Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Acciona Construction Australia Pty Ltd

[2023] FWCFB 219

[2023] FWCFB 219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Acciona Construction Australia Pty Ltd

(C2023/4520)

VICE PRESIDENT ASBURY
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT O’NEILL BRISBANE, 22 NOVEMBER 2023

Appeal against decision [2023] FWCA 2041 of Deputy President Boyce at Sydney on 4 July 2023 in matter number AG2023/1642.

1. Acciona Construction Australia Pty Ltd (Acciona) applied to the Commission under s. 185 of the Fair Work Act 2009 (the Act) to approve a single enterprise agreement titled the Acciona Construction Australia Pty Ltd Western Australia Enterprise Bargaining Agreement 2023 (Agreement). The application was allocated to Deputy President Boyce. The Agreement covers Acciona’s employees employed in well-known building and construction classifications engaged in Western Australia undertaking civil construction works. Both the Construction Forestry Maritime Mining and Energy Union (CFMMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) sought leave to intervene in the application and access to the materials filed by Acciona in an unredacted form.

1. By Decision published on 4 July 2023, the Deputy President dismissed the applications by the CFMMEU and the CEPU for leave to intervene and their request for unredacted versions of documents filed[1] and he approved the Agreement with undertakings.[2] By its amended notice of appeal, the CEPU seeks to be allowed further time within which to lodge an appeal against the Decision, applies for permission to appeal, and if granted appeals the decision.

Whether further period to lodge appeal should be allowed

1. Rule 56(2) of the Fair Work Commission Rules 2013 requires a notice of appeal to be lodged within 21 calendar days after the date of the decision the subject of the appeal, or within such further time allowed by the Commission on application by the appellant. The principal considerations informing any decision whether to allow further time to lodge an appeal are whether there is a satisfactory reason for the delay in filing the appeal, the length of the delay, the nature of the grounds of appeal and the likelihood that one or more of those grounds would be upheld if time was extended, and any prejudice to the respondent if time were extended. The question to be answered by reference to these considerations is whether, in all the circumstances, the interests of justice favour an extension of the time within which to lodge the appeal.[3]

1. The original notice of appeal was lodged by the CEPU on 31 July 2023, 6 days after the time for regular lodgement had passed. The CEPU attributed the delay to a combination of its decision-making process in assessing the appropriateness of bringing an appeal, and a period of illness and personal leave on the part of the official with carriage of the matter. Although we do not consider the CEPU’s decision-making process (about which we have no information) satisfactorily explains the delay, we accept that the illness and absence of an official who has carriage of the matter might have contributed to the delay and explain it, but we have been provided with no information about the timing and duration of the illness and absence, and so cannot assess whether that reason proffered is a satisfactory reason for the delay. Consequently, we are unable to conclude that there is a satisfactory reason for the delay or any part of it. This consideration thus weighs against the CEPU.

1. However, the period of delay is relatively short and for reasons which will become apparent we consider that at least grounds 1(a) and (b), 3 and 4 of the amended notice of appeal, which variously deal with error in assessing whether the Agreement passed the better off overall test (BOOT) and was genuinely agreed to by employees, are likely to be upheld. Because these grounds raise for consideration the proper administration of the enterprise agreement approval process, permission to appeal in the public interest is likely to be granted if we extend time. Any prejudice to Acciona if time were extended is only of the kind experienced by any respondent to an appeal. That the Agreement might be set aside will be a product of the approval requirements not having been met in the first instance and not of the late lodgement. Quite properly, no relevant material prejudice is asserted by Acciona. We therefore consider the preponderance of relevant matters weigh in the CEPU’s favour, and we are persuaded in the circumstances that the interests of justice favour an extension of the time within which the CEPU should be permitted to lodge the appeal. The time is extended to 31 July 2023.

Decision under appeal

1. The Deputy President’s reasons in the Decision predominantly deal with the CEPU’s and CFMMEU’s applications to intervene and to access materials filed by Acciona in an unredacted form. And in rejecting both, the Deputy President reasoned:

·   neither the CEPU nor CFMMEU:

owas a bargaining representative for the Agreement;

oidentified any specific knowledge of Acciona’s workplace;

ohad any actual knowledge about the bargaining or making of the Agreement;

osuggested that it had:

§members employed by Acciona to whom the Agreement would apply, or otherwise; or

§any involvement in Acciona’s enterprise; and

·   both the CEPU and CFMMEU are strangers, not only in respect of the bargaining and the making of the Agreement, but to Acciona’s workplaces;

·   the Agreement does not alter or interfere with an employee’s right to choose to become a member of the CEPU or CFMMEU;

·   the approval of the Agreement will not affect the CEPU’s or CFMMEU’s rights:

oto participate in bargaining for future enterprise agreements with Acciona; or

oto represent employees under the Agreement (if any relevant current or future employees become members of the CEPU or CFMMEU); and

·   the issues raised by the CEPU and CFMMEU need to be addressed by the Commission as part of the approval process in any event, and do not warrant the need for a contender or third-party intervener in that on their face such issues arise from a desktop analysis of documents filed with the Commission, contain self-labelled “apprehensions” and references to trite law, and call for conclusions based upon speculation, suspicion and the drawing of unqualified adverse inferences.[4]

1. The Deputy President dealt with the Agreement approval requirements as follows:

“[15]       The Applicant has provided written submissions and undertakings dated 30 June 2023. These written submissions [and] undertakings arise from concerns raised by the Commission with the Applicant, along with additional concerns identified by the Unions as to the better off overall test (that the Commission as presently constituted equally accepts are concerns for the purposes of s.190(1)(b) of the Act).

[16]       The undertakings provided by the Applicant are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that these undertakings resolve the “concerns” raised, that they will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Building and Construction General On-site Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Conclusion

[17]       Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[18]       I am also satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.”

Grounds of appeal

1. The CEPU’s amended notice of appeal sets out 6 appeal grounds which may be grouped as follows.

1. Grounds 1(a) and 3 variously contend error in the Deputy President’s conclusion that he was satisfied the Agreement passed the BOOT as then required by ss. 186(2)(d) and 193 (BOOT grounds).[5]

1. Grounds 1(b) and (c), 4 and 5 contend error in the Deputy President’s conclusion that he was satisfied the Agreement was genuinely agreed to by employees covered by it as then required by ss. 186(2)(a) and 188 (genuine agreement grounds).[6]

1. Ground 2 contends error because of the absence or inadequacy of reasons for the Deputy President’s conclusions that he was satisfied the Agreement passed the BOOT and was genuinely agreed to by employees covered by the Agreement.

1. Ground 6 contends that the Deputy President erred by acting on a wrong principle that the CEPU could not be heard (or be given access to unredacted material) unless it demonstrated that it was a bargaining representative for the Agreement or had members employed by Acciona.

BOOT grounds

1. By these grounds the CEPU contends that:

·   the terms of the Agreement were in several respects detrimental, relative to the Building and Construction General On-site Award 2020 (Award), both in monetary and other terms;

·   the Deputy President failed to address whether each employee covered by the Agreement would be better off overall under the Agreement taking into account, inter alia, that the Agreement denied employees considerable financial benefits, particularly as they concern periods of work which would have been overtime under the Award and were ordinary time under the Agreement;

·   whether relevant employees are, as at test time, better off overall if the Agreement applied than if the Award applied depends, inter alia, on the nature of the work being performed and the work patterns realistically likely to be adopted, and Acciona did not provide any information at all (by way of evidence or simple assertion) directed to those matters.

1. Accordingly, the CEPU contends there was no basis on which the Deputy President could assess, one way or another, the impacts of the detrimental features of the Agreement on employees, and so he had no basis on which he could be satisfied that employees were better off overall under the Agreement.

1. The CEPU identified several provisions of the Agreement which operate detrimentally to employees compared to the Award.[7] We need not reproduce them here. The Agreement incorporates the terms and conditions of the Award but in the event of any inconsistency between the Award and an express provision of the Agreement, the terms of the Agreement will prevail to the extent of such inconsistency unless the express provision of the Agreement provides otherwise.[8] Commonly, enterprise agreements provide for a hierarchy of provisions rendering some provisions lower in the hierarchy to be of no effect if inconsistent with other identified provisions higher in the hierarchy. The inconsistency device is often deployed to distinguish express terms of an agreement with terms in materials incorporated by reference by assigning precedence to the express terms in the event of, or to the extent of, any inconsistency with an incorporated term. The modification of clause 3.4 of the Agreement by the undertaking accepted by the Deputy President is a case in point. Inconsistency between express and incorporated terms of an enterprise agreement may be identified in several ways. An express term may be directly inconsistent with an incorporated term, for example where there cannot be compliance with both, or where a right or benefit is conferred by one provision which the other would take away. Express and incorporated terms may be inconsistent because, for example, one term has the effect of altering, impairing or detracting from another provision or other provisions of the agreement in a way that would create a burden that amounts to inconsistency. Express and incorporated terms may be inconsistent if one operates in a way that is repugnant to another. Indirect inconsistency might arise when an express term so comprehensively deals with a subject matter that, on its proper construction, it leaves no room for the operation of incorporated terms touching the subject matter. In this sense, the express term is said to “cover the field” in relation to the subject matter.[9]

1. Clause 3.5 of the Agreement contains what may be described as a National Employment Standards (NES) precedence clause providing that the Agreement will be read and interpreted in conjunction with the NES, and where there is an inconsistency between the Agreement and the NES, the NES provision will apply to the extent of the inconsistency. We agree with Acciona that concerns about a number of the detrimental terms may be assuaged by the terms of the incorporated Award and by the NES precedence clause. But not all. Only one example, which concerns the operation and effect of clause 13.4(a) of the Agreement, is necessary.

1. Clause 13 of the Agreement deals with ordinary hours of work. By clause 13.1 the “nominal ordinary hours of work shall be an average of thirty-eight (38) hours per week over a defined work cycle (not exceeding four (4) weeks) and may be worked on any or all of the days of the week, and are to be worked between the hours of 6.00 am to 6.00 pm.”

1. Clause 13.2 allows in the alternative, and at the employer’s discretion, “ordinary hours of work to be an average of thirty-six (36) hours per week over a defined work cycle (not exceeding four (4) weeks), and may be worked on any or all of the days of the week, and are to be worked between the hours of 6:00am to 6:00pm.” By clause 13.3, ordinary hours of work may be arranged outside the times stipulated in clauses 13.1 or 13.2, by agreement between Acciona and employees.

1. Clause 13.4 provides that although the 38 hour or 36 hour ordinary working week may vary from employee to employee or section or sections of employees, to suit programming requirements, no more than 8 hours ordinary time per day shall be worked. However, clause 13.4(a) contains the following exception:

“Notwithstanding any other provision of this Agreement or the Award, where circumstances require, the Company may implement a compressed roster where ordinary hours are averaged over a 2, 3 or 4 week cycle, e.g. a 10/4 or 21/7 roster. Where this is the case, the Company will consult Employees as to the implementation of the compressed roster. It is agreed that RDOs may not apply whilst working a compressed roster.”

1. Clause 13.4(b) provides that “[w]here an Employee works ordinary hours on a Saturday and/or Sunday, the appropriate penalty rate as set out in clause 16, shall apply”.

1. Clause 16.1 of the Award provides that the ordinary working hours (other than for shiftworkers) will be 38 per week (averaged over a 20-day 4 week cycle to allow for the accrual and taking of rostered days off (RDO)), worked between 7.00 am and 6.00 pm Monday to Friday. Clause 16.2 requires that ordinary working hours will be 8 hours in duration each day, of which 0.4 of one hour of each day worked will accrue towards an RDO and 7.6 hours will be paid. An employee will therefore accrue 7.6 hours towards an RDO each 19 days of ordinary hours worked.

1. Clause 16.8 of the Award provides that where “an employer and the majority of employees employed at a particular enterprise agree that due to the nature of an employer’s operations it is not practicable for an employee to be provided with an RDO in each 4 week cycle, they may agree to an alternate method of arranging working hours, provided that the ordinary hours worked in any one week from Monday to Friday are within the spread of hours set out in clause 16.1 and that no more than 8 ordinary hours are worked in any one day”. And clause 16.11(a) provides that the “working day may start at 6.00 am or at any time between that hour and 8.00 am and the working time will then begin to run from the time fixed, and the meal break will be adjusted accordingly. The change to the start time requires agreement between the employer and the employees and their representative(s), if requested.”

1. Clause 29.4 of the Award provides, inter alia, that all time worked beyond an employee’s ordinary working hours (inclusive of time worked for accrual purposes as prescribed in clauses 16—Ordinary hours of work and 17—Shiftwork) Monday to Friday, must be paid for at the rate of 150% of the ordinary hourly rate for the first 2 hours and 200% thereafter.

1. A compressed roster arrangement permitted by clause 13.4(a), for example by allowing four 10 hour shifts of ordinary hours of work each week without an RDO, or three 12 hour shifts on a 36 hours per week basis, has the effect of exceeding the number of ordinary hours of work (8 hours) permitted in a day under the Award and reducing the payment for the additional hours in a day, because the hours are overtime hours under the Award, but only ordinary time under the Agreement. The compressed roster, which can be introduced without agreement (only consultation is required) would override the prohibition of a non-RDO working arrangement unless Acciona and a majority of employees employed at a particular enterprise agreed in writing to such an alteration.

1. Clause 13.4(a) of the Agreement is plainly inconsistent with clauses 16.1, 16.8, 16.11(a) and 29.4 of the Award operating as incorporated terms in the sense that the right or benefit conferred by the incorporated Award terms is taken away by the Agreement term. Alternatively, the restrictions on ordinary hours of work within a span with a daily maximum and the penalties attached to hours outside the span and beyond the maximum for which the incorporated Award terms provide, are taken away by the scheme in clause 13.4(a) of the Agreement. And so, clause 13.4(a) of the Agreement prevails. As if to underscore the inconsistency, an incorporated Award term touching on the subject matter of ordinary working hours cannot operate when the scheme in clause 13.4(a) of the Agreement is invoked because clause 13.4(a) operates “[n]otwithstanding any other provision of this Agreement or the Award”. The modelling below (which does not include allowances) of a 36 hour (three x 12 hour) working week under a compressed roster shows the differential, taking into account only the treatment under the Agreement compared to the Award of the 36 hours worked by employees in each classification for which the Agreement provides.

Model 2(A):				Model 2(b):
Employee working 3 x 12 hour weekdays				Employee working 3 x 12 hours weekdays
								Day: 12 ordinary hours				Day: 8 ordinary hours + 4 overtime hours
Agreement Ordinary Rate	$28.50	CW/ECW1		Award Ordinary Rate	$25.07	CW/ECW1
Hours	Loading	Weekly total	Hours	Loading	Weekly total
Monday	12	100%	$342.00	Monday	8	100%	$200.56
Tuesday	12	100%	$342.00	Tuesday	8	100%	$200.56
Wednesday	12	100%	$342.00	Wednesday	8	100%	$200.56
$0.00	Overtime	6	150%	$225.63
$0.00	Overtime	6	200%	$300.84
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
Allowances	Amount	Value	Allowances	Amount	Value
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Annual Leave	yes	$83.31	Annual Leave	yes	$73.28
Leave Loading	yes	$14.58	Leave Loading	yes	$12.82
Totals	36.00	Hrs	$1,123.89	Totals	36.00	Hrs	$1,214.26
Agreement Total Weekly Rate			$1,123.89
Award Total Weekly Rate			$1,214.26
Dollar / Actual Percentage Difference			-$90.37
			7.44%
Agreement Percentage Increase Required			8.04%

Model 2(a):				Model 2(b):
Employee working 3 x 12 hour weekdays				Employee working 3 x 12 hours weekdays
								Day: 12 ordinary hours				Day: 8 ordinary hours + 4 overtime hours
Agreement Ordinary Rate	$29.21	CW2/ECW2		Award Ordinary Rate	$25.54	CW2/ECW2
Hours	Loading	Weekly total	Hours	Loading	Weekly total
Monday	12	100%	$350.52	Monday	8	100%	$204.32
Tuesday	12	100%	$350.52	Tuesday	8	100%	$204.32
Wednesday	12	100%	$350.52	Wednesday	8	100%	$204.32
$0.00	Overtime	6	150%	$229.86
$0.00	Overtime	6	200%	$306.48
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
Allowances	Amount	Value	Allowances	Amount	Value
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Annual Leave	yes	$85.38	Annual Leave	yes	$74.66
Leave Loading	yes	$14.94	Leave Loading	yes	$13.06
Totals	36.00	Hrs	$1,151.89	Totals	36.00	Hrs	$1,237.02
Agreement Total Weekly Rate			$1,151.89
Award Total Weekly Rate			$1,237.02
Dollar / Actual Percentage Difference			-$85.13
			6.88%
Agreement Percentage Increase Required			7.39%

Model 2(a):				Model 2(b):
Employee working 3 x 12 hour weekdays				Employee working 3 x 12 hours weekdays
								Day: 12 ordinary hours				Day: 8 ordinary hours + 4 overtime hours
Agreement Ordinary Rate	$29.94	CW3/ECW3		Award Ordinary Rate	$26.73	CW3/ECW3
Hours	Loading	weekly total	Hours	Loading	weekly total
Monday	12	100%	$359.28	Monday	8	100%	$213.84
Tuesday	12	100%	$359.28	Tuesday	8	100%	$213.84
Wednesday	12	100%	$359.28	Wednesday	8	100%	$213.84
$0.00	Overtime	6	150%	$240.57
$0.00	Overtime	6	200%	$320.76
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
Allowances	Amount	Value	Allowances	Amount	Value
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Annual Leave	yes	$87.52	Annual Leave	yes	$78.13
Leave Loading	yes	$15.32	Leave Loading	yes	$13.67
Totals	36.00	Hrs	$1,180.67	Totals	36.00	Hrs	$1,294.66
Agreement Total Weekly Rate			$1,180.67
Award Total Weekly Rate			$1,294.66
Dollar / Actual Percentage Difference			-$113.98
			8.80%
Agreement Percentage Increase Required			9.65%

Model 2(a):				Model 2(b):
Employee working 3 x 12 hour weekdays				Employee working 3 x 12 hours weekdays
								Day: 12 ordinary hours				Day: 8 ordinary hours + 4 overtime hours
Agreement Ordinary Rate	$30.69	CW4/ECW4		Award Ordinary Rate	$27.51	CW4/ECW4
Hours	Loading	weekly total	Hours	Loading	weekly total
Monday	12	100%	$368.28	Monday	8	100%	$220.08
Tuesday	12	100%	$368.28	Tuesday	8	100%	$220.08
Wednesday	12	100%	$368.28	Wednesday	8	100%	$220.08
$0.00	Overtime	6	150%	$247.59
$0.00	Overtime	6	200%	$330.12
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
Allowances	Amount	Value	Allowances	Amount	Value
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Annual Leave	yes	$89.71	Annual Leave	yes	$80.41
Leave Loading	yes	$15.70	Leave Loading	yes	$14.07
Totals	36.00	Hrs	$1,210.25	Totals	36.00	Hrs	$1,332.44
Agreement Total Weekly Rate			$1,210.25
Award Total Weekly Rate			$1,332.44
Dollar / Actual Percentage Difference			-$122.19
			9.17%
Agreement Percentage Increase Required			10.10%

Day: 12 ordinary hours				Day: 8 ordinary hours + 4 overtime hours
Agreement Ordinary Rate	$31.55	CW5/ECW5		Award Ordinary Rate	$28.28	CW5/ECW5
Hours	Loading	weekly total	Hours	Loading	weekly total
Monday	12	100%	$378.60	Monday	8	100%	$226.24
Tuesday	12	100%	$378.60	Tuesday	8	100%	$226.24
Wednesday	12	100%	$378.60	Wednesday	8	100%	$226.24
$0.00	Overtime	6	150%	$254.52
$0.00	Overtime	6	200%	$339.36
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
Allowances	Amount	Value	Allowances	Amount	Value
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Annual Leave	yes	$92.22	Annual Leave	yes	$82.66
Leave Loading	yes	$16.14	Leave Loading	yes	$14.47
Totals	36.00	Hrs	$1,244.16	Totals	36.00	Hrs	$1,369.73
Agreement Total Weekly Rate			$1,244.16
Award Total Weekly Rate			$1,369.73
Dollar / Actual Percentage Difference			-$125.57
			9.17%
Agreement Percentage Increase Required			10.09%

Employee working 3 x 12 hour weekdays				Employee working 3 x 12 hours weekdays
								Day: 12 ordinary hours				Day: 8 ordinary hours + 4 overtime hours
Agreement Ordinary Rate	$32.34	CW6/ECW6		Award Ordinary Rate	$28.99	CW6/ECW6
Hours	Loading	weekly total	Hours	Loading	weekly total
Monday	12	100%	$388.08	Monday	8	100%	$231.92
Tuesday	12	100%	$388.08	Tuesday	8	100%	$231.92
Wednesday	12	100%	$388.08	Wednesday	8	100%	$231.92
$0.00	Overtime	6	150%	$260.91
$0.00	Overtime	6	200%	$347.88
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
Allowances	Amount	Value	Allowances	Amount	Value
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Annual Leave	yes	$94.53	Annual Leave	yes	$84.74
Leave Loading	yes	$16.54	Leave Loading	yes	$14.83
Totals	36.00	Hrs	$1,275.32	Totals	36.00	Hrs	$1,404.12
Agreement Total Weekly Rate			$1,275.32
Award Total Weekly Rate			$1,404.12
Dollar / Actual Percentage Difference			-$128.80
			9.17%
Agreement Percentage Increase Required			10.10%

Model 2(a):				Model 2(b):
Employee working 3 x 12 hour weekdays				Employee working 3 x 12 hours weekdays
								Day: 12 ordinary hours				Day: 8 ordinary hours + 4 overtime hours
Agreement Ordinary Rate	$33.25	CW7/ECW7		Award Ordinary Rate	$29.76	CW7/ECW7
Hours	Loading	Weekly total	Hours	Loading	Weekly total
Monday	12	100%	$399.00	Monday	8	100%	$238.08
Tuesday	12	100%	$399.00	Tuesday	8	100%	$238.08
Wednesday	12	100%	$399.00	Wednesday	8	100%	$238.08
$0.00	Overtime	6	150%	$267.84
$0.00	Overtime	6	200%	$357.12
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
Allowances	Amount	Value	Allowances	Amount	Value
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Annual Leave	yes	$97.19	Annual Leave	yes	$86.99
Leave Loading	yes	$17.01	Leave Loading	yes	$15.22
Totals	36.00	Hrs	$1,311.20	Totals	36.00	Hrs	$1,441.41
Agreement Total Weekly Rate			$1,311.20
Award Total Weekly Rate			$1,441.41
Dollar / Actual Percentage Difference			-$130.21
			9.03%
Agreement Percentage Increase Required			9.93%

1. The compressed roster under clause 13.4(a) of the Agreement would also allow for 10 hour shifts worked across 5 or 4 days. The modelling below (which does not include allowances) is of a 50 hour (five x 10 hour) working week under a compressed roster (Scenario 1) and a 40 hour (four x 10 hour working week) (Scenario 2) and shows the differential, taking into account only the treatment of those hours worked by employees in, for example, the CW/ECW4 classification under the Agreement compared to the Award. Scenario 3 shows the impact on a part-time employee.

Scenario 1:	CW/ECW4 Employee - working 5 x 10-hour weekdays
Agreement Ordinary Rate	$30.69	CW/ECW4		Award Ordinary Rate	$27.51	CW/ECW4
Hours	Loading	Weekly total	Hours	Loading	Weekly total
Weekday	10	100%	$306.90	Weekday	7.6	100%	$209.08
Weekday	10	100%	$306.90	Weekday	7.6	100%	$209.08
Weekday	10	100%	$306.90	Weekday	7.6	100%	$209.08
Weekday	10	100%	$306.90	Weekday	7.6	100%	$209.08
Weekday	10	100%	$306.90	Weekday	7.6	100%	$209.08
$0.00	Overtime	10	150%	$412.65
$0.00	Overtime	2	200%	$110.04
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
Allowances	Amount	Value	Allowances	Amount	Value
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Annual Leave	yes	$89.71	Annual Leave	yes	$80.41
Leave Loading	yes	$15.70	Leave Loading	yes	$14.07
Totals	50.00	Hrs	$1,639.91	Totals	50.00	Hrs	$1,662.56
Agreement Total Weekly Rate			$1,639.91
Award Total Weekly Rate			$1,662.56
Dollar / Actual Percentage Difference			-$22.65
			1.36%
Agreement Percentage Increase Required			1.38%
Scenario 2:	CW/ECW4 Employee - working 4 x 10-hour weekdays
Standard model
Agreement Ordinary Rate	$30.69	CW/ECW4		Award Ordinary Rate	$27.51	CW/ECW4
Hours	Loading	Weekly total	Hours	Loading	Weekly total
Weekday	10	100%	$306.90	Weekday	7.6	100%	$209.08
Weekday	10	100%	$306.90	Weekday	7.6	100%	$209.08
Weekday	10	100%	$306.90	Weekday	7.6	100%	$209.08
Weekday	10	100%	$306.90	Weekday	7.6	100%	$209.08
$0.00	Overtime	8	150%	$330.12
$0.00	Overtime	1.6	200%	$88.03
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
Allowances	Amount	Value	Allowances	Amount	Value
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Annual Leave	yes	$89.71	Annual Leave	yes	$80.41
Leave Loading	yes	$15.70	Leave Loading	yes	$14.07
Totals	40.00	Hrs	$1,333.01	Totals	40.00	Hrs	$1,348.94
Agreement Total Weekly Rate			$1,333.01
Award Total Weekly Rate			$1,348.94
Dollar / Actual Percentage Difference			-$15.93
			1.18%
Agreement Percentage Increase Required			1.20%
Scenario 3:	CW/ECW4 Employee - working 2 x 10-hour weekdays
Standard model
Agreement Ordinary Rate	$30.69	CW/ECW4		Award Ordinary Rate	$27.51	CW/ECW4
Hours	Loading	Weekly total	Hours	Loading	Weekly total
Weekday	10	100%	$306.90	Weekday	7.6	100%	$209.08
Weekday	10	100%	$306.90	Weekday	7.6	100%	$209.08
$0.00	Overtime	4	150%	$165.06
$0.00	Overtime	0.8	200%	$44.02
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
Allowances	Amount	Value	Allowances	Amount	Value
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Allowance	$0.00	Allowance	$0.00
Annual Leave	yes	$89.71	Annual Leave	yes	$80.41
Leave Loading	yes	$15.70	Leave Loading	yes	$14.07
Totals	20.00	Hrs	$719.21	Totals	20.00	Hrs	$721.71
Agreement Total Weekly Rate			$719.21
Award Total Weekly Rate			$721.71
Dollar / Actual Percentage Difference			-$2.51
			0.35%
Agreement Percentage Increase Required			0.35%

1. As is evident from the modelling above, as at test time, many employees and prospective employees working a compressed roster as configured in the modelling are unlikely to be better off overall under the Agreement compared to the Award.

1. During the hearing of the appeal, Counsel for Acciona submitted that although on one view of the construction of clause 13.4(a) of the Agreement, implementation of a compressed roster permitted patterns of ordinary hours of greater than 8 hours in a day, Counsel had instructions that the compressed rosters are only 8 hours ordinary time per day.[10] The difficulty of course is that instructions do not operate as a term of the Agreement, and there was no evidence below, nor any evidence before us, about the patterns of work under a compressed roster. In our view, clause 13.4(a) of the Agreement permits ordinary hours to be worked in a compressed roster of more than 8 hours in a day, with the consequence that employees and prospective employees working a compressed roster of the kinds described above cannot, as at test time, be said to be better off overall if the Agreement applied than if the Award applied.

1. There are other terms which are relevant to the assessment of whether the Agreement passes the BOOT. One warrants mention.

1. The Agreement does not provide for some of the more beneficial shiftwork provisions found in the Award, for example the limitation of shiftwork to continuous shift systems of work (clause 17.2(a)); mandatory shift rotation unless otherwise agreed with all employees concerned (clause 17.2(b)(i)); a maximum of 8 shifts in 9 consecutive days (clause 17.2(b(ii)); a maximum of 8 ordinary hours per day (clause 17.2(c)(ii)); paid crib breaks (clause 17.2(c)(ii)); a 50% penalty rate for shifts which do not continue for at least five days (clause 17.2(m)); and mandatory RDOs (clause 17.2(d)).

1. Acciona contends that with the incorporation of the Award by reason of clause 3.4 and the undertakings given pursuant to s. 190 of the Act, the entitlements referred to above are available to the employees by reason of this incorporation. We do not think this is correct. If it were intended that the incorporated Award provisions relating to shiftwork operated, there would be no need to deal with shiftwork in the Agreement expressly. The shiftwork provisions with which the Agreement deals already find voice in the incorporated Award shiftwork terms. We consider the better view is that clause 15 of the Agreement deals with shiftwork and entitlements thereto comprehensively in the sense that these are the only provisions which determine the entitlements of a worker working shiftwork, with the consequence that clause 15 covers the field and is therefore inconsistent with the Award incorporated terms pertaining to shiftwork. In the result the terms of the Agreement will prevail to the extent of such inconsistency.

1. Taking these matters into account we agree with the CEPU that it was not open on the material for the Deputy President to be satisfied that the Agreement passed the BOOT.

Genuine agreement grounds

1. By these grounds the CEPU contends that the quality of the explanation provided to employees by Acciona in purported compliance with s. 180(5) of the Act was such that it was not open to the Deputy President to be satisfied that there was compliance, and so it was not open to be satisfied that the approval requirement in s. 186(2)(a) was met. The CEPU also contends that as the Agreement covers all employees of Acciona in Western Australia in a wide range of occupations across the entire building sector yet the Agreement was with four employees based at one site in Bunbury, the narrowness of that group of employees by comparison with the breadth of the coverage of the Agreement gave rise to questions as to whether the relevant employees had sufficient basis for appreciating its nature and terms, and in relation to the authenticity and moral authority of the Agreement. In short, the CEPU says that the Deputy President could not be satisfied that there were no other reasonable grounds for believing that the employees had not genuinely agreed to the Agreement.

1. Section 180(5) of the Act requires that, in relation to the Agreement, Acciona take all reasonable steps to ensure that the terms and effect of the Agreement are explained to the relevant employees, and that the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees. The evident purpose of the obligation is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the Agreement.[11]

1. In arriving at the requisite satisfaction as to Acciona’s compliance with s. 180(5) of the Act, the Deputy President was required to evaluate whether in all the circumstances, Acciona has taken all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees in a manner appropriate, taking into account the particular circumstances and needs of the relevant employees. As s. 188(1) makes clear, Acciona’s compliance with s. 180(5) need only be established to the satisfaction of the decision-maker. Actual compliance with s. 180(5) is not a jurisdictional fact. Its objective existence is not a precondition to the Commission’s power to approve the Agreement.[12] But, the fact that the Deputy President reached a state of satisfaction whether there was compliance with s. 180(5) on material sufficient to enable him to reach the requisite satisfaction, is a condition precedent to the exercise of the power to approve the Agreement. The approval of an agreement absent any evidence, or upon insufficient evidence, about an employer’s compliance with s. 180(5) results in the Agreement having been approved without authority and so there will be jurisdictional error.[13] And arriving at a state of satisfaction as to whether an employer has complied with the obligations in s. 180(5) depends on the circumstances of the case. The focus of the enquiry involves considering and evaluating the steps taken to comply, and then assessing whether the steps taken were reasonable in the circumstances and whether these were all the reasonable steps that must have been taken in the circumstances.[14]

1. The assessment whether an employer took all reasonable steps to ensure that the terms of an agreement and the effect of those terms were explained to relevant employees necessarily also requires an examination of the content of the explanation given by the employer through the steps taken.[15]

1. The extent to which an explanation involving a comparison between an agreement and an award covering relevant employees needs to be given was discussed in CFMMEU v Ditchfield Mining Services Pty Limited,[16] in which the Full Bench said:

“[71] Compliance with s.180(5) will not always require an employer to identify detriments in an agreement vis-à-vis the reference instrument, or for the employer to provide an analysis between the agreement and the relevant reference instrument, particularly in circumstances where an existing enterprise agreement, not a reference instrument, applies to the employees in their employment with the employer. The question of compliance with s.180(5) is to be judged against the circumstances that pertain at the time at which compliance was required. Section 57 of the Act makes clear that a modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment. In the present case, when the explanations were given, no enterprise agreement applied to the employees and the Award did apply. An explanation of the effect of the terms of the Agreement vis-à-vis the Award was therefore capable of being relevant to the evaluative assessment of whether all reasonable steps were taken to explain the terms of the Agreement and the effect of those terms.

[72] The obligation under s.180(5) to take all reasonable steps to explain to relevant employees the terms of an enterprise agreement and the effect of those terms is an important function of the agreement-making scheme established by Part 2-4 of the Act. Its evident purpose, taking into account its role in assessing whether the employees who were asked to vote to approve an agreement genuinely agreed to the agreement, is to ensure that employees are as fully informed as practicable about the terms and effect of the terms of a proposed enterprise agreement before voting on whether to approve it. An employer’s discharge of its obligation under s.180(5) is intended to enable employees to know what they are being asked to agree to, and to understand how their wages and working conditions might be affected by voting in favour of an agreement.”[17] [Endnotes omitted]

1. The material before the Deputy President explaining the steps Acciona took to explain the terms of the Agreement and the effect of the terms to employees consisted of the employer’s declaration in support of an application for approval of an enterprise agreement,[18] declaring that on:

On 18 May 2023

“The employer conducted an in-person meeting with employees and presented the agreement. The meeting included a page-turn explanation of the agreement touching on every clause. Ensured that time was allowed for Q&A throughout the presentation and at then (sic) end of the presentation.”[19]

And

“The Agreement’s clauses were comprehensively explained, and a thorough comparison was conducted with the provisions outlined in the Building and Construction General On-Site Award 2020.”[20]

On 23 May 2023

“The employer conducted a second in-person meeting with employees and presented a Power Point presentation. Ensured that allowed for Q&A throughout the presentation and at the end of the presentation.”[21]

And

“Once again, the Agreement’s clauses were comprehensively explained, and a thorough comparison was conducted with the provisions outlined in the Building and Construction General On-Site Award 2020.”[22]

1. No detail about the content of the explanation is set out in the declaration. Such detail as was before the Deputy President is found in a PowerPoint presentation.[23] We agree with the CEPU that the PowerPoint presentation contains nothing more than a restatement of some of the terms of the Agreement. It does not include any explanation of the terms or the effect of the terms, and does not, for the most part, include any explanation of the relative terms of the Award and the Agreement. Moreover, the PowerPoint presentation contains no reference at all to some important terms and in at least one respect the explanations of the term of the Agreement pertaining to wage increases is misleading, and wrong. Thus, the evidence of the explanation proffered by Acciona discloses that the explanation given was either inadequate, non-existent, or misleading. Three examples will suffice.

1. First, the PowerPoint presentation contained the following “explanation” of clause 13 of the Agreement which deals with ordinary hours of work:

“The ordinary hours of work shall be an average of 38 or 36 hours per week, decided at the discretion of the Employer based on projects (sic) needs, over a defined work cycle (not exceeding four (4) weeks) and may be worked on any or all of the days of the week, and are to be worked between the hours of 6.00 am to 6.00 pm.”[24]

1. The effect of this provision is not explained. For example, employees are not told that the spread of hours under the Award is 7.00 am to 6.00 pm and ordinary hours are limited to Monday to Friday. Employees are not told that the effect of commencing work at 6.00 am would under the Award mean that an employee is paid at the rate of time and a half for that first hour, but under the Agreement the payment is at single time.

1. Second, there is no mention, much less an explanation about the effect of clause 13.4(a), which is earlier set out, allowing for a compressed roster to operate where ordinary hours are averaged over a 2, 3 or 4 week cycle, during which RDOs may not apply. No explanation is given that an effect of this provision is that the employer may require employees to work ordinary hours of 10 or 12 hours in a day, or that whereas under the Award payment for such patterns of work would be 8 hours ordinary time, accrual of an RDO and 2 (at time and a half) or 4 (2 at time and a half and 2 at double time) hours of overtime, under the Agreement’s compressed roster provision all 10 or 12 hours would be at ordinary time and an RDO would not accrue. There is also no explanation of the purported limit on the operation of clause 13.4(a) to a compressed roster consisting of not more than 8 hours per day as suggested by the instructions to Counsel for Acciona earlier mentioned.

1. Third, the Award rates produced at page 13 of the PowerPoint presentation in comparison to the Agreement rates[25] do not include the industry allowance (an all-purpose allowance) for which provision is made in clause 22.1 of the Award. Since the Agreement rates “compensate” for all allowances for which the Award provides (clause 22.1 of the Agreement), the relevant Award comparator rates ought at the very least to have included the industry all-purpose allowance in the hourly rate shown. It was not included, and the comparison was misleading as a consequence. It showed a greater differential favourable to the Agreement than was the case.

1. We accept therefore, as the CEPU have contended, that not only was there an insufficient basis for a positive finding in relation to s. 180(5) but it is clear on the material available that the terms of the Agreement and the effect of those terms had not been explained to employees. We do not consider that the requirements of ss. 180(5) and 186(2)(a) were met and on the material before the Deputy President, that was the only conclusion available. The Deputy President erred in concluding otherwise.

1. For completeness, although the Agreement covers Acciona’s employees in Western Australia in a wide range of occupations, we do not consider the fact that only four employees based in Bunbury made the agreement with Acciona raises questions about the authenticity and moral authority of the Agreement. The Agreement does not cover classifications across multiple awards. The wide range of classifications is confined to a part of the building and construction sector – civil construction – rather than “the entire building sector” as the CEPU asserted. The Agreement does not purport to cover employees across multiple industries. Consequently, that part of the genuine agreement grounds by which the CEPU contends the Deputy President could not be satisfied there were no other reasonable grounds for believing that the employees had not genuinely agreed so the Agreement, fails.

Permission to appeal

1. Given there is identified appealable errors in the approval decision, and these go to the proper administration of the enterprise agreement approval process administered by the Commission, we consider that it is in the public interest for permission to appeal to be granted and we propose to do so.

Conclusion

1. It is sufficient to dispose of the appeal that the BOOT and genuine agreement grounds have been made out as we have described above. For that reason, we need not deal with grounds 2 and 6. In the result, the appeal will be upheld, the approval decision will be quashed, and the application will be remitted to Deputy President O’Neill for redetermination. In so doing we allow the CEPU to participate as intervenor in the redetermination of the application including by making submissions, leading evidence and examining any witnesses. We consider that the CEPU has relevant knowledge and experience of the working arrangements and conditions under which work is undertaken in the civil construction sector in Western Australia, the Award regulation applicable to that sector and industrial experience relevant to the enterprise agreement approval requirements which will assist the Commission in discharging its statutory function in considering whether the Agreement is to be approved or approved with any undertakings.

Order

1. We order:

1. The time within which the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union may lodge an appeal against the decision of Deputy President Boyce in Re Acciona Construction Australia Pty Ltd[2023] FWCA 2041 is extended to 31 July 2023;

2. Permission to appeal is granted;

3. The appeal is upheld;

4. The decision in Re Acciona Construction Australia Pty Ltd[2023] FWCA 2041 is quashed;

5. The application to approve the Acciona Construction Australia Pty Ltd Western Australia Enterprise Bargaining Agreement 2023 is remitted to Deputy President O’Neill for redetermination; and

6. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union may participate as intervenor in the redetermination of the application.

VICE PRESIDENT

Appearances:

O Fagir of Counsel for the appellant.
M Minucci of Counsel for the respondent.

Hearing details:

2023.
Melbourne (via Microsoft Teams):
September 22.

[1] Re Acciona Construction Australia Pty Ltd[2023] FWCA 2041 at [14]

[2] Ibid at [15]-[19]

[3] See Jobs v Eland[2014] FWCFB 4822 at [5]-[6]

[4] Re Acciona Construction Australia Pty Ltd[2023] FWCA 2041 at [13]

[5] Noting that the Agreement was made before 6 June 2023 and so s. 193A does not operate on the assessment

[6] Noting that s 188(1) and (2) had been repealed and replaced with s. 188 (1)-(6) with effect on 6 June 2023 and the notification time for the Agreement was before 6 June 2023

[7] Outline of Submissions for the Appellant (24 August 2023) at [2]

[8] See Undertaking 1, Appeal Book 19

[9] See Airservices Australia v Luke Crouch[2023] FWCFB 21 at [18]-[19]

[10] Transcript PN323-PN333

[11] One Key Workforce v Construction Forestry Maritime Mining and Energy Union [2018] FCAFC 77, (2018) 262 FCR 527 at [115]

[12] Ibid at [103]

[13] Ibid at [117]

[14] Construction, Forestry, Maritime, Mining and Energy Union v Karijini Rail Pty Ltd[2020] FWCFB 958 at [59]

[15] One Key Workforce v CFMMEU [2018] FCAFC 77, (2018) 262 FCR 527 at [112]-[113]

[16] [2019] FWCFB 4022

[17] Ibid at [71]-[72]

[18] Appeal Book 61

[19] Appeal Book 76

[20] Ibid

[21] Ibid

[22] Ibid

[23] Appeal Book 84

[24] Appeal Book 91

[25] Appeal Book 96

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