[2017] FWCA 2103 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Commonwealth of Australia (represented by the Department of Finance on behalf of the Special Minister of State)
(AG2016/7464)
COMMONWEALTH MEMBERS OF PARLIAMENT STAFF ENTERPRISE AGREEMENT 2016-2019
Australian Capital Territory | |
DEPUTY PRESIDENT KOVACIC |
CANBERRA, 12 APRIL 2017 |
Application for approval of the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 – whether agreement genuinely agreed to by employees and whether agreement passes the better off overall test – agreement approved.
[1] An application was received by the Fair Work Commission (the Commission) on 2 December 2016 for approval of an enterprise agreement known as the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 (the Agreement). The application was made by the Commonwealth of Australia (represented by the Department of Finance on behalf of the Special Minister of State) (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.
[2] In its Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) 1 the Applicant provided the following details regarding the vote on the Agreement – 1,952 employees would be covered by the Agreement, 1,413 of those employees cast a valid vote with 714 employees voting to approve the Agreement2.
[3] By way of background, the employees covered by the Agreement are employed under Parts III and IV of the Members of Parliament (Staff) Act 1984 (Cth) (the MOP(S) Act) in the classifications listed in Attachments A-C of the Agreement.
[4] The Community and Public Sector Union (CPSU) and the Australian Services Union (ASU) were both bargaining representatives for the Agreement. In their respective Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement) neither union supported approval of the Agreement on the basis that it had not been genuinely agreed to by employees covered by the Agreement and that it did not pass the better off overall test (BOOT).
[5] Against that background, on 17 January 2017 the Commission sent an email to the CPSU and ASU seeking an indication as to whether they wished to be heard in respect of the matter. Both confirmed that they did and as a result the application was listed for mention and directions on 23 January 2017. Directions were issued later that day with the matter heard on 23 and 24 March 2017. Also at the Directions hearing, the Commission undertook to raise any BOOT related questions/issues which it had in respect of the Agreement so that the parties might address those questions/issues in their written submissions/evidentiary material. The Commission wrote to the parties on 2 February 2017 setting out two questions, the first directed solely to the Applicant and the other addressed to all parties.
[6] At the hearing, Mr Bilal Rauf of Counsel appeared with permission for the Applicant, Ms Rebecca Fawcett, the CPSU’s Director – Political, Industrial, Research and Legal, appeared for the CPSU and Ms Casey Young, a National Industrial Officer with the ASU, appeared for the ASU. Witness evidence was given by the following:
For the Applicant
For the CPSU
For the ASU
[7] The Applicant submitted that:
[8] At the hearing the Applicant largely reiterated its written submissions and rebutted key aspects of the CPSU’s and ASU’s submissions and evidence. The Applicant also relied on several authorities, including McDonald’s Australia Pty Ltd 6 and Balfours Bakery Pty Ltd7(Balfours).
[9] Among other things, Mr Nairn in his witness statement 8 provided an overview of the various emails sent to eligible employees by DoF and GoVote regarding the vote. Beyond that, Mr Nairn deposed that:
[10] At the hearing, Mr Nairn attested, inter alia, that prior to the ballot DoF did not take any specific steps to request that Senator’s/Member’s offices check their staff details or ask employees to update their contact details, he was unable to answer how many call back requests were made to the Staff Help Desk during the ballot period and that the term CHRIS ID was not commonly understood by employees which is why it was referred to as “CHRIS ID (staff number)” in the material sent to employees.
[11] Key aspects of Mr Slater’s witness statement 10 were that:
[12] In his oral evidence, Mr Slater attested among other things that GoVote did not track the number of employees who clicked yes or no but did not then register their vote and that there was no “read receipt” functionality in respect of the emails it sent to eligible employees.
[13] The CPSU opposed approval of the Agreement on the basis that:
[14] At the hearing, the CPSU contended, inter alia, that the Agreement had not been genuinely agreed to by employees for several reasons including that the Applicant had failed to ask all employees covered by the Agreement to approve it as no care was taken to ensure that casual employees could vote, because some employees who were asked to approve the Agreement were unable to vote, because the Applicant had failed to put in place basic systems to assist employees during the vote and because voting irregularities were widespread meaning that it was reasonably likely that the ballot outcome had been affected. The CPSU further contended that the Agreement may not pass the BOOT for certain classes of employees who accessed the less beneficial provisions of the Agreement.
[15] Mr Bergen deposed in her witness statement 13 that she made a number of unsuccessful attempts to vote over a number of days during the ballot period before finally being able to access the voting page where she voted no. Ms Bergen further deposed that after the voting closed she followed up with Online HR to confirm that her vote had been registered, adding that on 5 December 2016 she received advice that her vote had not been registered. In her oral evidence, Ms Bergen attested inter alia that she only used Online HR when she wished to check her accrued leave balance, she did not attempt to vote by telephone and she was concerned when she did not receive a voting receipt on 25 November 2016 but did not follow the issue up that day because she had other, more urgent, maters to attend to.
[16] Mr Bala deposed in his witness statement 14 that despite making a number of requests to Online HR to receive his username and password on 22 and 23 November 2016 he did not receive his CHRIS ID and therefore was unable to vote on the Agreement. At the hearing, key aspects of Mr Bala’s oral evidence were that:
[17] Mr Mandl deposed in his witness statement 15 that he was employed on a casual basis as an Electorate Officer over the period 21 to 25 November 2016 but that he did not receive information on how to vote or ballot papers or other material that would have enabled him to vote on the Agreement. Mr Mandl further deposed that he believed he was entitled to vote and had he been able to do so he would have voted against the Agreement. In his oral evidence, Mr Mandl attested that he did not receive any emails regarding the ballot process or any ballot papers, acknowledged that he signed his Employment Agreement covering the period 26 October to 27 November 2016 on 30 November 2016, and that he made no enquiries as to whether he was entitled to vote on the Agreement or about the ballot process.
[18] The ASU submitted that the Commission could not be satisfied that the Agreement:
[19] In its submissions the ASU summarised what it described as technical issues affecting the voting process. Those technical issues included:
[20] The ASU further contended that the combination of holding the vote during an extremely busy Parliamentary sitting week, the introduction for the first time of a CHRIS ID and the employment of additional casual staff changed the outcome of the vote. Beyond this, the ASU submitted that employees who participated in the vote reported a number of problems to the ASU which resulted in those employees being unable to vote, including:
[21] Ms Byrnes deposed in her witness statement 16 that on 16 November 2016 she received an email from GoVote informing her that she was eligible to vote in the ballot for the Agreement and that she would need to use a CHRIS ID along with a PIN to cast her vote, adding that this was the first time she had heard of a CHRIS ID being used. Ms Byrnes further deposed that she was confused as to what the CHRIS ID was and that she had to make several telephone calls to ascertain what it was and where she could find it, adding that there was no mention of the term on Online HR. Ms Byrnes also deposed that she ultimately found an old payslip with a seven digit e-MOPS number which she used. In her oral evidence, Ms Byrnes attested inter alia that she sent an email to the Staff Help Desk at 6:27am on 21 November 2017 and that she successfully voted at 6:32am that day (i.e. five minutes later).
[22] Ms Lawrie deposed in her witness statement 17 that she was a casual employee and that she worked on 22 November 2016. Ms Lawrie further deposed that she did not attend the office all the time and did not have the ability to access the voting site due to her clearance level or her Parliamentary email account, adding that she could not vote and was disappointed that the Applicant had not done more to inform her that voting had commenced or to make arrangements for her to vote. Key aspects of Ms Lawrie’s oral evidence were that she was not aware that enterprise bargaining was occurring, that she did not work on 24 November 2016 and that she had a university examination on the morning of that day.
[23] Ms Stanfield deposed in her witness statement 18 that she was not aware of what a CHRIS ID was when she received the voting information and that although she tried to contact the Staff Help Desk several times she was unable to get through. Ms Stanfield further deposed that given the vote occurred during a sitting week she was extremely busy and everything she tried to be able to vote failed and that as a result she missed out on casting her vote on the Agreement. Ms Stanfield expressed the view in her witness statement that the Applicant had “made the voting process very difficult.” In her oral evidence, Ms Stanfield attested that she did not use Online HR, confirmed that she received the emails sent by the Department regarding the vote, guessed that she received the emails from GoVote, she did not request a call back when she called the Staff Help Desk because she believed that the message left would simply refer to the general office number and would not identify her as the caller, she did not look at the M&PS website as suggested by GoVote’s email to voters on 21 November 201619 and that she did not understand her CHRIS ID number to be her staff number.
[24] The relevant provisions of the Act are set out below.
180 Employees must be given a copy of a proposed enterprise agreement etc.
Pre-approval requirements
(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.
Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i) the written text of the agreement;
(ii) any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.
(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:
(a) the time and place at which the vote will occur;
(b) the voting method that will be used.
(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).
Terms of the agreement must be explained to employees etc.
(5) The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.
(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:
(a) employees from culturally and linguistically diverse backgrounds;
(b) young employees;
(c) employees who did not have a bargaining representative for the agreement.
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 subsection 182(4) or 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) …
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.
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
… (1)
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 subsection 182(4) or 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.
[25] As previously outlined, the CPSU and ASU contended that the Agreement should not be approved, inter alia, because:
[26] I will deal with each of those issues separately.
[27] Section 186 provides that the Commission must approve an agreement if an application is made under s.185 of the Act and the requirements of ss.186 and 187 of the Act are met. Among other things, s.186 of the Act requires that the Commission be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement [s.186(2)(a)], with s.188 setting out when employees have genuinely agreed to an enterprise agreement. As to the pre-approval requirements, s.188(a)(i) of the Act requires compliance with ss.180(2), (3) and (5) of the Act which in short provide that the employer must take all reasonable steps to ensure that relevant employees:
[28] An analysis of the material before the Commission regarding the pre-approval steps taken by the Applicant indicates that:
● on 11 November 2016 the Special Minister of State issued a Ministerial Circular to employees who would be covered by the Agreement which included the following:
“All Senators and Members
All MOP(S) Employees
BALLOT FOR NEW MOP(S) ACT ENTERPRISE AGREEMENT
Following the conclusion of negotiations for the proposed Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 a ballot will commence on Monday 21 November 2016, from 12.01am. The ballot will close at 2.00pm on Friday 25 November 2016.
…
A copy of the proposed enterprise agreement and an explanation of its proposed terms and conditions are available on the Ministerial and Parliamentary Services website.
The ballot will be conducted by GoVote, an independent ballot provider. Next week, employees will receive an email from GoVote that provides a link to the ballot for online voting and, as an alternative, instructions for voting by phone. Further information about the ballot is on the M&PS website” 20 (Formatting as per original);
[29] As noted above, the CPSU and ASU contended that some eligible employees were not provided with the requisite information during the ballot period. In that regard, the CPSU and ASU relied largely on Ms Lawrie’s and Mr Mandl’s evidence. However, the evidence before the Commission in respect of those employees indicates that:
[30] In circumstances where it was not contended that Ms Lawrie had provided alternative contact details, I am not sure what more the Applicant could have reasonably done to comply with the pre-approval requirements. As to Mr Mandl, I note that the abovementioned Ministerial Circular regarding the ballot was addressed to all Senators and Members as well as all MOP(S) Act employees, meaning that Senators and Members would have been aware of the vote on the Agreement, and that DoF was not advised of Mr Mandl’s employment until after the ballot had closed. In my view there is little that the Applicant could have reasonably done in respect of Mr Mandl’s situation. Further, based on the evidence before the Commission, his experience appears to be an isolated example caused by the delay in the Applicant being advised of his employment.
[31] As to the assertion that the Applicant failed to adequately explain the changes, I observe that there is no material before the Commission to support that contention.
[32] Having regard to the above analysis, I am satisfied that the Applicant has complied with the pre-approval steps set out in s.188(a)(i).
[33] Finally, with regard to s.188(a)(ii) of the Act, I note that the Applicant’s Form F17 states that the last notice of employee representational rights (NERR) was given to an employee who will be covered by the Agreement on 15 December 2015 25. As previously noted, the vote on the Agreement commenced on 21 November 2016 which is more than 21 days after the last NERR was given to an employee. Accordingly, I am satisfied that the Applicant complied with s.181(2) of the Act.
[34] The CPSU and ASU contended that difficulties with the voting system encountered by some employees precluded them from successfully casting their vote on the Agreement.
[35] An analysis of the evidence regarding that issue indicates, among other things, that:
[36] More broadly, I note that on 16 November 2016 GoVote sent the following email to all employees on the voter roll.
“Dear Test Voter,
You have received this email because you are eligible to vote in the Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 ballot. Instructions on how to participate follow.
This ballot will determine whether or not the proposed Enterprise Agreement is accepted. A copy of the proposed Enterprise Agreement and explanations are available on the Ministerial and Parliamentary services website.
WHO IS CONDUCTING THE BALLOT PROCESS
GoVote is independently conducting this ballot. We have been appointed by the Commonwealth Department of Finance to facilitate an arms length process to protect your privacy and ensure a fair and equitable ballot result. All votes submitted through our system are anonymous and the method by which you cast your vote is secure.
BALLOT PERIOD
The ballot will be open for 5 days starting at 12:01 am AEDT on Monday 21st November 2016 and ending at 02:00 pm AEDT on Friday 25th November 2016. You are able to cast your vote at any time during this period.
Your Personal Identification Number is: 638tryit
VOTING INSTRUCTIONS
To lodge your vote you will require:
Your Personal Identification Number (PIN)
Your CHRIS ID (Staff Number)
TO VOTE BY INTERNET
To lodge your vote by Internet, please follow these steps:
TO VOTE BY TELEPHONE
To lodge your vote by Telephone, please follow these steps:
HELP & SUPPORT INFORMATION
For support please email support@govote.com.au or call 1300 660 355 to speak to an operator. For other support information please visit the voting webpage at https://secure.govote.com.au/code=638” 26 (Formatting as per original)
[37] GoVote sent further emails in similar terms to all employees on the voter roll on 21, 23 and 25 November 2016, with ad hoc emails also sent to each day from 21 to 25 November 2016 to employees who were added to the voter roll.
[38] Beyond this, on 18 November 2016 DoF sent an email to all MOP(S) Act employees in the following terms.
“The ballot to vote on the proposed Commonwealth Members of Parliament Staff Enterprise Agreement 2016-2019 opens on Monday 21 November 2016 at 12.01am.
By now all employees should have received an email from GoVote instructing them how to vote.
Employees have until 2:00pm AEDT to see on Friday, 25 November 2016 to vote.
Information on the proposed enterprise agreement is available from the M&PS website.” 27
[39] Again, emails in similar terms were sent by DoF to all MOP(S) Act employees on 21, 23 and 25 November 2016 28.
[40] Further, the M&PS website included the following guidance:
“… You will also need to enter your staff number seven digit CHRIS ID (also known as a staff number) found on your payslip or Online HR to authenticate your vote. View the instructions on obtaining you [sic] staff number.” 29
[41] What can be drawn from the material before the Commission is that employees were provided with information by both DoF and GoVote about how to vote and how to find their CHRIS ID, with that information also making it clear that their CHRIS ID was the employee’s staff number. That material further indicates that:
[42] As previously stated, in my view, there is little that the Applicant could have reasonably been done in respect of Mr Mandl’s situation. Beyond that, based on the material before the Commission, none of the other witnesses called by the CPSU and ASU were disenfranchised by the voting system, with the majority of witnesses not taking any of the steps available to them (i.e. contacting the Staff Help Desk or accessing Online HR) to follow up on their concerns. Further, based on the material before the Commission, I am not satisfied that the CPSU’s and ASU’s contention that voting irregularities were widespread such that it was reasonably likely that the ballot outcome had been affected has been made out.
[43] As observed by Commissioner Hampton in Balfours:
“[20] It is evident however that Fair Work Australia must approve an enterprise agreement if, and must not approve if it is not, satisfied that, amongst other matters, it has been genuinely agreed to by the employees covered by the agreement. This includes a consideration of the processes adopted by the employer when seeking the employees’ approval and the results of the ballot (or other method of endorsement). In applying the requirements of the Act in this regard I have been guided by the approach adopted by the Full Bench in McDonalds Australia Pty Ltd.
[21] The consideration as to whether there is genuine agreement also requires Fair Work Australia to contemplate whether there are other reasonable grounds for believing that the instrument was not genuinely agreed (s 188(c)). Although ultimately it has not been decisive in this case, I have adopted the view that this provides scope to consider the veracity of the ballot result, where warranted, for the following reasons.
[22] If all ballot results had to be accepted on face value, provided only that the procedural requirements leading to that point had been met, this could lead to perverse outcomes. The requirements of s 180 and s 181 require that reasonable steps be taken to advise the employees of certain matters and to provide access to the proposed agreement and other material. There is no express obligation that the ballot or other method of employee approval be conducted in a manner that provides the employees with a genuine opportunity to actually participate and express a view. An extreme example might include where the notice is issued fully in accordance with s 180(3) but advises of a ballot process and timing where only a limited number of the relevant employees could in reality participate. In that light, unless s 188(c) of the Act is applied as I speculate above, the evident purpose of the employee approval obligations of the legislation may be undermined.
[23] This approach would not however mean that there is an absolute obligation to demonstrate that each employee did actually have the same opportunity to vote. Rather, where the integrity and results of the ballot are seriously in doubt, Fair Work Australia may, pursuant to s 188 of the Act, examine those circumstances and consider whether there are other reasonable grounds for believing that the agreement has not been genuinely agreed by the employees.” 30 (Citations not included, emphasis as per original, underlining added)
[44] Having regard to the above analysis and the decision in Balfours, supports a finding that there are no other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees.
[45] In its Form F17 the Applicant identified a number of provisions in the Agreement that were more beneficial than the terms and conditions provided for in the Award 31. These more beneficial provisions included:
an electorate staff allowance of between $3,873 and $27,118 per annum in lieu of overtime.
[46] Less beneficial provisions cited by the Applicant in its Form F17 32 included ordinary hours of work being 38 hours per week for full time employees under the Agreement as opposed to 36.75 hours per week under the Award and the absence of provision for additional annual leave for employees working in remote localities.
[47] As previously noted, the CPSU and ASU submitted that the absence from the Agreement of provisions relating to leave to attend proceedings, leave to attend courses and additional annual leave for employees in remote localities was not offset by other terms of the Agreement. In addition, the ASU highlighted that that the Agreement provided a lower casual loading than that provided for in the Award.
[48] An examination of the Agreement indicates that it provides rates of pay for those classifications contained in the Award which is between $2,919 and $30,072 per annum higher than the Award. As to the casual loading issue, as referred to above, clause M.3 of the Award provides that “Any provisions of the award specific to casual employees do not apply to Electorate Officers”. Beyond that, Schedule M of the Award does not explicitly provide for a casual loading. As such, the casual loading provided for in the Agreement is a beneficial provision when compared to the Award. As to the absence of the additional annual leave for employees working in remote localities, Mr Nairn’s evidence was that the annualised value of this benefit for the 46 employees covered by the Agreement who worked in remote localities ranged from $34.89 up to $917.25 per annum. Finally, at the hearing, the CPSU stated that it did not contest the figures provided by Mr Nairn regarding the annualised value of the additional annual leave for employees working in a remote locality and, in response to a question from the Commission, acknowledged that leave to attend proceedings was not a commonly accessed provision.
[49] Having regard to the above analysis and the various more beneficial and less beneficial provisions of the Agreement, I am satisfied that employees are better off overall under the Agreement.
[50] For all the above reasons, I am satisfied that the Agreement was genuinely agreed to by employees covered by the Agreement and that the Agreement passes the BOOT.
[51] Against that background, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. The CPSU and ASU, each being bargaining representatives for the Agreement, have given notice under section 183 of the Act that they wish to be covered by the Agreement. I note in accordance with s.201(2) of the Act that the Agreement covers each of these organisations.
[52] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 April 2017. The nominal expiry date of the Agreement is 19 April 2020.
Appearances:
B. Rauf of Counsel for the Applicant.
R. Fawcett for the Community and Public Sector Union
C. Young for the Australian Services Union
Hearing details:
2017.
Canberra:
March 23 and 24
1 Exhibit 2
2 Ibid at Item 2.10
3 AE894665
4 The Applicant’s Outline of Submissions referred to a fourth employee whose evidence was ultimately not tendered
6 (2010) 196 IR 155
8 Exhibit 3
9 Ibid at Annexure Y
10 Exhibit 1
11 Ibid at Annexure E
13 Exhibit 4
14 Exhibit 8
15 Exhibit 6
16 Exhibit 5
17 Exhibit 7
18 Exhibit 9
19 Exhibit 3 at Annexure P
20 Ibid at Annexure J
21 Ibid at Annexure L
22 Ibid at Annexure W
23 Exhibit 1 at paragraph 23
24 Exhibit 3 at Annexure X
25 Exhibit 2 at Item 2.8
26 Exhibit 1 at Annexure B
27 Exhibit 3 at Annexure N
28 Ibid at Annexure Q
29 Ibid at Annexure G
31 Exhibit 2 at Item 3.4
32 Ibid at Item 3.5
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