Hays Specialist Recruitment (Australia) Pty Ltd
[2019] FWCA 8698
•23 DECEMBER 2019
| [2019] FWCA 8698 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Hays Specialist Recruitment (Australia) Pty Ltd
(AG2019/2416)
THE HAYS SPECIALIST RECRUITMENT (AUSTRALIA) PTY LTD QUEENSLAND BLACK COAL ENTERPRISE AGREEMENT 2018
Coal industry | |
COMMISSIONER SPENCER | BRISBANE, 23 DECEMBER 2019 |
Application for approval of the Hays Specialist Recruitment (Australia) Pty Ltd Queensland Black Coal Enterprise Agreement 2018.
[1] An application has been made by Hays Specialist Recruitment (Australia) Pty Ltd (the Applicant) for approval of an enterprise agreement known as the Hays Specialist Recruitment (Australia) Pty Ltd Queensland Black Coal Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). Hays Specialist Recruitment (Australia) Pty Ltd is a labour hire company operating in the Coal Mining industry. The Agreement is a single enterprise agreement.
[2] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU/Union), was a bargaining representative for the Agreement, and provided submissions to the Commission raising a number of issues. The matter was the subject of a series of directions for further information, a conference and a Hearing on 19 December 2019. A summary of the outstanding issues raised were recorded in a table for the Hearing, and are referred to below. The table also noted agreed matters between the parties. Relevant undertakings have been provided as attached to this decision that deal with a number of the matters.
[3] After consideration of submissions, Mr Brotherson of Counsel was given permission pursuant to s. 596 of the Act to represent the Applicant at the Hearing.
Employees employed at the time
[4] The Union submitted that the employees who cast a vote in support of the Agreement were not employees ‘employed at the time’ for the purposes of s.181(1) of the Act, due to their status as casual employees.
[5] The phrase “employees employed at the time” was considered by a Full Court of the Federal Court in National Tertiary Education Union v Swinburne University of Technology. 1As subsequently summarised by a Full Bench of the Fair Work Commission, it was taken to mean “that an employer should only make a request under s 181(1) to employees who are employed “at the time”, as opposed to those who are not employed at the time but who might otherwise be regarded as “usually employed”.”2
[6] The Union stated that the Form F17 recorded that the 61 employees who would be covered by the Agreement are casually employed. With the number of employees who cast a valid vote also being 61. If the Agreement matches the terms of their current employment around their casual status they are presently under an arrangement where they are employed by the hour.
[7] The Union argued that the employment of these employees was directly relevant in determining whether or not they were ‘employed at the time’ within the meaning of s.181(1) of the Act. They referred to the observations of the Full Bench in CFMMEU v Noorton Pty Ltd T/A Manly Fast Ferry where it was found that:
“… A person who is a casual employee but who is not working on a particular day or during a particular period is unlikely to be employed on that day or during that period.” 3
[8] The Union went on to argue that there was no persuasive evidence before the Commission that could attest to the requirements as prescribed by s.182(1) and s.186(2)(a) of the Act.
Applicant Response
[9] The Applicant submitted that the Commission can be satisfied that the vote on the Agreement was made by the employees employed at the time and therefore made in accordance with s.182(1) of the Act. The Applicant made the following further explanation in addressing the Union’s concerns:
● Of the 108 employees covered by the Agreement at the time of the vote, 53 were employed by Hays on a casual basis. The remaining employees were employed on a full time basis.
● Of the 53 casual employees:
○ 49 were employed by Hays and engaged to perform work at client sites in 18 – 21 June 2019 voting period. These employees submitted timesheets were paid in respect of this period;
○ 2 employees had been engaged at client sites, but permitted by Hays to be absent from these engagements on what was considered a temporary basis (for an overseas holiday for one employee and for medical reasons for the other);and
○ 2 employees had been engaged at client sites, but permitted by Hays to be absent on unpaid leave while also receiving workers’ compensation payments. These were employees who but-for their illness or injuries would have been working at a client site in the 18- 21 June 2019 voting period.
● The voting period was set by Hays over a four day period to ensure employees (including casual employees) were able to cast a valid vote having regard to the rosters they worked.
[10] The Applicant further submitted that an enterprise agreement may be able to cover casual employees. The Applicant made reference the Full Bench authority of McDermott Australia Pty Ltd v AMWU, 4 noting that it is counter intuitive to disenfranchise casual employees of a right to vote on an agreement, that determines their wages and conditions, on the basis that they were not rostered to work on the day of the vote, or during the 7 day access period. The Applicant’s position in relation to the Agreement states that 53 casual employees were “employed at the time” of the vote as they were performing work or would have been performing work but for an absence for holiday, medical or workers’ compensation reasons.
[11] The Applicant acknowledges that 2 casual employees were incorrectly sent the link to vote on the Agreement, as they ceased working at client sites for the Applicant. Despite this notified error, and inclusion in the Form F17 count of 110 employees, the Applicant submitted that this did not have any bearing on the result of the vote. Further to this, the Applicant stated the results of the vote should be taken to be 33 of 59 eligible employees, and as a result, it yielded a majority of 55.9%. In relation to this, the Applicant considered this approach is consistent with the principles sent down in Aurizon Operations Limited & Aurizon Network Pty Ltd, where irregularities in the vote will not automatically bar the approval of the agreement where there is an “inescapable conclusion” that the outcome of the vote would not have been reversed.
[12] The material setting out the basis of the inclusion of casual employees is not persuasive, the vote appropriately took into account these casual employees. The acknowledged amendment to the number of casual employees, as set out, did not alter the voting result.
Sections 180(5), 188(1) – Explanation of the effect of the Agreement and Meaning of Genuinely Agreed
[13] The Union submitted that s.180(5) of the Act requires an employer to take all reasonable steps to explain the terms of the Agreement and the effect of those terms to the relevant cohort of employees. The Union referred to One Key Workforce Pty Ltd v CFMEU, 5 stating that the purpose of this obligation 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.” 6
[14] The Union contended that what constitutes all reasonable steps for the purpose of s.180(5) of the Act is entirely dependent on the facts and circumstances of the matter. Further to this, it was also submitted that the reasonableness of the steps taken also includes the contextual background of the employer, employee and as well as issues relating to capacity to access or understand the explanation in the terms that it was provided.
[15] The content of the Form F17 was brought into contention by the Union. It submitted that at question 2.7 of the Form F17, the Applicant did not adequately address the steps taken to explain the terms of the Agreement.
[16] The Applicant responded to the submissions, asserting that the Commission can be satisfied that the Agreement was made following a vote of employees “employed at the time” by the Applicant who were covered by the Agreement. In the Form F17 the Applicant stated that telephone calls and emails were made to the employees to explain the terms and effect of the Agreement. The Union considered that the information provided by the Applicant is of no assistance to the Commission in canvassing the steps taken to explain the terms and effect of the Agreement. The Union stated that there was no explanation on how many employees were spoken to by phone, how long the telephone calls lasted and the contents of the telephone calls. Further to this, the Union also stated that the Applicant did not provide information on whether any questions were asked by the employees during the telephone calls, how said questions were answered and the date these conversations occurred. The Union considered that the explanation of terms and effects of an enterprise agreement is a question of substance rather than form as found by the Full Bench on One Key: 7
“a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach a state of satisfaction…In order to reach the requisite state of satisfaction that s.180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement.” 8
[17] It is the Union’s position that, in consideration of the material provided by the Applicant, that the terms and effects of the Agreement were not adequately explained to the employees. It submitted that in order to determine reasonableness, particulars of each telephone call was required, and with reference to the rosters worked by the relevant employees varied, which may have impacted the employees’ capacity to receive any explanation from the Applicant. Further to this, the Union also acknowledged the challenges surrounding the rosters worked by the relevant employees; however, it considered an alternative approach should have been considered, including steps to schedule teleconferences, employees electing a time to take a telephone call or an explanation session to explain the terms and effect of the Agreement.
[18] The Union raised significant concern regarding the Applicant’s explanation of the effects of the Agreement to its employees. The Applicant provided its employees with a ‘summary of key terms’ via email on 12 June 2019. The email contained two documents; an ‘Agreement explanation’ and an ‘Award explanation’. The Union argued that these two documents were neither accurate nor succinct, and did not provide employees with an adequate explanation of the terms and effects of the Agreement. The Union stated that to understand the terms and effects of the Agreement, significant cross-referencing between the two documents was required, and the lack of internal reference within these two documents weighed against the explanation of the terms and effects of the Agreement. The Union submitted that the detail provided, and the way in which the explanations required employees to access, cross reference and understand the detail, was insufficient to achieve the purposes of s.180(5).
Applicant Response
[19] The Applicant submitted that it had taken all reasonable steps to ensure the terms and effect of the Agreement was adequately explained to all employees. In objecting to the Union’s contentions, the Applicant stated that the Commission must make an evaluative judgement of the steps taken by an employer having regard to the circumstances of the employer and its employees. The Applicant noted that an employer does not need to address each and every term of the Agreement, 9 nor is there a standard of perfection the Commission requires in carrying out this task.10
[20] The Applicant explained that this Agreement followed the prior Agreement. The Applicant considered the steps taken in relation to the explanation of the terms and effects were reasonable in the circumstances. It was noted that its employees who the Agreement covers work at eight client sites located throughout Queensland. Further to this, the relevant employees work various shift patterns, across 24 hours a day and seven days a week. The Applicant raised issue with the limited ability to meet directly with each employee at the sites they were engaged at. In addition, the Applicant also noted that their business model does not have on-site representatives and given the varying shift patterns of the employees work, it would be futile to conduct work site meetings and therefore the emailed documents and phone calls were used.
[21] The Applicant led submissions that demonstrated that the preferred method of employee communication was through email and telephone. The Applicant submitted that they utilised this practice in offering employment and communicating about matters relating to the employment relationship. The Applicant considered that for these reasons, it is not reasonable to meet face to face with each individual employee in the circumstances referred to above.
[22] Reference was made to the appointment of Ms Alison Burdett, Senior Manager for the Applicant during the enterprise bargaining process as a point of contact for employees. The Applicant stated that Ms Burdett’s contact details were provided in correspondence with each employee and an invitation, should questions or queries have arisen during the bargaining process to contact her. Furthermore, the Applicant submitted that the employees have demonstrated the ability to communicate via email and telephone and that they are experienced in the black coal mining industry, which it was explained should also factor into consideration.
[23] The Applicant further substantiated its position in relation to the explanation of the terms and effects of the Agreement in response to the matters addressed by the Union. The Applicant submitted it took into account the employees rostered hours and always used telephone calls, voicemail messages, text messages and email to communicate in relation to the bargaining process. The Applicant also provided a written explanation of key terms of the Agreement and key terms of the Award that is incorporated within the Agreement to further provide explanation of the terms and effects of the Agreement. For these reasons, the Applicant considers that the Commission can be satisfied that the requirement of s.180(5) are met. This matter is considered further below.
Section 188(1)(c) – other reasonable grounds for believing the Agreement has not been genuinely agreed
Union Response
[24] The Union submitted a proper explanation of the Agreement is essential for employees have the capacity to give informed consent.
[25] Mr Brotherson, for the employer, referred in detail to the documents that set out the explanation of the Agreement and the Award and their terms and effect. These explanations as per those documents provided appropriate explanation. The phone calls, as stated by Mr Brotherson, were an additional step taken to contact and communicate with employees:
“The phone call wasn’t the explanation. The explanation was principally in the explanatory memorandum. But what the phone call was, was to do take further steps to ensure that people had the documents, to provide an opportunity for them to express views or raise concerns.” 11
[26] In dealing with the requirement of ss. 180(5) and 188 of the Act, relevant s.188 of the Act defines when an agreement is genuinely agreed to as follows:
188 When employees have genuinely agreed to an enterprise agreement
(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(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 agreement has not been genuinely agreed to by the employees.
(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.
[27] In addition, s. 180(5) provides:
(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.
[28] In assessing the steps taking against these legislative provision, One Key Resources v CFMEU 12 the Full Court of the Federal Court assessed statutory provisions relating to genuine agreement. The Court held that a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach the required state of satisfaction. The Court said:
“… In order to reach the requisite state of satisfaction that s. 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement.” 13
[29] The Court also stated that:
“The Commission was required to be satisfied that OKW had taken “all reasonable steps to ensure” that both the terms and the effect of the terms had been explained to the relevant employees as an element in the inquiry as to whether “genuine” agreement had been obtained from them. 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.
In order for the employer to comply with the obligation it must take into account the particular circumstances and needs of those employees, including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative. That is made explicit in s 180(6). How could the Commission decide whether the steps the employer had taken were “all reasonable steps” unless it knew what the employees had been told before they cast their votes? Without knowing the terms in which the explanation had been conveyed how could the Commission form an opinion on the sufficiency of the explanation, particularly having regard to the considerations mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine agreement had been reached without having evidence upon which it could answer both these questions?” 14
[30] The relevant principles applicable to s. 180(5) were summarised in the Full Bench decision in AWU v Rigforce Pty Ltd where it was stated that: 15
“…The nature of the requirement in s 180(5) was analysed in detail by the Federal Court (Flick J) in CFMEU v One Key Workforce Pty Ltd. We adopt the summary of that analysis set out in CFMMEU v Ditchfield Mining Services Pty Limited, which reduced it to the following four propositions:
(1) whether an employer has complied with the obligation in s 180(5) depends on the circumstances of the case;
(2) the focus of the enquiry whether an employer has complied with s 180(5) is first on the steps taken to comply, and then to consider whether:
• the steps taken were reasonable in the circumstances; and
• these were all the reasonable steps that should have been taken in the circumstances;
(3) 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; and
(4) an employer does not fall short of complying with the obligation in s 180(5) of the FW Act merely because an employee does not understand the explanation provided.
[36] Additionally, we also adopt the analysis of Gostencnik DP in BGC Contracting Pty Ltd 11 concerning the nature of a statutory obligation to take “all reasonable steps” as follows (footnote omitted):
“[43] A requirement or obligation to take “all reasonable steps” seems to me to require the identification of the steps a reasonable person would regard as reasonable in the circumstances that apply. Whether particular steps are reasonable will depend on the particular circumstances existing at the time the obligation arises. A requirement to take all reasonable steps does not extend to all steps that are reasonably open in some literal or theoretical sense…”
[31] To discharge the requirements in s. 180(5) of the Act, more than an explanation of the terms of an agreement is required to be provided to employees. An explanation of the effect of the terms of an agreement is also necessary. The provision also requires satisfaction that ‘all reasonable steps are taken.
[32] In relation to the matter of the genuinely agreed requirements, it was set out on behalf of the Applicant by Mr Brotherson during the Hearing as follows:
“The genuinely agreed test obviously is set out principally at 188, and subsection (1) deals with the meaning of genuinely agreed, and it has three components, (a), (b) and (c). It appears that the dispute that the CFMMEU - or the objection that the CFMMEU raises is principally in relation to in subsection 188(1)(a)(i) in relation to subsection 188(5), which deals with certain pre-approval steps, and the second objection appears to arise under the more general 188(1)(c) that there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to. It appears that there is no particular issue with other matters which arise. Again, based on what we’ve discussed earlier I won’t therefore address those points. 16
So if I can deal firstly with the objection under 188(1)(a) which is - as I said, appears to be directed to what’s found in (i) and that is that subsection 180(5) has not been satisfied and if we deal with that, that is that all reasonable steps to ensure the terms of the agreement and its effect are explained and that the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of relevant employees. 17
It does not extend to all steps that might be reasonably open in some theoretical sense. The third tenet would be that the explanation does not need to specifically address each and every term, and to that extent a standard of perfection is not required, and it leaves for the Commission an evaluative judgment having regard to the circumstances of the employer and its employees. And, again, I think the guidance on it, the recent decision of two days ago, of Deputy President Asbury is a convenient place for highlighting the approach, and if, Commissioner, you have that available. 18
The steps that were taken by Hays in respect to these requirements are set out at the statutory declaration of Ms Syme at item 2.7, and if I can just take you to that, and this is the amended statutory declaration which I understand was filed on 6 September. Firstly, the steps that are set out there deals with the method by which Hays typically communicates with its employees, being normally phone and email. Commissioner, I’m trying not to jump between too many documents but - - - 19
And to place this requirement, and indeed the other requirement for genuinely agreed, which we’ll come to in a moment, in context, we are dealing – whilst there are employees who will be covered, or are covered currently by the Black Coal Award, we are dealing with an employer in the labour hire industry and it has employees spread throughout Queensland at eight different sites that are identified in the material. It doesn’t have onsite presence in a managerial or supervisory sense on those sites so it communicates, and its normal means of communication with those employees is phone and email. And that is the method it uses. It’s the method that its employees understand, and they themselves will use if they wish to communicate with the employer. So that’s an important part of context when understanding how the explanation was provided. 20
Now what Hays did, of course, was provide two explanatory documents to employees at, or during the process of seeking approval of the agreement and they were, and again, Commissioner, if I can just confirm that you have access to these because I think the filing of the amended statutory declaration didn’t repeat the annexures that were with the - - - 21
In the email itself it begins by referring to the proposed new enterprise agreement that’s being prepared that they’re going to be asked to vote on. And the middle paragraph confirms in the second sentence, “We now attach summaries of the proposed agreement and the award that explain the key terms and the effect of those terms.” And relevantly in the third paragraph, confirms, “If you have any questions about the proposed agreement and/or how it will apply, please contact Alison Burnett”, a senior manager, and a phone number is provided, as is an email address. 22
If we then look at the two attachments the first one is the enterprise agreement itself and it’s not my intention, Commissioner, to go through each clause of the agreement that is addressed but if I can take you firstly to item 4, which is relationship with awards and the National Employment Standards. In the second paragraph of that document you’ll see, “The effect of this is that where the proposed EA is silent on an issue we can revert to the award for the minimum terms and conditions. For example, this is the case with base wage rates. These are higher in the EA than the award. The wage rates in the EA will then apply to you instead of the wage rates in the award. However because the EA does not include, for example, entitlements for full-time and part-time employees to penalties, overtimes, loadings or allowances, they will be paid in accordance with the award.” And it goes on then in the third paragraph of that section, “Please refer to the summary document provided to you explaining the key terms of the award. You will also separately be provided with a copy of the award. You are encouraged to read both documents. 23
There is some criticism, I think, in the CFMMEU material that there is no linkage between these documents. Well, we reject that on the basis of what I’ve just taken you to. But the other criticism, or another significant criticism of the CFMMEU of what the company did, was that it might have set out the terms of the agreement but it didn’t describe the effect. We again resist that objection and say that this document, certainly item 4 that we’ve just addressed, clearly deals with the issue of the effect of the terms of the agreement. And just by way of example, Commissioner, on that, and again I don’t propose to deal with each item but in item 5, “Flexible arrangements”, if I can take you to the second paragraph, “The flexibility arrangements clause allows you and Hays to agree to vary the effect of some clauses in the EA to meet the genuine needs of you and Hays. The clause will only apply”, and so on. It is dealing with the effect of the provision. 24
Likewise, if we go to item 6, the dispute resolution item, the second paragraph, “A dispute may be raised about a matter under the EA, the NES, or in the course of employment. This is wider than the model term in the regulations which limits the raising of disputes to matters arising under the enterprise agreement or the NES.” And then it goes on, “Once a dispute is raised”, so again we say the explanatory note is not just setting out the terms, it is dealing with the effect of how these items would operate. And this continues, we say, throughout the document and importantly, employment status number 8 on the second page, which goes to one of the issues in contention in the proceedings, you’ll see in the second paragraph the last sentence (indistinct) says, “The EA provides for casual employment for all employee covered by the EA, including those covered by schedule A of the award.” We say that’s a very clear statement of what the enterprise agreement will do. 25
But then in the next paragraph at the last sentence, “This means that casual employees get paid a higher hourly rate of pay and are not entitled to be paid”, and then sets out the various things that will not apply. Again, it is not just explaining the term of the agreement but we say quite clearly, explaining the effect of the agreement, and doing so in a way that a group of employees of the type to be covered by this agreement would, in our submission, have no difficulty in understanding. The same applies then in item 9, “casual conversion.” It’s actually a provision not found in the Black Coal Award, but in the second paragraph of this item, again, “A regular casual employee is a casual employee who has over a period of at least twelve months’ working pattern of hours on an ongoing basis which without seeking adjustment the employee could continue to perform as a full-time or part-time employee.” It is describing the effect that this clause will have if someone seeks to activate the conversion. 26
And so we say that the criticisms of it cannot be made out, and irrespective of those criticisms we would be saying to you, that as an explanatory memorandum of an enterprise agreement to employees of the type to be covered by the agreement, is more than adequate to satisfy the genuinely agreed requirements. And a similar effect if we go to the award explanatory memorandum, again there’s some preamble paragraphs there that we think go a good way to making clear to employees what’s going to apply and I think it’s appropriate to at least specifically draw your attention to the first paragraph:- “As previously advised, the Hays agreement incorporates the terms of the award as amended from time to time. This means that where the proposed EA is silent on an issue we can then revert to the award for the minimum terms and conditions.” So that’s really the reverse comment of what we saw in the earlier document. So where there’s a criticism that there’s no linkage between these documents, we think that just can’t be made out, and we’re not sure why it could possibly be suggested that employees of this type would not be able to follow the explanation that’s provided. And again, “Below is a summary.” There’s offers of a phone number and an email for assistance. 27
But again perhaps if we just deal with clause 10, “Types of employment”, in the final bullet point there, “Casual employees are employees who are engaged and paid as such, and are paid an additional 25 per cent instead of the leave entitlements under the award. The award provides for casual employment for some employees. The effect of the EA is to make clear that any employee covered by the EA can be employed on a casual basis.” Again we say that’s going clearly not just to describing the terms of the agreement but its effect, and it’s clearly explaining how it interacts with the award. 28
Another point that we say should be a consideration for the Commission on this consideration as to the reasonable explanation point that is in contest, the CFMMEU had been a bargaining representative for this agreement. It’s not like some agreements where the CFMMEU tries to intervene at a later point and say, well, we don’t think this met various requirements. When the CFMMEU filed its F18 on 11 July this year it raised two objections as to why it said the agreement should not be approved. One was that they had concerns as to whether the BOOT was satisfied, and the other was they had concerns over the NES. 29
The concerns of the CFMMEU then grew. So when we see their written submissions filed later and then their reply submissions, we then get into the genuinely agreed point. But when Mr Pierce, who was the official involved, was there and when that F18 was filed, there’s no mention of these concerns. So our submission, Commissioner, ultimately becomes on the section 180, subsection (5) point, that whilst the CFMMEU make a number of criticisms to the approach of Hays they shouldn’t be accepted. And again, specifically to the criticisms that are made, they’re addressed at paragraph 35 of the submissions that were filed on 22 August. And I would add in my submission today that what they seek to do is set the bar far too high and beyond what the Commission needs to consider to reach the requisite level of satisfaction. 30
And we think there’s been a degree of misconstruing of what’s been done. We’ve gone to the explanatory memorandums that were provided and the submission we make is that they were more than adequate for the employees there. The union also then goes to the fact that there was a phone call made, a follow up phone call to employees and they seemed to be critical of that in some way which I don’t quite understand. The phone call wasn’t the explanation. The explanation was principally in the explanatory memorandum. But what the phone call was, was to do take further steps to ensure that people had the documents, to provide an opportunity for them to express views or raise concerns. It was an add-on and should be seen as a positive step that was taken rather than critical, that they claim they have no details of the phone call, and all these details of every phone call should be provided. We say that’s a nonsense proposition. That is not what the Commission requires to achieve the required level of satisfaction. And the explanatory memorandum taken with the other steps that were taken by the company including the follow-up to ensure people had documents, that they were reminded that documents had been sent, were enough to satisfy the requirements that they had taken all reasonable steps, and also that the steps were appropriate in the circumstances, and the explanation was provided in an appropriate manner, taking into account the circumstances and needs of the employees. 31
If I can then deal with the other ground that the CFMMEU seems to rely on, the genuinely agreed point which is 181(1)(c), and that is that there are no other reasonable grounds for believing that the agreement has not genuinely been agreed to. This of course is a more general criterial but it must be grounds that have not been relied on in opposing the truth - - -” 32
[33] In relation to the Union’s objection in terms of s. 188(1)(c), Mr Brotherson stated:
“Is cast in very broad terms. It has tended to pick up anything not caught by paragraphs (a) and (b), of any circumstance which could logically bear on the question of whether the agreement of the relevant employees was genuine would be relevant. One obvious example of the provision of misleading information or an absence of full disclosure, and they reference Toys R Us. Another is the likelihood that the relevant employees understood the operation of the various awards but would be affected by the agreement and the extent to which the wages and working conditions for employees under each of those awards would change, for better or worse under the terms of the agreement. Thus if we’d be wrong to conclude the Commission is bound by section 180 subsection (5) to consider the content of the employer’s explanation of the terms of the agreement and their effect in order to be satisfied that the agreement was genuinely agreed to having regard to section 188(a)(i), then for similar reasons we would hold that this was a matter which was not only relevant to the question raised by paragraph 188(c), but was a mandatory consideration. 33
Now genuine agreement requires informed consent and the circumstances to be considered are those that existed at the time the agreement was voted on. There’s actually, I think in the one authority that we haven’t provided that I can send but I suspect that you’d be aware of, Commissioner, Deputy President Asbury, again actually dealt with this, I think quite clearly in an earlier matter, Central Queensland Services Proprietary Limited, trading as BHP Billiton Mitsubishi Alliance [2015] FWC 1554. 34
THE COMMISSIONER: Yes. 35
MR BROTHERSON: And from paragraph 64, I think through to about 66 or 67, deals I think quite clearly with what the requirements for other reasonable grounds for believing agreement not genuinely agreed mean. And she certainly makes the point that I, I think, stumbled over earlier that if you’ve dealt with something under 188(1)(a) an (b), you don’t have a second crack at it then under 188(1)(c), you’ve got to have something else under that grounds. So where I think my friend raises it in the alternative, it either succeeds under one or the other. She can’t just keep saying, well, this is a good argument and it works here but if that fails we’ll try something else. It either gets up the first time or it doesn’t. 36
The submission we make as to other reasonable grounds, Commissioner, again these are often repeats of what we’ve already said but there is no other reasonable ground as to why this agreement is not genuinely proved. We’ve gone to the steps that were taken by the employer. The union was involved as a bargaining representative and took no objection as to the process. There’s been a valid requisite majority of employees voted to approve the agreement, there is no suggestion that there’s been any misleading information. There is some criticism perhaps of the quality of the information but we say none of the criticisms that are made go anywhere near being enough to say there are other reasonable grounds for believing this agreement has not been genuinely reached or genuinely agreed by the employees.” 37
[34] In relation to the matters of genuine agreement, s. 188 in particular, in accordance with ss. 180(5) and 188(1)(a),(b), and (c), on consideration of the explanations and the process undertaken, taking into account the context, that a proper explanation of the terms and their effect was given, and that the phone calls to employees were an additional step. For discussion of inquiry, the documents set out explanation of the appropriate terms and their effect. On the material, there were no other reasonable grounds for considering that the Agreement had not been genuinely agreed.
National Employment Standards (NES)
[35] The Union took objection that the definition of casual employees under the Agreement is broader than the definition of casual employees for the purposes of the NES. This issue of casual employment advanced by the Union, Mr Brotherson dealt with this matter as follows:
“The CFMMEU objection, as we understand it, is that the definition of casual employees under the agreement is broader than the definition of casual employees for the purposes of the NES.
Our submission is that’s a misconceived objection and it’s misconceived for a number of reasons. Firstly, there is no definition of casuals in the National Employment Standards. Secondly, the agreement at clause 4.3, and I take it the Commissioner has ready access to a copy of the agreement.
THE COMMISSIONER: Yes, I do, Mr Brotherson.
MR BROTHERSON: At clause 4 of the agreement, subclause 4, the agreement really confirms what the Act itself provides in any event, and that is that the National Employment Standards set out in the Fair Work Act apply to employees covered by the agreement, and this agreement is to be read as being consistent with and not derogating from the NES.
Notwithstanding those first two points that I’ve identified, the applicant has provided undertaking number 2, which again reaffirms that the agreement will be read and interpreted with the NES, and where any term of the agreement is inconsistent with the NES and provides a lesser entitlement than that provided by the NES, the NES will apply to the extent of that inconsistency, which effectively simply repeats section 56 of the Act.
The final item that I think perhaps my friend has helpfully obliged with today, in the bundle of authorities that was provided at number 4 she provides a copy of a decision of Asbury DP of 17 December of this year in the G02 People, where it appears this argument was run, and appears to have been rejected.” 38
[36] The argument was dealt with by reference to the recent decision The GO2 People Australia 39as follows:
“Thank you. On that basis, Commissioner, if I can take you then to paragraphs 57 to 61, it appears that the Deputy President essentially rejects the argument and confirms some of the propositions that I’ve just put, and that is that the NES doesn’t define casuals arising from the Workpac decision there. It causes a live issue at law as to whether somebody in any given case may or may not be a casual.
But she pertinently says from paragraph 60:
I do not accept the CFMMEU submission that the agreement gives GO2 People the ability to designate employees as casuals in a manner that is inconsistent with the way that casual employees are defined for the purposes of the NES. In relation to this argument the CFMMEU refers to the decision of Workpac Pty Ltd v Skene. As I have previously noted the Full Court of the Federal Court in that case observed that the term casual employee has no precise meaning and whether an employee is a casual employee depends upon the objective characterisation of the nature of the particular employment as a matter of fact and law. The Court in Skene found that a particular employee was not as a matter of fact or law a casual employee as defined in the relevant enterprise agreement.
I do not accept that the fact that an enterprise agreement contains provisions for casual employment in circumstances where a modern award that would otherwise cover the relevant employees does not, is of itself a basis to refuse to approve the agreement on the ground that it excludes the NES. If an employee under an enterprise agreement is misclassified as a casual employee the NES is not excluded. Similarly if an enterprise agreement is inconsistent with the NES the NES will prevail. If the Agreement in the present case is otherwise capable of approval I would not refuse approval on the ground that it excludes the NES simply on the basis that the agreement provides for casual employment.
Commissioner, no two enterprise agreements - well, I shouldn’t say that, sometimes they are, but without looking at each provision of the relevant enterprise agreement it strikes that it is effectively the same argument that’s been run by the CFMMEU. The Deputy President has formed a view, and unless you are of the view that that decision is plainly wrong then comity would suggest that you should follow that and that that issue should drop away, and indeed it might be convenient if my friend indicates whether she still presses that argument or not in light of that.
MS SARLOS: It’s a matter for reaching the state of satisfaction but in the circumstances we longer press the argument.” 40
[37] The above matter is accordingly considered dealt with similarly in accordance with the terms set out as extracted. Applicant also provided in support a NES undertaking in the following form which I consider also deals with this matter:
The Agreement will be read and interpreted subject to the National Employment Standards (NES) and, where any term of the Agreement is inconsistent with the NES and provides a lesser entitlement than that provided by the NES, the NES will apply to the extent of that inconsistency.
Better off overall test (BOOT)
[38] The Union raised a number of BOOT issues, that the parties refined in a table of residual issues as follows.
• Loaded rates for casual employees
• The base rate of the classification of Mineworkers Level 2
• The Agreement rate increase of the Award is 0.5%
• The introduction of casual employment
[39] In relation to the BOOT matters, the Applicant set out as follows:
“The final group of issues, we then come to the BOOT issues which are raised and that really captures the last two boxes in the table of objections and undertakings. The statutory declaration of Ms Syme at part 3 sets out in some detail, and certainly detail such as we say is routinely seen in such applications and would be accepted as sufficient, terms that are more beneficial, terms that are not provided by the award. It does say there are no terms which are less favourable than the award, and so that’s a legitimate thing to have done in circumstances where the award is incorporated into the enterprise agreement. It says, “No award entitlements are omitted”, which is correct in the circumstances that I’ve just mentioned. It does say that there are, at 3.7, yes, to there are some different terms and conditions and identifies 8.4, the casual provisions for production and engineering employees, and clause 9, casual conversion. Those provisions, perhaps depending on who would have completed the form, might in some circumstances in my submission perhaps have been included as beneficial terms, but in any event it’s not incorrect to identify them as different terms and conditions. 41
MR BROTHERSON: I will make the point before I deal with the items, the base rates in the agreement are 0.5 per cent above the award. The effect of the way the flat rates are calculated of course enhances that where people are working the approved rosters, because of the effect of penalties. I don’t press that it takes it substantially higher but there certainly is more than that where the flat rates are applied. But in any event if we deal with the items that are listed there as bullets, the first two items both deal with the individual flexibility agreement clause which is clause 2 of the agreement. And there’s two criticisms made of that provision, as I follow the objection. 42
The first is that it’s claimed that where the award at clause 7.3 has a specific exclusion of persons not yet employed under the award, this flexibility agreement does not actually have that exclusion. We say that’s a misconceived objection because the wording at 5.1 is, “Hays and an employee covered by this agreement.” To be an employee covered by this agreement you would have to be employed to be covered by the agreement. And I understand that there’s been some discussions where that’s been put to my friend but rejected, but that remains our position that that’s not a valid objection. 43
The second objection as it’s understood, is that at 5.5 the agreements, or any agreement that is made can be terminated by the party by giving no more than 28 days notice. Whereas clause 7.11 of the Black Coal Award would provide in most circumstances for 13 weeks(sic) notice. Now we say the entire objection is misconceived, and certainly from an analysis of the BOOT would not be something that even if it was to be taken into account would attribute significant weight as a negative. It could potentially even be seen as a positive depending on what one thought of the agreement. But if there was no flexibility agreement at all in the enterprise agreement then the model clause would apply. That’s the effect of section 202, subsection (4) of the Fair Work Act. The model clause provides for termination on 28 days notice. 44
So the agreement is consistent with the Act. It provides a provision. It provides a provision which is consistent with the model which would otherwise prevail if there was on agreement, and we say that is not something that the Commission would be troubled with when it comes to dealing with the BOOT assessment. Now that is the first two bullet points of the list. 45
THE COMMISSIONER: Yes. 46
MR BROTHERSON: The next group is the following three bullet points which all relate to the dispute settlement procedure, which of course is another mandatory requirement of an enterprise agreement and this is clause 6 of the enterprise agreement. And the three objections here, again we say firstly misunderstand the nature of the applicant’s business but in any event are not matters that offend the Fair Work Act or raise BOOT issues and the three objections are firstly, removal of the capacity to attempt dispute resolution with the relevant supervisor. 47
In the event of a dispute about a matter under this agreement, the NES or in the course of employment, the employee including the employee’s representative if any will in the first instance discuss the matter with their Hayes consultant and will attempt to resolve the matter at the workplace.
[40] Mr Brotherson placed the matter in the context of the Employer’s operation as follows:
“Now I explained earlier the context, this is a labour hire company. It doesn’t have site presence where the staff are working. The contact or the supervisor in perhaps more typical terminology of a dispute settlement procedure in this industry would be the Hays consultant that the person deals with. That is the misunderstanding of the business. But in any event, we say that’s not a BOOT issue because parties are really at large, subject to certain constraints, but certainly not going to this when it comes to how they might prescribe a dispute settlement procedure. 48
The second objection is that there is a removal of any capacity to resolve a dispute at the workplace level. That, Commissioner, I think is in my many ways simply a repeat of the first one. What is the workplace is sometimes not always easy to define but in a labour hire industry yes, they’re working at clients’ premises but their employer is somewhere else, the contact is the consultant. There is still the effort to say in 6.1, ‘resolve the matter at the workplace’ which I think needs to be understood in this case as the employee doesn’t need to leave some remote coal mine and come to Townsville or to Mackay or somewhere to deal with it. It can be dealt with in the usual manner by which these parties communicate. 49
The third objection again we say is misconceived, and that is the introduction of private mediation and dispute resolution and a failure to particularise how that cost will be covered. Now this can be seen in 6.3 and perhaps if I could just read from the third line. 50
Appropriate steps under clause 6.1 and 6.2 have been taken. A party to the dispute may refer the dispute to the Fair Work Commission or to an alternative mediator as agreed by the parties for conciliation or mediation. Failure to particularise how that cost would be covered.
Well presumably the issue of cost would be discussed at the time that the parties decide whether they’ve agreed to use the mediator. So the submission would have to be that is just looking for a reason to object. It’s not a BOOT issue. It should cover no weight and it’s no disadvantage to employees, it in fact enlarges the range of dispute resolution options. On that issue it would be remiss if I also didn’t point out of course in 6.1, I read the words, that the scope of the dispute settlement procedure is wider than under the award and wider than the minimum required under the Fair Work Act where it embraces also or in the course of employment. So that is not actually identified as a benefit but if the dispute resolution procedure was to be considered as a BOOT issue I think we’d make a reverse submission it should be seen more as a benefit rather than as a negative.” 51
[41] The further BOOT issue raised was the introduction of casual employment. This was addressed by the Applicant as follows:
“MR BROTHERSON: The next objection is a complicated process around calculating and confirming rates of pay under the agreement. The short submission on that, Commissioner, is the complaint there appears to be about machinery provisions, not the outcomes. It doesn’t appear to be a BOOT issue. The BOOT issue would be what those wage rates are or what those rates of pay are and we don’t any longer seem to have particular criticism about those other than what I’ll deal with when we come to casual employment. So again we would say that that shouldn’t be considered as a BOOT issue.” 52
[42] The Further BOOT issue raised by the Union was the creation of an obligation to pay for clothing and personal protective equipment (PPE) as per the following Agreement provisions:
19.7 Hays will issue all Employees with required Personal Protective Equipment (PPE) and all Employees must wear the PPE at all times as directed. pursuant to relevant legislation and as per applicable policies and procedures (including Hays’ clients’ policies and procedures). However. no such policies and procedures are incorporated into this agreement.
19.8 On engagement each employee will be provided with one shirt and one pair of pants for each day of the roster pattern upon which they are initially engaged. For example, employees on a 5 days on, 4 days off roster will be provided with 5 shirts and 5 pairs of pants. This clothing will be replaced by Hays on an ‘as needed’ basis (as determined by Hays). subject to reasonable wear and tear. Clothing will only be replaced if an employee returns the old shirts and pants to one of Hays’ offices.
19.10 Where an employee requires prescription safety glasses, Hays will make a contribution on an ‘as needed’ basis to a maximum of $300 annually to the cost of such glasses, subject to the employee providing Hays with a tax invoice as proof of purchase.
19.12 If an employee’s employment by Hays ends within 6 months of receiving new shirts. pants. safety boots, safety glasses. industrial outer clothing and/or a winter jacket that employee will be required to return that clothing and PPE to Hays. If the employee refuses and/or fails to return the clothing and PPE to Hays within one week of their employment ending, the employee agrees to have an amount equivalent to the cost of that PPE deducted from any amounts payable to them on termination in accordance with the following scale:
19.12.1. If the employee has had the clothing and/or PPE for less than 1 month, 100% of the cost of the clothing and PPE;
19.12.2. If the employee has had the clothing and/or PPE for more than 1 month but less than 3 months, 50% Of the cost of the clothing and PPE; and
19.12.3 If the employee has had the clothing and/or PPE for more than 3 months but less than 6 months, 25% of the cost of the clothing and PPE.
[43] It was submitted by the Applicant that:
“I would identify that under the award I think where the Black Coal Award in both schedule A and schedule B provides for reimbursement of up to two outer layer sets of clothing per year, this agreement provides for potentially substantially more than that as set out in 19.8, and provides benefits of reimbursement for safety glasses as well.” 53
[44] The issue relates to the repayment for clothing issues in circumstances where an employee has been engaged for less than six months and secondly, if an employee refuses and/or fails to return the clothing.
[45] The Applicant argued:
“So there’s two pre-conditions to that. It’s not that every employee that’s issued protective clothing has to repay. It’s subject to those two, we say fairly strict pre-conditions, and it’s then a sliding scale that is set out at 19.12.1, .2 and .3. 54
The wording of the provision, we say, is consistent with the Fair Work Act where it provides for deductions from employee wages, which provides in section 324 that where a payment is authorised under an enterprise agreement it would be a permitted deduction. So the clause is directed to what’s provided for in the Fair Work Act. It’s subject to we say tight pre-conditions that are really only activated principally where an employee, for whatever reason, has taken a view they want the clothing. If they want to give it back then that’s not activated. 55
We say overall the provision is far more beneficial for employees and that repayment provision is really not one that would allow the Commissioner in evaluating the BOOT test overall to come to a view that employees would not be better off under the agreement than otherwise.” 56
[46] On the basis of the pre-conditions (as explained) for repayment as set out, I do not consider this matter causes the Agreement to fail the BOOT.
[47] In regard to casual employment, the principal objection to the introduction of casual employee is noted by the applicant as follows:
“The remaining issue is the one of casual employment which - and the principal objection to the introduction of casual employees, and we assume this is directed to employees who would otherwise be covered by schedule A of the Black Coal Award because as the Commissioner well knowns, casual employment is available under schedule B. But the objection as set out in the table is that the loading of 25 per cent is not sufficient to compensate for the entitlements lost. 57
…It’s a decision - a Full Bench decision of an appeal of a decision of Lee C, dated 2 August 2017 reference [2017] FWCFB 3659. 58
Again it was an issue where part of the issue was how - a discussion around how a BOOT analysis might be done for employees under the Black Coal Award in circumstances where casual provisions were to be introduced into schedule A, and at 45 on page 8 of the Full Bench decision:
We recognise that the award provides for benefits that exceed those in the NES and that in important respects the conditions in question are those which do not apply to casual employees; leave, notice, termination and redundancy. However it is also the case that the award provides for casual employment of employees in staff classifications and that a casual loading of 25 per cent is provided. This does not necessarily mean that a 25 per cent loading would necessarily be appropriate as an award standard for production and engineering employees. As the Full Bench noted in the modern award review case referred to above, this is a question that needs to be resolved by reference to an appropriate evidentiary merit case. However, for the purposes of the BOOT we consider that in the presence or the presence in the award of a 25 per cent loading for casual staff employees is a matter which can be taken into account in considering the adequacy of the 25 per cent loading in the agreement for BOOT purposes.
Now at some point I think it must be acknowledged that presumably it maybe a Full Bench that looks at the question in the award for casual employees, but that’s not yet occurred. What we do have is saying a Full Bench of the Commission has accepted that the fact that casual staff employees under schedule B currently have that level of loading and I should add, particularly where all other terms and conditions of employment are largely the same, is a matter which can be taken into account in considering the adequacy of the 25 per cent loading in the agreement for BOOT purposes.
I think the complexity in the issue is the wording that the CFMMEU adopts in its objection, and that is it says it does not compensate in the case of the agreement for the other entitlements lost, including leave loading and entitlement to consultation and payments on termination provided for under the award.
Well, firstly, there are no casual employees currently employed by the employer in classifications that would be in schedule A of the award, so nobody loses anything. So we’re talking about prospective employees and the question is - and our submission becomes, there will be an extension of casual employment into schedule A, and the provision will be, that they will have a base rate which is higher than under the modern award and they will receive a casual loading akin to that that is already in the award for casual staff employees, in circumstances where other terms and conditions under the award apply equally to staff employees and production and engineering employees.
So the wording of the agreement if we look at the casual provision at 11 - sorry, 8.4 of the agreement.
Casual employees are engaged and paid as such and will be a loading of 25 per cent. Rates prescribed in this agreement are inclusive of the 25 per cent loading which is a payment in lieu of the following entitlements of non casual employees -
and it sets out:
Paid leave and leave loading, notice of termination, redundancy and public holidays not worked.
Now somewhere in the various material that I’ve read from my friend I think there’s a reference well under the award for staff employees the only exclusion is paid leave provisions if one looks in the modern award at clause 10.4 a casual employee working ordinary hours would be paid 135th of the appropriate weekly rate plus 25 per cent instead of leave entitlements. Now that would be A.
The reality is however of course that B, C and D are - I’ve described them as illusionary entitlements in any event for a casual employee because notice of termination, redundancy and public holidays not worked are things that a casual employee just does not get paid. So there’s nothing lost. It is simply an extension of the casual provisions to cover people under what would be schedule A of the award and is comparable to those of existing casual employees, and we say that the 25 per cent loading is an appropriate margin for that casual engagement.
That was the approach adopted by the Full Bench as something for the Commission to take into account and there is nothing in this agreement that would otherwise say some higher amount should be given.... 59
[48] The issue of casual employment and whether the Agreement passes the BOOT is a matter for consideration. I accept Mr Brotherson’s submissions that, consistent with the Decision of the Full Bench in the SESLS Industrial Pty Ltd, the Agreement passes the BOOT with respect to prospective casual employees. In this regard, as was the case in SESLS Industrial Pty Ltd, the Agreement incorporates the Black Coal Award and that while casual employment is not permitted under the Black Coal Award, the Agreement provides a 25% loading applicable to employees as set out in the aforementioned case authority. Further, the undertakings provided by the Applicant include a NES undertake and a reconciliation process that respond to the BOOT concern. Accordingly, I am satisfied that the Agreement also passes the BOOT for prospective employees.
Consultation
[49] The Union took objection to the consultation clause within the Agreement, submitting the clause was inconsistent with the requirement of s.205 of the Act. The Applicant, in addressing this concern, conceded that the Model Consultation Clause will be taken to be a term of the Agreement. Accordingly, the Model Consultation clause is taken to be a term of the Agreement.
Conclusion
[50] Further to the provision of the undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.
[51] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings (having been also provided to the Union for consideration) is attached to this Decision at Appendix A and the Agreement.
[52] For completeness as stated, the Agreement does not contain a model consultation term compliant with the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
[53] The Union 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.
[54] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after approval of the Agreement. The nominal expiry date of the Agreement is 23 December 2023.
[55] I Order accordingly.
COMMISSIONER
Appendix A
1 (2015) 232 FCR 246, [24], [27], and [38].
2 CFMMEU v Noorton Pty Ltd T/A Manly Fast Ferry [2018] FWCFB 7224, [19].
3 [2018] FWCFB 7224.
4 McDermott Australia Pty Ltd v AMWU [2016] 2222, [35].
5 One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77; (2018) 277 IR 23.
6 Ibid, [115].
7 One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77.
8 Ibid, [112].
9 Glen Eden Thoroughbred Pty Ltd t/a Ray White Shailer Park [2010] FWA 7217, [76-77].
10 CFMEU v Shamrock Civil Pty Ltd [2018] FWCFB 1722, [36].
11 PN139.
12 [2018] FCAFC 77.
13 Ibid at [112].
14 Ibid at [115] – [116].
15 [2019] FWCFB 6960.
16 PN81.
17 PN82.
18 PN87.
19 PN95.
20 PN97.
21 PN98.
22 PN110.
23 PN111.
24 PN112.
25 PN113.
26 PN114.
27 PN119.
28 PN120
29 PN137.
30 PN138.
31 PN139.
32 PN140.
33 PN148.
34 PN149.
35 PN150.
36 PN151.
37 PN152
38 PN49-54.
39 [2019] FWC 8505.
40 PN69-74.
41 PN153.
42 PN10.
43 PN161.
44 PN162.
45 PN163.
46 PN164.
47 PN165.
48 PN170.
49 PN171.
50 PN172.
51 PN178.
52 PN183.
53 PN184.
54 PN189.
55 PN190.
56 PN193.
57 PN194.
58 PN199.
59 PN201-PN213.
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