The Australasian Meat Industry Employees Union v Teys Australia Beenleigh Pty Ltd
[2014] FWCFB 8589
•19 DECEMBER 2014
[2014] FWCFB 8589
DECISION
| Fair Work Act 2009 | |
| s.604 - Appeal of decisions | |
| The Australasian Meat Industry Employees Union | |
| v | |
| Teys Australia Beenleigh Pty Ltd | |
| (C2014/4178) | |
| Meat Industry | |
| SENIOR DEPUTY PRESIDENT ACTON | |
| SENIOR DEPUTY PRESIDENT RICHARDS | MELBOURNE, 19 DECEMBER 2014 |
| COMMISSIONER SIMPSON |
Appeal against decisions [[2014] FWC 2449 and [2014] FWCA 2453] of Deputy President
Asbury at Brisbane on 10 April 2014 in matter number AG2013/8000 - adjournment refused -
undertakings refused - enterprise agreement application dismissed.
DECISION OF SENIOR DEPUTY PRESIDENT ACTON AND
COMMISSIONER SIMPSON
Introduction
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| [1] | On 18 September 2014 we issued a decision | (the 18 September 2014 decision) and |
2
| order | (the 18 September 2014 order) in respect of an appeal by The Australasian Meat |
3
| Industry Employees Union (AMIEU) against decisions | of Deputy President Asbury of |
10 April 2014 approving the Teys Australia Beenleigh Pty Ltd Production Departments
4
| Enterprise Agreement 2013 | (the 2013 Agreement). This decision should be read in |
conjunction with our 18 September 2014 decision and the 18 September 2014 order.
Summary of the 18 September 2014 majority decision and 18 September 2014 order
[2] In the 18 September 2014 decision and the 18 September 2014 order, the majority of
the appeal Full Bench of the Fair Work Commission (FWC) granted permission to appeal.
[3] The majority of the FWC Full Bench recognised that, pursuant to clause 1.3
“Coverage & Scope” of the 2013 Agreement, a Teys’ employee engaged in stock receival and
preparation, production, and cleaning operations at the Beenleigh plant would not be covered
by the 2013 Agreement unless their work was also covered by the classifications contained in
the 2013 Agreement. In other words, a Teys’ employee may be engaged in stock receival and
preparation, production, and cleaning operations at the Beenleigh plant but not be covered by
the 2013 Agreement because their work is not covered by the classifications contained in the
[2014] FWCFB 8589
2013 Agreement. Such an outcome would not, for example, exclude a Teys’ employee from
being covered by the 2013 Agreement simply because the employee was on leave at the
relevant time. Such leave being a term or condition of their employment as a Teys’ employee
engaged in stock receival and preparation, production, and cleaning operations at the
Beenleigh plant whose work is covered by the classifications contained in the 2013
Agreement.
[4] The majority of the FWC Full Bench then went on to decide that the work of
employees of Teys Australia Beenleigh Pty Ltd (Teys) who were a “Trainee Supervisor”, the
“Trainee Workplace Health and Safety Officer”, the “Vietnamese translator” or the
“employee acting in a ‘HR’ role” at the time of the employee vote on the approval of the
2013 Agreement is not covered by the classifications contained in the 2013 Agreement. The
time of the employee vote on the approval of the 2013 Agreement being 1 and 2 August 2013.
[5] Consequently, the majority of the FWC Full Bench decided that the 17 employees of
Teys who were a “Trainee Supervisor”, and the three employees of Teys who were
respectively the “Trainee Workplace Health and Safety Officer”, the “Vietnamese translator”
and the “employee acting in a ‘HR’ role”, at the time of the employee vote on the approval of
5
| the 2013 Agreement were not employees who “will be covered” | by the 2013 Agreement at |
| the time of the vote. |
[6] In so deciding, the majority of the FWC Full Bench had regard, amongst other things,
to the terms of the 2013 Agreement, including the classifications clause of the 2013
Agreement, and the evidence and material about the employees of Teys who were a “Trainee
Supervisor”, the “Trainee Workplace Health and Safety Officer”, the “Vietnamese translator”
and the “employee acting in a ‘HR’ role” at the time of the employee vote on the approval of
the 2013 Agreement.
[7] The decision by the majority of the FWC Full Bench also recognised the limits to the
work covered by the classifications in the 2013 Agreement, including the limits to the
structured training program referred to in the objectives in the 2013 Agreement.
[8] As a result of the decision that the 20 employees were not employees who “will be
covered” by the 2013 Agreement at the time of the vote, the majority of the FWC Full Bench
also decided those 20 employees were not entitled to vote on the approval of the
2013 Agreement. However, the majority noted the 20 employees were included on the roll of
voters who could vote on the approval of the 2013 Agreement. Further, it was not in dispute
that some 17 of the employees who were a “Trainee Supervisor” at the time of the vote on the
approval of the 2013 Agreement actually voted in the approval ballot and that all of them may
have voted. With some 359 employees having voted to approve the 2013 Agreement and
343 employees having voted against its approval, the majority therefore decided that the
outcome of the approval ballot on the 2013 Agreement may have been different if those who
were not employees who “will be covered” by the 2013 Agreement at the time of the vote had
not voted in the approval ballot.
[9] On that basis, the majority of the FWC Full Bench decided the FWC could not have
been, and the majority was not, satisfied the 2013 Agreement was genuinely agreed to by the
employees covered by it, as required by s.186(2)(a) of the Fair Work Act 2009 (Cth)
(FW Act) for the FWC to approve the 2013 Agreement. This was because the FWC could not
have been, and the majority was not, satisfied in accordance with ss.188(b) and (c) of the
[2014] FWCFB 8589
FW Act that the 2013 Agreement was made in accordance with s.182(1) of the FW Act or that
there were no other reasonable grounds for believing the 2013 Agreement was not genuinely
agreed to by the employees covered by it.
[10] The Deputy President, however, was satisfied that the 2013 Agreement was genuinely
6
| agreed to by the employees covered by it, as required by s.186(2)(a) of the FW Act. | The |
7
| majority of the FWC Full Bench therefore decided to quash, and by order | quashed, the |
decisions of Deputy President Asbury of 10 April 2014 approving the 2013 Agreement.
[11] The majority of the FWC Full Bench then turned to consider whether it should
approve the 2013 Agreement having regard to the provisions of s.190 of the FW Act. Section
190 of the FW Act being as follows:
“190 FWC may approve an enterprise agreement with undertakings Application of this section (1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under section 185; and
(b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern. Undertakings (3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement. FWC must seek views of bargaining representatives
(4) The FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement.
[2014] FWCFB 8589
Signature requirements
(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.” [12] Section 191 of the FW Act deals with the effect of undertakings as follows:
“191 Effect of undertakings (1) If: (a) the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and (b) the agreement covers a single employer; the undertaking is taken to be a term of the agreement, as the agreement applies to the
employer.”
[13] The majority of the FWC Full Bench gave Teys until 25 September 2014 to provide a
relevant undertaking.
[14] On 23 September 2014, Teys wrote to the FWC as follows:
“Dear Senior Deputy President Acton
Teys Australia Beenleigh Pty Ltd production department’s Enterprise
Agreement 2013 - proposed undertakings
We refer to the Decision and Order of the Full Bench dated 18 September 2014.
Thank you for the opportunity to propose undertakings pursuant to s.190 of the Fair
Work Act 2009 (FWA).
Teys Australia Beenleigh Pty Ltd (Teys Australia) proffers two alternative
undertakings, each of which should satisfy the requirements of s.190 as well as
meeting the concerns identified by the majority of the Full Bench in its decision. Teys
Australia’s preference is for the first undertaking to be accepted, and for the second to
be considered only if the first is not accepted.
If, having considered the draft undertakings, and having sought the views of the
AMIEU (which we believe to be the only bargaining representative apart from Teys
Australia) the Full Bench does not believe either undertaking should be accepted, we
ask for the matter to be listed for a hearing so that we can make submissions on behalf
of Teys Australia in relation to the matter.
[2014] FWCFB 8589
The identified concern
The concern identified in the majority decision is a concern that 21 employees
(comprising 17 Trainee Supervisors, a Trainee Workplace Health & Safety Officer, a
Vietnamese Translator, an employee acting temporarily in an ‘HR' role and a
Production Sample Collector) are not within the scope of the classification structure
within the 2013 Agreement and therefore, as a consequence of the inter-relationship
between clause 1.3 and clause 3.1, they were not employees who will be covered by
the enterprise agreement.
It is noted that it was found (by all members) that there was insufficient evidence to
conclude one way or another as to whether the Production Sample Collector was
covered by the classifications.
Preferred undertaking
Teys Australia’s preferred undertaking, which is consistent with the approach it has
taken in the past both at Beenleigh and at other sites, is for an undertaking to be given
which clarifies the position of these employees within the classification structure.
This undertaking is to similar effect as an undertaking which was accepted by
Commissioner Ryan in: Cummins South Pacific Pty Ltd Engine Upfit, Recon,
Manufacturing Operations and Recon Warehousing Enterprise Agreement 2010. See
also the decision in Icon - Septech re Icon - Septech Pty Ltd Employees Enterprise
Agreement 2012 where a number of amendments were made to an Enterprise
Agreement by undertakings.
The advantage of this undertaking is that is resolves the matter in a way consistent
with the beliefs and intentions of Teys Australia and its employees in these roles,
consistent with the matters recorded at [120] of the majority decision. It satisfies the
requirements of s.l90, because:
(a) In accordance with the terms of the undertaking itself, it will not cause financial detriment to any employee covered by the Agreement; and
(b) It does not result in a ‘substantial change’ to the Agreement; rather it clarifies the operation of the Agreement in accordance with the intention of the parties.
A consequence of this undertaking is that these employees will then be covered by the
Enterprise Agreement. Therefore they are employees who ‘will’ be covered by the
Enterprise Agreement, and therefore entitled to vote, thereby resolving the identified
concerns.
Alternative undertaking
In the alternative, if the preferred undertaking is not accepted, Teys Australia and the
relevant employees will have to resolve the issue of industrial coverage for those roles
to continue. A consequence of the exclusion of these employees from the scope of the
2013 Enterprise Agreement (and necessarily, the 2010 Enterprise Agreement while it
[2014] FWCFB 8589had application) is that they lose the protection of the industrial instruments applicable
at the site (including, it appears, the underlying Award) while engaged in these roles.
Teys Australia and its employees, as the evidence revealed, have always operated on
the basis that these roles were covered by the award and the production enterprise
agreement, and therefore there is no other appropriate industrial or contractual
framework in place.
Teys Australia does not believe it would be fair or appropriate for employees who
have accepted trainee roles to be required to continue to work without the protection of
an Enterprise Agreement (or the underlying Award) until these issues have been
resolved.
Accordingly, if the first undertaking is not accepted, Teys Australia is prepared to
immediately:
(a) Cease to require trainees to carry out the tasks which has lead to the finding that they are excluded from coverage of the existing industrial instruments
while the issue of their industrial coverage is determined; and
(b) Consult with the employees in order to determine a way forward which is acceptable to them and to the company.
Accordingly, and so that the employees have the benefit and protection of the
2013 Enterprise Agreement while this consultation process proceeds, Teys Australia
will undertake not to require or permit the employees to carry out the relevant duties
during the consultation period until the matter is resolved. The proposed undertaking
is also enclosed.
A consequence of this undertaking is that these employees will then be covered by the
Enterprise Agreement unless and until an alternative arrangement is made and they are
returned to all elements of the training program. Therefore they are employees who
‘will’ be covered by the Enterprise Agreement, and therefore entitled to vote, thereby
resolving the identified concerns.
There are numerous examples of undertaking to similar effect (where an employer has
undertaken not to deploy employees in a particular way in order to satisfy the
requirements for approval). Enclosed in this regard are:
(a) Henry Lewis Roofing (Queensland) Pty Ltd re Lewis Roofing Enterprise Agreement; and
(b) PGSL Pty Ltd. We have provided a copy of this correspondence to other members of the Full Bench
and to the AMIEU.” [Footnotes omitted]
[2014] FWCFB 8589
[15] The “preferred” undertaking of Teys is as follows:
“PREFERRED UNDERTAKING
[TEYS LETTERHEAD]
Teys Australia Beenleigh Pty Ltd (Teys Australia) gives the following undertaking in
respect of the proposed Teys Australia Beenleigh Pty Ltd Production Departments
Enterprise Agreement 2013 (Agreement):
Clause 1.3
Add to clause 1.3 the following:
For the avoidance of doubt, this Agreement shall apply to Employees employed by
Teys Australia:
(a) who are participating in supervised training programs, including but not limited to the Trainee Supervisor or Trainee Work Health and Safety Officer
programs; or
(b) whose work is covered by the classifications contained in this agreement and who are directed by Teys Australia to engage in temporary assignments to
assist with administrative or clerical work at the Teys Australia Beenleigh
plant.
Clause 3.1
Add to clause 3.1 the following:
3.1.1 The following classifications of employees are contained within the
Agreement:
(a) Trainee Supervisors; and (b) Trainee Work Health and Safety Officers.
3.1.2 Trainee Supervisors and Trainee Work Health and Safety Officers can be
classified in Level 1, Level 2, Level 2A or Level 3 depending on their
experience and skill-set, but in no case will they be classified below the
classification held immediately prior to appointment as a trainee.
3.1.3 Employees engaged in temporary assignments to assist with administrative or clerical work will in no case be classified at a level below their classification immediately prior to accepting the engagement.
[2014] FWCFB 8589
No reduction in remuneration
No employee will have his or her remuneration reduced as a result of this undertaking.
Signed
Brad Teys
CEO”.
[16] The “alternative” undertaking of Teys is as follows:
“ALTERNATIVE UNDERTAKING
[TEYS LETTERHEAD]
Teys Australia Beenleigh Pty Ltd (Teys Australia) gives the following undertaking in
respect of the proposed Teys Australia Beenleigh Pty Ltd Production Departments
Enterprise Agreement 2013 (Agreement):
1. For a period of at least 3 months from the date of approval of the Agreement,
during which Teys Australia will consult with its Trainee Supervisors and
Trainee Workplace Health and Safety Officers in relation to their industrial
arrangements, Teys Australia will not require or permit employees who are
appointed to these roles to undertake supervisory tasks or responsibilities or
workplace health and safety officer tasks or responsibilities, and will instead
only require and permit them to undertake tasks required of them in the role
they were in immediately prior to their appointment as a Trainee Supervisor or
Trainee Workplace Health and Safety Officer.
2. No employee will have his or her remuneration reduced as a result of this
undertaking.”
Signed Brad Teys
CEO”.
[17] On 24 September 2014 the AMIEU wrote to the FWC objecting to these undertakings
as they did not “cure the fact that at the time of the vote these 21 persons were not covered by
8
| the [2013] Agreement” | and “would constitute a substantial change to the [2013] Agreement” |
9
contrary to s.190(3)(b) of the FW Act.
[18] The FWC Full Bench subsequently issued directions for the filing in the FWC and
serving on the other party of written submissions in respect of the proposed undertakings or
any further proposed undertakings. At the request of Teys the matter was also listed for a
further hearing before the FWC Full Bench on 26 November 2014.
[2014] FWCFB 8589
Adjournment application
[19] At the hearing on 26 November 2014, Teys sought the adjournment of the matter
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| pending the outcome of a prerogative relief application | filed by it in the Federal Court of |
Australia (FCA) on 22 May 2014 and heard by the FCA on 24 November 2014, with the FCA
providing for subsequent written submissions by the parties and judgment reserved. The
11
| prerogative relief application concerns a decision of 4 March 2014 | of another appeal Full |
| 12 | |
| Bench of the FWC and a subsequent FWC order of 25 March 2014. | That 4 March 2014 |
decision and 25 March 2014 order quashed earlier decisions of Deputy President Asbury of
13 14
| 27 September 2013 | and 4 October 2013 | approving the 2013 Agreement. The 4 March |
2014 decision and 25 March 2014 order resulted in the remittal of the application for FWC
approval of the 2013 Agreement to the Deputy President to be further dealt with. The Deputy
President’s further dealing with the application resulted in the decisions the subject of the
appeal before us.
[20] In seeking the adjournment Teys referred to comments of Logan J in the FCA hearing
on 24 November 2014. During the course of the hearing on 24 November 2014, Logan J
queried whether anyone had asked the FWC not to proceed pending the exercise of the FCA’s
jurisdiction in respect of the prerogative relief application.
[21] Teys also submitted that in the event it is successful in its prerogative relief application
then there are at least three possibilities. They stated the following:
“PN952
It’s submitted by Teys that in the event that it is successful before the Federal
Court that one of at least three possibilities may result. Firstly, the Full Court
may quash the order of the first full bench to quash the approval and remit the
matter back to the first full bench who may then further consider the matter and
may approve it. That’s one possibility. The second possibility is that the
Federal Court may quash the order of the first full bench, remit the matter back
to the first full bench, who after further consideration may remit it back to
DP Asbury for further consideration by her.
PN953
SENIOR DEPUTY PRESIDENT ACTON: Would they remit it back to the
full bench or would they remit it back to the commission?
PN954
MR MURDOCH: Well, when I say the full bench I need to be careful in what
I say, because the order I expect would be it would be remitted back to the
commission.
PN955
SENIOR DEPUTY PRESIDENT ACTON: Yes.
PN956
MR MURDOCH: I don’t suggest that it would be necessarily remitted back to
the three particular members. The third possibility is that the first full bench
order of 25 March 2014 may be quashed, remitted back to the commission, and
that the commission upon further considering the matter may set the approval
[2014] FWCFB 8589aside and the application may then be dismissed, but each of those scenarios
I’ve just set out, of course, are all being based upon my client being successful
before the Full Court. Each of those scenarios that I’ve set out would, with
respect, as my client analyses things, render the order to quash made by this
full bench otiose, as well as any subsequent orders made by this full bench
otiose, and that’s because even though the remitter would be back to the
commission, it would be a remitter back in respect of the first full bench
decision as opposed to the decision of this full bench.
PN957
SENIOR DEPUTY PRESIDENT ACTON: As I understand it, the first full
bench had before it the issue that we dealt with.
PN958
MR MURDOCH: Yes.
PN959
SENIOR DEPUTY PRESIDENT ACTON: They found it unnecessary to deal
with it because they quashed the decision on another basis…
PN960
MR MURDOCH: Yes.
PN961
SENIOR DEPUTY PRESIDENT ACTON: That issue would remain alive,
excepting that there is another full bench decision of the commission on it.
PN962
MR MURDOCH: That’s right, but that’s only one of the possible scenarios.
PN963
SENIOR DEPUTY PRESIDENT ACTON: If it’s remitted back to the
commission there is already an extant commission decision quashing the
approval on the basis of failure to meet the requirements of the Act. Are you
suggesting there would be another full bench set up by the commission to
overturn a full bench decision?
PN964
MR MURDOCH: Well, the difficulty, with respect, with the scenario that
you’ve just put to me is that this full bench’s dealing with the matter flows
from a different approval decision of DP Asbury. Essentially what, in my
submission, a remitter by the Full Court would be doing would be remitting
back to the commission the matter that’s the subject of the application before
the Full Court, which is not the matter that’s before this bench, nor is it the
matter that was before DP Asbury which is the subject of the appeal to this
15
bench.”
[22] Teys also submitted there was the possibility that the FCA may make findings
inconsistent with that of the FWC, such as that the 2013 Agreement was validly approved by
Deputy President Asbury.
[2014] FWCFB 8589
[23] Further, Teys submitted that if we dismissed the application for approval of the
2013 Agreement, the AMIEU would be able to organise protected industrial action in relation
to a new enterprise agreement which “may lead to Teys … enduring costly protected
16
industrial action when, in fact, a valid agreement was lodged for approval”.
[24] The AMIEU opposed Teys’ adjournment application. In doing so they submitted the
following:
“PN1065
MR DALGLEISH: Your Honours, in our respectful submission we say that
there is no basis for an adjournment. The matters raised in the solicitor’s letter
and the Full Court transcript are as follows. The court has not given a
direction, an order or a decision that this matter before the commission should
not proceed. It was a statement made by one judge, not the Full Court. That
judge’s statement was not argued nor debated by the parties.
PN1066
The submissions proper in relation to an adjournment. Firstly, we’d submit
that decision making in the Fair Work Commission as a specialist industrial
tribunal should not be treated as merely provisional. Second, it is submitted
that the proceedings before the Full Court and the commission did not involve
determination of the same matters, that is, in our view the matters before the
Fair Work Commission do not impact on the matters before the Full Federal
Court. Third, we would submit that there is no overlap between the
proceedings of the application before the Fair Work Commission and the
proceedings in the Federal Court, and it is submitted that the commission ought
to exercise its own jurisdiction.
PN1067
Fourth, it is submitted that section 577 of the Fair Work Act requires that the
commission perform its functions and exercise its powers in a manner that is
quick and formal and avoids unnecessary technicalities. Fifth, the commission
would need to be satisfied that an adjournment would lead to an efficient
conduct of proceedings. It does not. Sixth, it is highly unlikely, pure
speculation and presumptuous of my friend that the Full Court proceedings
may be determined in a manner which makes this matter unnecessary, because
even if the first full bench erred in some way, it was an error within
jurisdiction. Seventh, the full bench has decided twice that the agreement has
not been validly approved and there is no reason why the Fair Work
Commission should not proceed today. It Teys wants to get a stay of the order
then they should make an application at the appropriate time.
PN1068
Eighth, Teys could have uplifted the second full bench decision of
18 September 2014 to the Full Court to have all matters resolved at the one
time. They could have sought prerogative relief and joined the matter in the
Federal Court. They did not do this. Why should the Fair Work Commission
now abandon its course on the basis of pure conjecture. At the end of the day,
if an order is made which is problematic for Teys then my friend can seek a
stay of the order. In conclusion, the Fair Work Commission should not be
[2014] FWCFB 8589satisfied that there is a proper basis for an adjournment. On this question the
17
union’s submissions should be accepted...”.
[25] We have decided not to adjourn the matter before us.
[26] As we earlier indicated, in our 18 September 2014 decision, the majority of the FWC
Full Bench decided it was not satisfied the 2013 Agreement was genuinely agreed to by the
employees covered by it, as required by s.186(2)(a) of the FW Act.
[27] That decision is an extant decision of a Full Bench of the FWC. That decision was
given some time ago and is not the subject of FCA proceedings. As a consequence of that
decision, but for s.190 of the FW Act which provides for the FWC to approve an enterprise
agreement with an undertaking, the 2013 Agreement cannot be approved by the FWC.
[28] We are now at the stage of considering whether to approve the 2013 Agreement with
an undertaking and can do so quickly. In this regard, Teys proposed undertakings on
23 September 2014, together with some written submissions in support. Teys made further
written submissions in support of their proposed undertakings on 15 and 30 October 2014.
The AMIEU, a bargaining representative for the 2013 Agreement, opposed the approval of
the 2013 Agreement with an undertaking on 24 September 2014. In doing so they also made
some written submissions. The AMIEU made further written submissions with respect to its
opposition on 22 October 2014.
[29] We have well advanced in our consideration of the application for approval of the
2013 Agreement without objection from Teys until now.
[30] The circumstances in this matter clearly differ from those in Construction, Forestry,
18
| Mining and Energy Union v Eco Recyclers Pty Ltd | to which we were referred by Teys. |
[31] In the circumstances we consider the most appropriate course is for this Full Bench of
the FWC to conclude its consideration of the application for approval of the 2013 Agreement.
Other provisions of the FW Act will operate, as they should, depending on the outcome of
that consideration.
[32] Having decided not to adjourn the matter before us, we turn to consider the
undertakings proposed by Teys and whether to approve the 2013 Agreement with an
undertaking.
Teys’ undertakings
[33] We earlier set out s.190 of the FW Act concerning the approval of an enterprise
agreement with undertakings and s.191 of the FW Act concerning the effect of undertakings.
We emphasise certain aspects of ss.190 and 191 of the FW Act.
[34] Section 190(1)(b) of the FW Act provides that s.190 applies if the FWC has a concern
that an enterprise agreement, for which an application for approval by the FWC has been
made, does not meet the requirements in ss.186 and 187 of the FW Act.
[2014] FWCFB 8589
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| [35] | Section 190(2) of the FW Act provides the FWC with a discretion | to approve the |
enterprise agreement under s.186 of the FW Act if:
the FWC has accepted an undertaking under s.190(3) of the FW Act, and the FWC is satisfied the undertaking meets its concern. [36] Section 190(3) of the FW Act provides the FWC with a discretion to accept a written
undertaking from one or more employers covered by the enterprise agreement only if the
FWC is satisfied that the effect of accepting the undertaking is not likely to:
cause financial detriment to any employee covered by the enterprise agreement, or result in substantial changes to the enterprise agreement. [37] Section 190(4) of the FW Act provides that the FWC must not accept an undertaking
under s.190(3) of the FW Act unless the FWC has sought the views of each person the FWC
knows is a bargaining representative for the enterprise agreement.
[38] Section 191 of the FW Act provides that an undertaking is taken to be a term of an
enterprise agreement, as the enterprise agreement applies to the employer, if the FWC accepts
the undertaking under s.190(3) of the FW Act and approves the enterprise agreement.
[39] As we earlier indicated, in the 18 December 2014 decision the majority of the FWC
Full Bench was concerned the 2013 Agreement does not meet the requirement in s.186(2)(a)
of the FW Act. Section 186(2)(a) providing that the FWC must be satisfied the enterprise
agreement has been genuinely agreed to by the employees covered by it.
[40] The concern of the majority of the FWC Full Bench arose from:
the work of the Teys’ employees who were a “Trainee Supervisor”, the “Trainee Workplace Health and Safety Officer”, the “Vietnamese translator” or the “employee acting in a ‘HR’ role” at the time of the employee vote on the approval of the 2013 Agreement, which was 1 and 2 August 2013, not being covered by the classifications contained in the 2013 Agreement, and the Teys’ employees who were a “Trainee Supervisor”, the “Trainee Workplace
Health and Safety Officer”, the “Vietnamese translator” or the “employee acting
in a ‘HR’ role” at the time of the employee vote on the approval of the
2013 Agreement therefore not being employees who “will be covered” by the
2013 Agreement at the time of the vote, and
those Teys’ employees thereby not being entitled to vote on the approval of the
2013 Agreement, and
[2014] FWCFB 8589
those Teys’ employees nonetheless being included on the roll of voters who could vote on the approval of the 2013 Agreement, and some of the 17 Teys’ employees who were a “Trainee Supervisor” at the time of the vote having voted on the approval of the 2013 Agreement, with all of them perhaps having voted, and the outcome of the approval ballot on the 2013 Agreement perhaps having been different if they had not voted, and the FWC therefore not being satisfied in respect of the matters in ss.188(b) or (c) of the FW Act. [41] Sections 188(b) and (c) providing that an enterprise agreement has been genuinely
agreed to by the employees covered by it if the FWC is satisfied that, amongst other things,
the enterprise agreement was made in accordance with s.182(1) of the FW Act and there are
no other reasonable grounds for believing that the enterprise agreement has not been
genuinely agreed to by the employees.
[42] Section 182(1) of the FW Act providing as follows:
“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.” [Underlining added] [43] Section 181(1) of the FW Act being as follows:
“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.”
[44] The majority of the FWC Full Bench pointed out in the 18 September 2014 decision
that the expression “will be covered” in s.182(1) of the FW Act was considered in Cimeco Pty
20
| Ltd v Construction, Forestry, Mining and Energy Union and Others | in circumstances where |
employees who had voted on the approval of an enterprise agreement included employees
who did not fall within the coverage clause of the enterprise agreement at the time of the vote.
In Cimeco, a Full Bench of Fair Work Australia said:
[2014] FWCFB 8589
“[39] Subsection 182(1) deals with when a single enterprise agreement (that is not a greenfields agreement) is ‘made’:
‘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’…
[41] The expression ‘will be covered by the agreement’ in this context does not
indicate future likelihood rather it expresses a determinate or necessary consequence.
As Katzmann J observed in CFMEU v FWA:
‘Objectively, the intention of the legislature in using the expression was to
ensure that the employer could only make an agreement with those employees
who were named or described in the agreement and whom the agreement
purported to cover’…
[48] The second matter we wish to address concerns whether the Midwest
Agreement was made in accordance with the Act. Fair Work Australia is not
empowered to approve the Midwest Agreement unless it was made in accordance with
the terms of s.180 and s.182(1) of the Act.
[49] As we have already noted, fourteen Cimeco employees voted to approve the
Midwest Agreement on 16 September 2011. Hence, in the usual course, the
agreement would be taken to have been ‘made’ on 16 September 2011. But at the
time the Midwest Agreement was purportedly made four of the Cimeco employees
who voted to approve the agreement did not fall within the area and scope of the
Midwest Agreement as set out in clause 3(a) of that agreement.
[50] Counsel for the appellant contended that the task of identifying who will be
covered by the agreement is ‘in a sense a factual exercise’. The four Cimeco
employees employed on the Marandoo Project were included in the vote because at
that time they had been ‘mobilised’ to go to the De Grussa Copper Plant. It was put to
counsel that the expression ‘will be covered’ means those actually falling within the
coverage clause at the time of the vote as opposed to those it was anticipated would be
covered by the agreement on the basis that they had been ‘mobilised’ to perform work
in the region covered by the agreement. Counsel responded to this suggestion in the
following terms:
‘One runs the risk then of an argument that there’s not been a genuine
agreement because you’ve actually excluded people from the voting process,
people that you’ve identified who are going to be because - they’re mobilising.
If you know these people are going to - they will be covered and you exclude
them from the vote, then you run into an argument that the agreement hasn’t
been properly made, there’s no genuine agreement because you’ve excluded a
group of people who are to be covered. Just from a factual point of view, in
our respectful submission, the suggestion which appears to have been taken up
by his Honour that because it was anticipated that at a future point, employees
who were working on other projects, who were employees of this company
[2014] FWCFB 8589working on other projects outside of the area - the fact that at some future point
they are to be deployed, mobilised in and work at Meekatharra - that, in no
way, could affect, in our respectful submission, either of the two questions:
namely, was the group that was geographically distinct fairly chosen and it
would not affect in any way the genuine making of the agreement because all
those persons who had been identified as who would be covered participate in
the agreement-making process.’
[51] We do not find counsel’s submission persuasive. As we have previously
mentioned the expression ‘will be covered by the agreement’ in s.182(1) does not
indicate future likelihood but rather expresses a determinate or necessary consequence.
[52] It follows that the four employees working on the Marandoo agreement were
not entitled to vote to approve the Midwest Agreement because at the time of the vote
they did not fall within the area and scope of the agreement.” [Endnotes omitted]
[Underlining added]
[45] Teys has proposed two undertakings which we set out earlier.
[46] In support of its “preferred” undertaking Teys submitted that:
“25. Teys Australia’s preferred undertaking, which is consistent with the approach it has taken in the past both at Beenleigh and at other sites, is for an undertaking to be given which clarifies the position of the disputed employees within the classification structure. 26. The effect of the preferred undertaking is to clarify … that the 17 Trainee
Supervisors, the Trainee Workplace Health & Safety Officer, the Vietnamese
Translator and the employee acting temporarily in an ‘HR’ role were carrying
out work in a classification contained within the 2013 Agreement at the time of
the vote.
27. The preferred undertaking clarifies theintended operation of the
2013 Agreement…
28. With the addition of a classification for ‘Trainee Supervisors’ concerns of the
Full Bench are satisfied in that:
(a) the 17 Trainee Supervisors were covered by the proposed enterprise agreement at the time of the vote and were entitled to participate in the
ballot to approve the agreement;
(b) a majority of the employees who cast a valid vote in the ballot approved the agreement (noting that the vote succeeded by 16 votes);
(c) the agreement was thus validly ‘made’ for the purpose of s.l82(1) of the FW Act, as well as s.l88(b) of the FW Act;
[2014] FWCFB 8589
(d) there are no other reasonable grounds for believing that the 2013 Agreement has not been genuinely agreed to by the employees
covered by it, thereby satisfying s.l88(c) of the FW Act; and
(e) therefore, the agreement has been genuinely agreed to be the employees covered by it in satisfaction of s.186(2) of the FW Act.
29. The preferred undertaking satisfies the requirements of s.190 of the FW Act,
because:…
(b) it does not result in a ‘substantial change’ to the 2013 Agreement. In
21
fact it does not change the terms of the 2013 Agreement at all.”
[47] To the extent, as Teys submitted, the Teys’ “preferred” undertaking merely “clarifies”
the 2013 Agreement and “does not change the terms of the 2013 Agreement at all”, we are not
satisfied such a “preferred” undertaking meets the concern of the majority of the FWC Full
Bench in the 18 September 2014 decision that the 2013 Agreement does not meet the
requirement in s.186(2)(a) of the FW Act. This is because in not changing the terms of the
2013 Agreement it does not overcome the foundation of that concern, being that the work of
the 20 Teys’ employees who were a “Trainee Supervisor”, the “Trainee Workplace Health
and Safety Officer”, the “Vietnamese translator” or the “employee acting in a ‘HR’ role” at
the time of the employee vote on the approval of the 2013 Agreement is not covered by the
classifications contained in the 2013 Agreement. In not overcoming the foundation of that
concern, the consequences of that foundation remain. Those consequences include that those
Teys’ employees were therefore not employees who “will be covered” by the
2013 Agreement at the time of the vote and therefore not entitled to vote on the approval of
the 2013 Agreement. However, some of the 17 Teys’ employees who were a “Trainee
Supervisor” at the time of the vote did vote on the approval of the 2013 Agreement and
perhaps all of them voted, with the result that the outcome of the approval ballot on the
2013 Agreement may have been different if they had not voted. Accordingly, the FWC
cannot be satisfied in respect of the matters in ss.188(b) and (c) of the FW Act.
[48] To the extent Teys’ “preferred” undertaking does change the terms of the
2013 Agreement so that Teys’ employees who are a “Trainee Supervisor”, “Trainee
Work[place] Health and Safety Officer”, “Vietnamese translator” or “employee acting in a
‘HR’ role” are covered by the 2013 Agreement, as we think it does, we are not satisfied the
effect of accepting that undertaking is not likely to result in substantial changes to the
2013 Agreement. Indeed, we are satisfied the effect of accepting that undertaking is likely to
result in substantial changes to the 2013 Agreement by changing those covered by the
2013 Agreement. While Teys submits the “preferred” undertaking has the result that “[s]ome
small number of further employees who voted in respect of the [2013] [A]greement would be
22
| covered by the [2013] [A]greement”, | we think such a “preferred” undertaking involves a |
change to the classifications or work covered by the classifications contained in the
2013 Agreement and thereby to the types of Teys’ employees covered by the
2013 Agreement. In our view, this results in substantial changes to the 2013 Agreement.
Therefore, pursuant to s.190(3) of the FW Act, we could not accept such a “preferred”
undertaking.
[2014] FWCFB 8589
[49] Further, to the extent Teys’ “preferred” undertaking does change the terms of the
2013 Agreement so that Teys’ employees who are a “Trainee Supervisor”, “Trainee
Work[place] Health and Safety Officer”, “Vietnamese translator” or “employee acting in a
‘HR’ role” are covered by the 2013 Agreement, we are not satisfied such a “preferred”
undertaking meets the concern of the majority of the FWC Full Bench in the 18 September
2014 decision that the 2013 Agreement does not meet the requirement in s.186(2)(a) of the
FW Act. This is because, pursuant to s.191 of the FW Act, such a “preferred” undertaking is
only taken to be a term of the 2013 Agreement, as it applies to Teys, if we have accepted the
“preferred” undertaking and approved the 2013 Agreement. By operation of the FW Act
therefore, the “preferred” undertaking cannot be a term of the 2013 Agreement and of
consequential effect until some time after the time of the employee vote on the approval of the
2013 Agreement, which was 1 and 2 August 2013. As a result, such a “preferred”
undertaking does not overcome the fact that the Teys’ employees who were a “Trainee
Supervisor”, the “Trainee Workplace Health and Safety Officer”, the “Vietnamese translator”
or the “employee acting in a ‘HR’ role” at the time of the employee vote on the approval of
the 2103 Agreement were not employees who “will be covered” by the 2013 Agreement at the
time of the vote of 1 and 2 August 2013. Therefore, those Teys’ employees were not entitled
to vote on the approval of the 2013 Agreement. Nonetheless, some of the 17 Teys’
employees who were a “Trainee Supervisor” at the time of the vote did vote on the approval
of the 2013 Agreement, with perhaps all of them having voted. So it remains that the
outcome of the approval ballot on the 2013 Agreement may have been different if they had
not voted and, thereby, the FWC cannot be satisfied in respect of the matters in ss.188(b) and
(c) of the FW Act.
[50] Since we are not satisfied Teys’ “preferred” undertaking meets our concern that the
2013 Agreement does not meet the requirement in s.186(2)(a) of the FW Act or we cannot
accept the “preferred” undertaking, the “preferred” undertaking does not meet the
prerequisites for the exercise of the discretion in s.190(2) of the FW Act to approve the
2013 Agreement. Accordingly, we cannot exercise the discretion in s.190(2) of the FW Act
to approve the 2013 Agreement with the “preferred” undertaking.
[51] In support of its “alternative” undertaking, Teys submitted that:
“36. Teys Australia does not believe it would be fair or appropriate for employees who have accepted trainee roles to be required to continue to work without the protection of an enterprise agreement (or the underlying Award) until these issues have been resolved... 38. Accordingly, and so that the employees have the benefit and protection of the
2013 Agreement while this consultation process proceeds, Teys Australia will
undertake not to require or permit the employees to carry out the relevant
duties during the consultation period until the matter is resolved. It will also
undertake to maintain their current wage level during that period.
39. A consequence of this undertaking is that these employees will then be covered
by the 2013 Agreement unless and until an alternative arrangement is made
and they are returned to all elements of the training program. Therefore, they
are employees who ‘will’ be covered by the 2013 Agreement, and therefore
entitled to vote, thereby resolving the identified concerns.
[2014] FWCFB 8589
40. Teys Australia also submits that the ‘alternative undertaking’ satisfies the requirements of s.190 of the FW Act, because:
(a) in accordance with the terms of the undertaking itself, it will not cause financial detriment to any employee covered by the 2013 Agreement;
and
(b) it does not result in a ‘substantial change’ to the 2013 Agreement (in
23
fact there is no change to the 2013 Agreement whatsoever).”
[52] We are not satisfied, however, that the “alternative” undertaking meets the concern of
the majority of the FWC Full Bench in the 18 September 2014 decision that the
2013 Agreement does not meet the requirement in s.186(2)(a) of the FW Act.
[53] Teys “alternative” undertaking operates from the “date of approval of the
[2013] Agreement”. We take this to be from the date of any approval by us of the
2013 Agreement with the “alternative” undertaking, given the “alternative” undertaking
involves future consultation. That date is necessarily after the time of the employee vote on
the approval of the 2013 Agreement, which was 1 and 2 August 2013.
[54] Further, pursuant to s.191 of the FW Act, the “alternative” undertaking is only taken to
be a term of the 2013 Agreement, as it applies to Teys, if we have accepted the “alternative”
undertaking and approved the 2013 Agreement. That is, by operation of the FW Act, the
“alternative” undertaking cannot be a term of the 2013 Agreement and of consequential effect
until some time after the time of the employee vote on the approval of the 2013 Agreement,
which was 1 and 2 August 2013.
[55] Therefore, the “alternative” undertaking does not overcome the fact that the Teys’
employees who were a “Trainee Supervisor, the “Trainee Workplace Health and Safety
Officer”, the “Vietnamese translator” or the “employee acting in a ‘HR’ role” at the time of
the employee vote on the approval of the 2013 Agreement were not employees who “will be
covered” by the 2013 Agreement at the time of the vote of 1 and 2 August 2013.
Consequently, they were not entitled to vote on the approval of the 2013 Agreement.
Nonetheless, some of the 17 Teys’ employees who were a “Trainee Supervisor” at the time of
the vote did vote on the approval of the 2013 Agreement, with perhaps all of them having
voted. It remains therefore that the outcome of the approval ballot on the 2013 Agreement
may have been different if they had not voted and, as a result, the FWC cannot be satisfied in
respect of the matters in ss.188(b) and (c) of the FW Act.
[56] Since we are not satisfied Teys’ “alternative” undertaking meets our concern that the
2013 Agreement does not meet the requirement in s.186(2)(a) of the FW Act, the
“alternative” undertaking does not meet a prerequisite for the exercise of the discretion in
s.190(2) of the FW Act to approve the 2013 Agreement. Accordingly, we cannot exercise the
discretion in s.190(2) of the FW Act to approve the 2013 Agreement with the “alternative”
undertaking.
[57] We add that in any instance we are not persuaded to exercise our discretion under
s.190(3) of the FW Act to accept either of Teys’ proposed undertakings or under s.190(2) of
the FW Act to approve the 2013 Agreement with either of Teys’ proposed undertakings.
While Teys supports such acceptance and approval, the AMIEU, a bargaining representative
[2014] FWCFB 8589
pursuant to ss.176(1)(b) and (3) of the FW Act in respect of the 2013 Agreement and the only
employee bargaining representative, opposed the approval of the 2013 Agreement and
opposes the acceptance of either of Teys’ proposed undertakings and the approval of the
2013 Agreement with either of Teys’ proposed undertakings. The AMIEU provides a non-
employer view. Further, the “preferred” undertaking has an effect beyond that submitted, and
presumably intended, by Teys in that it changes the terms of the 2013 Agreement, whereas
Teys submitted “it does not change the terms of the 2013 Agreement at all”. And, the
“alternative” undertaking has consequences for some of the relevant employees, not all of
which would necessarily be regarded as advantageous to them and some of which may be
regarded as to their disadvantage, such as them not being permitted to undertake supervisory
tasks or responsibilities or workplace health and safety officer tasks or responsibilities for at
least three months. In the circumstances we think the balance of the considerations relevant
to the exercise of our discretion under either s.190(3) or s.190(2), including the FW Act’s
provisions allowing for the making of other enterprise agreements, is against us exercising our
discretion under s.190(3) of the FW Act to accept either of Teys’ proposed undertakings or
under s.190(2) of the FW Act to approve the 2013 Agreement with either of Teys’ proposed
undertakings.
[58] In support of their proposed undertakings Teys suggested that the concerns of the
majority of the FWC Full Bench in the 18 September 2014 decision arose from a drafting
error in the 2013 Agreement which error resulted in the 2013 Agreement not reflecting the
mutual intention of the parties. We referred to the evidence and material on the intentions of
the parties in our 18 September 2014 decision and the difficulties with that evidence and
material. That evidence and material does not support the notion that the 2013 Agreement is
affected by a drafting error as suggested by Teys.
[59] We add that the notion of the mutual intent of the parties as submitted by Teys is
problematic when, as here, an enterprise agreement is made with hundreds of employees and,
particularly, when the only employee bargaining representative opposed the enterprise
agreement being approved.
[60] We were also referred to decisions of the FWC in which enterprise agreements have
been approved with undertakings. However, those decisions have not persuaded us that we
should approve the 2013 Agreement with the undertakings proposed by Teys. The decisions
to which we were referred have turned on their particular circumstances and it is not apparent
that the circumstances relevant to those decisions align with those before us.
Conclusion
[61] Since the requirements in s.186 of the FW Act for FWC approval of the
2013 Agreement have not been met and we cannot, or we are not prepared to, approve the
2013 Agreement with either of the undertakings proposed by Teys, we dismiss the application
24
| to the FWC for approval of the 2013 Agreement. An order | to that effect is being issued at |
| the same time as this decision. | |
| SENIOR DEPUTY PRESIDENT |
[2014] FWCFB 8589
DECISION OF SENIOR DEPUTY PRESIDENT RICHARDS
[62] I concur with Senior Deputy President Acton and Commissioner Simpson in respect of
Teys’ application for adjournment of this matter. Other than in that singular respect, I have
nothing further to add to my reasoning in my decision of 18 September 2014.
SENIOR DEPUTY PRESIDENT
Appearances:
E. Dalgleish for The Australasian Meat Industry Employees Union.
C. Murdoch, counsel, for Teys Australia Beenleigh Pty Ltd.
Hearing details:
2014.
Brisbane:
November 26.
Printed by authority of the Commonwealth Government Printer
<Price code C AE407676 PR558396>
Endnotes:
1
The Australasian Meat Industry Employees Union v Teys Australia Beenleigh Pty Ltd, [2014] FWCFB 5643.
2
The Australasian Meat Industry Employees Union v Teys Australia Beenleigh Pty Ltd, PR555611.
3
Teys Australia Beenleigh Pty Ltd, [2014] FWC 2449 and Teys Australia Beenleigh Pty Ltd Production Departments
Enterprise Agreement 2013, [2014] FWCA 2453.
4
AE407676.
5
Fair Work Act 2009 (Cth), s.182(1).
6
Teys Australia Beenleigh Pty Ltd, [2014] FWC 2449 at [92] and Teys Australia Beenleigh Pty Ltd Production Departments
Enterprise Agreement 2013, [2014] FWCA 2453 at [3].
7
The Australasian Meat Industry Employees Union v Teys Australia Beenleigh Pty Ltd, PR555611.
8
Attachment to The Australasian Meat Industry Employees Union email to the FWC of 24 September 2014.
9
Ibid.
10
Teys Australia Beenleigh Pty Ltd v The Australasian Meat Industry Employees Union & Anor, QUD224/2014.
11
Australasian Meat Industry Employees Union, The v Teys Australia Beenleigh Pty Ltd, [2014] FWCFB 1313.
12
The Australasian Meat Industry Employees Union v Teys Australia Beenleigh Pty Ltd, PR548952.
13
Teys Australia Beenleigh Pty Ltd Production Departments Enterprise Agreement 2013, [2013] FWCA 7477.
14
Teys Australia Beenleigh Pty Ltd, [2013] FWC 7804.
15
Transcript in C2014/4178.
16
Written submissions of Teys Australia Beenleigh Pty Ltd in C2014/4178 dated 26 November 2014 at paragraph 12.
17
Transcript in C2014/4178.
[2014] FWCFB 8589
18
[2013] FCA 24.
19
Written submissions of Teys Australia Beenleigh Pty Ltd in C2014/4178 dated 15 October 2014 at paragraph 24.
20
[2012] FWAFB 2206.
21
Written submissions of Teys Australia Beenleigh Pty Ltd in C2014/4178 dated 15 October 2014.
22
Written submissions in reply of Teys Australia Beenleigh Pty Ltd in C2014/4178 dated 30 October 2014 at paragraph 15.
23
Written submissions of Teys Australia Beenleigh Pty Ltd in C2014/4178 dated 15 October 2014.
24
The Australasian Meat Industry Employees Union v Teys Australia Beenleigh Pty Ltd, PR558667.
6
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