DECISION

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

BGC Contracting Pty Ltd
(AG2016/3592)

Application for approval of the Mining Enterprise Agreement 2016 - Agreement not approved - Application dismissed.

[1] On 21 June 2016, the Fair Work Commission (FWC) received an application (Application) by BGC Contracting Pty Ltd (BGC) for the approval of the Mining Enterprise Agreement 2016 (Proposed Agreement) pursuant to section 185 of the Fair Work Act 2009 (FW Act).

[2] The Proposed Agreement is a single-enterprise agreement made pursuant to section 185 of the FW Act with a proposed nominal expiry date of 4 years from the date the Agreement is approved by the FWC.

[3] The Proposed Agreement applies to employees of BGC engaged in the classifications set out in sub-clause 7.2 of the Proposed Agreement, who perform work in the mining business unit of BGC Contracting Pty Ltd.

[4] The reference awards for the purposes of the Better Off Overall Test (BOOT) are the Mining Award Industry Award 2010 (Mining Award) and the Black Coal Mining Award Industry Award 2010 (Coal Award).

[5] The Application was accompanied by an Employer’s Statutory Declaration in Support of an Application for Approval of an Enterprise Agreement (F17 Statutory Declaration) by Ms Corrina Tolomei, Senior Manager People at BGC (Ms Tolomei).

[6] According to the Application, the Union Bargaining Representatives who were involved in the agreement making process were:

● Australian Manufacturing Workers’ Union (AMWU);

● Australian Workers’ Union (AWU); and

● Construction, Forestry, Mining and Energy Union (CFMEU),

(Unions) 1.

[7] Annexure B of the Application contained a list of 10 employee bargaining representatives who were also involved in the agreement making process (Employee Bargaining Representatives).

[8] On the following dates, each of the respective Unions lodged a Form F18 Statutory Declaration of Employee Organisation in Relation to an Application for Approval of an Enterprise Agreement (Form F18 Statutory Declarations):

● 29 June 2016 – AMWU;

● 24 August 2016 – CFMEU; and

● 25 August 2016 – AWU.

[9] Each of the respective Unions indicated that it wished to be covered by the Proposed Agreement pursuant to section 183 of the FW Act, but it did not support the approval of the Proposed Agreement by the FWC.

[10] On 19 August 2016, the FWC wrote to BGC outlining several issues it had identified in relation to the Application and directed BGC to respond by close of business, 25 August 2016 (FWC Email).

[11] On 25 August 2016, BGC filed its response to the issues raised by the FWC Email as well as the issues raised by the AMWU and the CFMEU in their respective Form F18 Statutory Declarations. In this response BGC indicated a willingness to provide various undertakings. On 30 August 2016, BGC provided a response to the AWU’s F18 Statutory Declaration.

[12] On 24 June 2016 and 26 August 2016 respectively, the CFMEU and the AMWU sought, in separate email submissions, the opportunity to lead evidence and make submissions on the issues they had raised in relation to the Proposed Agreement.

[13] In accordance with Directions issued on 2 September 2016 (Directions), the parties filed outlines of submissions, witness statements, case authorities and the documentary evidence on which they respectively relied.

[14] The Directions also required BGC to provide a copy of the Application, Proposed Undertakings and the Directions to all employees whose terms of employment are proposed to be regulated by the Proposed Agreement. The Directions contained an invitation for any employee who, having taken into account the Proposed Undertakings, still objected to the Proposed Agreement being approved, to provide details of those objections in writing to my Chambers by close of business, Thursday 15 September 2016.

[15] On 9 September 2016, Ms Tolomei filed a statutory declaration confirming that a copy of the Application, Proposed Undertakings and the Directions had been provided to all employees.

[16] A number of written objections from employees were received on or before close of business on Thursday 15 September 2016.

[17] The matter was listed for hearing in Adelaide on 19 and 20 October 2016 (Hearing). Mr Duncan Fletcher appeared for BGC, Mr Andrew Thomas appeared on behalf of Mining and Energy Division of the CFMEU, Mr Philip Boncardo appeared on behalf of the Construction and General Division of the CFMEU, Mr Tim Hardie on behalf of the AWU and Mr Justin Hanson appeared on behalf of the AMWU. Given the complexity of the matter, and having regard to section 596 of the FW Act, representation was granted to all parties.

[18] Mr Greg Dark - General Manager of Mining Operations (Mr Dark), Ms Tolomei and Mr Tariro Ruwiza - Senior Project Manager Arium Operations (Mr Ruwiza) all gave evidence on behalf of BGC. Mr Gary Wood - District Secretary of the Western Australia District of the Mining and Energy Division of the CFMEU (Mr Wood), Mr Kym Swanbury (Mr Swanbury), Mr Paul Bolitho (Mr Bolitho) and Mr Scott Whitlock (Mr Whitlock), all employees of BGC and CFMEU members, all gave evidence on behalf of the CFMEU. Mr Gregory Fiebig (Mr Fiebig) and Mr Ryan Wake (Mr Wake), both employees of BGC and AMWU members, gave evidence on behalf of the AMWU. Mr Scott Martin - AWU Organiser (Mr Martin) gave evidence on behalf of the AWU. Following the Hearing, the parties were given the opportunity to file written closing submissions by close of business, 4 November 2016. The parties were then given one further working day to file any submissions in reply to the other parties’ closing submissions.

[19] Written closing submissions were filed by BGC (BGC Closing Submissions), the CFMEU (CFMEU Closing Submissions) and the AMWU (AMWU Closing Submissions). Whilst a participant in the proceedings, including at the Hearing, no closing submissions were filed by or on behalf of the AWU.

[20] Submissions in reply were subsequently filed by the CFMEU (CFMEU Reply Submissions) and BGC (BGC Reply Submissions).

Background

[21] BGC provides contract mining services to clients operating metalliferous mines in South Australia and Western Australia. BGC employ over 700 employees in the classifications covered by the Proposed Agreement 2.

[22] The enterprise agreements that currently apply to BGC’s existing employees engaged in metalliferous mining are the BGC Contracting Mining Employees Enterprise Agreement 2012 (Mining Agreement) and the BGC Contracting Maintenance Employees Enterprise Agreement 2012 (Maintenance Agreement). Both these agreements reached their nominal expiry dates on 31 August 2016.

[23] At some point prior to the initiation of bargaining for the Proposed Agreement, BGC determined that to remain competitive it required a new enterprise agreement with rates and conditions which were substantially lower than those contained in the Mining Agreement and the Maintenance Agreement. 3

[24] To ensure the registration of a new agreement did not lead to a reduction in the rates and conditions of existing employees, BGC proposed to preserve the current actual wages and conditions of existing employees. BGC proposed to achieve this preservation of current wages and conditions by offering existing employees individual common law contracts containing these terms and conditions (Preserved Conditions Contracts). These Preserved Conditions Contracts were offered on the proviso that they would only take effect if a majority of employees voted to approve a new agreement with substantially lower rates and conditions and this new agreement was approved by the FWC. 4

[25] In the event that the Proposed Agreement was registered, its effect would be to establish a two-tiered rates and conditions system. The first and higher tier would apply to existing employees who were employed at the time the Proposed Agreement was approved who would be entitled to the preserved wages and conditions contained in their individual common law Preserved Conditions Contracts. The second and lower tier would apply to new employees who would be entitled to the much lower rates and conditions contained in the Proposed Agreement. 5

[26] BGC also proposed that the coverage of the existing agreements be expanded in the Proposed Agreement from metalliferous mining to include black coal mining by the inclusion in the Proposed Agreement of a schedule providing for rates and conditions of employees employed in black coal mining (Coal Mining Employees). 6

[27] BGC is not currently involved in, and consequently does not employ, any employees in the black coal mining industry. 7 Other than for a short time in 2004, BGC has not ever undertaken work in the black coal mining industry.8

[28] On 30 March 2016 BGC distributed a Notice of Employee Representational Rights (NERR). A separate pack of information was provided to employees at the same time as the NERR, in a separate envelope. 9

[29] During the bargaining process, BGC issued a series of documents on the following dates containing what they described as frequently asked questions and answers (FAQ) which BGC says were intended to address employee questions in relation to the Proposed Agreement and the Preserved Conditions Contracts: 10

● 29 March 2016 (First FAQ);

● 12 April 2016 (Second FAQ);

● 17 April 2016 (Third FAQ); and

● 2 May 2016 (Fourth FAQ),

(collectively, the FAQ Documentation)

[30] Formal consultation meetings with representatives of the South Australian workforce were held on 20 April 2016, 21 April 2016, 11 May 2016 and 13 May 2016. A meeting was also conducted on 18 May 2016 which representatives of the South Australian workforce and representatives of BGC attended. 11 Meetings were also held with the Western Australian workforces.12

[31] Prior to the commencement of the access period, the employees were provided with a final pack of information which included the following documents. 13

● A letter dated 23 May 2016 from Martin Spibey, Executive General Manager Mining at BGC.

● A “Reference Documents” information document that set out the websites on which employees could find a copy of the Mining Award, the Coal Award, the National Employment Standards and the FW Act (Reference Document).

● A table setting out the final agreed preserved conditions for the Preserved Conditions Contracts.

● A comparison table for specific sites, comparing the Proposed Agreement, Mining Agreement and Maintenance Agreement.

● The employees’ personal Preserved Conditions Contracts.

● A copy of the Proposed Agreement, as required by section 180(2)(a)(i) of the FW Act.

● The vote pack from Cirrena IVS.

(Collectively, the “Final Information Pack”)

[32] A majority of employees approved the Proposed Agreement on 14 June 2016.

Relevant Statutory Provisions

[33] Sections 186 and 187 of the FW Act set out the conditions which must be met for an agreement to be approved by the FWC. Section 186 and 187 provide as follows:

“186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).

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.

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Requirement that there be no unlawful terms

(4) The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

Requirement that there be no designated outworker terms

(4A) The FWC must be satisfied that the agreement does not include any designated outworker terms.

Requirement for a nominal expiry date etc.

(5) The FWC must be satisfied that:

(a) the agreement specifies a date as its nominal expiry date; and

(b) the date will not be more than 4 years after the day on which the FWC approves the agreement.

Requirement for a term about settling disputes

(6) The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.

Note 1: The FWC or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

Note 2: However, this does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).

187 When the FWC must approve an enterprise agreement—additional requirements

Additional requirements

(1) This section sets out additional requirements that must be met before the FWC approves an enterprise agreement under section 186.

Requirement that approval not be inconsistent with good faith bargaining etc.

(2) The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.

Requirement relating to notice of variation of agreement

(3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), the FWC must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).

Requirements relating to particular kinds of employees

(4) The FWC must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.

Note: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees.

Requirements relating to greenfields agreements

(5) If the agreement is a greenfields agreement, the FWC must be satisfied that:

(a) the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and

(b) it is in the public interest to approve the agreement.”

Consideration

[34] I am satisfied that the group of employees to be covered by the Proposed Agreement were fairly chosen, as required by section 186(3) and (3A) of the FW Act.

[35] It was not contested, and I am satisfied that, the terms of the Proposed Agreement do not contravene section 55 of the FW Act as required by subsection 186(2)(c) and that the Proposed Agreement does not contain any unlawful or designated outworker terms prohibited by subsections 186(4) and 186(4A).

[36] I am satisfied that the nominal expiry date complies with subsection 186(5) of the FW Act.

[37] I am satisfied that clause 33 of the Proposed Agreement contains a dispute resolution provision which complies with subsection 186(6) of the FW Act.

[38] Subsections 186(2)(b) and 187(2)-(5) of the FW Act do not apply to the Proposed Agreement. 14

[39] Therefore the remaining issues which I need to be satisfied of are whether:

(a) the Proposed Agreement was genuinely agreed to by the employees covered by the Proposed Agreement in accordance with subsection 186(2)(a) of the FW Act and

(b) the Proposed Agreement passes the BOOT, as required by section 186(2)(d).

[40] In an attachment to an email dated 25 August 2016, BGC proposed a number of undertakings to address concerns raised by the FWC and the Unions in relation to the BOOT prior to Hearing. 15 Subsequently BGC have proposed additional undertakings.16 The Unions assert that the undertakings proposed by BGC (Proposed Undertakings) are inconsistent with section 190(3) of the FW Act and therefore can not be relied upon to satisfy the BOOT.17

Was the Proposed Agreement genuinely agreed to by the employees covered by the Proposed Agreement in accordance with section 186(2)(a) of the FW Act?

[41] Section 188 of the FW Act sets out the circumstances required for an agreement to be ‘genuinely agreed to’ for the purposes of subsection 186(2)(a):

“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

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

[42] Subsections 180(2) and 180(3) of the FW Act set out the employer’s obligations to provide the written text of the agreement and incorporated material as well as notice of the time, place and method for the vote during the seven-day “access period” ending immediately prior to the vote. Subsection 180(5) sets out the employer’s obligation to explain the terms of agreement in an appropriate manner prior to the vote. Subsection 182(1) provides that a non-greenfields single enterprise agreement is made when a majority of employees to be covered by the proposed agreement cast a valid vote to approve the agreement

[43] It was not contested, and I am satisfied, that the requirements in subsections 180(3), 181(2) and 182(1) have been met. Subsection 182(2) is not relevant in this matter.

[44] The Unions assert that BGC has not complied with preapproval requirements contained in section 180(2) or 180(5) of the FW Act. The Unions also assert that there are reasonable grounds for believing that the Proposed Agreement was not genuinely agreed in accordance with subsection 188(c) of the FW Act. 18

Did BGC ensure that the employees had access to the Proposed Agreement and other material incorporated by reference in the Proposed Agreement in accordance with section 180(2) of the FW Act?

[45] Subsection 180(2) of the FW Act imposes, as a precondition of approval of an agreement, an obligation on employers to take all reasonable steps to ensure employees have access to the written text of the agreement and any other material incorporated by reference in the agreement.

[46] The Unions assert that BGC failed to comply with section 180(2) because it failed to take reasonable steps to ensure employees had access to the Mining Award and the Coal Award which the Unions say were incorporated into the Proposed Agreement. 19

[47] It was not contested, and I am satisfied, that provisions of the Coal Award were incorporated into the Proposed Agreement. See for example, Schedule A which states that:

“Definitions in the Coal Award will also be incorporated into this Agreement but only to the extent necessary to give effect to the clauses listed above where they apply to a particular Employee. Coal Mining Employees will also receive a flat payment of $35 per week in addition to the weekly rates specified in Schedule A of the Coal Award.”

[48] The ‘Coal Award’ is defined in clause 5 of the Proposed Agreement to mean:

“… the Black Coal Mining Industry Award 2010 as at the Commencement Date.”

[49] BGC submit that the Mining Award was not incorporated in the Proposed Agreement but say that, in any event, it took all reasonable steps to ensure employees had access to both the Mining Award and the Coal Award. 20

[50] BGC say that, during bargaining, employees were made aware by way of the Second FAQ where they could locate a copy of the Mining Award. BGC also assert that copies of the Mining Award were made available in the crib facilities at its South Middleback Ranges site in South Australia (SMR). This evidence was contested by the Unions.

[51] BGC also point out that the Final Information Pack provided to the employees prior to the commencement of the access period included the Reference Document which set out the websites on which the employees could find a copy of the Mining Award, Coal Award, National Employment Standards and the FW Act. 21

[52] BGC assert that on the authority of McDonalds Australia Pty Ltd: Shop, Distributive and Allied Employee’s Association (McDonalds Case) 22 the links in the Reference Document to websites where employees could view the Mining Award and the Coal Award were sufficient to discharge its obligations under subsection 180(2) of the FW Act to provide access to materials incorporated in the Proposed Agreement.23

[53] Subsequent decisions of the FWC have established that the decision in the McDonalds Case does not have universal application. There may be circumstances where the characteristics of the workplace and the composition of the workforce require more than an incorporated document being freely available in the public domain for an employer to discharge its obligation, to ensure employees had access to the incorporated document during the access period. 24

[54] The Unions submit that the characteristics of the workplace and the composition of the workforce in this matter are such that provision of links to an online version of the incorporated information did not discharge BGC’s obligation to take all reasonable steps to provide access to the incorporated information during the access period. 25

[55] The employees are predominantly blue collar workers involved in physical mining and/or maintenance of plant and equipment. The Unions say that work of this nature often does not allow for ready access to computers or the time to do so. They also say that it should not be presumed that all employees had the requisite computer skills necessary to readily access the information online. 26

[56] The Final Information Pack contained a link to the Modern Award section of the Commission website. 27 From this landing point employees were required to locate the relevant awards.28 This task is not straightforward.

[57] Where the employer seeks to rely on the incorporated material being freely available in the public domain online, the employer bears the onus of establishing that providing access online is reasonable in the circumstances. 29 For example, the tendering of evidence that all employees had access to computers during the access period30 and that the relevant documents are readily located and accessed online.31

[58] At the hearing, Mr Ruwiza gave evidence that he had instructed managerial staff to place copies of the Mining Award in crib rooms at the South Middleback Ranges. 32 Evidence was not given by these staff to confirm that this in fact occurred and the direct evidence of Mr Whitlock was that a printed copy of the Mining Award was never available to him in his crib room.33 The evidence of Mr Ruwiza does not address the issue of access to the Coal Award or access to the Mining Award (if it was incorporated) at other mine sites.

[59] BGC have not adduced evidence to adequately demonstrate that the employees had the skill and/or opportunity to access all the incorporated material online. BGC have not adequately explained why it was not reasonable for it to include printed copies of the incorporated material in the Final Information Pack provided to each individual employee or, if printing costs were an issue, to provide an electronic copy of the incorporated material rather than a website link.

[60] I am therefore not satisfied that BGC has taken all reasonable steps to comply with its obligation under subsection 180(2) of the FW Act to ensure that during the access period the employees were given a copy of, or given access to, materials incorporated by reference into the Proposed Agreement.

Did BGC take all reasonable steps to ensure the effect of the terms of the Proposed Agreement were explained to employees as required by section 180(5) of the FW Act?

[61] Subsection 180(5) of the FW Act imposes; as a precondition of approval of an agreement, an obligation on employers to take all reasonable steps to ensure that the terms of the agreement and the effect of those terms are explained to employees in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

[62] BGC submit that it took all reasonable steps to explain the terms of the Proposed Agreement through ongoing discussions with the employees, the distribution of extensive written materials and via consultation meetings. 34

[63] The CFMEU assert that there are a number of provisions of the Proposed Agreement which they say are less beneficial vis-a-vis the Mining Award or the Coal Award and that subsection 180(5) of the FW Act imposed on BGC an obligation to draw employees’ attention to these provisions. 35

[64] The CFMEU submit that employees were never informed that under the Proposed Agreement as compared to the Mining Award, there was:  36

● no obligation on BGC to notify a part-time employee of their ordinary hours of work and start and finishing times;

● no provision requiring BGC to pay part-time employees overtime when they worked outside their ordinary hours;

● no requirement that BGC allow employees to take a meal break within 5 hours of starting work and every 5 hours thereafter;

● no job search entitlement when employees are notified that their position was to be made redundant;

● no requirement that an employee given notice of termination on the basis of redundancy still be paid out redundancy if they decide to leave their employment during the notice period;

● a right on the part of BGC to deduct advance payments and debts owing by the employee to BGC from wages;

● no requirement that the number of ordinary hours could be increased from 10 to 12 without agreement of a majority of affected employees;

● no requirement that employees’ spread of hours be agreed by a majority of affected employees;

● no rest breaks for employees who worked overtime;

● an obligation on the part of an employee to give at least two weeks’ notice in writing of an intention to take annual leave;

● a right on the part of BGC to direct an employee to take annual leave when they had accrued an excessive amount of annual leave without first genuinely trying to reach agreement with the employee about taking annual leave;

● a right on the part of BGC to direct an employee to take any amount of annual leave when the employee had accrued an excessive amount of leave (i.e. BGC could direct an employee to take one day of annual leave). Under the Mining Award, an employer could direct an employee to take a minimum of 1 weeks’ leave;

● a right on the part of BGC to direct an employee to take accrued annual leave so that they are left with no accrued annual leave. Under the Mining Award employees must be left with at least 6 weeks annual leave if directed to take excessive annual leave by an employer;

● no right for an employee to give BGC notice of an intention to take annual leave where they have accrued an excessive amount of annual leave, with BGC having an obligation to grant the employee annual leave;

● no requirement that any agreement to cash out annual leave be recorded in writing and signed by both the employee and BGC;

● no right for an employee who has given notice of termination to take a day off work without loss of pay to seek alternative employment; and

● no provision deeming that an employee has abandoned their employment if they are absent from work for more than 2 days without notice to BGC. 37

[65] In relation to the Coal Award, the Unions submit that the Proposed Agreement inter alia contains less beneficial terms vis-a-vis the Coal Award as follows:

● a right on the part of BGC to deduct advance payments and debts owing by the employee to BGC from wages;

● no provision deeming that an employee has abandoned their employment if they are absent from work for more than 2 days without notice to BGC;

● imposes a higher burden of proof, allows for more frequent requests for proof in relation to personal leave and does not explicitly refer disputes in relation to personal leave to the dispute resolution procedure;

● no requirement that BGC allow employees to take a meal break within 5 hours of starting work and every 5 hours thereafter; and

● imposes no requirement that an employee who is required to, and agrees to, work more than five hours without a meal break will be paid at the applicable overtime rate until the meal break is taken.

[66] For the reasons outlined below at paragraphs 214-300 I am satisfied that the Unions are correct in their assertion that both the Mining Award and the Coal Award contain provisions which are more beneficial than those contained in the Proposed Agreement.

[67] In the F17 Statutory Declaration filed in support of the Application to approve the Proposed Agreement, Ms Tolomei declared, in answer to question 3.5 of that Form F17, that the Proposed Agreement did not contain any term or condition less beneficial than the Award. 38

[68] Further, Counsel for BGC conceded during the hearing that at no point during bargaining did BGC draw to the attention of its employees any provisions of the Awards which were more beneficial than the Proposed Agreement. 39

[69] In Falcon Mining Pty Ltd (Falcon Mining) 40 the employer was found to have failed to provide its employees with particulars about the terms of the agreement which were less beneficial than those in the relevant award and to have falsely asserted in the Form F17 Employer Declaration that the agreement in question did not contain any term or condition less beneficial than the Award. Deputy President Asbury held that these errors inter alia were reasonable grounds for believing that reasonable steps were not taken to explain the terms of the agreement and their effect, and as a consequence, the agreement in question could not be said to be genuinely agreed for the purposes of section 188 of the FW Act.

[70] In Falcon Mining there was evidence of additional failures to comply with the requirements for approval which Deputy President Asbury took into account in their entirety in reaching her conclusion. 41 I am of the view that it is not necessary for all of those failures to be present in order for a finding to be made that reasonable steps were not taken to explain the terms of an agreement and the effect of those terms.

[71] The Unions also assert that there are reasonable grounds for believing that BGC provided incorrect or inaccurate information to employees about the effect of sub-clause 7.2 of the Proposed Agreement. 42

[72] At question 3.4 of the F17 Statutory Declaration, Ms Tolomei swore that the rates of pay prescribed in sub-clause 7.2 of the Proposed Agreement applying other than to Coal Mining Employees “…will always be better than rates in the Mining Award.” by reason of the escalation required by sub-clause 7.3 of the Proposed Agreement. 43

[73] Sub-clause 7.3 of the Proposed Agreement provides that:

“The Base Hourly Rate of Pay … will increase from time to time if this is necessary to ensure that it is no less than the applicable Award wage rate.”

[74] As Ms Tolomei conceded under cross examination, the escalation clause merely requires the base hourly rate to be at least the same as the applicable Mining Award rate, not always to be better. 44

[75] The Unions also assert that a number of the provisions of the Proposed Agreement are so uncertain or confusing that BGC could not explain the effect of those terms in an appropriate manner. The Unions also assert that these same provisions are so uncertain or confusing that the employees could not have genuinely agreed to them. These assertions of the Union are considered later in this Decision.

[76] In Falcon Mining, Deputy President Asbury identified a number of factors against which to assess the reasonableness of the steps that an employer has taken to ensure that the terms of an agreement have been explained:

● “The size of the employer;

● The resources of the employer including available mechanisms and available expertise to provide an explanation;

● The role and qualifications of the persons who provide the explanation; and

● Whether the capacity or the ability of employees to receive an explanation is impacted by issues such as language, literacy, access to electronic media, hours of work, rosters, the locations at which work is performed, travel to and from remote locations or the availability of employees to receive an explanation.” 45

[77] BGC is a large employer who employs approximately 1,600 workers. 46 It has internal and external access to skilled and experienced human resources, industrial relations and employment law advice.47 The employees are blue collar workers.48 These circumstances point to a higher threshold of reasonableness than a smaller employer and/or an employer with a more sophisticated workforce.

[78] Based on the errors contained in the F17 Statutory Declaration, the admission of Counsel at hearing that at no point during bargaining did BGC draw to the attention of its employees any provisions of the Awards which were more beneficial than the Proposed Agreement and my later findings at paragraphs [109]-[135] that certain provisions were so uncertain or confusing that employees could not have genuinely agreed to them, I am satisfied that there are reasonable grounds for concluding that BGC acted in breach of subsection 180(5) of the FW Act in that it did not take all reasonable steps in the circumstances to ensure that the effect of the terms of the Proposed Agreement were explained to employees in an appropriate manner.

Are there reasonable grounds for believing that the Proposed Agreement was not genuinely agreed to in accordance with subsection 188(c) of the FW Act?

[79] The Unions submit that the Proposed Agreement could not have been genuinely agreed to in accordance with subsection 188(c) of the FW Act because they assert as follows.

● Employees did not have a sufficient stake in the Proposed Agreement to have genuinely agreed to its terms.

● Employees did not have sufficient knowledge or experience of the black coal industry to be in a position to genuinely agree to provisions of the Proposed Agreement which are intended to apply to coal mining.

● The Proposed Agreement contains provisions that were so uncertain or confusing that employees could not have understood the provisions and therefore could not have genuinely agreed to them.

● BGC misled the employees into approving the Proposed Agreement and therefore they did not genuinely agree to its terms.

● BGC coerced the employees into approving the Proposed Agreement and therefore they did not genuinely agree to its terms.

● BGC breached the good faith bargaining obligations and this conduct caused employees to approve the Proposed Agreement without genuinely agreeing to its terms.

● BGC endeavoured to circumvent the objects of the FW Act in relation to collective bargaining and this conduct caused employees to approve the Proposed Agreement without genuinely agreeing to its terms.

A. Did the employees who voted to approve the Proposed Agreement have sufficient stake in the Proposed Agreement to have genuinely agreed to its terms?

[80] The Unions assert that the employees who voted to approve the Proposed Agreement did not have sufficient stake in the Proposed Agreement to have genuinely agree to its terms. 49

[81] The Full Bench of the FWC recently considered the meaning of the term ‘genuinely agreed’ in the context of section 188(c) in KCL Industries Pty Ltd [2016] FWCFB 3048 (KCL Decision).

[82] In the KCL Decision the Full Bench held that genuine agreement requires that there be no obvious disjunction between the content of the agreement and the characteristics of those who have entered into it. 50

[83] In parallel with this Application, the scope of the agreement considered in the KCL Decision extended coverage to black coal mining although the employer did not at that time engage in black coal mining. 51

[84] Relevantly, at the time the agreement the subject of the KCL Decision was voted on, KCL issued employees with a document which included the following statement:

“You are entitled to vote on the proposed Enterprise Agreement, and you will see that it provides a safety net along the same lines as Awards do, but the safety net is higher than that provided under the awards. It provides for employees to be paid on the same structure as the awards, meaning a base rate, with penalties for overtime, weekend and late work etc, or if it suits you and the company, you can be paid a flat rate, as agreed. It also allows for payout of annual leave and long service leave where agreed.

Approval of the Enterprise Agreement will not mean that you are then paid at the rates stipulated in the Agreement. Subject to operational needs and satisfactory performance, you will continue to be paid for your current work in accordance with our existing arrangements.” 52

[85] The requirement that an agreement genuinely be agreed betokens a concern with the authenticity and moral authority of an agreement. 53

[86] The Full Bench found in the KCL Decision that no ‘authenticity’ could attach to the agreement of the employees who approved it to the rates and conditions in the agreement because the employees had no “stake” in the agreement’s rates of pay and conditions and could not give informed consent in relation to occupations and industries in which they did not work and presumably had no experience. 54

“[36] In summary, the position is that the Agreement covers a wide range of classifications most of which have no relevance to the work performed by KCL’s three existing employees, encompasses industries in which KCL does not currently operate, and contains rates of pay which, even in respect of those classifications relevant to the current employees, are not to apply to those employees. In those circumstances we do not consider that any authenticity could attach to the agreement of the two employees to the rates and conditions in the Agreement. The employees had no “stake” in the Agreement’s rates of pay, since they were assured that their existing, higher rates of pay would remain in place (subject to “operational needs and satisfactory performance”), and they could not have given informed consent in relation to occupation and industries in which they did not work and presumably had no experience.  55

[37] The latter consideration applies with particular force to the Agreement’s coverage of work in the black coal mining industry. The award covering that industry, the Black Coal Mining Industry Award 2010, contains a range of provisions which are specifically tailored to the unique circumstances of that industry. An example of that is the industry-specific redundancy scheme contained in clause 14 of the Award, which provides for severance and retrenchment benefits greatly in excess of the NES redundancy pay provisions. Those benefits have not been included in the Agreement, and thus would not apply to hypothetical future coal mining employees. The two employees who agreed to this outcome could never have received the benefit of these provisions, because their work is not covered by the Black Coal Mining Industry Award, and there is nothing to suggest that they had any knowledge of the existence of these benefits. It is impossible to conclude that the provisions of the Agreement applicable to black coal mining were agreed with the informed consent of the existing employees.”

[87] In the present Application, the employees who voted up the Proposed Agreement not only had their existing higher rates and better conditions contractually preserved in the common law Preserved Conditions Contracts, but they were also offered additional contractual entitlements for voting yes to the Agreement making the content of the Proposed Agreement even less important to them.

[88] BGC’s own witness, Mr Ruwiza, conceded that:

“The main issue that was consistently raised with me concerned the preservation of rates and other employment conditions in individual contracts and not in the Agreement.” 56

[89] This was confirmed by a number of employees who gave evidence. 57

[90] According to Mr Paul Bolitho, who was employed as a plant operator by BGC at South Middlebank Ranges:

“I had conversations with many other employees about the agreement. These employees were clearly under the impression that if they voted for the agreement and signed the contract they had been given, they would keep their current rates and conditions for however long they remain employed by BGC.” 58

[91] A final version of the common law Preserved Conditions Condtracts containing the preserved rates and conditions was issued to the employees prior to the vote for the Proposed Agreement. 59 Attached to and forming part of these contracts was a document entitled ‘Annexure A: Comparison Table – Preserved Conditions’. This annexure, which varied from site to site, listed an alternative classification structure, rates of pay and a vast number of key conditions of employment all more favourable than those contained in the Proposed Agreement which would apply to existing employees if the Proposed Agreement was approved.60

[92] As was the case in the KCL Decision, in this Application the employees were asked to vote up an agreement containing terms and conditions of employment that would apply to future employees and that would have little relevance to or impact on the existing employees. In this regard, the number of employees involved in approving the agreement in the KCL Decision is irrelevant to the question of whether they had a ‘stake’ in the agreement because its terms did not apply to them. In my view, the KCL Decision cannot be distinguished from this Application merely on the grounds of the number of employees involved.

[93] In its defence, BGC say that the rate of pay in the Preserved Conditions Contracts references the Proposed Agreement. The fact that the Preserved Conditions Contracts make reference to the Proposed Agreement does not detract from the fact that such a large number of more favorable key conditions of employment were proposed to be contained in the Preserved Conditions Contracts such that existing employees lacked the requisite ‘stake’ in the Proposed Agreement.

[94] BGC also say that the employees were familiar with the concept of common law contracts providing more beneficial conditions that the prevailing enterprise agreement. 61 It is unclear how this assists to establish that the employees had a stake in the Proposed Agreement. To the contrary, a history of regulation by common law contracts with more beneficial terms than the prevailing enterprise agreement might cause employees to have even less interest or stake in subsequent enterprise agreements.

[95] Contrary to what is asserted by BGC, the fact that the Preserved Conditions Contracts would become void if the Proposed Agreement was not voted up does not give the employees the requisite ‘stake’ in the rates and conditions contained in Proposed Agreement because, whether or not the Proposed Agreement was approved, the rates and conditions contained in the Proposed Agreement would have little or no relevance or impact on them.

[96] BGC went to considerable effort to make clear to the existing employees that the Proposed Agreement only provided minimum rates and conditions of employment and that it would offer new employees market rates and market conditions. 62 The likelihood that the rates and conditions contained in the Proposed Agreement might never actually be applied to new employees could only lessen ‘the stake’ the existing employees who voted up the Proposed Agreement had in the terms and conditions which the Proposed Agreement prescribed.

[97] BGC sought to argue that the fact access to the more beneficial terms contained in the Preserved Conditions Contracts was dependent on a ‘yes’ vote to the Proposed Agreement gave the employee’s a ‘stake’ in the Proposed Agreement. 63 To the contrary, this simply gave employees a vested interest in the outcome of the ballot rather than any interest or stake in the content of the Proposed Agreement.

[98] BGC also sought to characterise the Unions’ argument that the employees had no stake in the Proposed Agreement because it did not correlate to their actual terms and conditions which were largely set out in the Preserved Conditions Contract, as a submission that only paid rates enterprise agreements could be genuinely agreed. 64

[99] This mischaracterises the argument of the Unions and ignores the factual scenario from which this Application arose. There is nothing prima facie, unusual or sinister about an industrial agreement which contains minimum rates being approved in circumstances where the employer subsequently elects to pay higher market rates in practice. What is unusual about this situation is that the employees were being asked to approve an enterprise agreement which was substantially less beneficial than the existing agreement and were encouraged to do so by being guaranteed that its terms would not apply to them because those terms would be preserved in common law contracts. As an aggravating factor, access to the more beneficial conditions in the common law contracts was made conditional on the approval of the Proposed Agreement. In these circumstances there are reasonable grounds for the Unions to point to the lack of correlation and question the genuineness of the stake employees held in the terms and conditions contained in the Proposed Agreement.

[100] For the reasons articulated above, I am not satisfied that the employees had a sufficient ‘stake’ in the Proposed Agreement to give the necessary ‘authenticity’ to their approval of the Proposed Agreement.

B. Did the employees who voted for the Proposed Agreement have sufficient knowledge or experience of the black coal industry to be in a position to genuinely agree to provisions of the Proposed Agreement which are intended to apply to coal mining?

[101] The CFMEU and the AMWU submit that, in common with the employees in the KCL Decision, the employees who voted up the Proposed Agreement were asked to vote up an agreement which contained provisions in relation to occupations and industries (specifically black coal mining) in which they did not work and of which there is no evidence that they had any experience. 65

[102] It is not disputed that BGC is not currently involved in, and consequently does not employ any employees in, the black coal mining industry.  66 Nor is it contested that, other than for a short time in 2004, BGC has never undertaken work in the black coal mining industry.67

[103] BGC submit that there is no valid distinction between the black coal mining industry and the industries involving the mining of other resources in which it does currently operate. 68 In support of this submission, BGC’s witnesses gave evidence that the work performed in an open cut mine is broadly the same regardless of the commodity being mined.69 BGC also point to some limited concessions by CFMEU’s witness, Mr Wood, that some skills are transferable between metalliferous and black coal mining.70

[104] Such evidence is of little assistance in determining whether the employees were in a position to give informed consent in relation to the provisions of the Proposed Agreement which applied to black coal mining. A cook in a nursing home possesses transferable skills to a cook in the maritime industry, however a cook in the nursing home would have insufficient knowledge of the peculiarities of the maritime industry to determine that an agreement was consistent with the unique circumstances of the maritime industry or that it contained benefits typically afforded employees in that industry.

[105] CFMEU’s witness, Mr Wood, identified a number of differences between the rates and conditions in the Coal Award and the Mining Award. These include that:

● the Coal Award provides for ordinary hours of 35 hours per week, whereas the Mining Award provides for a 38 hour week;

● the Coal Award provides for either 5 or 6 weeks annual leave (depending on whether the worker is a specified shift worker), whereas the Mining Award provides for 4 or 5 weeks;

● the Coal Award has an industry based redundancy scheme and provides redundancy of 3 weeks per year of service uncapped and a minimum of 4 weeks’ notice regardless of length of service, whereas the Mining Award applies the NES;

● the Coal Award provides for 78 weeks’ accident pay, whereas the Mining Award does not provide for accident pay;

● the Coal Award provides for an equivalent of 15 days’ personal leave based on a 7 hour day, whereas the Mining Award provides for 10 days;

● the Coal Award provides for triple time payment when working on a public holiday, whereas the Mining Award provides for double time and a half. 71 Further, the classification structure and competencies are different as between the two Awards;

● the competencies as set out in Schedule A of the Coal Award are designed for black coal mining work;

● the Coal Award does not provide for the casual employment of production and engineering employees, whereas the Mining Award does provide for the casual employment for all classifications; and finally;

● the Coal Award provides that an employee is only required to give a weeks’ notice upon termination of employment, whereas the Mining Award adopts the NES. 72

[106] These differences no doubt arise from the separate industrial evolution of rates and conditions in the mining industry and the black coal mining industry which is detailed in Mr Wood’s statement. Historically, the determination of rates and conditions in the black coal industry has been the province of tribunals both nationally and in Western Australia, separate to the tribunals determining rates and conditions for the majority of Australian workplaces. Such separate tribunals have only been established for a small number of sectors such as public servants and police where there has been some recognition that these sectors have peculiarities which warrant separate and specialised oversight. In the case of the black coal mining industry, this long standing distinction continues to the modern day where black coal mining is differentiated from the mining industry in the panel allocations of this Commission. 73

[107] The existence of differences is in fact acknowledged by BGC in the drafting of the Proposed Agreement. Schedule A lists a significant number of differences between the provisions that apply to employees engaged in black coal mining and those which apply to employees engaged in other types of mining. These provisions deal with fundamental conditions of employment including hours of work, classification structure, rostering, leave entitlements, redundancy entitlements and termination arrangements.

[108] The employees who voted up the Proposed Agreement do not currently work in the black coal industry. There was no evidence tendered to satisfy me that that they had sufficient experience or knowledge of the industry to be in a position to give informed consent in relation to rates and conditions applying to work performed by future employees in the black coal industry, in the event that BGC ever obtains such work.

C. Did the Proposed Agreement contain provisions that were so uncertain or confusing that those provisions could not be understood by employees and therefore could not have been genuinely agreed to?

[109] The Unions also assert that employees could not have genuinely agreed to the Proposed Agreement because the following provisions of the Proposed Agreement are uncertain or confusing: sub-clause 7.3, Schedule 2, clause 15, sub-clause 17.9 and clause 14. 74

[110] The Unions assert that sub-clause 7.3 of the Proposed Agreement is uncertain because it states that the rates of pay set out in sub-clause 7.2 of the Proposed Agreement: 75

“…will increase from time to time if this is necessary to ensure that it is no less than the applicable Award wage rate”.

[111] The Unions say that because the term ‘Award’ is defined by clause 5 of the Proposed Agreement to mean either the Mining Award or the Coal Award, employees could not have been certain what the applicable rate of pay was.

[112] I am satisfied that it is sufficiently clear whether the employees are performing coal mining work so as to enable the employees to be certain about what the applicable Award was.

[113] The Unions also assert that sub-clause 7.3 of the Proposed Agreement is uncertain because the rates of pay referenced in that clause are indexed to the Mining Award which is subject to change at the hand of the FWC.

[114] Sub-clause 7.3 of the Proposed Agreement provides that:

“The Base Hourly Rate of Pay … will increase from time to time if this is necessary to ensure that it is no less than the applicable Award wage rate.”

[115] The actual rates of pay which will apply to non Coal Mining Employees during the lifetime of the Proposed Agreement was therefore unascertainable as at the date of approval of the Proposed Agreement as those rates are dependent on future changes to the Mining Award, which occur as a result of National Wage Reviews conducted in the years to come.

[116] The Unions assert that Schedule A of the Proposed Agreement is also uncertain. 76 Schedule A provides for a base rate of pay for Coal Mining Employees which is calculated by reference to rates of pay contained in a separate document, the Coal Award, as follows:

“Coal Mining Employees will also receive a flat payment of $35 per week in addition to the weekly rates specified in Schedule A of the Coal Award”.

[117] The Proposed Agreement therefore does not contain any actual rates of pay for Coal Mining Employees.

[118] The Coal Award is defined in the Proposed Agreement as the Coal Award as at the Commencement Date. The Commencement Date of the Proposed Agreement has not yet been ascertained so the applicable rate in the Coal Award as at that date cannot yet be determined.

[119] Therefore the rates of pay applying to Coal Mining Employees during the life of the Proposed Agreement are unascertainable and consequently, uncertain as at the date of approval of the Proposed Agreement.

[120] I am satisfied that there are reasonable grounds for believing that employees could not have genuinely agreed to the rates of pay contained in the Proposed Agreement because those rates of pay, either at commencement or subsequently, are not yet ascertainable because they are linked to rates of pay which were not determined as at the time the voting for the Proposed Agreement occurred.

[121] The CFMEU also assert that, having regard to the incorporation of clause 11 of the Coal Award via Schedule A of the Proposed Agreement, there is uncertainty about whether the Proposed Agreement will apply only to school based apprentices or to apprentices more broadly. 77 Schedule A provides that clause 8 of the Proposed Agreement, which is an expansive provision detailing the wages and conditions of apprentices, is substituted with clause 11 of the Coal Award which applies only to school based apprentices.

[122] BGC submits that it is clear that Schedule A of the Proposed Agreement wholly incorporates Schedule A of the Coal Award, which makes provision for apprentices other than school based apprentices. Accordingly, there is no uncertainty in the Agreement preventing genuine agreement.

[123] I am satisfied that the Proposed Agreement is not sufficiently uncertain in relation to apprentices for there to be said to be reasonable grounds for believing employees did not genuinely agree to the Proposed Agreement on that ground.

[124] The CFMEU assert that uncertainty arises as to the application of clause 15 of the Proposed Agreement to Coal Mining Employees. 78 Clause 15 of the Proposed Agreement provides that:

“15. Calculating Overtime

15.1 When computing overtime each day or shift worked will stand alone. Any penalty payments under clause 12 or 13 are in substitution of any other loadings or penalty rates.”

[125] Clause 12 of the Proposed Agreement deals with hours of work for day workers and clause 13 of the Proposed Agreement deals with hours of work for shift workers.

[126] Schedule A of the Proposed Agreement provides that clauses 12 and 13 of the Proposed Agreement do not apply to Coal Mining Employees and that clauses 17, 21, 22 and 24.1 of the Coal Award apply in substitution.

[127] It is unclear what other loadings or penalty rates are intended to be substituted by the penalty payments in the substituted clauses.

[128] In its submissions BGC didn’t specifically address how clause 15 of the Proposed Agreement is intended to apply to Coal Mining Employees. If BGC are unable to provide a clear and concise explanation to the FWC it is difficult to believe those employees who approved the Proposed Agreement were provided with an explanation which ensured they genuinely understood the effect of what they were approving.

[129] The Unions also assert that uncertainty arises as to the application of sub-clause 17.9 of the Proposed Agreement to Coal Mining Employees. 79 Sub-clause 17.9 of the Proposed Agreement provides for annual leave arrangements with respect to remote or cycle work. The Proposed Agreement does not define ‘remote or cycle work’. The Coal Award does not contain any provision for ‘remote or cycle work’. The Unions submit that employees could not have genuinely agreed to undefined work situations which are not contemplated by the Coal Award.

[130] BGC say that the objection is without merit. 80

[131] I am satisfied that the term ‘remote and cycle work’ is sufficiently clear on its face not to create such uncertainty so as to prevent employees having the capacity to genuinely agree to the Proposed Agreement. The fact that an agreement contains a provision not contained in the reference Award does not of itself make that agreement so uncertain as to prevent employees having the capacity to genuinely agree to its terms.

[132] The CFMEU also point out that clause 14 of the Proposed Agreement provides that shift workers who return to work after an 8 hour rest break between overtime shifts are to be paid at ordinary rates of pay, whereas sub-clause 17.6 of the Coal Award provides that shift workers returning to work with less than 10 hours rest break will be a paid double time until such a break occurs. 81

[133] BGC say that Schedule A of the Proposed Agreement provides that clause 17 of the Coal Award is wholly incorporated into the Proposed Agreement and therefore the CFMEU objection is without merit. 82

[134] Schedule A lists the clauses of the Proposed Agreement which will not apply to Coal Mining Employees and the corresponding clause of the Coal Award which will apply instead. Schedule A provides that clause 12 of the Proposed Agreement, which deals with hours of work, shall not apply to Coal Mining Employees and instead will be replaced by clauses 17, 21 and 22 of the Coal Award. Schedule A makes no reference to clause 14 of the Proposed Agreement, which provides for shift workers to return to work at ordinary rates after an 8 hour shift, therefore employees might be under the impression that clause 14 applies to Coal Mining Employees.

[135] I am satisfied that the effect of sub-clause 7.3, Schedule 2, clause 15, sub-clause 17.9 and clause 14 are so confusing and/or uncertain that BGC could not have explained to the employees in an appropriate manner the effect of those terms as required by subsection 180(5) of the FW Act. Further or in the alternative, it appears that there are reasonable grounds for believing that the Employees could not have genuinely agreed to those terms as required by subsection 188(c) of the FW Act.

D. Did BGC mislead the Employees into approving the Proposed Agreement and if so does this form reasonable grounds for believing that the Proposed Agreement was not genuinely agreed to by the Employees?

[136] The CFMEU assert that BGC misled the employees into approving the Proposed Agreement and that this constitutes reasonable grounds for believing the Proposed Agreement was not genuinely agreed to by the employees. In particular the CFMEU allege that BGC provided misleading information in relation to the Proposed Agreement and its interaction with the Preserved Conditions Contracts in the FAQ Documentation circulated to the employees. 83

[137] BGC deny misleading employees and say that at all times BGC sought to be honest, open and transparent in its communications with employees about the Proposed Agreement, the reasons for the Proposed Agreement and the operation of the Preserved Conditions Contracts. 84

[138] The CFMEU identify the answer to Question 7 of the First FAQ as an example of BGC providing misleading information. The CFMEU say BGC’s answer to Question 7 which asked:

“Q.7 What are the key changes under the new Mining Agreement that could impact on me?”

was misleading because it represented that public holiday penalty rates would increase under the Proposed Agreement when this was not in fact the case. 85

[139] The Proposed Agreement provides in sub-clause 12.2 that an employee who works on a public holiday is to be paid double time and a half at their base hourly rate of pay. Under the Mining Agreement if an employee works on a public holiday they are entitled to be paid for all hours worked as if it were a normal day plus an additional 8 hours at their all purpose hourly rate. The CFMEU provide, by way of example, the situation of a Level 7 employee under the Proposed Agreement who works an 8 hour shift on a public holiday. The CFMEU assert that under the Proposed Agreement the employee would be entitled to double time and a half calculated at the rate of $24.45 giving a total of $509, whereas under the Mining Agreement the employee would be entitled to a rate of $44.65 per hour giving a total of $714.40. 86

[140] BGC say that the statement “Public holiday penalty rates increase”, in answer to Question 7, is not untrue and that further clarification of the impact of the proposed changes was provided in subsequent FAQ Documentation. 87

[141] The submission made by BGC presumes the employees applied a very narrow interpretation to the meaning of the phrase ‘penalty rates’. It is true that under the existing agreement employees are paid at their ordinary rate of pay for the hours they actually work on a public holiday and under the Proposed Agreement they are paid at the rate of double time and a half. However, under the existing agreement, employees are also paid an additional 8 hours of pay. It is quite possible that the employees understood this bonus payment to be the ‘penalty’ paid by their employer for requiring them to work on public holidays. In these circumstances, employees would reasonably expect that if BGC told them there would be an increase in penalty rates for public holidays this would mean they would receive a larger total take home pay on a public holiday if the Proposed Agreement applied, rather than the existing agreement.

[142] The fact that the proposed changes to payments for public holidays would impact negatively on employees was clarified by BGC in the Second FAQ. 88

[143] While the answer to question 7 of the First FAQ, on its own, might have had the potential to mislead the employees I am not satisfied that in light of the subsequent FAQs’ the answer to question 7 misled the employees such that it created reasonable grounds for believing that the Proposed Agreement was not genuinely agreed to by the employees.

[144] The CFMEU also submit that BGC misled the employees in its answer to question 8 of the First FAQ when stated that:

“The new Agreement will not impact on most of your current conditions”. 89

[145] CFMEU say that employment conditions generally, and in particular wages and allowances, are significantly lower under the Proposed Agreement than the existing agreement and therefore the statement by BGC is misleading. 90

[146] BGC say the statement is not misleading because elsewhere in the First FAQ it provided the following information: 91

“Q 3: What's the difference between the current Agreement and the new one BGC is proposing?

The new Mining Agreement will provide the minimum conditions that you are entitled to under the law. Any Agreement we agree on must be approved by the Fair Work Commission. The new Mining Agreement will be your safety net.

A separate table in your information pack outlines the key differences.

Q4: Does this mean that all my current conditions will be less because of the new Mining Agreement?

No. Many of your current terms and conditions will remain unchanged.

We are proposing to preserve most of your current conditions in your contract of employment while you remain on your current Project.

...”

[147] If registered, the Proposed Agreement will impact on the current conditions of the employees in the sense that many conditions will no longer be protected by an enterprise agreement and will only be protected if the employee elects to enter into a Preserved Conditions Contract.

[148] BGC made it clear in the First FAQ that it reserved the right to reduce the terms and conditions contained in the Preserved Conditions Contracts. This is something which could not occur readily if those conditions were contained in an enterprise agreement. 92

[149] For these reasons I am satisfied that BGC’s answer to Question 8 in the First FAQ was misleading.

[150] The CFMEU also say that BGC misled employees in its answer to questions 13 and 19 of the Fourth FAQ when it said: 93

“Q 13: Can we get slightly increased rates than the proposed rates in the new Agreement?

No. The new Mining Agreement must be based on minimum industry Award conditions which allows us to adopt different employment conditions ‘packages’ as appropriate to the different regions and sectors we may operate in the future. We are proposing to preserve your current rates of pay through your individual employment contracts.

We have reviewed a number of recent enterprise agreements of our competitors and labour hire companies. Our findings indicate that the trend is towards agreements with rates that are closer to the Mining Industry Award. Some agreements reflect the minimum while others have additional conditions.

Our aim is to position ourselves to be as competitive as we can – to match those companies that have the minimum conditions.

Any additional conditions that we are able to provide will be included in the contracts of employment.

…

Q 19: Can we maintain the current redundancy conditions in mining agreement – not in individual contracts

No. The proposed Mining Agreement must be based on minimum industry Award conditions which allows us to adopt different employment conditions ‘packages’ as appropriate to the different regions and sectors we may operate in the future.”

[151] The Unions assert that these answers are misleading because they imply that BGC could not lawfully offer terms and conditions above those contained in the Mining Award. 94

[152] BGC say that it is clear that the word ‘must’ was intended to relate to the Proposed Agreement and not to enterprise agreements generally. 95

[153] I am satisfied that the word ‘must’ in this context appears to imply that the terms of the Proposed Agreement can only be the minimum industry award conditions. If the answer had been phrased as either:

“The new Mining Agreement is based on minimum industry Award conditions to allows us to adopt different employment conditions ‘packages’ as appropriate to the different regions and sectors we may operate in the future.”

OR

“The new Mining Agreement must be based on minimum industry Award conditions to allow us to adopt different employment conditions ‘packages’ as appropriate to the different regions and sectors we may operate in the future.”

or a similar formulation which made clear that BGC have chosen to apply the minimum industry conditions for business reasons rather than being compelled by statute to do so could have avoided any potential misunderstanding.

E. Did BGC coerce the employees into approving the Proposed Agreement and if so is this reasonable grounds for believing that the Proposed Agreement was not genuinely agreed?

[154] The Unions assert that conduct of BGC during the agreement making process was coercive and contrary to sections 343 and 345 of the FW Act, which provide as follows. 96

“343 Coercion

(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b) exercise, or propose to exercise, a workplace right in a particular way.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply to protected industrial action.”

“345 Misrepresentations

(1) A person must not knowingly or recklessly make a false or misleading representation about:

(a) the workplace rights of another person; or

(b) the exercise, or the effect of the exercise, of a workplace right by another person.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.”

[155] Whether the conduct constituted breaches of those sections of the FW Act is a matter for a different application. What is relevant to this Application is whether there are reasonable grounds for believing that BGCs conduct, whether or not in breach of sections 343 or 345 of the FW Act, caused the employees to vote in favour of the Proposed Agreement despite not genuinely agreeing to it.

[156] BGC deny that its conduct amounted to coercion, intimidation or misleading conduct. 97

[157] Genuine agreement requires that the consent of the employees was informed and that consent was given in the absence of coercion. 98

[158] When considering whether employees have been coerced, intimidated, misled or misinformed into approving an agreement there is no requirement that the conduct of the person involved was intentional. All that is required is that the FWC be satisfied that there are reasonable grounds for believing the agreement was not genuinely agreed by employees. 99

[159] The conduct complained of must be more than persuasion or inducement:

“What is required to establish coercion is that free will of employees deciding whether or not to improve an agreement is overborne by force, intimidation or a threat to dismiss or otherwise injure the employees in their employment or generally” 100

[160] Mr Fiebig, a bargaining representative for a number of employees and a witness for the AMWU, gave evidence that during a video link up with Western Australian bargaining representatives arranged by BGC at his request, one of the Western Australian employees, Mr Cody Clements, told him that:

“They were too scared to vote no, and pretty much said everyone was voting yes over there, because they’d already been made redundant and, yes, they got told that if they vote no again, they could get made redundant again. 101

[161] BGC chose not to call Mr Cody, any of the Western Australia bargaining representatives or any employees who voted in favour of the Proposed Agreement.

[162] The decision to not do so was raised with Counsel for BGC on the first day of the Hearing and no application was made to seek to adduce rebuttal evidence on the following scheduled second day of the Hearing. 102

[163] Mr Fiebig’s hearsay evidence that Western Australian employees were threatened with the loss of their jobs as a direct consequence of refusing to approve the Proposed Agreement therefore goes unchallenged. 103 Mr Fiebig’s credibility as a witness was not brought into doubt in the course of cross examination.

[164] Having identified prima facie grounds for believing that the Proposed Agreement was not genuinely agreed it then falls to BGC to prove that those grounds were not reasonable. BGC could have done so by calling Mr Cody, any of the other Western Australian bargaining representatives or any employees who voted in favour of the Proposed Agreement. BGC failed to do so. In the absence of any evidence in rebuttal of Mr Feibig’s evidence that the Proposed Agreement was not genuinely agreed, Mr Feibig’s evidence stands.

[165] The Directions issued to the parties on 2 September 2016 directed BGC to provide a copy of the Directions inter alia to each employee whose terms of employment were proposed to be regulated by the Proposed Agreement. The Directions, at paragraph [18], provided that:

“Any employee whose terms of employment are proposed to be regulated by the Agreement who, having taken into account the Proposed Undertakings, still objects to the Agreement being approved, are invited to provide details of those objections in writing to my Chambers by close of business, Thursday 15 September 2016. In the event of such contact being made, the Application will be listed for Hearing shortly after that date. In the absence of any such contact being made a conclusion about this Application may be made on the written materials filed to that date.”

[166] BGC say that the FWC should give regard to the number and nature of objections received by the FWC pursuant to paragraph [18] of the Directions, when determining whether the Union’s allegation that BGC engaged in misleading or coercive conduct in such a way as to give reasonable grounds for believing the Proposed Agreement was not genuinely agreed is made out. 104

[167] The FWC received a number of confidential objections to the Proposed Agreement on or before 15 September 2016. Consistent with the allegations of Mr Fiebig, they included allegations inter alia that “people feel pressured into voting yes”. It was also alleged that employees did not wish to contact the FWC with objections for fear of identification and reprimand. Given this latter allegation and that the objections received were unsworn, provided on a confidential basis and therefore were untested, limited weight could be given to this material.

F. Did BGC breach the good faith bargaining obligations and, if so, do these breaches form reasonable grounds for believing that the Proposed Agreement was not genuinely agreed?

[168] The AMWU submit that BGC breached the good faith bargaining obligations contained in sections 187(2) and 228 of the FW Act undermining collective bargaining and resulting in employees approving the Proposed Agreement, despite not genuinely agreeing to it. 105

[169] Section 187(2) is not relevant in this Application because section 187(2) only applies where a scope order in in operation and there is no scope order in operation in this Application. 106 However there are potentially circumstances in which conduct in breach of the good faith bargaining obligations contained in section 228 might form reasonable grounds for believing that a proposed agreement was not genuinely agreed.

[170] The requirements for good faith bargaining are set out in section 228 of the FW Act as follows:

“228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

Note: See also section 255A (limitations relating to greenfields agreements).

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”

[171] The Unions assert that BGC endeavoured to exclude the Unions from the negotiating process. To the extent it allowed the Unions to participate, the Unions say that BGC did not genuinely engage with or recognise the Unions. 107

[172] In relation to the exclusion of the Unions from the bargaining process, the Unions point out that despite being the default bargaining representative of a number of employees, BGC did not initially engage the Unions in the bargaining process and it was not until the Unions contacted BGC requesting to be involved in the process that BGC began engaging with the Unions. 108

[173] For example, Mr McMillan, State Organiser for the AMWU, complains that despite the AWMU being the nominated and default bargaining representative for a number of the employees, BGC did not invite him to participate in the negotiations for the Proposed Agreement until he requested that they do so on 2 May 2016. 109

[174] Mr Martin, an AWU organiser, complains that although AWU was the default bargaining agent for a number of employees, the AWU were not included in negotiations until Mr Martin insisted on 10 May 2016 that he be permitted to attend the bargaining meeting scheduled to be held on 11 May 2016. 110

[175] Similarly, the CFMEU did not become involved in the negotiations until a letter from Ms Candy, an Industrial Organiser with the CFMEU, on 6 May 2016 prompted BGC to provide an information pack to Ms Candy, on 10 May 2016. 111

[176] BGC say that its obligation to engage in good faith bargaining does not extend to requiring it to notify default bargaining representatives at the commencement of bargaining and, in any event, that its compliance with its good faith bargaining obligations are irrelevant to whether the Proposed Agreement was genuinely agreed. 112

[177] BGC say it has complied with all its good faith bargaining obligations. In particular, BGC say that once it was given notice of intention to be involved in the bargaining process by each of the Unions it took appropriate steps to involve and engage the Unions. 113

[178] For example, BGC responded to Mr McMillan’s request to be involved in negotiations by providing him, on 6 May 2016, with the information pack provided to employees and an invitation to attend the next meeting scheduled for 11 May 2016. 114 On 10 May 2016, BGC sent Mr McMillan a further information pack and advised him that bargaining meetings would be held on 11 May 2016 and 13 May 2016.115 Information packs were also provided to representatives of the AWU and CFMEU.116

[179] Mr McMillan conceded that Mr Ruwiza also invited him to a one on one session prior to the 11 May 2016 meeting to “try to catch up with what was going on” to bring Mr McMillan “up to speed". 117 BGC say that it also arranged for its representatives to hold briefing meetings with the other relevant union representatives. 118

[180] The Unions also assert that having belatedly allowed the Unions to participate in the negotiation process, BGC did not genuinely engage with or recognise the Unions. 119

[181] For example, Mr Martin says that despite having raised concerns at the bargaining meeting held on 11 May 2016 and being told a response would be provided, BGC put the Proposed Agreement to vote before the next round of scheduled meetings on 18 May 2016 with the Union concerns remaining unaddressed. 120

[182] BGC say that its good faith bargaining obligations do not require it to concede to demands and that its refusal to agree to terms demanded by the Unions was its lawful right. 121 BGC also claim that factors outside of its control could have influenced the level of Union engagement in the negotiations.122 For example, Mr Martin was on six weeks leave during the negotiation period123 and Mr McMillan was busy with issues at Arrium Steel Works.

[183] Mr Martin says that another organiser, albeit busy, was responsible for his duties in his absence. 124 In any event this assertion by BGC was, at its best, only evidence that an individual union representative may have been busy during the agreement negotiations, not that any of the Unions as entities did not desire to, or in fact, participate in negotiations to the full extent to which they were permitted by BGC.

[184] The Unions also assert that, contrary to section 228(f) of the FW Act, BGC hampered bargaining in good faith by resisting requests to facilitate discussions between the South Australian employee bargaining representatives and the Western Australian employee bargaining representatives; and that this impacted on the genuineness of the agreement of the employees who voted in favour of the Proposed Agreement.

[185] Mr Fiebig, a member of the AMWU and an employee based in South Australia gave evidence that he and other bargaining representatives repeatedly asked BGC to facilitate discussions with the Western Australian bargaining representatives. Mr Fiebig says he did so because he believed he would be better able to bargain if he understood what the views of the WA workforce were. 125 He says that the only occasion he was permitted consultation with the Western Australian bargaining representatives was on one occasion the night before the ballot.126

[186] Mr Wake, a member of the AMWU and an employee based in South Australia also gave evidence that he requested that BGC facilitate discussions with the Western Australian bargaining representatives. Mr Wake says that on 9 May 2016 his Superintendent provided him with two telephone numbers to contact Western Australia bargaining representatives. Mr Wake says that he was only given 1 hour’s warning of the first teleconference which impacted on the effectiveness of the call. According to Mr Wake, the Western Australian bargaining representatives were keen to know more information, but as it was the first time they had spoken together they were all cautious about how fully they expressed their views. According to Mr Wake, this adversely impacted on the effectiveness of the discussions. 127

[187] Mr Wake says that at the meeting on 11 May 2016, the bargaining representatives requested that BGC arrange a follow up video conference with the Western Australian bargaining representatives for 18 May 2016. A video conference was not arranged; however a teleconference took place on 20 May 2016. 128 Mr Wake says different Western Australian bargaining representatives participated in this meeting so once again the meeting was limited in effectiveness as all the parties were cautious about fully expressing their views.129

[188] Mr Wake says that his discussions with the Western Australian delegates suggested that they were less organised and informed than their South Australian counterparts. He says that they told him that unions were not welcome on BGC sites in Western Australia and says that he was given the impression that the Western Australian workforce were fearful of raising issues with management. 130

[189] The failure to engage with the Unions (despite the Unions being nominated or default bargaining representatives) until a late stage in negotiations and only at the insistence of the Unions, the decision to put the Proposed Agreement to the vote before responding to Union concerns regarding the Proposed Agreement, the limited assistance given by BGC to the bargaining representatives who sought to consult with their counterparts in Western Australia, were all factors which the Unions say impacted on the genuineness of the agreement of those in Western Australia who voted in favour of approving the Proposed Agreement. Despite these assertions having been raised by the Unions in witness statements filed well in advance of the hearing date, they were not addressed by BGC by calling Employee witnesses from Western Australia to give evidence that their approval was untainted and was genuine.

[190] The Proposed Agreement has national coverage. As pointed out by Mr Wake, there are significant differences between the South Australian and Western Australian operations. The Western Australian sites are FIFO, whereas the South Australian sites are residential. The economic conditions between the States also vary. Composite bargaining would have provided employees with an insight into the appropriateness of the Proposed Agreement to the circumstances of their counterparts on the opposite of the Nullabor.

[191] Mr Wake gave evidence that he observed that the Western Australian bargaining representatives were unorganised and less informed about the Proposed Agreement. He says that they told him that unions were not welcome on BGC sites in Western Australia and that he was given the impression that they were fearful of raising issues with management.  131

[192] The Unions says that a refusal to facilitate composite bargaining was an attempt to avoid the South Australian resistance to the Proposed Agreement spreading to the larger group of workers employed in Western Australia. The Union say that the refusal to facilitate composite bargaining constituted a breach of good faith bargaining, in particular subsections 228(1)(e) and (f) of the FW Act, and forms reasonable grounds for believing that the Proposed Agreement was not genuinely agreed to by the employees.

[193] BGC cite the decision of Senior Deputy President Richards in The Australian Meat Industry Employees Union v Woolworths Limited (Woolworths Case) 132 as authority for the principle that section 228 does not impose a requirement that bargaining representatives in complex bargaining environments must meet in a composite manner.133

[194] In his decision, SDP Richards simply indicated that there is no requirement that they must meet in a composite manner only. He did not say that there may never be circumstances in which the obligation to engage in good faith bargaining requires that some of the meetings be held in a composite manner.

[195] In the Woolworths Case, at [139], SDP Richards stated that:

“What is important is the wider field of evidence as to whether or not a bargaining representative is meeting the good faith bargaining requirements.” 134

[196] The assertion that the resistance to facilitating composite bargaining constituted a breach of the good faith bargaining obligations and adversely impacted on the genuineness of the agreement was raised in witness statements filed well in advance of the Hearing date. Despite this, the assertion was not addressed by BGC through the calling of employee witnesses from Western Australia to give evidence that their approval was properly informed, freely given and genuine.

[197] Whether BGC breached the good faith bargaining provisions was a matter for an application earlier in time, however that does not mean conduct, whether or not in technical breach of good faith bargaining, cannot compromise the genuineness of the agreement of employees. What is relevant is the impact of that conduct on the genuineness of the agreement of the employees who voted in favour of the Proposed Agreement.

[198] In summary, the Union witnesses gave evidence that:

● despite being the default bargaining representatives, the Unions were not invited to participate in the agreement negotiations until they insisted that they be included;

● the Western Australian bargaining representatives appeared unorganised and uninformed and fearful of raising issues with management;

● BGC resisted providing bargaining opportunities other than limited composite bargaining opportunities; and

● the lack of composite bargaining opportunities prevented the South Australian bargaining representatives from fully articulating their concerns about the impact of the Proposed Agreement to the Western Australian bargaining representatives.

[199] Exhibit A9 reveals that the concerns about the Proposed Agreement in South Australia resulted in an overwhelming ‘no’ vote in South Australia but that the Proposed Agreement was approved because the majority of employees were employed in Western Australia and a majority of those employees approved the Proposed Agreement. 135

[200] In combination the evidence tendered gives weight to the submission by the Unions that BGC purposely limited the opportunities for composite bargaining and Union participation in negotiations in order to ensure its desired outcome for the ballot. BGC failed to produce any evidence from employees in Western Australia to demonstrate that their approval of the Proposed Agreement was properly informed, freely given and genuine so as to contradict the evidence of the Unions. I am satisfied that the Unions have identified reasonable grounds for me to believe that the Proposed Agreement was not genuinely agreed by the employees.

G. Did BGC endeavour to circumvent the objects of the FW Act in relation to collective bargaining and, if so, does this form reasonable grounds for believing that the Proposed Agreement was not genuinely agreed?

[201] The AMWU and the CFMEU assert that BGC sought to circumvent the objects of the FW Act in relation to collective bargaining set out in sections 3 and 171 of the FW Act by endeavouring to make individual contracts the main industrial instrument governing employment. 136

[202] Section 3 of the FW Act inter alia provides that:

“3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

…

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action;…”

[203] Section 171 of the FW Act, at paragraph (a), provides that:

“171 Objects of this Part

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; …”

[204] The provisions in the FW Act which deal with enterprise bargaining are intended to provide a mechanism for parties at an enterprise level, who chose to do so, to agree terms and conditions which meet their specific needs. For employees for whom an Award would otherwise apply it allows those employees to agree to more relevant and (overall) more beneficial terms and conditions of employment. The provisions of the FW Act which deal with enterprise bargaining are not, however, intended to make enterprise bargaining the exclusive or even the pre-eminent method of industrial regulation in all workplaces and for all employees in this country. In some work situations the relevant Award provides an adequate set of terms and conditions of employment and the parties choose not to pursue enterprise bargaining. In some work situations the parties are bound only by common law contracts and choose not to bargain collectively. Enterprise agreements, awards and common law contracts are not mutually exclusive methods of employment regulation and the FW Act does not seek to make them so. There is nothing sinister or improper about an employer offering common law contracts in the absence of an award or enterprise agreement or in the presence of either. In fact it is now relatively uncommon to find an employee bound by enterprise agreement or an award who is not also bound by some form of common law contract, be it as simple as a letter of appointment or as complex as a contract of employment.

[205] I am not satisfied that BGC circumvented the objects of the FW Act in relation to collective bargaining.

Conclusion – Was the Proposed Agreement Genuinely Approved by the employees?

[206] Section 188(c) requires that the FWC be satisfied that there are no other reasonable grounds for believing that the Proposed Agreement has not been genuinely agreed by the employees. The existence of one such ground means that the Proposed Agreement cannot be found to have been genuinely agreed for the purposes of section 188 of the FW Act.

[207] BGC submit that the fact that a comfortable majority of the employees who cast a valid vote approved the Proposed Agreement should be given considerable weight if not be determinative of the question as to whether there were reasonable grounds for believing that the Proposed Agreement was not genuinely agreed by the employees.

[208] With respect, this does not assist me in determining whether those employees who voted in favour of the Proposed Agreement did so because they genuinely agreed to it or not. 100% of employees could approve an agreement, but if they did so because they were coerced to do so rather than because they genuinely agreed to be bound by the agreement, then the agreement could not be said to have been genuinely agreed and could not be approved by the FWC.

[209] The Unions have made out a plausible argument that the high voting turnout and the majority outcome (achieved as a result of majorities only in Western Australia) is simply evidence that the employees wanted to access the more beneficial conditions contained in the Preserved Conditions Contracts and, since the Proposed Agreement would have little or no relevance to them, decided to approve it without genuinely agreeing to it.

[210] For the reasons articulated above, I am satisfied that the following grounds identified by the Unions, if not individually then in combination, are reasonable grounds for believing that the Proposed Agreement was not genuinely agreed to by the employees.

● Employees did not have a sufficient stake in the Proposed Agreement to have genuinely agreed to its terms.

● Employees did not have sufficient knowledge or experience of the black coal mining industry to be in a position to genuinely agree to provisions of the Proposed Agreement which are intended to apply to black coal mining.

● The Proposed Agreement contains provisions that were so uncertain or confusing that employees could not have understood the provisions and therefore could not genuinely have agreed to them.

● Employees were provided with misleading information in relation to the effect of the Proposed Agreement and its relationship with the Preserved Conditions Contract and therefore they could not have genuinely agreed to the Proposed Agreement.

● Employees were intimidated into approving the Proposed Agreement and therefore they did not genuinely agree to its terms.

● BGC bargained in a manner which led Employees to approve the Proposed Agreement without genuinely agreeing to its terms.

[211] Having established that there were reasonable grounds for believing that the Proposed Agreement may not have been genuinely agreed to it fell to BGC to prove that employees who voted in favour of the Proposed Agreement did not do so without genuinely agreeing to the Proposed Agreement.

[212] BGC chose not to call as witnesses any employees who voted in favour of the Proposed Agreement. Nor did BGC make submissions or tender other evidence to persuade me that the grounds listed in paragraph [210] of this Decision are not singularly or in combination, reasonable grounds for believing that the Proposed Agreement was not genuinely agreed to by the employees.

[213] Having been satisfied that number of events leading up to the Proposed Agreement ballot might reasonably have led employees to vote in favour of the Proposed Agreement without having genuinely agreed to it and, in the absence of any evidence that these events did not influence their decision to approve the Proposed Agreement, I must find that the Proposed Agreement was not genuinely agreed as required by section 188(c) of the FW Act.

Does the Proposed Agreement satisfy the BOOT?

[214] The circumstances in which an agreement will pass the BOOT are set out in section 193 of the FW Act as follows:

“193 Passing the better off overall test

When a non greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

FWC must disregard individual flexibility arrangement

(2) If, under the flexibility term in the relevant modern award, an individual flexibility arrangement has been agreed to by an award covered employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test.

When a greenfields agreement passes the better off overall test

(3) A greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each prospective award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

Award covered employee

(4) An award covered employee for an enterprise agreement is an employee who:

(a) is covered by the agreement; and

(b) at the test time, is covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and

(iii) covers his or her employer.

Prospective award covered employee

(5) A prospective award covered employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

(a) would be covered by the agreement; and

(b) would be covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) would cover the person in relation to the work that he or she would perform under the agreement; and

(iii) covers the employer.

Test time

(6) The test time is the time the application for approval of the agreement by the FWC was made under section 185.

FWC may assume employee better off overall in certain circumstances

(7) 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.”

[215] The Reference Awards for the purposes of the BOOT are the Mining Award and the Coal Award.

[216] The test to be applied when determining if the BOOT is satisfied is:

“The BOOT, as the name implies, requires an overall assessment to be made. This requires the 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.” 137

[217] The application of the BOOT is a matter that involves the exercise of discretion and a degree of subjectivity or value judgment. 138

Wage and Allowance Rates

[218] BGC submit that the Proposed Agreement provided for better remuneration than the reference Awards as at the test time and therefore the FWC should be satisfied that the Proposed Agreement passes the BOOT. 139

[219] The Unions assert that the Proposed Agreement does not provide for increases in base wage or allowance rates which would ensure that the rates of wages and allowances under the Proposed Agreement remain better than those contained in the reference Awards for the duration of the nominal life of the Proposed Agreement. The Unions submit that this should be taken into account as a part of the overall assessment of whether the Employees are better off overall under the Proposed Agreement. The Unions submit that if it is taken into account then the Proposed Agreement must be found to fail the BOOT. 140

[220] More specifically, the Unions assert that as the Proposed Agreement does not provide for increases in the base wage rate for Coal Mining Employees, there is a real risk that the base wage rate for Coal Mining Employees will not remain higher than the applicable Coal Award rate for the nominal life of the Proposed Agreement. 141

[221] Schedule A of the Proposed Agreement provides that Coal Mining Employees will receive a flat payment of $35 per week in addition to the weekly rates specified in Schedule A of the Coal Award. The ‘Coal Award’ is defined in clause 5 of the Proposed Agreement as follows:

“Coal Award means the Black Coal Mining Industry Award 2010 as at the Commencement Date.”

[222] ‘Commencement Date’ is defined in clause 5 of the Proposed Agreement as the commencement date provided for in clause 3 of the Proposed Agreement. Clause 3 of the Proposed Agreement provides that the Proposed Agreement will commence 7 days after it is approved by the FWC.

[223] There is no express provision in the Proposed Agreement which provides for any changes in the wage rates of Coal Mining Employees during the life of the Proposed Agreement. Therefore, under the terms of the Proposed Agreement, the prevailing wage rates under the Coal Award as at commencement of the Proposed Agreement, plus $35, would apply for the duration of the Proposed Agreement.

[224] BGC point out that in practise the base wage rate actually received by Coal Mining Employees would never drop below the base wage rate prescribed by the Coal Award as a consequence of section 206 of the FW Act. 142

[225] By virtue of section 206 of the FW Act, BGC would be required to pay Coal Mining Employees the applicable Coal Award base wage rate if the Coal Award base wage rate exceeded the Proposed Agreement base wage rate.

[226] However this only ensures that Coal Mining Employees’ base wage rate is equal to that contained in the Coal Award, not that they are better off overall under the Proposed Agreement in terms of their base rate of pay.

[227] In the case of other employees there is express provision in the Proposed Agreement to achieve this outcome. Sub-clause 7.3 of the Proposed Agreement provides that:

“The Base Hourly Rate of Pay (sic) will increase from time to time if this is necessary to ensure that it is no less than the applicable Award wage rate. In addition the Base Hourly Rate of Pay may also increase during the life of the Agreement at the discretion of the Company.”

[228] Base wage rates for non Coal Mining Employees will therefore always equate at least to the relevant Mining Award rate. Any additional increases are entirely at the discretion of BGC and may never occur. Therefore sub-clause 7.3 of the Proposed Agreement only guarantees that the base wage rate of non Coal Mining Employees will equal the relevant Mining Award rate not that non Coal Mining Employees, will be better off overall under the Proposed Agreement in terms of their base rate of pay.

[229] The Unions also assert that as the Proposed Agreement does not provide for increases in allowances there is a real risk that the allowances payable to employees will not remain higher than the applicable reference Award rates for the nominal life of the Proposed Agreement. 143

[230] Schedule A of the Proposed Agreement provides that the rate of allowances payable to Coal Mining Employees will be those rates provided for in Schedule A of the Coal Award.

[231] There is no express provision in the Proposed Agreement which provides for any changes in the rates of allowances for Coal Mining Employees during the life of the Proposed Agreement. Therefore under the terms of the Proposed Agreement the prevailing rates for allowances under the Coal Award as at commencement of the Proposed Agreement would apply for the duration of the Proposed Agreement.

[232] The rates for allowances for non Coal Mining Employees are set out in body of the Proposed Agreement. There is no provision in the Proposed Agreement to increase the rate of allowances non Coal Mining Employees.

[233] Section 206 of the FW Act applies only to the base wage rates and not the rates of allowances, therefore there is no statutory trigger to increase the rates of allowances in agreements if they fall below the relevant award rates during the life an agreement as a consequence of National Wage Reviews. 144

[234] As a consequence of the most recent National Wage Review, the rates for allowances for non Coal Mining Employees are already below the prevailing rates in the Mining Award. 145 As soon as the next National Wage Review adjustment to the Coal Award rates for allowances occurs after the commencement of the Proposed Agreement the rates for allowances for Coal Mining Employees will also fall below the prevailing rates in the Coal Award.

[235] BGC point out that the relevant time for conducting the BOOT is at the time the Proposed Agreement was lodged and, at that time, the base wage rates for the employees and the rates of allowances under the Proposed Agreement exceeded the base wage rates and rates of allowances under the reference Awards. BGC submit that any subsequent increases in the Award wage and allowance rates which result in the base wage rate or the rates of allowances under the Proposed Agreement falling below or becoming equal to the reference Awards should be ignored for the purposes of the BOOT.

[236] Section 193(6) of the FW Act provides that the time at which the BOOT should be conducted is the date on which the application for approval of a proposed agreement is made under section 185. The test time for the purposes of conducting the BOOT in this Application is therefore 21 June 2016 (Test Time). 146

[237] Notwithstanding that the Test Time for the BOOT is the date an application for approval is filed and the level of future award increases is unknown, future wage increases prescribed by an agreement and by analogy, allowance increases, are a valid consideration when conducting the BOOT. 147

[238] BGC have indicated that they are prepared to consider providing an undertaking that all allowances in the Agreement will increase in line with equivalent allowances in the Mining Award: 148

“To the extent that the Commission harbours some residual concern regarding the amount of allowances payable to an employee over the life of the Agreement, BGC Contracting reconfirms that it is prepared to consider providing an appropriate undertaking in accordance with clause 7.4 of the Agreement that all allowances will increase in line with the equivalent allowances in the Mining Award, if required.”

[239] This would only ensure that the rates for allowances remain equal to, rather than better overall than, the Mining Award.

[240] Even with the undertakings proposed by BGC, at the time this Decision is issued the base rates of pay and allowances under the Proposed Agreement will be at best equal to the Mining Award and within the nominal life time of the Proposed Agreement at best equal the rates and allowances under the reference Awards.

Other Alleged Detriments vis a vis the Mining Award

[241] The Unions assert that the Proposed Agreement contains provisions that are less favourable than those contained in the Mining Award, contains provisions which are not contained in the Mining Award which are detrimental to the employees or doesn’t contain entitlements contained in the Mining Award. They submit that these detriments should be taken into account when conducting the BOOT. 149

[242] The Unions have identified sub-clauses 10.2, 12.1, 13.5 and 13.6 of the Proposed Agreement as clauses that it says are less favourable than the comparable Mining Award provisions. 150 The Unions also assert that the provisions dealing with part time employment in the Proposed Agreement are less beneficial than those contained in the Mining Award.

[243] Sub-clause 10.2 of the Proposed Agreement authorises BGC to deduct, from monies owed to an employee, any amount it is authorised or required to deduct including overpayments, payments made in advance and other established debts. In contrast, sub-clause 15.2 of the Mining Award limits such deductions to overpayments of wages or allowances.

[244] The Unions say that in the absence of the Proposed Agreement, BGC would only be able to deduct overpayments without taking separate legal action however, under the Proposed Agreement; BGC can withhold other monies in dispute without taking legal action. The Unions submit that since money can be withheld more readily under the Proposed Agreement than under the Mining Award, employees are worse off under the Proposed Agreement. 151

[245] BGC submit that sub-clause 10.2 contains content which is a permitted matter and is not objectionable, unlawful or discriminatory and therefore should not prevent the Proposed Agreement being approved. 152 The fact that a provision is not objectionable, unlawful or discriminatory is not relevant to whether it should be characterised as a detriment for the purposes of the BOOT. I am satisfied that as money can be withheld more readily under the Proposed Agreement than under the Mining Award, sub-clause 10.2 of the Proposed Agreement imposes a detriment which is not imposed by the Mining Award.

[246] The Unions submit that sub-clause 12.1 of the Proposed Agreement, which deals with variations to ordinary hours of work, is less favourable than comparable clauses in the Mining Award, sub-clauses 18.2(b) and 18.3(b). The Unions assert that sub-clause 12.1 of the Proposed Agreement allows BGC ‘to prevail’ on individual employees to agree to increase their ordinary hours of work, or change their span of hours without those employees having the protection provided by BGC being required to obtain the majority support of affected employees for these changes, as is required by sub-clauses 18.2(b) and 18.3(b) of the Mining Award. 153

[247] BGC say that employees are not worse off because:

● majority support was obtained when the Proposed Agreement was approved;

● BGC’s power to alter hours of work is not unfettered; and

● a requirement to obtain approval of individual employees is actually more beneficial to employees than a requirement to obtain majority support. 154

[248] I am satisfied that employees are better off overall with respect to increases in ordinary hours and changes in the span of hours under the Proposed Agreement than the Mining Award, because such changes can only be made with their consent and they are not subject to having the will of the majority imposed upon them.

[249] The Unions assert that sub-clause 13.5 of the Proposed Agreement provides BGC with an unfettered right to determine meal break times and is therefore less favourable than the equivalent provision of the Mining Award’s sub-clause 22.1(d) which provides that an employee will not be required to work more than five hours before their first meal break. The CFMEU say that this has potential adverse implications for employee fatigue management and safety. 155

[250] BGC claim that the detriment identified by the CFMEU is not quantifiable or easily attributed a monetary value.

[251] The fact that a benefit or detriment cannot easily be attributed a financial value does not prevent it being taken into consideration in the course of conducting the BOOT. 156

[252] I am satisfied that the loss of the protection of a maximum period before a rest break is a detriment which should be taken into account when determining whether employees are better off overall.

[253] The CFMEU assert that employees are worse off under sub-clauses 12.1, 13.6 and 16.4 of the Proposed Agreement than clause 21 of the Mining Award in relation to variations to their rosters. 157 Clause 21 of the Mining Award provides that variations to rosters can only be made on 48 hours’ notice or such shorter period as agreed with employees and only after consultation with affected employees. Sub-clauses 12.1 and 16.4 of the Proposed Agreement allow BGC to vary rosters to suit operational requirements. Clause 13.6 allows BGC to vary rosters of shift workers with ‘reasonable notice’. Neither sub-clause 12.1, 13.6 or 16.4 contain any consultation obligations.

[254] BGC point out that clause 35 of the Proposed Agreement imposes consultation obligations on BGC, if BGC proposes to change employees’ regular roster or ordinary hours of work. 158

[255] While the Proposed Agreement contains less restrictive notice requirements than the Mining Award it is unlikely that BGC could discharge the consultation obligations contained in clause 35 of the Proposed Agreement any quicker than 48 hours. Consequently I am satisfied that in practise, employees would be no worse off under the Proposed Agreement than the Mining Award in respect to variations to rosters.

[256] The Unions submit that part time employees are not better off overall under the Proposed Agreement as compared to the Mining Award because, unlike sub-clause 10.2 of the Mining Award, the Proposed Agreement does not require BGC to notify part time employees of the start and finish times of their ordinary hours of work or expressly provide that time worked in excess of these hours will be paid at the appropriate overtime rates. 159

[257] BGC have proposed an undertaking to address this issue as follows: 160

“(d) All work performed in addition to the agreed part-time ordinary hours of a part-time Employee will be subject to the overtime rates prescribed in clauses 12.2 and 13.3 [of] the Agreement.”

(e) For Coal Mining Employees, clauses 10.3 and 17 of the Coal Award that prescribe overtime (entitlement and rates) for part-time Coal Mining Employees are incorporated into the Agreement by operation of Schedule A.”

[258] The undertaking seeks to clarify that any part time employee who works in excess of their ordinary hours of work will be paid applicable over time rates. Consequently I am satisfied that with the above undertaking, employees would be no worse off under the Proposed Agreement than the Mining Award in respect to overtime rates for part-time employees.

[259] The Unions identify sub-clauses 17.8 and 25.8 as clauses which impose detriments on employees which are not imposed by the Mining Award.  161 Clause 17.8 of the Proposed Agreement requires employees’ to provide BGC with two weeks’ notice when requesting annual leave. Sub-clause 25.8 describes circumstances in which an employee will be deemed to have abandoned their employment. The Mining Award does not contain any equivalent provisions.

[260] In relation to sub-clause 17.8, BGC say that the content of that clause is a permitted matter and is not objectionable, unlawful or discriminatory and therefore should not prevent the Proposed Agreement being approved. 162

[261] I am satisfied that sub-clause 17.8 imposes a constraint on the taking of annual leave which does not exist in the Mining Award and therefore is a detriment to be weighed against the benefits contained in the Proposed Agreement, to determine if employees are better off overall.

[262] In Exhibit B18, the CFMEU identified other alleged detriments in relation to annual leave in the Proposed Agreement vis-a-vis the Mining Award. 163 However as BGC point out, these relate to amendments to the Mining Award made after the Test Time and therefore are not relevant to the BOOT.164

[263] Sub-clause 25.8 describes circumstances in which an employee will be deemed to have abandoned their employment. The Mining Award does not contain an equivalent provision. The Unions assert that the inclusion of sub-clause 25.8 constitutes a detriment because it disadvantages an employee who seeks to pursue an unfair dismissal claim. 165

[264] BGC submit that sub-clause 25.8 contains content which is a permitted matter and is not objectionable, unlawful or discriminatory and therefore should not prevent the Proposed Agreement being approved. BGC also submit that any detriment arising from sub-clause 25.8 is not relevant to the BOOT or able to be appropriately assessed for the purposes of the BOOT. 166

[265] The effect of sub-clause 25.8 is that employees are deemed to have abandoned their employment in the event of an absence of two or more consecutive days. This is something which would not automatically be presumed to be consequence of such an absence in an unfair dismissal case. 167

[266] The fact that a provision is not objectionable, unlawful or discriminatory is not relevant to whether it should be characterised as a detriment for the purposes of the BOOT. While it may be difficult to attach a monetary value to a contingent detriment, such detriment may be taken into account in conducting the BOOT in the same way contingent benefits are taken into account. 168 It is true that it is difficult to attach a value to this contingent detriment, however I am satisfied that it is a detriment to be taken into account for the purposes of the BOOT.

[267] The Unions assert that the Proposed Agreement is missing a number of entitlements which are provided for in the Mining Award. They submit that these missing entitlements are detriments which should be taken into account when conducting the BOOT. The Unions cite as examples sub-clauses 11.3, 12.3, 12.4 and 22.2 of the Mining Award.  169

[268] Sub-clause 11.3 of the Mining Award entitles an employee who has given notice to one day off work without loss of pay. Sub-clause 12.4 of the Mining Award entitles an employee who has been notified of redundancy to a job search day. Sub-clause 12.3 of the Mining Award provides that an employee will not forfeit the entitlements contained in clause 12 of the Mining Award if they leave their employment after having been notified that their employment will be terminated due to redundancy. Sub-clause 22.2 entitles an employee to a rest break of 20 minutes after each 4 hours of overtime worked if the employee is required to continue to work after the break.

[269] BGC submit that these are contingent benefits and may never be accessed by any of the employees during the life of the Proposed Agreement and therefore should not prevent the Proposed Agreement being approved. 170 In relation to sub-clause 22.2 of the Mining Award, BGC point out that sub-clause 22.2(b) of the Mining Award allows an employer and employee to agree to a variation to rest breaks. BGC submit that by approving the Proposed Agreement employees have in effect agreed to a variation to rest breaks as contemplated by sub-clause 22.2.171

[270] The fact that a benefit is contingent does not prevent it from being relevant to the BOOT. Many benefits contained in agreements are contingent, for example, allowances and leave entitlements. Similarly the fact that a benefit or detriment cannot easily be attributed a financial value does not prevent it being taken into consideration in the course of conducting the BOOT. 172

[271] Sub-clause 22.2 of the Mining Award does provide for an employee and an employer to agree to a variation to rest breaks, however the clause contemplates individual agreement to the variation. Employees who did not vote in favour of the Proposed Agreement cannot be said to have individually agreed to a variation to the arrangements for rest breaks. I am satisfied that not all employees have agreed to the variation to rest breaks and the loss of a guaranteed rest break after each four hours of overtime is a detriment for the purposes of the BOOT.

[272] I am satisfied that employees would be worse off under the Proposed Agreement as compared to the Mining Award with respect to the benefits and detriments identified above, and that this is a matter which I need to take into account when conducting the BOOT and determining whether employees are or are not better off overall under the Proposed Agreement as compared to the Awards.

Other Alleged Detriments vis a vis the Coal Award

[273] The Unions assert that the Proposed Agreement contains provisions which are not contained in the Coal Award which are detrimental to the employees, contains provisions that are less favourable than those contained in the Coal Award or doesn’t contain entitlements contained in the Coal Award. The CFMEU submit that these detriments should be taken into account when conducting the BOOT. 173

[274] The CFMEU identifies sub-clauses 10.2 and 25.8 of the Proposed Agreement as clauses which impose a detriment on employees which is not imposed by the Coal Award. 174

[275] Sub-clause 10.2 of the Proposed Agreement authorises BGC to deduct, from monies owed to an Employee, any amount it is authorised or required to deduct including overpayments, payments made in advance and other established debts. The Coal Award does not contain an equivalent provision. The Unions submit that since money can be withheld more readily under the Proposed Agreement than under the Coal Award, employees are worse off under the Proposed Agreement.

[276] BGC submit that sub-clause 10.2 contains content which is a permitted matter and is not objectionable, unlawful or discriminatory and therefore should not prevent the Proposed Agreement being approved. 175 The fact that a provision is not objectionable, unlawful or discriminatory is not relevant to whether it should be characterised as a detriment for the purposes of the BOOT. I am satisfied that as money can be withheld more readily under the Proposed Agreement than under the Coal Award, sub-clause 10.2 of the Proposed Agreement imposes a detriment which is not imposed by the Coal Award.

[277] Sub-clause 25.8 describes circumstances in which an employee will be deemed to have abandoned their employment. The CFMEU assert that the inclusion of sub-clause 25.8 in the Proposed Agreement constitutes a detriment because it disadvantages an employee who seeks to pursue an unfair dismissal claim. 176

[278] BGC submit that sub-clause 25.8 contains content which is a permitted matter and is not objectionable, unlawful or discriminatory and therefore should not prevent the Proposed Agreement being approved. BGC also submit that any detriment arising from sub-clause 25.8 is not relevant to the BOOT or able to be appropriately assessed for the purposes of the BOOT. 177

[279] The effect of sub-clause 25.8 is that employees are deemed to have abandoned their employment in the event of an absence of two or more consecutive days. This is something which would not automatically be presumed to be consequence of such an absence in an unfair dismissal case.

[280] The fact that a provision is not objectionable, unlawful or discriminatory is not relevant to whether it should be characterised as a detriment for the purposes of the BOOT. While it may be difficult to attach a monetary value to a contingent detriment such detriment, in the same way contingent benefits are taken into account, may to be taken into account in conducting the BOOT. 178 It is true that it is difficult to attach a value to this contingent detriment however, I am satisfied that it is a detriment to be taken into account when conducting the BOOT.

The CFMEU identifies sub-clauses 19.7 and 19.8 of the Proposed Agreement as clauses in the Agreement that it says are less favourable that the comparable Coal Award provisions.

[281] Sub-clause 19.7 of the Proposed Agreement provides that the employees must provide ‘satisfactory documentary evidence’ of an absence from work when taking personal leave of two or more days. Sub-clause 19.8 of the Proposed Agreement provides that such evidence may be required to be provided on a more frequent and regular basis to assist in managing absences from work.

[282] In contrast, sub-clause 26.3(a) of the Coal Award provides that evidence is only required where requested by the employer and the standard of evidence required to be provided is that of ‘the employer’s reasonable satisfaction’. Where such evidence is disputed, sub-clause 26.3(b) of the Coal Award provides that the dispute shall be dealt with in accordance with the dispute resolution procedure contained in the Coal Award.

[283] The Unions say that the Proposed Agreement imposes detriments not imposed by the Coal Award because the Proposed Agreement imposes a higher burden of proof, allows for more frequent requests for proof and does not explicitly refer disputes to the dispute resolution procedure. 179

[284] In reply, BGC say that the standard of evidence required by the Proposed Agreement and the Coal Award are equivalent.  180

[285] I am not satisfied that the standard of evidence required by the Proposed Agreement is more onerous than that required by the Coal Award, however the fact that the provision of evidence is mandatory in the Proposed Agreement but required only on request under the Coal Award, means the Proposed Agreement potentially imposes a more onerous burden on employees than the Coal Award. I am not satisfied that the Proposed Agreement allows for more frequent requests for proof because there is no limitation in the Coal Award on when a request for evidence may be made by an employer. I am also not satisfied that the explicit reference to the dispute resolution procedure in the Coal Award within sub-clause 26 makes sub-clause 26.3 of the Coal Award any more beneficial that sub-clause 19.7 of the Proposed Agreement, which lacks an explicit reference. I have reached this conclusion because regardless of any explicit reference to the dispute resolution procedure in sub-clause 19.7 of the Proposed Agreement, employees would be entitled by clause 33 of the Proposed Agreement to access the dispute resolution procedure contained in the Proposed Agreement in the event of a dispute in relation to the provision of evidence, in support of an application for personal leave.

[286] The CFMEU assert that the Proposed Agreement is missing a number of benefits which are provided for in the Coal Award. They submit that these missing benefits are detriments which should be taken into account when conducting the BOOT. The CFMEU cite as examples, sub-clauses 24.2 and 24.3 of the Coal Award. 181

[287] In combination, sub-clauses 24.2 and 24.3 of the Coal Award provide that an employee who is required to, and agrees to, work more than five hours without a meal break will be paid at the applicable overtime rate until the meal break is taken. Sub-clauses 24.2 and 24.3 are not incorporated into the Proposed Agreement and the Proposed Agreement does not contain any equivalent provision. 182

[288] BGC submit that the entitlement to overtime in such circumstances is a contingent entitlement and that caution should be taken in allocating a monetary value to a contingent entitlement for the purposes of the BOOT given it is uncertain how often the circumstances necessary to qualify for this entitlement might arise. 183

[289] While it may be difficult to attach a monetary value to a contingent entitlement, such entitlements may still be taken into account in conducting the BOOT. 184 There is insufficient evidence before me to determine how often this contingent entitlement might arise and its value if and when it does, however I am satisfied that the entitlement to overtime rates of pay if any employee is required to, and agrees to, work in excess of five hours without a meal break is a benefit contained in the Coal Award which is lacking from the Proposed Agreement.

[290] As evidence of its claim that the Proposed Agreement does not pass the BOOT, the CFMEU point out that clause 14 of the Proposed Agreement provides that shift workers who return to work after an 8 hour rest break between overtime shifts are to be paid at ordinary rates of pay, whereas sub-clause 17.6 of the Coal Award provides that shift workers returning to work with less than 10 hours rest break will be a paid double time until such a break occurs. 185

[291] BGC say that Schedule A of the Proposed Agreement provides that clause 17 of the Coal Award is wholly incorporated into the Proposed Agreement and therefore the CFMEU objection is without merit. 186

[292] Schedule A lists the clauses of the Proposed Agreement which will not apply to Coal Mining Employees and the corresponding clause of the Coal Award which will apply instead. Schedule A provides that clause 12 of the Proposed Agreement which deals with hours of work shall not apply to Coal Mining Employees and instead will be replaced by clauses 17, 21 and 22 of the Coal Award. Schedule A makes no reference to clause 14 of the Proposed Agreement, therefore employees might be under the misapprehension that clause 14 applies to Coal Mining Employees.

[293] While the BGC submission addresses the BOOT issue identified by the CFMEU, BGC has identified uncertainty in the Proposed Agreement which further undermines the genuineness of the agreement by employees to approve the Proposed Agreement.

[294] I am satisfied that employees would be worse off under the Proposed Agreement as compared to the Coal Award with respect to the benefits and detriments identified above, and that this is a matter which I need to take into account when conducting the BOOT and determining whether employees are or are not, better off overall under the Proposed Agreement as compared to the reference Awards.

Conclusion in relation to the BOOT

[295] BGC submit that employees are better off overall under the Proposed Agreement than the Mining Award because the wages rates as at the Test Time were on average 2% higher. Furthermore, BGC concede that while the overtime rates were the same as those contained in the Award, because they were applied to a higher base wage rate they resulted in employees being better off overall under the Proposed Agreement. 187

[296] The CFMEU say that as at Test Time the base rates of pay were the only terms of the Proposed Agreement more beneficial that the Mining Award 188 and the Coal Award.189

[297] Since the Test Time, the base wage rates in the Proposed Agreement have, but for the effect of escalation provision, fallen below the Mining Award. 190 The escalation provision has only brought the base rates of pay up to the level of the Mining Award. The rates are therefore already not better overall than the relevant Award Rates.

[298] Depending on the outcome of the National Wage Reviews, given the lack of a provision in the Proposed Agreement for increases in the base rates of pay for Coal Mining Employees, any difference is likely to diminish significantly if not vanish during the nominal life of the Proposed Agreement.

[299] When combined with the other financial and non-financial determinants identified by the Unions and discussed above, I am not satisfied that the Proposed Agreement satisfies the BOOT.

Undertakings

[300] The CFMEU submit that for the Proposed Agreement to pass the BOOT, BGC would be required to submit so many undertakings that the Proposed Agreement would be substantially changed, contrary to subsection 190(3)(b). 191

[301] Subsection 190(3) of the FW Act provides that:

“Undertakings

(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:

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

(b) result in substantial changes to the agreement.”

[302] BGC have provided or have proposed to provide the following Undertakings. 192

● The reference to “Commencement Date” in the definition of Coal Award in clause 5 of the Proposed Agreement is a reference to the already defined term which is the commencement date of the Agreement, being 7 days after approval by the Fair Work Commission (clause 3).

● Sub-clauses 7.6, 7.7 and 7.8 of the Proposed Agreement that provide for annual salaries do not apply to Coal Mining Employees.

● Sub-clause 7.11 will only operate where payment of a composite hourly rate in a given period of employment exceeds all other amounts payable under the Proposed Agreement in the same period.

● All work performed in addition to the agreed part-time ordinary hours of a part-time employee will be subject to the overtime rates prescribed in clauses 12.2 and 13.3 of the Proposed Agreement.

● For Coal Mining Employees, sub-clause 10.3 and clause 17 of the Coal Award that prescribe overtime (entitlement and rates) for part-time Coal Mining Employees are incorporated into the Proposed Agreement by operation of Schedule A.

● Any employee (other than a Coal Mining Employee) who performs work that would otherwise attract the “drilling, prospecting and exploration” allowance under sub-clause 14.3 the Mining Award will be paid such an allowance at the rates prescribed by the Mining Award.

● In accordance with sub-clause 7.4 of the Proposed Agreement, all allowances will increase in line with the equivalent allowances in the Mining Award.

● In reference to sub-clause 25.8 of the Mining Award, a job search day will be allowed as an authorised absence.

[303] Undertakings must not result in substantial changes to an agreement therefore the opportunity provided by section 190 is “…necessarily limited in nature and cannot involved a wholesale reshaping of an agreement which has already been made.” 193

[304] I am not satisfied that the Undertakings proposed address all of the financial and non-financial detriments identified in this Decision or in fact that undertakings could be given, which would enable the Proposed Agreement to satisfy the BOOT but would not result in substantial changes to the Proposed Agreement as prohibited by section 190 of the FW Act.

Conclusions

[305] Sections 186 and 187 of the FW Act set out the conditions which must be met for an agreement to be approved by the FWC. I am satisfied that these conditions have not been met.

[306] For the reasons outlined above I am not satisfied that the Proposed Agreement was genuinely agreed to by the employees covered by the Proposed Agreement in accordance with subsection 186(2)(a) of the FW Act and/or that the Proposed Agreement passes the BOOT as required by section 186(2)(d) and/or that its deficiencies can be corrected by undertakings.

[307] Consequently, the Proposed Agreement is not approved and the Application is dismissed.

DEPUTY PRESIDENT

Appearances:

D Fletcher of K&L Gates for the Applicant.

A Thomas for the CFMEU, Mining and Energy Division.

P Boncardo for the CFMEU, General Division.

T Hardie for the AMWU.

J Hanson for the AWU.

Hearing details:

2016.

Adelaide and Brisbane (by video link):
October 19, 20.

Final written submissions:

Applicant, 7 November 2016

CFMEU, 7 November 2016

AMWU, 5 November 2016

 1   The term ‘Unions’ is used in this decision to describe one or more of the CFMEU, AWU and AMWU.

 2   Exhibit B2, BGC’s Form F17 Statutory Declaration of Corrina Tolomei.

 3   Exhibit B1, Witness Statement of Tariro Ruwiza at [11].

 4   Ibid.

 5   CFMEU Closing Submissions dated 4 November 2011 at [8].

 6   Exhibit B1 at [12].

 7   Ibid

 8   Exhibit A1, Witness Statement of Gary Wood at [9]-[10], [14]-[15] & Attachment C, Exhibit B1 at [12].

 9   Applicant’s email response to the matters raised by the AWU in its Form F18, dated 30 August 2016.

 10   Exhibit B1 at [31].

 11   Ibid at [42]-[44].

 12   Ibid at [45]-[49].

 13   Exhibit B14, Applicant’s Outline of Submissions dated 8 September 2016 at [24].

 14   Section 187(2) only applies where a scope order is in operation see Appeal by Philmac Pty Ltd [2011] FWAFB 2668. There is no scope order in operation in this Application.

 15   Undertaking signed on behalf of BGC by Corrina Tolomei dated 25 August 2016.

 16   Exhibit B14 at [10], [75], [86], [87].

 17   Exhibit B17, CFMEU Mining and Energy Division Submissions and attached email dated 2 September 2016 with corrections at [86]-[87].

 18   CFMEU Closing Submissions.

 19   CFMEU Submissions in Reply dated 7 November 2016 at [7]-[8].

 20   BGC Closing Submissions dated 4 November 2016 at [50].

 21   Exhibit B14 at [24].

 22   [2010] FWAFB 4602 at [43].

 23   BGC Closing Submissions at [22]-[27].

 24   National Tertiary Education Industry Union v University of New South Wales [2011] FWAFB 5163 at [24]–[25].

 25   CFMEU Closing Submissions at [72].

 26   Ibid at [69]-[75].

 27   BGC Consolidated Bundle of Documents at page 6056.

 28   Transcript at PN2628 – PN2629.

 29   CFMEU v Sparta Mining Services Pty Ltd [2016] FWCFB 7057 at [22].

 30   National Tertiary Education Industry Union v University of New South Wales [2011] FWAFB 5163 at [24] –[25].

 31   CFMEU v Sparta Mining Services Pty Ltd [2016] FWCFB 7057 at [22].

 32   Transcript PN2075.

 33   Transcript PN265.

 34   BGC Closing Submissions at [58].

 35   CFMEU Closing Submissions at [61] and Exhibit B17 at [34]-[88].

 36   CFMEU Closing Submissions at [61].

 37   Ibid.

 38   Exhibit B2.

 39   Transcript at PN2613-PN2623.

 40   Falcon Mining Pty Ltd [2016] FWC 5315.

 41   Ibid at [160].

 42   Exhibit B17 at [35].

 43   Exhibit B2 at question 3.4.

 44   Transcript PN2600-PN2601

 45   Falcon Mining Pty Ltd [2016] FWC 5315 at [157].

 46   Transcript PN2584.

 47   Ibid at PN2585-PN2589.

 48   Ibid at PN2590.

 49   Exhibit B18, CFMEU Submissions, General Division, dated 2 September 2016 at [32]; AMWU Closing Submissions dated 5 November 2016 at [9] and CFEMU Closing Submissions at [11].

 50   KCL Industries Pty Ltd [2016] FWCFB 3048 at [31].

 51   KCL Industries Pty Ltd [2016] FWCFB 3048.

 52   Ibid at [33].

 53   CFMEU v AIRC 93 FCR 317 at [126].

 54   KCL Industries Pty Ltd [2016] FWCFB 3048 at [36] –[37].

 55   Ibid at [36].

 56   Exhibit B1 at [19].

 57   See for example A7, Witness Statement of Kym Swanbury at [9] and A3, Witness Statement of Scott Whitlock at [7].

 58   A4, Witness Statement of Paul Bolitho at [11].

 59   Transcript PN296.

 60   Chronological Bundle of Documents 0657-0696.

 61   BGC Closing Submissions at [16]-[18].

 62   See for example Chronological Bundle of Documents at 0519- 0521.

 63   BGC Submissions in Reply dated 7 November 2016 at [25] at [31].

 64   Ibid at [33].

 65   AMWU Closing Submissions at [9]; CFMEU Closing Submissions at [24].

 66   Exhibit B1 at [12].

 67   Exhibit A1 at [9]-[10], [14]-[15] & Attachment C; Exhibit B1 at [12].

 68   BGC Submissions in Reply at [47]-[48].

 69   Exhibit B5, Witness Statement of Greg Dark at [12]-[19].

 70   Transcript PN212.

 71   Exhibit A2, Further Witness Statement of Gary Wood at [12].

 72   Exhibit B17 at [11].

 73   Exhibit A2 at [15]-[18].

 74   CFMEU Closing Submissions at [67]-[68].

 75   Exhibit B18 at [10]-[13].

 76   Exhibit B17 at [36] and CFMEU Submissions in Reply at [9].

 77   Exhibit B17 at [43] – [47] and CFMEU Submissions in Reply at [9].

 78   Exhibit B17 at [54] – [61] and AMWU Submissions in Reply at [9] CFMEU Submissions in Reply at [31].

 79   Exhibit B17 at [54] – [61] and AMWU Submissions in Reply at [9] and CFMEU Submissions in Reply at [37].

 80   BGC Closing Submissions at [221].

 81   Exhibit B17 at [51] – [53] and CFMEU Closing Submissions at [30].

 82   BGC Closing Submissions at [208]-[209].

 83   Exhibit B18 at [14]-[31].

 84   BGC Closing Submissions at [82].

 85   Exhibit B18 at [18].

 86   Sub-clause 18.2 and 12.2(b) of the Proposed Agreement and sub-clause 17.6 of the Mining Agreement.

 87   BGC Closing Submissions at [85]-[86].

 88   Chronological Bundle of Documents at 0322.

 89   See too AMWU Closing Submissions at [9].

 90   Exhibit B18 at [19].

 91   BGC Closing Submissions at [87].

 92   See for example Chronological Bundle of Documents at 0521.

 93   Chronological Bundle of Documents at 0519-0550.

 94   Exhibit B18 at [29].

 95   BGG Closing Submissions at [91].

 96   Exhibit B21, AMWU Submissions at [6].

 97   BGC Closing Submissions at [103] and BGC Submissions in Reply at [7]-[12].

 98   Central Queensland Services Pty Ltd T/A BHP Billiton Mitsubishi Alliance [2015] FWC 1554 at [65].

 99   Central Queensland Services Pty Ltd T/A BHP Billiton Mitsubishi Alliance [2015] FWC 1554.

 100   Ibid.

 101   Transcript PN1452.

 102   Ibid at PN1469-1478.

 103   This is in direct contrast to the situation in Central Queensland Services Pty Ltd T/A BHP Billiton Mitsubishi Alliance [2015] FWC 1554 at [86] where Deputy President Asbury found that a conclusion that employees were threatened with loss of their jobs was not available on the evidence before her.

 104   BGC Closing Submissions at [108].

 105   Exhibit B21, at [6.2].

 106   Appeal by Philmac Pty Ltd [2011] FWAFB 2668 at [4].

 107   Exhibit B21, AMWU Submissions at [6.2] and Form F18 Statutory Declaration of Aaron Cartledge on behalf of the CFMEU in relation to an application for approval of an enterprise agreement.

 108   Transcript PN1622-PN1625.

 109   Ibid, Chronological Bundle of Documents at 0562.

 110   Exhibit A13, Witness Statement of Scott Martin at [4]-[6].

 111   Chronological Bundle of Documents at 0589.

 112   BGC Closing Submissions at [36].

 113   Ibid at [24].

 114   Transcript PN1622-PN1625; Chronological Bundle of Documents at 0563.

 115   Chronological Bundle of Documents at 0586.

 116   See for example Chronological Bundle of Documents at 0590.

 117   Transcript PN1627.

 118   Chronological Bundle of Documents 0593.

 119   Exhibit B21 at [6.2] and Form F18 Statutory Declaration of Aaron Cartledge on behalf of the CFMEU in relation to an application for approval of an enterprise agreement.

 120   Exhibit A13 and A12, Form F18 Statutory Declaration of Scott Martin on behalf of the AWU in relation to an application for approval of an enterprise agreement.

 121   BGC Closing Submissions at [25].

 122   BGC Closing Submissions at [24].

 123   Transcript PN1900-1903.

 124   Ibid.

 125   Transcript PN1438.

 126   Ibid at PN1417.

 127   Exhibit A8, Witness Statement of Ryan Wake at [79]-[83].

 128   Ibid at [96].

 129   Ibid at [140].

 130   Ibid at [81]-[85].

 131   Ibid

 132   The Australian Meat Industry Employees Unon v Woolworths Limited [2009] FWA 849.

 133   BGC Closing Submissions at [32]-[35].

 134   The Australian Meat Industry Employees Unon v Woolworths Limited [2009] FWA 849 at [139].

 135   Exhibit A9 was marked a confidential exhibit at the request of BGC. Therefore this decision does not contain the numerical outcomes of the agreement ballot. BGC have however relied on the evidence contained in Exhibit A9 in submissions which are not confidential asserting that the FWC should take into account the size of the majority which voted to approve the Proposed Agreement and it is in this context that this limited reference is made to the outcome of the ballot.

 136   Exhibit B18 at [33] and Exhibit B21 at [4.3].

 137   Armacell Australia Pty Ltd (2010) 202 IR 38 at [41].

 138   Aldi Foods Pty Ltd v Transport Workers Union of Australia (2012) 227 IR 120, 123-4.

 139   BGC Closing Submissions at [154].

 140   Exhibit B17 at [41]; Exhibit B18 at [42]; AMWU Closing Submissions and CFMEU Closing Submissions at [27]-[28]

 141   Exhibit B17 at [41].

 142   B14 at [75].

 143   B17 at [84.2] and Exhibit B18 at [44].

 144   CFMEU Closing Submissions at [89].

 145   Exhibit B18 at [44].

 146   Exhibit B14 at [72].

 147   Hart v Coles Supermarkets Australia Pty Ltd [2016] FWCFB 2887 at [18].

 148   BGC Closing Submissions at [170].

 149   CFMEU Closing Submissions at [88].

 150   Exhibit B19, CFMEU further submissions on BOOT at [1] and Exhibit B18 at [43.2] and [43.6].

 151   Exhibit B17 at [69]–[71].

 152   BGC Closing Submissions at [172]-[173].

 153   Exhibit B18 at [43.2]–[43.4].

 154   BGC Closing Submissions at [177].

 155   Exhibit B19 at [2].

 156   Duncan Hart v Coles Supermarket Australia Pty Ltd and Bi-Lo Pty Ltd t/a Coles and Bi-Lo [2016] FWCFB 2887 at [19]- [24].

 157   Exhibit B18 at [43.6].

 158   BGC Closing Submissions at [186].

 159   Exhibit B19 at [1].

 160   Undertaking signed on behalf of BGC by Corrina Tolomei dated 25 August 2016 at sub-clause (e) and (f).

 161   Exhibit B18 at [43.7].

 162   BGC Closing Submissions at [189].

 163   Exhibit B18 at [43.8]-[43.10].

 164   BGC Closing Submissions at [190].

 165   CFMEU Submissions in Reply at [36].

 166   BGC Closing Submissions at [218].

 167   Rose v Telstra Corporation Ltd (AIRC, Ross VP, 4 December 1998) Print Q9292 citing FC Shepherd & Co Ltd v Jerrom [1987] ICR 802.

 168   Duncan Hart v Coles Supermarket Australia Pty Ltd and Bi-Lo Pty Ltd t/a Coles and Bi-Lo [2016] FWCFB 2887 at [24].

 169   CFMEU Closing Submissions at [88] and Exhibit B18 at [43.5], [43.11], [43.13].

 170   BGC Closing Submissions at [192]-[193].

 171   Exhibit B18 at [43.5].

 172   Duncan Hart v Coles Supermarket Australia Pty Ltd and Bi-Lo Pty Ltd t/a Coles and Bi-Lo [2016] FWCFB 2887 at [19]- [24].

 173   CFMEU Closing Submissions at [88].

 174   Exhibit B17 at [48]-[49] and [72]-[75].

 175   BGC Closing Submissions at [207].

 176   Ibid at [195]

 177   at [218]

 178   Duncan Hart v Coles Supermarket Australia Pty Ltd and Bi-Lo Pty Ltd t/a Coles and Bi-Lo [2016] FWCFB 2887 at [24].

 179   Exhibit B17 at [72]-[75]; CFMEU Submissions in Reply at [34]-[35].

 180   BGC Closing Submissions at [216].

 181   Exhibit B17 at [62]-[65].

 182   CFMEU Submissions in Reply at [33].

 183   BGC Closing Submissions at [214].

 184   Duncan Hart v Coles Supermarket Australia Pty Ltd and Bi-Lo Pty Ltd t/a Coles and Bi-Lo [2016] FWCFB 2887 at [24].

 185   Exhibit B17 at [51]–[53].

 186   BGC Closing Submissions at [208]-[209].

 187   Ibid at [154]-[156].

 188   CFMEU Closing Submissions at [90]-[91] and Exhibit B17 at [83].

 189   Exhibit B17 at [83].

 190   Exhibit B18 at [38].

 191   CFMEU Closing Submissions at [93].

 192   Undertaking signed on behalf of BGC by Corrina Tolomei dated 25 August 2016; BGC Closing Submissions at [170]; Exhibit B14 at [75] and [86].

 193   Re AKN Pty Ltd t/a Aitken Crain Services [2015] FWCFB 1833 at [34].

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