DECC Environmental Pty Ltd
[2023] FWCA 1103
•9 MAY 2023
| [2023] FWCA 1103 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
DECC Environmental Pty Ltd
(AG2023/561)
DECC ENVIRONMENTAL PTY LTD ENTERPRISE AGREEMENT 2022
| Building, metal and civil construction industries | |
| DEPUTY PRESIDENT BOYCE | SYDNEY, 9 MAY 2023 |
Application for approval of the DECC Environmental Pty Ltd Enterprise Agreement 2022 – application approved.
On 8 March 2023, DECC Environmental Pty Ltd (Employer) filed an application under s.185 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission) seeking the approval of a proposed single-enterprise agreement to be known as the DECC Environmental Pty Ltd Enterprise Agreement 2022 (Agreement).
Background
On 9 March 2023, the South Australian branch of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made a request to access the digital file in this matter, whilst it was in pre-assessment with the Commission’s Agreements Team. The Agreements Team provided the requested access on 14 March 2023. Nothing further has been heard from the CFMMEU’s South Australian branch.
The application was allocated to my Chambers on 15 March 2023. Later that day, correspondence was sent to the Applicant’s representative raising various issues with the application. The Applicant’s representative responded to those issues by way of reply email that evening.[1]
On 16 March 2023, my Chambers was advised by Member Assist that the Queensland branch of the CFMMEU had made the same request as its South Australian branch to access the digital file in this matter. I approved this request via correspondence from my Chambers, and directed the CFMMEU to advise of their position in writing by no later than 22 March 2023. On 22 March 2023, the CFMMEU advised that it wished to be heard.
I listed the matter for a Mention/Directions hearing by telephone on 24 March 2023. Post that Mention/Directions hearing, I issued the following consent Directions:
“The Fair Work Commission grants leave to the CFMMEU to make written submissions in respect of the approval of the DECC Environmental Pty Ltd Enterprise Agreement 2022 (Agreement) limited to the issue of the better off overall test (BOOT).
[1] By 4.00pm AEDT on Friday, 31 March 2023, the CFMMEU must file with the Commission and serve upon the Applicant any written submissions it seeks to make in relation to whether or not the Agreement passes the BOOT.
[2] By 4.00pm AEST on Friday, 7 April 2023, the Applicant must file with the Commission and serve upon the CFMMEU any written submissions in response to the CFMMEU’s written submissions.
Post compliance with Directions [1] and [2] above, the application to approve the Agreement will be determined in Chambers on the papers.”
I note that the CFMMEU was not a bargaining representative for the Agreement, was not otherwise involved with any bargaining in relation to the Agreement, and has not indicated that it has any members employed by the Employer. I therefore did not consider that the CFMMEU’s involvement in the proceedings, beyond providing submissions in respect of the better off overall test (BOOT), was of any utility. In other words, the CFMMEU was not involved in or present for either the bargaining or the making of the Agreement, and thus could not be in a position to bring any evidence as to the substance of any steps taken in the lead up to the approval of the Agreement, by reference to any explanation provided to relevant employees or otherwise (i.e. beyond what might be gleaned from a desktop perusal of the Commission’s digital file). Further, nothing raised by the CFMMEU in these proceedings has opened up any issue to which I consider that a contender at-large would be of assistance.
The parties filed material in accordance with the issued Directions, albeit I note that there are aspects of the CFMMEU’s submissions that travel beyond the leave that was granted,[2] and extend into the realm of whether the Applicant has complied with s.180(5) of the Act. Leave was not granted to the CFMMEU to broaden the scope of its submissions, and no such leave was sought. In my view, the practice of advancing submissions that extend beyond the terms of leave that has been granted should be condemned.[3] I note that the Applicant’s submissions rightly limit their engagement with the CFMMEU’s submissions to those matters concerning the passing of the better off overall test (BOOT).
CFMMEU’s BOOT concerns
The nature of the Commission’s task in terms of making a BOOT determination is not to engage in a line by line hair-splitting analysis, but to undertake a global assessment and evaluation of the benefits of the proposed enterprise agreement in comparison to the underlying modern award/s. An enterprise agreement will pass the BOOT even if some award benefits have been reduced as long as overall those reductions are more than offset by the overall benefits of the enterprise agreement. The Commission needs to be satisfied that, weighing the enterprise agreement provisions as a whole with those in the applicable award/s, an employee is better off overall (even if only slightly).
By reference to the leave that has been granted to the CFMMEU in terms of its involvement in these proceedings, the CFMMEU says that the Agreement does not pass the BOOT. In advancing this contention, the CFMMEU refers to the terms of the applicable modern award, being the Building and Construction On-Site Award 2020 (Award), and raises the following concerns:
a) Daily Hire concern: Clause 9.2(a) of the Agreement extends daily hire employment to plant operators and part-time employees, meaning that plant operators and part-time employees under the Agreement will be disadvantaged as they will not be entitled to the notice of termination provisions contained in the NES.[4]
b) Minimum Engagement concern: Clause 9.2(a) of the Agreement is less beneficial than the Award minimum engagement time periods under clauses 29.5(b) and 30.2 of the Award.[5]
c) Casual Loading concern: Clause 9.3 of the Agreement, in relation to the calculation of casual rates of pay, gives rise to less beneficial wage outcomes for casual employees when compared to the Award.[6]
d) Wages, Travelling Allowance, distance travelled and Living Away From Home Allowance concerns: Clause 12 of the Agreement does not provide a guarantee in respect of wages. Travel allowances (or payment arrangements for travel) under the Agreement are less beneficial than the Award. And, the living away from home allowance under the Agreement is “potentially” less beneficial than the Award.[7]
e) Superannuation and Stand Down concerns: The Superannuation and Stand Down provisions of the Agreement are less beneficial than the Award.[8]
f) Ordinary hours of work concern: Clause 17.1 of the Agreement is less beneficial in terms of ordinary hours of work than the Award.[9]
g) Inclement Weather concern: The inclement weather provisions of the Agreement are less beneficial than the Award, as the Agreement does not contain the wet weather provision contained in clause 24.14 of the Award.[10]
h) Annual Leave direction concern: The annual leave provisions of the Agreement are less beneficial than the Award in that the Agreement allows for the Applicant to direct employees to take unpaid leave during a close down within the Christmas/New Year period.[11]
Consideration and resolution of CFMMEU’s BOOT concerns
In making the findings and conclusions set out in paragraphs that follow below, I have had regard to all of the material filed by the Applicant in these proceedings,[12] the terms of the Act, the Agreement, the Award, and the NES. I note from the outset that the Agreement expressly incorporates (at Clause 5) the terms of the Award (where not inconsistent with the Agreement), and is a rollover enterprise agreement that has been in place at the Respondent’s workplace for nearly four years (i.e. since May 2019).[13]
Resolution of Daily Hire concern
I do not accept that the Award limits the engagement of an employee on a daily hire basis to only full-time employees. The Applicant has provided an undertaking to resolve the concern that daily hire employment under the Agreement extends beyond the classifications of tradesperson and labourer. In considering this concern resolved by the undertaking, I also equally accept the submissions of the Applicant as to the industrial realities and practicalities of the undefined classification of ‘Operator’ under the Award.[14]
Resolution of Minimum Engagement concern
The Applicant has provided an undertaking to resolve any concern in relation to the interaction of the Agreement with clause 29.5(b) of the Award (i.e. as it concerns payment for minimum engagements when an employee is recalled to work overtime). In relation to clause 30.2 of the Award, I find that Clause 9.2(a) of the Agreement provides that an employee will be paid their minimum engagement period unless the employee makes an election (choice) to leave work early (whereby the employee will only be paid for time worked).[15] The ability for an employee to make their own election on this issue is not less beneficial than the Award in circumstances where an employee has a workplace right under the Agreement to elect to leave work early and be paid only for time worked, or alternatively elect (choose) to stay at work and be paid their full minimum engagement period.
Resolution of Casual Loading concern
Whilst I accept the Applicant’s construction of clause 9.3 of the Agreement,[16] to remove any concern as to this issue, the Applicant has provided an undertaking to put beyond doubt the resolution of this issue from a BOOT perspective. I note that the Applicant does not currently employ any employees on a casual basis.
Resolution of Wages, Travelling Allowance, distance travelled and living away from home allowance concerns
The Applicant has provided an undertaking that reduces the travel radius from the Applicant’s office/depot under clause 13.1 of the Agreement from 160km to 80km, along with the provision of accommodation and living away arrangements for travel beyond 80km from the Applicant’s office/depot. I find that this resolves any concerns as to these matters. Further, in accepting the submissions of the Applicant in relation to the remainder of the CFMMEU’s concerns (covering wages, travel allowance, distance travelled and living away from home allowance),[17] including from a mathematical perspective, I find that the remainder of the CFMMEU’s concerns as to these issues are without foundation.
Resolution of Superannuation and Stand Down concerns
In accepting the submissions of the Applicant,[18] I find that the provisions of the Agreement in relation to Superannuation and Stand Down are consistent with the requirements of applicable legislation. More specifically, these provisions are (respectively) not less beneficial than clause 28.5 of the Award (payment of superannuation whilst on leave), or inconsistent with Division 2 of Part 3-5 of the Act.
Resolution of Ordinary Casual Loading concern
The terms of the Agreement are to be read in conjunction with the Award. The CFMMEU’s concern in respect of this issue is without foundation.[19]
Resolution of Wet Weather concern
The terms of the Agreement are to be read in conjunction with the Award. The CFMMEU’s concern in respect of this issue is without foundation.[20]
Resolution of Annual Leave direction concern
The terms of the Agreement are to be read in conjunction with the Award, including as varied from time to time. I find that the terms of Clause 18.1 of the Agreement are not inconsistent with or less beneficial than the Award.[21] The CFMMEU’s concern in respect of this issue is without foundation.[22]
Consideration and resolution of CFMMEU’s coverage concern
The CFMMEU have also raised a concern between the answer to Question 5 of the Form F17 (referring to coverage of the Agreement as Queensland), and clauses 2 and 3 of the Agreement (referring to coverage of the Agreement across Australia). The Applicant has provided a revised F17 confirming that coverage of the Agreement is across Australia (which is consistent with the explanation provided to relevant employees as to the coverage of the Agreement). In accepting the submissions of the Applicant in respect this concern (including as to compliance with s.180(5) of the Act),[23] I note that the previous iteration of this Agreement, the DECC Environmental Pty Ltd Enterprise Agreement 2018[24] (2018 Agreement), contains the same coverage clause.
Undertakings
The Employer has provided written undertakings dated 7 May 2023. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Award) and that the undertakings do not result in substantial changes to the Agreement.
On 1 May 2023, the CFMMEU was provided with the opportunity to provide any feedback or raise any concerns in relation to the undertakings set out at Annexure A to this decision (by 5 May 2023). The CFMMEU did not provide any feedback or raise any concerns in relation to the undertakings.
Coverage of employee organisation(s)
There were no union bargaining representatives for this Agreement and thus no issue of coverage by reference to ss.183 or 201(2) of the Act arises.[25]
Conclusion
I do not accept (on the facts and circumstances of this case) that:
a) any of the omissions that might be said to arise on the face of the Form F17 (as filed originally, or in revised form) by reference to Agreement coverage or BOOT analysis (benefits/detriments); or
b) the subsequent undertakings that have been provided,
give rise to any absence of requisite satisfaction by me as to compliance with the various requirements of the Act.
The foregoing is especially so having regard to the comprehensive explanation that was provided to relevant employees as to the terms and the effects of the terms of the Agreement.[26] Again, it is worth repeating that the Agreement is a rollover which expressly incorporates the Award (where not inconsistent with the Agreement), and that the focus of any explanation of the Agreement is most appropriately directed to a comparison with the 2018 Agreement (being what currently ‘applied’ to the employment of relevant employees at the time of the vote).
There is no evidence before me at the time of making this decision to suggest that the explanation of the terms of the Agreement and the effect of those terms was impacted (detrimentally or otherwise) by any omissions or errors that might be said to arise from a review of the Applicant’s Form F17 (as filed originally, or in revised form). I note that 100 percent of relevant employees entitled to vote to approve the Agreement, all voted to approve the Agreement (in circumstances where if the Agreement was not approved, the 2018 Agreement, not the Award, would continue to apply to their employment). I reject the proposition that omissions or errors in a Form F17 automatically give rise to a concern or suspicion (prima face or otherwise) that an explanation provided to relevant employees has been unsatisfactory by reference to the requirements of s.180(5) of the Act. Of course, each case will come down to its own facts and circumstances, but evidence (beyond mere conjecture) is required to ground any collateral assertions in this regard that might be said to warrant extraordinary, further or more specific administrative (let alone myopic or inquisitorial) investigation.
For completeness, subject to the undertakings referred to above, I am satisfied that:
a) 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; and
b) the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 May 2023. The nominal expiry date of the Agreement is 9 May 2027.
DEPUTY PRESIDENT
Mr Dean Cameron, Legal Practice Director, Workforce Advisory Lawyers, appeared with permission for the Applicant.
Mr Stuart Maxwell, FED Senior Industrial Officer, appeared with leave for the Construction, Forestry, Maritime, Mining and Energy Union.
Annexure A
[1] See email from Applicant’s representative, Mr Dean Cameron, in response to Commission’s queries, 15 March 2023, 7.22pm.
[2] In other words, “written submissions … limited to the issue of the better off overall test”.
[3] By way of analogy, see Re Application by the Chief Commissioner of Police (Vic) (2005) 214 ALR 422; [2005] HCA 18, at [54], and Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1980) 147 CLR 246.
[4] CFMMEU submissions, 31 March 2023, at [7(a)].
[5] Ibid, at [7(b)].
[6] Ibid, at [7(c)].
[7] Ibid, at [7](d)-(g)].
[8] Ibid, at [7(h) and (l)]. See clauses 15 and 20.4 of the Agreement.
[9] Ibid, at [7(i)].
[10] Ibid, at [7(j)].
[11] Ibid, at [7(k)].
[12] Including the “Explaining The Terms Document” (22 February 2023, 24 pages), the email from Applicant’s representative, Mr Dean Cameron, in response to Commission’s queries, 15 March 2023 (7.22pm), and the Applicant’s Submissions, undated (filed 6 April 2023).
[13] See DECC Environmental Pty Ltd Enterprise Agreement 2018 [2019] FWCA 3051, AG2018/6784, 3 May 2019.
[14] Applicant’s Submissions, undated (filed 6 April 2023), at [7(a)-(p)].
[15] Ibid, at [7(q)].
[16] Ibid, at [7(r)].
[17] Ibid, at [7](s)-(t)].
[18] Ibid, at [7(u) and (y)].
[19] Ibid, at [7(v)].
[20] Ibid, at [7(w)].
[21] Including by reference to Determination, MA000020 PR75104, 3 March 2023, and 4 yearly review of modern awards—Plain language—Shutdown provisions [2022] FWCFB 246, 22 December 2022.
[22] Ibid, at [7(x)].
[23] Applicant’s Submissions, undated (filed 6 April 2023), at [6].
[24] [2019] FWCA 3051, AG2018/6784, 3 May 2019.
[25] Note Applicant’s Submissions, undated (filed 6 April 2023), at [2].
[26] Ibid, at [6].
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