Stowe Australia Pty Limited T/A Stowe
[2019] FWC 7781
•18 NOVEMBER 2019
[2019] FWC 7781
The attached document replaces the document previously issued with the above code on 18 November 2019.
At paragraph [30], changed the words “as to how” to “that”.
At paragraph [47], added the word “stated”.
At paragraph [69], added the word “and”.
At paragraph [73], changed the words “in to” to “into”.
At paragraph [73], changed the word “agents” to “representatives”.
At Appearances, changed the word “Respondent” to “CEPU”.
At footnote 24, changed the words “See the Act s.190(4)” to “Fair Work Act 2009 ss.341(1)(a) and 341(2)”.
Associate to Deputy President Boyce
Dated 19 November 2019.
| [2019] FWC 7781 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Stowe Australia Pty Limited T/A Stowe
(AG2019/1558)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 18 NOVEMBER 2019 |
Application for approval of the Stowe Australia Pty Ltd - Newcastle & Central Coast Enterprise Agreement 2019 — roll-over enterprise agreement — proposed enterprise agreement bargained directly with employees — proposed enterprise agreement not operative until existing enterprise agreement expires in June 2020 or is terminated.
Allegations of relevant employees being misled, required, directed or coerced to revoke union status as default bargaining representative and/or appoint persons other than the union as bargaining representative — whether employees misled, required, directed or coerced in relation to appointment of bargaining representatives — whether union a bargaining representative for proposed enterprise agreement.
Alleged contravention of s.345 (Misrepresentations) of the Fair Work Act 2009 — whether Commission can form a view as to contravention — no evidence brought by union to support allegations of misrepresentation or coercion having had any impact upon bargaining or genuine agreement — whether employer conduct impacted upon bargaining — whether employer conduct impacted upon genuine agreement — whether misleading or coercive conduct requires a causative element to impact upon genuine agreement — whether reasonable steps to explain the terms and the effect of terms of proposed enterprise agreement — whether proposed enterprise agreement passes the better off overall test — union allegations rejected due to absence of evidence — proposed enterprise agreement approved.
Overview
An application has been made for approval of an enterprise agreement to be known as the Stowe Australia Pty Ltd – Newcastle & Central Coast Enterprise Agreement 2019 (Agreement).
The application is made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the employer, Stowe Australia Pty Ltd (Applicant). The Agreement is a single enterprise agreement and covers the Applicant’s Newcastle and Central Coast electrical contracting operations.
The Applicant is covered by various enterprise agreements, across its divisions and geographic operations, up and down the eastern seaboard of Australia. Some of these enterprise agreements have been made via bargaining with the relevant State branch of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), whilst others have been bargained directly with employees. The Agreement in this matter has been bargained directly with relevant employees.
Of the 90 employees entitled to vote to approve the Agreement, 88 employees voted, and 87 employees voted to approve the Agreement (i.e. a 99.86 percent majority of employees voted to approve the Agreement). Rates of pay under the Agreement are up to 68 percent above the relevant modern (reference) award, being the Electrical, Electronic and Communications Contracting Award 2010 (Award).
At the hearing, Ms Theresa Moltoni, Lawyer, appeared with permission on behalf of the Applicant. Ms Alana Heffernan, National Legal Counsel, appeared for the CEPU. Permission for Ms Moltoni to appear was not opposed, and given the complexity of the issues being agitated, I granted Ms Moltoni permission on the basis that the matter would be heard more efficiently with her involvement.
CEPU involvement in proceedings
The CEPU objects to the approval of the Agreement. The CEPU was not involved in the bargaining process for the Agreement, and even if approved by the Commission, the CEPU does not request to have the Agreement cover it.
Whilst I have found (for the reasons set out below) that the CEPU was not a bargaining representative (under s.176 of the Act), given the CEPU raised various allegations that the revocation of the CEPU as a default bargaining representative, and/or that the appointment of employees as their own bargaining representatives, was (for want of a better term) ‘invalid’, I exercised my discretion to hear from the CEPU in relation to its complaints and objections concerning the approval of the Agreement.
Pursuant to s.590 of the Act, I granted a request by the CEPU to make submissions opposing the approval of the Agreement, and to appear generally at the hearing.
Roll-over enterprise agreement
The Agreement replaces the Stowe Australia Pty Ltd - Newcastle and Central Coast Enterprise Agreement 2016 (2016 Agreement).[1] This 2016 Agreement was preceded by three enterprise agreements approved in 2007,[2] 2009,[3] and 2012.[4] Each of these preceding enterprise agreements are in essentially the same terms as the Agreement in this matter.
The CEPU did not apply to be covered by the 2016 Agreement. The parties to the 2016 Agreement are the Applicant and its relevant employees.
In this matter, the Agreement rolls over the 2016 Agreement, with a 14 percent pay rise over four years, increases to allowances, and other minor amendments / updates.
I note that the 2016 Agreement has a nominal expiry date of 14 June 2020, meaning that if the Agreement is approved prior to that date, it will not be operative until 15 June 2020 (unless the 2016 Agreement is terminated).[5]
CEPU objections to approval of Agreement
By way of three sets of written submissions, the CEPU objected to the approval of the Agreement on the basis (in summary) that:
a)the Agreement was not genuinely agreed (c.f. ss.180(5), 186(2) and 188 of the Act); and/or
b)the terms and conditions under the Agreement do not pass the better off overall test (BOOT) (c.f. s.193 of the Act, by reference to the terms and conditions of the Award).
As part of its arguments as to the absence of genuine agreement, the CEPU submitted that relevant employees were:
a)not advised that the Agreement will only have enforceable effect (under the Act) after 14 June 2020 (see paragraph [12] above);
b)not advised that they would be locked out of bargaining for new terms and conditions (via a new replacement enterprise agreement) for the next 4 years; and/or
c)misled, required or otherwise directed, or coerced by the Applicant as to their revocation of the CEPU as a default bargaining representative, and/or the appointment of employees themselves, or other employees, as bargaining representatives.
It was submitted by the CEPU that the foregoing matters in relation to the appointment of bargaining representatives had flow-on effects to the conduct of bargaining, and thus to the issue of genuine agreement.
Ultimately, by reference to the allegations being made by the CEPU, it submitted that I ought to make findings that:
a)the CEPU was a bargaining representative, and therefore has standing to appear at the hearing concerning the approval of the Agreement;
b)the Agreement was not genuinely agreed, in that Applicant has not complied with the Act (including preapproval requirements under the Act), extending to the appointment of bargaining representatives, and/or the revocation of the CEPU as a default bargaining representative, by reference to:
i.alleged misrepresentations made to employees about these matters, both orally and in documentary form (in purported contravention of s.345 of the Act); and
ii.the conduct of the Applicant’s management representatives in the lead up to the vote to make the Agreement (being alleged coercion); and/or
c)the Agreement does not pass the BOOT.
CEPU standing to appear in these proceedings as bargaining representative
Given I have granted the CEPU leave generally to appear at the hearing under s.590 of the Act, the question as to whether the CEPU was a bargaining representative for the purposes of having standing in these proceedings is unnecessary to determine. However, the question of whether the CEPU was a bargaining representative, as a factor to be considered in relation to whether the Agreement was genuinely agreed, remains a live issue.
CEPU brings no employee witness evidence to support its allegations as to misrepresentation and/or coercion
In its preliminary submissions, the CEPU stated that it would bring witness evidence from relevant employees (at the hearing) to substantiate or provide a foundation to the allegations and assertions it makes in this matter. However, the CEPU did not rely upon any evidence from its own witnesses at the hearing.
Rather, the CEPU’s case (in chief) was based upon submissions, and asserted inferences to be drawn from the Applicant’s witness evidence (including during cross-examination), to the effect that the Applicant had engaged in misrepresentation and/or coercion in relation to the manner in which employees appointed bargaining representatives.
Appointment of bargaining representatives, and CEPU allegations of misrepresentation
Between 3 and 5 April 2019, the Applicant issued relevant employees with a Notice of Employee Representational Rights (NERR).
At the same time the NERR was issued, relevant employees were also separately issued with a bargaining representative nomination form (nomination form).[6] The options for relevant employees (to mark) on the nomination form were:
a)“revoke union rights [of representation]”;
b)“represent yourself”;
c)“appoint other (insert name)”; and/or
d)“[appoint] union as bargaining representative”.
All relevant employees executed the nomination form in favour of either revoking union rights of representation (c.f. ss.176(1)(b) and 178A of the Act), appointing themselves as their own bargaining representative (c.f. s.176(1)(c) of the Act), or appointing another relevant employee as their bargaining representative (c.f. s.176(1)(c) of the Act)[7].
On a prima face basis, any suggestion that the CEPU held the status as a bargaining representative (default or otherwise) in relation to bargaining for the Agreement was displaced by the nomination forms completed by relevant employees. I note that relevant employees to be covered by the Agreement numbered 90, and apart from appointing themselves, another six employees were appointed as bargaining representatives.
In relation to employees being misled in respect of the face of nomination form, the CEPU focused on the statement in the nomination form which reads:
“To date the Company [the Applicant] has not received any notices from any employees indicating a wish to be represented in the current negotiations.
The Company is requesting employees (if you are not members of the Union or if you are a member of the Union) to sign at the appropriate place below to indicate preference for representation.”
(emphasis added)
In addition, the CEPU alleged, in summary, that some or all of the relevant employees who completed the nomination form were “required to fill in the nomination form”, or were coerced into completing the nomination form, and were told (words to the effect) that if the CEPU is involved in bargaining:
“[I]t will delay bargaining, it will not result in a ‘good’ agreement, it will jeopardise the employees’ employment security, and that the offer from Stowe [the Applicant] will not be as generous as the current offer”.
I note that the CEPU brought no evidence of this statement ever having been made.
Allegations of contravention of s.345 of the Act concerning misrepresentation, and the utility of making any such findings in the context of an enterprise agreement approval process
By way of supplementary and closing submissions, the CEPU asserted that the conduct of the Applicant in relation to the nomination forms amounted to a contravention of s.345 of the Act. I note that any such a contravention would give rise to a pecuniary penalty, being a matter to be determined by an eligible court, not the Commission. In passing, I note that the Applicant attends upon these proceedings for the approval of an enterprise agreement, not to defend an alleged contravention of s.345 of the Act.
Although the Commission does not have any jurisdiction to make any determination in respect of allegations of a contravention of s.345 of the Act, I consider that I am able to form a view on the issue. Part of the difficulty, however, is the utility of such a view in the context of an enterprise agreement approval application. My opinion is that any view I form in this regard could only go to the question of “genuine agreement” by reference to s.188(c) of the Act.[8]
Section 345 of the Act reads:
“Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about:
a)The workplace rights of another person; or
b)the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.”
Appointment of bargaining representatives, CEPU allegations of coercion, and is a ‘request’ to do something akin to a ‘requirement’ or a ‘direction’ to do something
Although the CEPU alleges that the Applicant “coerced” relevant employees to revoke the CEPU’s status as a default bargaining representative and/or to otherwise appoint themselves or another employee/s as their bargaining representative, the CEPU did not formally rely upon a contravention of s.343 of the Act in this regard. Importantly, the CEPU did not rely upon any evidence or make any submissions as to how I might be satisfied (or otherwise form a view) that s.343 has been contravened by the Applicant, having regard to the various elements that would need to be addressed and proven to ground such a contravention. I therefore work on the basis that the CEPU relies upon its coercion allegations not as a breach of s.343 of the Act, but as part of the factual matrix to be considered in its assertions as to the absence of genuine agreement.
Stringing together what I can of the CEPU’s coercion allegations, I note that the CEPU directed my attention to case law on the issue of a “request” being the same as, or indistinguishable from, employer directions or requirements for employees to follow.[9]
These cases do not stand as authorities on the functional difference between a "request" or a "direction". Rather, they are concerned with whether the employers’ direction/s were lawful and reasonable in the particular factual circumstances, and whether an employee’s failure to comply those directions formed a valid reason/s for termination of employment. I note that at least two of these decisions use the terms “direction” and “request” interchangeably. However, the interchanging use of these terms in these cases is purely semantical.
In short, having reviewed these cases, I do not consider that they support the proposition advanced by the CEPU. In each of these cases, the difference/s between a request on the one hand, and a direction or requirement on the other, was never in contest. None of these cases identify any facts or principles that would warrant their application to the facts and circumstances of this case. In my view, whether a request is a direction, or a requirement, will come down to the circumstances of a particular case, not case law precedent.
In the absence of legal authority to the contrary, I am left to consider the ordinary meaning of these terms. They are different. The Macquarie Dictionary defines “request” to mean “1. Act of asking for something, petition made, thing asked for, … 2. Seek permission to do; ask to be given or allowed or favoured with”.[10] The same dictionary defines “direction” as a noun of the verb “direct”, which itself is taken to mean “… control, govern … order a person to do, thing to be done”.[11] The difference between the two terms is uncontroversial. The former is optional (i.e. a choice). The latter is mandatory (i.e. a requirement).
The Applicant’s evidence
Mr Daniel Atkinson, Regional Manager — Hunter and Central Coast, made three witness statements in the proceedings (on behalf of the Applicant) that he adopted under oath. During cross-examination by Ms Heffernan, Mr Atkinson (relevantly):[12]
a)confirmed that he acted for the Applicant during bargaining meetings with various relevant employees, and addressed groups of employees during bargaining, including for the purposes of explaining the Agreement to employees (and the effect of the terms of the Agreement);
b)stated that whether the union was involved in bargaining was not his choice, it was a choice for employees to make;[13]
c)rejected the suggestion that the Applicant did not want the CEPU involved in bargaining;
d)rejected assertions that he, or other representatives of the Applicant, required or directed relevant employees to complete the nomination forms (i.e. it was the employee’s individual choice to complete the nomination forms);
e)stated that employees were not required to return the nomination forms, rather, it was their choice to return the nomination forms;
f)agreed that at least one management representative was present when employees were issued the nomination forms, and when employees completed the nomination forms, but again rejected any suggestion that employees were required, directed or otherwise pressured or coerced to complete and/or return the nomination forms to management;
g)rejected the suggestion that employees were advised that their job security was tied to the approval of the Agreement; and
h)generally denied that the words to the effect set out in paragraph [25] above were said.
Mr Scott Wark, Construction Manager – Hunter and Central Coast, made two witness statements in the proceedings (on behalf of the Applicant) that he adopted under oath. During cross-examination by Ms Heffernan, Mr Wark (relevantly):[14]
a)confirmed that he acted for the Applicant during bargaining meetings with various relevant employees, and addressed groups of employees during bargaining, including for the purposes of explaining the Agreement to employees (and the effect of the terms of the Agreement);
b)stated that whether the union was involved in bargaining was not his choice, it was a choice for employees to make;[15]
c)stated that he was not aware whether employees were or were not union members when the enterprise bargaining process began;[16]
d)rejected the suggestion that the Applicant did not want the CEPU involved in bargaining or otherwise required employees to “out themselves” as union members;[17]
e)rejected assertions that he, or other representatives of the Applicant, required or directed relevant employees to complete the nomination forms (i.e. it was the employee’s individual choice to complete the nomination forms);
f)stated that employees were not required to return the nomination forms, rather, it was their choice to return the nomination forms;[18]
g)agreed that at least one management representative was present when employees were issued the nomination forms, and when employees completed the nomination forms, but again rejected any suggestion that employees were required, directed or otherwise pressured or coerced to complete and/or return the nomination forms to management;
h)agreed that the meeting room where employees were issued with the nomination form (at the site at which Mr Wark was present) was 3 metres x 12 metres in size;
a)rejected the suggestion that employees were advised that their job security was tied to the approval of the Agreement; and
b)generally denied that the words to the effect set out in paragraph [25] above were said.
Mr Peter Attard, Foreman, made one witness statement in the proceedings (on behalf of the Applicant).[19] Mr Attard was not cross-examined by the CEPU on the basis that he was to be asked the same types of questions as had been put to Mr Atkinson and Mr Wark, and that I would consider his evidence on the basis that it had been tested. Having reviewed Mr Attard’s statement, I do not consider it takes the Applicant’s evidence any further than that of Mr Atkinson and Mr Wark. I have therefore had no regard to Mr Attard’s evidence in determining this matter.
Witness credibility
Having seen and heard the cross-examination of the Applicant’s witnesses, I do not consider any issues arise in respect of their credibility. I found both Mr Atkinson and Mr Wark to be reliable witnesses. They were both willing to make concessions during cross-examination when challenged, and answered questions put to them in an upfront and straightforward manner. I therefore accept their evidence as summarised in this decision. Significantly, in circumstances where the CEPU has brought no evidence to counter any of the evidence put forward by Mr Atkinson and Mr Wark, I have no foundation to make findings contrary to such evidence (by way of inference, or otherwise).
Were employees misled or coerced in relation to completing the nomination forms? Has the Applicant contravened s.345 of the Act?
The CEPU’s case as to employees being misled and/or coerced in relation to the appointment of bargaining representatives (or the revocation of the CEPU’s status as a default bargaining representative) is grounded (in the evidentiary sense) on the basis of the text (or words) of the nomination form, and inferences to be drawn from the conduct of the Applicant’s representatives when distributing the nomination forms to relevant employees.
The CEPU submits that the nomination form statement (that no nomination forms had yet been received by the Applicant) was misleading as it was made in circumstances where no such election could have been received by the Applicant as it had only just distributed the NERR and the nomination form. According to the CEPU, the nomination form statement also (on an objective basis) creates an apprehension by employees that they need, or are required, to make an election as to the appointment of a bargaining representative (which is not a requirement under the Act). Coupled with the presence of a management representative in a small crowded room at the time employees were issued, completed, and returned the nomination forms, the CEPU asks me to make a finding that employees were required, misled or otherwise coerced into completing the nomination form.
In support of its submissions, the CEPU referred me to the decision of Commissioner Hunt in Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.[20] That decision was an interim (or interlocutory) decision weighing up a prima face case (based upon limited argument and evidence), and the balance of convenience, in determining whether to make interim good faith bargaining orders. The employer’s case in that matter, resisting the interim orders sought by the CEPU, was said by Commissioner Hunt to be grounded upon “bare assertion[s] by [the] employer” (which is not the case in this matter). No findings were made on a final basis, nor is there any substantive reasoning concerning the interim orders made. I therefore do not rely upon this decision in making my determination in this matter.
Whilst it is unusual that all 90 relevant employees would complete the nomination form in favour of ousting the CEPU as a bargaining representative (or a default bargaining representative), the real questions (or tests at law, on the issue of misrepresentation under s.345 of the Act) are generally set out in the decision of Mortimer J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation.[21] In applying that reasoning to the facts and circumstances of this case, I do not consider there is a basis for me to form a view that the Applicant has contravened s.345 of the Act. This is because:
a)although Mr Atkinson and Mr Wark accepted during cross-examination that the nomination form statement (as it concerned the Applicant not yet receiving any completed nomination forms, at the time the nomination forms were first issued) was misleading, the opinions of Mr Atkinson and Mr Wark are not relevant to the question as to whether the statement in issue was misleading. The relevant legal test is an objective one, being:
What is the likelihood (probability not possibility) that the identified representation would lead an ordinary and reasonable member of the relevant group of employees into error?[22]
b)at the time it was made, the representation was true. The Applicant had not yet received any nomination forms back from employees. The representation may have been ‘sharp’, but in my view, it did not mispresent the position at the factual level. Although, it is possible for a misrepresentation to arise from a statement that is true but contains a false meaning,[23] I do not consider the representation under consideration in this matter to fall into this category. This is because the representation needs to be read having regard to the contents of the NERR issued to employees, and the fact that the nomination form itself contained an option for the CEPU to be or remain a default bargaining representative. Taken in the context of content of both the NERR and the nomination form, I do not accept that the representation (which is true) can be said to convey a false meaning;
c)the connection between the representation and a relevant employee’s workplace right to have the CEPU as his/her bargaining representative is tenuous. In other words, a misrepresentation must be about a workplace right and have a sufficient connection to the workplace right for the operative conduct concerning the misrepresentation to occur. The representation complained of by the CEPU is about whether or not nomination forms had yet been completed and returned by employees, not an employee’s right to have the CEPU as their bargaining representative (as a workplace right);[24]
d)having the CEPU as a default bargaining representative only occurs where the relevant employee is a member of the CEPU, and such default bargaining representative status has not been revoked, or an alternative bargaining representative election has not been made (c.f. s.176 of the Act). In this regard, the CEPU has not identified (by way of evidence) any employees who are union members, and has therefore not identified the group of relevant employees to whom it asserts were misled; and
e)the evidentiary burden to prove that the Applicant has “knowing or recklessly” made a misrepresentation in respect of a workplace right, in contravention of s.345, lies with the CEPU. In this regard, s.345 is limited to contraventions involving a mental element or a particular state of mind (i.e. unlike s.18 of the Australian Consumer Law, as set out in Schedule 2 of the Competition and Consumer Act 2010, which does not require a mental element). The CEPU has not identified any evidence or made any submissions as to the “knowingly or recklessly” requirement under s.345. There is no basis for me to infer such a state of mind. This is not a collateral issue but a core element of a s.345 contravention.
The forgoing matters, individually or combined, mean that there is no basis for me to form a view as to a contravention of s.345 of the Act by the Applicant. As Dawson J observed in Whitehorn v The Queen: “When a party’s case is deficient, the ordinary consequence is that it does not succeed”.[25] There is no basis to depart from the ordinary course in this case.
Misrepresentation and genuine agreement
Even where there is no basis to form a view as to a contravention of s.345 of the Act, that is not the end of the matter on the issue of whether a misrepresentation has impacted upon ‘genuine agreement’. In other words, I consider that I am also required, notwithstanding that I have formed a clear view that there has been no contravention of s.345 of the Act, to also consider the alleged misrepresentation in the context of whether the Agreement has been genuinely agreed.
Section 345 of the Act, unlike s.401 of the (repealed) Workplace Relations Act 1996, does not have a causal element.[26] That said, if the absence of genuine agreement is to be sustained on the basis of a misrepresentation (whether that misrepresentation is in contravention of s.345 of the Act or not), there must be a causal element between the representation and the absence of genuine agreement.[27]
In my view, the mere presence of a misrepresentation (whether in contravention of s.345 of the Act or otherwise) is not enough to make a finding as to the likely effect of that misrepresentation, which is a factor that must be considered in the context of the other facts and circumstances existing at the time to determine whether a proposed enterprise agreement has been genuinely agreed.
Although enterprise agreement approval proceedings are more inquisitorial than adversarial, I consider that the CEPU, in making its allegations as to Applicant’s misrepresentation/s or misinformation, and its effect on the completion of the nomination forms, bargaining and genuine agreement, bears the onus to not only prove that such misrepresentation occurred, but also that it caused (relevantly) the absence of genuine agreement. In this regard, as Wilson J stated in Gould v Vaggelas:
“….When all the facts are in, the fact-finding tribunal must determine whether or not it is satisfied on the balance of probabilities that the misrepresentations in question contributed to the plaintiff’s entry into the contract. The onus to show that they did is a condition precedent to relief and rests at all times on the plaintiff [in this case, the CEPU]”.[28]
Further, in Australian Securities and Investments Commission v Hellicar, the plurality said:[29]
“Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC.
Lord Mansfield’s dictum in Blatch v Archer that ‘[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’ is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for ‘it would have been very improper to have called’ the person whose account of events was not available to the court.
This Court’s decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. The essential facts of the case, though well known, should be restated. The personal representative of a driver who had died in a collision with another vehicle brought an action for damages on her own behalf and on behalf of the deceased driver’s dependants. The plaintiff’s case depended upon demonstration that the other driver’s negligence was a cause of the accident. The plaintiff sought to demonstrate negligence by having the tribunal of fact (in that case a jury) infer from facts concerning the road and the two vehicles involved that the collision had occurred when the defendant’s vehicle was on the wrong side of the road. One of the defendants, the surviving driver, did not give evidence at the trial. The Court divided about whether the inference which the plaintiff sought to have the jury draw about where the collision occurred was an inference that was open on the evidence. But the Court held ‘that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence’.”
Allegations of misrepresentation and/or coercion are serious matters. The Applicant’s witnesses denied that they applied any pressure or coercion in requesting employees complete the nominations forms. From an evidentiary perspective, it is a big step to form a view as to misrepresentation or coercion on the basis of cross-examination alone. This is especially so where the witnesses being cross-examined have been found to be credible, and these witnesses fail to make the relevant and necessary concessions during such cross-examination in support of the cross-examiner’s arguments or overall case theory.
In this matter, there is a complete absence of any evidence from relevant employees to counter the evidence of Mr Atkinson and Mr Wark, i.e. that relevant employees were not, and had not been, required or directed to complete the nomination forms (i.e. the employees were simply “requested” to complete the nomination form, which, as the evidence stands, was the relevant employee’s choice).
There is no evidence that the CEPU objected to the alleged misrepresentation prior to the Agreement being lodged with the Commission (i.e. as the misrepresentation concerned the Applicant’s Newcastle and Central Coast operations).
In fact, there is a total absence of any evidence as to the actual effect of the misrepresentation or misinformation on the minds of any of the Applicant’s relevant employees, or upon their ultimate decision to complete the nomination form, or otherwise approve the Agreement. Further, there is a lack of any evidence whatsoever from employees expressing their concern or dissatisfaction with the process adopted in relation to the nomination form (or its completion). Finally, there is no evidence of any complaint from relevant employees as to the bargaining process that occurred (or the bargaining approach that was adopted by the Applicant).
All in all, I do not accept that the representation in the nomination form, is in and of itself, a basis to make a finding that relevant employees were misled into:
a)completing the nomination form; or
b)nominating a bargaining representative other than the CEPU.
Nor do I find that relevant employees were otherwise required or coerced to do (a) or (b) above.
It follows that I reject the CEPU’s assertions that the Agreement was not genuinely agreed because of any issue associated or connected with the completion of the nomination form, or the conduct of bargaining. Any finding to the contrary would be speculation founded upon conjecture given the absent state of the evidence in support of the CEPU’s allegations.
In summary, I do not accept that the representation in the nomination form, or the conduct of the Applicant’s representatives in the circumstances of this case, gives rise to any finding that would cause me to:
a)form a view that the Act (including s.345) has been contravened;
b)conclude that relevant employees were misled, required, directed or otherwise coerced into completing the nomination form;
c)conclude that the bargaining process was improper or otherwise tainted; or
d)determine that I ought otherwise not be satisfied that I can approve the Agreement by reference to s.188(c) of the Act.
Other genuine agreement complaints concerning the Applicant’s approach to bargaining
Both Mr Atkinson and Mr Wark accepted during cross-examination that the Applicant approached bargaining on the basis that it wanted a quick bargaining process, and that the Applicant did not want, or “have an appetite” for, any significant changes to the 2016 Agreement (beyond pay rises and allowance increases).
Mr Atkinson and Mr Wark also accepted that they advised relevant employees that a significant part of the Applicant’s reasoning for seeking to have a new enterprise agreement approved by employees was so that the Applicant could accurately tender for (and ideally secure work on) large projects that were likely to be coming online (or down the pipeline) in the next 6 to 12 months (i.e. with work to be performed on such projects beyond the expiry date of the 2016 Agreement). Flowing from this, the Applicant told employees that their job security (or employment longevity) would be likely improved if a new enterprise agreement is approved in that the Applicant could tender for projects on the basis of wage cost certainty and (for want of a better term) ‘industrial peace’.
The CEPU sought to attack the Applicant’s foregoing advice to employees as somehow illegitimate from a bargaining perspective. As I understand it, the CEPU asserts that the Applicant advancing such positions or providing such information to employees in the context of bargaining is not appropriate, and is likely to place pressure (directly or indirectly) on employees to approve an enterprise agreement (meaning the enterprise agreement lacks genuine agreement).
For my part, I do not see anything wrong with the Applicant’s approach to bargaining, or the position it stated to employees.
In my view, the Applicant was being upfront with employees in a common sense and straightforward manner. In the context of upcoming projects in the region, a new enterprise agreement covering the life of such projects will potentially set the Applicant apart from its competitors, enable it to win more work in the region (including better quality work and larger projects), and ensure that employees can rely upon (in the ordinary course) improved employment longevity. I therefore reject the submissions by the CEPU that the Applicant’s approach to bargaining resulted in any absence of genuine agreement.
I also reject the CEPU assertion that the Applicant’s approach, subjectively or objectively, was one of refusing to bargain in respect of the Agreement. There is simply no evidence to support this allegation.
Finally, the CEPU submitted that there was an absence of genuine agreement (in relation to the approval of the Agreement by relevant employees) as employees:
a)were advised that they would receive the first pay rise under the Agreement upon its approval (by way of valid majority vote). According to the CEPU, given the Agreement cannot operate until after the nominal expiry date of the 2016 Agreement, the suggestion that the pay rise would be payable immediately after the approval vote was misleading in that such a pay rise would not be enforceable as a term of the Agreement; and
b)were not advised that the operative date of the Agreement could only be after the nominal term of the 2016 Agreement.
In relation to (a), I reject the CEPU submissions. Whilst the pay rise may not be enforceable as a term of the Agreement, it would be enforceable at common law, or as a safety net contractual entitlement under the Act. Further, there is no suggestion that the pay rise has not been passed onto employees already.
In relation to (b), I reject the CEPU submissions. The submissions are contrary to the evidence, whereby the Applicant advised employees in writing that if the Agreement is approved it will not be operative until after the 2016 Agreement passes its nominal expiry date or is terminated (in accordance with the requirements of the Act).[30]
Explanation of the terms, and the effect of those terms, to relevant employees
In relation to alleged non-compliance with s.180(5), and by extension, s.188, of the Act, the CEPU relied upon the decision of the Full Court of the Federal Court of Australia in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union,[31] and the decision of the Full Bench of the Fair Work Commission in Australian Workers’ Union v Professional Traffic Solutions.[32]
The crux of the CEPU’s argument as to non-compliance by the Applicant with s.180(5) of the Act is that the Applicant failed to explain the terms of the Agreement via comparison with the Award, and failed to identify to relevant employees terms and conditions that the CEPU asserts have been removed from the Award. However, there appear to be two difficulties with this argument.
Firstly, there is no suggestion that if the Agreement is not approved by employees that their terms and conditions will revert back to the Award (given the 2016 Agreement remains in place).
Secondly, the items that the CEPU submits have been removed from the Award have been more than compensated for by the rates of pay, higher allowances, additional allowances, and improved overall terms and conditions under the Agreement. In reality, and in substance, the Agreement sets out far superior terms and conditions of employment than are contained in the Award.
The facts and circumstances, along with the nature of any explanation given, mean that what constitutes “all reasonable steps” necessarily varies.[33] The term “all reasonable steps” does not give rise to the requirement for “perfection”.[34] The assessment is a value judgement, and there are no absolute rules. It equally follows that what is required (by way of evidence) in terms of satisfaction by the Commission in terms of compliance with s.180(5), and genuine agreement (s.188), necessarily varies, and there are no absolute rules as to what is required or to be relied upon.
I reject the CEPU’s arguments as to the Applicant’s purported non-compliance with s.180(5) of the Act. I am satisfied that the Applicant has complied with s.180(5).
In coming to the foregoing determination (and the relevant satisfaction as to compliance with s.180(5), extending to s.188, of the Act) I have had direct regard to the fact that the Agreement replaces the 2016 Agreement. The terms and conditions in the 2016 Agreement are simply updated by the Agreement, by way of pay and allowance increases. This militates against the CEPU assertions as to the unsatisfactory explanation of the terms of the Agreement to employees, including the nature of that explanation, in that the “circumstances” of such steps are to be considered having regard to the relevant circumstances applying at the workplace.[35]
Taking into account the submissions of the Applicant, the information set out in the F17 Form (including the attachments thereto), the Applicant’s letter to employee’s dated 18 April 2019,[36] the evidence of Mr Atkinson and Mr Wark, and the case law principles identified by the parties in their submissions, I am satisfied that the CEPU submissions as to non-compliance with s.180(5) (and s.188) of the Act ought be rejected. More specifically, I am satisfied that the Applicant:
a)undertook all reasonable steps, including during the access period, to explain the terms of the Agreement and the effect of those terms to employees, in a manner appropriate (taking into account the circumstances and needs of relevant employees,[37] the long history of agreement making at the workplace, and the presence of employee bargaining representatives);
b)explained relevant and material less beneficial terms (between the Agreement and the 2016 Agreement) to employees (I note that I am not aware of any less beneficial terms between the two agreements); and
c)did not mislead employees (by way of act or omission) in respect of the differences between the Agreement and the 2016 Agreement.
BOOT objections
In relation to the CEPU allegations that the terms and conditions under the Agreement do not pass the BOOT, I reject those allegations. All such allegations (or issues/concerns) have been resolved by the undertakings provided by the Applicant and/or via the clarification provided in the Applicant’s submissions to the Commission. I note that the Commission sought the views of relevant bargaining representatives (who made no objection to same) prior to accepting them.[38]
More specifically, having regard to the submissions of the Applicant, and the decision of the Full Bench of the Commission in SDA v Beechworth Bakery Employee Co Pty Ltd t/as Beechworth Bakery,[39] I am satisfied that employees will be better off overall under the Agreement when compared to the Award. I note that taking into account the undertakings, the ordinary rates of pay under the Agreement are up to over 63 percent above Award rates of pay (excluding allowances payable above such rates of pay, such as the productivity allowance which is payable to employees who simply turn up for work, and increases rates of pay for days worked by up to 68 percent above the Award).
On the issue of the Agreement excluding the casual conversion clause from the Award, given the fact that the Agreement provides for pay rates that are well in excess of those contained in the Award, I am satisfied that the exclusion of the casual conversion entitlements does not act to prevent the Agreement from being approved.[40]
I am equally satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES, and that the Agreement contains no unlawful terms.
Conclusion
In view of these Reasons for Decision, the Agreement is approved in accordance with my Decision in [2019] FWCA 7805.
DEPUTY PRESIDENT
Appearances:
Ms Theresa Moltoni appeared for the Applicant.
Ms Alana Heffernan appeared for the CEPU.
Hearing details:
The matter was heard in Sydney on 30 July 2019.
<PR714268>
[1] AE420287.
[2] AC304850, 5 May 2007.
[3] AE874839.
[4] AE898685.
[5] Fair Work Act 2009 s.58.
[6] Exhibit CEPU-2.
[7] The CEPU made no submission that the nomination forms were not completed correctly by relevant employees (in terms of the manner they were filled out and completed on their face).
[8] See Appeal by Australian Municipal, Administrative, Clerical and Services Union (2013) 232 IR 440 at [28]-[32]; [2013] FWCFB 7453, including the authorities cited therein; Blue Star Pacific Pty Ltd v Communications, Electrical, Electronic Energy, Information, Postal, Plumbing & Allied Services Union of Australia (2009) 181 FCR 416; [2009] FCAFC 187; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Luxottica Retail Australia Pty Ltd (2009) 185 IR 164; [2009] FCA 608; Shop, Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd (2008) 166 FCR 562; [2008] FCAFC 42; Shop, Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd (No. 2) (2007) 166 IR 51; [2007] FCA 1425.
[9] CEPU Closing Submissions (19 August 2019) at Footnote 27: Lambeth & Ors v University of Western Sydney[2009] AIRC 47; Grant v BHP Coal Pty Ltd[2014] FWCFB 3027 (at [109], [122]-[129]); Swanson v Monash Health [2018] FCCA 538 (at [18(p)], [43], [45], [50], [55]).
[10] Oxford English Dictionary (4th ed, 1950) ‘request’.
[11] Ibid ‘direction’.
[12] Transcript, 30 July 2019, PN77 to PN276.
[13] Transcript, 30 July 2019, PN136 to PN141.
[14] Transcript, 30 July 2019, PN328 to PN428.
[15] Transcript, 30 July 2019, PN136 to PN141.
[16] Exhibit A5, at [3].
[17] Transcript, 30 July 2019, PN417.
[18] Transcript, 30 July 2019, PN424.
[19] Exhibit A6.
[20] [2019] FWC 2848 at [22].
[21] [2017] FCA 1091 at [199]-[271].
[22] [2017] FCA 1091 at [212].
[23] Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 55 ALR 25; [1984] ATPR 40-463; [1984] ASC 55-334; (1984) 2 FCR 82 at 88; [1984] FCA 180; cited in Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151 at [80]; (2007) 248 ALR 169; (2007) 173 IR 360; [2007] FCAFC 197.
[24] Fair Work Act 2009 ss.341(1)(a) and 341(2).
[25] (1983) 152 CLR 657 at 682, [33]; (1983) 49 ALR 448; (1983) 57 ALJR 809; 9 A Crim R 107; [1983] HCA 42.
[26] Explanatory Memorandum to the Fair Work Bill 2008, pp.223-224, at [1397]-[1399].
[27] See Appeal by Australian Municipal, Administrative, Clerical and Services Union (2013) 232 IR 440 at [28]-[32]; [2013] FWCFB 7453, including the authorities cited therein; Blue Star Pacific Pty Ltd v Communications, Electrical, Electronic Energy, Information, Postal, Plumbing & Allied Services Union of Australia (2009) 181 FCR 416; [2009] FCAFC 187; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Luxottica Retail Australia Pty Ltd (2009) 185 IR 164; [2009] FCA 608; Shop, Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd (2008) 166 FCR 562; [2008] FCAFC 42; Shop, Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd (No. 2) (2007) 166 IR 51; [2007] FCA 1425.
[28] (1984) 157 CLR 215 at 238-239; (1984) 56 ALR 31; (1984) 58 ALJR 560; [1984] Aust Torts Reports 80-313; [1984] ASC 55-376; [1984] HCA 68.
[29] (2012) 247 CLR 345 at [165]-[167] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[30] Exhibit CEPU-1.
[31] (2018) 356 ALR 535; [2018] FCAFC 77 at [63], [112]-[113] and [115].
[32] [2018] FWCFB 6333 at [42].
[33] NTEU v University of NSW (2011) 210 IR 244; [2011] FWAFB 5163; .
[34] CFMEU v Shamrock Civil Pty Ltd[2018] FWCFB 1722 at [36].
[35] See: BGC Contracting Pty Ltd [2018] FWC 1466 at [87].
[36] Exhibit CEPU-1.
[37] Form F17, Item 4.3 (no employees are from non-English speaking backgrounds).
[38] Fair Work Act 2009 s.190(4).
[39] [2017] FWCFB 1664 at [12].
[40] See: Austeire Plant Hire Pty Ltd [2017] FWCA 5699.
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