Macmahon Contractors Pty Ltd
[2021] FWC 6507
•3 DECEMBER 2021
| [2021] FWC 6507 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Macmahon Contractors Pty Ltd
(AG2021/6498)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 3 DECEMBER 2021 |
Application for approval of the Macmahon Black Coal Mining Agreement 2021 – not genuinely agreed – application dismissed
Introduction
[1] Macmahon Contractors Pty Ltd (Macmahon) has made an application for approval of an enterprise agreement known as the Macmahon Black Coal Mining Agreement 2021 (Agreement) pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single-enterprise agreement.
[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) were bargaining representatives for employees who will be covered by the Agreement (collectively, Unions).
[3] The Form F16 filed by Macmahon provides that there are five employee bargaining representatives involved in the agreement making process.
[4] In reviewing the Agreement, the Fair Work Commission (Commission) identified a number of concerns.
[5] On 2 August 2021 the CEPU filed a Form F18 statutory declaration declaring that they do not support approval of the Agreement on the basis that the Agreement is not a good outcome in terms of members claims. On 9 August 2021 the CFMMEU filed a Form F18 statutory declaration objecting to the Agreement’s approval. The CFMMEU identified 4 matters in respect of which it said it had concerns and identified 14 statements in the Employer’s Declaration which it disagreed with. On 10 August 2021 the AMWU filed a Form F18 statutory declaration adopting and relying on the objections raised by the CFMMEU and opposing the Agreement’s approval on the basis that the Agreement does not reflect or otherwise meet industry standards.
[6] On 16 August 2021 the CFMMEU provided written submissions which further outlined the concerns raised in the CFMMEU’s Form F18 statutory declaration and outlined several new objections to the Agreement’s approval.
[7] The matter was listed for conference before me on 16 August 2021. Following the conference, there was a considerable exchange of correspondence between the Commission, Macmahon and the CFMMEU including submissions and draft undertakings. On 2 September 2021 I issued directions for the filing of consolidated materials to address the issues still pressed by the CFMMEU. The CFMMEU filed final written submissions on 17 September 2021 and Macmahon filed final written submissions on 5 October 2021.
[8] The CEPU and AMWU confirmed that they did not wish to be heard with respect to the application. One individual bargaining representative confirmed that they did not wish to be heard. The remaining individual bargaining representative did not respond to the Commission’s request that they advise as to whether they wished to be heard.
Hearing and Witnesses
[9] The dispute proceeded to hearing before me on 11 October 2021. Pursuant to section 596 of the Act, Mr Andrew Pollock of Counsel appeared on behalf of Macmahon. Mr Alister Kentish appeared for the CFMMEU.
[10] A witness statement of Mr Jeffrey Scales, the Vice President of the CFMMEU, was tendered by the CFMMEU. In light of confirmation from Macmahon that Mr Scales would not be required for cross-examination, he did not attend the hearing. Ms Victoria Bucknell, Industrial and Employee Relations Principal for Macmahon, tendered a witness statement and gave evidence at the hearing.
Macmahon
[11] Macmahon is a mining contractor. 1It currently undertakes mining contracting operations at theFoxleigh black coal mine (Foxleigh) and the Byerwen black coal mine (Byerwen) in Queensland.2
[12] The Agreement, in summary, seeks to cover employees of Macmahon engaged to undertake black coal operations at Foxleigh. The coverage clause of the Agreement is set out later in this decision.
[13] Macmahon is currently covered by the Macmahon Byerwen Agreement 2017 (Byerwen Agreement). The Byerwen Agreement, as is presently relevant, covers Macmahon and employees of Macmahon engaged in the classifications covered by the Byerwen Agreement engaged to undertake black coal mining operations at Byerwen. 3 It is uncontested that at the relevant point in time Macmahon employed apprentices and crew trainers at Byerwen and that these employees are not covered by the Byerwen Agreement.
Bargaining history
[14] The parties generally agree that the history of bargaining is as follows:
• The notification time for the Agreement as defined in section 173(2) of the Act was 6 April 2021.
• On 7 April 2021, Macmahon issued a Notice of Employee Representational Rights (NERR) to its employees engaged at Foxleigh.
• From 20 April to 3 June 2021, Macmahon engaged in 7 bargaining meetings with employees employed at Foxleigh.
• On 29 April 2021, the AWMU applied under section 240 of the Act for a bargaining order in relation to the Agreement. On 14 May 2021 Deputy President Asbury issued a statement confirming the agreement reached between the parties for a workable bargaining timetable.
• The access period for the Agreement commenced on 9 June 2021 with voting for the Agreement scheduled to commence on 17 June 2021.
• On 14 June 2021, Macmahon became aware that 14 employees who were employed on 7 April 2021 when the NERR was issued, and who would be covered by the proposed Agreement, had not been provided with the NERR (Missed Employees).
• The Missed Employees were 2 crew trainers who are mobile across Macmahon’s sites in Queensland, and 12 apprentices who work at Byerwen. 4
• On the same day, Macmahon withdrew the first vote and reissued the NERR to the Missed Employees (Reissued NERR). The Reissued NERR was in the same form as the NERR issued to Foxleigh employees on 7 April 2021.
• The further access period for the Agreement commenced on 7 July 2021, with voting for the Agreement commencing on 15 July 2021.
• 56 employees cast a valid vote and 36 employees voted to approve the Agreement. 5 Accordingly, the Agreement was made on 17 July 2021.
Coverage of the Agreement
[15] Clause 4 of the Agreement sets out the coverage of the Agreement. It provides as follows:
“4 Coverage
4.1 This Agreement covers:
a) The Company; and
b) Employees employed by the Company who are engaged in any of the classifications set out in Schedule A to this Agreement when engaged to perform work on Black Coal Mining operations anywhere in Australia; and
c) Employees employed by the Company in any of the classifications set out in Schedule A to this Agreement when in any pre-mobilisation, training or induction like activities for work described in 4.1b), which are performed before or after commencing work in any of the classifications in Schedule A.
4.2 This Agreement does not cover:
a) Save for clause 4.1c), Employees who are engaged to work in head offices or corporate administration offices of the Company (regardless of the location of the offices).
b) Employees who are covered by the Macmahon Byerwen Agreement 2017 (as varied or replaced from time to time).
c) Employees who are engaged in underground Black Coal Mining operations.
d) Employees engaged in the mining of brown coal in conjunction with the operation of a power station.”
[16] It is uncontested that the Missed Employees are within the scope of the Agreement’s coverage.
[17] The Agreement, if approved, would apply to around 58 employees. 6
Summary of CFMMEU Submissions
[18] In summary, the CFMMEU contends that the Agreement should not be approved on the basis that the Commission could not be satisfied that:
(a) Macmahon provided the NERR within 14 days of the notification time, as required by section 173(3) of the Act, or that the NERR contained the prescribed content in accordance with section 174 of the Act and regulation 2.05 and Schedule 2.1 to the Fair Work Regulations 2009: sections 186(2)(b)(i), 188(1)(a)(ii) & 181(2) of the Act.
(b) The terms of the Agreement do not contravene section 55 of the Act (which deals with the interaction of enterprise agreements and the National Employment Standards (“NES”): section 186(2)(c) of the Act.
(c) The Agreement has been genuinely agreed to, taking into account the requirement that all reasonable steps were taken to explain the terms and effect of the Agreement as required by section 180(5): section 188(1)(a)(i) of the Act.
(d) The Agreement has been genuinely agreed to, taking into account that there are other reasonable grounds for believing the agreement has not been genuinely agreed to by employees: section 188(1)(c) of the Act.
(e) The Agreement passes the better off overall test: section 186(2)(d) of the Act. 7
Notice of Employee Representation Rights (NERR)
[19] In assessing whether the Agreement is capable of approval, I first consider the provision and content of the NERR and section 174 of the Act. 8
Genuine agreement
Section 186(1) and section 188(1)
[20] Section 186(1) requires the Commission to approve an enterprise agreement if the requirements in sections 186 and 187 are met. Relevantly for present purposes, the approval requirements include section 186(2)(a) which provides as follows:
“(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…”
[21] Section 188(1) provides that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement, for the purpose of section 186(2)(a) if the Commission is satisfied of the matters set out in section 188(1)(a)–(c). That section provides as follows:
“188 When employees have genuinely agreed to an enterprise agreement
(1) An enterprise agreement has been genuinely agreedto 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.”
[22] In summary, the matters in sections 188(1)(a)–(c) are respectively that:
(f) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
• Section 180(2): the employer must take all reasonable steps to ensure that during the ‘access period’ 9 the ‘relevant employees’10 are given a copy of the text of the agreement and any material incorporated by reference into it, or have access throughout the access period to a copy of those materials;
• Section 180(3): the employer must take all reasonable steps to notify the relevant employees by the start of the access period of the time and place at which the vote will occur and of the voting method;
• Section 180(5): the employer must take all reasonable steps to ensure that the terms of the agreement and their effect are explained to the relevant employees in an appropriate manner taking into account the employees’ particular circumstances and needs; and
• Section 181(2): that the employer not request employees to approve the agreement by voting on it until at least 21 days after the day on which the last NERR under section 173(1) is given; and
(g) the agreement was made by an employee vote in accordance with sections 182(1) or (2); and
(h) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
Section 173 and section 174
[23] Section 173 of the Act provides as follows:
“173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174.
Notification time
(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
(b) a majority support determination in relation to the agreement comes into operation; or
(c) a scope order in relation to the agreement comes into operation; or
(d) a low‑paid authorisation in relation to the agreement that specifies the employer comes into operation.
Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).
When notice must be given
(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.
How notices are given
(5) The regulations may prescribe how notices under subsection (1) may be given.”
[24] Section 174 of the Act provides as follows:
“174 Content and form of notice of employee representational rights
Application of this section
(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.
Notice requirements
(1A) The notice must:
(a) contain the content prescribed by the regulations; and
(b) not contain any other content; and
(c) be in the form prescribed by the regulations.
(1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), the regulations must ensure that the notice complies with this section.
Content of notice—employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:
(a) in bargaining for the agreement; and
(b) in a matter before the FWC that relates to bargaining for the agreement.
Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining representative for the agreement;
the organisation will be the bargaining representative of the employee.
Content of notice—bargaining representative if a low‑paid authorisation is in operation
(4) If a low‑paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).
Content of notice—copy of instrument of appointment to be given
(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).”
[25] The prescribed content for the NERR is set out in regulation 2.05 and schedule 2.1 of the Fair Work Regulations 2009.
Section 188(2)
[26] Section 188(2) was inserted into the Act in December 2018 by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018. Section 188(2) provides a discretion to find that an agreement has been genuinely agreed to despite minor procedural or technical errors. It provides as follows:
“…
(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] As noted by the Full Bench in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 (Huntsman) section 188(2) is confined in its terms to circumstances where the Commission is not satisfied that an agreement has been genuinely agreed to within the meaning of section 188(1), as a result of “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.” 11
[28] There is no express reference in section 188(1) to sections 173 and 174; rather, Commission authorities establish that strict compliance with the NERR timing and form and content requirements in sections 173 and 174 is necessary in order to meet the requirements mentioned in paragraph (1)(a) and (b) of section 188(1). 12
Submissions regarding the content and timing of the NERR
[29] The CFMMEU submits, firstly, that the scope of the proposed Agreement described in the NERR and the Reissued NERR was narrower than that contained in the Agreement. 13 In this regard the CFMMEU relies upon the decision of the Full Bench in Uniline Australia Limited [2016] FWCFB 4969 (Uniline) and submits that Macmahon broadened the scope of its proposed enterprise agreement beyond that set out in the NERR and was required to issue a fresh notice.14 On this basis the CFMMEU submits that the NERR has not met the requirements of section 174(1A)(a) of the Act with respect to prescribed content, specifically it has not identified the scope of the proposed agreement prior to bargaining commencing.15 Secondly, the CFMMEU submits that Macmahon did not provide the NERR to employees within 14 days of the notification time.16
[30] Macmahon submits that the comments of the Full Bench in Uniline relied upon by the CFMMEU were obiter and, in any event, are distinguishable. 17 It submits that Macmahon did not “initially agree to bargain for an agreement with a particular scope and later agree to bargain for an agreement with a broader scope”. It submits that the scope of the Agreement did not change at any point following commencement of bargaining. The only relevant change it says was that Ms Bucknell became aware that Macmahon employed apprentices at Byerwen.18 It submits that “at its highest” the NERR misdescribed the Agreement’s coverage, which resulted in Macmahon inadvertently failing to provide a NERR to the Missed Employees until some 55 days after the notification time.19
Content of the NERR and the Reissued NERR
[31] The NERR provided to employees at Foxleigh on 7 April 2021 provided, relevantly, as follows:
“Macmahon Contractors Pty Ltd (ACN 007 611 485) gives notice that it is bargaining in relation to an enterprise agreement (Macmahon Black Coal Mining Agreement 2021) which is proposed to cover employees that are engaged in mining and maintenance operations (including any Apprentices) when performing work on a black coal mining site anywhere in Australia (excluding employees engaged at the Company’s Byerwen site, employees engaged in head office or corporate administration (regardless of the office location), and employees engaged in underground mining operations)” (Commission’s emphasis).
[32] The NERR as provided to employees on 7 April 2021 therefore expressly excluded employees engaged at the Byerwen site from coverage of the proposed Agreement. It is to be noted that the exclusion in the NERR is by reference to employees being engaged at the Byerwen site; rather than by reference to whether the employees are covered by the Byerwen Agreement.
[33] As set out above, it is uncontested that the Missed Employees are engaged at the Byerwen site. It is also uncontested that they are not covered by the Byerwen Agreement and that they are, therefore, within the scope of clause 4 of the Agreement.
[34] Ms Bucknell’s evidence was that she drafted the coverage clause of the Agreement and then drafted the NERR. 20 Ms Bucknell’s evidence was that when she drafted the NERR she did not know that Macmahon employed apprentices at Byerwen.21 Her further evidence was that the coverage clause of the Agreement did not change from the first draft.22 At hearing Ms Bucknell’s evidence under cross examination was that the NERR was intended to exclude employees covered by the Byerwen Agreement.23 Her evidence was that she drafted the NERR as she did “so it would be easy for the Foxleigh employees because they’re not thinking about who’s covered, who’s not covered, they just think of a site.”24
[35] Ms Bucknell’s evidence is that on about 14 June 2021 she became aware that apprentices were employed at Byerwen and that the NERR had not been provided to the Missed Employees. 25
[36] On becoming aware that the Missed Employees had not been provided with the NERR, Macmahon notified all employees and bargaining representatives that had received the NERR that the request to vote was withdrawn. On 14 June 2021 Ms Bucknell reissued the NERR to the Missed Employees by email. 26
[37] The Reissued NERR was in precisely the same form as the NERR issued on 7 April 2021. 27 Accordingly, the Reissued NERR also provided that employees engaged at the Byerwen site were excluded from the coverage of the Agreement.
[38] Ms Bucknell says that the same NERR was reissued to employees at the Byerwen site in the same form as she was “under the understanding that the NERR could not be changed from its original form”. 28 Under cross examination Ms Bucknell said that sending the Reissued NERR in the same form as the NERR was deliberate.29
[39] Under cross examination the following exchange occurred between Mr Kentish and Ms Bucknell:
“Ms Bucknell, at the time you sent the NERR to the apprentices - that’s in the email that we’re looking at now - did you look at the words ‘company’s Byerwen site’ or ‘excluding employees engaged at the company’s Byerwen site’ and did you think that there might be a problem with that aspect of it, given that it was going to employees at the company’s Byerwen site? -I guess the best answer I can say that would satisfy you is that clearly I did not because I sent it with my mind being clear of what the coverage was as per the enterprise agreement.” 30
[40] Ms Bucknell was a credible witness. I accept her evidence as to these matters.
[41] Ms Bucknell’s evidence was that following provision of the Reissued NERR to the Missed Employees she attended the Byerwen site on 15 June 2021. 31 Her evidence was that she and the Maintenance Manager, Troy Martin, meet with four of the apprentices on 15 June 2021 and five of the apprentices on 16 June 2021.32 Her evidence under cross examination was that she met with the apprentices in two groups because the first group were not on site on 15 June 2021.33 Her further evidence was that three of the apprentices were off-site attending TAFE based training and that Mr Martin met with these Missed Employees between 21 and 25 June 2021.34 Ms Bucknell said that she met with the crew trainers over a conference call on 17 June 2021.35 Her further evidence was that she and/or Mr Martin undertook the following steps in relation to the Missed Employees:36
(a) it was explained that employees were being given a copy of the NERR because they had been inadvertently missed; 37
(b) the Missed Employees were provided with a copy of the Reissued NERR in hard copy 38 (Further Reissued NERR) and copies of the Agreement, through which they were taken clause by clause;
(c) it was explained that they would be covered by the Agreement; 39 and
(d) they were provided with a copy of minutes of bargaining meetings and the log of claims. 40
[42] The meetings were quite lengthy, lasting somewhere between two and three hours. 41
[43] In relation to what was told to the Missed Employees regarding their right to be represented Ms Bucknell’s evidence in her witness statement was that the Missed Employees were told that there were several bargaining representatives, including the CFMMEU and the AMWU, and that the Missed Employees were able to appoint a representative, including one of the unions or negotiate themselves. 42 Under cross examination she confirmed this is what she informed the Missed Employees43 however, her later evidence, also under cross examination, was that it was “made very clear” to the Missed Employees that “the unions were there to represent them and that there was the default”.44 The following exchange also occurred between Ms Bucknell and Mr Kentish:
“I see. So, you told them that if they were a member of the union that they could appoint the union as a bargaining representative; is that right? -I wouldn’t have said that if they were a member because they don’t need to be a member to appoint. They can appoint if they - you know, there wasn’t any qualifiers around that.
Right. So, you didn’t mention at all the situation where they might be a member of the union? -I didn’t ask - I didn’t talk about membership or otherwise, but it was made very clear to them that they could be represented by the unions and that there were unions as representatives, and - - -
Right. Sorry, go on? -No, that’s fine.
Did you tell them that if they were a member of a union - sorry, you’ve answered that. You didn’t mention what would happen if they were a member of the union; is that right? -I left membership of union totally out of it.
All right? -But it was made very clear to them that they could have union represent them, but there was never any qualifiers around whether membership was a requirement or not.
Did you tell them that if they were a member of the union, the union would be the default bargaining representative? -Yes, that was told to them, but we did not talk about individual representation. I understood your question to be that if they were a member - I’m sorry if I frustrated you, Mr Kentish - it was made very clear to them that the unions were there to represent them and that there was the default, but I did not ask about whether there was - if they were union members.
Sure. I guess what I’m trying to get at is in your statement at paragraph 37, you say that employees were able to appoint the CFMMEU or the AMWU as a bargaining representative or negotiate for themselves. There’s no reference there to what would happen if they were a member and the default bargaining. You say that you did mention the default bargaining, the role of the unions as a default for bargaining. Is that right? Is that what you’re saying now? -I’m saying that it would’ve been explained that that’s how it operates, that if there’s membership, that’s a default, but I did not talk to them about individual membership.” 45
[44] Ms Bucknell also says in her witness statement that the CFMMEU and the AMWU said that they had members employed by Macmahon and were default bargaining representatives but she “did not receive a formal nomination from any employee nominating the Union as their representative.” 46 The following exchange occurred between Ms Bucknell and Mr Kentish in relation to this statement:
“I’m sorry, I took from that that you thought that you had to get a formal nomination from an employee nominating the union; is that not right? -No one nominated - no one - everyone that was a representative was self - put their name forward, they didn’t put the union forward.” 47
[45] Under cross examination Ms Bucknell’s evidence was also that the Missed Employees were given a list of employee bargaining representatives and their contact numbers and it was explained the “process of how the unions came to be representatives.” 48
[46] I consider Ms Bucknell’s evidence in her witness statement to reflect a confused understanding of the unions’ role as default bargaining representatives. Further, her evidence under cross examination was inconsistent and contradictory. I consider it demonstrates a confused understanding of representational rights and to not accurately and/or consistently reflect the provisions of the Act regarding those rights.
[47] Ms Bucknell’s evidence was that the crew trainers made several claims in relation to the Agreement and following discussions with Macmahon one of those claims were accepted. The Agreement was then altered to reflect the claim which had been accepted. 49
[48] Mr Scales uncontested evidence is that on 14 June 2021 Ms Bucknell advised him by email that Macmahon was withdrawing from the vote because “Macmahon is now aware that there were some minor, technical errors made in relation to the distribution of this, and other, documentation in relation to the negotiation of the proposed agreement.” 50 There is no reference to the NERR in this email.51 Later that day the AMWU sent an email to Ms Bucknell requesting details as to what the “minor technical errors” were.52 On 15 June 2021 the AMWU, copying in Mr Scales, sent a notice of concerns to Ms Bucknell regarding the withdrawal of the vote and the “minor technical errors.”53 On 16 June 2021 at 3.01 pm Ms Bucknell responded to the AMWU’s notice of concerns, copying in Mr Scales. That response, in part, provided as follows:
“Macmahon is under no obligation to disclose to the AMWU anything beyond what it already has; information in relation to minor technical issues identified by Macmahon is not ‘relevant information’ as envisaged by s 228(1) of the FW Act (see generally CPSU v AEC[2016] FWC 2615 and Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia (Collieries’ Staff Division)[2012] FWAFB 1891).
However, for the sake of resolving the AMWU’s purported ‘concerns’, the Company identified that a small number of employees did not receive a copy of the NERR within the prescribed timeframe. The Company withdrew the access period to ensure that employees who may have not received it receive a copy, and will recommence an access period once those employees’ have had time to consider this and provide feedback to the Company.
Macmahon has not yet determined a definite timeline for the recommencement of the access period, however, Macmahon envisages that it will recommence the access period within one month, ensuring that those employees who may not have received a copy of the NERR are not disadvantaged by the oversight. We will communicate with all employees, and subsequently the bargaining representatives when a more definite timeline is determined. In resolution of the ‘concern’ raised in relation to a failure to notify the Union, Macmahon, undertakes to notify the AMWU of any subsequent access period it may commence, within 24 hours of the same being communicated to the employees.” 54
[49] Mr Scales evidence was that he was advised a final bargaining meeting would be held on 24 June 2021 by email from Ms Bucknell on 18 June 2021. That email, in part, provided as follows:
“As outlined at the final meeting prior to the commencement of the access period, Macmahon has reached what it considers to be the final terms of the proposed agreement; with that in mind, it seems that there would be little utility in holding a further bargaining meeting prior to the recommencement of the access period, when Macmahon determines to do so, unless the union wishes to withdraw any of its claims. However, to ensure compliance with the relevant good faith bargaining requirements, Macmahon will hold a subsequent bargaining meeting. An invitation to a bargaining meeting on 24 June 2021 will be sent out soon.” 55
[50] Mr Scales was unable to attend the bargaining meeting on 24 June 2021, due to a prior commitment to attend a bargaining meeting for the BMA Central Agreement. 56 His evidence is that at no time was he advised where the Missed Employees worked or what they did. He did not know that employees at Byerwen were to be covered by the Agreement or be provided with an opportunity to vote on it.57
Section 174 and 173 not complied with
[51] Accordingly, I find that the NERR issued on 7 April 2021 did not accurate identify the proposed scope of the Agreement. In its express terms the NERR excluded the Missed Employees. This is inconsistent with the scope of the Agreement. I consider the language of the NERR to be clear and unambiguous (as, I consider, is the language of clause 4 of the Agreement). I also find that the Reissued NERR provided to the Missed Employees on 14 June 2021 was in the same form as the NERR. Accordingly, I find that the Reissued NERR in its express terms also excluded the Missed Employees. Accordingly, as with the NERR, the Reissued NERR did not accurately identify the proposed scope of the Agreement.
[52] I therefore find, as submitted by the CFMMEU that the NERR has not met the requirements of section 174(1A)(a) of the Act with respect to prescribed content. Specifically, it has not identified the scope of the proposed agreement prior to bargaining commencing. However, I reject the submission that Macmahon has sought to broaden the scope of the Agreement beyond that contained in the NERR and the Reissued NERR. I have previously accepted Ms Bucknell’s evidence that the NERR was intended to reflect the scope of the Agreement and that it did not change from the first draft. I have also accepted Ms Bucknell’s evidence that the NERR was intended to exclude employees covered by the Byerwen Agreement and that she drafted the NERR so as to assist the understanding of employees at Foxleigh. Accordingly, I reject the submission that Macmahon sought to broaden the scope of the Agreement. Rather, I consider, as submitted by Macmahon, that the NERR and Reissued NERR incorrectly stated the coverage of the Agreement. Accordingly, I consider the CFMMEU’s submissions regarding and reliance upon Uniline to be misconceived.
[53] It is uncontested that Macmahon did not provide the Reissued NERR to the Missed Employees within 14 days of the notification time for the Agreement. Accordingly, I also find that the requirements of section 173(3) of the Act have not been met.
[54] As a result of the non compliance with section 173 and 174 of the Act, I am not satisfied that the agreement has been genuinely agreed to within the meaning of section 188(1) of the Act.
Submissions regarding section 188(2)
[55] Macmahon submits that a misdescription of the Agreement’s proposed coverage is plainly capable of amounting to a “minor procedural or technical error” for the purpose of section 188(2). It submits that the same is the case for the late provision of the NERR. 58 Macmahon submits that the late provision of the NERR to the Missed Employees was a minor procedural error which was not likely to disadvantage employees.59 In this regard, Macmahon submits that the following are of particular relevance:
(a) the first access period was abandoned as a result of the error;
(b) the Missed Employees were promptly provided with a copy of the NERR;
(c) the Missed Employees subsequently engaged in bargaining for the Agreement; and
(d) as a result of that bargaining, the Missed Employees advanced claims which resulted in changes to the proposed Agreement. 60
[56] Macmahon submits that those four matters demonstrate that the Missed Employees were not disadvantaged by the late provision of the NERR nor their late inclusion in bargaining. 61
[57] The CFMMEU submits that in the present circumstances the error associated with not providing the employees at Byerwen with a NERR within 14 days was not a “minor” error and the employees were likely to be disadvantaged by the lack of compliance with both section 173 and 174. 62 The CFMMEU submits that the error of not providing the NERR to the Missed Employees was not a minor error because:
(a) the number of employees to whom the NERR was not provided was a significant proportion of the employees proposed to be covered by the Agreement;
(b) the Missed Employees did not work at Foxleigh (as the employees who were issued with the NERR did) nor were they employed in the same classifications (being apprentices and crew trainers); and
(c) the Missed Employees were not provided with the NERR until approximately 55 days after the expiry of the statutory period of 14 days, after negotiations had occurred and an access period commenced. 63
[58] Finally, the CFMMEU submits that the Commission cannot be satisfied that employees were not likely to have been disadvantaged. The CFMMEU submits that employees were likely to be disadvantaged because:
(a) they were denied the opportunity to bargain collectively as a workforce; and
(b) the Missed Employees were demonstrably prevented from attending initial bargaining meetings and therefore effectively influencing the bargaining process even after they did participate. 64
Section 188(2)
[59] Section 188(2) is set out in paragraph [26] above.
[60] Accordingly, in the present circumstances, section 188(2)(a) requires that:
(a) there be an error;
(b) that it be a procedural or technical error;
(c) that the error be “minor”; and
(d) that the error was in relation to the requirements of section 173 and 174 of the Act.
[61] Section 188(2)(b), in the present circumstances requires that:
(a) employees covered by the agreement were not likely to be disadvantaged by the error; and
(b) the error was in relation to the requirements of section 173 and 174 of the Act.
[62] In order for an agreement to have been genuinely agreedto under section 188(2) the Commission must be satisfied as to the matters in both paragraphs 188(2)(a) and (b) before it can be said that the agreement has been genuinely agreed. 65
Is the non compliance an error for the purpose of section 188(2)(a)?
[63] In Huntsman the Full Bench considered what might constitute an “error” for the purposes of section 188(2)(a). The Full Bench accepted that an intentional act may nevertheless be an error because the person was unaware of the legal consequence of their actions. 66 The Full Bench held that a distinction is to be made between an intentional act which unintentionally results in non-compliance with the procedural and/or technical requirements for the making of an enterprise agreement and which may depending on the circumstances be capable of characterisation as an error, and intentional non-compliance with those requirements, which will not constitute an error for the purpose of section 188(2).67 I have earlier set out Ms Bucknell’s evidence in relation to the inaccurate articulation of the scope of the Agreement in the NERR, her explanation for the Reissued NERR being in the same incorrect form and the reason for the failure to provide the NERR to the Missed Employees within the statutory time frame provided in section 173(3) of the Act. In oral submissions Macmahon submitted that while Ms Bucknell’s actions were intentional and resulted in non-compliance with a procedural or technical requirement, her actions were not intentional non-compliance with those requirements. Accordingly, it was submitted that her actions were of the type considered by the Full Bench as being capable of constituting an error.68 In light of Ms Bucknell’s evidence as to these matters, I accept those submissions.
[64] Accordingly, I consider that the error in the articulation of the scope of the Agreement contained in the NERR, and repeated again in the Reissued NERR, and the late provision of the NERR to the Missed Employees constitute errors for the purposes of section 188(2)(a).
Are the errors a procedural or technical error?
[65] In Huntsman the Full Bench considered what might constitute a “procedural error” and a “technical error”, respectively, within the meaning of section 188(2). The Full Bench held that a failure to comply with a procedural requirement will constitute a “procedural error”. A procedural requirement is one that requires an employer to follow a particular process or course of action for example providing employees with a NERR as soon as practicable, and not later than 14 days after the notification time. 69 A failure to comply with a technical requirement will constitute a “technical error” for the purposes of section 188(2) and includes an obligation to comply strictly with the form and content of an instrument, such as the NERR.70 The Full Bench also held that a single error may have both procedural and technical components.71
[66] Accordingly, I am satisfied that the error in the articulation of the scope of the Agreement contained in the NERR, and repeated again in the Reissued NERR and the Further Reissued NERR, and the late provision of the NERR to the Missed Employees constitute technical or procedural errors for the purposes of section 188(2)(a) of the Act. Further, I am also satisfied that the errors are in relation to the requirements of section 173 and 174 of the Act.
Are the errors minor?
[67] In Huntsman the Full Bench said that the word “minor” in section 188(2)(a) is a limitation on the type of errors contemplated by section 188(2)(a) and that what constitutes a “minor” error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances. 72 The Full Bench then set out a table (Table 2) which examined each of the procedural or technical requirements, considered the underlying purpose of those requirements and outlined some of the ways in which employees may be disadvantaged by a minor technical or procedural error.73 In relation to the requirements of section 173 and section 174(1A) Table 2 provided as follows:
Section | Procedural or Technical Requirement | Underlying Purpose | How might employees be disadvantaged? |
173(1) | Take all reasonable steps to give a NERR to each employee who will be covered by the agreement and is employed at the notification time for the agreement | To ensure that all employees are aware that their employer intends bargain for an enterprise agreement and that they are aware of their representational rights | In the circumstances the NERR may be so altered that employees fail to understand and exercise their representational rights and effectively participate in the bargaining process |
173(3) | Issue the NERR as soon as practicable, no later than 14 days after the notification time | To ensure that the employees understand their representational rights within a reasonable period before bargaining commences thus allowing them to exercise those rights in a timely manner | In the circumstances the employees may have received the NERR later than the 14 days thus period preventing them from attending initial bargaining meetings and thus effectively influencing the bargaining process even after they do participate |
174(1A)(a) | The NERR must contain the content prescribed by the regulations | Ensure that employees understand the scope of the proposed agreement, who is the employer and what their representational rights are prior to the actual bargaining commencing | In the circumstances the employer may have been incorrectly named within a complex group of companies thus creating real confusion resulting in employees failing to effectively participate in the bargaining |
174(1A)(b) | The NERR must not contain any other content | ||
174(1A)(c) | The NERR must be in the form prescribed by the regulations |
[68] The full text of Table 2 is set out in Annexure A to this decision.
[69] For the reasons that follow, I do not consider that the procedural and technical errors in this matter, when considered collectively, are “minor” such as to be amendable to remedy by reliance on section 188(2).
[70] Firstly, I consider it uncontestable that the Missed Employees were unaware of their representational rights prior to bargaining commencing. At the time of the provision of the Reissued NERR bargaining had concluded and an access period commenced.
[71] Secondly, the NERR issued on 7 April 2021 incorrectly defined the scope of the Agreement by excluding employees employed at the Byerwen site, rather than excluding employees covered by the Byerwen Agreement, as it appears was Macmahon’s understanding and as is provided in clause 4 of the Agreement. That error was contained in the Reissued NERR provided to the Missed Employees on 14 June 2021 and again in the Further Reissued NERR provided to Missed Employees at later dates. Accordingly, the NERR was issued in a form that incorrectly reflected the scope of the Agreement to the Missed Employees on not one, but three, separate occasions.
[72] Thirdly, the Reissued NERR and the Further Reissued NERR was provided to the Missed Employees at the Byerwen site, whilst at the same time expressly providing that the Agreement “exclud[ed] employees engaged at the Company’s Byerwen site.” In those circumstances, I am unable to see how it could be concluded that the Missed Employees understood the scope of the Agreement and what their representational rights were prior to bargaining commencing. Further, given the form of the Reissued NERR and the Further Reissued NERR I do not consider that that even upon receipt of the Reissued NERR on 14 June 2021 or, indeed, at any time prior to the meetings being held with the Missed Employees, the Missed Employees could have understood the scope of the Agreement, that they were to be covered by it or that they had a right to be represented in relation to it. In this context, I note that the email accompanying the Reissued NERR provided no additional clarification as to why the Reissued NERR was being provided. I also note that meetings occurred with separate groups of Missed Employees on 15 June 2021, 16 June 2021, 17 June 2021 and sometime between 21 June 2021 and 25 June 2021. Accordingly, following the provision of the Reissued NERR for varying periods of up to 10 days, and up until the meetings occurring, the relevant Missed Employees could not have understood that there were to be covered by the Agreement nor that they had a right to be represented in relation to it. Accordingly, they could not have exercised that right in a timely manner (and most certainly did not do so prior to bargaining commencing or the meetings occurring). Additionally, three of the apprentices were unaware of the Agreement’s coverage, their inclusion within it and their right to be represented until sometime between 21 June 2021 and 25 June 2021. The final bargaining meeting occurring within this period on 24 June 2021. Accordingly, most particularly for these employees, but not exclusively so, I do not consider that the Missed Employees were able to exercise their right to representation in a timely manner. Further, Mr Scales’ evidence was that the CFMMEU was also unaware that the Missed Employees were to be covered by the Agreement, were to be bargained with or were entitled to vote on the Agreement. Whilst I accept Ms Bucknell’s evidence that the coverage of the Agreement was clarified in the meetings and thereby the reason for the provision of the Reissued NERR, it was most certainly not clear prior to those meetings and the Missed Employees could not have exercised their right to representation prior to those meetings. I consider this to be of particular significance in relation to the 12 apprentices, who had been employed by Macmahon for only a relatively short period of time (having commenced in approximately March 2020) 74 and, who were located at Byerwen and not Foxleigh where the overwhelming remainder of employees to be covered by the Agreement were located and where bargaining had occurred. Additionally, as already set out, the meeting with three of the apprentices occurred within the same time period as the final bargaining meeting being held on 24 June 2021. As such, in these circumstances I do not consider that the apprentices could effective participate in and influence the bargaining process. Finally, for the reasons set out in paragraphs [39] to [44] above, I do not consider that the right of the Missed Employees to be represented was adequately clarified by Ms Bucknell and/or Mr Martin subsequently at the meetings.
[73] Fourthly, the Missed Employees comprise approximately one quarter of the employees sought to be covered by the Agreement. I consider that to be a not insignificant proportion and to tell against the errors being “minor”.
[74] Fifthly, the notification time was 6 April 2021. 75 The Missed Employees were not provided with the Reissued NERR until 14 June 2021, being approximately 55 days after the 14 day statutory time frame had elapsed. That is a substantial delay and, in all the circumstances, I consider did not allow, in particular, the 12 apprentices to effectively influence the bargaining process even after they did participate.
[75] When considered collectively, in light of all the circumstances and with reference to the underlying purpose of the requirements contained in section 173 and 174 of the Act, as articulated by the Full Bench in Huntsman, I do not consider that these errors can properly be considered “minor” procedural or technical errors such that section 188(2)(a) is engaged. Accordingly, section 188(2) is unable to be relied upon to remedy the errors.
[76] Given the above, it is not necessary that I consider whether employees were not likely to be disadvantaged by the errors of the purposes of section 188(2)(b) of the Act.
Conclusion
[77] I am not satisfied that the Agreement has been genuinely agreed to within the meaning of section 186(2)(a) of the Act. Accordingly, the Agreement cannot be approved.
[78] In light of my conclusion above, it is not necessary that I consider the other objections to approval raised by the CFMMEU.
Disposition
[79] The application for approval of the Agreement is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Appearances:
A Pollock of Counsel for Macmahon.
A Kentish for the Construction, Forestry, Maritime, Mining and Energy Union.
Hearing details:
2021
Melbourne and Perth (via video-link):
October 11.
Final written submissions:
Employer, 5 October 2021.
Construction, Forestry, Maritime, Mining and Energy Union, 17 September 2021.
<PR736411>
Annexure A
Table 2:
Procedural or technical requirements covered by s. 188(2) and potential ways in which employees may be disadvantaged in relation to minor errors
Section | Procedural or Technical Requirement | Underlying Purpose of requirement | How might employees be disadvantaged? |
188(1)(a) | Comply with subsection 180(2) - take all reasonable steps to ensure that relevant employees are given the written text of the agreement and any materials incorporated by reference during the access period OR that the relevant employees are given access to these materials throughout the access period | To ensure employees have a reasonable chance to make an informed decision when voting | In the circumstances employees may not have had effective access to materials or insufficient time to consider them to make an informed decision when voting |
Comply with subsection 180(3) - take all reasonable steps to notify the relevant employees of the time, place and method of vote, prior to the start of the access period | To ensure employees are able to attend and participate in the voting process (should they choose to do so) | In the circumstances employees might be unaware of the voting process occurring thus preventing them from effectively participating in the voting process | |
Comply with subsection 180(5)(a) - take all reasonable steps to the terms of the agreement and their effects are explained to the relevant employees | Ensure that employees understand the effect of the agreement that is to be voted on, enabling them to make an informed decision | In the circumstances the steps may have been taken such that the employees might not be in a position to make an informed decision about the terms of the agreement upon which they are eligible to vote | |
Comply with subsection 180(5)(b) - take all reasonable steps to ensure the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees | Ensure that particular classes of employees are able to understand the agreement not withstanding any particular circumstances or needs | In the circumstances the employees may have received the explanation in a language they do not speak thus they may not be in a position to make an informed decision when voting | |
Comply with subsection 181(2) - the employer must not request that the employees approve a proposed agreement until at least 21 days after the day on which the last NERR is given | To provide the employees with a minimum period of time for the bargaining process to occur before voting on an agreement | In the circumstances the period is cut short preventing the employees from effectively appointing bargaining representatives and participating in genuine good faith bargaining | |
188(1)(b) | The agreement must be made in accordance with subsection 182(1) or (2) | ||
173(1) | Take all reasonable steps to give a NERR to each employee who will be covered by the agreement and is employed at the notification time for the agreement | To ensure that all employees are aware that their employer intends bargain for an enterprise agreement and that they are aware of their representational rights | In the circumstances the NERR may be so altered that employees fail to understand and exercise their representational rights and effectively participate in the bargaining process |
173(3) | Issue the NERR as soon as practicable, no later than 14 days after the notification time | To ensure that the employees understand their representational rights within a reasonable period before bargaining commences thus allowing them to exercise those rights in a timely manner | In the circumstances the employees may have received the NERR later than the 14 days thus period preventing them from attending initial bargaining meetings and thus effectively influencing the bargaining process even after they do participate |
174(1A)(a) | The NERR must contain the content prescribed by the regulations | Ensure that employees understand the scope of the proposed agreement, who is the employer and what their representational rights are prior to the actual bargaining commencing | In the circumstances the employer may have been incorrectly named within a complex group of companies thus creating real confusion resulting in employees failing to effectively participate in the bargaining |
174(1A)(b) | The NERR must not contain any other content | ||
174(1A)(c) | The NERR must be in the form |
1 Transcript PN 55
2 Transcript PN 111
3 Macmahon Byerwen Agreement 2017, clause 3
4 Revised Form F17, question 18
5 Revised Form F17, question 26
6 Revised Form F17, question 26
7 CFMMEU’s outline of submissions at [6]
8 CFMMEU’s outline of submissions at [7]
9 Defined in Fair Work Act 2009 s 180(4) as the 7-day period ending immediately before the start of the voting process
10 Defined in Fair Work Act 2009 s 180(2) as: ‘during the access period … the employees … employed at the time who will be covered by the agreement’
11 Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 at [36] (Huntsman)
12 See, for example, Peabody Moorvale Pty Ltd v CFMEU [2014] FWCFB 2042, Uniline Australia Limited [2016] FWCFB 4969 and AMWU v Broadspectrum (Australia) Pty Ltd [2018] FWCFB 6556. Also see National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 at [22]-[24] per Jessup J
13 CFMMEU’s outline of submissions at [8]
14 CFMMEU’s outline of submissions at [9]
15 CFMMEU’s outline of submissions at [10]
16 CFMMEU’s outline of submissions at [11]
17 Applicant’s outline of submissions at [131]-[132]; Applicant’s outline of submissions in reply at [4]
18 Applicant’s outline of submissions in reply at [4]
19 Applicant’s outline of submissions in reply at [5]
20 Statement of Victoria Bucknell at [8]
21 Statement of Victoria Bucknell at [9]
22 Statement of Victoria Bucknell at [10]
23 Transcript PN 155, PN 157
24 Transcript PN 156
25 Statement of Victoria Bucknell at [9]; Revised Form F17, question 18
26 Revised Form F17, question 18, attachment 5
27 Revised Form F17, question 18, attachment 5
28 Transcript PN 164
29 Transcript PN 165
30 Transcript PN 172
31 Witness statement of Victoria Bucknell at [33]
32 Witness statement of Victoria Bucknell at [39]; Transcript PN 173
33 Transcript PN 188-189
34 Witness statement of Victoria Bucknell at [42]; Transcript PN 198-199
35 Witness statement of Victoria Bucknell at [43]
36 Witness statement of Victoria Bucknell at [42]-[44]
37 Witness statement of Victoria Bucknell at [34]
38 Transcript PN 207
39 Witness statement of Victoria Bucknell at [35]; Transcript PN 343
40 Transcript PN 238
41 Transcript PN 193-197
42 Witness statement of Victoria Bucknell at [37]
43 Transcript PN 218
44 Transcript PN 224
45 Transcript PN 219-225
46 Witness statement of Victoria Bucknell at [28]
47 Transcript PN 233
48 Transcript PN 218
49 Witness statement of Victoria Bucknell at [45]
50 Witness statement of Jeffrey Scales at [21]
51 Witness statement of Jeffrey Scales, JS-9
52 Witness statement of Jeffrey Scales at [21], JS-9
53 Witness statement of Jeffrey Scales at [22], JS-10
54 Witness statement of Jeffrey Scales at [23], JS-11
55 Witness statement of Jeffrey Scales at [24], JS-12
56 Witness statement of Jeffrey Scales at [25]
57 Witness statement of Jeffrey Scales at [27]
58 Applicant’s outline of submissions in reply at [5]
59 Applicant’s outline of submissions at [138]-[145]; Applicant’s outline of submissions in reply at [7]
60 Applicant’s outline of submissions in reply at [7]
61 Applicant’s outline of submissions in reply at [8]-[11]
62 CFMMEU’s outline of submissions at [13]
63 CFMMEU’s outline of submissions at [15]
64 CFMMEU’s outline of submissions at [15]
65 Huntsman at [43]
66 Huntsman at [72]
67 Huntsman at [73]
68 Transcript PN 437-456
69 Huntsman at [56]
70 Huntsman at [57]
71 Huntsman at [58]
72 Huntsman at [55]
73 Huntsman at [74]
74 Witness statement of Victoria Bucknell at [17]
75 Revised Form F17, question 17
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