, 29 SEPTEMBER 2022

Application for approval of the Cockburn Cement Limited Union Enterprise Agreement Munster, Kwinana and Woodman Point 2022

On 27 July 2022, an application was made for approval of an enterprise agreement known as the Cockburn Cement Limited Union Enterprise Agreement Munster, Kwinana and Woodman Point 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Cockburn Cement Limited (Cockburn or the applicant). The Agreement is a single enterprise agreement.

On 3 August 2022, the AMWU filed a Form F18 declaration advising the union did not support approval of the agreement by the Commission. The grounds specified for opposing approval of the agreement were that:
“1. On the Companies F17 section 22 they only say they explained three key changes of the agreement to employees

2. The enterprise agreement contained significant changes to how committed hours would be worked, even going so far as to remove certain provisions such as philosophy’s on how the parties agreed these hours would be worked in the new agreement, the bargaining reps had not agreed to such changes.

3. The agreement also contained major changes to how employees based at Kwinana production facility would be remunerated and take on extra work.

4. There were also changes to annual leave provisions and process in the new agreement.

5. The AMWU held meetings with members at Munster & Kwinana sites prior to the vote, in our opinion the terms of the agreement were not fully explained to all employees.
6. The companies f17 indicates not all reasonable steps were taken to explain all changes in the proposed agreement, we acknowledge certain provisions do not apply to all employees, but it would be reasonable to assume, in order to be genuinely agreed all employees should know what changes have been proposed to all employees covered under the proposed agreement.”

On 5 August 2022, the CEPU filed a Form F18 declaration advising the union also did not support approval of the agreement by the Commission. The grounds specified for opposing approval of the agreement were that:

“1. On the Companies F17 section 22, Cockburn Cement Limited only state they explained three key changes of the proposed agreement to employees.

2. The proposed enterprise agreement contained significant changes to how committed hours would be worked at all sites, with the company going as far as removing certain key provisions, such as the previous philosophies clause which explained how the parties agree that these committed hours would be worked under a new agreement. The ETU, it’s bargaining rep and its members had not agreed to such changes. Colin Power agreed in last EBA bargaining meeting, 30th June 2022, that further discussion on the philosophies would be required – this did not occur, instead Cockburn Cement Limited putting the proposed Enterprise Agreement into an access period, with no promised, further discussion

3. The agreement also contained major changes to how employees based at Kwinana
production facility would be remunerated and take on extra work.

4. There were also changes to annual leave provisions and process in the new agreement.

5. The ETU/CEPU held a meeting with all available members at the Munster site on Tuesday 19^th of July 2022, prior to the vote, and in our opinion the terms of the agreement were not fully explained honestly and correctly to all employees by the Company.

6. Cockburn Cement Limited’s f17 indicates that all reasonable steps were taken to explain all changes in the proposed agreement, and we acknowledge certain provisions do not apply to all employees. However, it would be reasonable to assume, in order to be genuinely agreed and understood, all the employees should know what changes have been proposed to the employees covered under the proposed agreement.”

Relevant to the Commission’s consideration of this application, the AMWU and the CEPU, as can be seen above, both in effectively identical terms, say that in order to be genuinely agreed by the employees, they should have known what changes had been proposed to all employees covered by the proposed Agreement and apparently that Cockburn had not taken all reasonable steps to explain the changes.

Form F18 declarations were also filed by the AWU and the TWU advising they did support approval of the Agreement by the Commission.

The Commission requested Cockburn respond to the issues raised which it duly did. The company’s response was provided to all the unions and the Commission then asked the AMWU and CEPU whether they wished to be heard further on their concerns and they advised they did wish to be so heard.

Consequently, a hearing was listed to consider the AMWU’s and the CEPU’s opposition to the Commission approving the Agreement. The hearing was held on Wednesday 7 September 2022.

The TWU did not participate in the hearing and did not seek to make any submissions. The AWU attended the hearing but did not make any submissions.

Both the AMWU and the CEPU made submissions and called a number of their members who would be covered by the proposed Agreement to give evidence. A number of Cockburn staff members also gave evidence.

Material filed with the application by Cockburn

As required, Cockburn when making their application filed with the Commission a Form F17 Employer’s declaration in support of an application for approval of an enterprise agreement.

The declaration was made by Ms Kobi Shackleton, Human Resource Advisor of Cockburn.

The declaration says the proposed Agreement covers all plant operators, general services, packing plant operators, mechanical and electrical personnel at Cockburn’s Munster, Kwinana and Woodman Point plants.

The declaration says employees were first provided with the notice of employee representational rights on 30 July 2021.

The declaration says that on 14 July 2022, an email was sent to all affected employees that discussed what the Access Period was, the opening and close dates for voting and who to talk to if the employee had any questions. In that email attached was the Agreement and voting instructions and a user guide for employees needing to update their personal details.

At question 22 of the declaration, the explanation provided was that on 14 July 2022, explanations were given about three matters, namely the CFMMEU being removed from the scope and parties as they no longer had any roles or members at Cockburn, a change to the definition of Immediate Family and a change to the definition of a Casual Employee.

The declaration says that when the terms of the Agreement were explained to the relevant employees, it was compared to the current agreement being the Cockburn Cement Limited Enterprise Agreement Munster, Kwinana and Woodman Point 2017.

The declaration says that all the employees speak fluent English as it is their first language.

The declaration says that at the time of the vote, being 25 and 26 July 2022, there were 105 employees who would be covered by the Agreement. Of those, 98 cast a valid vote, and of those who cast a valid vote, 61 voted to approve the Agreement.

The evidence

As context for the witness evidence below, the Commission is satisfied that on Thursday, 14 July 2022, Cockburn sent an email to all relevant employees which is commonly referred to as the Access Letter or Access Email.[1] This was sent to the relevant employees’ work email addresses.

This email comprised a covering email with attachments being an Access Period Letter, a marked up copy of the Agreement, Voting Instructions and a User Guide - Updating personal details.

Relevantly, the covering email and the Access Period Letter explains voting will be on Monday, 25 July 2022.

The covering email relevantly says:

“Over the course of the Access Period, your supervisor shall hold Toolbox meetings to explain the terms of the agreement and the effect of those terms. If anyone would like a further meeting to discuss the changes, please email Kobi Shackleton.”

“…. If you have any questions throughout this process, please contact your supervisor or Kobi Shackleton.”

The Access Period Letter relevantly says:

“A copy of the draft enterprise agreement is also attached to this email, while hard copies are also available on site.

Voting details are as such:

Voting Date: Monday 25th July 2022
Method: Electronic – Please refer to the attached instructions.

If you need to update your contact details, please do so via HR Kiosk prior to Thursday 21st July 2022.

Please note the main changes between the agreements that you should be aware of include:

CLAUSE	DETAILS
1.3 SCOPE & PARTIES	Removed CFMEU as a party
1.5 TERM OF THIS AGREEMENT	Two (2) year term
1.12 DEFINITIONS	Immediate Family – Updated Work Group - Updated
2.3 PAYG	Updated PAYG Rates
2.7.3 CASUAL EMPLOYEE	Updated Casual Conversion Clause
2.11.4 TRAINING ALLOWANCE	New Addition – Clause 2.11.4.4 & 2.11.4.5
4.3 COMMITTED HOURS	Updated Clause and removed the philosophies
5.1 ANNUAL LEAVE	Updated Clause
5.2 PERSONAL LEAVE	Updated Clause
5.5 FAMILY & DOMESTIC VOILENCE LEAVE	New Addition
7.7 KWINANA PROCESS PLANT OPERATOR CLASSIFICATION	New Addition
PART 8 - REMUNERATION	Updated remunerations
PART 9	Updated Committed Hours Amount
APPENDIX B – PHILOSOPHIES	Removed

For further information, please refer to comments on the draft Agreement.

Please take this time to review the enterprise agreement carefully. Your supervisor will also hold a toolbox to discuss the changes.

If at any time, if you have queries or concerns, please contact your supervisor or Kobi Shackleton ([email protected]) to discuss.”

The emailed copy of the draft Agreement is in a marked up format where changes to the wording of the previous agreement are highlighted and accompanied by detailed notations.

For example, relevantly for clause 4.3 Committed Hours, the amended wording for subclauses 4.3.12 through to and including 4.3.15 is highlighted and the notation includes the previous wording and states that Appendix B Philosophies on Committed Hours in the previous agreement is removed.

Also for context, the Appendix B (“the philosophies”) that is referred to of the previous agreement, the Cockburn Cement Limited Enterprise Agreement Munster, Kwinana and Woodman Point 2017, contains the following philosophies regarding how committed hours will be used:

“12 Annexure B – Committed hours philosophies

Please note that 4.3.6 still applies

Department Philosophy
Kwinana Process Short term sick, personal, family or bereavement leave coverage up to three blocks. Adequate operational personnel in control room at all times.

Munster Trades Shift (Electrical) Short term sick, personal, family or bereavement leave coverage”

The emailed marked up copy of the draft Agreement regarding changes to the classifications in the Agreement highlights these in Part 7 – Classifications at 7.1, 7.2 and 7.7.

The evidence of witnesses called by the AMWU relevantly was as follows.

Mr Garlinge in his statement wished to respond to the company’s claims regarding information discussions and toolbox meetings provided to explain the changes in the Agreement. His evidence was the company has provided printed documentation about the changes and management have had informal discussions with several shifts about these changes.

His evidence was, however, the claim that each employee has had the changes explained and the effect in toolbox meetings is untrue. He says he has confirmed this with fellow shiftworkers at Kwinana. His evidence was the only toolbox meeting that took place was information was put on the control room bench explaining the voting process and the form they needed to sign saying they understood and had received this.

His evidence was they were surprised that the vote was called as they were still unsure about the changes to their grading structure.

In his oral evidence in chief, he agreed there had been a number of bargaining meetings and the company and the union had been bargaining in good faith.

His evidence was that the maintenance manager at Kwinana, Mr Shields, had provided a copy of the Access Period Letter and the documents attached to it[2] but he never spoke about the key changes.

He says the discussions were held in a toolbox setting or a formal meeting but the informal discussions with several shifts that he referred to in his statement were conducted by Mr Adam Scata. His evidence was that Mr Scata would stand behind them in the control room and speak to him about a couple of points mostly revolving around their grade change. He remembers three meetings of this type: one meeting there was two employees and the other two meetings there were three employees.

His evidence was that Mr Scata did not talk about the philosophies being removed for committed hours nor about the annual leave provisions or the definitions being changed. He says there was no formal meeting called to discuss the changes during the access period.

Under cross-examination, he agreed that having received the Access Period Letter and attachments,[3] he knew that he could reach out if he did not understand some of the clauses that had changed.

Regarding the committed hours which did not affect him but rather the electrical union, he understood the philosophies on committed hours had been removed from the Agreement and this gave Cockburn the ability to force employees to work when previously they would have been unable to.

Regarding the changes to the grading, he understood that whilst there was only one grade in the control room previously, the agreement would move from one grade to two grades and the second grade which would involve some extra skills. What he did not understand was when they would get that classification change or when they would conduct training. His evidence was that some of the guys were still confused about that. His evidence was that he did not ask Mr Shields these questions but he had a number of discussions with Mr Scata about this. He did not raise this again through the access period.

Under re-examination specifically regarding the access period and conversations with Mr Scata, his evidence was that he could not speak on behalf of the work group because one half of the shift is on when he is off. He said they had one conversation during the access period. He said he was never given a full explanation of all the changes and is still not sure of some of them.

The next witness was Mr Brian Moodie. His statement was that the supervisor came in for the morning meeting, put the how to vote paperwork on the table and asked them to sign the check sheet to say they had received it.

Mr Moodie was not cross-examined.

The evidence of witnesses called by the CEPU relevantly was as follows.

Mr James Connelly’s statement was that on 20 July 2022 himself and three other employees had a meeting with Mr Graeme Churcher in the electrical crib room. His evidence was Mr Churcher instructed them on how to vote via mobile phone. They asked him twice to explain the detail regarding the 75 committed shift hours and he responded that he could not remember, that he was not sure and that he would get back to them.

Mr Connelly says Mr Churcher at no point got back to them.

His oral evidence in chief was that he remembered there was a subcommittee meeting that Mr Brendan Reeve from the union was present at in the canteen room on 16 June 2022.

His evidence about the discussion with Mr Churcher on 20 July 2022 was that the electricians specifically wanted to know how the 75 committed hours would be used.

They asked these questions on 20 July 2022 because they did not understand exactly what Cockburn wanted to use the committed hours for.

His evidence was that in that meeting they were given information on how to vote. He says Mr Churcher did mention the 75 hours and mentioned it was something about training but they could not get more detail from him and he assured them he would get back to them. But that did not occur.

In cross-examination he agreed that he would have opened the Access Period Letter email.

He says he thinks he saw a list of proposed changes but there was no great detail.

His evidence was that he thinks Mr Churcher brought some paperwork into the toolbox meeting. But he cannot remember what was on that.

His evidence was that he had listened in on one or two of the negotiating meetings. He understood what was being negotiated but there was no great deal into what the 75 committed hours could be used for.

He says he knew the philosophies were being removed.

The statement of Mr Nigel Vessey was that during the period of the Agreement rollout, he was off work sick and was contacted by his leading hand who asked him to message Mr Churcher to let him know he understood how to vote. The changes to the Agreement had not been explained to him prior to this time or since.

His oral evidence in chief was that he was off work with COVID-19 on 20 July 2022. He says he returned to work on Tuesday, 26 July 2022. He says no one contacted him during the access period. He says he did not receive the Access Period Letter email.

Under cross-examination, he said he tested positive for COVID-19 on 15 July 2022.

He agreed before the access period he had attended two committee meetings or agreement negotiation meetings.

His evidence was that he understood what was happening in the meetings he attended but that questions were unanswered. He says he did not ask any of his superiors these questions. He says he could not ask the manager because he is a busy man. He did not contact Amy who was there at the time.

This is not the first enterprise bargaining process he has been through. He has been through a few of them before.

In the past, he has never asked questions of Cockburn but has asked through Mr Reeve from the union about issues and Mr Reeve has brought them up.

The main thing he wanted to know was what were the committed hours would be used for.

He was referred to minutes of meetings and subcommittee meetings and his evidence was that he received a copy of those minutes and that anyway a copy was available to him in the workshop.

In re-examination, Mr Vessey agreed that at the meeting on 30 June 2022 he was in attendance and his evidence was that Mr Reeve had asked Mr Powers of Cockburn what the philosophy would be for the use of committed hours. His evidence was that Mr Powers had not answered. He remembers that Mr Reeve asked Mr Powers for another sit down to explain or sort this out. He says to the best of his knowledge that did not happen.

The bundle provided to the Commission is of seven sets of meeting minutes, the first dated 3 May 2022 and the last chronologically dated 11 July 2022. Six of those meetings identify Mr Vessey as having been an attendee.[4]

The statement of Mr William Massam was that on 20 July 2022, he and three other employees had a meeting with Mr Churcher about how to vote on the Agreement via mobile. During the meeting, Mr Churcher and Andrew both asked for more information about the changes to the committed hours, Appendix B, and how this would affect the shift electricians. He says Mr Churcher replied that there was some talk that the committed hours may be used for training but he was not sure and he would get back to them. His evidence was that they did not hear back from Mr Churcher before the voting date.
Mr Massam was not cross-examined.

The statement of Mr Daniel Corver is that on 20 July 2022 he was unable to attend a meeting discussing how to vote with Mr Churcher due to being on night shift. On 22 July 2022, he was contacted by his leading hand to send Mr Churcher in the upcoming agreement on 25 July 2022.

Mr Corver was not cross-examined.

Turning to the evidence of the witnesses called by Cockburn.

The statement of Mr Colin Powers, Regional Operations Manager WA for Cockburn, relies upon the access period information referred to in the respondent’s Form F17 Employers Declaration[5] and the materials filed by the respondent in response to the objecting unions Form F18s.

Mr Powers in his statement also refers to a number of other documents which relevantly are:

Emails between himself and Mr Simon Rushworth from the AMWU, copied in to numerous other employees, initially Mr Rushworth raising concerns on 8 July 2022 and Mr Powers replying the same day referencing the impending access period and the need for employees to understand what they are voting on and deal with various aspects of the negotiations over the Agreement including changes to the wording of the Agreement concerning Kwinana process plant operator classifications and a reply from Mr Rushworth dated 11 July 2022 appreciating Mr Powers feedback and is whatever was agreed that morning.

An email dated 13 July 2022 from Mr Powers to Mr Pratt, Mr Rushworth, Mr Reeve and Mr Giddens amongst others attaching a final draft of the proposed Agreement. It states that since their last meeting, the Kwinana operating classification has been updated and he refers to the wording of clause 1.5.2. The email refers to the access period commencing the following day and that a letter will be sent to all employees along with a copy of the agreement at that time and during the access. They will be explaining changes to employees through toolbox meetings.

Meeting minutes for the AMWU EBA subcommittee dated 11 July 2022 and for the ETU subcommittee dated 16 June 2022.

An email dated 13 July 2022 from Mr Giddens, ETU WA organiser, saying Mr Reeve is on leave and he has carriage of the Agreement until his return. He asks if he can arrange a meeting of members on Tuesday, 19 July 2022. The following day, 14 July 2022, Mr Powers replies that this is okay for him to meet with his members as requested.

An ETU Vote No campaign poster which refers only to the offer being 4% in the first year and the reality of Perth CPI being 7.6%. The post provides contact details for Mr Giddens.

Mr Powers’ statement was that following the meeting with all parties on 30 June 2022, he was approached by Mr Reeve of the ETU and two electrical trade employees. His evidence is that Mr Reeve stated “I’ve told you we want $120/hr for over time and you can get rid of the committed hours with no loss of pay”. Mr Powers says he responded that this is not something they can agree on. Mr Reeve responded by saying we need to meet again but that he was going on leave and Mr Giddens would be in contact to arrange a meeting. Mr Powers’ statement is that the only contact he had from Mr Giddens following this was the email requesting to meet with his members on 19 July 2022 which he approved.

His oral evidence in chief was that just before the access period, there was a meeting of senior staff where it was discussed that they were entering the access period, how to vote and the process and the timelines and dates were explained. He instructed the supervisors to lead meetings at toolbox sessions with the employees making sure they had a hard copy of the Agreement which identified all the changes and both the current wording and the new wording.

During the access period, the only contact he had from the unions was from Mr Giddens requesting to meet with his members and also Mr Pratt from the AWU requesting to meet with his members.

His evidence was that during this time no employees came to him regarding questions over the Agreement.

Mr Powers identified the Access Period Email sent to all relevant employees’ work email addresses on Thursday, 14 July 2022 at 12:32 PM attached to which was an Access Period Letter of the same date which identified the main changes in the Agreement employees should be aware of, plus a marked up draft Agreement, plus Voting Instructions and finally a User Guide - Updating personal details.[6]

Under cross-examination, he confirmed that there were no discussions during the access period regarding changes to the Agreement with employees and himself personally.

With respect to some sign on sheets that Mr Rushworth put to Mr Power, his evidence was that all employees were provided with the marked up copy of the Agreement and all the other information by email on 14 July 2022 and the sheets some employees had signed were dated well after this as they were just a confirmation that they had received the materials.

His evidence was that he had gone through the Agreement changes line by line during his meeting with the supervisors on 14 July and given them an explanation of the changes. They were informed that should there be any questions they are unable to answer or they needed any assistance, they should either contact Ms Shackleton or himself.

He was asked whether any of the supervisors passed on questions and Mr Powers’ evidence was that Mr Graeme Churcher had asked him about the committed hours for electricians and how those hours were going to be used in the future and his response was that that had not yet been decided. The negotiations had been around removal of the philosophies, which are removal of the restrictions on the use of committed hours and that how Cockburn will use those committed hours going forward will be the subject of further consultation and discussion.

He said it was impossible to reach every employee on the first day of the access period because there are a number of different shifts and some people are not available so it does take some time to reach out to every employee and talk to them about the access period and the voting. Because of this, the dates on the timesheets are all staggered. His evidence was he understood though that the requirements to provide everybody with the relevant information from the commencement of the access period was dealt with by the email sent out on 14 July 2022 to all employees.

Under cross-examination by the ETU, it was put to Mr Powers that Cockburn were going to remove the committed hours philosophy from the Agreement but they were not clear what Cockburn was going to use those hours for. Mr Powers agreed that that was the case.

In re-examination, his evidence was that he has been involved in a number of agreement negotiations. In terms of communications, the method they use to engage their employees in all the agreements he has been involved in has always been to email them the information.

The statement of Mr Adam Scata, Kwinana Operations Manager,[7] was that in the lead up to the access period, he had held nine subcommittee meetings with the Kwinana Process Operator Union and bargaining representative, Michael Wilson and AMWU organiser, Mr Rushworth. These meetings were used to develop seven versions of the classification structure with each meeting being used to channel team feedback into discussions about changes to the next classification version.

Upon completion of their final subcommittee meeting number nine, held on 11 July, agreement was reached on the final classification structure and a commitment made by Mr Powers to commence negotiations of the 2024 agreement 6 months prior to the 2021 agreement expiry.

He says Mr Wilson and Mr Rushworth left the meeting in good spirits and went back to the team to discuss the agreed changes.

His statement is that he was also involved in several subcommittee meetings with the electrical team and ETU organiser, Mr Reeve. The Electrical team members self-represented at the later subcommittee meetings and combined negotiation meetings and were hence privy to all discussions and changes.

Discussions with this team centred around the shift electrical team’s committed hours package and Cockburn’s position to remove the philosophies restricting the use of these hours. There was also discussion around the wage claim and overtime rates that were very ambitious and unrealistic, hence agreement was not reached on these matters.

He says that Cockburn had prepared and distributed information via email and/or printed hard copies to each employee. His supervision team along with himself personally distributed information via email and/or printed hard copy to each employee. His supervision team along with himself distributed printed information and requested employees sign off to verify they had received a copy and understood the voting process. These signatures were collected between 18 and 22 July 2022.

His statement was that he personally had conversations with multiple team members on a number of occasions in relation to the classifications and Agreement changes. He lists eight individual employees who he says are all members of the AMWU Kwinana Process Operator Team, who he says he met at different times during the access period.

He says multiple questions were asked of him in relation to the classification changes for the Process Operators specifically around the Level 2 isolations and how this would work. They asked him questions relating to when they would be eligible for the grade change and he replied, immediately following ratification if the Level 2 isolation training is completed.

He says he also had a meeting with three electrical team members to discuss the changes in the final Agreement.

His oral evidence in chief was that on previous occasions during the access period, information has been given out in a mixture of email and hard copy. He says toolbox meetings were held over the access period to ensure that each shift was contacted and had access to the information. He says a few hard copies were made available around the plant.

He says there were informal discussions between him and some of the team members when he walked around the plant. There were a few questions specifically from individuals asking when they would be able to move on to a Grade 7 and he explained to them this would happen after they were trained in Level 2 isolations.

He said they did not come back with any questions after this and he felt they definitely understood.

In his oral evidence in chief, he again explained that during the access period he had meetings with three of the electrical team members in a more formal setting. They asked plenty of questions and they went through almost line by line the Agreement changes. He says they definitely did not agree with a lot of the changes. They had made it known that they were pushing for a no vote and were not in agreeance with the committed hours philosophies being removed from the Agreement.

The statement of Mr Churcher, Reliability Manager,[8] relevantly is that in the subcommittee meeting held on 16 June 2022 which most of the electrical trades employees attended, it was communicated that the company would be removing the committed hours philosophies.

There was a fair bit of negotiation on this subject. It was clear to him the electrical trades understood what was meant by removing the philosophies along with the other changes that were proposed in the Agreement that applied to them.

It was discussed at the 16 June meeting that future discussions would be held through the consultative process, the company would look for better usage of the committed hours and that it could be used, for example, for training. He recalls that it was said and agreed during the meeting that the consultative process in discussing the use of the 75 committed hours would not hold up the agreement process.

His statement is that there was no further change to the 75 committed hours at the time of the vote from the subcommittee meeting on 16 June 2022.

His statement is that all ETU members were invited to attend the electrical subcommittee enterprise bargaining meetings starting from the meeting held on 12 April. The ETU members from Munster had requested they attend future meetings as they did not feel they were receiving feedback through their shop steward. His response was positive that they could attend. From 12 April, ETU members attended the meetings where possible.

His statement was that he started to hold how to vote meetings on 20 July with the ETU members. Not all members were able to attend through sickness (COVID-19) or through shift patterns.

Other non-attending ETU members were emailed, contacted and asked to respond to him by text that they understood the how to vote system. All responded positively that they understood the voting system. He then recorded their attendance and text messages.

His statement was that he was asked a couple of questions during the how to vote meeting, however he had no further comment on the company's position which was discussed and explained at length with the electrical trades employees during the subcommittee meeting on 16 June as well as at subsequent enterprise bargaining agreement meetings with the wider workforce. His understanding was that they would also self-review the Agreement document which he told them that they should do.

Mr Churcher was not cross-examined.

The statement of Mr Tom Foster, an AWU representative,[9] was that at the first meeting held on 2 September 2021, Mr Powers tabled the company’s log of claims for the Agreement.

As the minutes from this meeting state, Cockburn tabled the removal of non-value adding pre-paid hours, referring to the remaining work groups with committed hours, the removal of the philosophies pertaining to these hours and the pre-paid washdown hours (production-lime).

It was discussed that to efficiently facilitate individual group discussions, subcommittee meetings should be held with the relevant work groups representatives, their union advisors and the company representatives.

At every meeting held, the proposed changes to the Agreement were discussed with the relevant union advisors and their workgroup representatives. These discussions were distributed via meeting minutes to be discussed with each work group by their representatives.

The AWU representatives achieved this by posting detailed explanations of the meeting minutes to a web group to which any person from any union under the Agreement was welcome to join, read and discuss the matters as they developed. This allowed them to get immediate feedback from the work group so they could better represent their wishes and concerns at subsequent meetings.

His statement is that the proposed changes to the Agreement were highlighted in every iteration of the document throughout the entire bargaining process and the opportunity to discuss and negotiate these proposed changes were present for the duration of the negotiations.

Upon the commencement of the access period, Cockburn distributed all relevant information regarding changes to the document to every individual, union representative and union advisor to be discussed prior to the voting date.

As the shop steward of the AWU Munster, Mr Foster and Jeff Pratt visited every shift to discuss the changes in the Agreement in the access period so they could address the concerns and questions of every AWU member who attended. They also made themselves available by phone, email and webpage to anyone who could not attend a meeting.

He believes Cockburn provided more than sufficient, accurate and easy to understand documentation pertaining to all the proposed changes to the Agreement, not just at the beginning of the access period but throughout the entire negotiation period.

If any individual believes they did not have adequate explanation of the changes to the Agreement, the evidence would suggest it was due to poor representation from their nominated representatives and union advisors, not lack of information or opportunity for discussion from the company or its representatives.

Mr Foster was not cross-examined.

The statement of Mr Botterill and Mr Harvey[10] was that they had been provided enough information by Mr Scata regarding the enterprise bargaining agreement and they knew who to speak to regarding the Agreement. They feel they had been given enough information to make an informed decision on voting.

Mr Botterill and Mr Harvey were not cross-examined.

The statement of Mr Hamer,[11] who has been employed at Cockburn for nearly 29 years, 25 of them as the AWU delegate Woodman Point, is that he believes Cockburn has again explained and negotiated the Agreement in the usual good faith that it has always endeavoured to do. The process of voting and any changes to the current agreement were thoroughly explained to all employees at Woodman Point by the supervisor Mr Stuart Cramer.

The statement of Mr Allard[12] is that Mr Michael Rice sat down with A Shift General Services and went through the changes in the Agreement clearly and thoroughly so they knew what was changed. His statement is they knew clearly what they were voting for.

Mr Allard was not cross-examined.

The statement of Mr Pargin, AWU shop steward,[13] is that all the Kwinana Packing Plant AWU members have had the Agreement terms and conditions explained to them thoroughly throughout the negotiation period, with several consolidation committee meetings held with the AWU organisers and himself.

His statement is that all meeting agendas were openly discussed with Cockburn management and formally presented with the team through group meetings and changes to the Agreement were highlighted and discussed in detail with hard copies handed to each member to take home for further dissection. The feedback received indicated the Packing Plant employees were pleased with the Agreement package.

In summary, the Packing Plant employees were happy with the negotiation process and the terms and conditions stated in the new Agreement but are frustrated at delays now created post vote.

Mr Pargin was not cross-examined.

The other evidence before the Commission is the material filed with the application being the Form F17 Employer’s Declaration.

The Form F17 Employer’s Declaration shows that there were 105 relevant employees. Of the relevant employees, 98 cast a valid vote and of those who cast a valid vote, 61 voted to approve the agreement.

Submissions

The submissions of the AMWU is that Cockburn has not met the requirements of demonstrating that the Agreement was genuinely agree to.

It is submitted that a lot of Cockburn’s evidence refers to bargaining meetings and subcommittee meetings which is not in dispute.

It is not disputed that the company took reasonable steps to provide documentation and to provide information on how to vote.

The dispute is centred around Cockburn not taking all reasonable steps to explain the terms and conditions within the proposed Agreement during the access period.

It is the responsibility of the employer and the onus rests there.

The submission of the ETU is that the Commission cannot be satisfied that the Agreement has been genuinely agreed to as required by s.188.

It is submitted that Cockburn has not taken all reasonable steps to ensure the terms of the Agreement and the effect of those terms were explained to the relevant employees and that the explanation provided was appropriate as required by s.188(5).

The Commission must be satisfied that the pre-approval steps in s.185 have been met.

The Commission must take into account the particular circumstances and needs of the relevant employees. The ETU believes this has not happened. ETU members had questions and concerns at the meeting on 20 July 2022 and they were not satisfactorily answered. Other ETU members were absent that day and no follow-up was taken by the company on their return prior to voting. Mr Churchers’ own statement states that he had no further comment on the company’s position.

It was submitted that at enterprise bargaining meetings on 23 and 30 June 2022 and subcommittee meetings prior to that, it was discussed with Mr Powers that he wanted to now use the 75 committed hours for training which was challenged. That training can be arranged during work time given the company knows an employee’s roster virtually years in advance. The ETU also had concerns that a supervisor who did not like an employee could target them with the use of committed hours and there was no protection there. There was no guarantee this would not happen or occur in the future.

Later a vague one-page piece of paper on changes from Mr Churcher did not explain the changes nor give answers. The questions about committed hours were unanswered in regard to training.

It is submitted that both Mr Powers and Mr Churcher failed in their duty to adequately answer questions during the access period. Additionally for employees who were absent that day.

The ETU submit the Commission should not approve the Agreement.

Cockburn’s submission is that they did meet the expectations and did try to get hold of all employees by email or in person to hand them information.

Ms Shackleton says she has chased up every supervisor and asked them whether there are any questions. But there was only one question from employees by email or phone that was answered at the time.

So, it is that Cockburn submits that it has met the obligations under the Act and the Commission should approve the Agreement.

The legislation

Provisions of the Act relevant to the Commission’s consideration in this case are set out below.

“180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre‑approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i)the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

(4) The access period for a proposed enterprise agreement is the 7‑day period ending immediately before the start of the voting process referred to in subsection 181(1).

Employees must be given copy of disclosure documents etc.

(4A) If an organisation gives the employer a document under section 179 by the end of the fourth day of the access period for the agreement, the employer must take all reasonable steps to ensure that the relevant employees:

(a) are given a copy of the document as soon as practicable after it was given to the employer; or

(b) are given access to a copy of the document as soon as practicable after it was given to the employer and have access to that copy throughout the remainder of the access period for the agreement.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(4B) If the employer is required to prepare a document under section 179A, the employer must take all reasonable steps to ensure that the relevant employees:

(a) are given a copy of the document by the end of the fourth day of the access period for the agreement; or

(b) are given access to a copy of the document by the end of that fourth day and have access to that copy throughout the remainder of the access period for the agreement.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(4C) The employer must not knowingly or recklessly make a false or misleading representation in the document that the relevant employees are given a copy of or access to under subsection (4B).

Note: This subsection is a civil remedy provision (see Part 4‑1).

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.”

“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.

“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.”

Applicable principles

A Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union; The Australian Maritime Officers' Union v Broome Marine and Tug Pty Ltd[2021] FWCFB 171 considered the requirements of s.180(5) and held as follows:

“[35] Reaching the requisite state of satisfaction as to compliance with s 180(5) depends on the circumstances of the case. The nature of the requirement was recently summarised by a Full Bench of the Commission in The Australian Workers Union v Rigforce Pty Ltd (Rigforce) [2019] FWCFB 6960 as follows:

[35] In considering the “genuinely agreed” ground of appeal, it is necessary for reasons which will become apparent to consider in detail only the question of compliance with the pre-approval step in s 180(5). The nature of the requirement in s 180(5) was analysed in detail by the Federal Court (Flick J) in CFMEU v One Key Workforce Pty Ltd. We adopt the summary of that analysis set out in CFMMEU v Ditchfield Mining Services Pty Limited (Ditchfield Mining), which reduced it to the following four propositions:

(1) whether an employer has complied with the obligation in s 180(5) depends on the circumstances of the case;

(2) the focus of the enquiry whether an employer has complied with s 180(5) is first on the steps taken to comply, and then to consider whether:

• the steps taken were reasonable in the circumstances; and

• these were all the reasonable steps that should have been taken in the circumstances;

(3) the object of the reasonable steps that are to be taken is to ensure that the terms of the agreement, and their effect, are explained to relevant employees in a manner that considers their particular circumstances and needs. This requires attention to the content of the explanation given; and

(4) an employer does not fall short of complying with the obligation in s 180(5) of the FW Act merely because an employee does not understand the explanation provided.

[36] Additionally, we also adopt the analysis of Gostencnik DP in BGC Contracting Pty Ltd concerning the nature of a statutory obligation to take “all reasonable steps” as follows (footnote omitted):

“[43] A requirement or obligation to take “all reasonable steps” seems to me to require the identification of the steps a reasonable person would regard as reasonable in the circumstances that apply. Whether particular steps are reasonable will depend on the particular circumstances existing at the time the obligation arises. A requirement to take all reasonable steps does not extend to all steps that are reasonably open in some literal or theoretical sense…””

(Underlining added.)

Notably, s.180(6) specifically focuses on one particular circumstance of the relevant employees being that they may not have had a bargaining representative for the agreement. This particular circumstance is, however, not present in this case. Rather, it seems that the employees who gave evidence were represented by bargaining representatives throughout the negotiations as is reflected in the meeting minutes submitted to the Commission.

Consideration

With respect to the pre-approval requirements in s.180 of the Act, the evidence is that the written text of the Agreement, amongst other things, was emailed to each relevant employees’ work email addresses on 14 July 2022 and the vote commenced on 25 July 2022.

Consequently, the Commission is satisfied that Cockburn took all reasonable steps to ensure that during the access period the relevant employees were given a copy of the written text of the Agreement and had access to this material throughout the access period.

The next question in this case is whether Cockburn complied with s.180(5).

The Commission must establish what the steps taken to comply were.

The steps taken to ensure that the terms of the Agreement and the effect of those terms was explained to the relevant employees were:

emailing to the relevant employees the Access Period Letter which identified the 15 main changes in the agreement they should be aware of by clause number and name with brief details, and advised them to refer to the comments on the draft Agreement for further information;

emailing to the relevant employees the draft Agreement which was marked up to highlight the changes compared to the previous agreement with notations providing detail where necessary of each change;

in the Access Period Letter advising that if the relevant employees had queries or concerns to contact their supervisor or Ms Shackleton by email to discuss;

managers and supervisors held a number of meetings with small groups of employees to explain and discuss the draft Agreement and the effect of its terms. However, not every relevant employee participated in such a meeting; and

requests by the ETU and the AWU representatives to meet with their members during the access period were approved.

The particular circumstances and needs of the relevant employees were that:

all the relevant employees speak English as it is their first language;

the Agreement was to replace a previous agreement and there is a considerable history of enterprise bargaining at the business;

there were a significant number of enterprise bargaining meetings and meetings of subcommittees representing subgroups of the workforce. At these meetings there were multiple union representatives involved. Many employees themselves directly attended or observed these meetings and/or subcommittee meetings and the minutes of these meetings were circulated to a significant number of the relevant employees prior to the access period.

excluding technical amendments, the number of changes that had a material effect on the relevant employees was not large.

The evidence of the witnesses satisfies the Commission that generally the relevant employees did understand the changes the Agreement made compared to the previous agreement. The employee’s evidence notably focused only on two changes in the Agreement.

Considering the steps taken by Cockburn and the particular circumstances of the relevant employees, the question for the Commission is whether Cockburn took all reasonable steps to ensure the terms of the Agreement and the effect were explained.

From the evidence, it is clear to the Commission that the electrical trades employees affected by the changes to the wording of clause 4.3 Committed Hours, did understand the changes being made including the effect of deleting the philosophies prescribed in Annexure B of the previous agreement.

They understood that the changes to the committed hours clause and the removal of the philosophies meant that Cockburn would no longer be constrained to committed hours being used as prescribed in the previous agreement’s philosophies.

The lack of prescription of how the committed hours would be used was opposed by the ETU and some or possibly all of the employees affected by this change and this had been pressed during the negotiations. Cockburn, however, had not been willing to limit itself as to how committed hours might be used in the future; it did not agree to a revised set of philosophies, for example, being included in the Agreement.

The evidence is that during the access period, the ETU and electrical trades employees continued to press Cockburn on this issue. They continued to ask Cockburn to be specific about what committed hours would be used for; they sought commitments about how the committed hours would be used. Cockburn was not willing to do this; it would not rule anything in or anything out.

The fact that Cockburn would not answer specifically what in future committed hours would be used for, if the Agreement was approved, was not a case of failing to explain the effect of the terms in the Agreement. Cockburn’s position was that these issues would not be prescribed in the Agreement but be dealt with through consultation when they arose in the future.

This new approach to the use of committed hours appears to have been well understood by the employees but not accepted by them. The fact the employees wanted specificity on the use of committed hours which Cockburn did not give them is not a case of the effect of the Agreement not being explained. It is nothing more than the manifestation of the existing difference between the parties on whether there should be prescription in the Agreement or not regarding the use of committed hours.

Separately, the submission that Cockburn had not explained the effect of the terms of the Agreement that involved the changes to classifications is not supported by the evidence. Rather, the evidence is that when questions were asked by employees as to when they would be able to access the new grade in the classification structure, this was answered by Cockburn. Employees were advised if the Agreement was approved, the effect of this change would be that they would be eligible to move to the higher grade when they had completed the Level 2 isolation training.

I accept some employees may still not have been clear on this issue. Any employees who continued to be unclear about how the movement up in classification would work had the opportunity to raise that further by emailing Ms Shackleton as detailed in the Access Period Letter if they wished. If they chose not to take this step, that is not a failing of Cockburn.

The AMWU and the ETU, the unions objecting to the Commission approving this Agreement, complain that Cockburn did not meet with every single one of the relevant employees to explain the terms of the Agreement and their effect. They also complain there was at some points employees absent on sick leave during the access period, however the Commission notes that this employee was provided with all the materials on 14 July 2022 before their absence due to illness. They also say promised follow-ups by supervisors did not occur. Notably, none of these complaints were raised by the employees with Ms Shackleton as the Access Letter urged employees to do.

The requirement to take all reasonable steps, however, does not extend to all steps that are reasonably open in some literal or theoretical sense.

The object of the reasonable steps taken is to ensure the terms of the Agreement, and their effect, are explained to relevant employees in a manner that considers their particular circumstances and needs.

An employer does not fall short of complying with s.180(5) merely because an employee does not understand the explanation provided.

Considering all of the above, the Commission is satisfied that taking into account the particular circumstances and needs of the relevant employees in this instance, Cockburn has taken reasonable steps to ensure that the terms of the Agreement and the effect of those terms were explained to those employees and these were all the reasonable steps that should have been taken.

Consequently, the Commission is satisfied that Cockburn has met the preapproval requirements in s.180.

Conclusion

The Commission rejects the objections by the AMWU and the ETU to the Agreement being approved.

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

The AMWU, AWU, CEPU and TWU being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 October 2022. The nominal expiry date of the Agreement is 31 January 2024.

[1] Exhibit Cockburn 2

[2] Exhibit Cockburn 2

[3] Exhibit Cockburn 2

[4] Exhibit ETU 3

[5] Exhibit Cockburn 1

[6] Exhibit Cockburn 2

[7] Exhibit Cockburn 3

[8] Exhibit Cockburn 4

[9] Exhibit Cockburn 5

[10] Exhibit Cockburn 6

[11] Exhibit Cockburn 7

[12] Exhibit Cockburn 8

[13] Exhibit Cockburn 9

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Citations

Cockburn Cement Limited [2022] FWCA 3315

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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The Australian Maritime Officers' Union v Broome Marine and Tug Pty Ltd [2021] FWCFB 171

[2022] FWCA 3315

29 SEPTEMBER 2022