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

[2019] FWC 5079

[2019] FWC 5079

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, 29 JULY 2019

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

[1] This decision concerns an application by the Uniting Church in Australia Property Trust (Q.) T/A Wesley Mission Queensland (WMQ) for approval by the Fair Work Commission (the Commission) pursuant to s.185 of the Fair Work Act 2009 (the Act) of the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 (the WMQ Agreement, or the Agreement). The Uniting Church in Australia Property Trust (Q.) is referred to in this decision as UPTQ. It is to be noted that the Application Form provided to the Commission states that the “Name of Applicant” is “WESLEY MISSION QUEENSLAND”, with it being elaborated that the “Legal name of business” is “Uniting Church in Australia Property Trust (Q.)” and the “Trading name of business” is “Wesley Mission Queensland”.

[2] The Queensland Nurses and Midwives' Union (QNMU) opposes approval of the Agreement on numerous grounds. Further, the QNMU refuses to sign the Agreement, since the context of the matter includes the majority of its members voting against an agreement “which would reduce conditions of employment and which contains wage increases far less than our members deserve”, and that to sign it would be “unworthy of our Secretary's signature”. 1 QNMU were bargaining representatives prior to the making of the WMQ Agreement.

[3] The Australian Workers’ Union (AWU) were also bargaining representatives and have indicated in their Form F18 statutory declaration that they neither support nor oppose approval. 2 While the AWU appeared in the Commission’s proceedings with the QNMU which opposes approval, and joined the QNMU in opposition they did not provide any independent written submissions. United Voice was also a bargaining representative and has signed the WMQ Agreement. It did not appear in these proceedings nor provide substantive submissions and has indicated in their Form F18 statutory declaration that it supports approval of the WMQ Agreement.3

[4] The QNMU has raised numerous objections regarding the application for approval of the WMQ Agreement. The objections include considerations of whether the group chosen to be covered by the WMQ Agreement was fairly chosen and, relatedly whether the design of the Agreement causes a question to arise about whether the Agreement was genuinely agreed. The QNMU also argue that the terms of the Agreement were insufficiently explained, also going to the question of whether it was genuinely agreed. The union also argues that the employees to be covered by the Agreement will not be better off overall as a result of the making of the Agreement. Moreover, it submits that a number of the undertakings given by WMQ pursuant to s.190 of the Act should not be accepted and that in total the undertakings amount to substantial change, within the meaning of s.190(3)(b) of the Act, with the implication being that they should not be accepted.

[5] Mr Pawel Zielinski of MinterEllison appeared for the Applicant. Permission for the Applicant to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).

[6] Evidence in these proceedings was provided by Mr Greg Burns, Employee Relations Manager, People and Culture for the Applicant. There was no witness evidence from the unions.

[7] Context to the application includes that the Agreement applies “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”. 4 Those employees, described by WMQ’s Employee Relations Manager, Greg Burns, in his evidence as “care and support employees” are presently covered by the Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 20135 (the Blue Care/Wesley Mission Agreement). As the name would suggest that agreement covers employees both of WMQ and another business of the Trust known as Blue Care. Mr Burn’s evidence on the subject of the background to this Agreement includes that a joint Blue Care/Wesley Mission Care and Support Agreement was first put to a vote in September 2016 with both the WMQ and Blue Care employee cohorts rejecting the proposed agreement. His evidence also included that when a further agreement was put to a vote in May and June 2017 that too was unsuccessful. At that time Mr Burns formed the view that while a majority of WMQ employees had voted in favour of the proposed agreement, a majority of Blue Care employees had not.6 Mr Burns also found that the two cohorts of employees had substantive differences between the log of claims being sought.7 As a result, the CEOs of WMQ and Blue Care determined to seek separate agreements in respect of those cohorts.8

[8] In relation to the WMQ Agreement, the material before the Commission discloses that:

•  The date of notification was 19 April 2018 and the last Notice of Employee Representational Rights (NERR) was provided on 20 April 2018, and that it is compliant (although it is subject to a dispute by the QNMU about its breadth and who it covers);

•  Voting commenced on 17 September 2018 with the Agreement being made on 21 September 2018.

•  The WMQ Agreement would, at the time it was made, cover 1086 employees. 783 employees cast a valid vote, of whom 452 voted to approve the agreement (58% approved).

[9] The salient part of the NERR, being the matter of who is proposed to be covered by the Agreement to be bargained for is as follows:

“The Uniting Church in Australia Property Trust (Q.) trading as Wesley Mission Queensland gives notice that it is bargaining in relation to an enterprise agreement (Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018) which is proposed to cover employees that are employed by the Uniting Church in Australia Property Trust (Q.) trading as Wesley Mission Queensland within the classifications contained in the Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 2013.”

[10] Having been made, the WMQ Agreement was lodged in the Fair Work Commission on 3 October 2018, a date within 14 calendar days of the date on which it was made. In accordance with usual procedure the application was the subject of detailed consideration by the Commission’s agreement processing staff and was then assigned to me for determination. During that process a number of matters were raised with the Applicant and bargaining representatives either for the purposes of receiving further information or clarification, or for the Applicant to deal with concerns, about which an undertaking may be required pursuant to s.190 of the Act. In particular, two preapproval matters were the subject of communication to the Applicant including whether the employer took reasonable steps to notify relevant employees by the start of the access period for the agreement the time, place and method of the vote as required by s.180(3) of the Act and whether the employer took reasonable steps to explain the terms of the Agreement and their effect to employees in accordance with s.180(5) of the Act. Through that communication, WMQ was invited to provide further information regarding the explanation to employees of the terms of the Agreement, as well as to provide further information about what was given to employees about a vote for the Agreement.

[11] WMQ responded to the Commission’s inquiries, including on matters broader than the two referred to above however, in relation to the two preapproval matters referred to, WMQ’s response included a revised F17 relevantly as follows:

•  Question 2.6 of the F17 referring to notification of the vote:

“Attached materialsSent to personal & Work emails, provided on our 07/09/2018 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.”

•  Question 2.7 of the F17 referring to explanation of the terms of the Agreement:

“WMQ has over 40 geographically diverse work locations from Hervey Bay through to the Qld I NSW Border applicable to this Agreement with staff working across the full scope of a 24 hour day and many of the in-home care staff travelling from home to clients and back home with remote access on all matters rather than a central work office. It is therefore not reasonable or practicable to hold face to face meetings. We used local Managers to connect with staff and also a dedicated WMQ Email address to make staff aware of access and information. We did address questions that arose through those mechanisms.

From prior to 7 Sept throughout to 16 Sept and beyond at the request of any employee.

We presented materials in various formats to assist in understanding. We also sent electronic copies direct to staff personal and work email addresses and hard copies to staff gathering areas.

Attached are copies of FAQ, Powerpoint slides, Summary of Changes.

Throughout the Access and Ballot period.”

•  Supporting documentation applicable to both notification of the vote and explanation of terms

“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 4:00 pm.

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 removed]

When to vote

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

…”

[12] A PowerPoint slide show was also provided detailing the terms of the Agreement as compared with the Blue Care/Wesley Mission Agreement.

[13] After receiving this material WMQ and bargaining representatives were advised by my Chambers that my disposition was that the Agreement could be approved subject to certain undertakings which WMQ had indicated it was prepared to give. After giving that preliminary view, the QNMU advised it objected to the approval of the Agreement. After such indication Directions were issued to all concerned so that the objections may be heard and determined. The matter was the subject of a hearing on 8 May 2019, with attendance by WMQ, the QNMU and the AWU.

[14] Several of the undertakings given by WMQ were amended in the course of the proceedings in response to the QNMU’s submissions. The current text of the undertakings is as follows:

UT 1 & 2. That despite clause 7.6.1(a) of the Agreement:

(i) for all authorised overtime worked by an employee on Monday to Friday, payment will be at the rate of time and a half for the first two hours and double time thereafter; and

(ii) for all authorised overtime worked by an employee on a Saturday, payment will be at the rate of double.' 9

UT 3. That the Agreement shall incorporate Sections 104, 105 and 106 of the Fair Work Act 2009 (Compassionate Leave) to the extent that they are more beneficial than those outlined in Clause 8.4 of the Agreement. That provisions outlined in Clause 8.4 of the Agreement that are less beneficial than those outlined in Sections 104, 105 and 106 of the Fair Work Act 2009 (Compassionate Leave) shall have no effect.

UT 4. That for employees whose classifications are covered by the Social, Community, Home Care and Disability Services Industry Award 2010 the Agreement will incorporate Clause 26 of the Social, Community, Home Care and Disability Services Industry Award 2010 and the WMQ Agreement. Clause 7.9.2 of the Agreement will have no effect. 10

UT 5. That base rate of pay for trainees be paid at 110% of the National Training Wage. 11

UT 6. That the Agreement will incorporate Clause 20.3 (a) of the Social, Community, Home Care and Disability Services Industry Award 2010 from the date at which the Agreement is made, with subsequent increases to occur in accordance with Appendix 2 of the Agreement as regards the rates relevant to Clause 7.6 (b) (i) of the Agreement. The lower rates as outlined in Appendix 2 of the Agreement relevant to Clause 7.6 (b) (i) of the Agreement shall have no effect.

UT 7. That the Agreement shall incorporate Clause 27 of the Aged Care Award 2010 and that Clause 7 .5.1 of the Agreement shall have no effect.

UT 8. That employees entitled to receive the on-call allowance, be paid the allowance at a rate of $19.20 on Monday to Friday, and $38.02 on weekends and public holidays, with that rate subject to the same rate of increase as contemplated in appendix 2. 12

UT 9 & 10. That the following clauses be applied in substitution of clause 7.10 of the EA:

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 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. 13

UT 11. That where an employee works respite services as contemplated in clause 6.5.5 of the Agreement, they will be paid eight hours work at 155% of their base rate of pay for each 24 hour period rather that the flat allowance provided for in appendix 2 of the Agreement. 14

UT 12. That the Agreement shall incorporate Clause 25.5 (f) of the Social, Community,

Home Care and Disability Services Industry Award 2010.

UT 13. That employees required to sleep over as contemplated by clause 7.11 of the Agreement be paid an allowance of $47.04 per night with that rate be subject to the same rate of increase as contemplate in appendix 2.

For the avoidance of doubt, payment for work contemplated by clause 7.11.3 of the Agreement will be in addition to the sleep over allowance. 15

UT 14. That, where an employee who is classified as a CRE Level 4.2 employee or above agrees to work an excursion shift as contemplated by clause 6.5.4, they will be paid:

(A) at their base rate of pay for time worked between 8.00am to 6.00pm Monday to Friday (up to a maximum of 10 hours' pay); or

(B) the appendix contained in annexure 2,

whichever is higher. 16

[15] The QNMU’s objections to approval of the WMQ Agreement are in several parts as follows:

1. The Agreement was not genuinely agreed (s.186(2)(a)), essentially for three reasons:

a. In relation to matters associated with the coverage of the Agreement, the QNMU argues that it is incapable of approval because the Commission cannot be satisfied it was genuinely agreed for several reasons including that Blue Care employees were not asked to approve the Agreement. 17 Further, the fact that the Uniting Church Property Trust has chosen to use the trading name Wesley Mission Queensland in the Agreement to denote coverage does not restrict the coverage of potential Agreement only to employees of Wesley Mission Queensland, given a trading name cannot be a national system employer required by the Act. WMQ reject that argument.18

b. The QNMU submits that the NERR envisages a broader range of employees to those who ultimately voted for the Agreement. 19

c. In relation to the provision of information to employees, the QNMU argues that what was explained to employees about the effect of the proposed Agreement was deficient, and not in accordance with s.180(5), which requires employers to take all reasonable steps to ensure that the terms and effect of an agreement are explained, and in a manner appropriate to the particular circumstances and needs of the relevant employees and especially those with culturally and linguistically diverse needs.

2. The Agreement was not fairly chosen (s.186(3)). This is because the employer deliberately chose to exclude Blue Care employees from the operation of the Agreement. 20 The coverage of the proposed Agreement involves a smaller group of employees than covered by the existing Agreement;21 and

3. In relation to the undertakings given by WMQ, it is submitted that three have no effect, since the way they are drafted means they have no application to any employees. 22 The relevant undertakings are UT 4, UT 9 and UT 10. It is argued that four of the undertakings (namely 9, 10, 11 and 12) will cause financial detriment, contrary to the requirement in s.190(3)(a) and that such an undertaking not be accepted by the Commission. Finally, it is argued that the combined effect of the proffered undertakings is such that they amount to substantial change and should not be accepted by the Commission; (s.190(3)(b)).23

[16] I deal now with each objection raised by the QNMU in turn. Because of the way the subject matters are interrelated and the matters of “genuine agreement” are in some respects a subsidiary argument to the matter of “fairly chosen”, the latter subject is dealt with first.

FAIRLY CHOSEN

[17] Section 186(3) of the Act requires that before approving an enterprise agreement the Commission is “satisfied that the group of employees covered by the agreement was fairly chosen”, with “fairly chosen” being determined as follows:

“186 (3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.”

[18] Before approving an agreement, the Commission must be satisfied that the group of employees the agreement covers was fairly chosen, with such consideration being one of a cumulative number of matters about which the Commission must be satisfied, subject only to ss.189 - 190. 24 Further, the requirement that a group be “fairly chosen” is a “protective provision” with the Full Court holding in the matter of One Key Workforce Pty Ltd v Construction Forestry Mining and Energy Union that:

“154. Section 186(3) (the “fairly chosen” requirement) is one example of such a “protective provision”. A primary purpose of this provision is to avoid the workforce of an enterprise being broken up into artificial employee groupings with the consequence that the workforce of the enterprise is unable to bargain as a single collective: see Aerocare Flight Support Pty Ltd v Transport Workers’ Union of Australia [2018] FCAFC 74 at [19] (Jagot, Bromberg and Rangiah JJ). Another example of a protective provision referred to by the High Court in ALDI is the BOOT. Each of those provisions is an element of the approval process specified by Sub-division B of Part 2–4. Like those provisions, other provisions of that sub-division, including ss 186(2) and 188, have a protective purpose. That s 188 harbours a concern directed at agreements made by a small number of employees in circumstances where the agreement covers a wider range of employee classifications is confirmed by [824] of the Explanatory Memorandum which provides:

Note that where an agreement covers a large number of classifications of employees in which no employees are actually engaged there may be a question as to whether the agreement has been genuinely agreed – see clause 188.” 25

[19] Determination of whether the group of employees covered by an agreement was ‘fairly chosen’ involves a degree of subjectivity or value judgement. 26 The Full Bench’s consideration in Cimeco Pty Ltd v CFMEU, AWU, AMWU and CEPU (Cimeco) of whether employees are geographically, operationally or organisationally distinct included an analysis of the factors involved and the weight to be apportioned:

“[19] Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen.

[20] It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations.

[21] It is not appropriate to seek to exhaustively identify what might be the other relevant considerations. They will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal. The word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. It is also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant. We note that there is a suggestion to the contrary in the oral submissions put on behalf of Cimeco when counsel submitted that:

“It was an erroneous approach to introduce the identification of the persons who were relevantly employed at the time of the making of the agreement for the purposes of testing the group chosen.” 27” (Reference omitted)

[20] While an objective consideration and weighting of all relevant factors is required, it has been held, albeit in the context of a decision considering an application for a scope order and whether the proposed scope therein was fairly chosen, that there is to be no presumption that preference ought to be given to agreements that cover as much of an enterprise as is possible. 28 Further:

“[14] Depending upon the circumstances of the particular case, there may be more than one way of fairly choosing the group of employees to be covered by a proposed enterprise agreement.

[15] Enterprise agreements that cover all employees in a business are commonplace. Almost all such business will have organisation structures that will allow organisationally distinct groups to be identified. Many of those businesses contain operationally distinct groups. Yet it will rarely be the case that a ‘whole of enterprise’ group would be unfairly chosen.

[16] It follows that the weight to be attached to the geographical, operational or organisational distinctness of groups with a broader group will be neutral in determining whether an order ought be made, unless there are particular features of, or circumstances associated with, that distinctness that render the broader group one that is not fairly chosen.” 29

[21] Noting that in the event of disputes between bargaining representatives about the scope of an agreement, that such may itself become a matter for bargaining, 30 there is no evidence in this case either that the subject was either comprehensively dealt with in the course of bargaining or that it was resolved in bargaining.

[22] Further guidance on the resolution of the questions of “fairly chosen” was given by the Full Bench in Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union: 31

“[26] The following principles may be gleaned from earlier decisions concerning s 186(3)-(3A):

•  the expression “the group of employees covered by the agreement” in s 186(3) refers to the whole class of employees to whom the agreement might in future apply, not the group of employees who actually voted on whether to make the agreement; 32 7

•  the references in s 186(3) and (3A) to whether “the group of employees covered by the agreement was fairly chosen” are, in the case of a non-greenfields agreement made with a group of employees, particularly a small group, references to a choice made by the employer; 33

•  a Member’s decision as to whether or not they are satisfied that the group of employees covered by an agreement was “fairly chosen” involves a degree of subjectivity and the exercise of a very broad judgment or value judgment, and in a broad sense can be characterised as a discretionary decision; 34

•  in an appeal from a decision of that nature, it will be necessary for the appellant to demonstrate error in the decision-making process of the type identified in the House v The King in order for the Full Bench to set aside the decision; 35 

•  once it has been determined that an agreement does not cover all of the employees of the employment, it is necessary for the Commission to make a finding as to whether the group of employees who are covered is geographically, operationally or organisationally distinct, and then take that matter into account and give it due weight, having regard to all other factors; 36 

•  if the group of employees covered by the agreement is geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen; conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen; 37 

•  however while the question of whether the group of employees covered is geographically, operationally or organisationally distinct must be evaluated and given due weight having regard to all other relevant considerations, that is not a determinative consideration in that it is not necessary to make a finding that the group is geographically, operationally or organisationally distinct in order to be satisfied that it was fairly chosen; 38 

•  the selection of the group of employees to be covered on some objective basis, as opposed to an arbitrary or subjective basis, is likely to favour a conclusion that the group was fairly chosen; 39 

•  the relevant considerations will vary from case to case, but the word “fairly” suggests that the selection of the group covered was not arbitrary or discriminatory, so that for example selection based upon employee characteristics such as date of employment, age or gender would be likely to be unfair; 40 and

•  it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreement’s coverage and the employees excluded. 41 

[27] Additionally, guidance may be obtained as to how to interpret and apply the expression “organisationally distinct” in s 186(3A) from decisions concerning the use of the same expression in ss 237(3A) and 238(4A). The following propositions are relevant:

•  the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations; 42 

•  the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct; 43 

•  however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; 44 and

•  most businesses have organisation structures which will allow organisationally distinct groups to be identified.” 45

(references from original)

[23] The QNMU holds the fundamental belief that the Agreement covers all Queensland employees of the UPTQ. For the practical purposes that would mean all of those who are within the classifications within the Agreement and are employed either by Blue Care or WMQ, and not just those employed by WMQ. The proposition is advanced by the QNMU that many employees who are eligible to be covered by the Agreement “including those who work in operations trading as Blue Care, were not asked by the Employer to approve the agreement”. It is also submitted that the WMQ did not take the necessary preapproval steps in relation to those employees. 46 Resolution of this last matter is dealt with in the section of this decision dealing with “genuinely agree”.

[24] Separate to the argument of genuine agreement, the QNMU puts as an alternative that “if the Agreement only covers employees working in some connection with the WMQ trading name, the group of employees covered by the Agreement was not fairly chosen”. 47 After canvassing the considerations within Cimeco the QNMU argues that WMQ was arbitrary in its decision to exclude Blue Care employees and:

“That choice was not:

•  by proper means, legitimate, impartial or just;

•  with due regard to equity, candidly, or without undue advantage on either side, both as between the Employer and its employees and as between the groups of employees included and excluded from the Agreement.” 48

[25] It is further argued by the QNMU that WMQ has in its statutory declarations in support of its application failed to properly explain why it believes that the group was fairly chosen with it being the case that the amended F17 “merely adds a list of titles of groups of employees not covered by the Agreement, without any comment about the fairness of excluding employees from the group, or of any geographical, operation or organisational distinction”. 49

[26] As noted above, the employees to be covered by the WMQ Agreement are presently covered by another agreement, the Blue Care/WMQ Agreement, which covers a broader group of employees. At the time of the May/June 2017 ballot, the proposed Blue Care/Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2017 is said by the QNMU to have covered 6,045 employees, with the WMQ employees comprising 926 of the total. 50 Once made on 21 September 2018, the WMQ Agreement covered 1086 employees. UPTQ’s decision to carve out the WMQ employees from bargaining is dealt with in greater detail in the section of this decision dealing with the question of whether the group to be covered by the Agreement was fairly chosen. The submissions made by the QNMU include the proposition that an enterprise agreement may not be made with a “trading name”:

“A trading name of the Employer, Wesley Mission Queensland (WMQ), is mentioned in the Agreement, but that does not restrict the coverage of the Agreement to employees associated with that trading name. Only a national system employer and its employees can be party to an enterprise agreement. A trading name cannot be a national system employer (or any kind of employer). WMQ is not a national system employer. The employer of employees who would be covered by the Agreement is the Employer, not WMQ.” 51

[27] So far as is evident in these proceedings, the first steps taken by WMQ to give effect to its strategy of an enterprise agreement applying only to WMQ employees commenced when it notified employees of its intention to bargain and issued the required NERR. These steps were taken after the May/June 2017 ballot in which a proposed joint Blue Care and WMQ agreement was defeated. Mr Burns’ evidence on the matter included the following:

“16. A new agreement was next put to the vote in May and June 2017. On 2 June 2017 bargaining representatives were notified that the vote for that agreement had been unsuccessful. The data collected by WMQ as part of the ballot process demonstrated that the agreement had been supported by a majority of WMQ's employee cohort (58% of WMQ based employees voted in favour), but had been voted down by a majority of the Blue Care employee cohort (72% voted against the proposed agreement).

The decision to pursue a separate WMQ vote

17. As a result of the June ballot, it was clear to me that there were significant differences in views held by Blue Care and WMQ employee cohorts. I was not confident that, if bargaining continued on the basis of an agreement applying to both cohorts, it could result in an agreement being made in a timely manner.

18. The fact that the WMQ employee cohort had voted in favour of the agreement that had earlier put to them was of course a key factor that was relevant in the decision-making process that led to the CEOs of WMQ and Blue Care seeking separate agreements in respect of those cohorts.

…

20. In addition, there were real substantive difference as between the claims sought by each of Blue Care and WMQ. These differences were a fmiher important reason why Blue Care and WMQ CEOs decided to bargain separately. By way of example:

(a) The existing care and support agreement contains limitations on the use of external contractors (for example, it provides that core services are only to be contracted out 'as a last resort). WMQ was content for these limitations to remain in part, and they are effectively mirrored in the 2018 EA. However, Blue Care's long-standing position was that such a provision be removed. Unless Blue Care changed its position (which I assessed as unlikely), I believed that this would be a key sticking point.

(b) Blue Care also wanted to introduce a number of additional flexibilities into a new agreement (particularly relating to broken shifts). However, WMQ was satisfied that it could obtain the flexibility it needed without wholesale changes to its enterprise agreement framework.” 52

[28] Blue Care and WMQ have been separate brands since prior to the current Blue Care and WMQ Enterprise Agreement, and there has been no structural change to the UPTQ since the making of that agreement. 53 While Mr Burns argues that WMQ “has its own board and executive, and management structure, and is completely separate from Uniting Care Queensland [and it] takes no direction from them”.54 Mr Crank argued that the:

“top level of management of the employer is that of the Uniting Church and it is the same for two groups - for both groups. The separation of the lower levels of management between the two brands is not relevant to the statutory criteria relating to fairness of choice of employees to be covered by the agreement. There is no conflict or divergence of interest between the two groups of employees that might justify dividing them into separate enterprise agreements which would be the result if this agreement was approved.” 55

[29] For the purposes both of the “fairly chosen” and the “genuinely agreed” contentions, it is evident from Mr Burns’ evidence that UPQT’s decision to separate WMQ employees from others followed his assessment that the WMQ employee cohort wanted an agreement and were more likely to vote for the agreement proposed by WMQ. He was not cross-examined to any great extent either on that assessment or the decisions subsequently taken by UPTQ or WMQ. The oral evidence about the decision does not go much beyond the following exchange when Mr Burns was asked in cross-examination about the proposition in his witness statement that “there were real substantive difference as between the claims sought by each of Blue Care and WMQ” and in particular about the example referred to in statement at paragraph 20(b):

(Mr Crank, for the QNMU) “I'm not asking about the 2013 agreement. I'm asking you about what Wesley Mission Queensland management and Blue Care management want?---In regards to 2016 and '17?

In regards to the time frame to which your statement at paragraph 20(b) relates?---Wesley Mission Queensland didn't share the same view ultimately or the same need to pursue the matter of broken shifts in the way in which Blue Care wanted to continue to negotiate.” 56

[30] The QNMU argue that the choice of the group to be covered by the WMQ Agreement is an “unfair industrial gerrymander”, with it being said that the “reason, or the main reason, for the employer choosing the group of employees it did to be covered by the Agreement is the way certain groups of employees voted in 2017 on the two preceding proposed enterprise agreements, both of which had the same scope as the current EAs”. 57 It is argued that there has been no agreement with the QNMU that there should be separate enterprise agreements for the Blue Care and Wesley employees,58 and that what has emerged are artificial employee groupings, with those groupings, insofar as it relates to WMQ, offending the reasoning in One Key. It is also submitted that approval of the WMQ Agreement would break up the care and support workforce of the enterprise into artificial employee groupings:

“In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 a Full Court of the Federal Court held, at [154] that a "primary purpose of [s186(3)] is to avoid the workforce of an enterprise being broken up into artificial employee groupings with the consequence that the workforce of the enterprise is unable to bargain as a single collective". Approval of the Agreement would break up the care and support workforce of the Employer’s enterprise into artificial employee groupings with the consequence that the workforce of the enterprise is unable to bargain as a single collective, as they have in all previous EAs which covered them.” 59

[31] WMQ reject this reasoning, arguing that it has come to this place because of differences within the workgroups and the organisation’s need to respond to those needs:

“11. WMQ and Blue Care had in June 2017 attempted to make an agreement that jointly covered their care and support staff. This attempt was unsuccessful (and been followed by an earlier unsuccessful ballot in September 2016).

12. The June 2017 ballot showed significant difference as between the two cohorts of staff, with WMQ-based employees supporting the proposed agreement, and Blue Care employees withholding their support.

13. On that basis, it was clear that progressing an agreement with the WMQ cohort of employees would likely proceed more efficiently, which was a factor that the CEOs of WMQ and Blue Care were entitled to take in deciding to separately bargain with those employees. There is nothing unlawful or unreasonable about that approach.” 60 (references omitted)

[32] Mr Burns’ evidence included that the Uniting Church in Australia’s operations in Queensland are conducted through the Queensland Synod of the Church. Established in some way under the auspices of the Synod was the Uniting Church in Australia Property Trust (Q). Also operated by the Synod, as one would expect, are numerous presbyteries and congregations, including the Albert Street, Brisbane congregation. While Mr Burns provided a diagram setting out some form of relationship between these entities, reproduced below, it is, frankly, unclear from his overall evidence whether the relationships purported to be shown in the diagram are strictly hierarchical, as one would ordinarily expect to read in an organisational chart or whether some other relationship operates between the various components:

“11. The below diagram demonstrates the operational distinction between UCQ and WMQ. That diagram was also provided to the Aged Care Royal Commission for the same purpose: 61

[33] That is, the evidence is not clear whether the presbyteries are controlled by the UPTQ and likewise it is unclear whether Uniting Care Queensland is controlled by the UPTQ or whether some other form of relationship is evident. In some respects, this does not especially matter within the context of Mr Burns’ clear evidence that:

“Because they are not body corporates, each of Blue Care and WMQ contract their services through the Property Trust. The Property Trust is also the 'approved provider' for the purposes of registration under the Aged Care Act 1997 (Cth) and the regulation of service provision under that Act.” 62

[34] Mr Burns’ evidence also included that WMQ is a part of the Albert Street, Brisbane congregation, with it being unclear which presbytery shown in the above organisational chart the congregation is part of. Through cross-examination Mr Burns acknowledged that the Uniting Church in Queensland undertakes its activities through only one entity, 63 with UPTQ being the employing body in Queensland. The QNMU argued that the legal structure of the employer was a matter to be considered, especially in relation to the matter of “fairly chosen”, with it being said:

“Particularly on the question of organisational distinctness the legal structure of the employer and the legal status, or lack of it, of Wesley Mission Queensland is a central feature in the question of whether there is organisational distinctness attributable to the group of employees covered by the agreement.

…

MR CRANK: The point, Commissioner, essentially is that Uniting Care Queensland - which is mentioned in paragraph 4 of the statutory declaration that I'm questioning Mr Burns about - is another umbrella brand for Blue Care which Wesley Mission Queensland says it's not part of, so that goes to part of the applicant's argument for distinctness. Our point is simply that Uniting Care Queensland is not a separate legal entity. It's not created under any regulations or any constitution of any organisation; it's simply another brand.” 64

[35] The QNMU argued in the course of the hearing that Uniting Care Queensland was not an “institution” within the meaning of the Regulations governing the operation of the Uniting Church in Australia. 65 Mr Burns conceded that it was accurate that WMQ is not an institution of the synod under the Uniting Church in Australia Regulations:

“As I understand it, that is correct. It's a ministry of the Albert Street Uniting Church and Moreton Rivers Presbytery.

Wesley Mission Queensland is not mentioned at all in the Uniting Church in Australia Regulations, is it?---Correct.” 66

[36] While that may be so, the status of the Regulations is unclear to me; they appear to have been made under the Constitution of the Church. Noting that there is a Uniting Church in Australia Act 1977 of the Queensland Parliament, which gives authority for “the assembly” to make regulations, 67 the regulations appear only to have that status and not to have been made as a legislative instrument of an Australian Parliament.

[37] The submissions of QNMU do not go so far as to suggest that UPTQ is not a national system employer. Instead the argument put by the QNMU is that given there is only one employing entity, being the UPTQ with WMQ and Blue Care being merely trading names that there can only be one employer party to the Agreement, namely UPTQ. As such, the QNMU argued, there is not an opportunity for the Agreement’s operation to be limited to employees of WMQ:

“MR CRANK: …The applicant rightly acknowledges that the Uniting Church in Australia Property Trust (Q.) - that is, the property trust - is a national system employer and that it is the employing entity for care and support employees who are associated with the trading names Wesley Mission Queensland - WMQ - and Blue Care.

The applicant's submission, however, then repeatedly uses the phrase "WMQ and Blue Care employees" when the employer's name is not WMQ or Blue Care, but rather the Uniting Church in Australia Property Trust (Q.). There are no employees of WMQ or Blue Care and therefore there are no WMQ and Blue Care employees. WMQ and Blue Care are trading names, not employers. We say there is no genuine agreement from employees for the agreement before the Commission. The applicant's submission says that the agreement clearly provides that its coverage is limited to employees who work within the WMQ's organisational structure, but the agreement does no such thing.

The agreement does not mention the phrase "organisational structure" or any synonym thereof in the agreement's coverage clause, which is clause 1.3.1. The coverage clause 1.3.1 simply provides that the agreement covers the employer, which is the property trust trading as Wesley Mission Queensland and employees classified in the classifications of the agreement. The mention of a trading name in connection with the name of the employer does not in any way limit the coverage of the agreement to employees who are associated with that trading name, in our submission.” 68

[38] The considerations to be taken account of in determining whether a group has been fairly chosen are set out above. Drawing upon those considerations, as well as the evidence before the Commission, the main question requiring determination is whether it was proper for WMQ or UPTQ to proceed on the basis of an agreement applying only to WMQ and to effectively excise Blue Care employees from bargaining.

[39] Noting that the reference in s.186(3) refers to the whole class of employees to whom the agreement might in future apply, not the group of employees who actually voted on whether to make the agreement, 69 there is not a need in this matter for an inquiry beyond the excision of Blue Care employees. The coverage of the types of employees and their classifications are otherwise identical to those in the Blue Care/WMQ and WMQ Agreements.

[40] There is also no evidence that the group chosen was arbitrary or discriminatory in its dimensions, other than in the respects argued by the QNMU that there was an arbitrariness to the separation of Blue Care employees from bargaining.

[41] The central question for determination in relation to the “fairly chosen” contention is whether the group of employees who are covered by the WMQ Agreement is geographically, operationally or organisationally distinct.

[42] The Uniting Church is said to provide “vast services” in Queensland, 70 with Blue Care and WMQ being part of those services. Ultimately the activities of both Blue Care and WMQ are activities of the Uniting Church in Australia with those activities being performed through the auspices of at least two different bodies. On the one hand the “ownership” derives from two different bodies – Uniting Care Queensland in the case of Blue Care and Albert Street, Brisbane congregation in the case of WMQ. On the other hand, the agencies “contract” their services through UPQT, presumably meaning that it is the UPQT which actually buys and sells the things needed to provide services, including those people it employs. According to the evidence of Mr Burns the UPQT is a body corporate established by the Uniting Church in Australia Act 1977 (Qld)71 and:

“Because they are not body corporates, each of Blue Care and WMQ contract their services through the Property Trust. The Property Trust is also the 'approved provider' for the purposes of registration under the Aged Care Act 1997 (Cth) and the regulation of service provision under that Act.” 72

[43] However, WMQ is formally part of the Albert Street, Brisbane congregation 73 and Blue Care is associated with Uniting Care Queensland, being an institution of the Synod.74 Both agencies provide services on a not-for-profit basis.75 It is also argued by WMQ that:

“The executive, governance and management of Blue Care and WMQ is distinct and separate. In that regard, the activities of WMQ are governed by its own Board and executive leadership team. Both also have separate and distinct on-the-ground management teams that report to their respective senior leadership teams.” 76

[44] Blue Care provides care and support services across Queensland, including in rural and remote areas, as well as in the Northern Territory. 77 While Blue Care provides services outside of the Northern Territory, the Blue Care/WMQ Agreement is limited to operation in Queensland.78 WMQ provides care and support services predominately in south-east Queensland, although it has plans to establish operations as far north as Harvey Bay, while not having plans to extend its services to Queensland’s rural and remote areas.79 The QNMU argued to WMQ during bargaining that there was not a geographic distinctiveness to the operations of the two agencies.80

[45] The evidence on both sides about the fairly chosen contentions is slight. On the part of WMQ there is some evidence, however what is provided is somewhat basic and limited to the material given in Mr Burns’ evidence, in a very high level summary form and couched as “also provided to the Aged Care Royal Commission for the same purpose”. 81 WMQ’s submissions carried the theme that material having been provided to the Royal Commission might establish the case in this tribunal. In response to a question about the QNMU’s contention that there was insufficient distinction between the groups, being an “utterly unfair basis”82 for choosing a group of employees to be covered, WMQ responded:

“MR ZIELINSKI: Well, the two cohorts of employees don't work side by side. I'm not aware of it being said in that clear manner perhaps, and perhaps it ought to have been, but there's no evidence either from the ANMF that there is some cross-pollination of workforces. I can say - and I apologise, this is from the bar table, but I know for a fact having done the responses of the property trust at the Aged Care Royal Commission that the aged care residential facilities are run completely separately.

The response given to the Aged Care Royal Commission was given under the banner of the property trust, but there were separate schedules provided in respect of each of the facilities run by Blue Care and each of the facilities run by Wesley Mission on the other hand. Even in respect to some of the policy questions that were put to the Aged Care Royal Commission there were distinctions drawn between Wesley Mission Queensland and Blue Care.” 83

[46] The point of the connection of the evidence in this matter with things submitted by WMQ to the Aged Care Royal Commission is unclear, and likely irrelevant.

[47] WMQ’s motives associated with pursuing a separate agreement are dealt with in summary form only, largely in Mr Burns’ witness statement. While in the past the cohorts have been covered by the same agreement “throughout this time, Blue Care and WMQ have maintained separate payroll and human resources teams”. 84 Other employee groups of the agencies have moved into separate agreements, including the administration and allied health employees. Analysis of the unsuccessful vote in May/June 2017 gave clarity to Mr Burns that “there were significant differences in views held by Blue Care and WMQ employee cohorts. I was not confident that, if bargaining continued on the basis of an agreement applying to both cohorts, it could result in an agreement being made in a timely manner”.85 He took account of there being different bargaining objectives within Blue Care and WMQ:

“20. In addition, there were real substantive difference as between the claims sought by each of Blue Care and WMQ. These differences were a further important reason why Blue Care and WMQ CEOs decided to bargain separately. By way of example:

(a) The existing care and support agreement contains limitations on the use of external contractors (for example, it provides that core services are only to be contracted out 'as a last resort). WMQ was content for these limitations to remain in part, and they are effectively mirrored in the 2018 EA. However, Blue Care's long-standing position was that such a provision be removed. Unless Blue Care changed its position (which I assessed as unlikely), I believed that this would be a key sticking point.

(b) Blue Care also wanted to introduce a number of additional flexibilities into a new agreement (particularly relating to broken shifts). However, WMQ was satisfied that it could obtain the flexibility it needed without wholesale changes to its enterprise agreement framework.” 86

[48] On the part of the QNMU no evidence has been brought forward regarding the structures about which it complains.

[49] The critical question is whether or not those matters satisfy the tests articulated in Cimeco, going to the matters of whether the group is geographically, operationally or organisationally distinct (s.186 (3A)), noting that the assessment of whether the group of employees covered by the agreement was fairly chosen will turn on the facts and circumstances of each case. 87 My view would be that the evidence is generally slight, but in the absence of compelling contradiction in cross examination, the evidence of Mr Burns is capable of acceptance. However, for the reasons I have set out, I am not yet prepared to make the requisite finding that the group covered by the Agreement is fairly chosen, taking into account whether it is geographically, operationally or organisationally distinct. So far as it goes, the evidence permits the following preliminary conclusions to be drawn:

•  In this case the group of employees covered by the Agreement are not only those presently employed by WMQ but also those who may be employed in the future, with the Agreement restricted to the classifications covered within it, with those classifications in turn being synonymous if not identical with those in the Blue Care/WMQ Agreement. In this regard, in the absence of any specific evidence on the subject, there is no need for detailed consideration of the potential coverage matters referred to within CFMEU v John Holland Pty Ltd [2015] FCAFC 16, 228 FCR 297 at [34]- [41];

•  There is no evidence beyond the most basic level that would satisfy the question of geographic distinctiveness and I make no findings on the subject. Such material as is before me does not go much beyond the propositions that Blue Care operates across Queensland, including in rural and remote areas and in the NT, whereas WMQ works in South East Queensland and has aspirations for expansion. A similar case emerges with the question of operational distinctiveness. Even allowing for the fact that there will rarely be operational distinctiveness in an absolute sense and that the lack of contact between employees in the performance of their normal duties suggests operational distinctiveness, 88 such evidence is not before me. There is insufficient evidence to make findings that the employees are geographically or operationally distinct, but there is some evidence, capable of acceptance, that there is likely an organisational distinctiveness, especially because of the agencies’ governance arrangements.89 On the other hand, the QNMU contention that Blue Care and WMQ are mere trading names, part of a wider entity may militate against such a finding. In this regard, the QNMU argues that WMQ:

“… rightly acknowledges that the Uniting Church in Australia Property Trust (Q.) - that is, the property trust - is a national system employer and that it is the employing entity for care and support employees who are associated with the trading names Wesley Mission Queensland - WMQ - and Blue Care.

The applicant's submission, however, then repeatedly uses the phrase "WMQ and Blue Care employees" when the employer's name is not WMQ or Blue Care, but rather the Uniting Church in Australia Property Trust (Q.). There are no employees of WMQ or Blue Care and therefore there are no WMQ and Blue Care employees. WMQ and Blue Care are trading names, not employers. We say there is no genuine agreement from employees for the agreement before the Commission. The applicant's submission says that the agreement clearly provides that its coverage is limited to employees who work within the WMQ's organisational structure, but the agreement does no such thing.” 90

•  Some, but incomplete evidence is available about the matter of organisational distinctiveness, noting that the term refers to the manner in which the employer has organised its enterprise in order to conduct its operations. 91 The available evidence is referred to above and has reference to the manner in which the Uniting Church has established various institutions and entities for the purposes of carrying on its business. Because of the lack of corporate status both Blue Care and WMQ “contract their services through the Property Trust”.92 Both agencies are subject to different governance arrangements and appear to work in different parts of the state. Against this the QNMU argued to WMQ during bargaining that lower level separation was not relevant and that ultimately it is the top level of management about which account should be taken:

“The two groups are not organisationally distinct, notwithstanding different branding between Blue Care and Wesley Mission. The top level of management of the employer is that of the Uniting Church and is the same for the two groups. The separation of lower levels of management between the two brands is not relevant to the statutory criteria relating to a scope order. There is no conflict or divergence of interest between the two groups that might justify dividing them into separate EAs.” 93

Such is likely a gross over-reach on the part of the QNMU. To take its argument to the ultimate conclusion, no ASX listed corporation would be able to establish its various business units working in similar fields could ever be organisationally distinct. However, on balance, while the matters referred to by WMQ in its evidence and submissions allow a tendency towards accepting that there is organisational distinctiveness, the evidence on the subject must be regarded as incomplete and insufficient to enable a positive finding on the subject.

•  It is to be noted that even on WMQ’s construction of who is covered by the proposed WMQ Agreement, it does not appear to cover all employees of WMQ. Instead, the Agreement is more precisely described as an agreement covering all of WMQ’s employees “for whom classifications are contained herein”. WMQ administration employees and allied health and community service employees are now under separate agreements. 94

•  The fact that the employees of WMQ are presently covered by an enterprise agreement also covering Blue Care employees could weigh in favour of the finding that selection of the group in this case was discriminatory and arbitrary.

[50] In overall context the evidence leans toward a finding that the group of employees covered by the WMQ Agreement was fairly chosen taking into account that the employees within the group may be geographically, operationally or organisationally, however for the reasons referred to, I do not make such a finding at this time. As a result of my observations about the evidence and that it leans to a positive finding, I am prepared to receive further evidence on the subject. Such evidence though must be cogent and persuasive. A repetition of the evidence given so far will, inevitably, lead to me not being satisfied the group was fairly chosen taking into account whether it was geographically, operationally or organisationally distinct. Such lack of satisfaction would in turn lead to the refusal of the application for approval of the Agreement.

NOT GENUINELY AGREED

[51] The Act prescribes the matters about which the Commission must be satisfied for approval of an enterprise agreement. Part 2 – 4, subdiv B, s.186 sets forth what it describes as the “general requirements” to be satisfied where the Commission is called upon to approve an agreement. That section provides in part as follows:

“When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

The phrase “genuinely agreed” as employed in s 186(2)(a) is defined in s 188.”

[52] Section 188 provides when it is employees have “genuinely agreed” to an enterprise agreement. That section provides as follows:

“When employees have genuinely agreed to an enterprise agreement

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.

[53] Subsections 180(5) and 180(6) are part of the “pre-approval steps” set forth in subdiv A of Div 4 to Pt 2-4 which relevantly state:

“Terms of the agreement must be explained to employees etc.

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

(c) employees who did not have a bargaining representative for the agreement.

[54] As referred to above, the QNMU argue three matters of substance about whether the WMQ Agreement has been genuinely agreed as follows:

•  Blue Care employees were not asked to approve the Agreement when they should have been, since as a matter of construction they are covered by the Agreement;

•  The wording employed in the NERR reinforces the matter, which is an argument both that the preapproval steps have not been followed, as well as a submission employees did not have the terms of the Agreement explained to them in the manner envisaged by s.180(5); and

•  That such explanation about the terms of the Agreement as was given was insufficient to meet the requirements of s.180(5) both as to the sufficiency of the explanation given as well is it failing to be provided in an appropriate manner since it gave insufficient regard to the special needs of the identified groups in s.180(6) and especially those with culturally and linguistically diverse needs.

Exclusion of the Blue Care employees/content of the NERR

[55] The first two of the QNMU’s “genuine agreement” objections relate to the scope and coverage of the WMQ Agreement, with a deliberate decision having been made by the Applicant to bargain only for an agreement in relation to WMQ employees.

[56] While ordinarily that may be an argument regarding whether the employees to be covered by the agreement are fairly chosen (s.186(3)), and in fact the subject is an objection raised by the QNMU as well, the submission is separately mounted by the QNMU that the way WMQ went about implementing its decision means the Commission may not be satisfied employees have genuinely agreed to the Agreement within the meaning of s.188 of the Act.

[57] The submission is mounted at two relevant and related levels. First it is submitted that the way in which the UPTQ is structured, coupled with the terminology employed by the employer’s notification to employees means that not all affected employees had an opportunity to bargain or consider for approval the Agreement purported to have been made on 21 September 2018. The second argument, an extension of the first, is specific to the wording of the NERR which implied wider coverage and the group ultimately covered by the Agreement.

[58] QNMU’s submissions on these matters included:

“4. The Agreement covers all employees in Queensland of the Uniting Church in Australia Property Trust (Q.) (the Employer) for whom classifications are contained in the Agreement. (Clause 1.3.1). Many such employees, including those who work in operations trading as Blue Care, were not asked by the Employer to approve the agreement and the Employer did not take any pre-approval steps in relation to them, contrary to the requirement of ss. 186(2)(a), 188(a)(i) & (b) and 182(1).

5. A trading name of the Employer, Wesley Mission Queensland (WMQ), is mentioned in the Agreement, but that does not restrict the coverage of the Agreement to employees associated with that trading name. Only a national system employer and its employees can be party to an enterprise agreement. A trading name cannot be a national system employer (or any kind of employer). WMQ is not a national system employer. The employer of employees who would be covered by the Agreement is the Employer, not WMQ.” 95

[59] QNMU’s assertion, set out above that the “Agreement covers all employees in Queensland of the Uniting Church in Australia Property Trust (Q.) (the Employer) for whom classifications are contained in the Agreement. (Clause 1.3.1)” is a misleading quoting of the clause. The QNMU has not quoted to any degree of accuracy what clause 1.3.1 actually provides:

“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.”

[60] While the union’s contention that the proper construction of the Agreement is that it covers “all employees in Queensland of the Uniting Church in Australia Property Trust (Q.) (the Employer) for whom classifications are contained in the Agreement” because of the circumstances of the making of the Agreement and its contents, to suggest that clause 1.3.1 says that it covers all employees of UPTQ is misleading.

[61] In MSS Security Pty Ltd v Liquor Hospitality and Miscellaneous Union (MSS Security), a Full Bench of the Commission considered when the obligation to bargain and to issue a notice of representational rights (NERR) arises in the context of a contested protected action ballot order. 96 

[62] MSS Security wassubsequentlyconsidered in Mermaid Marine Vessel Operations Pty Ltd v Maritime Union of Australia 97, where a Full Bench of the Commission made the following observations:

“[59] We do not accept that the misquote relied upon by the Appellant amounts to a misconstruction of the Act, nor did it alter the effect of the decision in MSS Security or result in a misapplication by the Commissioner of the decision. First, the reference to “broader scope” in the decision in MSS Security when considered in the context of the decision as a whole is clearly a reference to the Respondent’s proposed scope in that case. Secondly, for the reasons which follow, the misquoted paragraph did not lead to an improper application by the Commissioner of the decision in MSS Security.

[60] As to the second issue, we think the Appellant’s submission proposes a far wider proposition than that which is advanced in MSS Security. At [18] of MSS Secuirity, the Full Bench was considering the question of disputed scope in the context of whether an obligation to issue a NERR arose and if so whether it should be issued to employees within the broader or narrower scope. It was not making a statement of broader application. This seems clear when [18] is read with the paragraphs that immediately proceed and follow it, which for convenience we reproduce below:

[17] However, once an employer has agreed to bargain in relation to a group of employees within the scope of an agreement as proposed by a union or other employee bargaining representative, the employer is obliged to:

•  issue a notice of representational rights to the employees within the scope of the agreement proposed by the union or other employee bargaining representative; and

•  bargain in good faith in accordance with s.228.

[18] As the Full Bench in Stuartholme noted, “[t]he terms of [s.237] unambiguously suggest that bargaining may have commenced under the Fair Work Act even though the parties to the bargaining process are in disagreement about the scope of the proposed agreement.” Where there is a continuing disagreement between the bargaining parties as to the scope of the proposed enterprise agreement, the remedy for the party who wants a narrower scope is to seek a scope order pursuant to s.238. In the absence of such an order, bargaining will proceed on the basis of the broader scope, save that the parties are entitled to continue bargaining over the scope itself until such time as the scope of the proposed agreement is settled through bargaining or by the making of a scope order.

[19] It follows from the scheme of the FW Act that the obligation under s.173 is to issue a notice of representational rights to the broader class of employees even though the employer does not wish to have an agreement that extends that far. If it were otherwise, it would mean that an employer could always prevent an agreement having a broader scope than it desired by simply refusing or failing to issue notices of representational rights outside its desired scope. Such an outcome is inconsistent with the scheme of the FW Act.

[61] When read in context we think that the paragraph in issue in MSS Security should properly be interpreted as saying no more than a disagreement over scope may ultimately be settled either through bargaining, which may include protected industrial action, or by the making of a scope order. It must also be remembered that there is limited availability to scope orders. An application for a scope order is not an available remedy to resolve any disputes about scope per se. Before an application for a scope order may be made, a bargaining representative must have concerns that bargaining is not proceeding efficiently or fairly because that bargaining representative considers that the proposed agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover. Viewed in its proper context, a scope order is not a universal remedy for a dispute about scope, rather it is a remedy for bargaining that is not proceeding efficiently or fairly because of a bargaining representative’s view about employee coverage of a proposed agreement. Not every dispute about scope will have the effect of impeding bargaining in this way.” (footnotes omitted)

[63] In Maritime Union of Australia v Swire Pacific Ship Management (Australia) Pty Ltd  98 (Swire Pacific) a subsequent Full Bench of the Commission further clarified the effect of paragraph [19] in MSS Security as follows:

“[35] Thirdly, where scope of a proposed agreement is in dispute at the Notification Time, the NERR is to be given to employees within the broader scope of a proposed agreement.” (footnotes omitted)

[64] The facts in MSS Security are not dissimilar to those in the present case, even though the application was made pursuant to an application for protected action ballot order. In MSS Security, a union sought to commence bargaining for an enterprise agreement in relation to certain employees and the employer agreed to bargain for a narrower group of employees. The effect was that at the notification time, there was a dispute over the scope of the proposed agreement. The Full Bench found that once there has been agreement to commence bargaining whether between the parties or by means of an order of the Commission, the obligation under s.173 of the Act is for the employer to issue the notice to the broader class of employees 99 after which the scope of the agreement is a matter for bargaining.100 While the Full Bench did not go so far as to state that the reason for this interpretation is that once the notice is issued the scope can be narrowed without issuing a new notice, however, the Full Bench noted the scope of an NERR may be initially broad with bargaining being conducted over the breadth, with it being held that:

“[19] It follows from the scheme of the FW Act that the obligation under s.173 is to issue a notice of representational rights to the broader class of employees even though the employer does not wish to have an agreement that extends that far. If it were otherwise, it would mean that an employer could always prevent an agreement having a broader scope than it desired by simply refusing or failing to issue notices of representational rights outside its desired scope. Such an outcome is inconsistent with the scheme of the FW Act.

[65] The QNMU’s argument in respect of the Notice of Employee Representational Rights is that the content of the notice provided to employees was broad in its scope, and so broad that any resultant agreement is to be read back to the breadth of what was initially notified. In this regard its written submissions stated the following:

“The NERR for the Agreement says the employees to be covered are those “employed… within the classifications contained in the Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 2013” (the current EA).” 101

[66] Again, it must be pointed out that this submission is entirely misleading. While the QNMU may, on the basis of what was actually provided to employees mount a legal argument to the effect that the nature of the structure of the Church and the entities established by it are such that the scope of the notice is broader than that of the Agreement coverage or that, consistent with its arguments elsewhere that a “trading name cannot be as national system employer (or any kind of employer)”, in no way does the union replicate in its submissions that the notification which was actually given to employees which is in these terms, with the QNMU quotation in italics, and the omitted words underlined and italicised:

“Fair Work Act 2009, subsection 174(1A)

The Uniting Church in Australia Property Trust (Q.) trading as Wesley Mission Queensland gives notice that it is bargaining in relation to an enterprise agreement (Wesley Mission Queensland Care and Support Employees Enterprise Agreement 20 18) which is proposed to cover employees that are employed by the Uniting Church in Australia Property Trust (Q.) trading as Wesley Mission Queensland within the classifications contained in the Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 2013.” 102

[67] The provision of the NERR was dealt with briefly in the statutory declaration filed at the time of lodging the WMQ application, the F17, with the declaration indicating that the date of the last notice given to an employee who would be covered by the proposed agreement was on 20 April 2018. The F17 explains that the notice “was posted to the listed home Address of every employee covered by the proposed Agreement”. 103 Almost immediately the QNMU objected to the narrowing of the scope of the proposed agreement with that objection being through the means of both a phone call and email from Mr Crank to Mr Burns. The latter records in his witness statement that:

“On 24 April2018, I received a telephone call from Mr Crank. A few days before this call, WMQ had distributed NERRs that provided for scope of the 2018 EA to apply only to the WMQ employee cohort. In the course of our call, Mr Crank again reiterated the QNMU's preference not to negotiate for a WMQ specific care and support agreement, and said words to the effect that' ... the only way they might consider agreeing is if WMQ gave an undertaking that we would not reduce any condition from the existing EA and offer a significant pay increase'.” 104

[68] Notwithstanding what was said by Mr Crank to Mr Burns in the telephone call on 24 April 2018, his email from 2 May 2018 puts forward different objections. Instead of the objection being to ensure conditions were not reduced, it was couched in the email as being relating to the matters of “fairly chosen”, and in particular whether the Blue Care and WMQ agencies were geographically or operationally distinct. 105

[69] The highest which the QNMU’s argument rises in this respect is its submission that “[o]nly a national system employer and its employees can be party to an enterprise agreement. A trading name cannot be a national system employer (or any kind of employer)”. 106 To the extent that this is either an argument that an enterprise agreement can only apply to the entire enterprise and not just a part of it, or that alternatively a national system employer which operates under various trading names is unable to negotiate an enterprise agreement applying to only one of its trading names, it is plainly wrong. There is no presumption that may be made that an employer may not choose to bargain with different groups within its overall enterprise and to have resultant and price agreements pertaining to those different enterprises. Section 186(3) of the Act requires that before approval of an agreement that the Commission be satisfied that the group of employees covered by the agreement was fairly chosen. The Explanatory Memorandum for the Bill that introduced the section explained what this meant:

“775. Subclause 186(3) provides that if the agreement does not cover all employees, the group of employees covered by the agreement must be fairly chosen. There is no requirement that an agreement should cover all the employees of an employer.

The effect of the amended undertaking is to preserve the drafting in the Agreement as made, but to provide an increased rate for being on-call. Preserving the as-made clause ensures that the concern originally identified by the Commission has been met. There is nothing within the undertaking which involves the wholesale reshaping of the Agreement and the effect of the undertaking has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

•  Undertakings 9 and 10 – These two undertakings have been dealt with in greater detail earlier in this decision. In any event, WMQ have responded to some aspects of the QNMU’s criticism regarding the drafting of the undertaking by proposing an amendment which it suggests “results in a minor change compare (sic) to the 2018 EA which is beneficial to employees” 167 In comparison the QNMU suggests that the changes flowing from the two undertakings are complex and:

“49. … a) Any Aged Care Facility employee commencing a shift between 10am and 12pm will be paid an shift allowance of 10%, whereas no shift allowance (or similar) whatsoever is payable in such circumstances under the Agreement as voted, unless the majority of hours worked fall between 2pm and 6pm.

b) An Aged Care Facility employee who was employed prior to the commencement date of the Agreement (which is an unknown future date) commencing a shift between 12pm and 2pm will be paid a shift allowance of 12.5%, whereas no shift allowance (or similar) whatsoever is payable in such circumstances under the Agreement as voted.

c) Any Aged Care Facility employee working a shift which commences between 6pm one day and 6am the next day who does not work a majority of their hours between those times, will be entitled to a shift allowance of 15% (whereas no shift”

allowance (or similar) whatsoever is payable in such circumstances under the Agreement as voted.

d) An In-Home Community employee who was employed prior to the commencement date of the Agreement (which is an unknown future date) commencing a shift at or after 2pm but finishing before 8pm will be denied the shift allowance of 12.5% to which the employee is entitled by the Agreement as voted.

e) An In-Home Community employee employed on or after the commencement date of the Agreement (which is an unknown future date) commencing a shift at or after 12pm and finishing before 8pm will be denied the shift allowance of 12.5% to which the employee is entitled by the Agreement as voted.

50. Any In-Home Community employee commencing a shift at or after 6pm and finishing before midnight will be denied the shift allowance of 15% to which the employee is entitled by the Agreement as voted.” 168

The amended undertaking is in these terms:

“That the following clauses be applied in substitution of clause 7.10 of the EA:

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 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” 169

It is apparent from the amended undertakings that the hours arrangements would now be more closely aligned with those in the reference awards. The Aged Care Award provides for two different afternoon shifts; one commencing at 10:00 AM and before 1:00 PM, which attracts a 10% penalty rate; and another commencing at 1:00 PM and before 4:00 PM which attracts a 12.5% penalty. Quite obviously the proposal set out above provides a better outcome for a person whose shift starts at or after 12:00 PM and before 1:00 PM.

The amended undertakings ensure that the concern originally identified by the Commission has been met. There is nothing within the undertaking which involves the wholesale reshaping of the Agreement and the effect of the undertaking has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

•  Undertaking 11 – this undertaking deals with employees who are required to be available for duty in a client’s home for a 24 hour period as provided for under clause 6.5.5 of the Agreement. The undertaking responds to the Commission’s concern expressed in February 2019 in these terms:

“Remote overnight respite allowance (clause 6.5.5): (24 hour care): Agreement provides a flat rate allowance of$262.09 per 24 hour period. If an employee works 8 hours under the award, they receive 155% of their appropriate rate for each 24 hour period.”

The QNMU contends that a number of benefits presently in the clause would be lost to employees with the original amendment proposed by the WMQ:

“a) An employee’s right to agree or not agree to provide respite services for periods longer than 24 hours would be lost. The undertaking may allow the Employer to compel an employee to work a 24 hour care shift, and an employee may lose the opportunity to earn greater income from another activity by being compelled by the Employer to work a 24 hour care shift.

b) An employee’s right to be reimbursed for all reasonable expenses would be lost.

c) An employee’s right to be given time off in lieu at public holiday rates when the employee provides respite services on a public holiday would be lost;

d) An employee’s right to do respite work for no more than 10 days out of any 14 day period would be lost

e) An employee’s right to be assisted by a second carer when caring for a client classified as high care would be lost.

f) The reduction of the rate of the Remote Overnight Respite /24 Hour Care allowance payable to an employee who would be classified as a Home Care Employee Level 1 under the SCHCADS Award, from $256.32 per day in the Agreement as voted, to $252.56.

g) An increase in the rate of the Remote Overnight Respite / 24 Hour Care allowance for an employee who would be classified as a Home Care Employee above Level 1 under the SCHCADS Award from $256.32 per day in the Agreement as voted, to amounts up to $332.16.” 170

The WMQ responds by arguing that such detriment as is identified by the QNMU would be remedied by an amendment to the undertaking it put forward, the substance of which would be to replace the payment scheme in clause 6.5.5 with an obligation to pay “eight hours work at 155% of their base rate of pay for each 24 hour period rather that the flat allowance provided for in appendix 2 of the Agreement”. 171 The amended undertaking proffered by WMQ is in these terms:

“'That where an employee works respite services as contemplated in clause 6.5.5 of the Agreement, they will be paid eight hours work at 155% of their base rate of pay for each 24 hour period rather that the flat allowance provided for in appendix 2 of the Agreement'.” 172

The amended undertaking ensures that the concern originally identified by the Commission has been met. There is nothing within the undertaking which involves the wholesale reshaping of the Agreement and the effect of the undertaking has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

•  Undertaking 12 – This undertaking incorporates clause 25.5(f) of the SCHADS Award without removing any provision of the Agreement as made. Clause 25 is entitled “Ordinary hours of work and rostering” and clause 25.5 sets out a rostering scheme, with subclause (f) dealing with the eventuality of client cancellation and the entitlement of an affected employee to have been provided with notice and of the employer to require make-up time. The clause itself provides:

“(f) Client cancellation

(i) Where a client cancels or changes the rostered home care service, an employee will be provided with notice of a change in roster by 5.00 pm the day prior and in such circumstances no payment will be made to the employee. If a full-time or part-time employee does not receive such notice, the employee will be entitled to receive payment for their minimum specified hours on that day.

(ii) The employer may direct the employee to make-up time equivalent to the cancelled time, in that or the subsequent fortnightly period. This time may be made up working with other clients or in other areas of the employer’s business providing the employee has the skill and competence to perform the work.”

The undertaking was provided after the Commission expressed a concern in February 2019 in these terms (noting that the reference to “the Award” is a reference to the SCHADS Award:

“Client Cancellation: The Agreement is silent in relation to Client Cancellation. The Award provides that where a client cancels or changes the rostered home care service, an employee will be provided with notice of a change in roster by 5.00 pm the day prior and in such circumstances no payment will be made to the employee.”

When it raised its concern, the Commission saw within the Award but not the Agreement the right for an employee to be provided with prior notice of a client cancellation in which case payment would not be made for the cancellation; but in the event that sufficient notice was not given of the cancellation are right for payment would accrue to the employee. QNMU argues that if the undertaking were accepted then “an employee would lose the right to be paid for their rostered hours on a day if the employer advises them of a change to his/her rostered hours before 5:00 pm on the preceding day”. 173

The undertaking ensures that the concern originally identified by the Commission has been met. It ensures that the benefit available to employees working under the Award regarding client cancellation at the test time remains available to employees working under the Agreement. In the absence of any cogent evidence before the Commission that the absence of the clause in the Agreement was directly intended to provide a benefit to employees not within the Award, there cannot be a finding invited by the QNMU that inclusion of an undertaking dealing with the Award provision amounts to a detriment in comparison to the Agreement as made. There is nothing within the undertaking which involves the wholesale reshaping of the Agreement and the effect of the undertaking has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

•  Undertaking 13 – This undertaking deals with a sleepover allowance, which the Commission’s February 2019 concerns identified was in a different form to that in the reference SCHADS Award:

“Sleepover allowance (clause 7.11): Agreement provides an allowance of $46.33/overnight. The Award allowance expressed as 4.9% of the standard rate amounts to $47.04/night. Further, the Agreement provides where an employee is required to perform work immediately before or after a sleepover or a combination of both they will be provided with at least 4 hours work or payment for each instance. The Clause does not specify that this payment is in addition to the allowance as provided in Clause 25.7(f) of the Award. Further, the clause provides that a sleepover period is not to exceed 1a hours.”

The undertaking provides that the clause in the Agreement as made has no effect and that instead clause 25.7 of the SCHADS Award has operative effect. The QNMU critiques the clause on the grounds it provides these additional benefits to employees:

“a) An employee may refuse a sleepover in reasonable circumstances

b) The maximum period of a sleepover is increased from 1a hours to 8 hours.

c) An increase in the sleepover allowance from $45.31 to $47.04” 174

In the course of its submissions, the WMQ submitted that the undertaking was intended to resolve pay differentials and amended the originally proposed undertaking:

“The proposed incorporation of the clause 25.7 of the SCHADS Award was intended to address the pay differentials raised by the Commission in respect of sleepover work, and payment for hours worked before and after a sleep over.

To minimise the change made by the proposed undertaking, WMQ proposes the following revised undertaking:

'That employees required to sleep over as contemplated by clause 7.11 of the Agreement be paid an allowance of $47.04 per night with that rate be subject to the same rate of increase as contemplate in appendix 2.

For the avoidance of doubt, payment for work contemplated by clause 7.11.3 of the Agreement will be in addition to the sleep over allowance.

In addition, clause 7.11.2 of the Agreement refers to the sleep over period not exceeding 1a hours. This is an obvious typographical error. Accordingly, WMQ requests that the Commission exercise its direction under s 586 of the FW Act to correct the clause so that it refers to '10 hours'.”

The amended undertaking ensures that the concern originally identified by the Commission has been met. There is nothing within it which involves the wholesale reshaping of the Agreement and the effect of the undertaking has no significant bearing on working arrangements. The amended undertaking is not impermissible for these or any other reasons. It is reasonable that I exercise the discretion referred to by WMQ in its submissions about regarding the text of clause 7.11.2 of the Agreement as made.

•  Undertaking 14 – This undertaking deals with the matter of payments to be made to employees when they accompany clients on excursions, with the Commission’s original concern being expressed with reference the Agreement’s flat-rate regime:

“Excursions (clause 6.5.4):  The Agreement provides where an employee is required to accompany a client on an excursion and it is outside their normal working hours and is longer than 24 hours by mutual agreement a flat allowance can be paid in lieu of all other award and agreement entitlements (except superannuation) and all reasonable expenses should be reimbursed. It is unclear whether employees still receive payment for the time worked or the allowance compensates for time worked. It is also unclear how employees are remunerated if it is not outside normal working hours/longer than 24 hours. The Award (Clause 25.9) specifies an employee receives payment for ordinary time worked Monday to Friday 5am to 6pm up to a max 10 hours, overtime for all other hours (or TOIL if agreed) and a sleepover allowance.”

The QNMU notes an improved payment regime, with some detriment in respect of reimbursement of reasonably incurred expenses and time-off-in-lieu of payment of overtime when the work is on a public holiday;

“a) Payment to an employee at the ordinary rate of pay for time worked between the hours of 8.00 am to 6.00 pm Monday to Friday [$ 42.08 (2 hours’ wages or a CRE Level 2.1) - $284.50 (10 hours’ wages for a CRE Level 6.3)] rather than $256.32 by mutual agreement in accordance with the Agreement as voted;

b) An employee’s right to be reimbursed for all reasonable expenses incurred during the employee’s provision of respite services would be lost;

c) An employee’s right to be given time off in lieu at overtime rates when the employee provides respite services on a public holiday would be lost” 175

In contrast, the WMQ argues against adoption of the QNMU submissions, but nonetheless puts forward an alternative undertaking:

“Because of the high level at which the excursion allowance is set, WMQ expects that, in the vast majority of instances, employees will receive a higher quantum of pay that if clause 25.9 of the SCHADS Award were applied. However, to address these potential disparity, and to deal with the submission of the QNMU in respect of its claim that the undertaking removes important benefits, WMQ withdraws its earlier undertaking, and proposes the following alternative:

'That, where an employee who is classified as a CRE Level 4.2 employee or above agrees to work an excursion shift as contemplated by clause 6.5.4, they will be paid:

(A) at their base rate of pay for time worked between 8.00am to 6.00pm Monday to Friday (up to a maximum of 10 hours' pay); or

(B) the appendix contained in annexure 2,

whichever is higher.” 176

The amended undertaking ensures that the concern originally identified by the Commission has been met. There is nothing within the undertaking which involves the wholesale reshaping of the Agreement and the effect of the undertaking has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

[126] As identified, 14 undertakings have been given by WMQ. While a significant number, the analysis required of the Commission by s.190(3) is not a numerical analysis, rather, it is one directed at whether the undertakings taken collectively as well as individually or in any combination “result in the wholesale reshaping of the agreement, such that it bears no resemblance to the pre-undertaking agreement that was approved by employees”, while “simply increasing the quantum of various benefits will not ordinarily result in “substantial changes” for the purposes of s 190(3)”. 177 While so, the Commission should be alert to the possibility that the undertakings lead to an Agreement which is “radically different” to that which was originally made. 178

[127] Several of the undertakings are in relation to overtime, shift definitions and shift penalties; Undertakings 1 and 2 deal with overtime payments after two hours of overtime; Undertaking 4 is in relation to weekend and public holiday penalty rates; Undertaking 9 and 10 refer to the commencement times of shifts and the associated penalties; Undertaking 12 deals with the payments to be made to an employee for cancellation of an assignment due to a change in a client’s circumstances. Of those, it is likely the one that would have most impact on employees generally being the one dealing with the commencement time of shifts and associated penalties. I am satisfied that this, and the other “hours related” undertakings are incidental changes, rather than a wholesale reshaping of the Agreement.

[128] Some of the undertakings amend the quantum of or arrangements for certain allowances; Undertaking 6 adjusts the quantum of the Meal Allowance; Undertaking 7 deals with the rights of employees to a payment of a Higher Duties Allowance; Undertaking 8 refers to the quantum of and arrangements for the payment of an On-Call Allowance; Undertaking 11 refers to the Remote Overnight Respite allowance and in particular the payment to be made to employees; Undertaking 13 refers to the quantum of and arrangements for the Sleepover Allowance; Undertaking 14 deals with the matter of payment to employees required to undertake Excursions. I am satisfied that since these allowances are payable in relation to specific circumstances and would be unlikely to be paid in a way akin to an industry allowance or in some other way where it was likely to be part of the employee’s everyday wage, that the adjustments made through the undertakings are incidental and do not lead to a wholesale reshaping of the Agreement. Neither could it be said that the undertakings for these allowances lead to an agreement which is “radically different” to that which was originally made.

[129] Finally, Undertaking 3 refers to the rights of an employee taking compassionate leave, and Undertaking 5 is connected with the rates paid to trainees. These, too, are changes that should be regarded as incidental and not part of a wholesale reshaping of the Agreement.

[130] Whether individually, in combination or collectively, I am not satisfied that the undertakings given by WMQ, and as amended in these proceedings, lead to a wholesale reshaping of the Agreement. The undertakings do not leave the Agreement in such a state that it bears no resemblance to the pre-undertaking Agreement that was approved by employees. Neither may it be said that individually, in combination or collectively that they lead to an agreement which is “radically different” to that which was originally made.

[131] As a result of the foregoing analysis, I find that subject to the undertakings referred to above in this decision being provided in final form, 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 except for ss.186(3) and s.186(3A) which will be the subject of a call by me for further submissions. Specifically, I am satisfied that:

•  The pre-approval steps have been taken;

•  That in relation to s.186(2)(d), being the requirement that the Commission be satisfied the Agreement passes the better off overall test, I am so satisfied. In order to be satisfied I have considered the WMQ Agreement as a whole and compared it as at the test time with each relevant modern award. Those matters about which I held a better off overall concern were raised with the Applicant and Bargaining Representatives and have been satisfactorily dealt with through the giving of the undertakings detailed above. The provisions of the WMQ agreement, together with the undertakings given cause me to be satisfied the better off overall test has been passed.

•  The Agreement is genuinely agreed (except insofar as they deal with s186(3A);

•  The undertakings, as amended, may be accepted, provided that the words “otherwise be covered” are replaced with the words “are covered by”. The Applicant is directed to prepare a final set of undertakings and file and serve them within 7 days of this decision; and

•  The United Voice and The Australian Workers’ 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 these organisations.

•  Discretion is exercised pursuant to s.586 of the Act in relation to clause 7.11.2 to correct an obvious error by removing “1a” where it appears with “10 hours”, so that the clause reads:

“7.11.2. A sleepover period is not to exceed 10 hours.”

[132] Beyond these matters, and as set out in detail earlier in this decision, I am satisfied that while the evidence leans toward a finding that the group of employees covered by the WMQ Agreement was fairly chosen taking into account that the employees within the group may be geographically, operationally or organisationally distinct, that for the reasons referred to I have not made such a finding. In relation to that matter alone, I invite the filing of further evidence on the subject from each party, after which they may be afforded an opportunity to be heard if either party seeks a hearing, or the Commission considers a hearing to be desirable. In all other respects I consider the Agreement capable of approval, but with the undertakings referred to. I reiterate to the parties the matter indicated above in relation to the question of whether the group of employees covered by the Agreement was fairly chosen taking into account that the employees within the group may be geographically, operationally or organisationally distinct: a repetition of the evidence given so far will, inevitably, lead to me not being satisfied the group was fairly chosen; and such lack of satisfaction would in turn lead to the refusal of the application for approval of the Agreement.

[133] As a result, the following Directions are given for the filing of further material on this remaining matter:

[1] In relation only to the matter of whether the group of employees covered by the Agreement was fairly chosen taking into account whether the employees within the group may be geographically, operationally or organisationally distinct:

1. The Applicant and any party supporting approval of the WMQ Agreement is to file and serve such additional material and evidence it relies upon by no later than 4.00PM Tuesday, 13 August 2019; and

2. The QNMU and any party objecting to approval of the WMQ Agreement is to file and serve such additional material and evidence it relies upon by no later than 4.00PM, Tuesday 27 August 2019;

3. Should any party seek a hearing on these matters, with such to be identified in the party’s further submissions, or the Commission consider it to be desirable after reading the parties’ further submissions, the hearing will be convened on Thursday, 5 September 2019 from 10.00AM;

4. Should neither party seek a hearing (which request is to be identified in its written submissions filed by the dates set out above), but the Commission consider one to be desire a hearing, such will be advised to the parties by no later than 4PM, Friday, 30 August 2019;

5. The Commission will sit in Melbourne and video-conference facilities will be made available upon request in the Commission’s Brisbane premises.

[2] Liberty to apply is given to each party for further or alternative Directions.

COMMISSIONER

Appearances:

P. Zielinski of MinterEllison, for the Applicant.

S. Young and B. Watson for the AWU.

K. Crank and T. Buckley for the QNMU.

Hearing details:

2019.

Melbourne (VC to Brisbane):

8 May.

Final written submissions:

QNMU Submissions 22 May 2019

Printed by authority of the Commonwealth Government Printer

<PR710558>

 1   Exhibit WMQ 2, Statutory Declaration Gregory Burns, 1 April 2019, Attachment GB-8.

 2   Form F18, Statutory Declaration, Australian Workers’ Union, 16 October 2018, [4].

 3   Form F18, Statutory Declaration, United Voice, 26 September 2018, [4].

 4   Wesley Mission Agreement, clause 1.3.1.

 5   AE414446; Exhibit WMQ 2, [12].

 6 Exhibit WMQ 2, [15] – [16].

 7   Ibid, [20].

 8   Ibid, [18].

 9 See Exhibit WMQ 4, [38](a).

 10   Ibid, [30].

 11 Ibid, [38](c).

 12 Ibid, [38](f).

 13   Ibid, [32].

 14   Ibid, [34].

 15 Ibid, [38](j).

 16 Ibid, [38](k).

 17   Exhibit QNMU 1, Queensland Nurses and Midwives’ Union Submissions, 20 March 2019, [4].

 18   Ibid, [5]; Exhibit WMQ 4, Uniting Church in Australia Property trust (Q.) T/A Wesley Mission Queensland Submissions, 1 April 2019, [6] – [8].

 19   Exhibit QNMU 1, [6].

 20   Ibid, [9].

 21   Ibid, [10].

 22   Ibid, [27] – [30]; Exhibit WMQ 4 [29] – [30].

 23   Exhibit QNMU 1, [33] – [39]; [56] – [58].

 24   Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union, [2017] FWCFB 5826, [38]; see also the same matter at [2018] FWCFB 59, [15].

 25 [2018] FCAFC 77, 277 IR 2.

 26   Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 2206 [8].

 27   [2012] FWAFB 2206.

 28   UFU v MFESB; MFESB v UFU and Others, [2010] FWAFB 3009, [56].

 29   Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd, [2014] FWCFB 1476.

 30   Re ANZ Stadium Casual Employees Enterprise Agreement 2009[2010] FWAA 3758, [28].

 31   [2017] FWCFB 5826; see also Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74 [12].

 32   CFMEU v John Holland Pty Ltd [2015] FCAFC 16, 228 FCR 297 at [34]-[41].

 33   Ibid at [28]-[32].

 34   Ibid at [60]-62]; Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206, 219 IR 139 at [8].

 35   Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206, 219 IR 139 at [8].

 36 Ibid at [10].

 37 Ibid at [19].

 38   Ibid at [15], [20]; Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd [2016] FWCFB 1151 at [31].

 39   Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206, 219 IR 139 at [16].

 40 Ibid at [21].

 41   Ibid at [21]-[22]; CFMEU v Resco Labour & Training Pty Ltd [2012] FWAFB 8461, 228 IR 5 at [34].

 42   QGC Pty Ltd v Australian Workers’ Union [2017] FWCFB 1165 at [44].

 43   United Firefighters’ Union v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009, 193 IR 293 at [60].

 44   QGC Pty Ltd v Australian Workers’ Union [2017] FWCFB 1165 at [44]-[45].

 45   Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476, 242 IR 238 at [15]; see also National Union of Workers v Cotton On Group Services Pty Ltd [2014] FWC 6601 at [15]-[16] (permission to appeal refused in [2014] FWCFB 8899) and ASU v Shine Lawyers Pty Ltd[2017] FWC 4158 at [68]-[71] as examples of where the employer’s organisational structure was used to determine organisational distinctiveness.

 46   Exhibit QNMU 1, [4].

 47   Ibid, [7].

 48   Ibid, [9].

 49   Ibid, [10].

 50   Ibid, [12].

 51   Ibid, [5]

 52   Exhibit WMQ 2.

 53   Transcript, PN 242 - 244

 54   Ibid, PN 221.

 55   Ibid, PN 361.

 56   Ibid, PN 258 – 259.

 57   Exhibit QNMU 1, [12].

 58 Ibid, [12] – [18].

 59   Ibid, [19].

 60   Exhibit WMQ 4.

 61   Exhibit WMQ 2.

 62   Ibid, [8].

 63   Transcript, PN 162, 187.

 64   Ibid, PN 197 – 202.

 65   The Uniting Church in Australia Regulations.

 66   Transcript, PN 229 – 230.

 67   Uniting Church in Australia Act 1977 (Qld), s.33.

 68   Transcript, PN 345 – 347.

 69   CFMEU v John Holland [2015] FCAFC 16, (2015) 228 FCR 297, [34], per Buchanan J.

 70   Exhibit WMQ 2, [4].

 71   Ibid, [3].

 72   Ibid, [8].

 73   Ibid, [5].

 74   Ibid, [4].

 75   Ibid, [9].

 76   Ibid, [10].

 77   Ibid, [6].

 78   Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 2013, AE414446, clause 1.3.1.

 79   Exhibit WMQ 2, [7].

 80   Ibid, Attachment GB-3.

 81 In particular see Exhibit WMQ 2, [6] – [11].

 82   Transcript, PN 370.

 83   Ibid, PN 455 – 456.

 84   Exhibit WMQ 2, [12].

 85   Ibid, [17].

 86   Ibid.

 87   Cimeco, [46].

 88   Application by National Union of Workers [2014] FWC 6601, [14].

 89 For example, see Exhibit WMQ 2, [10] – [11].

 90   Transcript, PN 345 – 346.

 91   QGC Pty Ltd v Australian Workers’ Union[2017] FWCFB 1165, [44].

 92   Exhibit WMQ 2, [8].

 93   Ibid, Attachment GB-3.

 94 Exhibit WMQ 2, [13] – [14].

 95   Exhibit QNMU 1.

 96   [2010] FWAFB 6519, [15] - [19].

 97   [2014] FWCFB 1317.

 98   [2014] FWCFB 2587.

 99   [2010] FWAFB 6519, [19].

 100   Ibid, [20].

 101   Exhibit QNMU 1, [6].

 102   Notice of Employee Representational Rights, last distributed 20 April 2018.

 103   Form F17, Employer’s Statutory Declaration, Items 2.3 and 2.8.

 104   Exhibit WMQ 2, [24].

 105   Ibid, [26], Attachment GB-3.

 106   Exhibit QNMU 1, [5].

 107   Project Blue Sky v Australian Broadcasting Authority, [1998] HCA 28, (1998) 194 CLR 355, per McHugh, Gummow, Kirby and Hayne JJ.

 108   [2019] FWCFB 1717, [23] – [25].

 109   Ibid.

 110 Exhibit QNMU 1, [21] – [22].

 111   QNMU 1, [23].

 112 Ibid, [25] – [26].

 113   Diamond Offshore General Company v Michael Baldwin; Corey Billows; Brett Slocum; Craig Sandler; Daryl Byron; Adam Williams; James Richardson[2018] FWCFB 6907.

 114 [2017] FCA 1266, 270 IR 410.

 115   Ibid at [43] – [44] citing the judgement of Buchanan J in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2015] FCAFC 16, 228 FCR 297, 247 IR 55.

 116   One Key Workforce Pty Ltd v Construction Forestry Mining and Energy Union [2018]FCAFC 77, 277 IR 2.

 117 F17, Item 2.4.

 118   Exhibit WMQ 4, [19], with reference to BGC Contracting Pty Ltd [2018] FWC 1466 at [87].

 119   Form F17, Item 2.6.

 120 [2018] FCAFC 77, [112].

 121 Exhibit WMQ 2, [31] – [33].

 122 F17, Item 4.3, Exhibit QNMU 1, [25].

 123   Exhibit QNMU 1, [26].

 124 Exhibit WMQ 2, [32] – [33].

 125   Transcript, PN 290, 295 – 298.

 126   Exhibit WMQ 4.

 127   McDonald’s Australia Pty Ltd v Shop, Distributive and Allies Employees’ Association, [2010] FWAFB 4602.

 128 Exhibit QNMU 1, [27] – [30]; Exhibit WMQ 4, [29] – [30].

 129   Exhibit QNMU 1, [33] – [39]; [56] – [58].

 130   Exhibit WMQ 4.

 131   Exhibit QNMU 1.

 132   Transcript, PN 384 – 393.

 133   See Exhibit WMQ 4, [32].

 134   Ibid, [34].

 135   Ibid, [32].

 136   Exhibit QNMU 1, [31].

 137   Exhibit WMQ 4.

 138   Exhibit QNMU 1.

 139   Exhibit WMQ 4.

 140   Exhibit QNMU 1.

 141   [2012] FWA 2313.

 142   [2014] FWCFB 8589.

 143   [2018] FWCFB 3825.

 144   [2012] FWA 2313, [86].

 145   [2014] FWCFB 8589, [48].

 146   [2018] FWCFB 3825, [24].

 147   Re AKN Pty Ltd t/a Aitkin Crane Services 2015 FWCFB 1833, [34].

 148   Construction, Forestry, Mining and Energy Union v KAEFER Integrated Services Pty Ltd[2017] FWCFB 5630, (2017) 271 IR 273.

 149   [2018] FWCFB 3825, [25].

 150 Ibid, [33], [50] – [52].

 151   [2017] FWCA 3839, Annexure A.

 152   Exhibit QNMU 1, [41].

 153   Exhibit WMQ 4, [38(a)].

 154   Ibid.

 155   Exhibit QNMU 1, [41].

 156   Ibid, [43].

 157   Exhibit WMQ 4, [38(b)].

 158 Exhibit QNMU 1, [44] – [45].

 159   Exhibit WMQ 4, [38(c)].

 160   Exhibit QNMU 1, [47].

 161   Exhibit WMQ 4, [38(d)].

 162   Exhibit QNMU 1, [47].

 163   Exhibit WMQ 4, [38(e)].

 164   Exhibit QNMU 1, [48].

 165   Exhibit WMQ 4, [38(f)].

 166   Exhibit QNMU 1, [48].

 167   Exhibit WMQ 4, [38(g)].

 168   Exhibit QNMU 1.

 169   Exhibit WMQ 4, [32].

 170   Exhibit QNMU 1, [52].

 171 Exhibit WMQ 4, [38(h)]; with reference to [34].

 172   Ibid.

 173   Exhibit QNMU 1, [53].

 174   Ibid, [54].

 175   Ibid, [55].

 176   Exhibit WMQ 4, [38(k)].

 177   Construction, Forestry, Mining and Energy Union v KAEFER Integrated Services Pty Ltd[2017] FWCFB 5630, (2017) 271 IR 273, [39] – [41].

 178   [2018] FWCFB 3825, [25].