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[2019] FWC 5615
General information, not legal advice.
Fair Work Commission
2019-08-16
Original judgment source is linked above.
The Applicant has clarified the operation of this clause and the Commission has no BOOT concerns. Further, the Commission does not consider the clause to be ambiguous in the first place.
A clause in exactly the same words was agreed to by CFMMEU in the Greenfields 2015 Agreement.
Clauses 3.5.1 and 3.5.2 - "Deductions from wages" - The Agreement provision as to deductions from wages is broader than s.324 of the Act.
The Applicant has provided an undertaking to clarify that deductions will comply with s.324 of the Act.
A clause in exactly the same words was agreed to by CFMMEU in the Greenfields 2015 Agreement.
Outcome: CFMMEU issue / objection resolved and rejected.
Clauses 4.4.1 and 4.4.2 - "Shift start and finish place" - The Agreement provides for the employer to nominate the start/finish area (place) for work, which can be changed subject to consultation and/or resolution under the disputes procedure. The Award provides for the start/finish area to be determined by majority employee agreement, the Agreement is therefore less beneficial.
No issue for BOOT analysis arises. Employees voted by majority to approve the Agreement containing this clause, as they would vote by majority under the relevant Award provision. No monetary or non-monetary detriment is identifiable.
Clauses in nearly exactly the same words were agreed to by CFMMEU in the Greenfields 2015 Agreement.
Clauses 4.5.1 and 4.5.2 - "Meal breaks" - the Award provides two paid meal breaks on a 10 hour shift, whereas the Agreement only provides for one.
No issue for BOOT analysis arises. The CFMMEU appears to misunderstand the Agreement clause. The Agreement and the Award contain no material difference between paid meal breaks on a 10 hour shift (i.e. both provide for two paid meal breaks). If there be any marginal difference, the rates of pay under the Agreement more than compensate for any detriment asserted to exist by the CFMMEU.
A clause in exactly the same words was agreed to by CFMMEU in the Greenfields 2015 Agreement.
Clause 4.6.5 - "Overtime" - the clause is ambiguous and the Applicant needs to clarify its operation.
The Applicant has clarified the operation of this clause and the Commission has no BOOT concerns. Further, the Commission does not consider the clause to be ambiguous in the first place.
A clause in exactly the same words was agreed to by CFMMEU in the Greenfields 2015 Agreement.
Clause 4.6.7 of the Agreement is less beneficial than clause 17.8(a) of the Award in relation to crib breaks.
The CFMMEU objection is unfounded. Clause 4.6.7 of the Agreement provides for a paid 30 minute crib break where an employee works more than 1.5 hours before or after a shift, ie same as the Award does. No issue for BOOT analysis arises.
A clause in exactly the same words was agreed to by CFMMEU in the Greenfields 2015 Agreement.
Clause 4.8.3 of the Agreement is less beneficial than clause 17.6(b)(ii) of the Award in relation to 10 hour rest breaks, and payments when an employee does not get a 10 hour rest break.
The CFMMEU objection is unfounded. Clause 4.8.3 provides for more beneficial entitlements to employees concerning 10 hour rest breaks than the Award. No issue for BOOT analysis arises
A clause in exactly the same words was agreed to by CFMMEU in the Greenfields 2015 Agreement.
Clause 5.1.4 of the Agreement provides that accrued annual leave on termination is only paid at the base rate of pay.
The Applicant has provided an undertaking to clarify that annual leave termination payments will comply with s.90(2) of the Act.
A clause in exactly the same words was agreed to by CFMMEU in the Greenfields 2015 Agreement.
Outcome: CFMMEU issue / objection resolved and rejected.
Clause 5.1.17 - the Agreement does not set out how a direction to an employee who has excessive annual leave is to be made. The Award does at clause 25.4(a).
The Applicant has provided an undertaking to apply the Award provisions in relation to directing employees to take excessive annual leave accruals.
A clause in exactly the same words was agreed to by CFMMEU in the Greenfields 2015 Agreement.
Outcome: CFMMEU issue / objection resolved and rejected.
Clause 5.2.6 of the Agreement imposes a higher standard of evidence (than the Award at clause 26.3(a)) for an employee when he/she takes personal/carer's leave.
The CFMMEU objection is unfounded. Clause 5.2.6 of the Agreement is, in my view, more beneficial than the Award. Further, even if such clause be marginally detrimental, it does not appear to breach the NES, and would not result in the employees being other than better off overall by reference to all of the terms of the Agreement. (Note also s.107(5) of the Act).
Clauses in exactly the same words were agreed to by CFMMEU in the Greenfields 2015 Agreement.
[80] In view of the foregoing, I am satisfied that the terms and conditions contained in the Agreement will result in employees (and potential employees) to whom the Agreement covers and applies being better off overall as compared to the Award. I make this determination as at test time (23 July 2018). I also find that given the high rates of pay under the Agreement, employees (and potential employees) are equally better off overall than the Award as at the date the Agreement was approved by the Commission (18 June 2019).
Did the CFMMEU assist the Commission in the Commission's determination to approve the Agreement as submitted in its request to be heard under s.590 of the Act?
[81] I note that the CFMMEU made no comparison as to what it submitted were monetary or non-monetary detriments under the Agreement, as against or compared to the monetary and non-monetary improvements contained in the Agreement. As at BOOT test time (when the Agreement was lodged for approval), the wage rates alone under the Agreement are up to nearly 20 percent above the Award wage rates. The CFMMEU's failure to conduct such an analysis does not assist the Commission in its determination of whether employees will be better off overall under the Agreement as compared to the Award. It is simply unacceptable for a union to raise objections as to detriments under an Agreement that have not been cross-checked with benefits under an Agreement, i.e. so that submissions are actually made about the BOOT (and not detriments alone).
[82] Further, given the nature of the BOOT issues and concerns raised by the CFMMEU, and having specific regard to the CFMMEU's previous support for the Greenfields 2015 Agreement as passing the BOOT (i.e. which is in essentially the exact same terms as the Agreement), on 17 June 2019, I issued the following direction:
"At the hearing [on 18 June 2019], the CFMMEU should be prepared to explain why, of the 17 objections made to the proposed enterprise agreement and its approval, 15 of these 17 objections concern terms that are in the same or identical terms to the enterprise agreement approved in [2015] FWCA 2482 (being a greenfields enterprise agreement that was made with the CFMMEU). More specifically, the CFMMEU should be in a position to explain why it has sought to engage the Applicant's, and the Commission's, time and resources in objecting to enterprise agreement provisions that is has previously agreed to, supported, not objected to and/or been involved in drafting."
[83] In my view, it is unquestionable that the Commission may seek to clarify or otherwise revisit the basis upon which a person has previously been granted a request to be heard in a matter. This is especially so if submissions made (by the person making the request) in support of the granting of such request give rise to a subsequent concern or misapprehension by the Commission that, for example, it has not been assisted by allowing a person to be heard at the hearing, and that the approval of the Agreement, and thus the benefits flowing to the employees covered by the Agreement, have been delayed.
[84] Mr Walkaden addressed the Commission in respect of the direction set out in paragraph 82 above by making the following preliminary submissions (in summary):
the CFMMEU stands by its submissions and objections on the BOOT, and continues to press them; and
b) the only role for the Commission at this point in time is to consider the BOOT by comparing the Agreement to the Award, and determining whether relevant employees will be better off overall. This is the only matter the Commission should be concerned about.[42]
[85] I rejected this submission and stated:
"Your [the CFMMEU's] intervention was limited to the BOOT on the basis you'd be assisting the Commission. So what I'm trying to understand is, how is it that when you sought permission to be involved in this approval process when you weren't a bargaining representative for the agreement, how this is assisting the Commission when it appears to me that the objections made have been merely made for the sake of making objections and delaying the approval process, which isn't something that assists the Commission."[43]
"And you could have come along and said, well, you know, these are the issues we have. But the difficulty is when you raise all these issues and you raise issues of ambiguity, assert that certain clauses don't meet the BOOT, and then there's an Agreement [the Greenfields 2015 Agreement] that the CFMEU made in exactly the same terms and filed the document in support of that and said that you [the CFMMEU] agree that it passes the BOOT, or effectively put to the Commission that that the Agreement [the Greenfields 2015 Agreement] passes the BOOT. How is it that there's now 17 different issues that you've [the CFMMEU has] got?"[44]
"But instead you've gone on this wide-ranging analysis of the Agreement and effectively I've had to go through and check all these different issues, and I'm satisfied they pass the BOOT subject to the ... undertakings that have been provided but I'm just trying to understand what the explanation is for the inconsistency in approach."[45]
[86] This led to the following exchange:
"MR WALKADEN: The point I make there is that what the union would consider to be an acceptable deal in circumstances where there is a steady reduction in the coal price so that members are being made redundant right across the country, which is the subject of a number of decisions of this Commission and the Court, making those observations the union's view as to what is an acceptable deal in those circumstances to now is very different, your Honour.
THE DEPUTY PRESIDENT: Where does that test come from, the union's view as to what's an acceptable deal?
MR WALKADEN: I'm acting on instructions, obviously. I'm acting on instructions and I'm just explaining to you the relevance of the position, in terms of what the union considers to be an acceptable position. It's obviously influenced by - - -
THE DEPUTY PRESIDENT: But you're intervening to assist the Commission in terms of the statutory tests of passing the BOOT.
THE DEPUTY PRESIDENT: And again, whatever the spot price of coal price was back then doesn't alter that position. But I'm just struggling to understand that if your union has made an agreement, it's drafted clauses and then effectively comes along and says, well - for example, policies and procedures, they're matters that will lead to a breach of the agreement for failure to comply with policies and procedures, when the clause itself says they don't form part of the employment contract, and therefore they can't form part of the enterprise agreement.
And again it's a clause that your union either drafted or agreed to, and I've now got to - well, I've gone through an analysis of it and if you still press it I've got to set out reasons as to why it's an acceptable clause and it doesn't offend the Act, and all those things.
MR WALKADEN: Your Honour, we stand by the submissions that we filed. I'm trying to be honest with you. I'm trying to give you, as opposed to - I'm trying to be as honest as I can be with you, to explain our position.
THE DEPUTY PRESIDENT: Yes. No, I understand."[46]
"THE DEPUTY PRESIDENT: Yes. But I mean, the inquiry is not so much as the BOOT but it's going back to the representations that are made in terms of assisting the Commission by virtue of intervention or permission to appear and make submissions under section 590. That's the issue I've got.
And whatever the union agenda is out there in the industry, I'm concerned that it's permeating into this approval process and therefore delaying the approval of the agreement and causing time and resources to be used in circumstances where the union's position at one point in time - and again, I've seen nothing that the award terms have changed so significantly that the effect of these clauses would be an alteration of the union's previous approval, or previous agreement to make the terms set out in the Greenfields agreement.
But I think we've probably taken it as far as we can. So you still press these. You want me to go through and set out reasoning in relation to each of the matters?
[88] As I have previously stated in this decision, the enterprise agreement approval process is not one that gives rise to considerations such as "what [a] union would consider to be an acceptable deal" (generally, or from time to time). Nor does it give rise to intervention or requests to be heard under s.590 of the Act on the basis of what a union considers to be industry standards that have been achieved across an industry or in other workplaces under other enterprise bargaining agreements (but are not contained in an enterprise agreement before the Commission). Given these considerations are not part of the statutory scheme or the statutory test/s, there is little doubt that the Commission is not assisted by the raising of such considerations at an enterprise agreement approval hearing. I say this whether such matters are raised as straight up BOOT arguments, or disguised as arguments such as a failure to explain an agreement, or an absence of "genuine" agreement.
[89] In approving the Agreement, for abundant clarity, I have considered and had regard to the evidence and submissions filed and otherwise made orally before me, including the F16 and F17 forms, and the Applicant's undertakings. My satisfaction in respect of the requirements of the Act as set out in these reasons for decision are to be read together with my decision made on 18 June 2019.[48]
[1] [2019] FWCA 4245, PR709491, 18 June 2019.
[2] AE413466, 10 April 2015, Deputy President Ashbury.
[4] Pursuant to written instruments all dated 6 April 2018.
[5] Australian Workers' Union v Job Connect Recruitment Pty Ltd t/as Job Connect [2019] FWCFB 5132 at [14].
[6] [2016] FWCFB 8413, 19 Dec 2016.
[7] Section 171(b)(iii) of the Fair Work Act 2009.
[8] Section 176(1)(b) of the Fair Work Act 2009.
[9] CFMEU v Collinsville Coal Operations Pty Ltd [2014] FWCFB 7940 at [16].
[10] CFMMEU Reply Submissions, 3 May 2019 at [11].
[13] (2014) 246 IR 21; [2014] FWCFB 7940.
[14] ALDI Foods Pty Ltd v SDA [2017] HCA 53; (2017) 262 CLR 593 at [84]; CFMMEU and AWU v LS Precast Pty Ltd [2019] FWCFB 1431 at [106]- [108].
[15] CFMEU v Collinsville Coal Operations Pty Ltd [2014] FWCFB 7940 at [16].
[17] Construction, Forestry, Maritime, Mining and Energy Union v Mechanical Maintenance Solutions Pty Ltd [2019] FWCFB 3585.
"[105] Furthermore, like many of the pre-approval requirements, satisfaction as to whether s 180(5) has been complied with involves an evaluative judgment, including because an assessment is to be made as to whether "reasonable steps" were taken by the employer. As Bromberg J said in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2; (2016) 259 IR 164 at [75], in a passage cited by the primary judge at [119]:
[112] It is common ground that the Commission was never told what was said to the relevant employees. It was simply told that they had been given an explanation of the terms of the Agreement and the effect of those terms. In effect, this amounted to little more than a self-serving statement that the employer had complied with its obligation under the Act. OKW contended that the fact that it made such a statement in a statutory declaration was significant. It is not. As the CFMEU argued, whether all reasonable steps were taken to ensure that the effect of the terms of the Agreement was explained in an appropriate manner is a question of substance, not form. The recital of a conclusion on the very question the Commission was required (through an evaluative process) to determine is not, without more, a sufficient basis for the satisfaction of the statutory test. In other words, a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach a state of satisfaction. OKW submitted that if the Commission had erred in this respect, it was an error in fact finding or an error in process, which would be an error within its jurisdiction. We reject this submission. In order to reach the requisite state of satisfaction that s 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement. It is true that the Act does not expressly say that. But the question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act; it may also be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-44 (Mason J).
(2016) 259 IR 164
(1986) 162 CLR 24
(2014) 246 IR 21
(2017) 262 CLR 593