Redpath Contract Services Pty Ltd
[2017] FWC 2957
•30 MAY 2017
| [2017] FWC 2957 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Redpath Contract Services Pty Ltd
(AG2017/1220)
| COMMISSIONER ROE | SYDNEY, 30 MAY 2017 |
Application for approval of the Redpath Contract Services Enterprise Agreement 2017 Undertakings offered insufficient to meet the BOOT.
An application has been made for approval of an enterprise agreement known as the Redpath Contract Services Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Redpath Contract Services Pty Ltd (Redpath). The Agreement is a single enterprise agreement.
There were four employee bargaining representatives for this Agreement. The Agreement covers 23 employees and 13 of those employees voted for the Agreement. The Agreement replaces an earlier Agreement, the Redpath Contract Services Enterprise Agreement 2013. The Agreement does not cover all employees of the employer
The CFMEU was not a bargaining representative for the Agreement but I decided, for the reasons set out in the CFMEU submission, that I would be assisted in informing myself if I gave the CFMEU the opportunity to make submissions and to participate in the hearing of the matter.
Redpath were concerned about delays in finalising their application which might arise due to the involvement of the CFMEU and as a consequence I agreed to bring the matter on for a hearing. I requested that Redpath and the CFMEU provide written submissions prior to the hearing. I advised that the hearing would consider:
· whether the company should be permitted to be represented by lawyers
· whether the CFMEU is a bargaining representative and if not whether the Commission should consider its submissions and permit them to participate in the proceedings
· if the CFMEU is granted permission then the issues it raises will be considered
· whether or not the requirements of the Act for the approval of the Agreement have been met
· finalisation of the application.
I agreed that Redpath should have the opportunity to make further submissions and offer further undertakings after the hearing. This material was provided on 22 May 2017.
The issues of concern are as follows:
· Was the group to be covered fairly chosen?
· Does the disputes settlement procedure allow for representation? (Section 186(6)of the Act)
· Is the abandonment of employment clause an unlawful term?
· Are there terms which do not comply with the National Employment Standards?
· Does the Agreement meet the BOOT?
· Would the undertakings required result in a substantial change to the Agreement? (Section 190(3) of the Act)
· Did Redpath take all reasonable steps to provide employees with or with reasonable access to any material incorporated by reference in the Agreement? (Section 180(2) of the Act)
· Did Redpath take all reasonable steps to ensure that the terms of the Agreement and the effect of those terms was explained, taking into account the particular needs and circumstances of employees? (Section 180(5) of the Act)
Was the group to be covered fairly chosen?
Although I accept that Redpath failed to properly address this matter in the F17 Statutory Declaration, I am satisfied that the group of employees to be covered by the Agreement is fairly chosen taking into account whether the group is operationally, geographically or organisationally distinct. I accept that the employees excluded from coverage in administrative, technical or supervisory roles are to some extent operationally and or organisationally distinct from those who perform the mining or maintenance work in the classifications set out in the relevant Awards. There is no reason to suspect that those excluded from coverage voted.
The CFMEU submits that the coverage clause of the Agreement is confusing. I accept that there is some redundancy in Clauses 3.1 and 3.2 but I am satisfied that the coverage is sufficiently clear.
Does the disputes settlement procedure allow for representation? (Section 186(6) of the Act)
I am satisfied that this requirement is not met. Redpath have offered a suitable undertaking to resolve this concern. I am satisfied that such an undertaking is not a substantial change to the Agreement.
Are there terms which do not comply with the National Employment Standards?
Clause 14.2 provides that “Subject to RCS’s fitness for Work Policy and Procedures, you may be required to work unrostered overtime from time to time. Overtime can also be required to be worked as part of a roster. There is no limit on the number of hours in a roster other than the company safe work and fatigue management policy. There is no limit on the number of hours which can be worked in any day or in any week. I am satisfied that these requirements are inconsistent with the NES and the right to refuse to work additional hours if they are unreasonable. This matter could be resolved through an undertaking. Redpath have offered an undertaking that “for the purpose of clause 14.2 of the Agreement, RCS undertakes that a request or requirement to work overtime must be reasonable.” That undertaking would resolve the issue of unrostered overtime but given the absence of limits on rostered overtime, it would not fully address the consistency with the NES. I consider later the limits on rostered overtime when dealing with BOOT issues.
Clause 15.1 requires employees to work on public holidays to meet operational requirements. This is not consistent with the NES and the right to refuse an unreasonable request to work on a public holiday. Redpath have proposed an undertaking which would resolve this matter.
Clause 15.3 provides that annual leave will occur during a complete roster cycle unless otherwise approved. The CFMEU submits that this is not a reasonable term and therefore conflicts with the NES. The Clause provides that alternative requests may be approved and therefore, on balance, considered in the context of the nature of the work, the clause is a reasonable term.
Clause 16.3 provides that an employee is not entitled to notice when you abandon your employment. This is deemed to have occurred if absent for three shifts without cause. This is inconsistent with the NES. Redpath have proposed an undertaking which would resolve this matter.
These matters when taken as a whole are capable of being resolved by undertakings and the undertakings would not amount to a substantial change to the Agreement.
Is the abandonment of employment clause an unlawful term?
I am satisfied that the clause is an unlawful term because it modifies the application of unfair dismissal rights in a manner detrimental to an employee and this is prohibited by Section 194(d) of the Act. However, Redpath have offered an undertaking which would resolve that matter. The undertaking would not result in a substantial change to the Agreement.
For completeness, I agree with the submissions of Redpath in respect to the other two matters raised in this context by the CFMEU (Paragraphs 178-181 of the CFMEU submissions of 9 May 2017).
Does the Agreement meet the BOOT? Would the undertakings required result in a substantial change to the Agreement?
Clause 12.1 of the Agreement provides as follows:
“Classification and Hourly Rate
Your classification will be set out in your Contract of Employment.
Your Contract of Employment will also set out your Base Hourly Rate of pay together with your Roster. Your hourly or per shift remuneration are a function of applying your Base Hourly Rate to your Roster in accordance with this Agreement.
Your Base Hourly rate of pay will be no less than the applicable minimum, all purpose, classification rate for ordinary hours that would be payable for your position under the relevant Modern Award from time to time.”
The Agreement does not otherwise contain actual rates of pay. The Agreement allows for rosters to be changed by the employer. It is clear that an employee or a prospective employee could have a contract of employment which set out that the base rate of pay is the applicable all purpose Award classification rate for ordinary hours. The Agreement therefore cannot pass the Better Off Overall Test, unless the other conditions of the Agreement are overall better than the relevant Awards.
The relevant Modern Awards are:
· Mining Industry Award 2010; and
· Black Coal Mining Industry Award 2010; and
· Manufacturing and Associated Industries Award (the Awards).
The F17 Statutory Declaration refers to the following matters which are said to be better than the Awards:
· When an employee is required to undertake a drug or alcohol test to assess their fitness for work then the company will meet the cost of such a test. Given that the Award does not require employees to undertake drug or alcohol tests, this cannot be seen as a benefit when compared to the Award. In fact, the requirement to undertake such tests in circumstances where a failure to comply with the Agreement is actionable, must be considered as a matter which is detrimental to employees when compared to the Awards, regardless of who pays for the test. I do not suggest that this is a major detriment.
· Employees are required to use work clothing and personal protective equipment and to reimburse the company for the cost of such equipment if employment is terminated within six months of issue. Redpath argues that provision of work clothing and protective equipment in accordance with company policy as amended from time to time is a benefit. The Agreement does not require the employer to launder work clothing. I consider it likely that the employer would be required to provide PPE even if there was no provision in the Agreement. Given that the supply of clothing is a matter totally at the discretion of the company, and it is accompanied by the disbenefits when compared to the Awards of being required to wear specified clothing and equipment, and the significant disbenefit of being required to reimburse the cost on termination, I consider that this clause is at best a neutral consideration.
· Clause 18 of the Agreement provides that employees must comply with company policy and procedures regarding accommodation and transport and, that employees may be required to travel by designated means, and a requirement to enter into a travel plan and follow such a plan. Redpath states in the F17 that this provision means that where contractually relevant and possible, all employees will be provided with travel, accommodation and meals. I am not satisfied that the clause provides employees with a right to travel, accommodation and meals. The provision of the benefits is entirely at the discretion of the employer. Employees also suffer the dis-benefit of having to comply, as an actionable term of the Agreement, with employer directions about travel, accommodation and meals; including prior to and after work. This clause is a significant dis-benefit when compared to entitlements under the Awards in respect to accommodation, travel and meals.
· In respect to shift, first aid and tool allowance, the Agreement specifies that these will be paid on a per shift basis. Redpath states that this will result in a better outcome than the Award. The problem with this assertion is that a large number of Award allowances are not included. Redpath submits that a number of these allowances are not relevant to work conditions. However, I am not satisfied that the Agreement excludes work in the circumstance when such allowances may be applicable. Unlike under the Award, the Agreement requires the employee to obtain the first aid qualification in their own time and at their own expense. The instances where tool allowance is payable, are more restrictive under the Agreement than under the Award. The only provisions for shift work in the Agreement relates to night shift and continuous shift work. The Agreement does not exclude working other shifts where payments under the Awards would apply. The night shift payment will in most cases result in employees receiving a greater night shift penalty payment than they would under the relevant Award. In summary, some aspects of the Agreement allowances provisions are beneficial when compared to the Awards and some are detrimental.
· Clause 19 provides that Redpath will provide some training and may at its sole discretion decide to pay for the cost of training, and may require a training bond and to require reimburse training costs if employment is terminated within six months of the training. Employees are required to attend training as directed by management. I do not accept that when considered in context the provision that “RCS will provide you with training to acquire skills to meet operational needs” when combined with “RCS may, at its discretion, pay for the cost of approved courses” means that employees have a right under the Agreement to be paid for all training to meet operational needs. I am not satisfied that this provision is an advantage when compared to the relevant Awards.
The F17 identifies that some penalty rates and overtime conditions under the Agreement are detrimental when compared to the Awards. I am satisfied that there are a number of other detrimental terms which were not identified in the F17, including but not limited to the absence of accident make up pay, the absence of disputes settlement training leave, public holiday rates, the absence of casual conversion provisions, annual leave provisions, notice of termination, abandonment of employment, stand down, casual employment in black coal, and the requirement to comply with policies.
I therefore have no hesitation in concluding that the Agreement does not meet the BOOT by a substantial margin. There is no suggestion that circumstances exist which would allow me to approve the Agreement when it does not pass the BOOT.
Redpath has offered to make an undertaking that the base hourly rates of pay will not be less than a table of rates which would be attached to the undertaking. Those rates are between 11% and 12% above the Award, depending upon the classification, for those who would be covered by the Manufacturing and Associated Industries and Occupations Award 2010. They are between 16% and 26 % above the Award, depending upon the classification, for those would be covered by the Mining Industry Award 2010. They are 17% above the Award for those covered by the Black Coal Mining Industry Award 2010.
An increase in the minimum rates of pay of this magnitude would normally be regarded as a substantial change to the Agreement. Redpath submitted that because existing employees were paid the higher rates, the increase in rates is not a substantial change. During the hearing, I expressed a preliminary view that because the rates included in the undertaking appeared from the typical roster calculations to be the rates paid to some existing employees, the undertaking would not be a substantial change. The CFMEU responded in the proceedings by pressing their view that it did amount to a substantial change.
Redpath has provided a copy of the presentation made to most employees to explain the impact of the proposed agreement. In that presentation the wages issue is described under the heading “What’s changed and what’s new.” The following references follow:
“Pay structure – no more bonus. Will be a minimum rate and over agreement market rate.”
“In the Agreement no more than 10% above Award (current employee pay rates to remain unchanged)”
It is apparent that employees were told that the Agreement rate would be the relevant Award rate unlike the old agreement which provided for a minimum of 10% above the Award rates. In the F17 Form, Redpath sought to demonstrate that the BOOT was met using “typical” rosters and rates paid. The rates they utilised were the rates which now form part of the undertaking. This suggests that the rates included in the undertaking, may be the rates actually paid to employees. They are not however the rates which are applicable under the old agreement. There is no evidence before me that the rates of pay referred to in the undertaking are in fact the rates that are included in the contracts of employment for all existing employees. The Agreement does not require new employees to be paid any more than the Award rates. The undertaking increases those rates by between 11% and 26%. At the very least, the Agreement voted upon by the employees clearly decreased the minimum rates for employees who did not have higher rates enshrined in contracts of employment, to the Award rates, a decrease of 10% when compared to the old agreement. The undertaking increases the minimum rates payable to all new employees, and to any existing employees who do not have higher rates enshrined in their contracts of employment by 11% to 26%. Given these factors, the inclusion by way of undertaking of these higher rates as an enforceable term of the Agreement may be a substantial change.
There are a large number of other matters where the Agreement is detrimental when compared to the relevant Awards. Redpath is prepared to provide undertakings to resolve many of these issues.
The Agreement does not define part time hours and does not provide that part time workers get paid overtime for work in excess of their agreed hours. Part time workers only receive overtime when they work in excess of fulltime hours averaged over the roster cycle. This is a significant disadvantage for part time workers. Redpath have offered to provide an undertaking which would resolve this issue. Redpath have submitted that they do not employ any part time workers at the present time.
The Agreement does not include provision for the payment of annual leave loading. The Manufacturing and Associated Industries and Occupations Award requires the payment of annual leave loading on top of normal rostered earnings. The Agreement provides for the payment of rostered earnings during a period of annual leave. Shift workers in the yard and workshop may therefore be disadvantaged. The submissions of Redpath suggest that all the employees in its yard and workshop do not currently work shift work. In the event that employees were not engaged on shift work, they would also be disadvantaged by the absence of leave loading. Redpath is prepared to provide undertakings to resolve these issues.
The Agreement allows for the employment of casuals in black coal mining which is not provided for in the relevant Award. Redpath is prepared to provide undertakings to resolve this issue. Redpath submits that it does not currently employ any casuals in black coal mining. The penalty payments for casual employees working on weekends and public holidays are significantly less than those provided for under the relevant Awards. Redpath is prepared to provide undertakings to resolve this issue.
The Agreement provides for significantly less beneficial penalty rates for those engaged in shift work in areas covered by the Manufacturing Award. The Agreement also does not include afternoon shift penalty rates for those engaged in mining. Redpath is prepared to provide undertakings to resolve this issue. Redpath submits that those employed in the yard and workshop do not currently work shift work and those employed in mining do not generally work afternoon shift.
The Agreement requires employees to comply with a range of policies and procedures which may be varied by the company from time to time. This provision makes assessment of the BOOT impossible, as it is possible that the policies and procedures could impose onerous requirements upon employees or requirements which have the effect of varying other provisions of the Agreement, or could be unlawful terms which affect unfair dismissal rights. Redpath is prepared to provide an undertaking that these policies and procedures are not incorporated into the Agreement.
The Agreement provides that stand down compensation is not payable if an employee is stood down for misconduct, industrial action, annual shut down, adverse weather, mining incident or mining conditions. This provision allows stand downs in conditions which are much broader than those envisaged under the Act. The broadening, including allowing for suspension for misconduct without pay, is significant and detrimental to employees. Redpath is prepared to provide an undertaking not to use the provision to avoid paying employees in circumstances where they would otherwise be entitled to payment under the Act. The problem with this undertaking is that the Act does allow agreements to include provisions which deal with stand downs. There may be some aspects of the Agreement clause which are unenforceable due to their inconsistency with the Act but this is opaque for employees reading the Agreement. There is no doubt that allowing an employee to be stood down without pay for misconduct is detrimental when compared to the situation of an Award covered employee. An explicit undertaking that this provision and the related provision in Clause 16.1 are removed is required in addition to the undertaking provided to date.
The Agreement does not provide for Accident Make Up pay which is provided for in the Black Coal Mining Industry Award. Redpath is prepared to provide an undertaking which resolves this issue.
The Agreement provides for deductions from pay in respect to training costs and also in respect to monies owing on termination of employment. Redpath argues that the provisions require that the employee must separately agree to the deductions before they occur. The drafting is not clear but on balance, I am prepared to accept this submission. An undertaking is not required.
The Agreement includes provisions for overtime which are different from those in the relevant Awards. Firstly, overtime is only payable for work in excess of ordinary weekly hours whereas under the Awards overtime is also payable for work which extends a shift. Secondly, for black coal mining employees overtime under the Award is payable at 200% in a range of situations, whereas under the Agreement it is only payable to continuous shiftworkers. Thirdly, overtime on a public holiday under the Award for black coal mining employees is 300% whilst it is 250% under the Agreement. Fourthly, minimum engagement and rest periods which apply under the relevant Awards are not provided for under the Agreement. Fifthly, overtime meal allowance provisions which apply under the relevant Awards are not provided for under the Agreement. Redpath submits that mining employees are currently all continuous shiftworkers. However, there is nothing in the Agreement which prevents engagement under different arrangements and that possibility is not remote or fanciful. Redpath does not consider that undertakings are required to address these concerns. I am satisfied that the Agreement could not pass the BOOT unless undertakings are provided. Redpath is prepared to offer undertakings which deal with most of the concerns raised. In respect to the public holiday rate given that Redpath have undertaken not to employ casuals in black coal mining and that the incidence of overtime on a public holiday is likely to be low, I do not consider this to be a major issue. On balance, when considered in conjunction with the undertaking concerning rates of pay, I am satisfied that the undertaking offered in respect to overtime is sufficient to resolve the concerns.
The CFMEU raised a number of issues concerning hours of work. I consider that an undertaking is essential to overcome the concerns. Redpath is prepared to provide an undertaking that restricts ordinary daily hours and provide that work in excess of those hours is paid as overtime. Redpath is also prepared to provide an undertaking that the designated starting place for a shift is on the surface. The requirement in the Agreement to report to work 15 minutes prior to shift commencement is offset by the higher rates of pay now provided for by undertaking. The remaining concerns relate to the fixing and alteration of rosters. The only effective limitation in the Agreement is compliance with fatigue management policies. Given that these policies are not negotiated as part of the Agreement and can be changed at the sole discretion of management, I do not consider that this provides adequate limitation. The Agreement allows for rosters to be altered without any notice. The Awards provide much stronger limitations. This is not just a monetary issue. I do not consider that the BOOT is met in the absence of an undertaking which addresses this matter. Any undertaking would also need to limit the average weekly hours in a roster cycle in order to address the NES issue concerning maximum ordinary hours and reasonable overtime.
The CFMEU raises a number of concerns about the provision for rest breaks and rest pauses. The Agreement provides for a single meal break for shifts of 12 hours at a time determined by management. There is no provision for rest pauses. These provisions are significantly less beneficial than the relevant Award provisions. I agree with the CFMEU that this is a significant issue which cannot be compensated for in monetary terms. Redpath submits that a one hour break on a twelve hour shift is substantially the same as two half hour breaks. I reject this submission which takes no account of the arduous conditions associated with working a twelve hour shift. I consider an undertaking is essential to deal with this matter. Redpath is prepared to offer an undertaking which addresses some of the issues. I accept that the pay rates provided by the undertaking are sufficient to allow for the absence of payment of meal allowance. I do not consider that the BOOT is met in the absence of an amended undertaking, which provides for meal and rest breaks consistent with the relevant Awards. In particular, the following matters need to be included in any undertaking: shifts of more than 10.5 hours must allow for at least two meal breaks; no more than 5 hours work without a meal break and payment of overtime where this does not occur; and provision of rest breaks where provided for by the relevant Award.
The Agreement does not include a wide range of Award allowances. There are some differences between the Award rate and conditions associated with the allowances which are provided in the Agreement. Overall, given the rates of pay contained in the undertakings, I do consider that these differences in respect to first aid, leading hand and tool allowance mean that the BOOT is not met. In respect to some of the allowances which are not included, Redpath submits that it currently does not require employees to work in conditions which would entitle workers to the allowance. Given that work requirements may change, I consider that the absence of these allowances is a relevant BOOT consideration, however, I am prepared to accept the submission of Redpath that the incidence of these allowances may be low. On balance, I am prepared to accept that the rate of pay contained in the undertaking is sufficient to compensate for the absence of the allowances. This includes the deficiencies identified earlier in respect to travel and accommodation costs or allowance.
The CFMEU raised some concerns about the entitlements to annual leave and personal leave when compared to the provisions of the Black Coal Mining Industry Award. I agree with Redpath that the Agreement provision should be read as preserving the relevant Award entitlement. The other matters raised by the CFMEU in respect to annual leave and personal leave are relatively minor, other than the issue of payment of personal leave on termination.
In respect to termination of employment the Agreement requires employees to give a greater period of notice than that required under the Black Coal Mining Industry Award. There are several other detrimental provisions. Redpath is prepared to offer an undertaking to resolve the issue of payment of accrued personal leave. I am not prepared to accept that the BOOT is met unless this undertaking is amended to also deal with the issue of the notice required by employees working in the black coal sector in respect to termination. There are a very wide range of detrimental matters which have to be compensated for by the undertaking concerning higher rates of pay and I consider that the rates are not sufficient to compensate for all those matters plus the issue of a requirement for longer period of notice. That requirement has both a monetary and non-monetary aspect.
In respect to redundancy, the provisions in the Agreement are detrimental when compared to the Awards in respect to the exclusion of customary turnover of labour and offers of alternative employment. I agree with the CFMEU that these detriments are significant. Redpath argues that it’s defining of customary turnover to include the ending of a contract or reduction of employment associated with a contract is simply a statement of the law. Redpath also argues that it’s more restrictive provision about alternative employment is qualified by “unless required by law” and compliance with the Act. Redpath also point to the fact that redundancy payment is to be the amount provided for by the NES or the Award whichever is the greater. It may be that Redpath is correct that the Award rights would prevail, however, it seems to me that the first part of the Agreement Clause 16.2 is overridden by the subsequent provisions concerning ending of contracts and alternative employment. I consider that in order to meet the BOOT, given the large number of other detrimental provisions, it is necessary for an undertaking to be provided to remove the definition of ordinary and customary turnover of labour and to ensure that the Award provisions concerning alternative work are incorporated.
As discussed earlier, the provision in respect to training costs is detrimental when compared to the relevant Awards. I am not satisfied that Redpath is correct when it asserts that the Agreement provision ensures that all training which is necessary for the performance of work is paid for by the employer. Whether or not approved courses are paid for by the employer is at its sole discretion. In order for the BOOT to be met, I would require an undertaking that clarifies that all training required to meet operational needs is paid for by the employer.
In summary I consider that the undertakings offered with some additions, if provided in the required signed form, would resolve the outstanding BOOT and NES issues. The additions are in respect to redundancy, training provision, employee notice of termination, rosters, stand down, and meal and rest breaks.
The final issue is to consider the matter of whether the undertakings when considered as a whole would amount to a substantial change to the Agreement. As noted when considering a number of the particular items, some of the changes do not relate to the fundamental terms and conditions as they affected employees when voting for the Agreement and some undertakings may reflect current practice. These considerations must be balanced against the fact that even where matters reflect current practice, they are not enforceable under the Agreement and may be altered in the future by Redpath. In this sense the inclusion of the matter in the Agreement through an undertaking may in some cases be significant change. Redpath submits that a number of matters are regulated by the nature of the business. For example, they point to hours of work being regulated to some extent by the mine operators and to hours issues being dictated by the fly in fly out nature of work. However, the Agreement does not just cover fly in fly out work. Some employees are engaged in the yard or workshop. Some mine projects may be accessible by other than fly in fly out practices.
As noted, a number of the items do have a significant impact on employees and/or prospective employees and a number of the changes, such as the change to pay rates, are significant. Given both the scope and number of the changes required and their potential impact on employees and prospective employees, I am satisfied that the undertakings would result in a wholesale reshaping of the Agreement. I cannot accept the undertakings because they would result in a substantial change to the Agreement. As the BOOT is not met and there are no public interest considerations which would justify approving the Agreement when it does not meet the BOOT, I cannot approve the Agreement.
Did Redpath take all reasonable steps to provide employees with or with reasonable access to any material incorporated by reference in the Agreement? (Section 180(2) of the Act)
The CFMEU submits that there are materials other than Agreement which are incorporated by reference into the Agreement and which were not provided to employees. In particular, the Agreement makes reference to the Awards in respect to, amongst other things, wages, ordinary hours, payment of shift allowance when on annual leave, and leading hand allowance. The Agreement also makes reference to Fitness for Work Policies and other policies and to relevant legislation and to the Coal mining industry long service leave Scheme. The CFMEU submits, and I agree, that Redpath is obliged pursuant to Section 180(2) of the Act to take all reasonable steps to either provide or provide reasonable access to these documents throughout the access period. The F17 only refers to the provision of copies of the Agreement during the access period and does not refer to the circulation of, or access to, any of the other incorporated materials. In response to the question “What steps were taken by the employer …to ensure that employees were given a copy of the written text of the agreement and any other material incorporated by reference…or had access to the above materials (must have access throughout the whole 7 day period)” the employer responded “employees provided with a copy of the Enterprise Agreement during a face to face presentation which explained the terms of the Enterprise Agreement” and “employees unable to attend the face to face presentation were emailed a copy of the enterprise agreement.”
Following the hearing of the matter, Redpath provided a Statement from Ms Carthew which provides some evidence in respect to these matters. The provision of this Statement was foreshadowed and requested at the hearing. The evidence was not subject to cross examination.
Ms Carthew states that employees upon engagement are told which is the relevant Modern Award that would cover their employment. (Paragraph 11 and 12 of the Statement of 22 May 2017).
Ms Carthew says that the bargaining representatives were provided with Awards at the first bargaining meeting on 16 December 2016. (Paragraph 14 of the Statement of 22 May 2017.) Ms Carthew says that at the information meetings attended by most of the employees:
“I explained to employees the difference between an award and the Proposed Agreement and indicated to employees that the modern awards were public documents available online. This is reflected also in the power point, as a link to the Fair Work Commission website is included.” (Paragraph 22 of the Statement of 22 May 2017.)
The power point presentation does not include any link to the relevant Awards in the parts of the presentation dealing with the rates of pay or other conditions. At the end of the presentation, there is a page headed “Contacts” and the contact details of the relevant managers, Ms Carthew and Mr Ramage are listed as are the names of the bargaining representatives and finally “Fair Work Commission 1300799675” and “ There is no indication that this is included as a means to access the Awards. I am satisfied when considered in the context of the presentation as a whole, that it is included as a general reference point for employees who may have concerns about the agreement making and voting process.
Ms Carthew’s statement that the awards are public documents available online sounds like a submission to FWC as to why it was not necessary to provide employees with the documents.
Ms Carthew also gave evidence that she was aware of a facebook group run by bargaining representatives and that she was told that links to the modern awards were part of the information available in this forum. She was told that 20 of the 23 employees were members of this facebook group.
Redpath submitted that the relevant policies were accessible on the intranet of the Company. Redpath also submitted that the relevant long service leave legislation was also publicly available.
What is reasonable access to the material will depend upon the circumstances including the profile of employees, accessibility to and practices in using the internet, and the relative significance or importance of the matter to entitlements and understanding the entitlements. In the circumstances of this case the Awards and policies are of great significance. The entitlements are frequently expressed by reference to the relevant Awards. In a number of cases, the policies regulate matters which might otherwise be regulated by the Awards (e.g. fatigue policy and hours of work). The Agreement is not simply a rollover agreement. There are significant changes between the old agreement and the Agreement including a 10% wage cut. In these circumstances, the Awards assume a much greater significance in understanding the impact of the Agreement and therefore it is clearly insufficient for employees to be informed about the Agreement simply by reference to changes from the old agreement.
I agree with Redpath that the approach taken by the Full Bench in McDonald’s (McDonald’s Australia Pty Ltd v Shop, Distributive and Applied Employees Association [[2010] FWAFB 4602 [29]] is appropriate in respect to the long service leave document. I also accept that employees probably were aware that the policies were available on the intranet and so more rigorous steps were probably not required in respect to the policies. However, in respect to the Awards, for the reasons discussed earlier more effort was required to satisfy reasonable steps.
In these circumstances, I am not satisfied that adequate steps were taken to ensure that employees had access to material incorporated by reference in the Agreement throughout the access period. Ms Carthew does not give evidence that employees, other than the bargaining representatives, were explicitly told that the Awards were incorporated into the Agreement and were necessary for an understanding of the Agreement and where they could find those documents. This would be the minimum required in the circumstances of this case. The evidence that links may have been able to be found on a facebook discussion post established by the bargaining representatives is not the same thing as the employer taking all reasonable steps to provide employees with access to the material during the access period.
Did Redpath take all reasonable steps to ensure that the terms of the Agreement and the effect of those terms was explained, taking into account the particular needs and circumstances of employees? (Section 180(5) of the Act)
Redpath and the CFMEU provided detailed submissions concerning this issue. Redpath relied upon the decision in McDonald’s [[2010] FWAFB 4602] however I am satisfied that the Full Bench authority on this question has advanced considerably since that time. For the reasons which are apparent from the earlier consideration I have serious doubts as to whether the requirements of Section 180(5) of the Act were met.
It is not necessary to determine this question given that I found that I cannot approve the Agreement because it does not meet the BOOT and because the mandatory pre-approval step in Section 180(2) of the Act was not met.
Conclusion
The application for approval of the Agreement is dismissed.
COMMISSIONER
Appearances:
H.Cray of Clayton Utz for Redpath Contract Services Pty Ltd
A.Thomas for Construction, Forestry, Mining and Energy Union
Hearing details:
2017
Melbourne–Sydney –Brisbane(by video link)
10 May
Printed by authority of the Commonwealth Government Printer
<Price code C, PR593332>
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