s.185 - Enterprise agreement

GEOCON CONSTRUCTORS (ACT) PTY LTD AND EMPLOYEES ENTERPRISE AGREEMENT 2023 - 2027

Application to approve the Geocon Constructors (Act) Pty Ltd and Employees Enterprise Agreement 2023 - 2027

• [1] An application has been made for approval of an enterprise agreement known as the Geocon Constructors (Act) Pty Ltd and Employees Enterprise Agreement 2023 - 2027 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Geocon Constructors (ACT) Pty Ltd T/A Geocon (Geocon). The Agreement is a single enterprise agreement.

• [2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied to be heard in the matter. Geocon opposed the CFMMEU's application. The Commission has broad powers under s 590 of the Act to inform itself in relation to any matter before it in such manner as it sees fit. I granted the CFMMEU's application as I considered I would be assisted by hearing from the CFMMEU. This was on the basis that the CFMMEU is a registered organisation entitled to represent employees within the job classifications contemplated by the Agreement. The Agreement covers employees in the building and construction industry. The CFMMEU has extensive history of industrial representation of workers in the building and construction industry. I regarded the CFMMEU as having sufficient interest in the matter and possessing relevant industry knowledge and experience such that I would be assisted by hearing it in relation to the application.

• [3] Geocon was represented by the Master Builders Association of the ACT.

• [4] The application along with a Form F17 Statutory Declaration of Employer, Form F18A Statutory Declaration of Bargaining Representative and supporting documents were filed on 11 August 2023 using the Commission's online lodgement service.

• [5] The Form F17 statutory declaration was made by Damon Smith, General Manager, and the Form F18A statutory declaration was made by Dean Stephen Lewis. In response to material filed by the CFMMEU, Geocon provided witness statements of Mr Lewis and Mathew Darren Holt, a construction worker covered by the Agreement. The CFMMEU relied upon witness statements from two organisers in the CFMMEU's Construction & General Division in its ACT Divisional Branch, Joshua Bolitho and Layth Cole. The parties also provided written submissions. None of the witnesses were required for cross examination. The parties agreed to have the matter decided on the papers.

• [6] The CFMMEU contends that the Agreement should not be approved because, on the material provided, the Commission cannot be satisfied it has been genuinely agreed and on the basis that it does not meet the better off overall test (BOOT).

• [7] Geocon is engaged in the construction of multi-unit residential apartments in the ACT. It issued a Notice of Representational Rights (NERR) to employees on 10 July 2023 by email. On 11 July 2023 printed copies of the NERR were provided to employees at a prestart meeting. On 20 July 2023 all employees covered by the proposed agreement voted on a bargaining representative. According to the statutory declaration of Mr Smith, on 24 July 2023 a meeting was held with employees to discuss a proposed agreement. Following that meeting minutes were circulated along with the proposed agreement, a one-page document outlining changes to terms and conditions arising from the proposed agreement. It was discussed at the meeting that the proposed agreement would be voted upon on 9 August 2023. Employees were told the vote would take place at a particular site, the "WOVA site", and would be by ballot. The voting method was by secret ballot. Employees were given an unmarked ballot paper which once completed was placed in a ballot box. The vote occurred at site prior to the commencement of the prestart meeting.

• [8] Mr Smith's declaration states the Agreement covers 16 employees who work on site and are paid wages. All 16 employees voted in favour of approving the Agreement. Geocon has other employees who do not work on site who are not covered by the Agreement and are paid salaries under individual employment contracts. Mr Smith describes the employees who voted on the Agreement as being in the typical demographic of workers who would likely to be employed under it. No apprentices voted as none were employed and it is not likely that apprentices will be employed during the life of the Agreement. The modern award that covers the employees covered by the Agreement is the Building and Construction General On-Site Award 2020.

• [9] In his statutory declaration, Mr Lewis advises the Commission that the employees he represents support approval by the Commission. He also advises that the employees he represents agree with the statements made in Mr Smith's statutory declaration. Mr Lewis did not express a view about whether the Agreement passes the BOOT.

• [10] The supporting documents provided with the application were; a copy of the Agreement, an email dated 10 July from Carly Devine to employees notifying Geocon wish to commence negotiations and attaching NERRs, 15 documents appointing Mr Lewis as bargaining representative for named employees, toolbox talk meeting records for the following dates; 11 July 2023, 19 July 2023, 28 July 2023 and 7 August 2023, minutes for a meeting described as EBA discussion on 24 July 2023, photographs of a ballot box, completed ballot papers and a document entitled "Enterprise Bargaining Agreement - Acknowledgement of Understanding" which lists 16 names with signatures and dates next to each name with the time noted as 5.30 am to 5.45 am on 9 August 2023, a document briefly describing the bargaining process, a timeline document, a document providing a BOOT analysis, a one page summary document comparing the Agreement to the existing enterprise agreement, and a copy of Part 2-2 of the FW Act.

• [11] In his witness statement Mr Lewis said that on 3 July 2023 he was told by Mr Rumball that bargaining was to commence for a replacement enterprise agreement. On 10 July 2023 he received the NERR by email along with a copy of the current enterprise agreement. At a meeting of employees on 20 July 2023, Mr Lewis says he nominated himself and was voted in as bargaining representative. He attended a meeting on 24 July 2023 where the proposed agreement was discussed. Concerns were raised about travel allowances and overtime rates. He describes discussions with other employees between 24 and 28 July 2023. At a meeting on 28 July 2023 the employees wanted changes to travel allowances and overtime rates. They were also willing to trade off the crib allowance. Mr Lewis met with Mr Rumball on 2 August 2023 to convey the employees' views. Mr Rumball proposed a reduction in the wage increase to 4% per annum. Mr Lewis spoke with Mr Rumball again on 4 August 2023 where it was agreed that the wage increase would be 4.5%. Mr Lewis was provided with a copy of the revised agreement on 4 August 2023. Mr Lewis told the other employees about those changes on 4 August 2023.

• [12] Mr Holt, a Geocon employee covered by the Agreement, states that he participated in the bargaining process. He was told on 11 July 2023 by Mr Lewis that bargaining would commence for a new enterprise agreement. He gives an account of the meeting held on 24 July 2023 at WOVA to discuss the terms of the proposed agreement. He said at the meeting on 24 July 2023 changes between the proposed agreement and existing enterprise agreement were discussed and a one page summary was provided along with a copy of the proposed agreement. A date for voting on the proposed agreement was agreed.

• [13] Mr Holt describes contacting Mr Lewis following the meeting. He also describes a discussion amongst employees on 28 July 2022, which I take to be a typographical error, where the employees decided they wanted some changes made to the agreement. He states that a vote was held at the WOVA site office before work on 9 August 2022, again I take that to be a typographical error. He was provided a voting paper and put it in a ballot box. Mr Smith and Mr Lewis counted the votes and informed employees that the everyone had voted in favour. He makes no mention of the negotiations about the employee's claims, and he does not mention receiving a copy of the revised agreement.

• [14] The documents provided with the application also show that there was a toolbox talk meeting on 7 August 2023 for 10 minutes, the subject being EBA discussion. There is no evidence of what was discussed at that meeting. Geocon submits that the employees discussed the changes on 7 August 2023.

• [15] For the CFMMEU Mr Bolitho provided information about the work performed on the WOVA site. He included a schedule of dates from mid 2021 to July 2023 where work was delayed due to inclement weather. The Geocon witnesses did not contradict this information. Mr Cole's witness statement provides information about the typical work patterns on Geocon run building sites. This information is derived from Mr Cole's experience, having worked on Geocon projects and from discussions with members and colleagues in the industry. He describes those pattern as follows:

1. Employees regularly work from 6:00 AM to 5:00 PM on weekdays.

1. Employees usually work from 6:00 AM to 5:00 PM on Saturdays.

1. Some Geocon employees regularly start work at 5:00 AM, particularly if required to open the site and provide access for the Crane Crew.

1. Where work starts at 5:00AM or 6:00AM, the meal break occurs between 12:00 and 1 :00 PM, it is not adjusted for the earlier start time.

1. It is a regular occurrence that work will be rostered on a RDO set out in the calendar, including on "lockdown" RDO which is a RDO adjacent to a public holiday weekend. Working on Geocon sites lockdown RD are treated as ordinary weekdays.

1. Geocon often schedules concrete pours later in the day, that is after lunchtime. This means that some construction workers may be required to stay significantly later to watch the slab cure. The concrete subcontractor's employees remain on the job to float the surface until it reaches the specified density. Because the subcontractor employees are there at least one Geocon employee is also required to remain on the job. The crane operator would also usually have to stay on the job in order to transport the concrete gear and provide standby rescue services during that time. The time taken for the concrete to reach the required density depends on a range of factors including the size of the pour, and the weather conditions, a large pour might take up to 12 hours. Usually, a large pour would not be scheduled after lunch but even with a smaller pour I have experienced situations where I was working on a Geocon site and we were waiting until 11:00PM at night. The company tends to rotate the direct employees who perform these later shifts.

1. I have worked patterns of work on Geocon sites where I did not receive a 10-hour break between my shifts because so much overtime was worked, sometimes for several days in a row. I have observed Geocon employees working those same work patterns. While this was not the usual situation it was also not unique and were usually related to critical site issues like dismantling a hoist.

1. It is common to work longer than 12 hours in a single day.

1. It is less common to work more than 14 hours in a single day but not unusual. Longer shifts like this may be required where work is behind or for reasons like the critical path concrete pour scheduling, and critical works including high risk activities like crane erection and dismantling and hoist dismantling.

1. One Geocon employee I spoke with recalled multiple instances of working shifts starting at 5.30 AM and ending at 8.30PM.

1. As noted above I have personally experienced shifts that began at 6:00 AM and ended at 11 :00 PM.

1. Regardless of the length of the shift, or the amount of overtime worked no overtime crib breaks are taken.

• [16] The two Geocon employees gave a brief account of the hours they work. Mr Holt said his regular work hours were Monday to Friday 6.30 am - 2.30 pm. Mr Lewis said his regular work hours were Monday to Saturday 5.30 am - 4.00 pm. Geocon did not otherwise respond to Mr Cole's account.

• [17] On 8 September 2023 I issued an order that Geocon produce documents. The order was made at the CFMMEU's request. The order sought documents going to the hours worked by Geocon employees. The CFMMEU sought the material to assist the Commission in determining the BOOT. The documents sought went to indicative patterns of hours worked in Geocon's enterprise with the intention of shedding some light on the nature of the enterprise and allowing an assessment of what patterns of work are reasonably foreseeable under the Agreement. Section 193A(6) provides that the Commission may only have regard to patterns of work that are reasonably foreseeable. Subsection 196(6) also requires that in determining what is reasonably foreseeable the Commission is required to have regard to the nature of the enterprise.

• [18] Geocon provided documents in response to the Notice to Produce. The CFMMEU was critical of Geocon's production submitting that it had not produced all documents in its possession to meet the call. For example, the order at item 3 to the schedule of documents that were required to be produced called for production of the following documents:

A copy of any document recording hours of work performed by employees covered by the current Agreement before 6:00 AM between 5 September 2021 and 29 August 2023.

• [19] Geocon produced 4 timesheets in response to item 3. Those documents show that work was performed before 6.00 am on only eight occasions between 5 September 2021 and 29 August 2023. This is contrary to Geocon's witness, Mr Lewis, who stated his regular hours commenced at 5.30 am. This is a direct conflict between Mr Lewis' evidence and the material provided by Geocon as the timesheets provided in response to the Notice show only five instances of employees commencing at 5.30 am between September 2021 and June 2023.

• [20] The CFMMEU submits that Geocon has failed to comply with the order. It invited me to require full production of the documents or, in the alternative, infer that production has been incomplete because Geocon has determined that full production would not assist its application for approval of the Agreement. I do not need to determine this issue. Although I note that if it is the case that Geocon has not produced all documents that meet the descriptions in the schedule then it has done itself a disservice because the information would assist in consideration of the BOOT. If the Commission is not provided with information, or is confronted with conflicting information, as is the case here, it is not assisted in applying the BOOT in accordance with s 193A(6) as it is unable to assess what reasonably foreseeable patterns of work employees are likely to perform under the Agreement.

• [21] The CFMMEU submits that the Commission cannot be satisfied that the Agreement was genuinely agreed on three bases. First, it is contended there were deficiencies in the way Geocon provided access to, and explained, the Agreement to employees. Second, that the process appointing the bargaining representative was flawed. Third, not all employees who voted for the Agreement had sufficient interest to have genuinely agreed.

• [22] I need only address the first matter and the question of access to the Agreement. The CFMMEU submits Geocon did not provide employees with access to the Agreement. The CFMMEU contend that while a proposed agreement was circulated on 24 July 2023, there were changes made in negotiations after that date. Those negotiations continued up until 7 August 2023, when an agreed position was finalised. A final version of the Agreement was not circulated. In essence, the CFMMEU submits that Geocon cannot rely upon the document circulated on 24 July 2023, given the later changes.

• [23] Geocon relies upon the circulation of the Agreement on 24 July 2023. It submits that any later changes were made at the request of employees. It also submits that between 24 July 2023 and 7 August 2023 there were daily discussions about the Agreement. I do not see anything in the material provided to suggest daily discussions occurred. There is reference to toolbox talk meeting on the subject of enterprise bargaining occurring on 28 July 2023, 2 August 2023, 4 August 2023, and 7 August 2023. There was no direct evidence of what was said at those meetings. At best those dates have some resonance with the discussions Mr Lewis describes in his witness statements about claims by the employees for improved travel allowance and Saturday penalties and a counterclaim from Geocon to reduce the pay increase from 5% to 4%. Mr Lewis says there was a compromise reached on 4 August 2023 in discussions between him and Mr Rumball by which the changes to conditions were accepted and the pay increase was reduced to 4.5%. Mr Lewis says he told employees about those changes on 4 August 2023.

• [24] Geocon's submissions include a chronology that suggests it provided the amended agreement on 4 August 2023. I do not see in the statutory declarations or witness statements relied upon any suggestion that this occurred. The timeline document supplied with the application as a supporting document does not mention it. Nor does the document also provided with the application titled Bargaining Process. Mr Lewis's statement says that he was given a copy of the final agreement on 4 August 2023 but does not say that he circulated it. Mr Holt makes no mention of receiving the revised document. Geocon says in its submission that it confirmed the changes on 7 August 2023 and that the employees discussed them on that day. There is no evidence that a final version of the Agreement was provided to employees prior to the vote on 9 August 2023. I find that the revised agreement was not provided to employees.

• [25] Geocon also submits that the changes made after 24 July 2023 made the terms and conditions in the Agreement more beneficial for employees. I understand the submission to be made on the basis that even if they hadn't seen the revised document the changes in it were to their benefit. I do not accept that submission. As a result of the negotiations the wage increase dropped from 5% to 4.5%.

• [26] The documents filed with the application includes a photograph of a document dated 9 August 2023. It is headed "Enterprise Bargaining Agreement - Acknowledgement of Understanding" The document then reads:

I agree that I have been issued with a draft Geocon Constructors (ACT) Pty Ltd and Employees Enterprise Agreement 2023-2027, which will now be taken to vote on Wednesday 9th August 2023 5.30 am. I can confirm I have read and understood the document.

• [27] The rest of the document is a table with the names of 16 persons with a signature and the date 9 August 2023 handwritten beside each signature. At the bottom are the handwritten words Voting Commenced 5.30 am Voting finalised 5.45 am. As the only copy of the Agreement to be provided to the employees was the 24 July 2023 iteration, the employees at the time of the vote had their attention drawn to the earlier document.

• [28] Geocon submits that the employees were given reasonable time to consider the Agreement as a copy of the Agreement was provided to all employees on 24 July 2023, 15 calendar days before the vote, which is longer than the 7 clear days referred to in paragraph 4 of the Commission's Statement of Principles on Genuine Agreement (Principles). The union's point however is that once the changes were made the employees should have been provided with the final version of the Agreement and given time to consider it before being asked to vote on it. The union also submits that Geocon was required to explain the Agreement and that it failed to do so.

• [29] For the purposes of s 186(2)(a) I am required by s 188(1) to take into account the Principles. The Principles at paragraphs 4 to 7 deal with providing employees with a reasonable opportunity to consider a proposed enterprise agreement. Paragraphs 4 and 5 state:

4. The employer should provide employees with a reasonable opportunity to consider a proposed enterprise agreement before voting on it, so that the employees can vote in an informed manner.

5. The employer will be taken to satisfy paragraph 4 if, a reasonable time period before the start of the voting on the proposed agreement, the employer provides to employees who are entitled to vote on the agreement:

b. a full copy of any other material incorporated by reference in the

• [30] Paragraph 6 states a reasonable time period will include 7 full calendar days before voting starts or such other reasonable time period agreed with bargaining representatives for employees.

• [31] Geocon provided a copy of its proposed agreement on 24 July 2023. That agreement changed following negotiations with employees. The employees were told of the changes by the bargaining representative, Mr Lewis, on 4 August 2023. The 24 July 2023 version of the agreement no longer represented a full copy of the agreement. It appears Geocon confirmed the changes on 7 August 2023. By 9 August 2023, the day of the vote, the 24 July 2023 version of the agreement no longer represented a full copy of the agreement. I have found, contrary to Geocon's submissions, that Geocon did not provide employees a full copy of the agreement at all. On that basis I find that paragraph 4 of the Principles is not met. Had I accepted the assertion in the submission that the Agreement was provided to employees on 4 August 2023 I would still not be satisfied because this was only 3 clear days from the vote. The principles at paragraph 6 identifies 7 full calendar days as a reasonable time period for the provision of a full copy of the agreement.

• [32] Paragraphs 8 to 14 of the Principles deal with explaining to employees the terms of the proposed agreement and their effect. Principles 87 refers to s 180(5) and the requirement that the employer take all reasonable steps to explain the terms of the proposed agreement. Geocon explained the terms of the proposed agreement at the meeting of 24 July 2023. It then circulated a copy of that agreement. Following the changes that were confirmed on 7 August 2023 no step was taken by Geocon to explain the Agreement. There was discussion amongst the employees on 4 and 7 August 2023 but no suggestion that Geocon took any steps to explain the terms of the final proposal. Further, there is limited evidence as to the nature of those discussions and certainly insufficient evidence to assess whether those discussion were adequate to explain the terms of the Agreement. Geocon submits that the employees were familiar with the terms of the existing agreement and the Agreement was a roll over agreement. I am not satisfied that this excuses Geocon from explaining the terms of the finally agreed document to the employees prior to voting. It may have been relevant to the adequacy of any explanation, but it does not excuse Geocon from taking no steps to explain the final document.

• [33] I consider these failures to be significant. On either failure I would not be satisfied that the Agreement was genuinely agreed to. On the day of the vote the employees acknowledged by signing the "Acknowledgement of Understanding" document that they had read and understood the agreement issued. The only agreement issued was the agreement circulated on 24 July 2023. Geocon's submission that the employees were aware of the negotiated changes since 24 July 2023 is beside the point. Even if the employees were aware that the negotiated changes were made, they had not been provided with a full copy of the Agreement as required by paragraph 5 of the Principles. This meant they were not given the opportunity to consider the wording of the final agreement to allow them to vote in an informed manner. Similarly, there was no explanation given of the amended proposal.

• [34] I note that the Form F17 declaration by Mr Smith filed with the application made no mention of the negotiations and changes to the Agreement after it was provided to the employees on 24 July 2023. On its face the information in the declaration suggested that the Agreement had been circulated on 24 July 2023 and that document was the agreement voted upon on 9 August 2023. The omission had a tendency to mislead on the question of whether the Commission could be satisfied that the Agreement was genuinely agreed for the purpose of s186(2)(a). I note the comments of the recent Full Bench decision in Appeal by the Australian Workers Union1 that a lack of candour on the part of applicants may result in the Commission being misled. The true situation only arose with the intervention of the CFMMEU, following which the applicant clarified what had occurred. It is regrettable that the clarification was necessary. More detail should have been provided in the declaration.

• [35] As I am not satisfied that the Agreement has been genuinely agreed to on the first basis argued by the CFMMEU it is not necessary to address the other matters raised going to genuine agreement. Nor is it necessary to address the issues raised about the BOOT. I have not formed on a view on those issues.

• [36] Having found that, contrary to the Principles, Geocon did not provide employees with a reasonable opportunity to consider the Agreement before the vote, I am not satisfied that the Agreement has been genuinely agreed to by the employees. I must be satisfied that it was genuinely agreed to approve the Agreement. Consequently, I cannot approve the Agreement and I dismiss the application.

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