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[2018] FWCFB 2992
Fair Work Commission (Full Bench)
2018-07-11
Original judgment source is linked above.
s.604 - Appeal of decision
Construction, Forestry, Maritime, Mining and Energy Union
Appeal against decision ( [2018] FWCA 802) of Commissioner McKinnon at Melbourne on 6 February 2018 in matter number AG2017/3581.
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner McKinnon on 6 February 2018[1] (the Decision) to approve the Dawsons Maintenance Contractors Enterprise Agreement 2017 (the Agreement). The Respondent in this matter is Dawsons Maintenance Contractors Pty Ltd, referred to in this decision as Dawsons.
[2] The Commissioner set out comprehensive reasons for her Decision. The reasons for the Decision included a reference to the history of the involvement of what is now the CFMMEU in the approval application. The CFMEU Mining and Energy Division (as it was then named) sought and were provided with copies of the Form F16, Form F17 and Notice of Employee Representational Rights (NERR) filed by the Applicant before the matter was allocated to Commissioner McKinnon. The decision to provide such documents was consistent with the Full Bench decision in CFMEU v Ron Southon Pty Ltd.[2] The CFMEU then indicated it wished to make submissions. After advising the Commission that it was not a bargaining representative, the CFMEU was permitted to provide submissions only in relation to consideration of the Better Off Overall Test (BOOT) as it was considered that the union was likely to be in a position to assist the Fair Work Commission (the Commission) in consideration of that issue, having regard to its particular knowledge of the relevant modern awards.[3]
[3] The circumstances of the proposed agreement include that the following five awards potentially had application to employees and thereby matters relevant to the BOOT;
Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award);
Mining Industry Award 2010 (Mining Award);
Building and Construction General On-Site Award 2010 (Building Award);
Professional Employees Award 2010 (Professional Award); and
• Clerks - Private Sector Award 2010 (Clerks Award).[4]
[4] In her Decision the Commissioner considered matters relating to the capacity of the proposed agreement to meet the BOOT, having noted that the CFMMEU had;
"...argued that the Agreement does not pass the BOOT because it contains a number of less beneficial provisions. Specifically the CFMEU took issue with agreement terms dealing with rail allowance, payment for off the job training, apprentices and trainees, excessive leave, "obligations to employer" and drug and alcohol testing, casual conversion, redundancy, abandonment of employment, inclement weather, frequency of payment and deductions from pay."[5]
[5] The Commissioner accepted ten undertakings from Dawsons, and determined "on balance" that she was satisfied the Agreement had passed the BOOT. Further, the Commissioner was satisfied the undertakings provided did not cause financial detriment to any employee covered by the Agreement nor resulted in substantial change to the Agreement.[6]
[6] Although there are no detailed considerations in the Decision of the other additional requirements to which the Commission is to have had regard, it is indicated generally that she was satisfied that the additional requirements in ss.186, 187, 188 and 190 of the Fair Work Act 2009 (Cth) (the Act) as are relevant to this application for approval had been met.
[7] On 17 May 2018, Mr Andrew Thomas of the Union's Mining and Energy Division appeared in the hearing before us. Following the conclusion of that hearing, the Full Court of the Federal Court of Australia handed down its judgment in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union[7] (One Key). As One Key considered many issues pertinent to this appeal, we provided the parties an opportunity to provide further written submissions. On 7 June 2018, the CFMMEU provided further written submissions in response to Onekey. No further written submissions were received from Dawsons.
[8] The CFMMEU's grounds of appeal, as contained in its Notice of Appeal, were as follows;
"1. The Commissioner erred at paragraph [54] of her reasons for decision in finding that the Agreement had met the requirements of ss 186, 187 and 188 of the Fair Work Act in circumstances where the material before the Commissioner demonstrated that:
a. The Respondent had not taken all reasonable steps to ensure the relevant employees were given copies of or had access to material incorporated by reference into the Agreement.
b. The Respondent had not taken all reasonable steps to ensure that the terms of the Agreement and the effect of those terms were explained to the relevant employees.
c. The Respondent had failed to acknowledge and advise the relevant employees of terms of the Agreement that are detrimental compared to the relevant Award terms.
2. The Commissioner erred at paragraph [54] of her reasons for decision in finding that the Agreement passed the Better Off Overall Test (s 186 (2) (d)) by:
a. concluding that the wages provided for apprentices and trainees in the Agreement did not constitute a detrimental term;
b. misapplying the Better Off Overall Test by failing to give effect to the practical and beneficial operation of the Better Off Overall Test and;
c. misapplying the relevance of the test time and finding that the Better Off Overall Test had been satisfied in the circumstances of the terms of the Agreement.
3. The Commissioner erred in failing to find that the undertakings constituted a substantial change (s 190 (3) (b)) to the Agreement and therefore the application for approval should have been refused."
[10] The CFMMEU submitted that they have eligibility coverage and members in the metalliferous mining industry and the building and construction industry and that the Respondent's employees are eligible to be members of the CFMMEU. Moreover, it is submitted that;
the approval and its effect concerns the CFMEU,
it is likely that members of the CFMMEU will be engaged by Dawsons in the future, and
that the Agreement will cover their employment.
[11] Further, in the hearing before us the CFMMEU stated the following:
"PN169 DEPUTY PRESIDENT HAMILTON: Just one thing perhaps. Does the CFMMEU have a policy of intervening in these matters? Where they don't have appropriate industrial standards, is that how you describe it, or would you put it differently to that?
PN170 MR THOMAS: Not the CFMMEU generally. I'm with the Mining and Energy Division and there's no formal decision. What we do is, we look at the Commission's list of awards - agreements coming on.
PN171 DEPUTY PRESIDENT HAMILTON: No, no. Why do you do it? Is it because the agreements are defective in your point of view in terms of industrial standards?
PN173 DEPUTY PRESIDENT HAMILTON: The levels of conditions or is it something - that's it, is it?
PN174 MR THOMAS: We say - yes, it undermines the wages and conditions in the industry. There are a lot of labour hire firms running around in the coal mining industry and the mining and building and construction. The gap, more so in coal mining, Deputy President, between what is paid and the award is quite significant and we are very keen to ensure that, as best we can, we maintain the standards. If that means we have to undertake these activities then we do."
[12] On that basis, the CFMMEU contended that they are a person aggrieved by the decision for the purposes of s.604(1) of the Act and therefore have standing to bring this appeal. The CFMMEU referred to a number of earlier Full Bench decisions in support of its submission for standing, including CEPU v Main People Pty Ltd.[8]
[13] Although Dawsons did not attend the appeal hearing before us, in its written submissions, it posited that the CFMMEU is not a person aggrieved by the Decision because the CFMMEU's reliance upon eligibility coverage and members in the same industries were insufficient grounds to find that the CFMMEU has the requisite standing. Dawsons argued that the factual basis behind other Full Bench decisions in which standing was granted, were in each case, broader than merely the matters of eligibility coverage and membership in the same industries. To this point, Dawsons set out the following examples:
"(a) the union was covered by a substantially identical enterprise agreement with an entity related to the employer in question, and also had members who perform the same or similar work for that related entity (including at locations covered by the enterprise agreement to be approved) - rather than having members in the industry in general[9];
(b) the union had the right to represent employees under the terms of the enterprise agreement[10]; and/or
(c) the FWC was prepared to find a likelihood that some future employees will be members of the relevant union[11] or consider there was a prospect that members of the union would be engaged by the employer - rather than accepting eligibility coverage in general.[12] The CFMMEU has not adduced evidence in this appeal on this question of fact as to this likelihood or prospect."[13]
[14] We disagree with this reasoning. While in CFMEU v CSRP the Full Bench noted the CFMEU claimed membership in a related entity,[14] the matter was not decided on that point; instead the Full Bench considered:
"... that the CFMEU has the requisite interest in the Decision, in that it has rules coverage in the mining industry and it is likely, to the extent that CSRP employs persons under the Agreement in the future, that some will be members of the CFMEU".[15]
[15] Such a finding follows the reasoning in CEPU v Main People Pty Ltd.[16]
[16] Further in CEPU v Sustaining Works, while noting the factual circumstances of that matter, coverage and membership of the union was found in a related entity's enterprise agreement. That decision was also resolved following the Main People principle, despite various other matters that were raised in that appeal.[17] The same can be observed in CFMEU v Shamrock[18] wherein a Full Bench employed the following phrase; that there is a "prospect" of CFMEU membership. In our view this is entirely consistent with the Main People principle, that is, it is "likely" that there will be future membership.[19]
[17] In this matter, there is no dispute that the CFMMEU rules permit it to enrol the Respondent's employees as members and we consider that there is the prospect that members of the CFMMEU will be engaged by Dawsons in the future and will be covered by the Agreement. This is sufficient to confer standing on the CFMMEU to appeal the decision.[20]
[18] Dawsons further advanced that a person who is denied permission to be heard at first instance on the procedural steps taken in the making of an enterprise agreement, that it ought to be barred from commencing an appeal, as they were not in a position to assist at first instance and therefore cannot claim to have such knowledge at the appeal stage.[21] It was contended by Dawsons that if leave is given to advance appeal matters not dealt with at first instance, those matters would be out of time and an extension of time would be necessary. We do not accept this proposition.
[19] While the general principle is that a party should not be permitted to argue a case on appeal which it did not raise at first instance,[22] this is a case in which the Appellant did not have the opportunity to raise the matters beyond the BOOT, because it was constrained in the proceedings at first instance by a procedural decision of the Commissioner.[23]
[20] For these reasons, we have determined to grant leave for the CFMMEU to raise matters disclosed in its Notice of Appeal.
[21] In determining whether permission to appeal should be granted we have reviewed and considered all materials filed by the parties including submissions, correspondence and relevant authorities.
[22] We have also taken into account Dawsons' submissions which reinforce that the public interest is not enlivened in matters where permission to appeal is required simply by the identification of error or a preference for a different result. Moreover, we have noted the following submissions advanced by Dawsons;
• The appeal does not raise matters of importance or general application, noting that each issue under this appeal has been previously considered by a Full Bench.[24]
• "The allegation that the Decision 'manifests an injustice' cannot be to sustained having regard to the facts that the agreement passed the BOOT (for the reasons below and submitted before Commissioner McKinnon), 100 of the 111 valid votes cast voted to approve the agreement, and undertakings were provided in response to all BOOT-related concerns raised by the FWC at first instance."[25]
• In any event, for the reasons below, no appealable error that would have affected the ultimate outcome has been shown and therefore permission to appeal should be dismissed."[26] (Citations omitted).
• The reasoning of the Full Bench in Hart v Coles Supermarkets and Bi-Lo[27] be adopted:
"The Full Bench of the FWC has recognised that '[e]nterprise agreement making is a difficult and time consuming exercise... The processes of commencing bargaining, negotiating an agreement, seeking approval of employees and then seeking approval of the Commission are bound to occur over an extended period.' The Respondent submits this process becomes unworkable if a person denied permission to be heard on that process, as they are not in a position to assist, can claim such knowledge at the appeal stage, let alone with no supporting evidence.[28] (Citations omitted).
[23] The CFMMEU's Notice of Appeal contains three grounds of appeal, set out at paragraph [8] of this decision. We have taken these matters into account and for the reasons set out below, we have decided to grant permission to appeal at least in relation to ground 1. While the case itself does raise matters of importance or general application, we are satisfied that the Decision manifests in injustice as we are not satisfied that employees who were otherwise bound by the Agreement genuinely agreed to its terms.
[24] As set out at paragraph [8] of this decision, appeal ground 1 contends that the Commissioner was in an error in finding that the Agreement met the Act's requirements, namely that;
Dawsons had taken all reasonable steps to ensure relevant employees were given copies of or had access to material incorporated by reference into the agreement,
the employees had explained to them the terms of the agreement; and
the employees were entitled to be advised that certain terms of the agreement would be detrimental compared to relevant award terms.
[25] In effect, the CFMMEU posits that before an agreement can be approved, the Commission must be satisfied (so far as is relevant to this matter) that the agreement has been genuinely agreed to by the employees covered by the agreement (s.186(2)(a)), with an employer effecting "genuine agreement" in several ways (s.188), including by taking several pre-approval steps specifically set out in s.180(2), (3) and (5).[29]
[26] With the exception of s.180(3) relating to steps taken by the employer to notify employees of details regarding the vote (which is not an issue in this matter), the relevant sections are as follows:
(a) if the agreement is not a greenfields agreement - the agreement has been genuinely agreed to by the employees covered by the 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)."
(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:
(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."
(5) The employer must take all reasonable steps to ensure that:
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."
[27] Satisfaction under s.186(2)(a) is a jurisdictional prerequisite for the approval of any enterprise agreement. If the matters within ss.180(2) and (5) are not satisfied, then the Commission cannot be satisfied of the matters within s.188(a)(i) and consequently the Commission cannot be satisfied that the agreement has been 'genuinely agreed' as required by s.186(2)(a).
[28] The CFMMEU submitted that there is an extensive incorporation by reference of material into the proposed agreement. In particular, it draws the Commission's attention to clause 3.2.7 of the proposed agreement which provides a translation table between classifications appearing within the Agreement and comparable classifications within the five relevant awards. The effect of this clause is to provide determination of which particular level an employee may be classified under. This is ascertained by reference to the classification descriptors in the relevant reference award. While the CFMMEU notes that clause 1.6.1 provides that the Agreement replaces all identified modern awards (excluding the classification descriptors in clause 3.2.7 which references the relevant Award Schedules - Classifications and specific Allowances in clause 3.6 of the Agreement), it submitted that:
"...Understanding clause 3.2.7 is imperative if an employee is to understand his/her entitlement to a particular classification and consequent terms of employment under the Agreement. This in turn required knowledge of the content of the clauses in the relevant award."[30]
[29] In relation to the availability of external reference material, the CFMMEU submitted that Dawsons had an obligation "to take all reasonable steps to give a copy of, or provide an employee with access to, other material incorporated by reference in the Agreement".[31]
[30] In response, Dawsons contended that this requirement does not result in a requirement for the company to provide an employee with access to materials such as the various relevant awards.[32] Dawsons noted that within the Agreement itself the classifications referring to the award derived classification descriptors refer the reader to the relevant award. For example in relation to the Agreement based classification DMC Engineering C14 it is stated "Refer to the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010), Schedule 8- Classification Structure and Definitions, clause 8.3.3".
[31] Furthermore, Dawsons disputed that the fact that the relevant awards are readily available online is akin to the circumstances in McDonalds v SDA[33] in which it was considered that legislation, being a law of the land, was freely available in the public domain and so no further steps were required to provide the material to employees. It also submitted that employees were provided with an explanation about the terms of the Agreement and the effect of the terms in meetings held between 25 and 29 June 2017 with details about those meetings being set out within the Form F17 (Employer's supporting Statutory Declaration) signed by Sharon Dawson, Dawsons' Chief Executive Officer. At question 2.6 of that Form F17 Dawsons states in response to the question of what steps were taken by the employer to explain the terms of the agreement, and the effect of those terms, to the relevant employees that;
"Meetings were held at all workshops and major sites during the week of 25-29th June to provide an explanation of the proposed Agreement and to answer any questions regarding the Agreement making process. Opportunities were provided to ask questions during the meetings or in a one on one meeting with Sharon Dawson directly following the meetings. The workforce was advised that the proposed new EA provided for work arrangements that have been part of the Dawsons Group of Companies for some time. Employees were provided an explanation of the application of the better off overall test to ensure that they are not disadvantaged by the operation of the Enterprise Agreement.
A copy of the proposed agreement was emailed to all staff on 10/07/17 and 24/07/17.
On 24/07/17, all employees were emailed an explanation of the new Agreement and the voting process.
During the access period, telephone calls were made to all site supervisors to ask that they address their workers at toolbox meetings and ensure the workforce had an opportunity to ask questions of their supervisors or Ms Dawson.
Ms Dawson provided phone, email and mobile phone contact details at meetings and on all emails to encourage employees to contact her or their direct supervisor with any queries."
[32] Dawsons submitted that the Commissioner at first instance was entitled to rely upon this statement about the steps taken by the company and that there was no contradicting material.
[33] Attached to the Form F17 was a company notice to employees, which appears to be the second of the documents referred to within the statutory declaration. Other than stating that a copy of the Agreement is attached and that hardcopies can be accessed in the company's Cairns and Townsville offices, the document does not make any reference to incorporated materials; however it provides the following brief information to employees;
On 3 July 2017, we issued a notice of representational right to start the bargaining process. We have reached a point where we wish to go to ballot for the EA.
We are now required by the Fair Work Act to implement an access period prior to the vote.
The access period is the 7 day period ending immediately before the start of the voting process. During the access period we are required to ensure you have access to a copy of the Agreement that is to be voted on and all incorporated documents. The access period for this proposed Agreement starts today, 7 clear days immediately before the start of the voting process on 3 August 2017.
To comply with the access period, a copy of the Agreement is attached or hard copies can be accessed in our Cairns or Townsville office or can be arranged through your supervisor. We encourage you to review the Agreement during the access period.
We have previously taken steps to explain the terms of the Agreement to you at the employee briefings held between 25-30 June.
I have attached an explanation document to this email as well. If you have any further questions, you can ask questions by contacting me by email or on 40551900 at any time.
The vote will be conducted by Survey Monkey via email. In order to vote, you will be emailed a secure link. You may only vote once and all votes are confidential.
The vote will be held between 3 and 4 August 2017. You cannot vote before opening time or after the closing date.
A valid majority is required for the Agreement to be approved. This means 50% +1 of employees who return a valid vote.
The outcome of the vote will be known and communicated to employees on 7 August.
[34] Other relevant information set out in the Form F17 included;
Identification that there would be 313 employees potentially covered by the Agreement; that 100 employees had voted to approve the Agreement out of the 111 who cast a valid vote; and that 193 of the employees were identified as being casual employees.
A copy of the Notice of Employee Representational Rights which is in the requisite form; as well as copies of the form by which bargaining representatives could be appointed; and a notification to employees about the voting process as well as Dawsons' explanation of the proposed agreement, set out above in full.
In response to the question seeking identification of the applicable modern award(s), if any which currently cover the employer and any of the employees covered by the agreement, Dawsons incorrectly identified the reference instrument as the "Dawsons Maintenance Contractors Enterprise Agreement 2013".
In response to the question regarding more beneficial terms Ms Dawson declared as follows;
"The proposed Enterprise Agreement rates as stated in Clause 3.3.3, Clause 3.3.4, Clause 3.3.5, Clause 3.3.6, Clause 3.3.7 are two percent (2%) higher than the relevant Award Rates."
[35] The CFMMEU submitted that inadequate steps were taken by Dawsons to either provide the incorporated material or provide access to the incorporated material. After noting that in its view the incorporated material would be critical to an understanding of employees classification, the CFMMEU advanced that the proposed agreement covered a wide range of industries together with a wide range of classifications. It advanced that an understanding of the relevant industries and classifications requires knowledge of broader modern award classifications. The CFMMEU also noted that the proposed agreement would potentially replace one made in 2013 with it being likely that many members of the current workforce would not have been employed at the time the 2013 Agreement was made, especially given that Dawsons employs a large number of casual employees.
[36] The need for material being incorporated when it is referred to in an agreement, whether that be physically provided to the employee or otherwise granting access to the material, has been extensively considered by other Full Benches.[34] The legislation requires that an employer take all reasonable steps to ensure employees are either given a copy of the material incorporated through reference, or have access to a copy of the materials. For the sake of convenience we refer to either of these steps as "provision". Such provision in one form or another is a foundational matter with it being an element of the requirement for an enterprise agreement to have been genuinely agreed. In such circumstances undertakings are incapable of addressing any concern that may have existed about compliance with s.180(2).[35] What is reasonable in respect of the provision of these materials depends on the circumstances.[36] While some materials may be considered generally available because they are "laws of the land", there may be cases where the characteristics of the workplace and the composition of the workforce may require more.[37]
[37] The meaning of s.180(5) of the Act and what is required, particularly in regards to s.180(5)(a) was subject to detailed consideration by Flick J. in the Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd[38] which was subsequently confirmed by the Full Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union.[39] In the original judgement it was held by Flick J that a failure by the Commission to be satisfied that all reasonable steps had been taken to explain the terms of an agreement to employees, taking into account their particular circumstances and needs, meant the Commission lacked power to approve the agreement;
"[91]... A failure to comply with a "[p]re_-approval requirement_", in this case the failure to "take all reasonable steps" for the purposes of s 180(5), precluded the proposed Agreement from being an agreement susceptible of subsequent approval by the Commission. And a failure to take the necessary steps to secure the agreement of those "employees covered by the agreement" (s 186(2)(a)) - be it genuine agreement or otherwise - again precluded the proposed Agreement from being an agreement in respect to which the Commission need reach any state of satisfaction."
[97]... Section 180(5) is not a section which is expressed in terms of whether the Commission is "satisfied" that "all reasonable steps" have been taken. That subsection is expressed as a statement of objective fact as to that which must occur before approval is sought. If "all reasonable steps" have not in fact been taken, the Commission lacks power to "approve" the agreement."
[103] The requirement imposed by s 180(5) to "take all reasonable steps to ensure that ... the terms of the agreement, and the effect of those terms, are explained" is an important obligation imposed upon an employer to ensure that employees are as fully informed as practicable. The requirement is not a mere formality. Whatever steps may be necessary will depend upon the facts and circumstances of each particular case; but those steps are not satisfied by a person reading - without explanation - the terms of an agreement to an employee."
[38] His Honour's reasoning was affirmed on appeal to the Full Federal Court.[40] The Full Court's judgment was handed down on 25 May 2018, after the appeal in this matter was heard. Having been given an opportunity to make further written submissions on the Full Court's judgment in One Key, the CFMMEU submitted that One Key strengthened its central arguments, particularly in respect of its contention that the Commissioner at first instance fell into jurisdictional error in concluding that the requirements of s.180(5) of the Act had been satisfied in circumstances where the Commissioner had not been informed of the relevant considerations.
[39] At the heart of the One Key judgments is an application for the approval of an enterprise agreement with the question of whether it was genuinely agreed. The proposed agreement would cover three employees, two of whom worked in the coal mining industry and one in the construction industry. But for the agreement, the employees that it intended to cover could have been covered by up to 11 awards.[41] There were no union bargaining representatives and there was no bargaining.[42] In that matter the employer statutory declaration provided these answers in relation to the question of the steps taken by the employer to explain the relevant terms of the agreement to employees, including those steps taken in respect of the particular unique circumstances and needs of the relevant employees;
"2.6 What steps were taken by the employer to explain the terms of the agreement, and the effect of those terms, to the relevant employees?
The terms of the Agreement and the effect of the terms were explained to the relevant employees during telephone conversations on 17th August. During these telephone conversations the employees were given an opportunity to ask any questions that they had about the Agreement.
The terms of the Agreement were also explained to the relevant employees by email on 25 August 2015 prior to them being asked to vote on the Agreement.
Following the email on 25 August 2015, Petrina Ind spoke with each relevant employee and asked them whether they had any questions about the email or the terms of the Agreement. None of them had any questions.
2.7 When you explained the terms of the agreement to the employees, what did you do to take into account the particular circumstances and needs of the relevant employees?
There are no employees from non-English speaking backgrounds, nor any employees under 21 years of age.
To ensure that the employees fully understood the terms and conditions of the Agreement it was reiterated throughout the process that the employees should contact if they required additional clarification/ explanation about the Agreement."[43]
[40] In contrast to the situation in One Key, the circumstances of Dawsons include that the proposed agreement is intended to cover 313 employees otherwise working under five awards. 193 of the employees are casual.[44]
[41] The Full Court's judgement has made it clear that in order for the Commission to decide that genuine agreement has been reached it requires cogent evidence about what employees had been told before they cast their vote as well as firm evidence about how the employer took into account the particular circumstances and needs of its employees in providing that explanation:
"113. A consideration of the subject-matter, scope and purpose of the relevant provisions of the Fair Work Act indicates that the content of the explanation and the terms in which it was conveyed were relevant considerations to which the Commission was bound to have regard. The absence of that information meant that the Commission was not in a position to form the requisite state of satisfaction. Put differently, without knowing the content of the explanation, it was not open to the Commission to be satisfied that all reasonable steps had been taken to ensure that the terms and their effect had been explained to the employees who voted on the Agreement or that they had genuinely agreed to the Agreement.
114. The following considerations point inexorably to that conclusion.
115. The Commission was required to be satisfied that OKW had taken "all reasonable steps to ensure" that both the terms and the effect of the terms had been explained to the relevant employees as an element in the inquiry as to whether "genuine" agreement had been obtained from them. The agreed purpose of the obligation imposed on employers by s 180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.
116. In order for the employer to comply with the obligation it must take into account the particular circumstances and needs of those employees, including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative. That is made explicit in s 180(6). How could the Commission decide whether the steps the employer had taken were "all reasonable steps" unless it knew what the employees had been told before they cast their votes? Without knowing the terms in which the explanation had been conveyed how could the Commission form an opinion on the sufficiency of the explanation, particularly having regard to the considerations mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine agreement had been reached without having evidence upon which it could answer both these questions?
117. As there was no evidence of these matters before the Commission, it necessarily follows that the Commission purported to be satisfied that OKW's obligations under s 180(5) had been discharged without taking those matters into account. That was a jurisdictional error because the Commission did not have authority to make the decision unless its satisfaction had been informed by them. As is often the case, there are several ways of describing the error. It could be characterised as a misconception as to what the exercise of the statutory power entails or an error "as to an important attribute of the decision to be made": Graham at [68]. Equally it could be seen as a misunderstanding on the part of the Commission of the nature of the opinion it was required to form: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ). Had the Commissioner applied his mind to the question of what the putative explanation entailed, he would inevitably have inquired into its content and terms."[45]
[42] After considering various other matters considered by Flick J. at first instance, judgment at first instance that the prospect of an enterprise agreement covering only three employees with a very confined employment experience but potentially covering many more, up to 11 awards worth leads to a lack authenticity and moral authority,[46] and noting that the source of those references were from the earlier judgement in CFMEU v AIRC[47] involving an agreement covering 22 employees, none of whom was involved in the operation of the mine in question,[48] the Full Court held that mere agreement in respect of a consideration of "genuinely agreed" will be insufficient. The Full Court[49] held that there is an obligation under s.180(5) of the Act, for the Commission to consider the content of the employer's explanation of the terms of the proposed agreement and its potential effects:
"141. Turning then to the language utilised in ss 186(2)(a) and 188(c), the word "genuinely" in the phrase "genuinely agreed", indicates that mere agreement will not suffice and that consent of a higher quality is required. We reject OKW's contention that the phrase is only directed at requiring an absence of fraud, coercion or duress in the process of employees providing their agreement. The word "agreed" on its own, suffices to achieve those ends. The word "genuinely" must be given some additional work to do. A court construing a statutory provision must strive to give meaning to every word of it: Project Blue Sky at [71]. The limits OKW seeks to put on para 188(c) are too narrow. The requirement for genuine agreement in the Fair Work Act prescribes some, but not all, factors that must be taken into account. In this respect, in contrast to its predecessor, s 170LT(6) of the Workplace Relations Act, paras 188(a) and (b) direct the Commission's attention to a number of discrete matters. Paragraph 188(c), however, it is not at all prescriptive.
142. Paragraph 188(c) is cast in very broad terms. It is intended to pick up anything not caught by paras (a) and (b). Thus, any circumstance which could logically bear on the question of whether the agreement of the relevant employees was genuine would be relevant. One obvious example is the provision of misleading information or an absence of full disclosure (see, for example, Re Toys "R" Us (Australia) Pty Limited Enterprise Flexibility Agreement 1994 (1995) 37 AILR 3-068 (Print L9066) (C No 23663 of 1994)). Another is the likelihood that the relevant employees understood the operation of the various awards that would be affected by the agreement and the extent to which the wages and working conditions for employees under each of those awards would change, for better or worse, under the terms of the agreement. Thus, if we be wrong to conclude that the Commission is bound by s 180(5) to consider the content of the employer's explanation of the terms of the Agreement and their effect, in order to be satisfied that the Agreement was "genuinely agreed to" having regard to s 188(a)(i), then for similar reasons we would hold that this was a matter which was not only relevant to the question raised by para 188(c), but was a mandatory consideration.
143. Furthermore, contrary to OKW's submission, authenticity is not irrelevant to para 188(c). To the contrary, it goes to the heart of the matter. Recourse to a standard dictionary of the English language tells us that "authentic" is a synonym for "genuine". The editor of the Oxford English Dictionary online notes that "[t]he distinction which the 18th [century] apologists attempted to establish between genuine and authentic ... does not agree well with the etymology of the latter word, and is not now recognised".
[43] The Full Court also addressed the matter of context within which the word "genuinely" is used within ss.186(2)(a) and 188(c) of the Act. This context includes the object of the Act to "provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians" including through an emphasis on enterprise collective bargaining,[50] and the potential for an agreement to be made early in the life of an enterprise whereby only a handful of employees are engaged in a small portion of the classifications with subsequent employment of a much larger workforce at a later stage to have some characteristics akin to individual bargaining as opposed to collective bargaining.[51] Consistent with that context are the protections afforded by the approval sections of the Act and which have relevance to the task to be undertaken by the Commission in considering approval of an agreement:
"152. Still, it is abundantly clear that an enterprise agreement may be made with two or three employees and, in relation to a new enterprise, may be made as a non-greenfields agreement where some employees of the enterprise are already employed (see ALDI at [76]). That that should be so is not really surprising. Enterprises come in all shapes and sizes. Nor, as the High Court observed at [84] in ALDI, is it implausible for the legislature to have intended that a small group of employees should be able to fix the terms and conditions of employment of a larger group of employees who are later employed and covered by the enterprise agreement.
153. But it does not follow from the fact that agreement-making of that kind has not been prohibited by the Fair Work Act that the Act is unconcerned with agreement-making that may undermine or subvert its preference for collective bargaining. That concern, as the High Court observed in ALDI at [84] and [87], is addressed not by prohibition but by the Fair Work Act's "protective provisions".
154. Section 186(3) (the "fairly chosen" requirement) is one example of such a "protective provision". A primary purpose of this provision is to avoid the workforce of an enterprise being broken up into artificial employee groupings with the consequence that the workforce of the enterprise is unable to bargain as a single collective: see Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74 at [19] (Jagot, Bromberg and Rangiah JJ). Another example of a protective provision referred to by the High Court in ALDI is the BOOT. Each of those provisions is an element of the approval process specified by Sub-division B of Part 2-4. Like those provisions, other provisions of that sub-division, including ss 186(2) and 188, have a protective purpose. That s 188 harbours a concern directed at agreements made by a small number of employees in circumstances where the agreement covers a wider range of employee classifications is confirmed by [824] of the Explanatory Memorandum which provides:
Note that where an agreement covers a large number of classifications of employees in which no employees are actually engaged there may be a question as to whether the agreement has been genuinely agreed - see clause 188.
155. Where employees working in few occupational classifications consent to an agreement which covers numerous other occupations or other occupations in many industries beyond their own, an explanation of the terms of the agreement and their effect may fall short of providing an adequate basis for the formation of genuine consent. The employees who voted may be indifferent to the impact of an agreement on other employees or prospective employees in occupational classifications outside their own training or experience. As Buchanan J observed in John Holland (Besanko and Barker JJ agreeing), in those circumstances the employees will presumably act out of self-interest (at [33]) with the possible result that "it may not be fair for an enterprise agreement made with three existing employees to cover a wide range of other classifications and jobs in which they may have no conceivable interest" (at [83]).
153. Therein lies the concern. The legislative objective of achieving "fairness through an emphasis on enterprise-level collective bargaining" could be undermined if the employees who vote on the agreement have no basis for appreciating its nature and terms. What is required by s 186(2)(a) is genuine agreement. To construe that requirement as mandating an informed and genuine understanding of what is being approved is consistent with the text of the provision (as defined) and accords with its underlying purpose."[52]
[44] In context there are three matters to be determined relation to Appeal Ground 1;
whether s.180(2) has been complied with, requiring employees to be given or to have access to incorporated material;
whether Dawsons have complied with s.180(5) requiring the terms of the Agreement to have been explained to the relevant employees; and
whether because of the foregoing matters, individually or in combination, or for other reasons, the evidence allows a finding pursuant to s.186(2) that the Agreement has been genuinely agreed to by the employees covered by it.
s.180(2) - provision to employees of incorporated material
[45] We consider first the matter of whether s.180(2) of the Act requiring employees to be given or to have access to incorporated material is satisfied.
[46] The CFMMEU submitted that Dawsons' failure to either give to employees or provide access to incorporated materials in the form of classification descriptors contained in the relevant modern awards is a failure to comply with s.180(2). We agree with this submission.
[47] Notwithstanding the argument that employees were familiar with the classification descriptors under the relevant modern awards, given that the same descriptors were used in the predecessor agreement, there is an obligation that an employer proposing an enterprise agreement takes all reasonable steps to either provide those materials to employees or ensure that they have access to the materials during the agreement access period. The legislation does not require that an employer take some reasonable steps or only those steps that it thinks necessary. Instead the legislation requires that employers must take all reasonable steps to provide the requisite information.
[48] At the least, taking all reasonable steps to provide this information would require no less than providing employees with a hard copy of the descriptors, perhaps in their lunchrooms or pinned to notice boards; or even to provide each person to be covered by the agreement with a hyperlink to the relevant clause of the applicable modern award. In turn, satisfaction on the part of the Commission that all reasonable steps have been taken would logically require cogent evidence on the part of the applicant employer as to the nature and detail of the explanation given. Mere blandishments to the effect that the agreement has been explained or that questions have been answered will inevitably be insufficient, as it is unlikely, if not impossible for the Commission to be satisfied that a genuine agreement has been reached on the basis of such general statements.
[49] It follows from the Full Court's judgment in One Key that;
• in the phrase "genuinely agreed", the word "genuinely" must be given some additional work to do; and the factors prescribed within s.188 must be regarded as some but not all those which must be taken into account.[53]
• consideration of the content of the employer's explanation of the terms of the agreement and their effect are relevant not only to consideration of s.188(a)(i) but also to s.188(c), being a paragraph intended to pick up anything not caught by s.188(a) and (b).[54]
• An enquiry by the Commission of the applicant employer about what information was actually told to the relevant employees may satisfy these needs.[55]
• Where employees working in few occupational classifications consent to an agreement covering numerous other occupations, an explanation of the terms of the agreement and their effect may fall short of providing an adequate basis for the formation of genuine consent,[56] with it following that greater inquiry of the intended effect of the agreement may be required.
[50] In this matter, the only evidence before the Commission as to the provision of or access to materials incorporated by reference was the table within clause 3.2.7 of the Agreement indicating the translations between the Dawsons classifications and the classifications within the relevant modern awards.
[51] We do not consider that such reference was sufficient, taking into account the actual circumstances of the Dawsons workplace, which included a significantly casualised workplace, being 193 casual employees of 313 employees total (62%). Up to five modern awards may otherwise operate in respect of Dawsons' workforce. The fact that the workforce had been working under a not dissimilar enterprise agreement in the past is ultimately a neutral factor in our consideration. Each application for approval of an enterprise agreement must turn on its own facts and its individual assessment for approval by the Commission.
[52] On the one hand it could be said that the workforce was, because of the enterprise agreement, thoroughly familiar with the classifications applicable to them whilst on the other hand it could be said that employees familiarity with the award classifications had diminished over time as employees were not directly employed under those awards immediately preceding the current Agreement. In any event, there was no evidence before the Commission at first instance that would support either proposition. More importantly there was no evidence other than the table within the Agreement itself, which would reasonably lead to a conclusion that employees had been provided or had access to the referenced award materials. On that basis, the Commission was not able to be satisfied that s.180(2) of the Act had been complied with, and therefore the Commissioner fell into jurisdictional.
s.180(5) - explanation of the terms of the agreement to employees
[53] On 28 November 2017, before the Commissioner made a decision about granting the CFMEU a limited right to make submissions in respect of the BOOT only, the CFMEU made a submission regarding the reasons it sought to be heard. Identified within those submissions was that the Agreement may not meet the pre-approval provisions and in particular the obligation within s.180(5) of the Act relating to the provision of information and an explanation about the proposed agreement as well as whether the Agreement satisfied the requirement that it was genuinely agreed to (s.188(c)). Notwithstanding this submission, and after considering Dawsons' view that the CFMEU had not persuasively identified why it was appropriate for the Commission to give the CMFEU the opportunity to make broad submissions, the Commissioner limited the CFMEU's submissions to matters concerning the BOOT only.
[54] As the matter progressed through the Commission's consideration processes, including responding to the CFMEU's engagement on the application, there were concerns relating to whether or not employees would be better off overall under the proposed agreement. As a result, undertakings were sought by the Commissioner pursuant to s.190 of the Act. While that of course is a relatively normal process, the nature and number of the matters for which an undertaking was sought, together with the very limited explanatory material and information provided to employees, and the fact that significantly less beneficial terms of the proposed Agreement had not been identified by the Dawsons, we are of the view that the Commissioner could not have been satisfied that employees had genuinely agreed to the Agreement.
[55] More specifically, as part of the context of the proposed Agreement, was that the rates of pay in the Agreement are generally higher than the relevant Award rates by a range of approximately 1.3% - 7.2% with some rates for casual employees in some manufacturing classifications appearing to be lower than in the Reference Award.[57] Dawsons dealt with the potential wages issue by undertaking that the identified casual rates of pay would not fall below the award rate plus 2%.[58]
[56] Other undertakings were then given by Dawsons and accepted by the Commissioner on nine other matters, namely a rail allowance, payment for off the job training; payments to apprentices and trainees; management of excessive leave; casual conversion; redundancy; abandonment of employment; inclement weather; and deductions from pay. Each of those undertakings were given and accepted for reasons that without an undertaking on the matters it would be unlikely that the Agreement would pass the BOOT.
[57] None of the matters which undertakings were given by Dawsons were evidenced as being the subject of any explanation within the material provided by Dawson to its employees prior to the ballot. There was no other evidence or submissions before the Commission that would reasonably lead to a view that any of the subject matters for which undertakings had been given and accepted were even identified to employees let alone explained to them in the manner that might be expected within s.180(5) of the Act. As a result, we find that the Commissioner could not have been satisfied that the statutory requirements for approval had been met.
[58] For these reasons, we uphold appeal ground 1. It is apparent to us, that there was an insufficient basis for the Commissioner to be satisfied that Dawsons had taken all reasonable steps to ensure that the relevant employees were given copies of or had access to material incorporated by reference into the Agreement; that it had taken all reasonable steps to ensure that the terms of the Agreement and the effect of those terms were explained to the relevant employees; and that it had advised the relevant employees of the terms of the Agreement that are less beneficial compared to the relevant Award terms.
[59] For the reasons set out above, we have determined that the Commissioner erred in concluding that the requirements of s.180(5) of the Act were met. Satisfaction of the requirements under s.186(2)(a) is a jurisdictional prerequisite for the approval of any enterprise agreement. If s.180(5) is not satisfied, then the Commission cannot be satisfied of the requirements of s.188. Consequently the Commissioner could not have attained satisfaction of the requirement under s.186(2)(a) of the Act.
[60] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld in respect to appeal ground 1.
(3) The Decision ( [2018] FWCA 802) is quashed.
(4) The agreement approval application in (AG2017/3581) is dismissed.
[3] [2018] FWCA 802 at [5].
[8] [2014] FWCFB 8429 at [6]- [7]; Appellant's Outline of Submissions, filed 5 April 2018 at [2] - [3].
[9] CFMEU v CSRP Pty Ltd [2017] FWCFB 2101 at [2]- [3] and [8]; note also CEPU v Sustaining Works [2015] FWCFB
[10] CEPU v Main People Pty Ltd [2014] FWCFB 8429 at [7].
[11] CEPU v Main People Pty Ltd [2014] FWCFB 8429 at [7]; CEPU v Sustaining Works [2015] FWCFB 4422 at [19].
[12] CFMEU v Shamrock [2018] FWCFB 1772 at [7].
[13] Respondent's Outline of Submissions, filed 10 May 2018 at [6].
[14] [2017] FWCFB 2101 at [8].
[16] [2014] FWCFB 8429 at [6] - [7].
[17] [2015] FWCFB 4422 at [4], [25], [19].
[19] [2014] FWCFB 8429 at [5]- [7].
[20] [2017] FWCFB 3912 at [4]; citing CEPU v Main People Pty Ltd [2014] FWCFB at [5] - [7], MUA v Toll Energy Logistics Pty Ltd [2015] FWCFB 7272; 254 IR 353 at [95]- [98], CFMEU v MGI Piling (NSW) Pty Ltd [2016] FWCFB 2654; 260 IR 244 at [4] , TWU v ALDI Foods Pty Limited, [2016] FWCFB 91; 255 IR 248 at [22] - [23] CFMEU v CSRP Pty [2017] FWCFB 2101 at [8] - [13].
[21] Dawsons' Outline of Submissions at [19], citing Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited [2015] FWCFB 7090 at [44].
[22] Australian Municipal, Administrative, Clerical and Services Union v Yarra Valley Water Corporation [2013] FWCFB 7453, [24], cited with approval in CFMEU v Sparta Mining Services Pty Ltd [2016] FWCFB 7057 at [26].
[23] [2018] FWCA 802 at [5].
[24] Dawsons' Outline of Submissions at [14].
[27] Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited [2015] FWCFB 7090.
[28] Dawsons' Outline of Submissions at [19], citing Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited [2015] FWCFB 7090 at [44].
[29] Notwithstanding the reference to different legislative obligations than to those set out in the Notice of Appeal, we are satisfied that the complaint agitated by the Appellant in appeal ground 1 is relevantly the same as that set out in the originating notice.
[30] CFMMEU's Outline of Submissions filed on 5 April 2018 at [10].
[32] Dawsons' Outline of Submissions at [24].
[33] McDonald's Australia Pty Ltd; Shop, Distributive and Allied Employees' Association [2010] FWAFB 4602, 196 IR 155 at [43].
[34] See for example; McDonald's Australia Pty Ltd; Shop, Distributive and Allied Employees' Association [2010] FWAFB 4602; CFMEU v Sparta Mining Services Pty Ltd [2016] FWCFB 7057 at [15]; National Tertiary Education Industry Union v University of New South Wales [2011] FWAFB 5163, 196 IR 155 at [24].
[35] CFMEU v Sparta Mining Services Pty Ltd [2016] FWCFB 7057 at [15].
[36] CFMEU v Lendlease Engineering Pty Ltd [2017] FWCFB 4001 at [46].
[37] NTEIU v UNSW [2011] FWAFB 5163 at [24].
[38] Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266.
[39] One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77.
[40] One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77.
[44] Employer Statutory Declaration, Form F17, Appeal Book 155; 161.
[45] One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77.
[46] Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 at [116].
[48] One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 at [134].
[49] One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77.
[50] Ibid at [146], with reference to the Object of the Fair Work Act 2009 (Cth) s.3(f).
[52] One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77.
[57] [2018] FWCA 802 at [12] - [13].
Printed by authority of the Commonwealth Government Printer
Construction, Forestry, Maritime, Mining and Energy Union
Dawsons Maintenance Contractors Pty Ltd [2018] FWCFB 2992
(2000) 203 CLR 194
(1999) 93 FCR 317