Viq Australia Services Pty Limited

Case •

[2024] FWCA 3601

•

15 OCTOBER 2024
[2024] FWCA 3601

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Viq Australia Services Pty Limited

(AG2024/2464)

VIQ AUSTRALIA SERVICES PTY LIMITED ENTERPRISE AGREEMENT 2024

Industries not otherwise assigned

COMMISSIONER TRAN

MELBOURNE, 15 OCTOBER 2024

Application for approval of the VIQ Australia Services Pty Limited Enterprise Agreement 2024

  1. VIQ Australia Services Pty Limited has applied for approval of an enterprise agreement known as the VIQ Australia Services Pty Limited Enterprise Agreement 2024 under s 185 of the Fair Work Act 2009.

  2. The Agreement is a single enterprise agreement.

Legislative Requirements

  1. Section 186 of the Act sets out the general requirements for the approval of an enterprise agreement. In summary, in relation to a non-greenfields single enterprise agreement, s 186 requires that the Commission must be satisfied that:

·   the agreement has been genuinely agreed to by the employees covered by the agreement: s 186(2)(a);

·   the terms of the agreement do not contravene s 55 (which deals with interaction between the National Employment Standards and enterprise agreements): s 186(2)(c);

·   the agreement passes the better off overall test: s 186(2)(d);

·   the group of employees covered by the agreement is fairly chosen, taking into account whether the group is geographically, operationally or organisationally distinct: ss 186(3) and (3A);

·   the agreement does not contain unlawful terms or designated outworker terms: ss 186(4) and (4A);

·   the agreement has a nominal expiry date that complies with s 186(5); and

·   there is a term about settling disputes: s 186(6).

  1. The Commission must also be satisfied of the additional matters in s 187, but these are not relevant considerations for this Agreement.

  1. The comparison award for the Agreement is the Clerks – Private Sector Award 2020.

Concerns

  1. After reviewing the Agreement, the application and supporting documents, and the Commission’s Agreements Teams checklist, I had various concerns with the Agreement, which I raised with VIQ Australia. The Australian Municipal, Administrative, Clerical and Services Union (ASU) also raised concerns in its Declaration Form F18 and in reply to the concerns I had raised with VIQ Australia. I therefore issued directions for submissions and listed the matter for hearing on 29 August 2024.

  1. In summary, the concerns related to:

·   whether the Agreement was genuinely agreed; and

·   whether the Agreement passed the better off overall test in s 193.

Genuine Agreement & Explanation of Terms

  1. The concerns raised included whether VIQ Australia had complied with its obligation under s180 to explain terms relating to:

·   wage increases and the interaction with this Agreement being the result of consolidation of 2 predecessor agreements; and

·   personal leave that includes mental health and menstruation leave

  1. In relation to an employer’s obligation to explain terms under s 180, Deputy President Gostencnik (as he then was) in re BGC Contracting[1] summarised the findings of One Key Workforce Pty Ltd v CFMEU[2] as:

1.   Compliance with s 180(5) of the Act depends on the circumstances.

2.   The focus of the Commission’s enquiry is on what steps the employer actually took. The Commission must then consider whether the steps were reasonable in the circumstances, and whether they were all the reasonable steps that should have been taken.

3.   The object of the steps is to ensure that the terms and effect of the Agreement is explained to employees in a manner that takes into account their particular circumstances and needs.

4.   The employer does not fall short if the employees do not understand.

  1. The Statement of Principles is now also relevant. Paragraphs 8 – 14 of the Statement of Principles deals with the requirements on an employer to explain the terms and effect of the Agreement. Principle 10 provides that s 180(5) will not be satisfied if the employer makes an incorrect representation or misleads employees by words, action or otherwise about a significant term of the Agreement or its effect.

  1. VIQ Australia informed the Commission that it explained the terms of the Agreement by holding multiple information sessions in May and June 2024 and providing an Explanatory Memorandum of the Agreement.

  1. The information sessions covered various aspects of the Agreement, including the classification structure and definitions. VIQ Australia submitted that the content of the information sessions was replicated in the explanatory memorandum. No information was provided about attendance at the information sessions.

  1. The explanatory memorandum was a detailed document about the Agreement which included a table of the rates of pay for each classification under the Agreement as well as a comparison chart explaining key provisions in the Award, the predecessor agreements and the Agreement. The explanatory memorandum was provided on 2 occasions, on 16 May 2024 and again on 7 June 2024, which was an amended version updated to incorporate feedback during the access period.

  1. The access period for the Agreement was extended following feedback received during the initial access period.

  1. The ASU provided a redacted email that encouraged employees to approve the Agreement with the reasons for that encouragement and a photograph of a Vote Yes board that included information about wage increases. The redaction removed who had sent the email.

  1. I am satisfied that the above steps taken by VIQ Australia to explain the terms and effect of the Agreement, including explaining the differences between the Agreement and its predecessor agreements as well as the Award are reasonable and that they are all reasonable steps. I am not persuaded the email with redactions nor the Vote Yes sign included misrepresentations and, in any event, there is no evidence that the email nor the sign were steps taken by VIQ Australia.

  1. I am therefore satisfied that the Agreement was genuinely agreed and was the result of an authentic agreement-making exercise.

Better Off Overall Test

  1. The concerns raised in relation to whether the Agreement passed the better off overall test included:

    ·   the delegates’ rights terms;

·   matters relating to the annualised salary provided for in the Agreement; and

·   classification matching under the Agreement and under the Award.

Delegates Rights

  1. Ultimately the ASU did not pursue its concern that the Agreement would not pass the better off overall test in relation to the delegates’ rights term. The ASU submitted that an assessment of whether the Agreement passed the better off overall test had to take into account that the Award now included the delegates’ rights term in clause 37A of the Award because the application for approval of the Agreement was made on 3 July 2024. VIQ Australia submitted that s205A of the Act did not have application as employees were asked to vote on the Agreement on from 17 June until 19 June 2024.

  1. I am in the unusual position of agreeing with both parties. The test time for the better off overall test is the time that the application is made,[3] and so I can consider whether the Agreement is better off overall than the Award having regard to the Award as it was on 3 July 2024, which includes the delegates’ rights term. The Agreement does not, however, have to comply with s 205A of the Act as, in accordance with transitional provisions in Item 96 of Schedule 1 to the Act, employees were asked to vote on the agreement prior to 1 July 2024.

  1. Clause 1.10 – Union recognition of the Agreement contains clauses that provide for a union representative to induct new employees, distribute union information and participate under the dispute settlement procedure. It also requires VIQ Australia to make new employees aware of the Union including providing the name of the local delegate. The clause allows for reasonable time to perform duties and reasonable access to administrative facilitates and 5 days of union training leave.

  1. I am satisfied that, together with other more beneficial terms, the Agreement passes the better off overall test notwithstanding that it does not contain all parts of the delegates’ rights term in the Award.

Annualised Salary

  1. The Union raised concerns that the annualised salary arrangements under the Agreement did not provide protections provided under the Award regarding record keeping, the provisions of the Award that would be satisfied by the annualised salary, the method of calculating the annualised salary and the outer limit number of ordinary and overtime hours that an employee could be required to work in a roster cycle.

  1. VIQ Australia submitted that the annualised wage arrangement in the Agreement does not have to facilitate compliance with payment of minimum wage rates under the Award but that the Commission needs to be satisfied that employees are better off overall under the Agreement, which includes the annualised salary arrangement, than they would be under the Award. I agree with that submission.

  1. Further, the Agreement contains clause 4.3(b), which provides that the annualised wage must not be less than the amount the employee would have received under the Agreement for work performed over the year, and that there is a reconciliation and payment of a shortfall, if any, each 12 months. While there are wage rates under the Agreement that are only marginally higher than Award minimum rates for equivalent classifications, I am of the view that overall employees will be better off under the Agreement taking into account clauses relating to 12 monthly reconciliation, obligation that employees are not paid less than the Agreement (where rates of pay are higher than the Award) and other monetary benefits (such as transcription incentives and paid travel time) and non-monetary benefits (such as more beneficial maximum ordinary hours and forms of leave).

  1. I am of the view that, making a global assessment and considering monetary as well as non-monetary benefits and subject to the undertakings referred to below, employees are better off overall under the Agreement than under the Award.

Classification Matching

  1. The parties disagreed about VIQ Australia’s matching of the Agreement’s classification to the Award classifications. The purpose of the classification matching is to allow the Commission to assess whether employees would be better off overall under the Agreement than under the Award.

  1. In the Union’s classification matching, 3 agreement classifications would not be better off overall. I have prepared a table, annexed to this decision, showing the Union’s classification matching compared with VIQ Australia’s classification matching, and the differences in rates of pay. It is the case that if the Union’s classification matching is accurate, it may be difficult to say that employees who are classified at those 3 classification levels under the Agreement are better off overall when considering the monetary amounts. But if VIQ Australia’s classification matching is accepted, than employees who are classified at those 3 classification levels could be better off overall, taking into account all other monetary and non-monetary benefits.

  1. The 3 classification levels are:

Annotators and Remote Monitors – Level 3

Annotators and Remote Monitors – Level 4

Annotators and Remote Monitors – Level 5

  1. The Award classification levels are broad based and would apply across many industries. The Agreement classification levels are specific to the work performed by VIQ Australia, that is transcription and monitoring services. The Award classification levels include indicative duties and skills, but these do not appear readily applicable to the work performed by VIQ. The Agreement lists specific requirements relating to recoding and monitoring, which scale up in accordance with the amount of court rooms being monitored at the same time. The highest level under the Agreement – Level 5 – requires representation as a subject matter expert, and the skills and willingness to support or train fellow team members.

  1. It does appear to me, based on the information provided by both parties, that the classification matching provided by VIQ is more accurate for the purposes of assessing whether employees would be better off overall under the Agreement than under the Award. The requirements for the Agreement’s Level 5 more accurately matches with the Award’s Level 4. In particular, only Level 5 in the Agreement classifications provide for training and peer support of others, which is a characteristic of Award Level 4. None of the Agreement classifications provide for supervision, which is a characteristic of Award Level 5.

Required terms

  1. The Union raised a concern regarding the Agreement’s flexibility term, in particular that it was less beneficial than the Award, as it did not provide for the notice period to terminate an individual flexibility arrangement as the Award provides. I formed the view that Clause 1.5 of the Agreement complied with s 203 of the Act, and that employees were better off overall under the Agreement than under the Award.

  1. The Agreement did not include a consultation term that complied with s 205 of the Act. Therefore, under s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

National Employment Standards

  1. Noting clause 1.3(a) of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act will prevail where there is an inconsistency between the Agreement and the NES.

Undertakings

  1. The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

  1. Subject to undertakings referred to above, I am satisfied that each requirement of ss 186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Union

  1. The Australian Municipal, Administrative, Clerical and Services Union (ASU) lodged a Form F18 statutory declaration giving notice under s183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) of the Act, I note the Agreement covers the ASU.

Operation & NED

  1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 22 October 2024.

  1. In accordance with clause 1.4(d) of the Agreement, the nominal expiry date of the Agreement is 3 years after the approval date, which is 22 October 2027.

COMMISSIONER


Annexure A

Annexure B


[1] See Re BGC Contracting Pty Ltd[2018] FWC 1466 at [75].

[2] [2018] FCAFC 77

[3] Fair Work Act 2009, s.193(6).

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