GrainCorp Operations Limited T/A GrainCorp

[2021] FWCA 3477

[2021] FWCA 3477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

GrainCorp Operations Limited T/A GrainCorp
(AG2021/3975)

GRAINCORP OPERATIONS LIMITED – NSW COUNTRY OPERATIONS (AWU) ENTERPRISE AGREEMENT 2020

Grain handling industry
COMMISSIONER YILMAZ	MELBOURNE, 16 JUNE 2021

Application for approval of the GrainCorp Operations Limited - NSW Country Operations (AWU) Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the GrainCorp Operations Limited - NSW Country Operations (AWU) Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by GrainCorp Operations Limited T/A GrainCorp. The Agreement is a single enterprise agreement.

[2] The AWU filed a Form F18 on 4 March 2021 outlining its concerns with the Agreement and opposed its approval.

[3] On 11 March 2021 after having assessed the Agreement for approval, the Commission wrote to the Applicant and the AWU with those matters it had identified requiring further information and/ or undertakings. Both the Applicant and AWU responded to those matters.

[4] The objections by the AWU to the approval of the Agreement can be characterised as being in relation to the BOOT, the Notice of Employee Representational Rights (NOERR) and whether the Agreement was genuinely agreed to by employees.

[5] The Applicant was granted leave to be legally represented pursuant to s.596 (2) (a), (b) (c) on the basis of the complex AWU objections, that the matter would be dealt with more efficiently with legal representation as the Applicant lacked experience in matters before the Commission particularly in contested matters and therefore could not properly represent itself, further I considered the balance of fairness between the inexperience of the Applicant with the experienced AWU representative. The AWU did not object to the Applicant being legally represented. The parties agreed that this decision may be determined on the papers.

[6] This decision addresses each of the objections raised by the AWU and the matters raised by the Commission.

Better off overall test

[7] For the purposes of the BOOT, an analysis of the Agreement against the GrainCorp Country Operations Award 2015 and Manufacturing and Associated Industries and Occupations Award 2010 occurred. The AWU has identified a number of provisions in the Agreement that it says are deficiencies, and their cumulative effect falls short of the BOOT. It further submits that the Applicant has failed to address the deficiencies, therefore the Commission cannot be satisfied that employees are better off overall under the Agreement than the relevant Award.

[8] The Applicant submits that the AWU has taken a line-by-line approach, rather than the correct approach set out by the Full Bench in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery[2017] FWCFB 1664 at [12]: 1

‘The application of the better off overall test is not to be applied as a line-by-line analysis. Rather it is a global test requiring consideration of advantages and disadvantages to award covered employees and prospective award covered employees of an agreement’s application compared to the application of a relevant modern award. The application of the better off overall test therefore requires the identification of terms of an agreement which are more beneficial to the relevant employees when compared to the relevant modern award, the terms of an agreement which are less beneficial or detrimental when compared to the relevant modern award and then an overall assessment of whether each relevant employee would be better off under the agreement.’

[9] In regard to the BOOT, the Commission raised concerns that the Agreement provides casual employees with rates of pay between 0.34% - 4.84% above Award rates of pay. The less beneficial terms may result in casual employees not being better off overall. Those less beneficial terms identified for the Applicant included the first aid allowance, paid meal breaks, time spent travelling and the camping allowance.

[10] First aid allowance – The AWU submits the Agreement contains no allowance for permanent or casual employees. The Applicant confirms that the Agreement contains no first aid allowance for either permanent or casual employees. In response to the AWU submissions, the Applicant provided a table demonstrating that each classification is paid between 13.6% to 35.5% higher than the relevant Award rate inclusive of the Award industry allowance. The weekly first aid allowance applicable to those permanent employees qualified by the St John Ambulance standard or equivalent and if requested to act as first aid attendant have rates of pay that comfortably covers the first aid allowance. Regarding the Commission’s concerns that casual employees requested to perform first aid attendant duties would not be better off, the Applicant provided an undertaking that it will not appoint a casual below level 3.1. This undertaking addresses the Commission’s concerns and appears to address the AWU concerns.

[11] Overtime meal break – The AWU submits that casual employees are not entitled to a paid overtime meal break compared to the relevant Awards. The Commission raised with the Applicant that under the Agreement, casual employees are entitled to a paid meal break after two hours of overtime compared to 1.5 hours under the Award. In response the Applicant provided an undertaking to address this issue. The undertaking satisfies the Commission’s concern.

[12] Payment for travel time – The AWU submits that casual employees do not receive payment for travel time compared to the relevant award. Further the AWU submits that the Applicant’s response to the Commission’s correspondence fails to address the BOOT concern.

[13] In response to the Commission’s concerns, the Applicant submitsthatcasual employees are employed to provide additional labour during harvest, which is seasonal. The Applicant confirmed the evidence of Mr Cowdrey that casuals are only employed for approximately 8-10 weeks. 2 The Applicant contends that casuals are normally employed locally or casuals that travel to the harvest for employment. The Applicant further submits that casuals are informed that travel and camping allowance is not paid to casual employees prior to their engagement. The Agreement expressly provides that both travel and camping allowance is not payable to casual employees at clause A.3.3(c) of the Agreement. The Applicant further contends that the GrainCorp Country Operations Award 2015 does not provide for travel allowance or camping allowance to casual employees. The reference in the Award states that the travel allowance applies “where on any day an employee is required to work at a site other than the employee’s normal place of employment.” 3

[14] The Applicant submits that due to the nature of engagement of seasonal casuals they are not required to work at any other location but offered casual shifts at harvest locations. As casuals do not have a normal place of employment, travel time for casuals is not a less beneficial term for casual employees.

[15] Camping Allowance – The AWU submits that casual employees do not receive a camping allowance compared to the GrainCorp Country Operations Award 2015. Further the AWU submits that the Applicant’s response to the Commission’s correspondence fails to address the BOOT concern. The Applicant relies on the same submissions regarding the travel allowance to explain why the camping allowance is not applicable to casual employees. The camping allowance only applies when an employee is required at a place that is not their normal place of employment and as casuals do not have a normal place of employment the allowance does not apply. 4 As casuals do not have a normal place of employment the camping allowance is not a less beneficial term for casual employees.

[16] Following the evidence of the Applicant, I am satisfied that there is no BOOT concern regarding the travel time and camping allowance for casual employees.

[17] Shift work afternoon shift definition – The AWU submits that both Awards provide an afternoon shift penalty of 15% for a shift that finishes after 6pm and before midnight. Clause 26.5 of the Agreement provides a loading of 15% for a start before 8.30pm and which finishes before midnight.

[18] The Commission did not raise the afternoon shift loading as a BOOT issue.

[19] The Applicant contends that the rates of pay are significantly higher than the rates of pay under the Awards to cover the 15% afternoon shift loading. Further the Applicant relies on clause 17.2(b) of the Award that allows for agreement by majority to alter the spread of hours, and the successful vote for the Agreement is indication that employees would have agreed to the change to the spread of hours. I do not consider that the vote for the Agreement can be said to be a vote to likely alter the spread of hours. In any event the Applicant contends there is no BOOT issue.

[20] The AWU state in their submissions that the undertakings provided for the afternoon shift, camping allowance and payment for travel time has not resolved the issues. 5

[21] The Commission’s modelling does not show that the non-payment of the afternoon shift loading poses a BOOT concern.

Notice of Employee Representational Rights

[22] The AWU contends that the Applicant failed to satisfy the requirements of s.173 (1) of the Act. Relevantly the provision requires that the employer must take all reasonable steps to give notice to employees to be covered by the Agreement and employed at the notification time, of the right to be represented by a bargaining representative.

[23] The witness statement of Mr Ron Cowdrey, Organiser at the Australian Workers’ Union who had carriage of the bargaining and approval process on behalf of the AWU takes issue with the records provided by the Applicant in response to the Commission’s query regarding the AWU’s concern that not all employees received the NOERR. 6

[24] Mr Cowdrey submits that the records submitted by the Applicant shows 177 employees received the NOERR, while the form F17 states that 299 employees are to be covered by the Agreement. 7

[25] Mr Cowdrey also notes that he is aware of 20 casual employees engaged in the Southern Region of the business, while the records show no casual employees. The Applicant’s records show no casual employees in the Southern Regions received the NOERR. 8

[26] In the Northern Region the Applicant’s records show 23 casual employees received the NOERR, while the form F17 states 148 casual employees are covered by the Agreement. 9

[27] Mr Cowdrey submits that casual employees advised organisers that they had not had the terms of the Agreement explained to them, instead were advised by the Applicant to vote ‘yes’. Mr Cowdrey states that the casual employees that expressed those views would not provide written statements, and he further contends that the process is flawed because of a fear that past casual employees voted to approve the Agreement and not all eligible casuals received electronic voting codes to vote. 10 There was no evidence to support these AWU submissions.

[28] The Applicant explains the discrepancy in numbers identified by Mr Cowdrey due to the date the NOERR being distributed in August 2021, at the time the Applicant initiated bargaining. Both witnesses contend the harvest season commences in the Northern Region around October and concludes in the Southern Region in around March. This explains why there were no casual employees in August 2020, and the 23 casual employees in the Northern Region in August 2020 were preparing for the upcoming harvest. At the time of the vote in February 2021 there was a higher number of employees due to the harvest season.

[29] The Commission sought from the Applicant submissions to address the AWU concerns and sought confirmation that at the time of the vote, that only those casual engaged were permitted to vote as reasoned by the Full Bench in Kmart Australia v Retail and Fast Food Workers Union Incorporated & Shop, Distributive and Allied Employees Association and Another. In responding, I am satisfied that the Applicant provided a satisfactory explanation for the difference in numbers of casuals in August 2020 when the NOERR was distributed compared to the time that the Agreement was voted on. I am also satisfied that the Applicant addressed the concern that only casuals employed at the time of the vote had voted. 11 However, the Applicant has brought to the Commission’s attention that on review of their records it had identified that in August 2020 two casuals were omitted from receiving the NOERR, however, those two casuals were not employed at the time of the vote.12 As this omission has no disadvantage to employees covered by the Agreement, consistent with s.188(2) I consider this omission to be a minor technical error as there are no reasonable grounds that the Agreement would not have been genuinely agreed.

Genuinely agreed

[30] The AWU contends that the Applicant failed to provide the NOERR to all employees, that not all casual employees were explained the Agreement, that ineligible casuals voted for the Agreement and eligible casuals were denied the opportunity to vote and that therefore the Commission cannot be satisfied that the Agreement was genuinely agreed. 13

[31] The witness statement of Ms Leanne Ehrlich details the steps taken by the employer to explain the Agreement, corrects information contained in the form F17 and addresses the remaining concerns raised by the AWU. I am satisfied that the Agreement was genuinely agreed.

[32] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[33] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[34] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[35] The Australian Workers’ Union 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) I note that the Agreement covers the organisation.

[36] The Agreement is approved and in accordance with s.54, will operate from 23 June 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Annexure A

 1   Submissions of GrainCorp Operations Limited at [4] – [5].

 2   Witness statement of Mr Cowdrey, Organiser, dated 7 April 2021 at [7] and Statement of Ms Leanne Ehrlich, Human Resources Business Partner dated 21 April 2021 at [2] – [5].

 3   Clause 15.2 of the GrainCorp Country Operations Award 2015.

 4   Clause 15.1 of the GrainCorp Country Operations Award 2015.

 5   Submissions of AWU at [13] and reply submissions filed by the AWU.

 6   Witness Statement of Mr Ron Cowdrey, Organiser, dated 7 April 2021.

 7 Ibid at [12].

 8 Ibid at [13].

 9   Ibid at [14] – [15].

 10   Ibid at [16] – [17].

 11   Witness Statement of Ms Leanne Ehrlich, Human Resources Business Partner dated 21 April 2021 at [11] – [14].

 12 Witness Statement of Ms Leanne Ehrlich, Human Resources Business Partner dated 21 April 2021 at [10].

 13 Witness statement of Mr Ron Cowdrey, Organiser at [19].

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