Swinburne University of Technology, Academic and General Staff Enterprise Agreement 2014
[2014] FWCFB 9023
•16 DECEMBER 2014
| [2014] FWCFB 9023 [Note: refer to the Federal Court decision dated 17 July 2015 [2015] FCAFC 98 for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
(AG2014/3960)
SWINBURNE UNIVERSITY OF TECHNOLOGY, ACADEMIC & GENERAL STAFF ENTERPRISE AGREEMENT 2014
Educational services | |
VICE PRESIDENT CATANZARITI | SYDNEY, 16 DECEMBER 2014 |
Application for approval of the Swinburne University of Technology, Academic & General Staff Enterprise Agreement 2014; whether agreement was genuinely approved by employees; whether certain “sessional” employees employed at the time and will be covered by the agreement; whether inclusion of persons who were sessional employees in the previous academic year in the request to approve the agreement results in an agreement not being genuinely agreed to by the employees.
Introduction
[1] Swinburne University of Technology (Swinburne) initiated bargaining for a proposed enterprise agreement to cover its academic, general and executive staff on 13 February 2013. 1 On the same day it issued to employees who will be covered by the proposed enterprise agreement a notice of employee representational rights (NERR).2 The National Tertiary Education Industry Union (NTEU) is a bargaining representative for the proposed enterprise agreement.
[2] Between 17 and 18 February 2014 Swinburne provided to employees who will be covered by the proposed agreement by email links to various documents contained on Swinburne’s enterprise bargaining website and included a link to the proposed enterprise agreement. 3 Swinburne also sent letters to employees on leave and to sessional employees directing them to the documents including the proposed agreement contained on Swinburne University’s enterprise bargaining website.4
[3] Also between these dates, email correspondence and letters were sent by Swinburne to employees who will be covered by the proposed enterprise agreement containing notification of the date and place of which a vote to approve the agreement would occur and the method of voting that would be used. 5 Employees were able to cast a vote on whether to approve the proposed enterprise agreement between 26 and 28 February 2014.6
[4] In requesting employees employed at the time who will be covered by the proposed enterprise agreement to approve the agreement by voting for it, Swinburne included in the request “sessional employees” and specifically any person who had been engaged by it as a sessional employee during the 2013 academic year. The number of employees who will be covered by the proposed enterprise agreement is said to be approximately 3158. 7 This number includes sessional employees in the category described immediately above.
[5] At the conclusion of the ballot on 28 February 2014, 2005 persons who received a request to vote to approve the proposed agreement cast a valid vote and 1031 of those persons voted to approve the proposed agreement. 8 The agreement was therefore approved by a majority of 57 votes.
[6] On 11 March 2014 Swinburne applied pursuant to section 185 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (Commission) for the approval of the agreement, which is titled the Swinburne University of Technology Academic and General Staff Enterprise Agreement 2014 (2014 Agreement). The application to approve the 2014 Agreement was initially allocated to Deputy President Smith. The NTEU opposed the approval of the 2014 Agreement. The central basis of the NTEU’s opposition is that a number of persons described as sessional employees who are asked to approve the 2014 Agreement by voting for it were not eligible to vote because those persons were not relevantly employees employed by Swinburne at the time of the request and some of them will not be covered by the 2014 Agreement.
[7] In essence the opposition to the approval of the 2014 Agreement is based on an allegation that the 2014 Agreement was not genuinely agreed to by employees because a majority of employees eligible to vote to approve the agreement did not vote to approve the agreement (because ineligible sessional employees were given an opportunity to vote and some did vote in the ballot for the 2014 Agreement). Alternatively or in addition, because of the inclusion of ineligible sessional employees in the ballot and that some ineligible employees voted in the ballot, there were reasonable grounds for believing that the 2014 Agreement has not been genuinely agreed to by the employees. The NTEU also relies on the inducement to vote to approve the 2014 Agreement said to arise by reason of clause 4A.2 to impugn the genuineness of the employees’ agreement.
[8] During the course of the Deputy President dealing with the application on 24 March 2014, the NTEU asked the Deputy President to make orders pursuant to s. 590(2)(c) requiring Swinburne to produce certain documents falling within particular categories. The production of documents were said to be necessary to determine whether persons described as sessional employees were in fact eligible to be the subject of a request by Swinburne of those persons to approve the 2014 Agreement by voting for it. The Deputy President declined to issue any orders at that stage. 9 The application to approve the 2014 Agreement was subsequently referred to this Full Bench.
[9] By notice of appeal dated 11 April 2014, the NTEU sought permission to appeal the decision of the Deputy President to refuse to make orders for the production of documents. The appeal was listed for hearing on 11 June 2014. During the course of hearing the appeal Swinburne agreed to provide to the NTEU some of the documents that were sought and indicated that others within the categories identified did not exist. Ultimately as events transpired the questions raised in the appeal did not need to be determined. Directions were made for the filing and service of additional materials in relation to the approval of the 2014 Agreement and the parties were given liberty to apply for any orders to produce documents once the additional materials had been filed and served. 10 We note that no applications of this kind were made by either party.
Matters requiring determination and construction of relevant provisions
[10] The central question that is in dispute requiring determination is whether we are satisfied that the 2014 Agreement was genuinely agreed to by the employees covered by the 2014 Agreement.
[11] Satisfaction that employees covered by an agreement genuinely agreed to it requires consideration of a number of different but related matters. This is evident from s. 188 of the Act which provides as follows:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”
[12] The NTEU does not take issue with the proposition that Swinburne has complied with the obligations set out in the subsections mentioned in s. 188(a). Based on the statutory declaration filed in support of the application for approval and documents attached thereto, we are satisfied that those obligations have been complied with by Swinburne.
[13] The NTEU’s issue is whether the 2014 Agreement is made in accordance with s. 182(1) of the Act and says in any event that there were reasonable grounds for believing that the 2014 Agreement has not been genuinely agreed to by the employees by reason of inclusion in the ballot of a number of persons who are not eligible to vote in the ballot. The resolution of these matters requires consideration of the application of ss. 181 and 182 of the Act. In particular it requires:
- Assessing the validity of the class of employees requested by Swinburne to approve the 2014 Agreement under s. 181(1). This may be relevant in assessing whether there are reasonable grounds for believing that the 2014 Agreement has not been genuinely agreed to by the employees; and
- Determining whether a majority of employees of Swinburne who have been asked to approve the 2014 Agreement, and who cast a valid vote, approved it under s. 182(1).
[14] If the answer to the second dot point above is “Yes”, the 2014 Agreement was made when that vote to approve the agreement concluded on 28 February 2014 by virtue of s. 182. If the answer is “No”, the 2014 Agreement cannot be approved by the Commission.
[15] Section 181 provides:
“181 Employers may request employees to approve a proposed enterprise agreement
(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.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”
[16] Section 182 relevantly provides:
“182 When an enterprise agreement is made
Single-enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each 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.”
[17] The provisions need to be interpreted in their legislative context. In interpreting a provision of an Act, the interpretation that would best promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) is to be preferred to a construction that would not promote that purpose or object. 11 The principal object of the Act is “to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by”, amongst other things, “achieving productivity and fairness through an emphasis on enterprise level collective bargaining...”12.
[18] Enterprise agreements are dealt with in Part 2-4 of the Act. The object of that Part of the Act are set out in s. 171 as follows:
“The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:
(i) makingbargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”
[19] The central question is how casual or sessional employees of Swinburne are treated for the purposes of these provisions. Sessional academic staff at Swinburne are engaged under standard contractual terms comprising an application for sessional academic engagement, the terms of the enterprise agreement and supplementary documentation regarding specific appointments. Under the standard terms, payment is made on the basis of timesheets authorised by the nominated supervisor/manager or a signed sessional work schedule. The standard terms provide that “where possible, the sessional employee is required to give the University 24 hours notification of casual hours that they are unable to undertake teaching or if terminating the engagement.”
[20] Casual employees are covered by the Swinburne University of Technology, Academic & General Staff Enterprise Agreement 2009 (2009 Agreement). A casual employee is defined as “an employee engaged by the hour and paid on an hourly basis that includes a loading in lieu of specific benefits explicitly not provided to the casual employee.” 13 It appears that the standard terms for sessional academic staff satisfies the requirement in clause 9, for employees to be engaged under an instrument of appointment. Terms of employment for casual general staff are dealt with in clause 12.
[21] It appears beyond doubt that Parliament intended that casual employees are able to be included within the coverage of enterprise agreements and should be included in votes to approve agreements under Part 2-4 of the Act. The question is how to determine which casual employees are properly included having regard to the wording of ss. 181 and 182 and the general notion that casual employees are engaged by the hour.
[22] The class of employees that can be requested to approve an agreement is described in s. 181 as “the employees employed at the time”. The cohort of employees required to approve an agreement is described in s. 182 as a majority of “employees of the employer” who “have been asked to approve the agreement under subsection 181(1).”
[23] On a strictly literal interpretation of these provisions, a casual or sessional employee who is not engaged at precisely the time an employer makes the request under s. 181(1) cannot be included in the class of employees requested to approve the agreement because the employees are not employed at any time other than during the time of their engagement. This would be the case even though such a casual or sessional employee “will be covered by the agreement” in relation to an engagement once the agreement is in operation. In our view, this is an overly technical approach which will produce artificial and perhaps absurd results and will disenfranchise ongoing casual or sessional employees who are clearly intended by the employer making the request to be covered by the enterprise agreement (if the agreement is so expressed) and intended by the legislature to be entitled to vote in a ballot whether to approve an agreement.
[24] Similar wording in the Workplace Relations Act 1996 (WR Act) was subject to a number of decisions of the Australian Industrial Relations Commission. For example in Re National Wine Centre Certified Agreement, DP Hampton (as he then was) said:
“[34] In my view the Commission must be careful to apply the statutory provisions having regard to the objects and intent of the legislature as revealed in the Act, and apply such in the particular circumstances of each application. The object as revealed in s.170L of the Act being of significance. In that context, the Act must be applied in such a manner as to contemplate that employees may come and go from amongst the employees that form the persons employed for present purposes. That is, the provisions of the Act must be capable of being applied with some certainty and in a manner that allows the requirements to be applied in practice. Equally, the emphasis in the Act upon the employer affording employees, particularly in a s.170LK application, reasonable access to the notice, information and representational rights set out in that provision and then agreeing to be bound, must also be taken into account. In addition, the Commission must be mindful that a narrow approach to some of these provisions could lead to manipulation of the timing and processes so as to exclude significant groups of employees whose interests are being determined.
[35] Section 170LK(1) refers to the capacity of an employer to make an agreement with a valid majority of the persons employed at the time whose employment will be subject to the agreement. This provision should in my view be read in conjunction with s.170LE which defines the meaning of a valid majority for the purposes of the relevant Part. This latter provision includes persons employed at a particular time whose employment is or will be subject to an agreement. Accordingly, the assessment of the valid majority must be made at the point that the agreement is made and include all employees who are employed at that time and who are or will be subject to the agreement. As I understand Mirvac, that point is the time at which the parties endorse the instrument, including the employees, through one of the processes contemplated under the Act. In that light, I find that the assessment of a valid majority is not limited only to those employees who were subject to the original s.170LK(2) notice.
[36] The reference to "at the time" in s.170LK(2) must in my view mean at the time that the notice is issued. In addition, the requirements of s.170LK(3) and (4) must also relate to employees at that particular time. This is the express language and intent of the Act. To apply those requirements to employees joining the employment after the notice has been issued would potentially mean that an employer would be continually issuing the notice and could in some circumstances never conclude the 14 days notice as required by the Act.
[37] Section 170LK(7) requires that reasonable steps be taken by the employer to ensure that the terms of the agreement are explained to all of the persons employed at the time whose employment will be subject to the agreement. There is no specification within the Act as to whether "at the time" in this context means at the time of the notice, the making of the agreement or the time that the explanation is provided. Clearly the explanation must be provided prior to the making of the agreement. I am not inclined to read down the provision such that it only applies to the employees at the time that the notice is provided, particularly given the view that I have taken as to the constitution of the valid majority. It is not strictly necessary for me to decide in this case as to whether the "explanation" requirement should be applied to all persons who will comprise the employees at the time of the making of the agreement, however there are good reasons for that approach to be adopted.
[38] In light of the above, I must therefore consider whether any of the casual employees in this case should have been included for any one of the relevant requirements of s.170LK. I accept, as did Gay C in Greyhound, that an assessment must be made as to whether the casual employees in a given circumstance should be considered to be employees in terms of the respective requirements. In my view this requires an assessment of more than whether such employees actually worked on any given day. The Commission should also consider the nature of the relationship and the degree of connection between the workplace and the casual employees for this present purpose. I accept that the use of indicia, including but not necessarily limited to those discussed in Greyhound, may be relevant to that assessment. However, each case must be assessed on its own merits and the context in which the employment is conducted, taken into account.
[39] In this case, I am on balance prepared to accept that those casuals who were subject only to the introductory training sessions, and not to any (other) employment at or prior to the time of the s.170LK(2) notice, during the period leading to the ballot or at the time that the agreement was made, were not at the time employees for any present purposes. There was also at that time, insufficient expectation of a continuing relationship for those particular employees to be included within the process. (I interpose for completeness, that the employee authorisation relied upon by the ALHMWU was provided by an employee who fell into this category.)
[40] I am however not persuaded that all of the casual employees that were employed during the process carried out by the employer in this case, should have been excluded from that process. There was at least one employee (employee `E') who was subject to a formal (and accepted) offer of employment, had worked three shifts prior to the s.170LK(2) notice and worked six significant shifts during the period leading up to the ballot. Whilst I acknowledge that this employee, and the other casual employees, are legally employed on an engagement by engagement basis, I am not satisfied that the nature of the relationship is such that this employee should be excluded for present purposes. In my view that employee was an employee for the purposes of s.170LK(2), (3), (4) and (7) and s.170LE of the Act. That is, I find that this employee has been selected as being part of a relatively small pool of casuals who are a necessary and integral part of the operations of the National Wine Centre. Further, and more importantly, there is already within the period under consideration, a level of regularity and connection between that employee and the employer such that they should not have been excluded from the s.170LK process. One only needs to contrast the practical outworking of the relationship under consideration here with the nature of the "true casuals" as found by Gay C in Greyhound, to reinforce the point. The fact that in the period under scrutiny, no formal roster system was in place for the casuals, does not in the context of this workplace and application, indicate that the employment was such as to fall outside of consideration for present purposes. I also take the view that given the circumstances here, the fact that the employee concerned did not actually perform work on the day of the s.170LK(2) notice, is not sufficient to remove them from consideration.
[41] Should the applicant's view as to the total exclusion of the casual employees at the Wine Centre be accepted on the basis as proposed, such employees would never become eligible to fully participate in the making or variation of the agreement at this enterprise. Even based upon their alternative approach, the casual employees would not be entitled to participate unless they happened to work on the day of the notice or literally at the time of any ballot. Given that the agreement purports to regulate their employment for the life of the instrument, an approach that completely disenfranchised that class of employee is not one that sits well with the requirements of the Act.
[42] I am also not satisfied that many of the other casuals should be excluded, at least for the purposes of s.170LK(7) and s.170LE of the Act. In particular, those casuals nominated as being part of the kitchen and restaurant staff of the Wine Centre. Whilst most of these employees were arguably not employees for the purposes of giving the s.170LK(2) notice, many of this group of casual employees were engaged on various shifts leading up to the making of the agreement and five of those employees actually worked on the day that the agreement was made. These employees were also subject to the same (concluded) written offers of employment as outlined earlier in this decision and in my view already had a sufficient connection with the Wine Centre to be considered as employees for present purposes.” 14
[25] Given the re-enactment of legislative provisions regarding enterprise agreements using similar wording to that applied under the WR Act, the legislature may be presumed to have intended the provisions to be applied in a similar manner to that adopted for predecessor legislation. 15 As the general editors of the Thomson Reuters edition of the Fair Work Act observe, the Act does not appear to depart from the approach of Hampton DP under the WR Act.
[26] In our view it is necessary and appropriate to adopt an interpretation of the phrase “the employees employed at the time” that is grounded in the practical reality of the employment circumstances taking into account the statutory purpose and context of the bargaining and agreement making provisions of the Act. In this regard, the nature of the employment in the enterprise in which an agreement will operate is clearly relevant. Swinburne is a large multi campus tertiary institution employing more than 3,000 employees. The 2014 Agreement put to employees for approval covers academic and general staff employed on a full time, part-time and casual basis. Casual academic staff are professional employees, often undertaking post graduate study, and usually employed as tutors in a field in which they have particular expertise. It may be that they are engaged in particular teaching units that are not offered in every semester throughout the year. It may be that they are engaged on a sporadic basis. Casual general staff are usually not professional employees. They perform clerical or manual work on a casual basis. The need for engagement of casual general staff may vary from time to time.
[27] Pursuant to clause 65 of the 2009 Agreement, Swinburne provided the NTEU with a list of casual employees. It produced a list on 21 March 2014, about three weeks after the ballot to approve the 2014 Agreement closed. The list was compiled in accordance with clause 65 which provides:
“65 STAFF LISTS
(1) Subject to clause 65.4:
(a) Every March and September, the University shall provide to the NTEU a list of the name, job title, category (general/academic), work location, work address and email address of each employee in a format which allows the list to be sorted by any of these categories;
(2) The NTEU shall only use the information provided for contacting employees on legitimate union business. It shall ensure that no one apart from paid union officials or elected senior officers of the Union Branch (President and Secretary) have access to the information. The University shall not be required to continue to provide the information specified in this clause if the Union materially breaches these obligations.
(3) The NTEU shall not use this information to contact an employee if the employee has requested the Union directly in writing that the employee does not wish to be contacted, and shall include advice of this from time to time in material provided to employees.
(4) The University:
(a) will notify staff of this clause and will offer employees the option of requesting that information not be provided to the NTEU; and
(b) will suspend the provision of any information under clause 65.1 if there is on foot a bona fide challenge or complaint from an employee in relation to the compliance of the clause with privacy legislation to:
- the University's privacy officer or a State or Federal privacy office, in which case the suspension shall be for a maximum period of 3 months but no more than the period until the matter is dismissed by the relevant privacy office(r); or
- a tribunal or court, in which case the suspension shall be until the matter is determined in which case the determination will be implemented by the parties where the parties have had the opportunity to participate in those proceedings.”
[28] The requirements under clause 65 do not include taking into account the number of hours worked by employees in the previous 12 months. The list is compiled having regard to whether Swinburne has information falling within all of the criteria specified in clause 65(1)(a). Employees are able to opt out of being included in the list under clause 65(1)(4)(a). The 2014 academic year commenced on 3 March 2014. Sessional academic staff are commonly engaged in the first week of the academic year. The sessional staff engaged in the first week of the academic year would be likely to have included staff who had been employed as sessional employees the previous year and those who were not.
[29] In contrast, the voter roll for the ballot to approve the 2014 Agreement was compiled having regard to whether a sessional employee had performed any work for Swinburne in the previous 12 months before the closing of the ballot to approve the 2014 Agreement. This list will probably have included some sessional employees who did not seek to work as sessional employees in 2014 and some employees who Swinburne did not ultimately engage to perform sessional work during the course of 2014.
[30] It is also important to note the nature of an enterprise agreement under the Act. An enterprise agreement while in operation imposes obligations on employers and employees covered by the agreement. 16 An agreement applies to employees expressed to be covered by it when the agreement is in operation, unless excluded by a provision of the Act.17 Hence an enterprise agreement applies to the class of employees described in the coverage clause of the agreement, regardless of whether they voted in the ballot for the agreement, whether they supported the making of the agreement, or whether they were employed at the time the agreement was made. Similarly, an employee who voted to approve an agreement may leave the employment and cease to be covered by it.18
[31] In our view, these provisions require the adoption of a practical approach to the determination of “employees employed at the time” of the request who may be requested by an employer to approve an agreement under s. 181. It is entirely appropriate in our view to include casual or sessional employees in the request. The question becomes how to determine which casual or sessional employees are to be included in the request, and which employees should be excluded. The question needs to be determined by reference to the nature of the employment and the employment patterns in the industry and the employer’s enterprise. Considerations such as the timing of the ballot will also be relevant. The employer will also need to determine whether persons identified by it as “employees employed at the time” are also persons who “will be covered by the agreement”, that is, whether the agreement purports to cover those persons (without the notion of futurity). 19
[32] An employer should adopt an objective, transparent and logical approach designed to ensure that employees who will be covered by the agreement will be requested to vote to approve the agreement, but that employees who will not be covered by the agreement because the employee will not be employed or engaged by the employer when the agreement is approved or is outside the coverage of the agreement are not requested to approve it. We therefore reject the notion that only casual employees actually working on the day or days of the ballot or on the day of the request are eligible to vote. In our view the relevant test is whether the person is employed, or usually employed having regard to the matters set out above, not whether the person was working or attending work when the request was made or when the ballot took place. For the purposes of Part 2-4 of the Act “employee” means a “national system employee”. 20 The test we propose accords with the definition of national system employee”.21
[33] In the present context, for an approval vote that is undertaken prior to the commencement of the academic year, it is appropriate to include sessional academic employees who were engaged during the previous academic year unless there is a basis for the employer to believe that a particular sessional employee is not likely to be engaged in the ensuing year. A person who, though employed as a sessional employee in the previous academic year, is not likely to be employed in the subsequent academic year cannot in our view be said to be employed or usually employed, and is therefore not “employed at the time” within the meaning of s. 181(1). This approach is consistent with the approach adopted by North J in AMIEU v Belandra Pty Ltd 22 to the meaning of the phrase “usually an employer” found in s. 4(1) of the WR Act23 and we see no sound reason for departing from it.
[34] In our view, it would be prudent for Swinburne to make reasonable and diligent enquiries so as to exclude any sessional employees who have communicated their unavailability for engagement in the ensuing academic year and any sessional employees who Swinburne has decided it will not engage as a sessional employee in the ensuing academic year.
[35] For a ballot held during the course of an academic year a different approach may be warranted. In such a case, the inclusion of a sessional employee engaged during the previous academic year, but who has not been engaged in the current academic year may only be appropriate if there is a sound basis for believing that the person is likely to be engaged at a subsequent time in the academic year, for example as a tutor in a unit to be offered only in the second semester.
[36] It is nevertheless possible that a person who cannot be said to be employed or usually employed might be requested to vote to approve an agreement. The significance of this will vary according to the circumstances. Voting to approve an agreement is voluntary and the level of participation in the vote may vary considerably. If a sessional employee obtains full time employment elsewhere, and is therefore unlikely to be employed again as a sessional employee in the next academic year, there is a lesser likelihood of that employee casting a vote than if the employee was seeking ongoing sessional work at Swinburne. This is a consideration in determining the legitimacy of Swinburne’s approach to the determination of the sessional employees requested to approve the agreement and in determining whether there are no other reasonable grounds for believing that the 2014 Agreement has not been genuinely agreed to by the employees.
[37] It is also worth noting that an agreement that is made because of s. 182(1) does not cease to be so merely because one or more persons who voted in the ballot to approve the agreement were not within the class of persons described in s. 181(1) that is requested to approve the agreement. An agreement is made when a valid majority of employees who are eligible to vote because they fall within the class of persons described in s. 181, cast a valid vote to approve the agreement.
[38] As to whether an agreement is genuinely agreed to by the employees, the relevant enquiries, so far as the vote is concerned are whether s. 181(2) (the 21 days after NERR issued requirement) is met and whether as required by s. 182(1) a valid majority of employees cast a valid vote to approve the agreement. These provisions are not strictly concerned with whether an ineligible person was asked to vote. The s. 182(1) enquiry is concerned inter alia with whether a valid majority of employees who approved the agreement was comprised of persons who at the time of the employer’s request were employees of the employer and will be covered by the agreement. This enquiry raises the question whether persons who were not eligible to vote, voted to approve the agreement.
[39] Care must therefore be taken not to focus undue attention on the cohort of persons asked to vote. The relevant focus is on the composition of persons who actually voted to approve an agreement. Thus the question is: whether any of those persons were not eligible to vote to approve the agreement. If the answer to that question is yes, then one asks: how many; and if that number is excluded; is s. 182 (1) or (2) as the case requires, still satisfied?
[40] Evidence of a large number of ineligible persons voting in a ballot or voting to approve an agreement will be more significant in cases where the vote is close or where it cannot be determined whether a valid majority has been obtained. That evidence may be relevant both in assessing whether s. 188(b) is met and whether there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees for the purposes of s. 188(c). But if, notwithstanding that persons not eligible to vote, were asked to vote, or actually voted, there can be satisfaction that a majority of persons who voted in the ballot were eligible to vote and voted to approve the agreement, the invalidity of other votes because of ineligibility does not stand in the way of the Commission approving the agreement.
Consideration
Whether a valid majority of employees cast a valid vote to approve the 2014 Agreement; whether any other reasonable ground for believing the 2014 Agreement was not genuinely agreed to by employees
[41] The NTEU’s case in opposition to the approval of the agreement focussed on the cohort of persons who were requested to approve the agreement. The evidence led by the NTEU did not directly focus attention on the composition of the persons that constitute the employees who are said to have cast a valid vote in favour of the agreement. Some evidence was led that some persons who may not have been eligible to vote, voted in the ballot.
[42] The NTEU’s evidence is set out in its written submissions as follows:
“34. The approach taken by the University meant that persons such as Rory Hudson were offered a vote. Mr Hudson performed legal research as a casual staff member in July 2013, and, had not worked for the University before that time, or (up until the time of making of his statutory declaration on 4 July 2014), at any time after. Mr Hudson’s name appears on the casual voter list produced by the University. He could not be regarded as “employed”, or even “usually employed” at the time of the vote.
35. In the absence of the information as to work patterns of casual employees, which has been sought by the NTEU, it is impossible to say how many persons with a similar profile to that of Mr Hudson, appeared on the casual voter list, that is, persons who:
a. had done some work for the University in the relevant period;
b. were not doing any work at the time of the request to vote or ballot; and
c. had no basis for any expectation of any further work for the University
in the future.
36. The evidence advanced by the NTEU shows that a considerable portion of the casual workforce of the University in any given year does not continue in employment the following year.
37. As the evidence of Josh Cullinan, the NTEU’s Senior Industrial Officer with responsibility in relation to the University, shows, there was significant attrition amongst casual employees in the period between March 2011 and the ballot, for example:
i. Only 56.3% of those who appeared on the University’s list of casuals engaged at March 2013 were on the list twelve months before. Some 425 dropped off the list between those dates;
ii. Only about 55% of those on the September 2012 list appeared on the September 2013 list. Some 744 dropped off the list between those dates ;
iii. Only about 74.5% of those who appeared on the March 2013 list also appeared on the March 2014 list, with some 311 dropping of the list between those dates (Cullinan:42).
38. This significant change in the relevant cohort, in itself, gives rise to substantial doubts about the validity of the ballot.
39. The above level of attrition also appeared from the phone surveys undertaken by the NTEU. In the survey conducted in March 2014, of eighty- two respondents who were casual staff:
a. Seventy five (75) or 91% were offered a vote;
b. Fifty two (52) voted, of whom 30 indicated that they were not working from 26 to 28 February 2014, and 9 indicated that they had not received an offer of sessional work with the University in 2014. (Cullinan [53] – [55]).
40. Mr Cullinan also undertook an online survey of casual staff in March 2014 (Cullinan [57ff]). That survey, of one hundred and fifty respondents, revealed that over 70% of respondents had not worked for Swinburne since November 2013, or even earlier (Cullinan [60]). Of that group, 118 or nearly 90%, cast a vote in the ballot. If one accepts that survey as representative of the casual employee cohort at the University, that high level of participation in the ballot makes it likely that the outcome of the vote was affected by the votes of persons who do not fall within the scope of section 181(2). The high level of voting among this cohort would be readily explained by the financial inducement to vote.
41. The overall picture of a substantial degree or change in the casual workforce was reinforced by the evidence given by Mr Cullinan concerning the attempts to telephone and write to casual staff since the last hearing. Mr Cullinan’s evidence reveals:
a. That University records provide contact numbers for only 547 of the casual staff ([98]). The lack of such numbers provides no support for any inference that casual employees have an ongoing role in the University;
b. Over 400 of those persons were not contactable on the number provided (ibid);
c. Of the 59 employees who were spoken to, and who voted, some 22 were not currently doing paid work for the University of whom some 12 (or some 20%) had not done any work since some time in 2013, with 5 (about 8.5%) of that number not having done any work since the First Semester of 2013 ([99] – [100]).
42. It is difficult to conceive of any circumstance in which a person who had not worked with the University since some time in 2013 would be regarded as “employed” or “usually employed” in February 2014 on any of the relevant legal principles.
43. Mr Cullinan’s identification of the typologies of casual academic staff goes some way to explaining the level of turnover. Many of the casual staff performing sessional tutoring are undertaking their own study. Inevitably, those staff complete their study and return to their countries of origin, or take up permanent roles elsewhere. As an analysis of the numbers of permanent and casual staff show (casuals comprise some 1317 of a total workforce of 3158), there could be no expectation that casual staff move inexorably into ongoing roles within Swinburne.
44. Mr Cullinan’s evidence is supported by that of the sessional tutors who have provided statements in relation to the proceedings. Several of them concluded their employment with the University in 2013, and each of them was offered a vote in the ballot.
45. For example, Linda Rohrs told her unit co-ordinator, about a year before she finished, that she would not be working for Swinburne after the end of 2013. She worked for Swinburne in the Second Semester of 2013, and has not worked there subsequently, having moved to Queensland and obtained a position there.
46. Of the other tutors:
a. Amanda Kerley last worked in about November 2013, and told her supervisor she would not be available for any teaching in 2014 ([8]);
b. Dustin Halse last worked in about November 2013 and has not been offered further work;
c. Gregory Kennedy last worked for Swinburne in Semester 2, 2013, and is not working in 2014 ([6]);
d. Jason Searle last worked for Swinburne in November 2013, and advised his unit convenor that he would not be working for Swinburne again as he would be working full time for Telstra ([4]);
e. Luke Gahan has not been offered any further work by Swinburne, and has no expectation of future employment with Swinburne.
47. Mr Cullinan’s evidence is also supported by the evidence of the unit convenors. In their evidence, they identify employees who were engaged by Swinburne in the period of 12 months prior to the date of the ballot, but who were not employed at the time of the ballot, and would not be covered by the agreement. Those employees included:
a. Those who left to take up non-academic roles (see, for example De
Kruiff [9]; Romanella [8]; Bedggood [8(b)]; Jones [7(c];
b. Those who left to take up academic roles elsewhere, including permanent roles (Ballantyne [5]; Bedggood [8(a)]; Jones [7(a) & (d)])
c. Staff who leave for other reasons (Love [6(a) and (b)]);
d. Those who stopped teaching to concentrate on their studies (Schier [11(a)])
e. Overseas students who taught as sessional tutors whilst undertaking further study, and who returned home on the conclusion of that study (Moser [6(a)])
f. Staff who are not offered further work for various other reasons which may include poor performance, or perhaps even simply lack of demand
(see, for example Moser [6(a)]; Romanella [9]; Vargas [8(a) & (c)]; Jones [7(b)]).
48. Even for those employees who were engaged to perform tutoring work over the course of Semester 2, 2013 (and the proportion of those employees is not disclosed by the University), the question whether they were “employed” or “usually employed” at the time of the vote is one only likely to be answered when consideration is given to:
a. Whether they were performing work during the course of that week;
b. Whether they had an offer of further work in 2014 (as Mr Cullinan’s evidence makes clear, that might not have happened until early March
2014 – Cullinan:28);
c. The period over which they had already performed work on a casual basis for the University, and therefore might be said to have an established pattern of work which could be said to give rise to an expectation of further work;
d. The demand within the University for the units of study they were equipped to teach;
e. Their personal circumstances and intentions as at the time of the vote.
49. It may not be assumed that:
a. work performed on a casual basis in one year means that the person will perform work on a casual basis in the future; or that
b. every casual employee is in an identical relationship with the University and is at an identical point in their career.
50. On any view, there could be no reasonable basis for thinking that the fact of having performed some work, any work, for the University in the twelve months prior to 28 February 2014, meant that the person was employed at either of the possible points which may be the relevant time for the purpose of section 181(2). Some greater history and relation would need to be demonstrated.”24
[43] As is apparent from the above much of the evidence relied upon by the NTEU is evidence of “sessional employees” who were requested to approve the agreement, but who were, according to the NTEU, ineligible to vote. For the reasons given earlier this evidence, though relevant, does not provide a great deal of assistance. For example, many of the statements from various course convenors25 identify a number of individuals, who have worked for Swinburne in the past, but who have no intention of returning to work in the future or will not be offered work.26 This evidence does not establish that any of the persons identified voted in the ballot much less that they voted to approved the 2014 Agreement. It is to be observed that a number of persons identified in these statements made their intentions not to be employed as sessional employees only after the ballot to approve the 2014 Agreement had concluded. It cannot therefore be said that these employees were not in the class of persons who were eligible to be asked to vote to approve the 2014 Agreement.
[44] Moreover, some of the persons identified by the statements as being ineligible, in fact worked for Swinburne in Semester 2 of 2014.27 Critically, none of the persons identified in these statements is said to have voted in the ballot or voted to approve the agreement. Indeed, in our view it may safely be inferred that at least those persons identified as expressing no intention to return to Swinburne because they have taken roles elsewhere28, those that have left for other reasons29, and those who have moved overseas30 likely did not vote in the ballot.31 We accept Swinburne’s submissions that it was open to the NTEU to produce evidence from those specific individuals as to whether they did vote, and if so, whether they voted to approve the agreement and that the NTEU has not done so.
[45] We turn next to the other evidence adduced by the NTEU.
[46] First there is the telephone survey conducted in the period from 14 March to 21 March 2014. Mr Josh Cullinan, a Senior Industrial Officer of the NTEU gave evidence that nine people who had not (as at 21 March 2014) received an offer of sessional work in 2014 voted in the ballot.32 His evidence was also that 30 people had not been working during the period of the ballot.33 In our view, that some persons had not received an offer of sessional employment at that stage does not establish that those persons would not be engaged to perform sessional work at a later time. As the evidence of Peter Healy makes clear, of the four persons he identified as not being re-employed in Semester 1 of 2014, three were employed in Semester 2 of 2014 at Swinburne.34 Moreover evidence given by the convenors earlier identified, is to the effect that sessional staff are engaged for particular roles in particular subjects in particular semesters, a number of which are second semester only.35 This evidence also does not establish that the people were not eligible to vote. In any event there is no evidence that any of the nine people who voted, voted to approve the agreement. A further difficulty with the survey evidence is that the persons surveyed are not identified. That evidence cannot be tested and it would be unwise to infer that those nine people voted to approve the agreement.
[47] Secondly, there is the online survey conducted on 14 March 2014. Mr Cullinan's evidence is that of the 118 persons who voted, 10 were not currently employed by Swinburne at the time of the survey and more than 60 were not working during the period the ballot was conducted.36 This is not evidence that the 10 persons were not in the class of persons eligible to vote nor is it evidence that those persons would not be working for Swinburne at a later time. For reasons given earlier, that 60 were not working during the ballot, does not mean they were not eligible to vote in it. Further there is no evidence that any of the 70 voted to approve the 2014 Agreement.
[48] Thirdly, there is the evidence of the telephone survey conducted between 3 July 2014 and 5 July 2014. Mr Cullinan's evidence is that of the 59 people who voted, 22 were not currently doing paid work for Swinburne.37 For the reasons given earlier, that these 22 people were not doing paid work does not mean that they were not within the class of persons eligible to vote nor does it mean that such persons might not be employed at some later time. Self evidently, a survey conducted in July 2014 which asks about a person’s status as at July 2014 says little about whether the person was in the class of persons eligible to vote to approve the 2014 Agreement. Moreover there is no evidence that any of the 22 voted to approve the 2014 Agreement and for the reasons given earlier it would be unwise to infer that any did so.
[49] The NTEU also relied on the evidence of a number of persons described as former tutors at Swinburne.38 Of the seven former tutors six said that they voted39 and one did not say whether he had voted.40 None of the former tutors who voted said that they had voted to approve the 2014 Agreement.
[50] As to the statutory declaration of Rory Hudson declared on 4 July 2014, which suggests that his engagement by Swinburne in 2013 was a one-off research engagement, it says nothing about whether Mr Hudson voted in the ballot and if he voted to approve the 2014 Agreement.
[51] Mr Cullinan also gave evidence41 about a comparison that he undertook between the casual voter list42 provided by Swinburne with lists of sessional employees of Swinburne as at March 2013, September 2013 and March 2014.43 Overall Mr Cullinan concluded that 182 persons who were on the casual voter list were not on the March 2014 list.44 The probative value of this evidence is also limited. There is no evidence that any of these persons voted in the ballot much less that they voted to approve the agreement. Moreover the analysis is an insufficient evidentiary basis for concluding that these persons were not eligible to be requested by Swinburne to vote to approve the agreement. It is simply evidence that particular people were on one list but not others. It is an insufficient basis to impugn the result of the ballot.
[52] Swinburne submitted that arising from the statements and surveys relied on by the NTEU, it identified 66 named individuals who are said to be sessional employees. These individuals were identified in List A and List B of a letter from Swinburne to the ballot agent dated 5 September 2014.45 Swinburne did not challenge the NTEU evidence that 29 of these individuals (also identified in List B)46 have not attended work since some time before 26 February 2014, but it did not concede that the sessional employees in that group are not employed by Swinburne for the purposes of the request by Swinburne to participate in the vote. Dr Smith’s evidence was that of those 29 individuals, only 10 voted.47 There is no evidence that any of the 10 individuals voted to approve the agreement and for the reasons earlier given it would be unsafe to infer that these individuals did so. We also accept Swinburne’s submission that one cannot assume that there is no overlap between the various surveys conducted by the NTEU.
[53] Taken in its totality the NTEU’s evidence establishes that about 47 persons who may have been ineligible voted in the ballot.48 This number is apparent from the persons identified in Mr Cullinan’s statement of 20 August 2014 at [55], [64] and [99]-[100] and the six of the seven former tutors on whose statements the NTEU49 relies. This figure is then reduced by one as Mr Searle who was among the 6 former tutors who voted and also in the count of employees in [99]-[100] of the Cullinan statement.50 In our view and for the reasons given earlier there is no basis to infer that any of the 46 people who voted, voted to approve the agreement. The evidence suggests that some of those may have voted against approval.51
[54] We reject the NTEU submission that we should draw the adverse inferences from the absence of any evidence from Swinburne,52 and we accept Swinburne has not been able to secure any information as to actual voting intentions, because the information was not kept by the ballot agent.53
[55] It is apparent from the material that the 2014 Agreement was approved by a majority of employees who cast a valid vote in the ballot. The majority is 57. It is also apparent from the above that only 46 persons who voted have been identified as persons who might not have been eligible to vote. We have no evidence that any of these persons cast a vote to approve the 2014 Agreement. Even if they all voted to approve the 2014 Agreement, there would still be a majority. In any event, as none of the 46 people were identified as having voted to approve the 2014 Agreement, it might just as readily be inferred that some or all of those persons voted against approval with the result that their exclusion from the count of valid votes would increase the number of the majority. However it is not necessary for us to draw that inference as in our view, the totality of the evidence relied upon by the NTEU provides an insufficient basis to impugn the outcome of the ballot to approve the 2014 Agreement.
[56] Therefore on the basis of the material relied upon by Swinburne we are satisfied that a majority of employees eligible to vote, that will be covered by the 2014 Agreement and who cast a valid vote, voted to approve the 2014 Agreement. In the circumstances of this case, the case advanced by the NTEU discussed above does not provide a basis for concluding that there are any reasonable grounds for believing that the 2014 Agreement has not been genuinely agreed to by the employees.
Inducement to vote
[57] We do not accept that provision in the 2014 Agreement of clause 4A.2(b) amounted to an improper inducement to sessional employees to cast a vote in the ballot. Clause 4A.2 provides as follows:
“4A.2 Sessional employees
(a) Employees employed on a sessional basis will be entitled to a sign-on bonus of $250 (gross), subject to meeting the criteria set out in 4A.2 (b).
(b) Sessional employees will be entitled to the sign-on bonus if they were employed by the University at any time in the 12 months before the time to vote to approve this Agreement closed.”
[58] Contrary to the submissions of the NTEU, payment of the sign-on bonus to a sessional employee is conditional on a sessional employee working for the University after the 2014 Agreement is approved. Self evidently a person who was a sessional employee at any time during the 12 months before the time to vote to approve the 2014 Agreement will not become entitled to the sign-on bonus unless that person is also an employee “employed on a sessional basis” when the 2014 Agreement is in operation. So much is clear from clause 4A.2(a).
[59] A sign-on bonus is also available to all ongoing and fixed term employees in clause 4A.1.
[60] Viewed in this context the sign-on bonus is simply another benefit (as with wage increases) that are provided for in the 2014 Agreement and will become available to persons employed by Swinburne after the 2014 Agreement commences operation subject to the qualifications therein. There is nothing in the nature of the sign-on bonus or in the criteria attaching to the sign-on bonus which in our view is inconsistent with the objects of the Act or which will in any way have been prejudicial to a fair vote. Consequently clause 4A.2 of the 2014 Agreement does not provide a basis for concluding that the 2014 Agreement has not been genuinely agreed to by employees covered by it.
Conclusion
[61] It is likely the case that some persons who were “sessional employees” were requested by Swinburne to vote on whether to approve the 2014 Agreement but were not eligible to vote because they did not fall within the class of persons described in s. 181(1) of the Act.
[62] For the reasons given earlier, given the nature of the industry in which Swinburne operates, the nature of its enterprise and the use to which it puts sessional employees in the conduct of courses offered by Swinburne it was both reasonable and appropriate for Swinburne to request persons who were engaged by it as sessional employees during the 2013 academic year and who are likely to be engaged as sessional employees in the 2014 academic year to vote on the 2014 Agreement. This was because such employees were in our view properly described as usually employed by Swinburne and properly described as persons who will be covered by the agreement. It is also clear that in respect of some of the persons to whom a vote was offered, those persons were not or may not have been eligible to vote and this would have been apparent to Swinburne if diligent record-keeping and reporting practices had been employed.
[63] In the context of the present application however, this failing is not fatal as for the reasons we have given, there is simply no evidence which goes to establishing that any of the persons identified by the NTEU as not being eligible to vote, actually voted to approve the 2014 Agreement. Consequently there is no probative evidence which would impugn the validity of the 57 vote majority to approve the 2014 Agreement. For the reasons earlier given, clause 4A.2 of the 2014 Agreement does not result in a different conclusion or otherwise result in an absence of genuine agreement. We are therefore satisfied on the material before us that the 2014 Agreement was made on 28 February 2014 when a majority of employees who cast a valid vote approved it. We are also satisfied that the 2014 Agreement has been genuinely agreed to by the employees covered by the 2014 Agreement. Further, for the reasons already given and based on our analysis of the evidence we are satisfied that there are no other reasonable grounds for believing that the 2014 Agreement has not been genuinely agreed to by employees.
[64] Based on the material relied upon by Swinburne, most of which was not contested, we are satisfied that each of the requirements of ss. 186, 187 and 188 as are relevant to this application for approval have been met.
[65] The NTEU being a bargaining representative for the 2014 Agreement has given notice under s. 183 of the Act that it wants the agreement to cover it. In accordance with s. 201(2) we note that the 2014 Agreement covers the organisation.
[66] The 2014 Agreement was approved on 16 December 2014 and, in accordance with s. 54, will operate from 23 December 2014. The nominal expiry date of the 2014 Agreement is 30 June 2017.
VICE PRESIDENT
Appearances:
N. Green QC and P. O’Grady for Swinburne University of Technology
H. Borenstein QC and L. Daust for the National Tertiary Education Industry Union
Hearing details:
2014.
Melbourne:
13 October
1 Employer’s statutory declaration in support of application for approval of an enterprise agreement – Q2 .3
2 Ibid and also Q2 .8
3 Ibid - Q2 .4
4 Ibid
5 Ibid - Q2 .5
6 Ibid - Q2.8
7 Ibid - Q2 .10
8 Ibid
9 Transcript PN183
10 Transcript PN 70 – PN117
11 s. 15AA, Acts Interpretation Act 1901 as in force on 25 June 2009 (see s. 40A of the Act)
12 s. 3(f) of the Act
13 Clause 3, 2009 Agreement
14 2001 AIRC PR910912 (8 November 2001, Hampton DP) at [38]–[42]
15 See WR Acts. 170LK and (from 27 March 2006) s. 327
16 s. 51
17 ss. 52 and 53(1)
18 s. 52(2)
19 See CFMEU v Hamberger and Another (2011) 195 FCR 74 at 88-89 per Katzmann J
20 See s. 170
21 See s. 13
22 (2003) 126 IR 165
23 Ibid at 179-180
24 NTEU’s Submissions in opposition to Approval of Agreement at [34] to [50]
25 Alison de Kruiff, Glenda Ballantyne, Gordan Evans Campbell, Graham Farrell, Irene Moser, Mark Schier, Mirella Romanella, Nelson Vargas, Paul Healy, Peter Love, Rob Tipping, Robert Jones, Rowan Bedggood
26 See de Kruiff at [9], Ballantyne at [5], Campbell at [7], Farrell at[7], Moser at [6], Schier at [11], Romanella at[8] and [9], Vargas at [8], Healy at[9], Love at[6] Tipping at [7], Jones at[7] and Bedggood at [8]
27 See Healy at [9]
28 See de Kruiff at [9], Romanella at [8], Bedggood at [8a] and [8b], Jones at [7a], [7b] and [7c]; Balantyne at [5], Love at[6a]
29 Love at [6b]
30 Moser at [6a], Love at [6b]
31 See for example de Kruiff [9], Campbell [7a.], Schier [11 a and b] and Jones [7c]
32 Cullinan Statement (20 August 2014) at [55]
33 Ibid
34 Healy at [9]
35 See for example de Kruiff at [7]; Ballantyne at [4b]; Campbell at[6]; Moser at [5]; Romanella at[6]; Vargas at [6]; Healy at [8]-[9]; Love at [6]; Tipping [6]; Jones [6]; Bedggood [6]
36 Cullinan Statement (20 August 2014) at [64]
37 Cullinan statement (20 August 2014) at [99] -[100]
38 Amanda Kerley, Dustin Halse, Gregory Kennedy, James Searle, Linda Rohrs, Luke Gahan, Steve Price
39 Kerley at [11], Halse at [7], Kennedy at [7], Searle at [6], Rohrs at [6] and Price at [8]
40 Gahan at [6]
41 Second Cullinan statement (24 September 2014)
42 See Cullinan statement (20 August 2014) at JJC-3
43 See Second Cullinan statement (24 September 2014) at JJC-8, JJC-9 and JJC-10
44 Ibid at [9]
45 Dr Smith statement AJS-1
46 See Dr Smith statement, attachment "AJS-1”
47 Dr Smith statement, attachment "AJS-2"
48 The Cullinan Statement at [55] (9 people), [64] (10 people) and [99] (22 people who are not currently doing any paid work) identifies 41 individuals. 7 former tutors have submitted statements, but Mr Searle submitted a statement and is also identified in the schedule at JJC-7
49 Amanda Kerley, Dustin Halse, Gregory Kennedy, Linda Rohrs, Luke Gahan, Steve Price
50 See Cullinan statement at [97] and JJC-7
51 Annexure JJC-7 shows that at least three employees voted, or would have voted, "no” because of the $250 sign on bonus:
(i) Todd Andersen Kunert;
(ii) James Searle; and
(iii) Dorothy Wheller
52 NTEU Submission [14], [55], [63]
53 Dr Smith statement, attachment "AJS-2"
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