The Northcott Society
[2021] FWCA 3854
•5 JULY 2021
| [2021] FWCA 3854 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
The Northcott Society
(AG2021/3943)
NORTHCOTT ENTERPRISE AGREEMENT 2021 – 2023
Social, community, home care and disability services | |
COMMISSIONER WILSON | MELBOURNE, 5 JULY 2021 |
Application for approval of the Northcott Enterprise Agreement 2021 - 2023.
[1] In a decision dated 28 May 2021, I found that I could not be satisfied there was genuine agreement for the making of the Northcott Enterprise Agreement 2021 – 2023 (the Agreement) because of three errors identified in the decision (referred to as the First Decision). 1 I indicated in the decision that is was my preliminary view that each error was of the type that may be the subject of an exercise of discretion by the Commission under s.188(2) of the Fair Work Act 2009 (the Act).
[2] The same decision also found that otherwise the statutory criteria for approval of the agreement had been met, subject to receiving undertakings from the Applicant, The Northcott Society (Northcott) pursuant to s.190.
[3] The errors identified may be summarised in the following way:
1. In relation to up to 90 casual employees:
a. the possible failure to provide them with the information required by s.180(2) (referred to in this decision as the Information Provision Error);
b. the failure to include the employees in Northcott’s request under s.181 to the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it (referred to as the Voting Request Error); and
2. An inaccuracy within Northcott’s explanatory materials on the subject of travel expenses and its assertion that a relevant State Award had no equivalent provisions (referred to as the Inaccurate Explanatory Materials Error).
[4] Each party was given an opportunity to provide submissions and other material about my preliminary view. Each of the Community and Public Sector Union (CPSU) and Northcott provided written submissions. Since no party sought to be heard on the subject these residual matters have been determined by me on the papers.
[5] Further each bargaining representative was invited to provide their views about the suitability of the undertaking submitted by Northcott in the course of the consideration of steps prior to the earlier decision. No bargaining representative expressed a view about the undertakings.
[6] The submissions provided by the CPSU contest whether the errors relating to the 90 casual employees are of the type for which a discretion may be exercised under s.188(2) however accept that the Inaccurate Explanatory Materials Error is of a type contemplated in the section. Northcott’s submission advocated genuine agreement could be established under the section for each of the identified errors.
[7] The findings made about each of the errors in the first decision include the following:
• Information Provision and Voting Request Errors
“…Northcott was in error in excluding from the vote for the agreement up to 3 employees on long-term workers’ compensation absences and 87 casual employees solely on the basis that they did not work during the Access Period and were not, as at 28 January 2021, rostered to work during the Voting Period.” 2
This had two consequences:
“• First, I am not satisfied all employees were provided with the information required by s.180(2) or notified of the voting arrangements as required by s.180(3) or had the terms of the agreement and the effect of those terms explained to them (s.180(5)). In these regards, I note that it may be the case that ALL Northcott employees were provided with this information, and that the group of 90 casual employees excluded from voting nevertheless received the information, however the evidence on the subject is incomplete.
• Second, I am not satisfied all employees were requested to approve the agreement by voting for it since up to 90 casual employees were excluded.” 3
• Inaccurate Explanatory Materials Error
• An information document provided to employees near to the start of the Access Period incorrectly stated there were no equivalent award provisions for a travel allowance. 4
The Information Provision and Voting Request Errors
[8] The CPSU submit that neither the Information Provision Error or the Voting Request Error are of the type to which s.188(2) may apply. The focus of the union’s submissions was that neither could be characterised as minor errors and that each may be found to result in disadvantage to the employees covered by the Agreement. Northcott submitted that each error was unintentional and capable of being found to be of the type contemplated in the section.
[9] The matters under consideration in this decision relates to the discretion provided to the Commission under s.188, the terms of which are thus:
“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.”
[10] The Full Bench found in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 5 (Huntsman) that s.188 had broad effect, noting the provision followed a Productivity Commission recommendation on the subject:
“[28] The enactment of s.188(2) had its genesis in Recommendation 20.1 of the Productivity Commission’s Workplace Relations Framework, Final Report which states:
‘The Australian Government should amend the Fair Work Act 2009 (Cth) to:
• allow the Fair Work Commission wider discretion to overlook minor procedural or technical errors when approving an agreement, as long as it is satisfied that the employees were not likely to have been placed at a disadvantage because of an unmet procedural requirement.
• extend the scope of this discretion to include minor errors or defects relating to the issuing or content of a notice of employee representational rights.’
[29] The Productivity Commission made the following comments in relation to Recommendation 20.1:
‘In cases where an undertaking is not feasible or would cause undue inconvenience, the FWC should have the discretion to determine whether a procedural defect did not materially affect the bargaining or approval process and therefore does not require an undertaking to remedy it. The key test for exercising discretion could be that the FWC is satisfied that employees were not likely to have been placed at a disadvantage during bargaining or the pre-approval process because of the unmet procedural requirement. The FWC should also have regard to the likely costs to the parties — including the employees — associated with further delaying approval of the agreement. To help maintain consistency and transparency for all parties, the FWC could develop and publish guidelines about how members should exercise their discretion with respect to procedural defects.
The goal of this proposed change is to resolve procedural inflexibilities and prevent minor procedural errors or defects in the bargaining process derailing an otherwise fundamentally sound agreement at the approval stage. Numerous inquiry participants, primarily employers and employer groups, were supportive of such a change. The capacity for the FWC to overlook minor procedural defects is also not without precedent — s. 461 of the FW Act currently allows a protected action ballot order (chapter 27) to be valid even if where there is a ‘technical breach’ of the provisions.
Allowing the FWC the discretion to overlook a procedural defect without an undertaking should not be seen as an avenue to allow some employers to skirt procedural requirements in order to gain an edge during bargaining. Employers generally do not have an incentive to expose themselves to the FWC over procedural issues. It is also unlikely that a deliberate procedural error by an employer would both lead to a meaningful advantage in bargaining and yet also escape the scrutiny of the FWC.’
[30] It is apparent from the extrinsic material that s.188(2) was enacted in response to the Productivity Commission’s Recommendation 20.1. The Revised Explanatory Memorandum states the following in its overview of the amendments to s.188:
‘The PC Report recommended that the FWC should be able to overlook minor procedural or technical errors when approving an enterprise agreement, if it is satisfied that employees were not likely to have been disadvantaged by those errors. The PC Report also recommended that this be extended to the requirements relating to the Notice given under subsection 173(1) (Recommendation 20.1).” (endnotes omitted)
[11] The matters within s.188(2) operate sequentially and in a confined manner:
“[35] We note at the outset that ss.188(1) and (2) are to be approached sequentially, that is to say the first question is whether the Commission is satisfied as to the matters at s.188(1)(a)–(c). If the Commission is so satisfied then the agreement has been genuinely agreed, and there is no need to consider s.188(2). The sequential nature of the approach to be taken is evident from the numbering of the subsections and the use of the expression ‘has also been’ in the prefatory words of s.188(2) and the expression ‘would have been … but for’ in s.188(2)(a), which make it clear that s.188(2) provides an alternate pathway to that in s.188(1).
[36] It follows that s.188(2) is confined in its terms to circumstances where the Commission is not satisfied that an agreement has been genuinely agreed to within the meaning of s.188(1), as a result of ‘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’. There is no express reference in s.188(1) to ss.173 and 174; rather, Commission authorities establish that strict compliance with the NERR timing and form and content requirements in ss.173 and 174 is necessary in order to meet the requirements ‘mentioned in paragraph (1)(a) and (b)’ of s.188(1).
[37] The important point for present purposes is that s.188(2) is engaged only where the Commission would have been satisfied that an agreement was ‘genuinely agreed’ to within the meaning of s.188(1) ‘but for’ errors made in relation to the ‘particular bargaining provisions’ mentioned in paragraphs (1)(a) or (b) (or ss.173 and 174). Section 188(2) does not extend to circumstances where the Commission is not satisfied that an agreement was genuinely agreed to in a more general sense, as might arise in considering s.188(1)(c).
[38] The reference to the ‘employees covered by the agreement’ in ss.188(1) and (2), is a reference to those employees employed and covered by the agreement at the time of the request to vote under s.181.” 6 (endnotes omitted)
[12] When it comes to an exercise of discretion the Commission must be satisfied of both matters in s.188(2) with the requirements of s.188(2) (c) and (b) and the matters therein being cumulative requirements. 7 After an analysis of the purpose of s.188(2) the Full Bench in Huntsman rejected the proposition the provision may only be used in relation to unintentional errors and considered the section may also apply to intentional acts:
“[74] As mentioned earlier, the determination of whether an error constitutes a ‘minor error’ within the meaning of s.188(2) calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which was not complied with and the relevant circumstances. Table 2 below (extracted from ACCI’s written submission at [61]) examines each of the procedural or technical requirements, considers the underlying purpose of these requirements and outlines some ways in which employees might be disadvantaged by a minor technical or procedural error.”
[13] So much of the Table 2 referred to in the passage above as is relevant to this decision is reproduced here:
Table 2:
Procedural or technical requirements covered by s. 188(2) and potential ways in which employees may be disadvantaged in relation to minor errors
Section | Procedural or Technical Requirement | Underlying Purpose of requirement | How might employees be disadvantaged? |
188(1)(a) | Comply with subsection 180(2) - take all reasonable steps to ensure that relevant employees are given the written text of the agreement and any materials incorporated by reference during the access period OR that the relevant employees are given access to these materials throughout the access period | To ensure employees have a reasonable chance to make an informed decision when voting | In the circumstances employees may not have had effective access to materials or insufficient time to consider them to make an informed decision when voting |
Comply with subsection 180(3) - take all reasonable steps to notify the relevant employees of the time, place and method of vote, prior to the start of the access period | To ensure employees are able to attend and participate in the voting process (should they choose to do so) | In the circumstances employees might be unaware of the voting process occurring thus preventing them from effectively participating in the voting process | |
Comply with subsection 180(5)(a) - take all reasonable steps to the terms of the agreement and their effects are explained to the relevant employees | Ensure that employees understand the effect of the agreement that is to be voted on, enabling them to make an informed decision | In the circumstances the steps may have been taken such that the employees might not be in a position to make an informed decision about the terms of the agreement upon which they are eligible to vote | |
Comply with subsection 180(5)(b) - take all reasonable steps to ensure the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees | Ensure that particular classes of employees are able to understand the agreement not withstanding any particular circumstances or needs | In the circumstances the employees may have received the explanation in a language they do not speak thus they may not be in a position to make an informed decision when voting | |
| Comply with subsection 181(2) - the employer must not request that the employees approve a proposed agreement until at least 21 days after the day on which the last NERR is given | To provide the employees with a minimum period of time for the bargaining process to occur before voting on an agreement | In the circumstances the period is cut short preventing the employees from effectively appointing bargaining representatives and participating in genuine good faith bargaining | |
188(1)(b) | The agreement must be made in accordance with subsection 182(1) or (2) |
(NOTE: rows relating to ss.173 and 174 have been omitted).
[14] The CPSU notes the Information Provision Error is procedural 8 and argues it is not of the type to which s.188(2) may apply:
“8. Whether an incidence of non-compliance is characterised as a ‘minor error’ also depends on the nature of the requirement which has not been complied with. For example, the need to inform employees of the time and date of the vote (s.180(3)(a)) is more significant than informing them of the ‘voting method’ (s.180(3)(b)) – the first requirement may impact on the employees’ capacity to participate in the voting process, the second may not.”
[15] Further it argues that being deprived of access to the material referred to is a substantial disadvantage for employees to make an informed decision when voting. 9
[16] The CPSU argues about the Voting Request Error that failing “to afford the 90 employees a right to vote was not a minor error” and “this is not a matter that can be cured by s188(2). Disenfranchising such a large number of employees cannot be considered a minor procedural or technical error within the meaning of s188(2)(a). It is a substantial error.” 10 With reference to the Revised Explanatory Memorandum to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 (Cth), the CPSU argues:
“20. Again, by reference to the extract of the Revised Explanatory Memorandum the failure to afford employees the right to vote is not contemplated in the examples of minor errors provided in the Explanatory Memorandum. The denial of the right to vote is by contrast with those examples clearly not a minor error.
21. Nor is the failure to afford the right to vote to employees contemplated in the comprehensive account of the type of minor or procedural and technical errors identified by the Full Bench in Huntsman. It is, to adopt the wording of the Full Bench a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights.
22. As the Full Bench in Huntsman pointed out, whether an error is a minor error will also depend on the nature of the requirement that has not been complied with by reference to the objects of the requirements.
The right to vote on an enterprise agreement is fundamental to the agreement making process. An agreement cannot be made unless a vote of employees occurs (s182(1)). Each of the pre-approval requirements in s180 are predicated on, and in preparation for, the relevant employees voting to approve the agreement. This suggests that the exclusion of a large number of relevant employees from the voting process cannot be considered a minor procedural or technical error.”
[17] In these regards the CPSU argues there is no fairness in denying a “large number of employees the right to vote on a proposed agreement”. 11 Neither will such denial promote the legislative objective confirmation of harmonious and cooperative workplace relations. Ignoring the rights of a large number of employees will instead promote disharmony,12 with it also submitting:
“25. Further, the denial of a right to vote on the agreement disadvantaged the 90 employees who will be covered by the agreement. There was a clear disadvantage to those employees who were denied that right in being able to exercise a right in bargaining to vote on whether they approved the agreement. This factor is relevant both s188(2)(a) and (b): the question of whether the applicant’s failure was minor, and whether, if the Commission was satisfied that it was minor, whether it disadvantaged employees.”
[18] Northcott rejects the contentions that neither of the Information Provision or Voting Request Errors are unfair or other than minor. It argues the Commission’s findings in the First Decision were not of “90 employees [having] been denied the right to vote” with it instead being the case that “this characterisation ignores the Commission's findings and observations about the circumstances in which these errors arose. In particular, that the Commission's findings are in the nature of identifying "possible" errors and not being satisfied that there is sufficient evidence to conclusively determine whether or not up to 90 eligible employees were excluded.” 13
[19] The submission is made that these matters flow from unintentional errors on Northcott’s part with the errors being of the type to which s.188(2) applies:
“21. Further, these were unintentional errors, that arose from:
(a) the complexities associated with applying the test for determining eligibility of casual employees to vote on an Agreement; and
(b) the "obvious practical difficulties" in seeking to meet the requirements of sections 180 and 181 of the FW Act where Northcott employs significant numbers of casual employees and operates various roster systems.
22. When the circumstances by which the casual employee errors arose and the circumstances of Northcott's business are considered as a whole, we submit that the Commission's preliminary view that the casual employee errors are of the type to which section 188(2) applies is correct and is in keeping with the principles set out in Huntsman.” 14
[20] Northcott also argue it is unknown how many of 90 casual employees may have been eligible to vote and that the focus of the Commission’s attention should not be on that number but instead the provisions of s.188(2)(b) which invites a broader question to be answered, namely of whether “the employees covered by the agreement were not likely to have been disadvantaged by the errors”. 15 It argues with reference to the voting outcome there was no such disadvantage:
“24. The Agreement was made on 10 February 2021 when voting for the Agreement concluded with a clear majority of those who voted voting in favour of making the agreement. Of the 1,870 employees who voted in the ballot, 1,087 voted to approve the Agreement – a margin of 304 votes.
25. In that regard, the Commission referred to the decision in SDA at paragraph [43] and observed that "[e]ven if all 90 of the affected employees were given an opportunity to vote and did so, voting against the making of the Agreement, it would still have been made."
26. The Full Bench in Huntsman made clear that ‘likely’ in section 188(2)(b) means ‘probable’ in the sense that there is an odds-on chance of it happening, rather than merely being some possibility of it happening. The word ‘disadvantaged’ suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the FW Act.
27. As noted by the Commissioner at [79] of the Decision, even if it is assumed that all 90 employees were eligible to vote and voted against the Agreement, the Agreement would still have been made. Neither those 90 employees nor the rest of the employees covered by the Agreement would be in any different position if the errors had not occurred. That is, the employees covered by the Agreement were not likely to have been disadvantaged by the casual employee errors.” 16
[21] In considering the errors it is noted about the Information Provision Error that there is uncertainty in the evidence as to whether the information required to be provided to employees under s.180(2) was actually provided. 17 The evidence is ambiguous; the information may have been provided to every employee of Northcott whether or not they were eligible to vote, or it might not.
[22] Pertinent to the Voting Request Error it is also the case that the Commission has insufficient information or evidence to determine which of the 90 identified casual employees were eligible to vote. The number might be 90 or 0 or anywhere in between. 18
[23] Section 188(2) enables a finding of genuine agreement if the Commission is satisfied of two matters, referred to in Huntsman as cumulative requirements. First the Commission must be satisfied that the agreement would have been genuinely agreed but for minor procedural or technical errors amongst other things in relation to the requirements in ss.188(1)(a) or (b). The first mentioned of those subsections refers to the preapproval steps set out in ss.180(2), (3) and (5) and the requirement to request employees to approve the agreement provided for in s.181(2). Secondly the finding in respect of s.188(2)(a) must be supported by the further finding that the employees covered by the agreement were not likely to have been disadvantaged by the errors.
[24] The first of the errors, the Information Provision Error, is that Northcott might not have provided the required information to all eligible employees. The circumstances by which the error came about (if it did) was the likely imprecision on Northcott’s part about which of its casual employees were employed at the time and who would be covered by the agreement. It potentially failed to consider the employees as covered and then may not have provided them with the requisite information. As noted, the evidence on the subject is ambiguous as well as there being none on the subject of the effects of this part of the error.
[25] The Voting Request Error came about for the reasons set out in the First Decision which again may be summarised as an imprecision on Northcott’s part as to who was eligible to vote. The error was not that 90 eligible employees were not requested to vote, since that is not the evidence. Instead, the error is that Northcott was imprecise about who was eligible to vote with the consequence of the error being that up to 90 employees were eligible to vote but were not requested to do so.
[26] Determination of whether an error is minor within the meaning of s.188(2) requires an evaluative judgement “having regard to the underlying purpose of the relevant procedural or technical requirement which was not complied with and the relevant circumstances”. 19
[27] Despite the seriousness of the matter, it is not the case that a finding may be made that Northcott’s imprecise decision making was intentional. While its procedures to ascertain which of its casual employees were eligible to vote were flawed it is not the case those procedures were intentionally directed to not allowing certain people to vote. Rather than this being a situation in which it could be said there was a manipulation of decisions and events in order to remove some employees from voting, Northcott’s decisions were directed to establishing a roll of voters who had some cogent claim of being one of the “employees employed at the time who will be covered by the agreement”, being the text in both ss.180(2)(a) and 181(1).
[28] The provisions require an employer to form at least three opinions about each person; are they “employed”? Are they employed “at the time”? Will they be covered by the agreement? The nature of the questions involves ascertainment of facts for each person about the past, the present and the future.
[29] Northcott’s preparation and decision-making failed to achieve the goal of identifying which employees had a claim to be an eligible employee by not preparing well enough or early enough for the compilation of the roll. It then did not delve far enough into the circumstances of the employees it proposed to exclude and test whether such was reasonable. The consequence of these matters is that it did not have clear visibility by the time it invited voting participation of who was and was not entitled on its analysis to vote. Its decision-making on those matters may be criticised as incomplete and insufficiently considering of unintended consequences, but not as reckless or with an intention to exclude eligible employees from voting.
[30] The underlying purpose of s.180(2) and (3) and s.181 is summarised in Huntsman in the Table 2 extract set out above. Sections 180(2) and (3) are intended to ensure employees may have a reasonable chance to make an informed decision when voting and that they may participate in the voting process if they choose to do so. The purposes of these sections are not absolute – employees may have a chance to make an informed decision and may, but do not have to, participate in the vote. Section 181 ensures employees are given a minimum period of time for the bargaining process to occur before being asked to vote on the agreement. The purpose of each section must also be viewed through the lens of who it is the employer’s obligation is in reference to – namely only those employees “employed at the time who will be covered by the agreement”. Notably, the sections do not include a purpose of ensuring either that everyone who has some claim of being an employee is informed and given a vote, or of ensuring only that each person employed on the first day of the vote has an opportunity to vote.
[31] In Huntsman the Full Bench made clear that the description of whether an error is minor would require consideration of all the circumstances:
“7. Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a ‘minor error’. For example, informing the employees of the matters in ss.180(3)(a) and (b) just after the start of the 7 day access period (say 6 days before the start of the voting process) is likely to be a ‘minor error’ in most cases. But it will depend on the circumstances. If it is the first agreement at the enterprise; the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a ‘minor error’. Conversely, only informing the employees of the time and place at which the vote will occur some 4 days before the voting process starts may be a ‘minor error’ where there is a history of bargaining at the enterprise; the agreement is, in effect, a ‘roll over’ agreement; the employer takes further active steps to remind employees of the time and date of the vote; and a high proportion of employees actually vote.
8. Whether an incidence of non-compliance is characterised as a ‘minor error’ also depends on the nature of the requirement which has not been complied with. For example, the need to inform employees of the time and date of the vote (s.180(3)(a)) is more significant than informing them of the ‘voting method’ (s.180(3)(b)) – the first requirement may impact on the employees’ capacity to participate in the voting process, the second may not.
9. Some species of error are unlikely to be classified as ‘minor’, for example the deletion of the prescribed text of the NERR which deals with an employee’s right to appoint a bargaining representative and the role of the unions as the default bargaining representatives. But, again, it may depend on the circumstances (see paragraphs [77] - [78] above).” 20
[32] I am satisfied from the circumstances of the matter that Northcott’s Information Provision and Voting Request Errors were minor. The non-compliance was unintentional and the product of the combination of high casual workforce, the fact that not all rosters were constant, and less than certain management of the process by which the voting roll was compiled. Northcott’s definition of who was eligible to vote was one solution to the imprecision cast by the terminology “employees employed at the time and who will be covered by the agreement” but by no means was that formulation the only possible form. In the end Northcott’s critical failure was not to enquire into the circumstances of the 90 casual employees and definitively determine the status of each. This was no mass disenfranchisement but one which led to a possible maximum of 90 employees not being provided with information and invited to vote. Northcott’s error in compiling the roll of voters was minor in the context of all the circumstances of the matter. For several reasons that task was always going to be challenging; it has a high casual workforce and it needed to make for each employee the three assessments indicated above. It operates several different rostering systems and does not have central visibility over them. Casual employees can be brought into work at short notice even if they do not appear on a forward roster. Northcott’s error had the consequence of not inviting up to 90 eligible employees; on the other hand, it assessed 711 casual employees to be eligible.
[33] The maximum of 90 employees who were not invited to vote is also to be compared not with the 1870 who did vote, but the 2448 who were covered. The vote to approve the agreement was carried with 1078 voting in its favour. The observation may be drawn from these facts that over 500 eligible employees who were invited to vote chose not to.
[34] The errors when made were not likely to have disadvantaged the employees covered by the agreement. Despite the flaws in its decision making Northcott was relatively assiduous in endeavouring to ensure all those it saw as being eligible to vote were invited to do so. It invited casual employees to participate in several tranches 21 and it may be drawn from the evidence that Northcott did so because it was trying to ensure participation in the vote in accordance with its parameters about eligibility. The ultimate errors arose because Northcott decided the 90 casual employees were not eligible but did not have a sufficiently sound basis to conclusively form that view. In the overall context of voting in a large organisation and a situation in which it cannot be found on the evidence that each of the 90 employees was an eligible voter, but merely that they possibly were, the error was not likely to disadvantage the employees covered by the agreement.
[35] Northcott’s decision-making could undoubtedly have been better. However, the decisions it took and the errors it made are not, within the purpose in mind of s.180(2) and (3) and s.181, such as to undermine its obligations or to cause large swathes of employees to not have the capacity to consider the proposed agreement and to then vote. In that regard, its errors may be found to be minor as too may be the consequences. Having regard to the voting and coverage numbers I am also satisfied that the employees covered by the agreement which, of course, is the broader number of 2448 identified by Northcott, were not likely to be disadvantaged by either the Information Provision or Voting Request Errors. These errors are therefore of the type contemplated s.188(2) and that a discretion may be exercised by the Commission allowing genuine agreement to be found notwithstanding the errors.
The Inaccurate Explanatory Materials Error
[36] The First Decision found that Northcott had provided inaccurate explanatory materials to employees in certain respects associated with travel expenses. The decision recorded:
• The CPSU’s submissions as including:
“c. Attachment 25A of the Respondent's Form 17 declaration, incorrectly states that there was no equivalent provisions relating to Travel (page 18) despite multiple provisions in the CSA in respect of Travel Compensation (Clause 26 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009), Excess Travel Compensation (Clause 27), Waiting Time (Clause 28), Meal Expenses (Clause 29) and particularly Allowance payable for use of a private vehicle (Clause 36).”
• Northcott’s response as including:
“On the matter of travel expenses, Northcott acknowledge that the relevant information to employees does not include reference to clauses 26 – 29 and 36 of the referenced State Award and submit it was an inadvertent omission. However, it submits that the provisions are addressed in another of its information materials …”
[37] I accept that the error as made was minor, appearing to have been something overlooked in the course of compilation of the explanatory material. It is unlikely that even if an employee perused the materials so forensically as to observe the statement that they would have been misled by it. I find therefore this error is a minor procedural or technical error and that employees covered by the agreement were not likely to have been disadvantaged by it.
CONCLUSION
[38] For the reasons set out above I am satisfied the Agreement is genuinely agreed within the meaning of s 188(2).
[39] As referred to in the First Decision a number of matters of concern on the Commission’s part were raised with Northcott in the preliminary consideration stages. In response to those matters Northcott provided submissions and written undertakings. A copy of the undertakings I proposed in the First Decision to accept from Northcott in response to my initial concerns are 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. The undertakings are taken to be a term of the agreement.
[40] Subject to these undertakings I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
[41] The Health Services Union, the Australian Nursing and Midwifery Federation and the Community and Public Sector Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.
[42] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 July 2021. The nominal expiry date of the Agreement is 24 February 2023.
COMMISSIONER
Final Submissions on genuine agreement: for the CPSU 4 June 2021.
Final Submissions on genuine agreement: for the Northcott Society 11 June 2021.
Printed by authority of the Commonwealth Government Printer
<AE512072 PR731295>
Annexure A
1 [2021] FWC 2964.
2 Ibid, [80].
3 Ibid, [91].
4 Ibid, [97].
5 [2019] FWCFB 318.
6 Ibid.
7 Ibid, [43].
8 Outline of Submissions of the CPSU on Section 188, 4 June 2021, [7].
9 Ibid, [12] – [15].
10 Ibid, [17].
11 Ibid, [23]
12 Ibid, [24].
13 Outline of Submissions on Behalf of the Northcott Society, 11 June 2021, [20].
14 Ibid.
15 Ibid, [23].
16 Ibid.
17 [2021] FWC 2964, [90].
18 Ibid, [76], 5th bullet point.
19 Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, [2019] FWCFB 318, [74].
20 [2019] FWCFB 318, [117].
21 See First Decision [2021] FWC 2964, from [55].
0