Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Australia & New Zealand
[2019] FWCA 294
•18 JANUARY 2019
| [2019] FWCA 294 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Veolia Environmental Services (Australia) Pty Ltd T/A Veolia Australia & New Zealand
(AG2018/2920)
VEOLIA ENVIRONMENTAL SERVICES (AUSTRALIA) PTY LTD WASTE MANAGEMENT (DRIVERS) METROPOLITAN ENTERPRISE AGREEMENT 2018
Waste management industry | |
COMMISSIONER WILSON | MELBOURNE, 18 JANUARY 2019 |
Application for approval of the Veolia Environmental Services (Australia) Pty Ltd Waste Management (Drivers) Metropolitan Enterprise Agreement 2018.
[1] This decision concerns an application by Veolia Environmental Services (Australia) Pty Ltd (Veolia) for approval by the Fair Work Commission (the Commission) pursuant to the provisions of the Fair Work Act 2009 (the Act) of the Veolia Environmental Services (Australia) Pty Ltd Waste Management (Drivers) Metropolitan Enterprise Agreement 2018 (the Agreement).
[2] The Agreement, if approved will cover approximately 26 employees engaged in four Veolia depots in Shepparton, Wodonga, Morwell and Bendigo. Veolia assert in the Form F17 Statutory Declaration filed by it in support of the Agreement that it contains provisions generally more beneficial than the relevant modern award, being the Waste Management Award 2010 (the Award), with two provisions being less beneficial for at least some of the employees to be covered by the Agreement. There was one employee listed in Veolia’s application as being an employee bargaining representative during the course of bargaining, together with the Transport Workers Union (TWU) who were listed as the union bargaining representative.
[3] The Agreement provisions indicated by Veolia to be more beneficial include:
• Minimum wages;
• Meal allowance;
• Leading hand allowance;
• Liquor Tanker allowance;
• Relief Driver allowance; and
• Overtime.
[4] The Agreement provisions indicated by Veolia to be less beneficial than the Modern Award as discussed above were:
• Hours of work; and
• Afternoon shift penalties.
[5] The application has progressed through the Commission’s usual processes, with several matters of concern being identified to Veolia for their consideration. Those matters were raised with Veolia on 13 September 2018 as follows:
‘Dear Ms Vanderpoel,
Re: AG2018/2920 - Veolia Environmental Services (Australia) Pty Ltd Waste Management (Drivers) Regional Enterprise Agreement 2018
I am writing in relation to the above agreement which has been allocated to Commissioner Wilson.
On review of the application, the Commissioner has raised the following;
1. Agreements lodged with the Commission must be signed by the employer and at least one representative of the employees, and must also specify the following:
I. The full name of each person who signs the agreement;
II. The address of each person who signs the agreement; and
III. The authority (i.e. position/title) of each person who signs the agreement
The Agreement has not been signed by an Employee Bargaining Representative and as such the Commissioner requests this be completed.
2. Clause 3.1 in relation to Interaction with the Award, states “…this Agreement is supplementary to, and shall be read and interpreted wholly in conjunction with the Waste Management Award 2010.”, the Commissioner does not accept that this clause formally incorporates the aligned Modern Award. The Commissioner requests an undertaking be provided that formally incorporates the Waste Management Award 2010.
3. The F16 - Application for approval of enterprise agreement (other than a greenfields agreement)(F16) , F17 - Employer's statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement)(F17), and also the front page of Agreement state that the title of the Agreement is the “Veolia Environmental Services (Australia) Pty Ltd Waste Management (Drivers) Regional Enterprise Agreement 2018”. Within the Agreement on page 4 it is stated that the title of the Agreement is the “Veolia Environmental Services (Australia) Pty Ltd Waste Management (Drivers) Metropolitan Enterprise Agreement 2018”. It is presumed that the word “Metropolitan” within the title on page 4 is a typographical error and should have its place “Regional”. If the aforementioned is correct , you may wish to request a correction under Section 586 of the Fair Work Act 2009, and submit a corrected page 4 of the Agreement to the Commission for insertion into the Agreement.
Regarding the Better Off Overall test (BOOT):
4. Ordinary span of hours under the Agreement have been expanded, whilst the aligned Modern Award provides that employees will work a maximum of 8 hours per day (before overtime penalties are provided), as such employees will not be better off. The Commissioner invites an undertaking in relation to this concern.
5. The afternoon shift span has been decreased by 1.5 hours, employees receiving small remuneration increases against the Award (in particular probationary employees) will not be better off overall when completing afternoon shift. The Commissioner invites an undertaking in relation to this concern.
If undertakings are to be provided, please ensure they are signed by the Employer. The Commissioner has also asked that you seek the views of any bargaining representatives regarding any proposed undertaking and provide evidence of such. Any objections to the proposed undertakings should be raised with the Commission prior to the approval of the agreement.
Can a response to the above please be provided as soon as possible, but by no later than close of business on Monday 17 September 2018.
If you have any questions, please do not hesitate to contact me.
Kind Regards,’
(formatting from original)
[6] Further concerns were also raised with Veolia on 3 October 2018 as follows:
‘Good Morning Mr Hesketh,
Commissioner Wilson thanks you for the below information and documentation.
Upon review of the information and documentation provided, and further, review of Transport Workers Union correspondence / concerns, the Commissioner raises the following;
1. In relation to company policies that are referred to within the Agreement, such as Privacy; Relocation Assistance (transfer); Domestic Violence; Veolia Drug & Alcohol. The Commissioner requests cogent evidence that these policies were made available to employees prior to being asked to approve the agreement, as to satisfy the requirements of s.180(2) and (5), and thereby there has been genuine agreement within the meaning of s.188.
2. In relation to Clause 22.1 of the Agreement and cashing out of annual leave, the Commissioner requests an undertaking that the clause will be consistent with Section 93 (2) (c) of the Fair Work Act 2009 (the Act).
3. In relation to Clause 22.8 (a) of the Agreement and the entitlement of paid public holiday/s, the Commissioner requests an undertaking that full time and part-time employees will entitled to a paid day off on each public holiday as provided for in S. 116 of the Act.
4. In relation to Clause 23.3 of the Agreement and abandonment of employment, the Commissioner requests an undertaking that clause 23.3 will operate in accordance with National Employment Standards (NES).
5. In relation the Agreement being signed by an Employee Bargaining Representative, the Commissioner raises that the Union does not have to sign the Agreement, and that other Employee Bargaining Representatives are able to sign the Agreement.
6. In relation to the Undertaking provided regarding “ordinary hours of days of work”, the Commissioner notes that the aligned Modern Award provides a maximum of 8 hours per day (before receiving overtime penalties) and is concerned that employees will not be better off overall. The Commissioner requests an undertaking of which provides a maximum number of hours per day employees complete, before receiving overtime penalties.
If undertakings are to be provided, please ensure they are signed by the Employer. The Commissioner has also asked that you seek the views of any bargaining representatives regarding any proposed undertaking and provide evidence of such. Any objections to the proposed undertakings should be raised with the Commission prior to the approval of the agreement.
Can a response to the above please be provided as soon as possible, but by no later than close of business on Friday 5 October 2018.
If you have any questions, please do not hesitate to contact me.
Kind Regards’
[7] While Veolia propose that the application is capable of approval, albeit with undertakings to be received by the Commission pursuant to s.190 of the Act, the TWU objects to approval of the Agreement. Succinctly stated, the TWU’s objections are in three parts:
• that the collective effect of the undertakings amounts to “significant changes” to the Agreement and that, for reason of the provisions of s.190(3)(b) of the Act, the undertakings should not be accepted as the basis for approval of the Agreement;
• that there has not been “genuine agreement” to the Agreement within the meaning of ss.186(2) and 188 since the Commission cannot be confident that employees had access to certain “material incorporated by reference in the agreement”, (s.180(2)(ii)) namely the Privacy, Relocation Assistance (transfer), Domestic Violence and Veolia Drug & Alcohol policies (collectively referred to as ‘the Policies’); and
• that since the Agreement is similar to another Agreement that was being dealt with by the Commission, in which the application for approval was withdrawn by Veolia because of the matters drawn to its attention by the Commission Member dealing with the application, this should also not be approved. This argument is based on the view that the earlier application, dealing with a different group of employees, could not be successfully approved without undertakings, with the Member being of the view that the undertakings provided would amount to substantial changes within the meaning of s.190(3)(b).
[8] Veolia responded to the concerns identified both by the Commission and the TWU by providing additional information for the Commission’s consideration, as well as with the provision of undertakings on four occasions. The second undertaking and those which came after it were provided to the Commission after the TWU identified its concerns and, to some extent at least, may be viewed as an endeavour by Veolia to address those concerns.
[9] The parties were afforded an opportunity to make submissions on the TWU’s objections and a hearing was convened by me on 19 November 2018. A further opportunity was also granted to parties at the conclusion of the hearing to provide final submissions.
[10] Upon review of the materials provided by the parties Veolia was advised that the Commission continued to hold concern regarding the second objection raised by the TWU regarding employees’ access to those policies incorporated in the Agreement during the seven day access period prior to voting. As a result Veolia was provided a further opportunity to provide submissions on this issue which included direction to provide statutory declarations from employees of the company regarding their access to these documents during the access period.
[11] Upon receipt of Veolia’s submissions which included three statutory declarations from employees of Veolia at the Wodonga, Morwell and Shepparton depots, the TWU indicated that they sought cross-examination of the employees who completed statutory declarations. As such the matter was scheduled for a further hearing by telephone on Thursday, 17 January 2019.
[12] I now deal with each of the TWU’s objections in turn.
Significant changes
[13] The TWU submit that the undertakings provided by Veolia equate to a substantial change to the terms of the Agreement and therefore cannot be accepted by the Commission due to the provision of s.190(3)(b) of the Act. The argument advanced by the TWU being that the undertakings when viewed as a whole lead to substantial change to the terms of the Agreement as voted on by employees. The TWU put forth that even if the undertakings provide a benefit for employees that they represent ‘a lost opportunity for employees’ to bargain over the form in which they wished to receive those benefits weighed against other terms and conditions of the Agreement.
[14] In specific terms the TWU raise the amendments to the hours of work provisions, personal leave notification and public holidays arguing that it is not the qualitative number of undertakings provided but the quantitative effect of those undertakings to which the Commission must turn its mind.
[15] Analogous to this was that ‘the effect of accepting the undertakings would be to unilaterally foist upon employees terms and conditions of employment for which they have not collectively bargained, being terms and conditions upon which they have not had an opportunity to vote’ on. The outcome of which is an ‘anathema to the objectives of the enterprise bargaining scheme as reflected in s.171 if the Act: that is, it would not serve to facilitate “simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits”, but would entirely defeat that objective.’
[16] Veolia rejects the TWU’s submissions putting forth that the undertakings provided do not lead to substantial changes. Veolia press the point that not only do all the undertakings result in benefits for the employees but also that the undertakings either provide clarity to entitlements already understood by employees or provided an increase in entitlements in line with the Award. While Veolia concede that two of the five undertakings provided do alter the effect of the Agreement, it submits that these amendments are minor and are in keeping with the Award provisions of which employees are familiar with. Veolia submit that the undertakings are not difficult to implement and simply make the Agreement more clear and concise on employees’ entitlements.
[17] The most recent undertakings provided by Veolia on 20 December 2018 are as follows:
‘…
Veolia commits to preserving the incorporated policies, as identified herein, during the life of the Agreement.
The specific Policies incorporated into the Agreement are identified in the following clauses:
• Clause 9.2 (c) – Privacy Policy
• Clause 9.6 (d) – Relocation Assistance
• Clause 22.3 (a) – Domestic Violence Policy
• Clause 22.6 – Parental Leave
• Clause 22.7 – Other Leave Policies
• Clause 24 – Drug and Alcohol Policy
2. Clause 3.1: This Agreement wholly incorporates the Waste Management Award 2010 (“the Award”).
3. Clause 13.1 a): Ordinary hours of day work shall be worked Monday to Friday, between the span of hours from 4am to 5pm. Daily hours worked in excess of 8 hours will attract overtime penalty rates as per Clause 18. Employees work a 40 hour week with two hours accruing towards a rostered day off.
4. Clause 16.1 a): Afternoon Shift means a shift where ordinary hours worked finish after 6.30pm and at or before 12.30am
5. Clause 22.1: An employee who elects to cash out Annual Leave will be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee has forgone. For the avoidance of doubt, this means that the employee will be paid applicable leave loading on the leave that is cashed out.
6. Clause 22.8 a): Full time and part time employees whose ordinary hours of work include a public holiday will be entitled to a paid day off at their base rate. If the employee is absent from work, for example, due to being on paid leave, and the employee would have been at work on the day of the public holiday if not for being on leave, the employee will be paid at the base rate. For the avoidance of doubt, if the employee does not have ordinary hours of work on the public holiday, the employee is not entitled to payment under this section. For example, the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday, or is a part-time employee whose part-time hours do not include the day of the week on which the public holiday occurs.
7. Clause 23.3: In relation to abandonment of employment, Veolia will take every reasonable and practicable effort to make contact with the employee before deeming an employee has abandoned his/her employment. Veolia will fully comply with s.117 of the Fair Work Act 2009.
…’
[18] Section 190(1)(b) of the Act provides that s.190 applies if the FWC has a concern that an enterprise agreement, for which an application for approval by the FWC has been made, does not meet the requirements in ss.186 and 187 of the FW Act.
[19] Sections 186 and 187 of the Act sets out a number of matters about which the Commission must be satisfied of in order for an enterprise agreement that has been made to be approved and take effect under the Act. Two of those requirements include:
‘186 When the FWC must approve an enterprise agreement—general requirements
…
Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:
…
(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.’
[20] Section 190(2) of the Act provides the FWC with a discretion to approve the enterprise agreement under s.186 of the Act if:
• the FWC has accepted an undertaking under s.190(3) of the FW Act, and
• the FWC is satisfied the undertaking meets its concern
[21] Section 190(3) of the Act relevantly provides that:
‘190 FWC may approve an enterprise agreement with undertakings
…
Undertakings
(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
…’
[22] In short, where the Commission has a concern that an enterprise agreement for which approval is sought does not pass the BOOT or contravenes the NES, the Commission may accept an undertaking that addresses that concern provided that the undertaking is not likely to cause financial detriment to any employees covered by the agreement or result in substantial changes to the agreement. Consideration of whether those conditions are met in any given case will require an evaluative judgment to be made in the nature of an exercise of a discretion.
[23] Seven undertakings have been provided by Veolia in the current matter, three dealing with matters pertaining to the NES namely those undertakings dealing with public holidays, termination of employment (abandonment of employment) and annual leave, three dealing with matters of the BOOT including the span of hours, afternoon shifts and incorporation of the Award and one dealing with incorporated policies. These undertakings span just over one page with all of the undertakings applying to permanent employees and 50% of the undertakings pertaining to casual employees. It is accepted by both parties that none of the undertakings provided are detrimental to employees.
[24] In CFMEU v Kaefer Integrated Services Pty Ltd, 1 the Full Bench stated that s.190(3) of the Act “does not permit undertakings that result in the wholesale reshaping of the agreement, such that it bears no resemblance to the pre-undertaking agreement that was approved by the employees.
[25] Several of the undertakings provided are relatively minor including those pertaining to Award incorporation, cashing out annual leave, public holidays; abandonment of employment and policy incorporated as these undertakings either clarify or slightly increase employees’ entitlements under the Agreement. The only two undertakings which appear to provide any real change are those which alter the span of hours of employees and those pertaining to afternoon shift penalties. The span of hours undertaking is altered from Monday to Friday, 4am to 8pm, to Monday to Friday, between 4am to 5pm, with daily hours worked in excess of 8 hours attracting overtime rates which is in line with the Award provision. The afternoon shift undertaking also brings the Agreement in line with the Award from work finishing after 8:00 PM and before 12:30 AM attracting afternoon shift penalties to work finishing after 6:30 PM and before 12:30 AM attracting the same afternoon shift penalty.
[26] While these undertakings amend the entitlements originally voted on by employees by a total of three hours with respect to span of hours and one and a half for afternoon shift penalties, ultimately these changes are still not substantial when looking at employees overall entitlements under the Agreement. In CFMEU v Kaefer Integrated Services Pty Ltd the Full Bench stated that:
‘In our view, simply increasing the quantum of various benefits will not ordinarily result in “substantial changes” for the purposes of s 190(3). It seems to us that the legislative concern is to avoid imposing on employees arrangements that they have not approved; employees are not likely to object to higher monetary amounts. The position might be more complex in relation to the reintroduction through undertakings of award-based benefits that were otherwise excluded by the agreement, if this were to have a significant bearing on working arrangements.’
[27] It is my view that the undertakings in totality do not amount to substantial change and simply increase the quantum of benefits of employees to be covered by the Agreement.
Genuine agreement
[28] Question 2.4 of the Form F17 Employer Statutory Declaration (‘Form F17’) provided by Veolia sets out the steps taken by the employer to ensure that either employees were given a copy of the written text of the Agreement and any other incorporated materials seven days prior to the start of voting or had access to such materials throughout the seven day period prior to the vote was answered by Veolia by stating that on 5 June 2018:
‘All employees covered by the proposed agreement were given a copy of the
final proposed agreement via hand.
All employees covered by the proposed agreement were also emailed a copy of
the proposed agreement and the Waste Management Award 2010.
Copies of the agreement and the Waste Management Award 2010 were placed
in lunch rooms, break out rooms and on notice boards.’
[29] On 3 October 2018 the Commission wrote to Veolia expressing concern that from Veolia’s answer at Q2.4 of the Form F17 it appeared unclear whether several polices incorporated in the Agreement were either made available to employees for the seven days prior to the vote or were provided to employees during that period.
[30] On 16 October 2018 Veolia responded to this concern advising that:
‘All policies are housed on Veolia's Intranet in order to ensure consistency and accuracy.
All drivers have access to the Intranet on site.
Core policies are also printed and placed in break out rooms when applicable. These printed policies are readily available at all times in the form of "Policy Packs".
Any changes or modifications to these policies are communicated to employees prior to their finalization.’
[31] The TWU submits that based on this response that there are reasonable grounds for believing that the Agreement has not been genuinely agreed to in accordance with s.188(c) and s.186(2)(a) of the Act. The reasoning being that the nature of the work being performed is away from the office, driving vehicles which meant that by placing the policies in hard copy at the depots was not easily accessible for drivers. Additionally, making the policies available on the Veolia intranet was equally ineffective as drivers don’t often log on to their computers every day in order to access such materials. As such, this meant that the policies were difficult to access and were not presented to employees in a way that would enable them to consider their contents when the time came to vote on approval of the Agreement meaning that genuine agreement could not have occurred.
[32] While Veolia concedes that it is unlikely that drivers log on to their computers every single day in order to view the contents of the policies, they submit that by placing the policies at site level in addition to on the intranet that this made the policies more easily accessible for drivers and that in combination the steps taken by Veolia were reasonable.
[33] After conclusion of the hearing on 19 November 2019 Veolia was provided with an opportunity to provide a further undertaking ensuring that no incorporated policy could be amended throughout the life of the Agreement which they did, as well. As providing further submissions regarding employees’ access to the incorporated policies during the access period. Veolia provided the following three statutory declarations in response:
‘I Paul William Anthony
of Veolia Environmental Services [address withheld]
Driver, do solely and sincerely declare that: -
My employment is covered by the proposed Veolia Environmental Services Australia Pty Ltd Waste Management (Drivers) enterprise agreement 2018
At this site as an employee I have access to Veolias Intranet Site, which houses all Veolias Policies. I have had access to this Sit Since I commenced on 15th October 2018.
I acknowledge that this declaration is true and correct, and I make it with the understanding and belief that a person who made a false declaration is liable to the penalties of perjury.
…”
“I Gregory Michael Membrey
of [address withheld]
Driver, do solemnly and sincerely declare that: -
I, Gregory Membrey, am an employee of Veolia Environmental Services located at 3 Jones Road, Morwell Victoria. My employment is covered by the proposed Veolia Environmental Services (Australia) Pty Ltd Waste Management (Drivers) Enterprise Agreement 2018 (AG2018/2920).
In addition, as an employee I have access to Veolia’s intranet site, which houses all Veolia policies. I have had access to this site since I commenced on.
Privacy Policy
• Clause 9.6(d) – relocation assistance
• Clause 22.3(a) – domestic violence policy
• Clause 22.6 – parental leave
• Clause 22.7 – other leave policies
I acknowledge that this declaration is true and correct, and I make it with the understanding and belief that a person who makes a false declaration is liable to the penalties of perjury.
…’
‘I Gregory Neils Thorp
of [address withheld]
in the State/Territory of Victoria
do solemnly and sincerely declare that:
My Employment is covered by the propose Veolia Environmental Services (Australia) Pty Ltd Waste
I am a full time employee located at 3 Drummond Rd Shepparton Vic 3630
At this site is a policy pack containing hard copies of the follow pages
• Clause 9.6(d) relocation assistance
• Clause 22.3(a) domestic violence policy
• Clause 22.6 parental leave
• Clause 22.7 other leave policies
In addition to this I have access to Veolia’s Intranet Site, which houses all Veolia policys.
I have had access to this site since 18/9/12017
This is the end of my declaration.
I acknowledge that this declaration is true and correct and I make it in the belief that a person making a false declaration is liable to the penalties or perjury,
…’
[34] Section 188 which deals with genuine agreements states that:
‘188 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.’
[35] Section 180 of the Act deals with the pre-approval steps that an employer must take in order for an agreement to be approved including relevantly:
‘180 Employees must be given a copy of a proposed enterprise agreement etc.
Pre-approval requirements
(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.
Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i) the written text of the agreement;
(ii) any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.’
(underlying added)
[36] In keeping with Deputy President Gostencnik’s decision in BGC Contracting Pty Ltd 2I find that the placing of policies on an intranet or in a public space does not amount to the ‘giving’ of incorporated materials to employees for the purpose of s.180(2)(a) of the Act given employees would be required to take the additional steps to log on to the intranet and download the policies or come in to the Depot in order to collect a copy of the policies. However, I do find that the steps taken by Veolia amounted to ‘reasonable steps’ taken by the employer to provide ‘access’ to the policies throughout the access period in accordance with s.180(2)(b) of the Act. The requirement in s.180(2)(b) of the Act is concerned with enabling each employee to have access to an enterprise agreement and any incorporated material. Access to an enterprise agreement and any incorporated material need not involve physical possession of the document(s) and so would encompass for example, an employer leaving copies of documents in a staff room or other area where employees are able to gather and can review the documents or to provide copies of documents on an employee intranet site which all employees have access to. In these circumstances, the access must be arranged by the start of the access period and employees must have access to the documents throughout the period. It seems to follow that the reasonable steps directed to achieving the end in s.180(2)(b) must be taken before the access period begins. All three of the statutory declarations provided by Veolia employees confirm that firstly they had access to the intranet site since the commencement of their employment and secondly that that access encompassed the entire access period.
[37] The Deputy President further noted with respect to s.180(2) of the Act that:
“[42] The word “ensure” in s.180(2) suggests that whichever method is selected by the employer, the reasonable steps that are to be taken should be directed to securing or guaranteeing or making sure or being certain that relevant employees are given a copy of the agreement and any incorporated material during the access period or that they have access to the material throughout the access period. This underscores the difficulty underpinning the analysis in McDonalds. That a document which is incorporated into an agreement is publically available, for example, on a website, in and of itself seems to me to do little to “ensure” that relevant employees who are being asked to vote to approve, inter alia, that the document will be a term of the agreement, have access to it. I do not consider that the word “all” in connection with reasonable steps means that every available or conceivable step that is available must be taken. Rather steps that are reasonable in the circumstances and which are directed to achieving the ends specified in s.180(2)(a) or (b) are to be taken.
[43] A requirement or obligation to take “all reasonable steps” seems to me to require the identification of the steps a reasonable person would regard as reasonable in the circumstances that apply. Whether particular steps are reasonable will depend on the particular circumstances existing at the time the obligation arises. A requirement to take all reasonable steps does not extend to all steps that are reasonably open in some literal or theoretical sense. 3 The assessment of whether an available step was reasonable must also be judged against the objective that is sought to be achieved by the imposition of the obligation to take “all reasonable steps”. In the case of s.180(2), the objective of the reasonable steps is directed to ensuring that all relevant employees are given, or have access to, an enterprise agreement and any incorporated material, during or throughout the identified period. That is, that the employees have the opportunity to review the material before being asked to approve the agreement in order that employees make an informed choice. In some cases, only one step will be required to achieve this objective, for example by the employer giving each relevant employee a copy of an enterprise agreement and any incorporated material during the access period. But absent such a step, and depending on the circumstances, several steps may be required to be taken by the employer in order that the objective is achieved and the obligation is discharged.”
[38] Taking into account the totality of the steps taken by Veolia in that the policies were not only available to employees in hard copy at Depots but also online on the Veolia Intranet I find that these steps in combination amount to ‘reasonable steps’ in the circumstances. Employees to be covered by the Agreement are ‘drivers’ of various vehicles making it foreseeable that they would spend a majority of their time offsite and not at Depots. As such, by providing the policies both at Depots and online provided a reasonable mechanism in order to provide access to materials during the access period. Short of printing each document in hard copy and sending the materials by registered post to each employee to be covered by the Agreement there are few steps which could more effectively ensure employees are provided access to such materials.
Comity of decision making/the withdrawal of an application for another agreement should sway the Commission in this decision
[39] The TWU put forth in their submissions that at least one other similar agreement, the Veolia Environmental Services (Australia) Pty Ltd Waste Management (Drivers) Metropolitan Enterprise Agreement 2018 (the Metropolitan Agreement) which was lodged in the Commission and reviewed by Deputy President Masson was on substantially the same terms as the current Agreement before me save for the wage rates. The view being that because the Deputy President indicated to parties that he had reached the preliminary view that the Agreement could not be approved as the undertakings provided did not address a large number of the issues raised and that such would cause substantial change that this Agreement could therefore not be approved either.
[40] The TWU put forth that while it was Veolia who ultimately withdrew the application that the Commission should be bound by comity to provide consistency in how it deals with applications for approval of enterprise agreements.
[41] In opposition to the TWU’s submissions, Veolia put forth that while Deputy President Masson did raise a number of preliminary concerns regarding approval of the Metropolitan Agreement that it was Veolia’s decision to withdraw the application not the Deputy President’s. Veolia submits that there were a larger number of concerns raised with respect of the Metropolitan Agreement which agitated the application and led to Veolia’s decision to withdraw the application. Veolia’s position is that given the current Agreement does not contain such a large number of concerns as raised in the Metropolitan Agreement’s application that the same action in withdrawing the application would not be appropriate.
[42] I note that given Deputy President Masson did not choose to issue a formal decision regarding the application for the Metropolitan Agreement that at present there is no decision before the Commission in which I am bound by or that I must have regard to. While concerns may have been raised by the Deputy President, the absence of a decision means that there is no precedent in which to be followed. Additionally, the TWU has failed to provide cogent submissions on the issue of comity or provide any forensic analysis of the similarity of these agreements such that would cause the Commission to dismiss the application. As such, I do not find that the application should fail on this point.
CONCLUSION
[43] Having considered all the material before the Commission, I am not persuaded that approval of Agreement with the undertakings provided would amount to significant changes to the Agreement, or that there has been a lack of genuine agreement by employees to be bound by it; or that approval of the Agreement would show a lack of comity with other decision making by the Commission.
[44] Subject to the undertakings referred to above, and for the reasons incorporated in this decision, 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.
[45] The TWU being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.
[46] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 January 2019. The nominal expiry date of the Agreement is 30 June 2021.
COMMISSIONER
1 [2017] FWCFB 5630 at [41].
2 [2018] FWC 1466, [36]-[38].
3 See The Maritime Union of Australia v Northern Stevedoring Services Pty Ltd [2016] FWCFB 1926 and Bluescope Steel Ltd v The Australian Workers’ Union, New South Wales (2004) 137 IR 176 at [67]-[71]
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