Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Queensland

[2020] FWC 3090

[2020] FWC 3090

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Queensland
(AG2018/5527)

COMMISSIONER WILSON MELBOURNE, 18 JUNE 2020

Application for approval of the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018.

[1] The Full Bench has remitted to me for determination a number of matters arising out of an appeal by the Australian Nursing and Midwifery Association (ANMF) against approval of an enterprise agreement named the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 (the Agreement). The ANMF’s appeal canvassed four grounds, of which Ground 3 was upheld by the Full Bench. That ground was summarised in the appeal decision thus:

“[21] The third ground contends that the Commissioner erred in approving the Agreement by:

•  accepting undertakings that substantially changed the Agreement, contrary to s.190(3)(b) of the Act;

•  accepting undertakings that caused financial detriment, contrary to s.190(3)(a) of the Act;

•  failing to consider the undertakings given to determine whether they addressed the disadvantage under the Agreement;

•  failing to consider whether the undertakings in the form finally given were sufficient to satisfy the better off overall test (BOOT); and

•  failing to consider whether the BOOT had been satisfied.” 1

[2] The appeal was upheld in part only in relation to Ground 3, in relation to what was the eighth undertaking, with the remitted matters broader than this ground:

“Conclusion

[131] For the reasons stated we would grant permission to appeal in respect of ground 3 and uphold the appeal in part on that ground. Consequently, we would quash the Approval Decision and remit the application for the approval of the Agreement to Commissioner Wilson to determine those matters which remain outstanding in relation to the application. In that determination, the second and third matters raised with the first Respondent during the hearing of the appeal recorded at PN237 - PN252 may also need to be considered.

Orders

[132] We order as follows:

1. Permission to appeal is granted in respect of appeal ground 3 of the notice of appeal;

2. Permission to appeal is otherwise refused;

3. The appeal is upheld in part on ground 3 of the notice of appeal;

4. The decision to approve the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 in [2019] FWCA 6559 is quashed;

5. The application for the approval of the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 is remitted to Commissioner Wilson for the purposes of:

a. considering any further undertaking that may be proffered by the first Respondent;

b. addressing the second and third matters raised with the first Respondent during the hearing of the appeal recorded at PN237 - PN252; and

c. determining whether the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 with any undertakings is to be approved.” 2

[3] The Full Bench’s findings in relation to appeal Ground 3 included that “[i]n accepting Undertaking 8 the Commissioner failed to take into account (despite what is said at [2] of the Approval Decision) a material relevant consideration, namely, whether the effect of accepting Undertaking 8 is not likely to cause financial detriment to any employee covered by the Agreement. Moreover, on the material available to the Commissioner it was not open to him for the reasons we have described above, to be satisfied that accepting Undertaking 8 is not likely to cause financial detriment to any employee covered by the Agreement.” 3

[4] The second and third matters raised with the first Respondent during the hearing of the appeal recorded at PN237 - PN252 may be best summarised as two of three matters discussed by the Full Bench in the course of the appeal hearing, being:

•  (the second matter) whether the provisions of the Agreement’s Clause 1.3.2 may have misled employees before they voted, with the clause incorrectly stating that three unions were “parties bound”; and

•  (the third matter) whether the Commission could be satisfied the Applicant took all reasonable steps to advise the employees of the date, place and method of voting for the Agreement.

[5] After the Full Bench decision was issued filing Directions were issued by me for the parties to provide such further submissions and evidence as they desired to be taken into account by me in re-determining the remitted matters. It was also indicated to the parties that a hearing would be programmed in the event either the Commission or one of the parties required a hearing, but that otherwise the matter would be determined by me on the papers.

[6] In response to the filing Directions the Applicant, Wesley Mission Queensland (WMQ), provided submissions about the matters involved in the remittal as well as revised undertakings and a further statutory declaration of Greg Burns as well as Pieta Town, WMQ’s Learning & Development Manager. The ANMF provided submissions which were then responded to with reply submissions from WMQ as well as further amended undertakings and a further statutory declaration of Mr Burns. WMQ did not seek to be heard in relation to these matters unless the ANMF so sought. While the ANMF initially sought to be heard on the matters they withdrew the application to be heard near to the programmed hearing date. For the reason that I did not require a hearing in relation to the remitted matters I indicated to the parties that the remitted matters would be determined by me on the papers.

[7] In the course of the ANMF’s submissions the union raised a further objection to the approval of the Agreement putting forward that the number of different statutory declarations provided by the Applicant in the whole course of these proceedings meant that they had not properly discharge their responsibilities to the Commission or taken their obligation as an Applicant seriously meaning that the Commission could not rely upon the material filed by the Applicant with the consequence being that the application should be dismissed.

[8] As a result of all of these matters there are four outstanding matters requiring determination in this decision:

•  Whether a further amended Undertaking 8 dealing with the subject of shift penalties may be accepted as not likely to cause financial detriment to any employee and may be accepted by the Commission;

•  Whether the Commission may be satisfied that employees were not misled by an incorrect parties bound clause;

•  Whether the Commission may be satisfied that employees were properly advised as to the date, place and method of voting; and

•  The effect of changes made to the Applicant’s evidence over the course of these proceedings.

[9] No party contended in these proceedings that the remaining undertakings, individually, in combination, or in total would cause financial detriment to employees, result in the better off overall test (BOOT) not being met, or should for other reasons not be accepted by the Commission.

Undertakings – weekend work and shift penalties

[10] Undertaking 8 in the form originally accepted by me was in these terms:

“8. That the following clauses be applied in substitution of clause 7.10 of the Agreement:

7.10.1 In respect of support employees whose classifications are covered by the Aged Care Award, such employees will be paid the following loading in addition to their base rate of pay where they work a relevant shift:

(a) Early afternoon shift commencing at or after 10am and before 12noon - 10%;

(b) Afternoon shift commencing at or after 12noon but before 6pm -12.5%;

(c) Night shift commencing at or after 6pm or before 6am the following day- 15%.

7.10.2 In respect of care employees whose classifications are covered by the SCHADS Award, such employees will be paid the following loading in addition to their base rate of pay where they work a relevant shift:

(a) For those employees employed prior to the commencement date of Agreement, afternoon shift starting on or after 2pm and before 6pm, or where the majority of hours fall between 2pm and 6pm - 12.5%; and

(b) For those employees employed on or after the commencement date of this agreement, afternoon shift starting on or after 12 noon and before 6pm - 12.5%;

(c) Night shift commencing at or after 6pm or before 6pm the following day, and where a majority of hours are worked between 6pm and 6am - 15%

7.10.3 Where an employee works an equal number of hours in any combination of day, afternoon or night shifts in a single engagement, the applicable penalty shall be determined in accordance with the time the shift commenced.

7.10.4 These allowances are not payable when penalty payments apply to weekend work as described in clause 7.9 nor work on public holidays as described in clause 8.2” (underlining added)

[11] The conclusion reached by the Full Bench was that the material originally before the Commission did not allow that acceptance of the undertaking was not likely to cause financial detriment to any employee covered by the Agreement. In the proceedings now before the Commission, WMQ submitted that it understood the concern about the undertaking:

“related to a disadvantage that would be suffered by employees covered the Aged Care Award who began work after 10am, but who worked a majority of hours between noon and 6pm, and who were employed prior to the commencement of the Agreement. Under the original form of the 2018 EA, those employees would have been entitled to receive a 12.5% loading for that shift, rather than the 10% loading provided for by the undertaking.” 4

[12] It proposed a revised undertaking which “provides that employees who are covered by the Aged Care Award will become entitled to the 12.5% loading in respect of any shifts on which they commence work at 10am and before 6pm”. 5 It then proposed no changes to the remainder of the undertaking.

[13] The ANMF’s initial response to this change on the part of WMQ was to oppose the change as inadequate, but only in a relatively technical and not substantive sense. After submitting that the amended undertaking resolved some of the union’s concerns, it appeared to the union to create another:

“4. Our only concern with the new undertaking quoted above is that it refers to a “…shift allowance referred to in clause 7.10.1(c)” when clause 7.10.1(c) of ‘the Agreement’ does not refer to a “shift allowance”. Rather:

a) clause 7.10.1(c) of ‘the Agreement’ provides “Afternoon shift workers shall be paid an additional 12.5% for each shift of ordinary hours” and;

b) the heading of clause 7.10.1 is “Afternoon Shift - Penalty Payment”.

5. While some industrial instruments refer to similar payments as “shift allowance”, ‘the Agreement’ does not. The undertaking thereby creates ambiguity, or worse, that should be avoided.” 6

[14] The ANMF then suggested a way through the problem it had identified:

“If an undertaking was given by the applicant in the following terms, we would accept it:

That employees who:

a) are covered by the Aged Care Award 2010, and;

b) commence work on or after 10am and before 6pm;

shall be paid an additional 12.5% for each shift of ordinary hours.” 7

[15] In its reply submissions WMQ adopted the formulation proposed by the ANMF.

[16] Neither WMQ nor the ANMF have made submissions regarding how the final form of the undertaking may assist in the Commission being satisfied the Agreement passes the better off overall test.

[17] As originally drafted Undertaking 8 modified the operation of the Agreement’s Clause 7.10 which provides for afternoon and night shifts and the applicable penalties. That clause in turn established a different scheme to the arrangements provided for either within the Aged Care Award 2010 (with shift work arrangements being provided for within Clause 26) or the Social, Community, Home Care and Disability Services Industry Award 2010 (Clause 29).

[18] Undertaking 8 as now drafted only applies to employees who are covered by the Aged Care Award 2010. The question of financial detriment likely to be caused by the undertaking therefore only arises in relation to the Aged Care Award 2010.

[19] Clause 26 of the Aged Care Award 2010 is in these terms:

“26. Shiftwork

[Varied by PR995161]

26.1 Shift allowances and penalty rates

[26.1 varied by PR995161 ppc 23Mar10]

Employees working afternoon or night shift will be paid the following percentages in addition to the ordinary rate for such shift. Provided that employees who work less than 38 hours per week will only be entitled to the additional rates where their shift commence prior to 6.00 am or finish subsequent to 6.00 pm.

(a) Afternoon shift commencing at 10.00 am and before 1.00 pm—10% of the ordinary hourly rate

(b) Afternoon shift commencing at 1.00 pm and before 4.00 pm—12.5% of the ordinary hourly rate

(c) Night shift commencing at 4.00 pm and before 4.00 am—15% of the ordinary hourly rate

(d) Night shift commencing at 4.00 am and before 6.00 am—10% of the ordinary hourly rate

[26.2 inserted by PR995161 ppc 23Mar10]

26.2 An employee entitled to a shift allowance under clause 26.1, will be paid the shift allowance for the entire shift.

[26.3 inserted by PR995161 ppc 23Mar10]

26.3 For the purposes of clause 26.1, “ordinary hourly rate” means the appropriate weekly rate divided by 38.” 8

[20] Clause 7.10 of the Agreement is in these terms:

“7.10. Afternoon and Night Shifts - Penalty Payment

7.10.1. Afternoon Shift - Penalty Payment

(a) For all employees employed prior to the commencement date of this agreement, afternoon shift means a shift commencing at or after 2.00pm but before 6.00pm, or where the majority of hours fall between 2.00pm and 6.00pm.

(b) For all employees employed on or after the commencement date of this agreement, afternoon shift means a shift commencing at or after 12 noon but before 6.00pm.

(c) Afternoon shift workers shall be paid an additional 12.5% for each shift of ordinary hours.

7.10.2. Night Shift - Penalty Payment

(a) Night shift means a shift commencing at or after 6:00pm or before 6:00am the following day, and where the majority of hours are worked between 6:00pm and 6:00am.

(b) Night shift workers shall be paid an additional 15% for each shift of ordinary hours.

7.10.3. Where an employee works an equal number of hours in any combination of day, afternoon or night shifts in a single engagement, the applicable penalty shall be determined in accordance with the time the shift commenced.”

[21] So far as matters of “financial detriment” may be concerned, what flows from these terms is the following:

•  The Aged Care Award 2010 provides for a cascading set of penalty payments for shift work the payment of which will depend upon the time a person commenced work but with the general proviso that a person who works less than 38 hours per week will only be entitled to penalty rates where their shift commences prior to 6 am or finishes subsequent to 6 pm. In all cases percentage penalty rates are applied to the “ordinary hourly rate” defined as the appropriate weekly rate divided by 38. Beyond those matters, the arrangements in the Award may be summarised thus:

•  For a shift commencing:

•  at 4 am and before 6 am – 10%

•  at 6 am and before 10 am – no penalty is stated

•  at 10 am and before 1 pm – 10%

•  at 1 pm and before 4 pm – 12.5%

•  at 4 pm and before 4 am – 15%

•  The Agreement also provides for a cascading set of penalty payments for shift work with different arrangements applying to people employed prior to the commencement date of the Agreement and those employed afterwards. The arrangements include the following:

•  Employees employed prior to the commencement date of the Agreement:

•  Shift commencing at 6 am and before 2 pm – no penalty is stated

•  Shift commencing at or after 2 pm but before 6 pm – 12.5%

•  Otherwise, if the majority of hours are between 2 pm and 6 pm – 12.5%

•  Shift commencing at 6 pm and before 6 am – 15%

•  Employees employed after the commencement date of the Agreement:

•  Shift commencing at 6 am and before 12 pm – no penalty is stated

•  Shift commencing at or after 12 pm before 6 pm – 12.5%

•  Shift commencing at 6 pm and before 6 am – 15%

[22] The operation of the above would be modified through the operation of Undertaking 8, which provides a 12.5% penalty rate to those employees whose employment is covered by the Aged Care Award 2010 and who commence work at or after 10 am and before 6 pm. Without the undertaking, an employee employed under the Agreement commencing work at 11 am would not receive a shift loading, whether or not they are a new employee. The same employee starting work at 11 am would receive a 10% penalty if they worked under the Award.

[23] Accepting the Agreement as drafted together with Undertaking 8 potentially ensures Aged Care Award employees working shift work have the same or better penalty rate arrangements than would be provided by the Award, but with two exceptions. I am satisfied that other than the two exceptions to be referred to by me shortly that Undertaking 8 as amended resolves the concern held that the original form of the undertaking would cause financial detriment to employees. The original form of the undertakings set out above crucially restricts application of the undertaking’s penalties by stating that the allowances “are not payable when penalty payments apply to weekend work as described in clause 7.9 nor work on public holidays as described in clause 8.2”. The resubmitted Undertaking 8 does not contain such a restriction.

[24] Nonetheless, considered analysis of the resubmitted Undertaking 8 shows two potential financial detriments. The two situations are for Aged Care Award employees who commence their shift at or after 4 pm and before 6 pm (referred to by me as Early Night Shift Employees) or employees who commence their work in the early morning, before 6 am and who do not work a majority of hours before 6 am (referred to me as Early Morning Shift Employees).

[25] The first situation, of Early Night Shift Employees arises because if such an employee worked under the Aged Care Award they would be paid as a night shift employee and eligible for a 15% penalty since they would be engaged in a “shift commencing at 4 pm and before 4 am” (Clause 26.1(c)). In contrast and working under the Agreement, the same employee would not be a night shift employee, since that requires an employee to work “a shift commencing on or after 6 pm or before 6 am” together with the requirement that the majority of hours be worked within the range (Clause 7.10.2). Instead, under the Agreement the employee would be an afternoon shift employee, whether or not employed prior to or after the commencement of the Agreement. As an afternoon shift employee, they would be entitled to a 12.5% penalty (Clause 7.10.1 (c)). In contrast night shift employees are paid a 15% penalty under both the Award and the Agreement.

[26] The second situation is that of an Early Morning Shift Employee, involving a person working under the Agreement starting before 6 am and who does not work a majority of their hours between 6 pm and 6 am. In this case the employee would not be a night shift employee under the Agreement as modified by Undertaking 8, for the reason that the majority of their hours worked would not be between 6 pm and 6 am. Under the Award, such an employee would be classified as a night shift employee if they commenced work at 4 am and before 6 am and thereby entitled to a 10% penalty (Clause 26.1 (d)).

[27] Under the Agreement, an employee starting at 4 am and before 6 am would be entitled to overtime (Clause 3.2(i) and 7.6.1(a)). Depending on the configuration of hours, the Agreement may result in a more or less favourable outcome for the employee. For example, an employee starting at 5 am working 4 hours on a day Monday to Friday would be paid 1 hour at time and a half and 3 hours at single ordinary time under the Agreement (equivalent to a total payment of 4.5 hours pay). The same employee working under the Award would be entitled to 4 hours at 110%, equating to a total payment of 4.4 ordinary hours. However, an employee working starting at the same time (5 am) and working 6 hours in total on a day Monday to Friday would be entitled to the equivalent of 6.5 hours payment under the Agreement and 6.6 hours under the Award.

[28] The importance of these matters is highlighted by the marginal differences in hourly wages between the Aged Care Award and the Agreement. The wages premium offered by the Agreement is progressively larger as the Agreement’s classifications reflect higher skill levels. However, at the lower end of the classifications scale the hourly wages premium may be insufficient to compensate an Early Night Shift Employee or an Early Morning Shift Employee for the different shift penalty arrangements described above.

[29] Financial detriment for an Early Night Shift Employee comes about because all ordinary hours worked under the Agreement would be paid with a penalty of 12.5% whereas under the Award the penalty would be 15%. The situation does not differ according to the time the employee starts, other than the start time being in the range of 4 pm to 6 pm, or the length of their engagement. As a result, the possibility of financial detriment will likely be more acute at the lower classification levels where the premium between the Agreement base wage rates and the Award rates is smaller. In particular, employees paid at CRE Levels 2.1 and 2.2 would not be better off if they worked an Early Night Shift under the Agreement. Employees at those levels would be paid the following amounts for an eight-hour shift starting at 4:15 pm if worked in ordinary hours Monday to Friday:

Agreement Classification	Award Classification 9	Award wages (per week and per hour)		Agreement – hourly rates from Oct. 2019	Agreement – 8 hours at 112.50%	Award – 8 hours at 115%	Difference
CRE Level 2.1	Aged care employee - Level 2	$820.20	$21.58	$22.00	$198.00	$198.57	- $0.57
CRE Level 2.2	Aged care employee - Level 3	$852.40	$22.43	$22.51	$202.59	$206.37	- $3.78

[30] At CRE Level 2.3 and above the margins are sufficient for them not to be a BOOT concern with a 12.5% penalty applied for work associated with a shift commencing between 4 pm and 6 pm.

[31] The situation for Early Morning Shift Employees is different.

[32] The structure of the different arrangements under the Agreement and the Award means that an employee working under the Agreement and starting before 6 am is entitled to payment of the time before 6 am as overtime and for the first three hours be paid at the rate of time and a half. The work performed after 6 am by the same employee would be paid at the unloaded ordinary time rate. However under the Award, such employee would be entitled to a 10% penalty for all of their work in ordinary time if commenced between 4 am and before 6 am. Because of the way these matters operate the greatest notional detriment would be for an employee who started work very close to 6 am, but nonetheless before 6 am. An employee working under the Agreement starting, say at 5:45 am, could find the overtime payment they may be due is insufficient to make up for the fact they do not receive 10% penalty loading for the whole shift.

[33] Again, the situation is more acute towards the lower ends of the classifications scale, however it appears to involve more classifications than the Early Night Shift circumstance. In particular financial detriment is indicated for each Agreement classification from CRE Level 2.1 up to and including CRE Level 3.1. The example shown here assumes a 5:45 am start with the employee working 5 hours:

Agreement Classification	Award Classification	Award wages (per week and per hour)		Agreement – hourly rates from Oct. 2019	Agreement – 5.45 am start; 5hours worked					Award – 5.45 am start, 5 hours worked
					0.25 hours OT a 150%	4.75 hours at 100%	Total Pay under Agreement	5 hours at 110%	Difference
CRE Level 2.1	Aged care employee - Level 2	$820.20	$21.58	$22.00	$8.25	$104.50	$112.75	$118.71	-$5.96
CRE Level 2.2	Aged care employee - Level 3	$852.40	$22.43	$22.51	$8.44	$106.92	$115.36	$123.37	-$8.01
CRE Level 2.3	Aged care employee - Level 3	$852.40	$22.43	$23.05	$8.64	$109.49	$118.13	$123.37	-$5.24
CRE Level 2S	Aged care employee - Level 3	$852.40	$22.43	$24.00	$9.00	$114.00	$123.00	$123.37	-$0.37
CRE Level 3.1	Aged care employee - Level 4	$862.50	$22.70	$24.07	$9.03	$114.33	$123.36	$124.84	-$1.48

[34] The product of this analysis is that I am unable to be satisfied that each Award covered employee, and each prospective Award covered employee would be better off if the Agreement covered the employee than if the relevant modern award covered the employee. 10 Notwithstanding this situation, I consider the identified concerns may be remedied through an additional undertaking to be provided by the Applicant as follows:

“8A That instead of the provisions of clause 7.10.2 (Night Shift – Penalty) applying to employees who are covered by the Aged Care Award the following will be applied for the indicated classifications and pay levels;

(a) for employees classified and paid as CRE Levels 2.1 and 2.2;

(i) Night shift means a shift commencing at or after 4pm or before 6am the following day;

(ii) Night shift workers who commence work;

(1) at or after 4pm or before 4am the following day shall be paid an additional 15% for each shift of ordinary hours.

(2) at or after 4am shall be paid an additional 10% for each shift of ordinary hours.

(b) for employees classified and paid as CRE Levels 2.3, 2S, and 3.1;

(i) Night shift means a shift commencing at or after 6pm or before 6am the following day;

(ii) Night shift workers who commence work;

(1) at or after 6pm or before 4am the following day shall be paid an additional 15% for each shift of ordinary hours.

(2) at or after 4am shall be paid an additional 10% for each shift of ordinary hours.”

Whether employees misled by an incorrect parties bound clause

[35] A question arises about whether the provisions of the Agreement’s Clause 1.3.2 may have misled employees before they voted, with the clause incorrectly stating that three unions were “parties bound”. The clause itself is in these terms:

“1.3. Application of Agreement

1.3.1. This Agreement shall apply to the Uniting Church in Australia Property Trust (Q), trading as Wesley Mission Queensland and their employees in the State of Queensland for whom classifications are contained herein.

1.3.2. Parties bound

The parties bound by this Agreement are:

•  The Uniting Church in Australia Property Trust (Q.) trading as Wesley Mission Queensland

•  The Australian Workers' Union of Employees, Queensland

•  United Voice

•  Queensland Nurses and Midwives’ Union of Employees and the Australian Nursing and Midwifery Federation

•  Employees as defined in this Agreement”

[36] The issue with the clause as drafted is at two levels.

[37] First, at the time employees were asked to vote on the Agreement it was likely factually wrong for reason of timing, since s.183 provides that a union bargaining representative for an agreement will only become covered by the agreement if, after an agreement was made, they give notice to the FWC prior to approval that they wish to be covered by the agreement. A single-enterprise agreement is “made” when a majority of the employees that will be covered by the agreement have cast a valid vote to approve the agreement (s.182(1)).

[38] Second, the clause may be factually wrong to the extent it gives the impression that because the unions are named as parties bound there may be some support for the agreement by that union.

[39] It is to be noted that the Agreement was made on 21 September 2018. United Voice advised the Commission on 3 October 2018 that it supported approval of the Agreement and wanted to be covered by it. The AWU advised the Commission on 16 October 2018 that although it neither supported nor opposed the approval of the Agreement it wanted to be covered by the Agreement. The ANMF has at all times opposed approval of the Agreement.

[40] WMQ’s submissions on the subject of the “Application of Agreement” clause were threefold:

•  The clause does not give the impression referred to. “The fact that a union may be 'bound' by an agreement, or that will be covered by it, does not denote support for the agreement, and unions routinely elect to be covered by an agreement even when they prosecute a strenuous 'no' campaign”. 11

•  The Commission needs to take account of the direct engagement that unions undertake with their members. In this case, that direct engagement included the ANMF’s firm opposition to the making of the Agreement. 12

•  The error in the clause can be characterised as a procedural or technical error in the manner in which the Agreement's terms were explained for which the discretion in s.188(2) should be exercised by the Commission. It is also submitted that the error was not likely to have caused any disadvantage to employees.

[41] The ANMF disagreed with these submissions arguing it would be likely an employee reading the proposed Agreement would think that the mentioned unions supported it. In this regard, it is argued that WMQ “ought to have clarified that the unions referred to in the clause would only be bound by the Agreement if they elected to be so bound”. 13 Employees who voted on the Agreement would not be aware of the process by which a union becomes bound to an agreement pursuant to s.183. The ANMF also argued that the Applicant has failed to produce evidence that would satisfy the Commission on the balance of probabilities that no employee voting for the Agreement was persuaded in their vote by the things said within the Agreement’s application clause. The ANMF argued that an adverse inference ought to be made against WMQ because of its failure to bring forward additional evidence on the matter of the explanation given to employees about the parties bound clause. Finally it argued that the “untrue statement” made in the clause “is not a procedural or technical error in the explanation of the terms of the Agreement, because it is likely to have caused at least some employees to vote in support of the proposed agreement who might otherwise have voted against it. These are reasonable grounds for believing that ‘the Agreement’ has not been genuinely agreed to by the employees, in the terms of s.188(1)(c) and so the Commission cannot be reasonably satisfied that the ‘agreement’ was genuinely agreed by employees. Whether or not ‘the Agreement’ was genuinely agreed by a majority of employees is not a procedural or technical matter”.14

[42] The ANMF also argued that the nature of the misstatement is such as to have swayed the outcome of the ballot, hypothesising as follows:

“1086 employees were covered by ‘the Agreement’ at the time of the vote. 783 cast a valid vote and 452 of them approved ‘the Agreement’. A majority of those who cast a valid vote is 392 or more. If just 61 of those who voted in support of ‘the Agreement’ (which is only 5.6% of the employees covered by ‘the Agreement’) would have voted against ‘the Agreement’ had ‘the Agreement’ not (wrongly) said unions were party to it, the proposed agreement would not have been approved by a valid majority.” 15

[43] WMQ provided additional evidence for consideration in these proceedings both by its Learning & Development Manager, Ms Pieta Town and by its Employee Relations Manager, Mr Greg Burns, who provided two statutory declarations, including one in reply to the ANMF’s submissions. Ms Town does not directly address the ANMF’s contentions about the parties bound clause. Mr Burns, however, asserted that it was clear to him in the final bargaining meeting that there remained significant differences between the unions and WMQ over the terms of the proposed Agreement. The situation was confirmed when he saw material from the Queensland Nurses and Midwives Union directed to employees entitled “Management tries yet again to cut your real wages and conditions” and opposing approval of the Agreement. 16

[44] WMQ’s reply submissions on the subject included a rejection of the ANMF’s adverse inference arguments 17 as well as that the concern about the misstatements in Clause 1.3 are either overstated or not real. In that regard the requirement in s.180(5) for an employer to take all reasonable steps to ensure the terms of the agreement and the effect of those terms have been explained to employees does not extend so far as to compel an employer to explain to employees the views held by union’s involved in the bargaining process.18 It argued that any concerns held about Clause 1.3 and its use of the word “bound” are overstated:

“8. … The word 'bound' does not have a common meaning that denotes such support. WMQ's submission is further strengthened by the fact that the clause refers to all 'Employees as defined in this Agreement' as being bound by it. In other words, no reasonable employee would assume that this reference meant that all employees covered by the agreement necessarily supported its terms.

9. Despite the ANMF's change in tack in the course of the remittal, there is no basis for the claim that the mention of a union in an enterprise agreement inevitably leads to a conclusion on the part of relevant employees that the union supported the agreement. An inference that is much more readily drawn is that a reference to a particular union connotes that they were a party to the bargaining process (and nothing more).” 19

[45] WMQ also argued that the evidence the ANMF says has not been brought forward by WMQ may be better suited for the union to have given:

“13. The ANMF criticises WMQ for not producing evidence 'as to the extent or nature of any direct engagement that unions undertook with their members in connection with 'the Agreement''. That criticism has no weight when that evidence is overwhelmingly within the capacity of the union to give. In any event, and as the evidence of Mr Burns makes clear:

(a) In the course of the final bargaining meeting for the agreement, representatives of the ANMF, UV and AWU (including Mr Crank) communicated that they would not be supporting the 2018 EA, and would be engaging in a 'vote no campaign'. It would be extraordinary if, having made that claim, the unions did not take at least some steps to communicate to their membership (and the wider workforce) that they did not support the agreement.

(b) It is clear that such steps were in fact taken having regard to the communique that the QNMU distributed setting out the three unions' bases for opposing the 2018 EA. Although Mr Burns' evidence goes to that document being found on one WMQ site, the Commission can infer that the message was not an isolated one.

(c) Mr Burns did not instruct any WMQ managers to misrepresent the unions' position in respect of the 2018 EA. To his knowledge, no such misrepresentation was made, and the clause was not the subject of an express explanation to employees.

14. However, even if Clause 1.3.2. ought to have been the subject of an express explanation, and that it ought to have been made clear to employees that the reference to the unions being 'bound' by the agreement did not mean that they supported the agreement, this was a procedural error that can plainly be cured by the exercise of the Commission's discretion under s 188(2)” 20 (references omitted)

[46] In relation to the ANMF’s argument that the nature of the misstatement within Clause 1.3 is such as to have skewed the outcome of the ballot in favour of making the Agreement WMQ submitted that there is no basis to treat the matters within Clause 1.3 as enlivening the thing within s.188(1)(c). That section requires that for the Commission to be satisfied of genuine agreement there must be “no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees”. It notes about the ANMF submission that:

“This argument is put on the basis that 'it is likely to have caused at least some employees to vote in support of the proposed agreement who might otherwise have voted against it'. Again, the ANMF's base assertion is merely speculation. In any event, there is nothing to suggest misleading conduct or some other indicator that would undermine the genuineness of the agreement in the sense referred to in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union.” 21 (references omitted)

[47] WMQ also argued the ANMF never raised the subject of the operation of Clause 1.3 until the matter was raised with it by the Full Bench, and that the position taken by the union in this matter is not consistent with its own approach as an employer in enterprise agreements applying to the union:

“The ANMF's position on the drafting of clause 1.3.2 is further remarkable in circumstances where that union has itself made enterprise agreements with its own staff which contain coverage clauses that do not correctly reflect section 183. Clause 5.1 of the Queensland Nurses' Union Non-Elected Officials Enterprise Agreement 2016 refers to various unions being covered by the agreement (ignoring the choice that unions have as to whether or not they be covered), and clause 1.5 of the Clerical Staff Employers by the Queensland Nurses Union 2015 Enterprise Agreement refers to the ASU as a party 'bound' by the agreement.” 22

[48] I do not make the adverse evidential inference invited by the ANMF because of WMQ’s failure to bring forward additional evidence on the matter of the explanation given to employees about the parties bound clause. The basis for the making of an adverse inference in the manner sought by the ANMF has not been established. The ANMF suggested that if “just 61 of those who voted in support of ‘the Agreement’” changed their vote that a different outcome would have been achieved. 23 True that is; however joining that proposition with the argument that a failure of some kind by WMQ to bring forward evidence “about its explanation (or lack of explanation) to employees of the parties bound clause 1.3.2 of the proposed agreement”24 was because the evidence to be adduced would not have assisted WMQ’s case would be unsound. Cross on Evidence reviews a limited, rather than expansive role of adverse inferences to be drawn from a failure to call evidence:

“… the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it. It entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken. It entitles the trier of fact the more readily to draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence. But the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule does not create any admission, unlike deliberately false evidence or the deliberate destruction or suppression of a document or chattel: in these cases there can be an inference that the evidence would have told against the parties responsible. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference. Nor does the rule prevent any inference favourable to the party who has failed to call the witness from being drawn: other evidence may justify the drawing of the inference. And if the case of a party who fails to call a witness is otherwise proved, the inference that the absent witness would not assist the party's case does not detract from the proof. The absence of the witness can permit the trier of fact to resolve a doubt or ambiguity adversely to the party who did not call the witness.” 25 (citations omitted)

[49] The evidence before the Commission about the steps taken by the employer to explain to employees Clause 1.3 of the proposed Agreement is general, with it being communicated that:

“Changes between the 2013 Enterprise Agreement and the proposed new Enterprise Agreement include:

1. Only covers Wesley Mission Queensland Care and Support staff and not Blue Care (Clause 1.3).” 26

[50] No reference is made to the provisions in Clause 1.3.2. At best for the ANMF a finding is open to me that the matter was not explained to employees. Whether that situation actually misled any employee is not part of the evidence before me, of any person; and as such any such submission by the ANMF is no more than conjecture.

[51] As set out above, there are two possible ways to consider Clause 1.3 to be in error. First, there is a temporal issue associated with the fact that the Agreement plainly had not been “made” when put to employees. The effect of s.183(1) is that an expression of a union wanting to be covered by the agreement is not able to be given until after the agreement has been made. As the Agreement had not been made at the time, it was likely in error by stating “The parties bound by this Agreement are …”. Second, there is the matter of whether employees may have been misled by words in the Agreement giving the impression that making and subsequent approval of the Agreement was or may be supported by the named unions.

[52] The first matter is a common one. Even where unions are agreed with an employer about the making and approval of an agreement there will be hundreds if not thousands of occasions where the document provided to employees sets out something which in a pure construction of the agreement and the Act must be regarded as factually incorrect and thereby requiring an explanation to employees. The highest point to which the argument rises, at least in respect of the first consideration of Clause 1.3 is to regard the clause as an expression of intention which probably should have been explained in that way.

[53] The second matter though, of the accuracy of the statement in Clause 1.3, is more significant. The term refers to “parties bound” when the legislation does not use that term. Probably more accurately it was intended to be said that the “parties covered” by the Agreement would be those named, but only after the Agreement was made and approved. In many cases where there was comity between the employer and unions involved in bargaining the statement would be obviously more than aspiration but still something less of absolute certainty, given that the agreement has not yet been made. However, in this case a bargaining meeting had identified that the three unions were not in favour of the Agreement. The best WMQ could hope for in respect of Clause 1.3 would be that, in the fullness of time, each of the unions involved would file the requisite form in the Commission stating that they wanted to be covered by the Agreement. As matters came to pass United Voice and the AWU expressed the view that they wanted to be covered, however the ANMF did not.

[54] Those matters, at least in respect of those things known to WMQ at the time it took the Agreement to a ballot, could reasonably have been explained to employees, but were not.

[55] I accept that failure to explain these matters to employees was an error on the part of WMQ and that it may be classified as a minor procedural or technical error within the meaning of s.188. I accept the evidence and submissions made by WMQ about the nature of opposition to the Agreement and that employees voting for the Agreement would likely have understood where their union may have stood on the subject of making the Agreement, if they were a member of the union. The fierceness of opposition by the ANMF to the making of this Agreement has been palpable throughout these proceedings. This after all is an Agreement about which the ANMF advised WMQ on 3 October 2018 was “unworthy of our Secretary's signature”. 27 The material which is before me about the events prior to lodgement of the application for approval leaves me in no doubt that at least the ANMF’s opposition to the making of the Agreement was likely known to employees at the time they voted.

[56] The error made by WMQ was not to identify to employees that Clause 1.3 was one that could only apply at some future date if both the Agreement was made and the relevant unions advised they wanted to be covered by the Agreement. Such error is not reasonably to be viewed as something akin to a representation that the unions agreed with the making of the Agreement when they did not. The argument put forward by the ANMF to the effect that the things stated within Clause 1.3 may have so dramatically skewed the outcome of the ballot as to make the Agreement down has not previously been put in proceedings before me when such was open to the union to do so if it believed that that was the case. The evidence on the subject before me is also scant.

[57] Elevation of the error of explanation to employees either to it having a status of being a reasonable ground for believing there has not been genuine agreement or alternatively that employees were likely to have been disadvantaged by the error requires more than mere submission or speculation. I am not persuaded that either is the case.

[58] In relation to the matters within s.188(2)(b) it is reasonably apparent from the material before the Commission that the opposition of the ANMF to the making of the Agreement was likely well-known to its members or potential members covered by the Agreement because of the negative campaign run. The opposition was not muted or of the type in which it may be said that a union had left the matter in the hands of its members while giving reasons why it should not be approved. Instead the unambiguous message from the ANMF to members and potential members was that the “proposed EA will not be supported by members and will result in a VOTE NO campaign”. 28 The conclusion which may be drawn from this opposition is that those who wanted to hear the ANMF’s view about the proposed Agreement before casting the ballot likely would have heard them. It is also the case that the subtlety of the error made by WMQ in relation to Clause 1.3 was never dealt with before it was raised with the parties by the Full Bench in the appeal proceedings. None of the experienced practitioners involved in the matters before me at first instance identified the issue as a problem. What may reasonably be drawn from that situation is that the ordinary person reading the document is unlikely to have concluded that the clause was anything more than it was, a statement of future and potential coverage. As a result, I find for the purposes of s.188(2) that the employees covered by the Agreement were not likely to have been disadvantaged by the errors made in relation to Clause 1.3.

[59] I am therefore satisfied that with an exercise by me of the discretion within s.188(2) the Agreement has been genuinely agreed for the purposes of s.188, notwithstanding the error of explanation made in relation to Clause 1.3.

Advice to employees regarding date, place and method of voting

[60] A further matter requiring consideration in this decision is whether the Commission can be satisfied WMQ took all reasonable steps to advise the employees of the date, place and method of voting for the Agreement. The context of the issue is that the Full Bench queried the representative for WMQ about the subject in this manner:

“DEPUTY PRESIDENT GOSTENCNIK: Yes. The third matter relates to - and this might be a simple point, but if I take you to page 63 of the appeal book, and you'll see that that is a note which amends the date on which the vote to approve the agreement would commence, or the period of voting would take place, and it's suggested that there was some technical error.

This is given as evidence of the employees having been - or the employer taking reasonable steps to advise the employees of the date, place and method of voting. Because it appears to be incomplete, I can't actually see the method of voting in that document. It might be that there's a further page to that email. I mean, there's a heading How to Vote but there's nothing there.

The only other information I could find about how to vote is at page 74 of the appeal book. You'll see the fourth dot point, 'You can vote online or by telephone,' which for my part doesn't describe a method. Presumably one doesn't open one's email browser and vote or pick up the telephone and vote. So there might be something else, but in the appeal book it's not clear. So perhaps the original document that was given out might disclose the method. It's just not clear.” 29

[61] Page 63 of the Appeal Book is part of an attachment to the amended Form F17 statutory declaration received from Mr Burns in the original proceedings. The attachment was an email to staff dated 31 August 2018, but sent on 7 September 2018, which advised that due to a technical error, voting arrangements had been changed. The attachment to the amended Form F17 set out this communication:

“Voting has been delayed!

Due to a technical error voting on your new Care and Support Enterprise Agreement has been delayed by one week.

Now is the time to access the proposed Agreement, a summary of the proposed changes and information about voting on Wesley Life Online

Voting will take place Monday 17 September at 12:01am to Friday 21 September at 4:00pm.

We believe this agreement is both fair, realistic, and sustainable in a very difficult and competitive market.

We have spent time talking with staff about their needs and priorities and have come up with an agreement that focusses on a fair pay increase, flexibility and more support for employees and their families.

Above all, we know our staff work incredibly hard and we look forward to issuing a wage increase from October 2018 following a positive outcome.

Copies of the proposed agreement are also available in staff rooms and by emailing [email protected]

When to vote

Monday 17 September at 12:01 am to Friday 21 September at 4:00pm

How to vote” 30

[62] Nothing was set out in the Form F17 attachment on the subject of voting beneath the heading “how to vote”.

[63] WMQ’s response to the matter, critiqued by the ANMF as “unconvincing”, 31 is that only part of the email was included in the Form F17 attachment, owing to an error. It argued that when material provided in a further declaration by Mr Burns submitted in these proceedings is taken together with its answer to question 2.6 of the amended Form F17 Employer Statutory Declaration, the materials plainly demonstrate compliance with s.180(3) of the Fair Work Act 2009.32 Having had their submission critiqued by the ANMF as “unconvincing”, WMQ in turn contended the union had provided no substantive basis to support its “bare allegation”.33

[64] The Form F17 Employer Statutory Declaration response provides this information:

“2.6 What steps did the employer take to notify the relevant employees by the start of the access period of:

a. the time and place at which the vote was to occur, and

b. the voting method to be used?

See s.180(3) of the Fair Work Act 2009. The employer must take all reasonable steps to notify relevant employees by the specified time.

Do not simply state that the relevant employees were notified by the specified time. Describe the steps taken and the information given to employees, and provide the date on which it was taken. Also lodge copies of any materials that were provided to employees to notify them of the time and place at which the vote was to occur and the voting method to be used.

Step taken and the information given	Date of step
Attached materials Sent to personal & Work emails, provided on our Staff Intranet, hard copies to staff noticeboards and staff rooms and alerts to staff through our shift service software- Leecare. The materials included How to cast a Vote, FAQs and Summary of changes plus access to copies of the proposed EA.”	07/09/2018

[65] The further statutory declaration of Mr Burns referred to by WMQ was filed in the Commission on 25 March 2020 and provides this explanation about the original notification to vote and the truncated form of the amendment notice referred to by the Full Bench:

“4. In the original statutory declaration filed in this proceeding, the date of 10 September 2018 was given as the date on which employees were notified of the time and date of the vote for the agreement, as well as the method by which the ballot would proceed. That was an error. The correct date was 7 September 2018, which was the date provided in the second statutory declaration filed in support of this 2018 EA.

5. A notice relating to the vote for the 2018 EA had originally been sent to employees on 31 August 2018. However, due to a drafting error, the vote was delayed.

6. I now know, from my discussions with Angie Sobyra (WMQ Internal Communications Manager) -who managed the vote notification process - that:

(a) On 7 September 2018, she sent a 'test' notification relating to the vote notice. That test notification is Item 2.5 to the second employer statutory declaration in support of the 2018 EA. At its header, the date of '31st August 2018' was present. That date was the date the original vote notification was given. A part of Item 2.5 was not reproduced as an annexure to the declaration due to an error.

(b) Now shown to me and marked GB-1 is a true and correct copy of the voting notification that was sent by Ms Sobyra to employees for whom we had email addresses (which was sent after Ms Sobyra had sent her test notification to herself). On the second page of the notice, the words 'How to Cast my Vote for Care Support EA' are in bold and are underlined. Those words contained a hyperlink to a document that had been placed on the WMQ intranet and was accessible from when the employees were sent GB-1 notification. The hyperlinked document is now shown to me and marked GB-2. That document was also posted to noticeboards at all WMQ facilities and hard copies were placed in staff rooms.

7. In addition, Item 2.6 is a screenshot of WM Q's intranet page as it was at time of the vote. The words 'How to vote' are underlined. Those words contained a hyperlink to the document that is GB-2. That document was accessible to staff via the intranet from at least 7 September 2018.” 34

[66] The material in attachment GB-1 to Mr Burns statutory declaration from the point of the heading “How to vote” and omitted from the material originally before the Commission is this:  35

“

”

[67] The material in GB – 2, being the instructions to employees from CorpVote about how they may vote included this information (email address and phone numbers removed): 36

[68] The obligations on an employer in relation to the notification of a vote are provided for in s.180, which provides the following, so far as is relevant to the subject of voting:

“180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre-approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.”

(2) (omitted)

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

(4) – (6) (omitted)”

[69] I am satisfied from the materials before the Commission that the foregoing provisions have been complied with. A notification to employees originally sent on 31 August 2018 was withdrawn because of a drafting error. That was replaced by a further voting notification to employees on 7 September 2018. The replacement notification was sent by email to employees for whom WMQ had email addresses. The notification included a link to a document entitled “How to Cast my Vote for Care Support EA” which was also displayed on an intranet and noticeboards for all employees. This material comprehensively addressed the time and place at which the vote would take place and the voting method that would be used. Clear instructions were given to employees about how they may cast their vote. I am satisfied that the employer took all reasonable steps to notify the relevant employees of these matters by the start of the access period for the Agreement.

The effect of changes to the Applicant’s case

[70] The ANMF has, in its submissions for this stage of the Commission’s consideration of the application, argued that the replacement of the original Form F17 with another and then further statutory declarations been provided by the declarant in the course of this stage of the proceedings amounts to a failure by WMQ to take their responsibilities to the Commission seriously. It argued that the Form F17 is designed to ensure an applicant seeking approval of an enterprise agreement “provides the FWC with all of the evidence-in-chief that is required to enable the Commission to determine whether or not the application meets all of the statutory requirements for approval”. 37 Such leads to the ANMF holding the view that:

“29. The Applicant seems to think there is no end to the number of opportunities it should take to provide evidence to the Commission that its application meets the requirements for approval by FWC. Applicants for approval of agreements ought to take the application process seriously. The Applicant has not taken its obligation as an applicant seriously in this matter.

30. The dismissal of this application by the Commission will send a message to the Applicant and all other potential applicants that applicants need to take their responsibilities seriously.” 38

[71] The ANMF has not stated the head of power under which it invites me to make this decision. While not explicitly stated within the ANMF’s submissions I take this to be a submission that somehow the situation has developed because of a lack of candour on the part of the Applicant which in turn should cause me to question WMQ’s submissions as a whole, and to such an extent I cannot be satisfied of the matters within s.188(1) that the enterprise agreement has been genuinely agreed. This may well be for reason of the requirement in s.188(1)(c) which requires the Commission to be satisfied “there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees”.

[72] WMQ submitted about this argument by the ANMF that it would be an error for the Commission to reject the approval of the Agreement “to set some type of example”. 39 The most recent update to the evidential materials only came about because the Full Bench – not the ANMF – raised an issue which now requires consideration:

“23. The evidence that WMQ has relied upon in this proceeding has been clarified and supplemented. But the suggestion that the proceeding has not been treated 'seriously' by WMQ is patently wrong. For over a year, WMQ has sought to move the approval of the application forward consistent with the majority view of the employees who voted for the agreement.

24. That the approach being taken by the ANMF appears to be directed at advancing an industrial agenda rather than advocating for its members' interests is highlighted by the ANMF's submission on the drafting of clause 1.3.2. A matter that the ANMF now says is of critical importance and is a hurdle to approval that cannot be overcome was a matter that was never raised by the ANMF until Gostencnik DP raised it in the course of oral arguments before the Full Bench. It was also a matter that was never raised by the ANMF during the extensive legal arguments that preceded the approval of the 2013 EA, which was also extensively contested by the ANMF.” 40

[73] Despite the ANMF submissions on the subject of the provision of further and more refined information throughout the progress of this matter it would be unwise of me without further and cogent evidence on the subject to take the view that such amounts to a failure by the Applicant to take their responsibilities seriously or, worse, to take the view that somehow the information provided within the Applicant’s material has either been carelessly or fraudulently collated and relied upon. This is not a circumstance in which the cautions about deliberately erroneous declarations may apply. 41 There is nothing before me that would reasonably lead to a conclusion that any of the materials before me were deliberately incomplete or wrong. Mr Burns was cross-examined by Mr Crank at large and at length in the original proceedings, including but not limited to the statements he made in the Form F17’s. While the ANMF initially sought to cross examine him on the material filed in relation to this stage of proceedings that did not eventuate because the ANMF withdrew its application to be heard.

[74] Experience with Form F17’s generally is that it is the case in contested matters such as this that it will often only be after the objections have been indicated by the contesting party that it will become evident to all concerned where there may be problems in the submitted material. The situation involving this particular matter is even more removed from the greater mass of enterprise agreement approval applications for the reason it has involved an appeal and remittal of certain matters for redetermination. Inevitably those processes have required closer and greater scrutiny of evidential material. While it may be the case that I share some exasperation with either or both parties in this matter about the trundling and elongated approval consideration process that does not equate with a finding of the type invited by the ANMF.

[75] The fact that there has been an original Form F17 then amended and then supplemented with further material in other statutory declarations does not, of itself, cause me to form the view that, because of that process of amendment and supplementation, I should not be satisfied of any of the matters about which I am required to be satisfied for the approval of an enterprise agreement either within ss.186 – 187 or s.188. Consequently, I do not propose to dismiss the application for the reasons invited by the ANMF because it “will send a message” 42 about applicants taking their responsibilities seriously.

CONCLUSION

[76] In conclusion:

•  I am satisfied that while there was a failure to explain to employees the effect of the parties bound clause that such was not a deliberate failure. I am satisfied it was instead a minor procedural or technical error with employees not likely to be disadvantaged by the error. In turn, a finding may be made that the error does not prevent a finding the Agreement was genuinely agreed;

•  I am also satisfied that employees were properly advised as to the date, place and method of voting;

•  I am not satisfied that changes made to the Applicant’s evidence over the course of these proceedings would cause me to refuse approval of the Agreement for any reason.

[77] I am also satisfied that the remaining undertakings assist in me being satisfied the better off overall test will be met should a further proposed undertaking be given by the Applicant.

[78] The further proposed undertaking connects with the proposed Undertaking 8, discussed in detail earlier in this decision. That undertaking deals with the subject of shift penalties. While I am satisfied the undertaking itself is not likely to cause financial determinant to any employee and may be accepted by the Commission, I hold a concern it does not entirely remedy concerns held about the BOOT. In particular it is likely that two classes of employee, referred to by me above as Early Night Shift Employees and Early Morning Shift Employees, will not be better off overall if the Agreement were to be approved by me without a further undertaking. I consider the concerns held by me will be met with if a further undertaking is given by the Applicant in the following form:

“8A That instead of the provisions of clause 7.10.2 (Night Shift – Penalty) applying to employees who are covered by the Aged Care Award the following will be applied for the indicated classifications and pay levels;

(a) for employees classified and paid as CRE Levels 2.1 and 2.2;

(i) Night shift means a shift commencing at or after 4pm or before 6am the following day;

(ii) Night shift workers who commence work;

(1) at or after 4pm or before 4am the following day shall be paid an additional 15% for each shift of ordinary hours.

(2) at or after 4am shall be paid an additional 10% for each shift of ordinary hours.

(b) for employees classified and paid as CRE Levels 2.3, 2S, and 3.1;

(i) Night shift means a shift commencing at or after 6pm or before 6am the following day;

(ii) Night shift workers who commence work;

(1) at or after 6pm or before 4am the following day shall be paid an additional 15% for each shift of ordinary hours.

(2) at or after 4am shall be paid an additional 10% for each shift of ordinary hours.”

[79] I therefore invite further undertakings from the Applicant in these or alternative terms which provide for the outcomes to which I have referred and direct that if it is prepared to give such undertakings that it does so by filing and serving them by no later than 12.00 PM, Thursday, 25 June 2020. If the Applicant is disposed to give the further undertakings, it is to provide a comprehensive document with all undertakings and signed by an authorised WMQ representative. If such an undertaking is provided, I seek the views of the ANMF and any other bargaining representative, which are to be filed and served by no later than 12.00 PM, Thursday, 2 July 2020.

[80] If no further or alternative undertakings are provided for the Commission’s consideration, the application to approve the Agreement will be dismissed for the reason I am not satisfied that the BOOT has been passed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR720154>

 1   [2020] FWCFB 848.

 2 Ibid, [131] – [132].

 3   Ibid, [120].

 4   Applicant's Submissions on Remittal, 25 March 2020, [2].

 5   Ibid, [3].

 6   ANMF’s Response to Applicant’s Material, 9 April 2020.

 7   Ibid, [6].

 8   MA000018.

 9   Classification matchings taken from the Form F17 Employer’s Support Statutory Declaration.

 10   Duncan Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo[2016] FWCFB 2887, [6].

 11   Applicant's Submissions on Remittal, 25 March 2020, [16].

 12   Ibid, [17].

 13   Ibid, [18].

 14   ANMF’s Response to Applicant’s Material, 9 April 2020, [17].

 15   Ibid, [19].

 16   Statutory Declaration of Greg Burns, 20 April 2020, [2](a) – (b).

 17   Applicant’s Reply Submissions on Remittal, 20 April 2020, [2] – [3].

 18   Ibid, [7].

 19 Ibid, [8] – [9].

 20 Ibid, [13] – [14].

 21   Ibid, [18]; with reference to One Key v CFMEU (2018) 277 IR 23, [142].

 22   Ibid, [25].

 23   ANMF’s Response to Applicant’s Material, [19].

 24   Ibid, [11].

 25   Cross on Evidence, LexisNexis Australia, 1215.

 26   Revised Form F17 Employer’s Support Statutory Declaration, 27 February 2019, Attachment 2.7.

 27   Exhibit WMQ 2, Statutory Declaration of Greg Burns, 1 April 2019, Attachment GB-8.

 28   Statutory Declaration of Greg Burns, 20 April 2020, Attachment GB – 2.

 29   Transcript, Appeal Proceedings, PN 250 – 252.

 30   Attachment to Amended Form F17 Employer’s Support Statutory Declaration, 1 March 2019.

 31   ANMF’s Response to Applicant’s Material, 9 April 2020, [22].

 32   Applicant's Submissions on Remittal, 25 March 2020, [19].

 33   Applicant’s Reply Submissions on Remittal, 20 April 2020, [19].

 34   Statutory Declaration of Greg Burns, 25 March 2020.

 35   Ibid, Attachment GB – 1.

 36   Ibid.

 37   ANMF’s Response to Applicant’s Material, 9 April 2020, [27].

 38 Ibid, [29] – [30].

 39   Applicant’s Reply Submissions on Remittal, 20 April 2020, [22].

 40   Ibid, [23] – [24].

 41   See, for example; Pennyco Pty Ltd t/a Zarraffas West Ipswich [2017] FWCFB 4852, [34]; Derbarl Yerrigan Health Service Inc. [2018] FWCFB 2721, [34].

 42   ANMF’s Response to Applicant’s Material, 9 April 2020, [30].