Kingston City Council T/A Kingston City Council
[2020] FWCA 2323
•4 MAY 2020
| [2020] FWCA 2323 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Kingston City Council T/A Kingston City Council
(AG2019/4157)
KINGSTON CITY COUNCIL ENTERPRISE AGREEMENT NO 9 2019 - 2022
Local government administration | |
COMMISSIONER CIRKOVIC | MELBOURNE, 4 MAY 2020 |
Application for approval of the Kingston City Council Enterprise Agreement No 9 2019 – 2022 – multiple objections by employees – employees incorrectly excluded from voting cohort – whether agreement was genuinely agreed pursuant to section 188(2) – whether agreement passes BOOT – agreement approved.
Introduction
[1] An application has been made for approval of an enterprise agreement known as the Kingston City Council Enterprise Agreement No 9 2019 – 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kingston City Council t/a Kingston City Council (Kingston). The Agreement is a single enterprise agreement.
[2] A notice of employee representational rights (NERR) was provided to employees on 19 February 2019 and 21 February 2019. 1 The NERR complied with the Fair Work Regulations 2009 (Cth). Employees were provided with access to the proposed Agreement and information about the effect of the terms of the Agreement along with a notice of the time and place and method of voting was provided to employees on 26 September 2019.2Voting occurred in the period between 14 October 2019 and 17 October 2019 and a majority of those who voted approved the Agreement.3
[3] The Applicant filed a statutory declaration in support of the Agreement. The statutory declaration noted the relevant awards for the purpose of the Better Off Overall Test (the BOOT) were: 4
• Victorian Local Government Award 2015 (the Government Award);
• Nurses (ANMF – Victorian Local Government) Award 2015; and
• Victorian Local Government (Early Childhood Education Employees) Award 2016.
(collectively, the Awards)
[4] The statutory declaration noted that some of the provisions in the proposed Agreement were more beneficial than the Awards or were not conferred by the Awards, and that some terms were less beneficial than the Awards.
[5] The following employee organisations have filed a Form F18 with the Fair Work Commission (the Commission) seeking to be covered by the Agreement:
• Australian Education Union (the AEU);
• Australian Nursing and Midwifery Federation (the ANMF);
• Australian Municipal, Administrative, Clerical and Services Union (the ASU); and
• Association of Professional Engineers, Scientists and Managers, Australia (Professionals Australia).
[6] Each of the unions filed statutory declarations which indicated as follows:
• The AEU and ANMF support the approval of the Agreement; 5 and
- Professionals Australia and the ASU declined to indicate whether they supported the approval of the Agreement. 6
[7] The Commission wrote to the Applicant on 11 November 2019 identifying matters requiring a response. The Applicant provided its final response 8 April 2020.
[8] A group of 8 employees (the Objectors), including Mr Rami Freiha appointed to speak on behalf of the Objectors, 7 lodged an objection with the Commission with respect to the approval of the Agreement. The Objectors filed comprehensive objections, that I have considered in coming to my decision. Whilst not all of the objections were fully developed, I have attempted to distil their application and relevance to the matters I am required to consider in coming to my decision.
[9] The Objectors pressed submissions on their concerns in material filed on:
• 15 November 2019;
• 6 December 2019;
• 27 February 2020; and
• 16 March 2020.
[10] Kingston responded to these objections in material filed on:
• 20 December 2019;
• 9 January 2020;
• 14 January 2020;
• 22 January 2020;
• 28 February 2020; and
• 13 March 2019.
[11] On 18 December 2019, the ASU provided a response to the objections. 8
[12] With the consent of the parties, I determined this matter on the papers. I have set out below the reasons for my decision.
Statutory Provisions
[13] The relevant provisions of the Act to consider in relation to these objections are sections 180, 182, 186, 188 and 193. These sections provide as follows:
“180 Employees must be given a copy of a proposed enterprise agreement etc.
Pre-approval requirements
(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.
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.
(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).
…
(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.
Employees must be given copy of disclosure documents etc.
…
182 When an enterprise agreement is made
Single enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each employer, that will be covered by a proposed single enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement…”
“186 When the FWC must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.
Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.
Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).
Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).
Requirement that the group of employees covered by the agreement is fairly chosen
(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.
(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Requirement that there be no unlawful terms
(4) The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).
Requirement that there be no designated outworker terms
(4A) The FWC must be satisfied that the agreement does not include any designated outworker terms.
Requirement for a nominal expiry date etc.
(5) The FWC must be satisfied that:
(a) the agreement specifies a date as its nominal expiry date; and
(b) the date will not be more than 4 years after the day on which the FWC approves the agreement.
Requirement for a term about settling disputes
(6) The FWC must be satisfied that the agreement includes a term:
(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.
Note 1: The FWC or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).
Note 2: However, this does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).”
“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.”
“193 Passing the better off overall test
When a non greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.
…
FWC may assume employee better off overall in certain circumstances
(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.”
[14] I now turn to consider the issues raised by the Commission and the parties.
Form and signature requirements
[15] The Commission identified, at 2.1, a typographical error in the Form F16 which referred to 1,381 employers covered by the Agreement. In response to this, Kingston clarified there was only a single employer in this matter.
[16] Having regard to the circumstances, I am satisfied that it is appropriate to exercise my discretion under section 586(a) of the Act to allow a correction or amendment to address this error.
Pre-approval matters
Whether the Applicant complied with the requirements of s180(3) of the Act
[17] Having reviewed the material provided to the Commission, and subject to my comments later in this decision, I am satisfied that the Applicant has complied with the requirements of section 180(3) of the Act.
Whether the Applicant complied with the requirements of s180(5) of the Act
[18] The Applicant submits that it has taken all reasonable steps to explain the terms and effects of the terms to employees. Having regard to the Applicant’s submissions, the fact that the Agreement is a replacement of an existing agreement and the information sessions conducted by the Applicant, and subject to my comments later in this decision, I am satisfied that the Applicant has complied with the requirements of s180(5) of the Act.
Mandatory terms
[19] The Commission identified that clause 23.2 of the Agreement does not include terms in relation to changes in regular roster or ordinary hours whereas section 205(1A)(b) of the Act requires an employer to invite employees to give their views about the impact of change, including any impact in relation to family or caring responsibilities.
[20] Having regard to clause 23.2 of the Agreement and section 205 of the Act, I am satisfied that it is appropriate in the circumstances to require that the model consultation clause be inserted into the Agreement. I am consequently satisfied that the requirements of section 205 are met.
National Employment Standards
[21] The Commission identified two clauses which potentially conflict with the National Employment Standards (NES), being clauses 20.5(a) and 23.5(j). The Agreement contains an NES precedence clause at clause 6.3 as follows:
“Where the NES provides, or are varied to provide, a condition or entitlement more favourable to an Employee in a particular respect than that set out in this Agreement, the condition or entitlement in the NES prevails”
[22] Section 55(1) of the Act makes clear that a term of an Agreement “must not exclude the National Employment Standards or any provision of the National Employment Standards” I am satisfied that any term which is in conflict with the NES would have no effect to the extent of the conflict by reason of the NES precedence clause at clause 6.3 of the Agreement and the undertakings provided by Kingston.
[23] I am consequently satisfied that the requirements of section 186(2)(c) are met.
Genuinely agreed - voting cohort issue
[24] Two problems emerged as to those employees who were included in the cohort of those permitted to participate in the voting process for the Agreement. First, 46 casual employees, who did not engage in paid work until after the voting process started, were wrongly included in the voting cohort. 9 Secondly, 66 employees appear to have engaged in paid work during the access period but were not included in the voting cohort.
[25] On the basis of the information provided in the F17 and confidential material provided to the Commission:
• 1,306 employees make up the cohort of those permitted to vote; 10
• 332 of the voting cohort consists of casual employees;
• 827 employees voted in relation to the approval of the Agreement; 11 and
• 514 employees voted to approve the Agreement. 12
[26] Even if I were to assume that all 46 of the employees identified in paragraph [24] above all (invalidly) cast a vote, and voted in favour of approval, if those votes are discounted from both the total votes (827 – 46 = 781) and the votes in favour (514 – 46 = 468), it still leaves a majority voting in favour of the Agreement. Further, if all 66 employees identified in paragraph [24] above had been given an opportunity to vote, had all cast a vote, and had all voted against approval, then the inclusion of such votes in the total number of votes (781 + 66 = 847) but not in the total number of votes in favour (468), there would still be a majority in favour. In that scenario the voting cohort is 847, of whom 468 voted to approve the Agreement. As such, in that scenario there is still a valid majority of approximately 55% voting in favour of approval of the Agreement. The error in the voting cohort therefore could in no conceivable circumstances have affected the outcome.
[27] A further issue arguably arises in relation to the 66 employees. Section 188 defines what is required for the Commission to be satisfied that an agreement was “genuinely agreed”. The requirements include:
● compliance with the pre-approval steps in sections 180(2), (3) and (5) which, broadly speaking, concern the provision of the text of the agreement to relevant employees, notification of the time, place and method of the voting process, and an explanation of the terms of the agreement and their effect (section 188(1)(a)(i)); and
● relevantly, that the agreement is “made” in accordance with section 182(1), which is arguably premised on a request to approve the agreement having been made to all employees employed at the time who will be covered by the agreement (section 188(1)(b)).
[28] It is apparent on the material before me that Kingston wrongly excluded 66 employees engaged during the access period from the voting cohort. It is unfortunate that this issue arose at a late stage in the proceedings notwithstanding a number of requests from the Commission to Kingston from at least 19 February 2020 to provide the voting cohort records. Further, this was not an issue brought to the Commission’s attention by Kingston, which appears not to have been aware of the problem, but was rather identified in analysis performed by the Commission’s Agreement’s Triage team.
[29] I infer from the exclusion of the 66 employee from the voting process that the pre-approval steps in sections 180(2), (3) and (5) were also not taken in respect of such employees. Additionally, it is arguably the case that because the 66 employees, who were employed at the time and who would be covered by the Agreement, were not requested to vote to approve the Agreement, the Agreement was not “made” in accordance with section 182(1). For these reasons I am not satisfied that the Agreement was genuinely agreed in accordance with section 188(1).
Genuine agreement – other objections
Objection 4 and Objection 5 – Misleading as to remuneration changes
[30] The Objectors submit that the pay increase was conveyed to employees in a “misleading” way to “attract more voters” as the increase is “trivial” considering it was intended to “compensate us for losing the weekend penalty rates…”. In response, Kingston referred to the contents of a document sent to employees during the Agreement’s approval process which set out the changes under the Agreement. The Objector’s reiterated that the Kingston response “missed the point” and that the wording was misleading by using a percentage, with such an outcome being “not fair”.
[31] I have reviewed the document provided by Kingston to employees dated 26 September 2019 (the September Document) which contains content alleged to be misleading. The document clearly states the proposed increases as a percentage. The fact that Kingston elected to express this increase as a percentage does not, in my view, make it inherently misleading.
[32] On the basis of the above, I do not accept the Objectors’ submissions.
Objection 6 – the form of the vote
[33] The Objectors submit that the vote for the approval of the Agreement was put to employees as a “yes or no” to the overall Agreement but should have in fact been itemised to allow for a separate vote on each clause, as it could not be “fair” to ask a single question. This submission is not fully developed and there is no suggestion by the Objectors that the legislation requires a separate vote on each clause of the Agreement.
[34] On the basis of the material before me, I do not accept the Objectors’ submissions.
Objection 13 – direction to find other employment
[35] The Objectors submitted that at a meeting prior to the vote on the Agreement, employees were told that “they are free to go find another job if they are not happy with the pay cuts…” and that is was not “fair” bargaining as the meeting was an information session where employees had no input as Kingston has already made up its mind about the cuts. Kingston submitted that it was not aware of specific comments made, but accepted that this could have been said in reference to Kingston’s casual employees choosing to work elsewhere if the changes were deemed unreasonable. The Objectors further submitted that this comment regarding choosing to work elsewhere shows how Kingston values it employees.
[36] The precise nature of this objection as it relates to the approval of the Agreement has not been fully developed. There is no material before me nor was there any evidence led to suggest that the bargaining process was affected in any way that would prevent approval of the Agreement.
[37] On the basis of the material before me, I do not accept the Objectors’ submissions.
Objection 19 – results being “not very far off”
[38] The Objectors submitted that the result of the vote produced a result where “almost half” of employees voted no and the yes vote was passed because not all departments were affected by the cuts and by being misleading. Kingston responded submitting that the Agreement received 62% of the vote and reiterated its submissions in relation to previous accusations that they had been misleading. The Objectors conceded that if the 86 employees highlighted by Kingston had all voted no, the effect would have been that only 56% approved the Agreement.
[39] I have dealt with the issue of the voting cohort above at [24] to [29] above as well as and determined that in those circumstances 55% voted to approve the Agreement.
[40] I am therefore satisfied that a majority of employees voted to approve the Agreement as required by section 182(1) of the Act.
Objection 9 and Objection 10 – Spread of hours issues
[41] The Objectors submitted that:
• the September Document was misleading to employees in that it stated what the spread of hours would be in the Agreement instead of explaining to employees that the weekend penalty rates were being “abolished”;
• the current spread of hours was put in place two agreements prior and queried how this could no longer be valid;
• Kingston had not been “direct” or “transparent” in the way it raised these matters and that if this error had occurred, there was uncertainty around the circumstances of the error and why it had not been corrected sooner; and
• returning to the conditions and remuneration that existed 8 years ago will create “great disadvantages” for employees and their families if implemented without proper compensation. 13
[42] The exact nature of these objections and how they relate to the Commission’s assessment process is somewhat unclear but I have interpreted these objections as an allegation that the terms of Agreement have not been explained adequately, as required by section 180(5) of the Act, and that the existence of terms less beneficial than previous agreements should restrict the ability to approve the Agreement.
[43] Section 180(5) does not impose a requirement that there be a full explanation of the terms and conditions prior to the vote on the agreement, only that “reasonable steps” be taken to ensure that explanations are provided. 14 There is no impediment to an employer collaborating with a bargaining representative to provide this relevant information.15
[44] In the current circumstances, I am satisfied that the September Document clearly explains the changes the that the Agreement seeks to introduce, and that further explanation was provided during meetings held with employees of Kingston. 16 I further accept that employees would have been additionally informed of these changes by the campaign that was run by the ASU, with the ASU themselves confirming that they distributed a standalone notice to members and employees regarding the change to the spread of hours as well as advising that the proposed changes would have a negative effect.17
[45] There is no evidence supporting the allegation that Kingston acted “covertly” in their explanation of these terms nor any explanation as to how any actions they took were “covert”. Therefore I cannot accept this submission.
[46] I refer to paragraphs [61] and [62] below, noting that in assessing the approval of an enterprise agreement the Commission is not required to assess how the terms of the Agreement compare with previous agreements applying to the employee or employer.
[47] On the basis of the material before me, I do not accept the Objectors’ submissions.
Application of section 188(2)
[48] As earlier stated, I am not satisfied that the Agreement was genuinely agreed in accordance with sections 188(1)(a) and (b) by reasons of inferred non-compliance with sections 180(2), (3) and (5) and arguable non-compliance with section 182(1) arising out of and in relation to the erroneous exclusion of 66 employees from the voting cohort. But for this error I would have been satisfied that the Agreement was genuinely agreed. The requirements referred to in section 188(1)(a) were complied with for all relevant employees except the 66; the majority of employees who cast a valid vote to approve the Agreement remains even if the excluded 66 had all cast a vote and voted against the Agreement, and I do not consider there are any other reasonable grounds for considering that the Agreement was not genuinely agreed.
[49] That makes it necessary for me to consider whether the Agreement can be said to have been genuinely agreed pursuant to section 188(2), notwithstanding the error in respect of the voting cohort. I find as follows:
(1) it was an “error” in the sense that I am satisfied that the exclusion of the 66 employees was an oversight rather than a deliberate act;
(2) the error was one made in relation to the requirements in sections 188(1)(a)(i) and 188(1)(b), for the reasons earlier explained;
(3) the error was “procedural” in nature, because it involved non-compliance with the pre-approval procedures in sections 180(2), (3) and (5). It was also technical in nature because it concerned the erroneous identification of those employees who were employed at the time who would be covered by the Agreement;
(4) the error, considered in context, was “minor” because it was incapable of affecting the outcome of the voting process for the reasons explained and had no other relevant consequence; and
(5) the employees covered by the agreement “were not likely to have been disadvantaged by the error” for the same reason – that is, the exclusion of the 66 was not capable of affecting the outcome of the voting process.
[50] Accordingly I am satisfied that the Agreement was genuinely agreed within the meaning of s 188(2), and the approval requirement in section 186(2)(a) is therefore satisfied.
Fairness issues
[51] Objections 12, 15, 16, 17, 18, 20 and 21 broadly appear to relate to issues of fairness. I have considered each of these objections and on the material before me I am unable to accept them.
Relevant Award
[52] The Objectors have submitted that considering the Arts and Culture employees of Kingston as covered by the “Hospitality General award” is not appropriate and that there are more relevant awards that should be considered. 18 Whilst this submission was not fully developed, it was submitted by the Objectors that:
• There was some “confusion” around the award coverage because the change to the penalty rates was so significant that it “seemed” to come from a “different award”; 19
• At a meeting with HR from Kingston it was verbally raised that “we are technically hospitality under their description and their award…we are considered hospitality by HR…”; 20 and
• There seemed to be a degree of uncertainty from the Objectors as to whether or not they asserted that Kingston was arguing they were covered by the “Hospitality General award”.
[53] Kingston has rejected this submission and in its Form F17 identified the Awards as the applicable industrial instrument.
[54] On the evidence before me, I am satisfied that the instruments identified by Kingston in the Form F17 are appropriate. On the material before me, I do not accept the Objectors’ submissions.
Better off overall test
[55] The following paragraphs deal with issues relating to the BOOT with respect to matters raised by the Commission as well as the objections raised by the Objectors.
[56] While the Objectors accepted that the objections did not relate to the BOOT, 21 I consider it appropriate to have regard to a number of the issues raised by the Objectors in determining whether or not the BOOT has been satisfied.
Matter raised by the Commission – Trainee Wages
[57] Clause 26.6(a) of the Agreement states that a trainee shall be engaged on rates of pay contained in Schedule D of the Government Award, which appeared to leave trainee employees in the same position as the modern award. In response, Kingston provided an undertaking the trainees will be paid at the rate in Schedule D of the Government Award plus $1 per hour.
[58] Having regard to the undertaking provided and the matters discussed at paragraphs [61] and [62] below, I am satisfied that trainee employees will be better off overall.
Objections
Objection 3 – Rate of pay
[59] The Objectors submit that the remuneration for Arts and Culture employees of Kingston does not reflect the “level of training and expertise required to carry [the required level of] responsibility and risk…”. The Objector’s submission appears to relate to issues of “fairness” as to employee remuneration.
[60] Having regard to the matters raised at paragraphs [61] to [62] below I am satisfied that the rates of pay are sufficiently high such that the BOOT requirements are satisfactorily addressed.
Objection 7 and Objection 8 – Penalty rates issues
The Objectors submit that removing penalty rates has a direct effect on the income of most staff and casual employees, such that there is no “proper compensation” to help cope with these cuts and that other city councils have altered or kept penalty rates on the weekend. The Objectors also submitted that other city councils that do not have penalty rates on weekends compensate casuals by paying them higher base rates resulting in rates of a minimum of $40 an hour.
[61] Kingston identified within its F17 Statutory Declaration a number of provisions within the Agreement that are either less beneficial or omitted compared to the Awards. The particular provisions referenced include:
• time off in lieu for Nurses only;
• annual leave for nurses only;
• camping allowance;
• leading hand allowance;
• sleepover allowance;
• uniform allowance;
• summer time entitlement for nurses only; and
• supported wage system.
[62] I have considered the differences between the Agreement and relevant Awards and note that the removal of penalty rates is a provision that is less beneficial. I have weighed this, together with the other matters set out in [61] above, against those matters raised by the Applicant in the F17 Statutory Declaration that were either more beneficial than those conferred by the Awards or not conferred by the Awards including:
• rates of pay between 1.13% to 234.50% above the rates in the Awards;
• full-time employees have access to an accrued day off arrangement not present in the Awards;
• recall for work provision which provides for a standby allowance, minimum engagement when recalled, overtime and rest periods;
• a higher duties clause in relation to all employees;
• after hours dependent care compensation for when an employee is compulsorily required to work outside normal hours of work and when normal care arrangements are not available;
• study assistance to full-time and part-time employees;
• personal/carers leave days in excess of the requirements under the NES;
• more generous parental leave entitlements are provided in the Agreement;
• family violence leave provided to all employees;
• more generous entitlement to Community Services Leave; and
• superannuation contributions for all employees from the first dollar earned each month.
Objection 11 – Worse off employees
[63] The Objectors submitted that the approval of the Agreement effects not just casual employees but also two full-time employees and part-time staff such that part-time and full-time staff are “worse off”. Although this submission is not fully developed, it appears to be based on a comparison between the Agreement and previous iterations of enterprise agreements.
[64] On the material before me, I do not accept the Objectors’ submissions.
Summary of BOOT Assessment
[65] It will be seen from the statutory provisions provided above that an enterprise agreement will be found to have passed the BOOT if the Commission is satisfied, that at the test time, each award covered employee and each prospective award covered employee employed under the agreement would be better off overall if the agreement applied to the employee rather than if the award applied to the employee.
[66] The application of the BOOT is not applied as a line by line test. Rather, it is a global consideration of the provisions in the agreement compared to the award, taking into account those provisions that are less beneficial and weighing them against those provisions that are more beneficial.
[67] In conducting its assessment of the Agreement, it is open to the Commission to accept undertakings given pursuant to s.190 of the Act. That is, if the Commission is satisfied that the undertaking or undertakings provided are not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.
[68] The Applicant has provided undertakings to address concerns raised by the Commission, as discussed above.
[69] I accept that there are a range of more beneficial provisions under the Agreement including higher salaries than those offered by the Awards.
[70] Having regard to the above, I am satisfied that employees would be better off overall if the Agreement applied to their employment rather than if the Awards applied to them. In these circumstances the statutory requirements necessary for approval of the Agreement have been met.
Conclusion
[71] 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.
[72] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
[73] Each of the AEU, the ASU, the ANMF and Professionals Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers each of these organisations.
[74] I observe that the following provisions are likely to be inconsistent with the NES:
• Clause 20.5(a); and
• Clause 23.5(j).
[75] However, noting clause 6.3 of the Agreement (as set out at paragraphs [21] to [23] above) I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
[76] 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.
[77] The Agreement was approved on 4 May 2020 and, in accordance with s.54, will operate from 11 May 2020. The nominal expiry date of the Agreement is 30 June 2022.
COMMISSIONER
Annexure A:
1 Form F17 dated 31 October 2019 at Q2.4.
2 This information was also made available on Kingston’s intranet on 2 October 2019.
3 Form F17 dated 31 October 2019 at Q2.9 and Q2.10.
4 Form F17 dated 31 October 2019 at Q3.1.
5 Form F18 filed 31 October 2019 by the ANMF; Form F18 filed 30 October 2019 by the AEU.
6 Form F18 filed 7 November 2019 by Professionals Australia; Form F18 filed 19 November 2019 by the ASU.
7 In correspondence with my chambers as well as at the mention on 19 February 2020, Mr Rami Frieha has acted on behalf of the Objectors. See for example Transcript at PN45 – PN46.
8 Submissions of the ASU dated 18 December 2019.
9 See Kmart Australia Ltd Agreement 2018 [2019] FWCFB 7599
10 Form F17 dated 31 October 2019 at Q2.10.
11 Form F17 dated 31 October 2019 at Q2.10.
12 Form F17 dated 31 October 2019 at Q2.10.
13 The Objectors restated their points on this matter in the Response from City of Kingston employees (Arts and Culture) to Kingston City Council’s further submissions in support of approval of Enterprise Agreement.
14 McDonald’s Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association [2010] FWAFB 4602 at [30].
15 Ibid at [31].
16 Form F17.
17 Letter from David Nunns dated 18 December 2019.
18 The Objectors went on to note that the work undertaken by Arts Centre staff is largely technical and generally doesn’t involve many hospitality tasks.
19 Transcript at PN76.
20 Transcript at PN82, PN84.
21 Transcript at PN241 – PN255.
Printed by authority of the Commonwealth Government Printer
Appearances:
Mr R. Frazer for the Applicant
Ms R. Mooney for the AEU
Mr D. Nunns for the ASU
Mr R. Freiha for the Objectors
Mr S. Fulton, employee bargaining representative
Hearing details:
19 February 2019
Final written submissions:
8 April 2020
<AE507960 PR718789>
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