Safeworking Solutions Pty Ltd

[2021] FWCA 1240

[2021] FWCA 1240

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Safeworking Solutions Pty Ltd
(AG2020/3240)

SAFEWORKING SOLUTIONS PTY LTD ENTERPRISE AGREEMENT 2020

Rail industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 8 MARCH 2021

Application for approval of the Safeworking Solutions Pty Ltd Enterprise Agreement 2020.

[1] This is a decision to approve a single enterprise agreement known as the Safeworking Solutions Pty Ltd Enterprise Agreement 2020 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The reasons for this decision follow, arranged as:

Overview	at [2] to [9]
Statutory framework	at [10] to [20]
The access period	at [21] to [25]
The SMS ballot	at [26] to [38]
“False and misleading” representations	at [39] to [54]
The Notice	at [55] to [60]
The NES	at [61] to [62]
The “better off overall” test	at [63] to [65]
Conclusion - the Agreement is approved	at [66] to [68]

Overview

[2] The application identified that the Agreement was approved by a majority of employees. By the amended application, 176 of 226 employees cast a valid vote - a 78% participation rate. And, of those, 118 employees voted to approve the Agreement.

[3] In support of its application, Safeworking Solutions filed a declaration and amended declaration of Mr James (Jim) Talbot, Managing Director of Safeworking Solutions, and a total of seven witness statements, of:

•  Ms Theresa Moltoni, Managing Legal Practitioner Director of IRIQ Pty Ltd t/a IRIQ Law and appointed bargaining representative of Safeworking Solutions;

•  Mr Faiyaz Devjee, Balloting Returns Officer at IRIQ Pty Ltd;

•  Mr James (Jim) Talbot, Managing Director of Safeworking Solutions;

•  Mr Jamie Talbot, Human Resources Manager of Safeworking Solutions; and

•  Ms Justine Young, Administration Manager of Safeworking Solutions.

[4] The Australian Rail, Tram and Bus Industry Union (RTBU), in its role as a bargaining representative, filed a declaration that it opposed the approval of the Agreement but wished to be covered in the event it was approved by the Commission. In support of its opposition, the RTBU filed a total of three witness statements, of:

•  Ms Alice Dunn, Industrial Officer of the RTBU; and

•  Subject to a confidentiality order, with confidential information redacted, an employee of Safeworking Solutions.

[5] Various submissions were filed during the course of the proceedings.

[6] Also during the course of the proceedings, the RTBU sought production of various documents. This was initially opposed but ultimately a bundle of documents was produced by consent of Safeworking Solutions. The bundle of documents was provided to the Commission in full, and to the RTBU with certain confidential information redacted, subject to a confidentiality order. 1 Following the Commission’s inspection of the bundle of documents, further information was provided to the union by consent and subject to a further confidentiality order.2 That exercise led to the resolution of some approval issues.3

[7] The RTBU was critical of the employer’s evidence, in that it was not forthcoming about some important matters in its initial declaration – for example, the fact of two ballots conducted on 26 October 2020 was not disclosed or explained until there was inquiry into the process. Whilst I accept that the evidence evolved during the course of the proceedings, and consider the approach did not assist in the timely progress of the application, I am satisfied that there is now a sufficiently sound evidentiary foundation on which to proceed - following a robust process of inquiry and verification.

[8] By consent, the parties filed closing submissions in writing and did not request to file additional evidence, to test the evidence further or to be further heard. 4

[9] In all of the circumstances, I considered it appropriate to determine the matter on the papers, on the materials before the Commission, and do so accordingly.

Statutory framework

Making an enterprise agreement

[10] Under s.185(1), if an enterprise agreement is made, a bargaining representative for the agreement must apply to the Commission for approval of the agreement.

[11] Section 182(1) of the Act provides that a single-enterprise agreement is made when:

(1) If the employees of the employer … that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

[12] Section 181 provides:

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

…

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

Commission approval of an enterprise agreement

[13] An enterprise agreement requires approval by the Commission in order to have legal effect under the Act.

[14] Section 186(1) of the Act requires the Commission, on an application for approval of an enterprise agreement under s.185, to approve the agreement “if the requirements set out in this section and section 187 are met”.

[15] One of those requirements is, relevantly, that the Commission must be satisfied that “if the agreement is not a greenfields agreement – the agreement has been genuinely agreed to by the employees covered by the agreement” (s.186(2)(a)).

[16] Section 188 of the Act states the circumstances in which the Commission may be satisfied that an enterprise agreement “has been genuinely agreed to by the employees covered by the agreement”. It establishes a set of requirements, each of which must be satisfied if the necessary finding is to be made under s.186(2)(a), relevantly at s.188(1):

(a) the employer…covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights (Notice) is given); and

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

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

[17] The Commission must have an adequate foundation to reach the requisite state of satisfaction in relation to these matters. 5

[18] Section 188(2) provides a means for the Commission to conclude that an enterprise agreement has been genuinely agreed for the purposes of s.186(2)(a), despite “minor procedural or technical errors”:

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

(a) The agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b) The employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174.

[19] Consideration of the genuineness of agreement under ss.188(1) and (2) involves an evaluative assessment. A Full Bench of the Commission provided guidance on the proper construction of s.188(2), including to clarify that the “latitude as to the choice of the decision to be made is quite narrow in that the decision maker is required to conclude that the agreement was genuinely made if he or she forms a particular opinion or value judgement”. 6

[20] These matters are considered as relevant to this application as follows.

The access period

[21] Relevant to the assessment of whether the relevant employees have “genuinely agreed” within the meaning of s.188, for the purposes of s.186(2)(a), the pre-approval steps at s.180 of the Act require the employer to take all reasonable steps to ensure that:

a) During the access period, the employees employed at the time who will be covered by the agreement are given a copy of the written text of the agreement and any other material incorporated by reference in the agreement or, by the start of the access period, the relevant employees have access - throughout the access period - to a copy of those materials (s.180(2));
b) By the start of the access period, the relevant employees are notified of the time and place at which the vote will occur and the voting method that will be used (s.180(3)); and
c) The terms of the agreement, and the effect of those terms, are explained to the relevant employees and the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees (s.180(5)).

[22] The evidence discloses that an “access pack” was distributed to employees by email (containing a copy of the proposed Agreement; a written explanation of the proposed Agreement; a document comparing the proposed Agreement to the relevant award; and a notice explaining when and how the vote would be conducted) (Access Pack) on 16 October 2020. During the course of the proceedings, it was identified that three employees did not receive the email and attachments comprising the Access Pack. Safeworking Solutions sought to amend its initial declaration and gave evidence that, of the three employees who did not receive the Access Pack, one was because they were recently re-engaged and not yet on the payroll system, and the remaining two were not included on the mailing list due to administrative error. 7 A copy of the email communication and attachments sent to employees on 16 October 2020 was provided for inspection of the Commission, subject to a confidentiality order, and the recipients were verified against the other unredacted records.

[23] Safeworking Solutions did not contend that the documents contained in the Access Pack were distributed or accessible via any other method (for example, on noticeboards in the workplace or an intranet site). But it pointed to the evidence of ongoing communication from both the employer and the RTBU to the relevant cohort of employees (including the three who did not receive the Access Period) regarding the Agreement and the vote (via a range of methods, including SMS), both prior to and during the access period, and the two virtual information sessions which were convened by the employer to explain the Agreement and answer questions. It said that the relevant employees were also encouraged to ask questions during this period, and neither the three employees concerned nor the bargaining representative raised the non-receipt of the Access Pack at the time. Further, that the three employees who were not given the Access Pack could not have affected the outcome of the vote. 8

[24] Safeworking Solutions requested, and the RTBU accepted, that it is open to the Commission to accept this as a minor procedural or technical error capable of saving via the exercise of s.188(2). 9

[25] In the circumstances, and having regard to Huntsman, I am satisfied that:

a) by failing to send the Access Pack email or otherwise ensure access to its contents was given to three of the relevant employees, there was an error in failing to take all reasonable steps to ensure that the employees were given, or given access to, the materials contained in the Access Pack and that this amounts to non-compliance with the requirements at ss.180(2), (3) and (5) of the Act;
b) the error was “procedural” in nature, because it involved non-compliance with the pre-approval steps at ss.180(2), (3) and (5) of the Act, and may also be considered to have a technical component;
c) the error, considered in context, was “minor” because it was in the nature of an administrative oversight affecting three of the relevant employees and the three employees affected by the error were, during the access period, informed of the vote for the Agreement, received an explanation of the key terms during the access period through other methods and could have accessed the necessary information and materials via other means; and
d) the employees covered by the Agreement were not likely to have been disadvantaged by the error in that the necessary information and materials were available to the three employees via other means and, when considered as a collective, the failure to give or give access to the Access Pack to the three employees was not capable of affecting the outcome of the voting process,

and, accordingly, I am satisfied in relation to this issue that the Agreement was “genuinely agreed” within the meaning of s.188(2) of the Act.

The SMS ballot

[26] Also relevant to the assessment of whether the relevant employees have “genuinely agreed” within the meaning of s.188, for the purposes of s.186(2)(a), the Commission must be satisfied that the Agreement was “made” in accordance with s.182(1).

[27] For present purposes, the employer and the bargaining representative accepted that the cohort of “the employees employed at the time who will be covered” by the Agreement should be taken to include all employees (including casual employees) who were employed at the time of the vote and during the access period (regardless of whether or not they worked on the day of the vote) (the Relevant Employees). 10 On the prevailing authorities, I agree and proceed on this basis.11 For completeness, the Commission has received in evidence an unredacted list, subject to confidentiality orders, of the Relevant Employees and evidence that they were engaged to work during the access period and/or on the day of the vote.

[28] The evidence discloses that the employer engaged a third party ballot agent (Mr Faiyaz Devjee of IRIQ Pty Ltd) to ask the Relevant Employees to approve the Agreement by voting for it. The method used was SMS. Two ballots were conducted due to rostering uncertainty. 12 The ballot agent caused an SMS to be sent to the mobile phone numbers of the 226 Relevant Employees at around 07.00am (AEDT) on 26 October 2020, using a list provided by the employer.13 The SMS asked employees to reply “yes” or “no” to the question of whether they approved the Agreement. The ballot closed at 07.00pm (AEDT) on 26 October 2020. The result of the ballot(s) was that 176 of the Relevant Employees cast a valid vote and 118 of those voted to approve the Proposed Agreement.14

[29] It is no longer controversial that, of the cohort earlier defined as the Relevant Employees, one single employee received a ballot notice that was issued as part of the Access Pack on 16 October 2020 but, on 26 October 2020, did not receive the SMS invitation to vote. The ballot agent’s evidence was initially that there was no “bounce back” to the SMS request but later identified and gave evidence of a delivery failure in relation to one employee. 15 The RTBU initially suspected there may have been more employees in this category, however the records produced showed this was not the case and no further evidence was tendered in support of that allegation.

[30] Although the RTBU contended no weight ought to be given to this evidence, for completeness, the ballot agent maintained that no delivery failure notification was received by the ballot agent during the time that the ballot was open (or indeed until some weeks later, on further inspection as part of reconciling voter data for these proceedings). 16

[31] Mr Devjee also said that, in his experience, the delivery failure is rare and could be explained by the individual’s mobile phone being turned off or out of reception range. He said that the system will in those circumstances continually attempt to deliver the SMS before notifying a delivery failure - as distinct from an invalid mobile phone number which would immediately bounce back with a delivery failure message. Mr Devjee also gave evidence of having “verified” the mobile phone number that he had used to send an SMS to this employee on 26 October 2020, by telephoning that person on 21 December 2020 at which time the phone rang and the person answered the call. 17 There was no evidence as to the circumstances or otherwise of the employee in answer to this, including why the employee did not contact the telephone number provided for ballot process support (referenced in the Access Pack materials, which had been given to the employee).

[32] The RTBU argued that this was a fatal flaw in the ballot process. It contended that Safeworking Solutions “excluded” one of the “employees employed at the time who will be covered by the Agreement” from the ballot. 18 It alleged this to be a failure to comply with s.181(1) and, as a result, asked the Commission:

a) to find that the Agreement was not “made” in accordance with s.182(1) and is therefore not an application that is capable of approval by the Commission; further and in the alternative
b) to accept that the Commission should not be satisfied that the Agreement was “genuinely agreed” as required by s.186(2)(a) because it was not made in accordance with s.181(1) as defined by s.188(1)(b).

[33] Safeworking Solutions recited but did not engage with the primary objection. 19 Nonetheless it argued that there was no deliberate exclusion, and the Agreement should be approved. To the extent necessary, it asked the Commission to apply its discretion pursuant to s.188(2). It said that there was a clear majority of the Relevant Employees, who cast a valid vote, and voted to approve the Agreement, and a single individual would not change the outcome.

[34] The obligation at s.185 is for a bargaining representative to file an application, within a particular period of time and with certain materials, if an enterprise agreement is “made”. As will be apparent from the statutory context set out above, at the time that approval is sought from the Commission (and before an agreement is approved by the Commission), the agreement will have already been made, by the employees who made it under s.182(1) of the Act.

[35] Whether a single-enterprise agreement “was made in accordance with … s.182(1)” falls expressly for consideration by the Commission, as part of its approval process, under the requirements of s.188(1)(b) (by virtue of s.186(2)(a)). Whilst s.182(1) appears to be directed at ensuring that an agreement is made when approved by a valid majority of the employees covered, it plainly calls up the provision at s.181(1). Indeed the phrase “under s.181(1)” has been likened to “in accordance with s.181(1)”. 20

[36] To the extent that absolute compliance is required, it seems impossible to conclude that each of “the” relevant employees, as distinct from some or most, were “asked” to approve the Agreement in accordance with s.182(1), or “requested” under s.181(1), if even one employee never received the invitation to vote because the electronic delivery method failed.

[37] This is where s.188(2) may conceivably come to the rescue. The Full Bench in Huntsman, in considering the proper construction of s.188(2), and rejecting an argument akin to the primary objection in this case, held:

“..it is not correct that a finding must first be made that the relevant agreement has been ‘made’ in accordance with s.182(1) or (2) before any consideration can be given to the application of s.188(2). That is because s.188(2), properly construed, contemplates that agreements which have not been ‘made’ may nonetheless be approved if the specified conditions in the new provision are satisfied.” 21

[38] In the circumstances of this case, I am satisfied that the individual concerned was on notice of the date, time and method of the vote; the employer did cause the SMS to be dispatched to the individual’s correct mobile phone number; and the SMS delivery failure was not within the employer’s knowledge and control on the day of the vote in order to rectify the delivery error. There is no evidence that the individual took the steps available to them to make inquiries, seek ballot support and be able to participate in the vote. Having regard to Huntsman, I am satisfied that:

a) the error was one made in relation to the requirements in s.188(1)(b), in that the requirement at s.182(1) was not strictly met because the SMS vote request although dispatched was not received by one employee on 26 October 2020 in time to participate in the ballot;
b) the error was “procedural” in nature, because it involved non-compliance with the pre-approval procedure at s.182(1) and may also be considered to have a technical component;
c) the error, considered in context, was “minor” because it was incapable of affecting the overwhelming approval outcome of the voting process, the individual concerned was on sufficient notice of the date, time and method of the vote and could have sought ballot support but did not, and there was no other relevant consequence; and
d) the employees covered by the Agreement “were not likely to have been disadvantaged by the error” for the same reason – that is, the failed delivery of a vote request to one single employee was not capable of affecting the outcome of the voting process and the individual concerned did not take the steps reasonably available to them to rectify the technical delivery issue,

and, accordingly, I am satisfied in relation to this issue that the Agreement was genuinely agreed within the meaning of s.188(2) of the Act.

“False and misleading” representations

[39] The accuracy of pre-vote communications and explanations may be a relevant consideration in terms of the requirements to take all reasonable steps to explain the terms and effect of the Agreement (for the purposes of ss.180(1)(a) and 180(5)) and in satisfying the Commission that there are no other reasonable grounds for considering that the Agreement was not genuinely agreed (within the meaning of s.188(1)(c)).

[40] The amended application included declarations of the steps taken to explain the terms and effect of the Agreement to the relevant employees, as follows: on 16 October 2020, employees were emailed the package earlier defined as the Access Pack (which included an explanatory document; on 21 October 2020), virtual information sessions were held via Microsoft Teams, on 21 and 22 October 2020; and also on 21 October 2020, all employees were sent an email “disputing information provided by the (RTBU) to the employees” and inviting employees to join the virtual information session on 22 October 2020. Copies of the written explanatory materials were provided to the Commission. 22 In having regard to the particular circumstances and needs of the Relevant Employees, the declaration said that the 16 October 2020 ballot notice included contact details to access “translating and interpreting services”, “teletypewriter, speech relay and internet relay services”; option to ask for the assistance of management; and employees under 18 years of age were advised to seek assistance of an adult.23

[41] The RTBU’s objection is about the explanation as to wage increases under the Agreement. The quantum of wage entitlements and increases under the Agreement are at clause 17(a) of the Agreement. Rates are prescribed in Schedules 1 to 3 as applicable “from 1 July 2020”. Clause 17(a)(iii) relevantly provides that the wage rate prescribed in the schedules “will be increased by 1.75% on the first pay period after February 2021 and from thereon at the rate determined by the FWC National Wage Decision of the Relevant Award or the National CPI for the previous year, whichever is the higher, for the nominal term of the Agreement.”

[42] The Access Pack email of 16 October 2020 said:

“By voting YES for this Agreement it will ensure we are governed by a modern Industrial Agreement and that you received two vital pay rises in 2021 (one in February and one in July) and then a pay rise each year after for the life of the Agreement.” 24

[43] The explanatory document attached to the 16 October 2020 email included a table titled “What are the rates going to be?” with wage rates from Schedules 1, 2 and 3 of the Agreement. It also contains a reference to the wage rates being outlined in the schedules but there is no reference to clause 17(a)(iii) or increases. 25

[44] On 21 October 2020, there was a further email and document sent to employees by Safeworking Solutions, which included the following:

By voting YES for the proposed Agreement staff will receive the below pay rises:

● February 2021 – 1.75%;
● July 2021 – Fair Work / CPI pay increase (whichever is higher – average of 2.2% since 2015)
*(That means you will receive TWO pay increases next year – 2021)
● July 2022 – Fair Work / CPI pay increase (whichever is higher – average of 2.2% since 2015)
● July 2023 – Fair Work / CPI pay increase (whichever is higher – average of 2.2% since 2015)
● July 2024 – Fair Work / CPI pay increase (whichever is higher – average of 2.2% since 2015)

(Total estimated wage increase over the next four years = 10.55%)

By voting NO the company is not required to pay any pay rise. Don’t buy into the RTBU lies.

It is important to note that CPI increase has fluctuated between 4% and 1.8% over the last ten years, so our commitment to these figures are based on sound logic and economic rationality. We do not want to propose unrealistic figures amid a pandemic and cause alarm to major project sites, which is why we are guaranteeing pay increases on the national average. Unfortunately, the RTBU are proposing figures based on their own opinions and not logic. Our forecast of 10.55% for four years could well be higher than that, while at a minimum pay increases are guaranteed against CPI / Fairwork (whichever is higher!).

If you vote YES that will guarantee the next four years of pay increases as outlined above.  26

[45] The 21 October 2020 email included similar content.

[46] The RTBU also produced an undated screenshot of an electronic communication, which included the following:

Wages – Following prior discussions around pay, references for pay increases in Feb 2021 (1.75%), July 2021, July 2022, July 2023 and July 2024 related ot (sic) the commitment to match future annual CPI or Annual Fair Work National Wage Case Decision pay increases. We guarantee to honour the higher of the two of these increases from 1 July each year for the duration of the proposed Agreement. We have guaranteed to Honour this commitment within the proposed Agreement – please do not listen to lies suggesting otherwise.

References of the historical rates can be viewed in the following links, which clearly demonstrate the increasing increments of pay rises: [link to page and page]

Again, it is important to note that we have guaranteed to honour the highest of the two rates that occur over the duration of the agreement.  27

[47] The RTBU invited the Commission to find that the Agreement was not “genuinely agreed”, pursuant to s.188(1)(c) and or in the alternative s.180(1)(a) (by virtue of s.180(5)). In summary, the RTBU argued that Safeworking Solutions’ communications about the Agreement were “false and misleading” and/or the explanation of the terms and effect of the Agreement was inadequate because:

● the Agreement does not contain any obligation on Safeworking Solutions to pay wage increases in July 2021, July 2022, July 2023 and July 2024, as Safeworking Solutions stated in the aforementioned communications to employees; and
● Safeworking Solutions’ represented that the Agreement would “guarantee” a total estimated wage increase of around 10.55% over the 4 year term, yet the Agreement provides no more than an initial guaranteed increase of 1.75% in February 2021 with the value of remaining increases being inherently speculative and uncertain.

[48] Safeworking Solutions disputed the RTBU’s characterisation of its communications and contended it had misconstrued clause 17(a)(iii) of the Proposed Agreement, which refers to a specific “decision” that is made at the same time each year. It strongly argued that its explanations were, in effect, consistent with the actual operation of the Agreement.

[49] Each accused the other of “missing the point” in relation to this issue. Notwithstanding it denied any false, misleading or inaccurate messaging, Safeworking Solutions proposed an undertaking to the Commission which guarantees that a pay increase equal to the National CPI increase or the National Wage Decision of the Commission, whichever is the higher, will be paid from the first full pay period after 1 July each year for the nominal term of the Agreement and starting in 2021 (see Attachment A) (Undertaking). Although it did not elaborate, the RTBU’s view was that the Undertaking could not be accepted pursuant to s.190(3) because it would result in a “substantial change” to the Proposed Agreement and, further, that it can not cure the concern that the Proposed Agreement has not been “genuinely agreed”.

[50] Whilst each case turns on its own facts, an inaccuracy in the explanation may be fatal to the approval of an enterprise agreement 28 or alternatively may be cured by provision of an undertaking which effectively brings the agreement in line with the explanation.29

[51] The evidence reflects that the initial communication of 16 October 2020 did not explain the wage increases at all and that, as the access period continued, the explanations of Safeworking Solutions became more transparent and detailed. Where the matter of wage increases was explained, the communications of Safeworking Solutions were plainly drafted to paint the terms and conditions on offer in the most positive light. However I am satisfied that statements about “expected” quantum of increases were, in the days prior to the vote, sufficiently clarified and employees were directed to objective sources where they could read more in order to understand how clause 17(a)(iii) would operate and properly understand the terms and conditions on offer.

[52] I do not accept that clause 17(a)(iii) provides for a guaranteed wage increase on a particular date each year – it simply does not say this. However, I consider the form of the proposed Undertaking would effectively bring the operation of the Agreement (if approved) in line with the communications by Safeworking Solutions during the access period. I am satisfied that the Undertaking, together with the other relevant benefits, will ensure that the employees covered by the Agreement will remain better off overall compared to the underlying award. I am also satisfied that accepting this Undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement (s.190(3)).

[53] Accordingly, I am satisfied that all reasonable steps were taken to explain the terms and effect of the Agreement for the purposes of ss.180(1)(a) and 180(5) and there are no other reasonable grounds for considering that the Agreement was not genuinely agreed within the meaning of s.188(1)(c). Further, I note that it was not pressed, and I am satisfied that there was also an explanation of the benefits and detriments against the award and this further supports a finding that the obligation at s.180(5) was met.

[54] Having so found, it is not necessary to consider the application of s.188(2) in this respect.

The Notice

[55] The Notice is a mandatory pre-approval step. Commission authorities establish that strict compliance with the timing and form and content requirements regarding the Notice, in ss.173 and 174 of the Act, is necessary in order to meet the requirements “mentioned in paragraph (1)(a) and (b)” of s.188(1). 30 A narrower or substantively different scope of the enterprise agreement subject of the Notice compared to that subject of the approval application may be considered a case of strict non-compliance.

[56] The scope of the enterprise agreement described in the Notice issued by Safeworking Solutions as compared to the scope of the Agreement is different in that:

a) the Notice issued to the employees to be covered by the Agreement at the relevant time gave notice that Safeworking Solutions was bargaining in relation to an enterprise agreement named the “Safeworking Solutions Infrastructure Agreement Victoria 2018” and its coverage was described in the first paragraph of the Notice as:

“.. which is proposed to cover employees that are principally engaged in rail safety work, maintenance, major periodic maintenance, associated construction, refurbishment and renewals work within Victoria, or Victorian based employees working interstate in the classifications contained within.”

whereas

b) the Agreement is named the “Safeworking Solutions Pty Ltd Enterprise Agreement 2020” and its application is described at clause 4 as:

“This Agreement applies to and is binding on the Company in relation to all of its Employees, engaged across Australia, who are covered by the Rail Industry Award 2020 (‘RIA’) and a reference to the “Relevant Award” in this Agreement, shall mean the RIA that applies to the work undertaken by an Employee while covered by this Agreement.”

[57] Safeworking Solutions said that both the title and the coverage or scope of the Agreement changed during the course of bargaining, which extended over a two year period, however contended that no employee was “disenfranchised”. The evidence was that all employees covered by the Agreement at the time of the vote were employed in the state of Victoria and were informed that the Agreement was to cover a broader, national scope which was intended to allow employees resident in another State to be covered by the Agreement. An initial suggestion in the material before the Commission was resolved on the further evidence filed, such that there is no question that any employees covered by the Agreement did not receive the Notice because they were not within the scope of employees described in the Notice at the time it was issued. The employer contended that the reference in the Agreement to the Rail Industry Award 2020 was consistent with the description of classifications in the Notice. Further, it was noted that the employees were represented by the RTBU in bargaining. It submitted that the Commission should be satisfied that these were minor technical errors in relation to the requirements of ss.173 and 174 of the Act and the discretion at s.188(2) ought be applied. 31

[58] The RTBU accepted that it is open to the Commission to find that this is a minor, technical error and apply the provision at s.188(2). 32

[59] I am satisfied that the scope of the enterprise agreement described in the Notice issued by Safeworking Solutions was narrower and different to the scope of the Agreement subject of this application. Those differences are such that the Notice does not strictly comply with the content and form requirements of ss.173 and 174 and the Agreement was not “genuinely agreed” within the meaning of s.188(1)(a) and (b).

[60] However, in the circumstances and having regard to Huntsman, I am satisfied that:

a) the identified error was “technical” in nature, because it amounts to strict non-compliance with the form and content requirements of the Notice;
b) the error, considered in context, was “minor” because there is no evidence that it had any consequence in terms of the underlying purpose of the Notice, or the legislative provisions at ss.188(1)(a) and (b), 173 and 174; and
c) the employees covered by the Agreement were not likely to have been disadvantaged by the error in that they were at all times represented in bargaining and informed of the scope of the Agreement which they bargaining for and ultimately were asked to approve,

and, accordingly, I am satisfied in relation to this issue that the Agreement was genuinely agreed within the meaning of s.188(2) of the Act.

The NES

[61] The terms of an enterprise agreement must not contravene s.55 (that is, exclude the National Employment Standards in the Act (NES) or any provision of the NES), being a further condition of approval at s.186(2)(c).

[62] The Commission identified at least one provision of the Agreement that may operate in a manner that contravenes s.55. However, noting clause 5.8(c) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The “better off overall” test

[63] I must be satisfied that the Agreement passes the better off overall test (BOOT) in assessing whether it must be approved in accordance with the Act (s.186(2)).

[64] An enterprise agreement passes the BOOT if the Commission is satisfied, as at the time the application is made, that each award covered employee and each prospective award covered employee for the enterprise agreement would be “better off overall” if the agreement applied, than if the modern award applied (ss.193(1) and (6)).

[65] There was no contest, and on an assessment of the identified benefits and detriments (including that identified by the RTBU), I am satisfied that the employees and prospective employees covered by the Agreement would be better off overall under the Agreement than if the Rail Industry Award 2020 applied.

Conclusion - the Agreement is approved

[66] On the basis of the material contained in the application, further information and evidence filed, and the Undertaking, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[67] The RBTU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[68] The Agreement was approved on 8 March 2021 and, in accordance with s.54, will operate from 15 March 2021. The nominal expiry date of the Agreement is 8 March 2025.

DEPUTY PRESIDENT

 1   Confidentiality Order dated 7 January 2021.

 2   Confidentiality Order dated 12 January 2021.

 3   For example, those identified in the RTBU’s Closing Submissions filed 15 January 2021 at 1.

 4   Notwithstanding the invitation to do so, per the Commission’s directions of 12 January 2021.

 5   One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 at 112-113.

 6   Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others [2019] FWCFB 318 (Huntsman) at [41].

 7   Witness Statement of Ms Justine Young dated 17 December 2020 (Second Witness Statement of Ms Young) at 5.

 8   Safeworking Solutions’ Closing Submissions filed 19 January 2021 at 12 and 13.

 9   Safeworking Solutions’ Closing Submissions filed 19 January 2021 at 13; RTBU’s Closing Submissions in Reply filed 20 January 2021 at 27.

 10   Safeworking Solutions’ Submissions filed 30 November 2020 at 18; RTBU’s Submissions filed 3 December 2020 at 8.

 11   Appeal by Shop, Distributive and Allied Employees Association [2019] FWCFB 7599; NTEU v Swinburne University [2015] FCAFC 98.

 12   Witness Statement of Ms Theresa Moltoni filed 30 November 2020 at 2 and 3.

 13   Since verified by the ballot agent, see Witness Statement of Mr Faiyaz Devjee filed 17 December 2020 (First Witness Statement of Mr Devjee) at 6 to 8; Second Witness Statement of Ms Young at 2 to 5.

 14   Item 26 of the Amended F17 Declaration of Mr Jim Talbot dated 23 November 2020.

 15   Employee’s Confidential Witness Statement filed 25 November 2020 at 5, 7 and 8 (with redactions).

 16   Second Witness Statement of Mr Faiyaz Devjee filed 21 December 2020 (Second Witness Statement of Mr Devjee) at 3 to 5.

 17   Second Witness Statement of Mr Faiyaz Devjee at 7 and 8.

 18   RTBU’s Closing Submissions filed 15 January 2021 at 15 to 17.

 19   Safeworking Solutions’ Closing Outline of Submissions filed 19 January 2021 at 15.

 20   Appeal by Shop, Distributive and Allied Employees Association [2019] FWCFB 7599 at [24].

 21   Huntsman at [68].

 22   Items 22 and 23 of Amended Form F17 Declaration of Mr Jim Talbot dated 23 November 2020.

 23   Item 24 of Amended Form F17 Declaration of Mr Jim Talbot dated 23 November 2020.

 24   Witness Statement of Ms Alice Dunn (First Witness Statement of Ms Dunn) filed on 25 November 2020 at AD-3.

 25   First Witness Statement of Ms Dunn, at AD-4.

 26   First Witness Statement of Ms Dunn, at AD-5 and AD-6.

 27   First Witness Statement of Ms Dunn, at AD-8.

 28   Rigforce Pty Ltd T/A Rigforce [2020] FWC 591.

 29   Karijini Rail [2020] FWCFB 958.

 30   See, for example, Peabody Moorvale Pty Ltd v CFMEU[2014] FWCFB 2042, Uniline Australia Limited [2016] FWCFB 4969 and AMWU v Broadspectrum (Australia) Pty Ltd[2018] FWCFB 6556. Also see National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 at [22]-[24].

 31  Safeworking Solutions’ Closing Submissions filed 19 January 2021 at 7.

 32   RTBU’s Closing Submissions in Reply filed 20 January 2021 at 5.

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