Consolidated Power Projects Australia Pty Ltd

[2020] FWCA 457

[2020] FWCA 457

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Consolidated Power Projects Australia Pty Ltd
(AG2019/3867)

CONSOLIDATED POWER PROJECTS AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2019 – 2023

Electrical contracting industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 31 JANUARY 2020

Application for approval of the Consolidated Power Projects Australia Pty Ltd Enterprise Agreement 2019 - 2023.

[1] Consolidated Power Projects Australia Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Consolidated Power Projects Australia Pty Ltd Enterprise Agreement 2019 – 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

[2] The Applicant is engaged in electrical contracting in the electrical distribution and renewable energy generation industries. It is based in South Australia.

[3] It was uncontentious that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division, NSW Divisional Branch (CEPU), was a bargaining representative for the Agreement. In short, the CEPU objected to the approval of the Agreement on the following grounds:

a) the employees who participated in the vote were not covered by the Agreement;
b) employees who were covered by the Agreement (that is those employees’ duties and responsibilities fell under classifications under Agreement) were excluded from the vote;
c) the Commission could not be satisfied that the Applicant had taken all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees;
d) the Commission could not be satisfied that the Applicant had taken all reasonable steps to notify the employees of the vote in accordance with s 180(3); and
e) in culmination, the abovementioned factors gave rise to a concern that the Agreement had not been genuinely agreed upon as contemplated in s 188(1)(c) of the Act.

BACKGROUND

Negotiations

[4] According to Mr Nelson, who was the Applicant’s bargaining representative, and People and Culture Manager, on 28 June 2018 he sent an email on behalf of the Applicant’s President, attaching a company update that was distributed to all employees covered by the current enterprise agreement – the Consolidated Power Projects Australia Pty Ltd Enterprise Agreement 2014-2018 (Current Agreement). 1 The update notified employees of the Applicant’s intent to commence bargaining for a new agreement, given the Current Agreement reached its nominal expiry date in March 2019.

[5] Mr Nelson stated that he sent the email to employees on 28 June 2018 using the ‘CPP Newsdesk’ – an email based communication system that provided an electronic forum through which CPP communicated with its employees. 2 Using CPP Newsdesk, on 1 July 2019, Mr Nelson caused a Notice of Employee Representational Rights (NERR) to be sent to employees covered by the Current Agreement.3 Mr Nelson stated that the NERR provided formal notice of the Applicant’s intention to commence bargaining for the Agreement. Mr Nelson stated that an email sent on 1 July 2019, attaching the NERR, requested that all site managers distribute the NERR at tool box meetings and to display the NERRs on notice boards.4 Mr Nelson’s evidence was that he understood that from 2 July 2019 until 10 July 2019, a hard copy of the NERR was provided to employees covered by the Current Agreement and who would be covered by the Agreement, and that the NERR was affixed to all site notice boards.5

[6] The CEPU were notified that the Applicant wanted to commence bargaining on 1 July 2019. 6

[7] Mr Elliot, Recruitment Officer for the CEPU, gave evidence that since 2 August 2019, he had represented members of the CEPU in the negotiations for the Agreement. 7 The first bargaining meeting was held on 15 August 2019 via telephone.8 Telephone conferencing was utilised due to the Applicant’s location.9

[8] During the negotiations Mr Elliot submitted a log of claims to Mr Nelson. 10 During the negotiations, Mr Nelson is purported to have informed Mr Elliot that the Applicant could agree to the income protection and delegate clause, if the bargaining representatives for the Agreement agreed to the rest of the Agreement as proposed by the Applicant.11 According to Mr Elliot, the bargaining representatives refused those terms, and by the time the Agreement was put to the vote the Applicant had not agreed to those terms the employees were seeking.12

[9] Mr Nelson gave evidence that bargaining meetings were held on 1 August 2019, 15 August 2019, 29 August 2019, and 9 September 2019. 13

[10] On 13 September 2019, Mr Nelson sent an email to bargaining representatives attaching a copy of the Agreement and provided an update that it was the Applicant’s view that bargaining had been finalised, the Agreement incorporated all changes as agreed and was ready for employees to have their say and be voted on. 14 Mr Nelson reports that on 16 September 2019 he received emails from Mr Jewel, CEPU Organiser in South Australia, and Mr Elliot who expressed that it was premature to put the Agreement to the vote and discussions should continue.15 A further email was received by Mr Nelson on 17 September 2019, in which Mr Elliot advised that the ‘ETU (NSW) and its members would not be supporting the Agreement as currently presented’.16

Explanation of the terms and vote notification

[11] With respect to the email sent by Mr Nelson on 13 September 2019 to bargaining representatives; his evidence was that it included a summary of all proposed changes to the Current Agreement, provided in a table format, in addition to the Agreement and voting information. 17

[12] On that same day, Mr Nelson said that he arranged for the summary to be sent via Express Post to the home address of all 42 employees covered by Agreement. 18 Included in the postal package was a copy of the Agreement, details regarding the ballot start and end period, who had been engaged to conduct the ballot and who the Applicant had nominated as the scrutineer (Mr Jewel CEPU SA).

[13] Mr Nelson subsequently gave evidence that four of the 42 employees who were notified of the ballot and invited to vote, and who did vote in the ballot for the approval of the Agreement, were not included in the list of employees who were sent a postal package on 13 September 2019. 19 However, two of the employees who did not receive the postal package via Express Post were both on a list of recipients Mr Nelson had sent an email to on 13 September 2019 attaching the ‘postal package’, or ‘EA package’.20 A further employee was a nominated bargaining representative and received the ‘EA package’ that Mr Nelson had sent to bargaining representatives on 13 September 2019 (see paragraph 11 of this decision).21

[14] The remaining employee out of the four was stationed at a site where the Manager posted a copy of the ‘EA package’ on the worksite noticeboard, provided copies in the service office area, and brought the locations where ‘EA packages’ were available to the attention of employees at the worksite. 22

Ballot

[15] The ballot for the Agreement was facilitated electronically by a third-party ballot agent GoVote Pty Ltd (GoVote). 23 The voting ran for three days from 30 September until 2 October 2019.24 Mr Elliot gave evidence that he received the ballot results that showed that there were 42 employees covered by the Agreement and the number of votes was 42.25 That same ballot showed that 18 employees voted ‘no’ and 24 voted ‘yes’ to the Agreement.

Ineligibility to vote, or excluded from the vote

[16] Mr Elliott stated that he and Mr Jewel mapped the employees who they believed would be covered by the Agreement. They undertook this work by asking their members to map the employees and their roles, asking them to identify the employees they knew and the role of those same employees. 26 Mr Elliot coordinated the work for those employees in New South Wales and Mr Jewel covered the work for South Australia.27

[17] Mr Elliott shared his concerns that there were employees who were too senior to be covered by the Agreement and employed in classifications not covered, including managers, one electrician who may have retired before the Agreement was made, and a truck driver. 28

[18] In addition to the ‘managerial’ employees who were included in the vote, Mr Elliott highlighted that a number of ‘NSW employees’ were working in Victoria at the time of the ballot.

[19] The mapping undertaken also indicated that there were employees covered by the Agreement who may not have been included in the ballot. The mapping referred to by Mr Elliot was not submitted.

[20] Mr Nelson gave evidence that at the time of the vote, and at the time he prepared his witness statement, the Applicant employed a cohort of 42 electrical workers, all of whom were employed and worked within the Grade Classifications set out in Schedule 2 of the Current Agreement and who would therefore be covered by, and therefore eligible to vote on, the Agreement. 29

THE APPLICANT

Valid vote – coverage

[21] Mr Nelson stated that all 42 employees who were employed by the Applicant worked in either New South Wales or South Australia. 30 At the time of the vote, six employees who had been working in either New South Wales or South Australia, were directed to commence working on the construction of an electrical substation at Kiamal in Victoria.31 Mr Nelson gave evidence that each of the six employees commenced working on the Kiamal substation between May and September 2019, and the construction of the substation would conclude in December 2019.32 On conclusion of the Kiamal work, each of the six employees had already, or would continue, to undertake work for the Applicant as electrical workers in either New South Wales or South Australia.33

[22] Five employees of the 42 who voted on the Agreement were, at the time of the vote, being paid at a classification grade one step up from their substantive classification grade, in consideration for them undertaking higher duties of a site manager whilst at the same time, continuing to predominately work and apply the required skills of an electrical workers. 34 Mr Nelson clarified that the payment at the higher grade was provided on a temporary basis.35

NERR

[23] The employees who voted for the Agreement were employees covered by the existing agreement that the Agreement sought to replace and had been engaged as electrical workers, working in South Australia and New South Wales. The Applicant contended that it was self-evident that on the receipt of the NERR that all relevant employees knew they were covered by the Current Agreement and would be covered by the Agreement.

Access to, or given the, Agreement

[24] The Applicant argued that all employees who were notified of and invited to vote in the ballot for approval of the Agreement were provided the EA package, which contained a copy of the Agreement and other information. The information had been provided by various means, including through direct email, Express Post or was otherwise accessible at the Applicant’s various work sites.

The explanation

[25] The Applicant reiterated that all employees were provided with an EA package, via direct email, Express Post, or displayed upon notice boards (for example) at the Applicant’s worksites. That EA package included a ‘Q&A’ and table setting out a summary explanation of the proposed changes to the Current Agreement. The changes proposed to the Current Agreement and set out in the EA package were:

a) wage increase;
b) increase in rostered days off;
c) provision of overtime for travel outside normal rostered hours;
d) a new availability allowance;
e) an increase in severance contributions;
f) increase in personal protective equipment allocations for new starters; and
g) removal of company policies.

[26] It was claimed that no other changes other than those outlined were proposed, and the changes were simple and straightforward – warranting little if any explanation. The Applicant stated that all changes were self-evident and lacking in complexity, such that the setting out of the changes in table format in the EA package provided to employees was, in its view, sufficient to satisfy the requirements of s 180(5). Again, stated the Applicant, having regard to the minimal and obvious nature of the changes, the information provided was sufficient to allow the employees, including the apprentices, to make an informed decision on whether to approve the Agreement.

[27] The Applicant submitted that to the extent that the Commission was not satisfied that it took positive steps to explain the changes to the junior staff covered by the Agreement, such an error did not disadvantage the junior apprentices by manifestly denying them the chance to make an informed decision. Although junior employees, the Applicant argued that their junior status could not have been expected to preclude them from understanding the changes to the Current Agreement, simple and straightforward as they were. The situation is distinguishable to those circumstances where there was, for example, a language barrier.

THE CEPU

Valid vote - coverage

[28] The gravamen of the CEPU’s claim was that the inclusion of employees in the vote who were ineligible to vote, and the exclusion of other employees who were eligible, had rendered the vote invalid.

[29] The CEPU submitted that the classification structure at Appendix A, Schedule 2 of the Agreement was the same as the classification definitions of the Electrical, Electronic and Communications Contracting Award 2010 (the Award), which includes skills and qualifications for each classification. The Award did not, in the CEPU’s view, cover foreman, supervisors above the level of a leading hand, or managers. Similarly, there were no classifications in the Agreement that would cover those management roles. The concern was that there were employees who were too senior to be covered by the Agreement, and others that were employed in classifications not covered by the Agreement such as a truck driver.

[30] In addition, the ‘NSW employees’ working in Victoria at the time of the ballot were not covered by the Agreement due to the exclusion in cl 4(ii). Therefore, they were ineligible to vote, and it was not clear whether those employees were included in the ballot.

NERR

[31] The CEPU disputed that there had been compliance with s 173(1) of the Act. One basis for the objection was there were three junior apprentices who voted on the ballot, and no explanation provided as to how those apprentices knew they would be covered by the Agreement. The other basis - six employees were working in Victoria who participated in the ballot notwithstanding that the NERR made clear the Electrical Worker Classifications 1-10 in the states of Victoria and Queensland were excluded. Again, the Applicant had not provided explanation as to how the employees working in Victoria would have known they were covered by the Agreement.

Access to, or given the, Agreement

[32] Referring to the emails sent on 13 September 2019 (inclusive of the EA package) and 23 September 2019, 36 and the vote having commenced on 30 September 2019, the CEPU submitted that eight employees had not been included in the email dated 13 September 2019, albeit they had been added to the email dated 23 September 2019. It followed, said the CEPU, the access period for those eight employees did not commence until 23 September 2019 and concluded on 30 September 2019. Therefore, it could not be said that the eight employees were provided with a text of the Agreement during the seven day access period. The consequence of this was that the Commission could not be satisfied that the requirements of ss 180(2) and 180(4) were met.

[33] The CEPU added that three employees who participated in the ballot were not included in the 13 September 2019 email or the 23 September 2019 email. Therefore, there was no evidence before the Commission that the three employees were provided with the Agreement at any time before or during the access period. It was again asserted that the Commission could not be satisfied that the requirements of ss 180(2) and 180(4) were met.

The explanation

[34] The explanation provided by the Applicant was, according to the CEPU, limited, and it assumed that those voting for the Agreement had a prior knowledge and understanding of the previous Agreement and this Agreement, in addition to having had industrial experience. It was highlighted that there were three junior apprentices who voted in the ballot, and no evidence of any other steps taken to explain the terms of the Agreement. The CEPU contended that the limited information provided by the Applicant during the access period would not satisfy the Commission that there was sufficient information to demonstrate that the Applicant took all reasonable steps.

Genuinely agreed to by employees – s 188(1)(c) no other reasonable grounds

[35] It was the combined circumstances of the matter that gave rise, said the CEPU, to the type of concern contemplated by s 188(1)(c). Those combined circumstances were the confusion about the:

a) coverage of the employees, whether they were given proper notice and the lack of explanation;
b) some employees receiving a copy of the Agreement during the access period and other not;
c) lack of evidence that the terms of the Agreement were properly explained taking into the account the circumstances of the employees covered by the Agreement; and
d) the narrow ballot margin in favour of the Agreement approval.

CONSIDERATION

Valid vote

[36] Section 172(2) sets out that an employer that is a single interest employer may make an enterprise agreement with employees who are employed at the time the agreement is made and who will be covered by the agreement.

[37] For a valid application to be made, pursuant to s 185 of the Act, it is a statutory prerequisite that an enterprise agreement be ‘made’ under s 185(1). That section is expressed as follows:

185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

[38] Section 182(1) sets out the circumstances in which a single-enterprise agreement is ‘made’:

182 When an enterprise agreement is made

Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

[39] Section 181 provides that the employer may request that employees approve a proposed enterprise agreement subject to certain conditions. It is expressed as follows:

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

[40] One of the issues that arises in the circumstances of this case is what constitutes a ‘valid’ vote. The CEPU voiced concerns about the validity of the vote premised upon: (a) the inclusion in the voting cohort of employees, employees who they considered were not would be covered by the Agreement; and (b) the exclusion of other employees who will be covered.

[41] This issue about the validity of the vote was considered by Senior Deputy President Cartwright in Endeavour Petroleum Pty Ltd (Endeavour Petroleum). 37 While that case was concerned with s 170LK of the Workplace Relations Act 1996 it is, in my view, relevant to the circumstances of this case. In Endeavour Petroleum, Senior Deputy President Cartwright referred to the ordinary meaning of the words used in the expression ‘valid vote’ and held:

Applying the ordinary meaning of the term “valid vote”, means, in my view, that a vote cast by a person ineligible to vote cannot be a valid vote, where “valid” is defined by the New Shorter Oxford Dictionary to mean “possessing legal authority; executed with the proper formalities; legally acceptable or binding” and the Macquarie Dictionary to mean “legally sound, effective or binding; having legal force; sustainable in law”. Complying with both the eligibility condition to vote and the appointed balloting procedure is implicit in the notion of casting a valid vote. 38

[42] The inclusion of invalid votes, or the mere potential involvement of employees casting an invalid vote, did not, in his view, taint the ballot itself. In Endeavour Petroleum 39 votes were cast. The majority in favour of making the agreement was 24 to 15. The Senior Deputy President observed that the greatest effect that the erroneous inclusion of invalid votes had was to reduce the majority from 9 to 1 and therefore the result of the vote could not be doubted. Participation of employees ineligible to vote, on the evidence before the Senior Deputy President, could not have affected the conduct of the ballot and, on the numbers, could not have affected the outcome. Referring to the words of the Full Bench in ‘Magnet Mart’, the Senior Deputy President concluded ‘the emergence of a valid majority in favour of the agreement retains the efficacy of the ballot’. 39

[43] Unlike the situation in Endeavour Petroleum, the CEPU had in effect asserted that those employees situated in Victoria were ineligible to vote (six) as were those undertaking site managerial duties (five). Unlike the circumstances in Endeavour Petroleum where the company had the luxury of a sufficient buffer in the voting numbers, the Applicant faced a scenario where eleven invalid votes would not result in the emergence of a valid majority.

[44] However, having considered the evidence before the Commission, and observing that some of that evidence is subject to Confidentiality Orders, 40 on the balance of probabilities, I have found that the employees who voted upon the Agreement were eligible to participate in the ballot.

[45] Concerning those employees working in Victoria, there was no evidence before me to suggest that Mr Nelson’s account was inaccurate regarding the completion timeframe for the Kiamal substation project, or the temporary nature of the deployment of electrical workers (employees) to complete that work. Evidence provided by the Applicant evinces the timeframe of the project, which aligns with a December 2019 completion date. 41 The evidence before the Commission was such that those workers would return to perform work in South Australia or New South Wales, and as such I am content to conclude that those employees ‘will be covered’ by the Agreement.42

[46] In respect of the phrase ‘will be covered’, the High Court, in the decision of ALDI Foods Pty Ltd v Shop, Distributive and Allied Employees Association (Aldi) considered the phrase in respect of s 172(2)(a), its consideration of the phrase is apposite here, and stated:

The remaining category of enterprise agreements consists of those that are not greenfields agreements: they are made as referred to in s 172(2)(a). Such agreements are those made in circumstances where the employer already employs employees who are not then, but will be, covered by the enterprise agreement then in contemplation. Section 172(2)(a) and (b)(ii) expressly contemplate that employees ‘will be covered’ by the proposed agreement, even though the employees are also currently employed under another enterprise conducted by the employer under another agreement.

It is necessarily implicit in s 172(2)(b)(ii) that an employer engaged in establishing a new enterprise may have in its employ at that time persons who will be necessary for the conduct of the new enterprise. Because such an enterprise is one that, as s 172(2)(b)(i) provides, is to be established at some future time, the word ‘employed’ in s 172(2)(b)(ii) should not be taken to mean ‘employed in that new enterprise’, as the SDA argued: the new enterprise, ex hypothesi, does not yet exist. Rather, ‘employed’ simply means ‘employed’ by that employer. An enterprise agreement cannot be made as a greenfields agreement with persons who are already employees of the employer because s 172(2)(b)(ii) allows such an agreement to be made only where none of the persons who will be necessary for the normal conduct of the new enterprise have been employed. Such an agreement, with persons currently employed, must necessarily be made under s 172(2)(a) of the Act. 43

[47] The remaining issue regarding the inclusion of ineligible voters pertains to the five electrical employees who were being paid at a higher classification than that of the substantive position and were asserted to be performing site manager duties. Five of the 42 employees were electrical workers who, stated the Applicant, were being temporarily paid at a higher classification in consideration of being given responsibilities of site management. The Applicant stated that the employees continued to be engaged predominately as electrical workers, in accordance with their respective substantive classifications. Have considered the evidence concerning these five employees and their classifications, I am satisfied that their classifications fall within the scope of the Agreement, and that two of the employees were not performing site manager duties. One employee was performing site manager duties on a temporary basis and the remaining two, whilst performing site manager duties, fell within the classifications of the Agreement.

[48] In respect to employees who would be covered by the Agreement, but nevertheless were said not to have been included when it came to the issuance of the NERR, notification of the vote, explanation of the Agreement or provision of relevant documents, the evidence before me is not persuasive in that respect. I therefore find it not to be the case.

Access to, or given the, Agreement

[49] The evident purpose of the preapproval step in s 180(2) is to give relevant employees the opportunity to review an enterprise agreement and material incorporated by reference in the agreement before being asked to vote to approve it. 44

[50] This purpose is given effect by placing an obligation on an employer to take ‘all reasonable steps to ensure’ that employees have this opportunity through one of two ways or through a combination of those ways. 45 The first is by ensuring that during the access period the relevant employees are given a copy of the agreement and any other material incorporated by reference in the agreement, and the second is by ensuring the relevant employees have access, throughout the access period, to those same materials.

[51] In BGC Contracting Pty Ltd, the word ‘ensure’ in s 180(2) was taken to suggest that whichever method was selected by the employer, the reasonable steps to be taken should be directed to secure or guarantee or make sure or be certain that relevant employees were given a copy of the agreement and any incorporated material during the access period, or that they had access to the material throughout the access period. However, the wording of s 180(2) does not lend itself to a construction that the Commission may only be satisfied of an employer’s compliance with this section in circumstances where it shows that all relevant employees were given a copy of the agreement and any other material incorporated by reference, or otherwise were provided with access to the same during the access period. Section 180(2) clearly refers to the taking of ‘all reasonable steps to ensure’ (underlining my emphasis).

[52] Mr Nelson gave evidence that he sent via Express Post and via email the EA package on 13 September 2019. He qualified that evidence, noting that four of the 42 employees who were notified of the ballot and invited to vote, and who did vote in the ballot for the approval of the Agreement, were not included in the list of employees who were sent a postal package on 13 September 2019. 46 However, two of the employees who did not receive the postal package via Express Post were both on a list of recipients who Mr Nelson sent an email to on 13 September 2019, attaching the ‘postal package’ or ‘EA package’.47 A further employee was a nominated bargaining representative and received the ‘EA package’ that Mr Nelson had sent to bargaining representatives on 13 September 2019 (see paragraph 11 of this decision).48 The remaining employee out of the four was stationed at a site where the Manager posted a copy of the ‘EA package’ on the worksite noticeboard, provided copies in the service office area, and brought the location of the ‘EA Packages’ to the attention of employees at the worksite.49

[53] In BGC Contracting Pty Ltd, the Deputy President considered the meaning of the word ‘given’ in s 180(2). The Deputy President stated that to give something to someone may involve the physical transfer of that thing to someone, or by causing or allowing or facilitating someone to have or experience the thing, or by providing someone with the capacity to obtain the thing and experience it without physically giving the thing to that person. 50

[54] The measures undertaken by the Applicant as detailed above meant that it took, as a minimum, all reasonable steps to ensure the access required by s 180(2)(b) occurred. It may be argued that the policies referred to in the Agreement, such as the ‘Company non-smoking policy’ were not given to the employees because to obtain a copy of them required employees to view them via an intranet hyperlink (included in the EA Package) and then download them. However, the requisite access was nevertheless provided.

NERR

[55] The Applicant described having sent an email via the CPP Newsdesk on 1 July 2019 to all employees covered by the Current Agreement and who would be covered by the Agreement. That same email included content requesting site managers to distribute the NERR at tool box meetings and to display a copy on notice boards. 51 A further email was sent on 1 July 2019 to the Regional Manager SA/VIC.

[56] Having considered the evidence of Mr Nelson and Mr Goater, People, Culture and Communications Coordinator, and the annexures to their witness statements, I am satisfied that the Applicant took all reasonable steps to ensure that an NERR was provided to each of the employees who will be covered by the Agreement. While the CEPU expressed concern about the provision of the NERR to certain sub-groups of employees, I remain satisfied that all reasonable steps were taken.

The explanation

[57] Section 188(1) of the Act provides that an enterprise agreement has been genuinely agreed to by the employees covered by the enterprise agreement if the Commission is satisfied that the employer has complied with requirements set out in that section, including those in s 180(5) of the Act.

[58] Further, s 180(1) requires that before an employer requests that its employees approve an enterprise agreement by voting for it, the employer must comply with requirements including the requirement at s 180(5) that:

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.

[59] The issue at the heart of the requirement in s 180(5) of the Act is to ensure genuine and informed consent to the terms of the proposed enterprise agreement. 52 Forming a view as to whether s 180(5) has been complied with involves an evaluative judgment.53  Whatever steps may be necessary will depend upon the facts and circumstances of each case.54

[60] In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (One Key), 55 Flick J found that ‘reasonable steps’ could include the identification of the particular award which covered the relevant employees with reference to those provisions in the awards that varied from, or did not vary from, the terms of the proposed enterprise agreement. I have previously written that, in effect, Flick J was proffering a suggestion on what steps could have been taken to constitute ‘all reasonable steps’ in the circumstances of that particular case.56 Providing an explanation of the ‘effect of the Agreement in relation to the Modern Award’ is not mandatory but is to be assessed on a case by case basis.

[61] The Applicant was rolling over an enterprise agreement with which the employees were familiar. They were familiar with the Agreement because the one prior had covered them, and the Agreement was a reiteration of the Current Agreement with some changes. Those changes had been illuminated in a summary document included in the EA package, and are outlined in short at paragraph 25.

[62] When evaluating whether the Applicant has complied with s 180(5), the Commission has regard to the content of the explanation provided and the terms in which it was conveyed. 57 The Applicant submitted that the explanatory material provided outlined the changes made to the Current Agreement and there were no other changes other than those outlined. I agree with the Applicant’s summation that those changes warranted little if any explanation – for they were essentially self-explanatory.

[63] Although there were junior employees in the mix, the Applicant argued that their junior status could not have been expected to preclude them from understanding the changes to the existing agreement, simple and straightforward as they were. The situation is distinguishable from those circumstances where there was, for example, a language barrier. I am satisfied that is the case.

[64] In the circumstances of this case the impact on the relevant employees’ interests was clearly addressed by the Applicant’s explanation in the EA package. The approach was sensible and took into account the changes being made to the Current Agreement and the circumstances of the employees, all of whom were covered by the Current Agreement. Further, the proposed changes to the Current Agreement did not warrant an explanation that specifically addressed each and every term of an enterprise agreement in forensic detail. 58 What was required was that the employer take all reasonable steps to provide an explanation – which the Applicant did, including for its junior employees.

Notification of the vote

[65] The Act provides that an employer must take all reasonable steps to notify the relevant employees, by the start of the access period for the agreement, of the time and place at which the vote will occur and the voting method. 59 The ‘access period’ is defined as the 7-day period ending immediately before the start of the voting process referred to in s 181(1).

[66] Mr Nelson gave evidence that on 13 September 2019 he arranged for summary of all proposed changes to the Current Agreement, a copy of the Agreement, details regarding the ballot start and end period, and who was conducting the ballot, including information on the scrutineer, to be sent via Express Post to the home address of relevant employees. 60 The same documentation was sent to bargaining representatives on that day. Following the provision of this information, on or around 23 September 2019 and 27 September 2019, Mr Nelson requested that all site managers place a copy of Agreement, with a document entitled ‘SA & NSW Enterprise Agreement Update’, and the notice of the vote on all notice boards of all worksites.61 An email was also sent on 23 September 2019 attaching the notification. The vote commenced on 30 September 2019 at 10.00am.

[67] If one was to assume, notwithstanding the mailing of the notification of the vote on 13 September 2019 to employees and bargaining representatives, that some employees were not notified of the vote until on or around 23 September 2019 or 27 September 2019 then it would appear on its face that s 180(3) had not been complied with. Section 180(3) requires that the employer take all reasonable steps to notify employees of the time and place of the vote (and voting method). An assessment of reasonableness inevitably requires one to consider context – for example the working arrangements of the relevant employees.

[68] It was open on the evidence to draw the inference that the work performed occurred at ‘sites’ and such sites were remote from the relevant employees’ residential addresses. While the notification of the vote was sent to home addresses, it is plausible, dependent on working arrangements, that some employees may not have been at that home address from 14 - 22 September 2019 and were therefore dependent on being notified by those notifications displayed at the worksite.

[69] However, Mr Nelson provided further evidence regarding the notification that was provided on various sites on 13 September 2019 and on 18 September 2019. 62 The Full Bench stated that s 180(4) is to be construed on the basis that the access period consists of seven clear calendar days, and that the access period ends at the end of the calendar day immediately preceding the day on which the voting process for a proposed agreement commences.63 In light of this evidence, and having considered the requirements of s 180(3), I am satisfied that the Applicant has complied with the section.

Genuinely agreed to by employees – s 188(1)(c) no other reasonable grounds

[70] While the CEPU argued it was the combined circumstances of the matter that gave rise, to the type of concern contemplated by s 188(1)(c) the argument lacks foundation, and I do not find that to be the case having considered all submission and evidence directed to the contention.

Conclusion

[71] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[72] In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[73] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 as are relevant to this application for approval have been met.

[74] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ,being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the statutory declaration provided by the organisation, I note that the organisation is covered by the Agreement.

[75] The Agreement was approved on 31 January 2020 and, in accordance with s 54, will operate from 7 February 2020. The nominal expiry date of the Agreement is 31 July 2023.

DEPUTY PRESIDENT

Annexure A

 1   Witness Statement of Daniel Nelson (Nelson Statement) [2].

 2 Ibid [6].

 3 Ibid [7].

 4 Ibid [8].

 5 Ibid [10].

 6 Ibid [8].

 7   Witness Statement of Stuart Elliot (Elliot Statement) [5].

 8 Ibid [9].

 9 Ibid [9].

 10 Ibid [10].

 11 Ibid [11].

 12 Ibid [12].

 13   Nelson Statement [13], [18], [19] and [21].

 14 Ibid [24].

 15 Ibid [27].

 16   Ibid [28] Annexures DN-15.

 17 Ibid [25].

 18 Ibid [26].

 19   Supplementary Statement of Daniel Nelson (Supplementary Nelson Statement) [2(a) and (b)].

 20   Ibid [2(c)].

 21   Ibid [2(d)].

 22   Ibid [2(e)].

 23   Elliot Statement [13] – [14].

 24 Ibid [14].

 25   Ibid [15] Annexure SE-1.

 26   Ibid [18] –[19].

 27 Ibid [20].

 28 Ibid [21].

 29   Nelson Statement [36(a)].

 30   Nelson Statement [36(c)].

 31   Nelson Statement [36(e)].

 32   Nelson Statement [36(e)].

 33   Nelson Statement [36(e)].

 34 Nelson Statement [36(g)]; Amended Nelson Statement [38].

 35 Nelson Statement [38].

 36   Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) [q2.8]; Witness Statement of Adam Jacka Exhibit AG-1.

 37   PR957131.

 38   Endeavour Petroleum Pty Ltd, PR957131, [50].

 39   Magnet Mart Pty Limited, PR923848, 22 October 2002 per Duncan and Cartwright SDPP, Harrison C at [ 32.]

 40   PR714306 and PR714954.

 41   Affidavit of Daniel Nelson dated 20 January 2019.

 42 Affidavit of Daniel Nelson dated 20 January 2019 [11].

 43   ALDI Foods Pty Ltd v Shop, Distributive and Allied Employees Association (2017) 270 IR 459, [23]-[24].

 44   BGC Contracting Pty Ltd [2018] FWC 1466 [36].

 45 Ibid [36].

 46   Supplementary Nelson Statement [2(a) and (b)].

 47   Ibid [2(c)].

 48   Ibid [2(d)].

 49   Ibid [2(e)].

 50   BGC Contracting Pty Ltd [2018] FWC 1466, [37].

 51   Nelson Statement [7]-[8].

 52   Coles Supermarkets Australia Pty Ltd v Shop, Distributive and Allied Employees Association Print T2319, [20].

 53   One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77, [105].

 54   Ibid, [103].

 55 [2017] FCA 1266, [105].

 56   Georgiou Group Pty Ltd [2019] FWC 211, [91].

 57   One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77, [113].

 58   [2010] FWA 7217 [77].

 59 Section 180(3) of the Act.

 60 Nelson Statement [26].

 61   Nelson Statement [29]; Supplementary Nelson Statement [2(k)].

 62 Statement of Daniel Nelson dated 23 January 2020 [2].

 63   Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd [2018] FWCFB 2732 [42].

Printed by authority of the Commonwealth Government Printer

<AE506900  PR716250>