DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Application by CoreStaff NSW Pty Ltd T/A CoreStaff NSW
(AG2018/5111)

CORESTAFF NSW BLACK COAL ENTERPRISE AGREEMENT 2018

Application for approval of an enterprise agreement – BOOT – NES – explanation of terms of the enterprise agreement and their effect – genuine agreement – undertakings – enterprise agreement approved.

Introduction and background

[1] On 12 September 2018, CoreStaff NSW Pty Ltd (CoreStaff) applied for approval of the CoreStaff NSW Black Coal Mining Industry Enterprise Agreement 2018 (Enterprise Agreement), which covers employees of CoreStaff who are deployed to work in production or engineering roles on a CoreStaff client site in New South Wales that would otherwise be covered by the Black Coal Mining Industry Award 2010 (BC Award).

[2] The CFMMEU accepts that it is not, and was not at any time, a bargaining representative for the Enterprise Agreement. I exercised my discretion under s 590 of the Fair Work Act 2009 (Cth) (Act) to permit the CFMMEU to be heard in relation to CoreStaff’s application for approval of the Agreement. CoreStaff did not object to this course.

[3] I heard the application for approval of the Agreement on 24 May 2019. CoreStaff adduced evidence from Mr Adrian Button, CoreStaff Business Manager – Newcastle & Hunter, and made submissions in support of its application for approval of the Agreement. The CFMMEU did not call any witnesses to give evidence at the hearing, but did tender documents and make submissions.

Outline of CFMMEU’s concerns

[4] The CFMMEU contends that the Agreement should not be approved for the following reasons:

(a) First, the Fair Work Commission (Commission) could not be satisfied that the Enterprise Agreement does not contravene s 55 of the Act, by excluding provisions of the National Employment Standards (NES);

(b) Secondly, the Commission could not be satisfied that the Enterprise Agreement passes the better off overall test (BOOT) as required by s 186(2)(d) of the Act;

(c) Thirdly, the Commission could not be satisfied that the Enterprise Agreement has been genuinely agreed to in accordance with s 186(2)(a) and s 188 of the Act; and

(d) Fourthly, the Commission should exercise its discretion under s 192 of the Act to refuse to approve the Enterprise Agreement on the basis that compliance with its terms would make CoreStaff liable to a civil penalty provision of the Act.

Undertakings

[5] Mr Martin Rodgers, CoreStaff General Manager – NSW, has provided the following undertakings to address a number of concerns raised by the Commission and the CFMMEU (Undertakings):

1. I have the authority given to me by CoreStaff to provide this undertaking in relation to this application before the Fair Work Commission.

2. The Agreement will be read and interpreted subject to the National Employment Standards (NES) and, where any term of the Agreement is inconsistent with the NES and provides a lesser entitlement than that provided by the NES, the NES will apply to the extent of that inconsistency.

3. For the purposes of consultation with employees in the case of a change referred to in cl.9.1(a) of the Agreement, CoreStaff will:

a. as soon as practicable after a definite decision has been made by CoreStaff to make the change(s), discuss with the employees and their representatives, if any, the introduction of the changes, effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes;

b. subject to clause 9.6, provide in writing to employees (and their representatives, if any) all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees; and

c. give prompt consideration to matters raised by the employees and/or their representatives about the changes.

4. CoreStaff undertakes that clause 10.5 of the Agreement will be applied as if the subclause reads “Where the matter in dispute remains unresolved, the Fair Work Commission may exercise any method of dispute resolution permitted by the Act it considers appropriate to ensure the settlement of the dispute” only.

5. CoreStaff will, at the time of engagement of a part – time employee, agree in writing on a regular pattern of work, specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day. Any agreed variation to the regular pattern of work will be recorded in writing. All time worked in excess of the hours as mutually arranged will be overtime.

6. With respect to clause 12.1(b) of the Agreement:

a. The calculation referred to at cl.12.1(b)(iii) of the Agreement will also be provided to a flat rate employee prior to any change to that employee’s assignment or change to their designated work cycle and/or rostered hours of work in a particular assignment. The calculation referred to at cl.12.1(b)(iii) of the Agreement will also be provided to a base rate employee before any change is made to pay that employee a flat rate of pay in accordance with clause 12.1(b) of the Agreement;

b. Where a flat rate employee’s employment ends or they cease to be paid a flat rate part-way through a designated work cycle, CoreStaff will calculate the amount that would have been payable to the employee (for that of the part designated work cycle) if the employee was a base rate employee and paid in accordance with cl.12.1(a) of the Agreement. Where that amount is higher than the amount the employee was actually paid for that part of the designated work cycle, CoreStaff will pay the difference to the employee, with timing of payment to be within 72 hours of the employment ceasing or, for an on-going employee, the employee ceasing to be paid a flat rate.

c. Any hours worked by a flat rate employee in addition to the hours required in their specific roster will be paid in accordance with cl.26.2(b) of the Agreement.

d. Employees who are not required to work a designated work cycle or specific roster must be engaged as base rate employees and paid in accordance with cl.12.1(a) of the Agreement.

e. An employee’s designated work cycle must not exceed 12 weeks.

7. Clause 16 of the Agreement will not be applied by CoreStaff and will be of no effect.

8. The meal allowance paid under cl.17.2 of the Agreement will be $15.32 for each meal.

9. For the purposes of cl.32.1 of the Agreement, the starting and finishing place of a shift will be in the designated pre-start meeting room or crib room (located away from the pit and in or near the administrative building compound on site) or at any other place specifically agreed between CoreStaff and the majority of the affected employees. Any time spent travelling between that place and work equipment will be considered time worked.

10. Where personal leave provided by cl.34 of the Agreement is taken:

a. no deduction from the employee’s personal leave entitlement will be made if the absence is for fewer than half the ordinary hours component of the employees shift; and

b. in all other cases, the full ordinary hours component of the shift will be deducted for each absence.

11. Employees will only be permitted to take accrued personal leave entitlements under cl.41(d) of the Agreement where the employee’s circumstances would entitle them to personal leave under cl.34 of the Agreement and the NES.

12. Subject to cl.44.2(b) and 44.5 of the Agreement, where an employee’s employment is terminated because:

a. CoreStaff no longer requires the employee’s job done by anyone due to reasons other than those specified in cl.44.2(a)(i) of the Agreement; or

b. of the insolvency or bankruptcy of CoreStaff

the employee will be provided with severance pay equal to one ordinary week’s pay for each completed year of employment. For the avoidance of doubt, cl.44.4 of the Agreement will not apply in this circumstance.

13. CoreStaff will not employ ‘maximum term’ employees under the Agreement and will not apply the terms of cl.43.7(d) of the Agreement.

14. The words ‘in excess of 70 hours’ at cl.44.7 of the Agreement will be applied by CoreStaff as meaning ‘70 or more hours’.

[6] The CFMMEU is not opposed to Undertakings 3, 5, 8, 10, 12 and 14. I accept that those Undertakings resolve the concerns raised in relation to those matters. I address Undertakings 2, 4, 6, 7, 9, 11 and 13 below.

[7] Although the CFMMEU does not oppose Undertakings 3, 5, 8, 10, 12 and 14, it submits that, if accepted, the Undertakings would be of a quantity and nature to constitute a substantial change to the Enterprise Agreement in a manner not allowed for by s 190(3) of the Act. I address these arguments below.

NES

General principles

[8] One of the general requirements about which the Commission must be satisfied in order to approve an enterprise agreement is that the terms of the enterprise agreement do not contravene s 55 of the Act (s 186(2)(c) of the Act).

[9] Pursuant to s 55 of the Act, an enterprise agreement must not exclude the NES or any provision of the NES, but it is permissible for an enterprise agreement to include terms that:

• are ancillary or incidental to the operation of an entitlement under the NES or terms that supplement the NES, but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the NES (s 55(4) of the Act); or

• have the same (or substantially the same) effect as provisions of the NES, whether or not ancillary or supplementary terms are included (s 55(5) of the Act).

[10] A term of an enterprise agreement has no effect to the extent that it contravenes s 55 of the Act.

Submissions

[11] The CFMMEU contends that the Enterprise Agreement either excludes a provision of the NES or is detrimental to employees as compared to the NES in the following ways:

(a) Clause 43.8 of the Enterprise Agreement excludes an employee’s entitlement to notice or payment in lieu of notice in relation to the termination of their employment if they are dismissed for “serious misconduct”. Clause 43.8 goes on to provide what are said to be examples of serious misconduct, but those examples extend the meaning of the term beyond the meaning of serious misconduct as it is used in s 123 of the Act (see the definition in s 12 of the Act and regulation 1.07 of the Fair Work Regulations 2009). In particular, the CFMMEU submits that a breach of company policy, discrimination or harassment of “any kind”, or participating in illegal activities (in so far as such activity occurs outside the workplace), would clearly not fall into the category of serious misconduct contemplated by s 123 of the Act unless, in doing so, the employee could be characterised as exhibiting conduct that is wilful or deliberate and that is inconsistent with the continuation of the employment contract;

(b) Clause 43.8 of the Enterprise Agreement appears to limit, so the CFMMEU contends, the entitlements paid to an employee if they are dismissed for serious misconduct to wages earned up until the time of termination, whereas s 90 of the Act provides that where employment ends, an employer must pay the employee the amount that would have been payable to the employee had the employee taken a period of untaken accrued leave;

(c) Clause 37.1 of the Enterprise Agreement refers to an employee being “required to work on public holiday”. The CFMMEU contends that an enterprise agreement which requires an employee to work on a public holiday is contrary to the NES because it excludes an employee’s ability to refuse to work on public holiday on reasonable grounds in accordance with s 114(3) and (4) of the Act;

(d) Clause 33.3 of the Enterprise Agreement provides that an employee “must endeavour to provide CoreStaff at least 4 weeks’ notice of intention to take annual leave”. The CFMMEU submits that this clause is detrimental as compared to the right under the NES to request to take leave and not have it unreasonably refused (s 88 of the Act); and

(e) Clause 41 of the Enterprise Agreement provides that an employee may take “any accrued personal leave entitlements during a shutdown”. The CFMMEU submits that this clause is inconsistent with the NES because, in effect:

(i) it allows for the cashing out of personal leave in a manner contrary to s 101 of the Act and if it was utilised would be contrary to s 100 of the Act; and/or

(ii) if utilised and leave is deducted for such a person, would be contrary to the accumulation of leave as it is required by s 96 of the Act.

[12] CoreStaff disputes the veracity of the CFMMEU’s concerns with respect to some of the provisions of the Enterprise Agreement which it alleges are contrary to s 55 of the Act and submits that, in some cases, these appear to derive from an overly technical or pedantic approach to the interpretation of the relevant provisions of the Enterprise Agreement. Notwithstanding these matters, CoreStaff has provided Undertaking 2 to reinforce the precedence of the NES with respect to the Enterprise Agreement.

[13] The CFMMEU is not opposed to Undertaking 2, but submits that it is flawed to the extent that it is relied upon for the approval of the Enterprise Agreement. The CFMMEU submits that Undertaking 2 provides a bare statement that, in effect, the NES will have primacy over matters otherwise dealt with in the Enterprise Agreement. In this way, the CFMMEU contends that Undertaking 2 appears intended to do little more than that restate the effect of s 56 of the Act. Notably, Undertaking 2 does not identify in what way(s) the Enterprise Agreement is inconsistent with the NES, nor which clauses of the Enterprise Agreement may be impacted by Undertaking 2. The CFMMEU submits that it cannot have been the intention of the Parliament in enacting the relevant provisions that s 186(2)(c) could be satisfied simply by an applicant providing a generic undertaking to the effect of the Act. If undertakings are to be accepted to address contraventions of s 55 of the Act, the CFMMEU submits that the undertaking should deal expressly with the substantive entitlements in the enterprise agreement to which they apply.

[14] The CFMMEU also submits that Undertaking 2 does not purport to vary the substantive terms of the Enterprise Agreement, whether by way of incorporating the NES or introducing a new entitlement into the Enterprise Agreement. Rather, Undertaking 2 states that if any term of the Enterprise Agreement is inconsistent with the NES and provides a lesser entitlement than that provided by the NES, it is the NES (not the term of the Enterprise Agreement) that applies to the extent of any inconsistency. The CFMMEU contends that Undertaking 2 does no more work than s 56 of the Act, and possibly less. The CFMMEU goes on to submit that, should Undertaking 2 be accepted, the contravening terms of the Enterprise Agreement would remain in the Enterprise Agreement, with Undertaking 2 providing little more than a declaratory note in the published decision of the Commission that the NES applies. This would mean, so the CFMMEU contends, that, for example, if an employee were to bring legal action because the employer was providing benefits less than the NES, the alleged contravention would be a contravention of the NES, actionable under s 44 of the Act, not under s 50 of the Act as a breach of a term of the Enterprise Agreement, because the Enterprise Agreement would continue to include terms that are less beneficial or inconsistent with the NES. The CFMMEU further submits that although s 191 of the Act provides that an undertaking is taken to be a term of the Enterprise Agreement, Undertaking 2 brings no substantive or actionable entitlement.

[15] The CFMMEU submits that the Commission should not accept undertakings with respect to the NES unless:

(a) the Commission has identified the relevant provision(s) of the Enterprise Agreement about which it has concerns in relation to a contravention of the NES;

(b) the undertakings, if accepted, would have the effect of varying the Enterprise Agreement so that the Commission’s concerns were met and the Enterprise Agreement did not contain terms that were detrimental as compared to the NES;

(c) the undertakings meet the requirements of s 190(3), that is, they are not likely to cause financial detriment or result in substantial changes to the Enterprise Agreement (the CFMMEU contends that in order to meet this requirement, the Commission would need to assess in what manner the Enterprise Agreement’s particular terms would be affected by the undertaking); and

(d) the applicant has met the procedural requirements in s 190(4) and (5) of the Act.

[16] The CFMMEU submits that on the material lodged by CoreStaff, the Commission could not be satisfied of these matters.

Conclusion re whether terms of the Enterprise Agreement contravene s 55 of the Act

First NES concern – serious misconduct

[17] Clause 43.8 of the Enterprise Agreement provides that no notice is required to be given to an employee who is dismissed for serious misconduct. The clause then states that “examples of serious misconduct may include but are not limited to” and lists a series of examples. Some of the examples are, by definition, serious matters, such as “participating in illegal activities including possession of drugs or weapons”, while the seriousness of other examples will depend on the circumstances, such as “breaching CoreStaff’s company policies”. Construed in context, the word “may” in the phrase “examples of serious misconduct may include but are not limited to” expresses uncertainty as to whether the particular example will satisfy what is meant by “serious misconduct”. That is, whether or not any particular conduct is serious misconduct will depend on the circumstances. The words “but are not limited to” in the phrase “examples of serious misconduct may include but are not limited to” means that the examples provided are non-exhaustive. Consequently, in my view, clause 43.8 of the Enterprise Agreement does not, on its proper construction, extend the meaning of the term “serious misconduct” beyond its meaning in s 123 of the Act, which picks up the definition in regulation 1.07 of the Fair Work Regulations 2009. Accordingly, I am of the opinion that clause 43.8 of the Enterprise Agreement, insofar as it deals with “serious misconduct”, does not exclude the NES or any provision of the NES, nor is it detrimental to employees. In any event, I am satisfied for the reasons given below that Undertaking 2 adequately addresses the concern identified by the CFMMEU.

Second NES concern – entitlements on termination for serious misconduct

[18] I do not accept the CFMMEU’s argument that clause 43.8 of the Enterprise Agreement gives CoreStaff the right to withhold entitlements such as accrued annual leave from an employee who is dismissed for serious misconduct. Clause 43.8 provides that “no notice is required to be given and employees [who are dismissed for serious misconduct] are only entitled to wages earned up to the time of termination”. Read in context, the expression “only entitled” is limited to the entitlement to wages. That is, an employee who is dismissed for serious misconduct is only entitled to be paid wages insofar as they have been “earned up to the time of termination”. This part of the clause follows immediately after the statement “no notice is required to be given”. This context suggests that what is being addressed by the clause is the impact of a dismissal for serious misconduct on an employee’s entitlement to notice of termination or a payment in lieu of such notice. In other words, an employee who has been dismissed for serious misconduct has no entitlement to notice of termination or payment in lieu of notice, whereas an employee who is dismissed on other grounds is entitled to notice of termination or “payment in lieu of notice which will comprise of the time the employee would have ordinarily worked during the notice period” (clause 43.5 of the Enterprise Agreement). Further, clear words would be required to extinguish an accrued entitlement, such as to annual leave. Clause 43.8, construed in context, does not contain any such clear words. Accordingly, I am of the opinion that clause 43.8 of the Enterprise Agreement, insofar as it deals with entitlements on termination for “serious misconduct”, does not exclude the NES or any provision of the NES, nor is it detrimental to employees. In any event, I am satisfied for the reasons given below that Undertaking 2 adequately addresses the concern identified by the CFMMEU.

Third NES concern – requirement to work on public holidays

[19] Clause 37.1 of the Enterprise Agreement states that “Base rate employees required to work on a public holiday will be paid treble time …” The clause does not expressly state that employees, or base rate employees, are required to work on a public holiday. It confers the entitlement of payment at treble time to any base rate employee who is required to work on a public holiday. The NES permits an employee to refuse to work a public holiday if the request for them to work on the applicable public holiday is not reasonable or the refusal is reasonable. Otherwise, the effect of the relevant NES provisions is that the employee is required to work on the applicable public holiday. 1

[20] Clauses 37.2 and 37.3 of the Enterprise Agreement govern the payments which must be made to a flat rate employee who works on a public holiday. The focus of these provisions on payments, rather than an obligation to work on a public holiday, supports clause 37.1 being interpreted as a payment provision.

[21] For the reasons given, I do not accept the CFMMEU’s argument that clause 37.1, on its proper construction, is contrary to the NES because it excludes an employee’s ability to refuse to work on public holiday on reasonable grounds in accordance with s 114(3) and (4) of the Act. Clause 37.1 of the Enterprise Agreement confers on an employee to whom a base rate is paid the right to receive payment at treble time if they are required to work on a public holiday. The obligation to work on a public holiday is governed by the NES. In any event, I am satisfied for the reasons given below that Undertaking 2 adequately addresses the concern identified by the CFMMEU.

Fourth NES concern – notice of intention to take annual leave

[22] Clauses 33.3 and 33.4 of the Enterprise Agreement govern the taking of annual leave by employees:

“33.3 Employees must endeavour to provide CoreStaff at least 4 weeks’ notice of intention to take annual leave to allow for operational requirements of our clients sites.

33.4 Annual leave will be granted pending the operational requirements of each client’s site at the time of the application but will not unreasonably be refused.”

[23] Clause 33.3 of the Enterprise Agreement deals with the giving of notice by an employee to take annual leave. It requires an employee to endeavour to provide CoreStaff with at least 4 weeks’ notice of their intention to take annual leave. Clause 33.3 does not give CoreStaff a right to refuse an employee’s request to take annual leave if they have not provided at least 4 weeks’ notice. The right to refuse a request to take annual leave is governed by clause 33.4; a request to take annual leave must not be unreasonably refused. In that way, clause 33.4 has the same effect as s 88(2) of the Act. In my view, clause 33.3 of the Enterprise Agreement is a provision which deals with the taking of paid annual leave, otherwise than in accordance with s 93(3) of the Act. Section 93(4) of the Act permits enterprise agreements to include such terms. 2 It follows that clause 33.3, construed in context, does not exclude the NES or any provision of the NES, nor is it detrimental to employees. In any event, I am satisfied for the reasons given below that Undertaking 2 adequately addresses the concern identified by the CFMMEU.

Fifth NES concern – taking personal leave during a shut down

[24] Clause 41 of the Enterprise Agreement permits employees to “take any accrued personal leave entitlements” during a shut down. The text of clause 41 does not suggest that an employee needs to be sick or otherwise entitled to take personal leave in order to take such leave during a shut down. Additional words would need to be added to, or read into, clause 41 to give it such a construction. I agree with the CFMMEU’s submission that this part of clause 41 of the Enterprise Agreement is inconsistent with and therefore excludes provisions of the NES because, in effect, it allows for the cashing out of personal leave in a manner contrary to s 101 of the Act and if it was utilised would result in a contravention of s 100 of the Act.

[25] CoreStaff submits that Undertakings 2 and 11 adequately addresses the concerns identified by the CFMMEU. I address Undertaking 2 further below. As to Undertaking 11, the CFMMEU contends that it should not be accepted by the Commission on the basis that it is capable of satisfying a concern that clause 41 is inconsistent with the NES. The CFMMEU submits it is unclear how personal leave can be taken for a period where an employee is not otherwise required to work; for example, paid personal leave cannot be granted on a Sunday for a Monday to Friday employee who is not rostered to work weekends on a Sunday. The CFMMEU submits that if paid personal leave is to be used at all in relation to a situation where the employer has notified employees that they are not required because of a shut down, it would appear that that leave could only be utilised by using the cashing out mechanism allowed for in the Act. Undertaking 11 does not purport to use such a mechanism. The effect of Undertaking 11, so the CFMMEU contends, would therefore appear to be removing an employee’s purported ability to use personal leave in the situation of a shut down. While this would make the clause consistent with the Act, and therefore no longer contravening s 55 of the Act, the CFMMEU submits that Undertaking 11 is not an insignificant change to the Agreement and, if applied, would be detrimental for employees who may have excess to accrued personal leave. In those circumstances, the CFMMEU submits that Undertaking 11 should not be accepted because of the terms of s 190(3) of the Act.

[26] During a period when CoreStaff has shut down its operations, clause 41 of the Enterprise Agreement permits employees to take annual leave (whether accrued or in-advance of an accrued entitlement), leave without pay, or accrued personal leave. The effect of Undertaking 11 is that an employee cannot take accrued personal leave during a shut down unless they have such leave accrued and their circumstances entitle them to take personal leave. For example, the employee may be ill and therefore unfit to attend work. It follows, in my view, that Undertaking 11, if accepted, would mean there would be no cashing out of an entitlement to personal leave. Instead, personal leave could be taken where an employee had an entitlement to take such leave.

[27] As to the CFMMEU’s contention that it is unclear how personal leave can be taken for a period where an employee is not otherwise required to work, the NES permits that to occur in particular circumstances. For example, the effect of s 89(2) of the Act is that if an employee becomes ill whilst on annual leave in circumstances where they would be entitled to paid personal leave if they were at work, then the days concerned do not count as days of paid annual leave and instead will be taken from the employee’s accrued entitlement to personal leave. Clause 41 of the Enterprise Agreement, read together with Undertaking 11, operates in a similar manner. That is, if an employee becomes ill during a shut down whilst on annual leave or leave without pay in circumstances where they would be entitled to paid personal leave if they were at work, then the days concerned do not count as days of paid annual leave or leave without pay and instead will be taken from the employee’s accrued entitlement to personal leave and paid as such. Having regard to that analysis, I do not agree that accepting Undertaking 11 is likely to cause financial detriment to any employee or result in substantial changes to the Enterprise Agreement, nor do I accept the CFMMEU’s other criticisms of Undertaking 11. Further and in the alternative, I am satisfied that Undertaking 2 resolves any NES related concern in relation to clause 41(d) of the Enterprise Agreement.

General concern with Undertaking 2 (NES precedence)

[28] The Commission may accept an undertaking in relation to an enterprise agreement in respect of which an application for approval has been made if the Commission has a concern that the enterprise agreement does not meet the requirements set out in sections 186 and 187 of the Act, 3 and the remaining requirements of s 190 are met. One of the requirements of s 186 is that the terms of the enterprise agreement do not contravene section 55 of the Act.4 As set out above, s 55(1) of the Act provides that an enterprise agreement must not exclude the NES or any provision of the NES. Accordingly, if the Commission has a concern that the terms of an enterprise agreement exclude any provision of the NES, the Commission may accept an undertaking if it is satisfied that the undertaking meets the concern and the remaining requirements of s 190 are met.

[29] I do not accept the general submissions made by the CFMMEU in relation to Undertaking 2. There is no requirement in the Act for an undertaking to identify in what way(s) the enterprise agreement is inconsistent with the NES, nor is there a requirement to identify which clauses of the enterprise agreement may be impacted by the undertaking. There is no requirement in the Act for an undertaking to purport to vary the substantive terms of an enterprise agreement. If an undertaking which meets the requirements of s 190 is given and accepted by the Commission, it is taken to be a term of the enterprise agreement. 5 It follows that if Undertaking 2 is accepted by the Commission and the Enterprise Agreement is approved, an employee to whom the Enterprise Agreement applies would be able to enforce the obligation imposed by Undertaking 2 as a term of the Enterprise Agreement, in the event that CoreStaff failed to comply with that obligation.

[30] For the reasons stated above, I am concerned that the terms of the Enterprise Agreement exclude provisions of the NES. I am satisfied that if I accept Undertakings 2 (and 11), my concerns will be met and the Enterprise Agreement will not exclude the NES or any provision of the NES.

BOOT

General principles

[31] I must be satisfied that the Enterprise Agreement passes the BOOT before I can approve it. 6 Section 193(1) of the Act provides that an enterprise agreement passes the BOOT if the Commission is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the enterprise agreement would be better off overall if the enterprise agreement applied to the employee than if the relevant modern award applied to the employee. The “test time” is when the application for approval of the enterprise agreement is made.7

[32] In Armacell Australia Pty and Others the application of the BOOT was explained by the Full Bench in the following manner: 8

“The BOOT, as the name implies, requires an overall assessment to be made. This requires identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement.”

[33] The BOOT is not applied as a line by line analysis. It is a global test requiring consideration of advantages and disadvantages to award covered employees and prospective award covered employees. 9 An enterprise agreement may pass the test even if some award benefits have been reduced, as long as overall, those reductions are more than offset by the benefits of the enterprise agreement.10

[34] Ultimately the application of the BOOT is a matter that involves the exercise of discretion, and it involves a degree of subjectivity or value judgement. 11

[35] It is clear from the references to “each … employee” in section 193(1) of the Act that every employee to whom the enterprise agreement will apply, if approved, must be better off overall than if the relevant modern award applied to the employee. It is not enough that a majority or most of the employees to whom the enterprise agreement will apply, if approved, will be better off overall than if the relevant modern award applied. 12

[36] Section 193(7) of the Act is a facultative provision which permits the Commission to be satisfied, in particular circumstances, that all employees in a class of employees will be better off if the agreement applied to that class than if the relevant modern award applied to that class. Section 193(7) provides as follows:

“For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.”

[37] Section 193(7) was explained in the Explanatory Memorandum to the Fair Work Bill 2008 as follows:

“818. Although the better off overall test requires FWA to be satisfied that each award covered employee and each prospective award covered employee will be better off overall, it is intended that FWA will generally be able to apply the better off overall test to classes of employees. In the context of the approval of enterprise agreements, the better off overall test does not require FWA to enquire into each employee’s individual circumstances.”

[38] The selection of a class for the purpose of s 193(7) of the Act will only be of utility if the enterprise agreement affects the members of the class in the same way such that there is likely to be a common BOOT outcome. 13

[39] It is also important to recognise that the BOOT is hypothetical, because it requires an assessment of whether each employee, and each “prospective award covered employee”, would be better off overall if the enterprise agreement applied to him or her than if the relevant award did. 14

More beneficial terms

[40] The hourly base rates of pay under the Enterprise Agreement are between 1% and 15.8% higher than the BC Award, depending on the particular classification. Clause 12.4 of the Enterprise Agreement requires CoreStaff to ensure ordinary rates of pay under the Enterprise Agreement “are at least 1% greater than the [BC Award], as adjusted annually”. Further, ordinary rates of pay under the Enterprise Agreement will increase each year at the rate of 3% or any increase determined by the Commission to minimum award rates of pay, whichever is greater. 15

[41] Clause 14 of the Enterprise Agreement provides that, on the first full pay period after approval of the Enterprise Agreement, “CoreStaff employees working under this Agreement will be paid a one-off bonus of $500”. This benefit is not provided under the BC Award. It should be noted, however, that the benefit will not apply to prospective employees who are employed by CoreStaff after the first full pay period following approval of the Enterprise Agreement.

[42] Clause 27.5 of the Enterprise Agreement provides for permanent day shift employees changing to afternoon or night shift to be paid the first three shifts at overtime rates, whereas the BC Award provides for such payment for one shift only.

[43] Both clause 44 of the Enterprise Agreement and clause 14 of the BC Award effectively provide for redundancy payments at the rate of 3 weeks per year of service, with a minimum of two weeks’ ordinary pay. The BC Award imposes a cap of 30 weeks’ redundancy pay, save for employees with more than 15 years of completed years of employment as at 20 March 2017, in which case there is no cap. The Enterprise Agreement does not impose a cap on redundancy payments. In that respect, it is more beneficial to employees than the BC Award, but it is a contingent benefit (which only arises after 10 years’ service) and does not apply to casual employees. In all the circumstances, this benefit only weighs to a very small extent in favour of satisfaction of the BOOT.

Less beneficial terms

Clause 7 - no extra claims

[44] Clause 7 of the Enterprise Agreement provides that “neither party will pursue any further claims about any permitted matter during the term of this Agreement”. The BC Award contains no such restriction and, so the CFMMEU contends, would allow employees to seek to negotiate and/or request better terms and conditions of employment of the next four years. CoreStaff submits that, consistently with the decision in Toyota Motor Corporation Australia Ltd v Marmara, 16 clause 7 of the Enterprise Agreement cannot be relied on by CoreStaff to prevent employees from proposing amendments to the Enterprise Agreement in the manner contemplated by Subdivision A of Division 7 of Part 2-4 of the Act. In that circumstance, CoreStaff submits that the detrimental effect on employees (if any) is minimal.

[45] I agree that clause 7 of the Enterprise Agreement is less beneficial for employees than the BC Award, which contains no such limitation or prohibition and would enable employees to take protected industrial action in support of better terms and conditions of employment. However, I accept that clause 7 will not prevent employees from proposing amendments to the Enterprise Agreement in the manner contemplated by Subdivision A of Division 7 of Part 2-4 of the Act. On balance, I consider that clause 7 of the Enterprise Agreement weighs to a small extent against the BOOT being satisfied.

Clause 33.3 – notice of annual leave

[46] As set out above, clauses 33.3 and 33.4 of the Enterprise Agreement govern the taking of annual leave by employees:

“33.3 Employees must endeavour to provide CoreStaff at least 4 weeks’ notice of intention to take annual leave to allow for operational requirements of our clients sites.

33.4 Annual leave will be granted pending the operational requirements of each client’s site at the time of the application but will not unreasonably be refused.”

[47] The BC Award provides that annual leave entitlements are provided for in the NES. Clause 25 of the BC Award supplements the NES entitlements and “provides industry specific detail”, but is silent on the question of notice by an employee of an intention to take annual leave.

[48] The CFMMEU contends that the BC Award provides no set period of notice for the taking of annual leave, with the result that clause 33.3 of the Enterprise Agreement is less beneficial for employees than the BC Award.

[49] CoreStaff contends that although clause 33.3 of the Enterprise Agreement requires employees to endeavour to provide CoreStaff at least 4 weeks’ notice of their intention to take annual leave, any failure to provide such notice does not impact on whether leave will be granted. CoreStaff must not unreasonably refuse a request to take annual leave (see clause 33.4 of the Enterprise Agreement, together with Undertaking 2 and s 88(2) of the Act).

[50] Undertaking 2 only applies where, inter alia, any term of the Enterprise Agreement “provides a lesser entitlement than that provided by the NES”. The Enterprise Agreement does not provide a lesser entitlement to annual leave than the NES. Accordingly, Undertaking 2 is not relevant to the issue raised by the CFMMEU in relation to notice of an intention to take annual leave.

[51] In my view, clause 33.3 of the Enterprise Agreement is slightly less beneficial than the BC Award for employees in two respects. First, clause 33.3 gives rise to an obligation on the part of employees to “endeavour to provide CoreStaff at least 4 weeks’ notice of intention to take annual leave”. There is no corresponding obligation in the BC Award. If an employee does not endeavour to provide such notice to CoreStaff, they will be in breach of the Enterprise Agreement and legal proceedings may be taken against them in respect of their breach of the Enterprise Agreement. Secondly, although the obligation on CoreStaff not to unreasonably refuse a request for annual leave is the same under the Enterprise Agreement as it would be if the BC Award applied to the employee (in which case s 88(2) of the Act would impose the obligation), under the Enterprise Agreement one factor which is likely to be relevant to the reasonableness of any decision by CoreStaff to refuse a request for annual leave is whether the employee has complied with their obligation to “endeavour to provide CoreStaff at least 4 weeks’ notice of intention to take annual leave”. That consideration would not be relevant in the case of an employee to whom the BC Award applies.

Clause 35 – evidence for absence

[52] Clause 35 of the Enterprise Agreement provides:

“35. Managing absenteeism

35.1 An employee absent from duty due to personal illness or personal incapacity must as soon as practicable (which to the extent possible should be before the employee’s shift commences):

• inform CoreStaff and the supervisor of CoreStaff’s client of their inability to attend for duty by telephone;

• state the estimated duration of the absence

35.2 CoreStaff may request evidence in cases of personal illness or injury, provided that a certificate from a registered medical practitioner or, where that is not reasonably practicable, a statutory declaration is provided as evidence.”

[53] Clause 26 of the BC Award relevantly provides:

“26. Personal/carer’s leave

26.1 Personal/carer’s leave entitlements are provided for in the NES. This clause supplements those entitlements and deals with evidence required to be provided by an employee when taking paid personal/carer’s leave.

…

26.3 Evidence required

(a) If requested by the employer, the employee must provide a medical certificate or such other evidence as will prove to the employer’s reasonable satisfaction that the absence from work was for the reasons set out in the NES.

(b) If the proof is disputed, such a dispute may be dealt with in accordance with the dispute resolution procedure.”

[54] The CFMMEU submits that clause 35 of the Enterprise Agreement is more prescriptive and slightly less beneficial than clause 26.3 of the BC Award, because the Enterprise Agreement provides that the employer may require evidence of an absence for personal illness or injury to be in the form of a certificate from a registered medical practitioner or, where that is not reasonably practicable, a statutory declaration, whereas the BC Award provides that an employer may require an employee to provide a medical certificate or such other evidence as will prove to the employer’s reasonable satisfaction that the absence from work was for the requisite reason.

[55] The primary method of proving an absence from work due to personal illness or injury, by means of a medical certificate, is the same under the Enterprise Agreement and the BC Award. The difference between the two industrial instruments relates to the secondary method of proving an absence from work due to personal illness or injury. In my view, although there may be some circumstances in which it may be simpler and less time consuming for the employee to obtain a statutory declaration to prove their absence from work than would have been the case had the employee been required to provide such “other evidence” to prove to their employer’s reasonable satisfaction that their absence from work was for the requisite reason, the reverse is more likely to be the case. Consider, for example, a circumstance in which an employee has obtained a certificate from a registered health provider other than a medical practitioner (such as a dentist, physiotherapist or psychologist) whilst absent from work or a primary record such as a letter confirming the employee’s admission to hospital for a particular period of time. Under the BC Award, the certificate or letter from the hospital may prove to the employer’s reasonable satisfaction that the employee’s absence from work was due to personal illness or injury. However, under the Enterprise Agreement, the employer would be entitled not to accept the certificate or letter as evidence and instead require that the employee make or obtain a statutory declaration. This will be far more complex and time consuming for the employee, particularly if they are unfamiliar with the process of making a statutory declaration. Accordingly, on balance, I consider clause 35.2 of the Enterprise Agreement to be slightly less beneficial than the BC Award for employees in my consideration of the BOOT.

Neutral terms – where contested or in question

[56] It is uncontroversial that there are a number of terms of the Enterprise Agreement which are the same as, or materially the same as, provisions in the BC Award. I will not address those terms in this decision.

[57] There are some terms of the Enterprise Agreement in respect of which there is a contest or question as to whether they are less beneficial to employees than the BC Award, but I have concluded they are neutral in my assessment of the BOOT. I address those terms below.

Family and domestic violence leave

[58] Clause 28 of the BC Award provides for unpaid leave to deal with family and domestic violence. Clause 28 was inserted into the BC Award on 1 August 2018, which is prior to CoreStaff’s filing of its application for approval of the Enterprise Agreement on 12 September 2018. Accordingly, clause 28 of the BC Award was in operation as at the “test time” for the Enterprise Agreement.

[59] The Enterprise Agreement is silent on the question of family and domestic violence leave. The family and domestic violence provisions in the Act 17 commenced operation on 12 December 2018. They are in materially the same terms as those in the BC Award. The Enterprise Agreement does not exclude those provisions of the NES. In addition, Undertaking 2 will ensure that employees to whom the Enterprise Agreement applies are entitled to the benefits of the family and domestic violence provisions in the Act. In all the circumstances, I am satisfied that this is a neutral matter in my consideration of the BOOT.

Clause 10 – dispute resolution term

[60] Clause 10.5 of the Enterprise Agreement provides that the Commission will cease dealing with a dispute “immediately upon the separation of an employee for any reason”. The BC Award has no such limitation. Under the BC Award, if a dispute has been raised and is being dealt with by the Commission, the fact that the employee ceases to be employed by their employer does not result in the Commission no longer having jurisdiction to deal with the dispute. 18 It follows that in this respect the Enterprise Agreement is less beneficial to employees than the BC Award.

[61] Further, both the Enterprise Agreement and the BC Award permit “consent arbitration” of a dispute by the Commission. The BC Award does not limit the relief that may be granted by the Commission when dealing with a dispute, whereas clause 10.5 of the Enterprise Agreement provides that “relief is limited to by way of declaration only”. However, in my view, this part of clause 10.5 is invalid and unenforceable because it purports to confer judicial power on the Commission. 19 As the High Court explained in Re Cram; Ex Parte the Newcastle Wallsend Coal Company Proprietary Limited:20

“The making of a binding declaration of right is an instance of the exercise of judicial power. It stands outside the arbitral function”.

[62] Because that part of clause 10.5 of the Enterprise Agreement which seeks to limit the relief which may be granted by the Commission to “declaration only” is, in my view, invalid, both the Enterprise Agreement and the BC Award provide for “consent arbitration” without any limitation on the relief which may be granted in such an arbitration. Accordingly, the only way in which clause 10 of the Enterprise Agreement is less beneficial to employees than the BC Award is the requirement in clause 10.5 for the Commission to cease dealing with a dispute “immediately upon the separation of an employee for any reason”.

[63] Undertaking 4 resolves my concerns in relation to clause 10.5 of the Enterprise Agreement. It will ensure that there is no impediment to the Commission continuing to deal with a dispute if an employee ceases to be employed with CoreStaff after their s 739 application has been lodged in the Commission. It will also avoid any issue in relation to the power of the Commission to make a declaration. The CFMMEU agrees that Undertaking 4 would be a substantial benefit for employees.

[64] For the reasons given, I am satisfied that clause 10.5 of the Enterprise Agreement, read together with Undertaking 4, is a neutral matter in my consideration of the BOOT.

Clause 44.2(b) – redundancy entitlements for fixed term and maximum term employees

[65] The CFMMEU initially submitted that clause 44.2(b) of the Enterprise Agreement excludes redundancy entitlements for fixed term and maximum term employees. Although clause 14.2(b) of the BC Award also excludes fixed term employees from redundancy entitlements, the CFMMEU submitted that the Enterprise Agreement at clause 43.7 provides that a fixed term employee may be dismissed with notice in the same manner as permanent employees and thus, it is unclear how this is different from ‘maximum term’ employment which is also allowed under the Enterprise Agreement, or indeed how such employees are “fixed term”. The CFMMEU submitted that the concept of “fixed term” under the Enterprise Agreement appears to be different to the concept of “fixed term” under the BC Award, where “fixed term” is not defined, but would not, on its face, involve an ability to terminate before the fixed duration with notice. In short, the CFMMEU initially submitted that, unlike the Enterprise Agreement, there is nothing in the BC Award to exclude employees who may be terminated with notice from the redundancy provisions.

[66] CoreStaff provided Undertaking 13 in response to these concerns. It provides:

“CoreStaff will not employ ‘maximum term’ employees under the Agreement and will not apply the terms of cl.43.7(d) of the Agreement.”

[67] The CFMMEU submits that it is unclear what is intended to be the effect of Undertaking 13. An undertaking that clause 43.7(d) will not apply does not provide any guidance as to how clause 43.1 is to be applied. The CFMMEU submits that, presumably, irrespective of Undertaking 13, “fixed term” employees could continue to be dismissed in accordance with clause 43.1, unless that circumstance is to be prohibited by the undertaking about “maximum term” employment. Indeed, the undertaking would make unclear, so the CFMMEU contends, what capacity the Enterprise Agreement had to apply to fixed term employment, or at least what role that had under the Enterprise Agreement.

[68] Contrary to the CFMMEU’s submissions, I am satisfied that Undertaking 13 meets the concerns identified by the CFMMEU in relation to fixed term and maximum term employees, and that this issue is a neutral consideration in relation to my assessment of the BOOT. My reasons for so concluding are as follows:

(a) First, under both the Enterprise Agreement and the BC Award, fixed term employees are not entitled to redundancy pay;

(b) Secondly, the effect of Undertaking 13 is that fixed term employees under the Enterprise Agreement cannot be dismissed by giving them notice in accordance with clause 43.1 of the Enterprise Agreement. So much is clear from the words “CoreStaff … will not apply the terms of cl.43.7(d)”. Accordingly, under both the Enterprise Agreement (read together with Undertaking 13) and the BC Award, fixed term employees cannot be dismissed with notice prior to the end of their fixed term; and

(c) Thirdly, CoreStaff has undertaken not to employ maximum term employees under the Enterprise Agreement. Accordingly, there is no reason for concern as to the differences between fixed term employees and maximum term employees.

NES uncertainty

[69] The CFMMEU submits that there is a substantive benefit in an employee being covered by an industrial instrument where such an employee can have some confidence about which clauses are intended to apply. In this respect, the CFMMEU submits that the terms of the Enterprise Agreement, as amended by Undertaking 2, would be less beneficial than the terms of the BC Award. I do not agree. Having regard to my conclusions set out above, Undertaking 2 (NES precedence) will not have a great deal of work to do and does not give rise to a concern on the ground of uncertainty. I consider Undertaking 2 to be neutral in my consideration of the BOOT.

Clause 32 – start and finish place of work

[70] Clause 32.2 relates to the starting and finishing place of work at an underground mine. It is in the same terms as the equivalent provision in the BC Award. However, the provision in the Enterprise Agreement in relation to the start and finishing place of work in a workplace other than an underground mine, such an open cut mine, is materially different from the corresponding provision in the BC Award.

[71] Clause 32.1 of the Enterprise Agreement provides:

“The starting and finishing place and time of a shift will be in line with the operations of the specific client sites and will be communicated to employees prior to the beginning of any assignment.”

[72] Clause 23.4(a) of the BC Award provides:

“The starting and finishing place of a shift are to be agreed between the employer and the majority of affected employees or, in the absence of agreement, as determined in accordance with the dispute resolution procedure.”

[73] At the hearing, I expressed concern that clause 32.1 of the Enterprise Agreement may be less beneficial than clause 23.4(a) of the BC Award because the former provision takes the issue out of the hands of the majority of employees and would permit, for example, the operations of a specific client site to determine the starting and finishing place of a shift to be on the equipment operated in the open cut mine. In those circumstances, the time taken for CoreStaff’s employees to travel to and from the administration buildings near the entry to an open cut mine, down into the equipment in the mine, would not be paid time. This time could be substantial. CoreStaff has addressed these concerns to my satisfaction by providing Undertaking 9.

[74] The CFMMEU submits that while there would remain some ambiguity about where a “designated pre-start meeting room” may be, Undertaking 9 would be of significant benefit to employees covered by the Enterprise Agreement as compared to the current clause if it prevents the employer determining that the starting or ending place of a shift was the pit. In my view, the words in brackets in Undertaking 9 apply to both the pre-start meeting room and crib room. That is, Undertaking 9 requires that the shift commences and concludes in the designated pre-start meeting room or crib room and that room must be located away from the pit and in or near the administrative building compound on site, unless CoreStaff and the majority of affected employees agree on some other starting and finishing place. That will ensure the shift will not commence or conclude at the location of equipment in the open cut mine, unless there is an agreement to that effect between CoreStaff and the majority of affected employees, which is both unlikely and equally possible under clause 23.4(a) of the BC Award.

[75] For the reasons given, I am satisfied that clause 32.1 of the Enterprise Agreement, read together with Undertaking 9, is a neutral matter in my consideration of the BOOT.

Clause 16 – deductions

[76] The CFMMEU contends that clause 16 of the Enterprise Agreement is a detriment as compared to the BC Award because the BC Award does not contain a deductions clause.

[77] Undertaking 7 addresses this issue to my satisfaction. It will ensure that deductions will only be made if they are permitted by the Act. 21 Accordingly, clause 16 of the Enterprise Agreement, read together with Undertaking 7, is a neutral matter in my consideration of the BOOT.

Clause 12(b) – flat rates of pay

[78] Clause 12.1 of the Enterprise Agreement provides:

“Employees will either be paid the base rates as set out in clause 12.1(a), or CoreStaff may implement flat rates of pay subject to the requirements of clause 12.1(b).

(a) Base Rates

Where an employee is engaged to work as a base rate employee they will be paid penalty rates, allowances and overtime as provided by this Agreement.

A casual loading of 25% is included in the Casual Base Rate in the table below.

The following ordinary rates apply from approval;

(b) Flat Rates

(i) CoreStaff may implement flat rates of pay. Where flat rates are paid to an employee, the flat rate is received by the employee in satisfaction of and in compensation for any and/or all entitlements to penalty rates, shift loadings, overtime rates, other loadings and allowances which might otherwise apply to the employee (except as provided under the NES or in any mandatory terms of this enterprise agreement under the Act).

(ii) Flat rates of pay will be calculated taking into account the specific roster pattern that an employee works. The total payments made to the employee for the same designated work cycle and rostered hours of work must be not less than that which the employee would have received if they were a base rate employee and paid in accordance with clause 12.1 (a).

(iii) Prior to beginning an assignment, employees engaged as a flat rate employee will be provided with a detailed calculation demonstrating how their flat rate has been calculated. Examples of the calculation can be found in Schedule 1 of this Agreement.

(iv) Any shifts worked by an employee in addition to the shifts required in the specific roster will be paid in accordance with clause 26.2(b) of this Agreement.”

[79] The CFMMEU submits that the first difficulty with clause 12.1(b) of the Enterprise Agreement is the Commission could not be satisfied that a flat rate can be arrived at for casual employees capable of passing the BOOT. The CFMMEU relies on the Loaded Rates Agreements decision, 22 where the Full Bench expressed the view (at [121]) that where a casual employee’s hours are not constrained or guaranteed (as is the case in the Enterprise Agreement) it would appear to be impossible for the Commission to be satisfied that the BOOT was met unless the casual employee’s loaded rate was the highest penalty rate.

[80] The second difficulty, so the CFMMEU submits, is that the Enterprise Agreement in effect delegates the exercise of the BOOT to the parties. Although examples are provided of how the loaded rate may be arrived at, the CFMMEU contends that neither the examples nor the Enterprise Agreement provide guidance or any limitation on how rates will actually be arrived at. Further, whilst there is a commitment to providing employees with a breakdown of the calculation, the CFMMEU submits that simply leaves employees in a situation in which they must, in effect, perform the BOOT themselves. In this way, the CFMMEU submits that the clause is less beneficial than the BC Award and a significant question is raised over whether the Commission has enough information before it to meaningfully be satisfied that the Enterprise Agreement passes the BOOT.

[81] The CFMMEU also submits that there is nothing in the Enterprise Agreement that prohibits casual employees being engaged for irregular work on a “truly casual basis”. If employees are engaged by CoreStaff to work on such a basis under the Enterprise Agreement, the CFMMEU contends that the Commission could not be satisfied that a flat rate could be arrived at for such employees that would pass the BOOT.

[82] The Full Bench made the following relevant observations in the Loaded Rates Agreements case (references omitted):

“[121] The position becomes more difficult with respect to casual employees. As discussed in the Casual and Part-time Employment Case, the contractual and practical incidents of casual employment under the FW Act may vary greatly. Casual employment may consist of engagement under hourly or daily fixed term contracts, and be used for the performance of short-term and/or intermittent work on an “on-call” basis. It may also consist of longer-term contracts or an ongoing contract of indefinite duration (terminable in either case on short notice), and be used for the performance of long term work with regular, rostered hours. In the former case, the casual employee is not guaranteed work on any specified days or for any specified duration. In an enterprise agreement which provides or permits casual employment of this nature, it is difficult to envisage how it would be possible to provide for a loaded rate for casual employees that was capable of passing the BOOT. This is because it would always be possible for the casual employee, in a given pay period, to be engaged to work on a day or at a time which would attract the payment of penalty rates under the relevant award and not to be engaged on any other hours or at any other times. In that circumstance, if the agreement provided for a loaded rate which was less than the highest penalty rate provided for in the relevant award, the employee would necessarily be disadvantaged as compared to the award. This result could only be avoided if the agreement provided for some other benefit to the casual employee which offset the disadvantage, and/or or imposed some restriction on when a casual employee could be engaged to work, and/or required the hours of work of a casual employee to be balanced over time between hours which would attract the payment of penalty rates under the relevant award and hours which would not. Any such additional provisions would amount to a significant departure from the concept of the “on-call” casual.

[122] For an enterprise which utilises casual employees to perform regular and ongoing work (so that casual employment is simply used as an alternative payment and entitlement system rather than to describe engagement on a truly casual basis), an enterprise agreement might provide casual employees with an entitlement to guaranteed hours and rosters. In that circumstance it may be possible to construct a loaded rate for them, in the same way as for full-time and part-time employees above, which is capable of passing the BOOT based on particular prescribed rosters…”

[83] Clause 12.1(b) of the Enterprise Agreement requires a flat rate of pay to be “calculated taking into account the specific roster pattern that an employee works”. If an employee does not have a “specific roster pattern”, it would not be possible to calculate a flat rate for the employee. Further, Undertaking 6(d) provides that “employees who are not required to work a designated work cycle or specific roster must be engaged as base rate employees and paid in accordance with cl.12.1(a) of the Agreement”. It follows that the Enterprise Agreement, read together with Undertaking 6, does not permit a flat rate to be paid to a casual employee who does not have a “specific roster pattern” or a designated work cycle. On the other hand, if a casual employee has a “specific roster pattern” or a designated work cycle, then I am satisfied that it would be possible to construct a loaded rate for the employee which is capable of passing the BOOT, particularly in circumstances where clause 12.1(b)(iv), read together with Undertaking 6(c), requires that any shifts or hours worked by an employee in addition to the shifts or hours required in their specific roster will be paid at overtime rates.

[84] As to the second difficulty identified by the CFMMEU, clause 12.1(b)(ii) of the Enterprise Agreement requires that the total payments to be made to the employee to whom a flat rate is paid “must not be less than that which the employee would have received if they were a base rate employee”. I do not accept the CFMMEU’s submission that employees will be left in a situation in which they must, in effect, perform the BOOT themselves. First, clause 12.1(b)(ii) requires a comparison between the payment of a flat rate to an employee and a base rate under the Enterprise Agreement, unlike the BOOT, which requires a comparison between the Enterprise Agreement and the relevant modern award. Secondly, the employee to whom a flat rate is paid does not have to undertake a BOOT type analysis; it is CoreStaff which is obliged by clause 12.1(b)(ii) to ensure that an employee to whom a flat rate is paid receives at least as much pay as they would have received if they had been paid base rate under the Enterprise Agreement. Further, CoreStaff is obliged by clause 12.1(b)(iii) of the Enterprise Agreement and Undertaking 6(a) to provide the employee with a “detailed calculation demonstrating how their flat rate has been calculated”. It follows, in my view, that if the Enterprise Agreement passes the BOOT for employees who receive a base rate of pay under clause 12.1(a) of the Enterprise Agreement, it must also pass the BOOT for employees who receive a flat rate of pay under clause 12.1(b) of the Enterprise Agreement, subject to consideration of the issue I address in paragraph [86] below.

[85] I am satisfied that Undertaking 6 addresses other concerns raised by the CFMMEU and the Commission in relation to clause 12.1(b) of the Enterprise Agreement. Paragraphs (b) and (e) of Undertaking 6 will ensure that if an employee to whom a flat rate is paid does not work an entire designated work cycle, they will be paid any detrimental difference between what they were paid as a flat rate employee for the part of the designated work cycle they worked and what they would have been paid had they received a base rate of pay for the same period. Limiting the length of a designated work cycle to 12 weeks will ensure that any such payments are made within a reasonably short period of time after the work is performed.

[86] For the reasons given, I am satisfied that clause 12.1(b) of the Enterprise Agreement, read together with Undertaking 6, is neutral in my consideration as to whether the Enterprise Agreement passes the BOOT, save for in the following limited circumstances. If an employee to whom a flat rate is paid does not work an entire designated work cycle and the amount they were paid as a flat rate employee for the part of the designated work cycle they worked is less than what they would have been paid had they received a base rate of pay for the same period, then they will receive an additional payment to ensure they receive the same amount as they would have received if they were a base rate employee. This may, for example, occur where a flat rate employee works two public holidays in the first two weeks of a designated work cycle and then ceases being paid a flat rate of pay. The payments they would have received if they were a base rate employee for those two public days would, as a flat rate employee, be spread evenly over the period of the designated roster cycle, which could be up to twelve weeks. However, because in this example the employee ceases being paid a flat rate after two weeks, they may need to be paid an additional amount after they cease being paid a flat rate of pay to take them up to the amount they would have been paid had they received a base rate of pay during that 2 week period. In pure dollar terms, the employee will be in the same position as if they had received a base rate of pay at all times. Notwithstanding this, the employee may be worse off as a flat rate employee than if they were a base rate employee because there will be a time lag between the payment of the additional amount to the employee and when they would have received the earnings as a base rate employee. Using the example referred to above, the hypothetical base rate employee would have received the relevant payments fairly close to the time when the work was undertaken, 23 whereas the flat rate employee would not receive the additional payment until shortly after they ceased to be a flat rate employee.24 In this example, the time lag could be about a week. The time lag in other examples could be up to about eleven weeks, given the twelve week limit on designated work cycles25 and the requirement to pay wages on a weekly basis.26 However, the longer an employee works through a designated work cycle, the lower any additional payment is likely to be. That is, because flat rates of pay, by their very nature, spread ‘lumpy’ entitlements evenly over the period of the designated work cycle. This analysis demonstrates that the time lag associated with the making of an additional payment to an employee who ceases to be paid a flat rate of pay during a designated work cycle may, in some circumstances, give rise to some detriment to a flat rate employee compared to a base rate employee. But the protections afforded to flat rate employees by the terms of clause 12.1(b), read together with Undertaking 6, will ensure the detriment is not significant. Further, I am satisfied that any such detriment is offset by the over-award benefits provided for in the Enterprise Agreement, such that all employees will remain better off overall under the Enterprise Agreement compared to the BC Award.

Casual employees

[87] The BC Award does not permit the engagement of casual employees in a production or engineering classification. 27 The Enterprise Agreement does. As was the case in CFMEU v SESLS,28 I was not addressed on the question of how a casual employee in a production or engineering classification should be compared to an employee under the BC Award for the purpose of the BOOT. Like the Full Bench in CFMEU v SESLS,29 I have assumed that the BOOT for casual employees in a production or engineering classification requires a comparison between casual employment under the Enterprise Agreement and part-time or full-time employment under the BC Award.

[88] The Enterprise Agreement entitles casual employees to be paid a 25% casual loading and the right, in particular circumstances, to request to be converted from a casual employee to a permanent employee. 30 This right to request a conversion to that of a permanent employee will assist casual employees to overcome the detriments associated with a lower level of job security.31 The 25% loading is paid on a base rate which is already at least 1% higher than the rate under the BC Award for the same classification. This weighs in favour of CoreStaff’s contention that casual employees are better off overall under the Enterprise Agreement compared to the BC Award.

Conclusion on BOOT

[89] I have had regard and given due weight to the terms of the Enterprise Agreement which are more beneficial for employees covered by the Enterprise Agreement and the terms which are less beneficial for such employees compared to the BC Award. Many of those more beneficial and less beneficial terms are specifically addressed in this decision, while others are identified in the F17 and the submissions made by CoreStaff and the CFMMEU in this matter. Having regard to all those matters, together with the Undertakings, my overall assessment is that, as at the test time, each award covered employee, and each prospective award covered employee, would be better off overall if the Enterprise Agreement applied to them than if the BC Award applied to them. I am particularly persuaded by my assessment that although the rates of pay under the Enterprise Agreement are only 1% higher than the rates of pay under the BC Award for some classifications of employees, both the Enterprise Agreement and the BC Award provide the same, or materially similar, benefits in many respects and the higher rates of pay and other over-award benefits under the Enterprise Agreement outweigh the few less beneficial terms (which are not particularly significant) in the Enterprise Agreement compared to the BC Award.

Genuinely agreed

General principles

[90] Section 180(5) requires an employer to take all reasonable steps to ensure that the terms of the enterprise agreement, and the effect of those terms, are explained to the relevant employees. Further, the explanation must be provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

[91] The purpose of the requirement in s 180(5) is to ensure that employees are as fully informed as is practicable about the terms and effect of the terms of a proposed enterprise agreement before voting on it. 32

[92] There is no legislative or other requirement that in every case an employer must explain to its employees the differences between the terms of a proposed enterprise agreement and an existing enterprise agreement or underlying award. Whether such an explanation is required for an employer to satisfy its obligation under s 180(5) of the Act to take all reasonable steps to ensure that the terms of the proposed enterprise agreement, and the effect of those terms, are explained to relevant employees, will depend on the circumstances. 33 The focus of the enquiry is on the steps actually taken to comply and to consider whether the steps taken were reasonable in the circumstances and whether these were all the reasonable steps that should have been taken in the circumstances.34 This directs attention to the content of the explanation given to employees.35

[93] It is also necessary to consider the content of the explanation given to employees about the terms of the enterprise agreement and the effect of those terms, in order to be satisfied that the enterprise agreement was “genuinely agreed to” within the meaning of s 188(1)(c) of the Act. 36 The agreement of the relevant employees may not be genuine where, for example, misleading information was provided or the explanation was otherwise deficient in a material way.37

Explanation re casual employees

[94] Before turning to the evidence concerning the explanation given to the employees who voted on the Enterprise Agreement, I will address an issue which the CFMMEU describes in its submissions as a, or perhaps the, “key issue” in this case.

[95] There is no doubt that during bargaining, and in the lead up to the vote for the Enterprise Agreement, Corestaff advised the 11 employees who were asked to approve the Enterprise Agreement that their employment status was “casual” and that the enterprise agreement which currently applied to them, the CoreStaff NSW Enterprise Agreement 2014 (2014 Agreement), allowed for them to be employed on a casual basis. The CFMMEU submits that this was a fundamental mischaracterisation of the employment status of these employees and/or their employment entitlements.

[96] As to the employment status of the 11 employees, the CFMMEU did not seek to adduce sufficient evidence of the kind I would need in order to make a finding as to whether the 11 employees, or any of them, were casual employees at law at the time the terms of the Enterprise Agreement were explained to them and they voted on the Enterprise Agreement. 38 Such evidence would include the hours of work, rosters, work patterns, contractual arrangements and the like for the 11 employees in question.

[97] The CFMMEU contends that, even assuming the 11 employees were engaged under a contract in a manner that has been described by the parties as “casual” employees, they are entitled under the 2014 Agreement to all the benefits afforded to permanent ongoing employees under the BC Award as it stood at the time the 2014 Agreement was entered into. 39 The CFMMEU contends that it was imperative to understanding their position and providing genuine agreement that the employees understood this aspect of their entitlements, but they could not have done so because CoreStaff did not tell them that they were entitled under the 2014 Agreement to all the benefits afforded to permanent ongoing employees under the BC Award as it stood at the time the 2014 Agreement was entered into.

[98] The CFMMEU’s contention that the “casual” employees covered by the Enterprise Agreement are currently entitled to all the benefits afforded to permanent ongoing employees under the BC Award (as it stood at the time the 2014 Agreement was entered into) is premised on its arguments as to the proper construction of the 2014 Agreement. In particular, the CFMMEU points to clauses 5.1 and 5.2 of the 2014 Agreement, which make clear that all relevant award terms are incorporated into the 2014 Agreement, and clause 5.3, which states that where there is any inconsistency between a term of the 2014 Agreement and the relevant award that the term of the 2014 Agreement “shall prevail to the extent of the inconsistency”. The CFMMEU also points to the main body of the 2014 Agreement, which does not contain a “Types of Employment” clause. Further, it has no clauses providing for specific employment conditions in relation to casual employees, no casual loading, no minimum hours and indeed few conditions of employment at all for any employees. The reference to casual employment in the main body of the 2014 Agreement is only in relation to coverage in clause 3. The vast and overwhelming majority of entitlements provided for by the 2014 Agreement are obtained through a mechanism of incorporation of 122 industry awards. In this way, the CFMMEU submits that the reference to casual employees in the coverage clause of the 2014 Agreement can only be construed as intended to be a reference to casual employees where the incorporated award made provision for casual employees.

[99] Because the BC Award does not permit the employment of casual employees in a production or engineering classification, 40 the CFMMEU submits that there is no provision in the 2014 Agreement for casual employment of employees in a production or engineering classification in the black coal mining industry.

[100] The CFMMEU also submits that the application of the terms of the incorporated awards in relation to the 2014 Agreement was made express in correspondence in support of the approval of the 2014 Agreement filed on CoreStaff’s behalf by the Australian Industry Group on 31 October 2014. The letter to the Commission dated 31 October 2014 states:

“The agreement is better off overall when compared to the 122 modern awards which are incorporated into the Agreement by virtue of Schedule A of the Agreement. CoreStaff did thoroughly consider the terms of the Agreement as compared to these reference instruments and is of the view that every employee and prospective employees better off overall under the Agreement when compared to any of the modern awards, due to the 0.5% per hour above award wage entitlement. No other term of the modern awards are intended to be circumvented by the Agreement. As such, an employee covered by the Agreement will be entitled to all applicable modern award terms plus the 0.5% above award payment per hour that is payable under the Agreement.”

[101] It follows, so the CFMMEU contends, that the employees who are described by CoreStaff as “casual” and who comprised the entire cohort of employees who voted on the Enterprise Agreement are presently, and have been during the life of the 2014 Agreement, entitled to all of the benefits that apply to permanent production and engineering employees under the BC Award. That allows no exclusion of leave etc. on the basis that those employees were “casual”. The CFMMEU submits that employees voting on the Enterprise Agreement, which will introduce casual employment and remove the rights of permanent employees for those employees, must have had that explained to them for a finding to be made that (a) all reasonable steps were taken to explain the Enterprise Agreement and (b) the Enterprise Agreement was genuinely agreed to by the employees who voted on it.

[102] I do not agree with these submissions by the CFMMEU in relation to casual employees and the operation of the 2014 Agreement. Clause 3.2 of the 2014 Agreement states that it “binds… all casual, fixed term or permanent (full-time or part-time) employees employed by CoreStaff and who are supplied as labour on an on-hire basis to CoreStaff’s clients in New South Wales”. Clause 5.1 of the 2014 Agreement provides that 122 modern awards, including the BC Award, are incorporated into the 2014 Agreement. Clause 5.3 provides that the 2014 Agreement prevails over a term of an incorporated award to the extent of any inconsistency. Clause 7 of the 2014 Agreement provides that employees will be paid the applicable rate of pay for their classification derived from the applicable modern award.

[103] Construing the terms of the 2014 Agreement in context and having regard to their purpose, I am of the opinion that the 2014 Agreement covers all casual (as well as permanent) employees employed by CoreStaff and who are supplied as labour on an on-hire basis to CoreStaff’s clients in New South Wales, regardless of which award, if any, they are covered by. That is the ordinary meaning of clause 3.2 of the 2014 Agreement.

[104] Clause 5 has the effect of incorporating many awards, including the BC Award, into the 2014 Agreement. The incorporation of the BC Award into the 2014 Agreement has important implications for any part-time or full-time employees employed by CoreStaff in a production or engineering classification in the black coal mining industry, because the BC Award contains many benefits for such employees. However, because there is no capacity to engage a casual employee in a production or engineering classification under the BC Award, 41 the incorporation of the terms of the BC Award into the 2014 Agreement did not result in any entitlements particular to casual employees in the BC Award being conferred on any person employed by CoreStaff as a casual in a production or engineering classification in the black coal mining industry.

[105] My conclusions in the previous two paragraphs are supported by the Full Bench’s decision in CFMEU v SESL. In that case, the relevant enterprise agreement covered “Production and Engineering staff covered by the Black Coal Mining Industry Award 2010 employed by SESLS Industrial Pty Ltd” and expressly incorporated the BC Award. Clause 9.2(b) of the enterprise agreement in that case stated that “a casual Employee will be paid the hourly rate for the Modern Award classification in addition to a loading of 25% calculated on the base rate of pay under the Modern Award”. The Full Bench observed as follows in relation to the impact of the incorporation of the BC Award on the BOOT analysis [emphasis added]:

“[43] The union also contended that full-time and part-time employees receive various benefits under the Award that exceed those in the National Employment Standards in the Act. Such benefits include enhanced notice of termination, redundancy pay, annual leave and personal leave entitlements. Of course, as the Award is incorporated into the Agreement, permanent full and part-time employees covered by the Agreement receive these benefits too. However, casual employees would not receive them, by virtue of their casual status.”

[106] Importantly, the fact that there is no capacity under the BC Award to engage a casual employee in a production or engineering classification does not mean, as the CFMMEU contends, that casual employees engaged by CoreStaff in a production or engineering classification are entitled to all of the benefits that apply to part-time or full-time production and engineering employees under the BC Award. The rights and obligations conferred and imposed by the 2014 Agreement on a casual employee in a production or engineering classification arise from the terms of the 2014 Agreement. For example, the effect of clause 7 of the 2014 Agreement is that employees (including casual employees) are entitled to the rate of pay for their classification derived from the applicable modern award plus 0.5%. 42 The classifications in Schedule A of the BC Award include, amongst others, various levels of “mineworker”, which would cover the types of employees employed by CoreStaff to work in the black coal mining industry. Accordingly, an employee (including a casual employee) of CoreStaff would be able to determine their correct classification under Schedule A of the BC Award and then work out the applicable pay rate for that classification under the BC Award. They could then add 0.5% to that pay rate to calculate their pay rate under the 2014 Agreement.

[107] Although a casual employee in a production or engineering classification in the black coal mining industry does not appear to have an entitlement to a casual loading under the terms of the 2014 Agreement, 43 that is a matter which may have been relevant to the BOOT at the time the 2014 Agreement was being considered for approval, but it does not have any particular significance in the context of the current application for approval of the Enterprise Agreement. The fact that the 2014 Agreement does not appear to confer particular entitlements on a casual employee in a production or engineering classification in the black coal mining industry such as casual loading or minimum periods of engagement does not, in my view, mean that such casual employees are entitled to all of the benefits that apply to part-time or full-time production and engineering employees under the BC Award.

[108] Further, if the CFMMEU were correct in its argument that the reference to casual employees in the coverage clause of the 2014 Agreement can only be construed as intended to be a reference to casual employees where the incorporated award made provision for casual employees, 44 it would follow that CoreStaff’s casual employees working in a production or engineering classification in the black coal mining industry would not be covered by the 2014 Agreement. Such a construction would, in my view, be contrary to the objective intention of the makers of the 2014 Agreement, as is evident from the provisions of the 2014 Agreement discussed above.

[109] For the reasons given and on the evidence adduced in these proceedings, I reject the contentions that:

(a) there has been a fundamental mischaracterisation of the employment status of CoreStaff’s casual employees and/or their employment entitlements;

(b) CoreStaff’s casual employees were misled about their status or their entitlements when the terms of the Enterprise Agreement and their effect were explained to them;

(c) CoreStaff failed to take a reasonable step by not informing their casual employees in the period leading up to the vote for the Enterprise Agreement that they were entitled to all of the benefits that apply to part-time or full-time production and engineering employees under the BC Award; or

(d) the Enterprise Agreement was not genuinely agreed to by CoreStaff’s employees as a result of misleading or incorrect information being provided to them in connection with their employment status and/or their employment entitlements.

Evidence in relation to explanation provided to employees

[110] Mr Button gave detailed evidence in his witness statement 45 in relation to the explanation given to CoreStaff’s employees about the terms of the Enterprise Agreement and the effect of those terms. His evidence in that regard was not seriously challenged by the CFMMEU, and I accept it as reliable and truthful, including the hearsay evidence which Mr Button gave in relation to what he was told by Mr Torran James, CoreStaff’s Client Relationship Manager - New South Wales, about his communications with CoreStaff employees placed at the Ravensworth mine. The relevant parts of Mr Button’s witness statement, including the annexures thereto, are in the following terms:

“3. CoreStaff is a provider of specialist labour hire and recruitment services to large mining and energy, manufacturing, transport and construction organisations across New South Wales. Our employees that will be covered by the CoreStaff NSW Black Coal Mining Industry Enterprise Agreement 2018 (the Agreement) are placed at CoreStaff client sites across the Hunter Region, including at Liddell Coal (Liddell) and the Ravensworth Open Cut mine (Ravensworth).

Commencement of Bargaining

4. I, along with Torran James, CoreStaff's Client Relationship Manager- New South Wales, represented CoreStaff in the negotiations with our employees for the Agreement. At the time of commencement of bargaining, CoreStaff employed 12 employees (the Employees) who would be covered by the Agreement.

5. On 8 August 2018, I telephoned the seven of these Employees who were placed at Liddell. I explained to each of the Employees that CoreStaff was commencing bargaining for the Agreement and that, as they would be covered by the Agreement, I would be sending them an email with a Notice of Employee Representational Rights (NERR) which set out information about bargaining and also how they could appoint a bargaining representative. I am informed by Mr James that on that day he telephoned the five Employees who were placed at Ravensworth and provided them with the same information. Later that day I emailed a copy of the Notice of Employee Representational Rights to each of the Employees.

6. On 11 August 2018, I emailed a proposed draft Agreement to the Employees, along with a copy of the Black Coal Mining Industry Award (the Award), a letter about the Agreement and another letter summarising the key differences between the Agreement and the Award and a flat rate calculator relevant to each Employee’s rate of pay which demonstrated how the flat rate would be built up.

Attached and marked AB-1 is a copy of the EA Summary Letter.

Attached and marked AB-2 is a copy of the letter summarising the differences between the Agreement and the Award.

Attached and marked AB-3 is an example of the flat rate calculator provided to each of the Employees.

On-Site Meetings

7. On 14 August 2018, I telephoned the Employees placed at Liddell to confirm that I would be on site on 15 and 17 August 2018 to discuss the Agreement and that we would also be holding an off-site information session on the Agreement on 23 August 2018, prior to the vote. I asked each of the Employees if they had any initial questions about the Agreement so I could prepare for the meeting, but none of the Employees raised any questions.

8. I am informed by Mr James that he had a similar conversation with the Employees placed at Ravensworth confirming his attendance on site there on 16 August 2018 and the details for the offsite meeting on 23 August 2018 and that he also did not receive any questions.

9. On 15 August 2018, I attended at Liddell and met with 5 of the Employees placed there from around 5.30am. Although I refer to these meetings as ‘pre-start meetings’ in the Form F17 filed with the application for the approval of the Agreement, the meeting on 15 August 2018 was not a short ‘toolbox’ type meetings as the use of that term might imply but rather longer conversations with each of the Employees as they came into the crib room before work. The Employees’ actual ‘toolbox’ pre-start before their shift took place from 6.45am to 7.00am and I then had additional discussions with the Employees before they were allocated to their truck for that day’s work. I was on site until around 8.30 am.

10. One of the Employees placed at Liddell who had been issued the NERR, Cody Boan, had resigned to care for his sick mother and so he did not attend the information session. The other Employee placed at Liddell, Dave Ball, was not rostered that day. I spoke to Mr Ball on 17 August 2018 as I detail further below.

11. During these meetings I used the EA Summary letter, attached as AB-1, as my opening script to explain the purpose of the Agreement, the Employees’ current coverage under the 2014 Agreement, the need to demonstrate and prove to the Commission that all of our Employees would be better off under the Agreement than the Award. I explained to Employees that by voting ‘yes’ for the Agreement they would be agreeing that they thought the Agreement was a better deal for them than the Award. I then went through the letter comparing the Agreement to the Award, as attached as AB-2.

12. I noticed that three of the Employees, Josh Davis, Anthony Pascoe and Lyssa Siderius, had marked-up their copy of the Agreement with notes and highlighting and so I offered an opportunity for the Employees to ask questions about the Agreement. I recall that Mr Davis, Mr Pascoe and Ms Siderius asked questions about the following matters (although I do not specifically recall who asked what question):

a. the calculation of the Flat Rate in the Agreement and I ran through the calculations at the back of the Agreement to demonstrate how the rate was calculated;

b. when their rate of pay was likely to increase, and I referred to clause 12.3 of the Agreement and explained the wage increases;

c. the different classifications in the Agreement and what level they were currently on and I explained the levels in the Agreement and what competencies were required to progress;
d. maintenance of existing overtime rates and I explained and referred to clause 26.2 of the Agreement to confirm that these would not change;

e. conversion of casual to permanent employment and the circumstances in which CoreStaff might refuse that conversion; and

f. conversion to permanent employment with CoreStaff’s client at Liddell, Glencore, and I confirmed that this was a process that was between Glencore and CoreStaff but did not form part of the Agreement.

g. The Employees also asked me about the voting process and I confirmed that the vote was to be on 31 August 2018 and that there would be an email voting option as well as hard copy voting slips and a locked box on site for those Employees who did not have access to email. I explained that prior to the vote there was a 7 day access period in which the Employees would have an opportunity to review the final draft of the Agreement and have any outstanding matters explained to them. I reminded the Employees of the further off-site meeting on 23 August 2018.

14. I am informed by Mr James that he attended Ravensworth on 16 August 2018 from 5.30am to 8.00am and that he met with four Employees before their scheduled 6.45am pre-start meeting. Mr James has informed me that he provided hard copies of the emailed materials to these Employees and used the EA Summary letter as an introduction and then also explained the differences between the Agreement and the Award document. I am also informed by Mr James that he offered an opportunity for the Employees to ask questions and the Employees asked about conversion from casual to permanent employment and the entitlements to annual leave and sick leave that would be provided on that conversion.

15. There was another Employee who was to be placed at Ravensworth from 16 August 2018, Lisa Lambkin, and who was provided with the NERR and other material as I refer to above in anticipation of her being involved in the bargaining. However Ms Lambkin ultimately found fulltime employment elsewhere and did not end up starting at Ravensworth…

AB-1

Dear CoreStaff Employees

As you consider our proposed Black Coal Mining Industry Agreement we would like to provide you every opportunity to discuss any questions directly with us. I will be available for face-to-face meetings during the next 7 days, as well as available any time via phone.

The purpose of this agreement is far broader than wages. It is to provide certainty to our employees that we will provide minimum conditions of employment including a safe working environment and pathways to permanent employment. As you’re currently paid above agreement rates that will be protected, there are a number of other potential benefits to this agreement for you.

Some of the key areas of the agreement include;

• 11.4 provides a casual conversion to pathway for CoreStaff casual employees to get into permanent roles

• 12.1 and 12.3 provides the minimum rates and annual increases. As you are aware market rates are often higher than these rates and vary from job to job. This agreement does not mean that you be paid the rates in the agreement, they are just a minimum

• 12.5 ensures that your current rate of pay will not go down when the is agreement is ratified. You will continue at your current rate, however we are negotiating with our client to get the rates at Liddell increased

• 14 is a site bonus for employees once the agreement is ratified

• 19 outlines our PPE requirements ensuring that you will be provided with the right clothing

• 26 and 35 provides for unrostered overtime and unrostered public holidays. If you work unrostered time you will get higher rates…

AB-2

Dear CoreStaff Employees

As you consider our proposed Black Coal Mining Industry Agreement we would like to provide you every opportunity to discuss the agreement directly with us so we can explain its effect on you and give you an opportunity to raise any questions you might have.

I will be conducting face-to-face meetings on during the next 7- 14 days. I am also available any time via phone to discuss the agreement.

The purpose of this agreement is far broader than wages. It is to provide certainty to our employees that we will provide minimum conditions of employment including a safe working environment and pathways to permanent employment.

Before voting on this agreement there are a number of key issues that we need you to consider about the agreement and the effect it will have on you in your employment with CoreStaff.

1. Currently the CoreStaff NSW Enterprise Agreement 2014 applies to your employment. That Agreement will continue to apply to you until it expires and, after expiry, until we have a new one in place.

However, the existing agreement is not a black coal industry specific one and we believe that an industry specific agreement better serves our requirements as well as provide better certainty and protection for you, our employees, by providing conditions of employment that are directly relevant to your industry.

For this reason, we will apply the terms of the Black Coal Mining Industry Agreement to you from 7 days after its approval by the Fair Work Commission.

2. The Black Coal Mining Industry Award (BCMIA) covers your employment with CoreStaff and would apply to you if there was no enterprise agreement. Unlike every other Modern Award, the BCMIA does not have any provision for production and engineering employees to be engaged on a casual basis, though it does allow staff employees to be engaged as casuals. Hence the requirement for employers who want to engage production and engineering employees engaged on a casual basis to have an Enterprise Agreement, whose purpose is to alter the terms of the Award to better suit the needs of employers and employees in a particular enterprise.

There are a number of differences between our proposed Agreement and the BCMIA. The major difference is the inclusion of casual employment.

For the Agreement to be approved, CoreStaff needs to demonstrate that our employees would be better off under it than they would be if they were engaged under the BCMIA. Given the BCMIA doesn’t provide for casuals, we need to demonstrate our casuals will be better off than if they were engaged as permanent part time employees under the BCMIA. The steps we’ve taken to ensure this are outlined below.

3. When you vote on the Agreement you need to consider that the Agreement does not just cover you as an existing employee, but will also cover all other current and any future employee of CoreStaff who are deployed to work in Production or Engineering roles on a CoreStaff client site in NSW that would otherwise be covered by the BCMIA.

By voting yes you are approving the Agreement and effectively agreeing that it is a better deal for you than you would have if employed under the BCMIA, but you should carefully consider whether you feel that other people would also be better off in the future, based on your knowledge of the industry.

You should feel free to seek any advice you might need to assist you in making your decision. Also, as above, if you have any questions at all, please don’t hesitate to raise them with me.

In order to assist you, the following table illustrates how our proposed Agreement is different from the BMCIA, and how that will benefit or otherwise effect you.

Attached to this communication you will also find a rate build up as outlined in clause 12.1 of the Agreement, demonstrating how the flat rate of pay you are currently being paid is calculated for the roster you currently work, and how you are no worse off compared to being a base rate employee. You can also find an example calculation in Schedule 1 of the Agreement. This is designed to help you understand how we would calculate flat rates for you, and for future employees, if work is performed on a different roster to your current one.

Unfortunately, without an Enterprise Agreement, employers are unable to offer casual opportunities in the black coal industry. We are fortunate that you will be able to continue employment under our existing Agreement, however we believe that the proposed industry specific Agreement will provide a greater benefit to you and better suit our needs and yours…

AB-3

”

[111] I also accept the oral evidence given by Mr Button in relation to the explanation provided to CoreStaff’s employees about the terms of the Enterprise Agreement and the effect of those terms. Again, his evidence in that regard was not seriously challenged by the CFMMEU. Mr Button’s oral evidence included that:

(a) the terms of the Enterprise Agreement did not change from when the draft Enterprise Agreement was first provided to employees on about 11 August 2018 and when the vote took place on 31 August 2018;

(b) Mr Button emailed the relevant documents to all 11 employees who voted on the Enterprise Agreement. 46 Each of those employees responded to Mr Button’s email to inform him that they had received the documents;

(c) Mr Button was primarily responsible for explaining the terms of the Enterprise Agreement to the six CoreStaff employees who were placed to work at the Liddell mine. Mr James was primarily responsible for explaining the terms of the Enterprise Agreement to the five CoreStaff employees who were placed to work at the Ravensworth mine. However, Mr Button had telephone conversations with some of the CoreStaff employees who were placed to work at the Ravensworth mine in relation to the terms of the Enterprise Agreement;

(d) at the meeting Mr Button held with employees at the Liddell mine on 15 August 2018, Mr Button started discussions at 5:30am and was on site until about 8:30am. Some employees attended the meeting at 5:30am, while others arrived between 5:30am and 6:30am. During that meeting, the employees were present to discuss the Enterprise Agreement with Mr Button; they were not preparing for their shift on that day;

(e) the Liddell mine and the Ravensworth mine are owned by Glencore. CoreStaff supplies labour to those two mines for Glencore. A requirement imposed by Glencore is that any employees supplied by CoreStaff to work at those mines must have a minimum of 18 months mining experience in the past two years and relevant competencies. Accordingly, each of the employees who voted on the Enterprise Agreement was experienced in the black coal mining industry, although many of them have in the past been covered by enterprise agreements and have not had the BC Award applied to them for some period or at all;

(f) four of the six employees placed by CoreStaff at the Liddell mine at the time of the vote had between 8 and 15 years’ experience in the black coal mining industry; and

(g) most of the employees who voted on the Enterprise Agreement are in the age range of late 30’s to 55.

CFMMEU’s submissions re explanation given to employees

[112] The CFMMEU submits that Mr Button’s evidence does not contain information in sufficient detail for the Commission to find that all reasonable steps were taken to explain the terms of the Enterprise Agreement and the effect of those terms to employees.

[113] The CFMMEU also submits that the three-page explanatory document attached to Mr Button’s Form F17 statutory declaration is highly problematic for the following reasons.

[114] First, the explanation in the document appears to contain a reference to only 10 clauses or sub–clauses of the Enterprise Agreement. There is no reference to any of the entitlements in the Enterprise Agreement that are less beneficial than under the BC Award. Nor is there any reference to other differences between the two documents, such as the BC Award provisions dealing with the excess accrual of annual leave, the cashing out of annual leave and personal leave and the availability of time off in lieu, whereas the Enterprise Agreement contains no such provisions. The CFMMEU relies on a number of decisions of Full Benches of the Commission where a failure to explain less beneficial terms has been found to be decisive in the Commission’s decision to refuse an application for approval of an enterprise agreement, including AWU v Professional Traffic Solutions Pty Ltd 47 and CFMMEU v Dawsons Maintenance Contractors Pty Ltd.48

[115] Secondly, the explanatory document does not deal with the conditions contained in the currently applying industrial instrument, namely the 2014 Agreement, apart from what the CFMMEU contends is a misleading suggestion that under the 2014 Agreement, the employees asked to approve the Enterprise Agreement could be treated as casuals. Further, the explanatory document describes as “benefits” of the Enterprise Agreement over the BC Award the conversion from casual to permanent employment and casuals being paid a minimum four hours for wet weather events.

[116] Thirdly, the five meetings held with employees appears to be a reference to meetings held during bargaining. Each of the meetings were not attended, and could not be attended, by all employees. The CFMMEU contends there is insufficient detail of what explanation was provided at those meetings.

[117] Fourthly, the CFMMEU contends that CoreStaff managers “making themselves available” to answer questions at off-site sessions, in the employees’ own time, does not discharge an obligation to take all reasonable steps to explain the Enterprise Agreement. The two meetings, scheduled for 23 August 2018 and 27 August 2018, appear to be the only meetings scheduled following the end of the “bargaining” period and the formal request to approve the Enterprise Agreement. The evidence in the Form F17 statutory declaration is that one employee attended on 23 August 2018 and none on 27 August 2018.

[118] Fifthly, the contact by “a representative of CoreStaff Management” by telephone over the period 8 August to 30 August 2018 includes contacts during the bargaining period when the document distributed was described as a draft. The CFMMEU contends that little, if any, information has been lodged regarding the content of any discussions purportedly held.

[119] Sixthly, as to CoreStaff’s contention that the employees are “experienced in the Black Coal Mining Industry”, the CFMMEU submits there is little material lodged by CoreStaff to support such a contention and nothing that the Commission could rely on to make an assessment of the familiarity of the employees with either the 2014 Agreement or the BC Award.

[120] Seventhly, the explanation in the document does not contain any reference to those parts of the Enterprise Agreement that are detrimental as compared to the NES.

[121] Eighthly, the three-page explanation document, on its third page, incorrectly explains that the BC Award “does not contain any minimum provision of clothing” whereas the Enterprise Agreement does. The CFMMEU contends that this is clearly contrary to the “Work Clothing and Safety Boots” allowance provided in clause A.8 of the BC Award. Indeed, that allowance provides reimbursement for a new pair of safety Boots each 12 months, which the CFMMEU submits is potentially of greater benefit than the Enterprise Agreement’s provision concerning boots.

[122] The CFMMEU also contends that the matters the subject of the other Undertakings were never explained to the employees and the giving of those undertakings cannot remedy the earlier failure to explain relevant matters.

CoreStaff’s submissions re explanation to employees

[123] CoreStaff submits that Mr Button’s evidence makes clear that:

(a) an explanatory document was provided to employees which contains, amongst other things, a comparison between the Enterprise Agreement and terms of the BC Award;

(b) five meetings were held with the employees covered by the Enterprise Agreement to explain to the employees the terms of the proposed Enterprise Agreement and they were attended by all 11 employees covered by the Enterprise Agreement;

(c) CoreStaff managers also made themselves available at off-site sessions on 23 August and 27 August 2018 to allow employees to ask additional questions about the Enterprise Agreement;

(d) a representative of CoreStaff management contacted all employees covered by the proposed Enterprise Agreement individually by telephone over the period 8 August to 30 August 2018 to discuss questions raised and further explain the terms of the Enterprise Agreement to employees; and

(e) the employees covered by the Enterprise Agreement are experienced in the black coal mining industry and have had explained to them that they would be voting on the Enterprise Agreement as a current employee but should also consider that it would cover future employees.

[124] CoreStaff accepts that the explanatory document did not identify all differences between the BC Award and the Enterprise Agreement. CoreStaff also accepts that the explanatory document did not specifically address the NES issues identified by the CFMMEU.

[125] CoreStaff submits that any deficiency in its explanation of the terms of the Enterprise Agreement and their effect to employees is a minor procedural error of the type contemplated by s 188(2)(a) of the Act. CoreStaff also contends that the omissions identified by the CFMMEU will, in many cases, only impact on employees in very limited circumstances and/or arise from an overly technical and pedantic interpretation of the relevant provisions.

[126] CoreStaff further submits that, in all the circumstances, the employees covered by the Enterprise Agreement were not likely to have been disadvantaged by any such minor procedural error. The underlying purpose of s 180(5) of the Act was identified in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 49 to be ensuring that employees understood the effect of the Enterprise Agreement, enabling them to make an informed decision, and ensuring that particular classes of employees are able to understand the Enterprise Agreement notwithstanding any particular circumstances or needs.50 All the employees in the present case are experienced in the black coal mining industry and were provided with a copy of the BC Award for their consideration, along with the Enterprise Agreement. In such circumstances, CoreStaff submits it is not likely that these employees were disadvantaged by the error.

Consideration re explanation given to employees and genuinely agreed

[127] On the basis of Mr Button’s evidence, I am aware of a substantial part of the content of the explanation provided by CoreStaff to its employees in relation to the Enterprise Agreement and the effect of its terms.

[128] In light of Mr Button’s evidence that the terms of the Enterprise Agreement did not change from when the draft Enterprise Agreement was first provided to employees on about 11 August 2018 and when the vote took place on 31 August 2018, the discussions Mr Button and Mr James had with employees about the terms of the Enterprise Agreement, and the effect of those terms, during the whole of that period are relevant to the question of whether CoreStaff took all reasonable steps to ensure that the terms of the Enterprise Agreement, and the effect of those terms, were explained to employees.

[129] Notwithstanding the fact that CoreStaff did not provide employees who voted on the Enterprise Agreement with an explanation of all the differences between the Enterprise Agreement and either the BC Award or, more relevantly, the 2014 Agreement, and did not explain the ways in which the Enterprise Agreement is less beneficial than the BC Award or the NES, I am satisfied that CoreStaff complied with its obligation under s 180(5) of the Act to take all reasonable steps to ensure that the terms of the Enterprise Agreement, and the effect of those terms, were explained to the employees, and the explanation was provided in an appropriate manner taking into account the particular circumstances and needs of the employees. My reasons for reaching this state of satisfaction may be summarised as follows:

(a) CoreStaff explained the terms of the Enterprise Agreement, and the effect of its main terms, to employees in writing and orally. Some of the oral discussions took place in person, while others took place by telephone. The discussions took place across a range of days and times of the day. Although employees were not paid to attend meetings in which these discussions took place, they were held outside the hours they were required to work to enable employees to attend;

(b) CoreStaff provided the employees with a copy of the BC Award, together with the Enterprise Agreement, the flat rate calculator, and a letter summarising the key differences between the Enterprise Agreement and the BC Award, prior to discussing the Enterprise Agreement with the employees;

(c) CoreStaff answered the questions asked by the employees about the Enterprise Agreement and the effect of its terms;

(d) Mr Button went through the flat rate calculations in the examples at the end of the Enterprise Agreement with employees to demonstrate how the rate was calculated;

(e) each of the employees is experienced in the black coal mining industry and comes from an English speaking background; 51

(f) none of the employees are under 21 years of age, four of them are over 45 years of age, 52 and most of them are in the age range of late 30’s to 55;53

(g) for the reasons set out above, the terms of the Enterprise Agreement which are less beneficial for employees than the BC Award are not, in my assessment, particularly significant, whether considered in isolation or collectively;

(h) for the reasons set out above, the Enterprise Agreement does not contain many terms that are less beneficial than the NES and where they are less beneficial, the difference is not significant; and

(i) the 2014 Agreement applied to the employees at the time they voted on the Enterprise Agreement and would have continued to apply to them had the Enterprise Agreement not been voted up and approved. Accordingly, in order for those employees to understand the impact of voting in favour of the Enterprise Agreement, the differences between the Enterprise Agreement and the 2014 Agreement were more important than the differences between the Enterprise Agreement and the BC Award. The Enterprise Agreement is more beneficial than the 2014 Agreement in many respects for casual employees in a production or engineering classification in the black coal mining industry. For example, the Enterprise Agreement requires the payment of a 25% loading to casual employees in a production or engineering classification in the black coal mining industry whereas the 2014 Agreement does not and the Enterprise Agreement includes a casual conversion clause for casual employees in a production or engineering classification in the black coal mining industry whereas the 2014 Agreement does not for such employees.

[130] In expressing the opinions contained in the subparagraphs [129(g) and (h)], I am cognisant of the fact that an undertaking given during the enterprise agreement approval process to address a potential BOOT or NES issue cannot be relied on to overcome a deficiency in an explanation, or lack thereof, given to employees in the period leading up to a vote on an enterprise agreement.

[131] Also relevant to the question of whether the Enterprise Agreement was genuinely agreed to by the employees, is that on 23 August 2018, CoreStaff notified its employees of relevant voting information in relation to the Enterprise Agreement 54 and the notice stated, inter alia, that a “copy of the Agreement and incorporated modern award has already been provided to you”. The Enterprise Agreement does not incorporate the BC Award or any other modern award. Accordingly, to the extent that the notice referred to an “incorporated modern award” it was misleading. However, earlier correspondence from CoreStaff to the employees made clear to employees that the BC Award would not apply to them if the Enterprise Agreement was made.55 That is also apparent from clause 5 of the Enterprise Agreement. In all the circumstances, I do not consider the reference to an “incorporated modern award” in the notice dated 23 August 2018 provides reasonable grounds for believing that the Enterprise Agreement has not been genuinely agreed to by the employees. Further, I am satisfied that there are no other reasonable grounds for believing that the Enterprise Agreement has not been genuinely agreed to by the employees.

[132] In light of my conclusion that CoreStaff took all reasonable steps to ensure that the terms of the Enterprise Agreement, and the effect of those terms, were explained to employees, I do not need to address CoreStaff’s alternative argument that any deficiency in its explanation was a minor procedural error within the meaning of s 188(2) of the Act.

Liability to civil penalty

[133] The CFMMEU submits that clause 16 of the Enterprise Agreement purports to allow CoreStaff to make deductions from wages, including “any amount for unauthorised absences, unpaid leave or monies owing to CoreStaff”. CFMMEU contends that the clause appears to allow CoreStaff to make deductions contrary to s 323 in a manner not provided for in s 324 of the Act, which is a civil penalty provision.

[134] Section 192 of the Act provides the Commission with a discretion to refuse to approve an enterprise agreement where compliance with its terms would lead to “a person being liable to pay a pecuniary penalty in relation to a contravention of a law of the Commonwealth”. The CFMMEU submits that it would be consistent with the objects of the Act for the Commission to exercise its discretion not to approve an Enterprise Agreement which on its face purports to allow deductions to be made which are prohibited by the Act.

[135] I am satisfied that Undertaking 7 addresses the concern raised by the CFMMEU. It will ensure that CoreStaff cannot use clause 16 of the Enterprise Agreement to make deductions contrary to s 323 in a manner not provided for in s 324 of the Act.

Undertakings

[136] In accordance with s.190(3) of the Act, I may only accept the Undertakings if I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Enterprise Agreement; or

(b) result in substantial changes to the Enterprise Agreement.

[137] The Undertakings have been provided to address various issues identified by the Commission and the CFMMEU. The purpose of the Undertakings is to provide additional protection and/or benefits to employees. I am satisfied that accepting the Undertakings would not be likely to cause financial detriment to any employee covered by the Enterprise Agreement.

[138] As to whether the effect of accepting the Undertakings would be likely to result in substantial changes to the Enterprise Agreement, it is necessary to consider the number and breadth of the Undertakings. 56

[139] CoreStaff has provided 14 separate Undertakings to the Commission. They have been provided to address concerns raised about the NES, differences between the Enterprise Agreement and the BC Award to address BOOT issues, and to afford additional protections to employees in circumstances where the provision(s) in the Enterprise Agreement to which the protections relate are either ambiguous or give rise to the possibility that, in some circumstances, employees could be subjected to a detriment as compared with the BC Award or NES. Having carefully considered each of the 14 Undertakings individually and collectively, I am satisfied that the effect of accepting them would not be likely to result in substantial changes to the Enterprise Agreement.

[140] In accordance with section 190(2) of the Act, I am satisfied that the Undertakings will meet the concerns I have identified above in relation to whether the Enterprise Agreement meets the requirements set out in sections 186 and 187 of the Act.

[141] I am not aware of any person who is a bargaining representative for the Enterprise Agreement. Notwithstanding this, I have sought, received and considered the CFMMEU’s comments in relation to the Undertakings.

[142] Pursuant to subsection 190 of the Act, I accept the Undertakings.

Satisfaction of other requirements

[143] Subject to the Undertakings, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[144] The Enterprise Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 July 2019. The nominal expiry date of the Enterprise Agreement is 24 June 2023.

DEPUTY PRESIDENT

Appearances:

C Brown, solicitor, for the applicant

A Kentish, for the CFMMEU

Hearing:

2019.

Newcastle:

24 May.

Annexure A

 1   Section 114 of the Act

 2   Four yearly review of modern awards [2015] FWCFB 5771 at [121]-[128]

 3   Section 190(1) of the Act

 4   Section 186(2)(c) of the Act

 5   Section 191(1) of the Act

 6   s.186(2)(d) of the Act

 7   s.193(6) of the Act

 8   [2010] FWAFB 9985 at [41]

 9   SDA v Beechworth Bakery Employee Co Pty Ltd [2017] FWCFB 1664 at [12]

 10   Re Australia Western Railroad Pty Ltd T/A ARG – A QR Company [2011] FWAA 8555 at [8]; NTEIU v University of New South Wales [2011] FWAFB 5163 at [47]

 11   TWU v Jarman Ace Pty Ltd [2014] FWCFB 7097 at [28]

 12   Loaded Rates Agreements [2018] FWCFB 3610 at [100]

 13   Loaded Rates Agreements [2018] FWCFB 3610 at [115(2)]

 14   SDA v Aldi Foods Pty Ltd [2016] FCAFC 161 at [33] per Jessup J, who was in the minority but no issue was taken by the majority with this part of Jessup J’s reasons.

 15   Clause 12.3 of the Enterprise Agreement

 16   [2014] FCAFC 84

 17   Sections 106A to 106E of the Act

 18   ING Administration Pty Ltd v Jajoo PR974301 at [58]-[59]

 19   CFMEU v Wagstaff Piling Pty Ltd [2012] FCAFC at [31], are [61] & [67]

 20   (1987) 163 CLR 140 at 148-9

 21   See sections 323, 324 and 326 of the Act

 22   [2018] FWCFB 3610

 23   Clause 15.1 of the Enterprise Agreement requires employees to be paid on a weekly basis

 24   Within 72 hours of the employee ceasing to be paid a flat rate (Undertaking 6(b))

 25   Undertaking 6(e)

 26   Clause 15.1 of the Enterprise Agreement

 27   CFMEU v SESL Industrial Pty Ltd [2017] FWCFB 3659 (CFMEU v SESL) at [28]-[30] & [51]

 28   At [27]-[39]

 29   At [39]

 30   Clause 11.4 of the Enterprise Agreement

 31   CFMEU v SESLS at [40]-[46]

 32   CFMMEU v LS Precast Pty Ltd [2019] FWCFB 1431 at [52]

 33   Ibid at [53]; Diamond Offshore General Company v Baldwin & Ors [2018] FWCFB 6907 at [28]-[37]

 34   CFMMEU v LS Precast Pty Ltd [2019] FWCFB 1431 at [53]

 35   Ibid; One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [112]

 36   One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [142]

 37   Ibid

 38   WorkPac Pty Ltd v Skene [2018] FCAFC 131

 39   CFMMEU outline of submissions dated 21 May 2019 at [32]

 40   Clause 10 of the BC Award

 41   Clause 10 of the BC Award; CFMEU v SESL at [26] & [51]

 42   Similarly, the enterprise agreement in CFMEU v SESL provided for rates of pay “at least 1% more” than modern award rates

 43   Compare the enterprise agreement in CFMEU v SESL, which provided for a 25% casual loading to be paid to casual employees.

 44   CFMMEU’s submissions dated 21 May 2019 at [35]

 45   Exhibit A1

 46   Ex A1 at [6]

 47   [2018] FWCFB 6333

 48   [2018] FWCFB 2992

 49   [2019] FWCFB 318

 50   Ibid at [74]

 51   Ex A3 at [2.7] and [4.3]

 52   Ex A3 at [4.3]

 53   Oral evidence given by Mr Button

 54   Ex A1 at AB-4

 55   Ex A1 at AB-2

 56   ALDI Foods Pty Ltd v TWU [2012] FWCFB 9298 at [54]

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