Queensland Pre-Stressing Pty Ltd v Construction, Forestry, Mining and Energy Union
[2012] FWA 5026
•20 JUNE 2012
[2012] FWA 5026
The attached document replaces the document previously issued with the above code on 20 June 2012.
Paragraph 109 has been amended to address a typographical error and the appearances at the end of the decision have been amended.
Laura Vogler
Associate to Senior Deputy President Richards
Dated 26 June 2012
[2012] FWA 5026 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Queensland Pre-Stressing Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(AG2012/3865)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 20 JUNE 2012 |
Summary: whether agreement genuinely approved - whether departure from ‘good faith bargaining’ relevant to ‘genuine approval’ of the agreement - ‘genuine approval’ not an analogue of ‘good faith bargaining’ - whether fairly chosen - meaning of “time” at s.180(3)(a) - bargaining representative’s information about instrument of appointment - whether OHS and drug and alcohol policies incorporated into agreement.
[1] An application for approval of an enterprise agreement was made by Queensland Pre-Stressing Pty Ltd (“the Applicant”) on 8 March 2012. The approval of the application was objected to by the Construction and General Division, Queensland Builder’s Labourers’ Divisional Branch of the Construction, Forestry, Mining and Energy Union (“the BLF”). Owing to the various timetabling issues relating to the availability of witnesses and other substantive iterations between the parties, the application was heard in Brisbane over a number of days on 15 May 2012, 24 May 2012, 28-29 May 2012 and 1 June 2012.
[2] There were a wide range of matters in contest in relation to whether or not the Applicant had met the requirements that must be satisfied before such time as the Queensland Pre-Stressing Pty Ltd Enterprise Agreement 2011 (“the Agreement”) can be approved by Fair Work Australia (“FWA”).
[3] I was principally reliant upon the evidence adduced over the course of the proceedings by Mr Paul Costello, Managing Director of the Applicant, and Mr Phillip Gray who is also a Director of the Applicant, amongst other employee witnesses of the Applicant (Mr Declan Hartley and Mr Joseph Sweeper). Only one witness appeared for the BLF, and that was to address issues of particularly limited compass.
[4] This application was the second application by the Applicant for the approval of an enterprise agreement. The first application was withdrawn on 28 November 2011, seemingly owing to various procedural deficiencies in relation to the statutory requirements for approval. This application was the result of a new bargaining process that commenced, in effect, in December 2011 and culminated in a vote commencing on 2 March 2012 and concluding on 5 March 2012.
Whether “genuine agreement” affected by good faith bargaining requirements
[5] I will initially concern myself with the general objection to the approval of the Agreement which is based on a concern that there was no genuine agreement. The essence of this objection is that the Applicant did not recognise the BLF as a bargaining representative nor respond to its claims, and because it did not bargain in good faith in these respects, the Agreement cannot be said to have been genuinely agreed.
[6] Counsel for the Applicant contended that the good faith bargaining provisions of the Act were only of importance in so far as they impacted upon and were causative of a deficiency, not in the bargaining process, but in the steps that make for the genuine agreement of the employees who are to be covered by the Agreement.
[7] Such steps are those to which reference is made in s.188(a)(i), s.188(a)(ii) and s.188(b) of the Act, all of which concern the procedures making for the genuine approval of the Agreement (such as the pre-approval steps and the request to approve the Agreement and the validity of the vote - however conducted - itself).
[8] It is tolerably clear that the statutory notion of genuine approval of the Agreement (as set out at s.188 of the Act) is not an analogue for good faith bargaining. This is not to say, however, that in particular circumstances or contexts, that conduct that is inconsistent with the good faith bargaining procedures set out at s.228 of the Act may cause there to be an absence of genuine approval of the proposed agreement. The Explanatory Memorandum sets out some examples of this. These examples exhibit the manner in which the procedural steps making for genuine approval (set out above) may have been disrupted in some important ways by a mischief (or even an inadvertent act) on the part of the employer in the bargaining process (to which the good faith bargaining provisions of the Act apply).
[9] Bar circumstances of this kind, and those cited in s.187(2) of the Act, deficiencies in good faith bargaining (which concern the bargaining process itself) are not applicable to findings required to be made by FWA under s.188 of the Act, which concern when employees have genuinely agreed to an enterprise agreement. Generally, the remedy for a deficiency in relation to the good faith bargaining requirements under the Act is dealt with under s.229 of the Act, which concerns applications for bargaining orders.
[10] As I construe it, the argument put by the BLF tended, in essence, to invite me to conclude that there were imperfections in the interactions with the BLF and the Applicant (in the context of the good faith bargaining requirements) that were causative of the Agreement not having been genuinely approved for the purposes of s.188(c) of the Act. Other than this, the BLF argued that there were statutory requirements under the Act that the Applicant was required to fulfil but had failed to do so. I will now consider the relevant suite of issues ad seriatim. That said, some issues interact (such as the objection based on whether the employees to be covered by the Agreement were fairly chosen and whether an effective notice of employee representational rights was issued as a consequence) and it is necessary to cross reference such issues from time to time.
Whether the BLF’s claims were genuinely considered and responded to
[11] It was also claimed that the BLF template agreement was in the possession of the Applicant and recognised by the Applicant as representing allegedly the BLF claims in relation to the bargaining process. Because these claims were not responded to, the Applicant was said to have contravened the good faith bargaining provisions of the Act. The argument here - at least how I would construe it to be - is that the BLF as a bargaining representative did not have its claims genuinely considered or responded to, and because of this, its members were denied the benefit of its effective representation. If this were so - as I would understand the BLF to have argued - the Agreement could not have been genuinely agreed.
[12] It seems to me that in view of my discussion above about the interaction of the statutory notions of good faith bargaining and genuine approval, this contention on the part of the BLF might not be relevant to my considerations. Arguments of this type are matters that should have been the subject of an application by the BLF under s.229 of the Act, at the time of the various interactions between the BLF and the Applicant arising after the first meeting in February 2012 and prior to the request for the employees to approve the proposed agreement (and not during the Agreement approval process itself).
[13] But having said as much (and in the event I am wrong that there is some measure of statutory separation between “good faith bargaining” and “genuine approval”), there may be a benefit in me providing some findings on this claim given the evidence before me.
[14] There does not appear to have been any deliberate oversight of the BLF’s claims in the bargaining process, or in particular, that the BLF’s bargaining position (its template agreement) was intentionally ignored. The evidence before me is more to the effect that the BLF template agreement came into the possession of the Applicant in an incidental manner at a much earlier time (possibly prior to even the commencement of the bargaining for the first agreement which was subsequently withdrawn) and not as a body of particularised claims pressed by the BLF in the bargaining process that commenced from December 2011. Even when the bargaining process had commenced the BLF template agreement was not tendered in the meetings of the bargaining representatives by the BLF bargaining representatives between December 2011 and February 2012).
[15] The BLF contended that the template agreement was sent to the Applicant by email and its intent and purpose could not be overlooked. But the evidence as clarified was that the email address was not the address of the individual to whom it was directed (Mr Gray) and, in any event, there was no follow-up from the BLF as undertaken in the BLF’s correspondence by email.
[16] A series of bargaining meetings were subsequently conducted (over the course of February 2012) and the BLF was invited to participate in bargaining discussions as a bargaining representative. As it was, the BLF did not participate in the meetings to any substantive effect, and when it did, the evidence suggests it was unprepared for any discussion and\or merely objected to any agreement that was not the BLF template agreement. 1 There was no further particularisation of its claims beyond this, the template agreement was not tendered, and bargaining proceeded on the basis of the iterations between the Applicant and the other nominated bargaining representatives.2
[17] It appears to me, further, that the Applicant was unusually attentive in ensuring that the BLF had an effective opportunity to participate in the enterprise bargaining process. 3 Indeed, the Applicant expressed concern to the BLF that it was not participating effectively in the bargaining process.
[18] There can be no reasonable foundation, therefore, to any claim that the BLF’s bargaining proposals were not considered or responded to by the other bargaining representatives or that - more widely - there was an effort to exclude the BLF from the bargaining process.
[19] The BLF’s concerns in these respects, I add, would have been put aside had it participated productively in the bargaining meetings with the Applicant and the other bargaining representatives and presented a formal body of claims for distribution and discussion amongst the other bargaining representatives.
Notice of employee representational rights
[20] The evidence in this matter demonstrates that the Applicant fulfilled its obligations to issue its employees with a notice of representational rights (at a meeting conducted on 14 December 2011). There is no dispute that the notice was issued in the form required by Regulation 2.05 of the Fair Work Regulations 2009 (“the Regulations”).
[21] There were three employees who were not in attendance at this meeting but they were subsequently provided with the requisite notice. No question reasonably arises (in view of the date on which the ballot was conducted) in relation to the requirements of s.181(2) of the Act.
[22] The BLF contended that the Applicant’s wider conduct, however, did not permit employees to exercise an informed choice about their representation.
[23] Given my discussion above, I take the BLF to have been arguing that the Applicant’s conduct was such that the important objective in issuing the notice of employee representational rights was undermined (and therefore the genuine approval of the Agreement was brought into question). If there is a question about the notice of employee representational rights having been issued and given its intended effect for the purposes of s.173(1) of the Act, it seems to me that it could not be found that the requirements of s.181(2) could be met (as they are contingent upon s.173(1) having been given appropriate effect). A corollary of this might be that the Agreement was not genuinely approved (for the purposes of s.188(ii) of the Act) as again, the requisite notice might not have been issued.
[24] The wording of the Applicant’s documentation is imperfect and there is, I think, scope for some confusion if the totality of the communications between the Applicant and the relevant employees is not considered. The particular document was issued on the day after the notice of representational rights which indicated that each staff member needed to nominate a bargaining representative for the proposed enterprise agreement. The document went on to say:
You may wish to nominate yourself or request the current employee representatives, Declan Hartley, Mick Turner and Joe Sweeper to represent you or any other party of your choosing. 4
[25] While this may be the case the employees were sufficiently advised through the medium of the notice of employee representational rights 5 and other direct communications (which formed part of the evidence6) that they were able to elect a representative of their choice or rely upon the representation of the employee organisation of which they are a member.7
[26] I do not read the document cited immediately above as qualifying or limiting the scope of representation indicated in the notice of employee representational rights. Indeed, Mr Costello, a Director of the Company, gave evidence that employees expressly nominated the BLF as their bargaining agent (although they had no need to do so). I add, as is mentioned above, the BLF was expressly invited to attend meetings through the assiduous efforts of the Applicant over the period from the initial meetings to the time of the ballot count (at which the BLF attended and seemingly acted as scrutineers).
[27] Generally, the evidence does not support a finding that the BLF was ignored or that its role as a bargaining representative was in any way diminished by the conduct of the Applicant, and the procedural obligation to issue the notice of employee representational rights under s.173 of the Act. On the evidence, that is, no mischief was afoot, no rights were compromised and the purpose of the statute (in effecting choice of representation) was realised.
Whether employees fairly chosen
[28] There was an apparent contest as to whether the requirements of s.186(3) and s.186(3)(A) of the Act had been met. These provisions read relevantly as follows:
Requirement that the group of employees covered by the agreement is fairly chosen
(3) FWA 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, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
[29] Clause 1 of the Agreement stipulates that the parties to the Agreement are the Applicant and the employees of the Applicant engaged in the classifications contained in the Agreement.
[30] Clause 2 of the Agreement concerns the application of the Agreement and stipulates that it will apply to the Applicant and its employees engaged in construction and maintenance works throughout Australia.
[31] The classifications in the Agreement extended to CW1 (which is said in clause 6.1 of the Agreement to extend to skilled labourers and other employees not otherwise classified), CW2, and CW3.
[32] The evidence in these proceedings was that the Agreement was to have application only to those employees in the relevant classifications who perform duties “on site”. That is, it was only those employees who performed duties on site who voted to be covered by the Agreement.
[33] It appears to be uncontested that this was the same application or coverage that applied in relation to the earlier agreement.
[34] Indeed, the employees’ notice of representational rights, which I have cited above, made express reference to it (the notice) applying in relation to employees who were “subject to enterprise agreements already in place” (who were employees employed “on-site”). There was no evidence that this qualification caused any confusion amongst employees. 8 In any event, s.58 of the Act operates to regulate the interaction of agreements in relation to their application upon an employee.
[35] It appears to me that the selective (on site) coverage of the Agreement represents a geographically distinct part of the workforce, and that it also appears to be an operationally and organisationally distinct part of the Applicant’s workforce. It follows that such a select part of the workforce would be fairly chosen, noting in addition, as I have indicated above, that there is some history of agreement coverage in this respect.
[36] Counsel for the Applicant, in closing submissions, put the matter as follows:
There’s been a long-standing recognition of their separate coverage industrially. Secondly, evidence of Mr Gray and Mr Costello is clear that the way that on-site staff are managed, they’re managed quite separately and they undertake quite different tasks to tasks of persons employed in the office cum workshop. And in fact the evidence of Mr Hartley was to the effect that he knew someone in the office but he rarely went there. So in my submission it is a clearly geographically distinct, operationally distinct, and organisational a distinct sector of the workforce that has been recognised as such industrially and which has been fairly chosen. 9
[37] The direct evidence supported such a conclusion, as well. 10
[38] Notwithstanding this, the application clause in the Agreement does not make reference to the coverage extending to on site employees only, and is broadly couched. There is a possibility the application clause may cause confusion and give rise to compliance issues. The BLF suggested that unqualified application clause in the Agreement could extend to non-onsite employees (other than those in administrative roles) who perform motor mechanic duties (such as a diesel fitter carrying out roles in a workshop) at the Applicant’s place of business. In actuality, the BLF took this argument further and claimed that this class of employees was unfairly excluded from the application of the Agreement.
[39] I doubt this would eventuate given the basis on which the application of the Agreement has been established as a matter of fact. Yet, to minimise risks, and to ensure future compliance, added specification is warranted. Consequently, given that the matter falls under s.186 of the Act, I would request that the Applicant provide an undertaking pursuant to s.190 of the Act. Such an undertaking would need to have the effect of inserting at clause 2 of the Agreement a qualification such that the employees engaged in construction and maintenance works throughout Australia are those who are confined to performing such functions “on site”.
Issues in relation to bargaining representatives and the ballot procedure
[40] Section 188(c) of the Act provides as follows:
188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:
[...]
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
[41] It is conceivable that for the purposes of s.188(c) of the Act had the ballot procedure been compromised in one way or another it might be open to conclude that the Agreement was not genuinely approved or agreed by the employees to whom it was intended to cover. The ballot procedure might be compromised in a number of ways. The subtext of the evidence and cross examination carried out over the course of these proceedings suggested that there was a concern that the bargaining representatives who were participants in the ballot process might not have conducted themselves independently or with the interest of ensuring the integrity of the ballot itself.
[42] Regulation 2.06 of the Regulations provides as follows:
2.06 Appointment of bargaining representatives — independence
A bargaining representative of an employee must be:
(a) free from control by the employee’s employer or another bargaining representative; and
(b) free from improper influence from the employee’s employer or another bargaining representative.
[43] It was suggested by the BLF that the bargaining representatives were in effect employer nominees and did not meet the requirements of r.2.06 of the Regulations.
[44] There is no evidentiary basis to any claim that the employee bargaining representatives nominated by written instrument were in any way compromised, controlled, or otherwise influenced by the Applicant as a consequence of being a leading hand or otherwise. It appears that such an issue may have been averted to in the bargaining process when there was an exchange between the employee bargaining representatives and a BLF bargaining representative. Whatever the case, there is no evidence at all that the bargaining representatives failed to perform their functions in the interests of those they represented.
[45] The employee bargaining representatives appear to have had a historical involvement in bargaining in this workplace and would have been reasonably presumed to be capable of fulfilling representative roles in relation to the negotiation of the current agreement. Further, one of the employee bargaining representatives, Mr Hartley, had been a long standing member of the BLF, and an inference might be drawn that he would have been unlikely to be co-opted readily by his employer.
[46] While it is true to say that the identity of the three employees was disclosed expressly by the Applicant as being three employees who might perform the role as a nominated bargaining representative, employees were nonetheless informed that they may elect a party of their choosing. 11 I have also made earlier comment about the understanding of the employees in relation to the issuance of the notice of employee representational rights.
[47] There is one final issue to be discussed here and that concerns the BLF’s objection to the role of the employee bargaining representatives on the basis that the bargaining representatives may not have known which particular employees they were representing.
[48] There is some oddity in this, at first glance. But s.178 of the Act does not prescribe that an employee bargaining representative must be informed in respect of the discrete identity of any employee(s) who have made a written instrument to appoint them as bargaining representatives. It is the fact of the existence of the written instrument of appointment that is critical (and logically the communication of its existence to the employee or person who assumes the identity of the employee bargaining representative). There is no dispute over this factual situation in the current matter.
Ballot practices
[49] Some time was spent in cross-examination scrutinising the practices in relation to the conduct of the ballot. The sub text here, it seems, was that the Agreement could not be said to have been genuinely made because the ballot process lacked integrity.
[50] It appears to me that the Applicant and those bargaining representatives who were involved in the ballot conducted themselves with all due awareness of ensuring the ballot had a sufficient degree of integrity. A locked ballot box was utilised, completed votes were folded and initialled, and the ballot box handled and the ballot counted in a manner appropriate to the practical circumstances in which the Applicant, the bargaining representatives and the employees found themselves. There are no circumstances, simply, that would sustain an inference that the integrity of the ballot process could in any way be open to question, or that there was any interference in the ballot or with the ballot papers themselves.
Section 180(2) of the Act and whether documents referred to are incorporated
[51] There is a claim that there had been non-compliance with the requirements of s.180(2) of the Act. Section 180(2) of the Act provides as follows:
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.
[52] The evidence in this matter shows that both the requirements of subsections 180(2)(a) and s.180(2)(b) were met by the Applicant.
[53] In the first instance, the Applicant provided the relevant employees with a copy of the draft agreement and then subsequently provided those same employees with an additional document setting out the amendments to the draft agreement. The fact the documentation before the relevant employees had to be read together - or was in two parts - does not in my view detract from the statutory obligation to provide the employees with the written text of the Agreement.
[54] The amending documentation in any event was far from complex and it was in all probability an easier means of appreciating the changes to the original text upon which negotiations had proceeded rather than attempting to identify those changes within a consolidated copy of the Agreement.
[55] There was also a claim that the Applicant had failed to make available to employees materials that had been incorporated into the Agreement.
[56] The statement at clause 5.4 of the Agreement of the obligation falling upon the relevant employees to comply with relevant Acts, Regulations, Codes of Practices and the Applicant’s Occupational Safety Policies and Procedures, however, cannot be construed as expressing an indication to incorporate such documents as terms of the Agreement.
[57] There are no words of incorporation evident in clause 5.4 of the Agreement. There is no evidence, despite the argument being had over the course of the proceedings, that the parties to the agreement mutually intended to incorporate the relevant materials and to give them force through the agency of the agreement.
[58] Such documents relating to the obligations that fall upon employees by way of external instruments are within the public domain and were otherwise provided at the time of induction and do not need to have been provided along with the text of the Agreement during the access period. 12 There is a discussion below as to whether the drug and alcohol policy appended to the Agreement is incorporated into the Agreement.
[59] It appears to me, therefore, that the relevant employees were given and had before them - by dint of the efforts of the Applicant - during the access period that documentation that an employer is obligated to take reasonable steps to provide them with under s.180(2)(a) of the Act. Therefore, the requirements of s.180(2)(a) of the Act were satisfied.
[60] Further, because the required documentation was made available to the relevant employees by the Applicant by post before the access period commenced, the requirements of s.180(2)(b) of the Act were also discharged (in effect) as the relevant materials were accessible to the relevant employees throughout the access period.
[61] I add finally that no issue arises in my view because documentation was distributed by post, even given the proximity of the commencement of the access period. Such a method of distributing materials prior to the commencement of the access period is demonstrative of the Applicant taking reasonable steps to meet its statutory obligations. There is, I point out, no requirement for me to investigate in other than the most unusual of circumstances the performance of the Australia Post Service delivery standards on any one occasion.
Notification of time and place of voting
[62] Section 180(3) of the Act reads as follows:
180 Employees must be given a copy of a proposed enterprise agreement etc.
Pre-approval requirements
(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.
[...]
(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.
[63] The evidence in this matter demonstrates that the Applicant took all reasonable steps to notify the relevant employees (those who were Brisbane-based and the smaller number who were to remain in Townsville) before the commencement of the access period of the timing of the vote, the place at which the vote would occur and the voting method. But is this sufficient to satisfy the statutory requirement?
[64] There was a contest between the parties as to whether or not the Applicant had notified the employees of “the time” at which the vote was to occur. There is no evidence that the Applicant notified the relevant employees of the time of the vote other than by specifying the day upon which the ballot would be conducted, that the ballot would be a secret ballot and that it would be conducted on site.
[65] I find no difficulties, firstly, with the specification of the conduct of the ballot being “on site”. For each of the relevant employees the concept of “on site” is a known place in relation to the place of work on a particular day. That is, “on site” in the circumstances of this case is an effective surrogate for the statutory notion of “place” at s.180(3)(a) of the Act. It is not required that the employees be given the exact location of where within the site the vote will occur. I add that given that all the employees who were able to vote in the ballot did cast a vote, there seems to have been no consequent confusion on the part of the relevant employees as to the “place” at which the ballot was to occur.
[66] The BLF contended, however, that s.180(3)(a) of the Act should be read literally as indicating a specific “time” at which the vote will occur at the particular place:
In my submission, there is no evidence before your Honour whatsoever that the employees at any time, whether before or during or after the access period, were notified of the time at which the vote would occur. There was some evidence that employees were told that the vote would occur on Friday week but, of course, that is not evidence of the time at which the vote would occur. The time, of course, is the time of day - for example, 6 am, 7 am, midday, et cetera. There is no evidence whatsoever that employees were ever notified of the time at which the vote would occur. Of course, section 180 subsection (3) is one of the requirements that have to be met for the agreement to be approved that’s referred to in section 186 or 187. 13
[67] This is not an unreasonable approach to construction and on most occasions the plain words of a provision would have application.
[68] However, in context, it appears to me that this construction of s.180(3)(a) of the Act might give rise to very important practical difficulties. That is, if I were to accept that s.180(3) of the Act required an employer to stipulate the precise time of the day at which a vote will occur there would be no obligation on the employer to specify the day, let alone the date on which the ballot will occur.
[69] It appears to me that the Act’s purpose - which demonstrably is to place employees in an informed state about a critical step in the process leading to genuine approval of the Agreement - would be defeated on this construction.
[70] Moreover, it is difficult to apply the notion of “time” being a designated time of a day in the context of a postal ballot, which is a common method of voting on an enterprise agreement. Of course, the construction of “time” being “a time of the day” does not apply practically to the commencement of a postal vote, for which the designation of an hour in a day (for the “time” of its commencement) would produce a fraught outcome.
[71] As was advocated by the Applicant’s counsel, a better reading - and one that gives effect to the Act’s purposes - is to construe s.180(3)(a) of the Act as meaning that an employer must notify relevant employees of the “timing” and place at which the vote will occur, such that they can cast an effective ballot. I agree with this construction.
[72] The issues arising from the construction of the section are unusual, and so much so that they compel me to adopt this purposive approach to construction. And in view of this approach, the Applicant - on the evidence before me - must be taken to have made all reasonable steps to discharge its obligations under s.180(3) of the Act.
Explanation of the agreement to employees
[73] Section 180(5) of the Act provides as follows:
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.
[74] For the purposes of s.180(5) of the Act, an employer must take all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, are explained to the relevant employees and that that explanation is appropriate to the needs of the relevant employees.
[75] At its most fundamental level, the evidence in this matter demonstrated that Mr Gray carried out a succession of site meetings with employees where he focused attention upon the terms of the Agreement. He discussed its terms and provided an opportunity for employees to ask questions about the terms of that agreement. The discussions and communication about the terms of the Agreement started at an early point in the agreement making process. 14
[76] There is some tension in the evidence as to whether or not this discussion moved between an examination of the terms of the Agreement as such and other practices that have evolved over time between the Applicant and the relevant employees. This was most clearly the case in relation to meal breaks and living away from home allowances, in which there appeared to have been practices above and beyond the terms of any agreement, as to how the meal break was to be taken in the context of a shortened day and the away from home allowances paid.
[77] Be that as it may, the evidence didn’t suggest to me that Mr Gray was in some manner fomenting a mischief, or that his activities failed to constitute reasonable efforts to ensure the terms of the Agreement and the effect of those terms were explained to the relevant employees. Indeed the discussions might have been more wide ranging than the Agreement terms themselves, but Mr Gray’s evidence was sufficient to demonstrate that the requirements of s.180(5)(a) of the Act were satisfied.
[78] Mr Gray took no particular approaches other than to communicate in the ordinary manner for purposes of s.180(5)(b) of the Act. This is because the relevant employees to the best of his knowledge possessed effective English language skills and required no more customised method of communication. In view of this, the requirements of s.180(5)(b) of the Act have been discharged by the Applicant.
Better Off Overall Test and National Employment Standards Issues
[79] Initially, in relation to the Better Off Overall Test (“BOOT”), I make the point that the wage rates are higher than the minimum rates prescribed in the Building and Construction General On-Site Award 2010 (“the Modern Award”). Specifically, the percentage difference between the Agreement CW1 rate and the corresponding rate in the Modern Award is 63.6%; the difference between the CW2 rate in the Agreement and the corresponding rate in the Modern Award is 66.4%; and the difference between the CW2 rate in the Agreement and the corresponding rate in the Modern Award is 68.5%. This comparison is based on the Modern Award rates as they were prior to the Annual Wage Review of June 2012.
[80] The site travel allowance is 131% of the Modern Award rate (unadjusted).
[81] There are other benefits arising from the employer contribution to the Construction Income Protection scheme ($18.50 per week) and an enhanced employer superannuation contribution (of between 3%-9% above the Modern Award minimum of 9%).
Shiftworker definition
[82] Clause 8.1.1 of the Agreement defines shift work in the following terms:
A shift worker defined as an employee whose shifts are continuously rostered 24 hours a day for seven days a week is entitled to be paid annual leave at the rate of 5 weeks of ordinary time for each year of continuous service consistent with the Fair Work Act 2009.
[83] The Modern Award stipulates that a continuous shift worker means:
an employee engaged to work in a system of consecutive shifts throughout the 24 hours of each of at least six consecutive days without interruption (except during breakdown or meal breaks or due to unavoidable causes beyond the control of the employer) and who is regularly rostered to work those shifts.
[84] It appears to me that there is scope for an employee to perform shift work of a kind described in the Modern Award under the terms of the Agreement but not attract the fifth week of annual leave as a consequence. This is because the Agreement definition of shift work extends to continuously rostered work over a seven day period as opposed to the Modern Award definition that extends over only six consecutive days.
[85] Section 87(1)(b) of the Act sets out the National Employment Standards (“NES”) in respect of shift workers, and provides as follows:
Amount of leave
(1) For each year of service with his or her employer, an employee is entitled to:
[...]
(b) 5 weeks of paid annual leave, if:
(i) a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or
(ii) an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or
(iii) the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).
Note: Section 196 affects whether FWA may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.
[86] In view of this, I have a concern, as s.190 of the Act puts it, that the Agreement does not meet the BOOT in that the class of employees who perform shift work under the Modern Award would not be entitled to a fifth week of annual leave if they performed the same shift work pattern (as under the Modern award) under the Agreement. As a consequence, I would require an undertaking, to the effect that a shift worker who performs shift work of a kind described in the Modern Award under the terms of the Agreement will qualify for the shift work annual leave entitlement stipulated in the NES.
Annual leave
[87] The BLF contended that the Agreement provides for employees to be forced to take annual leave in ways that are not allowed by the Modern Award, which constitutes a detriment to the employees covered by the Agreement. 15
[88] Clause 8.1.4 of the Agreement provides that-
The taking of annual leave will be subject to mutual agreement and at times convenient to the requirements of projects.
The employer by giving reasonable notice may require employees to take annual leave for an annual shutdown.
[89] Clause 38.3 of the Modern Award allows only for employees to be required to take annual leave at Christmas or New Year and then only with two months’ notice to employees if the employees are required to take all of their accrued annual leave.
[90] It appears to me that the Agreement might be deemed deficient, or subject to future controversy, in respect of the notification period that is implied in “reasonable notice” under the Agreement. In such circumstances, it would appear to me that an undertaking pursuant to s.190 of the Act would cure my concerns.
[91] Such an undertaking would need to indicate that where the majority of employees are directed to take annual leave during part or all of an annual shutdown, and the period of leave directed to be taken would exhaust the annual leave entitlement of any employee, the employer must provide the affected employees with two months’ notice. That is, the intent of the undertaking is to replicate the notice period (and its terms) under clause 38.3 of the Modern Award.
Hours of work
[92] In respect of hours of work, clause 7.1 of the Agreement provides, amongst other things, that:
The ordinary hours of work shall be an average of 36 hours per week to be worked over a nominated work cycle, with 8 ordinary working hours worked each day, with 0.8 of an hour each day accruing towards a rostered day off. The ordinary hours may be worked from 6.00am to 6.00pm Monday to Friday.
The spread of hours may be altered by the agreement to suit project requirements.
[93] The BLF objected to this clause, submitting that “there is no limit in the alleged agreement as to the extent of alteration that could be made to the spread of ordinary hours” and that “would allow, for example, the spread of ordinary hours to be altered to midnight Sunday to midnight or 11.50 pm on the following Sunday; in other words, to make essentially every hour of the night and day throughout every day of the year to be ordinary hours.” This, it was said, would “eliminate any entitlement to overtime pay at higher rates of pay such as are provided for by the award.” 16
[94] Clause 7.1 of the Agreement does not appear to operate in this manner. As the Applicant put it, the 36 hour work cycle must be worked in eight ordinary hours each day, these hours must be worked between 6.00 am and 6.00 pm, and the ordinary days are performed Monday to Friday.
[95] The reference to the spread of hours, which is of concern to the BLF, appears to me to be merely a reference to the hours that may be worked between 6.00 am and 6.00 pm of each day.
[96] Clause 7.2 of the Agreement sets out the overtime that is to apply for hours worked outside the ordinary daily hours, including on Saturdays and Sundays.
[97] Generally, the clause raises no issues in respect of the BOOT.
Rostered Days Off
[98] The BLF objected to the Agreement’s RDO provisions and put the issue in the following terms:
With respect to RDOs, rostered days off, schedule 3 of the alleged agreement provides for varying numbers of RDOs per year - between five and 12 per year - whereas the award provides for 13 RDOs per year. In other words, employees may be as worse off by the agreement from one year to the next to the extent of eight days fewer RDOs under the agreement compared to what they would be entitled to under the award, which again is a significant matter. 17
[99] The Agreement is non-specific about the number of RDO’s an employee will accrue in a given calendar year. Schedule 3 indicates certain dates when some RDO’s are intended to be taken but does not provide that these are the only RDO’s able to be taken by employees. While it does not nominate the precise number of days, clause 7.1 of the Agreement provides for an accrual mechanism:
The ordinary hours of work shall be an average of 36 hours per week to be worked over a nominated work cycle, with 8 ordinary hours worked each day, with 0.8 of an hour each day accruing toward a rostered day off.
[100] It seems to me that the accrual machinery is sufficient to establish the enforceable entitlement to a sufficient number of RDO’s. Given that 0.8 of an hour equals 48 minutes, an employee would accrue 240 minutes per week and 12,480 minutes per annum. When divided by 60, this would amount to 208 hours, which is the equivalent of 26 rostered days off per annum. The relevant accrual rate in the Modern Award is 0.4 of an hour, by contrast.
[101] The fact that the Agreement stipulates that there will be some bunching of RDOs within defined parts of the calendar year takes matters no further.
[102] Notwithstanding the above, a reasonable question arises - perhaps for another time - as to whether a departure in an agreement from an RDO accrual rate from that stipulated in the Modern award is necessarily an issue for the better off overall test.
Meal Breaks
[103] Clause 7.3 of the Agreement concerns meal breaks and rest pauses, and it provides relevantly as follows:
There will be a meal break and a rest pause for each shift or day where a minimum of five hours are worked Monday to Friday. The meal break shall be thirty minutes duration and will be unpaid. The rest pause will be twenty minutes duration and paid. The meal breaks and rest pauses will be taken at such time so to not interfere with the continuity of the operations.
[104] The Modern Award provides at clause 36.5 thereof that an employee who performs duties at the direction of the employer in lieu of taking a meal break as set out in clause 35.1 of the Modern Award will be paid at double time for the period worked between the prescribed time of finishing and the beginning of the time allowed in substitution for the meal break. The Agreement provides no such entitlement.
[105] It appears from the evidence of Mr Gray that the Applicant maintains a practice, which has been in place for several years at the request of staff, that permits staff to work eight hours per day not 8.5 hours, with a paid 30 minute rest break in the mid-morning. 18
THE SENIOR DEPUTY PRESIDENT: You’re straying somewhat from what was the question here. The issue is what do the words say and what did you communicate to the employees?---I communicated to the employees what I just said. If they want to work through their lunch break then they can have an extended 30-minute smoko break paid for. If they don’t want to work through their lunch break and they want to have a meal then it’s 20 minutes’ smoko paid and then half an hour unpaid. 19
[106] The evidence in this matter suggests that there is a voluntary or discretionary approach to meal breaks and rest pauses that is exercised at the initiative of the employees on the one hand, and on the other hand, there is the formal employer obligation provided by way of clause 7.3 of the Agreement. It is the latter which is of concern for purposes of the statutory approval process.
[107] The BLF objected to the Agreement clause because it removed the 200% penalty provision which applies under the Modern Award for the period between when the meal break ought to have been taken and when it is actually taken:
Again, that is a potentially significant monetary disadvantage to employees. A rate of double time under the award is to be higher than the base rates under the agreement and the period of time each day for which the employee might be paid that lesser rate under the agreement is effectively from 12.30 pm until whenever the work finishes, so in the case of work finishing at 5 pm, that monetary disadvantage per hour would be experienced by the employee over four and a half hours in that example. That disadvantage is a potential on every single day that the employee works. It’s quite common in the industry for employees to be required to work through their meal breaks, given the pressure of construction schedules and the like. 20
[108] There is something to this argument. The monetary loss to an employee under the Agreement compared to the Modern Award, could be significant, as the 200% rate under the Modern Award exceeds the hourly rate under the Agreement. Over a period of some time, the benefit from the Agreement may be eroded.
[109] Because of this, I will seek an undertaking from the Applicant in appropriate terms and reflecting the circumstance contemplated in clause 36.5 of the Modern Award, where the employer requires an employee to work during the time prescribed in clause 35.1 of the Modern Award.
Personal leave
[110] Clause 8.2.2 of the Agreement provides that:
An employee absent on sick leave for more than two consecutive days or on more than two single days in any year may be required by the employer to produce a medical certificate.
[111] The BLF objected to the evidentiary requirement in relation to the taking of such leave. 21
[112] The Modern Award is referable to the NES in these regards.
[113] Section 107(4) of the Act provides that an employee is not entitled to take personal\carer’s leave unless the employee complies with s.107(3) of the Act. Section 107(3) of the Act sets out the various evidentiary requirements an employee must give the employer (if requested by the employer) in relation to the various kinds of leave an employee might seek to take.
[114] Section 107(5) of the Act provides that an enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to be paid personal\carer’s leave etc.
[115] The requirement set out in clause 8.2.2. of the Agreement appears to be no more than an example of the type of evidentiary requirements contemplated by s.107(5) of the Act.
[116] It does not appear to me that clause 8.2.2 of the Agreement in any way departs significantly from the NES. If it did I would require an undertaking under s.190 of the Act, but that does not appear to be necessary in respect of this particular entitlement.
Casual conversion and minimum period of engagement
[117] The BLF contended that clause 14.8 of the Modern Award entitles a casual employee to convert to a permanent employee subject to various conditions.
[118] In this respect the BLF argued that:
The agreement provides no right in that regard whatsoever, and again, an employee in that situation - it can be difficult to quantify the disadvantage, but for an employee who would be entitled to conversion after six months under the award to permanent employment, that same employee doesn’t have that right under the agreement, and the amount of monetary disadvantage that an employee suffers throughout the life of the agreement, for example by being paid less than a full week’s wage for the various weeks during the agreement, could be a very large amount, but in any case it’s difficult to ascertain. 22
[119] It appears to me at first blush that where (at clause 5.1 of ) the Agreement provision is only made for two modes of employment - daily hire and casual employment - there may be minimal substantive gain, if any, in the substitution of casual employment for work on a daily hire full-time basis. The higher hourly rates under the Agreement compared to the Modern Award, amongst other things, therefore become a relevant consideration for offsetting any disadvantage.
[120] The Applicant’s evidence, which was unchallenged, was also that it only employs regular casual employees as needed and then for only brief periods of time. It had examined its payroll records for five years in order to authenticate this claim. 23 It therefore had no requirement for any casual conversion clause in its agreement. Ordinarily, an undertaking in respect of retaining a casual conversion clause might be warranted where there is some genuine prospect of a casual employee (other than one of an irregular kind) being employed. But in the current circumstances such an undertaking would be merely redundant.
[121] Notwithstanding this, the Agreement is deficient against (clause 14.4 of) the Modern Award in respect of the entitlement to a minimum four hour period of employment for a casual employee. There is some scope for this entitlement to be enlivened with some frequency in this industry, particularly where work is rain affected or there are delays of other kinds.
[122] The loss of such an entitlement might be important to a casual employee in circumstances where there was a sustained approach over time to short periods of engagement (of less than four hours). Therefore, in light of this, an appropriate undertaking pursuant to s.190 of the Act is required.
Allowances
[123] The BLF also contended that the Agreement removed a range of Modern Award allowances:
The award allowances referred to include compensation for tools and clothes - $1553 for the loss of tools or clothes; a special allowance of $7.70 for every week for all of the employees under the award; an in charge of plant allowance of 4.7 per cent of the standard weekly rate; special rates applicable to all sectors, including confined space allowance of 4 per cent; wet work allowance of 3.2 per cent; dirty work allowance of 3.2 per cent; toxic substances allowances of 4 per cent; an allowance for fumes; an asbestos allowance of 4 per cent; a height work allowance of 2.9 per cent; employees carrying fuels, oils and greases of 1.4 per cent; and a dual lift allowance of 16.2 per cent.
There are other award allowances relating to the general building and construction sector, including plaster or composition spray of 3.2 per cent; second-hand timber of 12.6 per cent; computing quantities of 23.3 per cent; a certificate allowance of 3.2 per cent; a spray application allowance of 3.2 per cent; a sandblasting allowance of 0.4 per cent; a first aid allowance, for employees with the appropriate qualification and responsibility, of either 0.36 per cent or 0.57 per cent. 24
[124] The BLF also contended that evidence by the Applicant that the entitlement to the allowances did not arise in the scope of work performed by its employees was an irrelevant consideration, as potential disadvantage needed to be considered for purposes of the BOOT not only actual disadvantage.
[125] It appears to me, firstly, that the significantly higher rates of pay (and other benefits referred to above) in the Agreement offset any detriment caused by the loss of any allowances over the life of the Agreement. In addition, the Agreement provides for enhanced allowances for fares and travelling and also places obligations on the Applicant to provide various items of workwear including shoes and to replace these when they are worn out.
[126] In any event, the evidence of the Applicant, which was not effectively challenged, was that the work it carries out does not attract many of the allowances cited in the Modern Award.
[127] Generally, there is in my view no substance to the claim that the mere fact the Agreement does not replicate the allowance prescriptions of the Modern Award means that the Agreement cannot be approved.
Drugs and alcohol policy: whether policy incorporated
[128] Schedule 4 of the Agreement comprises a document with a facing page which reads “Drugs and Alcohol Policy: Alcohol and Other Drugs in the Workplace”. Demonstrably, this document, on its presentation, is a document prepared by the Applicant as a policy document.
[129] Clause 5.5 of the Agreement is headed, “Drug and Alcohol Testing”. The sub clause reads as follows:
The Drug and Alcohol Policy is attached as Schedule 4 to this agreement. The employer reserves the right to introduce drug and alcohol testing during the life of this agreement. Prior to introduction of testing there will be reasonable consultation with the employees.
[130] Schedule 4 of the Agreement reads in part:
This policy has been established to assist QPS management and employees for the delivery of all issues relating to Drugs and Alcohol in the workplace.
Generally, QPS are employed as a sub contractor by main contractors whom operate under site specific policies. QPS employees are to abide by the main contractors policies in the first instance followed by the policy requirements set out herein. (sic)
[131] The BLF objects to the inclusion of schedule 4 to the Agreement in the following terms:
We say the task is simply to decide whether this policy or elements of it make employees better or worse off and to factor that judgment into the overall judgment about whether the agreement as a whole makes employees worse off compared to the award. Importantly, the award does not deal with any of the matters dealt with in the drugs and alcohol policy set out in the agreement.
QPS employees are to abide by the main contractor’s policies in the first instance, followed by the policy requirements set out herein.
The disadvantages that a policy of a main contractor can impose on QPS employees are boundless and not limited in any way by the alleged agreement. Loss of employment is certainly possible if a QPS employee is unable to comply or does not comply with such a policy of a main contractor. The above-award wages of the base wages of the alleged agreement are no benefit whatsoever to an employee who has lost their employment under that alleged agreement. 25
[132] The BLF otherwise contended that the clause, because it extended to subcontractors was impermissible because it did not pertain to the employment relationship, and therefore embodied subject matter about which an agreement cannot be made. 26
[133] The objections of the BLF are predicated on the assumption that schedule 4 is a term which is enforceable by virtue of it being a term of the Agreement.
[134] It appears to me that because there are no words of incorporation in clause 5.5 of the Agreement, and the policy on its face is a stand-alone document arguably reflecting workplace health and safety and obligations, the schedule is not incorporated into the Agreement nor is it a term of the Agreement enforceable by virtue of the Agreement. That is, the Agreement merely makes reference and alerts the employee to the existence of a drug and alcohol policy about which there is an expectation of compliance (the force of which arises from the policy itself and not from a term of the Agreement).
[135] Absent an indication of express intent on the part of the parties made the agreement to incorporate a policy, even one appended to an agreement by a schedule, as in this case, I cannot find otherwise. A finding to the contrary would be to insert words, in effect, into the Agreement that are not there, and in respect of which those who made the agreement did not consider.
Nominal Expiry Date
[136] Section 186(5) of the Act provides as follows:
Requirement for a nominal expiry date etc.
(5) FWA 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 FWA approves the agreement.
[137] Section 54 of the Act provides as follows:
54 When an enterprise agreement is in operation
(1) An enterprise agreement approved by FWA operates from:
(a) 7 days after the agreement is approved; or
(b) if a later day is specified in the agreement—that later day.
(2) An enterprise agreement ceases to operate on the earlier of the following days:
(a) the day on which a termination of the agreement comes into operation under section 224 or 227;
(b) the day on which section 58 first has the effect that there is no employee to whom the agreement applies.
Note: Section 58 deals with when an enterprise agreement ceases to apply to an employee.
(3) An enterprise agreement that has ceased to operate can never operate again.
[138] It follows that the nominal expiry date of an agreement must be no more than four years from the date FWA approves the agreement. Given the effect of s.54 of the Act, which provides that an agreement will not commence until 7 days following the approval of the agreement by FWA, the practical nominal operative period of an agreement will be one week less than four years.
[139] Clause 3 of the Agreement is headed “Duration of Agreement” and provides as follows:
The agreement shall apply from the date of approval with Fair Work Australia until 31 December 2014.
[140] The notion of “apply” utilised in clause 3 of the Agreement is uncertain; the word neither reflects the meaning of s.186(5) of the Act or s.54 of the Act.
[141] The BLF argued that the nominal expiry date of the Agreement did not conform to the requirements of s.186(5)(b) of the Act, as the Agreement was said to commence 7 days earlier than it could for the purposes of s.54 of the Act. Specifically, the BLF argued that:
with respect to the undertaking regarding the delaying of the operative date [...] if the undertaking [...] had been a term of the agreement, and was subject to the proper pre-approval steps, we would have no objection to it. However, the undertaking does substantially change the alleged agreement by apparently delaying its operation by seven days. Delaying on the face of the agreement its commencement by seven days means employees are not entitled to any of the wages or conditions in the agreement before those seven days, which is likely to cause financial detriment to the employees. 27
[142] It seems to me that in a case such as this the employees could never have derived any benefit from the nominal expiry date (as it is set at the statutory maximum under s.186(5)(b) of the Act) and could hold no reasonable expectation of any such benefit.
[143] In any event, undertakings in such terms are frequently required by FWA, though less so in current times than in the earlier period after the Act had commenced and there was some confusion about the interaction of statutory notions of “approval” and “commencement” of the Agreement. It would be an unusual circumstance to now contend that such undertakings were and are impermissible because of the operation of s.190(3)(b) of the Act.
[144] Notwithstanding this, I do have a concern that the Agreement’s period of operation does not reflect the Act’s requirements. As a consequence, an undertaking is sought from the Applicant that the nominal expiry date of the Agreement reflects the statutory requirements (of s.186(5) of the Act or s.54 of the Act).
Undertakings - whether significant changes
[145] The BLF also contended that in the event that a number of undertakings were sought for purposes of the approval of the Agreement, these undertakings could not be accepted as they would lead to significant changes to the Agreement, and therefore contravene the requirements of s.190 of the Act.
[146] Section 190(3) of the Act provides as follows:
Undertakings
(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
[147] It does not appear to me that any of the undertakings sought by me will cause any financial detriment to the employees for the purposes of s.190(3)(a) of the Act.
[148] It further appears to me that the requirements of s.190(3)(b) of the Act are not contravened by any of the undertakings taken in isolation or together.
[149] None of the undertakings significantly change the Agreement other than to clarify existing entitlements (to the benefit of employees) and obligations. No terms that are foreign to the Agreement as made are introduced, such that there are any substantial changes to the Agreement itself.
CONCLUSION
[150] The Applicant is asked to consider the request for undertakings as set out above at paragraphs 39, 86, 90, 108, 121 and 143.
[151] Any undertakings which the Applicant intends to provide should be provided no later than 5.00 pm on 2 July 2012, and be copied to the BLF. The BLF must indicate to Chambers promptly and within 48 hours of the receipt of the undertakings from the Applicant any views it has about the undertakings (and whether it will file a Form F18). Upon this process being completed, the Agreement will be subject to consideration for approval.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr L. Reidy, Counsel as instructed by Mr J. Mamaril of Mullins Lawyers for the Applicant
Mr K. Crank, Industrial Relations Manager for the CFMEU
Hearing details:
2012.
15 May, 24 May, 28-29 May, 1 June.
Brisbane.
1 Exhibit A5 - Email from Mr Costello to Mr Crank dated 2 February 2012; Exhibit A6 - Enterprise Bargaining Agreement Meeting Minutes 8/2/2012; Exhibit A7 - Email from Mr Costello to Mr Crank dated 15 February 2012 ; Exhibit A18 - Enterprise Bargaining Agreement Meeting Minutes 1/2/2012.
2 For example see, transcript of proceedings dated 24 May 2012 at PNS 1370, 1388-1399, 28 May 2012 at PN 1949.
3 For example see Exhibit A8 - Letter from Mr Costello to Mr Crank dated 15 February 2012.
4 Exhibit A3 - letter to employees dated 15 December 2011.
5 Exhibit A2 - notice of employee representational rights.
6 Transcript of proceedings dated 28 May 2012 at PN 1868.
7 Exhibit A2 - notice of employee representational rights; Transcript of proceedings dated 28 May 2012 at PNS 1868 and 1667.
8 Transcript of proceedings dated 28 May 2012 at PN 1921
9 Transcript of proceedings dated 29 May 2012 at PN 2934.
10 For example, see Transcript of proceedings dated 28 May 2012 PNS 1913-1921.
11 Exhibit A3 - letter to employees dated 15 December 2011.
12 Transcript of proceedings dated 24 May 2012 at PN 1160.
13 Transcript of proceedings dated 29 May 2012 at PN 2980.
14 Exhibit A3 - letter to employees dated 15 December 2011.
15 Transcript of proceedings dated 1 June 2012 at PNS 3158-3159.
16 Transcript of proceedings dated 1 June 2012 at PNS 3152-3154.
17 Transcript of proceedings dated 1 June 2012 at PN 3157.
18 Transcript of proceedings dated 28 May 2012 at PN 2101.
19 Transcript of proceedings dated 28 May 2012 at PN 2468.
20 Transcript of proceedings dated 1 June 2012 at PN 3164.
21 Transcript of proceedings dated 1 June 2012 at PN 3165-3168.
22 Transcript of proceedings dated 1 June 2012 at PN 3171.
23 Transcript of proceedings dated 15 May 2012 at PN 431.
24 Transcript of proceedings dated 1 June 2012 at PNS 3173-3174.
25 Transcript of proceedings dated 1 June 2012 at PNS 3177, 3179-3184.
26 Transcript of proceedings dated 1 June 2012 at PNS 3184, 3189-3191.
27 Transcript of proceedings dated 1 June 2012 at PN 3214.
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