McMahon Services Australia Pty Ltd

Case •

[2024] FWCA 4016

•

19 NOVEMBER 2024
[2024] FWCA 4016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

McMahon Services Australia Pty Ltd

(AG2024/3119)

MCMAHON SERVICES AUSTRALIA PTY LTD - ASURCO ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries

COMMISSIONER MATHESON

SYDNEY, 19 NOVEMBER 2024

Application for approval of the McMahon Services Australia Pty Ltd – Asurco Enterprise Agreement 2024

  1. An application has been made for approval of an enterprise agreement known as the McMahon Services Australia Pty Ltd – Asurco Enterprise Agreement 2024 (Proposed Agreement). The application was made by McMahon Services Australia Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

  1. Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. It is not disputed by any party that the notification time for the Agreement was a date prior to this. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in force in relation to genuine agreement immediately prior to 6 June 2023.

  1. The Form F17B filed with the application also indicates that the Agreement was made on 3 August 2024. As the Agreement was made on a date on or after 6 June 2023, recent changes to the Act made in relation to the better off overall test apply to the application.

  1. The Applicant is the employer covered by the Proposed Agreement and the Construction Forestry and Maritime Employees Union (CFMEU) was a bargaining representative for the Proposed Agreement.

  1. It is declared in the Form F17B filed with the application that at the time of the vote 56 employees were covered by the Proposed Agreement.

CFMEU intervention

  1. The CFMEU filed a Form F18 Declaration indicating that it opposed the Proposed Agreement’s approval on the following grounds:

  1. clause 1.10.5 of the Proposed Agreement contains objectionable terms;
  2. clause 2.1.7 is contrary to the National Employment Standards (NES);
  3. the Proposed Agreement does not pass the better off overall test (BOOT);
  4. the Applicant did not take all reasonable steps to provide access to copies of the material incorporated by reference in the Proposed Agreement as required by s.180(2) (as it stood prior to 6 June 2023;
  5. the Applicant did not take all reasonable steps to ensure the Proposed Agreement’s terms and their effect were explained to employees as required by s.180(5) of the Act.

  1. I deal with each of these matters below.

Does clause 1.10.5 of the Proposed Agreement contain objectionable terms?

  1. Clause 1.10.5 provides that:

‘While a concern or dispute is being dealt with, work will continue as normal except where the is a bona fide concern regarding an immediate or imminent threat to health or safety. Where there is a bona fide health or safety issue, Employees must perform suitable, safe and appropriate alternative work as directed. There will be no bans, stoppages or limitations on the way that work is customarily performed.’

  1. Section 186(4) of the Act requires that the Commission be satisfied that the Proposed Agreement does not include any unlawful terms. Section 194(b) of the Act defines ‘unlawful term’ to include an ‘objectionable term’. Section 12 defines ‘objectionable term’ as a term that, among other things ‘permits, has the effect of permitting, or purports to permit or have the effect of permitting … a contravention of Part 3-1 (which deals with general protections)’.

  1. Section 340, within Part 3-1 of the Act, prohibits adverse action being taken against a person because that person has exercised a workplace right, or proposes to exercise a workplace right. A ‘workplace right’ is defined by s.341(1)(a) to include a situation where a person ‘is entitled to the benefit of … a workplace law’, defined in s.12 to include the Act and ‘any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters’.

  1. Section 19(2)(c) provides that action by an employee is not ‘industrial action’ if:

‘the action was based on a reasonable concern of the employee about an imminent risk to his or her health and safety [and] the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.’

  1. Section s.84 of the Work Health and Safety Act 2012 (SA) (SA WHS Act) provides that a worker has a right to:

‘…cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker’s health or safety, emanating from an immediate or imminent exposure to a hazard.’

  1. The CFMEU submitted that:

  • the exception in the first sentence of clause 1.10.5 applies in more limited circumstances than either s.19(2)(c) of the Act or s.84 of the SA WHS Act in that a risk to health and safety may be imminent but not immediate;
  • the second sentence of clause 1.10.5 is not subject to a proviso that the alternative work be either ‘safe and appropriate’ or ‘suitable’, equivalent to s.19(2)(c) and s.86 of the SA WHS Act;
  • the third sentence of clause 1.10.5 appears to impose a freestanding prohibition on various forms of industrial action, without any exception for action in response to a health and safety concern.

  1. During the hearing I raised a concern about whether I could be satisfied that the Proposed Agreement did not contain unlawful terms, noting the issues raised by the CFMEU, and invited an amended undertaking.

  1. The Applicant has provided the following undertaking (Undertaking 1):

‘Clause 1.10.5 shall be read as follows: “While a concern or dispute is being dealt with, work will continue as normal except where the (sic) is a bona fide concern regarding an immediate or imminent threat to health and safety. Where there is a bona fide health or safety issue, Employees must perform suitable, safe and appropriate alternative work as directed.’

  1. The CFMEU confirmed during the hearing that such an undertaking would address its concerns.

  1. Notwithstanding the minor typographical error in Undertaking 1 in that the first reference to ‘the’ is clearly intended as a reference to ‘there’, the undertaking addresses my concern and I am satisfied that the effect of accepting Undertaking 1 is not likely to:

(a)cause financial detriment to any employee covered by the Proposed Agreement; or

(b)result in substantial changes to the Proposed Agreement.

  1. In accepting Undertaking 1, I am satisfied that the Proposed Agreement does not include any unlawful terms.

Does clause 2.1.7 contravene the NES?

  1. Section 186(2)(c) requires that the Commission be satisfied that the Proposed Agreement does not include any terms that contravene s.55 of the Act before it may be approved. Section 55(1) provides that an enterprise agreement must not exclude the NES or any provision of the NES and s.55(4) provides that an enterprise agreement may not include a term that is ancillary, incidental or supplementary to the NES if the effect of the term is detrimental to an employee ‘in any respect’ compared to the NES.

  1. Clause 2.1.7 of the Proposed Agreement provides:

‘Where an employee is unable to report for duty for any reason the office must be notified of the employee’s absence no later than 7.00am on the day of the absence, unless special circumstances apply, the employee will notify the Company as soon as practicable.’

  1. Under the NES, an employee is required to give notice “as soon as practicable” in respect of unpaid special parental leave,[1] unpaid pre-adoption leave,[2] paid personal/carer’s leave, unpaid carer’s leave, compassionate leave, paid family and domestic violence leave[3] and community service leave.[4] A concern arose as to whether the Commission could be satisfied that the Proposed Agreement does not include any terms that contravene s.55 of the Act as the requirement in the NES to give notice “as soon as practicable” may, dependent on the circumstances, be at a time after the leave has started.

  1. The CFMEU submitted that the effect of clause 2.1.7 of the Proposed Agreement is to exclude these provisions of the NES “unless special circumstances apply” and as a result is contrary to s.55 of the Act.

  1. The Applicant has provided the following undertaking to address the concern (Undertaking 2):

‘To avoid doubt, a “special circumstance” referred to in clause 2.1.7 includes, without necessarily being limited to, a circumstance in which it was not reasonably practicable for the employee to notify of their absence before the nominated time.”

  1. The CFMEU did not object to the undertaking and confirmed during the hearing that it would resolve the concern.

  1. I am satisfied that the effect of accepting Undertaking 2 is not likely to:

(c)cause financial detriment to any employee covered by the Proposed Agreement; or

(d)result in substantial changes to the Proposed Agreement.

  1. In accepting Undertaking 2, I am satisfied that the Proposed Agreement does not include any terms that contravene s.55 of the Act.

Does the Agreement pass the BOOT?

  1. The employees covered by the Proposed Agreement are covered by the following modern awards:

  • Building and Construction General Onsite Award 2020 (Building Award);
  • Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award);
  • Plumbing and Fire Sprinklers Award 2020 (Plumbing Award);
  • Joinery and Building Trades Award 2020 (Joinery Award).

  1. The CFMEU submitted that the above award rates of pay and other conditions under the Proposed Agreement are not sufficient to compensate for the loss of other award entitlements and as a result the Proposed Agreement does not pass the BOOT.

  1. In particular, the CFMEU submitted that unlike the Building Award, the Proposed Agreement does not provide for day workers to be paid crib time Monday to Friday and the loss of this entitlement for day workers means that an employee engaged as a Trade Assistant under the Proposed Agreement (a daily hire CW1(d) employee under the Building Award) is worse off under the Proposed Agreement than they would be under the Building Award.

  1. Clause 5.4 of the Agreement provides:

‘5.4 CRIB TIME

When an employee is required to work overtime after the usual ceasing time for the day or shift for two hours or more, the employee will be allowed to take, without deduction of pay, a crib time of 20 minutes in duration immediately after such ceasing time and thereafter, after each four (4) hours of continuous work, the employee will be allowed to take, also without deduction of pay, a crib time of 30 minutes in duration. In the event of an employee remaining at work after the usual ceasing time without taking the crib time of 20 minutes and continuing at work for a period of two hours or more, the employee will be regarded as having worked 20 minutes more than the time worked and be paid accordingly.

Where an employee elects not to take the prescribed crib time, that employee will not be entitled to payment in lieu of the taking of the prescribed crib time.’

  1. The Applicant provided an undertaking (Undertaking 8) to clarify that:

‘Clause 5.4 of the Agreement applies to employees whether day workers or shift workers’.

  1. During the hearing the CFMEU acknowledged that Undertaking 8 resolved its concerns in relation to the BOOT.

  1. The Commission raised a number of other matters relevant to its concern as to whether the Proposed Agreement passed the BOOT and the Applicant provided undertakings to address these. This resulted in the Applicant providing eight undertakings in total (Undertakings). I am satisfied that the Proposed Agreement, provided the Undertakings are accepted, passes the BOOT.

  1. The views of each person I know is a bargaining representative for the Proposed Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(e)cause financial detriment to any employee covered by the Proposed Agreement; or

(f)result in substantial changes to the Proposed Agreement.

  1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

Provision of material incorporated by reference

  1. The Proposed Agreement is to be assessed taking into account ss.180(2), 186(2)(b)(i) and 188(1)(a)(i) of the Act as it stood immediately prior to 6 June 2023. The operation of those provisions means that the Commission cannot approve the Proposed Agreement unless it is satisfied that the Applicant took all reasonable steps to ensure that employees were given copies of any material incorporated by reference during the access period, and had access to copies of those materials throughout the access period.

  1. The CFMEU submitted that the documents apparently incorporated by reference in the Proposed Agreement because “particular provisions of the Agreement establish entitlements or obligations which operate by reference” to them,[5] are:

  • the Applicant’s “policies and standards as issued from time to time”, which employees are obliged to comply with under Proposed Agreement cl 1.7.1;
  • the Applicant’s “Alcohol and Other Drugs policy”, which employees are obliged to comply with under Proposed Agreement cl 2.1.5; and
  • the Applicant’s policy in relation to employee uniforms, which employees are required to comply with under Proposed Agreement cl 6.8.1.

  1. The CFMEU submitted that:

  • these provisions are to be construed in the context of clauses 1.7.1 and 2.1 of the Proposed Agreement which provide that the Applicant’s policies (and standards) “do not form part of this Agreement”;
  • the specific provisions of clauses 2.1.5 and 6.8.1 create exceptions to those general provisions, by establishing entitlements or obligations which operate by reference to specific external documents incorporated in the Proposed Agreement despite clauses 1.7.1 and 2.1;
  • the second sentence of clause 2.1.5 expressly provides that the “Alcohol and Other Drugs policy” “does not form part of this Agreement” and this restores the position established by clauses 1.7.1 and 2.1;
  • there is no express provision in clause 6.8.1 that serves to undo the incorporation of the uniform policy by reference to that clause and as a result it is incorporated in the Proposed Agreement.

  1. The CFMEU submitted that the Applicant did not provide employees with a copy of the uniform policy at the start of the access period and nor did the part of the explanatory document (Explanatory Document) dealing with clause 6.8.1 include a link to access the uniform policy or other directions on how to access the policy. The CFMEU submitted:

  • the Applicant’s failure to take those steps was a failure to take all reasonable steps for the purposes of s.180(2);
  • the Commission cannot reach the state of satisfaction required by ss.186(2)(b)(i) and 188(1)(a)(i) and the Proposed Agreement cannot be approved.

  1. The Applicant submitted that the CFMEU’s submissions appear to be a rehash of arguments it raised in other agreements applying to the Applicant or its related entities in Application by McMahon Services Pty Ltd[6] (Civil EBA Decision) and Application by Ballestrin Construction Services Pty Ltd[7] (Ballestrin), although it noted that while Ballestrin was decided under the pre-6 June 2023 framework the Civil EBA Decision was not.

  1. Of note, the proposed agreement in Ballestrin contained the following clauses:

  • clause 2.1 which stated:

‘All employees are required to adhere to the following requirements for the purposes of ensuring that the Company is able to operate in a safe, efficient and productive manner. The following procedures and practices should be observed at all times and are complimentary to other workplace requirements as set out in this Agreement, the Company’s policies and procedures (as amended) and the Company’s Occupational Health, Safety and Welfare Policy (as amended). Company policies do not form part of this Agreement’;

  • clauses 11.3.1.1 and 11.3.1.2, which the CFMEU submitted incorporated company policy in relation to the supply of clothing and footwear and which stated:

‘An employee, when working on site, is required to wear all footwear and clothing supplied [in] accordance with the Employer policy, as amended from time to time.

The supplied footwear and clothing will be replaced on a “fair wear and tear” basis in accordance with the company's policy on the supply of footwear and clothing.’

  • clause 11.1.9 which the CFMEU submitted incorporated the Occupational Health and Safety and Welfare Policy and which stated:

‘The requirements of the Company's Occupational Health, Safety and Welfare Policy (as amended) will be observed at all times.’

  • clause 2.1.5 which the CFMEU submitted incorporated the Drug and Alcohol Policy and which stated:

‘An employee will not present for work whilst under the influence of alcohol or drugs or have any alcohol or non-prescription drugs in their possession while in the workplace. Employees are required to comply with the Company's Drug and Alcohol Policy. The Policy does not form part of this Agreement.’

  1. The Applicant noted that in Ballestrin the Deputy President found that policies were not incorporated by reference, stating:

‘[27] There is on one view, a direct inconsistency between the terms of the Agreement in the sense that there are clauses that seek to import obligations and entitlements from external policies into the Agreement (clauses 11.3, 11.1 and 2.1.5) but two other clauses that then seek to remove those obligations and entitlements. At the very least the clauses create an ambiguity as to their proper construction. Viewed as a whole, I think the better reading of these provisions is that the terms of company policies are not incorporated into the Agreement. I am of this view because the text of clause 2.1 is in clear terms and applies expressly to all company policies. That wording must be given effect to. Whilst the term would have been better placed as a stand-alone provision, I think it appropriate to make some allowance for the fact that instruments of this kind are not usually drafted with an eye to legal niceties.16 I also think the wording of the introductory paragraph to clause 2.1 makes a distinction between the requirements set out in that clause which are terms of the Agreement and other requirements that are provided for elsewhere in the Agreement as terms, and those which are dealt with in company policies. After drawing the distinction, the clause immediately makes clear that company policies do not form part of the Agreement. I think the objective intention of the clauses and their ultimate effect is that to the extent the policies are referred to in the Agreement and compliance with those policies is mentioned, these are references to obligations that may arise as additional terms of the contracts of employment of employees covered by the Agreement, but they are not imposed by, or enforceable through, the Agreement itself. That conclusion is also consistent with clause 1.7 Conditions of Employment and Interaction with Other Instruments, subclause 1 of which provides: Employees will comply with Employer policy as issued from time to time. Employer policy does not form part of this Agreement.’

  1. The Applicant submitted that the above reasoning of the Deputy President is prescient to the matter and particularly in resolving any apparent ambiguity by the express statement that policies were not intended to form part of the agreement when construed in accordance with usual industrial principles including the likely practical bent of the lay drafters.

  1. Further, the Applicant submitted that in the current matter, the Explanatory Document clearly sets out where employees can access the policies and procedures stating:

‘The clause refers to the Company’s policies and standards. These are available on the Company’s Skytrust portal which you should all have access to. If you would like a hard copy of these, or have any issues accessing the documents, please contact the Contact Person. These policies and standards are not incorporated into the Proposed Agreement.’

  1. The Respondent noted that the above text appears the first time policies are mentioned in the Explanation Document (regarding clause 1.7) and submitted this is a logical place for that to occur.

  1. The explanation included a hyperlink to the login page for the Skytrust portal Mr Neil Chappel’s evidence was that each employee has a log in for this portal, the uniform policy is in the portal and on commencement employees are inducted in relation to policies and procedures, including where to access them.

  1. The Applicant also noted that there are further references in the explanation as to where policies can be located including:

  • in the final paragraph on page 3 of the Explanation Document which states:

‘Documents referred to in the Agreement

In the Proposed Agreement, references are made to other documents. Where relevant, instructions on how to access the documents or a hyperlink is provided. If you would like a copy of any of the documents, please contact the Contact Person’

  • in relation to the explanation regarding clause 2.1 “company requirements”, the following statement:

‘The clause refers to the Company’s policies and procedures (including the Alcohol and Other Drugs policy). These are available on the Company’s Skytrust portal. If you would like a hard copy of these, please contact the Contact Person.’

  1. The Applicant submitted it appeared the CFMEU’s concern is that the hyperlink did not appear adjacent to a particular clause and in doing so has conflated the giving or access to documents under s.180(2) with the giving of an explanation under s.180(5). The Applicant submitted there is no such obligation at law, and nor would such a reading be consistent with the principle that documents are to be read and interpreted as a whole. Further, the Applicant submitted that on any fair reading of the Explanation Document the reader is clearly directed to the place where the policies are located and that satisfies either s.180(2)(a) or (b).

  1. The Applicant also pointed to Mr Chappel’s evidence[8] that:

  • all employees are engaged under a letter of offer that includes a requirement to familiarise themselves with, and comply, with the Applicant’s policies and procedures;
  • employees are inducted into the Applicant’s policies and procedures, including where to access the procedures;
  • the Applicant’s policies (including but not limited to the uniform policy) are also available on the Applicant’s safety platform and employees regularly use this when completing their SLAM card (‘stop, look, assess, manage’) which is a pocket/wallet care issued to employees that they are required to have on site to assist with risk assessments;
  • the SLAM card includes a QR code on the back that takes the employee to the Applicant’s policies as contained in the safety platform.

  1. The Applicant submitted that these additional steps (without the express direction to Skytrust and the provided hyperlink) were considered sufficient in Ballestrin and the Civil EBA Decision.

  1. As to the question of whether the external documents are incorporated into the terms of the Proposed Agreement, the relevant test is whether the term in the Proposed Agreement establishes an entitlement or obligation which operates by reference to documents external to the Proposed Agreement.[9]

  1. Clause 1.7.1 of the Proposed Agreement states:

‘Employees will comply with Employer policies and standards as issued from time to time. Employer polices and standards does (sic) not form part of this Agreement.’

  1. Clause 2.1 of the Proposed Agreement states:

‘All employees are required to adhere to the following requirements for the purposes of ensuring that the Company is able to operate in a safe, efficient and productive manner. The following procedures and practices should be observed at all times and are complimentary to other workplace requirements as set out in this Agreement and the Company’s policies and procedures (as amended). Company policies do not form part of this Agreement.’

  1. Clause 2.1.5 of the Proposed Agreement states that employees ‘are required to comply with the Company’s Alcohol and Other Drugs policy’, however consistent with clause 1.7.1, clause 2.1, expressly states that the policy does not form part of the Proposed Agreement.

  1. Clause 6.8.1 states:

‘Employees are required to wear a uniform in accordance with Employer policy, as amended from time to time’.

  1. Considered in isolation, a plain reading of the first sentence of clause 2.1.5 and clause 6.8.1 is that they seek to impose an obligation on employees.  In particular:

  • in the case of clause 2.1.5, an obligation on the part of the employee to ‘comply with the Company’s Alcohol and Other Drugs policy’; and
  • in the case of clause 6.8.1 an obligation on the part of the employee to wear a uniform in accordance with Employer policy, as amended from time to time.

  1. Without reading beyond the first sentence of clause 2.1.5 and clause 6.8.1, these obligations would operate by reference to documents external to the Proposed Agreement, in particular:

  • in the case of clause 2.1.5, ‘the Company’s Alcohol and Other Drugs policy’; and
  • in the case of clause 6.8.1 the relevant policy dealing with uniforms.

  1. It is less clear as to whether clause 1.7.1 which states ‘Employees will comply with Employer policies and standards as issued from time to time’, is included as an aspirational statement or is intended to establish an entitlement or obligation which operates by reference to the Applicant’s policies and standards.[10]

  1. The question arises as to how these provisions can be reconciled with:

·   the balance of clause 1.7.1 which expressly provides that the Applicant’s policies and standards do not form part of the Proposed Agreement;

·   clause 2.1 which expressly provides that the Applicant’s policies do not form part of the Proposed Agreement; and

·   the balance of clause 2.1.5 which expressly provides that the Applicant’s ‘Alcohol and Other Drugs policy’ does not form part of the Proposed Agreement.

  1. An inconsistency arises when the provisions are considered together and, in this regard, like the observation that Deputy President Roberts made in Ballestrin,[11] ambiguity arises.

  1. The Explanatory Document provided to employees compared the Proposed Agreement with the agreements that covered employees including the Asurco Contracting Pty Ltd Enterprise Agreement 2019-2021 (Asurco Agreement) that nominally expired on 7 October 2022 and the McMahon Services Australia Pty Ltd Roofing and Cladding Division Enterprise Agreement 2018 (McMahon Agreement) that nominally expired on 18 October 2022.

  1. The Explanatory Document states, in the explanation of clause 1.7:

‘The clause confirms that the Proposed Agreement is a ‘stand alone’ document and replaces any award and an existing agreement (whether registered or not) that covers employees bound by the Proposed Agreement (other than Australian Workplace Agreements or Individual Transitional Employment Agreements).

The clause refers to the Company’s policies and standards. These are available on the Company’s Skytrust portal which you should all have access to. If you would like a hard copy of these, or have any issues accessing the documents, please contact the Contact Person. These policies and standards are not incorporated into the Proposed Agreement.

This clause is consistent with the McMahon Agreement, except that the reference to policy has been expanded to policies and standards and the reference to the Tendering and Performance of Building Work 2016 (the Code) has been removed. The Code was a Federal Government policy that previously that placed some restrictions on enterprise agreements The Code is no longer in force.

While different language is used, the Asurco Agreement is also a stand-alone document. The effect of the clauses is the same. However, there is no requirement in the Asurco Agreement for employees to comply with policies and standards.’

  1. While the Explanatory Document points the reader to the place where the Applicant’s policies and standards can be accessed, it explains that:

  • ‘the Proposed Agreement is a ‘stand alone’ document’; and

  • ‘the policies and standards are not incorporated into the Proposed Agreement’.

  1. This appears to contemplate that the Proposed Agreement is intended to be read as a stand alone document and does intend to set out entitlements or obligations which operate by reference to documents external to the Proposed Agreement, such as policies or standards.

  1. The Explanatory Document states, in the explanation of clause 2.1 that:

‘This clause sets out a series of requirements which employees must comply with. These obligations are strict obligations that employees must follow.

Some of the obligations in this clause go above and beyond those which employees are required to comply with generally under the Awards. These obligations have been inserted into the Proposed Agreement in line with best practice …’

  1. While the explanation notes that the clause refers to the Applicant’s ‘policies and procedures (including the Alcohol and Other Drugs policy)’ and points the reader to the place where these can be accessed, the Explanatory Document also explains that under the Proposed Agreement:

‘It has been confirmed that the policies and procedures do not form part of the Proposed Agreement’.

  1. In the explanation of clause 6.8, where clause 6.8.1 is located, no mention is a made of an obligation on the part of the employee to wear a uniform in accordance with employer policy, as amended from time to time.

Finding regarding 180(2)(a)(ii)

  1. While the first part of clauses 1.7.1 and 2.1.5 refer to compliance with policies, this is not where the text ends and the clauses state in express terms that the Applicant’s policies are not incorporated into the Proposed Agreement. This is evidenced by:

·   the balance of clause 1.7.1 which expressly states that ‘Employer policies and standards does (sic) not form part of the Agreement.’

·   the balance of clause 2.1.5 which expressly provides that the Applicant’s ‘Policy does not form part of the Agreement’.

  1. In my view, the objective intention of the second sentence of each of clauses 1.7.1 and clause 2.1.5 is to make clear that despite the reference to the ‘Employer policies and standards’ and the ‘Policy’ (being the Alcohol and Other Drugs policy), these documents are not incorporated into the Proposed Agreement and therefore the Proposed Agreement does not actually establish entitlements or obligations by reference to these external documents.

  1. Unlike clause 2.1.5, clause 6.8.1 does not expressly state that policies are not incorporated into the Proposed Agreement and nor does it set out an express exclusion of the ‘Employer policy, as amended from time to time’. The CFMEU has submitted that there is no express provision in clause 6.8.1 that serves to undo the incorporation of the uniform policy by reference to that clause and as a result it is incorporated in the Proposed Agreement and I accept that in legal drafting the more specific provisions would generally override the general provisions where an inconsistency arises. However I also agree with the observation of DP Roberts in Ballestrin that enterprise agreements are not always drafted with ‘an eye to legal niceties’.[12] When read in context and taking into account the wording in clause 1.7.1 and 2.1 which both expressly state that policies are not incorporated into the Proposed Agreement, it seems unlikely that the objective intention was to create an obligation or entitlement with reference to any employer policy, including the unidentified employer policy that may deal with uniforms. As is apparent from Mr Chappel’s evidence,[13] all employees are engaged under a letter of offer that includes a requirement to familiarise themselves with, and comply, with the Applicant’s policies and procedures. It seems more likely that the reference to a policy dealing with uniforms is simply a contextual reference to an existing obligation arising from an employee’s contract of employment rather than serving to establish enforceable obligations under the Proposed Agreement. Clause 1.7.1 seeks to manage expectations early in the Proposed Agreement by expressly providing that the Applicant’s policies and standards do not form part of the Agreement, clause 2.1 reinforces that policies do not form part of the Proposed Agreement when the Company’s requirements under that clause are dealt with and the explanations given to employees in the Explanatory Document affirm this with statements including:

  • ‘the Proposed Agreement is a ‘stand alone’ document’;

  • ‘the policies and standards are not incorporated into the Proposed Agreement’; and

    • ‘It has been confirmed that the policies and procedures do not form part of the Proposed Agreement’.

  1. Further, the explanation of clause 6.8 in the Explanatory Document does not describe an obligation on the part of the employee to wear a uniform in accordance with Employer policy, as amended from time to time but rather focuses on the requirements of the Applicant and responsibility of employees in relation to PPE.

  1. In this regard, I adopt a similar finding to that of DP Roberts in Ballestrin in that while compliance with policies is mentioned in the Proposed Agreement, it is apparent that the objective intention of the Proposed Agreement is that clauses 1.7.1, 2.1.5 and 6.8.1 do not actually establish entitlements or obligations by reference to policies. In this regard, I find that the Applicant’s policies are not incorporated by reference in the Proposed Agreement.

  1. Even if I am wrong and the Proposed Agreement does establish entitlements or obligations which operate by reference to the external policies referred to, I note that:

  • the Explanation Document provided to employees advises employees that they can access policies and standards on the Applicant’s Skytrust portal;
  • the Explanation Document states that if employees would like a hard copy of these, or had any issues accessing the documents, they could contact the Contact Person;

  • the Explanation Document included a hyperlink to the login page for the Skytrust portal;

  • Mr Chappel’s evidence was that each employee has a log in for this portal, the uniform policy is in the portal and on commencement employees are inducted in relation to policies and procedures, including where to access them.

  1. Having regard to these steps, I would otherwise be satisfied that the employer took all reasonable steps to ensure that employees had access throughout the access period to the text of the Proposed Agreement and any materials incorporated by reference in accordance with s.180(2)(b).

Did the Applicant take all reasonable steps to ensure the Agreement’s terms and their effect were explained to employees as required by s.180(5) of the Act?

  1. The Applicant provided the Explanatory Document to employees in taking steps to explain the Proposed Agreement’s terms and their effect to employees. The CFMEU submitted that the Explanatory Document:

  • did not identify nor explain the omission of the entitlement for day workers to be paid crib time;
  • did not explain that the omission of the entitlement meant that the Proposed Agreement failed the BOOT;
  • is drafted in a way to give an incorrect impression that all employees are entitled to be paid crib time under clause 5.4.

  1. Mr Chappel, the Applicant’s Executive General Manager of the Asurco Roofing and Cladding Division for the Applicant gave evidence that while it had been brought to his attention that the reference to crib breaks sits in the shift worker only section of the Proposed Agreement, he had understood that the crib break was going to apply across the work group. Undertaking 8 provided by the Applicant clarifies this intention.

  1. During the hearing the CFMEU conceded that with the clarification provided by Undertaking 8, its objections concerning s.180(5) had fallen away.

  1. It is declared in the Form F17B that the Proposed Agreement involved a long-running negotiation involving multiple meetings with employees and union representatives and that during this time the Applicant held ballots concerning substantively similar agreements on which written explanations were provided on 3 July 2023 and 7 June 2024. It is also declared in the Form F17B that on 22 July 2024 employees were provided with an explanation that compared the Proposed Agreement with the two enterprise agreements that were being replaced. A copy of the Explanatory Document was filed with the Commission along with an email dated 22 July 2024 that appears to attach a copy of the Proposed Agreement and the Explanatory Document. It is apparent that the Explanatory Document provided to employees compared the Proposed Agreement with the agreements that covered employees including the Asurco Agreement that nominally expired on 7 October 2022 and the McMahon Agreement that nominally expired on 18 October 2022. The email of 22 July 2024 directed employees to persons who they could contact if they had questions or for clarification. A change to inclement weather provisions appears to have been clarified on 24 July 2024 and explained in an email to employees and at a meeting on 26 July 2024 as evidenced by an email dated 24 July 2024 provided to the Commission.

  1. On the basis of the materials before the Commission and given Undertaking 8 clarifies that it was intended for the crib break to apply to day workers and shift workers, I am satisfied that the Applicant took all reasonable steps to ensure the Proposed Agreement’s terms and their effect were explained to employees as required by s.180(5) of the Act.

Other matters

  1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

  1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Regulations is taken to be a term of the Proposed Agreement.

Conclusion

  1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Proposed Agreement have been met.

  1. The Construction, Forestry and Maritime Employees Union being a bargaining representative for the Proposed Agreement, has given notice under s.183 of the Act that it wants the Proposed Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Proposed Agreement covers the organisation.

  1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 November 2024. The nominal expiry date of the Agreement is 19 November 2028.


COMMISSIONER


[1] Fair Work Act 2009 (Cth), s.80(3)(a).

[2] Fair Work Act 2009 (Cth), s.85(5)(a).

[3] Fair Work Act 2009 (Cth), s.107(2)(a).

[4] Fair Work Act 2009 (Cth), s.110(2)(a).

[5] CFMEU v Sparta Mining Services Pty Ltd [2016] FWCFB 7057 at [16].

[6] [2024] FWCA 934.

[7] [2024] FWCA 1220.

[8] Affidavit of Neil Chappel at [7] – [10].

[9] CFMEU v Sparta Mining Services Pty Ltd [2016], FWCFB 7075 at [16]; BCG Contracting Pty Ltd [2018] FWC 1466 at [58] – [64].

[10] CFMEU v Sparta Mining Services Pty Ltd [2016], FWCFB 7075 at [16]; BCG Contracting Pty Ltd [2018] FWC 1466 at [58] – [64].

[11] [2024] FWCA 1220 at [27].

[12] [2024] FWCA 1220 at [27].

[13] Affidavit of Neil Chappel at [7] – [10].

Printed by authority of the Commonwealth Government Printer

<AE526792  PR781345>

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

Construction, Forestry, Mining and Energy Union v Sparta Mining Services Pty Ltd [2016] FWCFB 7057
Ballestrin Construction Services Pty Ltd [2024] FWCA 1220
BGC Contracting Pty Ltd [2018] FWC 1466