Merlin Entertainments (Australia) Pty Ltd
[2019] FWCA 6463
•24 SEPTEMBER 2019
| [2019] FWCA 6463 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Merlin Entertainments (Australia) Pty Ltd
(AG2019/179)
MERLIN ENTERTAINMENTS PTY LTD AGREEMENT 2018
Amusement, events and recreation industry | |
COMMISSIONER JOHNS | SYDNEY, 24 SEPTEMBER 2019 |
Application for approval of the Merlin Entertainments Pty Ltd Agreement 2018.
[1] An application has been made for approval of an enterprise agreement known as the Merlin Entertainments Pty Ltd Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act). It has been made by:
a) Sydney Aquarium Company Pty Ltd T/A Sea Life Sydney Aquarium
b) Melbourne Underwater World Pty Ltd T/A Sea Life Melbourne Aquarium
c) Underwater World Sunshine Coast Pty Ltd T/A Sea Life Sunshine Coast
d) The Otway Fly Pty Ltd T/A Otway Fly Treetop Adventures
e) Legoland Discovery Centre Melbourne Pty Ltd T/A Legoland Discovery Centre Melbourne
(Applicant Employers)
[2] Despite the Agreement covering a number of employers, the Agreement is a single enterprise agreement having regard to the operation of s.172(5) of the FW Act. The Applicant Employers are related bodies corporate and are engaged in a common enterprise.
[3] The history of the application for approval is as follows:
a) On 30 January 2019 Merlin Entertainments (Australia) Pty Ltd (Initial Applicant) lodged a F16 application for approval of the Agreement.
b) On 30 January 2019, a statutory declaration in support of the application in support of the Agreement (Initial F17) was lodged by Human Resources Director, Ms Natalie Thomson, of Merlin Entertainments (Australia) Pty Ltd.
c) On 30 January 2019 Mr Shane Roulstone, National Organiser of The Australian Workers’ Union (AWU) lodged a statutory declaration in relation to the Application (AWU’s F18). The AWU indicating that it did not support approval of the Agreement.
d) On 5 February 2019 Ms Jess Walsh, Victorian Branch Secretary of the United Voice (UV) lodged a statutory declaration in relation to the Application (UV’s F18). UV also indicating that it did not support approval of the Agreement.
e) Also on 5 February 2019, Ms Emily Thornton, Guest Experience Officer of Sea Life Melbourne Aquarium and employee representative lodged a statutory declaration in relation to the Application. Ms Thornton indicated that the employees she represented did not support the approval of the Agreement (Thornton Objection).
f) On 6 February 2019, the Commission received submissions from Ms Chantal Daly, Lead Bird Keeper at Sea Life Melbourne Aquarium objecting to the approval of the Agreement (Daly Objection).
g) On 21 February 2019 the Commission received submissions from Mr Harry Masefield, an employee of one of the Applicant employers. Mr Masefield also objected to the approval of the Agreement (Masefield Objection).
h) On 24 April 2019 the Commission’s enterprise agreement triage team prepared a document outlining potential issues with the Agreement. A number of issues were identified, including a number of issues relating to the Better Off Overall Test (BOOT).
i) On 29 April 2019 the matter was allocated to me.
j) On 30 April 2019 my Chambers issued directions for the filing of materials and listed the matter for hearing on 12 June 2019.
k) On 8 May 2019, the Applicant Employers sought to have the directions amended and hearing adjourned. The matter was relisted for 13 August 2019.
l) During the course of the hearing on 13 August 2019 discussions ensued about potential undertakings that the Applicant Employers might make.
m) Consequently, the hearing was adjourned to allow further discussions between the Applicant Employers, the unions and the employee bargaining representatives.
n) On 16 August 2019, the Applicant Employers filed:
i. a Form F1 application amending the Initial Applicant’s Form F16 to correctly identify the Applicant Employers as the correct Applicants of the Agreement. There was no objection to that amendment 1 and I allowed the same.2
ii. Proposed revised undertakings (Exhibit 24).
o) Also on 16 August 2019, Mr Masefield withdrew his submissions and indicated that he no longer sought to oppose the approval of the Agreement.
p) On 17 and 18 August 2019 my Chambers was advised that employee bargaining representatives, Ms Daly and Ms Thornton no longer objected to the approval of the Agreement (although they did not indicate their support for the same).
q) On 16 and 26 August 2019 my Chambers received submissions from six employees of the Applicant employers namely, Tom Fair, Tanith Davis, Brianna Lang, Lindon Stephens, Gemma Asser and James Gilbert.
r) The hearing resumed on 28 August 2019.
s) During the course of the resumed hearing the Australian Workers’ Union and the United Voice withdrew their opposition to the approval of the Agreement. 3
t) Two of the objecting employees, Tom Fair and Tanith Davis, did not attend the hearing on 28 August 2019. Consequently, I did not receive their submissions. 4
u) At the hearing on 28 August 2019 four of the objecting employees, Brianna Lang, Lindon Stephens, Gemma Asser and James Gilbert (Objecting Employees), and Ms Thomson gave evidence.
[4] As a consequence of the history of the Application, at the conclusion of the hearing the only outstanding issues were those raised by the Objecting Employees. In summary they contended that the Commission should conclude that the Agreement was not genuinely agreed to. They submitted that the Commission should dismiss the Application.
[5] In advance of the hearing the parties filed materials. In coming to this decision the Commission, as presently constituted, has had regard to the following documents in addition to the oral evidence and other documents tendered during the hearing:
Exhibit No. | Description | Transcript Reference |
1. | Merlin Entertainments Pty Ltd Agreement 2018 | PN15 |
2. | Agreement Checklist prepared 24 April 2019 | PN16 |
3. | Form F16 dated 29 January 2019 | PN17 |
4. | Form F17 – Merlin Entertainments (Australia) Pty Ltd dated 29 January 2019 | PN18 |
5. | Form F18 – Australian Workers’ Union dated 29 January 2019 | PN19 |
6. | Withdrawn | PN20 |
7. | Form F18 – United Voice dated 5 February 2019 | PN21 |
8. | Withdrawn | PN22 |
9. | Withdrawn | PN23 |
10. | Applicant’s Outline of Submissions dated 20 July 2019 | PN24 |
11. | Statement of Natalie Thomson dated 20 July 2019 | PN25 |
12. | Form F17 – The Sydney Aquarium Company Pty Ltd T/A Sea Life Sydney Aquarium dated 29 July 2019 | PN30 |
13. | Form F17 – Melbourne Underwater World Pty Ltd T/A Sea Life Melbourne Aquarium dated 29 July 2019 | PN31 |
14. | Form F17 – Underwater World Sunshine Coast Pty Ltd T/A Sea Life Sunshine Coast dated 29 July 2019 | PN32 |
15. | Form F17 – The Otway Fly Pty Ltd T/A Otway Fly Treetop Adventures dated 29 July 2019 | PN33 |
16. | Form F17 – LEGOLAND Discovery Centre Melbourne Pty Ltd dated 29 July 2019 | PN33 |
17. | Additional agreement signature pages dated 29 July 2019 | PN34 |
18. | The Australian Workers’ Union outline of submissions dated 2 August 2019 | PN35 |
19. | Withdrawn | PN36 |
20. | United Voice submissions – Response to submissions made by the Applicant dated 10 August 2019 | PN39 |
21. | Withdrawn | PN40 |
22. | Statement in Reply of Natalie Thomson, HR Director of Applicant dated 10 August 2019. | PN43 |
23. | Form F1 – Application to amend Form F16 | PN353 |
24. | Proposed Revised Undertakings filed 16 August 2019 | PN354 |
25. | Withdrawn | PN355 |
26. | Brianna Lang Submissions dated 25 August 2019 | PN358 |
27. | Lindon Stephens submissions dated 16 August 2019 | PN359 |
28. | Gemma Asser submissions dated 16 August 2019 | PN362 |
29. | James Gilbert submissions dated 26 August 2019 | PN367 |
30. | Further statement in reply of Natalie Thomson dated 27 August 2019 | PN370 |
31. | Aide-memoir table filed by Applicant | PN923 |
Legislative Scheme
[6] Section 186(2)(a) provides as follows:
“(2) The FWC must be satisfied that:
if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement.”
[7] Section 188(1)(a)(i) provides as follows:
“(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre approval steps).”
[8] Section 180(5) provides as follows:
“(5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.”
Submissions
[9] The Objecting Employees filed the following submissions.
a) Ms Brianna Lang submitted that:
“Position Classifications
4. During the EA negotiations the curatorial department at Sea Life Melbourne Aquarium was made aware that the position classifications would become standardized across all Sea Life sites in Australia. On June 28th 2018 we received an email (See attachment BL-1) from Sarah Carroll (Head of HR Melbourne at the time) stating that:
a. “your current classification is not necessarily reflecting of what your classification would be under the new EA”
5. In the above email I was also encouraged to look at the position classifications that were attached and to start to think about where I think I might sit within that new structure. This implied to me that it would be an open process where I would have some input as to where my new position would fall within the new structure.
6. On October 26th 2018 I received an email from my JCC representative, Chantal Daly (See attachment BL-2). In this email it explained that:
a. “the Managers are currently going over the classification structure which will be proposed for our department and where everyone will sit. We will be privately advised of where they believe we sit in the structure and positions can be negotiated if you believe you are not in the appropriate level.”
7. Based on this above email it was confirmed to me that I would have an input as to where I sat in the new classification structure. That I would personally have a meeting with my Curator and it would be mutually discussed and negotiated upon.
8. On December 31st 2018 Daniel Fraser (Head of HR, ANZ Midway Division) sent out the email notifying employees that the access period prior to voting had commenced (See attachment BL-3). In this email he stated that:
a. “Under the National Enterprise Agreement team members: have a clear and consistent classification structure”
9. When the above email was sent out the curatorial department had still not been made aware about our position classifications and was still under the pretense [sic] that we would be having one on one meetings with our Curator to discuss our positions.
10. Also noted in the above email the voting period commenced on Tuesday 8th January 2019. At this stage, again, the curatorial department was still under the pretense [sic] that we would be having one on one meetings with our Curator to discuss our positions.
11. On January 11th 2019 I received an email from Sarah Carroll (See attachment BL-4) that states that:
a. “Although there was some work done on this last year, I been advised that the business isn’t looking to individually reclassify employees at this stage”
12. Sarah Carroll then further goes on to acknowledge that:
a. “I understand this is really frustrating and will impact your vote”. And states that,
b. “we are committed to reviewing the overall operations of the curatorial department. We aren’t sure exactly what this looks like as yet”.
13. It is noted that this email was sent out three days after the voting period had opened. As this was an anonymous vote this meant that I could not change my vote once it was submitted. The company did not give me all the information required prior to the voting period opening for me to cast my educated vote. Sarah Carroll even admitted in her email that this might influence my vote. Also, as she admitted that they aren’t exactly sure what the curatorial department operations will look like this further goes against Daniel Frasers previous statement that (BL-3):
a. “Under the National Enterprise Agreement team members: have a clear and consistent classification structure”
14. This reinforces the miscommunication and confusion between the HR department and the Curatorial department. The company didn’t take the necessary steps required to ensure that the terms of the agreement were explained to me prior to voting, therefore I couldn’t give an accurate vote.
15. Based on this it does not comply with the Fair Work Act Section 180 (5) (See attachment BL-5) which states that:
a. “Terms of the agreement must be explained to employees etc.
(5) The employer must take all reasonable steps to ensure that: (a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and (b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.” 5
b) Ms Gemma Asser submitted that:
“… Employee Position Classification
3. Based on the following evidence, the Agreement submitted does not comply with the Fair Work Act Section 180 (5) (See attached GA-1) that states:
“Terms of the agreement must be explained to employees etc.
(5) The employer must take all reasonable steps to ensure that:
a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.”
4. While the EA negotiations were taking place, employees in the Curatorial Department were informed that rather than having unique position classifications per site as the company has allowed in the past, a standardized position classification was being implemented across all Sea Life sites in Australia. Due to the largely varied position classifications that different Sea Life sites had had up until this point, employees in the Melbourne Curatorial Department were unsure about how this would change their own position classification, as there were large differences between our current classifications and the new standardized classifications. On the 28th June 2018, Sarah Carroll, Sea Life Melbourne’s Head of HR at the time, emailed employees (See attached GA-2) informing us that:
a. “Your current classification is not necessarily reflecting of what your classification would be under the new EA”
In the same email, each employee was encouraged to check the new classification system and the criteria, to see where we may sit in the new EA based on our skill level and competencies. This gave the impression that I would have some level of input as to what my new position classification would be.
5. This impression that this would be an open process; where I would personally have a meeting with my Curator and my position would be mutually discussed and negotiated, was further implied by an email on the 26th October 2018 from our JCC representative Chantal Daly (See attached GA-3), that stated:
a. ‘The managers are currently going over the classification structure which will be proposed for our department and where everyone will sit. We will be privately advised of where they believe we sit in the structure and positions can be negotiated if you believe you are not in the appropriate level.’
6. On the 31st December 2018, Daniel Fraser; Head of HR for ANZ Midway Division, emailed employees notifying us that the access period before the voting opened had commenced (See attached GA-4). When this email was sent, the Curatorial Department was still under the impression we would be having one on one meetings with our Curator to discuss our position classification, which were yet to be organized, so we were still unaware of our position classifications. The email stated that:
a. ‘Under the National Enterprise Agreement team members: have a clear and consistent classification structure’
A clear and consistent classification structure that the Curatorial team was yet to be provided with.
7. Voting for the new EA opened on Tuesday 8th January 2019, as outlined in the above email. At this date, the Curatorial Department was still under the pretense [sic] we would be negotiating our positions with our Curator, and that our current classification would not necessarily reflect our new classification under the new EA.
8. On 11th January 2019, 3 days after the voting period has opened, employees received an email from Sarah Carroll (See attached GA-5) that stated:
a. ‘Although there was some work done on this last year, I been advised that the business isn’t looking to individually reclassify employees at this stage’
It is then further noted in the email by Sarah Carroll that:
a. ‘I understand this is really frustrating and will impact your vote.’; and
b. ‘we are committed to reviewing the overall operations of the curatorial department. We aren’t sure exactly what this looks like as yet.’
Up until this point, the Curatorial Department had been told a number of times over the 6 months that we would have an open negotiation with our Curator about our positions and be individually reclassified, to only then be told 3 days after the voting period had opened, that this would not be the case. There is every chance that employees had already voted based on previous information given, to only then be provided with this new information after they had already voted. While it was recognized that this may impact our votes, the company had opted for anonymous voting, so employee votes were unable to be changed once lodged. Alongside this, Sarah Carroll admits that they are unsure of what the curatorial department operations would look like as of yet, which conflicts with the information we were given in the email from Danial Fraser (GA-4) about a clear and consistent classification structure.
9. The evidence above highlights the confusion and miscommunication throughout this process between the HR Department and the Curatorial Department, and therefore shows that the agreement does not meet the requirements of Fair Work Act Section 180 (5) (GA-1):
a. ‘Terms of the agreement must be explained to employees etc. (5) The employer must take all reasonable steps to ensure that: a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees’”. 6
c) Mr Lindon Stephens submitted that:
“… Position Classifications
3. At a point throughout the EA negotiations it was announced that several position classifications would become standardized across all Merlin sites within Australia. It was noted in an email received on June 28th 2018 (See attachment LS-1) from Sarah Carroll (Head of HR Melbourne), that my site has differing classifications from other sites and that these may not translate directly into the proposed format. It was also stated that due to the mismatch, “all team members will be reviewed and classified” against the new classifications, strongly implying that I would be reviewed individually for any changes, and that these changes would be openly available in time to review before the vote.
a. “As the classification is a new classification and not built on our current system all team members will be reviewed and classified against the new classifications under the new EA. This means that your current classification is not necessarily reflecting of what your classification would be under the new EA”
4. At the beginning of the access period on the 31st of December, 2018, Daniel Fraser (Merlin Head of HR, ANZ Midway Division) sent out an email to all employees (See Attachment LS-2). Within this email it was stated that:
a. “in majority are better off overall than under their current agreement”
b. “have a clear and consistent classification structure”
5. At the time this email was send out (31st of December, 2018), I had not been made aware of if any changes would be implemented regarding my classification or the structure of the proposed classifications, because of this I was unable to assess whether I would be “better off” or not.
6. On January 11th, 2019, the curatorial team received an email from Sarah Carroll (See attachment LS-3) that states that:
a. “Although there was some work done on this last year, I been advised that the business isn’t looking to individually reclassify employees at this stage”
7. Sarah Carroll in the email (Attachment LS-3) goes on to acknowledge that:
a. “I understand this is really frustrating and will impact your vote”. And states that,
b. “we are committed to reviewing the overall operations of the curatorial department. We aren’t sure exactly what this looks like as yet”.
8. It should be noted that this email was sent out three days after the voting period had been opened and goes directly against what I had been told earlier in the process (Attachment LS-1). I was very confused on where I stood in terms of my future position, renumeration [sic] and even what my role and its responsibilities would entail, particularly with the statement of reviewing the departments operations. Especially up until this point it had largely been implied, every time the issue had been raised, that I was still going to be individually reviewed and classified.
9. Due this issue and the lack of information offered to myself and others, the proposed Agreement cannot have been genuinely agreed upon.
10. Based on the above evidence the proposed agreement does not comply with the Fair Work Act 2009, Section 180 (5) (See attachment LS-4) which states that:
a. “Terms of the agreement must be explained to employees etc.
(5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees”. 7
d) Mr James Gilbert submitted that:
“Position Classification
1. I argue that the Enterprise Agreement voted on by staff members at sea life Melbourne aquarium was not reasonably agreed to due to the information provided by the HR department member Sarah Carrol on behalf of MERLIN ENTERTAINMENTS (AUSTRALIA) PTY LTD. As outlined in the provided document “James gilbert – Document 1” I was told that “your current classification is not necessarily reflecting of what your classification would be under the new EA”….“all team members will be reviewed and classified against the new classifications under the new EA”. As stated in this email my position was not necessarily reflecting the new classifications on the proposed EA because it would be a new structure. This email with the above quotes was sent on 28/06/18.
2. Voting on the EA then commenced on the 8/01/19
3. On the 11/01/19 (three days after the voting on the proposed EBA had commenced) a new email was sent out from Sarah Carrol, this email stated that: “I been advised that the business isn’t looking to individually reclassify employees at this stage”. This is important because a change to the communicated terms of the EA had been made after the voting had commenced. I was told that I would no longer have my new position reviewed. It was also acknowledged that this would affect my vote as stated in James Gilbert – Document 2: “I understand that this is really frustrating and will impact your vote” but no attempt to take a revote was communicated or discussed with me”. 8
[10] On 27 August 2019, in response the submissions made by the Objecting Employees, Ms Natalie Thomson, on behalf of the Applicant Employers submitted that:
“… Statement of Gemma Asser
4. I have read the statement prepared by Ms Asser dated 26 August 2019 and respond to the statement below.
5. Ms Asser is currently employed by Melbourne Underwater World Pty Ltd on a part-time basis in the curatorial department of SEA LIFE Melbourne Aquarium. She is currently employed in the classification/level of Assistant Aquarist – Entry under the existing SEA LIFE Melbourne agreement. If the new Agreement is approved, Ms Asser will be employed at the classification/level of Assistant Keeper - Competent under that Agreement.
6. Ms Asser has been employed by Melbourne Underwater World Pty Ltd since June 2017.
7. I refer to paragraph 4 of Ms Asser’s statement. I note that the email referred to in that paragraph was sent by Ms Sarah Carroll on 28 June 2018. This was during ongoing negotiations about the terms of the new Agreement, including the classification structure. In addition, as at 28 June 2018 the classification comparison document had not yet been created. As noted in paragraph 57 of my first statement, the classification structure was finalised in mid-November 2018 (some five months later).
8. Further, I say that the description of Ms Carroll’s email sent on 28 June 2018, as contained in paragraph 4 of Ms Asser’s statement is incomplete. In that paragraph, Ms Asser extracts the following part of Ms Carroll’s email:
“Your current classification is not necessarily reflecting of what your classification would be under the new EA.”
However, based on my discussions with, and instructions to, Ms Carroll, her email was making the important point that the classification names and levels contained in the existing SEA LIFE Melbourne agreement would not necessarily correspond directly to the classification names and levels in the proposed new Agreement. To illustrate this point, Ms Carroll notes that an Assistant Aquarist – Entry classification may not correspond directly to an Assistant Keeper – Entry classification in the new Agreement.
9. A version of the classification comparison document was discussed at the JCC bargaining meeting on 7 November 2018 (the meeting minutes for which are attached to this statement and marked NT-29). Following this meeting, the classification structure was finalised and the final version of the classification comparison document was emailed to the JCC for distribution on 22 November 2018 (see the email from Ms Katie Dunne dated 22 November 2018 at page 54 of my first statement). The terms of the Agreement and classification structure were also explained to the curatorial team during a Q&A session conducted by Ms Carroll on 3 January 2019. I refer to and repeat paragraph 57 of my first statement and paragraphs 25(a) and 38 to 40 of my second statement.
10. I refer to paragraph 5 of Ms Asser’s Statement. The contents of Chantal Daly’s email dated 26 October 2018 do not accord with any instructions or information provided by Merlin either to the JCC or Ms Daly personally. I also note that this email did not copy in myself or any other member of the Merlin HR team.
11. I refer to paragraphs 6 and 7 of Ms Asser’s statement. I say that by the time that voting had commenced for the agreement on 8 January 2019:
a. Ms Daly (as JCC representative for the Melbourne curatorial team of which Ms Asser is a member) had been informed that negotiations over the Agreement had concluded and that Merlin did not intend to reopen negotiations (see my email to Ms Daly dated 20 December 2018 located at page 60 of my first statement);
b. all employees (including Ms Asser) had been informed that the negotiations over the terms of the Agreement had been finalised and they were provided with a copy of the Agreement (see the email from Daniel Fraser dated 21 December 2018 located at page 73 of my first statement;
c. Ms Daly (as JCC representative for the Melbourne curatorial team of which Ms Asser is a member) had been provided with a copy of the final classification comparison chart on several occasions (see the email from Ms Katie Dunne dated 22 November 2018 at page 54 of my first statement, and my email to the JCC dated 20 December 2018 at page 33 of my second statement); and
d. all employees (including Ms Asser) had been informed that the access period for the agreement commenced on 31 December 2018 (see the email from Mr Fraser dated 31 December 2018 at Attachment NT-06 of my first statement).
Given these emails and the information contained within them, I believe that Ms Asser knew (or ought to have known) her final classification and level under the new Agreement
12. I refer to paragraph 8 of Ms Asser’s statement. In response to that paragraph:
a. to the best of my knowledge no member of the Merlin HR team informed the curatorial team that they would have an open negotiation with the Curator about the reclassification of their position, and at no time did I authorise any member of the Merlin HR team to make any such representations; and
b. that both the classification document (that was available to the curatorial team) and the Q&A session on 3 January 2019 provided sufficient clarity regarding employee’s correct classifications and levels under the new Agreement; and
c. any uncertainties around the structure of the curatorial department from an operational standpoint does not mean that the terms of the Agreement and/or its classification structure were uncertain or not adequately explained.
13. I refer to paragraphs 9 of Ms Asser’s statement. I do not agree that Merlin and/or Melbourne Underwater World Pty Ltd:
a. provided confusing information or miscommunicated information to Ms Asser or the members of the Melbourne curatorial team; and/or
b. failed to take reasonable steps to explain the terms of the agreement and the effect of those terms, to relevant employees, and I refer to and repeat paragraphs 18 to 38 of my second statement.
14. If Ms Asser was dissatisfied with the terms of the Agreement or her classification under the new Agreement, it was open to her to vote against the Agreement.
Statement of Brianna Lang
15. I have read the statement prepared by Ms Lang dated 25 August 2019 and respond to the statement below.
16. Ms Lang is currently employed by Melbourne Underwater World Pty Ltd on a full-time basis in the curatorial department of SEA LIFE Melbourne Aquarium. She is currently employed in the classification/level of Aquarist – Senior under the existing SEA LIFE Melbourne agreement. If the Agreement is approved, Ms Lang will be employed at the classification/level of Keeper – Senior under the Agreement.
17. Ms Lang has been employed by Melbourne Underwater World Pty Ltd since 2012.
18. I note that many of the facts and claims contained in Ms Lang’s statement are substantially identical to those contained in Ms Asser’s statement (and each of the other statements). As such, I refer to and repeat my paragraphs above in response to the paragraphs noted below in Ms Lang’s statement:
a. in response to paragraphs 4 and 5 of Ms Lang’s statement – see paragraphs 7 to 9 above;
b. in response to paragraphs 6 and 7 of Ms Lang’s statement – see paragraph 10 above;
c. in response to paragraphs 8 to 10 of Ms Lang’s statement – see paragraph 11 above;
d. in response to paragraphs 11 to 13 of Ms Lang’s statement – see paragraph 12 above; and
e. in response to paragraph 14 of Ms Lang’s statement – see paragraph 13 above.
19. If Ms Lang was dissatisfied with the terms of the Agreement or her classification under the Agreement, it was open to her to vote against the Agreement.
Statement of Lindon Stephens
20. I have read the statement prepared by Mr Stephens dated 26 August 2019 and respond to the statement below.
21. Mr Stephens is currently employed by Melbourne Underwater World Pty Ltd on a full-time basis in the curatorial department of SEA LIFE Melbourne Aquarium. He is currently employed in the classification/level of Assistant Aquarist – Senior under the existing SEA LIFE Melbourne agreement. If the Agreement is approved, Mr Stephens will be employed at the classification/level of Keeper – Senior under that Agreement.
22. Mr Stephens has been employed by Melbourne Underwater World Pty Ltd since May 2017.
23. I note that many of the facts and claims contained in Mr Stephens’ statement are substantially identical to those contained in Ms Asser’s statement (and each of the other statements). As such, I refer to and repeat my paragraphs above in response to the paragraphs noted below in Mr Stephens’ statement:
a. in response to paragraph 3 of Mr Stephens’ statement – see paragraphs 7 to 9 above;
b. in response to paragraph 4 and 5 of Mr Stephens’ statement – see paragraph 11 above; and
c. in response to paragraphs 6 to 9 of Mr Stephens’ statement – see paragraph 12 above.
24. If Mr Stephens was dissatisfied with the terms of the Agreement or his classification under the new Agreement, it was open to him to vote against the Agreement.
Statement of James Gilbert
25. I have read the statement prepared by Mr Gilbert dated 26 August 2019 and respond to the statement below.
26. Mr Gilbert is currently employed by Melbourne Underwater World Pty Ltd on a full-time basis in the curatorial department of SEA LIFE Melbourne Aquarium. He is currently employed in the classification/level of Assistant Aquarist – Entry under the existing SEA LIFE Melbourne agreement. If the Agreement is approved, Mr Stephens will be employed at the classification/level of Assistant Keeper – Competent under that Agreement.
27. Mr Gilbert has been employed by Melbourne Underwater World Pty Ltd since March 2018.
28. I note that many of the facts and claims contained in Mr Gilbert’s statement are substantially identical to those contained in Ms Asser’s statement (and each of the other statements). As such, I refer to and repeat my paragraphs above in response to the paragraphs noted below in Mr Gilbert’s statement:
a. in response to paragraph 1 of Mr Gilbert’s statement – see paragraphs 7 to 9 above; and
b. in response to paragraphs 3 of Mr Gilbert’s statement – see paragraph 12 above.
29. I refer to the balance of Mr Gilbert’s statement (which contains unnumbered paragraphs). I do not agree that:
a. the Agreement could not have reasonable been agreed upon by those voting; and/or
b. Merlin and Melbourne Underwater World Pty Ltd failed to take reasonable steps to explain the terms of the Agreement and the effect of those terms, to relevant employees, and I refer to and repeat paragraphs 18 to 38 of my second statement”. 9
Consideration – Reasonable Steps
[11] In an agreement approval application made by Falcon Mining Pty Ltd 10 Deputy President Asbury observed that the FW Act “does not stipulate the manner in which an explanation of the terms of an Agreement must be provided.”11 Her Honour continued:
“[157] As a Full Bench of the Commission observed in McDonalds, 12 s.180(5) of the Act does not establish an absolute requirement that a particular outcome be achieved, but requires only that the employer take reasonable steps to ensure that the terms and conditions of the Agreement are explained to employees. The reasonableness of the steps taken must be considered in the context of:
• The size of the employer;
• The resources of the employer including available mechanisms and available expertise to provide an explanation;
• The role and qualifications of the persons who provide the explanation; and
• Whether the capacity or the ability of employees to receive an explanation is impacted by issues such as language, literacy, access to electronic media, hours of work, rosters, the locations at which work is performed, travel to and from remote locations or the availability of employees to receive an explanation.
[158] In the present case, I am not satisfied that reasonable steps were taken to give employees an explanation of the terms of the Agreement and the effect of those terms. On the basis of the evidence of Mr Ryan, I am satisfied that there were employees working rosters that would likely have impacted on or prevented them from attending meetings at which the terms of the Agreement and their effect were explained. I am also satisfied that Ms Gayton did not take steps to address this lack of access, on the basis that she was not aware that employees were working such rosters at the relevant time.
[159] I am also of the view that the error in the Form F17 Employer declaration, where it is wrongly stated that there are no terms of the agreement less beneficial than those in the Award, makes it more probable than not that Ms Gayton made comments to this effect during her explanation about the terms of the Agreement. While I accept that the incorrect statement was unintentional, and that Ms Gayton did not set out to mislead the Commission or employees when she made that statement, the provision of incorrect information in a statutory declaration is a matter I can take into account in deciding whether the Agreement was genuinely agreed. I also note that while swearing an affidavit acknowledging the error, Ms Gayton has not provided any statement as to what terms of the Agreement are less beneficial when compared to the terms of the Award and there is insufficient evidence upon which I could reasonably be satisfied that an explanation addressing this matter was provided to employees.
[160] In my view the entirety of the failure to comply with requirements for approval of the Agreement – failure to correct typographical errors in the NERR (despite two attempts); failure to establish that reasonable steps were taken to give the NERR to employees (despite being given numerous opportunities to provide evidence to that effect); the incorrect statement about less beneficial terms of the Agreement in the Form F17 Employer Declaration; failure to properly correct that statement and to provide particulars; failure to provide particulars about the terms of the Agreement which are less beneficial than those in the Award; and Mr Ryan’s evidence about the inadequacy of the explanation of the terms of the Agreement – are reasonable grounds for believing that reasonable steps were not taken to explain the terms of the Agreement and their effect, and that the Agreement was not genuinely agreed.”
[12] I agree with and, with respect, adopt her Honour’s reasoning in Falcon Mining.
[13] Last year a Full Court of the Federal Court Australia in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union 13 provided further instruction about what the Commission is required to consider to reach the requisite state of satisfaction that s.180(5) has been complied with. It held:
“[112] It is common ground that the Commission was never told what was said to the relevant employees. It was simply told that they had been given an explanation of the terms of the Agreement and the effect of those terms. In effect, this amounted to little more than a self-serving statement that the employer had complied with its obligation under the Act. OKW contended that the fact that it made such a statement in a statutory declaration was significant. It is not. As the CFMEU argued, whether all reasonable steps were taken to ensure that the effect of the terms of the Agreement was explained in an appropriate manner is a question of substance, not form. The recital of a conclusion on the very question the Commission was required (through an evaluative process) to determine is not, without more, a sufficient basis for the satisfaction of the statutory test. In other words, a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach a state of satisfaction. OKW submitted that if the Commission had erred in this respect, it was an error in fact finding or an error in process, which would be an error within its jurisdiction. We reject this submission. In order to reach the requisite state of satisfaction that s 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement. It is true that the Act does not expressly say that. But the question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act; it may also be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–44 (Mason J).
[113] A consideration of the subject-matter, scope and purpose of the relevant provisions of the Fair Work Act indicates that the content of the explanation and the terms in which it was conveyed were relevant considerations to which the Commission was bound to have regard. The absence of that information meant that the Commission was not in a position to form the requisite state of satisfaction. Put differently, without knowing the content of the explanation, it was not open to the Commission to be satisfied that all reasonable steps had been taken to ensure that the terms and their effect had been explained to the employees who voted on the Agreement or that they had genuinely agreed to the Agreement.
[114] The following considerations point inexorably to that conclusion.
[115] The Commission was required to be satisfied that OKW had taken “all reasonable steps to ensure” that both the terms and the effect of the terms had been explained to the relevant employees as an element in the inquiry as to whether “genuine” agreement had been obtained from them. The agreed purpose of the obligation imposed on employers by s 180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.
[116] In order for the employer to comply with the obligation it must take into account the particular circumstances and needs of those employees, including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative. That is made explicit in s 180(6). How could the Commission decide whether the steps the employer had taken were “all reasonable steps” unless it knew what the employees had been told before they cast their votes? Without knowing the terms in which the explanation had been conveyed how could the Commission form an opinion on the sufficiency of the explanation, particularly having regard to the considerations mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine agreement had been reached without having evidence upon which it could answer both these questions?”
[14] I agree with and, with respect, adopt the reasoning of the Full Court in One Key.
[15] The reasoning in One Key (at first instance) was followed by a Full Bench of this Commission in CFMEU v Shamrock Civil Pty Ltd. 14In Shamrock the Full Bench observed that:
[22] Satisfaction under s.186(2)(a) is a jurisdictional prerequisite for the approval of any enterprise agreement. If s.180(5) is not satisfied, then the Commission cannot be satisfied re: s.188 (a)(i) and consequently the Commission cannot be satisfied that the Agreement has been ‘genuinely agreed’ as required by s.186(2)(a).
[23] The meaning of s.180(5) and what is required, particularly in regards to s.180(5)(a) was subject to detailed consideration in the recent decision of his Honour Justice Flick in the One Key decision and reasoned as follows:
“[91]… A failure to comply with a “[p]re-approval requirement”, in this case the failure to “take all reasonable steps” for the purposes of s 180(5), precluded the proposed Agreement from being an agreement susceptible of subsequent approval by the Commission. And a failure to take the necessary steps to secure the agreement of those “employees covered by the agreement” (s 186(2)(a)) – be it genuine agreement or otherwise – again precluded the proposed Agreement from being an agreement in respect to which the Commission need reach any state of satisfaction.”
…
[97]… Section 180(5) is not a section which is expressed in terms of whether the Commission is “satisfied” that “all reasonable steps” have been taken. That subsection is expressed as a statement of objective fact as to that which must occur before approval is sought. If “all reasonable steps” have not in fact been taken, the Commission lacks power to “approve” the agreement.”
…
[103] The requirement imposed by s 180(5) to “take all reasonable steps to ensure that … the terms of the agreement, and the effect of those terms, are explained” is an important obligation imposed upon an employer to ensure that employees are as fully informed as practicable. The requirement is not a mere formality. Whatever steps may be necessary will depend upon the facts and circumstances of each particular case; but those steps are not satisfied by a person reading – without explanation – the terms of an agreement to an employee.”
[16] Like the Full Bench in Shamrock I agree with and, with respect, adopt his Honour’s reasoning in One Key (which was not disturbed on appeal).
[17] Late last year another Full Bench considered whether an agreement had been genuinely agreed by employees, whether employer took reasonable steps to provide an explanation of terms of agreement and effect of those terms in the context of s.180(5) of the FW Act.
[18] In Diamond Offshore General Company v Michael Baldwin & Ors 15 the Full Bench observed that:
“[22] In Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd8 the Federal Court (Flick J) observed thatthe nature of the task of the Commission under s. 180(5) of the FW Act and other terms requiring its satisfaction or otherwise about a state of affairs is to make a broadly-based value judgment.9 On appeal from that decision,10 the Full Court of the Federal Court held that the matters in s. 180(5) were matters to which the employer was required to attend but were not jurisdictional facts for the purpose of the exercise of the Commission’s approval powers. The Full Court went on to hold that a condition precedent to the exercise by the Commission of its jurisdiction under s. 186 to approve an enterprise agreement was its satisfaction that the employer had complied, among other things, with s. 180(5). The Full Court determined that satisfaction as to whether s. 180(5) had been complied with involved an evaluative judgment as to whether “reasonable steps” were taken by the employer.”
[19] The Full Bench then held that:
“[28] The first appeal ground is based on a number of premises that we do not accept. We do not accept that the obligation placed on an employer to provide an explanation of the terms of an agreement and the effect of those terms is limited to the operative outcome that the text of the term produces. While in some cases the operative outcome of a term of an enterprise agreement will be synonymous with the effect of the term that is not always the case. The operative outcome of a term with respect to employees covered by an enterprise agreement is that it provides a right or an entitlement to employees or places an obligation on employees. The effect of a term may also be that it displaces another previously operative term either explicitly or by omission or that the obligation it places on employees is one that they would not otherwise be subject to. Where a material or significant change is brought about by a term of a proposed agreement, an explanation of the effect of that term may be required to extend beyond its operative outcome. Whether this is so will depend on the circumstances of a particular case such as those we have set out below.
[29] A further premise upon which the Diamond Offshore’s contentions in relation to the first appeal ground are based is that the Deputy President found that s. 180(5) of the FW Act requires that an employer explain to employees, whose employment would be covered by an enterprise agreement, the extent to which the agreement’s terms differ from a predecessor enterprise agreement, by way of a clause-by-clause comparison. We accept the submission of Diamond Offshore that s. 180(5) of the FW Act does not prescribe such a requirement in absolute terms and that there is no rule to this effect when the Commission is deciding whether the requirements of s. 180(5) have been met. However, on a fair reading of the Decision under appeal in the present case, the Deputy President made no such finding and did not purport to establish such a rule. To the contrary, it is clear from the Decision that the Deputy President considered whether, in the particular circumstances of the application he was considering, the requirement in s. 180(5) had not been met.
[30] Those circumstances included that the Agreement would bring about material changes to the terms and conditions of employment of employees covered by the Agreement which had either not been highlighted or which had been explained in a limited way. The most significant of these was the reduction in the casual loading from 25% to 20%, which would necessarily have a direct and substantial effect on the earnings of casual employees. The Deputy President’s conclusion in relation to s. 180(5) was also reached in the context of other findings that the response to a question in the Form F17 Employer statutory declaration in support of approval of the Agreement in relation to whether the Agreement contained any terms and conditions less beneficial than the relevant reference instrument had not been as fulsome as it could have been and there were some potential disadvantages to employees from the terms of the Agreement when compared to the Award. In taking this approach, the Deputy President cited the principle set out by Flick J in Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd that in respect of the requirements established by s. 180(5) of the FW Act:
“[103] …The requirement imposed by s. 180(5) to ‘take all reasonable steps to ensure that…the terms of the agreement and the effect of those terms, are explained’ is an important obligation imposed upon an employer to ensure that employees are as fully informed as practicable. The requirement is not a mere formality. Whatever steps may be necessary will depend upon the facts and circumstances of each particular case: but those steps are not satisfied by a person reading – without explanation – the terms of an agreement to an employee.”
[31] This principle is also apparent from the decision of the Full Court of the Federal Court in the appeal of that decision (One Key v CFMEU) which makes clear that it may be necessary for the Commission to know the content of any explanation of the terms of an enterprise agreement, and their effect, in order to form the necessary state of mind in relation to whether the requirements in s. 180(5) have been met.
[32] We do not accept the proposition advanced by Diamond Offshore that the existing terms and conditions under which employees to be covered by a proposed agreement are working are irrelevant to the consideration of whether the requirement in s. 180(5) has been met. Existing terms and conditions may be relevant regardless of whether those terms and conditions are prescribed by the relevant reference instrument, a current enterprise agreement, statute, contract or common law. For example, if a proposed enterprise agreement would impose an obligation on employees which is not imposed by a relevant modern award, and thereby expose employees to civil penalty for breach of the agreement, the Commission may consider whether that obligation causes detriment to employees and determine that reasonable steps to explain the effect of that term should have included an explanation of the potential detriment. The fact that a particular term has been provided for in predecessor agreements may also be relevant to the extent of the explanation of the term that is required.
[33] We see no reason why, in reaching a state of satisfaction about whether the employer has taken all reasonable steps to ensure the terms of a proposed agreement and the effect of those terms are explained to employees, the Commission should not consider the terms of a current agreement and the extent to which their effect has been changed by the proposed agreement. To form the necessary state of satisfaction about whether reasonable steps were taken by an employer to explain the terms of an enterprise agreement and their effect, the Commission may consider it relevant to take into account a range of facts and circumstances including: the terms of the agreement itself; the context in which it was negotiated; the history of instruments regulating terms and conditions of employment of employees; other relevant statutes particular to the employees or the work covered by the agreement or the industry in which that work is performed; the nature of the work covered by the agreement; the identity and work history of the employees who were requested to approve the proposed agreement; and matters particular to the employees to whom the explanation was provided, such as their qualifications, skills and other considerations of the kind referred to in s. 180(6) of the FW Act.
[34] We also do not accept the submission that consideration of effects of the terms of an agreement in the manner undertaken by the Deputy President exposes employers to unnavigable consequences or unworkable outcomes. Where an employer has negotiated an enterprise agreement which brings about a material change to terms and conditions of employment which could be detrimental to employees, we see nothing unworkable or unreasonable in a requirement that the employer take reasonable steps to explain the effect of the relevant terms to employees. The extent of the explanation that will be necessary will depend on the circumstances of the case and the relevant considerations that we have set out above.
[35] In the circumstances of the case under appeal, it was open to the Deputy President to consider the terms of the current 2014 agreement and whether there was a failure on the part of Diamond Offshore to explain the difference between certain of those terms and the terms of the proposed Agreement in forming his view about whether the requirements of s. 180(5) had been met. This was particularly the case having regard to the significance of the reduction in the casual loading to which we have earlier referred. We see no error in principle with the approach adopted by the Deputy President in this regard. We also do not accept that in taking this matter into account the Deputy President had regard to an irrelevant consideration.
[36] In forming his view that Diamond Offshore had not met the requirements of s 180(5) of the FW Act, the Deputy President considered the Form F17 Employer declaration and a Power Point presentation forwarded to him by Diamond Offshore. The Form F17 and Power Point presentation were provided in response to a query about whether there would be a reduction in the quantum of casual loading to which employees were entitled under the 2014 agreement when they were asked to approve the proposed agreement which reduced that entitlement. The Power Point presentation did not refer to the casual loading which had been the subject of enquiry by the Deputy President. An unsworn statement was made in an email to the effect that the relevant employees were informed that the casual loading in the Agreement was reduced from 25% to 20%, but this rose no higher than the level of assertion. On the basis of the evidence before the Deputy President it was open to him to find that Diamond Offshore had not established that the requirements in s. 180(5) had been met.
[37] In the circumstances of the case before the Deputy President, we can discern no error in the approach to considering whether the requirements of s. 180(5) had been met. The Deputy President did not act on a wrong principle or mistake the facts. The Deputy President did not allow extraneous or irrelevant matters to guide him in the exercise of the discretion under s. 180(5) of the FW Act or in forming his state of satisfaction about whether those requirements had been met. This is also not a case where the Decision imposes an unreasonable or unjust outcome so that it could be inferred, in the absence of apparent error, that there has been a failure on the part of the Deputy President to exercise the discretion entrusted to him to determine whether the requirements in s. 180(5) had been met so that the agreement had been genuinely approved as required by s. 188 of the FW Act.”
[20] I agree with and, with respect, adopt the reasoning of the Full Bench in Diamond Offshore.
[21] Most recently another Full Bench again endorsed the approach in One Key. 16
[22] In Falcon Mining, her Honour set out some of the matters to be considered concerning the “relevant context”. Considering those matters in the present matter, the evidence is as follows:
Contextual issue | Evidence in present matter |
Size of the employer | In combination the Applicant Employers are a large employer. At the time of the vote there were 682 employees. |
Resources of the employer including available mechanisms and available resources to provide an explanation. | The Applicant Employers are provided with human resources support by Merlin Entertainments (Australia) Pty Ltd. |
The role and qualifications of the persons who provided the explanation. | The primary agent for the Applicant Employers was Ms Thomson, Merlin’s HR Director. In addition the Applicant Employers constituted a Joint Consultative Committee. |
Whether the capacity or the ability of employees to receive an explanation is impacted by issues such as language, literacy, access to electronic media, out work, rosters, the locations at which work performed, travel to and from remote location or the availability of employees to receive an explanation. | Unknown. |
[23] In the present matter the evidence establishes that:
a) Chantel Daly was the representative on the JCC of curatorial department at Sea Life Melbourne Aquarium.
b) Classifications were an important issue to employees during the bargaining of the Agreement. The Applicant Employers wanted to establish a standardised classification structure.
c) On 26 October 2018 Ms Daly, in her capacity as a member of the JCC, sent an email to a number of employees including each of the Objecting Employees. She wrote, “I’ve attached the structure for you to have a look at …” 17.
d) The attachment contained a table that clearly identified classifications under the Agreement and the equivalent classification for each of the sites. For example an “Aquarists S” at Sea Life Melbourne Aquarium was to be classified under the Agreement as a “Keeper - Senior”.
e) On 22 November 2018 the final version of the classification comparison 18 document was distributed to members of the JCC.
f) On 20 December 2018 the classification comparison document was again distributed to members of the JCC. 19
g) On 31 December 2018 the Applicant Employers provided all relevant employees with voting information. The covering email 20 advising employees of the access period indicated that the Agreement”. The Agreement was attached.
h) During the access period, from 31 December 2018 until 7 January 2019, information sessions were conducted for employees at each of the locations where managers respond to questions and also employee representatives from the JCC communicated with relevant employees.
i) Managers used a standard format PowerPoint 21 for the purposes of the information sessions. The 10th slide was entitled “Wages”. It contained a table with four examples of classification comparisons. One of the classification examples was that of “Assistant Aquarist”. The table indicated that under the Agreement the proposed classification would be “Assistant Keeper”.
j) Managers were also provided with a “Questions & Answers” document. 22 On page 2 in relation to the classification structure in Appendix A of the Agreement the document provided,
“team members will move to the role aligned with the current role, please refer to the classification comparison. There will be an opportunity for managers to put forward exceptions however these will need justification and approval by GM (for costs) and HR (to ensure consistency across ANZ). Otherwise any movement to a new level will be in line with the PDP reviews and available vacancies in more senior roles becoming available (i.e. a head keeper vacancy must become available before a keeper is promoted. Promotion between classifications are upon vacancies, promotion between levels (i.e. entry, competent and senior) may be based on skill advancement alone.”
k) On 3 January 2019 the information session for the members of the curatorial team at Sea Life Melbourne Aquarium occurred.
l) Voting commenced on 8 January 2019 and concluded on 23 January 2019.
[24] Before me:
a) Ms Lang conceded that:
i. she received the email from Ms Daly on 26 October 2019. 23
ii. she had received a copy of the classification structure and saw the matching of her role. 24
iii. she understood that was the structure. 25
iv. she likely attended the Q&A session on 3 January 2019. 26
v. she understood where her classification would land. 27
vi. she clearly understood that her present classification mapped with “Keeper Senior”. 28
vii. she clearly understood that, at a minimum she was to be classified as a “Keeper Senior” with the corresponding rate of pay. 29
b) Mr Gilbert conceded that:
i. he attended the Q&A session on 3 January 2019. 30
ii. he saw the PowerPoint presentation (which specifically referred to his classification). 31
iii. at least by 3 January 2009 he understood that as an “Assistant Aquarist” under the Agreement he would be an “Assistant Keeper”. 32
iv. he received the email dated 26 October 2018 from Ms Daly which attached at the classification structure. 33
c) Ms Asser conceded that:
i. although she did not attend the Q&A session on 3 January 2019 she attended a catch up Q&A session. 34
ii. she had previously seen the classification table and had read it. 35
iii. by the time she came to vote on the Agreement the classification table was the only information she had about matching her current classification with the proposed classification under the Agreement. 36
d) Mr Stephens conceded that:
i. he had previously seen the classification table. 37
ii. he received the email from Ms Daly on 26 October 2018. 38
[25] It is also relevant to note that at the time of the vote the Agreement covered 682 employees of the Applicant Employers. Of those 448 (66%) voted and, of those who voted, 228 (51%) voted in favour of the Agreement.
[26] In the Agreement a decision was made by the Applicant Employers to standardise the position classifications across all venues. The curatorial department at Sea Life Melbourne Aquarium were concerned about the proposed classification structure in the Agreement. Those employees had an expectation they would be consulted about which classification would apply to them. That consultation did not occur directly with them. All consultation about the classification structure occurred at the JCC. Ms Daly was the representative of the curatorial department on the JCC.
[27] The real complaint of the Objecting Employees is that there were not direct discussions with them and mutual agreement about the classifications. While no doubt disappointed by the lack of direct consultation this does not mean that the Applicant Employers did not take all reasonable steps to ensure that the terms of the Agreement and the effect of those terms were explained to relevant employees including the Objecting Employees. This is not a case where the employees were left having no idea about what classification they sat in and on what wages they would be paid. That information is clear from the classification structure document. All of the Objecting Employees conceded that they had seen the table. It follows that, at a minimum, they understood the classification matching under the Agreement.
[28] It is likely that the Objecting Employees are disappointed by the classification assigned to them. However this is not an argument relevant to whether the Applicant Employers took all reasonable steps. If any employee covered by the Agreement believe they have been incorrectly classified they can utilise the dispute settling procedure in the Agreement to address that issue.
[29] On 31 December 2018 the employees were notified of the access period and it was clear to them that there would be no individual discussions about classifications. The only document pertaining to classifications that was known to the employees was that which was distributed to them in October 2018. Then followed Q&A information sessions on various dates including 3 January 2019 for the majority of the Objecting Employees. The PowerPoint presentation again explained the comparisons in terms of classifications.
[30] Having regard to all that was before the employees I am satisfied that when they came to vote they were able to make an informed vote. The employees were fully informed as practicable. The condition precedent to the exercise by the Commission of its jurisdiction under s.186 of the FW Act to approve the Agreement has been established. The Applicant Employers complied with s.180(5). The change in the classification structure was an important change in the Agreement and it was incumbent on the Applicant Employers to explain it. The comparison table document was an explanation.
[31] Likely the Applicant Employers could have done more in terms of their discussions with the Objecting Employees. But that is not the statutory test.
[32] In agreement approvals, as in most things in life, perfect should not be the enemy of the good, or the good enough. In the present matter, the steps taken by the Applicant Employers were good enough or, to more correctly use the language of the FW Act, reasonable.
[33] For the reasons above I have concluded that I am satisfied that the Applicant Employers took all reasonable steps to ensure that the terms of the Agreement and the effect of those terms were explained to the relevant employees. Consequently, the Applicant Employers complied with the pre-approval step mandated by section 180(5)(a). For this reason the Agreement can be approved if the other statutory requirements have been satisfied.
Conclusion
[34] The Applicant Employers have provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
[35] For the reasons set out above, subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
[36] Pursuant to s.586 of the FW Act, I allow an amendment to clause 3.1(a) of the Agreement so it is deleted and inserted in its place the following,
“3.1 This Agreement will be binding on:
(a) Sydney Aquarium Company Pty Ltd T/A Sea Life Sydney Aquarium; Melbourne Underwater World Pty Ltd T/A Sea Life Melbourne Aquarium; Underwater World Sunshine Coast Pty Ltd T/A Sea Life Sunshine Coast; The Otway Fly Pty Ltd T/A Otway Fly Treetop Adventures; Legoland Discovery Centre Melbourne Pty Ltd T/A Legoland Discovery Centre Melbourne (hereafter referred to as the Company); and”.
[37] Pursuant to s.202(4) of the FW Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement.
[38] The Australian Workers' Union and United Voice being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.
[39] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 October 2019. The nominal expiry date of the Agreement is 31 March 2022.
COMMISSIONER
Appearances:
Mr B Rauf, State Chambers, for the Applicant
Mr Z Duncalfe, for The Australian Workers’ Union
Mr D Robson, for United Voice
Ms G Asser, for herself
Ms B Lang, for herself
Mr L Stephens, for himself
Hearing Details:
13 August 2019, Sydney
28 August 2019, Sydney
Annexure A
1 Transcript PN331-337.
2 Transcript PN338.
3 PN338 – PN341.
4 PN358; PN362.
5 Exhibit 26.
6 Exhibit 28.
7 Exhibit 29.
8 Exhibit 27.
9 Exhibit 30.
10 [2016] FWC 5315.
11 [2016] FWC 5313 at [156].
12 [2010] FWAFB 4602.
13 [2018] FCAFC 77.
14 [2018] FWCFB 1772.
15 [2018] FWCFB 6907.
16 See The Australian Workers’ Union v Gray Australia Pty Ltd as trustee for The Gray Family Trust t/a Ceres Farm & Kenrose Co Pty Ltd and Others[2019] FWCFB 4253.
17 BL-2.
18 NT-09.
19 NT-10.
20 NT-06.
21 NT-07.
22 NT-08.
23 Transcript PN670-672.
24 Transcript PN579-580.
25 Transcript PN584.
26 Transcript PN651.
27 Transcript PN685.
28 Transcript PN690.
29 Transcript PN697.
30 Transcript PN729.
31 Transcript PN732.
32 Transcript PN738.
33 Transcript PN578.
34 Transcript PN800.
35 Transcript PN802-804.
36 Transcript PN811.
37 Transcript PN863.
38 Transcript PN871.
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