Yarra Valley Water Corporation

[2013] FWCA 3816

[2013] FWCA 3816 Note: An appeal pursuant to s.604 (C2013/5138) was lodged against this decision - refer to Full Bench decision dated 30 September 2013 for result of appeal.

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Yarra Valley Water Corporation
(AG2013/1334)

YARRA VALLEY WATER ENTERPRISE AGREEMENT 2012

Water, sewerage and drainage services
COMMISSIONER GREGORY	MELBOURNE, 4 JULY 2013

Application for approval of the Yarra Valley Water Enterprise Agreement 2012.

[1] This matter was listed for hearing before me on Monday 24 June 2013 in Melbourne. Mr B. Avallone was granted leave to appear on behalf of Yarra Valley Water Corporation, firstly, pursuant to s.596(2)(a) of the Fair Work Act 2009 (the Act) because the matter involved a degree of complexity and his involvement would enable the matters to be dealt with more effectively. Given the Respondent’s representative was to be called as a witness I also considered pursuant to s.596(2)(b) of the Act that granting leave would assist the Respondent to be represented effectively. Mr S. Shepherd appeared on behalf of the Australian Municipal, Administrative, Clerical and Services Union and Ms A. Byrne appeared on behalf of The Association of Professional Engineers, Scientists and Managers, Australia. At the conclusion of that hearing I made a decision in transcript. What follows is a revised and edited version of that decision.

[2] An application has been made for approval of an enterprise agreement known as the Yarra Valley Water Enterprise Agreement 2012. The application was made pursuant to s.185 of the Act by the employer Yarra Valley Water Corporation.

[3] I am, firstly, satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. However, I am also aware of a letter dated 19 June 2013 to the Commission from the Australian Services Union (ASU), who are a bargaining representative for the Agreement. That letter indicated in part:

“The ASU has concerns that YVW did not take all reasonable steps to explain the terms of the proposed agreement, and the effect of those terms, to its employees. The ASU is therefore not satisfied that the application meets the pre-approval requirement contained in subsection 180(5) of the Act.”

[4] I also understand that this position is supported by the Association of Professional Engineers, Scientists and Managers Australia (APESMA), who are also a bargaining representative for the Agreement. I accept that these are legitimate areas of concern for the two unions to raise. I also understand that for reasons that do not detract from their concerns about whether s.180(5) has been satisfied, the two unions have in any case signed the agreement. I also note by way of clarification that the letter from the ASU continues to indicate:

“For avoidance of doubt about the nature of the ASU's objection to approval of the agreement in the form enclosed with the Applicant's application, the ASU is satisfied that the agreement passes the better off overall test and does not submit that the content of the proposed agreement contains any other impediment to approval.”

[5] Section 180(5) of the Act provides in the context of approval of an enterprise agreement:

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

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

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.” 1

[6] I am satisfied, based on the relevant authorities, that what is reasonable in the circumstances in terms of s.180(5) and what are in any situation “reasonable steps” depends on the circumstances of the particular matter and the various issues associated with that workplace and the parties and employees involved. I am also satisfied based on those authorities that “reasonable steps” do not require a full explanation of every detail about what is contained in a proposed agreement and its intended effect in order to satisfy the requirements of s.180(5) of the Act.

[7] In this context I refer, in particular, to the decision of a Full Bench comprising Watson VP, Kaufman SDP and Raffaelli C handed down on 20 July 2010 in the matter of McDonalds Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association 2. I also note the decision was adopted by Asbury C in Glen Eden Thoroughbreds Pty Ltd T/A Ray White Shailer Park3, handed down on 16 September 2010.

[8] Based on the evidence and submissions provided in this matter and I refer, in particular, to the additional statutory declaration and the evidence provided in the proceedings by Ms Anne Farquhar, who is the General Manager for People and Culture at the Yarra Valley Water Corporation, I am satisfied that the requirements of s.180(5) of the Act have been satisfied and that accordingly the requirements of s.188 of the Act have also been met.

[9] In this context I refer, in particular, to the evidence provided about a range of communications to employees that commenced in late April 2013 and continued through the following month until the Agreement was put to a vote. This included material posted on a dedicated webpage, various email communications to all relevant employees including, inter alia, a table of changes detailing the original clause wording and new clause wording introduced because of requirements from the Department of Treasury and Finance, together with comments indicating why those changes had been made. There were also what were described as “road shows” convened by the employer and information sessions held at various locations to which relevant employees were invited and able to attend, together with various other publications on display screens and notice boards.

[10] I am also satisfied that this information was distributed within a time frame that enabled any affected employee to obtain any relevant clarification, if required. I also note that a number of the employees to be covered by the proposed agreement were actively represented by two registered organisations as bargaining representatives, who also provided various communications to their members about the terms of the proposed agreement and in the process highlighted issues which their members might wish to seek further clarification about. Those organisations also, as the evidence indicates, distributed various written materials to members and on at least one occasion during the relevant period convened meetings so that members could attend and obtain further information about what was being proposed.

[11] I am also satisfied that care was taken to ensure that any employees who were absent on leave at the time, or any employees for whom English is not their first language, were able to have appropriate arrangements put in place to respond to these circumstances if they so desired. However, I also note that there has been no evidence led in the proceedings about any employee in these two categories being adversely impacted by the process of communication embarked upon, either prior to the agreement being voted on or subsequent to.

[12] In coming to this decision it is acknowledged that some of the information distributed by the employer was provided in a way intended to encourage employees to support and vote in favour of the proposed agreement. However, I am also satisfied that the information and explanations provided by the employer were also constituted in a way that satisfies the requirements and obligations imposed upon the employer by s.180(5) of the Act.

[13] The Australian Services Union and the Association of Professional Engineers, Scientists and Managers of Australia, both 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) of the Act I note the agreement will cover both organisations.

[14] The Agreement is approved and in accordance with s.54 of the Act came into operation from 1 July 2013. The nominal expiry date of the agreement is 14 November 2016.

Appearances:

Mr S. Shepherd on behalf of the Australian Municipal, Administrative, Clerical and Services Union

Ms A. Byrne on behalf of The Association of Professional Engineers, Scientists and Managers, Australia

Mr B. Avallone of Minter Ellison Lawyers on behalf of Yarra Valley Water Corporation.

Hearing details:

2013.

Melbourne:

24 June.

 1   Fair Work Act 2009 (Cth) s.180(5)

 2   [2010] FWAFB 4602

 3   [2010] FWA 7217

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