Morris Corporation (WA) Pty Ltd

[2014] FWCA 7106

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Morris Corporation (WA) Pty Ltd
(AG2014/1383)

MORRIS CORPORATION (WA) PTY LTD SITE SPECIFIC AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 OCTOBER 2014

Application for approval of a single enterprise agreement - whether Agreement genuinely agreed to by the employees - access to documents - coercion and incentives - good faith bargaining - meaning of ‘all reasonable steps’ - employees’ access to the Agreement - steps taken by the employer were reasonable - no basis for refusing to approve the Agreement - Agreement approved with undertaking.

INTRODUCTION

[1] On 11 June 2014, Morris Corporation (WA) Pty Ltd (the ‘applicant’) filed an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), for the approval of a single enterprise agreement to be known as the Morris Corporation (WA) Pty Ltd Site Specific Agreement 2014 (the ‘Agreement’). The Agreement is to cover 559 employees engaged in providing facilities management, catering, cleaning and accommodation services to mining and construction clients in remote locations in Western Australia. The sites are specifically identified at cl 1.3.1 of the Agreement as follows:

‘(v) “Sites” means Karntama, Christmas Creek, Christmas Creek Mine, Cloudbreak, Cloudbreak Mine, Hamilton Hotel, Rail Camp 145, Rail Camp 195, Rail Camp 25A, Kangi, Solomon Mine and Castle.’

[2] The Agreement was negotiated with the Australian Workers’ Union, Western Australian Branch (the ‘Union’) and 12 employee-nominated bargaining representatives and was made on 5 June 2014 (s 182) when a vote of employees agreed, by a slim majority, to approve the Agreement. The vote was 206 employees in favour of approving the Agreement from a total of 403 valid votes cast. The vote was conducted over 3 days (3-5 June 2014) and followed an earlier unsuccessful vote conducted between 20-22 May 2014.

[3] The application was listed for approval proceedings before the Fair Work Commission (the ‘Commission’) by phone on 30 June 2014. However, the Union advised me on 25 June 2014 that it opposed the approval of the Agreement on two grounds, namely that:

1. The Agreement had not been genuinely agreed to by the employees to be covered by the Agreement; and

2. the Agreement is inconsistent with, or undermined good faith bargaining by the employer.

[4] The applicant, quite properly, sought further details of the grounds upon which the Union opposed the approval of the Agreement. On 22 June 2014, the Union filed and served the following outline of its objections:

‘1. The Notice of Employee Representation Rights which the employer gave to employees on 10 March 2014 does not contain the proscribed content as required by sub-section 174(1A) of the Act and regulation 2.5 and Schedule 2.1 of the Fair Work Regulations, namely the name of the proposed enterprise agreement.

2. The Agreement has not been genuinely agreed to by the employees covered by the agreement, in that:

a. The employees were not given a copy of the written text of the agreement and didn’t have access throughout the access period to a copy of the relevant materials as required by sub-section 180(2) of the Fair Work Act;

b. The employer did not notify the relevant employees of the relevant voting details as required by sub-section 180(3) of the Act;

c. The employer did not take all reasonable steps to ensure that the relevant information was explained to the relevant employees as required by sub-section 180(5) of the Act, particularly for employees from culturally and linguistically diverse backgrounds;

d. The employer coerced employees to vote to approve the agreement by offering incentives equivalent to $100; and

e. The Employer pressured employees to vote to approve the agreement by telling employees that they will not have jobs otherwise.

3. The Agreement is inconsistent with or undermines good faith bargaining by the employer in breach of sub-section 187 (2) of the Act, in that:

a. The employer failed to disclose relevant information, particularly information regarding annualised salary; and

b. Engaged in unfair conduct that undermines collective bargaining by offering and paying incentives to employees to vote and pressuring employees to vote to approve the agreement by telling employees that they will not have jobs otherwise.’

[5] At a short mention and directions hearing on 30 June 2014, the Commission issued directions in respect to the filing of evidence and submissions with a hearing of the matter listed on 12 and 15 August 2014.

RELEVANT LEGISLATIVE PROVISIONS

[6] Chapter 2, Part 2-4 of the Act provides a comprehensive and detailed set of procedures and processes governing the making of enterprise agreements and their ultimate approval by the Commission. Subdivision A of Division 4 deals with the pre-approval steps for the making of an enterprise agreement. As these steps are the focus of the Union’s objectives to the approval of the Agreement, it is necessary to set out their terms as follows:

‘180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre-approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).

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.

(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.’

[7] Subdivision B of Division 4 sets out the requirements which be satisfied before the Commission can approve an enterprise agreement. If the Commission is satisfied that all of the requirements are met, the Commission must approve the enterprise agreement. These requirements are contained in ss 186-188 as follows:

‘186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).

Requirement that the group of employees covered by the agreement is fairly chosen

(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Requirement that there be no unlawful terms

(4) The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

Requirement that there be no designated outworker terms

(4A) The FWC must be satisfied that the agreement does not include any designated outworker terms.

Requirement for a nominal expiry date etc.

(5) The FWC must be satisfied that:

(a) the agreement specifies a date as its nominal expiry date; and

(b) the date will not be more than 4 years after the day on which the FWC approves the agreement.

Requirement for a term about settling disputes

(6) The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.

Note 1: The FWC or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

Note 2: However, this does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).

187 When the FWC must approve an enterprise agreement—additional requirements

Additional requirements

(1) This section sets out additional requirements that must be met before the FWC approves an enterprise agreement under section 186.

Requirement that approval not be inconsistent with good faith bargaining etc.

(2) The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.

Requirement relating to notice of variation of agreement

(3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), the FWC must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).

Requirements relating to particular kinds of employees

(4) The FWC must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.

Note: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.

Requirements relating to greenfields agreements

(5) If the agreement is a greenfields agreement, the FWC must be satisfied that:

(a) the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and

(b) it is in the public interest to approve the agreement.

188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.’

The subsequent provisions in Part 2-4 are either not relevant to this application or are not the subject of any dispute in this proceeding.

THE EVIDENCE

[8] The following persons gave written and/or oral evidence in the proceeding:

Mr Brett Fordham, Maintenance Utility for the applicant and Union delegate;

Ms Beverley Dunkerley, Catering Utility for the applicant;

Ms Debra Briscoe, General Manager, Human Resources for the applicant;

Ms Nina Weir, Human Resources Manager, Western Australia for the applicant;

Mr Tutakaori Moeahu, Village Manager for the applicant;

Mr Richard Swift, Village Manager for the applicant;

Ms Heather Lowman, an employee of the applicant at Christmas Creek;

Mr Brendan O’Sullivan, Relief Maintenance Supervisor for the applicant;

Mr Troy Collard, an employee of the applicant at Christmas Creek; and

Ms Elizabeth Dartnell, an employee of the applicant.

For the Union

Mr Brett Fordham

[9] Mr Fordham is a Union delegate and has been employed by the applicant on a two weeks on/two weeks off roster as a Maintenance Utility since February 2013. In written evidence, he acknowledged that the applicant had posted copies of the Notice of Employee Representational Rights (NoERR) in meeting rooms, the maintenance office and housekeeping crib room at the Karntama site in about March 2014. He could not recall having received a copy by email or post. He responded to the notice by nominating himself as an Employee Bargaining Representative (EBR). Another employee, Ms Tana Kostadinovaki, also nominated him as her EBR. Mr Fordham had participated in bargaining meetings for the Agreement by telephone and in person. There had been two votes for approval of the Agreement on 20-22 May and 3-5 June 2014.

[10] Mr Fordham believed that the applicant had not forwarded copies of the Agreement to employees by post or email. Nor had an electronic copy been made available to them; instead, a number of hard copies were made available in some of the managers’ offices on site. Some time between 12 and 20 May 2014, he attended the office of Mr Richard Swift, Assistant Project Manager at Kantama, to view the draft Agreement. He was required to fill in a form setting out his name, the date and sign in/sign out times. He was then led to Mr Tui Moeahu’s office, where Mr Swift cautioned him that while he could take notes, he could not take photos or copies of the Agreement.

[11] Mr Fordham deposed that after spending two hours reviewing the document, he realised the proposed Agreement provided for a cyclone shutdown of two days, rather than three, as had been agreed in the bargaining meetings. He signed the form, handed the Agreement back to Mr Swift and raised concerns with Mr Swift that the applicant was attempting to keep the Agreement secret. Mr Swift had replied that he had been directed by the applicant’s HR department as to the process governing employees’ access to the Agreement.

[12] Mr Fordham emailed Ms Briscoe on 15 May 2014 setting out his concerns over access to the Agreement and the breakdown of the annualised wage. He and six other EBRs had previously asked for a breakdown on or about 1 April 2014. This was subsequently received, but in an incomplete form, on 28 April 2014. A further breakdown was provided on or about 29 April 2014, but it omitted particulars about penalty rates and other matters. Once this matter had been listed for a telephone hearing in the Commission, he received a letter from Ms Briscoe in the following terms:

‘Thank you for your participation in recent Morris EA negotiations.

At these negotiations you sought to understand the annualised wage breakdowns for Morris employees in order to participate in negotiations effectively. To assist with this request, Payroll attempted to detail your annual salary as if you were paid an annualised wage. This resulted in some confusion and it was requested these be reviewed by Payroll again.

You are employed on the Morris Corporation (WA) Pty Ltd Employee Collective Agreement 2009 in a Level 2 Cleaning Stream and you are paid an annual salary of $74,500.00 for your normal rostered hours. This salary is a total figure inclusive of all payments for work you perform.

Your annual salary of $74,500.00 reflects a higher rate of pay and benefit than if you were to be paid at the base ECA rate. It is also a higher rate of pay as compared to employees undertaking the same role that were employed on or around 1 August 2013 and since.

To avoid further confusion, Morris will not be providing a breakdown of your annual salary, as if you were paid an annualised wage. Morris is only required to provide you with a pay slip that reflects the fact you are paid an annual rate of pay. That is why your pay slip indicates your average hourly rate, rather than your ordinary hours rate.

Shift Allowance

During discussions on annualised wages, the matter of shift allowance was raised. Morris has reviewed the shift allowance for the majority of sites and corrected any underpayment direct with the impacted employee.’

[13] Mr Fordham said there were other concerns with the Agreement. He particularly noted annual leave entitlements and queried whether annual leave was compensated for in the annualised salary. He also noted that the kitchen hours had been changed.

[14] Mr Fordham viewed the draft Agreement again on 2 June 2014. This was his only opportunity, prior to the vote, which commenced the following day, as he had flown in that morning. He was again required to sign a form, but this time was taken to the conference room, where he was again told he could not copy or photograph the Agreement. This time, he spent only 30 or 40 minutes reviewing the document, but he noted that Mr Swift entered the room while he was examining it. He believed that any employee who was not on site during the time the draft Agreement was made available in this manner, would not have had access. Mr Fordham named Ms Lou Calvert and Ms April Culbong as employees who would have had no access to the draft due to being on personal leave. He understood that other employees had been told they were not allowed to look at the draft Agreement by their supervisors or managers.

[15] In cross examination, Mr Fordham agreed that copies of the draft Agreement were available in the offices of the Village Manager, the Housekeeping Manager and Catering Manager. He accepted that to ‘check out’ a copy of the draft Agreement, an employee was able to take it to another location and read in private. He was not restricted in his ability to reading the document during rostered working hours and had been free to read it for as long as he wanted.

[16] Mr Fordham acknowledged that he was not aware of any other arrangements between employees offsite and management in relation to viewing the Agreement. However, he had asked April Culbong, who was offsite, if she had had an opportunity to view the draft Agreement and she had said no.

Ms Beverley Dunkerley

[17] In a written statement, Ms Dunkerley explained that she had been working at the Karntama site since October 2012 - having previously worked at the Solomon site. When she had been working at Solomon, she had worked two or three months on night shifts (11:00pm-9:30am) as well as day shifts, which would start at 11:00am and finish at approximately 9:30pm. This would include a half hour break and two 15 minute breaks. In comparison, day shift at Kantarma is 9:00am to 9:00pm and night shift is 10:00pm to 10:00am, though at one point it was 9:30pm to 9:30am. It was common for employees to work overtime on the night shift. She had worked on night shifts at Kantama for eight months, which involved 14 shifts in a row, then going home for 7 days of rest and recreation. Ms Dunkerley said that she had worked on day shift at Kantama since ‘around September’. There was occasional overtime during the day shift, but she did not want to take this up as it was not compensated for.

[18] Ms Dunkerley complained that prior to the first unsuccessful vote for the Agreement, there were one page ‘benefit summaries’ posted on bulletin boards about the Agreement. The employees were allowed to read the full draft Agreement in the office of Mr Bryan Jiminez, the Catering Manager, who told her that she could only read it during a break or after a shift. When Ms Dunkelely raised concerns about her ability to read the draft Agreement carefully, Mr Jiminez refused her permission to take the Agreement to her room. It was not until a few days before the first election that employees were allowed to read the Agreement during work hours, but only in offices on site.

[19] Ms Dunkerley claimed that during a meeting about the Agreement conducted by HR Manager, Ms Nina Weir prior to the second vote, Mr Swift, Village Manager, had replied to one of her questions in words to the effect of, ‘If you’re not happy, look for another job.’ In oral evidence, Ms Dunkerley said she could remember other people raising questions at the meeting conducted by Ms Weir and agreed she could remember Mr Gerard Walsh asking particular questions, although she was not clear what they were.

[20] In cross examination, Ms Dunkerley acknowledged that she had not read the draft Agreement at any stage. She accepted that she could have read the draft Agreement at any time during or after her shift prior to the second vote.

[21] In re-examination, Ms Dunkerley claimed she did not read the draft Agreement because management had told employees that they could only read it in the office and they were not allowed to take a copy away. She had wanted to take her time reviewing it, as it was a long document and she wanted to ensure she understood it.

For the applicant

Ms Debra Briscoe

[22] In her written statement, Ms Briscoe described her role during the negotiations for the Agreement, as follows:

' engaging the Morris Executive Leadership team on the requirements for the negotiations;

bargaining and attending all bargaining meetings on behalf of the applicant;

capturing employee representative and union feedback during bargaining for incorporation in the final draft of the Agreement;

ensuring the bargaining and approval processes complied with all requirements of the Fair Work Act 2009 (Cth) (FW Act);

ensuring Morris obtained relevant legal advice regarding its obligations during the bargaining and approval process;

managing a team of HR professionals to ensure employees were aware of, and engaged in, the Notice of Employee Representational Rights, negotiations, employee education sessions and, ultimately, voting on the proposed Agreement.’

The above team was responsible for the management of material, logistics and timeframes for access to the Agreement and the voting process. The team were personally involved at site-based education sessions and were available to all employees to answer any questions which they might have had.

[23] Ms Briscoe explained that the applicant had made a decision to ‘control access’ to the Agreement due to its commercially sensitive nature and the possibility it may be given to the Company’s competitors and customers, if it were more widely distributed. The applicant had obtained independent legal advice as to how it could balance its obligations under the Act with these considerations in mind. An email sent from Ms Briony Reeve of the applicant’s HR Department to all Site Managers on 26 May 2014 was in the following terms:

‘As you would be aware we have arranged for a second EA access period and vote to occur. The Access period is to open tomorrow Tuesday 27 May 2014 whereby the Agreement must be available from commencement of business for employees to peruse under the same conditions as the previous access period. In support of this you will find the following documents:

1. Registers to be kept by the Village Manager, Catering Manager and Housekeeping Manager to monitor who takes the agreement and to ensure it is returned;

2. Five copies labelled 1 -5 on the cover of the EA;

3. Employee Access Instructions to be kept with the register for employees to read when they borrow a copy of the EA.

Instructions:

1. VM to print off 3 of each labelled copies 1 - 5 and keep in the respective VM, Housekeeping and Catering Manager’s office available for employees to review;

2. Each manager should have 5 labelled copies + one overview + one register kept in their office.

If you are asked why we are being stringent in protecting the document, the reasons is because at this stage it is still only a ‘proposed’ document and we do not want it made public until it is voted up and approved by the Fair Work Commission.

The EA will be available for 10 days in total inclusive of the voting window which will be for 3 days 03 June - 05 June 2014.

Please ensure viewing the EA and/or voting is not restricted to meal breaks, employees can use whatever time they deem suitable to undertake this activity. Employees will receive this communication via email regarding the access period and vote today.

If you or your managers have any questions please feel free to contact me.’

[24] Ms Briscoe said that managers were directed to ensure that they had five copies of the draft Agreement available for employees from the commencement of bargaining (27 May 2014) in the office of the Village Manager for smaller sites and in the offices of the Village Manager, Catering Manager and Housekeeping Manager at larger sites. There was also a register for employees to ‘sign the Agreement out’ or book a time convenient for them, during a manager’s office hours, which could include an employee’s work or personal time. These hours were as follows:

Site	Agreement availability hours	Night shift
Christmas Creek	Manager available 24 hours	9:30pm - 9:30am
Karntama	Housekeeping: 5:30am - 8pm Catering: (23 hours) - 10pm-9pm Village Manager: 4am - 8pm	9pm - 9am
Hamilton Motel	4am - 6pm	10pm - 10am
Kangi	Housekeeping: 6am - 6pm Catering: 6am - 6pm Village Manager: 6am - 6pm	Catering: - 9pm - 9am Cleaning: 5pm - 5am
Cloudbreak	Village Manager’s Office: 5am - 5pm	Kitchen: 9:30pm - 9:30am Minesite: 5pm - 5am
Castle	Village Manager’s Office: 4am - 8pm	9:30pm - 9:30am
Rail Camp 195	Village Manager’s Office: 6am - 6pm	9:30pm - 9:30am
Rail Camp 145	Village Manager’s Office: 5am - 6pm	Variable, but all relevant Employees on site had access to the Village Manager’s Office 24 hours per day.

[25] Managers were also provided with a further document setting out the rules of access to be displayed with the Agreement. It was expressed as follows:

‘RE: Proposed Agreement; Morris Corporation (WA) Pty Ltd Site Specific Agreement 2014

Please take this opportunity to peruse the proposed Enterprise Agreement which has been drafted by Morris with the input of Employee Representatives.

This document is available for you during the period 27 May to 5 June 2014 inclusive.

This Agreement is only a proposed document at this stage and is subject to a positive vote from employees and Approval by the Fair Work Commission.

For this reason you must not:

1. Remove the document from the designated area we have provided for you to review it.

2. Duplicate the document in any way

3. Distribute the document to another person

Please feel free to give any of the below a call if you have any questions on the content of the EA.’

The document ended by providing the contact details of Ms Nina Weir, HR Manager, Western Australia, Mr Scott Ferguson, HR Advisor, Ms Briscoe, Ms Melissa Mason, HR Manager and Ms Briony Reeve, HR Advisor.

[26] Also on 26 May 2014, an email was circulated to employees in the following terms:

‘Morris Corporation seeks your approval of a new enterprise agreement, which will govern the terms and conditions of your employment.

Employees covered by the enterprise agreement can access a copy between 27 May and 5 June 2014 inclusive, via the office of the Village Manager [at larger sites, this was substitute with ‘Village Manager, Catering Manager and Housekeeping Manager’.] .

Voting will commence 9 am on 3 June 2014 and close 5 pm on 5 June 2014.

Voting will occur by electronic means. Morris is using an independent provider for the vote - Cireena.

Employees with email addresses will be sent a PIN for them to vote online

Employees without an email address will be required to call a 24 hour hotline (1300 798 994) to receive a PIN to either vote online or over the phone.

Employees without an email will need to verify their identity through their name and Payroll Number

Voting will be open for 3 days

Voting is confidential’

For those employees who did not have email, or whose email address ‘bounced’, follow-up phone calls and text messages were made by Mr Scott Ferguson, Ms Chloe Duke-Smith and Ms Nina Weir.

[27] Ms Briscoe deposed that employees were reminded at pre-start and Toolbox meetings that they could access the Agreement at the relevant manager’s office at any time during the manager’s office hours, including their rostered work hours. Ms Briscoe provided minutes of a Toolbox meeting at Christmas Creek on 1 June 2014 which were said to demonstrate this access. She added that there were barbecues, information sessions and Q&A sessions held in the lead up to both votes.

[28] Ms Briscoe referred to the email sent to her by Mr Fordham on 15 May 2014 (see para [12]) He had acknowledged that employees at the Kantarma site could access the Agreement at a time that suited them, including during their rostered hours in the bargaining period, leading up to the first failed vote.

[29] Ms Briscoe claimed that if any employee who was off-site during the vote and who had not accessed the Agreement had contacted a HR person, there would have been arrangements for that employee to access the Agreement in a secure off-site environment. In any event, this would only have involved a small number of employees.

[30] In oral evidence, Ms Briscoe further developed the applicant’s concerns that the draft Agreement would have been commercially sensitive due to the possibility of competitors for tenders becoming aware of its terms. She was part of Morris’ Executive Team and was aware that there were at least three tenders underway at that time. She said that labour costs and food costs were the two major costs in the industry and were crucial as to whether a tender was won or lost. If the draft Agreement was taken away from a secure environment, there was a risk that employees may share it with competitors.

[31] Ms Briscoe clarified that if any employee off site, who had not previously accessed the Agreement had made this known, a copy of the draft Agreement would have been made available at the Perth or Brisbane office. No employees had requested this. She had since verified that every employee who was offsite during the relevant access periods, had been contacted by the applicant to inform them of alternative arrangements for access. None of them chose to avail themselves of these alternative arrangements.

[32] In answer to a question from me, Ms Briscoe said that the employees were not prevented from taking notes when they accessed the draft Agreement. She conceded that nothing would have stopped employees from providing information obtained in this manner to competitors.

[33] In cross examination, Ms Briscoe acknowledged that once an enterprise agreement was approved by the Commission, it became a public document, although competitors would have to search for it on the Commission’s website.

[34] Ms Briscoe agreed that the draft Agreement did not provide a breakdown of how annualised wages were calculated. She believed that this would have been inappropriate as wages differed across sites and was dependent on rosters that people were working and whether an employee was being paid at a rate above those set out in the Agreement. However, a detailed example had been given with a spreadsheet showing a particular annualised wage from a particular site. She stated that if an employee was on an annualised wage, they would be given their own breakdown. If they were on an annual salary, they would not be provided with one, as they are paid above the Agreement in any event.

[35] Ms Briscoe said that she had been advised by her team that all employees had been contacted about the access period by email. If the email ‘bounced’ or an employee did not have an email address, they were further contacted by text message. She confirmed that no other option for access had been expressly offered to employees known to be off site.

Ms Nina Weir

[36] In her written statement, Ms Weir deposed that she had been involved in facilitating multiple education sessions/Toolbox meetings at Karntama, Cloudbreak and Christmas Creek on 7 and 8 May 2014, Hamilton Motel (with Mr John Idland, Senior Operations Manager) on 9 May 2014 and Karntama, Cloudbreak and Christmas Creek between 2 and 5 June 2014 (with Ms Duke-Smith and Mr Ferguson). She had also held conference calls for employees who were on R&R or at other sites on 12-14 May 2014.

[37] Ms Weir believed that there had been no restrictions placed on how long employees could review the Agreement. She had observed employees take a copy of the Agreement into a room adjoining a manager’s office after signing the register. All employees were emailed to advise of the commencement of the access period and the method of voting. If an email ‘bounced’ or HR did not have an email address for that employee, then a text message would be sent. There were also some employees without an email address or mobile phone and they were sent the information by post.

[38] Ms Weir gave evidence of Toolbox meeting held at Karntama on 3 June 2014 at which, a small group of ‘particularly aggressive’ employees (3-4 out of about 60), which included Ms Dunkerley, continued to ask questions and interrupt the meeting in relation to individual pay issues. Ms Weir had offered to meet with individuals after the meeting to address their issues. At one point, when Ms Dunkerley interrupted Mr Swift, who was on the opposite side of the room to Ms Weir, Mr Swift said words to the effect of: ‘Nobody is forcing you to agree, there are plenty of other jobs out there that don’t give as good terms.’ She thought that this was a fair description of the Agreement. She denied that any manager had said that the future of employees’ jobs, individually or collectively, were dependent on the vote for the Agreement.

[39] In cross examination, Ms Weir acknowledged that she had not personally sent text messages to employees who did not have valid email addresses. This had been done by her team, who had ticked off each name and signed each page of a list of employees. She understood this to mean that all employees had been contacted, although she could not recall a record specifically setting out that Ms Calvert or Ms Culbong had been contacted. She agreed that she had provided information in relation to the second vote and told employees to contact her or her team only in the week leading up to the second vote. An employee who was not on site in the week leading up to the first vote and the week leading up to the second vote may not have had this information.

[40] In re-examination, Ms Weir explained that the team members who sent the text messages had sent uniform text messages at her direction. They had ensured that the text messages went through. One or two employees did not have a valid mobile number and were given a hard copy of the information while they were on site. None of the employees who were away during the access period contacted their managers to seek an alternate means of access to the Agreement.

Mr Tutakaori Moeahu

[41] In his written statement, Ms Moeahu described his responsibilities as Village Manager for the operation and delivery of services at the relevant village site for approximately 1,600 residents. There are between 70-90 employees working on site at any one time from a pool of 130. They are supported by Heads of Department who manage each of the site’s departments with their supervisors. All the employees are from Perth and work 12 hour days on a two week on, one week off roster.

[42] Mr Moeahu explained that NoERRs were posted on notice boards in each department and were emailed to Heads of Department on 6 March 2014 with instructions to display them ‘appropriately’. He had been responsible for coordinating meetings with those who were nominated as EBRs.

[43] Mr Moeahu deposed that the Agreement documentation was sent to him by Ms Briscoe on 11 May 2014 and he forwarded it to the Village Manager the same day. The directions about employee access in the Village Manager office, the House Keeping office and the Catering office were clear. There were five copies of the Agreement in each of these locations. The Catering office is accessible 23 hours per day and the Catering Manager/Head Chef/Relief Head would have been available between 5:00am and 9:00pm. The Village Manager’s office is accessible between 4:00am and 8:00pm each day and the House Keeping office is accessible between 5:00am and 8:30pm each day. Employees would have been able to access the Agreement outside of working hours and he noted that Mr Fordham acknowledged this in his email of 15 May 2014. He thought it was fair to say that the arrangements at Karntama meant that any employee could access a copy of the Agreement 24 hours per day.

[44] Mr Moeahu said that he had been present at a sausage sizzle Q&A session which was part of a paid overtime stop work meeting.

[45] In oral evidence, Mr Moeahu stated that he had directly called about seven employees who were absent from the Karntama site during the access period to give them information on how to access the Agreement. He had told them that they had an opportunity to access the Agreement while in Perth or Brisbane. He had been instructed by HR to contact them because they were on leave and he had also sent text messages with the Perth Head Office address. None of those contacted had taken up this opportunity.

[46] Mr Moeahu agreed that he had instructed those managers who reported to him, to tell employees that they could access the Agreement at the relevant offices and that there was no time limit to their access. This included rostered shift hours. However, they had to sign it in and out.

[47] In cross examination, Mr Moeahu confirmed that Ms Calvert and Ms Culbong were among the seven employees he had contacted. However, he had spoken to them through their manager, rather than speaking to them directly. Ms Calvert had given a written response setting out that she was aware of the access period and the terms of access. He was not aware of what kind of leave she was on or whether she was in Perth at that time. Mr Moeahu was not aware of any employees who did not live in Perth or Queensland.

[48] Mr Moeahu said that although he had not been at any Toolbox or pre-start meetings at which the employees had signed off confirming they had been notified of the access period, he felt that these meetings were sufficient. He had trusted his team to read out the appropriate instructions.

[49] Mr Moeahu confirmed that the Kitchen Staff at Karntama worked twelve hour shifts with two 20 minute breaks and one 30 minute break. Employees may be allowed extended breaks, on a case by case basis. While it was true that these employees would not be able to take a one or two hour break and then complete their required tasks in a twelve hour shift, measures had been taken to accommodate them for the access period. Mr Moeahu had actually witnessed managers telling employees that they could access the Agreement at any time during their 14 day cycle.

[50] In re-examination, Mr Moeahu explained that the document signed by the employees at the Toolbox and pre-start meetings referred to a media presentation. The document signed by those employees also set out how and when the employees could access the Agreement.

Mr Richard Swift

[51] In his written statement, Mr Swift outlined his responsibilities as a Village Manager in terms similar to those of Mr Moeahu (see para [41]) and gave similar evidence as to the issue of the NoERR (see para [42]. He had received the Agreement documentation on 11 May 2014 and then in the leadup to the second vote on 26 May 2014 in an email from Ms Reeve. The email set out that registers were to be kept by the Village Manager, the Catering Manager and the House Keeping Manager to monitor who took a copy of the draft Agreement and to ensure it was returned. Each manager was to have five labelled copies, one overview and one register kept in their office. Mr Swift subsequently emailed Ms Briscoe on 13 May 2014, who confirmed that staff were allowed to take time to review the draft Agreement during working hours. He had clarified this to other staff members on 15 May 2014.

[52] Mr Swift deposed that the arrangements for access to the Agreement was referred to during all pre-start and Toolbox meetings and attached the minutes of two Toolbox meetings conducted at Karntama on 18 May and 1 June 2014 which referred to the availability of the draft Agreement for review in three locations. Mr Swift claimed that these arrangements meant that employees could access the Agreement on site ‘24/7’. During the second access period, there were three additional Q&A sessions for employees to ask questions. Employees stopped work on each of these occasions and on another, they were paid overtime to attend during normal working hours.

[53] Mr Swift referred specifically to the Toolbox meeting conducted by himself and Ms Weir on 3 June 2014. He estimated that it was held over 50 minutes and attended by 50 employees. Mr Swift described the attendees as ‘grouped by attitude’, saying that the majority of employees had no real interest in the meeting; one small group participated constructively in the meeting, but an even smaller group engaged in a sarcastic and negative fashion. One of this group had complained that he would be paid better at McDonald’s and had stated that any person who voted for the Agreement had ‘educational difficulties.’ In response to this, another employee had interjected and said that he should get another job if he was dissatisfied. Mr Swift could not recall Ms Dunkerley directly asking him a question, although when she had addressed a question to Ms Weir after the meeting, he had told her that she already knew the answer to the question she was asking. In any event, this question was not ‘related directly to the EA’. Mr Swift denied telling Ms Dunkerley that if she was unhappy, she should look for another job and suggested that she had misunderstood him.

[54] Mr Swift described a discussion at the same meeting of the relevance of the vote as ‘circular’. Some employees had asked what would happen if the Agreement was approved by a narrow margin. Ms Weir had responded ‘appropriately’. Her response resulted in some disrespectful muttering. He described his own input at this point as follows:

‘I made the further point that we live and work in a democracy and that the principles of the democratic process apply just the same in this vote as in any other vote in our society. I also commented (in response to the mutterers) that, speaking personally, if I were in a minority position where I felt so strongly that my benefits, beliefs and principles were compromised by my employer beyond what I was prepared to accept, I would look for another employer, as that was my right in a democratic society. I was simply stating my personal opinion about the access and approval process.’

[55] In cross examination, Mr Swift claimed that all the managers he had heard discuss access to the Agreement with employees had confirmed that it was available to view at all times. He had not personally attended any pre-start meetings.

[56] Mr Swift explained that he had sought clarification from Ms Briscoe about access to the draft Agreement during work hours because he had wanted to make sure that the business was happy to allow employee access during working hours. He was aware that Mr Fordham had raised concerns in an email to the applicant’s management. However, it was not this issue which had prompted him to seek the clarification, as Mr Fordham had retracted his allegation. Mr Swift believed that the query from Mr Fordham about access to the Agreement related to the first access period.

[57] Mr Swift confirmed that permission for employees to take longer breaks would have been determined on a case by case basis. There was operational flexibility to allow for additional breaks.

[58] Mr Swift again denied that he had ever said ‘If you don’t like it, you should go and get another job’ at the Toolbox Meeting on 3 June. Nor had he said words to the effect of ‘There are plenty of other jobs out there.’

[59] Mr Swift deposed that he and Mr Moeahu had texted employees who generally worked at the Karntama site and who had been identified as not being on site by the HR team.

[60] In re-examination, Mr Swift explained that he had heard at least four of the seven managers explain the access arrangements to employees when he had visited individual departments. It was generally the practice that emails of the type sent from HR were read verbatim to employees by their managers. He had witnessed this being done in this case.

Ms Heather Lowman

[61] Ms Lowman has worked for the applicant since July 2012 on 12 hour shifts at Christmas Creek, before moving to Karntama in August 2012. She deposed that she had been sent a NoERR in March 2014. She was advised by email that she could view a copy of the draft Agreement at the Village Manager’s office. On two occasions, she had sat in the office of the Village Manager to examine the Agreement and the Manager ‘could not have been more helpful’. She felt that she had had a sufficient opportunity to make up her own mind about the Agreement and had not felt pressured to vote one way or the other.

Mr Brendan O’Sullivan

[62] Mr O’Sullivan has been working for the applicant since July 2011 and is currently working at Cloudbreak as a Relief Maintenance Supervisor. In his written statement, he said that he had received a NoERR on 10 March 2014 and a further one approximately one or two weeks later. On 8 May 2014, representatives from the applicant had attended Cloudbreak and told the employees that they would be able to view the draft Agreement on 19 May 2014. He subsequently received an email setting out that the Agreement could be accessed at the Village Manager’s office at any time between 27 May and 5 June 2014. Access was not restricted to after work or during breaks.

[63] Mr O’Sullivan stated that he had been given ample opportunity to ask questions about the Agreement and said that while his reading of the draft Agreement was not restricted to the Village Manager’s office, he was directed not to leave the building with copies of the draft Agreement. He had not felt pressured to vote in a certain manner and was comfortable with the voting process.

Mr Troy Collard

[64] Mr Collard has been employed by the applicant at Christmas Creek since 13 May 2013. In a written statement, he said that he had received a NoERR via email and post. He had been made aware at some time in May/June 2014 that he and other employees could access the draft Agreement in the Village Manager’s office. He had taken up this opportunity. He believed he had been given a fair opportunity to view and gain access to the draft agreement and to ask questions. He had not felt pressured to vote one way or the other.

Ms Elizabeth Dartnell

[65] In a written statement, Ms Dartnell claimed that she had been given every opportunity to read, speak about and understand the draft Agreement in order to enable her to vote for or against the Agreement on its own merits. Employees had been given the opportunity to visually and orally compare the old enterprise agreement with the draft Agreement. She had been given all the information she needed to confidently cast her vote.

SUBMISSIONS

For the Union

[66] In a written outline of submissions, the Union put that the Agreement had not been genuinely agreed to by the employees to be covered by it, as the applicant had failed to take all reasonable steps to comply with s 180(2) of the Act; See: Re McDonald’s Australia Pty Ltd (2010) 196 IR 155 (‘McDonald’s’); and NTEU v University of New South Wales (2011) 210 IR 244 (‘NTEU v UNSW’). It had not given a copy of the draft Agreement to employees. While it had provided a few copies of the Agreement in managers’ offices on site, it had failed to provide access to the written text of the Agreement throughout the seven day access period. Any employee who was not on site for the full duration of the access period was denied access throughout the access period. Further, any employee who was absent for the entirety of the period between 27 May and 2 June 2014 was completely denied access to the Agreement.

[67] The Union further submitted that the applicant’s insistence that employees could only access the Agreement during their breaks or outside of their shifts constituted an effective denial of access to employees working 12 hours shifts with limited breaks. It would have been open to the applicant to email a copy of the draft Agreement to employees, or provide copies of the text of the Agreement directly to employees or to invite employees to ask for a copy of the Agreement to be posted to them.

[68] The Union claimed that the applicant had also breached s 181(2) of the Act in that the NoERR given to employees did not set out the prescribed content in s 174(1A), r 2.5 and Schedule 2.1 of the Fair Work Regulations 2009 in that it did not set out the name of the proposed enterprise agreement. This was a substantive issue as the applicant had been simultaneously bargaining for two agreements with similar names.

[69] The Union further submitted that cl 3.5.2 of the Agreement contravened s 55 of the Act in that it excluded the operation of s 117 of the Act, entitling employees to three weeks’ notice on termination of employment

[70] In oral submissions, Ms E Douglas put that the defect in the NoERR led to it being misleading to employees who could not be sure of the scope of the two agreements being negotiated by the applicant. The title of the Agreement provided an indication as to which set of negotiations was relevant to them.

[71] Ms Douglas observed that it was not contested that the applicant had not provided a copy of the Agreement to the relevant employees. The question before the Commission was whether the limited steps taken by the applicant to provide access to employees were reasonable in the circumstances, or whether some different or additional action should have been taken. The relevant workplace involved fly-in/fly-out workers with approximately one third of the workplace not on site at any one time. Additionally, there were reports from employees at the Karntama site that they had had access to the Agreement further restricted.

[72] Ms Douglas drew attention to the evidence of Mr Swift that he had sought clarification on whether employees could access the text of the draft Agreement during their working hours, in addition to during breaks and after shifts. This was consistent with the evidence of employees that there was uncertainty as to this question. The relevant employees were on 12 hour shifts and Ms Dunkerley had given evidence that employees were under pressure and often worked overtime to finish their work. It could not really be said that they had free access to the Agreement.

[73] Ms Douglas relied on Ms Dunkerley’s evidence that Mr Jiminez, the Catering Manager at Karntama, had told employees that they were not permitted access to the Agreement during their shift. Mr Swift had not been present when Mr Jiminez had directed employees as to access and Mr Jiminez had not been called to give evidence in the proceeding. Ms Dunkerley had asked for time to read the Agreement properly, as English was her second language. In contrast, Mr Fordham, who had a different manager as a Maintenance Utility, needed two hours to read it properly. While the statement of Ms Dartnell disclosed that she had had sufficient time to view the Agreement, it was unclear as to what site she worked at, or what her occupation was. None of the other employee witnesses for the applicant were from Karntama.

[74] Ms Douglas said that evidence of Mr Fordham demonstrated a larger problem in relation to employees who were absent from site for R&R during the access period. While the applicant, through its managers, had contacted employees on certain types of pre-booked leave to let them know that they could access a copy of the Agreement at an office in Brisbane or Perth, Mr Fordham, who was away from the site for six of the seven days of the access period, was not extended this offer. This was not reasonable at a site on which, at any given time, 30% of the workforce was on R&R leave.

[75] Ms Douglas questioned the applicant’s need for secrecy. While Ms Briscoe had given evidence that the reason was because the applicant was tendering for contracts, the reality was that the applicant tendered for contracts all year round. Given that Ms Briscoe had confirmed that the employees were free to take notes, there was no real safeguard against employees leaking details of the Agreement to the applicant’s competitors. In any event, if the Agreement was approved, it would be publicly available on the Commission’s website.

[76] Finally, Ms Douglas noted that only 37% of the relevant employees had voted to approve the Agreement and only 51% of those who had cast a valid vote had voted to approve the Agreement. The Union had actively campaigned against the approval of the Agreement.

For the applicant

[77] In a written outline of submissions, Dibbs Barker, Solicitors put that the Agreement had been genuinely agreed to by the employees who are to be covered by the Agreement in accordance with s 188 of the Act. While the applicant had not given the relevant employees a personal copy of the written text of the Agreement, it had complied with s 180(2) of the Act by providing the relevant employees with access to the Agreement; See: J & D Rigging Pty Ltd re J & D Rigging Pty Ltd Enterprise Agreement 2011[2011] FWAA 1653 at paras [86]-[87].

[78] The applicant put that the evidence of Ms Briscoe, Ms Weir and Mr Swift demonstrated that the applicant had taken all reasonable steps, in the context of its business interests and the practical operations at remote worksites, to provide the relevant employees with the text of the proposed Agreement. At least five copies were to be held in the offices of the Village Manager, Housekeeping Manager and Catering Manager (at large sites) or the Village Manager (at small sites). Employees had access during the opening hours of each of those offices.

[79] The applicant submitted that s 180(2) of the Act did not require that all of the relevant employees have access to the text of the proposed Agreement in the same manner or that all of the relevant employees had actually had access to the text of the Agreement. The allegation that some employees were denied access to the Agreement was denied and the correspondence from the applicant to its employees had not set out that the access was restricted to meal breaks or while employees were not on shift, as alleged by the Union. The instructions to the applicant’s managers had also expressly set out that access was not restricted to these times. Even if such a restriction had been imposed by the applicant, it would still have been consistent with s 180(2). It was noted that the concerns raised by Mr Fordham in early May 2014 were withdrawn in an email of 15 May 2014. He had been aware of the availability of copies of the Agreement in the Catering Manager’s office and he had availed himself of this opportunity.

[80] The applicant said that at larger sites like Karntama, there was ‘invariably’ at least one office open in which the employees could view the relevant documents during their shift. In any event, the word ‘throughout’ in s 180(2) does not require that the relevant employees have access for the entirety of the access period; See: Nestle Australia Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2009] FWA 1378 (‘Nestle v AMWU’).

[81] The applicant did not accept that employees, who were not on site for the whole duration of the access period, had been denied access to the Agreement. All employees had been emailed with the relevant details. Any employees that the applicant had become aware of who had not received the email had been further contacted by text message or phone call. These employees could have contacted the applicant to make alternative arrangements, if necessary.

[82] The applicant submitted that the test of whether ‘all reasonable steps’ have been taken for the purposes of s 180(2) does not require an assessment of whether the steps taken could have been ‘more reasonable’ or ‘more acceptable’: See: NTEU v UNSW.

[83] The applicant said that the NoERR issued by the applicant met the requirements of s 174(1A) of the Act and r 2.05 of the Fair Work Regulations 2009. It was acknowledged that the Notice did not set out the precise name of the proposed enterprise agreement and that at the time, the applicant was bargaining for another enterprise agreement, being the Morris Corporation (WA) Pty Ltd Enterprise Agreement 2014. The Union had been aware of these circumstances. In any event, the Act and the Regulations did not require the precise name to be provided in the Notice, except for the form provided for in Sch 2.1 of the Regulations. Alternatively, the applicant submitted that the absence of the specific title did not render the notice invalid. The Union’s submissions would have the effect that bargaining could not commence until a name for the proposed agreement has been determined and that it could not change later in the bargaining process. This was inconsistent with the objects of the Act.

[84] The applicant put that an omission from the NoERR which did not affect an employee’s entitlement to bargain, would not invalidate the notice. The notice issued by the applicant did not prejudice, effect or limit the entitlement of an employee to appoint a bargaining representative or to be notified of that entitlement; See: Melian Transport Pty Ltd [2012] FWA 8975; Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 9512; Galintel Rolling Mills Pty Ltd t/a The Graham Group (Galintel) [2011] FWAFB 6772; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Inghams Enterprises Pty Ltd[2011] FWAFB 6106.

[85] The applicant asserted that neither the Union nor any other bargaining representative had raised any issue of confusion arising from the NoERR as to the particular agreement being bargained for. It was clearly understood by the relevant employees and a number of them had taken the step of nominating bargaining representatives, in accordance with the Act; See: Racing Queensland Limited [2012] FWA 6290.

[86] The applicant acknowledged that it could be argued that cl 1.5.2 of the Agreement did not to provide for the minimum period of notice for termination. It was noted that cl 1.4.3 set out that nothing in the Agreement was intended to exclude the operation of the NES. In any event, the applicant had lodged an undertaking to expressly state that the clause operated in accordance with the s 117 of the Act. The undertaking should be accepted by the Commission in accordance with s 190 of the Act.

[87] In further written submissions, Ms S Moody of Counsel addressed the Union’s objections on the basis of s 180(2) of the Act. She noted that after the first vote had been unsuccessful, the applicant’s HR team emailed its managers with specific instructions that the Agreement must be available in the relevant offices and specified that this was not restricted to meal breaks, as employees could use whatever time they believed was suitable. Mr Moeahu and Mr Swift had given evidence that they had clearly instructed their teams to this effect. The HR Team had also sent an email to all relevant employees on 26 May 2014 setting out that employees could access copies of the Agreement at the offices of their relevant managers.

[88] Ms Moody described the arrangements for access to the draft copies of the Agreement between 27 May and 5 June 2014. In each relevant office, five copies of the Agreement were available for access, at any time during the manager’s office hours. An instruction sheet, which set out that the employee was to sign the relevant copy of the draft Agreement ‘in and out’ using a register maintained by the manager. The Agreement was required to be kept in the office area. It could not be copied or distributed. All of the employees were able to access the document, at some point, during their hours of work.

[89] Ms Moody put that the employees had been reminded of their ability to access the Agreement at pre-start and Toolbox meetings between 27 May and 5 May 2014. While some employees were absent during this period, the evidence of Ms Briscoe was that the applicant had been willing to make alternative arrangements if requested, although no requests had been made. Ten employees were absent due to planned leave and a number of others were absent for reasons of unplanned leave. The applicant could not have reasonably identified the latter group prior to the access period and all of the first group were contacted by the applicant. Seven of these employees were contacted by Mr Moeahu and none of them requested alternative access arrangements.

[90] Ms Moody noted that the applicant’s HR team had sent text messages to 45 employees, in identical terms, whose email addresses had returned as incorrect or for whom the applicant did not have email addresses, which detailed the access arrangements. The few who did not have email addresses or phone numbers were sent letters or hand delivered notices. Ms Moody noted that the applicant had held information sessions, barbeques and Q&A sessions, some of which were paid stop work meetings. Copies of the Agreement were available at these sessions.

[91] Ms Moody submitted that the applicant had validly decided to provide access to the Agreement, in accordance with s 180(2)(b), rather than copies of the Agreement, in accordance with s 180(2)(a) due to the commercial sensitivity of the document in the context of it securing contracts through tendering processes. A competitor having knowledge of the applicant’s labour costs could have undermined the applicant’s ability to tender successfully for work at that time.

[92] Ms Moody examined the meaning of the expression ‘all reasonable steps’ for the purposes of s 180(2)(b) of the Act and put that the applicant was not required to definitively establish that all employees had access to the Agreement. ‘Reasonableness’ in this context should be considered in the context of the circumstances of the workplace of the employer and its workforce. The phrase ‘all reasonable steps’ should be read as meaning that it may be necessary, in particular circumstances, for the employer to take multiple steps, rather than a single step, because a given step may be reasonable in relation to one group of employees, but not for a second group; See: McDonald’s Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association [2010] FWAFB 4602 and University of New South Wales[2010] FWAA 9588; Glen Eden Thoroughbreds Pty Ltd t/as Ray White Shailer Park [2010] FWA 7217; and NTEU v UNSW. Ms Moody claimed that the submission of the Union that access was not available to all employees during work hours, was based on unsatisfactory evidence. It should be rejected.

[93] In oral submissions, Ms Moody put that ss 180(2)(a) and (b) are true alternatives and there should be no adverse inference drawn against the applicant because it decided to comply with s 180(2) by way of sub-section (b). The applicant had decided not to provide a copy of the Agreement in accordance with s 180(2)(a) due to ‘commercial in confidence’ issues arising from the proposed Agreement. Ms Briscoe’s evidence was that the applicant had been tendering for three contracts, at the relevant time, based on the draft rates in the Agreement. A competitor, aware of these rates, would have been able to accurately predict the tender price.

[94] While Ms Moody acknowledged that the rates would eventually be published on the Commission’s website after the approval of the Agreement, this did not alter the confidential nature of that information prior to approval. It would also have been imprudent to fully state the reasons for the confidential nature of the rates to the employees. While employees had been allowed to take notes, this had come down to a risk management decision. No adverse inference should be drawn against the applicant for its attempts to keep the information confidential.

[95] Ms Moody submitted that the proper construction of s 180(2)(b) required reasonable steps to be taken to provide access to the Agreement to all relevant employees. The applicant was not required to definitively demonstrate that all employees actually had access to the Agreement. A determination of the ‘reasonableness’ of the steps taken by the applicant should take into account the individual circumstances of the applicant and its workforce. While it may be necessary to take multiple steps, it was not necessary to identify all steps that could be said to be reasonable and comply with every one of these; See: NTEU v UNSW. This should be contrasted with the incorrect and higher test put forward by the Union, that the Commission should look at other steps that the applicant did not take.

[96] Ms Moody said that there was some confusion in the evidence of Mr Fordham and Ms Dunkerley as to what facts related to which access period. The instruction to site managers prior to the second access period (leading up to the successful vote) had expressly stated that access to the Agreement and voting was not restricted to meal breaks. Both Village Managers at the Karntama site (Mr Moeahu and Mr Swift) had given evidence that they received this direction by email and that the direction was passed on to the other managers at the site, including Mr Jiminez. It was unclear whether the comment attributed to Mr Jiminez by Ms Dunkerley had occurred during the first or second access period. Ms Dunkerley had acknowledged that during the second access period, she had been allowed to read the Agreement during her shift or afterwards.

[97] Ms Moody addressed the Union’s objection as to access to the text of the Agreement for those employees who were offsite, but noted that there was no evidence that any individual had wanted to access the text of the Agreement, but had been unable to do so. There was a distinction between the employees who had planned leave and who were contacted. There was a further group whose leave was not known or predicted, but the email and text of the information as to access, constituted reasonable steps to ensure access. Ms Moody added that there was no evidence to support the Union’s submission that at any given time, 30% of the workforce were not on site.

[98] In reply, Ms Douglas stressed that the evidence of Ms Dunkerley was that she had not been allowed to take the Agreement to her room to read thoroughly, in addition to her evidence that Mr Jiminez had told her that she could only access the Agreement during her break or after her shift. The applicant had not called Mr Jiminez to give evidence and Ms Dunkerley’s evidence on this issue was therefore uncontradicted.

CONSIDERATION

Invalidity of the Notice of Representational Rights

Relevant legislative provisions

[99] Section 173(1) of the Act required that an employer who will be covered by a proposed enterprise agreement to take all reasonable steps to give notice of the right to be represented by a bargaining representative, to each employee who will be covered by the agreement and who is employed at the notification time. The notice must be given as soon as practicable, and not later than 14 days after the notification for the agreement, and is not required to be given if the employer has already given a notice within a reasonable period before the notification time. The various means in which the notice may be given are provided in Regulation 2.04of the Fair Work Regulations 2009 (the Regulations).

[100] The content of the notice is prescribed in s 174 of the Act and, by virtue of s 174(6) the regulations may prescribe other matters relating to the content or form of the notice and manner in which it may be given. Section 174 of the Act provides as follows:

‘174 Content and form of notice of employee representational rights

Application of this section

(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.

Notice requirements

(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), the regulations must ensure that the notice complies with this section.

Content of notice—employee may appoint a bargaining representative

(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:

(a) in bargaining for the agreement; and

(b) in a matter before the FWC that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low-paid authorisation is in operation

(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given

(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).’

[101] Pursuant to s 176(1)(b) of the Act, an employee organisation of which an employee is a member, is a bargaining representative for the agreement unless the employee has appointed another person or has revoked the appointment. Regulation 2.05 prescribes the form of notice of employee representational rights as set out in Schedule 2.1, as follows:

‘Schedule 2.1—Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174(6)

[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].

What is an enterprise agreement?

An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, Fair Work Commission.

If you are an employee who would be covered by the proposed agreement:

You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before Fair Work Commission about bargaining for the agreement.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

[If the agreement is not an agreement for which a low-paid authorisation applies—include:]

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.

[If a low-paid authorisation applies to the agreement—include:]

Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation.

[if the employee is covered by an individual agreement-based transitional instrument—include:]

If you are an employee covered by an individual agreement:

If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:

● the nominal expiry date of your existing agreement has passed; or

● a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).

Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Commission Infoline on [insert number].’

[102] Section 181(1) of the Act provides that an employer that will be covered by a proposed enterprise agreement may request employees employed at the time who will be covered, to approve the agreement by voting for it. Section 181(2) provides that such a request must not be made until at least 21 days after the day on which the last notice of employee representational rights under s 173(1) was given. A failure to do so will render the Agreement invalid.

[103] The Union argued that NoERR was invalid because it did not identify the correct title of the Agreement and the employees may have been confused with another Agreement being negotiated at the same time with another group of employees. In my view, this submission is misconceived for the following reasons.

[104] Firstly, the statutory purpose of the NoERR is to ensure that employees are informed about how and by whom they may be represented in bargaining and to ensure that their agreement to approve an Agreement is genuine in that such representational rights have been understood and appropriately exercised by them. In my view, the omission or the incorrect title of an Agreement in the preamble to the Notice is incidental and irrelevant to that statutory purpose. Its omission or incorrectness can in no way be viewed as hampering, restricting or confusing the clear statutory purpose of the Notice.

[105] In this respect, I refer to the following extracts from decisions referred to me by the applicant. In Somerville Maintenance Enterprise Agreement 2011 [2011] FWAA 2606, a Full Bench of Fair Work Australia (as the Commission then was) said at para [49]-[54]:

‘[49] An object of the FW Act emphasises “enterprise-level collective bargaining underpinned by simple good faith bargaining obligations” and the objects of Part 2-4 of the FW Act concerning enterprise agreements include providing “a simple, flexible and fair framework that enables collective bargaining in good faith ... for enterprise agreements”26 and enabling “FWA to facilitate good faith bargaining and the making of enterprise agreements, including through ... ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.”

[50] Provisions in Part 2-4 of the FW Act require that an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give the notice of the right to be represented by a bargaining representative to each relevant employee and the employer cannot request the relevant employees to approve the proposed enterprise agreement by voting for it until at least 21 days after the day on which the last notice is given. Further, in order to approve an enterprise agreement, FWA must be satisfied the enterprise agreement has been genuinely agreed to by the employees covered by it and FWA will be so satisfied if it is satisfied the employer, amongst other things, did not request that the relevant employees approve the enterprise agreement until 21 days after giving the last notice of employee representational rights.

[51] A notice of employee representational rights consistent with Schedule 2.1 of the FW Regulations, except for an omission of the type made by Inghams, still notifies the employee in question that they have a right to appoint a bargaining representative. The failure to include the qualification to that right set out in item 2(3) of Schedule 13 of the TPCA Act and the additional paragraph in Schedule 2.1 of the FW Regulations merely means the employee is not notified through the notice that their right to appoint a bargaining representative or for a person to become their bargaining representative is qualified.

[52] The omission does not affect the legislative entitlement of an employee covered by an individual agreement-based transitional instrument to appoint a bargaining representative or for a person to become the bargaining representative of such an employee. That legislative entitlement is governed by item 2(2) of Schedule 13 of the TPCA Act.

[53] Against this background we have come to the view that the legislature did not intend a notice of employee representational rights to be rendered invalid because of an omission of the type made by Inghams. Given the limited effect of the omission and the centrality under the FW Act of a valid notice of employee representational rights to the making and approval of an enterprise agreement, such a conclusion is the most consistent with the attainment of the objects of the FW Act.

[54] Accordingly, we are not persuaded the omission of the qualification in item 2(3) of Schedule 13 of the TPCA Act or the additional paragraph concerning an employee covered by an individual agreement-based transitional instrument from the notice of employee representational rights given by Inghams affected the validity of the notice or was of any consequence for the making and approval of the Somerville Agreement. We dismiss the AMWU’s ground of appeal concerning the notice of employee representational rights [footnotes omitted].’

[106] In Melian Transport, Asbury C (as she then was), after citing the decision above and other Full Bench authorities, said at para [21]

‘[21] These cases indicate that while non-compliance with the provisions of s.173(1) does not necessarily render an agreement void and incapable of approval, the notice of representational rights is directed to ensuring that employees are informed about how they may be represented, and that their approval of an enterprise agreement is genuine in that it is given in circumstances where they have had the opportunity to exercise all of their rights with respect to representation. This is a significant matter about which the Tribunal must be positively satisfied, before approving an agreement.

See also: Bland v CEVA Logistics (Australia) Pty Ltd[2011] FWAFB 6772; Racing Queensland Limited [2012] FWA 6290; Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 9512; Galintel Rolling Mills Pty Ltd t/a The Graham Group (Galintel) [2011] FWAFB 6772.

[107] Secondly, no evidence was adduced by the Union that any employee was confused by the fact that the applicant was negotiating for another enterprise agreement for a different group of employees. Moreover, it is difficult to imagine that one group of employees would find another group of employees’ negotiations to be of any interest or concern, let alone confusing, to their own future Agreement terms and conditions.

[108] Thirdly, the title of an enterprise agreement is obviously a minor and peripheral issue in negotiations. What is plainly more important is the terms and content of the Agreement.

[109] Fourthly, if a failure to precisely identify the title of the Agreement in the NoERR, even before bargaining had begun, renders the Notice invalid, then many Agreements approved under the current legislative regime would fall into this category. This would be utterly inconsistent with the objects of this Part and frankly, just plain nonsense. The silliness of the submission might be seen from the following scenario. Assume the Notice gives a title to a proposed enterprise agreement as the X Industries Agreement 2013 because bargaining commenced in 2013, but the negotiations took longer than expected and went for the best part of 2014. The parties then decide to amend the title of the Agreement to X Industries Agreement 2014. Could it seriously be suggested that the original NoERR was invalid because the date changed? I think not. This further demonstrates that while the title of the Agreement might eventually be different to what is in the NoERR, it is irrelevant to the statutory purposes of the NoERR and the validity of it.

Did the applicant comply with s 180(2)(b) of the Act?

[110] Notwithstanding there was a second vote for the approval of the Agreement and it was narrowly approved by the employees to be covered by it (despite the Union actively campaigning against its approval), it is not appropriate for the Union to take strict technical points to object to the Agreement’s approval; See McDonald’s at para 13. While there may be strict statutory requirements which prevent an agreement’s approval, such as the minimum access period (s 180(2)) and the minimum 21 days from the last date the employees were advised of their representational rights and the vote for the Agreement commencing (s 181(2)). The main focus of the Union’s submissions centred on the discretionary function of the Commission to be satisfied that the employer took all reasonable steps to ensure that:

‘(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.’

such as to be ultimately satisfied that the employees genuinely agreed to the Agreement (s 188). The central question in this case is whether the steps taken by the applicant as outlined in the evidence in respect to sub-section (b) above were reasonable.

[111] To the extent the Union’s submission was to the effect that the Commission identify other steps which the employer may have taken to establish reasonableness (presumably providing an individual copy of the Agreement to each employee), such a submission must be rejected. The test is not whether other steps might have been taken, but is whether the steps taken by the employer were of themselves individually or collectively reasonable. Put another way, the Commission’s powers do not extend to identifying what other steps might have been or should have been taken to meet the threshold of reasonableness.

[112] While the arguments advanced by the applicant as to not providing individual copies of the Agreement to employees, not permitting its copying or photographing, are somewhat tenuous and unrealistic, I accept that there was not the level of restriction imposed on employees as submitted by the Union. I use the words ‘tenuous and unrealistic’ because, firstly, it is difficult to accept that the competitive tendering process would be compromised when, as Ms Douglas put (and which was not seriously refuted), the applicant is continually engaged in the tendering process and once its Agreement and the rates are publicly available, all of its competitors will know the rates it is paying on an ongoing basis.

[113] Secondly, given that employees could take notes of the Agreement, it could be hardly said that a high level of confidentiality could be ensured, or at all. Moreover, one might ask the obvious question, what possible motive (except for an unlikely and elaborate conspiracy) would an employee of the applicant have in revealing his/her rates of pay to a competitor, which might result in the loss of a contract and a loss of the employee’s job?

[114] In any event, Mr Fordham’s evidence was that he was not restricted to reviewing the Agreement in his own time. Nor were there any time limits imposed on how long he spent doing so. Moreover, the only employee who gave evidence that she had been told she could not review the document in work time (Ms Dunkerley) was confusing as to whether the direction related to the first or second access period. In my view, given that she gave evidence of being able to access the Agreement during work time at some point, it seems highly likely to have been during the relevant second access period. Thus, there was no employee evidence of such a direction having been given in respect to the second vote, to which this application relates. Accordingly, Ms Dunkerley’s evidence in this respect is unhelpful and no adverse finding can be made in respect to the failure of the applicant to call Mr Jiminez to give evidence.

[115] Indeed, I find it difficult to accept that on such an important matter, individual managers would have taken it upon themselves to refuse access to the Agreement during work time. This was directly contrary to the Senior Management’s directive and to the evidence of those managers called by the applicant.

[116] It is also significant and corroborative of the applicant’s witness evidence that the email sent from Ms Briony Reeve’s HR Department to all Site Managers on 26 May said, in part:

‘If you are asked why we are being stringent in protecting the document, the reasons is because at this stage it is still only a ‘proposed’ document and we do not want it made public until it is voted up and approved by the Fair Work Commission.

The EA will be available for 10 days in total inclusive of the voting window which will be for 3 day 03 June - 05 June.

Please ensure viewing the EA and/or voting is not restricted to meal breaks, employees can use whatever time they deem suitable to undertake this activity. Employees are receiving communication via email regarding the access period and vote today.

If you or your managers have any questions please feel free to contact me.

I repeat that it was highly improbable that any Site Manager would ignore such express and explicit instructions.

[117] I am further satisfied that the applicant had made arrangements for employees who were not on site during the access period to be made aware of the draft Agreement and encouraged to make arrangements with Management to view the draft. This included direct contact and opportunities to attend the applicant’s offices in Perth and Brisbane. The fact that none of the employees contacted chose to do so, is not a sound basis for submitting that the applicant had not taken ‘reasonable steps’ for access to be arranged. In this regard, I adopt, with respect, the comments of Whelan C at para [49] of Nestle v AMWU as follows:

‘[49] With respect to the employees who were absent on leave, I agree that ideally they should have been sent copies of the relevant documents. It was not unreasonable, however to send them the memo and inform them that they could contact Ms Tiley for copies of the Agreement. The evidence shows that none of them did so. Had they made contact with Ms Tiley and not been offered a copy of the Award that may have been a different matter.’

[118] In addition, the HR Department conducted a number of information sessions/Toolbox meetings during work time at various sites during the access period (See Ms Weir’s evidence at para [36]). Ms Weir also arranged conference calls for employees who were off site or at other sites on 12 - 14 May 2014. It is to be further observed that the undisputed evidence, at least in respect to Karntama, was that five copies of the Agreement were available each in a Village Manager’s office, House Keeping office and Catering office for hours which ensured at least 24 hours a day access to all employees.

[119] Before leaving the question, I cite passages from two authorities. In J & D Rigging Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAA 1653 at paras [86]-[88], SDP Richards said:

‘[86] Section 180(2)(a) of the Act states that an employer must take all reasonable steps to ensure that during the access period of the agreement, the relevant employees employed at the time who will be covered by the agreement are given a copy of the written text of the agreement and any other material incorporated by reference in the agreement. Section 180(2)(b) of the Act provides an alternative to the aforementioned. It requires that the employer must take all reasonable steps to ensure that the relevant employees have access, throughout the access period for the agreement, to a copy of the previously cited materials.

[87] Contrary to the claim by the CFMEU, s.180(2) of the Act does not place an absolute requirement upon the employer to provide a copy of the relevant materials to all employees.

[88] As I have indicated above, Ms Bird's evidence was that following discussions with employee representatives and the BLF a copy of the final proposed agreement was provided to the relevant employees on or about 2 August 2011. Further, Ms Bird's evidence was that she “also ensured that a number of copies of the agreement were also in common areas for the employees to review”.

[89] It appears to me on Ms Bird’s evidence that the Applicant, through Ms Bird’s overall endeavours, discharged the requirements of s.180(2)(a) and/or (b) of the Act.’

[120] In Nestle v AMWU, Whelan Csaid at para [48]:

‘[48] In my view it is not necessary to establish that there were copies of the relevant documents accessible to employees in the canteen at all times during the access period if the employer can show that reasonable steps were taken to ensure this availability. In my view this was done.’

[121] As an aside, I make this further observation. Given that there were two votes of employees for the Agreement in essentially the same terms, it might be logically suggested that the employees had been given far more time to thoughtfully consider their vote than might otherwise be the case. I raise this proposition only in passing, because the process leading up to the first unsuccessful vote is not relevant to the statutory test for the approval of the second vote. Moreover, the applicant did not make this submission, but it seems to me an interesting notion in the context of the meaning of the phrase, ‘all reasonable steps’.

CONCLUSION

[122] For the foregoing reasons and as an objective analysis of the evidence, I am satisfied that the applicant took all reasonable steps to ensure that the relevant employees had access throughout the access period for the Agreement to copies of the proposed Agreement

[123] I accept the undertaking offered by the applicant in respect to clarifying the notice period. For the purpose of s 191(1) of the Act, the undertaking will be taken to be a term of the Agreement. The undertaking is annexed to the Agreement and marked ‘Annexure A’.

[124] There being no other objections to the approval of the Agreement and the Commission is satisfied that all the relevant mandatory requirements have been met, there can be no basis for the Commission to refuse to approve the Agreement (s 186). I formally do so. Pursuant to s 54 of the Act, the Agreement shall operate from 16 October 2014 and have a nominal expiry date of 15 October 2018.

DEPUTY PRESIDENT

Appearances:

Ms S Moody of Counsel instructed by Mr J Hadley, Solicitor and Ms L Daly, Solicitor for the applicant.

Ms E Douglas for the Australian Workers’ Union.

Hearing details:

2014

Sydney/Brisbane/Perth

12, 15 August.

Printed by authority of the Commonwealth Government Printer

[2014] FWCA 7106

9 OCTOBER 2014