Temmco Total Energy Mining Maintenance Company Pty Ltd

[2021] FWC 4831

[2021] FWC 4831

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Temmco Total Energy Mining Maintenance Company Pty Ltd
(AG2021/5583)

DEPUTY PRESIDENT COLMAN MELBOURNE, 6 AUGUST 2021

Application for approval of the Temmco Certified Agreement for Yallourn Power Station and Open Cut Mine Victoria 2021 – agreement applying to future project – whether voting employees covered by the agreement – application dismissed

[1] Temmco Total Energy Mining Maintenance Company Pty Ltd (Temmco) has made an application under s 185 of the Fair Work Act 2009 (Act) for approval of an enterprise agreement known as the Temmco Certified Agreement for Yallourn Power Station and Open Cut Mine Victoria 2021 (Agreement). The application is opposed by the Australian Manufacturing Workers’ Union (AMWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU).

[2] The Agreement applies to the employment of employees of Temmco who will undertake critical maintenance work at the Yallourn power station in Victoria. The work is expected to commence in September 2021. Clause 4 of the Agreement states that it shall apply to ‘Temmco’s activities at the Yallourn Power Station & Mine and its employees engaged in the classifications covered by this agreement for engineering and maintenance activities at those sites.’ The classifications listed in clause 13 of the Agreement include machinists, tradesmen, and riggers.

[3] Temmco’s F17 statutory declaration in support of its application states that at the time of the employee vote on the Agreement, which occurred from 4 to 7 June 2021, eight employees were covered by the Agreement, all of whom cast a valid vote to approve the Agreement. The employees in question were at that time working for Temmco at the Tarong power station in Queensland and the Vales Point power station in New South Wales. Their employment was covered by other enterprise agreements that apply to Temmco. The F17 declaration further identifies that these employees were employed as machinists and valve fitters.

[4] The unions contend that the company has provided no satisfactory explanation as to why the eight employees were selected to vote on the Agreement. They submit that, as a consequence, the Commission cannot be confident that the Agreement was approved by a valid majority of employees, that it was genuinely agreed to by employees, or that the various pre-approval requirements in s 180 have been met.

[5] Directions were issued to the parties to file and serve submissions, witness statements and other material on which they wished to rely. The unions filed submissions and witness statements made by Mr Stephen Dodd, AMWU organiser, and Mr Toby Thornton, CFMMEU organiser. Temmco did not file any materials. It advised the Commission that it would rely on the documents lodged with its application.

[6] The matter was listed for hearing before me on 5 August 2021. The company submitted that the Commission should approve the Agreement because the application was substantially the same as a number of other applications made by Temmco in respect of similar enterprise agreements which had been approved by the Commission, including for project work undertaken at the Yallourn and Loy Lang power stations. It referred in this regard to the Temmco Certified Agreement For Yallourn Power Station and Open Cut Mine Victoria 2016, which was approved by Deputy President Gostencnik in 2017, and the Temmco Certified Agreement for Loy Yang A Power Station and Open Cut Mine Victoria 2021, which was approved by Commissioner McKinnon on 29 July 2021. The company submitted that the only difference between the applications for approval of those agreements and the present application was that the unions oppose the approval of the Agreement in this matter. The company contended that this is not a legitimate basis upon which the Commission could refuse to approve the Agreement.

[7] The AMWU and the CFMMEU maintained that the company had failed to explain why the eight individuals had been selected to vote on the Agreement, and that there was no objective basis for the Commission to conclude that, at the time of the vote, these employees would necessarily be covered by the Agreement. The unions contended that the Commission could not be satisfied that the Agreement had been properly made by employees who would be covered by the Agreement, or that the pre-approval requirements in s 180 of the Act had been met, because those requirements concern actions that must be taken by the employer in respect of the proper cohort of employees, namely those who will be covered by the agreement. These steps include giving relevant employees the text of the agreement (s 180(2)), notifying them of the details of the vote by the start of the access period for the agreement (s 180(3)), and taking all reasonable steps to explain to employees the terms of the agreement and the effect of those terms (s 180(5)). The unions contended that the application should be dismissed.

[8] I will briefly address the relevant provisions of the Act. Section 186(2)(a) provides that before approving an enterprise agreement under s 185, the Commission must be satisfied that the agreement has been ‘genuinely agreed to by the employees covered by the agreement’.  Section 188 defines when an agreement has been ‘genuinely agreed to’. It states:

“188 When employees have genuinely agreed to an enterprise agreement

(1) 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.

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

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

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

[9] For the purposes of s 188(1)(b) above, the relevant provision in the present matter is s 182(1), which states:

“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.”

[10] Section 181(1) states that 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’.

Consideration

[11] The company’s F17 declaration stated that, at the time of the vote, there were eight employees who would be covered by the Agreement, and that all employees cast a valid vote to approve the Agreement. At the hearing, the company’s representative submitted that these eight employees are the same employees who have approved other agreements covering work of the kind that will be performed under the Agreement, and that this group of employees (reference was made to a group of ten) travel around the country to perform this work as required. It was submitted that this has occurred over the past fifteen to twenty years.

[12] It is perfectly possible for an employer to make an enterprise agreement with existing employees in respect of work that will commence at some point in the future. However, it is necessary to ascertain, as at the time of the vote, who will be covered by the agreement. The effect of ss 181(1) and 182(1) is that, in order for an enterprise agreement to be made, it is necessary for the employees employed at the time, and who ‘will be covered’ by the proposed agreement, to vote on it, and for a majority of those who cast a valid vote to approve it. In Commonwealth Bank Group Enterprise Agreement [2021] FWCFB 3635, a Full Bench of the Commission concluded, at [9], that employees who vote on the agreement must be those who will be covered by the agreement, not those who simply might be covered. The question is assessed at the time of the vote. This does not mean that, in the context of an agreement that will apply to future work, there must be absolute certainty that each employee will undertake the work. For example, an employee who votes on the agreement might cease to be employed before the work under the new agreement commences, or might become unable to perform it. One must however be able to say with confidence, as at the time of the vote, that the voting employees will be covered by the agreement.

[13] In the present case, eight employees employed by the company in Queensland and New South Wales voted in June 2021 on an agreement that would apply to a project in Victoria in or about September 2021. The company has not led any evidence or submitted any documents to substantiate that these employees would be deployed to work on the Yallourn Project, nor has the company provided any detailed submissions about why the Commission should be satisfied as to these matters. For example, the company did not say that the employees have signed contracts to work on the project, or that they have been offered the work and have agreed to perform it, or even that the eight employees have each confirmed their willingness and intention to work on the project. The company simply asserts, very generally, that this is the group that undertakes such work and that it has done so previously. The contention that this has occurred over the past 15 to 20 years is difficult to accept without evidence; that there would have been no change in the composition of the group over such a period seems unlikely. And there is nothing before the Commission that defines or even describes what constitutes this group. I am not satisfied that, at the time of the vote, the eight employees were persons who will be covered by the Agreement.

[14] Similarly, even if these employees were indeed employees who will be covered by the Agreement, there is insufficient information before the Commission for me to be satisfied that they were the only employees employed at the time who would be covered by the Agreement. As the CFMMEU pointed out, there is something of a disconnect between the F17 declaration, which states in answer to question 4 that the Agreement covers site machinists and valve fitters who are required to work interstate, and the coverage clause of the Agreement, which extends beyond such work to cover other classifications such as riggers. Mr Thornton’s sworn evidence was that the work that would be performed by machinists under the Agreement would require the assistance of a rigger. Of course, such assistance could be sourced from a contractor. However, the company did not even clearly deny the contention, clearly raised in the unions’ argument, that other employees employed at the time of the vote might have been covered by the Agreement. I would add that it is not the role of the Commission to elicit the relevant information from an applicant for approval of an agreement. It was for the company to satisfy the Commission that the approval requirements had been met.

[15] The AMWU originally advanced a contention that the Agreement should have been made as a greenfields agreement with a union, however it later withdrew this contention. It was right to do so. The contention is not sustainable in light of the decision of the High Court in Aldi Foods Pty Limited v SDA [2017] HCA 53 (Aldi). It is useful however to contrast the facts of the present case with those in Aldi. In that case, the employer sought from its employees expressions of interest to work at a new store which was under construction. It then made written offers to some of those employees to work at the new store when it opened. Seventeen employees accepted the offers. These employees then voted to approve an enterprise agreement that would cover their employment at the new store when it opened for business. It could therefore be said in respect of the seventeen employees at the time of the vote that they would be covered by the new agreement and had properly been asked to vote to approve it. In the present matter, all that is before the Commission to substantiate that the Agreement was properly made within the meaning of the Act is a submission that this particular group is deployed on work of this kind. The unions set out in some detail their reasons for believing that the Agreement was not properly made, and the company has not addressed these matters. It could have led evidence, or produced adequate information, explaining why it was the case that this group of eight, and this group alone among the employees at the time of the vote, would be deployed to Victoria in September to work on the project. It has not done so.

[16] I am not satisfied that the Agreement was made in accordance with s 182(1), therefore I cannot be satisfied that the Agreement was genuinely agreed to by employees within the meaning of s 188, as required by s 186(2)(a). It follows that I am also not satisfied that the pre-approval requirements in s 180 were complied with, because these requirements concern steps that must be taken in respect of employees who will be covered by the agreement.

[17] This was a contested application. The unions raised credible concerns about whether the Agreement met the approval requirements in the Act. The Commission is required to be satisfied that each approval requirement has been met. The fact that other similar agreements have been approved by the Commission is not a basis upon which I can rationally be satisfied that the Agreement in this case has also been properly made, because many of the approval requirements in the Act relate to facts that will necessarily be specific to the particular case.

[18] The company has evidently adopted a practice over time of making enterprise agreements for future projects with existing employees. There is nothing wrong with this. But each application for approval of an enterprise agreement must meet the approval requirements in ss 186 and 187. I am not satisfied that all of these requirements have been met. This is what distinguishes the present case from previous applications made in the Commission, not, as the company contended, the fact that the unions opposed the application. For these reasons, the application for approval of the Agreement is dismissed.

DEPUTY PRESIDENT

Appearances:

R. Smith for Temmco Total Energy Mining Maintenance Company Pty Ltd
B. Terzic for the AMWU
E. Barnes-Whelan for the CFMMEU

Hearing details:

2021
Melbourne
5 August

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