Gold Fields Australia Pty Ltd
[2022] FWCA 1158
•24 JUNE 2022
| [2022] FWCA 1158 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
s.210—Enterprise agreement
s.217—Enterprise agreement
Gold Fields Australia Pty Ltd
(AG2022/819 & AG2022/1393)
Gold Fields Companies Enterprise Agreement 2022
| Mining industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 24 JUNE 2022 |
Application for the approval of Gold Fields Companies Enterprise Agreement 2022 – Application for variation of the Gold Fields Companies Enterprise Agreement 2022
The application, issues, and conclusion
On 21 March 2022 Gold Fields Australia Pty Ltd (the Applicant) made an application for the approval of an enterprise agreement known as the Gold Fields Companies Enterprise Agreement 2022 (the 2022 Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
The primary activity of the Applicant is gold mining. The Agreement in question will not only cover the Applicant but also several of its related entities, including, Agnew Gold Mining Company Pty Limited, GSM Mining Company Pty Ltd, St Ives Gold Mining Company Pty Limited, and Gruyere Management Pty Limited.
Coverage of the Agreement also extends to the employees of the abovementioned employers. However, excluded from the group are employees in pastoral industry roles (one pastoral employee), senior and executive level employees of the business (amounting to approximately 64 employees), and employees in construction roles
These exclusions are relevant because the predecessor to the Agreement, namely the Gold Fields Companies Enterprise Agreement 2018 (the 2018 Agreement),[1] extended coverage to those senior and executive level employees, who are now to be excluded in the 2022 Agreement. However, the senior and executive level employees would, absent termination of the 2018 Agreement, remain covered by it.
The Applicant has however also applied under s 222 of the Act to terminate the 2018 Agreement.[2] The nominal expiry date of the 2018 Agreement is 30 April 2022.
Returning to the 2022 Agreement, the nominal expiry date for this agreement is also 30 April 2022. The 2022 Agreement refers to an ‘End Date’ which means the earlier of: (a) 30 April 2022; and (b) the fourth anniversary of the date on which the 2022 Agreement is approved by the Commission.[3] Clause 4.1 of the 2022 Agreement reads that the 2022 Agreement will nominally expire on the End Date.
On first blush it appears unusual for an applicant to bargain for an enterprise agreement and thereafter ask its some 1735 employees to vote on that same agreement in circumstances where the nominal expiry date of that agreement is two months after the vote closed. It perhaps comes as no surprise that the Applicant, in addition to making the application under s 185 and the application under s 222 to terminate the 2018 Agreement, has also filed two variation applications in respect of the seemingly problematic nominal expiry date.
The Applicant filed the first variation application on 29 March 2022. The application was made under s 217 of the Act to vary the definition of ‘End Date’ in clause 3.1 of the 2022 Agreement, on the basis that the 2022 Agreement contained an ambiguity or uncertainty.
However, a second variation application was filed on 9 May 2022. This application was made under s 210 of the Act, and the Applicant requested that the Commission address this second variation application before considering the first variation application. The Applicant had asked its employees to approve a variation to the definition of ‘End Date’ in the 2022 Agreement. I will address variation applications at a later point in this decision.
The Australian Workers’ Union (AWU) was a bargaining representative in the negotiations for the 2022 Agreement and whilst it gave notice under s 183 of the Act that it wanted the 2022 Agreement to cover it, it raised a number of concerns which it said, had resulted it in it being unable to indicate whether it supported or opposed the approval of the 2022 Agreement in its current state. Whilst there were concerns raised, neither the Applicant nor the AWU decided to progress the matter to hearing, with both content to have the matter determined on the papers.
Returning to the concerns, four were raised. They included whether: (a) the 2022 Agreement had been genuinely agreed, as required by s 186(2)(a) of the Act; (b) the cohort had been fairly chosen; (c) the 2022 Agreement passed the better off overall test (BOOT); and (d) the terms of the 2022 Agreement contravened the National Employment Standards (NES).
The AWU gave two reasons why it considered that the Commission could not be satisfied that the 2022 Agreement had been genuinely agreed to, as required by s 186(2)(a) of the Act.
The first reason arose from the question asked in the voting ballot. The AWU submitted that it appeared from the documents that the Applicant had uploaded to an employee portal prior to the vote, that the employees were being asked:
Do you vote to approve the Gold Fields Companies Enterprise Agreement 2022 and terminate the Gold Fields Companies Enterprise Agreement 2018?
The AWU submitted that if employees were asked a double-barrelled question, then their approval of the 2022 Agreement was not genuinely agreed. The AWU argued that this was because the employees were limited to answering the question in the following terms:
a) Yes, to the termination of the 2018 Agreement and yes, to the approval of the Agreement’
b) No, to the termination of the 2018 Agreement and no, to the approval of the Agreement.
The AWU submitted, that the Applicant had denied its employees the opportunity to answer each question directly, with the result that the employees who wanted to answer ‘yes’ to one question and ‘no’ to another were prevented from giving such responses.
The second reason concerned the nominal expiry date of the 2022 Agreement and the explanation that the Applicant had provided to employees.
The Applicant submitted that the nominal expiry date was an oversight, having been in the template 2018 Agreement which had been used as a base for the 2022 Agreement. According to the Applicant, it simply had not been updated to reflect the contemporaneous date of 30 April 2026. Whilst acknowledging that the Applicant had submitted the nominal expiry date in the 2022 Agreement was written in error or oversight and had lodged two applications to vary it, the AWU submitted that the Applicant should still establish it took all reasonable steps to ensure that the terms of the Agreement and the effect of those terms, were explained to the relevant employees including that the proposed Agreement had a particular nominal expiry date.
Referring to whether the employee cohort had been fairly chosen, the AWU pointed to the 2022 Agreement not covering all employees of the Applicant, therefore rendering it necessary for the Commission to take into account whether the group was geographically, operationally, or organisationally distinct.
The AWU pressed that it would be unfair to limit the scope of the 2022 Agreement to exclude a small minority of employees (less than 5%), particularly the one pastoral employee, who had been covered by the 2018 Agreement. In this respect, the AWU noted that this employee would have no enterprise agreement or award minimum wages or conditions of employment if the Applicant’s application to terminate the 2018 Agreement was successful.
The AWU also pointed to the BOOT issues that the Commission had raised with the Applicant on receipt of its application by my Chambers. The AWU submitted that in the absence of undertakings or further evidence satisfying the Commission that the 2022 Agreement passed the BOOT, then the 2022 Agreement must not be approved.
In respect of issues pertaining to the NES, the AWU noted those which had been identified by the Commission and in addition, drew attention to clause 16.4 of the 2022 Agreement, which it said permitted the employer, in certain subjective circumstances, to require an employee, prior to the employer granting personal leave, to be examined by an employer nominated medical practitioner who would provide the employer with a particular summary report.[4] The AWU contended that clause 16.4 of the 2022 Agreement contravened the Act by extending the permissible evidence requirement beyond the limitations defined by s 107.
Regarding the NES issues, the AWU submitted that if they were unresolved by undertakings, then the Commission should not approve the 2022 Agreement.
Whilst the AWU raised several concerns in respect of approving the 2022 Agreement, I have nevertheless concluded for the reasons that follow that the 2022 Agreement can be approved and have also permitted the variation to the 2022 Agreement pursuant to the Applicant’s application under s 210 of the Act, and in the alternative under s 217 of the Act.
Background
Before addressing the multiple issues raised by the AWU, the background to the applications warrants examination.
On 31 January 2021, the Applicant issued a Notice of Employee Representational Rights to employees who would be covered by the 2022 Agreement.
Mr Adrian Dinelli, Senior Advisor – Employee Relations, gave evidence on behalf of the Applicant. Mr Dinelli said he had been a bargaining representative for the employers who were to be covered by the 2022 Agreement,[5] and the employers were also represented by two other employer bargaining representatives, Mr Michael Spencer, Manager Employee Relations, and Mr Graeme Owens, Vice President Operations Australia.[6]
Mr Dinelli stated that during the bargaining meetings, Mr Spencer made clear to all bargaining representatives that the employers were seeking a new agreement with a term of around four years.[7]
The Applicant submits that on 8 February 2022 a Slide Pack was provided to all employees covered by the 2022 Agreement, via the online portal it had established. The Applicant explained that the Slide Pack was also presented:
a) to employees by its Human Resources personnel at all of the Applicant's various sites between 9 and 14 February 2022; and
b) by the Applicant to the employee bargaining representatives between 15 and 18 February 2022.
At slide 20 of the Slide Pack, a timeline of the 2022 Agreement making process was provided. That timeline identified that a ‘Vote to approve a new agreement and terminate old agreement’ would occur on or about 2 March 2022, prior to the nominal expiry date of the 2018 Agreement.
On 11 February 2022, the Applicant distributed to all employees a ‘Frequently Asked Questions’ document via email. The document confirmed the date, time, and method of the termination vote.[8]
On 23 February 2022, the Applicant provided a letter to employees with the subject line, ‘[V]oting Information for the Gold Fields Companies Enterprise Agreement 2022’ (Voting Information).[9] The Voting Information set out that the employees would be asked via SMS, ‘[D]o you vote to approve the Gold Fields Companies Enterprise Agreement 2022 and terminate the Gold Fields Companies Enterprise Agreement 2018?’.[10] A ‘How to Vote’ document was also issued on this same date and again included the abovementioned question.[11]
Accompanying the Voting Information and How to Vote documents, was a document titled ‘Update Memorandum’, which was also distributed to employees on 23 February 2022. In that that document the Applicant outlined what it considered to be the main changes to the 2018 Agreement, which had been agreed. One of the changes included that the scope of the 2022 Agreement would not include some senior leaders and executive level employees such as site leadership teams and the regional leadership team.[12]
Human Resources teams at each of the Applicant’s sites were said to have discussed the contents of the Update Memorandum at the next possible team meeting either later that afternoon on 23 February 2022 or the next morning, and a physical copy of the Update Memorandum was made available on noticeboards on site.[13]
To summarise, on 23 February 2022, the Applicant also provided copies of the following to all employees who would be voting on the 2022 Agreement:
a) a copy of the proposed 2022 Agreement;
b) a ‘summary of changes’ document which compared the proposed 2022 Agreement with the previous agreement;
c) a ‘Frequently Asked Questions’ document; and
d) a copy of the PowerPoint presentation used in the abovementioned presentations.[14]
The Frequently Asked Questions document set out that the 2022 Agreement would come into effect seven days after it had been approved by the Commission and that it would be ‘effective for four (4) years’.[15]
The vote to approve the 2022 Agreement took place between 3 March 2022 and 10 March 2022.[16] The 2022 Agreement was approved by 87% of the employees who voted (1,422 voted and 1,237 voted in favour of the Agreement.[17]
Mr Dinelli stated that on 21 March 2022, he held a meeting via Microsoft Teams with the employee bargaining representatives for the 2022 Agreement and advised them of the Applicant’s intention to apply for a variation of the 2022 Agreement to remove an uncertainty by rectifying the error in the ‘End Date’ within the 2022 Agreement. Mr Dinelli continued that he advised that the employers would be applying to amend the words ‘30 April 2022’ to read ‘30 April 2026’.[18]
Genuinely agreed
The legislative provisions relevant to whether agreement has been genuinely agreed to by the employees covered by the agreements are as follows.
Section 186(2)(a) provides:
(2) The FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement.
Briefly stated, the matters considered when determining whether an enterprise agreement has been genuinely agreed to by the employees covered by an agreement are set out in s 188(1); summarised as follows:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
• s 180(2): the employer must take all reasonable steps to ensure that during the ‘access period’[19] the ‘relevant employees’[20] are given a copy of the text of the agreement and any material incorporated by reference into it, or have access throughout the access period to a copy of those materials;
• s 180(3): the employer must take all reasonable steps to notify the relevant employees by the start of the access period of the time and place at which the vote will occur and of the voting method;
• s 180(5): the employer must take all reasonable steps to ensure that the terms of the agreement and their effect are explained to the relevant employees in an appropriate manner taking into account the employees’ particular circumstances and needs; and
• s 181(2): that the employer not request employees to approve the agreement by voting on it until at least 21 days after the day on which the last ‘notice of employee representational rights’ (NERR) under s.173(1) is given; and
(b) the agreement was made by an employee vote in accordance with ss.182(1) or (2); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.[21]
The Full Bench majority in Ostwald Bros Pty Ltd v CFMEU,[22] described the operation of s 188(1) (then numbered s 188) in broad terms as follows:
‘[78] … “Genuinely agreed”, in s.188 is expressed in terms of satisfaction that particular bargaining provisions within the Act have been complied with (ss.188(a) and (b)) and satisfaction of a more general criterion in s.188(c), rather than in terms of a general consideration of whether in the circumstances of a particular agreement a member is satisfied that the agreement has been genuinely agreed to by the employees.
[79] As the Full Bench in Galintel noted “Section 188 establishes a set of requirements, each of which must be satisfied if the necessary finding is to be made under s186(2)(a)”.
[80] Section 188 of the Act does not provide a wide general discretion for determining whether employees have genuinely agreed to an enterprise agreement focussed at the point of approval. Rather it requires specific actions to have been undertaken (in ss.188(a) and (b) at specified times in advance of approval), with s.188(c) then requiring satisfaction that there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees. Section 188(c) of the Act, although itself a broad discretionary consideration, is an additional matter about which [the Commission] needs to be satisfied and relates to grounds other than those arising in relation to the ss.188(a) and (b) matters.
[81] Section 188 of the Act is different, in that respect, from some previous statutory provisions concerning genuine agreement or genuine approval of agreements which were cast in general terms. For example, s.170LT (Certifying an Agreement) of the Workplace Relations Act 1996’.[23] (Citations omitted)
The AWU’s first concern was that the 2022 Agreement may not have been ‘genuinely agreed’ as that term is understood pursuant to ss 186(2)(a) and 188(1) of the Act, because of the use of a ‘double barrelled’ vote question.
The AWU submitted, and the Applicant confirmed it to be the case, that the Applicant had uploaded to an employee portal prior to the vote, the question:
Do you vote to approve the Gold Fields Companies Enterprise Agreement 2022 and terminate the Gold Fields Companies Enterprise Agreement 2018? Reply YES or NO.
The AWU submitted that if the employees were asked the abovementioned question, then they had not genuinely agreed to approve the Agreement. This was because the employees were limited to answering:
a) Yes, to the termination of the 2018 Agreement and yes, to the approval of the 2022 Agreement’; or
b) No, to the termination of the 2018 Agreement and no, to the approval of the 2022 Agreement.
The AWU contended that the Applicant had denied its employees the opportunity to answer each question directly, with the result that the employees who wanted to answer ‘yes’ to one question and ‘no’ to another, were prevented from giving such responses.
In response to the first issue concerning the double barrelled vote question, the Applicant submitted that the AWU had not referred to any section of the Act, or any case authority, in support of its objection to the form of question used. The Applicant noted that it was unaware of any legislative provision or case authority in this regard.
Concerning the rationale for asking the double barrelled vote question, the Applicant explained that in circumstances where the previous agreement had not yet expired at the time of the vote and was not due to expire for another one and a half months, it was entirely appropriate for the Applicant to seek to terminate the previous agreement at the same time as employees were asked to vote to approve the 2022 Agreement – enabling the 2022 Agreement to commence applying immediately. This, said the Applicant, was not an uncommon occurrence. The Applicant added that employees had been advised from the outset of the process that the Applicant was seeking to both terminate the 2018 Agreement and negotiate the new 2022 Agreement. The vote question was said to have simply reflected this.
The Applicant argued that the mere fact that employees were asked to terminate the previous 2018 Agreement while also approving the 2022 Agreement, did not, in itself, invalidate the genuineness of the agreement of employees to approve the 2022 Agreement. The Applicant pointed to the AWU having not led any evidence from any employees covered by the 2022 Agreement, which might indicate an employee did not genuinely agree to the approval of the 2022 Agreement.
It is evident that the voting question contains two discrete propositions. The first, is that the relevant employee votes yes to the approval of the 2022 Agreement and at the same time yes to the termination of the 2018 Agreement (Proposition One). The second, the relevant employee votes no to the termination of the 2018 Agreement and no to the approval of the 2022 Agreement (Proposition Two).
On a fair reading of the voting question, it is clear that a voter may:
a) agree with Proposition One and vote in support of that proposition (Yes Vote);
b) agree with Proposition Two and vote in support of that proposition (No Vote); or
c) simply not vote at all.
It is not apparent that the question asked detracts from a finding that s 188(1)(a) or (b) have been satisfied. On this point, I note particularly that the voting question for the approval of the 2022 Agreement whilst incorporating a voting question for the termination of the 2018 Agreement, did not fall foul of ss 180(2), (3) or (5), or s 181(1)-(3). Evidence adduced does not support a contention that the relevant employees were not positioned to give informed and genuine consent to the 2022 Agreement’s terms and effect. Explanatory material and the Applicant’s submissions provided sufficient detail to show that relevant employees were informed that the Applicant sought to terminate the 2018 Agreement and to make the 2022 Agreement at the same time.
It is timely to address the question of whether the Applicant’s explanation about the 2022 Agreement and the effect of its terms complied with s 180(5) of the Act. The relevant principles applicable to s 180(5) were summarised in paragraphs [35]-[36] of the Full Bench decision in AWU v Rigforce Pty Ltd,[24] and I apply those principles here.
Section 180(5) provides as follows:
(5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.
It is uncontroversial that the 2022 Agreement has a nominal expiry date of 30 April 2022, less than two months after the vote closed. Notwithstanding, both parties appreciate that the 2022 Agreement would continue to apply until terminated or replaced. The AWU submitted that if the ‘End Date’ as defined in clause 3.1 of the Agreement was an oversight or typographical error, the Applicant still had to establish that it took all reasonable steps to ensure that the terms of the 2022 Agreement, and the effect of those terms, were explained to the relevant employees. The AWU continued that the employees who voted genuinely agreed to approve the 2022 Agreement with a nominal expiry date later than 30 April 2022, yet the 2022 Agreement included a nominal expiry date of 30 April 2022.
The Applicant highlighted that the AWU had not led any evidence from an employee covered by the 2022 Agreement in support of its concern that employees did not genuinely agree to the 2022 Agreement having a nominal expiry date of later than 30 April 2022. Instead, stated the Applicant, the evidence before the Commission showed that employees did genuinely agree to the 2022 Agreement having a nominal expiry date of later than 30 April 2022. In this respect, the Applicant turned to Mr Dinelli’s evidence of 28 March 2022, which had been filed in support of the Applicant’s application to vary the Agreement to remove an ambiguity or uncertainty. The Applicant noted that Mr Dinelli’s evidence showed that the Applicant had made it clear to employees that it was seeking an agreement expiring on the earlier of 30 April 2026 or four years from the date the 2022 Agreement was approved by the Commission.[25]
The explanatory material provided by the Applicant (the FAQ) clearly shows that the intent was that the 2022 Agreement would be ‘effective for four years’. While admittedly, the wording is somewhat awkward, on any objective level it appears that those to be covered contemplated that the 2022 Agreement would have a nominal expiry date of four years.[26] In my view, Mr Dinelli has provided adequate explanation as to where things went wrong regarding the inclusion of an incorrect nominal expiry date and the Applicant has, appropriately, sought to remedy the error by seeking to vary the 2022 Agreement under s 210 of the Act. On that basis, the AWU’s objection that the 2022 Agreement has not been genuinely agreed under s 186(2)(a) on the basis of a deficiency in the explanation concerning the nominal expiry date, is unable to be sustained.
The third issue raised by the AWU regarding genuine agreement concerned the provision of explanatory information in the 2022 Agreement making process that detailed changes or benefits which arose, not by way of the 2022 Agreement, but by way of changes to company policy.
The AWU submitted that the Applicant had declared that the PowerPoint presentation[27] was presented to employees and made available to employees on the employee portal prior to the vote. The AWU observed that the PowerPoint presentation outlined five key changes which were not available to employees as terms of the 2022 Agreement.[28] The AWU submitted that the five key changes and the benefits resulting from those key changes had been inappropriately included in the Applicant’s communication about the 2022 Agreement and vote, which had misrepresented the five changes as employee benefits arising from the terms of the 2022 Agreement. The Applicant’s misrepresentation in the context of explaining the terms of the 2022 Agreement and their effect, meant, argued the AWU, that the genuine agreement criteria had not been met under s 186(2)(a) of the Act.
The Applicant submitted that in its PowerPoint presentation to employees (see Appendix D to the Form F17) it had made clear where particular benefits were provided under policy as opposed to the 2022 Agreement. Specifically, it stated, it had included a table and, in the column headed ‘Reference Document’, changes made under the 2022 Agreement referred to ‘EA’ whilst changes being made via policy, referred to the relevant policy by name.
The Applicant further explained that the policy changes referred to in the ‘Appendix D’ document accompanying its application, related to claims made by employees during bargaining. While the Applicant conceded that it did not agree to include those items in the 2022 Agreement, it did however agree to make various changes in respect of those claims via its policies. According to the Applicant, it was important from a good faith bargaining perspective for the Applicant to ensure employees understood how those claims had been dealt with given they had been made as part of the bargaining.
Shortly stated, the AWU’s concerns regarding the explanatory material in the form of the PowerPoint document in Appendix D are baseless. During the 2022 Agreement making process, the Respondent relied upon a Slide Pack and a PowerPoint. Regarding the PowerPoint document, the Applicant’s observations that the source of the benefit is identified is correct. There is nothing misleading in respect of the information communicated.
As was said by the Full Bench in CFMMEU v Ditchfield Mining Services Pty Limited,[29] the object of the reasonable steps that are to be taken is to ensure that the terms of the agreement, and their effect, are explained to relevant employees in a manner that considers their particular circumstances and needs. This requires attention to the content of the explanation given.
Mr Dinelli’s declaration set out in considerable detail the means by which the terms of the 2022 Agreement and their effect was explained to the employees. This was achieved by the provision of explanatory documents sent to each employee, addressing each of the terms in the 2022 Agreement and describing how they differed from the 2018 Agreement. The explanatory documents were provided on request. Furthermore, management and HR personnel conducted in person presentations, digital presentations were held via Microsoft Teams, and all relevant employees were provided with information as to where further queries could be directed.
Having reviewed the content of all explanatory material relied upon by the Applicant in addition to Mr Dinelli’s declaration and the submissions provided, I am satisfied that the terms of the Agreement were explained such as to be satisfied that requirements in s 180(5) have been met.
Having considered the submissions of both parties, including those centred on the double-barrelled voting question, I remain of the view that the evidence does not support a finding that the 2022 Agreement had not been genuinely agreed to by the relevant employees, as understood by reference to ss 188(1)(a)-(c) of the Act.
Fairly chosen
One of the matters about which the Commission must be satisfied, is that the group of employees covered by the agreement was fairly chosen.[30] Section 186(3A) provides that if the agreement does not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally, or organisationally distinct.
It is accepted that there are certain principles that may be discerned from decided cases concerning ss 186(3) and (3A).[31] Those principles are as follows.
First, ss 186(3) and (3A) of the Act are concerned with the characteristic of the group of employees covered by the agreement, that is, the whole class of employees to whom the agreement might in the future apply rather than the group of employees which actually voted on whether to approve the agreement.[32]
Second, the references in ss 186(3) and (3A) to whether ‘the group of employees covered by the agreement was fairly chosen’ are, in the case of an enterprise agreement that is not a greenfields agreement made with a group of employees, particularly a small group, references to a choice made by the employer.[33]
Third, a decision by a Commission member as to whether that member is satisfied that the group of employees covered by an agreement was ‘fairly chosen’ involves a degree of subjectivity and the exercise of a very broad judgment or value judgment, and in a broad sense may be characterised as a discretionary decision.[34]
Fourth, once it has been determined that an agreement does not cover all of the employees of the employer, it is necessary for the Commission to make a finding as to whether the group of employees who are covered is geographically, operationally or organisationally distinct, and then take that matter into account and give it due weight, having regard to all other factors.[35]
Fifth, if the group of employees covered by the agreement is geographically, operationally, or organisationally distinct, then that would be a factor telling in favour of a finding that the group of employees was fairly chosen, and conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct, then that would likely be a factor telling against a finding that the group was not fairly chosen.[36]
Sixth, while the question whether the group of employees covered is geographically, operationally, or organisationally distinct must be evaluated and given due weight having regard to all other relevant considerations, that is not a determinative consideration, in that it is not necessary to make a finding that the group is geographically, operationally or organisationally distinct in order to be satisfied that it was fairly chosen.[37]
Seventh, the selection of the group of employees to be covered on some objective basis (as opposed to an arbitrary or subjective basis) is likely to favour a conclusion that the group was fairly chosen.[38]
Eighth, the considerations that are relevant in assessing whether the group of employees covered by the agreement was fairly chosen will vary from case to case, but the word ‘fairly’ in s 186(3) suggests that the selection of the group covered was not arbitrary or discriminatory, so that for example selection based upon employee characteristics such as date of employment, age or gender would be likely to be unfair.[39]
Ninth, it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreement’s coverage and the employees excluded.[40]
The 2022 Agreement does not cover all of the employees of the employers and as a consequence consideration must turn to whether the group is geographically, operationally, or organisationally distinct in assessing whether the group was fairly chosen.
Referring to whether the employee cohort had been fairly chosen, the AWU pointed to the 2022 Agreement not covering all employees of the Applicant, therefore rendering it necessary for the Commission to take into account s 186(3A) of the Act. It further pressed that it would be unfair to limit the scope of the 2022 Agreement to exclude a small minority of employees (less than 5%), particularly the one pastoral employee, who had been covered by the 2018 Agreement. In this respect, the AWU noted that this employee would have no enterprise agreement or award minimum wages or conditions of employment, if the Applicant’s application to terminate the 2018 Agreement was successful.
In response to the ‘fairly chosen’ issue, the Applicant observed that the AWU’s submission regarding pastoral employees was factually incorrect, clarifying that the one pastoral employee employed by the Applicant was not covered by the 2018 Agreement and had always been award covered. The Applicant continued that the pastoral employee was operationally and organisationally distinct.
The Applicant submitted that the Agreement did not cover employees employed in: (a) executive, senior management and site leadership roles; (b) pastoral (farming) roles; and (c) constructions roles. Concerning the group that was covered by the Agreement the following Awards were reference instruments: (a) Clerks-Private Sector Award 2020; (b) Professional Employees Award 2020; (c) Mining Industry Award 2020; and (d) Surveying Award 2020.
The Applicant acknowledged that a small number of award free employees were covered by the 2022 Agreement. These employees were said to work in mid-level supervisory or business support roles such as accounts, HR, IT, community relations and coordinator.
Excluded from 2022 Agreement coverage were employees in senior leadership roles. These roles included Vice Presidents, Mining Managers and General Managers.[41] The Applicant submitted that there were 25 site-based roles that provided managerial and technical leadership, 23 Perth-based roles that provided regional managerial and or technical strategic leadership to the Applicant’s four mine sites, and 17 roles that provided global technical leadership.[42]
The Applicant noted that unlike the 2022 Agreement covered employees, employees employed in senior leadership roles were award free and were more appropriately employed on individual contracts of employment which included terms and conditions which differed to those in the 2022 Agreement.[43] Examples of differing conditions provided by the Applicant to the senior leadership group, included a greater component of their remuneration made up of ‘at risk’ incentive payments, a higher notice of termination entitlement and more onerous restraint of trade provisions. The entitlements or obligations were said to be more reflective of this group’s seniority within the business.
The Applicant further explained that the employees in senior leadership roles primarily performed managerial duties in contrast to employees covered by the 2022 Agreement who performed primarily operational duties. The managerial duties were said to be distinct from supervisory work and included the ability to influence the strategic direction of the Applicant.[44] The Applicant distinguished the senior leadership roles further, observing that employees in such roles held substantial budgetary responsibility and were centrally involved in decision making relating to the execution/delivery of the Applicant’s corporate strategy and tactical direction.[45]
Having considered the submissions and evidence of the parties, I have concluded that the group of employees covered by the 2022 Agreement is both organisationally and operationally distinct for several reasons.
In QGC Pty Ltd v Australian Workers’ Union (QGC),[46] the Full Bench referred to ‘operational’ distinctiveness expressing that it denoted an industrial or productive activity.[47] The activity in QGC question was said to be the operation and maintenance of gas extraction and processing infrastructure in a particular location.
Adopting the meaning that the Full Bench in QGC gave to ‘operational’, my preliminary assessment of the ‘industrial or productive activity’ engaged in by the Respondent would simply be gold mining. However, in my view such characterisation is not sufficiently nuanced and fails to appreciate the clear delineation in the business between the production activities of gold mining, bogging, processing, refining and the day to day management of the same, from that part of the Respondent business charged with setting, reporting on, managing, and leading the operational and strategic direction. As observed by the Applicant, senior leadership roles within its business hold substantial budgetary responsibility and are centrally involved in decision making relating to the execution/delivery of the Applicant’s corporate strategy and tactical direction.[48] In respect of the pastoral role, suffice to say farming appears far removed from production activities focused on the extraction, processing, and the refining of gold.
In respect to operational distinctiveness, the Applicant submitted that the 2022 Agreement covered its employees who, for the most part with the exception of a few employees, would otherwise fall within classifications in the awards referred to at paragraph 80, and who predominately performed production activities within the Applicant’s mining functions and business. Examples provided of the positions in operations (production) included administration/clerical officer, engineer, geologist, truck driver, bogger, shotcreter, electrical technician and surveyor.
The position examples serve to illustrate the activities undertaken in production. I consider it reasonable to assume that the activities undertaken by the group covered would be those production activities inclusive of mining, drilling, blasting, bogging, crushing or otherwise processing, and refining the end product.
In my view, the group of employees covered by the 2022 Agreement is operationally distinct for the abovementioned reasons. As to whether the Applicant demonstrates a legitimate business rationale for the scope, I consider one has been established. The scope or coverage of the 2022 Agreement is directed to the group engaged in production and associated activities of the Applicant’s gold mining operations. The AWU’s submissions do not succeed in diminishing the existence of a legitimate business rationale for selecting the scope or coverage of the 2022 Agreement in this respect.
In contrast to the word ‘operationally’, the word ‘organisation’ is said to refer to the manner in which the employer had organised its enterprise in order to conduct those operations.[49] On this point, the Full Bench noted that the performance of different roles, tasks or functions to that performed by others, was not of itself a sufficient basis upon which a finding of operational or organisational distinctiveness could be made in that particular case.[50]
In Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers’ Union of Australia; Australian Municipal, Administrative, Clerical and Services Union,[51] the Full Bench set out a number of propositions relevant to interpreting the phrase ‘organisationally distinct’ in s 186(3A) (and for that matter ss 237(3A) and 238(4A).[52] Relevantly:
a) the term ‘organisation’ refers to the manner in which the employer has organised its enterprise in order to conduct its operations;[53]
b) the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct;[54]
c) however, the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function;[55] and
d) most businesses have organisation structures which will allow organisationally distinct groups to be identified.[56]
The Applicant states that from an organisational perspective, the group covered by the 2022 Agreement are afforded in some respects different terms and conditions of employment to those employees excluded from the group.
The Applicant explained that its senior management employees were to be covered by individual contracts of employment the terms of which were simply not applicable to employees not classified as managers or senior staff. Examples of differing conditions provided by the Applicant to the senior leadership group were detailed at paragraph [83].
The Applicant described some of the senior leadership roles within the business as performing specialised functions as part of the Applicant’s global consultancy services. These roles sat within different business units, reporting into the Chief Executive Officer through their own executive managers. Employees in such roles provided advice on divestments, mergers and acquisitions as well as technical strategies across the globe. On an objective level, it is understandable why these employees would be afforded different terms and conditions of employment in light of their exposure to different business records, information and relationships, and also why their reporting lines might differ from those employees who are covered by the 2022 Agreement.
I am satisfied there is a significant degree of organisational distinctness inherent in the Applicant business. There does not appear to be a material level of integration between the pastoral employee or employees in senior leadership and those employees in the 2022 Agreement covered group.
Touching briefly on geographical distinctiveness, I am not satisfied that 2022 Agreement covered employees are geographically distinct from other workers employed by the Applicant, noting that some senior leadership roles are site based.
However, the operational and organisational distinctiveness are factors telling in favour of a finding that the group of employees was fairly chosen. Noting that nowhere in the written submissions did the AWU point to any evidence of actual manipulation or actual unfair exploitation in the selection of the group of employees covered by the 2022 Agreement, in all the circumstances I am satisfied that the group has been fairly chosen.
National Employment Standards
Section 186(2)(c) of the Act sets out that the Commission must be satisfied that the terms of an enterprise agreement do not contravene s 55. Section 55 of the Act provides that an enterprise agreement must not exclude the NES or any provision of the NES.
Regarding concerns pertaining to the NES, the AWU noted those that the Commission had identified, in addition to clause 16.4 of the 2022 Agreement, which the AWU submitted contravened the Act by extending the permissible evidence requirement regarding personal leave beyond the limitations defined by s 107.
The AWU submitted clause 16.4 of the 2022 Agreement permitted the employer, in certain subjective circumstances, to require an employee, prior to the employer granting personal leave, to be examined by an employer nominated medical practitioner who would provide the employer with a particular summary report.[57] The AWU contended that clause 16.4 contravened the Act by extending the permissible evidence requirement beyond the limitations defined by s 107.
Regarding the NES issues, the AWU submitted that if they were unresolved by undertakings, then the Commission should not approve the 2022 Agreement.
In response to purported inconsistencies with the NES, the Applicant addressed the AWU’s contention regarding clause 16.4 of the 2022 Agreement. It submitted that employees do not have an absolute right under s 97 of the Act to access personal leave, rather the right is subject to the employee providing notice and evidence in accordance with s 107 of the Act. In respect of s 107 of the Act, the Applicant made the following observations:
a) s 107 recognises an employee must, ‘if required by the employer’, provide evidence that would satisfy a reasonable person that the leave is taken for a reason specified in s 97;
b) s 107(4) confirms ‘[A]n employee is not entitled to take leave under this Division unless the employee complies with this section’;
c) s 107(5) provides that an ‘enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be paid personal/carer’s leave’.
The Applicant submitted that clause 16.4 of the 2022 Agreement is a clause of the kind contemplated by s 107(5) of the Act and is therefore consistent with the NES. The Applicant further contended that notwithstanding the above, the 2022 Agreement included a ‘NES precedence’ clause at clause 9, which would overcome any issue arising from clause 16.4.
Clause 16.4(a) reads:
a)Before granting Personal/Carer’s Leave, including unpaid Personal/Carer’s Leave, or during or following any period of Personal/Carer’s Leave, the Employer may:
…
iv.in the case of Personal (sick) Leave, require the Employee to be examined by a medical practitioner nominated and paid for by the Employer in respect of the illness or injury who will provide a summary report to the Employer where the:
A. Employer has concerns as to the Employee’s ability to perform the inherent requirements of their role; or
B. Employee has a poor attendance record.
Section 107 of the Act prescribes the notification and evidential requirements concerning the taking of leave under Division 7, Part 2-2 of the Act. That section requires an employee to give her or his employer notice of taking leave under Division 7 and also stipulates that the notice must be given as soon as practicable and is to advise of the period, or expected period, of leave. Section 107(3) sets out that where notice of taking paid leave under Division 7 is provided, an employer may require an employee to give evidence that would satisfy a reasonable person that the leave is taken for a reason specified in s 97 of the Act. Section 97 permits an employee to take paid personal leave if the leave is taken because the employee is not fit for work because of personal illness, or personal injury affecting them.
Returning to clause 16.4(a)(iv), it appears that the clause provides the Applicant (and the associated employers) with discretion to direct an employee to be medically assessed where the employer has concerns about an employee’s capacity to fulfil the inherent requirements of her or his role or alternatively the employee has a poor attendance record. In short, it appears that the summary report would therefore address: (a) an employee’s capacity to perform the inherent requirements of a position; and (b) medical reasons for absenteeism, if any.
Section 107 of the Act speaks of evidence that would satisfy a reasonable person that the leave is taken because the employee is not fit for work because of personal illness or injury. In my view, clause 16.4(a)(iv) goes beyond that by authorising the employer to obtain evidence of the employee’s capacity to meet the inherent requirements of the position and medical reasons for absenteeism.
While the direction in clause 16.4(a)(iv) may constitute a lawful and reasonable direction in some circumstances, that is not the issue to be discerned here. The issue is whether the clause excludes the NES. In circumstances where the provision of paid personal/carer’s leave is dependent (note reference in clause 16.4(a) to ‘[B]efore granting Personal/Carer’s leave’) on evidence such as that provided for in clause 16.4(a)(iv), I am unpersuaded by the Applicant’s submission that clause 16.4(a)(iv) of the Agreement is a clause of the kind contemplated by s 107(5) of the Act and therefore consider it inconsistent with the NES.
I note that the Applicant and AWU were alerted to several clauses being inconsistent with the NES. However, given the undertakings provided by the Applicant and the NES precedence clause at clause 9 of the 2022 Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.
BOOT
The AWU also pointed to the BOOT issues that had been raised with the Applicant on Chambers’ receipt of its application. The AWU submitted that in the absence of undertakings or further evidence satisfying the Commission that the 2022 Agreement passed the BOOT, then the Agreement must not be approved.
Undertakings were received from the Applicant that resolved all BOOT issues. Furthermore, while it was necessary to provide the opportunity for the Applicant to proffer undertakings, the issues identified and resolved did not detract from the Applicant having taken a thorough approach to explaining the terms of the 2022 Agreement and their effect.
Variation
As noted, the Applicant made an application for the approval of a variation to the 2022 Agreement (the Variation Application).The Variation Application was made pursuant to section 210 of the Act. The variation to the 2022 Agreement is attached to this decision as Annexure A. That variation reads:
Subsection (a) of the definition of End Date found within clause 3 of the Gold Fields Companies Enterprise Agreement 2022 is changed from 30 April 2022 to 30 April 2026.
It is apparent on the material filed with the application for approval of the 2022 Agreement that employees were requested by the Applicant to approve the 2022 Agreement by voting on it in an electronic ballot conducted on 3 March 2022.[58] A valid majority of employees who participated in the ballot approved the 2022 Agreement which was made on 10 March 2022.[59] As the 2022 Agreement was made on 10 March 2022, it follows that it is an enterprise agreement made pursuant to s 172(2) and as defined under s 12 of the Act. As it is an enterprise agreement as defined under the Act, I am satisfied that it may be varied pursuant to an application made under s 210 of the Act.[60] In this respect, I rely upon the reasoning of the Deputy President in SVG Structures WA Pty Ltd,[61] observing that whilst he was contending with an application under s 217 of the Act, in light of the legislative provisions in ss 202-211, which refer to the term ‘enterprise agreement’, I consider his reasoning apposite in these circumstances. I am further satisfied that the Applicant is covered by the 2022 Agreement.
If, however, I have incorrectly drawn the conclusion that an enterprise agreement may be varied under s 210 prior to it coming into operation, I have also considered the Applicant’s application to vary the 2022 Agreement under s 217 of the Act at paragraphs [140] to [159] of this decision.
Sections 210 and 211 of the Act set out requirements for the Commission’s approval of a variation of an enterprise agreement.
Section 210 deals with who may make an application to vary an agreement, and how and when it must be made:
210 Application for the FWC's approval of a variation of an enterprise agreement
Application for approval
(1) If a variation of an enterprise agreement has been made, a person covered by the agreement must apply to the FWC for approval of the variation.
Material to accompany the application
(2) The application must be accompanied by:(a) a signed copy of the variation; and
(b) a copy of the agreement as proposed to be varied; and
(c) any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) The application must be made:(a) within 14 days after the variation is made; or
(b) if in all the circumstances the FWC considers it fair to extend that period--within such further period as the FWC allows.
Signature requirements
(4) The regulations may prescribe requirements relating to the signing of variations of enterprise agreements.
Section 211 outlines the circumstances in which the Commission must approve a variation and makes provision for a modified operation of certain statutory pre-approval provisions concerning the approval of an enterprise agreement, in its application to the variation of an agreement. Under that section, the Commission must approve the variation of the agreement if the Commission is satisfied that, had an application been made, in the instant case under s 185 of the Act, for the approval of the agreement as proposed to be varied (amended agreement), the Commission would have been required to approve the amended agreement under s 186. The secondary consideration as to nominal expiry date has been addressed in this application. The Commission is not required to approve the amended agreement if satisfied that there are ‘serious public interest grounds’ for not approving the variation.
The remaining provisions (ss 212-216) deal with undertakings, circumstances in which the Commission may refuse to approve a variation, and the operative date of a variation.
The Applicant has filed, in support of its Variation Application, an Employer’s declaration in support of a variation of an enterprise agreement of Mr Dinelli (Variation Declaration).
Subject to what is set out at below, I am satisfied that the Applicant has complied with ss 210(1), (2), (3) and (4).
Clause 2 of the Amended 2022 Agreement (2022 Agreement) provides that the Applicant is a party to the 2022 Agreement. Hence, I am satisfied that s 210(1) of the Act has been complied with, as already observed.
Section 210(2)(b) of the Act requires that a signed copy of the variation and a copy of the agreement as proposed to be varied accompany an application. Both documents were provided to this Commission. I further note that the requirements in Regulation 2.09A of the Fair Work Regulations 2009 (Cth) for the signing of a variation to the enterprise agreement have been met.
The response to question 4.1 of the Variation Application provides that the variation was made on 30 April 2022 and as noted, the Variation Application was lodged on 9 May 2022. I am therefore satisfied that the Applicant has complied with s 210(3) of the Act.
Section 211(1) of the Act requires that the Commission approve a variation if the Commission is satisfied that, had an application been made under ss 182(4) or 185 of the Act for the approval of the agreement as proposed to be varied, the Commission would have been required to approve the agreement under s 186.
Section 186(1) of the Act provides that if an application for the approval of an enterprise agreement is made, relevantly in this case, under s 185, the Commission must approve the agreement if the requirements set out in ss 186 and 187 are met.
The first of these requirements is that the Commission must be satisfied that the variation has been genuinely agreed to by the employees covered by the amended agreement.
Section 188(1) as modified by s 211(3) provides that the variation has been genuinely agreed to by the employees covered by the amended agreement if the Commission is satisfied that:
…
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the variation:
(i) subsections 180(2), (3) and (5) (which deal with pre approval steps); and
(b) the agreement was made in accordance with whichever of subsection 209(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the variation has not been genuinely agreed to by the employees.
…In the Form F23B – declaration of employee organisation in relation to variation of an enterprise agreement, the AWU maintained that it held concerns regarding the Applicant’s application for the approval of the 2022 Agreement however, in respect of the Variation Application, the AWU submitted that it was not in a position to speak to the facts declared in the Variation Declaration.
The question of whether employees have genuinely agreed to an agreement, or its variation must be considered at the time they gave their agreement, taking into account the circumstances at that time.[62]
I am satisfied, based on the material contained in the Variation Declaration together with documentary evidence accompanying the Variation Declaration, that the Applicant complied with ss 180(2), (3) and (5) as modified by ss 211(3) of the Act, for the following reasons.
Section 180(2) as modified by s 211(3) requires an employer take all reasonable steps to ensure that employees are given a copy of the variation or incorporated material during the access period or provided with access to it by the start of access period.
Section 180(3) as modified by s 211(3) requires an employer to take all reasonable steps to notify the relevant employees of the date and place at which the vote will occur and of the voting method to be used by the start of the access period.
Section 180(4) as modified by s 211(3) sets out the meaning of ‘access period’. It relevantly provides as follows:
(4) The access period for a proposed variation is the 7-day period ending immediately before the start of the voting process referred to in subsection 208(1).
The response to question 2.1 of the Variation Declaration provides that the variation was provided to employees via email on 21 April 2020. The response to question 2.2 of the Variation Declaration provides that employees were emailed information specifying the date and time that the vote was to occur and the method by which the vote would take place between 5am on 29 April 2022 to 7am on 30 April 2022. The response to question 2.5 states that voting for the variation to the 2022 Agreement commenced on 29 April 2022. I am therefore satisfied that the Applicant has complied with ss 180(2) and (3) as modified by s 211(3) of the Act.
Section 180(5) of the Act as modified by s 211(3), requires an employer to take all reasonable steps to ensure that the terms of the variation, and the effect of those terms, are explained to relevant employees and that the explanation is provided in an appropriate manner taking into account the particular needs and circumstances of the relevant employees.
The response to question 2.3 of the Variation Declaration states that employees were emailed a First Memorandum that provided the reason for the proposed variation, the question which would be asked during the vote, and how to access information relating to the variation and vote. On request, the First Memorandum was filed. Based on the information contained in the Variation Declaration and the accompanying explanatory document as well as the evidence given by Mr Dinelli in response to question 2.3 in the Variation Declaration and question 2.4, I consider that the Applicant has complied with s 180(5) of the Act as modified by s 211(3).
Section 209(1) of the Act requires that a majority of the affected employees who cast a valid vote approve the variation. According to the response at 2.6 of the Variation Declaration, at the time the Applicant asked relevant employees to vote to approve the variation, there were 1741 employees who would be covered by the amended 2022 Agreement. Of that voting cohort, 1286 employees cast a valid vote and 1149 employees voted to approve the variation. Plainly, a majority of employees employed at the time who cast a valid vote, voted to approve the variation. I am therefore satisfied, based on the material contained in the Variation Declaration, that the variation was made in accordance with s 209(1).
For the reasons mentioned earlier, I am satisfied that the variation has been genuinely agreed to by the relevant employees and so the requirement in s 186(2)(a) as modified by s 211(3), is met.
In light of the discrete nature of the amendment made to the 2022 Agreement and having already addressed ss 186(2)(c), 186(3) and (3A), and noting that I am satisfied that each of the requirements of ss 186, 187, 188, and 190 (see paragraph [162]) as are relevant to the application for approval have been met, I do not consider it necessary to again traverse those requisites for the purpose of the Variation Application.
The Applicant has also lodged an application under s 217 of the Act, on the basis that the 2022 Agreement is plagued by ambiguity and/or uncertainty in respect of the nominal expiry date (s 217 Application). For the reasons detailed at paragraph [114] of this decision, I am satisfied that the 2022 Agreement may be varied pursuant to an application made under s 217 of the Act.[63]
The Applicant contends that historically it has negotiated enterprise agreements with four year terms (for example, in 2014 and again in 2018).[64] According to the Applicant, this is common practice within the Applicant’s business and employees covered by the 2022 Agreement are aware of this practice.[65]
As observed in this decision, the Applicant has submitted that during the negotiations for the 2022 Agreement, it was made clear to the employees and their representatives, that the Applicant was seeking an agreement expiring on the earlier of 30 April 2026, or four years from the date the 2022 Agreement was approved by the Commission.[66]
The explanatory documentation provided to employees, such as the FAQ document, referred to the 2022 Agreement having a term of four years.[67]
The Applicant notes that the 2022 Agreement includes entitlements (or additional benefits) that are due to commence on 1 July 2022, such as long service leave and additional annual leave. Further, under clause 11.2 of the 2022 Agreement, annual pay reviews are provided for in March each year. The Applicant contends that there is currently ambiguity how these provisions will apply and/or take effect if the 2022 Agreement nominally expires on 30 April 2022, in advance of these entitlements commencing. The Applicant presses alternative contentions could apply. One contention, being that those benefits will take effect notwithstanding the 2022 Agreement passing its ‘End Date’. The other, that they will not take effect as the Agreement will nominally expire prior to the entitlements falling due.
At paragraph [7] of this decision, I observed in effect that it seemed rather odd that an employer would go to the trouble of negotiating an enterprise agreement only to have it pass its nominal expiry date within months of the vote (and in this case before the enterprise agreement had been approved).
Although the definition of ‘End Date’ does not on its face appear ambiguous, there are several textual and contextual matters which make clear that clause 3.1 of the 2022 Agreement, in respect of that definition, is uncertain.
First to the text of the 2022 Agreement and the context found in its various provisions.
Clause 7 of the 2022 Agreement is a ‘No extra claims’ clause. That clause provides:
An Employee may not, prior to the End Date, pursue any further claims that would have effect during the Term of this Agreement:
(a) for terms or conditions of employment; or
(b) that otherwise affect an Employee's employment,whether or not those claims relate to a matter that is subject to this Agreement, except where consistent with the terms of this Agreement.
Plainly, the commitment to no extra claims in clause 7 is a product of the fact that the 2022 Agreement reflects the settlement of all employment terms until the 2022 Agreement’s nominal expiry date, after which claims may be pursued. It would be an odd intended outcome, if employees are able to pursue extra claims for wage increases and the like, supported by industrial action, in circumstances where prior to the approval of the 2022 Agreement the nominal expiry date had already passed. It is therefore arguable that in such circumstances clause 7 of the 2022 Agreement will simply have no work to do if the ‘End Date’ is that of 30 April 2022. In my view this gives rise to an uncertainty in clause 3.1.
Section 217 of the Act empowers the Commission to vary an enterprise agreement made under Part 2-4 of that Act, it reads:
217 Variation of an enterprise agreement to remove and ambiguity or uncertainty
(1)The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.
In Bianco Walling Pty Ltd v CFMMEU (Bianco)[68], the Full Court of the Federal Court observed that the Commission may exercise the power of variation granted by s 217 only for the purpose of removing ‘an ambiguity or uncertainty’. Moreover, the Commission could only exercise the power on the application by identified persons, one of whom is the employer covered by the agreement. It is uncontentious that the application was brought by the ‘employer party’ to the 2022 Agreement.
Further observed by the Full Court in Bianco, was that the exercise before me is not one of interpreting clause 3 in the context of the 2022 Agreement. The interpretation of a statute is said to be directed to the ascertainment of the document’s actual and true meaning, and when properly construed, there is only one correct meaning.[69] Instead, the task is to identify whether the relevant provisions of the 2022 Agreement are ambiguous or uncertain. The power of variation granted by s 217 is only for the purpose of removing ‘an ambiguity or uncertainty’.
While the line that distinguishes them may appear somewhat blurred, the terms ‘ambiguity’ and ‘uncertainty’ are not synonymous.[70] ‘Ambiguity’ is said to speak to where a provision in an enterprise agreement is capable of more than one meaning. It may be apparent on the face of the document or may become apparent only when extrinsic evidence is adduced.[71] The authors of the Macquarie Dictionary have defined the word ‘ambiguity’ as:
1. doubtfulness or uncertainty of meaning … 2. an equivocal or ambiguous word or expression …[72]
In contrast, the word ‘uncertain’ is said to refer to:
1. not definitely or surely known; doubtful. 2. not confident, assured or decided. 3. not to be depended on. 4. Subject to change; variable; capricious …[73]
There is an evident overlap between the two terms. However, there may be uncertainty in the terms of an enterprise agreement even when the terms of the enterprise agreement are not ambiguous.[74] This can surface from the application of the unambiguous terms to a given set of circumstances.[75] The Full Court in Bianco referred to this distinction as being one between patent ambiguity (linguistic ambiguity) and latent ambiguity (ambiguity in application).[76]
When ascertaining whether a clause of an enterprise agreement is affected by ambiguity or uncertainty for the purpose of s 217, the Commission is not constrained in the matters it can have regard to, as is the case when one interprets a term of an enterprise agreement to establish its meaning.[77] In Bianco, it was said that the Commission was obliged, in performing its functions or in exercising its powers in relation to a matter under the Act, to take into account, amongst other things, ‘equity, good conscience and the merits of the matter’.[78] Further, it was not constrained by the rules of evidence and procedure in relation to a matter.[79] This meant, said the Full Court, that far from being precluded from having regard to the evidence of the parties’ common intention and to the history of a clause said to be ambiguous or uncertain, the Commission was permitted to have regard to the same, in light of the matters to be taken into account, such as equity, good conscience and the merits.
With regard to the evidence provided and having considered the submissions made, I find that clause 3.1 of the 2022 Agreement with respect to the definition of the term ‘End Date’ is uncertain, and the 2022 Agreement is consequently varied as follows:
End Date means the earlier of:
(a) 30 April 2026; and
(b) the fourth anniversary of the date on which this Agreement is approved by the FWC.
Conclusion regarding Variation applications
For the reasons given, and on the basis of the material contained in the Variation Application and accompanying Variation Declaration, I am satisfied that each of the requirements of ss 211 and 212 as are relevant to the Variation Application have been met. The variation was made on 30 April 2022. I am satisfied that employees were provided with a copy of the variation.[80]
If however I am wrong as to my conclusion that the 2022 Agreement is able to varied pursuant to the Variation Application, I have concluded that the variation as pressed by the Applicant under s 217 Application is permitted, and the 2022 Agreement is varied accordingly.
It is the varied 2022 Agreement that has been approved. If there are doubts as to whether the power in ss 210 and 217 is available to the Commission before an enterprise agreement the subject of an approval application is approved, I would exercise my power to vary the 2022 Agreement pursuant to the applications under ss 210 and 217 immediately after the 2022 Agreement is approved by me. In the end the practical result is the same. On commencement, the 2022 Agreement approved will be one from which the uncertainty brought about by the error regarding the ‘End Date’ has been removed by a variation either under s 210 or s 217 of the Act.
Conclusion regarding the application under s 185
As observed, the Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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.
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.
Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.
As noted, the AWU 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 declaration provided by the AWU, I note that it is covered by the 2022 Agreement.
The Agreement was approved on 24 June 2022 and, in accordance with s 54 of the Act, will operate from 1 July 2022. The nominal expiry date of the Agreement is 30 April 2026.
DEPUTY PRESIDENT
Annexure A
Annexure B
[1] [2018] FWCA 4110; AE429177; PR608925.
[2] [2022] FWCA 2034.
[3] Gold Fields Companies Enterprise Agreement 2022, cl 3.1 (2022 Agreement).
[4] Ibid sub-cl 16.4(iv).
[5] Statutory Declaration of Mr Adrian Dinelli, [1] (Dinelli Declaration).
[6] Ibid [2].
[7] Ibid [3].
[8] Form F17 Declaration of Adrian Dinelli, [20] (Form F17).
[9] Applicant’s Documents CiVS Employee Intro Letter.
[10]Ibid.
[11] Applicant’s Documents How to vote.
[12] Applicant’s Documents Enterprise Agreement 2022 Update Memorandum.
[13] Form F17 (n 8) [20], [22], [24].
[14] Ibid [21].
[15] Dinelli Declaration (n 5) [8], attached FAQ.
[16] Form F17 (n 8) [25].
[17] Ibid [26].
[18] Dinelli Declaration (n 5) [12].
[19] Fair Work Act 2009 (Cth) s 180(4) (the Act).
[20] Ibid s 180(2).
[21] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318, [23].
[22] [2012] FWAFB 9512.
[23] Ibid.
[24] [2019] FWCFB 6960.
[25] Dinelli Declaration (n 5) [3].
[26] Ibid attached FAQ.
[27] Form F17 (n 8) Appendix D.
[28] Ibid.
[29] [2019] FWCFB 4022 [64]-[68].
[30] The Act (n 19) s 186(3).
[31] Ibid.
[32] Construction, Forestry, Mining, and Energy Union v Thiess Pty Ltd (2017) 270 IR 354, [33]-[34] (Theiss).
[33] Construction, Forestry, Mining, and Energy Union v John Holland Pty Ltd (2015) 228 FCR 297, [28]-[32].
[34] Ibid [60]-62]; Cimeco Pty Ltd v Construction, Forestry, Mining, and Energy Union (2012) 219 IR 139, [8] (Cimeco).
[35] Ibid [10].
[36] Ibid [19].
[37] Ibid [15], [20]; Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd [2016] FWCFB 1151, [31].
[38] Cimeco (n 34) [16].
[39] Ibid [21].
[40] Ibid [21]-[22]; Construction, Forestry, Mining, and Energy Union v Resco Training and Labour Pty Ltd [2012] FWAFB 8461, [34].
[41] Applicant’s Submissions on Fairly Chosen, [17].
[42] Ibid [16].
[43] Ibid [19].
[44] Ibid [20].
[45] Ibid [21].
[46] QGC Pty Ltd v Australian Workers’ Union (2017) 268 IR 241 (QGC).
[47] Ibid [44].
[48] Applicant’s Submissions on Fairly Chosen, [21].
[49] QGC (n 46) [44].
[50] Ibid [44].
[51] (2017) 270 IR 385.
[52] Theiss (n 32) [28]; Ibid [27].
[53] QGC (n 46) [44].
[54] United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board (2010) 193 IR 293, [60].
[55] QGC (n 46) [44]-[45].
[56] Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd (2014) 242 IR 238, [15]; see also National Union of Workers v Cotton On Group Services Pty Ltd[2014] FWC 6601, [15]-[16] (permission to appeal refused in [2014] FWCFB 8899) and ASU v Shine Lawyers Pty Ltd[2017] FWC 4158, [68]-[71].
[57] 2022 Agreement (n 3) sub-cl 16.4(iv).
[58] The Act (n 19) s 181(1).
[59] Ibid s 182(1).
[60] SVG Structures WA Pty Ltd [2021] FWCA 6103 (SVG).
[61] Ibid.
[62] CVSG Electrical Construction Pty Ltd [2020] FWCFB 1747, [30].
[63] SVG (n 60).
[64] Section 217 Statutory Declaration of Adrian Dinelli, [4]-[5] (Section 217 Dinelli Declaration).
[65] Ibid [2].
[66] Ibid [3]; Section 217 Statutory Declaration of Rebecca Alston, [4].
[67] Section 217 Dinelli Declaration (n 64) [8].
[68] (2020) FCR 385 (Bianco).
[69] Industry Research and Development Board v Bridgestone Australia Ltd (2001) 109 FCR 564, [54]; Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd (2004) 139 FCR 147 [118]; Ibid [66].
[70] Bianco (n 68) [73].
[71] Ibid.
[72] Macquarie Dictionary (5th ed, 2009) ‘ambiguity’.
[73] Ibid ‘uncertain’.
[74] Bianco (n 68) [75].
[75] Ibid.
[76] Ibid.
[77] Ibid [68].
[78] Ibid [68]; The Act (n 19) s 578.
[79] Bianco (n 68) [68]; The Act (n 19) s 591.
[80] The Royal Melbourne Golf Club Inc [2020] FWCA 2284, [6].
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