Goldline Industries Pty Ltd

[2019] FWC 5851

[2019] FWC 5851

The attached document wholly replaces the document previously issued with the code [2019] FWCA 5647 on 16 August 2019.

Associate to Deputy President B. Cross

22 August 2019

[2019] FWC 5851

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a multi-enterprise agreement

Goldline Industries Pty Ltd
(AG2019/38)

DEPUTY PRESIDENT CROSS SYDNEY, 16 AUGUST 2019

Application for approval of the Sydney Construction Electrical Contracting & CEPU Multi Enterprise Agreement 2018.

[1] Applications were made for the approval of an enterprise agreement known as the Sydney Construction & CEPU Multi Enterprise Agreement 2018 (“the Agreement”). The applications were made separately by Goldline Industries Pty Ltd (“Goldline”), National Cable Installations Pty Ltd (“NCI”) and FIP Electrical (NSW) Pty Ltd (“FIP”) (together referred to as “the Applicants”) pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a multi-enterprise agreement.

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) is a bargaining representative for the purposes of s.176(1)(b) of the Act, though it was not involved in the negotiation of the Agreement.

[3] On 12 April, 2019, I issued Directions for the filing and service of submissions and evidentiary materials by the Applicants and the CEPU. Pursuant to those Directions, the following documents were filed:

(a) The CEPU filed an outline of submissions on 18 April, 2019 (“the CEPU Submission”), together with the witness statement of Allen Hicks, dated 18 April, 2019.

(b) The Applicants filed a joint outline of submissions dated 26 April, 2019 (“the Applicant’s Submission”), together with the following witness statements:

(i) Statement of Frank Pirreca, dated 26 April, 2019;

(ii) Statement of Michael Kearney, dated 26 April, 2019;

(iii) Statement of John Toohey, dated 26 April, 2019;

(iv) Statements of NCI employees, dated between 18 and 23 April, 2019 (“NCI Employee Statements”);

(v) Statements of FIP employees, dated between 23 and 24 April, 2019 (“FIP Employee Statements”); and

(vi) Statement of Renee Kasbarian, dated 26 April, 2019.

(c) The CEPU filed an Outline of Submissions in reply on 2 May, 2019 (“the CEPU Reply Submission”), together with the following witness statements:

(i) Statement of Ben Lister, dated 2 May, 2019;

(ii) Statement of Allen Hicks, dated 2 May, 2019; and

(iii) Statement of Nick Bligh, dated 2 May, 2019.

[4] The Directions for the filing and service of submissions and evidentiary materials also provided that I should determine the application on the papers without a hearing. There has since been no suggestion that that was not the appropriate course.

Interlocutory/Confidentiality Issues

[5] By email dated 29 April, 2019, the CEPU raised objections to parts of the evidence filed by the Applicants. The CEPU noted that the Applicants had filed the NCI Statements and the FIP Statements as anonymous redacted statements as evidence (“the Redacted Statements”), and objected to the filing of those Redacted Statements. The CEPU submitted that it was inappropriate in the course of proceedings to file anonymous witness statements, and it was essential that witnesses must be able to be identified and be available for enquiries by the Commission and/or cross-examination by the other party if required.

[6] The CEPU also noted that the Applicants had filed a confidential exhibit, being the EBA sign-off register (“the Confidential Exhibit”), but had not stated any basis for that part of its evidence to remain confidential from the CEPU. The CEPU submitted that there was no reasonable basis for that evidence to be confidential, and the CEPU sought to be able to consider its contents when formulating its reply.

[7] On 7 May, 2019, a further Directions Hearing was conducted. That Hearing was convened to determine:

(a) The claims of confidentiality over the Redacted Statements;

(b) The claims of confidentiality over the Confidential Exhibit; and

(c) Whether an Order for Production (“the Order for Production”) should be issued to an electoral company for the list of employees of FIP who were balloted in the vote for the Agreement.

[8] In the proceedings on 7 May, 2019, the Applicants indicated that they did not seek to rely on the Redacted Statements or the Confidential Exhibit. Otherwise, the Order for Production was issued by the Commission.

[9] Documents were produced in response to the Order for Production and confidential access was granted on 13 May, 2019, to the National Legal Counsel of the CEPU, Ms Heffernan. Arising from that access, Ms Heffernan signed and provided to the Commission two statements dated 13 May, 2019. Those statements addressed issues regarding whether the Agreement was approved by FIP employees. Ms Heffernan requested permission to disclose the contents of her statements to the CEPU asserting that there was no basis for their contents to remain confidential.

[10] I directed that confidentiality remain over the information gained from the documents produced in response to the Order for Production that was incorporated in Ms Heffernan’s statements until the Applicants were given an opportunity to file written submissions on the issue of confidentiality by 4.00pm on 17 May, 2019.

[11] On 16 May, 2019, at 1.22pm, my Chambers received correspondence from the Solicitors for the Applicants. That correspondence was said to be copied to Ms Heffernan and the CEPU. In that correspondence, the Solicitors:

(a) Withdrew the Application for Approval lodged by FIP;

(b) Maintained that, as the material over which confidentiality was sought to be waived was based on documents produced subject to a confidentially undertaking and in response to the Order for Production, that confidentiality should remain in the interests of maintaining privacy; and

(c) As FIP had withdrawn their Application for Approval, there was no basis to grant the waiver of confidentiality, or any relevance to the proceedings.

[12] On 16 May, 2019, at 2.55pm, my Chambers received an email that attached correspondence from the CEPU. Of those two forms of communication:

(a) The correspondence from the CEPU was erroneously addressed to “Associate to Deputy President Dean”, but the subject line listed, after a slightly incorrect matter number, “Re:Application by Goldline Industries Pty Ltd & Ors”. That correspondence clearly related to this matter, and was viewed shortly after it was sent. That correspondence concluded by alleging that “it appears FIP Electrical Pty Ltd has contravened section 678 of the FW Act. I seek that the matter be referred to the appropriate investigative body”; and

(b) The email pressed that “The withdrawal of the [FIP] Application ought not be granted”, and re-agitated the issue of confidentiality over the contents of Ms Heffernan’s statements of 13 May, 2019.

[13] The interlocutory/confidentiality issues that therefore arise for determination are:

(a) Should Ms Heffernan be permitted to disclose the contents of her statements of 13 May, 2019, to the CEPU?;

(b) Can and/or should FIP’s Application to withdraw their Application for Approval be refused?; and

(c) Should FIP Electrical Pty Ltd be referred to the appropriate investigative body for contravention of s. 678 of the Act?

(a) Disclosure of the Statement Contents

[14] The contents of Ms Heffernan’s two statements of 13 May, 2019, are primarily based on the information gained from the documents produced in response to the Order for Production to which she was only granted access on the basis that she maintain the confidentiality of that information. For example, after removing confidential information, the totality of the first statement (not including annexures) was as follows:

“Background

1. I am the national legal counsel of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division (the Union).

2. In my role, I represent the Union in proceedings AG2019/38.

3. On 9 May 2019, CiVS Pty Ltd was issued a notice to produce the list of employees it was sent by FIP Electrical Pty Ltd for the purpose of conducting the ballot for the Sydney Construction Electrical Contracting & CEPU Multi Enterprise Agreement 2018 (the Agreement).

Outcome of inspection

4. On 13 May 2019, I inspected the list.

5. While inspecting the list, I had regard to the contents of the statement of Nick Bligh (the Bligh statement), including Annexure NB1, which was a list of employees Mr Bligh had in his position.

6. In respect of the names listed in paragraph 9 of the Bligh Statement, I confirm that none of those names are present on the list.

7. The following names are on the list. These names raise legitimate concerns that persons who are not covered by the Agreement were balloted:

…”

[15] In the email of 16 May, 2019, at 2.55pm, Ms Heffernan made the following submission as to confidentiality:

“There is no proper basis for the contents of my statements to remain confidential. I note the larger employee list (which was the documents produced in response to the Order for Production) is the subject of the initial confidentiality undertaking and I confirm I am content to keep the contents of that confidential, save for where it is expressly referred to in my statements. The onus is not on the Union to establish why evidence ought not be confidential. The Applicant has not provided any basis for asserting why the evidence in my statements ought to be confidential. There is no likelihood, threat, or allegation of inappropriate conduct by the Union.” (Emphasis added).

[16] With respect, the second sentence of the above submission is effectively a statement that “I will maintain confidentiality except where I want to use the material”. There is no question that within the cloak of the undertaking of confidentiality that she gave, Ms Heffernan, on behalf of the CEPU, could and did raise issues arising from the documents produced in response to the Order for Production. She in fact has provided the Commission and the Applicants the two confidential statements of 13 May, 2019.

[17] The use to which the statements are to be put should their disclosure be allowed are seemingly not to the issue of approval of the Agreement. FIP in fact want to withdraw their application for approval. Quite apartfrom any confidentiality undertakings, I note that the inspection of documents produced upon compulsion carries with it an implied undertaking not to use the documents or information contained therein for purposes not directly connected with the conduct of the litigation 1, and to protect the confidentiality of the documents2. The CEPU is wrong in its submission that it is for the Applicants to prove a basis for confidentiality.

[18] While it is trite to observe that the rules of evidence and procedure do not bind the Commission 3, I consider it important that the implied undertaking be observed as it goes to fairness between the parties4. While I can modify or release the implied or express undertakings given, that will only occur in unusual circumstances where release is in the interests of justice5, and I am not satisfied that any such circumstances arise in this matter.

(b) Refusal of Application to Withdraw Application for Approval

[19] The CEPU submission as to why the FIP Application to withdraw their Application for Approval be refused was as follows:

“The withdrawal of the application ought not be granted. The Applicants are simply attempting to “hive off” FIP Electrical Pty Ltd’s conduct, prior to the determination of whether the Agreement is approved, in order to still satisfy section 188 of the FW Act. This is because 188 of the FW Act requires that, in order for the Agreement to be approved, the employers’ employees genuinely agreed to the Agreement. Furthermore, there has been a fundamental failure to comply with section 185 of the FW Act if FIP Electrical Pty Ltd is simply permitted to withdraw.”

[20] The applications in this matter were made separately by Goldline, NCI and FIP pursuant to s.185 of the Act. In the correspondence from the Solicitors for the Applicants received by my Chambers on 16 May, 2019, at 1.22pm, the Solicitors for the Applicants clearly indicate that the instructions to withdraw the FIP Application come from FIP, and that Goldline and NCI do not want to withdraw their Applications.

[21] I do not accept that I can so readily accept the motivation that the CEPU attributes to FIP, and I certainly do not accept that such motivation can be attributed to the separate applicants being Goldline and NCI.

[22] Where a party indicates that it wishes to withdraw an application before the Commission, I do not see that I have the power to compel that party to continue to pursue their application, seemingly to conclusion.

(c) Referral pursuant to s.678 of the Act

[23] Section 678 of the Act provides:

“False or misleading evidence

Giving false or misleading evidence

(1)  A person (the witness ) commits an offence if:

(a)  the witness gives sworn or affirmed evidence; and

(b)  the witness gives the evidence as a witness:

(i)  in a matter before the FWC; or

(ii)  before a person taking evidence on behalf of the FWC for use in a matter that the witness will start by application to the FWC; and

(c)  the evidence is false or misleading.

Penalty:  Imprisonment for 12 months.

Note: A person will not commit an offence if the person carries out the conduct constituting the offence under duress (see section 10.2 of the Criminal Code).

Inducing or coercing another person to give false or misleading evidence

(2)  A person (the offender) commits an offence if:

(a)  another person (the witness ) has been, or will be, required to appear as a witness in a matter before the FWC (whether the person is to appear before the FWC or a delegate of the FWC); and

(b)  the offender induces, threatens or intimidates the witness to give false or misleading evidence in the matter.

Penalty:  Imprisonment for 12 months.”

[24] I have assumed that, as the FIP Application has been withdrawn, Mr Pirreca’s Statutory Declaration will not be pressed and read in the matter. As such, it would not be the case that Mr Pirreca has given “sworn or affirmed evidence” that is false or misleading necessary to found an action pursuant to s.678 of the Act.

[25] Under s.11 of the Statutory Declarations Act 1959 (Cth), it is a criminal offence for a person to intentionally make a false statement in a statutory declaration 6.  With the FIP Application having been withdrawn, I am not able to make a determination that Mr Pirreca has made a false statement. Should the CEPU wish to pursue Mr Pirreca in relation to an alleged offence pursuant to the Statutory Declarations Act 1959 (Cth), I see no impediment in that legislation to the CEPU pursuing that course of action.

Issues Arising in Application to Approve the Agreement

[26] The CEPUsubmits that the Agreement should not be approved because the Commission cannot be satisfied that:

(a) the employees of each of the employers have genuinely agreed to the Agreement, as required by s.186 and in accordance with s.188 of the FW Act;

(b) the employers have complied with their obligations under s.184(2) and (3);

(c) the Agreement passes the BOOT, as required by s.186(2) and in accordance with s.193 of the FW Act; and/or

(d) the Agreement does not contain unlawful terms, as required by s.186(4) of the

Act.

(a) Genuine Agreement

[27] The CEPU submitted 7:

“Subsection 188(a)(i) requires that, in order for the Agreement to be approved, each of the employers have must have complied with the pre-approval steps particularised in subsections 180(2), (3) and (5) of the FW Act.

The CEPU submits that the Commission cannot be satisfied that each of the employers took all reasonable steps to ensure that:

a. the terms of the Agreement were explained to the relevant employees; and

b. the effect of those terms was explained to the relevant employees; and

c. the explanation provided was in a manner taking into account the particular circumstances and needs of the relevant employees.”

[28] In the case of One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (“One Key”), the Full Court of the Federal Court of Australia said:

“The agreed purpose of the obligation imposed on employers by s 180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.”

The CEPU submits that, on the material before it, the Commission cannot be satisfied that the employees of each of the employers were enabled to cast an informed vote”.

[29] Sub-sections (2), (3) and (5) of s.180 of the Act provide:

“Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

…

Terms of the agreement must be explained to employees etc.

(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.”

[30] The original explanations of the steps taken by the employers to explain the terms of the Agreement, and the effect of those terms, to the relevant employees, was contained in the responses to questions 2.7 of the Form F17 Statutory Declarations of Michael Kearney for NCI and John Toohey for Goldline. They were as follows:

(a) For NCI, Mr Kearney deposed:

“14/12/18, 6.30am. All available Dayshift Crews met at NCI office The enterprise agreement was handed to employees. An overview of the multi-enterprise agreement was provided and the terms of the agreement were explained to the employees, including the base rates of pay, the productivity allowance, casual loading and other allowances. The differences between the proposed agreement and the current agreement were also explained to the employees. Employees were also advised that an online information portal had been set up where they could access further information, including a copy of the agreement. Employees were also invited to raise any questions which they had and any questions asked were answered during the meeting.

14/12/18, 2.30pm. All available Nightshift Crews met at NCI office The enterprise agreement was handed to employees. An overview of the multi-enterprise agreement was provided and the terms of the agreement were explained to the employees, including the base rates of pay, the productivity allowance, casual loading and other allowances. The differences between the proposed agreement and the current agreement were also explained to the employees. Employees were also advised that an online information portal had been set up where they could access further information, including a copy of the agreement. Employees were also invited to raise any questions which they had and any questions asked were answered during the meeting.

14/12/18, 11.30am. All NRT Shutdown Crew met at NCI site The enterprise agreement was handed to employees. An overview of the multi-enterprise agreement was provided and the terms of the agreement were explained to the employees, including the base rates of pay, the productivity allowance, casual loading and other allowances. The differences between the proposed agreement and the current agreement were also explained to the employees. Employees were also advised that an online information portal had been set up where they could access further information, including a copy of the agreement. Employees were also invited to raise any questions which they had and any questions asked were answered during the meeting.

14/12/18, 3.30pm. All Canberra Crews met at NCI Site The enterprise agreement was handed to employees. An overview of the multi –enterprise agreement was provided and the terms of the agreement were explained to the employees, including the base rates of pay, the productivity allowance, casual loading and other allowances. The differences between the proposed agreement and the current agreement were also explained to the employees. Employees were also advised that an online information portal had been set up where they could access further information, including a copy of the agreement. Employees were also invited to raise any questions which they had and any questions asked were answered during the meeting.”

(b) For Goldline, Mr Toohey deposed:

“14 December 2018 - Site meetings were held at each site of the employer with the employees to be covered by the agreement. The terms of the agreement were discussed with employees and a wages comparison sheet was discussed. A copy of the wages comparison sheet is annexed and marked "C". Each employee was required to sign off that the employee had attended the meeting.

19 December 2018 - A further meeting was held at the head office of the employer to discuss the terms of the agreement with the employees to be covered by the agreement.”

[31] The above responses would, on their own, constitute what the Full Court of the Federal Court described in the One Key Decision as a “bare statement by an employer that an explanation has been given” 8 that would be inadequate foundation upon which to reach a state of satisfaction of compliance with s. 180(5). In relation to the NCI employees, it is notable that the description of the explanation to each of the four crews was identical, even down to typographical and syntax errors.

[32] In the CEPU Submission, filed on 18 April, 2019, the CEPU identified as a significant failure in the Statutory Declarations being the failure to identify less beneficial terms. The CEPU submitted:

“Here, the employers have failed to identify in their statutory declarations significant and important terms which are less beneficial and may disadvantage the employees. They have also failed to identify where the Agreement differentiates from the Award. These omissions include, but are not limited to:

(a) The employers fail to identify that there is no existing wage structure for apprentices and that the Agreement completely displaces the Award, which provides for specific wage rates for apprentices. Given this was omitted in the f17s, it is likely that it was not explained to employees.

(b) The employers fail to identify that clause 19(d) of the Agreement provides that payment for sick leave is conditional. The conditions are in addition to those prescribed by the Award and NES. Given this was omitted in the f17s, it is likely it was not explained to employees.

(c) The employer only lists the meal allowance, first aid allowance and fare allowance as less beneficial terms in the Agreement. In doing so, they fail to mention the following less beneficial terms:

(i) overtime for continuous shift workers is prescribed at a rate less than the Award;

(ii) shift workers may be directed to take annual leave in circumstances where they have in excess of 8 weeks annual leave, inconsistent with the Award and NES;

(iii) employees will receive a tool allowance less that that prescribed by the Award;

(iv) employees will not receive, in addition to their base rate, an electrical license allowance as prescribed by the Award;

(v) employees will not receive, in addition to their base rate, an industry allowance as prescribed by the Award;

(vi) employees will not receive a multistorey allowance as prescribed by the Award;

(vii) employees will not receive a tower allowance as prescribed by the Award;

(viii) casual employees will receive no entitlement to conversion permanent employment; and

(ix) employees receive no entitlement to domestic violence leave as prescribed by the Award.”

[33] Eight days after the filing of the CEPU Submission, both Mr Kearney and Mr Toohey provided Statements that outlined further detail of the explanations provided to employees. Those more detailed explanations were the following.

(a) For NCI, Mr Kearney deposed in his Statement of 26 April, 2019, as follows:

“[6] NCI confirms that it took reasonable and practicable steps to explain the terms of the Agreement, and the effect of those terms to the Relevant Employees.

[7] I refer to the “Form 17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form 17) of NCI filed on 4 January 2019 with the Commission. I signed the Form F17 on behalf of NCI.

[8] In particular, I refer to question 2.7 of the Form F17 which sets out the meetings held with the Relevant Employees. The purpose of these meetings was to inform the Relevant Employees about the Agreement, including the terms of the Agreement and their effect (Information Meetings).

[9] I confirm that I attended the Information Meetings on behalf of NCI, along with Mr Ben Fryer (I note that since the Application was lodged Mr Fryer has resigned from and no longer works at NCI).

[10] I note the Relevant Employees, at the time of the Information Meetings were covered by the National Cable Installations Pty Ltd Union Enterprise Agreement 2012 (Existing Agreement).

[11] During the Information Meetings, the following steps were taken to explain to the Relevant Employees the terms and effect of the Agreement (in addition to the matters contained in the Form F17 and the materials provided to the Commission on 7 January 2019):

(a) the Relevant Employees were advised that the Agreement and associated information was available on an online portal which each Relevant Employee had access to;

(b) copies of both the Agreement and the Existing Agreement were made available, with any clauses which were amended, deleted or added in the Agreement in comparison to the Existing Agreement highlighted so that the changes were clear to the Relevant Employees;

(c) the differences between the Existing Agreement and the Agreement were explained to the employees, including where clauses had been amended, deleted or added. Some examples include:

(i) the increased wages and the differences in the allowances;

(ii) the differences in the Hours and Meal Breaks clause (Clause 13), such as the staggered start and finishing times;

(iii) the additional subclause in the Productivity Allowance clause (Clause 26) was explained to employees about when the productivity allowance may not apply.

(d) the Relevant Employees were informed that, in NCI’s view, there were no terms under the Agreement which were less beneficial than the terms in the Existing Agreement, which was better overall than the Award (being the Electrical, Electronic and Communications Contracting Award 2010), and invited Relevant Employees to advise if, in their view, there were any less beneficial terms. The Relevant Employees did not advise me of any terms they believed to be less beneficial;

(e) following the explanation of the terms and effect of the Agreement, a “Q&A” session was held to answer specific questions raised by the employees. Some examples of the questions and responses discussed include:

(i) as the Agreement is a multi-enterprise agreement what would occur if not all of the companies were successful in the vote. The response provided was that the companies were successful in the voye. The response provided was that the companies who were successful in the vote would apply for the approval of the Agreement with the Commission and the unsuccessful companies would not, but rather would continue their negotiations;

(ii) how an application for approval was made and the response was that an application would be made to the Commission to have the Agreement approved. The Commission would determine if the Agreement met the approval requirements;

(iii) when the pay increases woul;d apply and the response provided was that the pay increases would apply as of the full pay cycle following the approval of the Agreement by the Commission.

(f) questions were also raised by some employees relating to clauses in the Agreement which were the same as clauses in the Existing Agreement. These questions were answered accordingly and the clauses which the question related to were also explained.

[12] The access period for the Agreement was from 14 December 2018 to 21 December 2018. Prior to the commencement of the access period, on 13 December 2018 a copy of the Agreement was provided by NCI to the Relevant Employees which was accompanied by a cover letter. The cover letter summarised some of the terms of the Agreement. A copy of the letter is annexed and marked “A”.

[13] At no stage during the access period did any of the Relevant Employees indicate to me that they did not understand the terms and effect of the Agreement nor did I have any reason to believe that the Relevant Employees did not understand the terms and effect of the Agreement.

[14] A few of the Relevant Employees were unable to attend an Information Meeting as they were absent. These Relevant Employees were still provided with materials about the Agreement, including a copy of the Agreement, Annexure “A” and the materials provided to the Commission on 7 January 2019. These Relevant Employees were also advised to access the online portal and review the materials on the portal, which contained the Agreement and materials related to the Agreement. Management were also available for these Relevant Employees to contact if the Relevant Employees required clarification, assistance or had any questions.

Employees Under 18 years of age

[15] At the time of the vote, NCI had only one employee who was under the age of 18 years old. The employee in question was approximately 17.5 years old at the time of the vote. NCI provided this employee with the option to have a parent, guardian or representative present at the Information Meetings if they wished. The employee declined this opportunity.”

(b) For Goldline, Mr Toohey deposed in his Statement of 26 April, 2019, as follows:

“[6] Goldline confirms that it took reasonable and practicable steps to explain the terms of the Agreement, and the effect of those terms of the Relevant Employees.

[7] I refer to the “Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17) of Goldline filed on 4 January 2019 with the Commission. I signed the Form F17 on behalf of Goldline.

[8] In particular, I refer to question 2.7 of the Form F17 which sets out the meetings held with the Relevant Employees. The purpose of these meetings was to inform the Relevant Employees about the Agreement, including the terms and effect of the Agreement (Information Meetings).

[9] I note the Relevant Employees, at the time of the Information Meetings were covered by the Goldline Industries Pty Ltd Union Enterprise Agreement 2017 (Existing Agreement).

[10] I confirm that I conducted the Information Meetings on behalf of Goldline. During the Information Meetings, I took the following steps to explain to the Relevant Employees the terms and effect of the Agreement (in addition to the matters contained in the Form F17 and materials provided to the Commission on 7 January 2019):

(a) I advised the Relevant Employees that the Agreement and associated information was available on an online portal which each Relevant Employee had access to;

(b) I explained to the Relevant Employees that the Agreement was a multi-enterprise agreement;

(c) I informed the Relevant Employees that there was a bargaining representative for Goldline and the other companies and confirmed that despite attempts by our bargaining representative to meet with the CEPU, the CEPU had declined to meet with our bargaining representative;

(d) the Relevant Employees were informed the Agreement was largely similar to the Existing Agreement and there were no significant departures from the Existing Agreement;

(e) I informed the Relevant Employees that, in Goldline’s view, there were no terms under the Agreement which were less beneficial than the terms in the Existing Agreement, which was better overall than Award, and invited Relevant Employees to advise if, in their view, there were any less beneficial terms. The Relevant Employees did not advise me of any terms they believed to be less beneficial;

(f) it was discussed with the Relevant Employees the effect of a multi-enterprise agreement on protected industrial action and the limitation on protected industrial action;

(g) specific terms of the Agreement that were discussed included:

i. the Agreement had a four year term;

ii. the pay increases and that these increases would commence upon approval of the Agreement by the Commission;

iii. the title of the Agreement and I confirmed the title of the Agreement should not be taken to mean that the CEPU endorsed, supported or been involved in bargaining for the Agreement;

iv. a detailed table of the pay increases was discussed and issued to each employee (I note a copy of the wage comparison sheet issued was annexed to the Form F17);

v. it was discussed and confirmed that as Goldline does not employ apprentices, apprentices were not included in the Agreement;

vi. the definition of “Company” was discussed and confirmation given of the 7 companies proposing to be parties to the Agreement (page 4 of the Agreement);

vii. Clause 4 of the Agreement was discussed, in that it was explained that the Agreement would be binding betweren the companies successful in the vote and their employees. The CEPU could be covered by the Agreement if the CEPU elected to be a party to the Agreement;

viii. Clause 13 (Hours of Work): The additional subclauses 13.h) and i) were discussed in regards to the staggering of starting times and the how these would be managed between Goldline and employees;

ix. Clause 33.c): It was discussed that the MERT redundancy contribution would remain at $75 per week as per the Existing Agreement;

x. Clause 49 (Protective Clothing): this clause was discussed and the Relevant Employees were informed of the increase in the boots allowance to $150.

xi. Clause 58 (Signatories): It was noted that the Agreement if successful would be signed by Goldline and a representative of the Relevant Employees.

xii. Schedule B: the rates of pay were reviewed and each page of Schedule B turned through with the Relevant Employees and compared to the Existing Agreement and it was again noted that there was no provision for apprentices. The increase in productivity after 24 months was also noted;

xiii. Schedule D: the Revised Electrical Tool Kit was discussed and the differences from the Existing Agreement were explained to the Relevant Employees. The addition of the “communications tool kit” was also noted;

xiv. Schedule F: it was noted and discussed that there was no change to the “County of Cumberland” area.

[11] On 7 December 2018, I sent a copy of a letter from the CEPU to Henry William Lawyers dated 7 December 2018 to the Relevant Employees to assist the Relevant Employees to understand the CEPU’s position in relation to the Agreement. In the letter the CEPU stated that “the CEPU does not intend to bargain for a multi-enterprise agreement” and that “The CEPU does not consider multi-enterprise bargaining is consistent” with objectives of the CEPU as identified in the letter. A copy of this letter is annexed to this statement and marked “A”.

[12] The access period for the Agreement was from 14 December 2018 to 21 December 2018. I note that prior to the commencement of the access period, on 13 December 2018 a copy of the Agreement was provided by Goldline to the Relevant Employees which was accompanied by a cover letter. The cover letter summarised some of the terms of the Agreement. A copy of the letter is annexed and marked “B”.

[13] At no stage during the access period did any of the Relevant Employees indicate to me that they did not understand the terms and effect of the Agreement nor did I have any reason to believe that the Relevant Employees did not understand the terms and effect of the Agreement. I also requested that the Relevant Employees sign an “EBA Sign Off Register” confirming that they had received, read and understood the Agreement. Copies of the signed forms from the Relevant Employees are annexed to this statement as a confidential annexure and marked “C”.

[14] I also confirm that all of the Relevant Employees attended at least one of the meetings referred to in paragraph 10 above and Goldline recorded the attendances of the Relevant Employees.”

[34] The above explanations, provided as they were in response to the CEPU Submissions, were effectively the second chance for NCI and Goldline to satisfy the Commission that there had been compliance with s.180, and in particular sub-section (5). For the following reasons, both NCI and Goldline have failed to establish compliance with s.180 of the Act.

(a) NCI

[35] Four separate meetings were held with four different crews. While the term “Information Meetings” is defined at paragraph [8] of Mr Kearney’s Statement, and thereafter used by Mr Kearney, the use of the plural in that definition is somewhat misleading. There was clearly only one meeting with each crew.

[36] While it is understandable that NCI may have made similar statements at each meeting addressing their explanation of the terms of the Agreement, the totality of that second chance explanation is recorded at sub-paragraphs (a) to (b) inclusive of paragraph [11] of the Kearney Statement. That explanation contains little more actual detail than the Form F17.

[37] As to questions raised by employees, they are recorded at sub-paragraphs (e) to (f) inclusive of paragraph [11] of the Kearney Statement but, of course, they must be an amalgam of the questions asked at the four meetings. It may be that at one or more meetings that no questions were asked, and that may not be unusual as the employees only received the Agreement at each meeting.

[38] The CEPU submits that NCI failed to identify to employees terms in the Agreement that were less beneficial to the relevant modern award, and refers to the admonition of the Full Bench of such a failure in Australian Workers’ Union v Professional Traffic Solutions 9. That submission is without a doubt correct, because NCI (and Goldline), in answer to question 3.5 in the Form F17 identified three terms of the Agreement less beneficial than the Award. The CEPU have claimed there were many more. However, the manner in which NCI deals with that issue highlights the unacceptability of the explanation to employees. The relevant sequence was said to be as follows:

(a) Copies of both the Agreement and Existing Agreement, but not the Modern Award, were “made available” to employees at the meeting (Kearney [11(b)]). Changes to the existing agreement were apparently highlighted, though no such document was provided to the Commission;

(b) Employees were advised that no terms of the Agreement were less beneficial than the Existing Agreement, which was better off overall than the Award;

(c) Employees were invited to advise if, in their view, there were less beneficial terms (Kearney [11(b)]); and

(d) Employees did not advise of any terms they believed to be less beneficial.

[39] That the employees remained mute would have been unremarkable. They had only just received the Agreement and the Existing Agreement at the commencement of the meeting. They did not have access to the Award. It is highly unlikely that they would have had a working knowledge of the concept of “better off overall”, and yet it was for the employees to determine the existence of less beneficial terms. Clearly, no adequate explanation of less beneficial terms was given, and yet NCI has identified in the Form F17 three such terms.

[40] An additional basis to question the sufficiency of the explanation to employees is the scope of the explanation to employees. Mr Kearney specifically chose the defined term “Relevant Employees” and used it throughout his Statement. At paragraph [4] he stated:

“On 22-23 December 2018, NCI requested s employees to vote on (the Agreement). The employees who voted are those who are to be covered by the Agreement (Relevant Employees).”

[41] At question 2.10 of the Form F17, NCI stated:

“2.10 Provide the following details about the vote on the agreement:

At the time of the vote, how many employees were covered by the agreement? 85

How many of these employees cast a valid vote? 60

How many of these employees voted to approve the agreement? 49”

[42] On the basis of the definitionchosen andused by NCI, I cannot be satisfied all employees received explanations in relation to the Agreement in the meetings. It would seem only 60 of 85 employees received explanations. Mr Kearney concedes that “a few” Relevant Employees were unable to attend an Information Meeting.

[43] The final reason for finding that NCI, and also Goldline, have failed to establish compliance with s.180, is the misleading use of the term “CEPU” in the title and body of the Agreement. The Agreement was titled Sydney Construction & CEPU Multi Enterprise Agreement 2018. The title is repeated on each page of the Agreement, the CEPU is defined as “the Union”, and “Parties Bound” is said to include “the Union (if they elect to become a party).”

[44] I agree with the Union that the use of the term “CEPU” infers that the Agreement had been made with the CEPU and/or that the CEPU had been an active bargaining representative for the Agreement and/or the CEPU approved of the Agreement and its content. At all material times, each employer, and particularly NCI and Goldline, knew this to be untrue.

[45] NCI and Goldline were fully aware that the CEPU opposed multi-enterprise bargaining, yet the employers provided the Agreement to employees to vote upon with no notice to the CEPU. There were no other employee bargaining representatives, including any employees of any of the employers, engaged in the bargaining for the Agreement. Both NCI and Goldline, in a letter to employees attaching the Agreement, stated:

“The title of the Agreement presently refers to the CEPU. The Companies would like the CEPU to be a party to the Agreement in the event that it is approved by employees voting for it and it remains our hope that if the Agreement is so approved, the CEPU will decide to become a party to the Agreement. If the CEPU decide that they do not wish to be a party to the Agreement, then we will provide undertakings or make an application to the Fair Work Commission to have references to the CEPU removed.”

[46] There was simply no basis for NCI or Goldline to so advise their employees about what the CEPU may do. All dealings with the CEPU were to the contrary. The voting period for the Agreement was 23 hours and 59 minutes, commencing at 8:00am on Saturday, 22 December, 2018 and closing at 7:59am on Sunday 23 December, 2018, during a period of industry shut down and the weekend before Christmas. On the evening of 21 December, 2018, the Federal Court of Australia dismissed an application by the CEPU for interlocutory relief to stop the vote. However, on the question of whether an arguable case had been established, Justice Bromwich found:

“[10] I am satisfied that the inclusion of “CEPU” in the title of the Enterprise Agreement has the capacity to mislead or deceive or otherwise be false in conveying the impression that the Enterprise Agreement has at least tacit approval support of the union. I am satisfied also that this was at least reckless. I am not satisfied that letters and other communications from the respondents to their employees go far enough to correct that impression, let alone to convey the true position that the Union stridently opposed such multi-enterprise agreements. It is not denied that the respondents were aware of the Union’s position in that regard.”  10

[47] Ultimately, the CEPU was unsuccessful with the Application for interlocutory relief because it was unsuccessful in establishing:

(a) That s.18 of the Australian Consumer Law at Schedule 2 of the Australian Competition and Consumer Act 2010 (Cth) was capable of applying; and

(b) That s.345 of the Act was capable of applying.

Nonetheless, I agree with Justice Bromwich’s characterisation of the arguably misleading and deceptive nature of the inclusion of “CEPU” in the title of the Enterprise Agreement.

(b) Goldline

[48] As noted at paragraphs [43] to [47] above, I have found that Goldline have failed to establish compliance with s.180 of the Act due to the misleading use of the term “CEPU” in the title and body of the Agreement. I made that finding notwithstanding that Goldline had, on 7 December, 2019, emailed to all its employees correspondence from the CEPU to their Solicitor that was as follows:

“Re: "Industry Bargaining Announcement"

I refer to the above matter and to your correspondence of 7 December 2018.

As clearly confirmed in our previous correspondence, as well as previous correspondence, the CEPU does not intend to bargain for a multi-enterprise agreement. An obvious consequence of this is that Mr Hicks will not be meeting with you for the purpose of bargaining for a multi-enterprise agreement.

The CEPU rejects the assertion that bargaining has commenced.

An example of the information being distributed by representatives of the companies include material from Fredon to its employees which states, among other things, "The ETU is focusing all of their energy on visiting our sites and taking your employers to court”. For completeness, I note the companies' material do not appear on their letterhead, reducing the ability to properly identify the person who is responsible for the drafting and distribution.

As you are aware, the CEPU is engaging in lawful industrial activity and is seeking to negotiate single-enterprise agreements with employers of its members. The focus of the CEPU's energy is ensuring its members continue to achieve fair outcomes through bargaining. The CEPU does not consider multi-enterprise bargaining is consistent with this.

I trust the above satisfies your queries.

If you have any queries, please do not hesitate to contact me.”

[49] The contents of the above letter provided no basis for Goldline to assert, as it did in the letter to employees attaching the Agreement, that “The Companies would like the CEPU to be a party to the Agreement in the event that it is approved by employees voting for it and it remains our hope that if the Agreement is so approved, the CEPU will decide to become a party to the Agreement”.

[50] Another failure in explanation of terms of the Agreement was, as with NCI, the identification of less beneficial terms. At paragraph [10(e)] of his Statement, which was remarkably similar to paragraph [11(d)] of Mr Kearney’s Statement, Mr Toohey outlined the sequence of how less beneficial terms were dealt with, that followed the exact sequence outlined in paragraph [38] above. For the reasons expressed as to NCI at paragraph [39] above, such explanation was deficient.

[51] Mr Toohey’s Statement also suffered from the use of the defined term “Relevant Employees”. In the case of Goldline, at question 2.10 of the Form F17, the response was:

“2.10 Provide the following details about the vote on the agreement:

At the time of the vote, how many employees were covered by the agreement? 25

How many of these employees cast a valid vote? 21

How many of these employees voted to approve the agreement? 20”

[52] On the basis of the definitionchosen andused by Goldline, I cannot be satisfied all employees received explanations in relation to the Agreement in the meetings.

(b) Section 184 - Obligations as to Variation

[53] Sub-sections (2) and (3) of s. 184 of the Act provide:

“Variation of agreement

(2) Before a bargaining representative applies under section 185 for approval of the

agreement, the bargaining representative must vary the agreement so that the agreement is expressed to cover only the following:

(a) each employer whose employees approved the agreement;

(b) the employees of each of those employers.

(3) The bargaining representative who varies the agreement as referred to in subsection (2) must give written notice of the variation to all the other bargaining representatives for the agreement.”

[54] While otiose in light of my findings as to genuine agreement, technically, with the withdrawal of FIP, the Application should have been amended to delete reference to FIP and re-served on other bargaining representatives. That, however, could be cured by an amended Application were there no other impediments to approval.

(c) The BOOT

[55] While also otiose in light of my findings as to genuine agreement, I note the CEPU raised numerous issues regarding the BOOT. The CEPU identified:

(a) Clause 15(g): Clause 24.15(a)(i) of the Award prescribes a rate of double time for those employed on continuous shift work and engaged in overtime, but clause 15(g) of the Agreement makes no differentiation between continuous shift workers and a non-continuous shift worker;

(b) Clause 17: Clause 17 of the Agreement provides than an employee may be directed to take annual leave if the employee has an accrued annual leave balance of more than eight weeks, but Clause 28.6 of the Award provides that employees may be directed to take leave for excessive annual leave accruals, 8 weeks for employees and 10 weeks for shift workers;

(c) Clause 41: Clause 41 of the Agreement provides for the engagement of Apprentices. While Clauses 16.4(a) and (b) of the Award prescribe the rates of pay for Apprentices, there is no equivalent provision for apprentices under the Agreement. The Agreement is silent as to the rate of pay and entitlements for apprentices;

(d) First Aid Allowance: Clause 17.3(b) of the Award prescribes a first aid allowance of 2.1% of the weekly standard rate, being $17.59 per week, $0.46 per hour. Schedule C of the Agreement, however, prescribes a rate of for $2.40 per day;

(e) Meal Allowance: Clause 17.3(a)(i) of the Award prescribes a meal allowance of $15.34 per meal, but Schedule C of the Agreement prescribes a meal allowance of $14.55 per meal;

(f) Tool Allowance: Clause 17.2(b)(i) of the Award prescribes a tool allowance of $19.06 per week, but Schedule C of the Agreement prescribes a tool allowance of $18.00 per week; and

(g) Certain clauses from the Award are absent from the Agreement, including Electrician’s Licence Allowance, Industry Allowance, Multi-storey Allowance, Tower Allowance, Leave to deal with Family and Domestic Violence, a Casual Conversion Clause, and Clauses relating to Apprentices.

[56] The BOOT is not intended to operate in a manner that would see each individual entitlement in an enterprise agreement assessed against the corresponding entitlement in a modern award but intended to instead operate as a global assessment.

[57] What is required is an overall assessment, identifying terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment being made as to whether an employee would be better off under the Agreement as opposed to the applicable modern award. 11

[58] Such an overall assessment in this matter results in an assessment that the employees would have been better off under the Agreement. That is principally because the rates of pay are 76% to 96% above the Award rates.

(d) Unlawful Terms

[59] Clause 6 of the Agreement is in the following terms:

“This Agreement shall come into operation seven days after it is approved by the FWC and will nominally expire 48 months from approval. However, the next wage increase following those contained in this agreement shall not commence until 6 months after the expiry of this agreement. This Agreement will continue to operate beyond its nominal expiry date until it is replaced or terminated by law.” (Emphasis added).

[60] The CEPU submit that Clause 6 of the Agreement is an objectionable term in that it contravenes the General Protections provisions of the Act by misrepresenting the workplace rights of employees. Specifically, it is put that it purports to restrict employees from negotiating a new agreement, to take effect upon the expiry of the Agreement, with pay increases commencing in less than 6 months.

[61] There is not a live controversy as to the clause. However, due to both my determination as to genuine agreement, and because the Applicants had proposed to provide an undertaking to the effect that the sentence “However, the next wage increase following those contained in this agreement shall not commence until 6 months after expiry of this agreement” was to be taken as having no force or effect in the Agreement, it is unnecessary for me to therefore determine the lawfulness of the clause.

Conclusion

[62] Based on the materials provided, I am not satisfied that the statutory requirements of the Act have been met. Specifically, I am not satisfied that the Agreement passes the pre-approval requirements set out in s.180 of the Act. Consequently, I am not satisfied the Agreement has been genuinely agreed to by the employees covered by the Agreement.

[63] The applicationfor approval of the Agreement is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr N Read of Counsel, for the Applicants.

Ms A Heffernan of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, as bargaining representative.

Hearing details:

2019.

7 May:

Sydney.

Final written submissions:

For the Applicants: 26 April 2019

For the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia: 3 May 2019

Printed by authority of the Commonwealth Government Printer

<PR711596>

 1   Harman v Secretary of State for the Home Dept. [1983] 1 AC 280; Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 at [16].

 2   Australian Security Commission v Ampolex Ltd (1995) 38 NSWLR 504

 3 Section 591 of the FW Act.

 4   Just as a predecessor of the Commission saw that the rule in Browne v Dunn should be observed in Re National Building Trades Construction Award 1975 & Other Matters (1983)( 17 IR 446.

 5   Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992)38 FCR 217.

 6   See Pennyco Pty Ltd t/a Zarraffas West Ipswich [2017] FWCFB 4852, and Derbarl Yerrigan Health Service Inc. [2018] FWCFB 2721.

 7   The CEPU Submission at [6] to [9].

 8 At [112].

 9   [2018] FWCFB 6333.

 10   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Heyday 5 Pty Limited [2018] FCA 2109 at [10].

 11   Re Armacell Australia Pty Ltd (2010) 202 IR 38 at [41], confirmed by the High Court in Aldi v SDA [2017] HCA 53 at [92].