Fair Work Act 2009
s.185—Enterprise agreement

Hilltop Meats Pty Ltd
(AG2022/3611)

HILLTOP MEATS PTY LTD ENTERPRISE AGREEMENT 2022

Application for approval of the Hilltop Meats Pty Ltd Enterprise Agreement 2022.

[1] An application has been made in the Fair Work Commission (Commission) for approval of an enterprise agreement known as the Hilltop Meats Pty Ltd Enterprise Agreement 2022 (Agreement). The application was made by Hilltop Meats Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

[2] The Australasian Meat Industry Employees Union (Union) says it is a bargaining representative and that the Applicant refused to recognise its status as a bargaining representative. The Applicant’s position is that the Union is not a bargaining representative and that every employee covered by the Agreement has appointed themselves or someone else as a bargaining representative. The Union opposes the application.

[3] The parties were provided with the opportunity to make submissions and the matter was listed for determinative conference on 14 October 2022, with the Applicant represented by Mr Vernier, initial T, of Counsel.

Is the Union a bargaining representative for the Agreement?

[4] Section 176 of the Act provides:

“Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.”

[5] The effect of s.176 of the Act is that the Union will be a bargaining representative for an employee who is a member of the Union unless the employee has appointed another person or revoked the Union’s status as bargaining representative pursuant to s.178A(2).

[6] Section 178A(2) of the Act provides:

“Revocation of appointment of bargaining representatives etc.

(1) The appointment of a bargaining representative for an enterprise agreement may be revoked by written instrument.

(2) If a person would, apart from this subsection, be a bargaining representative of an employee for an enterprise agreement because of the operation of paragraph 176(1)(b) or subsection 176(2) (which deal with employee organisations), the employee may, by written instrument, revoke the person’s status as the employee’s bargaining representative for the agreement.

(3) A copy of an instrument under subsection (1) or (2):

(a) for an instrument made by an employee who will be covered by the agreement —must be given to the employee’s employer…”

[7] In order to establish whether the Union is a bargaining representative for the Agreement, the Commission sought further information from the parties on a confidential basis, including the Union’s list of members covered by the Agreement and instruments of appointment for employees covered by the Agreement. These documents are the subject of confidentiality orders. The Applicant also provided a copy of an email dated 9 June 2022 from Jessica Dreverman, an employee of the Applicant within its human resources team, to Cameron Denny, Group Manager – People and Safety for the Applicant, which suggests:

•  on 7 June 2022, employees covered by the Agreement were given the notice of employee representational rights (NERR) and an instrument of appointment document where they could choose to nominate someone to represent them in bargaining negotiations;

•  any non-English speakers had a representative from their teams to “help translate what a NERR is”;

•  all employees elected employees from within the Applicant to represent them;

•  no employee elected any external party; and

•  no employee elected not to complete an instrument of appointment.

[8] Based on the documentation provided, it appeared that not every Union member covered by the Agreement had appointed an alternative bargaining representative or otherwise revoked the status of the Union as a bargaining representative. On 21 September 2022, I advised the Applicant of this and, on 28 September 2022, the Applicant provided additional instruments of appointment that had not been provided to the Commission earlier and a list of employees that included notes regarding persons for whom instruments of appointment could not be located. While confidentiality orders remain in place in relation to these documents, in the interests of transparency, I note that there is one Union member for whom an instrument of appointment has not been provided by the Applicant. In the employee list given to the Commission by the Applicant on a confidential basis, the Applicant has included a comment against this employee’s name which states:

“Form missing, evidence available that form was received and comment from worker noted Dale as rep.”

[9] The comments also state that Dale Lestrange, the person that the Applicant says is the employee’s bargaining representative, confirmed he was there when the employee “signed the nomination form”.

[10] As a result of the discrepancies, I sought to hear from bargaining representatives and a sample of employees directly about the process for appointing bargaining representatives. The Union member in relation to whom the instrument of appointment was missing was requested to attend the determinative conference but did not and the Applicant indicated that this employee did not wish to do so. While the purported bargaining representative for this employee, Mr Lestrange, also indicated to the Commission that he did not wish to be involved in the proceedings, as he is no longer an employee of the Applicant, the Applicant was able to locate Mr Lestrange during the course of the determinative conference and he gave evidence via telephone. I asked a series of questions of Mr Lestrange. In particular:

•  I asked Mr Lestrange who he was a bargaining representative for, to which he responded “for the boning room”.

•  I asked Mr Lestrange who those people were, to which he responded “there was quite a few of them. I can’t remember off the top of my head but um I believe Dane Slavin was one of them”.

•  I asked Mr Lestrange how he came to be Mr Slavin’s bargaining representative, to which he said “I was there when we both filled out the forms”.

•  I asked Mr Lestrange what forms these were and asked Mr Lestrange to describe them, to which Mr Lestrange responded “they handed out the forms for whom we want to represent in the meetings and I put down myself and Dane said “is it ok if I put you down bro” and I said “yep no worries” as he did”.

•  I asked Mr Lestrange who gave him the forms, to which he responded that it was “Jess” from “HR”.

•  I asked Mr Lestrange who collected the forms and he indicated this was also “Jess” from human resources.

[11] The Applicant’s representative then asked some questions of Mr Lestrange, including:

•  “You were appointed I think by others as a bargaining representative, is that correct?”, to which he responded “Yeah I believe so, yeah”.

•  “Do you remember agreeing to be the bargaining representative?”, to which he replied “yep I did put my hand up”.

•  “Do you remember whether you did anything else to agree?”, to which he replied “no, not that I can imagine, not that I can think of”.

•  “Do you remember whether you had to sign anything?”, to which he replied “I remember signing a lot of documents.”

[12] I did not find the evidence of Mr Lestrange to be persuasive. While he says he believes he was a bargaining representative for Mr Slavin, he could not remember “off the top of his head” who else he represented but that there was “quite a few of them”. I find this statement difficult to reconcile with the documents provided by the Applicant, which suggest that Mr Lestrange was only the bargaining representative for two employees, aside from Mr Slavin. If there was only three people whom Mr Lestrange represented, it raises questions as to why he could only remember one of them. Mr Lestrange’s evidence is also contradictory in relation to the process for being a bargaining representative. As noted above, s.176(1)(c) of the Act provides that a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement. While Mr Lestrange’s evidence was that he was there when he and Mr Slavin “filled out the forms” and that Mr Slavin asked him if it was ok if he nominated Mr Lestrange on the form, to which he agreed, Mr Lestrange was then asked:

•  “Do you remember agreeing to be the bargaining representative” to which he replied “yep I did put my hand up”; and

•  “Do you remember whether you did anything else to agree” to which he replied “no, not that I can imagine, not that I can think of”.

[13] Mr Lestrange’s evidence that he put his hand up to be a bargaining representative does not sit well alongside his earlier statement that Mr Slavin asked him to be his bargaining representative and Mr Lestrange remembered “signing a lot of documents”. In addition, the evidence does not establish that an instrument of appointment for the employee who is a Union member was one of the instruments of appointment signed by Mr Lestrange. That the Commission requested that this employee attend the determinative conference, but they did not do so, does not assist the Applicant. On the evidence before me, I cannot be satisfied that the Union member appointed, in writing, a person as his or her bargaining representative for the Agreement.

[14] I find that the Union was a bargaining representative for the Agreement. In any case, toward the end of the determinative conference, the Applicant conceded that the Union was, at some point in time, a bargaining representative for the Agreement and that it would be entitled to be covered by the Agreement in the event of its approval.

Was there genuine agreement?

[15] Among the matters that the Commission needs to be satisfied about in order to approve an enterprise agreement that is not a greenfields agreement is that, pursuant to s.186(2)(a) of the Act, the agreement has been genuinely agreed.

[16] Section 188 of the Act sets out when employees have genuinely agreed to an enterprise agreement, providing:

“When employees have genuinely agreed to an enterprise agreement         

(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre‑approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.”

[17] During the determinative conference, it was established that the key ground upon which the Union opposes the approval of the Agreement is on the basis that there was not genuine agreement. In this regard, the Union’s concerns relate to ss.180(2)(a)(ii), (5) and (6) of the Act.

Section 180(2)

[18] Section 180(2) of the Act provides that:

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

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be coveted by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials”

[19] In relation to s.180(2) of the Act, the Union submitted that the Applicant failed to make available “any other material incorporated by reference in the agreement”, as required by s.180(2), as the Agreement refers to the Meat Industry Award 2020 (Award) in clauses 4, 9.4, 19, 29.8 and 34.4. 1 The Union submitted that it appears from the ‘Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement)’ filed by the Applicant (Form F17) that the Award was not made available to employees.2

[20] In this regard:

•  clause 4 of the Agreement includes a definition of the Award;

•  clause 9.4.13 of the Agreement provides that a “regular casual Employee is a casual Employee who has over the preceding 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the Employee could continue to perform as a full-time or part-time Employee under the provisions of the Award”;

•  clause 9.4.17.1 of the Agreement provides that reasonable grounds for refusal to convert an employee from casual to full-time or part-time employment would include “that it would require a significant adjustment to the casual Employee’s hours of work in order for the Employee to be engaged as a full-time or part-time Employee in accordance with the provisions of the Award - that is, the casual Employee is not a true regular casual Employee as defined in clause 9.4.13”;

•  clause 9.4.20.2 of the Agreement provides that, where it is agreed that a casual employee will convert to part-time employment, the employer and employee must discuss and agree in writing “the matters referred to in clause 9.4.2 of the Award where that provision is applicable, or otherwise the days the Employee will be required to attend for work and the starting and finishing times for each such day”;

•  clause 19 of the Agreement provides that, under the wage rate structure, the employer undertakes that “no Employee will be paid less than the Award rate for their equivalent classification”;

•  clause 29.8 of the Agreement provides that the “10-minute rest break, referred to in the Award, has been compensated for in the Ordinary Hourly Rate of pay”; and

•  clause 34.4 of the Agreement provides that an employee required to work on a public holiday prescribed in clause 34.1 shall be paid at the “rate prescribed by the Award”.

[21] Question 21 of the Form F17 asks:

“21. What steps were taken by the employer to ensure that the relevant employees either:

a. were given a copy of the written text of the agreement and any other material incorporated by reference in the agreement during the access period, or

b. had access to a copy of the above materials throughout the access period?”

[22] In response to this question, it is declared in the Form F17 that, on 15 August 2022, being more than seven clear days of the vote that took place on 23 August 2022:

“Every employee was provided with a physical copy with the with the (sic) “HTM EA_Information Pack_15082022”. A copy was also placed in the lunch room for reading and all workers were notified that further copies could be requested from HR. Information was also communicated through Negotiation Committee Members as required.”

[23] The Applicant submitted that, while the Award is referred to in the Agreement, it is not incorporated in it and that, in any event, the Award is available to every employee on the internet as it is a public document. 3

[24] In McDonald’s Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association [2010] FWAFB 4602 (McDonald’s), the Full Bench dealt with an appeal in which the Commissioner at first instance dismissed the application on the basis that the employers did not provide employees with a copy of the National Employment Standards (NES) or South Australian long service legislation referred to in the agreement and said:

“[42] The appellants also challenged the conclusion reached. Section 180(2) requires employers to take reasonable steps to ensure that employees have access to the agreement and other incorporated documents. This will particularly relate to documents that are not otherwise in the public domain. The appellants asserted that while the Agreement refers to the NES in various respects it does not incorporate the terms of the NES into the Agreement.

[43] We have reviewed the terms of the Agreement and agree with that submission. References in the Agreement to the NES do not incorporate the terms of the NES into the Agreement. The South Australian Long Service Leave Act 1987 is however incorporated because the terms of the agreement provide for its application in Broken Hill - which is beyond its legislative effect. The benefits are greater than those provided by New South Wales legislation. The laws of the land are available to Australian citizens in a variety of ways. We find that the employer was not required to take any further steps to ensure that the relevant employees had access to the South Australian legislation. Because the legislation is freely available in the public domain, no further steps were required.”

[25] While the Award was not provided to employees by the Applicant, I am not satisfied that this impacts genuine agreement. I am not satisfied that the references to the Award in the Agreement mean that the Award is incorporated in the Agreement. Even if it was, the Award is in the public domain and is available to employees in a variety of ways and the Applicant was not required to take any further steps to ensure employees had access to it. The “EBA Negotiation Minutes” filed by the Applicant dated 1 July 2022 also indicate that employees were encouraged to look at the Award through the Fair Work Commission’s resources. The Applicant also filed witness statements for a sample of employees, including Jianliang Yang, who was a bargaining representative for the Agreement, and in his statement indicates that he read the Award on the internet. 4 Another employee, Kane Davis, who was also a bargaining representative for the Agreement and an employee for whom the Applicant filed a witness statement, stated that he reviewed the Award throughout the process of negotiating, is familiar with its terms and explained the Agreement to his team members.5

[26] Based on the material before the Commission, I am satisfied that the requirements of s.180(2) of the Act have been met.

Section 180(5) and (6)

[27] Section 180(5) of the Act provides:

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

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

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

[28] Section 180(6) of the Act provides:

“(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

(c) employees who did not have a bargaining representative for the agreement.

[29] In relation to these requirements, the Full Court of the Federal Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (One Key) said:

“113. A consideration of the subject-matter, scope and purpose of the relevant provisions of the Fair Work Act indicates that the content of the explanation and the terms in which it was conveyed were relevant considerations to which the Commission was bound to have regard. The absence of that information meant that the Commission was not in a position to form the requisite state of satisfaction. Put differently, without knowing the content of the explanation, it was not open to the Commission to be satisfied that all reasonable steps had been taken to ensure that the terms and their effect had been explained to the employees who voted on the Agreement or that they had genuinely agreed to the Agreement.

114. The following considerations point inexorably to that conclusion.

115. The Commission was required to be satisfied that OKW had taken “all reasonable steps to ensure” that both the terms and the effect of the terms had been explained to the relevant employees as an element in the inquiry as to whether “genuine” agreement had been obtained from them. The agreed purpose of the obligation imposed on employers by s 180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.

116. In order for the employer to comply with the obligation it must take into account the particular circumstances and needs of those employees, including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative. That is made explicit in s 180(6). How could the Commission decide whether the steps the employer had taken were “all reasonable steps” unless it knew what the employees had been told before they cast their votes? Without knowing the terms in which the explanation had been conveyed how could the Commission form an opinion on the sufficiency of the explanation, particularly having regard to the considerations mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine agreement had been reached without having evidence upon which it could answer both these questions?

117. As there was no evidence of these matters before the Commission, it necessarily follows that the Commission purported to be satisfied that OKW’s obligations under s 180(5) had been discharged without taking those matters into account. That was a jurisdictional error because the Commission did not have authority to make the decision unless its satisfaction had been informed by them. As is often the case, there are several ways of describing the error. It could be characterised as a misconception as to what the exercise of the statutory power entails or an error “as to an important attribute of the decision to be made”: Graham at [68]. Equally it could be seen as a misunderstanding on the part of the Commission of the nature of the opinion it was required to form: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ). Had the Commissioner applied his mind to the question of what the putative explanation entailed, he would inevitably have inquired into its content and terms.”

[30] In relation to s.180(5) of the Act, question 22 of the Form F17 asks:

“22. What steps were taken by the employer to explain the terms of the agreement, what was explained and how was the effect of those terms explained to the relevant employees?”

[31] In response to this question, it is declared in the Form F17 that:

•  On 15 July 2022, an “initial draft of all clauses (excluding monetary figure and LOC changes) was reviewed in full with the negotiation committee and each was provided with a copy for individual review. Option to receive translated versions was offered but not requested. Each negotiation committee member was then to discuss with their nominators in native languages to ensure understanding. Each cultural group and non-english (sic) speaking group had a representative on the committee that could perform this function”.

•  On 12 and 13 July 2022, management “was made available at set times immediately after work for 2 days to allow workers to come up and ask specific questions about both the Agreement itself and the overall process of bargaining. Interested individuals attended”.

•  On 26 July 2022, “[q]uestions raised through the employee consultation process were addressed in the Negotiation Committee Meeting. Each term questioned, was reviewed in full and all members agreed on final outcomes”.

•  On 15 August 2022, each “employee was provided with an information pack, containing an explanation of the bargaining process, vote information, key term variations, a copy of the draft agreement (agreed in principle), and the Fair Work Information Statment (sic)”.

[32] Question 23 of the Form F17 asks:

“23. When the employer explained the terms of the agreement, and the effect of those terms, to the relevant employees, did the employer compare the agreement to any of the following instruments?”

[33] The question prompts the person making the declaration to tick any of the options that apply and provide further information, with those options being “any enterprise agreement that currently applies”, “the modern award/s” or “none of the above”. Mr Denny, who made the declaration selected “any enterprise agreement that currently applies” and provided the following further information:

“Explained the reason for re-writing the existing Agreement and demonstrated how the new draft varied in that it was completely re-written. Highlighted key clause variations and explained the implementation of the accepted items within the Log of Claims. The existing Agreement was predominantly a replica of the Award.”

[34] Attached to the Form F17 is a document entitled “HILLTOP MEATS PTY LTD EA 2022 Team member information pack (Updated) & Proposed 2022 EA (Final)” (Information Pack). The Information Pack explains what an enterprise agreement is, includes a compiled version of items raised between parties to the negotiation and includes a heading “5. Key differences” under which the following text appears:

“As this Agreement was a complete and total rewrite of the existing Agreement, only the key differences / variations from the award have been listed here. All other variations to the existing Agreement have been explained through:

•  Negotiation Committee Meetings; and communicated to employees by committee representatives

•  Draft Agreement reviews

•  Consultation Meetings; where a member of management was available for set periods to review questions and clauses in detail with any team member that wished to attend

•  Team Announcements; where management would in addition to providing information through representatives, also make announcements about important information to the entire Production Team, allowing for additional discourse; and

•  Ad-hoc draft consultation; where any team member upon reviewing the draft Agreement provided to their representative, could approach a member of the management team involved in negotiations and ask questions.”

Section Summary

[35] A table, reproduced below, follows this text:

[36] By way of summary, the Union submitted that: 6

•  there were several changes from the Hilltop Meats Enterprise Agreement 2019 (2019 Agreement), which incorporated the Award, to the new Agreement which were never raised for the employees to consider;

•  the Applicant has failed to provide any explanation for a large number of terms;

•  the Commission must consider the content of the explanation, the way it was given with regard to all the circumstances and needs of employees, and the nature of the changes made by the Agreement. The Union relies on the decision of the Court in One Key in this regard;

•  the Applicant states that the proposed agreement is “a complete and total rewrite of the existing Agreement” and this provides a greater obligation on the Applicant to ensure all reasonable steps have been taken to explain the terms, the variation and the effect;

•  the mere reliance on committee members and meetings falls short of the evidence required to support the application; and

•  the summary of changes in the Information Pack fails to explain the terms, the variation and the impact on employees and the lack of information in critical documents such as the Information Pack fails to explain the terms, the variation and the impact on employees.

[37] In particular, the Union points to the following changes in the Agreement, which it says demonstrate that the Applicant failed to meet its obligations as required by s.188 of the Act: 7

•  The 2019 Agreement incorporates the Award whereas the proposed Agreement is silent on the incorporation of the Award. The Union says that not incorporating the Award has a substantial impact on working conditions and the failure to explain this is significant.

•  The definition of “Employee Representative” is a new definition, meaning “an employee from the Consultative Committee”. “Consultative Committee” is defined to mean the “committee established by the Employer and its Employees to provide a mechanism for discussion of workplace issues at the Establishment”. Notwithstanding this definition, it does not appear that employees are limited in their choice of representative for the purposes of consultation or the dispute resolution procedure.

•  The definition of “Week” is a new definition. The Union submitted that this is an essential definition as it has a material impact on what hours are considered ordinary hours. In particular, “Week” is defined as “Monday to Sunday inclusive”. The Union noted that the Award provides that a week for the purposes of ordinary hours is Monday to Friday unless otherwise agreed and submitted that, in the 2019 Agreement, a week is Monday to Friday.

•  Clause 6 of the Agreement establishes a consultative committee that is not in the 2019 Agreement.

•  Clause 7 is a changed clause that varies from the 2019 Agreement, which incorporated the Award consultation clause. The Union submits that clause 7.9 omits the requirement to discuss the effect of change. Clause 8.1.2 of the 2019 Agreement requires the employer to discuss “the effects the changes are likely to have on employees”. While the Agreement does not contain the same provision, it does require the employer to provide to employees “all relevant information about what the Employer reasonably believes will be the effects of the change on the Employees and information about any other matters that the Employer reasonably believes are likely to affect the employees”.

•  The Union submits clause 8.3 is unlawful as it provides a penalty of a loss of accrued entitlements for not following the dispute process and taking industrial action. The Union submits that, firstly, it is not legal to take industrial outside of bargaining, and secondly, the Commission has powers to deal with matters where the dispute process is not followed. It also submits this clause was never explained to employees. This clause provides “If an Employee or group of Employees do not follow the steps in the dispute procedure and take Industrial Action by imposing work bans or strike action of any kind, they will forfeit the right to accrue entitlements for the period they are involved in the work bans or strike/Industrial Action”.

•  Clause 9.4.11 of the Agreement provides that casual employees who work overtime or on Saturdays do not receive overtime rates. The Union submits this was not explained to employees and no information was provided in the Information Pack. The 2019 Agreement provides at clause 24.5 that employees who are required to work in excess or ordinary hours will be paid at overtime rates with clause 21.2 providing that overtime rates are to be worked Monday – Friday.

•  The Union submits the casual conversion clause has been changed, which omits the obligation of the Applicant to offer casuals who meet the criteria the opportunity to convert to permanent employment and this has a significant impact on employees’ ability to obtain secure employment. Clause 9.4 of the Agreement does however include a right to request casual conversion and the 2019 Agreement provides that the right to request casual conversion is set out in the Award.

•  Clause 12 of the Agreement is new and no reference is made in the Information Pack explaining the term or its impact. The clause deals with “Absence from Duty” and introduces notice requirements in the event of an employee’s inability to attend for work and the employee’s intention to resume work after an absence. It also introduces new evidence requirements and requirements specific to employees displaying symptoms of a food borne illness.

•  Clause 14.1.2 of the Agreement is new and no reference is made in the Information Pack explaining the term or its impact. This clause provides that the Employer may “[r]egrade and reclassify the Employee to a position other than their normal classification should the Employee be under performing, in terms of the competency, skill, attendance and/or commitment levels expected”.

•  The Union submits that clause 17 imposes individual flexibility agreements on groups of employees. I do not accept that the clause ‘imposes’ these agreements on employees but do accept that that clause is different than the clause in the 2019 Agreement with the inclusion of clause 17.1.1.5 referring to “shift allowances”. I also accept that no reference is made in the Information Pack explaining the change.

•  Clause 18.1.3 of the Agreement is new and provides that “[w]here an Employee has been assessed as competent and promoted to a higher grade, the promoted Employee shall be required to perform continually and consistently at the higher level. Failure to do so may lead to re assessment which may result in the promoted Employee being re-classified to the lower grade”. I accept that no reference is made in the Information Pack explaining the term or its impact.

•  The Union submits that the introduction of the grading levels in the Agreement is complex and confusing and the Applicant provides no evidence that the classification terms were explained to employees, nor were the variations from the 2019 Agreement or the Award disclosed. In particular, the Union submits that clause 18.3 of the Agreement does not provide for an employee in a meat processing establishment at level 2, however it is declared in the Form F17 provided that the Agreement level 2 is a level Meat Industry Level 2 employee in the Award. The Union suggests that there are elements within the classifications that are incorrectly placed. I accept that there are changes to the classification provisions of the Agreement and that these changes are not explained in the Information Pack.

•  The Union submits that clause 19 provides that some classes of employees have a reduced hourly rate or classifications and that the reference provided in the Information Pack is insufficient and incomplete to explain the terms, the variation from the 2019 Agreement and their impacts, including the financial loss to some employees. In support of this submission, the Union provided the following examples:

•  The Union submits that junior rates in the 2019 Agreement are paid at adult rates irrespective of age, however the Agreement changes this by introducing junior rates in Table 2 of clause 19. The Union submits this will have a significant impact on junior employees and no reference was made in the Information Pack explaining the term or its impact. I note it is declared in the Form F17 that there are currently three employees covered by the Agreement under the age of 21.

•  Clauses 21.2 to 21.4 of the Agreement are new and no reference is made in the Information Pack explaining the terms or their impact. Clause 21.2 appears to have the effect that higher duties payments will not take effect “unless an employee so engaged in higher duties is accredited as competent to the employer’s satisfaction in fully and safely completing the higher duties” and will not take effect “when training in a task at a higher classification then (sic) the employee’s ordinary classification”.

•  The Union submits that changes to clauses 25.1 and 25.2 of the Agreement pose a financial loss to employees under the proposed Agreement as the 2019 Agreement and the Award provide for work performed outside the spread of hours to be paid at overtime rates and that ordinary hours are performed on Monday to Friday. The proposed Agreement does not provide for this resulting in work performed outside the spread of hours being paid at an ordinary rate, and time worked on Saturday or Sunday can be ordinary hours without penalty. It is not entirely clear to me that the Union’s interpretation is what was intended by the Agreement, noting that clause 25.2 provides for the spread of ordinary hours to be worked between Monday to Friday. However, I accept that the wording has changed relative to the Award and 2019 Agreement and that the changes are not explained in the Information Pack.

•  Clause 28.6 of the Agreement is new and provides it “is the intention of the Employer to operate additional shifts, this will be no more than 16 per year. On these days each Employee is required to make themselves available to work their additional shifts, which may include Saturdays”. I accept that no reference is made in the Information Pack explaining the term or its impact.

•  Clause 31 of the Agreement is new. While the 2019 Agreement provides that personal/carer’s leave is provided for in the NES, the new clause is more comprehensive and seeks to introduce notice and evidence requirements. I accept that no reference is made in the Information Pack explaining the term or its impact.

•  Clause 32 of the Agreement is also a new provision and, whereas the 2019 Agreement provides that long services leave entitlements shall be those prescribed by the Long Service Leave Act 1955 (NSW), the new clause is different. I accept that the Information Pack does not explain the term’s effects.

•  Clause 34 of the Agreement, dealing with public holidays, has changed and I accept no reference is made in the Information Pack explaining the term or its impact.

•  Clause 35.2 and 35.3 of the Agreement, dealing with family and domestic violence, leave are new and I accept that no reference is made in the Information Pack explaining the terms or their impact.

•  Clause 36 of the Agreement, dealing with annual shutdown arrangements, is new and I accept no reference is made in the Information Pack explaining the term or its impact.

•  Clauses 37 to 41, 44 and 47 to 50 of the Agreement are new and I accept that no reference is made in the Information Pack explaining the terms or their impact.

[38] I accept that the changes to the Agreement are significant and there is no document provided to employees that would satisfy me that the terms of the Agreement or the effect of those terms resulting in many of these significant changes have been explained to employees.

[39] The Applicant does however declare that, on 15 July 2022, an “initial draft of all clauses (excluding monetary figure and LOC changes) was reviewed in full with the negotiation committee and each was provided with a copy for individual review. Option to receive translated versions was offered but not requested. Each negotiation committee member was then to discuss with their nominators in native languages to ensure understanding. Each cultural group and non-english (sic) speaking group had a representative on the committee that could perform this function”.

[40] It is apparent to me that significant reliance was placed on the negotiation committee members and, in particular, the employee bargaining representatives, to explain the terms and effect of the Agreement.

[41] In McDonald’s, the Full Bench: 8

•  clarified that s.180(5)(a) requires only that the employer take reasonable steps to ensure that the terms and conditions are explained to employees;

•  found that there is not a requirement in the Act that there be a full explanation of the terms of the agreement prior to the employer requesting employees vote on the agreement; and

•  found that there is no impediment in the Act to collaborate with bargaining representatives to provide relevant explanations and that an employer would be taking reasonable steps to ensure terms are explained to employees if it collaborated with a bargaining representative to arrange for this to be undertaken.

[42] However, in that matter, the Full Bench also found that documents produced by the SDA, the union bargaining representative for the agreement, were comprehensive and detailed. 9 This is not the case in the current matter. Further, having heard from some of the bargaining representatives at the determinative conference, it is apparent to me that some of the bargaining representatives were unlikely to have assisted the Applicant in satisfying the requirements of s.180(5)(a) of the Act.

[43] The ‘Form F16 – Application for approval of an enterprise agreement (other than a greenfields agreement)’ and instruments of appointment filed by the Applicant identify the following employees as employee bargaining representatives:

•  Kane Davis;

•  Dale Lestrange;

•  Rushton Waleilia;

•  Wei Lun Lin;

•  Faateaina Matuauto;

•  Jianliang Yang;

•  John Speering;

•  Soofa Tagiaia;

•  Ying (Jack A) Zhang; and

•  Shubo (Grace) Li.

[44] Unlike the circumstances in McDonald’s, there is no evidence that the employee bargaining representatives produced any explanatory documents, let alone comprehensive and detailed ones. The employee bargaining representatives appeared during the determinative conference.

[45] As noted above, Mr Speering was a bargaining representative for the Agreement. During the course of his evidence, I asked Mr Speering who he understood he represented during bargaining. Mr Speering indicated a “few people” who appointed him by way of “vote” and Mr Speering putting his name forward. The documents provided by the Applicant suggest that Mr Speering represented 10 employees during bargaining. The evidence of Mr Speering was that: 10

•  he “had constant meetings with his team, and there were indeed some concerns that were raised but not many”; and

•  he “explained the terms of the EBA to [his] team”.

[46] Mr Yang was also a bargaining representative for the Agreement. The instruments of appointment provided by the Applicant suggest that Mr Yang was the bargaining representative for 11 employees. Mr Yang said: 11

•  “During the negotiation process, I explained with other Hilltop Meats employees about the Agreement terms, what we wanted to change and what changes we thought would be good for the employees. For example, I spoke with other employees about increasing our salary rate.”

•  “I wasn’t able to speak to all of the other Hilltop Meats employees but managed to speak to most of them. There are some employees who are family members, so I could speak to one family member who would then pass the information on to the others.”

•  “Mick Dorahy and other management staff told me about the proposed changes in the Agreement.”

•  “I understood the terms of the Agreement and the proposed changes. I spent time on weekends reviewing the Agreement terms and used some translators to help me to properly understand it.”

•  “I did additional research in relation to the Agreement and negotiation of its terms. I read the Meat Industry Award 2020 on the internet, read a similar agreement used by E.C. Throsby and an agreement used by JBS and spoke to other people about the negotiations…”

[47] In the course of giving evidence, Mr Yang indicated that during bargaining he represented mostly Chinese people and speaks Mandarin. I asked Mr Yang what role he played during bargaining for the people he says he represented as bargaining representative. Mr Yang indicated that he read the 2019 Agreement, did research on the internet about other agreements, developed some ideas, spent all weekend studying the Agreement at home and the changes and then, if he had time, he would talk to those who he represented, including during breaks. The Applicant’s representative asked Mr Yang whether he went through all the clauses in the Agreement with those he represented. Mr Yang’s response indicated that he was initially confused about what a “clause was” before clarifying he did not go through all the clauses but said “some clauses that are very good for us I talk to” due to “limited time” to tell the employees about the Agreement.

[48] With respect to Mr Yang, I would observe that, while Mr Yang has a reasonable command of the English language, his responses during the determinative conference suggest that it is not at the level of sophistication that would enable him to translate a complex document such as an enterprise agreement without further assistance, although he did indicate in his witness statement that, he “used some translators” to help him properly understand the Agreement. There is no evidence to contradict this. However, Mr Yang’s evidence suggests that he only explained to the employees he represented some of the clauses in the Agreement that he considered to be “good” for employees. As I have noted above, there are significant changes to the Agreement and not all of these changes could be considered “good” for all employees. Mr Yang was likely well-intentioned, however the explanation of only those terms he considered “good”, when he had the time to do so, may have led employees to form a distorted view about the Agreement and did not constitute reasonable steps to explain the terms and effect of the Agreement.

[49] Mr Davis also gave evidence for the Applicant. While the documents provided by the Applicant indicate that Mr Davis was a bargaining representative for one employee, when I asked Mr Davis who he represented, he responded that he didn’t know who he was representing during bargaining as it wasn’t disclosed to him who “voted for him”. I asked Mr Davis what role he played in bargaining in terms of explaining the Agreement to employees. Mr Davis said that, after he had been “elected or voted in as a representative”, he attended meetings and after the meetings would disseminate the information to work colleagues. Mr Davis also said in his witness statement that he “explained the Agreement to [his] team members.” 12 The Applicant’s representative asked Mr Davis if he spoke about the Agreement itself with other people, to which he replied “yes”. When asked about what he said about the Agreement, Mr Davis said he “relayed what we were doing in the meetings and what was discussed and what demands or…the bill of demands…if anyone wanted other things included in it…the general terms and where we were up to in the process”. Mr Davis indicated most people were concerned about how long the process was going to take “rather than actual very specific details. They just wanted to get it stitched up”. The Applicant’s representative asked Mr Davis how he explained the terms to the people he represented and Mr Davis indicated that, before work or while he was on a smoke break, the topic of conversation would come up or he would bring it up depending on what was happening on the day but there was “no real set out agenda or anything like that, it was just general conversations”.

[50] Mr Matuauto’s evidence was that he was nominated as a bargaining representative and the majority of those who nominated him are Samoan. Documents produced by the Applicant indicate that Mr Matuauto represented six employees. Mr Matuauto said in his witness statement: 13

•  “We had several meetings with the team, and Sunday lunches. There we would have prayer as a group, and food and then would discuss negotiations. I was translating everything I could between the team and myself. I was translating the Enterprise Bargaining Agreement (“EBA”) as best I could.”

•  “There was a bit of difficulty in translating everything but there were several meetings on Sundays, and I did my best to accurately translate. I believe I translated everything accurately.”

•  “I remember that there were nine or ten people who voted for me, but I did not separate the other people on Sunday, who did not vote for me. I still discussed and explained it with them as well.”

[51] I have considered all of the evidence before me. In order to establish that the requirements of s.180(5) of the Act have been met, the Applicant places heavy reliance on the Information Pack, two consultation sessions and the role of the bargaining representatives. The Information Pack does not explain the terms and effect of key terms of the Agreement and its dissemination does not in itself establish that reasonable steps were taken by the Applicant to explain the terms of the Agreement, and the effect of those terms, to the relevant employees. Evidence about the content of explanations provided at the consultation sessions is scant. Unlike the circumstances in McDonald’s, this matter does not involve a situation where the bargaining representatives produced comprehensive and detailed documents to help explain the terms and effect of the Agreement. It seems likely that the involvement of the bargaining representatives varied depending on the individuals and, while all bargaining representatives who appeared to give evidence indicated that they explained the terms of the Agreement, there is very limited evidence about the content of those explanations. Further, in the case of Mr Yang and Mr Davis, it seems that that explanation took place in a very ad hoc manner, such as during breaks or when the Agreement came up in general conversation. Mr Yang’s evidence also suggests that the explanation of terms was selective, focused on the terms he considered to be “good” and impeded by time constraints.

[52] In all the circumstances, I am not satisfied that the Applicant has taken all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees as required by s.180(5)(a) of the Act.

[53] This takes me to s.180(5)(b) of the Act, which requires that an employer take all reasonable steps to ensure that the explanation is provided in an appropriate manner taking into account the circumstances and needs of the relevant employees. Further, s.180(6) of the Act states that, without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of that paragraph:

“(a) employees from culturally and linguistically diverse backgrounds…”.

[54] It is declared in the Form F17 that 68 of the 95 employees covered by the Agreement at the time of the vote were from a non-English speaking background. Question 24 of the Form F17 asks:

“24. When the employer explained the terms of the agreement, and the effect of those terms, to the relevant employees, what was done to take into account the particular circumstances and needs of the relevant employees?”

[55] In response, it is declared in the Form F17 that:

•  “Every cultural group and non-english (sic) speaking group had a representative that would translate communications and variations with their group. As the main contact point, they would share information and bring feedback or questions to the Committee at each meeting.”

•  “The Consultation Sessions organised and held…gave an opportunity for any employee to raise questions or concerns direct to management in a private and focussed setting, ensuring that full explanation could be given.”

[56] The response also declares that there is no supporting documentation for the response to question 24 of the Form F17.

[57] During the course of his evidence at the determinative conference, I asked Mr Denny what assistance (if any) was provided to employees with English as their second language or linguistic difficulties in terms of explaining the terms and effect of the Agreement. Mr Denny’s response indicated that the employee representatives, so far as he could determine, were all within the cultural groups of people who nominated them as their representatives, are “native speakers for those people” and have “translated all the information the [Applicant] has provided to ensure their understanding”. I queried how the bargaining representatives went about doing this and Mr Denny’s response indicated that this varied depending on the individuals and stated that, as an example, Mr Matuauto held full cultural group meetings on Sunday at the accommodation of those he represented where he explained what was happening during the bargaining process and elaborated on what was discussed in meetings and what was in the Agreement.

[58] I asked Mr Denny whether, aside from what the bargaining representatives did, there were any other services provided. Mr Denny explained that the Applicant went through the Agreement with the negotiation committee but also provided opportunity for employees to attend two consultation sessions and, if anyone had struggles with understanding the Agreement or wanted to talk through individual points they were not sure about, they were able to do so and a few employees took advantage of these consultation sessions. The Applicant’s representative asked Mr Denny whether any employees informed him that they were not satisfied with any parts of the Agreement or that they didn’t understand any parts of the Agreement, to which he indicated they did not.

[59] It is declared in the Form F17 that, on 15 July 2022, an “initial draft of all clauses (excluding monetary figure and LOC changes) was reviewed in full with the negotiation committee and each was provided with a copy for individual review. Option to receive translated versions was offered but not requested. Each negotiation committee member was then to discuss with their nominators in native languages to ensure understanding. Each cultural group and non-english (sic) speaking group had a representative on the committee that could perform this function”. It is apparent to me that the Applicant has place a heavy reliance upon the bargaining representatives in order to satisfy the requirement in s.180(5)(a) of the Act. However, there is limited evidence as to the appropriateness of the manner in which the explanations were provided by the employee bargaining representatives. As I have noted earlier, in the case of Mr Yang and Mr Davis, it seems that the explanation took place in a very ad hoc manner, such as during breaks or when the agreement came up in general conversation. Mr Yang’s evidence also suggests that the explanation of terms was selective, focused on the terms he considered to be “good” and impeded by time constraints. Mr Yang is of a non-English speaking background himself, as are other bargaining representatives. There is no evidence of what the bargaining representatives told employees before they cast their votes, let alone whether it was likely to be accurate or translated correctly.

[60] A significant proportion of the Applicant’s workforce are from a non-English speaking background and, while it is not possible to determine exactly how many employees of a non-English speaking background voted in support of the Agreement, it can be assumed that a significant number of employees of a non-English speaking background did participate in the voting process. I am not satisfied on the evidence and material before me that the particular circumstances of a significant proportion of the Applicant’s workforce, those from a non-English speaking background which made up over 70% of the workforce, were taken into account in determining the manner of communication of the terms and effects of the terms of the Agreement.

Conclusion

[61] I am not satisfied that the Agreement has been genuinely agreed as the requirements in ss.180(5) and (6) of the Act have not been met.

[62] The application for approval of the Agreement is therefore dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR747132>

Appearances:

Mr T Vernier of Counsel, instructed by Ms L Pouri-Robertson of Morgan English Commercial Lawyers, for the Applicant.

Mr J Schultz of Counsel for the Australasian Meat Industry Employees Union.

Determinative conference details:

2022.
Sydney (by Video using Microsoft Teams).
October 14.

 1   Australasian Meat Industry Employees Union, ‘Respondent’s Outline of Submissions’, filed 5 October 2022, [40]-[41].

 2   Ibid, [41].

 3   Applicant, ‘Outline of Submission’, filed 10 October 2022, [27]-[28].

 4   Applicant, ‘Witness Statement of Jianliang Yang (Jack B)’, dated 10 October 2022, [8].

 5   Applicant, ‘Witness Statement of Kane Davis’, dated 10 October 2022, [19].

 6   Australasian Meat Industry Employees Union, ‘Respondent’s Outline of Submissions’, filed 5 October 2022, [42], [44], [46]-[48].

 7   Ibid, [49].

 8   McDonald’s Australia Pty Ltd v Shop, Distributive and Allied Employees’ Association [2010] FWAFB 4602, [29]-[31].

 9   Ibid, [32].

 10   Applicant, ‘Witness Statement of John Speering’, dated 10 October 2022, [4].

 11   Applicant, ‘Witness Statement of Jianliang Yang (Jack B)’, dated 10 October 2022, [3]-[8].

 12   Applicant, ‘Witness Statement of Kane Davis’, dated 10 October 2022, [19].

 13   Applicant, ‘Witness Statement of Faateaina Matuauto (Tea)’, dated 10 October 2022, [4]-[6].