Marina Diagnostic Group Pty Ltd T/A Marina Radiology
[2023] FWC 3183
•6 DECEMBER 2023
| [2023] FWC 3183 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Marina Diagnostic Group Pty Ltd T/A Marina Radiology
(AG2023/3181)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 6 DECEMBER 2023 |
Application for approval of the Marina Radiology Enterprise Agreement 2022
Marina Diagnostic Group Pty Ltd, trading as Marina Radiology (MR) has applied for approval of a single enterprise agreement known as the Marina Radiology Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 19 July 2021 and the Agreement was made on 1 September 2023. Accordingly, under transitional arrangements, the genuine agreement and the better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, apply to this application.
The Agreement covers 105 employees of MR, comprising approximately 43 technical staff with the remainder being administration staff. The technical staff includes approximately 20 radiographers and 20 sonographers.[1]
In a ballot, 55 of the 105 employees covered by the Agreement cast a valid vote, 38 of whom voted to approve it.[2]
The Health Services Union (HSU Victoria No. 3 Branch Victorian Allied Health Professionals Association) (HSU) was a bargaining representative for the Agreement and filed a Form F18 Declaration. The HSU’s Declaration stated that it does not support approval of the Agreement and that it disagrees with statements in the employer’s F17A declaration.
The HSU contends that the Agreement is not capable of being approved because MR did not take all reasonable steps to explain the terms of the Agreement, and the effect of those terms to employees, and as a result the Commission cannot be satisfied, as required by s.186(2), that the Agreement has been genuinely agreed to by the employees covered by the Agreement.
MR was granted permission to be legally represented at the hearing on 19 October 2023. The witnesses were:
·Ms Yvonne Crosbie, MR Human Resources Officer;
·Ms Puay Teng Koh, Supervisor and Trainer MRI Radiographer; and
·Ms Linda Jenkin, HSU Lead Organiser.[3]
Background and factual context
The Agreement replaces the Marina Radiology Enterprise Agreement 2018 (2018 Agreement) which reached its nominal expiry date on 21 November 2021. Negotiations for a replacement agreement commenced in July 2021.[4]
MR presented a log of claims which comprised 8 claims. Several of the claims were relatively minor in nature such as seeking to review, update and clarify clauses. One of the few significant changes sought was a claim to “redefine classifications to better reflect the modern standards and meet the needs of the business and our staff”.[5] This was included by MR because the 2018 Agreement was the first agreement at MR and “it was identified that the classifications in the 2018 EBA were not fit for purpose and did not accurately reflect the current organisational structure at Marina Radiology some 4 years later.”[6]
Bargaining meetings were held between September 2021 and 28 November 2022. During bargaining the HSU raised concerns about the classification structure proposed by MR and did not agree to the proposed agreement.
On 22 December 2022, MR provided an email update to staff on bargaining, and then between February and April 2023, Ms Crosbie visited all MR branches in person, bar one, to discuss the proposed agreement and provide employees with an opportunity to ask any questions or provide anonymous feedback.
During bargaining, the HSU indicated on multiple occasions that they had or intended to, update their members and other employees on the changes to the classification structure. For example in April 2023, the HSU stated in an email that if the “proposed changes to the classification structure represent a diminution of conditions, we will of course point this out to our Members and other staff. This will include the ramifications if the agreement was voted up.”[7] Ms Crosbie understood from the HSU’s communications that the HSU had explained the changes to the classification structure to its members and other staff.[8]
In June 2023 MR decided to put the draft agreement to a vote given some 18 months had passed. The ballot closed on 4 July 2023, and 62 employees cast a valid vote with 44 voting in favour of the agreement. MR lodged an application for approval with the Commission and then withdrew it, following the HSU lodging an objection in its Form F18 (although not accepting that the HSU’s concerns were legitimate).[9]
After making minor changes regarding rates of pay and allowances, on 22 August 2023 MR emailed all eligible staff with a notice to vote, a copy of the Agreement, links to the relevant awards and a document “summarising the changes and the effect of the changes.”[10] A ballot was conducted and, as noted above, 38 employees voted to approve it. The HSU continued to not support the Agreement and did not recommend employees vote to approve it.[11]
The current application for approval was then lodged accompanied by a F17A declaration. The declaration of Yvonne Crosbie lodged in support of the application for approval stated that there were no terms or conditions of employment less beneficial than equivalent terms and conditions in the relevant modern award(s), and no terms or conditions different to those under the modern award(s) not already identified.[12] Changes to the classification structure were not otherwise identified in the F17A.
Changes to the classification structure in the Agreement
As foreshadowed in MR’s log of claims, substantial changes were made to the classification structure in Schedule B of the Agreement compared to the 2018 Agreement. The HSU detailed many of the changes in its submissions filed in this matter.[13]
The introduction to Schedule B includes:
No Employee will be reclassified to a lower grade, including but not limited to at the commencement of the Agreement, unless mutually agreed in writing (e.g., in the case of a staff member requesting a change in a position of lesser responsibility).
The following examples illustrate the nature of and significance of some of the changes.
Medical Imaging Technologists (MIT) (Radiographers)
The description of Grade 1 Radiographers in the Agreement is an employee who:
(a) has registration under the National Registration and Accreditation Scheme with the Medical Radiation Practice Board of Australia;
(b) holds a valid Radiation Use License;
(c) works on routine tasks within the scope of practice for their profession, consulting with a more experienced Employee when problems arise or when dealing with matters, they are unfamiliar with;
(d) is able to work with students; and
(e) is proficient in basic radiography skills, such as general Xray, dental imaging and basic CT as follows:
General Radiography
·X-ray;
·Dental imaging; and
·Cone beam CT
Non Contrast CT
·Brain
·Sinuses
·IAMs/PTBs
·Facial bones
·TMJs
·Spine (from cervical to coccyx)
·Pelvis (bony)
·Upper extremities
·Lower extremities
·Calcium score
Basic Contrast CT
·Neck
·Chest
·Abdomen/pelvis
·Renal
·Multiphase organ
The Grade 1 Radiographer description in the 2018 Agreement is:
Grade 1 Radiographers have successfully completed a degree in Medical Imaging/ Medical Radiation or equivalent and is eligible for registration, or provisional registration under the National Registration and Accreditation Scheme with the Medical Radiation Practice Board of Australia. Radiographers at this grade will be eligible for, or hold, a Victorian radiation use licence. Radiographers in Grade 1 perform general x-ray and dental (OPG, Lat Ceph & Cone Beam CT) imaging only. (emphasis added)
Progression through Levels 1-2 of Grade 1 occurs when the employee completes their Professional Development Year, National Professional Development Program or internship. Progression through Levels 3-4 occurs upon completion of specified periods of service.
The Grade 2 Radiographer description in the 2018 Agreement is:
Grade 2 Level 1
Grade 2 Level 1 Radiographers, in addition to competency in all facets of general radiography, will possess skills and knowledge in non-contrast CT studies and regularly utilise those skills and knowledge.Grade 2 Level 2
Grade 2 Level 2 Radiographers will have completed 12 calendar months at Grade 2 Level 1 and worked more hours than a 0.5 FTE Employee, with the Employer or with an employer that provides a similar service. If the working hours are less than those of a 0.5 FTE the Employee will have completed a minimum of 1000 hours or 2 calendar years at Grade 2 Level 1, whichever comes first.Grade 2 Level 3
Grade 2 Level 3 Radiographers will have completed 12 calendar months at Grade 2 Level 2 and worked more hours than a 0.5 FTE Employee with the Employer, or with an Employer that provides a similar service. If the working hours are less than the hours of a 0.5 FTE, the Employee will have completed a minimum of 1000 hours, or 2 calendar years at Grade 2 Level 2, whichever comes first.Grade 2 Level 4
Grade 2 Level 4 Radiographers will have completed 12 calendar months at Grade 2 Level 3 and worked more hours than a 0.5 FTE Employee with the Employer, or with an Employer that provides a similar service. If the working hours are less than the hours of a 0.5 FTE, the Employee will have completed a minimum of 1000 hours, or 2 calendar years at Grade 2 Level 3, whichever comes first.
In the Agreement, the definition of Grade 2 Radiographer is:
A Grade 2 Medical Imaging Technologist is an Employee who is required to undertake additional responsibilities to a Grade 1 and/or who has additional experience who demonstrates a degree of competence and ability to work independently and without supervision which reflects a level of continuing education and/or practical expertise. Parameters for this position would include one or more of the following:
(a)a Medical Imaging Technologist who is required to supervise/assist other medical imaging staff including clinical supervision of Grade 1 Employees, and train medical imaging students;
(b)a Medical Imaging Technologist who is required to upkeep a section of a department or clinic location that requires a solo radiographer; and
(c)a Medical Imaging Technologist who can demonstrate extensive or special knowledge, experience, and competence in any of the specialist modalities or areas of additional responsibilities such as advanced computed tomography (CT) as follows:
·Pulmonary angiogram
·Head and neck angiogram
·Chest and abdomen angiogram
·Cardiac CT
·CT Procedures
In the 2018 Agreement, the definition of a Grade 3 Radiographer is:
Grade 3 Radiographers will be highly competent in all basic medical imaging procedures as set out in Grade 1 and 2. In addition, Radiographers at this grade and level will be engaged, on a regular basis, in IV contrast CT studies, including cannulation, or Angiography.
Grade 3 Radiographers may be required to provide training to other staff and may also be asked to assist in decision- making regarding clinical/ technical issues.
Grade 3 Radiographers must have a comprehensive knowledge of Employer services and policies; such that they are able to appraise/ review the systems/ processes and their impact on the Employer.
The changes in the descriptors at Grades 1 and 2 include that:
(a)Unlike the Agreement which provides that Grade 1 employees perform some non-contrast and contrast CT scans, the 2018 Agreement provides that such employees are classified at Grades 2 and 3 respectively. Under the Agreement, the rate for a Grade 1 Level 1 employee is $31.37 per hour, and the rate for a Grade 2 Level 1 employee is $37.80 per hour and $44.23 per hour for a Grade 3 Level 1 employee.
(b)The Agreement provides that IV contrast CT scans have been changed from a Grade 3 duty to a Grade 2 duty, at a lower rate of pay.
(c)Under the 2018 Agreement, employees below Grade 3 are not required to supervise or train other employees or students, whereas such responsibilities are included in Grade 2 in the Agreement.
Sonographers
The 2018 Agreement and the Agreement define a sonographer’s proficiency in performing scans at 4 levels: Beginner, Intermediate, Competent, Advanced, which are defined. The Agreement alters the definitions of:
(a)“intermediate” by replacing “Improved level of communication skills with the patient to elicit pertinent clinical information” with “Advanced”; and
(b)“competent” by deleting “Some guidance still required to complete the examination due to lack of practical skills because of inexperience.”
The effect of these changes is to increase the level of skill required to have an intermediate or competent level of proficiency.
In addition to the amended proficiency definitions, further changes are made to the level of proficiency required for various scans as detailed below:
Changes to the Grade 1 classifications:[14]
2018 Agreement
Agreement
Change
Nuchal Translucency scan at a beginner level within 60 minutes.
Nuchal at an intermediate level within 60 minutes.
Scan needs to be done at a higher level of proficiency.
2nd Trimester morphology scan at a beginner level within 60 minutes.
2nd Trimester scan at an intermediate level within 60 minutes.
Scan needs to be done at a higher level of proficiency.
3rd trimester growth assessment scan at a beginner level within 30 minutes.
Growth and 3rd trimester scan at an intermediate level within 40 minutes.
Scan needs to be done at a higher level of proficiency, though more time to do the scan.
Carotid scan at an intermediate level within 30 minutes.
Carotid scan at a competent level within 30 minutes.
Scan needs to be done at a higher level of proficiency.
Abdominal Aorta Assessment AAA) scan at an intermedial level within 30 minutes.
AAA scan at a competent level within 30 minutes.
Scan needs to be done at a higher level of proficiency.
Paediatric scans in Neonatal brain at a beginner level, hips at a beginner level, abdomen at a beginner level, pyloric stenosis and spine are preferred but not essential.
Paediatric scans in hips at a beginner level within 30 minutes, abdomen at a beginner level within 30 minutes, pyloric stenosis at a beginner level within 30 minutes and spine at a beginner level within 30 minutes are required.
Grade 1 employees are now required to perform Paediatric scans.
Changes to the Grade 2 Sonography classifications:
2018 Agreement
Agreement
Change
Nuchal Translucency scan at an intermediate level within 40 minutes.
Nuchal at a competent level within 60 minutes.
Scan needs to be done at a higher level of proficiency, though more time to do the scan.
2nd Trimester morphology scan at an intermediate level within 40 minutes.
2nd Trimester scan at a competent level within 60 minutes.
Scan needs to be done at a higher level of proficiency, though more time to do the scan.
3rd trimester growth assessment scan at an intermediate level within 30 minutes.
Growth and 3rd trimester scan at a competent level within 30 minutes.
Scan needs to be done at a higher level of proficiency.
Carotid scan at a competent level within 30 minutes.
Carotid scan at an advanced level within 30 minutes.
Scan needs to be done at a higher level of proficiency.
Abdominal Aorta Assessment (AAA) scan at a competent level within 30 minutes.
AAA scan at an advanced level within 30 minutes.
Scan needs to be done at a higher level of proficiency.
Renal arteries scan at an intermediate level within 40 minutes.
Renal arteries scan at a competent level within 40 minutes.
Scan needs to be done at a higher level of proficiency.
Arm arteries scan at an intermediate level within 30 minutes for unilateral and 40 minutes for bilateral. Peripheral leg arteries at an intermediate level within 60 minutes for unilateral and 90 minutes for bilateral.
Arm/leg arteries scan on one side at a competent level within 40 minutes.
Scan needs to be done at a higher level of proficiency, though more time to do the scan on one side.
Varicose veins scan within 60 minutes for unilateral and 120 minutes for bilateral.
Varicose veins scan at a competent level within 40 minutes for unilateral and 80 minutes for bilateral.
Less time to do the scan. Scan also needs to now be done at a competent proficiency level, whereas previously the classification was silent on the level of proficiency.[15]
These changes generally require scans to be performed at a higher level of proficiency, which makes it more difficult for an employee to progress to the next level and receive the associated higher wage.
The Agreement makes further changes of a similar nature and effect regarding other classifications, for example introducing additional requirements to move from NMT Grade 1 to Grade 2, and from Grade 3 to Grade 4.
The above examples regarding MITs/radiographers and sonographers identify that the changes in the classification structure in the Agreement are significant and not minor or trivial or of little or no consequence. The provision in the Agreement set out in paragraph 17 above only ensures that no existing employee will be reclassified to a lower grade involuntarily. However, it remains the case that under the Agreement technical staff will be required to perform higher level duties and/or perform duties at a higher level of proficiency in order to progress to a higher classification.
Explanation of the Terms
Section 180(5) of the Act requires the employer to take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and that the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees. The object of this obligation is to enable employees to cast an informed vote, knowing what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.[16]
What constitutes ‘all reasonable steps’ will depend upon the facts and circumstances of each particular case.
In relation to the steps taken by MR to explain the terms of the agreement and their effect, Q23 of the F17A Declaration of Ms Crosbie states that:
Date(s)
Steps taken
Explanation given
24, 25 and 28 August 2023
Staff were invited to attend zoom meetings hosted by Human Resources Officer and General Manager
New changes were explained and staff had the opportunity to ask questions about the proposed agreement.
22 August 2023
Summary of changes emailed with the notice to vote
For each clause any changes were explained and for any significant changes (particularly the classifications), the effect of the terms were explained.
31 August 2023
Staff were sent an email at 8am in the morning reminding staff that the ballot was opening. The email also explained the changes proposed by Marina Radiology in comparison to previous agreement.
The wage increase, classification changes, additional leave entitlements relating to parental and FDV leave.
Ms Crosbie gave further evidence about the steps taken by MR:
(a)Between February and April 2023, she visited all branches in person except one, to discuss the Agreement and provide an opportunity for employees to ask questions and provide anonymous feedback. During these visits she spoke to a number of staff on the changes to the Agreement including the classification structure, and the one site she was unable to attend, she emailed them saying she was available to discuss if they had any questions.[17]
(b)On 22 August 2023 she emailed staff with a notice to vote, a copy of the proposed agreement, links to the relevant awards, and a “document summarising the changes and the effect of the changes.”[18]
(c)Staff were invited to attend zoom meetings on 24, 25 and 28 August 2023. It is possible that more employees attended the meeting on 24 August as no roll call was taken, but the Respondent is only aware of one attendee. No employees attended the meeting on 25 August, and one attended on 28 August. At the zoom meetings, management provided an outline of the changes and gave an opportunity to ask questions.[19]
These steps were in addition to the information and updates provided during the course of bargaining and in relation to the first vote.
The summary document sent to all staff is 18 pages long and follows the structure of the Agreement. It states that it is a summary of the changes from the previous agreement, invites employees requiring further clarification to contact HR or their manager, and states that “you may want to refer to our current agreement, the Health Professional and Support Services Award 2020, the Nurses Award 2020, and the proposed agreement while reading this document.” It then has three sections. The first 8 pages details the 50 clauses in the Agreement. Most of these 8 pages deal with the 40 of the 50 clauses that either involved “minor administrative change(s)” or clauses that have been updated in some way. The next 6 pages of the document deal with the changes to Schedule A and Schedule B which detail the classification definitions and descriptions. The changes for most technical staff - Medical Imaging Technologists (MIT) (also known as radiographers), Nuclear Medicine Technologists (NMT), and Sonographers - are detailed over 3 ½ pages.[20] The section states:
“It is also explained that no employee will be reclassified to a lower grade unless mutually agreed in writing, therefore no current staff will be disadvantaged. Due to the removal of the MRI Classification, there is an explanation of how current staff classified under MRI will not be disadvantaged and will advance to a higher level when the EBA is approved.”[21]
The remaining 4 pages comprise the wage rates comparing the corresponding award rate with the Agreement rate and highlighting the increase payable.
In most cases the summary of changes regarding the classification structure does not actually explain the changes made to the classification, it only identifies that changes have been made and does not explain the effect these changes will have on employees. Further, significant space in the document is taken up by identifying that the classification description has been “re-formatted with numbered list for ease of reading” or “changed the list to a table for ease of reading”.
For example, in relation to MITs/radiographers the Summary states:
“Please be aware that there have been several changes to the classifications, particularly for the MITs and Sonographers. This is based on:
·The needs of the business
·Current internal training processes
·Feedback from staff and management
·Information provided from Monash/RMIT university regarding 4th year MIT students.
The MIT classifications were also updated to better align the grading structure to industry standard. This allows for staff and management to get a better idea of skill sets when changing jobs or employing staff.
…It is also explained that no employee will be reclassified to a lower level unless mutually agreed in writing, therefore no current staff will be disadvantaged.
……
MEDICAL IMAGING TECHNOLOGIST (MIT) (ALSO KNOWN AS RADIOGRAPHER)
Changed the title from “Radiographers” to “Medical Imaging Technologist (MIT) (also known as Radiographer)”.
Introductory paragraph added to explain how to advance through each level within each grade (rather than include it in every MIT classification description).
MIT ASSISTANT
New role added.
MIT GRADE 1, LEVELS 1 TO 4
Re-formatted with numbered list for ease of reading.
Bulleted list included to outline what is expected of MITs at this level.
MIT GRADE 2, LEVELS 1TO 4
Re-formatted with numbered list for ease of reading.
Bulleted list included to outline what is expected of MITs at this level.
MIT GRADE 3, LEVELS 1 TO 4
Re-formatted with numbered list for ease of reading.
Added “Have an Advanced Practice Role such as Magnetic Resonance Imaging (MRI)”.
MIT GRADE 4, LEVELS 1 TO 4
Re-formatted with bulleted list for ease of reading and to clarify what is expected of a MIT at this level. Included undertakings from previous agreement (2018).”
And in relation to sonographers the Summary states:
SONOGRAPHERS
Minor administrative changes made to first paragraph. Added “(as per ASUM guidelines)”.
BEGINNER:
No change(s).
INTERMEDIATE:
Re-wording particularly the last 3 bullet points to align with current internal training processes.
COMPETENT:
Removed “Some guidance still required to complete the examination due to lack of practical skills because of inexperience”, otherwise no other changes.
ADVANCED:
No change(s).
TRAINEE LEVEL 1 SONOGRAPHER
Added “appointed internally within the company”.
TRAINEE LEVEL 2 SONOGRAPHER
Added “appointed internally within the company”.
Removed “and with the approval of Tutor Sonographer, Chief Sonographer or Management”.
GRADE 1 – SONOGRAPHER, LEVELS 1-2
Introductory paragraph re-worded slightly (added “at the appropriate level of skill”).
Changed the list to a table for ease of reading.
Level of skill and timeframes have been amended according to our internal training processes. Please note that some skill levels and time frames have been increased or decreased accordingly.
Final paragraph re-worded for clarification.
GRADE 2 - SONOGRAPHER
No change to introductory paragraph. Changed the list to a table for ease of reading.
Level of skill and timeframes have been amended according to our internal training processes. Please note that some skill levels and time frames have been increased or decreased accordingly.
GRADE 3 – SONOGRAPHER, LEVELS 1-3
Re-wording of the first paragraph to better describe the expectations of what a Sonographer at this level may be at. Also included additional wording to accommodate sonographers with a specialised skill (i.e. Vascular or Obstetric Sonographers).
GRADE 3 LEVEL 1:
No changes to this paragraph.
GRADE 3 LEVEL 2:
No changes to this paragraph.
GRADE 3 LEVEL 3:
No changes to this paragraph.
Changed the list to a table for ease of reading. Have removed timeframes.
GRADE 4 - SONOGRAPHER
Re-worded and formatted into a bulleted list for ease of reading. Also included undertakings from previous agreement (2018).
Overall, the combination of the fact that the document merely identifies that changes have been made without identifying the actual changes, together with the high proportion of the document identifying where there has been no or very minor changes, and the highlighting of the increased wages, may have created an impression that the changes in the Agreement are minor and insignificant overall and that there’s ‘nothing to see here’. That may have led employees to consider there was no need to go and undertake a detailed comparison of the current and proposed classification structures.
Ms Crosbie, who was the principal author of the summary document, gave evidence about why all the changes were not set out and/or explained in it. She explained that choices had to be made about what to include because it was such a long document. She went on to explain that she chose to include minor formatting changes and the like over substantive changes because the staff are highly intelligent and would be able to interpret the document. Ms Crosbie thought that employees did not need as much explanation because she thought that they would go through and consider the 2018 Agreement against the Agreement.[22]
In cross-examination, Ms Crosbie acknowledged that the Summary did not actually identify the specific changes to the classification structure and pointed to the introductory words in the Summary as set out in paragraph 39 above.[23] She conceded in cross examination that saying that there are several changes is not an explanation of the actual change.[24]
Ms Crosbie’s evidence as to the discussions she had whilst visiting sites was that they did not include specific reference to the specific changes.[25]
The Applicant submits that the steps taken by MR were sufficient to satisfy its obligation under s.180(5) given:
(a)Negotiations had been ongoing for more than 2 years;
(b)An experienced trade union was involved in the negotiations, as well as employee bargaining representatives who were appointed on behalf of other staff;
(c)Employees covered by the agreement are well educated and sophisticated;
(d)Changes to the classification structure were proposed from the initiation of bargaining, meaning employees were on notice that there would be changes to the classifications.
(e)The applicant communicated with employees through various means over the course of 2 years.[26]
MR also submits that it was entitled to rely on the HSU to update employees on the changes and the impact of them. MR also relies on the evidence of Ms Koh who gave evidence that she was given an opportunity to ask questions or provide feedback on the Agreement when a representative from HR visited the branch, and that she chose not to attend the zoom meeting as she had been provided with all the information she required regarding the changes through conversations/messages with the delegates, HR team and her manager.
Changes to the classification structure were proposed at the outset of bargaining. They were at least some of the most significant and contentious changes in the Agreement. Whilst employees were on notice that there would be changes, it was necessary for MR to explain the changes and their effect clearly and comprehensively. That is especially so given that bargaining had taken place over an extended period of time, with changes along the way.
That the employees are intelligent and educated again does not obviate the employer’s obligation to explain the terms. The Act makes no such distinction. It may be a relevant circumstance in some instances, for example if the language used in the employer’s explanation was more complex. However, it does not enable the employer to fail to identify the actual changes and provide any explanation as to their effect, and simply invite employees to review other documents to assess the change for themselves.
Reliance on the HSU’s communication to its members and other employees is also no answer. Firstly, the obligation in s.180(5) is imposed on the employer and not representatives involved in bargaining. There may be circumstances where an employer collaborates with bargaining representatives to provide an explanation of the terms of an agreement. [27] However, that is not what occurred here, almost the opposite. The position of the HSU and the information it distributed was at odds with the information provided by and the position of MR. The HSU’s message was that there were detrimental changes to the classification structure, whereas MR did not explain any of the actual changes to the classification structure let alone their effect, and considered the HSU was wrong.[28] The HSU was encouraging employees to vote against the Agreement and MR was seeking its approval. The s.180(5) obligation on MR could not be met by relying on contrary, and what it contends was inaccurate, information distributed to some of its employees from the HSU. In any event, there is no evidence that all employees covered by the Agreement received the HSU’s information.
The evidence of one employee, Ms Koh,[29] and Ms Crosbie’s evidence that no employee had informed her that they did not understand the classification structure and did not genuinely agree to the Agreement,[30] does not address the objective assessment of whether MR satisfied its obligations to explain the terms of the Agreement, and their effect.
I am not satisfied that MR took all the reasonable steps it was required, in the circumstances, to take. At the very least, the Summary document should have clearly identified and explained the changes to the classification structure. The explanation should include that whilst employees would not be downgraded in their classification, their ability to progress to higher levels would be affected, and provide details, including identifying the different pay rates that would apply. There is no valid explanation for why this did not occur. The explanation that such information was not included to avoid the document being too long is not acceptable, given the conscious choices made to take up much of the document with pointing out where there were no or very minor changes. Further, no reliance can be placed on the discussions at the sites by Ms Crosbie nor the zoom meetings, in light of the evidence that those discussions did not involve identifying or explaining the actual changes to the classification structures.
MR submits that if I was to find that there had been a failure to comply with s.180(5) of the Act, the Commission can nonetheless be satisfied that the Agreement was genuinely agreed to. It submits that considering the low attendance at the zoom meetings and low engagement generally by employees, the error would not have changed the result and amounts to a minor technical error under s.188(2).[31] I am not satisfied that the failure to comply with s.180(5) here is a minor technical error. It involves a failure to explain substantial changes which have a detrimental effect on employees. MR submitted that the changes do not disadvantage employees because by allowing for tasks to be performed at lower levels they promote career progression and upskilling.[32] However, it is clearly detrimental to employees to require them to undertake higher level duties and/or exercise higher levels of proficiency in order to progress to a higher level. Even if the changes could be described as minor technical errors, I would not be satisfied that the employees were not likely to have been disadvantaged by them. They are substantive changes which disadvantage employees.
The application for approval of the Agreement is dismissed.
DEPUTY PRESIDENT
Appearances:
N Prestia of HR Legal, with permission on behalf of the Applicant.
A Leszczynski, for the HSU.
Hearing details:
2023.
October 19, 23
Video Hearing
[1] Transcript PN273-279.
[2] F17A lodged by Applicant.
[3] Exhibit VAHPA1.
[4] Witness Statement of Yvonne Crosbie, Digital Hearing Book (“DHB”) p.130.
[5] Ibid at p.131, Exhibit YC1 to the Witness Statement of Yvonne Crosbie, DHB p.139.
[6] Ibid at p.131.
[7] Ibid at p.134.
[8] Ibid.
[9] Ibid, p.136.
[10] Ibid.
[11] Ibid.
[12] F17A, DHB p.19-21.
[13] HSU’s Outline of Submissions, DHB p.965-998
[14] HSU Outline of Submissions, DHB p.984.
[15] The 2018 Agreement provides that a Grade 2 Sonographer must be competent in all general studies as listed in Grade 1, and can demonstrate that they are able to perform the remaining studies, listed in Grade 1 at the proceeding skill level (i.e. Grade 1 study performed at the beginner level, must be performed at the intermediate level to progress to Grade 2). I note that the level of proficiency for a Grade 1 Sonographer to complete varicose veins scans was silent.
[16] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [115].
[17] Witness Statement of Yvonne Crosbie, DHB p.133.
[18] Ibid at p.136, Exhibit YC-21 to the Witness Statement of Yvonne Crosbie, DHB p.767.
[19] Ibid at p.137.
[20] Exhibit YC-21 to the Witness Statement of Yvonne Crosbie, DHB p.770-787.
[21] Ibid, Exhibit YC-21 to the Witness Statement of Yvonne Crosbie, DHB p.778.
[22] Transcript PN279-283.
[23] Transcript at PN87-90.
[24] Transcript at PN91.
[25] Transcript at PN182.
[26] Applicant’s Outline of Submissions, DHB p.120.
[27] Re McDonalds Australia Pty Ltd[2010] FWCFB 4602 at [31].
[28] Transcript at PN423.
[29] Witness Statement of Puay Yeng Koh, DHB p.116.
[30] Witness Statement of Ms Crosbie at [66], DHB p.137.
[31] Transcript at PN430.
[32] Transcript at PN427.
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0