[2018] FWCFB 3825
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union
v
Lightning Brick Pavers t/a Lightning Brick Pavers
(C2017/6899)

VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER LEE
COMMISSIONER HARPER-GREENWELL

SYDNEY, 28 JUNE 2018

Appeal against decision [2017] FWCA 6196 of Deputy President Kovacic at Melbourne on 23 November 2017 in matter number AG2017/2706.

Introduction

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President Kovacic on 23 November 2017 1 (Decision). In the Decision, the Deputy President approved the Lightning Brick Pavers Enterprise Agreement 2017-2021 (Agreement). The CFMMEU contends that the Commissioner erred in approving the Agreement because it did not pass the better off overall test as required by s 186(2)(d) of the Fair Work Act 2009 (FW Act), the Deputy President’s approval was based on the acceptance of undertakings which resulted in substantial changes to the Agreement contrary to s 190(3) of the FW Act, and the Agreement was not genuinely agreed to by the employees covered by it as required by s 186(2)(a) because the requirement in s 180(3) concerning the notification to employees of the time, place and method of the vote upon the Agreement was not complied with.

Relevant features of the Agreement

[2] The relevant features of the Agreement are as follows:

The proceedings before the Deputy President and the Decision

[3] The application for approval of the Agreement filed on 23 June 2017, was accompanied by a statutory declaration in standard form (Form F17) made by Paul Claxton, the Managing Director of Lightning Brick Pavers. That declaration relevantly stated the following:

[4] On 21 July 2017 the CFMMEU wrote to the Commission stating that it opposed the approval of the Agreement on the basis that it did not pass the BOOT and requested a hearing before the Commission to allows its view in this respect to be considered.

[5] On 11 September 2017, the Deputy President’s chambers sent an email to Lightning Brick Pavers indicating that the application for approval of the Agreement would be listed for hearing, at which Lightning Brick Pavers would have the opportunity to provide submissions on a number of identified concerns, which relevantly included the following:

[6] On 9 October 2017 the CFMMEU was informed in writing that, having failed to respond to the Commission’s request for the CFMMEU to identify whether it had any members employed by Lightning Brick Pavers and, if so, to give their names, it would not be given an opportunity to be heard in the matter.

[7] The foreshadowed hearing was conducted, by telephone, on 16 October 2017. The hearing was attended by Mr Claxton, and he was also represented at the hearing by a paid agent. A number of issues were raised at the hearing, including whether employees had been notified of the place of the vote and whether they had been provided with copies of policies incorporated into the Agreement. In respect of the latter matter, it was submitted by Lightning Brick Pavers that the existing drug and alcohol policy had always been available to employees at the office to be viewed, but there had been no specific identification of this at the time the Agreement was distributed to employees. 2

[8] On 8 November 2017 Lightning Brick Pavers provided the Commission with two documents:

[9] On 13 November 2017 the Deputy President sent an email to Lightning Brick Pavers’ representative raising two issues with the proposed undertakings. On 17 November 2017 revised undertakings were sent to the Deputy President in response. On 20 November 2017 the Deputy President’s chambers advised that the revised undertakings were acceptable and that the Agreement would be approved once a signed version of the undertakings was received. The signed undertakings were subsequently provided, and the Decision was issued on 23 November 2017, as earlier stated. The Decision was as follows:

“[1] An application has been made for approval of an enterprise agreement known as the Lightning Brick Pavers Enterprise Agreement 2017 – 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Lightning Brick Pavers T/A Lightning Brick Pavers (the Applicant). The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, 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.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the Applicant. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to this decision at annexure A.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 November 2017. The nominal expiry date of the Agreement is 23 November 2021.”

[10] There were a total of 14 undertakings attached to the Decision which were accepted by the Deputy President, expressed as concerning the following topics: Permanent night shift, consultation of changes in hours, definition of a shiftworker, shiftworker – annual leave, employer requesting annual leave, personal/carers leave for casual employees, compassionate leave for casual employees, redundancy, travel allowance, allowances, shift work, overtime for shiftworkers, overtime, and base rate. A number of these require description in some detail. Under the last undertaking, the table of base rates in Schedule A of the Agreement was to be replaced by the following rates table:

[11] This undertaking stated that the new base rates were “inclusive of annual leave loading, leading hand allowance, first aid allowance and cutting machine allowances”. In conjunction with this undertaking, which significantly reduced the base rates, the ninth undertaking introduced a new flat daily travelling allowance and the tenth undertaking introduced the Award allowances for crib time, overtime meals and living away from home - distance work. In addition, the thirteenth undertaking increased the overtime rates, so that for overtime on Monday-Saturday, the rate was 150% for the first two hours (not four hours) and 200% thereafter, and for public holidays it was 250% (not 200%).

[12] The eighth undertaking replaced the table of redundancy payments in cl 17.1 with the following new table (which reflects the scale of redundancy payments in cl 17, Industry specific redundancy scheme of the Award):


[13] It can be seen that the new redundancy scale provides for employees with from one to approximately 2 years’ service with a lesser payment than that provided for in the scale in clause 17.1 of the Agreement, as earlier set out.

Appeal grounds and submissions

[14] As originally filed, the CFMMEU’s notice of appeal contended that the Deputy President erred in approving the Agreement in two respects: first, in being satisfied that the Agreement together with the undertakings passed the BOOT and, second, in accepting undertakings which resulted in substantial changes to the Agreement. The CFMMEU subsequently sought to amend its notice of appeal to add a third contention of error, namely that the Deputy President erred in finding that the Agreement had been genuinely agreed to by the employees covered by it.

[15] In relation to the first ground of appeal, the CFMMEU advanced four modelled comparisons of remuneration between the Agreement and Award, based on a CW3-classified daily hire employee working 50 hours per week Monday-Friday starting at 6.00am, to demonstrate that employees would be worse off than under the Award. The CFMMEU also provided a table comparing the terms and conditions of the Agreement as compared to those of Award, and submitted that this demonstrated that in 67 respects the Agreement was less beneficial than the Award. For these reasons, it submitted, it was not open for the Deputy President to conclude that the Agreement as amended by the undertakings passed the BOOT.

[16] In relation to the second ground of appeal, the CFMMEU submitted that the Deputy President could not have been satisfied that the undertakings would not result in substantial changes to the Agreement, since they significantly altered the entire remuneration structure which was contained in the Agreement as voted upon.

[17] In relation to the third contention of error which the CFMMEU sought to add to its notice of appeal by way of an amendment, it was submitted that the element of genuine agreement required by s 188(a)(i) could not be satisfied because Lightning Brick Pavers had not complied with the pre-approval step requirement in s 180(3). Section 180(3) required that the employer take all reasonable steps to notify employees of the time, place and method of the vote upon a proposed agreement by the start of the “access period”. The access period, as defined in s 180(4), was the 7-day period ending immediately before the commencement of the voting process, and the CFMMEU submitted that this period consisted of the seven full calendar days immediately prior to the day on which the voting process commenced. Because, on the material provided by Lightning Brick Pavers, employees were notified of the time, place and method of the vote on 16 June 2017 and the vote took place on 23 June 2017, this requirement was not complied with. Notification was required on 15 June 2017 or earlier.

[18] Lightning Brick Pavers submitted:

[19] Lightning Brick Pavers submitted that no error in the Decision had been identified, and that permission to appeal should be refused or, if granted, the appeal should be dismissed.

Consideration

[20] It is only strictly necessary for us to determine the CFMMEU’s second contention of error, namely that the Deputy President erred by accepting Lightning Brick Pavers’ undertakings in circumstances where those undertakings resulted in substantial changes to the Agreement.

[21] The provisions of the FW Act relevant to this contention may briefly be described. Sections 186 and 187 set out a number of matters about which the Commission must be satisfied in order for an enterprise agreement that has been made to be approved and take effect under the FW Act. One of those requirements, in s 186(2)(d), is that the agreement passes the BOOT. The requirements of the BOOT are set out in s 193.

[22] Section 190 provides an avenue for the approval of an enterprise agreement notwithstanding that it may not meet all the requirements of ss 186 and 187, including the requirement that it pass the BOOT. Section 190 provides:

190 FWC may approve an enterprise agreement with undertakings

Application of this section

(1)  This section applies if:

(a)  an application for the approval of an enterprise agreement has been made under subsection 182(4) or section 185; and

(b)  the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.

Approval of agreement with undertakings

(2)  The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.

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.

FWC must seek views of bargaining representatives

(4)  The FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement.

Signature requirements

(5)  The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.

[23] In summary, where the Commission has a concern that an enterprise agreement for which approval is sought does not pass the BOOT, the Commission may accept an undertaking that addresses that concern provided that the undertaking is not likely to cause financial detriment to any employees covered by the agreement or result in substantial changes to the agreement. Consideration of whether those conditions are met in any given case will require an evaluative judgment to be made in the nature of an exercise of a discretion.

[24] In this case, the scale and nature of the undertakings proposed by Lightning Brick Pavers necessarily gave rise to a serious question as to whether the conditions for the acceptance of undertakings in s 190(3) were capable of satisfaction. Those undertakings, which ran to almost five pages of text, were extensive in scope and altered a range of conditions in the Agreement in an extensive way. It may be accepted that some of the undertakings were relatively minor and were entirely beneficial to employees: for example, the unpaid personal/carer’s leave and compassionate leave entitlements were altered to make clear they applied to casual employees. However at least in two respects the alterations effected by the undertakings are much more significant. First, the remuneration structure has been reshaped entirely. The Agreement itself contains a loaded rate structure, in which the ordinary hourly rates are significantly higher than those in the Award in compensation for the elimination of nearly all allowances that would be payable under the Award and a lower rate of overtime. That was changed to a different structure which involved significantly lower ordinary rates of remuneration, a restoration of some of the Award allowances and a higher rate of overtime. Second, the scale of redundancy payments was changed in a way which, as earlier explained, reduced them for employees with from one to about 2 years’ service. Clause 17.1 of the Agreement already contained the broad definition of redundancy found in clause 17.2 of the Award, so there was no countervailing benefit from the change from the existing scale (which replicated the NES scale in s 119) to the new scale (which was the same as that in clause 17.3 of the Award) for employees with these levels of service. This constituted a straight out reduction in the redundancy entitlement.

[25] In those circumstances, it was necessary for detailed consideration to be given as to whether the s 190(3) requirements for the acceptance of undertakings were satisfied. Beyond noting that the undertakings had been accepted pursuant to s 190(3), the Decision does not explain on what basis it was considered that the significant changes effected by the undertakings which we have identified did not amount to “substantial changes to the agreement” for the purpose of s 190(3)(b). We consider that in this respect the Decision was attended by appealable error in one of two alternative respects. The first is that the Deputy President simply failed to consider whether the changes to the remuneration structure and the redundancy payment scale amounted to substantial changes to the agreement, and thereby did not take into account a relevant consideration. The alternative is that the Deputy President did consider these matters, and reached a conclusion which was not reasonably open to him, namely that they did not amount to substantial changes for the purpose of s 190(3)(b). Those changes were plainly substantial, for the reasons to which we have adverted. The new remuneration structure and redundancy scale introduced by the undertakings were radically different to those which the employees covered by the Agreement voted upon. As stated by the Full Bench in CFMEU v Kaefer Integrated Services Pty Ltd, s 190(3) “does not permit undertakings that result in the wholesale reshaping of the agreement, such that it bears no resemblance to the pre-undertaking agreement that was approved by the employees”. 4 On either view the exercise of the discretion required by s 190(3)(b) miscarried.

[26] The CFMMEU’s appeal might have, but did not, raise the associated question of whether the undertakings complied with the condition in s 190(3)(a), namely whether they were likely to “cause financial detriment to any employees covered by the agreement”. The financial detriment referred to in the provision is one that occurs by comparison with the terms of the agreement as voted upon by the employees (in the case of a non-greenfields agreement). There are strong grounds, we consider, for the conclusion that the undertakings were very likely to cause financial detriment. We have already identified the way in which the redundancy payment entitlements were reduced for employees with one to about 2 years’ service. In respect of the remuneration structure, as we have earlier explained, the undertakings reduced the ordinary base rate of pay in return for the addition of some allowances and an increase to the overtime rates of pay. In circumstances where an employee works little or no overtime and does not perform work of a nature that would attract the payment of the allowances provided for in the undertakings, those undertakings may well lead to an employee earning less under the remuneration structure in the undertakings than under the Agreement that was voted upon. However, since this issue was not the subject of argument we will take it no further.

[27] It is apparent that the acceptance of the undertakings was critical to the Deputy President’s determination to approve the Agreement. In circumstances where those undertakings could not have been accepted because they were incapable of satisfying the condition in s 190(3)(b), the Deputy President erred in approving the Agreement. We consider that permission to appeal should be granted because this amounted to a significant jurisdictional error and, because of the extent to which the undertakings altered the terms of the Agreement, operated to subvert that which the employees voted to approve. The appeal is upheld on the basis of the error identified, and the Decision is quashed.

[28] It is unnecessary in those circumstances for us to determine the CFMMEU’s second contention of error, which was based on the assumption that the Agreement was to be assessed for the BOOT as if the undertakings were operative. For the reasons stated, the BOOT could not be applied in that way because the undertakings were incapable of acceptance. We would simply add that the CFMMEU’s modelling of financial disadvantage was not of assistance at least because it was based on a comparison of daily hire employment. The Agreement does not provide for daily hire as a mode of employment, so the comparison undertaken by the CFMMEU could not be relevant to the BOOT.

[29] It is also strictly unnecessary to determine whether to allow the notice of appeal to be amended to raise the third contention of error. However it will be necessary for us to return to the issue raised by the CFMMEU in that respect, as will be explained shortly.

[30] Having quashed the Decision on the basis we have set out above, it is necessary for the application for approval of the Agreement to be re-determined. We will undertake that task ourselves based on the material before us.

[31] We consider that the Agreement is incapable of approval for three reasons. First, it does not pass the BOOT. The correspondence caused to be sent by the Deputy President on 11 September 2017 identified a range of concerns about the Agreement which we consider are demonstrative of the proposition that the Agreement did not pass the BOOT. There are other BOOT issues with the Agreement that were not identified in that correspondence, not the least of which is that clause 9.3 would as earlier set out impose upon employees the extremely onerous obligation of being responsible for keeping the workplace, equipment and company vehicles in a safe condition - an obligation that does not appear in the Award. It was not contended by Lightning Brick Pavers that the Agreement, absent the undertakings, passed the BOOT.

[32] We do not consider that the BOOT deficiency can be remedied by the provision of undertakings that are capable of acceptance under s 190(3). As the chronology which we have earlier set out demonstrates, the Deputy President afforded Lightning Brick Pavers an extensive opportunity to address the BOOT concerns which he had identified. The undertakings which were advanced as necessary to address those concerns were incapable of acceptance under s 190(3) for the reasons we have explained. We cannot envisage that any alternative set of undertakings could be proposed to address those concerns which would not likewise involve substantial changes to the Agreement.

[33] Second, the Agreement did not, as required by s 186(5)(a), specify a date as its nominal expiry date, but merely identified the year 2021. Although theoretically an undertaking could be provided which specified a nominal expiry date, we consider given the absence of a nominal expiry date in the Agreement the subsequent nomination by the employer of a date in the year 2021 would necessarily result in a substantial change to the Agreement so as to render it incapable of acceptance under s 190(3)(b). The nominal expiry date is of significance to the scheme of enterprise bargaining under the FW Act, particularly in relation to the capacity of parties to seek the termination of an agreement and of employees to take protected industrial action. To simply add a date of the employer’s choosing to an agreement which employees never had the opportunity to consider when voting would be a change of considerable significance.

[34] Third, the Agreement was not genuinely agreed to by the relevant employees as required by s 186(2)(a) for the reasons explained in the CFMMEU’s submissions. Section 188 sets out the circumstances in which an agreement has been genuinely agreed to by the employees covered by it for the purpose of s 186(2)(a), and it includes (in s 188(a)(i)) compliance with s 180(3). Section 180(3) requires the employer to take all reasonable steps to notify the relevant employees of the time and place at which the vote upon an agreement will occur, and the voting method to be used, “by the start of the access period for the agreement”. The “access period” for a proposed enterprise agreement is defined in s 180(4) to mean “the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1)”.

[35] The meaning of s 180(4) was recently considered in detail in the Full Bench decision in CFMMEU v CBI Constructors Pty Ltd5 In that decision the Full Bench determined that the access period for which s 180(4) provided consisted of the seven clear calendar days ending immediately prior to the day on which the voting process commenced.6 That decision was consistent with the approach taken in the earlier Commission/FWA decisions in Hydro Electric Corporation7 and McKechnie Iron Foundry.8

[36] In this case the voting process commenced on 23 June 2017. The access period was the period of seven calendar days consisting of the whole of 16–22 June 2017. The employer was required to take reasonable steps to effect the notification under s 180(3) by the start of this period, that is on 15 June 2017 or earlier. The notification in fact occurred during 16 June 2017, after the access period commenced, and there is no evidence that any other reasonable steps to effect the notification occurred prior to 16 June 2017. Accordingly the Agreement was not “genuinely agreed” as required by s 186(2)(a) in accordance with the definition of that expression in s 188.

[37] For these reasons, the application for approval of the Agreement is dismissed.

Orders

[38] We order as follows:

scription: Seal of the Fair Work Commission with the member's signature.

VICE PRESIDENT

Appearances:

K. Singh on behalf of the Construction, Forestry, Mining, Maritime and Energy Union.

R. Miller, solicitor on behalf of Lightning Brick Pavers.

Hearing details:

2018.

Melbourne:

1 March.

<PR608534>

 1   [2017] FWCA 6196

 2   Transcript 16 October 2017 PNs 100-111

 3   [2017] FWCFB 2236

 4   [2017] FWCFB 5630 at [41]

 5   [2018] FWCFB 2732

 6   Ibid at [42]

 7   [2014] FWC 4169

 8   [2010] FWA 3171

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