TasTAFE

[2024] FWCA 464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

TasTAFE

(AG2023/5039)

TASTAFE GENERAL EMPLOYEES ENTERPRISE AGREEMENT 2023

Educational services
DEPUTY PRESIDENT BELL	MELBOURNE, 4 MARCH 2024

Application for approval of the TasTAFE General Employees Enterprise Agreement 2023 – objections that enterprise agreement not genuinely agreed – whether persons not covered who voted – whether necessary to explain effect of agreement by reference to the modern award - whether misrepresentations made by the employer – undertakings – s.218A variation to correct obvious error, defect or irregularity – application approved with undertakings.

An application has been made for approval of an enterprise agreement known as the TasTAFE General Employees Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act) by TasTAFE (TasTAFE/employer). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s 173(2) was 20 March 2023 and the Agreement was made on 24 November 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023.[1]

During the application approval process, ‘Form F18’ declarations were respectively filed by the Australian Education Union (AEU), (CPSU), the Community & Public Sector Union and the United Workers’ Union (UWU) indicating opposition to the approval of the Agreement. Each of those three unions were bargaining representatives of employees and are entitled to be covered by the Agreement.

I describe the objections below. Having regard to the nature and scope of the objections, I issued directions for the exchange of evidence and submissions, and further exchange of reply material, and listed the matter for a hearing (initially for 17 January 2024 but, following a joint request from the parties, on 23 January 2024).

Each of TasTAFE and the AEU filed evidence and submissions. While the CPSU and UWU did not file material, they indicated their support of the AEU’s position. TasTAFE filed two statements of Mr Vivek Foot (Senior Industrial Relations Specialist for TasTAFE). Mr Foot was cross-examined. The AEU filed statements for Mr Paul Nilssen (a TasTAFE employee and member of the AEU), Ms Emma Gill (Lead Organiser for the AEU, Tasmania), and Ms Lynne Dacey (an employee of TasTAFE and member of the AEU). The AEU witnesses were not required for cross-examination.

The objections

The objections raised by the AEU fell into two broad categories, being whether there was ‘genuine agreement’ for the purposes of ss 186(2) and 188 of the Act and what were described as various ‘NES/BOOT’ issues.[2]

As to the genuine agreement issues, they are summarised as follows (with all reference to legislation for this purpose being as it stood prior to 6 June 2023):

· First, the employer did not provide employees seven clear days of the time and place of voting nor provide a copy of the Agreement by the same time.[3] That information and the Agreement were provided on 13 November 2023 for a voting period commencing on 20 November 2023.

· Second, the AEU submits that approximately 69 employees voted who were not entitled to vote. [4] It was uncontroversial that 335 employees voted, with 197 of whom voting in favour of the proposed Agreement and 138 voting against. If all of the impugned cohort of 69 employees voted in favour of the proposed Agreement – which would bring the votes in favour down to 133 - the AEU submits I cannot be satisfied the Agreement was genuinely agreed.

· Third, the employer did not provide employees with information about the terms of the Educational Services (Post-Secondary Education) Award 2020 (Award) and how the proposed Agreement differed from the Award. [5] This submission was advanced in circumstances where, for the first time, TasTAFE would be covered by an enterprise agreement made under the Act. By Tasmanian legislative amendments, TasTAFE exited the Tasmanian public sector and became subject to the Federal industrial relations regime on 1 July 2022. Up until July 2022, TasTAFE’s relevant industrial instruments were made under Tasmanian industrial law. At the time of the vote for the Agreement, those instruments continued to apply to employees as “copied State instruments” within the meaning of s768AH of the Act. The AEU’s submission contended, in substance, that where employees had no experience or familiarity with the Federal Award, it was incumbent upon TasTAFE to provide such information.

· Fourth, while overlapping with the ground above, the AEU contends TasTAFE impermissibly failed to compare the proposed Agreement to the Tasmanian State Service Award 2021 (Tas) (TSSA) or the Public Sector Union Wages Agreement 2019 (Tas) (PSUWA).[6] The TSSA and PSUWA were the “copied State instruments” referred to in the previous paragraph.

· Fifth, the AEU submits that the employer made a number of misleading statements to employees, such that the vote for the Agreement was not genuinely agreed within the meaning of s 188 of the Act. There are three categories of alleged misleading statements, being:

ostatements concerning a unilateral capacity of an affected person to have their dispute resolved by the Commission by arbitration (as opposed to an arbitration requiring consent of both parties).
ostatements concerning any “cap” on personal leave accruals;
ostatements concerning evening meal allowances.

Finally, the AEU seeks amendments of the Agreement pursuant to s 218A of the Act, which allows amendments to correct an obvious error, defect or deficiency. Alternatively, the AEU submits that matter can be resolved by undertaking.

Additionally, the AEU initially contended that the consultation clause in the Agreement did not meet the requirements of s 205 of the Act, although that objection was ultimately not pressed.

NES/BOOT issues

As to the NES/BOOT issues, three discrete matters were raised, each pertaining to a term of the Agreement that was said to contravene a provision of the National Employment Standards (NES). Three specific issues were raised:

·   First, cl 3.6 of the Agreement was said to permit TasTAFE to “require” employees to work on public holidays, in contrast to s 114 of the Act which only permits an employer to “request” employees to work on public holidays.
·   Second, cl 5.1.2 of the Agreement dealt with re-crediting annual leave in circumstances where an employee on annual leave otherwise became entitled to another form of leave under the NES, such as leave due to illness.
·   Third, cl 8.3 of the Agreement – which dealt with abandonment of employment – was said to do away with the requirement under s 117 of the Act to give notice.

The AEU stated that these issues could be resolved by undertakings.

The Agreement contains a ‘NES precedence’ clause at cl 1.3, which provides for the NES to prevail in the event of inconsistency between the NES and the Agreement in circumstances where the NES provides more favourable terms.

The employer proffered an undertaking for the “abandonment” issue and otherwise submitted, correctly in my view, that the NES precedence clause in the Agreement was sufficient to address the other matters.

In correspondence from chambers, I raised one discrete BOOT issue regarding casual overtime rates. As to the BOOT issue regarding casual overtime rates, the employer provided an undertaking that satisfied my concern about that matter. No bargaining representative took a different position. I am otherwise satisfied that the NES issues were addressed.

Other than the above matter raised above dealing with casuals, no other BOOT issues were raised, and I am satisfied the Agreement passes the BOOT.

Genuine agreement issues

Issue 1 – notification of voting and provision of Agreement

It was uncontroversial that the access period for the purpose of s 180(4) was 13 – 19 November 2023 inclusive, with voting occurring across 20 – 24 November 2023 inclusive.

It is also uncontroversial that notification for the time and place of voting, and giving a copy of the proposed Agreement, first occurred by email at 9.10am on 13 November 2023. Given that the first day of voting was specified to be 20 November 2023, the information about voting and the copy of the proposed Agreement ought to have been provided by, at the latest, 11.59pm on 12 November 2023 if seven clear days were to be provided.

TasTAFE ought to have undertaken the above steps to comply with s 180(2) – (4) of the Act but did not do so. Nonetheless, I am satisfied that these deficiencies are minor procedural or technical errors. Further, I am satisfied that employees covered by the Agreement were not likely to have been disadvantaged by the errors given the short delay and, in accordance with s 188(2), I am satisfied that the Agreement would have otherwise been genuinely agreed to but for those errors.

Issue 2 – coverage and voting cohort

The AEU’s position was that there were approximately 69 employees who were not eligible to vote at all but who were otherwise on the voting roll. The impugned employees were in the following categories, which were identified by AEU witnesses based upon an analysis of employees listed in a Tasmanian ‘Government Directory’ database:

a.human resources and industrial/employee relations consultants/officers;
b.business/data analysts;
c.business systems officers;
d.operations managers;
e.marketing staff; and
f.general/senior managerial positions.

By comparison, the AEU contends that the coverage clause for the Agreement does not extend to staff meeting the above descriptions, which the AEU describes as “professional” roles.

Coverage under the Agreement is specified by clause 1.1, which is as follows (emphasis added):

“1.1 Agreement coverage
This Agreement covers:

a) all TasTAFE employees who are engaged to perform clerical, administrative, technical, librarian, tutor and instructor roles;
b) TasTAFE (ABN 54 248 304 374);
c) Community and Public Sector Union (SPSFT);
d) United Workers Union; and
e) Australian Education Union.

The agreement does not cover:

a) employees covered by any other enterprise agreement approved by the Fair Work Commission that applies to TasTAFE employees;
b) TasTAFE Executive employees;
c) General Manager(s);
d) Head(s) of Centre;
e) Senior Manager(s).”

This issue was the subject of detailed written submissions and, from the employer, extensive oral submissions as well. I do not propose to summarise those matters here but I have attempted to distil them to the following propositions, which I consider are reflected by the evidence:

·   First, prior to bargaining commencing, an email was sent to all staff[7] foreshadowing bargaining that referred to “two Enterprise Agreement working groups” – one for “teaching staff” and another for “general staff”.
·   Second, a Notice of Representational Rights (NERR) was issued on 24 March 2023 which was expressed to “cover employees that perform tutor and instructor, clerical, administrative, technical, professional (librarian), maintenance and cleaning work at TasTAFE”. Clearly this was not the NERR for “teaching staff”. The NERR was in similar, but not identical, form to the underlined part of cl 1.1, above, save that instead of “librarian”, the NERR referred to “professional (librarian)” and the NERR referred to “maintenance and cleaning work”. The NERR did not contain exclusions for the various senior employees listed in the exclusion to 1.1.
·   Third, an “FAQ” document[8] issued at around the same time as the NERR stated “There will be two enterprise agreements: one for teaching employees and another for general employees”.
·   Fourth, in a general update to staff on 10 August 2023 about the “General Employees” enterprise agreement, the carve out for maintenance and cleaning work – described as Education Facility Attendants or EFAs – was noted. In short, where there were previously two bargaining streams, there were now three: teaching, general staff and, from that point, EFAs as the third.
·   Fifth, in October 2023, when a draft of the proposed Agreement was circulated at bargaining meetings, the specific carve out for very senior managers was included.
·   Sixth, there was no evidence drawn to my attention to the effect that, during the course of bargaining, there was a cohort of staff such as HR, analysts, marketing staff and the like for whom bargaining was not taking place.

TasTAFE submits that all of the impugned employees are covered by the “administrative” classification in cl 1.1 of the Agreement. The unions dispute this and contend they are professional roles, with such people ineligible to vote.

While the Agreement coverage clause could have perhaps been better expressed, the contextual matters for bargaining in, firstly, two streams (i.e. teaching staff for one and general staff for the other) and then for a third (i.e. EFAs for maintenance and cleaning) provides strong support for a broad application of the “administrative” classification.

Further, cl 2.3.2, titled “Classification descriptors”, contemplates a broad application of the classifications. Subclause 2.3.2.1 provides:

“2.3.2. Classification descriptors

2.3.2.1. Purpose

The purpose of classification descriptors is to categorise the wide range of occupations and different types of work across TasTAFE into distinct work value levels, to which salaries are aligned.

The classification standards are broad and describe the core features of work at each Level from seven perspectives called job components. The classification descriptors determine the appropriate classification for the duties assigned to employees.”

The actual classification descriptors are contained in Schedule 3 of the Agreement, ranging from Level 1 (at the most junior) to Level 7 (at the most senior). Each classification contains a narrative-based approached to classification, rather than specific duties or tasks, at least certainly for the higher levels. They describe (under headings) matters such as “Focus”, “Content and framework”, “Expertise”, “Interpersonal Skills”, “Judgement”, “Influence of outcomes”, and “Responsibility for outcomes” at all levels.

For example, the “Focus” requirements of a Level 4 employee are:

“Work within a defined field requiring the evaluation/coordination and/or integration of diverse and varied operational procedures and practices. The work requires detailed planning, organising, directing, controlling and coordinating of resources and related activities. The work requires in-depth research, analysis, investigation and evaluation to develop and implement complex practices, systems and processes to meet difficult operational and service delivery requirements. Specialised work in a particular discipline to provide authoritative advice and expertise to support a range of complex activities.”

For the “Context and framework” section of a Level 7 employee, the descriptor includes:

“The function or program activities have a direct and significant effect on organisational outcomes and the achievement of corporate objectives. Considerable operational autonomy with operational direction according to government policy and broad corporate objectives. A complex specialised environment which requires the development, implementation and modification of program-specific strategy, policy, principles, systems and processes that reflect corporate strategy, policy, regulatory or technological developments. … ”

While I consider that contextual material is sufficient to support the employer’s contention about the impugned employees, any doubt is removed when historical resource to the TSSA and PSUWA is considered. Historically, all TasTAFE employees other than executives were covered by one of three sets of State industrial instrument, namely:

·   Teachers were covered by the TasTAFE Teaching Staff Industrial Instrument 2021 and the TasTAFE Teaching Staff Award;
·   EFAs were covered by the Facility Attendants (Tasmanian State Service) Award and other correlative agreements; and
·   all other employees were covered by the TSSA and PSUWA.

The TSSA[9] itself contained two streams: a “General Stream” and a “Professional Stream” (see, for example, Part II cl.3 “Salaries” of the TSSA). The genesis of those two streams arose from the “translation” from four earlier Tasmanian awards, being the Professional Employees Award, the Administrative and Clerical Employees Award, the Operational Employees Award and the Technical Employees Award (see “Appendix 1 – Translation Arrangements” of the TSSA)[10].

For the Administrative and Clerical Employees Award[11] (which were translated to the TSSA), the definitions for Level 6 and Level 7 classification standards (by way of example only) respectively referred to “human and material resources” and “human resource management or accounting”. The Level 8 standard contemplated the “exercise of technical or professional skill and judgement”. Contrary to the AEU’s contention, the Agreement can and does cover human resources employees. While I have not exhaustively set out each category in dispute, I am satisfied that each of those employees are also covered by the Agreement for similar reasons.

In summary, I am satisfied that there were no voting irregularities of the kind or magnitude referred to by the AEU. While the employer acknowledged that four senior executive employees who were not covered by the Agreement – being “Heads of Centres” - who should not have voted in fact voted, in the context of the vote outcome I consider that a minor technical error for which dispensation is granted under s 188(2).

Of the 418 employees eligible to vote, 335 were declared to cast an eligible vote. 197 voted to approve and 138 opposed. Even if the 4 ineligible voters were assumed to have all voted in favour, the vote was comfortably passed in the affirmative.

Issues 3 & 4 – provision of information and the Award

It is convenient to deal with issues 3 & 4 together, as they both concern the contention that the effect of the Agreement was not properly explained to employees.

As a preliminary introduction to issues 3 and 4, it is necessary to outline some of the features of the industrial instruments applying to employees prior to the proposed coverage of the employees by the Agreement.

As submitted (uncontroversially) by the AEU, prior to 1 July 2022, the immediate predecessor of TasTAFE was as a public sector employer within the Tasmanian public service. During this period, employees of the former TasTAFE were employed under the State Service Act 2000 (Tas), with relevant employees being covered by the TSSA and the PSUWA.

Aspects of the TSSA have been set out above. It is not necessary to summarise them in detail but it suffices to note that, other than for wages, the TSSA addressed a wide range of terms and conditions of employment for employees covered by that instrument. For example, it addressed classifications, it established various allowances (including meal and travel), workplace flexibility arrangements, hours of work (including overtime), provisions for weekend and shift work, various types of leave and other matters.

The PSUWA was primarily focussed upon setting wage or salary rates (although not exclusively – eg a personal leave accumulation scheme). Schedule 1 of the PSUWA specified salaries for employees covered by the TSSA and did so by reference to the classification codes used in the TSSA. The PSUWA was expressed to apply with effect from 1 July 2019 to 30 June 2022. It was also expressed to prevail over the TSSA to the extent of any inconsistency.

Effective from 1 July 2022, TasTAFE was established as a body corporate in its current form by the TasTAFE (Skills and Training Business) Act 2021 (Tas), which relevantly took effect on 1 July 2022. By that Act, the employer continued as TasTAFE in its current form.

Aspects of these arrangements were the subject of a decision of Commissioner Lee in Application by Australian Education Union (284V) [2023] FWC 391, which again are matters I consider to be uncontroversial.

Saliently, upon TasTAFE becoming a national system employer on 1 July 2022, a number of Tasmanian state industrial instruments applied as “copied State instruments” to employees by force of the Act.[12] The TSSA and PSUWA were, relevantly to the present application, two (of the seven) “copied State instruments” that applied to employees at that time by reason of the Act. [13]

For new employees taking up employment with TasTAFE after 1 July 2022, no copied State instrument automatically applied to their employment. The industrial instruments that would instead apply to new employees were those established by Commonwealth law and made by the Commission, which were accepted to be the Miscellaneous Award 2020 and the Educational Services (Post-Secondary Education) Award 2020. [14]

The view of the UWU was that such an order was appropriate to avoid non-transferring employees being covered by what they described as the inferior terms and conditions of the Miscellaneous Award 2020. To similar effect, the AEU sought such an order for reasons including to ensure equity across staff and to avoid different and “worse off” conditions for non-transferring employees. It was for these reasons that the AEU and the UWU applied to the Commission for an order that the copied State instruments also apply to new employees. The applications were opposed by TasTAFE.[15] The unions’ application prevailed.

Orders in the form sought by the AEU and UWU were made by Commissioner Lee, such that since 13 July 2023, the TSSA and PSUWA also applied to any new employee of TasTAFE engaged on or after 1 July 2022.[16]

Returning to the application before me, in the AEU’s written submissions, after making an observation that “substantial” changes from an existing enterprise agreement were required to be explained, the AEU put the issue as follows (footnotes omitted):

“30. The same can be said for several aspects of the Proposed Agreement. The circumstances required TasTAFE to compare the terms of the TSSA and PSUWA to the Proposed Agreement and provide employees with information about the terms of the Award and how they compared to the Proposed Agreement. This was a reasonable step for TasTAFE to have taken when considering its employees limited knowledge of the Award, its resources and access to human resources and industrial relations expertise. TasTAFE did not explain to relevant employees how the Proposed Agreement differed from the Award or the PSUWA. This failure meant that relevant employees did not understand how the terms of their employment would change in relation to the Award and PSUWA if they voted in favour of the Proposed Agreement. This was not a minor procedural or technical error but is a matter of signiﬁcance given the material differences between the TSSA, Award and Proposed Agreement. The application should be dismissed on this basis.”[17]

At paragraph [31] of the AEU’s written outline, it identified the following matters it said “were not identified nor explained to relevant employees as either less beneficial to or omitted from the Award. For example:

(a) clause 10.4 of the Award provides for a minimum two-hour engagement for part-time employees, compared to there being no minimum engagement for part-time employees in the Proposed Agreement;
(b) clause 23.8 of the Award provides that any direction by an employer to take annual leave, in circumstances where there is an excessive annual leave accrual, must not result in the employee having less than six weeks annual leave accrued, compared to clause 5.1 of the Proposed Agreement which does not require an employee to maintain a minimum annual leave accrual of six weeks;
(c) clause 32.1(b) of the Award only requires an employee with less than one year of service to give one week’s notice of termination, compared to the two weeks required by the Proposed Agreement;
(d) clause 33.1 of the Award provides employees over the age of 45 with more than five years of service to four weeks of notice and an additional week of notice when they are redeployed to a role with a lower rate of pay, compared to the flat four weeks of notice in the Proposed Agreement;
(e) the Proposed Agreement omits the entitlement to paid rest breaks provided at clause 15.3 of the Award;
(f) the Proposed Agreement omits the entitlement to clothing, footwear and laundry allowances at clause 18.3 of the Award;
(g) the Proposed Agreement omits the entitlement to having travel time between places of work paid as time worked and all travel fares reimbursed by the employer at clause 18.3(e) of the Award;
(h) the Proposed Agreement omits the entitlement to a vehicle allowance at clause 18.3(g) of the Award;
(i) the Proposed Agreement omits the entitlement to minimum overtime payments at clause 20.1(e) of the Award; and
(j) the Proposed Agreement omits the entitlement to annual leave loading at clause 23.3 of the Award.”

In the AEU’s reply submissions, it stated that:

“7. It was reasonable for TasTAFE to provide a comparison between the terms of the Proposed Agreement and the Award because:
(a) the relevant employees do not have knowledge of, or experience with, the terms and conditions in the Award, a modern award that has never applied to the relevant employees;

(b) the relevant employees do not have knowledge of, or experience of their legal
entitlements as national system employees;
(c) the relevant employees do not have knowledge of, or experience in being covered by an enterprise agreement that is underpinned by the Award.

8. Absent a comparison between the Proposed Agreement and the Award, relevant employees cannot know the effect of the terms of the Proposed Agreement and whether the BOOT test could be satisfied.”

In part, the resolution of issues 3 & 4 concern the adequacy of an “Explainer”[18] document provided by TasTAFE to employees. The “Explainer” is a document titled “Explainer – What’s in the proposed Enterprise Agreement?” Excluding a cover page, the Explainer was 14 pages long and was comprised of a table with five columns, which were structured as follows:

·   Column 1 was titled “Current (TSSA) Provision” and contained a description of the relevant TSSA clause title.
·   Column 2 was titled “Where can I find it?”, which provided a specific reference by clause number and page in the TSSA.
·   Column 3 was titled “Proposed (EA) Provision” and contained the title of the equivalent clause in the Agreement.
·   Column 4 was titled “Where can I find it?”, which provided a specific reference by clause number and page in the Agreement.
·   Column 5 was titled “Explanation”, where brief narrative text about the changes in question was given.

As the AEU Reply Submissions correctly note[19], the Explainer was first circulated to employees on 13 November 2023, being the first day of the access period.

The Explainer was made available to employees in the email sent at 9.10am on 13 November 2023, through the inclusion of a weblink to TasTAFE’s enterprise bargaining page. The email prominently drew attention to the link and that it contained access to “the full proposed EA, incorporated material, fact sheets/explainers”.

In addition to the Explainer, TasTAFE provided further explanatory information on specific topics. That included:

· A document called the “Triennium Sick Leave Explainer”. The Triennium scheme was a specific scheme that was being “retired” and replaced with an “accumulation” scheme. The Sick Leave Explainer was directed at that issue.
· A document called “Revised proposed salary scale for general employees”. As would be expected from the title of that document, it set out the detail of classifications (including some changes) and what the new pay scales would be.

As stated above, the AEU submits that “TasTAFE did not explain to relevant employees how the Proposed Agreement differed from the Award or the PSUWA”.[20] There is no dispute that TasTAFE did not prepare a comparison document that specifically sought to explain how the Agreement differed from the Award or the PSUWA, nor the effect of the Agreement by express reference to either of those industrial instruments.

In Mr Foot’s evidence, he also describes five “face-to-face drop in sessions” across the different campuses, which were held between 13 - 16 November 2023. Those meetings were for general staff, who were able to attend on paid time. Mr Foot says that hard copies of the proposed Agreement and copies of the explanatory material were available at those meetings and that he (and another employee for the employer) explained the nature of the voting process and answered questions.

The employer’s position on this matter is encapsulated from the following submission:

“It has been held by the Fair Work Commission on multiple occasions that, where a proposed enterprise agreement is replacing an existing enterprise agreement, an employer will satisfy the obligation in section 180(5) of the FW Act where the explanation provided to employees refers to the existing enterprise agreement and not the modern award that is the reference instrument.”[21]

That proposition was made by reference to a number of decisions of the Commission.[22] It is unnecessary to recount each of the details of each of those authorities and whether they stand for the absolute proposition stated. For example, in Australian Nursing and Midwifery Federation v Uniting Church in Australia Property Trust (Q.); Australian Workers' Union, The; United Workers' Union[2020] FWCFB 848, that Full Bench noted (my emphasis):

“[84] Of course, the fact that the 2013 Agreement covered and applied to the employees at the time the Agreement was made, does not necessarily mean that an explanation involving a comparison between the Agreement and the relevant modern awards was unnecessary. However, as Wesley Mission points out, not only did the relevant modern awards not apply to the relevant employees, but reference to the relevant awards in the Agreement is minimal and the particular circumstances are that:
a)the classifications that apply under the Agreement are entirely self-contained;
b)clause 3.3.1 expressly provides that the Agreement operates to the exclusion of the otherwise relevant award;
c)clauses 6.5.4 and 6.5.5 refer to awards, but only in the context of the allowances provided under those clauses being paid in lieu of all other award entitlements; and
d)clause 11.5.2 merely reinforces s.206 of the Act, to the effect that the base rate of pay under the Agreement must not fall under the relevant modern award.
e)Clause 3.2(u) defines: “Trainee shall mean any person employed and remunerated in accordance with the National Training Wage rates as defined in the Aged Care Award 2010.””

In the circumstances of the matter before me I am satisfied that it was not necessary for the employer to provide an explanation by reference to the Award. The Award did not apply to the employment of any employee and, so far as any generalised comparison for that Award was to have been made, I consider it would have been actively confusing for employees in circumstances where a more appropriate explanation was, at the same time, being given by reference to the TSSA. It is also not lost on me that the AEU’s application in 2022 for the copied state awards to apply to non-transferring employees was, at least in part, to avoid (from the AEU’s perspective) “worse off” conditions under the Award. While that submission was made in a different context, it does not lend support to the proposition that it was necessary for a proposed comparison to have been made between the Agreement and the Award in circumstances where the Agreement was replacing the TSSA and PSUWA.

The fact that employees were being asked, for the first time, to approve an enterprise agreement under the Act does not alter the outcome, in my view. It can be accepted that “relevant employees do not have knowledge of, or experience with” modern awards. However, the same can be said of many employees. Even employees who have been employed by a national system employer for many years might have little or no knowledge or experience with modern awards, for the simple reason that their employment has been subject to consecutive ‘roll over’ agreements.

The position regarding the PSUWA is somewhat different. As to the PSUWA, the AEU is correct with its submission that there was no reference in the explanatory material to the PSUWA. It is also the case that, unlike the Award, the PSUWA was an industrial instrument that applied to employees and would continue to apply if the employer’s application for approval of the Agreement was refused.

Arguably the most significant element of the PSUWA was wages. However, as Mr Foot’s evidence discloses, by the time of the vote, the wage levels required by the PSUWA had been surpassed. Moreover, I am satisfied that the explanations that were provided about salaries (including the “Explainers” set out above) were sufficient.

While the PSUWA’s continuing role for wage rates had been surpassed, the PSUWA continued to provide relevant terms of employment for some employees concerning personal leave accumulation, novated leases and dispute resolution. The specific explanations given to employees in the various “Explainer” documents addressed those topics. There was considerable detail concerning wages, as was there for the Sick Leave Explainers. There was no change to the position for novated leases and the explanatory material noted that.

The position for dispute resolution is, I accept, different and the AEU’s contentions for that matter are more soundly based. I have separately noted that the employer has provided an undertaking to ensure that arbitrations before the Commission can be pursued unilaterally, and not requiring consent. I consider that undertaking addresses any residual concern about that facet of the PSUWA.

The AEU did not otherwise refer to any term of the PSUWA that it considers was substantial or material and that ought to have been, but was not, explained to employees. For avoidance of doubt, the AEU’s submissions regarding misleading conduct about personal leave accumulation overlaps to a degree with this issue, which is the matter I address in the next section.

Notwithstanding there being any express reference to the PSUWA in the employer’s explanatory material, I do not consider that this renders the subsequent Agreement approval by the ballot of employees as one not genuinely agreed. The PSUWA was an instrument with confined subject matter and explanations about the effect of the Agreement were provided in relation to those matters.

Issue 5 – whether misleading conduct

The final issue concerns alleged misleading conduct that is said to preclude the Agreement being “genuinely agreed”. As summarised earlier, there are three discrete categories of alleged conduct, which concern statements about a “cap” on personal leave accruals, statements concerning dispute resolution, and statements concerning meal allowances.

The dispute resolution term

Dealing with the dispute resolution term first, the AEU’s position was that the dispute term in the Agreement precluded arbitrations before the Commission unless made by consent. The material filed by TasTAFE took a different view.

TasTAFE’s position was that “the [dispute] clause duplicates clause 31 of the Education Award almost word for word.” TasTAFE’s position was that such a clause permitted a party to unilaterally proceed to an arbitration to resolve a dispute. I do not consider TasTAFE’s interpretation of the dispute clause in the Award to be correct. This was an important issue and the AEU’s position on it was correct. Consistent with the AEU’s understanding of the operation of that clause, I understand that such a clause – presumably to avoid infringing on the judicial power of the Commonwealth – does not purport to compel a party to participate in an arbitration. The position for enterprise agreements has been treated differently, for the reason that enterprise agreements have been voluntarily entered into (at least by the employer).

Following discussion with the parties about this matter at the hearing, TasTAFE subsequently proffered an undertaking to make clear that arbitrations under the Agreement will not require the consent of both parties. I am satisfied with that undertaking and consider it resolves any concern about that matter.

Personal leave accruals

As to the statements regarding “caps” on personal leave accruals, that issue occupied the primary focus of the AEU at the hearing.

There are two categories of statements relied upon by the AEU.

The first category contains exhortatory statements issued by TasTAFE to employees encouraging them the vote “Yes” to the proposed Agreement. Beginning on 9 November 2023, TasTAFE issued an email to staff stating (relevantly, underlining added):

“ …
Say Yes to:
Pay increases of: 3.5% (Year 1) 3% (Year 2) 3% (Year 3)
3 paid Christmas close down days
No cap on personal leave accrual
Up to 30 days a year for family and diversity leave
Generous parental leave - increase to 18 weeks and removal of the distinction between the primary and non primary caregiver
Retention of a range of existing benefits”

That statement, adopting the same exhortation to say “Yes” to “No cap on personal leave accrual” was repeated in subsequent correspondence to staff, including at least on 13, 14, 16 and 20 November 2023.

The second statement relied upon by the AEU concerning the “cap” was expressed slightly differently. In an email on 16 November 2023 (16 November email) by the TasTAFE CEO to staff, it relevantly stated (with the uncontentious aspects under various headings omitted for brevity, the contentious parts are marked with underline):

“Colleagues
Under the Fair Work jurisdiction as your employer it is our obligation to provide you with accurate information regarding current and proposed employment conditions for our staff.
As we progress to voting on the General Employees Enterprise Agreement it is important to ensure that the information provided is accurate and I personally wanted to dispel any misinformation that may be circulating.
Firstly, we are currently in the “access period” for the proposed General Employee Enterprise Agreement only. Next week from November 20^th – 24^th General Staff will have the opportunity to vote either yes or no to their proposed agreement. Details and the full proposed agreement have been made available to our General Staff they can be accessed Pages Enterprise Bargaining (tastafe.tas.edu.au).
Inaccurate claims have been made this week regarding proposed employment conditions, and it is important that you are made aware of the facts.
Pay increases, not wage cuts

…
Independent arbitration remains

…
No changes to penalty rates

…
No changes to hours
There is no change to ordinary hours; there is no change to span of hours; there is no change to overtime; there is no shift work and no nightwork in the proposal.
There are no changes to permanency. People can be employed on a full-time part-time, fixed-term or casual basis, permanency remains our preferred employment status.
Retiring the triennium approach to personal leave, moves all employees to single personal leave scheme; we are proposing to remove the cap on personal leave so that is accrues; 20 days personal leave a year (pro rata), there is no distinction between sick and carers leave.
In terms of meals a 30-minute lunch break after 5 hours is included, there are no plans to change current practices There are no changes to evening meal allowances.
Consultation is a must

…
Lengthy and inclusive bargaining process

…
What happens if the offer is rejected?

…
Should you have any questions relating to information you are hearing, or the General Employee EA voting process please contact the Industrial Relations Team via [email address omitted]

Finally, can I encourage all staff covered by the proposed General Employees Enterprise Agreement to inform yourselves and take the time to cast your vote next week.”

While not specifically referred to by the AEU, I also note TasTAFE’s primary “Explainer” document contained a statement referring to the cap being “removed”. In the section for “Personal Leave” in the Explainer, the “Explanation” statement given was expressed as follows (emphasis added):[23]

“Entitlement for full time employees is 20 days per year (part time employees pro rata) accrued over the year
Notice and evidence requirements remain;
Enterprise Agreement provides for two days unpaid carers per occasion leave where personal leave has been exhausted;
Personal Leave cap removed for all employees
On registration all Triennium Personal Leave Scheme employees move to Personal Leave system under EA. Those employees will be translated to a Personal Leave entitlement that is the equivalent of 20 days annual accrual for their length of service minus any personal leave taken.”

The AEU’s position is that the statements, above, concerning the personal leave “cap”:

· firstly, represented that there an existing cap would be “removed”; and
· secondly, that those representations were false or misleading because there was no “cap” that could be removed.

The basis of the AEU’s contention that the impugned representations were misleading rested upon the effect of section 96 of the Act and its application to the TSSA and PSUWA upon becoming “copied State instruments” on 1 July 2022.

As set out above, on 1 July 2022, TasTAFE became a national system employer and, by automatic operation of the Act, the TSSA and PSUWA applied – by force of the Act – as “copied State instruments” to TasTAFE.

Also by force of the Act, the NES applied to TasTAFE from 1 July 2022. Section 768AQ of the Act, which was applicable, deals with the interaction between the NES and a copied State instrument. Section 768AQ states:

“To the extent that a term of a copied State instrument for a transferring employee is detrimental to the employee, in any respect, when compared to an entitlement of the employee under the National Employment Standards, the term of the instrument is of no effect.”

The relevant term of the NES relied upon the AEU is s 96 of the Act. That section provides:

“96 Entitlement to paid personal/carer’s leave
Amount of leave
(1) For each year of service with an employer (other than periods of employment as a casual employee of the employer), an employee is entitled to 10 days of paid personal/carer’s leave.
Accrual of leave
(2) An employee’s entitlement to paid personal/carer’s leave accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee’s ordinary hours of work, and accumulates from year to year.”

The significance ascribed by the AEU to the alleged misrepresentations was, in summary, that employees were being misled with an illusory promise of a benefit to which they were already entitled. As summarised by the AEU in its Outline of Submissions in Reply (emphasis added):

“17. … The effect of these representations was that relevant employees should agree to the Proposed Agreement because it offered a new term of employment (unlimited personal leave accrual) to which relevant employees were already entitled. The quantum of personal leave accrual, be it 10 days under the NES or 20 days under the Accumulation Scheme, was immaterial to the misleading nature of this representation.”

TasTAFE does not directly take issue with the AEU’s contention that representations were made to the effect that a “cap” will be removed but, rather, TasTAFE takes issue that there was any misleading representation. TasTAFE’s written submissions summarise its position as follows (footnotes omitted, emphasis added):[24]

“48. As noted above, there are currently two personal leave schemes in place: the Accumulation Scheme and the Triennium Scheme. Under the Accumulation Scheme, personal leave accrual is subject to a cap of 1911 hours or 1976 hours for employees who work a 38 hour week (260 days).
49. Under clause 5.4 of the General Agreement, General Employees will be entitled to 20 days of personal leave per year (pro rata for part-time employees). This is double the NES entitlement to 10 days of personal leave per year. There is also no cap on the accrual of personal leave, as is stated in the second paragraph of the clause.
50. TasTAFE agrees that section 96(2) of the FW Act provides for the progressive accrual of personal/carer's leave. However, in circumstances where TasTAFE will provide General Employees with double the NES entitlement to personal/carer's leave, it would have been open to TasTAFE to cap the accrual of personal leave that exceeded the NES entitlement. It has elected not to do so.
51. Employees in the Accumulation Scheme currently have a cap on their personal leave accrual as noted above. In the explanatory materials, in accordance with its obligations under the FW Act, TasTAFE has explained the removal of this cap under the General Agreement. The personal leave changes were then summarised in the Dreher Email. TasTAFE submits that, having regard to the change in approach under the General Agreement, this was not a misleading or false representation.”

Dealing with the first question as to whether there was a representation to the effect that there was a personal leave “cap” being “removed”, I am satisfied that such representations were conveyed by the Explainer document (in the “Personal Leave” section above) and in the 16 November email. Both documents expressly refer to a “removal” of a cap. Those statements were arguably made in two of the most significant documents provided to employees in relation to the vote, and if they were misleading, they had the potential to be misleading in a material way.

It is not necessary to consider whether the exhortatory statements “No cap on personal leave accrual” conveys a representation that a cap is being removed, although I am doubtful they do in isolation. The latter categories of statement may have caused “confusion or wonderment”, but I do not consider this would be sufficient to lead to a conclusion they were misleading.[25]

Having found that the representations were made, it is necessary to consider if they were misleading. I do not consider the representations regarding the removal of the personal leave cap to be misleading.

There was no dispute that the personal leave Accumulation Scheme, prior to TasTAFE becoming subject to the Act and NES on 1 July 2022, contained a cap.

But upon TasTAFE becoming a national system employer on that date, I do not consider that the NES operated to unconditionally remove the entirety of the “cap” that existed as part of the personal leave Accumulation Scheme under the TSSA and PSUWA.

Section 96(1) of the Act establishes an entitlement to 10 days personal leave per year. Section 96(2) provides that an employee’s “entitlement” accrues from year to year (and with no cap). However, the “entitlement” referred to in s 96(2) can only be the entitlement under s 96(1). Section 96(2) does not operate on the different entitlements established by the copied State instruments applying to TasTAFE and its employees after 1 July 2022.

Of course, where there is a conflict, the NES prevails. Section 768AQ further makes it clear that a term of a copied State instrument is of no effect only to the extent that a term of a copied State instrument is detrimental to the employee when compared to the NES.

In the present case, the NES establishes 10 days of personal leave each year, uncapped as it accrues year to year. The interaction of the 20 day capped Accumulation Scheme under the copied State instruments and the NES entitlements would present challenges in an assessment of whether the capped Accumulation Scheme would, in a given instance, be detrimental to an employee compared to the NES entitlement. But it is plainly clear that in many circumstances employees would be demonstrably better off under the Accumulation Scheme compared to the NES, such as where an employee who might take 15 days personal leave per year for a number of years. Even if the residual 5 days (out of the 20) was separately accounted for and capped, the employee would remain 5 days better off each year.

Hence, the “cap” imposed by the TSSA/PSUWA still had real work to do under the copied State instruments, even though it now had less work to do (due to the NES) and there might attract (potentially significant) administrative challenges in ensuring entitlements were properly accounted for without contravening the NES. It was not misleading for TasTAFE, in those circumstances, to make statements about the removal of that cap.

It follows that I reject this ground of the AEU’s objections.

For completeness, I note that TasTAFE further contends that, in assessing whether there was a misleading representation, that representation would need to be assessed in all the circumstances, which includes statements issued by the AEU. TasTAFE contends that those broader circumstances would also be relevant to assessing the materiality of any misrepresentation and whether that would affect the overall conclusion as to whether the Agreement was genuinely agreed to by employees. Having regard to my findings above, it is unnecessary to consider these further matters in the context of this issue.

Meal allowances

The final misrepresentation that is said to exist concerns a statement about meal allowances, made in the 16 November email, and how those allowances were said to persist under the Agreement by reference to the TSSA.

In short, the AEU contends that the statement in the 16 November email that “There are no changes to evening meal allowances” was false or misleading because:

“Clause 3.5.6 of the Proposed Agreement provides an evening meal allowance of $18.23 and Part IV clause 2(d) of the TSSA provides an evening meal allowance of $27.55. TasTAFE’s statement was false or misleading in that the Proposed Agreement provided around a $9.00 reduction in the evening meal allowance payable.”

At the time of the vote, the evening meal allowance of $28.00,[26] not $27.55[27] (as the AEU’s submission states), although nothing turns on this difference. There is no dispute that cl.3.5.6 of the Agreement provides an overtime meal entitlement of $18.23.

Given the change from $28.00 to $18.23, the statement in the 16 November email about evening meal allowances not changing was plainly incorrect.

TasTAFE accepts that the statement in the 16 November email “is not correct in relation to overtime meal allowances” (original emphasis), although it contends it was correct for evening meal allowances paid “during travel”.[28] In those circumstances, TasTAFE submits that, at most, the statement was “ambiguous rather than false and misleading”.[29]

I do not accept that the statement was merely ambiguous, as TasTAFE contends. To assert there are “no” changes, in a short and unqualified proposition, clearly conveys exactly just that – there were “no” changes being made to evening meal allowances. The distinction between overtime meal allowances and travel time meal allowances is not persuasive. The representation was misleading.

However, I do accept TasTAFE’s submission that the overall context in which the misleading representation was made is to be considered. In this case, the context in which the statement in the 16 November email was made was in response to highly critical communications being circulated by the AEU and CPSU in opposition to the proposed Agreement.

For example, on 15 November 2023, the AEU sent an email titled “Vote NO – your conditions under attack”.[30] It was a lengthy email, and it is unnecessary to summarise, but it advocated many reasons why the AEU was urging staff to vote “no” to:

“• Reject Wage Cuts
·   Save your right to independent arbitration
·   Stop cuts to pay rates for weekends and evenings
·   Protect conditions like lunch breaks, access to permanency, triennium sick leave and evening meal allowances
·   Save your right to be consulted at work”

The AEU’s email invited staff to attend one of two online webinars that had been organised for 5pm on 16 November and 1pm on 17 November 2023. While the distribution list identifying to whom that email was sent was not before me, I expect that the email was at least sent to the AEU’s members and I also infer the email was sent to non-members given the invitation at the end of the email to “Join your union”.

An email sent by the CPSU to staff on 15 November 2023[31] was to similar effect (and, I infer, to a similar distribution list). It urged staff to vote no and also invited staff to the same information sessions referred to in the AEU email. Under the heading “There are a range of issues we need to discuss Including”, the CPSU listed the first item as (original emphasis):

“• The proposed Agreement cuts your lunch break to thirty minutes, there are no rights to permanency, will see triennium sick leave scrapped, and introduces cuts to evening meal allowances.”

The same CPSU email also indicated that an organiser would be “leafleting” between 11.30am and 1pm on 16 November 2023. While the exact timing of when flyers were being issued is unclear (as is the extent of distribution), Mr Foot gives evidence of “joint flyers” from the AEU, CPSU, and UWU being circulated on or around 15 November 2023. Two of those flyers were in evidence.[32] They appear professionally prepared, or at least prepared by a person competent in layout and messaging. They were each prominently headed “VOTE NO!”. One of those flyers had a head “VOTE NO TO: CUTS TO YOUR CONDITIONS” and, under that heading, stated:

“The proposed agreement cuts your lunch break to half an hour, no rights to permanency, abolishment of triennium sick leave and cuts to evening meal allowances.”

I have extracted the text of the 16 November email above. Mr Foot’s evidence, which I accept, was that the email was drafted “in response to the union communications.” On its face, the email indicates to a reasonable reader that it was responsive to alleged “misinformation that may be circulating”, which itself would have alerted an interested reader to the sources of that information, if it wasn’t plainly clear that it was a reference to the material circulated by the unions.

The 16 November email was not the final word on the subject. In evidence was an annotated version of that email as a joint union response (and I make the same observations as to the quality of that publication as their earlier flyers). In the sentence “There are no changes to evening meal allowances”, the word “no” was crossed out and a new text bubble linked to it stating (among other items) “we’re cutting them by about $9.”

Another item of contextual relevance is the Explainer document, although in this case I do not consider it is particularly informative by its anodyne statement that the rate has been “updated” and it does not assist TasTAFE’s position. For completeness, the Explainer relevantly stated:[33]

“Overtime meal allowance rate updated and consistent across all meal-times.
The Enterprise Agreement allows for a further meal allowance to be paid where overtime exceeds four hours and a meal is not supplied.
Any meal allowances for day travel captured by Travel Allowance”

In Australian Municipal, Administrative, Clerical and Services Union v Yarra Valley Water Corporation[2013] FWCFB 7453, the Full Bench made the following observation that I concur with in relation to assessing misleading statements in the course of bargaining for an enterprise agreement (footnotes omitted):

“[28] A false representation or a material non-disclosure by an employer in the course of bargaining for an enterprise agreement may constitute a reasonable ground for believing under s.188(c) of the Act that an enterprise agreement has not genuinely been agreed to by employees if it could reasonably be expected to have had the effect of deceiving those employees into voting for something which, if they had known the true position, they would not have voted for. The question in this appeal is whether the misleading representations in the Emails and the Table could reasonably be expected to have had this effect.”

Both parties accepted – and relied upon - the correctness of the above statement. As is commonly the case, however, the difference between the parties was to its application to the facts at hand.

On balance, I am satisfied that the Agreement was genuinely agreed to by employees notwithstanding the misleading statement about evening meal allowances in the 16 November email. While meal allowances are an important topic and the email was a significant communication, it was but one email and the impugned statement a single part of a much longer document. Further, the email itself was clearly responsive to other material in circulation – the so-called “misinformation”. That itself is important in drawing attention to an interested reader on that topic that there were two sides to the issue. It is also likely that staff were exposed to one or more of the unions’ communications about that issue. I do not consider it reasonable to impute on employees an unquestioning attitude to the statement by TasTAFE (assuming, perhaps generously, it was widely read) in circumstances where there was an active and well-communicated “no” campaign being mobilised.

Finally, I have had regard to the outcome of the vote. It passed with a majority of about 59 percent. While that represents a relatively close margin, the margin could not be described as slim.

In all the circumstances, the meal allowance misrepresentation could not reasonably be expected to have had the effect of deceiving employees, or a sufficient number of them, into voting for something which, if they had known the true position, they would not have voted for.

If I were wrong about the above conclusion, I consider that an appropriate undertaking would be, if proffered, adequate to cure a concern that the Agreement was not genuinely agreed to. However, as I am of the view that the Agreement was genuinely agreed to notwithstanding the misrepresentation made, it is not appropriate to request an undertaking.

Conclusion

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss 186, 187, 188, 190, 193 and 193A as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Each of the AEU, CPSU and UWU, being bargaining representatives for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover them. In accordance with s 201(2), I note that the Agreement covers those organisations.

The Agreement was approved on 4 March 2024 and, in accordance with s 54 of the Act, will operate from 11 March 2024. The nominal expiry date of the Agreement is 1 December 2026.

Variation to correct obvious error

Clause 3.5.7 of the Agreement is titled “Work outside of ordinary hours” and contains a rate table for certain hours worked. In TasTAFE’s Form17A declaration, “TasTAFE notes that the table in clause 3.5.7 of the Agreement has been included in error and has no work to do in circumstances where the hours specified will be paid as overtime” (emphasis added).

That proposition is accepted by the AEU (and other unions). The AEU proposes a variation to cl 3.5.7 under s 218A of the Act so that the clause reads as follows:

“3.5.7 Minimum payment for work on a Sunday
If you work on a Sunday, you will be paid a minimum of 4 hours’ pay at the appropriate rate.”

TasTAFE submits that in circumstances where the table has no work to do, is not necessary to vary the Agreement as proposed by the AEU. However, TasTAFE states it has no objection to this course if this is the Commission's preference.

Section 218A of the Act permits the Commission to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). I have previously set out the consideration and circumstances where an enterprise agreement may be varied under s 218A[34]. It is not necessary to repeat those matters here. In the present circumstances, there is no dispute that there is an error. While that error is not immediately evident from the face of the document, it is an obvious error, defect and irregularity when considering the Agreement as a whole. I consider it appropriate to vary the Agreement in the form proposed by the AEU and will make an order to that effect.

Order

I order, pursuant to s 218A of the Act, that the Agreement be varied to correct an obvious error, defect and irregularity by deleting the heading and text of clause 3.5.7 and replacing them with the following:

“3.5.7 Minimum payment for work on a Sunday
If you work on a Sunday, you will be paid a minimum of 4 hours’ pay at the appropriate rate.”

The variation will operate from 4 March 2024.

DEPUTY PRESIDENT

Appearances:

W Spargo of Lander & Rogers for the Applicant
H Pill of Hall Payne Lawyers for the AEU

Hearing details:

2024.
Melbourne (by video link via Microsoft Teams):
January 23.

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

[2] CB p.493, AEU Submissions, [20] – [25].

[3] CB p.490, AEU Submissions, [5] – [7].

[4] CB p.490, AEU Submissions, [8] – [19]

[5] CB p.494, AEU Submissions, [26] – [32].

[6] CB p.494, AEU Submissions, [26] – [32].

[7] CB p.768, email from the CEO dated 22 February 2023.

[8] CB p.779.

[9] CB p.523.

[10] CB p.675.

[11] CB p.1099.

[12] Australian Education Union (284V) [2023] FWC 391 at [4].

[13] Australian Education Union (284V) [2023] FWC 391 at [5].

[14] Australian Education Union (284V) [2023] FWC 391 at [6].

[15] Australian Education Union (284V) [2023] FWC 391 at [8] – [10].

[16] On 24 March 2023, Commissioner Lee made an order (PR760521), effective 31 March 2023, that (relevantly) the TSSA and PSUWA would apply to a non-transferring employee from that date. Upon an application by TasTAFE to appeal, that order was stayed pending hearing and determination of the appeal or further order. The appeal was heard and determined on 13 July 2023 by dismissing the appeal, which lifted the stay application from 13 July 2023.

[17] CB p.495.

[18] CB p.1024, Witness Statement of Vivek Foot, exhibit VF-27.

[19] CB p.503 at [4].

[20] CP p.495, AEU Submissions, [30].

[21] CB p.474, TasTAFE Outline of Submissions, [32].

[22] They were: Australian Nursing and Midwifery Federation v Uniting Church in Australia Property Trust (Q.); Australian Workers' Union, The; United Workers' Union[2020] FWCFB 848 at[82] and [94]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v DDP Electrical Services Pty Ltd[2020] FWCFB 18 at [33]; The Australian Workers' Union v Skout Solutions Pty Ltd[2021] FWCFB 119 at [60]-[62]; and the comments of a Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services Pty Limited[2019] FWCFB 4022 at [71] (cited in Skout at [61]).

[23] CB p.1032.

[24] CB p.476, TasTAFE Outline of Submissions.

[25] See Campomar Sociedad Limitada v Nike International Ltd [2002] HCA 12 at [106].

[26] CB p.608.

[27] See CB p.316 for an earlier version of the TSSA where the rate was $27.55.

[28] CB p.521, Witness Statement of Mr Foot, [94].

[29] CB p.477, TasTAFE Outline of Submissions, [56].

[30] CB p.1059-1065.

[31] CB p.1066-1071.

[32] CB p.1072-1073.

[33] CB p.1028.

[34] Application by Burnside War Memorial Hospital Incorporated [2023] FWCA 3198.

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TasTAFE [2024] FWCA 464

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Application by Australian Education Union (284V) [2023] FWC 391

Australian Nursing and Midwifery Federation v Uniting Church in Australia Property Trust (Q.) [2020] FWCFB 848

ASU v Yarra Valley Water Corporation [2013] FWCFB 7453

[2024] FWCA 464

4 MARCH 2024