| FWC 7936 [Note: This decision has been quashed - refer to Full Bench decision dated 14 February 2017 [ FWCFB 871]|
|FAIR WORK COMMISSION|
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
Corrections and detentions
SYDNEY, 15 NOVEMBER 2016
Application for approval of the JBU Agreement 2016.
 This decision relates to an application by Broadspectrum (Australia) Pty Ltd (Broadspectrum) for approval of the Justice Business Unit (JBU) Enterprise Agreement 2016 (the Agreement), in accordance with section 185 of the Fair Work Act, 2009 (the Act).
 United Voice has sought copies of the F16 and F17 that were lodged with the Agreement. The Fair Work Commission (FWC) has refused to provide United Voice (UV) with a copy of these documents on the basis that United Voice were not appointed as a bargaining representative by any of the employees, nor were they a default bargaining representative in accordance with section 176 of the Act.
 United Voice have continued to press for access to the F16 and F17 forms, as well as the right to be heard in relation to the FWC’s deliberations as to the Agreement’s conformity with the provisions of the Act.
 A conference was convened with Broadspectrum and United Voice on 8 September 2016 by the FWC as presently constituted. The parties were invited to provide written submissions in relation to the Agreement. Both parties took up that opportunity as per the published Directions.
 Broadspectrum advised that they have decided to expand their Australian operations into the Corrective Services and Detention Industries. Whilst they do not currently have any contracts, Broadspectrum employed four people into their Justice Business Unit to assist with its processes. These employees have worked on the necessary policy formation and day to day operating manuals that are necessary inclusions in any tender process. They have also been involved in rostering, staffing and OH&S policy formulation.
 Relevantly, these employees (now only three) are currently employed under common law contracts, which are underpinned by the Corrections and Detention (Private Sector) Award 2010 (the Award). They will be covered by the Agreement if it is approved. The employees will fall into the Agreement classification structure as a Prison Escort Transport Officer, a Correctional Officer and a Correctional Supervisor Level 2.
 United Voice argued that they have a right to be heard in relation to this application on the basis that they are the principal union in the industry and that they currently have 49 members who are employed by Broadspectrum in off-shore detention facilities that are due to close and that these members may seek to continue their employment with Broadspectrum when they return to Australia.
 United Voice submitted that the group of employees covered by the Agreement was not fairly chosen (section 186(3) of the Act) and that the Agreement was not genuinely agreed (section 188 of the Act).
 United Voice wants to assist the FWC in performing its functions under Part 2.4 of the Act by being a “proper contradictor” in the proceedings.
 Further, United Voice submitted that the FWC has an obligation to apply the principles of natural justice in accordance with section 590 of the Act.
 United Voice argued that there is no binding capacity of the Agreement upon Broadspectrum because it only covers employees who are engaged within its JBU. United Voice submitted that if successful in tendering for corrections work, Broadspectrum are not compelled to engage employees from within the JBU. United Voice questions whether this possible outcome is permissible under Part 2.4 of the Act.
 United Voice further submitted that the four employees that have been involved in the negotiation and approval of the Agreement were performing work outside of their classifications. The Agreement classification structure is lifted form the Modern Award. United Voice argued that this structure applies to employees who are involved in correctional and detention work – not work associated with putting together operating policies and procedures or tender documents. As such, United Voice contended, this group could not be regarded as being fairly chosen on the basis that they were performing work which is not covered by the Agreement.
 Finally, United Voice submitted, albeit briefly, that Broadspectrum has attempted to overcome the provisions of the Act in relation to greenfield agreements. Due to time constraints, United Voice did not expand on this submission.
 Broadspectrum submitted that United Voice did not have any “right to be heard” in relation to the current application on the basis that they were not appointed as a bargaining representative by any of the employees nor were they a default bargaining representative of any employee.
 Broadspectrum further submitted that a Full Bench of the FWC in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd 1 (Collinsville), has dealt with the majority of the issues raised by United Voice in relation to their submission. Relevantly, the Full Bench held:
“ It is accepted that the FW Act does not provide for intervention in proceedings before the Commission by a non party. Section 590 of the FW Act provides, relevantly that the Commission may, except as provided by the FW Act, inform itself in relation to any matter before it in such manner as it considers appropriate, including by inviting, subject to any terms and conditions determined by the Commission, oral or written submissions.
 As to the CFMEU’s rights that are said to be affected, the CFMEU submitted, in summary, that the decision to approve the Agreement will affect its right to represent employees at the mine and for these employees to be members of the CFMEU. Further, it will affect its capacity to protect terms and conditions of employment. 59 Other rights relied in by the CFMEU are identified earlier and are not reproduced here.
 In our view this argument has no substance. Firstly, the argument presupposes that the CFMEU has some particular right which will be taken away or interfered with, if the Agreement is approved. The CFMEU’s entitlement to represent the industrial interests of employees at the Collinsville coal mine is to be derived from the CFMEU’s rules. The approval of the Agreement will not interfere with that. Before the Agreement was approved the terms and conditions of the employees covered by the Agreement were determined, inter alia, by the Black Coal Mining Industry Award 2010, the applicable modern award. Under the dispute settlement procedure of the modern award the CFMEU has no particular right of representation. Representation may be sought by employees in relation to disputes and in relation to consultation. Under the modern award employees choose their representation. They may choose the CFMEU. That position is not changed by approval of the Agreement. Employees may choose to be represented by the CFMEU in disputes under the Agreement and in consultation matters. In any event such rights are vested in the employees not in the CFMEU. The Modern Award is not a respondency award made in settlement of an interstate industrial dispute involving the CFMEU. The statutory basis and constitutional underpinning of modern awards are significantly different to awards made under predecessor legislation in settlement of disputes.
 Secondly, the Agreement does not affect the rights of an employee covered by it to choose whether he or she wishes to join, continue to be or cease to be, a member of the CFMEU.
 Thirdly, the approval of the Agreement does not affect the right of the CFMEU to be involved in bargaining for any successor or replacement agreement, nor does it affect the right of the CFMEU to represent employees more broadly engaged in the coal mining industry or to advocate for improvements to the terms and conditions under which those employees are employed.
 Fourthly, the approval of the Agreement does not affect the capacity of an officer of the CFMEU who is a permit holder under the FW Act to investigate suspected contraventions of the FW Act or of the terms of the Agreement. 60 Nor does it affect the capacity of the permit holder to enter Collinsville’s premises for the purposes of holding discussions with employees.61
 Fifthly, to the extent that it was suggested that the CFMEU’s capacity to represent employees and protect their interests under the Coal Mining Safety and Health Act 1999 (Qld) and the Coal Mining Safety and Health Regulation 2001 (Qld) is undermined or taken away by the approval of the Agreement, that proposition is rejected. As s.29 of the FW Act makes clear, an enterprise agreement applies subject to, and does not prevail over, a State law dealing with occupational health and safety matters. Such rights or interests as the CFMEU may have under those laws are clearly unaffected by the approval of the Agreement.
 Sixthly, the CFMEU’s reliance on rights that it had under agreements which previously applied to work at the Collinsville coal mine 62 is misconceived in that whatever else might be said about the content of those agreements, they did not cover the employees who are now covered by the Agreement when the agreement was made and they did not cover Collinsville. Consequently the CFMEU had no particular right under those agreements vis-a-vis the employees or Collinsville, and so no right of the CFMEU is affected by the approval of the Agreement.”
 Broadspectrum posited that United Voice was simply engaged in a “fishing expedition” to try and find fault with the approval process and quash the Agreement. Broadspectrum referred to the two FWC decisions, as previously constituted, in relation to MGI Piling, the FB decision in CFMEU v MGI Piling and the decision of Roe C in Neptune Asset Integrity Services Pty Ltd, 2 (Neptune) all of which gave reasons as to the limitations on the “right to be heard” or the granting of access to documentation to employee organisations. Broadspectrum submitted that, these decisions reinforce the proposition that the vetting of Enterprise Agreements and the approval process is the role of the FWC – not the trade union movement.
 Broadspectrum submitted that if the F16 and F17 were made available to United Voice, then Broadspectrum would have concerns in relation to the privacy of the employees who voted on the Agreement.
 Broadspectrum referred to the Fair Work Commission Full Bench decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Manufacturing Workers' Union v Sustaining Works Pty Limited 3 (Sustaining Works) which comprehensively dealt with the issue of “fairly chosen.” The Full bench held:
“Fairly chosen issue
 We consider that the first two of the unions’ submissions, earlier identified, may be determined by reference to the Federal Court Full Court decision in CFMEU v John Holland. The proposition that an enterprise agreement which is made by an employer with a small group of employees but is drafted to apply to a much larger group or class of employees does not comply with the “fairly chosen” requirement in s.186(3) because it undermines collective bargaining and is contrary to the policy, purpose and objects of the FW Act was firmly rejected in CFMEU v John Holland.
“ … The FW Act permits such an agreement to be made and requires that it be approved if the statutory tests are met…”
 …As Buchanan J pointed out, under the FW Act it is a consequence of the making of any enterprise agreement (including greenfields agreements, the negotiation of which does not involve any employees) that future employees are prevented from engaging in bargaining under the FW Act while the agreement remains within its nominal term. That therefore cannot be a reason, by itself, to conclude that the group of employees covered by an enterprise agreement was not fairly chosen.”
 Broadspectrum argued that United Voice has not been able to provide any evidence of any manipulation of the employees or the process.
 Broadspectrum submitted that the four employees who participated in the approval process are all covered by the Agreement and are performing bona fide correctional industry work within the classifications of the Agreement. Broadspectrum referred to the Full Bench decision in Transport Workers Union of Australia & Anor v ALDI Foods Pty Limited as General Partner of ALDI Stores(A Limited Partnership) 4(Aldi) where it was held:
“ The SDA and TWU submit that the circumstances of voting and approval of the Agreement in advance of commencement of the operations is inconsistent with the scheme of the Act. They submit that the Act demonstrates a clear intention to allow employers to have terms and conditions of employment set before they start a new enterprise. It does this by providing a protection for the position of future employees by requiring that an agreement must, in those circumstances, be made with a relevant employee organisation. Once an employee who will be necessary for the normal conduct of the new enterprise has been employed a greenfields agreement is not available.
 Section 172 is properly construed as an enabling provision that sets out the circumstances in which an agreement can be made in accordance with the Enterprise Agreement Part of the Act. Although different types of agreements can be made in different circumstances it should not be assumed that an agreement can be made in all circumstances or that the categories are necessarily mutually exclusive. When the two alternatives in s.172(2) are compared however it is clear that the employee factor is highly unlikely to be satisfied for both alternatives at the same time. If there are employees employed at the time the agreement is made, a single enterprise agreement can be made with them. If the employer has not employed any of the persons who will be necessary for the normal conduct of that enterprise and who will be covered by the Agreement, and the other criterion is satisfied, a Greenfields agreement can be made with an employee organisation. This provision sets up a regime in which agreements with employees are available in the normal situation of an existing enterprise with existing employees and only when no such employees are employed in a genuine new enterprise can the alternative of a Greenfields agreement be made.
 Hence for the purposes of giving logical and consistent meaning to common phrases in the Act we consider it appropriate to apply the approach adopted by the Federal Court in relation to the fairly chosen test. That approach, in over view, supplants the approach adopted in Cimeco. The Federal Court’s approach entails two elements. The first involves determining whether the persons are employees, while the second entails determining whether the employees will be covered by the agreement after it is made. Application of the agreement is not relevant.”
 Broadspectrum further submitted that the three on-going employees (one has resigned due to family issues) all possess relevant certificate III and IV qualifications and substantial experience in the industry.
 The relevant provisions of the Fair Work Act, 2009 (the Act) pertaining to these applications are contained in Part 2.4 – Enterprise Agreements. The following sections are of significance;
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits;
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174.
(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
(b) a majority support determination in relation to the agreement comes into operation;
(c) a scope order in relation to the agreement comes into operation; or
(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.
Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).
When notice must be given
(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.
(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.
Bargaining representatives for a proposed multi-enterprise agreement if a low-paid authorisation is in operation
(2) Despite subsections (1) and (2):
(a) an employee organisation; or
(b) an official of an employee organisation (whether acting in that capacity or otherwise);
cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.
Employee may appoint himself or herself
(3) To avoid doubt and despite subsection (3), an employee who will be covered ent may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.
When appointment of a bargaining representative comes into force
(1) An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.
Copies of instruments of appointment must be given
(2) A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must:
(a) for an appointment made by an employee who will be covered by the agreement—be given to the employee’s employer; and
(b) for an appointment made by an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement—be given, on request, to a bargaining representative of an employee who will be covered by the agreement.
Regulations may prescribe matters relating to qualifications and appointment
(3) The regulations may prescribe matters relating to the qualifications or appointment of bargaining representatives.
(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.
Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(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.
(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:
(a) the time and place at which the vote will occur;
(b) the voting method that will be used.
(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).
Terms of the agreement must be explained to employees etc.
(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.
(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.
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
Single-enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.
(1) After an enterprise agreement that is not a greenfields agreement is made, an employee organisation that was a bargaining representative for the proposed enterprise agreement concerned may give the FWC a written notice stating that the organisation wants the enterprise agreement to cover it.
(2) The notice must be given to the FWC, and a copy given to each employer covered by the enterprise agreement, before the FWC approves the agreement.
Note: The FWC must note in its decision to approve the enterprise agreement that the agreement covers the employee organisation (see subsection 201(2)).
When the FWC must approve an enterprise agreement--general requirements
Requirement that the group of employees covered by the agreement is fairly chosen
(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.
188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(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
590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593).
 I have taken into account all of the submissions that the parties have provided to the FWC.
 Relevantly, a recent Full Bench decision in Construction Forestry Mining and Energy Union v Sparta Mining Services Pty Ltd 5 (Sparta), made the following comments:
“ Two additional factual matters emerged during the hearing of the appeal, largely in response to inquiries from the bench. The first was that the three employees who voted upon the Agreement were no longer employed by Sparta, but were now employed by another labour hire company at the same coal mine sites. Whether this other labour hire company was of a Lacedaemonian character was not disclosed. Second, Sparta now employs approximately 40 employees.
 Those facts (which were not disputed by Sparta) give rise, we consider, to arguable grounds for concluding that the Agreement was not genuinely agreed to by the employees. They are capable of giving rise to the inference that the vote in favour of the Agreement by the three employees was not authentic because the employees were selected to be employed by Sparta purely for the purpose of making the Agreement, the provisions of the Agreement were not intended to apply to the three employees, and the employees were not to continue to be employed by Sparta after the Agreement was approved.”
 In an attempt to further clarify the on-going employment status of the three remaining employees, in accordance with the principles outlined in Neptune and the comments of the Full Bench in Sparta, my Associate sent the following email to Broadspectrum:
“8 November 2016
Dear Mr Dixon,
Could you please confirm that the 3 employees who currently work in the JDU will remain in that business unit and be covered by the Agreement?
Sent on behalf of Commissioner Riordan.”
 Mr Dixon responded in the following terms:
“8 November 2016
Yes, that is the intention of the JBU management.
 Relevantly, Clause 17 of the Agreement 6 deals with the Classifications Structure and Minimum Wages. Clause 17.2 states:
“Schedule B of the Corrections and Detention (Private Sector) Award 2010 and Schedule B of the Clerks – Private Sector Award 2010 will apply for the purposes of determining the appropriate classification level for an Employee covered by this Agreement.”
 Having reviewed the classification structures of the two mentioned Awards, I am satisfied that the work currently being performed by these employees falls within the scope of the Corrections and Detentions (Private Sector) Award 2010 classification descriptors and competencies. Broadspectrum should be congratulated for seeking the input and assistance of experienced award based employees into the operational and safety policies of its business unit. In a different circumstance, I am confident that United Voice would also be supportive of this approach.
 I agree with the submission from Broadspectrum that the majority of the contentions of United Voice have been dealt with by a Full Bench of the FWC in Collinsville. I support these findings.
 I am satisfied and find that the employees continue to work in accordance with their skills, competence and training. I am satisfied that there were only four relevant employees of the JDU at the time of the making of the Agreement. I am satisfied that the employment of these employees and their on-going functions are bona fide operations of the JDU inside Broadspectrum. In accordance with the obiter in Sustaining Works, I find that the employees were “fairly chosen”.
 Whilst I accept that United Voice feels aggrieved and believes that Broadspectrum is attempting to undercut what it regards as an appropriate minimum standard for the Corrections Industry in a manner which it regards to be superficial, I can find no evidence where there is any suggestion that Broadspectrum has acted in a manner which may be regarded as coercive, manipulative or in breach of the Act.
 I am satisfied that all of the relevant steps and processes that emanate from section 188 of the Act have been complied with and met by Broadspectrum. Taking into account the facts and the decision in Sparta, I can find no evidence to suggest that the approval process for this Agreement, including the employment of the four employees, could be regarded as being a “sham” or not authentic.
 As a result, I find that the Agreement was genuinely agreed in accordance with section 188 of the Act.
 I can see no benefit in making the F16 and F17 available to United Voice. In accordance with section 590 of the Act, I formally deny that request. It is not appropriate to allow United Voice to undertake some form of forensic investigation into the approval process of the Agreement in the hope of finding a procedural error. That is the role of the FWC. It is a function that cannot be “contracted out” to United Voice or any other employer or employee association. I accept that access to this type of information is appropriately determined on a case by case basis and that each case must be determined on its merits. In this matter, I can see no useful purpose.
 I find that Broadspectrum has complied with all of the pre-approval requirements of the Fair Work Act, 2009 (the Act).
 A separate decision will be issued approving the JBU Agreement 2016.
1  FWCFB 7940
2  FWC 121
3  FWCFB 4422
4  FWCFB 91
5  FWCFB 7057
6 JBU Enterprise Agreement 2016
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