OS MCAP Pty Ltd T/A OS MCAP Pty Ltd
[2020] FWC 398
•24 JANUARY 2020
[2020] FWC 398
The attached document replaces the document previously issued with the above code on 24 January 2020.
The document has been edited to replace and/or insert missing words:
Paragraph [1] – replace the “for” with the word “with”.
Paragraph [14(c)] – insert the word “Production” before the word “Agreement”.
Paragraph [50] – insert the words “proposed enterprise agreements” and delete the word “Agreement”.
Paragraph [60] – insert the word “to” before the word “approve”.
Paragraph [62] – insert the word “matters” after the word “additional”.
Paragraph [83(d)] – insert the words “engaged on” before the word “sites”.
Paragraph [113(b)] – insert the word “been” before the word “reasonable”.
Paragraph [129] – insert the word “arising” before the word “under”.
Paragraph [130] – insert the words “proposed enterprise agreements” and delete the word “Agreement”.
Paragraph [160(f)] – insert the word “employees” after the number “16” and delete the word “Agreement”.
Minor typographical errors amended at paragraphs [13(a)], [19], [22], [26(b)], [26(e)], [54], heading of table below [59], [66], [75(f)], [75(g)], table below paragraph [99], [113(d)], [116], [126(a)], [126(b)], [153], [157], and [158].
Associate to Deputy President Boyce
Dated 28 January 2020
| [2020] FWC 398 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
OS MCAP Pty Ltd T/A OS MCAP Pty Ltd
(AG2018/5649)
OS ACPM Pty Ltd T/A OS ACPM Pty Ltd
(AG2018/6025)
DEPUTY PRESIDENT BOYCE | SYDNEY, 24 JANUARY 2020 |
Application for approval of the Operations Services Production Agreement 2018 - Unions a stranger to bargaining – Unions a stranger to workplace – Unions request to be heard generally under s.590 of Fair Work Act 2009 – compliance with s.180(5), all reasonable steps, genuine agreement, better off overall test.
Application for approval of the Operations Services Maintenance Agreement 2018 - Unions a stranger to bargaining – Unions a stranger to workplace – Unions request to be heard generally under s.590 of Fair Work Act 2009 – compliance with s.180(5), all reasonable steps, genuine agreement, better off overall test.
Overview
[1] These reasons are to be read in conjunction with my decisions in [2019] FWCA 8601 and [2019] FWCA 8595.
[2] On 8 October 2018, OS MCAP Pty Ltd (Applicant) filed an application for approval of the Operations Services Production Agreement 2018 (Production Agreement) pursuant to s.185 of the Fair Work Act 2009 (Act). The Production Agreement is a single enterprise agreement.
[3] On 26 October 2018, OS MCAP Pty Ltd (Applicant) filed an application for approval of the Operations Services Maintenance Agreement 2018 (Maintenance Agreement) pursuant to s.185 of the Act. The Maintenance Agreement is a single enterprise agreement.
[4] On 12 February 2019, I made a direction that the applications for approval of the Production Agreement and the Maintenance Agreement were to be heard and determined together.
[5] At the hearing, Mr Ian Neil of Senior Counsel, and Mr Yaseen Shariff of Counsel, instructed by Herbert Smith Freehills lawyers, appeared with permission on behalf of the Applicant. I granted such permission on the basis that the approval of the agreements is hotly contested by relevant unions, who make a smorgasbord of arguments opposing their approval. Given the volume and complexity of such union arguments, I determined that it would be more efficient for the Commission to have the assistance of legal representation on behalf of the Applicant. Permission for the Applicant to be legally represented was not opposed.
The Production Agreement
[6] The Production Agreement has a nominal term of four years, and was made by way of valid majority employee vote on 25 September 2018.
[7] At the time the Production Agreement was made on 25 September 2018, there were 58 relevant employees to be covered by it. Fifty employees cast a valid vote in the approval ballot, with 37 employees voting to approve it (i.e. a 74 percent majority).
[8] In terms of employee voter demographics, 30 were over 45 years of age, 11 were (or were also) female, and six were (or were also) Aboriginal or Torres Strait Islander.
[9] The Production Agreement was made directly with employees. There were no bargaining representatives (union default or otherwise appointed) involved in bargaining on behalf of relevant employees, nor did the Applicant appoint a bargaining representative.
[10] The applicable modern awards for the purposes of the better off overall test (BOOT) are the Mining Industry Award 2010 (Mining Award) and the Black Coal Mining Industry Award 2010 (Coal Award).
[11] The Production Agreement covers the Applicant and its employee Production Technicians (who operate heavy mobile equipment), and Trainees, in coal and non-coal operations. Such coverage applies across the whole of Australia, but excludes sites where a specific site enterprise agreement covers and applies to the Applicant and relevant employees on that site. 1
[12] It is the intention of the Production Agreement that every employee covered by it is better off overall than any relevant modern award that would otherwise apply to them.
[13] The terms and conditions applying under the Production Agreement include:
a) full-time employees’ rostered hours are an average of 35 nominal ordinary hours per week, and rostered additional hours each week. Part-time employees’ ordinary hours shall not exceed 35 hours per week. Each employee receives meal and rest breaks of up to a total of 60 minutes per day;
b) annual salaries for full-time Production Technicians working on coal operations are $105,000 per annum, and $125,000 for non-coal operations, inclusive of payments for rostered hours, rostered additional hours, shift/weekend loadings, annual leave loading, and public holiday loadings. Un-rostered overtime hours are paid at double time (based on annual salary and average hours). Part-time employees receive pro-rata entitlements of full-time employees;
c) rates of pay are between 54.83 percent and 125.84 percent above the corresponding awards. The Agreement also provides for rates of pay for trainees which are 87.72% - 122.6% above the highest rate (AQF Certificate Level IV traineeship, 2nd Year) provided for by the Miscellaneous Award 2010;
d) where rosters change, annual salaries will be paid in respect of the changed roster, calculated using the same principles to calculate the annual salary set out in the Production Agreement, which will always be greater than what would be paid to an employee if the relevant modern award applied to the relevant employee;
e) casual employees receive a 25 percent loading (calculated based upon the annual salary rate of the applicable roster). Casual employees, other than irregular casuals, may apply (four weeks prior to their six-month anniversary) to become permanent full-time or part-time, and the employer must not unreasonably refuse such a request;
f) employees may be engaged on fixed or maximum terms, or for specified tasks;
g) permanent employees receive five weeks annual leave (six weeks for shift-workers), paid at the annual salary rate;
h) other types of leave are essentially in accordance with the National Employment Standards (NES), provided that employees qualify for unpaid parental leave early (i.e. after three months continuous service). All personal carer’s leave is paid at the annual salary rate;
i) eligible employees receive up to 18 weeks paid parental leave and 34 weeks unpaid parental leave, and up to two weeks paid leave for ‘secondary caregivers’;
j) notice of termination is one week for employee resignation, or four weeks for the employer (five weeks if the employee is over 45 years of age). The four-week notice period does not apply if the relevant employee is casual or on probation;
k) redundancy or severance payments are three weeks’ pay per year of completed employment, up to a maximum of 30 weeks (with a minimum payment of four weeks);
l) long service leave accrues and is paid in accordance with applicable legislation; and
m) superannuation contributions are paid in accordance with the Superannuation Guarantee (Administration) Act 1992, and employee choice of super fund is provided for.
[14] I further note that:
a) the Agreement is silent as to paid and unpaid breaks;
b) clause 9.5 of the Agreement provides that the employer shall determine each employee's start and finish times, shifts and roster cycles. The employer may change an employee's start and finish times, shifts and roster cycles (including the number of hours worked on each shift) and introduce new roster cycles and/or shifts. Majority agreement has been replaced with individual agreement; and
c) the Agreement is silent on the span of hours and maximum hours of work per day, and afternoon and night shift definitions. Schedule 1 in the Production Agreement provides a ‘eight days on, six days off, seven nights on, seven days off’ roster which equates to an average of 46.88 per week. However, ordinary hours per week are 35 hours.
The Maintenance Agreement
[15] The Maintenance Agreement has a nominal term of four years, and was made by way of valid majority employee vote on 13 October 2018.
[16] At the time the Maintenance Agreement was made on 13 October 2018, there were 16 relevant employees to be covered by it. Sixteen employees cast a valid vote in the approval ballot, with nine employees voting to approve it (i.e. a 56.25 percent majority). In terms of employee demographics, three employees who voted were over 45 years of age.
[17] The Maintenance Agreement was made directly with employees. There were no bargaining representatives (union default or otherwise appointed) involved in bargaining on behalf of relevant employees, nor did the Applicant appoint a bargaining representative.
[18] The applicable modern awards for the purposes of the BOOT are the Mining Award and the Coal Award.
[19] The Maintenance Agreement covers the Applicant and its employee “Trade qualified technicians” and “Non-trade qualified technicians”, and apprentices (including adult apprentices), undertaking maintenance work or activities on mining operations (including Port operations in Western Australia that service mining operations). Such coverage applies across the whole of Australia, but excludes sites where a specific site enterprise agreement covers and applies to the Applicant and relevant employees on that site. 2
[20] It is the intention of the Maintenance Agreement that every employee covered by it is better off overall than any relevant modern award that would otherwise apply to them.
[21] The terms and conditions applying under the Maintenance Agreement are essentially the same as has been summarised above in respect of the Production Agreement, provided that the annual salaries for a full-time trade qualified technician is $122,000 per annum, and $105,000 per annum for a full-time non-trade qualified technician.
[22] Rates of pay are between 70.01 percent and 114.76 percent above the corresponding awards. The Agreement provides rates of pay for apprentices which are 45.08 percent to 89.69 percent above the apprentice rates which are contained in each respective award.
Comparison between the Production and Maintenance Agreements, and the Mining and Coal Awards for the purposes of ss 180(5), 180(6), 186(2)(a), 188, 190 and 193 of the Act
[23] Throughout this decision I express various views and opinions, and make relevant findings, as to my satisfaction in respect of ss 180(5), 180(6), 186(2)(a), 188, 190 and 193 of the Act. In this regard, as a prerequisite to, or as part of, making such findings, I am required to undertake a comparison between the terms and conditions under the proposed enterprise agreements, and the Mining and Coal Awards. In this regard, I have assessed the terms and conditions (as summarised at paragraphs [11] and [14], and [19] to [22] above) against each of the Mining and Coal Award terms and conditions.
[24] I summarise the Award terms and conditions in the following table:
General Term | Coal Award | Mining Award |
Hours | Average 35 ordinary hours per week over a roster cycle (Roster cycle to be determined by employer). Maximum 10 ordinary hours per shift, except with majority agreement. Schedule B- Staff employees may agree to average overtime payments over a defined period (see clause17.5). | Day Workers 6:00am to 6:00pm, Monday to Sunday, 38 hours per week, max 10 hours per day (by agreement a maximum of 12 hours). Shift-workers On any or all days of the week, up to 10 consecutive hours. |
Part-time employees | Works an average of fewer than 35 ordinary hours per week and has reasonably predictable hours of work. Pro-rata pay and conditions. Regular pattern of work (including hours/days worked, start/finishing times) agreed upon commencement. Variations by written agreement. Time worked in excess of agreed hours- overtime. | Engaged to work an average of fewer than 38 ordinary hours per week. All time worked in excess of agreed hours: overtime rates. |
Casual employees | For ordinary hours- 125%- min 4 hour pay. Only Schedule B- Staff employees can be hired as casuals. | 125% |
Shift penalties | Afternoon shift means any shift, the ordinary hours of which finish after 6:00pm and at or before midnight. Night Shift means any shift, the ordinary hours of which finish after midnight and at or before 8:00am. For employees other than six- or seven-day roster employees, overtime hours worked on shift will be paid at overtime rates. Afternoon and rotating night shift. Ordinary hours (all employees) at 115%. Overtime for six- or seven-day roster employees: overtime rate plus 15% of ordinary time rate (165% where overtime rate is 150%, 215% where overtime rates is 200%). All others paid at overtime rates. Permanent night shift. Ordinary hours (all employees) at 125%. Overtime for six- or seven-day roster employees: overtime rate plus 25% of ordinary time rate (175% where overtime rate is 150%, 225% where overtime rates is 200%). All others paid at overtime rates. | Afternoon shift means any shift finishing after 7:00pm and at or before midnight at 115%. |
Weekend penalties | All ordinary hours worked by employees: Saturday at 150% first four hours, then 200% thereafter. Sunday at 200%. | Saturday (before 12:00pm) at 150% for the first three hours), and 200% for all subsequent hours. |
Public holidays | Ordinary hours at 200%. Overtime hours at 300%. | 250% (ordinary and overtime). |
Overtime | Overtime is defined as all time worked in excess of/outside ordinary hours of any shift. Monday to Friday at 150% first three hours, then 200% thereafter. Saturday at 150% for the first three hours, then 200% thereafter Minimum three hrs. Sunday at 200%. Minimum three hrs. Six- or seven-day roster and weekend shift workers employees. All time worked in excess of or outside the ordinary hours is paid at 200%. Minimum three hours overtime on Saturday and/or Sunday for non-continuous hours. | For all work done in addition to their ordinary hours: Day Worker |
Annual leave loading | Higher of 20% or overtime/public holiday penalties (and shift penalties for seven-day shift workers). | Amount the employee would have been paid for working ordinary hours during the period of annual leave, including loadings, penalties and allowances paid for all purposes or 17.5%, whichever is greater. |
Allowances | See Clause 19. | See Clause 14. |
Production Agreement – Applicant’s evidence
[25] The Applicant relies upon the following evidence in support of the approval of the Production Agreement:
a) Form F16, dated 8 October 2018;
b) Form F17, executed by Mr Michael Hoare (Manager Employee Relations of the Applicant), dated 8 October 2018; and
c) Statement of Ms Jasmine Veaney (Mining Production Superintendent), dated 4 April 2019 (Veaney Statement).
[26] The foregoing evidence relevantly identifies that:
a) bargaining for the Production Agreement was initiated by the Applicant on 21 August 2018;
b) initial employee briefing sessions were held with relevant employees between 21 to 23 August 2018, and on 25 August 2018. At this time relevant employees were issued with the Notice Of Employee Representational rights (NERR), along with various other documents identified at paragraph [6] of the Veaney’s Statement (Production Explanatory Materials); 3
c) the two employees who did not, or were unable to, attend the initial briefing sessions were both sent the Production Explanatory Materials via their personal email accounts on 29 August 2018; 4
d) further briefing sessions of relevant employees were held in September 2018, at which time Production Explanatory Materials were again issued to relevant employees, along with additional documents setting out the voting process. 5 Ms Veaney evidence is that at these further briefing sessions:
“ … the purpose of each of the documents provided to employees (being the Production Explanatory Materials and the voting documents) were explained [to relevant employees in attendance] and the whole of the Production Explanatory Note was read aloud”. 6
(my emphasis)
e) four employees were unable to attend the briefing sessions. All of these employees were issued with the Production Explanatory Materials and the voting documents upon their return to site or via email. 7 Two of these employees had telephone discussions about the materials (being discussions consistent with the further briefing sessions). One employee who was overseas was sent a text message asking him to make contact if he had any questions. All of this occurred between 13 and 15 September 2018;8
f) one-on-one discussions were also held with relevant available employees in September 2018 (there is no evidence of the content of these one-on-one discussions); 9
g) relevant employees were spoken to on site about the terms of the proposed enterprise agreement and the voting process (there is no evidence of the content of these discussions); 10
h) voting on the Production Agreement was open between 6.00am on 24 September 2018 and 4.00pm 25 September 2018. The voting process was conducted by an external third party. The Production Agreement was approved by way of valid majority employee vote on 25 September 2018; and
i) between 21 August 2018 (when bargaining was initiated) and 24 September 2018 (when voting on the Production Agreement opened) there are 34 days. The evidence reveals that relevant employees were in possession of the Production Explanatory Materials (prior to the voting process commencing) for around 26 to 34 days (being around 19 days longer than such explanatory materials are required to be provided to relevant employees under to the “access period” specified by the Act). There is no suggestion that relevant employees did not have an opportunity to ask questions of, or raise issues with, the Applicant in relation to the Production Explanatory Materials during the 34 day period that they were in possession of such materials.
[27] At the time of the vote, relevant production employees who voted on the Production Agreement were engaged to perform production work at Western Australia Iron Ore (WAIO) operations and were performing work that would be covered by the “Non Coal Operations – Production Technician” classification in the Production Agreement. The explanatory note issued to relevant employees explains to them that they may be given opportunities to perform work at other BHP Minerals Australia sites in future, including in coal mining operations (in the classification of “Coal Operations – Production Technician” under the Production Agreement). 11
[28] On the evidence, I am satisfied as to compliance with ss 180(2) and (3), 181(2) and 182(1) of the Act in respect of the Production Agreement.
Maintenance Agreement – Applicant’s evidence
[29] The Applicant relies upon the following evidence in support of the approval of the Maintenance Agreement:
a) Form F16, dated 26 October 2018;
b) Form F17, executed by Mr Hoare, dated 24 October 2018; and
c) Statement of Ms Rebecca Bowler (Field Maintenance Superintendent), dated 4 April 2019 (Bowler Statement).
[30] The foregoing evidence relevantly identifies that:
a) bargaining for the Maintenance Agreement was initiated by the Applicant on 11 September 2018;
b) an initial employee briefing session was held with relevant employees on 11 September 2019. At this time relevant employees were issued with the NERR, along with various other documents identified at paragraph [6] of the Bowler Statement (Maintenance Explanatory Materials); 12
c) five employees who the Applicant identified as not being able to attend the briefing session on 11 September 2018 were emailed the Maintenance Explanatory Materials on 9 September 2018 to their personal email accounts; 13
d) four further briefing sessions of relevant employees were held on 1 and 2 October 2018, at which time Maintenance Explanatory Materials were again issued to relevant employees, along with additional documents setting out the voting process; 14
e) the explanatory note that was issued to relevant employees on 9 and 11 September 2018 (as part of the Maintenance Explanatory Materials) was revised and reissued to relevant employees at these further briefing sessions, and/or via email;
f) ten employees attended one of these further briefing sessions (nine in person, and one via WedEx dial in) 15. The employee who attended via WebEx was also emailed the Maintenance Explanatory Materials (with explanatory note as revised) on 2 October 2018;
g) Ms Bowler’s evidence is that at the further briefing sessions:
“… the purpose of each of the documents in the Maintenance Explanatory Materials was explained, and the whole of the Maintenance Explanatory Note [as revised] was read aloud”; 16
(my emphasis)
h) five employees were unable to attend the briefing sessions in person or via WebEx. All of these employees were issued with the Maintenance Explanatory Materials and the voting documents via email on 2 October 2018. 17 These employees were also sent text messages (to check their emails) on 2 October 2018. Two of these five employees replied to the text message. All five employees were also telephoned, a voice message left for them to tell them about the further briefing sessions, and to remind them to check their emails;18
i) informal discussions were also held by Ms Bowler with some relevant employees between the further briefing sessions and the vote (there is no evidence of the content of these informal discussions); 19
j) relevant employees were spoken to on site about the terms of the proposed enterprise agreement and the voting process (there is no evidence of the content of these discussions); 20
k) voting on the Maintenance Agreement was open between 6.00am on 12 October 2018 and 4.00pm 13 October 2018. The voting process was conducted by an external third party. The Maintenance Agreement was approved by way of valid majority employee vote on 13 October 2018; and
l) between 11 September 2018 (when bargaining was initiated) and 12 October 2018 (when voting on the Maintenance Agreement opened) there are 31 days. The evidence reveals that relevant employees were in possession of the Maintenance Explanatory Materials (prior to the voting process commencing, in original or revised form) for around 31 days (being around 24 days longer than such explanatory materials are required to be provided to relevant employees under to the “access period” specified by the Act). There is no suggestion that relevant employees did not have an opportunity to ask questions of, or raise issues with, the Applicant in relation to the Maintenance Explanatory Materials during the 31 day period that they were in possession of such materials.
[31] At the time of the vote, relevant maintenance employees who voted on the Maintenance Agreement were engaged to perform maintenance work at WAIO operations and were performing work that would be covered by the “non-trades” and “trades” classifications in the Maintenance Agreement. The explanatory note issued to relevant employees explains to them that they may be given opportunities to perform work in coal mining operations into the future. 21
[32] On the evidence, I am satisfied as to compliance with ss 180(2) and (3), 181(2) and 182(1) of the Act in respect of the Maintenance Agreement.
Consideration of Explanatory Materials issued to relevant employees
[33] The Explanatory Materials issued to relevant Production and Maintenance employees follow the same format.
[34] The preliminary letter to relevant employees identifies that the Applicant seeks to make an enterprise agreement with relevant employees that provides for a flexible workplace, as well as rewarding individual effort and performance. It highlights that the enterprise agreement will provide baseline terms and conditions to employees, and underpin individual contracts of employment. The basic message of the letter is that the enterprise agreement will assist in not only providing certainty to baseline conditions of employment from a statutory enforcement perspective, but equally contribute to enabling the Applicant to grow its operations via cooperative workplace relationships directly between the Applicant and its workforce (including its future employees).
[35] One very clear message from the Explanatory Materials is that, as the Applicant’s business and operations expand, employees will likely be given an opportunity to expand their skill and experience base. In this regard, the Applicant’s employees will likely have the opportunity to work not only in, for example, metalliferous (e.g. iron ore) operations, but coal operations. Should such an opportunity occur, individual employees will obtain experience across both of those two industries, not only broadening and enhancing their skill and experience base with the Applicant, but broadening their horizons to apply for and/or gain employment with other employers in either of these industries into the future. At its core, the Applicant’s offering to employees in this regard has inherent value (in both monetary, and common sense non-monetary terms (such as improved future employability)).
[36] In addition to the preliminary letter, the Explanatory Materials contain copies of:
a) the model consultation and flexibility terms;
b) the proposed enterprise agreement;
c) an employee question and answer document;
d) a detailed explanation of the terms of the enterprise agreement (in easy to read and reconcile table format);
e) a comparison document setting out the differences between and the more and less beneficial terms of the enterprise agreement as compared to the Mining and Coal Awards (again, in easy to read and reconcile table format); and
f) direct extracts from relevant clauses of the Mining and Coal Awards.
[37] The employee question and answers document, in summary, details and explains:
a) the purpose of the NERR, and the enterprise agreement process;
b) the voting process and outcomes;
c) the consultation process and related arrangements;
d) the difference/s between an employee’s existing terms and conditions of employment, and those contained in the proposed enterprise agreements;
e) the terms and conditions of the proposed enterprise agreement;
f) what employees’ will get out of the proposed enterprise agreement;
g) the scope and application of the proposed enterprise agreement (including its application to coal and non-coal operations); and
h) where and how employees obtain further information or make further enquiries.
[38] My overall impression of the Explanatory Materials and related documents provided to relevant employees is that they are easy to read, well structured, and drafted in plain English.
CEPU, AMWU, AWU and CFMMEU each make request to be heard pursuant to s.590 of the Act
[39] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), the Australian Workers’ Union (AWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (collectively, Unions), all made written submissions requesting to be heard in relation to their opposition to the approval of the Production Agreement and/or Maintenance Agreement pursuant to s.590 of the Act.
[40] At the hearing, Mr Stephen Crawshaw of Senior Counsel appeared for the CFMMEU (and was instructed by Ms Eliza Sarlos of same). Ms Yolla Abousleiman appeared for the CEPU. Mr Stephen Crawford appeared for the AWU. Mr Patrick Turner (Solicitor, Maurice Blackburn Layers) appeared for the AMWU. I granted permission for the Unions to be legally represented for the same reasons permission was granted to the Applicant to be legally represented. I note that such permission was not opposed by the Applicant
[41] In consolidated summary, each of the union’s submissions stated that, despite not being a “bargaining representative” 22 for the Production Agreement or the Maintenance Agreement, and despite not having any relevant members employed by the Applicant (at the relevant time of bargaining and voting):
a) the Commission has a wide discretion under s.590 of the Act to grant a union’s request to be heard in enterprise agreement approval proceedings, and has granted such a request on many occasions in the past (including in matters involving one or more of the Unions);
b) the discretion under s.590 of the Act does not require “unusual features” or “special circumstances” for it to be exercised. Rather, it ought be exercised having regard to the Object of the Act, the Objects of Part 2-4 of the Act, the decision of the Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v Collinsville Coal Operations Pty Ltd, 23 and s.577 of the Act;
c) the Unions have a history of involvement and expert knowledge in respect of the approval of enterprise agreements before the Commission, especially where the reference instrument for the better off overall test is the Mining Award and/or the Coal Award;
d) the Unions have coverage, under each of their respective Rules, 24 of production and maintenance/engineering employees in the mining and coal industries, and have many members working in such industries. To this end, the Unions have legitimate interests in respect of matters that come before the Commission concerning the mining and coal industries;
e) the Unions have an extensive history representing the industrial interests of their members in the mining and coal industries;
f) the Unions are covered by various enterprise agreements in the mining and coal industries, and have many members working under such enterprise agreements;
g) the Unions were involved in the award modernisation process that led to the creation of the Mining Award and the Coal Award;
h) the Unions were involved in the various award review hearings concerning the Mining Award and the Coal Award;
i) the Unions will have standing to appeal any decision made to approve the proposed enterprise agreements, hence, they ought be heard at this stage of proceedings; and
j) the holding company for the Applicant is BHPBilliton Pty Ltd, being a well known mining company, and a related entity to the BHPBilliton Mitsubishi Alliance (BMA), which is engaged in or conducts major coal operations and other mining (including coal mining) ventures across Australia. The union/s are covered by enterprise agreements covering employees of entities (including related entities) who work at various BMA mine sites.
[42] Having regard to the foregoing, the Unions broadly submitted that it is appropriate that they be allowed to be heard and involved in these matters for three reasons. Firstly, to assist the Commission in its role of being satisfied that it can approve the proposed enterprise agreements. Secondly, as a contradictor to enable the scrutiny that comes with a contested hearing to occur. Thirdly, to give the Commission the benefit of the concerns the Unions have raised in respect of the approval of the proposed enterprise agreements.
Applicant opposes unions’ request to be heard pursuant to s.590 of the Act
[43] The Applicant opposed the Unions’ request to be heard under s.590 of the Act. In this regard, the Applicant submitted:
a) the Unions accept that they were not bargaining representatives for the Production Agreement or the Maintenance Agreement;
b) the Unions bring no evidence of any membership with the Applicant, or any involvement (whatsoever) in the Applicant’s enterprise;
c) in view of (a) and (b), the Unions are strangers, not only in respect of the bargaining and the making of the proposed enterprise agreements, but at the Applicant’s workplace/s;
d) employees voted to approve the proposed enterprise agreements;
e) the proposed enterprise agreements do not alter or interfere with the Unions’ rights to represent employees covered by the them, and do not affect an employee’s right to choose to become a member of the relevant union/s;
f) approval of the proposed enterprise agreements will not affect union rights to participate in bargaining for future enterprise agreements, or the Unions’ relevant rights to represent employees in the mining and/or coal industries;
g) the nature of the issues raised by the Unions need to be addressed by the Commission as part of the approval process in any event, as occurs in other enterprise agreement approval proceedings almost daily;
h) the Commission can determine whether to approve the proposed enterprise agreements absent a contender or third-party intervener;
i) the Unions have not identified any specific knowledge as to the Applicant’s workplace, or actual knowledge of the bargaining or making of the proposed enterprise agreements;
j) just because a union might have standing to appeal a decision does not mean that a request to be heard ought be granted at first instance; 25 and
k) the fact that the Unions may represent employees into the future who are their members does not, of itself, warrant the exercise of the discretion in favour of granting a union’s request to be heard under s.590 of the Act.
Consideration of unions’ request to be heard pursuant to s.590 of the Act
[44] The following sets out the matters I have taken into account and had regard to in making my discretionary determination on the Unions’ request to be heard in these proceedings pursuant to s.590 of the Act.
[45] In CFMEU v Collinsville Coal Operations Pty Limited,26the Full Bench of the Commission stated the following in respect of s.590 of the Act (in the context of the Commission’s enterprise agreement role):
“[65] In our view the right, interest or legitimate expectation that is said to be affected by application of the kind before the Senior Deputy President must be identified and understood against the framework of enterprise bargaining and agreement making established by the FW Act. It is not enough, without more, to point to the status of the CFMEU as an employee organisation with a history of representation at the workplace or in the industry. Moreover, this is not a case where some of the members of the CFMEU voted against the approval of the Agreement or did not vote at all. All of the employees covered by the Agreement voted, and all of those employees (including Employee 2) voted in favour of approving the Agreement
…
[75] We would make the observation however, that the Commission may choose, in a particular case, to hear from an employee organisation or any other person about the approval of an agreement even though the organisation or person may not otherwise have a right to be heard. The Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submissions from a person of organisation”. 27
[46] In Macmahon Contractors Pty Ltd, 28 Commissioner Williams stated:
“The benefit of a union acting as a contradictor will depend on the particular circumstances of the case and will involve in each case a judgement by the Commission. The absence of a contradictor would be the most common situation the Commission deals with in agreement approval applications and is no way abnormal or in any way inconsistent with the scheme of the Act. This absence of a contradictor of itself is not sufficient reason for the Commission to exercise its discretion and allow a union, that was a stranger to the bargaining process, to be heard over the objections of one or more of the parties to the Agreement”. 29
[47] In CFMEU v MGI Piling (NSW) Pty Ltd, 30 the Full Bench stated:
“In Collinsville, the Full Bench made clear that:
• An enterprise agreement may confer or deal with the rights and obligations of an employee organisation vis-a-vis the employees and a new agreement might displace or alter those rights and obligations. Account should be taken of such matters in deciding whether a union (which is not a bargaining representative) has a right to be heard in relation to an application for approval of an enterprise agreement; and
• The right, interest or legitimate expectation that is said to be affected by an application to approve an enterprise agreement must be identified and understood against the framework of enterprise bargaining and agreement making established by the Act”. 31
[48] The fact that a union simply has coverage, experience, knowledge and/or an interest in an industry is not, in my view, a prima face (let alone a sufficient) platform upon which to grant a request to be heard under s.590 of the Act. Certainly, as far as the s.590 requests being made by the Unions to be heard in these proceedings, in weighing the exercise of my discretion, I consider these factors to be no more than neutral considerations.
[49] Indeed, where a person (such as a union) was not a bargaining representative for a proposed enterprise agreement, but in any event requests to be heard in the enterprise agreement approval process (simply because they have coverage under their Rules, experience, knowledge and/or an interest in an industry (and, inter alia, a purported interest in workplaces in that industry)), it almost becomes counterintuitive to grant such a request on the basis of those matters alone. I say this in circumstances where the Act already delineates the extent of union representation in collective bargaining (including via a wide range bestowed statutory privileges). 32 However, these privileges do not lend to an a priori right to appear in enterprise agreement approvals where the union has not been a bargaining representative. Compare, for example, s.34(2) of the Industrial Relations Act 1996 (NSW), which reads:
“(2) At proceedings of the Commission relating to any such application for approval, the following may appear or be represented:
(a) any party to the agreement,
(b) an industrial organisation, if its members or persons eligible to become members are affected by the agreement,
(c) a State peak council (but only with leave of the Commission),
(d) the President of the Anti-Discrimination Board (but only with leave of the Commission)”.
(my emphasis)
[50] The Unions were never a bargaining representative (i.e. even a default bargaining representative) in relation to the negotiation and making of the proposed enterprise agreements. The Unions therefore do not have a statutory right to appear and/or be heard in relation to these applications for approval of the proposed enterprise agreements.
[51] The Unions have never asserted that they have had any previous involvement or history of involvement at the Applicant’s workplace/s.
[52] It is therefore apparent, on the evidence before the Commission in these proceedings, that the Unions are not only strangers to these enterprise agreement approval proceedings, but strangers to the Applicant’s enterprise and workplace/s.
[53] The fact that the holding company for the Applicant is BHPBilliton Pty Ltd, being a related entity to BMA (or other BHP entities), is for me, no more than a neutral consideration. In this regard, the Act specifically provides that national system employers may make single enterprise agreements with relevant national system employees. There is no requirement for me to directly consider corporate structures or associations, especially in the circumstances of this case where there is no evidence that gives rise to any foundation or other basis to make such inquiries or consider same. Indeed, it is trite to say that the basic premise of the Act’s enterprise bargaining regime is that different employers will enter into enterprise agreements that suit their individual workplaces, with terms and conditions that are different (i.e. that employees will collectively agree (by way of valid majority vote) to different (sometimes vastly different) terms and conditions of employment at different individual workplaces). The fact that a person or persons have a view or views that one enterprise agreement is better or worse than another has never been part of the tests that the Commission is required to apply in approving an enterprise or collective agreement under the statutory regime, or in exercising a discretion to grant a request to be heard or involved in enterprise agreement approval proceedings (pursuant to s.590 of the Act, or otherwise).
CFMMEU request to cross-examine Applicant’s witnesses
[54] The CFMMEU sought permission to cross-examine the Applicant’s witnesses. Effectively, the CFMMEU sought ‘at large’ involvement in the proceedings (i.e. making written submissions, being heard orally at the hearing, and being able to cross-examine the Applicant’s witnesses or statutory declaration deponents). The CFMMEU’s request was supported by the other unions.
[55] By way of written submissions dated 18 April 2019, the CFMMEU submitted (in summary) that it ought be provided with the opportunity to “briefly” cross-examine the Applicant’s witnesses on the basis of procedural fairness, that such cross-examination will ensure that the decision made by the Commission is “fair”, and that such cross-examination will assist the Commission in its determination as to whether to approve or not approve the proposed enterprise agreements.
[56] The topics the CFMMEU sought to cross-examine the Applicant’s witnesses on were:
a) relevant employees’ experience and familiarity with the black coal mining industry;
b) the extent to which working conditions under the Mining and Coal Awards would be changed by the Mining and Production Agreements; and
c) whether reasonable steps were taken to explain the terms and the effect of the terms of the Mining and Production Agreements having regard to the number of voting employees being absent across the relevant period in respect of the Maintenance Agreement.
[57] By way of written submissions dated 2 May 2019, the Applicant opposed the CFMMEU’s request to cross-examine its witnesses on the following (in summary) basis:
a) relevant employees’ experience and familiarity with the black coal mining industry is not a relevant consideration in these proceedings;
b) the extent to which working conditions under the Mining and Coal Awards would be changed by the Mining and Production Agreements has been dealt with by way of written submissions;
c) whether reasonable steps were taken to explain the terms and the effect of the terms of the Mining and Production Agreements to relevant employees has been dealt with by way of written submissions;
d) despite directions and every opportunity to do so, neither the CFMMEU, nor the other unions, have filed any evidence in these proceedings. In this regard, there is no contrary evidence that the Commission can consider notwithstanding issues or concerns that might arise out of cross-examination;
e) it is up to the Commission to reach the requisite state of satisfaction to approve the proposed enterprise agreements. This does not require a stranger, both to the bargaining process and the making of the proposed enterprise agreements, to test evidence on the basis that it may assist the Commission in exercising its statutory function. Again, this is especially so where the Unions have filed no evidence in the proceedings;
f) the CFMMEU’s reliance upon principles of procedural fairness are misplaced. Such purported principles are not supported by legal authority. Further, and in any event, such principles ought not be considered in a vacuum. The CFMMEU has had the opportunity to make submissions and put on evidence in these proceedings. To this end, the CFMMEU has already been afforded requisite procedural fairness in circumstances where it is a stranger to the proceedings; and
g) further to (f), the CFMMEU and the other unions do not have any “right” to be heard in these proceedings, and have identified no basis upon which the Commission ought exercise its discretion under s.590 of the Act to permit the CFMMEU’s request to be involved in these proceedings, let alone extend such involvement to the cross-examination of the Applicant’s witnesses.
Qualified permission was granted to the Unions to be heard pursuant to s.590
[58] Pursuant to s.590(1) of the Act, taking into account all of the submissions of the Applicant and the Unions, including as set out and summarised in these reasons for decision, I accepted that the Unions were able to assist the Commission in its approval deliberations concerning the proposed enterprise agreements (but not to the extent of permitting the CFMMEU (or the other unions) to cross-examine the Applicant’s witnesses or statutory declaration deponents). I considered the exercise of my discretion appropriate to this extent only, as on the facts and circumstances of this case, and by way of various (relevant) discretionary considerations that I have taken into account more generally:
a) the Unions were not bargaining representatives for the Agreement, and were therefore not involved in the bargaining or the making of the Production Agreement or the Maintenance Agreement;
b) the Unions have provided no evidence of any history of involvement in the Applicant’s enterprise or workplace/s (e.g. union participation in workplace grievance or disciplinary disputes, exercising right of entry privileges for discussions with employees, representing employees at the workplace in proceedings before the Commission);
c) in view of (a) and (b), any assertions by the Unions as to the steps taken to explain the terms and conditions of the Agreement to employees (including the content of such explanation), and/or any alleged absence of “genuine agreement” in respect of the making of the proposed enterprise agreements, can only be advanced by way of cross-examination in an to attempt to extract a supportive evidentiary or other foundation for such assertions. In relation to the latter, I do not accept that the enterprise agreement approval process in these proceedings ought give rise to a situation whereby asserted case theories of persons who have not been bargaining representatives (in this case the Unions) are able to be advanced on the basis of the cross-examination of witnesses and/or submissions flowing from same. There is nothing contained in the Applicant’s evidence that would tend me to exercise my discretion otherwise;
d) the respective unions’ status as an industrial organisation of employees derives from their status as registered organisations under legislation. Equally, the Unions’ respective histories of involvement in the Mining and Coal Mining industries derive and flow from their respective coverage under their Rules. These matters provide the Unions with various “privileges” 33 as bargaining representatives, but those privileges do not extend to the Unions when they are not a bargaining representative.34 The rules and objects of an industrial organisation invariably provide for the organisation to “improve, protect, and foster the best interests of the union and its members”, however, union rules and objects are not a basis upon which a request to be heard under s.590 derives (or ought derive) alone;
e) ultimately, it is for the Commission (itself) to approve enterprise agreements pursuant to the statutory scheme and make its own inquiries as to any concerns it has. At one level, that ought to be the start and the end of the matter;
f) the Act does not require or otherwise mandate that a contender be involved in the enterprise agreement approval process where a union has not been a bargaining representative. The introduction of a contender can be helpful in the right circumstances. That said, in other circumstances, it can be unhelpful — especially if it causes the Commission to have to chase down ‘false shadows’ or consider ‘sacred cows’ (such as actual, asserted or self-proclaimed standards as to terms and conditions of employment not arising for consideration under the statutory scheme or statutory tests, but sought to be maintained (directly or indirectly) across an industry via interventions opposing or delaying the approval of enterprise agreements);
g) on the issue of the CFMMEU’s request to cross-examine witnesses, I do not consider that it is warranted in the circumstances of this case. The Unions have filed no evidence in these proceedings, and have disclaimed any intention to do so; and
h) having considered in detail the Applicant’s evidence in these proceedings, there is nothing contained in that evidence that would tend me to conclude or infer that cross-examination is appropriate or necessary. In this regard:
i. I am not aware of any issues of credit that will arise, nor I am convinced that any issues as to credit that might arise would be of any assistance to me in these proceedings;
ii. the CFMMEU essentially seeks an indulgence of the Commission by way of a request to be heard in these proceedings pursuant to s.590 of the Act. That has been granted (albeit not extending to cross-examination of witnesses). The request to be heard by the CFMMEU is a discretionary determination made by the Commission. The Commission, in the proper exercise of its discretion, can put a fence or boundary around, or other limitation upon, the granting of any request to be heard;
iii. I do not accept that the CFMMEU is being denied procedural fairness in these proceedings by not being given an opportunity (as a stranger) to cross-examine witnesses. This is especially so in circumstances where all of the Unions in these proceedings have been given every opportunity to make submissions, file evidence, and appear at the hearing to advance oral arguments and submission opposing approval;
iv. it is not clear to me how any limitation upon a party being granted a request to be heard can infringe upon rules of procedural fairness or natural justice when the Commission can impose procedural directions (as to “how” a matter is to be dealt with) 35 in granting any request to be heard. In other words, a request to be heard under s.590 of the Act is directly subject to any other directions that the Commission may issue or impose; and
v. further to (iv), and by way of analogy, courts have a discretion to grant a non-party permission to intervene in proceedings. The scope of such intervention (or involvement) in proceedings is at the discretion of the court, subject to the relevant rules of the court, and any directions that the court may (in its discretion) make. Such directions may limit an intervener to the making of written submissions only, or require an intervener to undertake to pay the costs of the parties to the proceedings (who have been required to engage with, or otherwise address, the interveners arguments). The fact that the Act has only a limited costs jurisdiction, and does not enable the Commission to make an order as to the payment of costs (as part of the grant of a request to be heard) further weighs against the granting of a request to be heard ‘at large’.
[59] Not to derogate from the foregoing reasons, but in the context of same, the following table sets out a general quick reference summary guide to the matters that I have taken into account in exercising my discretion concerning the respective unions’ request to be heard pursuant to s.590 of the Act (not extending to the cross-examination of witnesses) in these proceedings.
Issue | Weighs in favour of request to be heard ‘at large’ | Neutral consideration (or no weight given, or to be given, to issue (in my opinion) as part of the exercise of my discretion) | Weighs against a request to be heard ‘at large’ |
Unions not a bargaining representative. | X | ||
No union members at the workplace when bargaining and the making of proposed enterprise agreements occurred. | X | ||
NERR (to be issued in accordance with the requirements of the Act) directs an employee’s attention to union representation. Despite the clear and unambiguous explanation in the NERR, employees chose not to appoint the union as a bargaining representative. | X | ||
The Unions are a default bargaining representative under s.176(1)(b) of the Act if the relevant union has members employed who are to be covered by the proposed enterprise agreement (however, no union members were employed by the Applicant). | X | ||
Unions’ history of involvement and expert knowledge in respect of the approval of enterprise agreements before the Commission. | X | ||
Absence of submission or evidence as to unions’ involvement at the Applicant’s workplace with or on behalf of relevant employees in relation to dispute, safety or disciplinary matters. | X | ||
Potential for employees employed by the Applicant into the future to be covered by the enterprise agreement, being employees who are union members. | X | ||
Unions have filed no evidence in the proceedings and have disclaimed any intention to do so. | X | ||
Previous Commission decisions granting unions’ request to be heard pursuant to s.590 of the Act. | X | ||
Unions may be able to assist Commission at hearing (including via role as contradictor). | X | ||
Potential for contradictor to act other than altruistically in terms of alleged “assistance” to be provided to the Commission (having regard to the size and scope of the contender’s objections to the approval of an enterprise agreement) | X | ||
No express statutory right for unions to be heard where not a bargaining representative. | X | ||
Commission’s obligation to make its own determination as to the approval of a proposed enterprise agreement. | X | ||
Unions concerns only initially raised by reference to an analysis of what is stated on the face of the Applicant’s F17 form (i.e. only information as to what occurred during the bargaining of an enterprise agreement comes, not directly from employees at the workplace, but from documents filed with the Commission). | X | ||
Objects of Part 2-4 of the Act, which (in part) require the Commission to facilitate the making of enterprise agreements via “ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay” (i.e. approved by the Commission, if compliant with the Act, without delay). 36 | X | ||
Inability of Commission to impose costs orders against parties making a request to be heard (i.e. as a court may order for an intervener). | X |
Relevant provisions of the Act regarding approval of an enterprise agreement (other than BOOT)
[60] Section 180 of the Act prescribes the steps an employer must take before requesting employees to approve a proposed enterprise agreement:
“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).
Employees must be given copy of disclosure documents etc.
(4A) If an organisation gives the employer a document under section 179 by the end of the fourth day of the access period for the agreement, the employer must take all reasonable steps to ensure that the relevant employees:
(a) are given a copy of the document as soon as practicable after it was given to the employer; or
(b) are given access to a copy of the document as soon as practicable after it was given to the employer and have access to that copy throughout the remainder of the access period for the agreement.
Note: This subsection is a civil remedy provision (see Part 4-1).
(4B) If the employer is required to prepare a document under section 179A, the employer must take all reasonable steps to ensure that the relevant employees:
(a) are given a copy of the document by the end of the fourth day of the access period for the agreement; or
(b) are given access to a copy of the document by the end of that fourth day and have access to that copy throughout the remainder of the access period for the agreement.
Note: This subsection is a civil remedy provision (see Part 4-1).
(4C) The employer must not knowingly or recklessly make a false or misleading representation in the document that the relevant employees are given a copy of or access to under subsection (4B).
Note: This subsection is a civil remedy provision (see Part 4-1).
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;
(c) employees who did not have a bargaining representative for the agreement”.
[61] Section 186 of the Act provides the general requirements that need to be met for the Commission to approve an enterprise agreement:
“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 subsection 182(4) or 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)”.
[62] Section 187 of the Act provides additional matters that need to be met for the Commission to approve an enterprise agreement:
“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.
(6) If an agreement is made under subsection 182(4) (which deals with a single-enterprise agreement that is a greenfields agreement), the FWC must be satisfied that the agreement, considered on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work.
Note: In considering the prevailing pay and conditions within the relevant industry for equivalent work, the FWC may have regard to the prevailing pay and conditions in the relevant geographical area”.
[63] Section 188 of the Act expands upon the meaning of “genuinely agreed”:
“When employees have genuinely agreed to an enterprise agreement
(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(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.
(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174”.
Case law on legislative requirements (other than BOOT)
[64] In Newlands Coal Pty Ltd v CFMEU,37 the Full Bench summarised the Commission’s role in determining whether an enterprise agreement should be approved as follows:
“[33]FWA does not have a general discretion under the Act to determine whether an enterprise agreement should be approved. Rather, s.186 imposes an obligation on the tribunal to approve an agreement if a valid application for approval of the agreement is made under s.185 and the requirements of ss.186 and 187 are met.
[34]Broadly, the directions of s.187 involve examining the steps followed in the making of the agreement and the lodging of the application. Section 186 broadly involves the content of the agreement. Essentially, the role is one of examining whether the procedures followed leading up to the agreement being made were in accordance with what the Act requires and whether the content of the agreement satisfies certain conditions that the Act imposes.
[35]There is also a requirement for FWA to consider whether the agreement contains unlawful matters. What is an unlawful matter is defined by s.194. Additionally, and despite the requirements of s.186, Fair Work Australia may refuse to approve an agreement if a term of the agreement would mean compliance with that term would involve a breach of a Commonwealth law (s.192). There is no general role for the Tribunal to examine the validity of provisions in the agreement.
[36] The tribunal has no general nor specific power to rectify matters in the agreement if the terms of the agreement do not meet the requirements of the Act. The tribunal can accept undertakings but those undertakings can only be accepted if they are regarding concerns over the meeting of the requirements of s.186 and s.187.
[37]In summary, the role of FWA is to decide on whether the prescribed rules for conduct and procedures have been followed in the making of the agreement and if an agreement is made did the parties agree to things which an agreement can be about and are the terms agreed sufficient to satisfy the tests set out in the Act”. 38
[65] The Commission must approve a proposed enterprise agreement if it is satisfied that each of the requirements set out in s.186 and s.187 of the Act are met. If the Commission has a concern that the agreement does not meet those requirements, it may exercise its discretion to approve the agreement if it is satisfied that an undertaking meets the particular concern/s. 39
[66] Section 340(2) of the (now repealed) Workplace Relations Act 1996 required an employer to provide employees, prior to voting on whether or not to approve a collective agreement, a “reasonable opportunity to decide” as to whether they want to approve the agreement. In Blue Star Pacific Pty Ltd v CEPU, 40 Gray J spoke to the meaning of the term “reasonable” (albeit it in a different statutory context):
“[22] [T]he search must be for what is "reasonable". What will be reasonable will depend upon the circumstances of the particular case. There can be no absolute rules about what will and what will not constitute the prohibitions on the conduct of an employer, or what will constitute the employer’s obligations. Any decision on the facts of another case cannot be converted to a rule applicable to the instant case. Each case must be determined on all of the relevant facts, rather than on a selection of particular facts in isolation from the others. Further, it would be wrong to examine each fact alleged to detract from the reasonableness of the opportunity in isolation from each other such fact, and in isolation from all of the facts that may tend in the other direction. The determination of the question whether there has been a reasonable opportunity given involves a holistic process.
[23] Thus, the primary judge was correct to hold that s 340(2)(a) imposes an obligation on the employer to give the employees the reasonable opportunity for which s.340(2)(a) provides. His Honour was also correct to take the view that the reasonable opportunity had to be given to all of the relevant employees as a group. His Honour’s view that the words "to decide" should be construed to mean something like to engage in the decision-making process also appears to be correct. It does not follow, however, that there is a universal, or even a general, requirement to conduct a meeting. Whether a meeting would be an element of the provision of a reasonable opportunity must depend on the facts of each case. Similarly, the provision by the employer of misleading information about the agreement cannot lead to the automatic conclusion that there has not been a reasonable opportunity. The incorrect information must always be considered in the light of all other matters”.
(my emphasis)
[67] In MUA v Northern Stevedoring Services Pty Ltd,41 the Full Bench discussed the construction of the expression “all reasonable steps” in the following manner:
“[33] The expression “all reasonable steps”, and the case authorities concerning that and similar expressions were discussed at length in the decision of the Industrial Relations Commission of NSW in Court Session Bluescope Steel Ltd v The Australian Workers’ Union, New South Wales. The following propositions may be derived from the Court’s analysis:
• reasonable steps are what a reasonable man or woman would regard as being reasonable steps in the circumstances which apply;
• the obligation to take “reasonable steps” depends on the particular circumstances existing at the time the obligation arises; and
• a requirement to take all reasonable steps does not extend to all steps that are reasonably open in some narrow or theoretical sense (such as, for example, matters not directly within the particular knowledge or experience of a relevant party).
[34] Additionally in Parland Pty Ltd & Ors v Mariposa Pty Ltd the Tasmanian Supreme Court said, in relation to a requirement for a party to use its best endeavours to achieve a particular object, that a failure to take a particular step had to be assessed by reference to its materiality to the failure to achieve the relevant object. The Court said:
‘In any event quite apart from authority it would seem to me to be an untenable proposition that a party could be held to have failed to satisfy a condition requiring it to use its best endeavors in relation to an application because it failed to take some particular step if in fact the application would have been unsuccessful even had that step been taken.’
[35] That proposition appears to us to be equally applicable to consideration of whether an obligation to take all reasonable steps has been complied with”.
[68] In the Federal Court decision CFMEU v One Key Workforce Pty Ltd,42 Flick J stated that the nature of the task of the Commission under s.180(5) of the Act, and other terms requiring its satisfaction or otherwise about a state of affairs, is to make a broadly-based value judgment.43
[69] Justice Flick said that in respect of the requirements established by s.180(5) of the Act:
“[103] …The requirement imposed by s.180(5) to ‘take all reasonable steps to ensure that…the terms of the agreement and the effect of those terms, are explained’ is an important obligation imposed upon an employer to ensure that employees are as fully informed as practicable. The requirement is not a mere formality. Whatever steps may be necessary will depend upon the facts and circumstances of each particular case: but those steps are not satisfied by a person reading – without explanation – the terms of an agreement to an employee”.44
[70] In One Key Workforce Pty Ltd v CFMEU (“One Key”), 45 the Full Court made it readily apparent that compliance with s.180(5) and s.188 of the Act are not matters of jurisdictional fact for the purposes of the exercise of the Commission’s enterprise agreement approval powers.46 In other words, relevant facts only need to be established to reach the relevant satisfaction of the Commission member (i.e. subjectively). As long as relevant facts are available to support the opinion or satisfaction required to be reached by a relevant member of the Commission (as decision-maker), such opinion or satisfaction is not open to collateral attack on the basis that the objective existence of the facts required by s.180(5) or s.188 cannot be established.47 As the Full Court in One Key stated:
“[106] ….. Parliament should be presumed not to have intended public inconvenience of the kind that would arise if the existence of the pre-approval requirements the subject of the satisfaction that the Commission is required to form in order to approve an agreement was a jurisdictional fact amenable to authoritative determination by a court: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [97]”.
[71] The Full Court in One Key went on to hold that a condition precedent to the exercise by the Commission of its jurisdiction under s.186 of the Act to approve an enterprise agreement was its satisfaction that the employer had complied, amongst other things, with s.180(5) of the Act. The Full Court held that satisfaction as to whether s.180(5) had been complied with involved an evaluative judgment as to whether “reasonable steps” were taken by the employer, and on the issues of compliance with s.180(5), and the requirement for “genuine” agreement, stated:
“[105] Furthermore, like many of the pre-approval requirements, satisfaction as to whether s 180(5) has been complied with involves an evaluative judgment, including because an assessment is to be made as to whether “reasonable steps” were taken by the employer. As Bromberg J said in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2; (2016) 259 IR 164 at [75], in a passage cited by the primary judge at [119]:
These are difficult questions, upon which reasonable minds might sometimes (perhaps often) differ. The legislature’s intent was evidently that they be dealt with — for the benefit of employees and employers both — by independent specialists and experts, through the process of Commission scrutiny. ...
…
[112] It is common ground that the Commission was never told what was said to the relevant employees. It was simply told that they had been given an explanation of the terms of the Agreement and the effect of those terms. In effect, this amounted to little more than a self-serving statement that the employer had complied with its obligation under the Act. OKW contended that the fact that it made such a statement in a statutory declaration was significant. It is not. As the CFMEU argued, whether all reasonable steps were taken to ensure that the effect of the terms of the Agreement was explained in an appropriate manner is a question of substance, not form. The recital of a conclusion on the very question the Commission was required (through an evaluative process) to determine is not, without more, a sufficient basis for the satisfaction of the statutory test. In other words, a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach a state of satisfaction. OKW submitted that if the Commission had erred in this respect, it was an error in fact finding or an error in process, which would be an error within its jurisdiction. We reject this submission. In order to reach the requisite state of satisfaction that s 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement. It is true that the Act does not expressly say that. But the question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act; it may also be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–44 (Mason J).
[113] A consideration of the subject-matter, scope and purpose of the relevant provisions of the Fair Work Act indicates that the content of the explanation and the terms in which it was conveyed were relevant considerations to which the Commission was bound to have regard. The absence of that information meant that the Commission was not in a position to form the requisite state of satisfaction. Put differently, without knowing the content of the explanation, it was not open to the Commission to be satisfied that all reasonable steps had been taken to ensure that the terms and their effect had been explained to the employees who voted on the Agreement or that they had genuinely agreed to the Agreement.
[114] The following considerations point inexorably to that conclusion.
[115] The Commission was required to be satisfied that OKW had taken “all reasonable steps to ensure” that both the terms and the effect of the terms had been explained to the relevant employees as an element in the inquiry as to whether “genuine” agreement had been obtained from them. The agreed purpose of the obligation imposed on employers by s 180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.
[116] In order for the employer to comply with the obligation it must take into account the particular circumstances and needs of those employees, including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative. That is made explicit in s 180(6). How could the Commission decide whether the steps the employer had taken were “all reasonable steps” unless it knew what the employees had been told before they cast their votes? Without knowing the terms in which the explanation had been conveyed how could the Commission form an opinion on the sufficiency of the explanation, particularly having regard to the considerations mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine agreement had been reached without having evidence upon which it could answer both these questions?
j) there is nothing on the evidence in this case, or in the circumstances of this case, that I consider to give any weight to the allegation being made by the CFMMEU on this issue of explaining other enterprise agreements to relevant employees. I do not accept that the contents of enterprise agreements applying to employees of other relevant BHP entities were required to be explained to employees in this matter. Even if I am wrong, and/or even it be accepted that the real effect of the proposed enterprise agreements is to create differential terms and conditions between employees doing the same type of work on the same BHP sites for related BHP entities, I do not give such issues any weight. Importantly, I remain satisfied, having considered and determined the weight to be given to this issue (i.e. none), that the whole of the explanation provided to relevant employees complies with s.180(5), and does not give rise to any absence of genuine agreement.
Genuine agreement
[146] The Unions allege that I cannot be satisfied as to genuine agreement because:
a) the Applicant has not complied with s.180(5) of the Act (c.f. s.188(1)(a)(i)); and/or
b) there are reasonable grounds for believing that the proposed enterprise agreements have not been genuinely agreed (c.f. ss.186(2)(a) and 188(1)(c)).
[147] Given I have already found that I am satisfied as to the Applicant’s compliance with s.180(5) of the Act, I reject that the proposed enterprise agreements have not been genuinely agreed on the basis of the explanation provided to relevant employees (c.f. ss.188(a)(i) and/or 188(1)(c) of the Act).
[148] In relation to the other alleged ‘reasonable grounds’ for believing that the proposed enterprise agreements have not been genuinely agreed, the Unions advance the following contentions: 118
The ‘no stake’ contention
a) the salaries of relevant employees were determined prior to the commencement of bargaining, meaning that employees did not have a ‘stake’ in approving the proposed enterprise agreements. It does not appear to be in dispute that such salaries were equal to or more beneficial than the salaries contained in the proposed enterprise agreements at the time bargaining was commenced;
b) relevant employees did not have a ‘stake’ in the proposed enterprise agreements as they did not have experience in, or proper knowledge of, the coal industry;
c) relevant employees did not have a ‘stake’ in the proposed enterprise agreements, and would not be affected (or substantially affected) by the approval of the proposed enterprise agreements, in that relevant employees were told (as part of the explanation of the terms and the effect of the terms of the proposed enterprise agreements) that:
i) “the Company will not reduce your pay to the minimum annual salaries set out in the proposed agreement. You will not be paid less than under your contract of employment”; 119 and
ii) “nothing changes to your terms and conditions and pay when this agreement is voted on and approved, these are guaranteed to you in your contract of employment”; 120
The ‘lack of experience’ contention
d) relevant employees lacked work experience, and likely lacked direct knowledge, of the coal industry (including in relation to the history of that industry, and the terms and conditions of employment that might be said to ordinarily apply to other employees in that industry). Further, and on this basis, relevant employees were unrepresentative of prospective employees to be covered by the proposed enterprise agreements; and
The ‘absence of bargaining’ contention
e) there is no evidence of actual bargaining between the Applicant and relevant employees. Further, relevant employees did not have a bargaining representative.
[149] The Unions have asked that I consider the foregoing matters on an accumulative (or combined) basis, and submit that I ought make the conclusion that the approval of the proposed enterprise agreements (by way of valid majority vote) lacks authenticity and moral authority, leading to a finding that there are reasonable grounds for believing that the proposed enterprise agreements have not been genuinely agreed. 121
[150] The Applicant and the Unions directed my attention to various cases in support of, or in opposition to, the allegation that there are reasonable grounds for believing that the proposed enterprise agreements have not been genuinely agreed to. 122 Having reviewed those decisions, I consider that they are limited to their own facts and circumstances. I base my opinions and findings as to ‘genuine agreement’ in this matter on the facts and circumstances of this case (albeit in consideration of relevant case law principles).
Rejection of the ‘no stake’ contention
[151] I reject the ‘no-stake’ contention. I consider that relevant employees did have a material ‘stake’ in the proposed enterprise agreements, and that their approval does not lack ‘authenticity or moral authority’. My reasons in this regard follow.
[152] Firstly, all employees at all workplaces have contractual terms (express and/or implied) that apply to them, whether or not they have a safety net award or enterprise agreement that covers and applies to them. It is trite that in many businesses (particularly small and medium sized business) employees will have different contracts of employment. In other words, by way of example, although certain classes of employees may have standard terms and conditions of employment (underpinned by a statutory safety net award or enterprise agreement), individual employees within these classes may be contracted on different rates of pay (some higher than others, and some well above the safety net). The Act does not exclude, from a voting cohort, any employees who have terms and conditions that are more beneficial than those contained in a proposed enterprise agreement. Even if it might be said (or accepted), in the facts and circumstances of this case, that all relevant employees were employed (at the time bargaining commenced) on terms and conditions essentially reflective of, or substantially consistent with, those terms and conditions contained in the proposed enterprise agreements, I do not accept that, in terms of reaching my own state of satisfaction as to genuine agreement, that this is a matter that gives rise to any reasonable grounds for me to believe that the proposed enterprise agreements have not been genuinely agreed to for the purposes of s.188 of the Act.
[153] Secondly, and significantly, the proposed enterprise agreements (once approved) create a safety net, enforceable under the Act, as to minimum terms of conditions of employment, being statutory terms and conditions that when assessed as a whole, leave employees better off overall than those contained in the Coal and Mining Awards (i.e. safety net terms and conditions that make relevant employees better off overall than the applicable modern award/s, to which pecuniary penalty (on a strict liability basis) arises from breach). This was explained to relevant employees by the Applicant in the Explanatory Materials. There is no basis, in my view, to suggest that the creation of such an enforceable (above award) safety net (punishable by pecuniary penalty for breach) is not of material and/or practical benefit to any employee. The fact that the creation of an above award safety net in the form of an enterprise agreement might be a statutory ‘rubber stamp’ of existing (or a majority of existing) individual contractual and/or above award terms and conditions, does not, in my view, in any way diminish the practical benefit of such terms and conditions being made enforceable under the Act. I observe that it is common for unions, when making claims for improved (new or varied) award terms and conditions, to submit to the Commission that such terms and conditions need or ought to be included in an award for safety net (enforcement) purposes. It appears to me to be disingenuous for the Unions to argue in these proceedings, on the issue of genuine agreement, that the creation of an above-award enterprise agreement safety net ought be disregarded, or given little or neutral weight, as a genuine material and/or practical benefit to employees favouring a finding as to genuine agreement.
[154] Thirdly, there are benefits to relevant prospective employees beyond the terms and conditions that applied to relevant existing employees at the time bargaining was commenced. In relation to such prospective employees, these benefits include rates of pay significantly higher than those contained in the Coal Award and the Mining Award, extending to terms and conditions (overall) that leave prospective employees better off overall when compared to these awards. I concur with the Applicant that relevant existing employees can be said to hold a “community of interest” in respect to prospective employees in this regard. 123 Further, in my view, the issue of ‘job security’ also arises as a benefit to relevant existing employees, in that prospective employees will not be able to be employed at less than the new safety net created by the proposed enterprise agreements. This creates a “level playing field” as to the terms and conditions that will apply to all employees, that cannot be undermined under contract.
[155] Fourthly, there are actual benefits to relevant employees who voted to approve the proposed enterprise agreements (i.e. beyond those terms and conditions that applied to relevant existing employees at the time bargaining was commenced). Such additional benefits were identified and explained to relevant employees in the Explanatory Materials, and include matters such as annual leave, parental leave, consultation, dispute resolution, the BOOT promise, and the management of change. 124 By way of specific example, although paid parental leave under the proposed enterprise agreements is a contingent entitlement (that only applies to employees who become entitled to same), it is a significant benefit to such entitled employees and their current or prospective families. It is to be accepted that many households have a necessity for dual incomes. A fortiori (and having regard to the fact that equal sharing of parental responsibilities would have an intrinsic and material impact on the capacity to earn that dual income), a safety net entitlement to the paid parental leave provisions contained in the proposed enterprise agreements is nothing other than a tangible benefit to relevant employees.
[156] Fifthly, I do not accept that there is any reason in the facts and circumstances of this case for me to apply some form of collateral test above and beyond the BOOT ( at least, for the purposes of reaching my requisite state of satisfaction under s.188 of the Act). For example, an inquiry pursuant to which I seek to assess the extent that relevant employees are better off under the proposed enterprise agreements in comparison to their existing contractual (above award) terms and conditions, and then weigh up such findings as part of determining whether or not there are reasonable grounds to believe that relevant employees did or did not genuinely agree.
[157] To the extent that the ‘no stake’ contention is based upon the ‘no experience’ contention, I reject the former for the same reasons that I reject the latter (as set out following).
Rejection of the ‘lack of experience’ contention
[158] I reject the ‘lack of experience’ contention. In my view, this contention is not a matter that gives rise to any reasonable grounds for me to believe that the proposed enterprise agreements have not been genuinely agreed for the purposes of s.188 of the Act (including by reference to a lack of authenticity or moral authority). The fact that relevant employees did not have experience in the coal industry, and/or did not have direct knowledge of the coal industry (including in relation to the history of that industry, and the terms and conditions of employment that might be said to ordinarily apply to other employees in that industry), does not alter my view. My reasons in this regard follow.
[159] Firstly, the facts and circumstances of this case, as previously set out in this decision, can be easily differentiated from those in cases such as those identified in One Key Workforce Pty Ltd v CFMEU, 125 Re KCL Industries Pty Ltd,126 and BGC Contracting Pty Ltd v CFMEU.127
[160] Secondly, in support of my rejection of the ‘lack of experience’ contention, I specifically rely upon the following matters:
a) the proposed enterprise agreements displace only two awards, the Mining and Coal Awards;
b) the terms and conditions contained in both the Mining and Coal Awards were explained to relevant employees leading up to their vote to approve the proposed enterprise agreements. The key differences between these two awards is readily apparent on the face of the Explanatory Materials provided to relevant employees;
c) relevant employees (who voted to approve the proposed enterprise agreements) work in the mining industry, in the production and maintenance classifications contained in the Mining Award. They will equally work in the same or similar classifications and roles under the proposed enterprise agreements (which will apply to them when they perform work in the mining and coal industries). Such classifications, under the proposed enterprise agreements are narrow, and are easily translated from the Mining and Coal Awards;
d) I have no basis, on the facts and circumstances of this case, to conclude that simply because the voting cohort of relevant employees do not work in the coal industry at the time bargaining commenced (or at the time the proposed enterprise agreements were approved by valid majority) that there are reasonable grounds to believe that the proposed enterprise agreements have not been genuinely agreed (or otherwise lack authenticity or moral authority). I reject the notion that an enterprise agreement can only be genuinely agreed, be authentic, or carry moral authority, if the voting cohort of relevant employees performs work in an industry or industries to which the proposed enterprise agreement will cover or apply. There is certainly nothing on the facts and circumstances of this case to suggest otherwise;
e) there is no evidence to suggest that a production, trade or non-trade technician working in the mining industry (as a production or maintenance employee) could not transfer and/or utilise such experience and skills in the coal industry (i.e. subject to relevant induction, training, etc);
f) the voting cohort of employees was made up of 58 employees (Production Agreement) and 16 employees (Maintenance Agreement). These numbers are more than the fingers one might find on a sawmiller’s hand. Whilst the Unions seek to allege (directly or indirectly) that the voting cohort of employees is being used as a springboard to employ a much larger workforce, there is no evidence that the voting cohort is being used in this way, nor is there any inference I have been persuaded to make in this matter as to artificiality;
g) the Applicant made no secret of its future expansion plans in both the mining industry, and into the coal industry. Whether or not the Applicant will be successful is unknown, however, I do not hold its aspirations in this regard in the negative, especially when the Applicant has expressly told employees that it seeks for them to be a part of, or assist in the fulfilment of, such aspirations. There is nothing unusual or extraordinary in a business aspiring to grow or expand into new horizons; and
h) the Applicant was also totally upfront and candid with relevant employees in relation to:
i) the background to its establishment as a new business (and a new employer);
ii) its association with BHP;
iii) the fact that work in the coal industry is likely relevant to the Applicant, and relevant employees, into the future; and
iv) the fact that relevant employees, whilst currently working in the Applicant’s WAIO operations, may be asked to work into the future at coal mining operations (and the basis upon which any transfer and/or transition in this regard might occur).
Rejection of the ‘absence of bargaining’ contention
[161] I reject the ‘absence of bargaining’ contention. In my view, this contention is not a matter that gives rise to any reasonable grounds for me to believe that the proposed enterprise agreements have not been genuinely agreed for the purposes of s.188 of the Act (including by reference to a lack of authenticity or moral authority). My reasons in this regard are as follows:
a) it is accepted that none of the relevant employees were union members;
b) as previously stated in this decision, I have determined that I am satisfied that the Applicant has complied with ss.180(2), 180(3), and 180(5) of the Act;
c) there is no dispute as to compliance with s.181(2) of the Act;
d) relevant employees were issued with NERRs as required by the Act. The NERR explained to employees that they have a right to appoint a bargaining representative to represent them during bargaining. No employees chose to appoint a bargaining representative (which was, of course, their choice);
e) the Act prescribes the time at which an NERR is to be issued to employees (i.e. when bargaining is initiated). The Act also prescribes the content of the NERR. Part of this content informs employees of their right to have a bargaining representative (by default, or by appointment), and that they may contact the Fair Work Ombudsman, or the Fair Work Commission, for further information. An enterprise agreement cannot be approved by the Commission unless an employer has complied with the Act’s NERR requirements. It follows, in my view, that the NERR is to be considered, in the context of allegations as to the absence of genuine agreement (due to an absence of bargaining or bargaining representatives), as a significant stumbling block;
f) further to the foregoing, the Act places the onus upon an employer to issue the NERR to relevant employees at the time bargaining is initiated, in the proper form (inclusive of the prescribed content). Armed with that information, the choice as to how an employee/s approaches bargaining is wholly a matter for the employee/s themselves. In other words, relevant employees, armed with the information contained in the NERR, have at least 21 days to choose to utilise their union (if they are a member), or appoint another representative to bargain with their employer on their behalf, or appointment themselves as their own bargaining representative (to bargain on their own behalf). Some employees may choose to appoint no one. Some employees may choose not to engage in any bargaining. Ultimately, that is a matter for employees themselves. The Act’s requirements as to the manner in which an employer conducts itself in order to have an enterprise agreement approved are highly prescriptive, and essentially place all of the obligations upon the employer. What the Act does not do, however, is place an obligation upon an employer to require, or take reasonable steps to ensure, that employees actually engage in bargaining. Unions may conduct bargaining, or have a view as to how bargaining ought occur. That is perhaps one of the historic selling points of union membership. But the fact that an employee makes a choice not to bargain ought not be raised as a criticism against an employer or an employee when it comes to the issue of genuine agreement (including by reference to issues such as authenticity or moral authority);
g) there is no evidence that relevant employees were prevented or otherwise hindered from appointing a bargaining representative, or engaging in bargaining, in respect of the proposed enterprise agreements;
h) I am not aware of, and my attention has not been drawn to, any binding case law that suggests that an absence of bargaining gives rise to a finding as to an absence of genuine agreement, or that bargaining is required to occur (i.e. prior to a proposed enterprise agreement being approved by relevant employees);
i) to the extent that the absence of bargaining or the absence of bargaining representatives is a relevant consideration in terms of my satisfaction as to the genuine agreement of relevant employees (under s.188 of the Act), on the facts and circumstances of this case, I give no weight to same.
Rejection of the contentions on an accumulative basis
[162] I have rejected each of the contentions made as to genuine agreement (including as to an absence of authenticity and moral authority, and/or employees having no stake in the proposed enterprise agreements). Given I have rejected each contention individually, I equally reject them on an accumulated basis. Individually, or combined, in my view, they do not give rise to any reasonable grounds for me to believe that the proposed enterprise agreements have not been genuinely agreed. I simply do not accept that any of these issues give rise to a finding that I ought make that would conclude that employees who voted to approve the proposed enterprise agreements did not genuinely consent.
Commission’s issues resolved
[163] On 14 February 2019, my Chambers sent correspondence to the Applicant identifying issues and concerns in relation to the approval of the proposed enterprise agreements (Commission issues).
[164] By way of submissions dated 6 March 2019, the Applicant replied to those Commission issues.
[165] In its submissions dated 13 March 2019, the CFMMEU took issue with nearly all of the Applicant’s responses to the Commission issues. 128 The CFMMEU further submitted that given the Applicant’s responses to the Commission issues, these matters identified further grounds as to why the Applicant had failed to comply with s.180(5) of the Act.
[166] Having reviewed the Applicant’s responses to the Commission issues, and considered the allegations made by the CFMMEU as to such responses, I am satisfied that the Applicant’s responses have fully resolved the Commission’s issues, including by reference to the undertakings provided by the Applicant.
Summary
[167] In reaching my decision in this matter, I have reviewed and considered:
a) all of the evidence relied upon by the Applicant (including both of the F17 forms) in these proceedings;
b) the nature of the changes made by the proposed enterprise agreements, in comparison to the terms and conditions contained in the Mining and Coal Awards;
c) the particular circumstances and needs of the relevant employees who voted to approve the proposed enterprise agreements; and
d) the written and oral submissions of the Applicant and the Unions.
[168] Having regard to the findings that I have made, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to these applications for approval, have been met.
DEPUTY PRESIDENT
Appearances:
Mr Ian Neil of Senior Counsel, and Mr Yaseen Shariff of Counsel, instructed by Herbert Smith Freehills, appeared on behalf of the Applicant.
Mr S Crawshaw of Senior Counsel, instructed by Eliza Sarlos, appeared on behalf of the CFMMEU.
Mr Patrick Turner (Solicitor, Maurice Blackburn Lawyers) appeared on behalf of the AMWU.
Mr Stephen Crawford appeared for the AWU.
Ms Yola Abousleiman appeared for the CEPU.
Hearing details:
A hearing was held in Sydney on 27 June 2019
Printed by authority of the Commonwealth Government Printer
<PR716174>
1 Construction, Forestry, Maritime, Mining and Energy Union v Collinsville Coal Operations Pty Ltd (2014) 246 IR 21; [2014] FWCFB 7940
2 Ibid
3 Veaney Statement at [6].
4 Ibid at [7]-[8].
5 Ibid at [11]-[13].
6 Ibid at [14].
7 Employees who were sent the Production Explanatory Materials also received an additional cover email (i.e. employees who were handed the Production Explanatory Materials did not receive this cover email) See first page of Annexure ‘JV-9”.
8 Veaney Statement at [15]-[20].
9 Ibid at [10].
10 Ibid at [21].
11 Ibid at [24].
12 Bowler Statement at [6].
13 Ibid at [5]-[6].
14 Ibid at [11]-[12].
15 Ibid at [11] and [15].
16 Ibid at [13].
17 Employees who were sent the Maintenance Explanatory Materials also received an additional cover email (i.e. employees who were handed the Maintenance Explanatory Materials did not receive this cover email) See first page of Annexure ‘RB-9”.
18 Bowler Statement at [14]-[18].
19 Veaney Statement at [10]; Bowler Statement at [19].
20 Veaney Statement at [10]; Bowler Statement at [20]-[21].
21 Bowler Statement at [22].
22 Fair Work Act2009 s.176(1)(b).
23 Construction, Forestry, Maritime, Mining and Energy Union v Collinsville Coal Operations Pty Ltd (2014) 246 IR 21; [2014] FWCFB 7940 (at [75]-[76]).
24 Fair Work (Registered Organisations) Act 2009, Ch.5.
25 See: Marine & Power Engineers & Australian Maritime Officers’ Union [2018] FWCFB 3370 (at [15]).
26 (2014) 246 IR 21; [2014] FWCFB 7940.
27 Ibid.
28 [2018] FWC 869.
29 Ibid at [44].
30 (2016) 260 IR 244; [2016] FWCFB 2654.
31 Ibid at [19], citing CFMEU v Collinsville Coal Operations Pty Ltd[2014] FWCFB 7940.
32 CFMEU v Collinsville Coal Operations Pty Ltd[2014] FWCFB 7940 at [16].
33 Ibid.
34 Ibid.
35 Fair Work Act2009 s.589(1).
36 Ibid s.171(b)(iii).
37 [2010] FWAFB 7401.
38 References in endnotes omitted.
39 Fair Work Act 2009 s.190.
40 [2009] FCAFC 187; (2009) 181 FCR 416; (2009) 191 IR 323.
41 [2016] FWCFB 1926, citing Bluescope Steel Ltd v The Australian Workers’ Union, New South Wales [2004] NSWIRC 222; 137 IR 176 at [67]-[71]; Parland Pty Ltd & Ors v Mariposa Pty Ltd [1995] TASSC 91; (1995) 5 TASR 121 at 133
42 [2017] FCA 1266, 270 IR 410.
43 Ibid at [43] to [44], citing Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2015] FCAFC 16; 228 FCR 297; 247 IR 55 (Buchanan J).
44 [2017] FCA 1266, 270 IR 410 at [103].
45 [2018]FCAFC 77; 277 IR 2.
46 Ibid at [103]-107].
47 Ibid.
48 Rathborne v Abel (1964) 38 ALJR 293.
49 Ibid at 301.
50 NTEU v University of NSW FWAFB 5163.
51 CFMEU v Shamrock Civil Pty Ltd [2018] FWCFB 1722 at [36].
52 McDonalds Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association [2010] FWCFB 4602.
53 [2019] FWCFB 4022.
54 See: Fair Work Act 2009 ss.3 and 171.
55 Ibid
56 Re McDonald’ s Australia Enterprise Agreement 2009 (2010) 196 IR 155; [2010] FWAFB 4602 at [13].
57 Employee Questions and Answers Document, page 1.
58 F17 forms at Item 2.7.
59 CPB Contractors Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70.
60 Ibid.
61 See for example, Veaney Statement at Annexure JV-9, Item 2 of “Explanation of Terms” document (p.4).
62 Veaney Statement at Annexure JV-9, Item 2 of “Explanation of Terms” document (p.4)
63 See, for example, Item 2 of the Table in the Explanation of Terms Document (at around 0.8 of the page), Annexure ‘JV-9’.
64 [2012] FWA 9755 (at [47]-[48]).
65 Ibid at [49].
66 Application by CPB Contractors Pty Limited [2019] FWC 6198 at [122].
67 Ibid at [133].
68 Transcript, 27 June 2019, PN281
69 I also rely upon Construction, Forestry, Maritime, Mining and Energy Union and others v Specialist People Pty Ltd [2019] FWCFB 7919 at [22]-[23].
70 AWU Submissions, 15 March 2019
71 AMWU Submissions, 13 March 2019
72 Applicant’s submissions, 4 April 2019 at [195].
73 Ibid 4 April 2019 at [196]-[197].
74 Ibid 4 April 2019 at [198].
75 Ibid 4 April 2019 at [199].
76 Ibid 4 April 2019 at [200].
77 Ibid 4 April 2019 at [201].
78 Ibid 4 April 2019 at [202].
79 See also: Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics [2019] FWCFB 318.
80 Applicant’s submissions, 4 April 2019 at [204].
81 Ibid 4 April 2019 at [205]-[208].
82 See also: Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics [2019] FWCFB 318.
83 AMWU Submissions, 13 March 2019 at 21.11(i), (ii), (iii), (iv) and (viii).
84 Applicant’s submissions, 4 April 2019 at [209].
85 AMWU Submissions, 13 March 2019 at 21.11(v).
86 Applicant’s submissions, 4 April 2019 at [210].
87 AMWU Submissions, 13 March 2019 at 21.11(vi).
88 Applicant’s submissions, 4 April 2019 at [211].
89 AMWU Submissions, 13 March 2019 at 21.11(vii).
90 Applicant’s submissions, 4 April 2019 at [97] and [212].
91 AMWU Submissions, 13 March 2019 at 21.11(ix).
92 Applicant’s submissions, 4 April 2019 at [213].
93 See also Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics [2019] FWCFB 318.
94 AMWU Submissions, 13 March 2019 at 21.11(x).
95 Applicant’s submissions, 4 April 2019 at [214].
96 See also Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics [2019] FWCFB 318.
97 Applicant’s submissions, 4 April 2019 at [215].
98 CFMMEU – RDOs on public holidays, payment for unfitness for duty, dispute resolution process, timeframe for termination payments, parties to agree to time off in lieu, part-day public holidays, starting and finishing places; AWU – handovers and redundancy.
99 See, for example, Applicant’s Written Submissions (dated 4 April 2019) at [85], pp.23-24.
100 Transcript, 27 June 2019, PN223-PN287
101 AMWU Submissions, 13 March 2019 at [14]-[21].
102 Explanatory Memorandum to the Fair Work Bill 2008, p.117 at [739].
103 Transcript, 18 June 2019, PN143.
104 [2019] FWCA 8358.
105 Ibid at [21]-[27].
106 [2017] HCA 53; (2017) 262 CLR 593.
107 The Applicant has provided undertakings. By reference to s.190 of the Act, I am satisfied that these undertakings meet and resolve my BOOT concerns in respect of the approval of the proposed enterprise agreements, and that they do not cause financial detriment to relevant employees, or result in substantial changes to the Mining Agreement or the Production Agreement. The undertakings become terms of the proposed enterprise agreements.
108 CFMMEU submissions, 13 March 2019, at [79]-[86].
109 CEPU submissions dated 21 September 2018; not expanded upon orally at the hearing.
110 AMWU submissions, 13 March 2019, at [48]-[74].
111 AMWU Submissions, 13 March 2019, at [21.1] to [21.13].
112 CFMMEU Submissions, 13 March 2019, at [60]-[75]; not supplemented by oral submissions at hearing.
113 CFMMEU Submissions, 13 March 2019, at [53]-[59]; not supplemented by oral submissions at hearing.
114 CFMMEU Submissions, 13 March 2019, at [23]-[24], [37]; Transcript, 18 June 2019, PN305-PN319; Exhibit #CFMMEU 1 (Bundle of Documents).
115 The CFMMEU points out that it was not explained at all (Transcript, 18 June 2019, PN306)
116 CFMMEU Submissions, 13 March 2019, at [23].
117 Transcript, 18 June 2019, PN312.
118 Transcript, 27 June 2019, PN400-PN421; CFMMEU submissions, 13 March 2009, [41]-[52]; AMWU reply submissions, 8 August 2019.
119 See, for example, page 2, paragraph 1 of Employee Questions & Answers and Explanatory Note at Annexure ‘RB-9’.
120 See, for example, page 1 of Annexure ‘RB-9’. I note that this statement was contained in a cover email that attached relevant explanatory materials and documentation. It appears that this cover email was only sent to employees who were unable, for whatever reason, to attend the face-to-face briefing sessions. I did not consider there to be any real difference between the two statements, and therefore do not differentiate same for the purposes of this decision.
121 Transcript, 27 June 2019, PN408
122 See: Construction, Forestry, Mining and Energy Union v AIRC (1999) 93 FCR 317 at [126]-[127]; One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018) 277 IR 23; [2018] FCAFC 77 at [142], [149] to [153], [157]; Re KCL Industries Pty Ltd (2016) 257 IR 266; [2016] FWCFB 3048 at [36]-[37]; BGC Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union[2017] FWCFB 2741 at [47]-[55]; Construction, Forestry, Maritime, Mining and Energy Union v LS Precast Pty Ltd[2019] FWCFB 1431; BGC Contracting Pty Ltd[2018] FWC 1466, at [152]; National Tertiary Education Industry Union v Swinburne University of Technology (2015) 232 FCR 246; (2015) 251 IR 209; [2015] FCAFC 98 at [22]-[23].
123 Applicant’s submissions, 4 April 2019, at [155]
124 See, for example, Maintenance Explanatory Materials (p.23); Production Explanatory Materials (p.3).
125 (2018) 277 IR 23; [2018] FCAFC 77.
126 (2016) 257 IR 266; [2016] FWCFB 3048.
127 [2017] FWCFB 2741.
128 CFMMEU Submissions, 13 March 2019 at [21].
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