Commonwealth of Australia, as represented by Services Australia
[2024] FWCA 1068
•27 MARCH 2024
| [2024] FWCA 1068 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Commonwealth of Australia, as represented by Services Australia
(AG2024/695)
SERVICES AUSTRALIA ENTERPRISE AGREEMENT 2024-2027
| Commonwealth employment | |
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 27 MARCH 2024 |
Application for approval of the Services Australia Enterprise Agreement 2024-2027
The Commonwealth of Australia, as represented by Services Australia, has applied under s 185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement, the Services Australia Enterprise Agreement 2024-2027 (Agreement).
An employee bargaining representative, Peter McAndrew, lodged an F18A declaration in which he advised the Commission that he did not support the approval of the Agreement. Mr McAndrew contended that the Agreement could not be approved by the Commission and advanced two principal grounds which were addressed in some detail in the F18A declaration, and were also the subject of oral submissions at the hearing of the application.
First, Mr McAndrew contended that the Agreement had not been genuinely agreed to by the employees covered by the Agreement, and that the approval requirement in s 186(2)(a) of the Act was not satisfied. In paragraphs 1 to 12 of section 5 of the declaration, he variously contended that the Australian Public Service Commission (APSC), which was initially involved in enterprise bargaining on behalf of a number of Commonwealth agencies including Services Australia, had misrepresented to employees the level of support for the proposed agreement and the significance of certain common benefits that would be provided to employees of the relevant agencies, and that it had suggested that certain conditions would be maintained when later they were removed. He said that both the APSC and Services Australia had told employees that no better offer was possible and that this was not the case because revised offers were later made. He said that employees had also been told that they had received the largest pay offer in ten years and that this was true in absolute terms but misleading in real terms once inflation was considered.
In paragraphs 9 to 19 of section 5 of his F18A, Mr McAndrew contended that neither the APSC nor Services Australia had bargained in good faith. In particular, he said that Services Australia had favoured union bargaining representatives over individual ones like him, including by scheduling bargaining meetings on days that individual bargaining representatives were not scheduled to work, by not providing recordings of meetings to representatives who were unable to attend, by only holding one meeting with him and not conducting a follow-up meeting, and by not responding to his feedback in a timely manner. Mr McAndrew contended that because of these matters, the Commission could not be satisfied that the Agreement had been genuinely agreed to by the employees covered by the Agreement.
Mr McAndrew’s arguments in support of his contention that the Agreement was not genuinely agreed to by employees are essentially twofold. First, he submits that there could be no genuine agreement because the employer and its representative did not bargain in good faith. Secondly, he submits that the Agreement could not have been genuinely agreed to because of the alleged misrepresentations made to employees. As to the first matter, it has not been established in these proceedings that the employer or its bargaining representative failed to meet the good faith bargaining requirements of the Act. But even if it had been, it would not follow that the Agreement had not been genuinely agreed to by employees. Mr McAndrew did not agree with the manner in which bargaining took place but this does not engage any of the approval requirements in the Act. If a bargaining representative is concerned that another bargaining representative is not meeting the good faith bargaining requirements, the appropriate course is to give written notice of the concern to the relevant party and, if the concern is not addressed, to seek orders from the Commission pursuant to s 230 of the Act.
As to the second matter, I do not accept that employees were misled about the content or effect of the Agreement. Based on the detailed information provided by Services Australia in its F17A declaration, and the extensive explanatory and other material that it provided to employees and which was attached to the declaration, I am satisfied that the employer took all reasonable steps to ensure that the terms of the Agreement and the effect of those terms was explained to employees, as required by s 180(5) of the Act. I note that Mr McAndrew’s contention that employees had been misled in various ways was not shared by the other bargaining representatives who attended the hearing. The Community and Public Sector Union (CPSU), Robert Green and Marc Davis all supported Services Australia’s application for approval of the Agreement, and the CPSU specifically submitted that in the opinion of the union the Agreement had been genuinely agreed to by employees. Based on all of the information before the Commission, including the materials that have been filed and the oral submissions at the hearing, I am satisfied that the Agreement was genuinely agreed to by the employees covered by the Agreement.
Mr McAndrew advanced several other arguments. He contended that employees were ‘coerced’ into accepting the proposed Agreement because the vote was timed to take place close to the threshold date for certain payments, and because Services Australia had told employees that they were unable to improve the pay offer. He also said that Services Australia had not yet prepared various policies that are referred to in the Agreement and contended that these should have been written prior to the vote. I reject these contentions. Neither of the first two matters amounts to coercion. As to the third matter, the fact that an agreement refers to a policy that has not yet been drafted is not suggestive of a lack of genuine agreement. (In some cases, reference to undrafted policies might present BOOT concerns, but not in the present case). None of these matters casts doubt on the genuineness of employees’ agreement.
The second principal contention made by Mr McAndrew, at paragraphs 1 to 12 in section 9 of his declaration and also in section 7, was that the Agreement did not pass the ‘better off overall test’ (BOOT) against the Australian Public Service Enterprise Award 2015 (Award). He referred to a number of respects in which the Agreement was said to be less favourable to employees than the terms of the Award, including in relation to various allowances. However, the fact is that the Agreement provides employees with many terms of employment that are substantially more beneficial than those in the Award, including significantly higher salaries and employer superannuation contributions, as well as enhanced entitlements to leave. In my opinion, these terms easily outweigh the provisions which, in certain respects, are less beneficial to employees than those in the Award. Mr McAndrew submitted a model of an employee required to serve jury duty on a 27-day trial which showed the employee receiving less remuneration under the Agreement for that year than would be the case under the Award. But the model did not account for the Agreement’s higher superannuation, greater leave entitlements, and other enhanced benefits vis-à-vis the Award, or the higher net pay under the Agreement in other years when no jury service is required.
In my assessment, each award covered employee and each reasonably foreseeable employee will be better off overall under the Agreement than under the Award. I am satisfied that the Agreement passes the BOOT. I have reached this conclusion having undertaken the global assessment required by s 193A(2), and having considered the views of Services Australia and those bargaining representatives that have expressed a view about the BOOT (see s 193A(3)). I note that s 193A(4) requires that the Commission give ‘primary consideration to a common view’ on the BOOT that has been expressed by the employer and a bargaining representative that is an employee organisation, that is, a union bargaining representative. In this case, the employer and the union have a common view about the BOOT, which is that the Agreement passes the BOOT. I give primary consideration to this view. But even in the absence of this common view, I would have been comfortably satisfied that the Agreement passed the BOOT.
Mr McAndrew suggested that the Agreement might contain provisions that were inconsistent with the National Employment Standards (NES), such that the requirement of s 186(2)(c) of the Act was not met. I disagree that there are any such provisions. But in any event, clause A5 of the Agreement contains a ‘NES precedence clause’ which makes clear that the Agreement is intended to apply in a manner that does not derogate from the NES, and that the NES will continue to apply to the extent that any term of the Agreement is detrimental to an employee in any respect when compared to the NES. Mr McAndrew suggested that this might entail some disability by placing an onus on employees to establish any detriment for the purpose of clause A5 before gaining access to NES entitlements. I do not consider there to be any onus or disability associated with the clause. The position is not fundamentally different from a situation in which an employee might contend that an employer policy or practice, unrelated to an enterprise agreement, was in some way inconsistent with the NES. The fact that disagreements might sometimes arise about the application of the NES precedence clause in particular circumstances is not an impediment to the approval of the Agreement.
Mr McAndrew also submitted that Services Australia had issued a notice of employee representational rights (NERR) which identified the employees to be covered as all non-senior executive service employees, and said that this did not match the coverage of the Agreement. He contended that bargaining for a new agreement had therefore not properly commenced, with the consequence that the Agreement could not now be approved. This is not the case. There is no deficiency in the NERR that was issued to employees, nor is there any irregularity associated with the scope of the Agreement with reference to that document. The NERR stated that the proposed agreement would apply to employees employed in Services Australia under the Public Service Act 1999 except for senior executive service employees. Clause A2.1(b)(i) of the Agreement states that the Agreement covers employees employed under the Public Service Act other than senior executive service employees and certain medical officers. The coverage of the Agreement is therefore somewhat narrower than the scope of the NERR, as the NERR did not refer to the exclusion of the medical officers. Where the scope of an enterprise agreement is broader than that of the NERR, it may be that some employees will not have received the NERR, contrary to s 173 of the Act. But it is perfectly acceptable for the scope of the negotiated agreement to be narrower than the NERR.
Conclusion
I am satisfied that all of the approval requirements in ss 186 and 187 have been met. The Commission is therefore required to approve the Agreement. The CPSU has given notice under s 183 that it wants the Agreement to cover it. As required by s 201(2), I note that the Agreement covers the CPSU. The Agreement was approved on 27 March 2024 and will operate from 3 April 2024.
DEPUTY PRESIDENT
Hearing details:
2024
Melbourne (by telephone to Canberra)
25 March
Appearances:
P. Vane-Tempest for Services Australia
A. Tandel for the CPSU
P. McAndrew, employee bargaining representative
R. Green, employee bargaining representative
M. Davis, employee bargaining representative
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