Western Desert Nganampa Walytja Palyantjaku Tjutaku Aboriginal Corporation
[2023] FWCA 284
•3 FEBRUARY 2023
| [2023] FWCA 284 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Western Desert Nganampa Walytja Palyantjaku Tjutaku Aboriginal Corporation
(AG2022/5442)
WDNWPT ABORIGINAL CORPORATION ENTERPRISE AGREEMENT 2022
| Indigenous organisations and services | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 3 FEBRUARY 2023 |
Application for approval of the WDNWPT Aboriginal Corporation Enterprise Agreement 2022
Western Desert Nganampa Walytja Palyantjaku Tjutaku Aboriginal Corporation (the Applicant) has made an application for the approval of an enterprise agreement known as the WDNWPT Aboriginal Corporation Enterprise Agreement 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
The Agreement covered 208 employees at the time of the vote. Of that cohort, 78 employees were said to have cast a valid vote and 77 employees voted to approve the Agreement.[1] Within the cohort were 92 casual employees. Employees fell within classifications such as medical practitioner, clinical – non dialysis, dialysis nurse, Aboriginal and Torres Strait Islander health practitioner, community service worker, and administrative worker.
Because 92 casual employees were included in the cohort, the Applicant was directed to file submissions and any evidence it wished to rely upon in support of its assertion that the cohort of casual employees consisted of employees ‘employed at the time’. It is noted that the Applicant did not request a hearing in respect of the application and as such the application was determined on the papers. It is further noted that the Australian Nursing and Midwifery Federation was supportive of the Applicant’s evidence and legal argument that the Agreement had been made.
For reasons which follow, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.
The casual employees and ‘employed at the time’
It is uncontroversial that enterprise agreements were intended by the legislature to be capable of covering casual employees. However, a difficulty that has arisen is ascertaining when a casual employee ought to be regarded as an employee ‘employed at the time’ within the meaning of s 181(1). In relation to permanent employees, it is of course a relatively straightforward exercise.
An enterprise agreement requires approval by the Commission in order to have legal effect under the Act. Section 186(1) of the Act establishes that where an application for approval of an enterprise agreement has been made, the Commission must approve the agreement if the requirements set out in ss 186 and 187 are met. One of those approval requirements, set out in s 186(2)(a) and applicable only to non-greenfields agreements, is that the Commission must be satisfied that the agreement has been ‘genuinely agreed to’ by the employees covered by the agreement.
What constitutes genuine agreement by the employees covered by an agreement, as required by s 186(2)(a), is the subject of s 188 which reads, in part:
(1) 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.
Section 188(1)(a)(i) establishes as an element of the genuine agreement requirement, the necessity of compliance (subject to s 188(2)) with the ‘pre-approval steps specified in s 180(2), (3) and (5)’.
Section 181, which is referred to in s 180(1) and (4), provides:
181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
(bold my emphasis)
Section 182(1), which is referenced in s 188(1)(b), provides:
182 When an enterprise agreement is made
Single-enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement….
It is accepted that the ‘time’ of the request referred to in s 181(1) encompasses the whole of the access period and is to be equated to the ‘time’ referred to in s 180(2)(a).[2] While the Full Bench in Re Shop, Distributive and Allied Employees Association examined at length what was meant by the ‘time’ of the request, as referred to in s 181(1), it did not necessarily address what was meant by the phrase ‘employees employed at the time’.[3] That is, what constitutes being ‘employed’.
The phrase ‘employed at the time’ has been considered by the Federal Court of Australia in National Tertiary Education Industry Union v Swinburne University of Technology (Swinburne)[4] and a limited number of subsequent cases before this Commission.[5] In St John of God Health Care Inc,[6] I considered Swinburne and some of the Commission’s decisions at length. Of course, in Swinburne, the phrase as referred to in s 180(2)(a) and s 181(1) was examined in detail.
Swinburne concerned an appeal to the Full Court of the Federal Court regarding the decision of the Full Bench of the Commission to approve an enterprise agreement which covered academic, general, and executive staff of the Swinburne University of Technology.
In Swinburne, a large number of sessional or casual employees were included in the voting ballot. This raised the question as to whether those employees were ‘employed at the time’. The National Tertiary Education Industry Union contended that their inclusion would necessarily have included a number of persons who were not ‘employed at the time’. The University’s cohort included all sessional academic staff who had been employed at any time over a period of 12 months before the s 181 request was made. The Full Bench held the view that s 181(1) both permitted and required the University to address its request to all individuals who were then ‘usually employed’ by it.
However, Jessup J, with whom White J concurred, observed that the foundational provision is s 172(2), which authorises an employer to make a single enterprise agreement ‘with the employees who are employed at the time the agreement is made …’.[7] Justice Jessup acknowledged that an ‘employee’ is ‘an individual so far as she or he is employed, or usually employed’ by a national system employer (s 13).[8] Justice Jessup stated that reading this definition into s 172(2), the employer may make the agreement with the individuals who are employed, or usually employed, by the employer, but only to the extent that they are actually employed at the time the agreement is made. It was explained that this construction recognised the legislative intention of confining, from within a broad class which include individuals who are usually, but not immediately, so employed, the relevant group to those who are employed at the time the agreement is made.[9]
Having traced through provisions such as ss 180, 182(1), 181(1), (2) and (3), 172(2), 173(2) and (3), Jessup J stated:
The provisions to which I have referred bespeak the giving of such detailed attention to the rights and obligations of the parties concerned, and to the means by which an agreement is approved and thus made, that it would be, in my view, a distraction to decide issues such as that arising in the present case by reference to the high-level truism that an employee includes an individual who is usually employed by the employer concerned. If a purely grammatical justification is needed for that view, it may be found by treating the words “employed at the time” in s 181(1) as limiting apropos “employees”. Not only is that a satisfying grammatical reading of the whole phrase, it accords strongly with the purpose of this provision, and those associated with it.[10]
Having confirmed that those to whom a request under s 181(1) should be addressed is confined to those who are employed at the time, his Honour observed that the University included in those to whom requests were addressed ostensibly under s 181(1) everyone who had been employed, to any extent, in 2013. His Honour expressed that at the general level, the Commission endorsed that approach because it read the provision as including those who were ‘usually employed’ as being within the expression ‘employees employed at the time’, which, his Honour explained, was a misreading of s 181(1).
Since the judgment in Swinburne, the Full Bench of this Commission has handed down decisions in McDermott Australia Pty Ltd v Australian Manufacturing Workers’ Union (McDermott)[11] and Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd (Noorton).[12] Further, decisions such as National Union of Workers v Lovisa Pty Ltd[13] and MTCT Services Pty Ltd,[14] have subsequently considered those Full Bench decisions. In Noorton, the Full Bench considered McDermott and made the following observations:
[32] During the appeal, Noorton referred to the decision in McDermott Pty Ltd v the Australian Workers’ Union and Anor in aid of the Deputy President’s conclusion that the cohort of casual employees who were asked to vote were employed at the time. Whilst we may have some misgivings about the correctness of McDermott, it is unnecessary for us to express a concluded view. The decision is plainly distinguishable on the facts. The critical conclusion in McDermott was that the casual employees “accepted on-going employment” with McDermott as evidenced by the employer’s payroll records and the evidence of Mr McMahon, and as such they were employed by McDermott at the time the Agreement was made. Their employment comprehended work within McDermott’s scope of work for the Project. Unlike the facts in Swinburne, the casual employees were employed at the time, they were not in a cohort of “likely to be engaged” or “usually employed.” The reasoning adopted by the Full Bench in McDermott might be said to be more akin to a conclusion that the relevant employees were not “casual employees” at all but rather were “ongoing employees” who had accepted “ongoing employment”.
[33] There was no evidence before the Deputy President that the casual employees who were asked to vote to approve the Agreement accepted ongoing employment with Noorton. As we have already observed, there was no evidence about the nature of the casual employment of the employees or the terms under which these employees were engaged. The decision in McDermott therefore provides no assistance.
Turning to the application before me. The voting period for the Agreement commenced on 7 December 2022 and concluded on 13 December 2022, with the access period commencing on 30 November 2022 and concluding on 6 December 2022.
In support of its application, the Applicant filed a witness statement of Ms Kerri Mitchell, the People Experience Manager of the Applicant. Ms Mitchell explained that as of 29 November 2022, the Applicant had 92 casual employees legally employed. Ms Mitchell stated that casual employees engaged on 1 July 2022 were issued with extension contracts until 31 December 2022 (which were provided to the Commission) and then were provided with subsequent extensions until 30 June 2023.
In addition to the aforementioned evidence, the Applicant provided detailed spreadsheets of those casual employees who had worked a shift in the access period and those who had not, a copy of the timesheet report and all payslips for the relevant period. As can be anticipated, some time was required to review all the material to hand – all with a view to simply determining whether the casual employees were ‘employed at the time’.
The Applicant submitted in excess of 40 contracts of employment for its casual employees. The majority, if not all, of the employment contracts with the exception of one, provided:
1.2 Commencement date
Subject to your satisfaction of the Conditions Precedent and acceptance of the terms and conditions of this offer, this Agreement will commence on 05/09/2022, or such other date as we agree (Commencement Date). Your employment will commence at this time.The employment is offered for a term (Term) from the Commencement Date to 31/12/2022 (Expiry Date). This Agreement and your employment will terminate on the Expiry Date, unless:
a.it is terminated before that date in accordance with the termination provisions of this Agreement; or
b.the Term is extended by agreement in writing.
Whilst the parties may agree to extend the Term, they are not obliged to do so. Should the parties agree to extend the Term, this Agreement will apply, subject to any agreed variations, unless replaced.
…1.5 Position
Your employment will be on a Casual basis and you are expected to devote your full time and attention during working hours to the performance of your duties and achieving your accountabilities. You must at all times comply with all lawful and reasonable directions given by Western Desert.Upon appointment, you will be engaged in the position of Dialysis Nurse, and reporting to the Dialysis Services Manager.
The current duties applicable to that position are set out in the position description on your employment file.
Western Desert may vary your position, title, duties, base location and/or reporting arrangements over time following consultation with you, provided that any changes are consistent with your skills and knowledge and the status of your existing position.
…2.9 Hours of work
Your nominal ordinary hours of work will be up to 15.2. Nurses employed by Western Desert to work centrally rather than remotely are only expected to work salaried hours unless individual working arrangements are agreed with Western Desert, following consultation with you.
Should nurses employed centrally need to work longer than the salaried hours agreed, for whatever reason, this will need to be approved on an individual or case by case basis by Western Desert management and will be taken on a time off in lieu (TIL) basis.
4.1 Termination on notice
a. Your employment may be terminated at any time by either you or Western Desert giving the other party the amount of notice specified in the following table or during the probationary period in accordance with clause 1.4:Your period of continuous service with Western Desert at the end of the day the notice is given
Notice required
Not more than 1 year 1 week
More than 1 year but not more than 3 years 2 weeks
More than 3 years but not more than 5 years 3 weeks
More than 5 years 4 weeksb. Western Desert will increase the notice set out in the table above by one week if you are over 45 years of age and have completed at least two years’ continuous service with Western Desert at the time Western Desert gives you notice.
c. If you or Western Desert give notice of termination then Western Desert may:
i.elect to make payment to you in lieu of notice instead of requiring you to work for part, or all, of the notice period, in which case your employment ends when the election is made; or
ii.direct you to not perform any or all duties for part or all of the notice period and require you to remain away from Western Desert’s premises and give other such directions as are appropriate in the circumstances.
iii.Any payment in lieu of notice will be paid to you on the basis of the base salary component of your TRP and in accordance with applicable legislation.
Another type of contract set out:
1.2 You are employed on a Casual basis. Your normal ordinary hours will be up to 38.0 hours per week and you will report to the Aged Care Operations Coordinator – Yuendumu.
…
1.5 This contract covers the period from 05/09/2022 to 31/12/2022.
2 Probation
Probation periods do not apply to casual contracts. Please refer to Clause 3.1 and 3.2 for termination policy.3. Termination
3.1 This contract can be terminated by either party without notice.
3.2 Upon termination WDNWPT has the right to deduct any debt owing to it from outstanding wage or entitlements.
…
The latter casual employment contract exhibits some characteristics of the legal relationship of employment on a casual basis, such that the employment contract can be terminated without notice, there is no probationary period, and ‘normal hours’ are said to be up to 38 hours per week with no express guarantee of hours provided. However, reference is made to the employment contract covering a set period and the contract does not expressly negate a guarantee of continual or additional employment under the proforma contract.
The first employment contract referred to is unusual in the sense that whilst providing for employment on a casual basis, it is for a fixed term such that the employment is said to commence on a particular date and terminate on the ‘Expiry Date’. Further, a party to the casual employment contract is required to provide notice of the termination of employment. The first employment contract sets out the hours of work and, whilst stipulating that the nominal ordinary hours will be up to 15.2, the contract clearly contemplates circumstances where salaried hours are agreed.
In WorkPac Pty Ltd v Rossato (Rossato), the High Court considered the indicators of the true character of an employment relationship, and expressed the following:
62. To insist upon binding contractual promises as reliable indicators of the true character of the employment relationship is to recognise that it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences. That it is no part of the judicial function to reshape or recast a contractual relationship in order to reflect a quasi‑legislative judgment as to the just settlement of an industrial dispute has been emphatically the case in Australia at the federal level since the Boilermakers Case.
63. To insist that nothing less than binding contractual terms are apt to characterise the legal relationship between employer and employee is also necessary in order to avoid the descent into the obscurantism that would accompany acceptance of an invitation to enforce "something more than an expectation" but less than a contractual obligation. It is no part of the judicial function in relation to the construction of contracts to strain language and legal concepts in order to moderate a perceived unfairness resulting from a disparity in bargaining power between the parties so as to adjust their bargain. It has rightly been said that it is not a legitimate role for a court to force upon the words of the parties' bargain "a meaning which they cannot fairly bear [to] substitute for the bargain actually made one which the court believes could better have been made". Even the recognised doctrines of unconscionability or undue influence do not support such a course; and in any event, neither Mr Rossato, nor any of the interveners, sought to suggest that the doctrines of unconscionability or undue influence had any part to play in the resolution of the present dispute.[15]
Based on the evidence provided, I am of the view that the casual employees in the cohort, with the one exception (who was employed pursuant to the terms of the contract referred to at paragraph [22] of this decision), were employed on an ‘ongoing basis’. It follows that they were employed ‘at the time’.
However, if I am wrong on this point, such that the character of the employment relationship of all the casual employees was that as described in the Full Bench decision of Shortland v Smiths Snackfood Co Ltd,[16] it nevertheless remains that the Agreement has been made.[17]
After a review of the relevant spreadsheet and other evidence, it was evident that of the 92 casual employees identified, 47 did not complete a work shift during the access period although all (save one) had ongoing employment.
Ms Mitchell contacted the ballot agent, Elections Australia Pty Ltd, to determine if the removal of the 47 causal employees would have impacted the outcome of the vote. Submitting that Elections Australia maintained the anonymity and validity of the vote, Ms Mitchell explained that it provided written information to her that the voting result would still have remained at a majority ‘Yes’, with 98.65% voting in favour of the Agreement notwithstanding the removal of the 47 casual employees from the voting cohort. The direct evidence from Elections Australia Pty Ltd has been considered on this point.
Whilst satisfied that 91 of the casual employees were employed ‘at the time’, if I am wrong on this point, it is still the case that the Agreement has been made in accordance with s 182(1).
Conclusion
Having identified some other issues with the Agreement, the Applicant has provided written undertakings in response. A copy of the undertakings is attached in Annexure A. 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.
In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.
Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I again note that I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.
The United Workers’ Union and the Australian Nursing and Midwifery Federation (together, the organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement.
The Agreement was approved on 3 February 2023 and, in accordance with s 54, will operate from 10 February 2023. The nominal expiry date of the Agreement is 10 February 2026.
DEPUTY PRESIDENT
Annexure A
[1] Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement).
[2] Re Shop, Distributive and Allied Employees Association (2019) 291 IR 233, 246 [33] (Kmart).
[3] Kmart (n 2).
[4] (2015) 232 FCR 246 (Swinburne).
[5] See, eg, MTCT Services Pty Ltd [2019] FWCA 4634 (MTCT).
[6] [2023] FWCA 87.
[7] Swinburne (n 4) 252 [17].
[8] Ibid.
[9] Ibid.
[10] Ibid 254 [26].
[11] (2016) 255 IR 146 (McDermott).
[12] [2018] FWCFB 7224.
[13] [2019] FWC 2885.
[14] MTCT (n 5).
[15] (2021) 271 CLR 456, 478–9 [62]–[63].
[16] (2010) 198 IR 237, 240 [10].
[17] Fair Work Act 2009 (Cth) s 182(1).
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