Deicorp Pty Ltd
[2019] FWCA 8641
•20 DECEMBER 2019
| [2019] FWCA 8641 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Deicorp Pty Ltd
(AG2019/2379)
DEICORP PTY LTD ENTERPRISE AGREEMENT 2019 - 2023
Building, metal and civil construction industries | |
DEPUTY PRESIDENT MANSINI | MELBOURNE, 20 DECEMBER 2019 |
Application for approval of the Deicorp Pty Ltd Enterprise Agreement 2019 - 2023.
[1] Deicorp Pty Ltd (Deicorp) has applied for approval of a single enterprise agreement known as the Deicorp Pty Ltd Enterprise Agreement 2019-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).
[2] I have determined to approve the Agreement in accordance with the Act. The reasons for this decision follow.
Context
[3] Bargaining for the Agreement commenced on 18 February 2019. 1 Fifteen written notices of appointment were provided to Deicorp, representing an election by each individual employee to be self-represented in bargaining.2
[4] On 21 June 2019, the Agreement was made when one hundred per cent of the fifteen employees to be covered voted to approve it. 3
[5] After the application was filed, the Commission raised concerns with Deicorp and the appointed employee bargaining representatives about whether the Agreement contradicts s.55 and passes the “better off overall” test.
[6] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was not a bargaining representative for the Agreement but sought to address the Commission in relation to additional concerns about whether the pre-approval steps were met and the Agreement passes the better off overall test. 4 Pursuant to s.590, the CFMMEU was invited to inform the Commission in relation to its specified objections. Deicorp did not oppose.
[7] Written materials were exchanged and a hearing took place on 8 October 2019. An undertaking was subsequently provided.
The “better off overall” test
[8] If approved, the Agreement would replace the existing Deicorp Enterprise Agreement 2013-2017 (2013 Agreement) and cover all employees of Deicorp where Deicorp undertakes construction work, including maintenance work (and not limited to State, Territory or region of Australia). 5 It is to be assessed against the Building and Construction General On-Site Award 2010 (Award).
Statutory framework
[9] The Commission must be satisfied that the Agreement passes the “better off overall test” in assessing whether it must be approved in accordance with the Act. 6
[10] An enterprise agreement passes the better off overall test if the Commission is satisfied, as at the time the application is made, that each award covered employee and each prospective award covered employee for the enterprise agreement would be better off overall if the enterprise agreement applied, than if the modern award applied. 7
[11] It is clear from the references to “each award covered employee” 8 and “each prospective award covered employee”9 in s.193(1) that every employee and prospective employee must be assessed as better off overall under the Agreement than if the relevant modern award applied to that employee or prospective employee, as at the test time.10 However, s.193(7) permits the Commission to be satisfied, in particular circumstances, that all employees and prospective employees in a class of employees or prospective employees will be better off if the enterprise agreement applied to that class than if the relevant modern award applied to that class.11
[12] The application of the better off overall test requires the identification of agreement terms which are more beneficial, and the terms which are less beneficial, and then an overall assessment is made as to whether employees would be better off overall under the agreement than the relevant award. 12 The difficulties that often arise in assessing contingent, and non-financial, terms is explained in Coles.13
Would employees be “better off overall” under the Agreement?
[13] It is not disputed that the wage rates in the Agreement are higher than the relevant comparator in the Award in each case. On the Commission’s assessment, the range is between 2.78% - 17.08% above Award calculated on the standard industry 50 hour working week and taking into account applicable allowances and loadings. 14
[14] The Commission initially raised concerns about the following:
a) The intended operation of the “Full-time or Part-time Daily Hire Employee” classification at cl.4.1.1(a) when read with cl.12.1 of the Agreement, which was unclear in terms of the entitlement to termination pay or otherwise; and
b) The rates of pay for a Junior Trainee under the Agreement.
[15] The CFMMEU subsequently raised two concerns about whether employees would be better off overall under the Agreement, as follows:
a) The living away from home allowance (LAHA) at cl.6.4.4 of the Agreement, which it said is $3.40 per week less than that in the Award; and
b) The crib break provision at cl.7.6.1 of the Agreement is detrimental when compared to the Award entitlement at cl.35.3(b) of the Award, because it does not include the initial 20 minute paid crib break and which it said can not be offset by a productivity allowance or other payment because it contains non-monetary benefits directed at ensuring the health and safety of employees.
[16] Ultimately, Deicorp sought to address these concerns as follows:
a) It clarified that the Agreement does not permit “weekly hire” and accordingly cl.12.1 is consistent with the daily hire arrangements in cl.4.1.1;
b) It identified two typographical errors in the materials filed and applied to amend the application under s.586, by filing an amended Agreement page;
c) It clarified that Junior Trainee rates under the Agreement are higher than the corresponding Award rates, in each case; 15
d) Although LAHA does not presently apply to any employee to be covered, in acknowledgement that a prospective employee may be engaged in this class, an undertaking was proposed in relation to the LAHA concern; and
e) It argued that the crib break entitlements are incorporated into and sufficiently offset by the productivity allowance at Table E of Appendix 2 in the Agreement.
[17] In the circumstances, I am satisfied that the corrections sought at [16](b) above should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.
[18] On an analysis of the materials before the Commission, it is apparent that the Agreement includes at least the following financially more beneficial terms:
a) Higher wage rates for each classification of employee and prospective employee to be covered;
b) A productivity allowance (which includes a factor for applicable allowances);
c) Higher superannuation contributions, being calculated on higher wage rates; and
d) Higher overtime rates, being calculated on higher wage rates.
[19] Two less beneficial terms have been identified.
[20] The first less beneficial term is the lesser value of the LAHA allowance under the Agreement which will apply under cl.6.4.4 of the Agreement only where Deicorp does not provide the Employee with accommodation under cl.6.4.2. To the extent that Deicorp is conceivably able, under the Agreement if approved, to require that an employee provides their own accommodation I am satisfied that the lesser LAHA allowance would be a financial detriment under the Agreement when compared to the Award. Deicorp has provided a proposed undertaking to address this concern which I am satisfied neutralises the impact of the detriment for the purposes of conducting the better off overall assessment.
[21] The second less beneficial term is the crib break entitlement for overtime worked, at cl.7.6.1 of the Agreement. I am satisfied that the Agreement includes a detriment to the extent that the Award would provide an additional 20 minute paid crib break immediately after the usual finishing time for 2 hours’ overtime worked, which is not provided in the Agreement. I accept that this may be considered both a financial and a non-financial detriment for the purposes of the better off overall test. To the extent that this is a non-financial detriment, the value is difficult if not impossible to quantify. It is noted that the Agreement does provide for regular crib breaks in circumstances of overtime worked in four hour blocks and also includes a commitment to work health and safety at cl.14.
[22] The assessment of the better off overall test will logically focus attention on matters that are objectively verifiable as relative benefits or detriments, including in particular the number of hours that employees can be required to work and the payments employees receive for doing so. 16 The analysis inquires whether employees would be better off overall under the Agreement than under the relevant award, not better off on a line by line or itemised basis. It is plainly permissible under the Act to trade off or vary Award conditions in making an enterprise agreement. In making this assessment, I observe that the nature of the detriment identified, as well as in the context of the global or overall assessment, is plainly distinguishable from the circumstances to which the Commission was referred in Perth Access Scaffolding Pty Ltd.17
[23] On a global assessment, I am satisfied that even taking into account the one provision of the Agreement identified as a financial and non-financial detriment when compared to the relative award provision, this will not result in the Agreement failing the better off overall test because there are other, sufficiently more, beneficial provisions to outweigh the detriment.
[24] A written undertaking was given in accordance with s.190 of the Act (attached at Annexure A) (Undertaking). The employee bargaining representatives did not oppose the Undertaking. I am satisfied that the Undertaking will not cause financial detriment to any employee covered by the Agreement and that the Undertaking will not result in substantial changes to the Agreement.
Was the Agreement “genuinely agreed”?
[25] The CFMMEU invited the Commission to find that the Agreement was not “genuinely agreed” within the meaning of s.188 of the Act. Specifically, it said Deicorp had not met its statutory obligation to take all reasonable steps to ensure the giving of or access to materials incorporated by reference in the Agreement in accordance with s.180(2).
[26] A further concern arose from Deicorp’s response to the concerns raised, regarding whether the terms and effect of the Agreement had been explained as required by s.180(5).
Statutory framework
[27] The starting point under the legislation is that the Commission is required to approve an enterprise agreement if the requirements of ss.186 and 187 are met.
[28] Section 186(2)(a) provides that the Commission must be satisfied that the Agreement has been “genuinely agreed” by the employees covered by the agreement.
[29] Section 188 defines when employees have genuinely agreed. It establishes a set of requirements, each of which must be satisfied if the necessary finding is to be made under s.186(2)(a).
The s.180(2) objection
[30] Section 188(1)(a)(i) requires compliance with s.180(2), which provides that before an employer requests that employees approve a proposed enterprise agreement by voting for the agreement, the employer must take all reasonable steps to ensure that the relevant employees are:
a) given a copy of the written text of the agreement and any other material incorporated by reference in the agreement, during the access period; or
b) have access to a copy of those materials, throughout the access period.
[31] The access period is the seven day period ending immediately before the start of the voting process to approve the proposed enterprise agreement. 18
[32] The nature of, and what is required to comply with, the pre-approval step at s.180(2) is detailed in BGC Contracting Pty Ltd 19 (BGC). The “evident purpose” was aptly summarised as:
“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 [sic] it. 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 means, or through a combination of those means..” 20
[33] Having regard to this and other related authorities, 21 a key question will be whether all reasonable steps were taken to ensure the satisfaction of s.180(2)(a) or (and perhaps also) (b), having regard to the particular circumstances of the application, the business and the relevant employees. In this context, the word “all” does not mean every imaginable step that is available must be taken. It is the steps that are reasonable in the circumstances and which are directed to achieving the ends specified in s.180(2) that are to be taken.22
The s.180(5) concern
[34] Similarly, s.188(1)(a)(i) requires compliance with s.180(5), which provides that the employer must take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained to the relevant employees in an appropriate manner taking into account any particular circumstances and needs.
[35] Whilst (unlike s.180(2)) the statute does not specify a time for compliance with s.180(5), the “evident purpose” was described in Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Limited as “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”. 23
[36] Again, a key question will be whether “all” reasonable steps were taken, and what is reasonable will depend on the particular circumstances of the case.
The s.188(2) saving provision
[37] A further consideration has arisen since the introduction of s.188(2), 24 which provides a means for the Commission to conclude that an enterprise agreement has been genuinely agreed for the purposes of s.186(2)(a), despite “minor procedural or technical errors” as follows:
“(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) The agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
(b) The employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174.”
[38] Consideration of the genuineness of agreement under s.188(1) and (2) involves an evaluative assessment. A Full Bench of the Commission in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 25 enunciated a number of propositions regarding the proper construction of s.188(2), including to clarify that the “latitude as to the choice of the decision to be made is quite narrow in that the decision maker is required to conclude that the agreement was genuinely made if he or she forms a particular opinion or value judgement”.26 Again the particular circumstances of the case, including factors such as the impact of the error, is necessary in making this assessment.
Did Deicorp take all reasonable steps to ensure that the relevant employees were given and/or had access to the Agreement and materials incorporated by reference (s.180(2))?
[39] It is not disputed that Deicorp discharged its obligation under s.180(2) to ensure that the relevant employees were given the Agreement during and/or had access to the Agreement throughout the access period. The central issue is whether Deicorp so complied in relation to the Award.
[40] The statutory access period was 14 to 20 June 2019 inclusive and does not include the hours and minutes preceding the vote on 21 June 2019. 27
[41] It is common ground that the Award is expressly incorporated by reference in the Agreement. 28 If approved, the Agreement will operate to incorporate any provisions of the Award on which the Agreement is silent. This means that certain provisions of the Award will operate as a term of the Agreement, which may only be understood by reference to the Award itself.
[42] The evidence of the steps Deicorp took to give access to the Award was initially limited to that contained in the statutory declaration accompanying the application. 29 In it, Mr Vorbach declared that the steps taken by Deicorp in an effort to comply with s.180(2) were:
a) On 6 June 2019, all relevant employees to be covered by the Agreement were emailed a copy of the proposed enterprise agreement;
b) On 6 June 2019, all relevant employees to be covered by the Agreement were emailed a “How and When for Approval” form (Form) which, among other things provides: “You can access the Award by clicking the following link: Building and Construction General On-site Award 2010”. 30
[43] At the hearing, in response to the Commission’s inquiries, Mr Vorbach gave some further evidence as follows:
a) The proposed enterprise agreement and the Form were also delivered to employees at their individual work sites; and
b) The methods of distribution and access to the Award are reasonable for the relevant employees because it is the most convenient way to provide them with the material, they each have access to the internet via a mobile device, as well as via computer terminals in site sheds at worksites, and there are some regular communications by Deicorp that occur in this way. 31
[44] In cross-examination, Mr Vorbach did not accept the proposition put by the CFMMEU that the relevant employees, being building and construction workers, would not all be familiar with and trained in proficient use of internet communications and use of computers.
[45] Deicorp properly did not seek to argue that it had taken steps to discharge the obligation at s.180(2)(a) in relation to the Award. In summary, Deicorp argued that the Commission should find the steps taken to be in satisfaction of s.180(2)(b), sufficient and distinguishable from that in BGC, because:
a) the Form was distributed prior to the start of the statutory access period;
b) the hyperlink embedded in the Form meant that employees were “taken directly to the text of the Award” rather than “required to search through a list of awards to locate the applicable Award”; and
c) the employees were already “well familiar” with the terms of the Award and where it can be accessed, being a document that was referenced in the presently applicable 2013 Agreement and an understanding of which is necessary to understand the presently applicable terms and conditions of employment.
[46] Additionally, Deicorp submitted that the Commission ought adopt the approach in McDonalds, even if not universally applicable, and be satisfied of compliance with s.180(2) because the employees also had access to the Award as a publicly available document. It said the Award is as readily available in the public domain as legislation (as was the case in McDonalds) and better known to employees working in the building and construction industry.
[47] Finally, Deicorp submitted that the Agreement is a “roll over” of the 2013 Agreement (with some updates and amendments) and this fact should inform the context in which the consideration of s.180(2)(b) is to be undertaken.
[48] The CFMMEU’s objection was not supported by any evidence. Notwithstanding, it argued that the steps taken do not amount to all reasonable steps, including because of the particular characteristics of the building and construction industry and those that work in it. The CFMMEU invited the Commission to reject the authority in McDonalds and also submitted that the Agreement is not properly described as a “roll over” of the 2013 Agreement because the 2013 Agreement did not incorporate the Award.
[49] Deicorp described the objection as “fine”, and asked the Commission to accept that the lack of evidence in support of the objection suggests that the true motive of the CFMMEU is to delay and defeat the Agreement in circumstances where it was not a bargaining representative. Deicorp also argued that the CFMMEU seeks to reverse the onus of proof and it is for the objector to disprove an applicant’s contention that all reasonable steps were taken.
[50] Having regard to all of the materials before the Commission and taking into account all of the submissions, I find as follows.
[51] I am satisfied that the Form including an electronic hyperlink to the Award was distributed to employees (by email and hard copy on work sites) before the commencement of the statutory access period.
[52] I consider that access to the Award via the electronic hyperlink in the Form may be enabled by email distribution and, to the extent that the relevant employees were able to access email and the internet, this constitutes a reasonable step for the purposes of s.180(2).
[53] The physical distribution of the hard copy Form including the electronic hyperlink is not of itself a reasonable step because it did not describe the source at which the linked document could be accessed (in contrast to minutes of a meeting after the access period ended, on 21 June 2019, which provided the source web address). 32 However, when regard is had to the availability of the Award in the public domain which is easily identifiable by a basic internet search, together with the hard copy Form, this may amount to a reasonable step, again to the extent the employees were able to access the internet.
[54] The objection may be fine but the evidence presented to the Commission in support of the application was lean. The real difficulty is that there is insufficient evidence to satisfy the Commission that the steps taken were all reasonable steps in the circumstances. There is no evidence that each relevant employee has or was able to access email. Deicorp did not provide records to the Commission and the evidence that was provided was on information and belief, not directly held. Although, on the Commission’s assessment, there are only a relatively small number of (in each case more beneficial, not substantive) terms of the Award which would apply as terms of the Agreement, regard must be had to the Award to appreciate all of the terms the Agreement. In the context and circumstances of this application, I consider it entirely reasonable for a hard copy of the Award to have been made available on worksites along with a copy of the Agreement (which was distributed in this way).
[55] On the evidence before the Commission, I am not satisfied that Deicorp has met the obligation to take all reasonable steps to ensure access to the Award in the circumstances and has not strictly complied with s.180(2). 33
A consequential concern – did Deicorp take all reasonable steps to explain the terms and effect of the Agreement in an appropriate manner (s.180(5))?
[56] A consequential concern arose from Deicorp’s response to the s.180(2) objection and the “better off overall” concerns, regarding whether the terms and effect of the Agreement were explained to the relevant employees in an appropriate manner as required by s.180(5).
[57] In summary, the CFMMEU’s objection was as follows:
a) the Award was not incorporated in the 2013 Agreement, meaning the Agreement is not a roll over Agreement and Deicorp’s submission to the Commission was inaccurate in this respect; and, in any event
b) the substantial number of changes to the Award since the 2013 Agreement was made impacts the terms of the Agreement and effect of the Agreement’s terms (it pointed to two main provisions, accident pay and flexibility arrangements, in this respect),
therefore a detailed explanation was required to discharge the obligation under s.180(5).
[58] The CFMMEU also argued that the identified detriments (LAHA allowance and crib break) were not disclosed to the Commission in the statutory declaration and an inference can be drawn that these detriments were not adequately explained to the employees.
[59] The statutory declaration accompanying the application declares that the terms and effect of the Agreement were explained and discussed in a meeting with all relevant employees on 21 June 2019. A contemporaneous record of that discussion, which was used to deliver the explanation, was attached and included:
“Notable provisions in the Enterprise Agreement
Relevant Award
• The proposed Enterprise Agreement incorporates specific provisions from the Building and Construction General On-Site Award 2010. This can be found electronically at:
[60] The record does not suggest that there was any explanation of the LAHA allowance or crib break provisions. It includes other references to discussion about the Award but does not detail specific provisions of the Award that were discussed.
[61] The evidence contained in the statutory declaration was not able to be expanded on or tested at the hearing because Mr Vorbach was not present in the meeting on 21 June 2019. His evidence was based on information and belief, in reliance on discussions with Deicorp’s Construction Manager and Accounts Manager.
[62] On the evidence before the Commission, I am satisfied that Deicorp delivered an explanation of the terms and effect of the Agreement to the relevant employees in a face to face meeting, before conducting the vote.
[63] I do not accept that Deicorp has inaccurately represented the similarities between the Agreement and its predecessor. The Agreement, even if not a rollover of the 2013 Agreement on a line by line basis, is in similar terms. On a plain read, it is apparent that the Award is not incorporated but is referenced in the 2013 Agreement. However, the record of the explanatory discussion shows that this substantive change (along with the few other substantive changes) was discussed with each of the relevant employees. Having regard to the relatively few provisions of the Award which would apply via incorporation as a term of the Agreement, none of which could be described as substantive and all of which could be described as a benefit to employees, I do not consider it essential to have identified each incorporated Award condition, in the explanation to employees.
[64] On the basis of the Undertaking proposed by the Deicorp, I consider the identified detriment in the LAHA to be cured such that it would not prevent approval for the purposes of s.180(5). 35 The other identified benefits and detriment are assessed as resulting in employees being better off overall under the Agreement than if the Award applied. I accept the evidence of Mr Vorbach that he misunderstood the question at item 3.5 of his statutory declaration and consider there is nothing inconsistent or deficient about the explanation on the evidence before the Commission in this respect.
[65] Again, the evidence in support was lean and not able to be tested. However, I find the contemporaneous record of the explanation to employees, that all fifteen employees attended the explanatory discussion and the fact of the very similar terms and conditions on which they were being asked to vote to be compelling.
[66] Accordingly, I am satisfied that Deicorp took all reasonable steps in accordance with s.180(5).
Can s.188(2) come to the rescue?
[67] As I am not able to be satisfied that all reasonable steps were taken to comply with the pre-approval steps at s.180(2), I am required to consider whether this is an appropriate case to exercise the discretion at s.188(2) such that the Agreement must be approved subject to the other approval requirements in the Act and notwithstanding the strict non-compliance with s.180(2).
[68] Deicorp argued that the discretion ought be engaged, including because it took steps to provide access to the Award (ie it was not completely non-compliant) in the way it perceived to be most convenient to the relevant employees. It argued that the decision in Greenfreight 36 supports this approach. It was also argued that the Commission should accept the choice of the relevant employees not to participate in the proceedings or seek to address the Commission about their concerns as indication that they do not hold any concerns and support the approval of the Agreement.
[69] The CFMMEU opposed on the basis that the Parliament did not intend for s.188(2) to be used in cases of substantial yet incomplete non-compliance. It argued that Greenfreight is distinguishable because the Agreement is not a rollover agreement given the 2013 Agreement did not incorporate the Award.
[70] On the evidence and materials before the Commission, in all of the circumstances of this case and having regard to Huntsman, I am satisfied that this is precisely a scenario that Parliament intended would engage the discretion under s.188(2). Specifically:
a) Deicorp’s failure to take all reasonable steps to ensure employees were given or had access to the Award in accordance with s.180(2) was a procedural or technical error and there is no evidence to suggest this was deliberate or intentional non-compliance;
b) The error was minor in that some steps were taken to provide employees with access to the Award and the Award was available in the public domain;
c) But for the minor procedural or technical error concerning compliance with s.180(2) as mentioned in s.188(1)(a)(i), the Agreement would have been genuinely agreed within the meaning of s.188(1); and
d) The employees covered by the Agreement were not likely to have been disadvantaged by the error, including because the then applicable 2013 Agreement also referenced the Award indicating employees were already familiar with its existence (if not through other means, sources and experience).
[71] In all of the circumstances and having regard to the decision in Huntsman, I am satisfied that the Agreement was genuinely agreed within the meaning of s.188(2).
Conclusion
[72] For the above reasons and on the basis of the material contained in the amended application, accompanying statutory declaration of Deicorp, further information provided and the Undertaking, 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.
[73] Noting clauses 3.4.4 and 3.4.5 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act will prevail to the extent of any inconsistency with the Agreement.
[74] Pursuant to s.201(3) of the Act, the Undertaking is taken to be a term of the Agreement.
[75] The Agreement is approved and will operate from 27 December 2019. The nominal expiry date of the Agreement is 20 December 2023.
[76] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 37
DEPUTY PRESIDENT
Annexure A
1 Form F17 at 2.3.
2 Attached to the Form F17.
3 Form F17 at 2.10.
4 CFMMEU Submissions dated 26 August 2019.
5 Clauses 3.3, 2.12 and 2.3 of the Agreement.
6 Pursuant to s.186(2) of the Act.
7 ss.193(1) and (6) of the Act.
8 Defined at s.193(4) of the Act.
9 Defined at s.193(5) of the Act.
10 Solar Systems Pty Ltd [2012] FWAFB 6397 at [11]; Hart v Coles Supermarkets Australia Pty Ltd [2016] FWCFB 2887 at [6], [15]; SDAEA v Beechworth Bakery [2017] FWCFB 1664 at [11].
11 Loaded Rates Agreements [2018] FWCFB 3610 at [102]-[103].
12 Re Armacell Australia Pty Ltd (2010) 202 IR 38 at [41].
13 Hart v Coles Supermarkets Australia Pty Ltd and others [2016] FWCFB 2887 (Coles).
14 Construction, Forestry, Maritime, Mining and Energy Union v Allstyle Concrete[2018] FWCFB 3823. Note the Commission’s assessment excludes Trainees, which were dealt with separately as part of a concern raised by the Commission and subsequently addressed by Deicorp.
15 Deicorp Submissions dated 14 August 2019.
16 BOC Limited [2019] FWCA 5544 at [9].
17 [2016] FWC 8042.
18 Section 180(4).
19 [2018] FWC 1466.
20 At [36].
21 Including, for example, McDonalds Australia Pty Ltd [2010] FWAFB 4602, (2010) 196 IR 155 (McDonalds) and Construction, Forestry, Mining and Energy Union v Sparta Mining Services Pty Ltd[2016] FWCFB 7057.
22 BGC at [39]-[42].
23 [2019] FWCFB 4022 (Ditchfield) at [71] and [72].
24 Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (commenced on 12 December 2018).
25 [2019] FWCFB 318 (Huntsman).
26 Ibid at [41].
27 Item 2.9 of the Form F17 and on the interpretation of a Full Bench in CFMMEU v CBI Constructors Pty Ltd[2018] FWCFB 2732.
28 Clauses 3.4.2 and 3.4.3 of the Agreement; Deicorp Submissions dated 28 August 2019 at paragraph 13.
29 Form F17 at 2.5.
30 Attached to the Form F17.
31 Item 2.6 of the Form F17 and at the Hearing on 8 October 2019.
32 Attached to the Form F17.
33 Greenfreight Logging (NSW) Pty Ltd [2019] FWCA 1954 (Greenfreight)at [11].
34 Form F17 at Item 2.7 and attached.
35 CFMMEU and others v Specialist People Pty Ltd [2019] FWCFB 7919 at [23].
36 Deicorp’s Submissions dated 17 September 2019.
37 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.
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