[2018] FWC 1668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wangaratta Rural City Council
(AG2017/4166)

COMMISSIONER LEE

MELBOURNE, 4 APRIL 2018

Application for approval of the Wangaratta Rural City Council Enterprise Agreement 2017 – 2021 – not satisfied employees genuinely agreed as employer did not comply with requirements of s. 180(2) – application for approval dismissed.

Introduction and Background

[1] Wangaratta Rural City Council (the Applicant) has made an application pursuant to s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the Wangaratta Rural City Council Enterprise Agreement 2017-2021 (the Agreement).

[2] The date on which the voting process by which employees approved the Agreement concluded on 31 August 2017. The Agreement was not supported by the Australian Municipal, Administrative, Clerical and Services Union (ASU) which ran a vote No campaign, while the Applicant promoted a Yes vote for the Agreement. Ultimately the Agreement was narrowly approved by a majority of employees. The application for approval of the Agreement was lodged with the Fair Work Commission (the Commission) on 12 September 2017. I note that prior to this, the Applicant had sought employee approval of a proposed enterprise agreement in or around July 2017 (the first agreement). However, the Applicant’s attempt to have a majority of employees approve the first agreement was unsuccessful.

[3] Three unions lodged Form F18 statutory declarations in relation to the Agreement. The Australian Nursing and Midwifery Federation (ANMF), The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the Australian Municipal, Administrative, Clerical and Services Union (ASU). Both the ANMF and APESMA indicated that they agreed with the matters contained in the Applicant’s Form F17 statutory declaration and that they supported approval of the Agreement by the Commission. The ASU indicated that they did not agree with the matters contained in the Applicant’s Form F17 statutory declaration and did not support approval of the Agreement by the Commission. In respect to disagreeing with an answer in the Form F17 the ASU stated the following at question 5 in the Form F18:

“The employer did not take all reasonable steps to ensure that the relevant employees:

(a) were given a copy of the written text of the agreement and other material incorporated by reference into the agreement; or

(b) had access to the above materials throughout the access period.”

[4] The Commission wrote to the ASU on 27 November 2017 asking for further information and evidence about the unions concern in relation to this issue. Mr Yap of the ASU replied on 29 November 2017 setting out the matters of disagreement with the Applicant’s Form F17 and attached a witness statement of ASU delegate Mr Darren Gilbert, a Groundsman at the Applicant’s Newman Street Depot. The central issue raised by the ASU was a claim that the Applicant had not complied with s.180(2) of the Act. The ASU pointed out that the Applicant had given a copy of the written text of the enterprise agreement to the majority of employees by sending it to staff via email on 22 August 2017. The ASU did not take issue with this approach satisfying the requirement of s.180(2)(a) for the majority of the Applicant’s employees. The focus of the ASU submission was directed to one particular work site of the Applicant, the Newman Street Depot. The ASU submitted that the Applicant had failed to comply with s.180(2) of the Act in that a number of the employees at the Newman Street Depot are not provided with a work email address and do not access email as part of their job and whose personal email addresses are not recorded with the Applicant. Therefore, those employees were not given a copy of the written text of the Agreement via email in the same manner as the majority of the Applicant’s employees.

[5] The ASU further submitted in its email of 29 November 2017 that the Applicant did not take all reasonable steps within the meaning of the Act to ensure that these particular employees of the Newman Street Depot had access, throughout the access period for the Agreement, to a copy of those materials. The ASU noted that the Form F17 submitted by the Applicant stated that “Multiple copies of the Agreement were made available in staff lunchrooms across the Employer’s worksites”. The ASU disputed this claim, submitting that there were no copies of the written text of the Agreement available at the Newman Street Depot lunch rooms at any time during, or prior to, the access period, including 22 August 2017 to 30 August 2017. The witness statement of Mr Gilbert indicated that he did not see any copies of the Agreement at the Newman Street Depot during the access period. 1

[6] The ASU also submitted that while it accepted that the Applicant held information sessions with employees in relation to the Agreement, some employees did not attend those sessions as part of the taking of protected industrial action at the time. The ASU claimed that employees were not otherwise advised that copies of the proposed Agreement were available from Human Resources or Management. Reference was also made to the Applicant’s intranet known as SharePoint. The ASU do not dispute that a copy of the Agreement was available on SharePoint. However, the ASU submitted that many of the employees at Newman Street Depot do not have the relevant skills to navigate SharePoint and that their work did not allow for ready access to computers or the time to do so. Finally, the ASU submitted that the Applicant should have either made hard copies of the Agreement accessible at the Newman Street Depot and informed employees at the depot of the location of the documents availability or simply provided hard copies of the Agreement to employees who were not sent the 22 August 2017 email.

The first statutory declaration of Ms Shanks

[7] The Applicant responded to the ASU’s correspondence on 1 December 2017. The Applicant’s representative, Mr Feldman, emailed the Commission and the parties submitting that the Applicant had fully complied with the requirements of s.180(2) of the Act. A statutory declaration of the Applicant’s Manager, People and Culture, Ms Fiona Shanks was attached to the correspondence. Mr Feldman stated that the statutory declaration was prepared on 27 September 2017 “…in anticipation that the ASU may attempt to make a technical challenge to prevent the approval of the Agreement in the event that a majority of employees voted in favour”. Mr Feldman’s email drew my attention to the fact that the ASU ran an extensive “Vote No” campaign against the Agreement and that ASU members took protected industrial action during the access period and that despite the campaign of opposition, a majority of employees voted in favour. I note that the Applicant no longer relies on the email dated 1 December 2017 sent to the Commission or the statutory declaration of Ms Shanks. 2 Consequently I have not relied on their contents in determining this matter. However, the fact that the statutory declaration was made at all raises concerns about the credibility of Ms Shanks. To understand why I am of this view in relation to Ms Shanks’ credibility it is necessary to consider the contents of the first statutory declaration.

[8] As to compliance with s.180(2) of the Act Ms Shanks declared in the first statutory declaration dated 27 September 2017 that she believed reasonable access to the Agreement was provided to employees and thereafter set out a number of activities that were undertaken. These activities included:

• A direct email sent on 22 September 2017 from the Chief Executive Officer to 347 employees attaching a complete copy of the Agreement and an Information Pack. This left 28 employees who did not receive a direct email.

• An email from Ms Shanks was also sent on 22 September 2017 to 235 recipients which “picked up one of the 28 recipients that does not have a personal address on file”.

• The Applicant’s Intranet which is accessible by all employees’ at all Council locations contained a copy of the Agreement and Information Pack and the 28 employees who had not been emailed a copy of the Agreement could access the Agreement at various locations.

• A hard copy was printed and distributed of both the Agreement and the Information Pack and these were placed in all staff tea room locations. These materials were continually replaced at the Field Services Depot (Newman Street) as it was regularly removed by ASU delegates as part of their protected action campaigning strategy.

• Posters were distributed across all worksites outlining the key issues and directing people to access points for the document.

• The Applicant consulted with employees face to face at numerous meetings including the Depot staff.

• The Depot Staff (Newman Street) were consulted on 23 August 2017 where 14 employees walked out of the meeting as part of their protected industrial action. 10 of the 14 staff were staff in the group of 28 who did not receive the Agreement by email. Both documents were available at this meeting and had also been previously left in the staff tea room.

• Multiple emails were sent highlighting to employees that the Council was currently in a notification period prior to the Agreement vote and promoting a part of the Agreement that was of concern, with a request that Supervisors print these notices and place them on notice boards. 3

[9] Ms Shanks declared that the Applicant followed the same process that was conducted in the first round of voting which was not disputed by the Australian Services Union. 4
[10] The matter was listed for Mention Hearing on 8 December 2017. Mr Yap appeared on behalf of the ASU and Mr Feldman was granted permission to appear for the Applicant as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. At the time of the Mention Hearing, the statutory declaration of Ms Shanks made on 27 September 2017 had not been withdrawn. Mr Yap for the ASU continued to dispute that all reasonable steps were taken, and in particular continued to vigorously dispute that hard copies of the Agreement had been left in the lunchroom and/or had been removed by union delegates as claimed by Ms Shanks. Therefore, at the time of setting the directions it was apparent that there was a significant factual dispute as to what the Applicant had or had not done by way of providing access to a copy of the materials. It was common ground that the only issue that was said to represent a barrier to the Commission approving the Agreement was whether or not the Applicant had complied with s.180(2)(a) of the Act.

[11] On this point, the ASU agreed that I could be satisfied there was compliance with s.180(2) if in fact multiple copies of the Agreement were left in the Depot. However, the ASU maintained strenuously at the Mention Hearing that this had not in fact occurred, despite the statutory declaration of Ms Shanks. At the conclusion of the Mention Hearing, Mr Feldman spoke of the desire to have the matter resolved by Christmas and urged the ASU to give some further consideration as to whether to proceed with its objection, taking into account the impact that this will have on its members and other employees. 5

[12] I note that at the Mention Hearing the ASU were content to confine their argument to the Newman Street Depot. 6 However, my attention was drawn to other employees of the Applicant who do not have access to email. There are in fact 28 employees across the Council who have not provided the Applicant with an email address for work related emails (non-email employees).

[13] Directions were set for the filing of relevant materials. When the Applicant filed its materials, it submitted that it was not relying on the email of 1 December 2017 sent to the Commission and the statutory declaration of Ms Shanks dated 27 September 2017. In particular, what was the previously clearly articulated claim made by Ms Shanks that the Applicant had left hard copies of the Agreement at the Newman Street Depot and the associated claims that the ASU representatives had been removing them as part of their bargaining strategy were no longer part of Ms Shank’s evidence. Ms Shanks was asked during the hearing why she made those claims in the 27 September 2017 statutory declaration which was now withdrawn. Her answer was to the effect that at the time she thought it was correct and that her second statement made in January 2018 was done after “doing proper due diligence, rather than doing it in a rush”. 7

[14] I have significant concerns about this explanation. It lacks credibility. Firstly, I note this answer was given shortly after Mr Feldman on an interjection dealing with the status of the 27 September 2017 statutory declaration had apparently sought to provide evidence from the bar table as to the circumstances in which it was made. 8 Secondly, the statutory declaration was prepared as a specific counter to the claims that the Applicant expected the ASU to raise as noted in the 1 December 2017 correspondence. Ms Shanks’ evidence was at the time she made the statutory declaration the Applicant had “only anecdotally heard that the ASU were going to make objection” and she was about to take a period of leave.9 One would have thought that some due diligence would have been applied by Ms Shanks when this statutory declaration was made. In any case, even if the error was made because Ms Shanks was in a rush, it took a considerable time for the first declaration to be withdrawn. The first statutory declaration was still before me at the time of the Mention Hearing 8 December 2017.

[15] During the hearing it was noted that evidence had been given that in the first round of voting in July 2017 printed copies of the text of the Agreement were made available in the Depot and Ms Shanks was asked to make a comment as to why printed copies were not distributed for the second Agreement. Ms Shanks stated as follows:

“We had – as I said, because we had been negotiating for such a long period in our workplace our employees, many employees across all of our different departments, were in all honesty coming to us and saying they were quite fatigued by the process and wished it had been over. So we had printed out copies in the first round, and because we made very little variations between the two we focused on submitting an information pack, and that being the main distribution, and because we had the majority of our workforce were directly going to receive the full copy of the text and the information kit via email, that we believed that was sufficient to, you know, for staff to - as well as obviously pointing staff to where they could access and how to get in touch with us and, you know, to have the questions answered.” 10

[16] The Applicant submits that I can still be satisfied that, notwithstanding that no hard copies of the document were placed in the Newman Street Depot during the access period for the Agreement that s.180(2) was complied with, in particular, that s.180(2)(b) was complied with in respect to the Newman Street Depot.

[17] I note that I raised a number of other concerns with the Applicant in relation to the Agreement unrelated to the matter of whether or not the Applicant had complied with s.180(2) of the Act. Ultimately, in a document dated 28 November 2017 the Applicant proffered 6 undertakings which satisfied my concerns in relation to the nominal expiry date, notice of termination for apprentices, redundancy, payment of annual leave loading on termination, the definition of a shiftworker and public holidays.

Relevant legislative provisions

[18] Section 180 of the Act sets out some of the preapproval steps that must be completed before employees are asked to vote to approve an enterprise agreement. Relevantly s.180(2) provides as follows:

“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.

[19] Section 186 of the Act deals with some of the matters about which the Commission must be satisfied before being required to approve an Agreement. Relevantly s.186(2)(a) provides the following:

“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”

[20] The meaning of genuinely agreed is dealt with in s.188 of the Act. Section 188(a)(i) which relevantly provides the following:

“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);”

[21] As is apparent from the above provisions, among the various steps that must be taken before employees are asked to vote to approve the Agreement, the employer must take all reasonable steps to ensure that the employees that will be covered by the Agreement have been given a copy of both the written text of the Agreement and any material incorporated by reference into the Agreement, or that the employees have access to the Agreement and incorporated material throughout the access period. The failure to take reasonable steps to do so means that the employees covered by the Agreement cannot be said to have genuinely agreed to the Agreement within the meaning of s.188 of the Act, with the consequence that the Commission cannot be satisfied as required by s.186(2) of the Act.

Evidence

[22] The hearing took place in Wangaratta on 31 January 2018. Mr Feldman appeared on behalf of the Applicant and Mr Yap appeared on behalf of the ASU. Ms Fiona Shanks, Manager, People and Culture and Mr Ken Parker, Field Services Manager gave evidence for the Applicant. Three employees engaged by the Applicant in the Newman Street Depot gave evidence for the ASU being Mr Darren Gilbert, Groundsman and ASU delegate, Mr Alan Boyle, Mechanic and ASU delegate and Mr Daniel O’Keefe, Lead Member in the Tree Crew and ASU delegate.

[23] As mentioned above, when directions were first set for the hearing of this matter, there was a significant factual dispute as to what occurred at the Newman Street Depot, in particular whether hard copies of the Agreement had been left there and whether ASU members had been removing them during the access period. In light of the change in the evidence of Ms Shanks, many of the factual disputes evaporated and much, though not all, of the evidence is not now in contest.

[24] There are 28 of the total 375 employees who have not provided Council with their email address for work related emails. There are 59 employees at the Newman Street Depot. 11 11 of those 59 employees had not provided the Council with an email address (the non-email employees).12 The Applicant acknowledges that this group of 11 non-email employees were not given a copy of the written text of the Agreement13 to satisfy the requirement in s.180(2)(a) of the Act. The actions that the Applicant relies on to satisfy the Commission of the requirement in s.180(2)(b) that all reasonable steps were taken to ensure that the non-email employees had access, throughout the access period, to a copy of those materials were summarised in the final submissions of the Applicant.14 I will deal with each of them in turn.

The CorpVote letter

[25] The non-email employees were sent a letter by registered post informing them of the voting process by the company CorpVote (Aust) Pty Ltd prior to the commencement of the access period. 15 This one page letter has at the bottom of the page four bullet points under the heading ‘Help & Support Information’. The second bullet point reads: “For information about the proposed Agreement, please contact Fiona Shanks on [email protected] or (her mobile phone number). I note that the bullet point (which was in very small font as Mr Yap pointed out ad nauseum) does not indicate this is the means to access a copy of the Agreement; rather it is where one could obtain information about the agreement. I also note that other than this bullet point at the bottom of the document the rest of the document is entirely focussed on instructing employees on how to vote. However, on cross-examination, Mr Gilbert an ASU witness, agreed that this letter provided “an opportunity for people to make contact to get a copy of the agreement”.16

Face to face meeting with employees, including the Newman Street Depot meeting on 23 August 2017

[26] A meeting was held at the Newman Street Depot on 23 August 2017, the first day of the access period for the Agreement. All 11 of the non-email employees at the Newman Street Depot were at work on 23 August 2017. The main agenda item of this meeting was to discuss the proposed Agreement. The CEO, the Director Infrastructure Services, Ms Shanks and Mr Parker were present at the meeting. All Depot employees including the non-email employees were invited to the meeting. 17 The Applicant submits that a hard copy of the Agreement and Information Packs explaining the proposed Agreement in detail were available and accessible at the meeting, for any employee to inspect or review.18 A number of the non-email employees got up from the meeting and walked out of the meeting as part of taking protected industrial action and so were not there for the discussion on the Agreement. Ms Shanks had with her printed Information Packs about the Agreement and also a printed copy of the Agreement.19 Ms Shanks claimed she explained to the 20 or so employees who remained in the meeting how they could obtain printed copies.20 Ms Shanks’ recollection is that the Information Packs were left after the meeting on the table in the tea room.21 Her evidence was that she had a copy of the Agreement in her hand. She said “I definitely opened that document and I had it very visible…so there was definitely an Agreement there available and it was certainly conveyed at the end of the meeting if people would like more information that they could do so by-you know, by contacting one of us”.22 Ms Shanks said a number of staff asked questions about the Agreement and that no one asked for a copy of the Agreement.23 Ms Shanks’ evidence at the hearing was that she didn’t personally place copies of the Agreement in the Depot but she had a copy with her at the meeting and she was not aware of there being a full copy of the Agreement in the second access period being left in the Depot.24 The Applicant submits that this meeting represents a “further opportunity for non-employees to have access to the Agreement”.25

[27] Mr Parker gave evidence that a range of topics were discussed about the Agreement during the meeting with the majority being around the maintenance allowance topic and there was an opportunity for people to ask questions. 26

The posters/flyers

[28] On 22 August 2017 Ms Shanks requested that Mr Parker place “Vote Yes” posters (the posters/flyers) 27 up in the Depot about the proposed agreement “…and how to access information about the proposed agreement”. She also made similar requests of other managers and supervisors who had not received the email copies of the proposed Agreement.28 Mr Parker’s evidence is that he placed the posters on the notice boards, walls and window of the Depot Office facing to the outside on 22 August 2017.29 Ms Shanks claimed that the posters “…provided details on how employees could access the copies of the proposed Enterprise Agreement. Each poster included the words at the bottom of the poster “visit Sharepoint, or email [email protected] for more information”.30 There are five types of posters/flyers that were placed on notice boards and walls on 22 August 2017. All of them have a prominent heading “Vote Yes” and then the remainder of text sets out components of the Agreement it would appear the Council highlighted as positive attributes of the Agreement. Ms Shanks claimed that she was told these posters were being removed or altered in favour of the “Vote No” campaign, particularly at the Depot.31

[29] Mr Gilbert confirmed that he saw copies of the flyers around the Depot. On cross-examination he agreed that the posters contained an email address for anyone who wanted to obtain more information about the Agreement, provided they were computer literate and could access the computer and send that email. 32 I do not agree with the Applicant’s submission that Mr Gilbert’s testimony on this point can be construed as agreeing with the contention that the posters/flyers provided information of how relevant employees could access the Agreement.33 Mr Gilbert agrees that a computer literate employee that could access a computer and send an email could obtain more information, not that the posters/flyers provided information of how employees could access the Agreement.

[30] Mr O’Keefe was asked on cross-examination if he agreed that the words at the bottom of the poster “made it clear that you could access a copy of the agreement or more information either by sending an email to that email address or visiting SharePoint?” to which he replied “Yes, but, as I said, not a lot of people pay particular attention to these flyers that were there”. 34 He also agreed that if someone was interested in the Agreement they could have, in effect, got a copy of it if they had access to computers.35 When asked if he could have sent an email to the [email protected] address he replied “I could probably give it a go”.36

[31] The Applicant submitted that the evidence of Mr Boyle (who was not one of the non-email employees) was to the effect that he also agreed with the contention that employees who read the posters/flyers would have had the information necessary to access the Agreement. The Applicant referred to the following evidence given by Mr Boyle at the hearing in support of this submission::

“So any employee who hadn’t actually received a copy of the actual enterprise agreement by email as you did they would’ve seen these flyers around and that provided another opportunity through email or SharePoint to get access to the agreement?---To be honest I don’t think anybody actually read the last – really read the last line. Most people came in and, like, because I’ve spent so much time in there on lunch time and that it was – people come in and you see their reactions, and they’ve just looked at the large print and gone, “Oh, this is their big push for the yes vote”, and I don't know whether they would have even read the fine print to be honest.

So the fact that somebody doesn’t read a document that’s either distributed or made available doesn’t mean that’s not actually there. If someone is interested enough they could read it and it gives information there?---Again, that’s true, but notwithstanding that again anyone with the level of comprehension and understanding – if you don’t understand computers too well you're going to look at that email address for example, and that’s going to be gobbledygook to you. (Indistinct). Those things are – you and I take it for granted. People who don't use computers look at that and it’s another language. So – yes.” 37

[32] I am at a loss to understand how that evidence supports the Applicant’s submission that employees who read the flyers would have had the information necessary to access the Agreement. The evidence suggests that in the opinion of Mr Boyle, no-one read the last line of the flyers and that those who are not computer literate would not understand it. The fact that he said the word “yes” at the end of that very clear evidence means little or perhaps nothing at all when seen in context.

The Information Packs

[33] It is not in dispute the Information Packs 38 were distributed throughout the Depot during the access period. The Information Pack is a 10 page document. On the last page under the heading ‘How to Vote for the approval of the Enterprise Agreement’ the seventh and last paragraph reads “If you have any specific questions about any part of this document or the Agreement and you cannot make it to one of the meetings, please contact: Fiona Shanks, Manager People and Culture (email address and mobile phone number provided)”. It is this paragraph that the Applicant relies on as the means by which employees could access the Agreement. However, similar to the text in the posters/flyers it does not advise employees how to access a copy of the Agreement but in this case, advises where you can go to have questions answered. In that context, it is not surprising Mr Gilbert agreed that the Information Packs gave employees an opportunity to obtain further information about the Agreement.39 Mr Gilbert agreed that he could call Ms Shanks or have “emailed someone” to get a copy if he didn’t understand what he was voting on.40 This evidence is a rather flimsy foundation to support the submission of the Applicant that ASU witnesses “…agreed with the contention that the Information Packs provided information on how to access the agreement”.41

[34] Similarly, Mr Boyle agreed with the proposition put to him that the Information Packs provided an alternative means for someone to contact management to get more information about the Agreement or a copy of the Agreement. However, Mr Boyle indicated as part of his answer that he thought many would be reluctant to approach Ms Shanks directly and there were other aspects that would have made it difficult to talk to Ms Shanks. 42 Mr Boyle agreed that if employees did ask Ms Shanks for a copy of the Agreement it would have been provided.43

[35] The Applicant also submits and I accept that Ms Shanks and Mr Parker were willing and able to provide assistance to employees in accessing the Agreement to employees who inquired.

Access to the Council intranet SharePoint via workstations in the Depot

[36] SharePoint is the Council’s intranet available for the use of staff. Ms Shanks states that there are two workstations with computers available in the Depot for general use of employees where SharePoint can be accessed and that each employee had access to these work stations and therefore to the text of the Agreement throughout the access period. 44 Ms Shanks believes that SharePoint is simple to use and that “most” employees know how to access and use SharePoint.45

[37] The ASU led evidence from a number of witnesses to the effect that that they did not know how to use SharePoint. Mr Gilbert’s evidence is that he was aware of two computers at the Newman Street Depot and that he has rarely used the computers 46 and he has never completed any computer training whilst working for the Applicant.47 In his witness statement Mr Gilbert claimed that while he has heard management talk about SharePoint he has never used or been shown how to use it.48 During the hearing Mr Gilbert gave evidence that approximately two or three weeks prior to the hearing he “figured out how to turn the computers on” and using the computer use information provided49 tried to access SharePoint but could not log on and did not find it very easy at all to access. Further that he could not contact by telephone the internal numbers provided for assistance in using SharePoint as there was no internal phone.50 On cross-examination he conceded he could have contacted Ms Shanks using his mobile and that he did not try to contact Mr Ben Hawkins, whose mobile number is provided in addition to the internal number on the computer use document.51 In relation to his computer literacy skills Mr Gilbert gave evidence that he has a reasonable understanding but is not fully aware of how to use the technology and that he can “return emails if one has been sent to me because there’s that little icon with the pen and the paper on it and I push on that”.52

[38] Mr O’Keefe gave evidence that he does not know how and has never received training in or used SharePoint and that he wouldn’t know how to turn the computer on. 53 In relation to his computer literacy skills his evidence is that he was “not very computer savvy” and if the Applicant “puts a document on the computer, many of us at the depot would not have the skills to access it”.54 He does not use the computer at the Depot at all and has not used the printing facilities.55 On cross-examination Mr O’Keefe was asked if he knew how to send an email to which he answered “I’ve got a rough idea but they don't always work out, but, yes, I've got a rough idea”56 and that if he wanted to he probably could have emailed [email protected] (the email address referred to at the bottom of the posters/flyers).57

[39] Mr Boyle received a copy of the Agreement via email on 22 August 2017. 58 His evidence was that he is “okay with using computers” and he uses a computer in his daily work, however, that many workers at the Newman Street Depot do not have the computer skills to access documents on the computers.59 Mr Boyle agreed that employees could have asked management for assistance with the use of the computers and they would have obliged. Further that Mr Boyle himself would have assisted if asked. He also thought that management would have provided a hard copy of the Agreement if asked.60

[40] Irrespective, the Applicant submits that there is no actual evidence put forward suggesting that non-email employees had attempted to access the Agreement via SharePoint during the access period but had been unable to do so and that in the absence of evidence that this step was even attempted, there is no basis to suggest this was not a reasonable step to provide access in accordance with s.180(2)(b) of the Act. 61

The campaign for and against approval of the Agreement

[41] I note that this factor was not included in the list of reasonable steps that the Applicant submits were taken however, it was a feature of the evidence of Ms Shanks and so I mention it for completeness. In the context of the campaigning for and against the Agreement, Ms Shanks claims that employees were fully aware that a revised enterprise agreement had been distributed, and a vote was to be undertaken. There was significant discussion about the proposed Agreement and management were running a vote yes campaign. Further to the protected industrial action which occurred on 23 August 2017, protected industrial action was taken by way of a two hour stoppage of work on 25 August 2017, with 9 of the 11 non-email employees participating in the stoppage. Ms Shanks claims that it can be inferred that employees who participate in protected industrial action are aware of the reason for doing so and would be aware of the terms of the proposed Agreement. 62 Ms Shanks accessed the voting data and established that 53 of the 59 employees cast a vote. Based on this, Ms Shanks claims that at least 5 (and up to all of the 11 non-email employees) voted. Ms Shanks claims it can be “…inferred that employees who exercise a vote-whether in favour or not-are aware of the reason for doing so and would be aware of the terms of the proposed enterprise agreement”.63

Were all 28 non-email employees provided access to the proposed enterprise agreement in accordance with s.180(2)?

[42] The hearing and evidence focussed on the 11 Newman Street Depot employees and this was consistent with the original objection of the ASU as to the evidence of what occurred at that site. However, there are 17 other employees (28 in total) who had not provided the Applicant with an email address for work related emails. Mr Feldman made submissions to the effect that the Council relied on the same mechanisms to a large extent as to how these employees could access the Agreement. However, there were some differences with 8 of these employees said to have received individual phone calls from their team leader “to discuss access to the proposed enterprise agreement” and 5 others contacted individually by their Team Leader though no information was provided as to what they were told by the Team Leader. There was also an SMS message sent containing information on how to access the Agreement. One employee received only the CorpVote letter and another two employees received the CorpVote letter and SMS message containing information on how to access the Agreement, one of the two employees also had access to computer workstations at the transfer station to access an electronic copy of the proposed Agreement. Lastly, one employee that was considered to be a non-email employee and had an email address but was on unpaid leave on a long term secondment. It could not be confirmed whether she received the email or not. The Applicant raised that this employee may not be considered a relevant employee for the purposes of s.180(2) of the Act. 64

[43] In the second sentence at question 2.4 of Form F17 Ms Shanks included the following statement: “Multiple copies of the Agreement were made available in staff lunchrooms across the Employer’s worksites”. During the hearing, Ms Shanks stated quite clearly that this sentence in the Form F17 was not true. 65 The Applicant submits that during re-examination “Ms Shanks provided evidence that copies of the Agreement were printed and distributed elsewhere at Council” and on that basis the Applicant contends that the Form F17 is accurate.66 On re-examination Mr Feldman put to Ms Shanks, not long after being warned by me to be careful not to lead the witness, the following: “…Are you aware that in other parts of the Council that there were printed copies available…” and was then shown a printer log.67 Ms Shanks gave evidence as to the various people that had printed the document. Based on the evidence that a number of people printed out the document, Mr Feldman put to Ms Shanks that there would have been printed copies in some other areas as well and Ms Shanks agreed.68

[44] In summary, this exchange shows nothing more than Mr Feldman telling Ms Shanks that there were copies of the Agreement in other areas and asking if she was aware of that. There is then the evidence that a number of people printed out copies of the Agreement and then based on the fact that a number of copies were printed, Ms Shanks agrees there would have been printed copies in some other areas. I do not consider this evidence particularly credible. Nevertheless, I have taken into account the submission of the Applicant that despite Ms Shanks withdrawing the second sentence of the Form F17 that I can still rely on it as a result of the re-examination referred to above.

Why were there no copies of the Agreement left in the Newman Street Depot on this occasion of voting?

[45] It is not in contest that at the time of the first vote in July 2017 there were hard copies of the Agreement left in the Newman Street Depot lunchroom. 69 The evidence was clear from the ASU witnesses that there was no copy left on this occasion. Ms Shanks was not aware of there being a full copy of the Agreement in the second access period being left in the Depot.70 Ms Shanks did not in the second round direct staff or direct managers to “put up copies” but she believed they understood that they had a role to play in disseminating it. She did direct Mr Parker to put up posters at the Depot but he was the only person directed as such to put up information in that location.71 As to why Ms Shanks did not put hard copies of the Agreement in the Depot on this occasion her evidence was:

“Yes, and you've already given evidence that there were hard copies of the document, the enterprise agreement, put in the depot, the depot we've been talking about - - -?---Yes.

- - - at some length, at that time. But you've - and with the vote that was done in August, a month later, you determined that you had no need to do that. Am I to understand that that's the case, that that's now your evidence?---I certainly have admitted that I - you know, I didn't put hard copies in the depot in the second process and there wasn't an intention to not do that. I believe it was really an oversight on my behalf.

Right, so you think you should have put the copies in the depot is your evidence now, is it?---I believe putting a copy, a hard copy, would have conclusively provided to staff access. But I also believe genuinely that we communicated to staff very clearly about the ways in which they could access that if they hadn't already received one, including obviously the day that I was there with the hard copy in my hand. So I believe staff genuinely knew how to get it.” 72

Law to be applied

[46] In establishing the correct construction of the requirement in s.180(2) of the Act both parties referred me to the Full Bench decision National Tertiary Education Industry Union (NTEU) v University of New South Wales (NTEU) 73 and the decision of Deputy President Smith, as he then was, in the matter of Maroondah City Council (Maroondah).74

[47] In Maroondah, the Deputy President found that the pre-approval steps in s.180(2) and (5) had not been met. This was despite the fact that the employer had taken a number of steps to provide access to the enterprise agreement including:

“• Placing a link to the proposed agreement on the Intranet homepage.

• Sending an “all users” email to employees with council email accounts with a link to the recent edition of ‘That’s Maroondah” which provided a summary of the agreement and advised that the proposed agreement could be accessed electronically on the intranet.

• Providing a hard copy of ‘That’s Maroondah’ attached to the payslips which described how the agreement could be accessed on the intranet or that a hard copy could be viewed at each Multi-Staff workplace.

• Delivering 17 copies of an ‘EBA information pack’ to the Multi Staff Workplaces.

• Distributing posters to Multi-Staff workplaces.” 75

[48] In that matter the Deputy President focused on what was described as the “positive obligation on the employer” to take all reasonable steps in relation to s.180(2) and (5). While he found the employer took “important steps” to provide the information, he determined that the employer adopted an approach that it was up to the employee to search out that information themselves and that in so doing it did not comply with the requirements of the Act. In my view this decision is of limited guidance as the Deputy President does not set out detailed reasoning as to how the Council failed in its endeavours with respect to s.180(2) in ultimately concluding that both pre-approval steps contained in s.180(2) and (5) had not been met. I do agree with the Deputy President’s conclusion that there is a positive obligation on the employer to comply with the requirement.

[49] The requirements of the term all reasonable steps was the subject of consideration in the NTEU case in the context of the distributing the notice of employee representational rights. In that matter, the Full Bench referred to His Honour’s reasoning at first instance in how he interpreted s.173 of the Act and agreed with his interpretation. His Honour’s reasoning as reproduced in the NTEU decision was as follows:

“[24]Of course, what is a “reasonable” step will depend upon the circumstances of the particular employer and employees. It may be noted that s.173(1) does not impose an obligation to give notice to each employee but, rather, to take “all reasonable steps” to give notice. This distinction ought be seen as recognising that, in many circumstances, and inevitably in the case of a very large employer like UNSW, it will be practically impossible to ensure that every single employee receives the notice. Assessing whether “all reasonable steps” have been taken must take account of this reality. For example, employees on extended leave who are travelling abroad will often be almost impossible to notify. Some steps which will typically be obviously reasonable, such as by post or email to an address supplied by the employee, may fail in relation to some employees. Giving notice by post or email to a private address supplied by the employee may fail if the employee has changed their address without notifying the employer of that change.

[25] I do not agree that s.173(1), on its proper construction, requires the approach for which the NTEU contends. Such an approach attributes a meaning to the word “all” that is at odds with the overall object and purpose of the regime for the making of enterprise agreements created by Part 2-4.

[26] In my view, s.173(1), on its proper construction, requires that reasonable steps be taken to give the requisite notice to all employees and the requirement that “all” reasonable steps be taken merely underscores that it may be necessary in particular circumstances for the employer to take multiple steps rather than a single step to notify employees because a given step may be “reasonable” in the sense of likely to be effective in respect of one group of employees but not in respect of another group of employees. For example, an employer may have a workforce some of whom have access to a computer and routinely communicate by email and others who do not and who instead rely on communication via notice boards, meetings or the like. Notification by email would be “reasonable step” for the first group but not for the second: an additional step or steps would be needed in relation to the second group.” 76

[50] I agree with and adopt the approach set out above.

Consideration

[51] The question as to whether all reasonable steps have been taken depends on the circumstances in each case. In this case, it is clear that sending an email with a copy of the Agreement to each employee that has provided the employer with an email address for work related purposes satisfies the obligation on the employer in so far as that group of employees is concerned and meets the requirement in s.180(2)(a) of the Act. The issue is with the group of non-email employees, those who did not receive a copy of the Agreement via email and whether the employer took all reasonable steps to ensure that the relevant employees had access, throughout the access period access for the Agreement, to a copy of the written text of the Agreement. Consistent with the approach in NTEU some other step or steps needed to be taken to satisfy the obligation in respect to this group of employees.

[52] During the first, ultimately unsuccessful, vote for proposed enterprise agreement in July 2017, it is not in dispute that the Council provided hard copies of the Agreement in the Newman Street Depot throughout the access period. In doing so, the Applicant, in my view, satisfied its obligation under s.180(2)(b) in respect to the relevant employees. The evidence is that all of the non-email employees attend the lunch room at some time during the day and would have seen copies of the Agreement. If the Applicant had repeated this step during the access period for this Agreement the result would have been the same, that is, they would have complied and the ASU do not take a different view. 77 When asked directly by me during the hearing why she did not take that step on this occasion Ms Shanks said that it was an “oversight”.78 However, she thought that enough had been done to discharge the obligation having regard to the other steps taken.

[53] However, I note that not all of the other steps taken that the Applicant relies on were specifically directed at the group of non-email employees. That is, it is clear that the CorpVote letter was provided to all staff. 79 Further, that meetings were held with all staff and the Information Pack was provided to all staff.80 I note that page 10 of the Information Pack states the following in relation to the meetings being held:

“Council will be inviting you to a number of meetings during the notification period. Staff are welcome to attend meetings within their specific work area, or any general all staff Agreement meetings.

Whilst we accept a few staff need to make a personal stance, we hope that all staff attend one of these sessions to learn more about the proposed Agreement.” 81

[54] It is clear these meetings were for all staff. A copy of the Agreement was on the Council’s intranet known as SharePoint and computers were available in all staff areas 82 although I note there was no clear information provided to any employees, let alone the non-email employees alone, that this was how they could access a copy of the Agreement. Finally, in relation to the vote yes posters/flyers Ms Shanks’ evidence is that she requested Mr Parker and other managers and supervisors of staff who had not received the email copies of the proposed Agreement put up the posters/flyers.83 Mr Parker’s evidence is that he put them up in the Depot.84 The evidence of Ms Shanks appears to suggest that this step was taken for non-email employees only.

[55] In my view, it is not apparent that these were steps taken to deal just with the particular circumstances of the non-email employees. These were steps taken for all relevant employees, the bulk of whom were directly emailed a copy of the Agreement. Nevertheless, the Applicant relies on these steps to satisfy the obligation for the non-email employees. Depending on the circumstances, it may be that the taking of these steps satisfy the obligation. However, for the reasons below, I am not satisfied that the steps, even if they were directed at the group of non-email employees only, satisfy the obligation.

[56] The CorpVote letter was sent to all employees. It was sent via email to employees with email addresses on 22 August 2017 and by registered post to each of the non-email employees prior to 22 August 2017. 85 The content of the CorpVote letter was directed almost entirely at informing employees as to the time, place and method of the vote. It does have a reference as how to obtain more information about the proposed agreement. Although this it at the bottom of the page under the heading ‘Help & Support Information’ and the font is very small. The evidence of the ASU witnesses is that they took little to no notice of the reference to more information about the Agreement. In any case, the note does not say how or where to access a copy of the Agreement but rather how to obtain more information about it. In my view, the Applicant took all reasonable steps to notify non-email employees of the date and place at which the vote was to occur and the voting method to be used by sending the CorpVote letter by registered post to satisfy the requirement in s.180(3) of the Act. This was clearly a separate step taken for non-email employees. However, I am not satisfied that this step satisfies the requirement in s.180(2) of the Act.

[57] At the Newman Street Depot meeting on 23 August 2017 most of the non-email employees left the meeting where there was discussion about the Agreement. These employees did so as part of taking protected industrial action. As they were not at the relevant part of the meeting, this renders this step of little to no utility as a means of accessing the Agreement. Irrespective, even if the employees had not left the meeting, Ms Shanks simply had with her, one copy of the Agreement. She said she opened the Agreement. Her evidence is that no copies were left in the Depot. Mr Parker did not think that one copy of the Agreement was sufficient for every employee to peruse in the time of that meeting. 86 In any case, even if I accept that this was enough to ensure access to the Agreement on the day of the meeting, it does not deal with the problem that access is required throughout the access period for the Agreement. Ms Shanks addressing a meeting with a copy of the Agreement at the start of the access period does not satisfy that requirement. The Applicant also relies on the Information Pack which was available to non-email employees. The Information Pack is not a copy of the Agreement. I am not satisfied that the fact that the Information Packs provide employees with Ms Shanks’ details to ask questions satisfies the requirement.

[58] In relation to the posters/flyers it appears clear that they were produced for the entirely legitimate purpose of the Applicant promoting a yes vote for the Agreement. It is clear enough from the text of these posters/flyers that this was their primary purpose. The evidence from the ASU witnesses is that they viewed the posters in that light. For that reason, the ASU witnesses paid little attention to them. They were opposed to the Agreement. One would be entitled to conclude that the reference at the bottom of the flyers/posters to more information being available from SharePoint or email was a reference to being able to get more information about why one should vote for the Agreement. Again, similar to the CorpVote letter, the note at the bottom of the flyers/posters does not say how or where to access a copy of the Agreement but rather how to obtain more information about it. While it is suggested in the evidence of Ms Shanks that these were displayed in areas where non-email employees worked (or at least managers and supervisors of non-email employees were requested to display them) I am not satisfied that this step ensured non-email employees had access to a copy of the Agreement, throughout the access period.

[59] In relation to the Agreement being accessible on the Applicant’s intranet SharePoint or via email I make the point that there was no clear information from the Applicant to employees that a copy of the Agreement could be accessed on SharePoint or via email having regard to the consideration above about the CorpVote letter, the Information Packs and the posters/flyers. For that reason one could say it matters little whether the non-email employees could access the computers or SharePoint. While I do think that the ASU witnesses had a tendency to overstate their computer illiteracy, the evidence is that two of the three witnesses rarely used the computers at the Depot, if at all. It is not really the point whether or not they attempted to use SharePoint to access a copy of the Agreement and failed to do so. It seems clear that they did not try because they do not use the computers or access SharePoint as part of their work and because there was no clear information provided to the employees that this was how they could access a copy of the Agreement.

[60] I have considered the general notion advanced by Ms Shanks that there was a high level of awareness of the Agreement because of the contested nature of the vote and this is a factor to be considered. I reject the notion that because there was a campaign of opposition to this Agreement that in the circumstances of this case, this was part of the means by which the employer discharged the positive obligation to ensure access to the Agreement.

[61] I note that in respect to the other non-email employees who are not at the Newman Street Depot, submissions were made to the effect that most of these other employees were sent an SMS or directly contacted by phone. The SMS was said to have directly told these employees how to access the Agreement. 87 It was, it appears, a specific step taken for these employees presumably having regard to the fact that they could not be emailed the Agreement. The Applicant submitted the SMS was sent as these employees who have work supplied mobile phones.88 Assuming those submissions were accurate it simply demonstrates that the Applicant has taken additional steps to deal with ensuring access to those other non-email employees, rather than relying on the other means in evidence. It is not apparent that there was any specific step for the Newman Street Depot.

[62] There was a reasonable step available for the non-email employees at the Newman Street Depot. The step of simply leaving printed copies in the lunch room throughout the access period for the Agreement. The Applicant clearly thought that doing so was a reasonable step in the first unsuccessful vote in July 2017. To be clear, simply because it was a step that was taken during the previous vote does not mean that the step needs to be taken again. However, it is noteworthy that it was a step taken only one month before in July 2017 and then not taken again in August 2017. Ms Shanks conceded that not doing so was an oversight.

[63] Having regard to the consideration above, I am not satisfied that the Applicant took all reasonable steps to ensure that the non-email employees at the Newman Street Depot were either given a copy of the Agreement or had access, throughout the access period for the Agreement, to a copy of the Agreement.

[64] I am not satisfied that the steps relied on by the Applicant to meet the obligation under s.180(2) in respect to the non-email employees at the Newman Street Depot either individually or in combination meet the requirement to take all reasonable steps to ensure that the relevant employees have access, throughout the access period for the Agreement, to a copy of those materials pursuant to s.180(2)(b). Consequently I cannot be satisfied that the employees covered by the Agreement genuinely agreed to it.

Conclusion

[65] I am not satisfied that each of the preapproval requirements have been satisfied and consequently I am not satisfied that the Agreement has been genuinely agreed (within the meaning of s.188) to by the employees covered by the Agreement for the purposes of s.186(2). This is because the Applicant as the employer covered by the Agreement has not complied with s.180(2) of the Act.

[66] For the reasons given I cannot approve the Agreement. The application to approve the Agreement is dismissed.

COMMISSIONER

Appearances:

D Feldman for the Applicant

E Yap for the Australian Municipal, Administrative, Clerical and Services Union

Hearing details:

2017/2018

Wangaratta/Melbourne:

31 January, 15 February.

1 Exhibit A1, Witness Statement of Darren Gilbert at [10]

2 Applicant’s submissions dated 22 January 2018 at [5]

3 Exhibit R3, Statutory Declaration of Fiona Shanks

4 Exhibit R3, Statutory Declaration of Fiona Shanks at [11]

5 Transcript, 8 December 2017 at PN92

6 Transcript, 8 December 2017 at PN28

7 Transcript, 31 January 2018 at PN598

8 Transcript, 31 January 2018 at PN579

9 Transcript, 31 January 2018 at PN598

10 Transcript, 31 January 2018 at PN537

11 Applicant’s submissions dated 22 January 2018 at [6]

12 Applicant’s submissions dated 22 January 2018 at [11]

13 Applicant’s submissions dated 22 January 2018 at [12]

14 Applicant’s final submissions dated 15 February 2018 at [12]

15 Exhibit R2, Witness Statement of Fiona Shanks, Attachment FS1

16 Transcript, 31 January 2018 at PN147 – PN148

17 Exhibit R2, Witness Statement of Fiona Shanks at [14] – [15]

18 Applicant’s submissions dated 22 January 2018 at [20]

19 Transcript, 31 January 2018 at PN430, PN539 - PN540

20 Exhibit R2, Witness Statement of Fiona Shanks at [17]

21 Exhibit R2, Witness Statement of Fiona Shanks at [18]

22 Transcript, 31 January 2018 at PN541

23 Transcript, 31 January 2018 at PN542 – PN544

24 Transcript, 31 January 2018 at PN569

25 Applicant’s final submissions dated 15 February 2018 at [23]

26 Transcript, 31 January 2018 at PN428 – PN430

27 Exhibit R1, Witness Statement of Ken Parker, Attachment KP1, Exhibit R2, Witness Statement of Fiona Shanks, Attachment FS2

28 Exhibit R2, Witness Statement of Fiona Shanks at [8]

29 Exhibit R1, Witness Statement of Ken Parker at [7] – [8] and Transcript, 31 January 2018 at PN419

30 Exhibit R2, Witness Statement of Fiona Shanks at [9]

31 Exhibit R1, Witness Statement of Ken Parker, Attachment KP1, Exhibit R2, Witness Statement of Fiona Shanks at [13] Attachment FS2

32 Transcript, 31 January 2018 at PN150 - PN151

33 Applicant’s final submissions dated 15 February 2018 at [18]

34 Transcript, 31 January 2018 at PN276

35 Transcript, 31 January 2018 at PN279

36 Transcript, 31 January 2018 at PN284

37 Transcript, 31 January 2018 at PN389-390

38 Exhibit R1, Witness Statement of Ken Parker, Attachment KP3

39 Transcript, 31 January 2018 at PN159 - PN162

40 Transcript, 31 January 2018 at PN175

41 Applicant’s final submissions dated 15 February 2018 at [28]

42 Transcript, 31 January 2018 at PN383

43 Transcript, 31 January 2018 at PN384

44 Exhibit R2, Witness Statement of Fiona Shanks at [10]

45 Exhibit R2, Witness Statement of Fiona Shanks at [11]

46 Exhibit A1, Witness Statement of Darren Gilbert at [14]

47 Transcript, 31 January 2018 at PN73

48 Exhibit A1, Witness Statement of Darren Gilbert at [15]

49 Exhibit A2, Computer Use document

50 Transcript, 31 January 2018 at PN74, PN88 – PN92, PN193-PN194

51 Transcript, 31 January 2018 at PN195 – PN198

52 Transcript, 31 January 2018 at PN187, PN190

53 Transcript, 31 January 2018 at PN232 – PN233, PN236, PN310- PN311

54 Exhibit A3, Witness Statement of Daniel O’Keefe at [11]

55 Transcript, 31 January 2018 at PN237

56 Transcript, 31 January 2018 at PN282

57 Transcript, 31 January 2018 at PN284

58 Exhibit A4, Witness Statement of Alan Boyle at [4]

59 Exhibit A4, Witness Statement of Alan Boyle at [13]

60 Transcript, 31 January 2018 at PN376 - PN380 and PN383 - PN384

61 Applicant’s final submissions dated 15 February 2018 at [26]

62 Exhibit R2, Witness Statement of Fiona Shanks at [22]

63 Exhibit R2, Witness Statement of Fiona Shanks at [27]

64 Applicant’s final submissions dated 15 February 2018 at [38] - [43]

65 Transcript, 31 January 2018 at PN778

66 Applicant’s final submissions dated 15 February 2018 at [50], Transcript, 31 January 2018 at PN807 - PN825

67 Exhibit R2, Witness Statement of Fiona Shanks, Attachment FS4

68 Transcript, 31 January 2018 at PN821

69 Transcript, 31 January 2018 at PN566

70 Transcript, 31 January 2018 at PN569

71 Transcript, 31 January 2018 at PN562

72 Transcript, 31 January 2018 at PN791 – PN793

73 National Tertiary Education Industry Union (NTEU) v University of New South Wales[2011] FWAFB 5163

74 Maroondah City Council [2012] FWA 7891

75 Maroondah City Council [2012] FWA 7891 at [7]

76 National Tertiary Education Industry Union (NTEU) v University of New South Wales[2011] FWAFB 5163 at [9]

77 ASU’s outline of submissions dated 19 December 2017 at [12]

78 Transcript, 31 January 2018 at PN792

79 Applicant’s submissions dated 22 January 2018 at [14] and Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement at Q2.5

80 Exhibit R2, Witness Statement of Fiona Shanks at [18] and Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement at Q2.6

81 Exhibit R1, Witness Statement of Ken Parker, Attachment KP3

82 Transcript,15 February 2018 at PN33

83 Exhibit R2, Witness Statement of Fiona Shanks at [8] –[9]

84 Exhibit R1, Witness Statement of Ken Parker, [7]-[8], Transcript, 31 January 2018 at PN419

85 Applicant’s submissions dated 22 January 2018 at [14] and Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement at Q2.5

86 Transcript, 31 January 2018 at PN486

87 Applicant’s final submissions dated 15 February 2018 at [38] - [43]

88 Transcript,15 February 2018 at PN64

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