[2017] FWCA 2103

FAIR WORK COMMISSION

DECISION

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

Commonwealth of Australia (represented by the Department of Finance on behalf of the Special Minister of State)
(AG2016/7464)

COMMONWEALTH MEMBERS OF PARLIAMENT STAFF ENTERPRISE AGREEMENT 2016-2019

Australian Capital Territory
DEPUTY PRESIDENT KOVACIC	CANBERRA, 12 APRIL 2017

Application for approval of the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 – whether agreement genuinely agreed to by employees and whether agreement passes the better off overall test – agreement approved.

[1] An application was received by the Fair Work Commission (the Commission) on 2 December 2016 for approval of an enterprise agreement known as the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 (the Agreement). The application was made by the Commonwealth of Australia (represented by the Department of Finance on behalf of the Special Minister of State) (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Background

[2] In its Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) 1 the Applicant provided the following details regarding the vote on the Agreement – 1,952 employees would be covered by the Agreement, 1,413 of those employees cast a valid vote with 714 employees voting to approve the Agreement2.

[3] By way of background, the employees covered by the Agreement are employed under Parts III and IV of the Members of Parliament (Staff) Act 1984 (Cth) (the MOP(S) Act) in the classifications listed in Attachments A-C of the Agreement.

[4] The Community and Public Sector Union (CPSU) and the Australian Services Union (ASU) were both bargaining representatives for the Agreement. In their respective Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement) neither union supported approval of the Agreement on the basis that it had not been genuinely agreed to by employees covered by the Agreement and that it did not pass the better off overall test (BOOT).

[5] Against that background, on 17 January 2017 the Commission sent an email to the CPSU and ASU seeking an indication as to whether they wished to be heard in respect of the matter. Both confirmed that they did and as a result the application was listed for mention and directions on 23 January 2017. Directions were issued later that day with the matter heard on 23 and 24 March 2017. Also at the Directions hearing, the Commission undertook to raise any BOOT related questions/issues which it had in respect of the Agreement so that the parties might address those questions/issues in their written submissions/evidentiary material. The Commission wrote to the parties on 2 February 2017 setting out two questions, the first directed solely to the Applicant and the other addressed to all parties.

[6] At the hearing, Mr Bilal Rauf of Counsel appeared with permission for the Applicant, Ms Rebecca Fawcett, the CPSU’s Director – Political, Industrial, Research and Legal, appeared for the CPSU and Ms Casey Young, a National Industrial Officer with the ASU, appeared for the ASU. Witness evidence was given by the following:

For the Applicant

Mr Tony Nairn – Director, Employment Framework, Entitlements Policy Branch, Department of Finance (DoF)

Mr Tim Slater – Director, GoVote Pty Ltd (GoVote)

For the CPSU

Ms Helen Bergen – Electorate Officer

Mr Ruben Bala – casual Electorate Officer

Mr Eric Mandl – casual Electorate Officer

For the ASU

Ms Alison Byrnes – Electorate Officer

Ms Lia Lawrie – casual Electorate Officer

Ms Ruth Stanfield – Electorate Officer

The Applicant’s case

[7] The Applicant submitted that:

it took all reasonable steps to ensure that employees employed at the time and who would be covered by the Agreement were given a copy of the Agreement and any other materials incorporated by reference at the start of and during the access period, were notified of the time and place at which the vote would occur and the voting method that would be used by the start of the access period and were provided with an explanation of the terms of the Agreement and the effect of those terms in an appropriate manner;

it was not aware that Ms Lawrie was an employee until late on 22 November 2016 when it received notification of her engagement, adding that once it became aware of her employment she was provided with voter instructions from GoVote on 24 and 25 November 2016 which were sent to her work email address;

with regard to Mr Mandl, although he had been engaged during the ballot period, his contract and contact details were not provided to it until after the ballot period had closed, adding that as a result it was not aware that he had been engaged as a casual employee during the ballot period;

it had provided materials and information to all relevant employees of which it was aware of at the time and for whom it had contact details;

on 16 November 2016 GoVote emailed voter instructions, including the employee Personal Identification Number (PIN), a link to the voting website and voting instructions (for both online and telephone voting) to all employees on the voter roll;

on 18 November 2016 employees received an email from DoF confirming when the vote would commence and providing information to assist employees in locating their CHRIS ID (staff number), which was required to vote;

as a majority of employees who cast a valid vote voted to approve the Agreement, the Commission ought to be satisfied that the requirement for genuine agreement at s.188(b) of the Act had been met;

a similar online voting method had been used in the ballot for the Commonwealth Members of Parliament Staff Enterprise Agreement 2012-2015 3 (the 2012 Agreement) without challenge, including the use of an employee’s staff number which was then referred to as an eMOPS number;

the online voting method was supported by the ability to vote by telephone, an option utilised by a number of employees;

extensive explanations on how to vote and how to access an employee’s CHRIS ID or staff number were provided to employees via email and on the Ministerial and Parliamentary (M&PS) website, adding that the instructions were easy to follow and did not require specific training in Online HR or the voting system;

the unions’ evidence established that in all but one case the assistance provided by the Applicant’s Staff Help Desk resolved the issues and enabled the relevant employee to cast a vote, adding that the one case which was not able to be resolved related to Mr Bala and in that case the Staff Help Desk sought to contact Mr Bala on two occasions in response to his call but that Mr Bala was unavailable and/or did not return the Staff Help Desk’s call;

the unions’ evidence further established that only three employees 4 who attempted to vote did not have their vote recorded (Ms Bergen, Mr Bala and Ms Stanfield), adding that in each of the circumstances the employee either did not contact the Staff Help Desk for assistance, did not leave a message or attempt to contact the Staff Help Desk via email or in Mr Bala’s case did so and did not return the Staff Help Desk’s calls;

the unions had not provided any evidence to establish that a significant number of employees were only able to record a vote after several unsuccessful attempts;

the ballot period was requested by bargaining representatives for the Agreement, adding that it was not the first time a ballot had been held during a Parliamentary sitting week;

no evidence had been provided of any employees who were unable to vote as a result of time zone differences;

no evidence had been adduced of any employee being able to cast two votes, adding that it would not have been possible for an employee to cast two votes due to the voting system’s restrictions;

there was no evidence before the Commission that the manner, timing or method of the vote had the effect of disenfranchising a significant number of employees who would be covered by the Agreement such that it could not be said there was genuine agreement to the Agreement;

the Commission ought to be satisfied that the vote and its results were bona fide and should be accepted as the basis of genuine agreement, adding that the evidence did not establish any grounds for considering that there had not been genuine agreement;

with regard to the BOOT, given clause M.3 of the Australian Government Industry Award 2016 5 (the Award) which provides that “Any provisions of the award specific to casual employees do not apply to Electorate Officers”, the amount of casual loading was not relevant for the purposes of the BOOT;

as to leave to attend proceedings and leave of absence to attend courses, if a value were to be attributed to these forms of leave that value should be low;

the higher rates of pay provided under the Agreement compensated employees for the absence of these types of leave in the Agreement;

46 employees who would be covered by the Agreement worked in remote localities as set out in the Award;

the higher salaries provided by the Agreement compensated those employees for the value of the additional annual leave provided under the Award for employees working in remote localities;

the application meets the requirements in ss.186, 187 and 188 of the Act, as are relevant to the application; and

the Commission should therefore approve the Agreement.

[8] At the hearing the Applicant largely reiterated its written submissions and rebutted key aspects of the CPSU’s and ASU’s submissions and evidence. The Applicant also relied on several authorities, including McDonald’s Australia Pty Ltd 6 and Balfours Bakery Pty Ltd7(Balfours).

[9] Among other things, Mr Nairn in his witness statement 8 provided an overview of the various emails sent to eligible employees by DoF and GoVote regarding the vote. Beyond that, Mr Nairn deposed that:

employees were recruited and engaged directly by the relevant Member of Parliament, with the Applicant informed of this upon receiving a copy of the Employment Agreement from the Senator’s/Member’s office or being directly informed of that person’s engagement;

the Applicant updates an employee’s contact details when these are provided by the employee, though it may seek updated details in circumstances where an email to the employee’s work email address is undeliverable;

the ballot period was selected at the request of bargaining representatives on 3 November 2016;

this was not the first time that an agreement ballot had been held during a Parliamentary sitting week;

in order to vote employees were required to log into an online ballot website by entering a unique identifier that had been provided to each employee by email from GoVote and the employee’s CHRIS ID or staff number;

the CHRIS ID or staff number was used on payslips and was also clearly visible on the main screen when an employee logs into Online HR;

he instructed Mr Slater on 8 November 2016 to refer to the CHRIS ID in emails and other communications to staff as “CHRIS ID (staff number)” as the number was shown as an employee’s staff number on their payslip;

online voting was also used during the 2012 Agreement ballot;

the Special Minister of State issued a Ministerial Circular to all employees on 11 November 2016 which set out the date of the ballot, stated that the ballot would be conducted by GoVote and that GoVote would send an email to employees in the following week with a link to the ballot for online voting and providing an alternative of voting by phone;

the Ministerial Circular also contained a link to the internet page on the M&PS website containing copies of the proposed Agreement, a document setting out an explanation of its proposed terms and further information on the ballot process;

he was satisfied that the Applicant had no record of any employee enquiries made during the ballot period that were not resolved before the ballot closed except where the employee in question did not reply to contact from the Staff Help Desk, adding that he was not aware of any complaints prior to these proceedings by employees who did not receive a response from the Staff Help Desk during the ballot period;

DoF records show that a Staff Help Desk staff member sought to contact Mr Bala on 24 November 2016 when she was informed that Mr Bala would return her call and again on the morning of 25 November 2016 when she was unable to speak to Mr Bala;

Ms Byrnes emailed the Staff Help Desk at 6:27am on 21 November 2016 requesting that her CHRIS ID be provided to her or that her Online HR account be reset, with GoVote’s records indicating that Ms Byrnes submitted her vote at 6:32am on 21 November 2016;

DoF records showed that Ms Lawrie was engaged during the ballot period on 22 November 2016, with her Employment Agreement emailed to DoF at 4:41pm that day;

information regarding Ms Lawrie was sent to GoVote in the voter roll update on the morning of 24 November 2016, with GoVote sending emails to her work email address on 24 and 25 November 2016;

had Ms Lawrie advised that she would not have access to her work email address or contacted the Staff Help Desk to request that the voting instructions be sent to another email address the information would have been sent to an email address to which she had access, adding that there was no record of Ms Lawrie contacting the Staff Help Desk or requesting that she be sent voting information;

with regard to Mr Mandl, he was engaged during the ballot period but his Employment Agreements were only mailed to DoF on 29 November 2016 and 30 November 2016 (i.e. after the vote closed), with those Employment Agreements covering his employment on 5 October 2016 and 26 October to 30 November 2016;

Mr Mandl’s Employment Agreements were signed and dated by him on 30 November 2016;

as a result, DoF was unaware that Mr Mandl had been employed during the voting period, adding that relevant information about the ballot was available to Mr Mandl on the M&PS website which he could have accessed from any computer;

Ms Bergen contacted the Staff Help Desk some days after the vote had closed to confirm whether her vote had been counted as she had not received a receipt, adding that there was no record of Ms Bergen contacting the Staff Help Desk or emailing GoVote during the ballot period;

there was no record of Ms Stanfield contacting the Staff Help Desk for assistance during the ballot period; and

in respect of additional annual leave for Electorate Officers working in remote localities, the higher rates of pay under the Agreement offset the monetary value of the additional leave provided under the Award with the annual value of the additional leave estimated to range from $34.89 up to $917.25 per annum 9.

[10] At the hearing, Mr Nairn attested, inter alia, that prior to the ballot DoF did not take any specific steps to request that Senator’s/Member’s offices check their staff details or ask employees to update their contact details, he was unable to answer how many call back requests were made to the Staff Help Desk during the ballot period and that the term CHRIS ID was not commonly understood by employees which is why it was referred to as “CHRIS ID (staff number)” in the material sent to employees.

[11] Key aspects of Mr Slater’s witness statement 10 were that:

eligible employees were able to vote over the internet or via an automated telephone system;

in order to vote, employees required a PIN which was provided to employees via email from GoVote and their CHRIS ID (or staff number);

both numbers were required to complete the authentication process prior to a vote being submitted;

the Applicant provided an initial voter roll on 14 November 2016, with a number of updates provided between 14 and 25 November 2016;

he was not aware of any employees who received more than one PIN;

the ballot process involved employees on the voter roll generally receiving at least two emails from GoVote, with some employees receiving more reminder emails depending on when they voted;

GoVote sent an initial email to all employees on the voter roll on 16 November 2016 informing them of the upcoming vote and providing instructions on how to vote;

a further email was sent to all employees on the voter roll at approximately 12:05am on 21 November 2016 informing them that the ballot had commenced and again providing instructions on how to vote, with reminder emails sent to all employees on the voter roll on 23 and 25 November 2016;

ad hoc emails were also sent to employees who were added to the voter roll during the ballot period, with these emails sent each day from 21 to 25 November 2015;

GoVote sent emails on 24 and 25 November 2016 to Ms Lawrie’s work email address;

when voting by internet, voters were guided through a series of screens to allow them to register their vote;

the voting screen contained instructions on how to vote which stated “Your vote will be acknowledged with a receipt number”;

an employee would not receive a receipt number if he/she did not click on the button marked “Click here to register your vote”, in which case their vote would not be counted;

he was not aware of any technical reason why an employee who had clicked the button marked “Click here to register your vote” would not receive a receipt number, adding that he had made reasonable enquiries and was not aware of GoVote receiving any requests for assistance in relation to this issue or receiving any reports during the ballot of this issue occurring; and

as set out in the Ballot Result Report 11, GoVote Support Staff received a total of 40 support requests up to and including the five day ballot period.

[12] In his oral evidence, Mr Slater attested among other things that GoVote did not track the number of employees who clicked yes or no but did not then register their vote and that there was no “read receipt” functionality in respect of the emails it sent to eligible employees.

The CPSU’s case

[13] The CPSU opposed approval of the Agreement on the basis that:

the Commission could not be satisfied that the Agreement met the requirements set out in ss.186 and 187 of the Act as the relevant pre-approval steps relating to the vote on the Agreement had not been adequately taken and therefore the result did not demonstrate that there had been genuine agreement;

the Commission could not be satisfied that the Agreement passed the BOOT;

some eligible employees were not provided with the requisite information during the ballot period;

the evidence demonstrated that employees eligible to vote on the Agreement attempted to vote on the Agreement but were unable to record a vote as a result of the Applicant’s failure to provide a reliable voting system and a failure to accept incoming votes from eligible employees;

the evidence further demonstrated that a significant number of eligible employees were only able to record a vote after several unsuccessful attempts;

the evidence disclosed a pattern of voting irregularities, or alternatively a sufficient level of voting irregularity, to give rise to a finding that the ballot was invalid;

with regard to the BOOT, the Australian Government Industry Award 2016 12 (the Award) provided for leave to attend proceedings, leave to attend courses and additional annual leave for employees working in remote localities, while the Agreement did not provide for these benefits; and

the absence of those provisions from the Agreement was not offset by other terms of the Agreement.

[14] At the hearing, the CPSU contended, inter alia, that the Agreement had not been genuinely agreed to by employees for several reasons including that the Applicant had failed to ask all employees covered by the Agreement to approve it as no care was taken to ensure that casual employees could vote, because some employees who were asked to approve the Agreement were unable to vote, because the Applicant had failed to put in place basic systems to assist employees during the vote and because voting irregularities were widespread meaning that it was reasonably likely that the ballot outcome had been affected. The CPSU further contended that the Agreement may not pass the BOOT for certain classes of employees who accessed the less beneficial provisions of the Agreement.

[15] Mr Bergen deposed in her witness statement 13 that she made a number of unsuccessful attempts to vote over a number of days during the ballot period before finally being able to access the voting page where she voted no. Ms Bergen further deposed that after the voting closed she followed up with Online HR to confirm that her vote had been registered, adding that on 5 December 2016 she received advice that her vote had not been registered. In her oral evidence, Ms Bergen attested inter alia that she only used Online HR when she wished to check her accrued leave balance, she did not attempt to vote by telephone and she was concerned when she did not receive a voting receipt on 25 November 2016 but did not follow the issue up that day because she had other, more urgent, maters to attend to.

[16] Mr Bala deposed in his witness statement 14 that despite making a number of requests to Online HR to receive his username and password on 22 and 23 November 2016 he did not receive his CHRIS ID and therefore was unable to vote on the Agreement. At the hearing, key aspects of Mr Bala’s oral evidence were that:

he contacted the Staff Help Desk on 22 and 23 November 2016 but did not request a call back, though he later attested that he thought he may have left a message with the Staff Help Desk on 23 November 2016;

he did receive the email with instructions on how to vote on the Agreement;

he did not receive the message left for him on 24 November 2016 by a staff member of the Staff Help Desk;

he understood that a reference to “CHRIS ID (staff number)” was a reference to the staff number which appeared on his pay slips;

he was not at work on 24 November 2016;

he did not believe that he sent any emails to either the Staff Help Desk or GoVote on 24 and 25 November 2016, though he could not recall exactly as to the latter date; and

while he was aware that eligible employees could also vote by telephone, he did not endeavour to do so.

[17] Mr Mandl deposed in his witness statement 15 that he was employed on a casual basis as an Electorate Officer over the period 21 to 25 November 2016 but that he did not receive information on how to vote or ballot papers or other material that would have enabled him to vote on the Agreement. Mr Mandl further deposed that he believed he was entitled to vote and had he been able to do so he would have voted against the Agreement. In his oral evidence, Mr Mandl attested that he did not receive any emails regarding the ballot process or any ballot papers, acknowledged that he signed his Employment Agreement covering the period 26 October to 27 November 2016 on 30 November 2016, and that he made no enquiries as to whether he was entitled to vote on the Agreement or about the ballot process.

The ASU’s case

[18] The ASU submitted that the Commission could not be satisfied that the Agreement:

had been approved by a valid vote of the majority of employees covered by the Agreement as the voting process was marred by technical difficulties relating to the electronic voting process and issues relating to time zone differences due to the various states and territories in which employees covered by the Agreement worked;

had been generally agreed to by the employees covered by the Agreement as per s.188 of the Act as there were significant and ongoing difficulties encountered by employees who sought to cast a valid vote, asserting that those technical issues were so pervasive as to materially affect the outcome of the vote; and

passed the BOOT given that the Agreement provided a lower casual loading than that provided for in the Award.

[19] In its submissions the ASU summarised what it described as technical issues affecting the voting process. Those technical issues included:

the ballot commencing on the first day of a Parliamentary sitting week, adding that this was the first time that an agreement covering MOP(S) Act employees had been put out to a vote during a Parliamentary sitting period;

a significant number of additional casual employees were engaged during the Parliamentary sitting week which coincided with the vote on the Agreement; and

the vote on the Agreement being conducted electronically, which potentially disadvantaged those employees who did not have sufficient access to computer facilities, or in the alternative, adequate training and/or skills in the voting process.

[20] The ASU further contended that the combination of holding the vote during an extremely busy Parliamentary sitting week, the introduction for the first time of a CHRIS ID and the employment of additional casual staff changed the outcome of the vote. Beyond this, the ASU submitted that employees who participated in the vote reported a number of problems to the ASU which resulted in those employees being unable to vote, including:

employees not receiving the email containing their GoVote password which was required to allow them to vote;

employees receiving two emails containing two different GoVote passwords, thereby allowing them to cast two votes;

employees being unfamiliar with the Applicant’s human resources system (Online HR); and

employees believing that they had cast a valid vote against the Agreement but not receiving a voting receipt.

[21] Ms Byrnes deposed in her witness statement 16 that on 16 November 2016 she received an email from GoVote informing her that she was eligible to vote in the ballot for the Agreement and that she would need to use a CHRIS ID along with a PIN to cast her vote, adding that this was the first time she had heard of a CHRIS ID being used. Ms Byrnes further deposed that she was confused as to what the CHRIS ID was and that she had to make several telephone calls to ascertain what it was and where she could find it, adding that there was no mention of the term on Online HR. Ms Byrnes also deposed that she ultimately found an old payslip with a seven digit e-MOPS number which she used. In her oral evidence, Ms Byrnes attested inter alia that she sent an email to the Staff Help Desk at 6:27am on 21 November 2017 and that she successfully voted at 6:32am that day (i.e. five minutes later).

[22] Ms Lawrie deposed in her witness statement 17 that she was a casual employee and that she worked on 22 November 2016. Ms Lawrie further deposed that she did not attend the office all the time and did not have the ability to access the voting site due to her clearance level or her Parliamentary email account, adding that she could not vote and was disappointed that the Applicant had not done more to inform her that voting had commenced or to make arrangements for her to vote. Key aspects of Ms Lawrie’s oral evidence were that she was not aware that enterprise bargaining was occurring, that she did not work on 24 November 2016 and that she had a university examination on the morning of that day.

[23] Ms Stanfield deposed in her witness statement 18 that she was not aware of what a CHRIS ID was when she received the voting information and that although she tried to contact the Staff Help Desk several times she was unable to get through. Ms Stanfield further deposed that given the vote occurred during a sitting week she was extremely busy and everything she tried to be able to vote failed and that as a result she missed out on casting her vote on the Agreement. Ms Stanfield expressed the view in her witness statement that the Applicant had “made the voting process very difficult.” In her oral evidence, Ms Stanfield attested that she did not use Online HR, confirmed that she received the emails sent by the Department regarding the vote, guessed that she received the emails from GoVote, she did not request a call back when she called the Staff Help Desk because she believed that the message left would simply refer to the general office number and would not identify her as the caller, she did not look at the M&PS website as suggested by GoVote’s email to voters on 21 November 201619 and that she did not understand her CHRIS ID number to be her staff number.

The statutory framework

[24] The relevant provisions of the Act 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).

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 subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.

Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.
Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).
Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).

Requirement that the group of employees covered by the agreement is fairly chosen
(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Requirement that there be no unlawful terms
(4) The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

Requirement that there be no designated outworker terms
(4A) The FWC must be satisfied that the agreement does not include any designated outworker terms.

Requirement for a nominal expiry date etc.
(5) The FWC must be satisfied that:

(a) the agreement specifies a date as its nominal expiry date; and
(b) the date will not be more than 4 years after the day on which the FWC approves the agreement.

Requirement for a term about settling disputes
(6) The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.

Note 1: The FWC or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).
Note 2: However, this does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).

187 When the FWC must approve an enterprise agreement—additional requirements

Additional requirements
(1) This section sets out additional requirements that must be met before the FWC approves an enterprise agreement under section 186.

Requirement that approval not be inconsistent with good faith bargaining etc.
(2) The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.

Requirement relating to notice of variation of agreement
(3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), the FWC must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).

Requirements relating to particular kinds of employees
(4) The FWC must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.
Note: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.

Requirements relating to greenfields agreements
(5) …

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.

193 Passing the better off overall test

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

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

When a greenfields agreement passes the better off overall test
… (1)

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

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

(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and
(iii) covers his or her employer.

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

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

(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would perform under the agreement; and
(iii) covers the employer.

Test time
(6) Thetest timeis the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185.

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

Consideration of the issues

[25] As previously outlined, the CPSU and ASU contended that the Agreement should not be approved, inter alia, because:

the relevant pre-approval steps relating to the vote on the Agreement had not been adequately taken and therefore the result did not demonstrate that there was genuine agreement, submitting that some eligible employees were not provided with the requisite information during the ballot period and that the Applicant had failed to adequately explain the changes in the Agreement and the voting processes;

the difficulties with the voting system encountered by some eligible staff precluded them from successfully casting their vote on the Agreement; and

the Commission could not be satisfied that the Agreement passed the BOOT.

[26] I will deal with each of those issues separately.

Compliance with the pre-approval steps

[27] Section 186 provides that the Commission must approve an agreement if an application is made under s.185 of the Act and the requirements of ss.186 and 187 of the Act are met. Among other things, s.186 of the Act requires that the Commission be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement [s.186(2)(a)], with s.188 setting out when employees have genuinely agreed to an enterprise agreement. As to the pre-approval requirements, s.188(a)(i) of the Act requires compliance with ss.180(2), (3) and (5) of the Act which in short provide that the employer must take all reasonable steps to ensure that relevant employees:

are given a copy of the agreement and any material incorporated into the agreement during the access period and have access to a copy of those materials throughout the access period;

by the start of the access period are notified of the time and place which the vote on the agreement will occur and the voting method to be used; and

have the terms of the agreement and their effect explained to them and that the explanation is provided in an appropriate manner.

[28] An analysis of the material before the Commission regarding the pre-approval steps taken by the Applicant indicates that:

● on 11 November 2016 the Special Minister of State issued a Ministerial Circular to employees who would be covered by the Agreement which included the following:

“All Senators and Members
All MOP(S) Employees

BALLOT FOR NEW MOP(S) ACT ENTERPRISE AGREEMENT

Following the conclusion of negotiations for the proposed Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 a ballot will commence on Monday 21 November 2016, from 12.01am. The ballot will close at 2.00pm on Friday 25 November 2016.
…

A copy of the proposed enterprise agreement and an explanation of its proposed terms and conditions are available on the Ministerial and Parliamentary Services website.

The ballot will be conducted by GoVote, an independent ballot provider. Next week, employees will receive an email from GoVote that provides a link to the ballot for online voting and, as an alternative, instructions for voting by phone. Further information about the ballot is on the M&PS website” 20 (Formatting as per original);

the M&PS website is available to all MOP(S) Act employees at (the Commission was able to access the website in the course of drafting this decision);

a screenshot from the M&PS website confirms that a copy of the Agreement was available in both Word and PDF document format on the website, together with an explanation of the Agreement and information about the ballot process 21; and

the latest the access period for the Agreement as per s.180(4) of the Act could have commenced was 13 November 2016, though in this case the access period commenced on 11 November 2011 when the abovementioned Ministerial Circular was sent to employees.

[29] As noted above, the CPSU and ASU contended that some eligible employees were not provided with the requisite information during the ballot period. In that regard, the CPSU and ASU relied largely on Ms Lawrie’s and Mr Mandl’s evidence. However, the evidence before the Commission in respect of those employees indicates that:

DoF received a copy of Ms Lawrie’s Employment Agreement at 4:41pm on 22 November 2016 22;

GoVote received Ms Lawrie’s details as part of the voter roll update on 24 November 2016 and sent an email to her work email address with voting instructions late that morning and again early on the morning of 25 November 2016 23;

Ms Lawrie was not at work on 24 November 2016; and

DoF received Mr Mandl’s Employment Agreement for the period 26 October to 23 November 2016 at 2:41pm on 29 November 2016, which was after the ballot period had closed, with the document signed and dated by Mr Mandl as 30 November 2016 24.

[30] In circumstances where it was not contended that Ms Lawrie had provided alternative contact details, I am not sure what more the Applicant could have reasonably done to comply with the pre-approval requirements. As to Mr Mandl, I note that the abovementioned Ministerial Circular regarding the ballot was addressed to all Senators and Members as well as all MOP(S) Act employees, meaning that Senators and Members would have been aware of the vote on the Agreement, and that DoF was not advised of Mr Mandl’s employment until after the ballot had closed. In my view there is little that the Applicant could have reasonably done in respect of Mr Mandl’s situation. Further, based on the evidence before the Commission, his experience appears to be an isolated example caused by the delay in the Applicant being advised of his employment.

[31] As to the assertion that the Applicant failed to adequately explain the changes, I observe that there is no material before the Commission to support that contention.

[32] Having regard to the above analysis, I am satisfied that the Applicant has complied with the pre-approval steps set out in s.188(a)(i).

[33] Finally, with regard to s.188(a)(ii) of the Act, I note that the Applicant’s Form F17 states that the last notice of employee representational rights (NERR) was given to an employee who will be covered by the Agreement on 15 December 2015 25. As previously noted, the vote on the Agreement commenced on 21 November 2016 which is more than 21 days after the last NERR was given to an employee. Accordingly, I am satisfied that the Applicant complied with s.181(2) of the Act.

Was the Agreement genuinely agreed to by the employees?

[34] The CPSU and ASU contended that difficulties with the voting system encountered by some employees precluded them from successfully casting their vote on the Agreement.

[35] An analysis of the evidence regarding that issue indicates, among other things, that:

some witnesses either did not use Online HR (Ms Stanfield) or only used it occasionally (Ms Bergen)

some witnesses were confused as to what their CHRIS ID was (Ms Byrnes and Ms Stanfield);

while Mr Bala deposed in his witness statement that he had not received his CHRIS ID, at the hearing he attested that he understood the reference to “CHRIS ID (staff number)” was a reference to the staff number which appeared on his pay slip;

those witnesses who called the Staff Help Desk gave evidence of long wait times (Mr Bala and Ms Stanfield), with Mr Bala requesting a call back on 23 November 2016 and Ms Stanfield hanging up and not requesting a call back;

the Staff Help Desk unsuccessfully sought to contact Mr Bala on 24 and 25 November 2016, leaving a message for him to call on 24 November 2016;

a number of witnesses did not contact the Staff Help Desk at all (Ms Bergen, Mr Mandl and Ms Lawrie);

only Ms Byrnes used email to contact the Staff Help Desk;

Ms Bergen followed up with Online HR after the ballot had closed/been declared to inquire as to whether or not her vote had registered despite not receiving a voting receipt on 25 November 2016 when she attempted to vote;

none of the other witnesses appear to have contacted GoVote;

none of the witnesses sought to vote by telephone;

Ms Stanfield did not look at the M&PS website; and

it is not clear if other witnesses looked at the M&PS website, though it appears they did not.

[36] More broadly, I note that on 16 November 2016 GoVote sent the following email to all employees on the voter roll.

“Dear Test Voter,

You have received this email because you are eligible to vote in the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 ballot. Instructions on how to participate follow.

This ballot will determine whether or not the proposed Enterprise Agreement is accepted. A copy of the proposed Enterprise Agreement and explanations are available on the Ministerial and Parliamentary services website.

WHO IS CONDUCTING THE BALLOT PROCESS
GoVote is independently conducting this ballot. We have been appointed by the Commonwealth Department of Finance to facilitate an arms length process to protect your privacy and ensure a fair and equitable ballot result. All votes submitted through our system are anonymous and the method by which you cast your vote is secure.

BALLOT PERIOD
The ballot will be open for 5 days starting at 12:01 am AEDT on Monday 21st November 2016 and ending at 02:00 pm AEDT on Friday 25th November 2016. You are able to cast your vote at any time during this period.

Your Personal Identification Number is: 638tryit

VOTING INSTRUCTIONS
To lodge your vote you will require:

Your Personal Identification Number (PIN)
Your CHRIS ID (Staff Number)

TO VOTE BY INTERNET
To lodge your vote by Internet, please follow these steps:

Go to

Input your eleven-digit Personal Identification Number (PIN) where indicated,

Input your seven-digit CHRIS ID (Staff Number) where indicated,

Click the ‘Enter’ button,

Follow the on screen prompts to make your voting preference and register your vote.

Once you have successfully submitted your vote you will be presented with your voting receipt. Print the receipt for your records and close the browser window.

TO VOTE BY TELEPHONE
To lodge your vote by Telephone, please follow these steps:

To prepare to lodge your vote by telephone, ensure you have:

Your eleven-digit Personal Identification Number (PIN),

Your seven-digit CHRIS ID (Staff Number),

A piece of paper and a pen to record your receipt number.

Dial the following telephone number: 1300 461 900 and follow the audio prompts.

HELP & SUPPORT INFORMATION
For support please email [email protected] or call 1300 660 355 to speak to an operator. For other support information please visit the voting webpage at (Formatting as per original)

[37] GoVote sent further emails in similar terms to all employees on the voter roll on 21, 23 and 25 November 2016, with ad hoc emails also sent to each day from 21 to 25 November 2016 to employees who were added to the voter roll.

[38] Beyond this, on 18 November 2016 DoF sent an email to all MOP(S) Act employees in the following terms.

“The ballot to vote on the proposed Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 opens on Monday 21 November 2016 at 12.01am.

By now all employees should have received an email from GoVote instructing them how to vote.

If you have not received an email, please contact the Staff Help Desk on (02) 6215 3333 or [email protected].

If you have lost your PIN to vote, please contact GoVote at [email protected] including your name, CHRIS ID (also known as a staff number) and date of birth to allow GoVote to confirm your details on the voter roll. GoVote will resend your PIN and voter instruction email.

You can find your seven digit staff number through Online HR. Information about logging onto Online HR and locating your staff number is on the M&PS website.

Employees have until 2:00pm AEDT to see on Friday, 25 November 2016 to vote.

Information on the proposed enterprise agreement is available from the M&PS website.” 27

[39] Again, emails in similar terms were sent by DoF to all MOP(S) Act employees on 21, 23 and 25 November 2016 28.

[40] Further, the M&PS website included the following guidance:

“… You will also need to enter your staff number seven digit CHRIS ID (also known as a staff number) found on your payslip or Online HR to authenticate your vote. View the instructions on obtaining you [sic] staff number.” 29

[41] What can be drawn from the material before the Commission is that employees were provided with information by both DoF and GoVote about how to vote and how to find their CHRIS ID, with that information also making it clear that their CHRIS ID was the employee’s staff number. That material further indicates that:

each of the witnesses except Mr Mandl were provided the opportunity to vote on the Agreement;

three of the five other CPSU and ASU witnesses did not contact with either the Staff Help Desk or GoVote or access Online HR as suggested in the material provided to employees by DoF and GoVote;

one other witness endeavoured to contact the Staff Help Desk without success; and

the other witness either did not return the Staff Help Desk’s call or was unavailable to take its call.

[42] As previously stated, in my view, there is little that the Applicant could have reasonably been done in respect of Mr Mandl’s situation. Beyond that, based on the material before the Commission, none of the other witnesses called by the CPSU and ASU were disenfranchised by the voting system, with the majority of witnesses not taking any of the steps available to them (i.e. contacting the Staff Help Desk or accessing Online HR) to follow up on their concerns. Further, based on the material before the Commission, I am not satisfied that the CPSU’s and ASU’s contention that voting irregularities were widespread such that it was reasonably likely that the ballot outcome had been affected has been made out.

[43] As observed by Commissioner Hampton in Balfours:

“[20] It is evident however that Fair Work Australia must approve an enterprise agreement if, and must not approve if it is not, satisfied that, amongst other matters, it has been genuinely agreed to by the employees covered by the agreement. This includes a consideration of the processes adopted by the employer when seeking the employees’ approval and the results of the ballot (or other method of endorsement). In applying the requirements of the Act in this regard I have been guided by the approach adopted by the Full Bench in McDonalds Australia Pty Ltd.

[21] The consideration as to whether there is genuine agreement also requires Fair Work Australia to contemplate whether there are other reasonable grounds for believing that the instrument was not genuinely agreed (s 188(c)). Although ultimately it has not been decisive in this case, I have adopted the view that this provides scope to consider the veracity of the ballot result, where warranted, for the following reasons.

[22] If all ballot results had to be accepted on face value, provided only that the procedural requirements leading to that point had been met, this could lead to perverse outcomes. The requirements of s 180 and s 181 require that reasonable steps be taken to advise the employees of certain matters and to provide access to the proposed agreement and other material. There is no express obligation that the ballot or other method of employee approval be conducted in a manner that provides the employees with a genuine opportunity to actually participate and express a view. An extreme example might include where the notice is issued fully in accordance with s 180(3) but advises of a ballot process and timing where only a limited number of the relevant employees could in reality participate. In that light, unless s 188(c) of the Act is applied as I speculate above, the evident purpose of the employee approval obligations of the legislation may be undermined.

[23] This approach would not however mean that there is an absolute obligation to demonstrate that each employee did actually have the same opportunity to vote. Rather, where the integrity and results of the ballot are seriously in doubt, Fair Work Australia may, pursuant to s 188 of the Act, examine those circumstances and consider whether there are other reasonable grounds for believing that the agreement has not been genuinely agreed by the employees.” 30 (Citations not included, emphasis as per original, underlining added)

[44] Having regard to the above analysis and the decision in Balfours, supports a finding that there are no other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees.

Does the Agreement pass the BOOT?

[45] In its Form F17 the Applicant identified a number of provisions in the Agreement that were more beneficial than the terms and conditions provided for in the Award 31. These more beneficial provisions included:

enhanced severance benefits;

enhanced superannuation contributions;

payment of a corporate responsibility allowance of $20.40 per fortnight; and

an electorate staff allowance of between $3,873 and $27,118 per annum in lieu of overtime.

[46] Less beneficial provisions cited by the Applicant in its Form F17 32 included ordinary hours of work being 38 hours per week for full time employees under the Agreement as opposed to 36.75 hours per week under the Award and the absence of provision for additional annual leave for employees working in remote localities.

[47] As previously noted, the CPSU and ASU submitted that the absence from the Agreement of provisions relating to leave to attend proceedings, leave to attend courses and additional annual leave for employees in remote localities was not offset by other terms of the Agreement. In addition, the ASU highlighted that that the Agreement provided a lower casual loading than that provided for in the Award.

[48] An examination of the Agreement indicates that it provides rates of pay for those classifications contained in the Award which is between $2,919 and $30,072 per annum higher than the Award. As to the casual loading issue, as referred to above, clause M.3 of the Award provides that “Any provisions of the award specific to casual employees do not apply to Electorate Officers”. Beyond that, Schedule M of the Award does not explicitly provide for a casual loading. As such, the casual loading provided for in the Agreement is a beneficial provision when compared to the Award. As to the absence of the additional annual leave for employees working in remote localities, Mr Nairn’s evidence was that the annualised value of this benefit for the 46 employees covered by the Agreement who worked in remote localities ranged from $34.89 up to $917.25 per annum. Finally, at the hearing, the CPSU stated that it did not contest the figures provided by Mr Nairn regarding the annualised value of the additional annual leave for employees working in a remote locality and, in response to a question from the Commission, acknowledged that leave to attend proceedings was not a commonly accessed provision.

[49] Having regard to the above analysis and the various more beneficial and less beneficial provisions of the Agreement, I am satisfied that employees are better off overall under the Agreement.

Conclusion

[50] For all the above reasons, I am satisfied that the Agreement was genuinely agreed to by employees covered by the Agreement and that the Agreement passes the BOOT.

[51] Against that background, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. The CPSU and ASU, each being bargaining representatives for the Agreement, have given notice under section 183 of the Act that they wish to be covered by the Agreement. I note in accordance with s.201(2) of the Act that the Agreement covers each of these organisations.

[52] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 April 2017. The nominal expiry date of the Agreement is 19 April 2020.

Appearances:

B. Rauf of Counsel for the Applicant.

R. Fawcett for the Community and Public Sector Union

C. Young for the Australian Services Union

Hearing details:

2017.

Canberra:

March 23 and 24

1 Exhibit 2

2 Ibid at Item 2.10

3 AE894665

4 The Applicant’s Outline of Submissions referred to a fourth employee whose evidence was ultimately not tendered

5 MA000153

6 (2010) 196 IR 155

7 [2011] FWA 7397

8 Exhibit 3

9 Ibid at Annexure Y

10 Exhibit 1

11 Ibid at Annexure E

12 MA000153

13 Exhibit 4

14 Exhibit 8

15 Exhibit 6

16 Exhibit 5

17 Exhibit 7

18 Exhibit 9

19 Exhibit 3 at Annexure P

20 Ibid at Annexure J

21 Ibid at Annexure L

22 Ibid at Annexure W

23 Exhibit 1 at paragraph 23

24 Exhibit 3 at Annexure X

25 Exhibit 2 at Item 2.8

26 Exhibit 1 at Annexure B

27 Exhibit 3 at Annexure N

28 Ibid at Annexure Q

29 Ibid at Annexure G

30 [2011] FWA 7397

31 Exhibit 2 at Item 3.4

32 Ibid at Item 3.5

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Commonwealth of Australia (represented by the Department of Finance on behalf of the Special Minister of State)