[2019] FWC 8247

The attached document replaces the document previously issued with the above code on 5 December 2019.

Date of final written submissions was inserted at the bottom of the Decision.

Paul Mitchell

Associate to Deputy President Lake.

6 December 2019.

[2019] FWC 8247 [Note: a correction has been issued to this document]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.185—Enterprise agreement

Corestaff QLD Pty Ltd
(AG2019/386)

CORESTAFF QLD BLACK COAL MINING ENTERPRISE AGREEMENT 2019

DEPUTY PRESIDENT LAKE

BRISBANE, 5 DECEMBER 2019

Application for approval of an enterprise agreement – BOOT – NES – explanation of terms of the enterprise agreement and their effect – no genuine agreement – undertakings – enterprise agreement not approved.

Introduction and background

[1] On 19 February 2019, CoreStaff QLD Pty Ltd (CoreStaff or the Applicant) applied to the Fair Work Commission (the Commission) for approval of the CoreStaff QLD Black Coal Mining Industry Enterprise Agreement 2019 (the Agreement). The Agreement covers employees of CoreStaff who work in a production or an engineering role on a CoreStaff client-site in Queensland that would otherwise be covered by the Black Coal Mining Industry Award 2010 (the BCMI Award).

[2] The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU or the Union) accepts that it is not, and was not at any time, a bargaining representative for the Agreement. I exercised my discretion under s. 590 of the Fair Work Act 2009 (Cth) (the Act) to permit the CFMMEU to be heard in relation to CoreStaff’s application for approval of the Agreement. CoreStaff did not object to me taking this course.

[3] I heard the application for approval of the Agreement on 25 July 2019. CoreStaff made submissions in support of its application for approval of the Agreement and relied on its Form F17 - Statutory Declaration in support of its submissions. The CFMMEU did not call any witnesses to give evidence at the hearing, but did make submissions. Prior to the hearing, I gave permission for CoreStaff to be represented by Ms Claire Brown of KHQ Lawyers due to the complexity of the matter and given her knowledge of another matter (outlined in paragraph [4] of this Decision), which was at that stage contemporaneously before the Commission for approval. Ms Brown duly appeared before me in Brisbane at the hearing. The CFMMEU was represented by Mr Alistair Kentish, National Legal Officer for the CFMMEU, who appeared at the hearing in Brisbane on behalf of the Union.

[4] The Agreement before me is largely the same agreement, albeit with some minor alterations, as the Corestaff NSW Black Coal Enterprise Agreement 2018 (the NSW Agreement), which was approved by Deputy President Saunders with a number of undertakings. 1 The NSW Agreement, with respect to one matter, was the subject of an appeal to the Full Bench of the Commission before Vice President Hatcher, Deputy President Coleman and Commissioner. McKenna2 (the Full Bench Decision). A majority in the Full Bench Decision dismissed the appeal and decided that the NSW Agreement was capable of approval.

[5] Since the hearing of 25 July 2019 I have invited submissions from the parties with respect to the Full Bench Decision. I also provided the opportunity for the Applicant to file any further material that it may have wished to file in relation to my consideration regarding the “genuine agreement” question, which it elected not to take.

[6] Many of the matters raised by the CFMMEU, who oppose the Agreement being approved, are largely the same (or substantially similar) to the matters that the Union raised and were duly considered by the Commission in the NSW Agreement or the Full Bench of the Commission in the Full Bench Decision (which ultimately confirmed the approval the NSW Agreement). I have the benefit of reading both the NSW Agreement and the Full Bench Decision and have duly reflected on the consideration made by the Deputy President and the Full Bench in these matters. They have provided me with much guidance with respect to my consideration in this matter. Indeed, I have adopted much of the structure and quite similar expression in this decision, as was adopted by Deputy President Saunders in the NSW Decision. In a federated industrial relations system, it would be, in my opinion, imprudent if I did not take this course. Nevertheless, I say from the outset that it is a requirement that I be independently satisfied that the Agreement is capable of approval pursuant to the statutory tests.

Summary of CFMMEU’s concerns

[7] The CFMMEU raised three broad concerns to support its submission that the Agreement should not, or could not, be approved. They are:

(1) The Commission could not be satisfied that the Agreement does not contravene s. 55 of the Act, by excluding provisions of the National Employment Standards (the NES); and/or

(2) The Commission could not be satisfied that the Agreement passes the better off overall test (the BOOT) as required by s. 186(2)(d) and s. 193 of the Act; and/or

(3) The Commission could not be satisfied that the Enterprise Agreement has been genuinely agreed to in accordance with s. 180(5) and s. 188 (1)(c) of the Act.

Undertakings

[8] A number of undertakings have been provided by the Applicant to address the concerns raised by the Commission and/or the CFMMEU by Mr Nathan Hunter, Chief Operating Officer, of the Applicant.

[9] They are as follows:

2. The Agreement will be read and interpreted subject to the National Employment Standards (NES) and, where any term of the Agreement is inconsistent with the NES and provides a lesser entitlement than that provided by the NES, the NES will apply to the extent of that inconsistency.

3. The nominal expiry date of the Agreement will be 4 years from the date of approval of the Agreement by the Fair Work Commission (and not 4 years from the date of commencement of the Agreement as provided in cl.4 of the Agreement).

4. For the purposes of consultation with employees in the case of a change referred to in cl.9.1(a) of the Agreement, CoreStaff will:

a. as soon as practicable after a definite decision has been made by CoreStaff to make the change(s), discuss with the employees and their representatives, if any, the introduction of the changes, effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes;

b. subject to clause 9.6, provide in writing to employees (and their representatives, if any) all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees; and

c. give prompt to consideration to matters raised by the employees and/or their representatives about the changes.

5. CoreStaff undertakes that clause 10.5 of the Agreement will be applied as if the subclause reads “Where the matter in dispute remains unresolved, the Fair Work Commission may exercise any method of dispute resolution permitted by the Act it considers appropriate to ensure the settlement of the dispute.” only.

7. Where an employee makes a request for a change in working arrangements under s.65 of the Fair Work Act 2009 (FW Act) CoreStaff will apply the provisions of cl.24A of the Black Coal Mining Industry Award 2010 in dealing with that request.

8. With respect to clause 12.1(b) of the Agreement:

a. The calculation referred to at cl.12.1(b)(iii) of the Agreement will also be provided to a flat rate employee prior to any change to that employee’s assignment or change to their designated work cycle and/or rostered hours of work in a particular assignment.

b. Where a flat rate employee’s employment ends part-way through a designated work cycle, CoreStaff will calculate the amount that would have been payable to the employee (for that part designated work cycle) if the employee was a base rate employee and paid in accordance with cl.12.1(a) of the Agreement. Where that amount is higher than the amount the employee was actually paid for the part designated work cycle, CoreStaff will pay the difference to the employee, with timing of payment to be in accordance with cl.42.6 of the Agreement.

c. Any hours worked by a flat rate employee in addition to the hours required in their specific roster will be paid in accordance with cl.25 of the Agreement.

d. Employees who are not required to work a designated work cycle or specific roster must be engaged as base rate employees and paid in accordance with cl.12.1(a) of the Agreement.

9. Clause 15 of the Agreement will not be applied by CoreStaff and will be of no effect.

10. Where the Coal Mines Safety and Health Regulations 2017 (Qld) would require CoreStaff to pay for a medical examination, CoreStaff will make that payment notwithstanding cl.20(a) of the Agreement.

11. For the purposes of cl.31.1 of the Agreement, the starting and finishing place of a shift will be in the designated pre-start meeting room or crib room (located away from the pit and in or near the administrative building compound on site) or at any other place specifically agreed between CoreStaff and the majority of the affected employees. Any time spent traveling between that place and work equipment will be considered time worked.

12. Where personal leave provided by cl.33 of the Agreement is taken:

a. no deduction from the employee’s personal leave entitlement will be made if the absence is for fewer than half the ordinary hours component of the employee’s shift; and

b. in all other cases, the full ordinary hours component of the shift will be deducted for each absence.

13. Subject to cl.43.2(b) and 43.5 of the Agreement, where an employee’s employment is terminated because:

a. CoreStaff no longer requires the employee’s job done by anyone due to reasons other than those specified in cl.43.2(a)(i) of the Agreement; or

b. of the insolvency or bankruptcy of CoreStaff

the employee will be provided with severance pay equal to one ordinary week’s pay for each completed year of employment. For the avoidance of doubt, cl.43.4 of the Agreement will not apply in this circumstance.

14. The words ‘in excess of 70 hours’ at cl.44.7 of the Agreement will be applied by CoreStaff as meaning ’70 or more hours’.

[10] Presently, I will consider whether I can be satisfied that the Agreement does not contravene s. 55 of the Act, by excluding provisions of the NES, which is the first concern of the Union.

The NES issue

[11] The Commission must be satisfied that the terms of an agreement do not contravene s. 55 of the Act (s. 186(2)(c) of the Act).

[12] Whilst an agreement must not exclude the NES or any of the provisions of the NES, it is permissible, as Deputy President Saunders eruditely put in the NSW Agreement, to include terms that:

  are ancillary or incidental to the operation of an entitlement under the NES or terms that supplement the NES, but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the NES (s 55(4) of the Act); or

  have the same (or substantially the same) effect as provisions of the NES, whether or not ancillary or supplementary terms are included (s. 55(5) of the Act). 3

[13] A term of an enterprise agreement has no effect to the extent that it contravenes s. 55 of the Act. 4

Submissions

[14] The CFMMEU submitted, as it did in the NSW Agreement, that the Commission could not be satisfied that the terms of the Agreement do not contravene s. 55 of the Act. In particular, the Union draws the Commission’s attention to clauses 32, 36, 41 and 42 of the Agreement which, the Union submitted, either exclude the NES or are detrimental as compared to the NES for the following reasons:

  Clause 32 requires employees to endeavour to give 4 weeks’ notice to take annual leave. Section 88 of the Act provides a right to request leave without notice. 5

  Clause 36 appears to require employees to work on public holidays. Section 114 of the Act provides that an employee may refuse to work a public holiday in certain circumstances. 6

  Clause 41 allows personal leave to be taken during a shutdown. Section 100 of the Act provides that personal leave cannot be cashed out except in accordance with s. 101 of the Act. Section 96 of the Act provides that personal leave, if untaken, accumulates. 7

  Clause 42 excludes notice for dismissal in circumstances that go beyond serious misconduct. Section 117 of the Act provides that notice must be given. Section 123 of the Act excludes circumstances involving serious misconduct however clause 42 extends the definition of serious misconduct beyond how it is used in s. 123 of the Act. 8

[15] The above matters, which are pressed by the CFMMEU as making the Agreement incapable of approval, were, in effect, the same matters that were argued by the Union in its contention that the NSW Agreement was incapable of approval. Because of this they were subject to a detailed analysis of Deputy President Saunders in the NSW Agreement.

[16] The underlying contention of the CFMMEU with respect to these matters is “that undertakings addressing exclusions from the NES should not be accepted unless they deal specifically with the substantive entitlements contained in the clauses of the Agreement that they are considered to exclude, or be detrimental to, the NES.”

[17] In the NSW Agreement, Deputy President Saunders goes into considerable detail as to why, in his view, undertaking 2 of the Applicant’s (the same undertaking provided in this matter), could satisfy the Commission as to the Union’s concerns. The Deputy President said, in the NSW Agreement, that:

“[28] The Commission may accept an undertaking in relation to an enterprise agreement in respect of which an application for approval has been made if the Commission has a concern that the enterprise agreement does not meet the requirements set out in sections 186 and 187 of the Act, and the remaining requirements of s 190 are met. One of the requirements of s 186 is that the terms of the enterprise agreement do not contravene section 55 of the Act. As set out above, s 55(1) of the Act provides that an enterprise agreement must not exclude the NES or any provision of the NES. Accordingly, if the Commission has a concern that the terms of an enterprise agreement exclude any provision of the NES, the Commission may accept an undertaking if it is satisfied that the undertaking meets the concern and the remaining requirements of s 190 are met.

[29] I do not accept the general submissions made by the CFMMEU in relation to Undertaking 2. There is no requirement in the Act for an undertaking to identify in what way(s) the enterprise agreement is inconsistent with the NES, nor is there a requirement to identify which clauses of the enterprise agreement may be impacted by the undertaking. There is no requirement in the Act for an undertaking to purport to vary the substantive terms of an enterprise agreement. If an undertaking which meets the requirements of s 190 is given and accepted by the Commission, it is taken to be a term of the enterprise agreement. It follows that if Undertaking 2 is accepted by the Commission and the Enterprise Agreement is approved, an employee to whom the Enterprise Agreement applies would be able to enforce the obligation imposed by Undertaking 2 as a term of the Enterprise Agreement, in the event that CoreStaff failed to comply with that obligation.

[30] For the reasons stated above, I am concerned that the terms of the Enterprise Agreement exclude provisions of the NES. I am satisfied that if I accept Undertakings 2 (and 11), my concerns will be met and the Enterprise Agreement will not exclude the NES or any provision of the NES.” 9

[citations omitted]

[18] I have reviewed Deputy President Saunders’ consideration with respect to the NSW Agreement and am equally satisfied, for the same reasoning, that if I accept the Applicant’s undertaking 2, then the NES will not be excluded, nor would any provision of the NES. I am therefore satisfied that the Agreement does not contravene s. 55 of the Act.

The BOOT issue(s)

[19] The CFMMEU is of the view that the Commission cannot be satisfied that the Agreement passes the BOOT. Section 193(1) of the Act provides that an enterprise agreement passes the BOOT if the Commission is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the enterprise agreement would be better off overall if the enterprise agreement applied to the employee than if the relevant modern award applied to the employee. The “test time” is when the application for approval of the enterprise agreement is made. 10

[20] The BOOT is not a line by line analysis. It is an assessment that requires consideration of the advantages and disadvantages of an enterprise agreement to award covered employees and prospective award covered employees. 11 There will invariably be some advantages to making an agreement, as there will likely be some disadvantages. An enterprise agreement may pass the BOOT even if some award benefits have been reduced, so long as they are more than offset by the benefits of the enterprise agreement.12 I have been assisted by the CFMMEU identifying some detriments, which I am duly required to consider as compared to the Agreement’s benefits.

[21] Ultimately the application of the BOOT is a matter that involves the exercise of discretion and it is a value judgment. 13

[22] The Union makes a concession that undertakings 4, 5, 6, 7, 9, 10, 12 and 13 provided by the Applicant, if accepted, would improve the Agreement to provide a comparable entitlement to the Award with respect to consultation requirements, the disputes procedure, entitlements for part time workers, requests for flexible working arrangements, deductions from pay, personal leave taken as a partial day, the cost of medical examinations and redundancy. 14 I accept these undertakings. Regarding the CFMMEU’s argument as to whether employees received an explanation of these matters, I will reserve consideration (if it is applicable) when I consider the genuine agreement question.

[23] The Union also makes a concession that undertaking 11 would, if accepted, be a significant advancement for employees. 15 I accept this undertaking.

[24] The most significant benefit of the Agreement vis--vis the BCMI Award is that the pay rates are between 1.05% and 15.83% higher in the Agreement than the BCMI Award for production workers. Trainees also receive a substantially higher pay rate under the Agreement as against the Award. There is also a benefit under the Agreement for redundancy pay. The following model has been made by the Commission’s Member Assist Team for my consideration with regard to the pay rate differential between the BCMI Award and the Agreement:

[25] Notwithstanding, the CFMMEU pressed four arguments with respect to the Agreement not satisfying the BOOT, which I have considered. They were that:

  domestic and family violence leave cannot be assessed as a BOOT consideration as the NES is not incorporated into the Agreement (domestic and family violence leave issue); 16

  the Agreement allows for shifts of more than 10 hours to be worked and that this is not less beneficial than the BCMI Award which only allows for shifts longer than 10 hours to be worked upon agreement of the majority of employees affected (maximum shift length issue); 17

  the “no extra claims” provision in the Agreement (clause 7) is less beneficial than the BCMI Award, which has no such clause (no extra claims issue); 18and

  the Commission is unable to apply the BOOT to an unspecified flat rate in the Agreement (clause 12) and undertaking 8 proffered by the Applicant does not assist the Commission in applying the BOOT (flat rates issue). 19

[26] Again, I note that all bar one of these issues (maximum shift length issue) were considered by Deputy President Saunders in the NSW Agreement.

[27] With regard to the domestic and family violence leave issue, Deputy President Saunders noted in the NSW Agreement the following:

“Family and domestic violence leave

[58] Clause 28 of the BC Award provides for unpaid leave to deal with family and domestic violence. Clause 28 was inserted into the BC Award on 1 August 2018, which is prior to CoreStaff’s filing of its application for approval of the Enterprise Agreement on 12 September 2018. Accordingly, clause 28 of the BC Award was in operation as at the “test time” for the Enterprise Agreement.

[59] The Enterprise Agreement is silent on the question of family and domestic violence leave. The family and domestic violence provisions in the Act commenced operation on 12 December 2018. They are in materially the same terms as those in the BC Award. The Enterprise Agreement does not exclude those provisions of the NES. In addition, Undertaking 2 will ensure that employees to whom the Enterprise Agreement applies are entitled to the benefits of the family and domestic violence provisions in the Act. In all the circumstances, I am satisfied that this is a neutral matter in my consideration of the BOOT.” 20

[citations omitted]

[28] As with Deputy President Saunders in the NSW Agreement, I am satisfied that this is a neutral consideration for the BOOT, given that the Agreement does not exclude the NES (see undertaking 2), and that the NES entitlement with regard to domestic and family violence leave is the same as it is under the BCMI Award. This is a neutral consideration.

[29] With regard to the maximum shift length issue, I accept that it is the case (and was conceded by the Applicant to be the case 21) that a majority of affected employees did not vote to work for more than 10 hours, as they would have been required to do under the BCMI Award (only 43 of the 145 employees covered by the Agreement voted for the Agreement). However, I also accept the Applicant’s submission that, via the enterprise agreement process, agreement has been reached for shifts of more than 10 hours to be worked.22 I accept the submission made orally from the Applicant that the employees who are affected by this discrepancy between the BCMI Award are made better off overall, at least financially, through paid overtime and/or other loaded rates.23 I further accept the Applicant’s submission that the non-financial detriment to employees associated with working shifts of greater than 10 hours in length is not so significant so as to outweigh the other beneficial elements of the Agreement.24

[30] With regard to the no extra claims issue, Deputy President Saunders provided the following consideration in the NSW Agreement:

“Clause 7 - no extra claims

[44] Clause 7 of the Enterprise Agreement provides that “neither party will pursue any further claims about any permitted matter during the term of this Agreement”. The BC Award contains no such restriction and, so the CFMMEU contends, would allow employees to seek to negotiate and/or request better terms and conditions of employment of the next four years. CoreStaff submits that, consistently with the decision in Toyota Motor Corporation Australia Ltd v Marmara, clause 7 of the Enterprise Agreement cannot be relied on by CoreStaff to prevent employees from proposing amendments to the Enterprise Agreement in the manner contemplated by Subdivision A of Division 7 of Part 2-4 of the Act. In that circumstance, CoreStaff submits that the detrimental effect on employees (if any) is minimal.

[45] I agree that clause 7 of the Enterprise Agreement is less beneficial for employees than the BC Award, which contains no such limitation or prohibition and would enable employees to take protected industrial action in support of better terms and conditions of employment. However, I accept that clause 7 will not prevent employees from proposing amendments to the Enterprise Agreement in the manner contemplated by Subdivision A of Division 7 of Part 2-4 of the Act. On balance, I consider that clause 7 of the Enterprise Agreement weighs to a small extent against the BOOT being satisfied.” 25

[31] For the same reasoning as Deputy President Saunders in the NSW Agreement, I am satisfied that clause 7 of the Agreement weighs to a small extent against the BOOT being satisfied.

[32] With respect to the flat rates issue, I note that this issue was similarly considered by Deputy President Saunders in the NSW Agreement in substantial depth. On this issue, Deputy President Saunders stated as follows:

Clause 12(b) – flat rates of pay

[78] Clause 12.1 of the Enterprise Agreement provides:

“Employees will either be paid the base rates as set out in clause 12.1(a), or CoreStaff may implement flat rates of pay subject to the requirements of clause 12.1(b).

(a) Base Rates

Where an employee is engaged to work as a base rate employee they will be paid penalty rates, allowances and overtime as provided by this Agreement.

A casual loading of 25% is included in the Casual Base Rate in the table below.

The following ordinary rates apply from approval;

Position

Permanent Base Rate

Casual Base Rate

Mineworker Production Level 1

$24.00

$30.00

Mineworker Production Level 2A

$24.24

$30.30

Mineworker Production Level 2B

$24.42

$30.53

Mineworker Production Level 3

$25.91

$32.39

Mineworker Production Level 4

$27.16

$33.95

Mineworker Production Level 5

$29.95

$37.44

Mineworker Engineering Level 1

$24.24

$30.30

Mineworker Engineering Level 2

$25.66

$32.08

Mineworker Engineering Level 3

$27.96

$34.95

Mineworker Engineering Level 4

$30.83

$38.54

(b) Flat Rates

(i) CoreStaff may implement flat rates of pay. Where flat rates are paid to an employee, the flat rate is received by the employee in satisfaction of and in compensation for any and/or all entitlements to penalty rates, shift loadings, overtime rates, other loadings and allowances which might otherwise apply to the employee (except as provided under the NES or in any mandatory terms of this enterprise agreement under the Act).

(ii) Flat rates of pay will be calculated taking into account the specific roster pattern that an employee works. The total payments made to the employee for the same designated work cycle and rostered hours of work must be not less than that which the employee would have received if they were a base rate employee and paid in accordance with clause 12.1 (a).

(iii) Prior to beginning an assignment, employees engaged as a flat rate employee will be provided with a detailed calculation demonstrating how their flat rate has been calculated. Examples of the calculation can be found in Schedule 1 of this Agreement.

(iv) Any shifts worked by an employee in addition to the shifts required in the specific roster will be paid in accordance with clause 26.2(b) of this Agreement.”

[79] The CFMMEU submits that the first difficulty with clause 12.1(b) of the Enterprise Agreement is the Commission could not be satisfied that a flat rate can be arrived at for casual employees capable of passing the BOOT. The CFMMEU relies on the Loaded Rates Agreements decision, where the Full Bench expressed the view (at [121]) that where a casual employee’s hours are not constrained or guaranteed (as is the case in the Enterprise Agreement) it would appear to be impossible for the Commission to be satisfied that the BOOT was met unless the casual employee’s loaded rate was the highest penalty rate.

[80] The second difficulty, so the CFMMEU submits, is that the Enterprise Agreement in effect delegates the exercise of the BOOT to the parties. Although examples are provided of how the loaded rate may be arrived at, the CFMMEU contends that neither the examples nor the Enterprise Agreement provide guidance or any limitation on how rates will actually be arrived at. Further, whilst there is a commitment to providing employees with a breakdown of the calculation, the CFMMEU submits that simply leaves employees in a situation in which they must, in effect, perform the BOOT themselves. In this way, the CFMMEU submits that the clause is less beneficial than the BC Award and a significant question is raised over whether the Commission has enough information before it to meaningfully be satisfied that the Enterprise Agreement passes the BOOT.

[81] The CFMMEU also submits that there is nothing in the Enterprise Agreement that prohibits casual employees being engaged for irregular work on a “truly casual basis”. If employees are engaged by CoreStaff to work on such a basis under the Enterprise Agreement, the CFMMEU contends that the Commission could not be satisfied that a flat rate could be arrived at for such employees that would pass the BOOT.

[82] The Full Bench made the following relevant observations in the Loaded Rates Agreements case (references omitted):

“[121] The position becomes more difficult with respect to casual employees. As discussed in the Casual and Part-time Employment Case, the contractual and practical incidents of casual employment under the FW Act may vary greatly. Casual employment may consist of engagement under hourly or daily fixed term contracts, and be used for the performance of short-term and/or intermittent work on an “on-call” basis. It may also consist of longer-term contracts or an ongoing contract of indefinite duration (terminable in either case on short notice), and be used for the performance of long term work with regular, rostered hours. In the former case, the casual employee is not guaranteed work on any specified days or for any specified duration. In an enterprise agreement which provides or permits casual employment of this nature, it is difficult to envisage how it would be possible to provide for a loaded rate for casual employees that was capable of passing the BOOT. This is because it would always be possible for the casual employee, in a given pay period, to be engaged to work on a day or at a time which would attract the payment of penalty rates under the relevant award and not to be engaged on any other hours or at any other times. In that circumstance, if the agreement provided for a loaded rate which was less than the highest penalty rate provided for in the relevant award, the employee would necessarily be disadvantaged as compared to the award. This result could only be avoided if the agreement provided for some other benefit to the casual employee which offset the disadvantage, and/or or imposed some restriction on when a casual employee could be engaged to work, and/or required the hours of work of a casual employee to be balanced over time between hours which would attract the payment of penalty rates under the relevant award and hours which would not. Any such additional provisions would amount to a significant departure from the concept of the “on-call” casual.

[122] For an enterprise which utilises casual employees to perform regular and ongoing work (so that casual employment is simply used as an alternative payment and entitlement system rather than to describe engagement on a truly casual basis), an enterprise agreement might provide casual employees with an entitlement to guaranteed hours and rosters. In that circumstance it may be possible to construct a loaded rate for them, in the same way as for full-time and part-time employees above, which is capable of passing the BOOT based on particular prescribed rosters…”

[83] Clause 12.1(b) of the Enterprise Agreement requires a flat rate of pay to be “calculated taking into account the specific roster pattern that an employee works”. If an employee does not have a “specific roster pattern”, it would not be possible to calculate a flat rate for the employee. Further, Undertaking 6(d) provides that “employees who are not required to work a designated work cycle or specific roster must be engaged as base rate employees and paid in accordance with cl.12.1(a) of the Agreement”. It follows that the Enterprise Agreement, read together with Undertaking 6, does not permit a flat rate to be paid to a casual employee who does not have a “specific roster pattern” or a designated work cycle. On the other hand, if a casual employee has a “specific roster pattern” or a designated work cycle, then I am satisfied that it would be possible to construct a loaded rate for the employee which is capable of passing the BOOT, particularly in circumstances where clause 12.1(b)(iv), read together with Undertaking 6(c), requires that any shifts or hours worked by an employee in addition to the shifts or hours required in their specific roster will be paid at overtime rates.

[84] As to the second difficulty identified by the CFMMEU, clause 12.1(b)(ii) of the Enterprise Agreement requires that the total payments to be made to the employee to whom a flat rate is paid “must not be less than that which the employee would have received if they were a base rate employee”. I do not accept the CFMMEU’s submission that employees will be left in a situation in which they must, in effect, perform the BOOT themselves. First, clause 12.1(b)(ii) requires a comparison between the payment of a flat rate to an employee and a base rate under the Enterprise Agreement, unlike the BOOT, which requires a comparison between the Enterprise Agreement and the relevant modern award. Secondly, the employee to whom a flat rate is paid does not have to undertake a BOOT type analysis; it is CoreStaff which is obliged by clause 12.1(b)(ii) to ensure that an employee to whom a flat rate is paid receives at least as much pay as they would have received if they had been paid base rate under the Enterprise Agreement. Further, CoreStaff is obliged by clause 12.1(b)(iii) of the Enterprise Agreement and Undertaking 6(a) to provide the employee with a “detailed calculation demonstrating how their flat rate has been calculated”. It follows, in my view, that if the Enterprise Agreement passes the BOOT for employees who receive a base rate of pay under clause 12.1(a) of the Enterprise Agreement, it must also pass the BOOT for employees who receive a flat rate of pay under clause 12.1(b) of the Enterprise Agreement, subject to consideration of the issue I address in paragraph [86] below.

[85] I am satisfied that Undertaking 6 addresses other concerns raised by the CFMMEU and the Commission in relation to clause 12.1(b) of the Enterprise Agreement. Paragraphs (b) and (e) of Undertaking 6 will ensure that if an employee to whom a flat rate is paid does not work an entire designated work cycle, they will be paid any detrimental difference between what they were paid as a flat rate employee for the part of the designated work cycle they worked and what they would have been paid had they received a base rate of pay for the same period. Limiting the length of a designated work cycle to 12 weeks will ensure that any such payments are made within a reasonably short period of time after the work is performed.

[86] For the reasons given, I am satisfied that clause 12.1(b) of the Enterprise Agreement, read together with Undertaking 6, is neutral in my consideration as to whether the Enterprise Agreement passes the BOOT, save for in the following limited circumstances. If an employee to whom a flat rate is paid does not work an entire designated work cycle and the amount they were paid as a flat rate employee for the part of the designated work cycle they worked is less than what they would have been paid had they received a base rate of pay for the same period, then they will receive an additional payment to ensure they receive the same amount as they would have received if they were a base rate employee. This may, for example, occur where a flat rate employee works two public holidays in the first two weeks of a designated work cycle and then ceases being paid a flat rate of pay. The payments they would have received if they were a base rate employee for those two public days would, as a flat rate employee, be spread evenly over the period of the designated roster cycle, which could be up to twelve weeks. However, because in this example the employee ceases being paid a flat rate after two weeks, they may need to be paid an additional amount after they cease being paid a flat rate of pay to take them up to the amount they would have been paid had they received a base rate of pay during that 2 week period. In pure dollar terms, the employee will be in the same position as if they had received a base rate of pay at all times. Notwithstanding this, the employee may be worse off as a flat rate employee than if they were a base rate employee because there will be a time lag between the payment of the additional amount to the employee and when they would have received the earnings as a base rate employee. Using the example referred to above, the hypothetical base rate employee would have received the relevant payments fairly close to the time when the work was undertaken, whereas the flat rate employee would not receive the additional payment until shortly after they ceased to be a flat rate employee. In this example, the time lag could be about a week. The time lag in other examples could be up to about eleven weeks, given the twelve week limit on designated work cycles and the requirement to pay wages on a weekly basis. However, the longer an employee works through a designated work cycle, the lower any additional payment is likely to be. That is, because flat rates of pay, by their very nature, spread ‘lumpy’ entitlements evenly over the period of the designated work cycle. This analysis demonstrates that the time lag associated with the making of an additional payment to an employee who ceases to be paid a flat rate of pay during a designated work cycle may, in some circumstances, give rise to some detriment to a flat rate employee compared to a base rate employee. But the protections afforded to flat rate employees by the terms of clause 12.1(b), read together with Undertaking 6, will ensure the detriment is not significant. Further, I am satisfied that any such detriment is offset by the over-award benefits provided for in the Enterprise Agreement, such that all employees will remain better off overall under the Enterprise Agreement compared to the BC Award. 26

[citations omitted]

[33] This matter is on all fours with the Deputy President’s considered analysis in the NSW Agreement, with which I agree. In the NSW Agreement, the Deputy President required the Applicant to file a revised undertaking to the one originally proposed [undertaking 6] (which currently mirrors the one before me, undertaking 8). Should I be of a mind to approve the Agreement, I would request that the Applicant submit the same undertaking that was provided and accepted in the NSW Agreement (undertaking 6 in that Agreement). I am otherwise satisfied that the flat rates issue is a neutral consideration in the BOOT assessment of the Agreement.

[34] I have considered the Agreement; its benefits and its detriments, as against the BCMI Award. I am satisfied that overall the benefits (particularly the pay differential) outweigh any potential detriments identified by the CFMMEU. I am therefore satisfied that the Agreement, with the undertakings, satisfies the BOOT pursuant to ss. 186(2)(d) and s. 193 of the Act.

Genuine agreement

Statutory test

[35] Pursuant to ss.186(2)(a), 188(1)(a)(i) and 188(1)(c) of the Act, the Commission must be satisfied that the proposed agreement has been ‘genuinely agreed to’ by the employees covered by the proposed agreement. Specifically, the Commission must be satisfied that the employer has taken ‘all reasonable steps’ to ensure that the terms of the proposed agreement and their effect has been explained to the relevant employees in an appropriate manner, taking into account the particular circumstances and needs of the relevant employees (s. 180(5) of the Act).

One Key Workforce Pty Ltd

[36] The decision in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union 27 (One Key) (especially at [144] – [170]) articulates further the consideration that the Commission must have regarding the ‘genuine agreement’ requirement. I have summarised the Full Federal Court’s consideration below:

(a) whether the employer has complied with the obligations in s.180(5) depends on the circumstances of the case;

(b) whether an employer has complied with s.180(5) requires the Commission to identify and assess the steps taken to ensure that the terms of the proposed agreement and their effect had been explained to the relevant employees;

(c) after considering the steps taken, the Commission must then consider whether:

(i) the steps taken were reasonable in the circumstances; and

(ii) these were all the reasonable steps that should have been taken in the circumstances.

(d) The Commission must then consider the content of the explanation given to ensure that the object of ensuring that (i) the terms of the proposed agreement and (ii) their effect, have been explained to the relevant employees in a manner that considers their particular circumstances and needs including their cultural and linguistic backgrounds and their age;

(e) the number and content of those steps comprising ‘all reasonable steps’ will depend on the circumstances. Some employers may, by reasons of the prevailing circumstances, need to take more or fewer steps than other employers with different agreements, facing different circumstances;

(f) the content of the explanation must enable relevant employees to cast an informed vote, to know the content of the agreement and to enable them to understand how their terms and conditions might be affected by voting in favour of the agreement;

(g) in order to comply with s.180(5), an employer is not always required to identify detriments in an agreement against the relevant modern award or to provide an analysis between the agreement and the modern award, particularly in circumstances where an existing enterprise agreement applies to the employees in their employment with the employer. Where this is an existing enterprise agreement in place at the time of the explanation, it is relevant to have regard to the manner and content of the explanation of the changes made in the proposed agreement relative to the existing agreement; and

(h) an employer does not fail to comply with the obligation in s.180(5) merely because an employee does not understand the explanation provided.

[37] Further to (h) above, the Full Court in One Key ultimately concluded that:

“[172] Nevertheless, the primary judge was correct to find that the Commissioner fell into jurisdictional error by failing to have regard to the content and terms of the explanation OKW purportedly provided the employees before they cast their votes. In addition the Commissioner’s decision was affected by jurisdictional error because he failed to appreciate that, in determining whether the relevant employees had genuinely agreed to the Agreement he needed to consider whether they were likely to have understood its terms and effect”.

The CFMMEU’s submissions on genuine agreement

[38] The CFMMEU provided the following written submissions with respect to the genuine agreement matter (in sum):

  there is nothing in the Applicant’s explanatory document, or understandings, that provides sufficient material with respect to which the Commission could be satisfied that the Agreement was genuinely agreed to in accordance with the Act; 28

  on the Applicant’s evidence, not one meeting or phone call was had with employees voting on the Agreement (about the Agreement) after bargaining finished on or around 24 January 2019 and this therefore cannot satisfy the ‘all reasonable steps’ consideration; 29

  meetings held during bargaining cannot be relied on as a substitute for explaining the terms of an agreement, citing HSU v Clinpath Laboratories [2018] FWCFB 5694 at [25] (even despite the Agreement not changing from the bargaining sessions); 30

  information has not been provided to the Commission on what was explained to the employees which is a requirement of One Key; 31

  the Commission should consider what may constitute all reasonable steps from the circumstances in One Key; 32

  as the Agreement contains barely beneficial terms as against the BCMI Award (as I have found), an obligation to explain the terms and effect of the Agreement can only be heightened, citing Downer EDI Mining – Blasting Services Pty Ltd [2018] FWCA 2888 at [46]; 33

  the letter said to have been sent to employees making comparisons to the BCMI Award and the existing agreement (appended to the Form F17) was inadequate, and there was otherwise insufficient detail in the material lodged for the Commission to form a view that the comparison was actually received, read or understood by the employees covered by the Agreement; 34

  undertakings proffered which satisfy the BOOT requirement cannot absolve failures to take ‘all reasonable steps’ to explain an agreement, citing Australian Workers’ Union v Professional Traffic Solutions Pty Ltd [2018] FWCFB 6333 at [46], Construction, Forestry, Maritime, Mining and Energy Union v Dawsons Maintenance Contractors Pty Ltd [2018] FWCFB 2992 at [57] and Diamond Offshore General Company v Michael Baldwin ; Corey Billows; Brett Slocum; Craig Sandler; Daryl Byron; Adam Williams; James Richardson [2018] FWCFB 6907 at [41]. 35

The Applicant’s submissions on genuine agreement

[39] The Applicant provided the following written submissions with respect to the genuine agreement matter (in sum):

  reasonable steps associated with the explanation of the terms of the Agreement need not have occurred during the access period; 36

  in circumstances where the Agreement was unchanged between it being sent to employees on 21 December 2018 and the vote, explanation of terms prior to the access period can be included in the reasonable steps taken for the purposes of s.180(5); 37

  the Hunter Declaration (Form F17) demonstrates that an explanation of the Agreement and its terms was provided at Information Sessions held between 8 and 24 January 2019 across various locations; 38

  employees were provided with contact details to obtain further explanations from managers of CoreStaff if required or to arrange an alternative session if they could not attend the scheduled sessions; 39

  all reasonable steps were taken to explain the Agreement as required by s.180(5) of the Act; 40

  the additional concerns of the CFMMEU appear to relate to s.188(1)(c) of the FW Act, and the low turnout for the vote and lack of detailed information provided regarding the opportunity for employees to vote. In this regard, CoreStaff notes that, the letter provided to employees and referenced in the Hunter Declaration at question 2.6 clearly articulated how employees were to vote on the Agreement; 41

  the matters advanced by the CFMMEU are without foundation. 42

The evidence

Form F17 (Hunter Declaration)

[40] The Hunter Declaration 43 deposes the following regarding the genuine agreement requirement:

  A copy of the Agreement in draft form was provided to all employees covered by the Agreement by email at the commencement of the bargaining process Employees were also notified that they could at any time view a hard copy of the latest draft of the proposed Agreement at the Company’s premises in Brisbane and Townsville or could requires that a hard copy be mailed to them (communication on 21 December 2018); 44

  Employees were advised that the Agreement draft had not changed since that (sic) provided to them on 21 December 2018 and that they should refer to the previous email but, if they had misplaced their copy of the Agreement and would like another copy they could speak to their Corestaff representative or Nathan Hunter and a further copy would be provided (communication on 24 January 2019); 45

  Employees were advised by email that a number of information sessions would be held throughout January including the date, time, location and address of such sessions. Employees were also provided with my (Nathan Hunter’s) mobile number and advised that they could call any time with questions (communication on 21 December 2018); 46

  Information sessions were held in Brisbane (4 sessions), Moranbah (2 sessions), Townsville, Middlemount (2 sessions) and Dysert (2 sessions) at which employees who attended were provided with an explanation of the Agreement and its terms (between 8 – 24 January 2019). 47

  A letter detailing the provisions of the Agreement and the key differences between the Agreement and the underlying Modern Award was provided to all employees. A copy of this letter is at Appendix 3 (communication by letter dated 24 January 2019). 48

  Employees were provided with mobile telephone contact numbers for myself (Nathan Hunter) and other key managerial employees to answer any additional questions about the Agreement following the Information Sessions or receipt of the document at Appendix 3 (communication on 21 December 2018). 49

  Meetings were held at remote worksites (Moranbah, Middlemount and Dysart) [for employees] who may not have been able to attend central sessions in Brisbane and Townsville (between 8 January – 24 January 2019). 50

[41] On 31 October 2019 my chambers sent the following email to the parties:

“Dear parties

The Deputy President has considered the material currently before the Commission in this matter.

The Deputy President wishes to make clear to the parties that he has not reached a concluded view on the application.

As the parties are aware, a hearing was held to determine the matter on 25 July 2019. On 9 September 2019, the Deputy President wrote to the Applicant and the CFMMEU advising that he did not intend to hand down a decision prior to the Full Bench appeal [2019] FWCFB 5916 being made. On 18 September 2019, that Full Bench appeal was duly handed down. The Deputy President then invited further submissions from the parties due 18 October 2019 on the appeal and its relevance to the present matter. He has had further time to consider these submissions.

The Deputy President is of the view that any further evidence concerning the matters related specifically to ss. 180(5) and 188(1)(c) of the Fair Work Act 2009 may assist him in determining the matter, and wishes to afford the Applicant an opportunity to provide any further evidence that it may be able to provide.

The Deputy President is of the view that more comprehensive material (and evidence) was provided for Deputy President Saunders for His Honour for His determination (sic) regarding the Corestaff NSW Black Coal Enterprise Agreement 2018.

Matters that the Deputy President requests that Applicant provide further evidence on if it is able to include:

(a) any further evidence concerning the content of the explanation provided to employees regarding the terms of the Agreement, including the changes between the Black Coal Mining Industry Award 2010, the 2015 Agreement and the Proposed Agreement and the effect of those changes; and

(b) any further evidence concerning the manner of the explanation provided to employees regarding the terms of the Agreement, including the changes between the Black Coal Mining Industry Award 2010, the 2015 Agreement and the Proposed Agreement and the effect of those changes.

In the event that the Applicant indicates it cannot or does not intend to provide further evidence, the Deputy President will proceed to determine the matter on the current material. If the Applicant could please let chambers know at its earliest convenience if this is the case, that would be appreciated by the Deputy President.

If the Applicant does intend to provide this material, the Deputy President would request this be filed with chambers and served on the CFMMEU by close of business on 15 November 2019.” 51

[emphasis added]

[42] On 15 November 2019, the Applicant’s representative responded to my opportunity for them to provide further evidence in the following way:

“Dear Associate

Thank you for your email as below.

I advise that the Applicant does not intend to provide further evidence and understands that, accordingly, the Deputy President will proceed to determine the application on the material currently before him. The Applicant maintains that this matter is different to that which was before Deputy President Saunders and relies upon its material previously as filed, including the Form F17, and submissions made at the hearing of this matter on 25 July 2019.

I apologise for the delay in providing this confirmation to the Commission.” 52

[43] Given that the Applicant filed no further evidence, I am left to consider whether the information provided in the Form F17 (Hunter Declaration) and in the annexures to the Hunter Declaration relevant to the genuine agreement requirement are enough to assess whether the Applicant took ‘all reasonable steps’ in the circumstances.

Consideration

[44] Overall, having considered the material before me, I am not satisfied that the Applicant took ‘all reasonable steps’ to explain either the terms of the Agreement or the effect of those terms of the Agreement as is apposite per One Key.

Satisfaction regarding the explanation of the terms of the Agreement

[45] In order to be satisfied that the Applicant took all reasonable steps to explain the terms of the Agreement to the employees, the Commission ultimately required more evidence. I provide my consideration on the material before me.

21 December 2018 communication

[46] It is not enough for the Applicant to say that a copy of the Agreement was provided to the employees on 21 December 2018 (at the commencement of the bargaining period) accompanied by some explanation as to the effect of having an agreement as opposed to being award covered (with some comparison between the Award and the Agreement), but otherwise providing very limited explanation on what the changes were to be (if any) between the agreement which presently covered the employees, the Corestaff QLD Black Coal Enterprise Agreement 2015 (the Existing Agreement), and the Agreement.

[47] It should be expected that if a workforce is changing from one agreement to another, then at least some explanation of the changes from the existing agreement to a future one should be provided to meet the ‘all reasonable steps’ test in s. 180(5) of the Act. This is evident from the Full Court’s consideration in One Key which I outlined previously.

[48] In this case, the CFMMEU identified several changes between the Existing Agreement and the Agreement. They include the fact that the Award is not incorporated in the Agreement, but it is in the Existing Agreement, 53 the fact that shifts can now be worked up to 12.5 hours in the Agreement, as opposed to 12 hours under the Existing Agreement.54 Both of these things, in my view, should have been explained to the employees in order to meet the ‘all reasonable steps’ test in s. 180(5) of the Act.

[49] The communication to employees on 21 December 2018 does not attach the Existing Agreement and there are no comparisons made whatsoever between the Existing Agreement and the Agreement. The only explanation as to why there is a need to make the Agreement is (which is not something I need to be satisfied with under the Act):

“… the existing Agreement has a number of limitations that have hindered our ability to negotiate better rates with our clients and we believe that the new Agreement better serves our requirements as well as provide (sic) better certainty and protection for you, our employees, by providing better conditions of employment.”

[50] This, in my view, provides employees with little (to no) explanation of the terms of the Agreement. The lack of sufficiency in the explanation, together with the absence of any evidence as to what was said to the employees who attended the information sessions and meetings held at remote worksites, leaves me in a position where I cannot be satisfied that all reasonable steps to explain the Agreement have taken place.

[51] I am satisfied, however, that in the 21 December 2018 communication there was some explanation of the differences between the BCMI Award and the Agreement. I will not make a finding as to my satisfaction on whether the explanation was sufficient (in explaining differences between the relevant award and the Agreement) pursuant to the statutory test, but I note that this does provide some explanation at least.

[52] Ultimately, the Agreement did not change (from the draft version of the Agreement sent during bargaining to employees on 21 December 2018). Notwithstanding, I am not satisfied that this written communication amounted to the Applicant ensuring that all reasonable steps to explain the terms of the Agreement to the employees had been taken. Being one of the only pieces of written documentary evidence before me which goes to whether the Agreement was explained to Corestaff’s workforce, I find that it is not enough for the Applicant to satisfy s. 180(5) of the Act. Had the Applicant provided further documentary evidence of communications to its workforce about the terms of the Agreement and certainly any comparisons between the Existing Agreement and the Agreement, I might otherwise have been satisfied that the terms were explained.

Information sessions

[53] It is apparent that the Applicant did hold information sessions and meetings at remote worksites (during the bargaining process) to explain the terms of the Agreement. However, it is not known on the evidence how many employees (if any) attended these sessions and meetings and how the Agreement was explained to the employees upon attending these, i.e. the Commission was not provided with a copy of any PowerPoint slides used or any speaking notes used to explain the terms of the Agreement to the employees at these sessions. The Commission was not provided with minutes of these sessions and nothing was deposed from Mr Hunter about any content of these sessions at all. This, in my view, would not have been onerous for the Applicant to do and it was provided with ample opportunity to do this. The mere fact that these information sessions and meetings occurred, in the absence of any knowledge of what it was that was explained or an indicative assessment of who attended these sessions, does not in all the circumstances of this case satisfy the Commission that the Applicant took all reasonable steps to explain the terms of the Agreement to employees.

25 January 2019 communication

[54] The 25 January 2019 communication informs employees that negotiations have been finalised with respect to the Agreement and that a copy of the Agreement and BCMI Award has already been forwarded to them (but if employees would like another copy the Agreement (or incorporated materials) to contact their Corestaff representative) and that 13 information sessions have been held in Brisbane, Townsville and Central Queensland. It also provides information on voting (which I am satisfied is sufficient for the purposes of complying with s. 180(3) of the Act). Lastly, it does indicate that employees may contact Nathan Hunter should they have any further questions regarding the Agreement.

[55] Ultimately, I have concluded that this communication was a lost opportunity for the Applicant to explain the terms of the Agreement and effect of those terms. Had an information sheet or a FAQ document accompanied this communication, in my view, it would have gone a long way to assisting the Applicant in its submission on genuine agreement. Ultimately, this document provides little to the Commission to satisfy it that the Applicant took all reasonable steps to ensure that the terms of the Agreement were explained.

Conclusion on explanation of the terms of the Agreement

[56] Having regard to all the evidence adduced by the Applicant, I am not satisfied that the Applicant has taken all reasonable steps to ensure that the terms of the Agreement were explained to the employees of the Applicant as is a requirement pursuant to s. 180(5) of the Act. If I am wrong, however, I am also not satisfied that the Applicant has taken all reasonable steps to ensure that the effect of the terms of the Agreement were explained to the employees, as is a requirement of s. 180(5) of the Act.

Satisfaction regarding the explanation of the effect of the Agreement

[57] In addition to my finding that the Applicant did not take all reasonable steps to ensure that the terms of the Agreement were explained to its employees, I have also found that the Applicant did not take all reasonable steps to ensure that the effect of the terms in the Agreement were explained to employees. Again, in my view, it ultimately comes down to a lack of evidence before the Commission.

[58] The Full Bench of the Commission in CFMEU v Ditchfield Mining Services Pty Ltd [2019] FWCFB 4022 (Ditchfield) outlines, relevantly, that consideration is also required about what, if any, explanation has been given to employees about the effect of those terms:

“[75] That information might be sufficient to support satisfaction that the terms of the Agreement were relevantly explained, but it says nothing about what if any explanation had been given to employees about the effect of those terms.

[76] The Deputy President’s conclusion as to satisfaction in relation to s.180(5) of the Act is at [58] of the Decision, which is earlier set out in this decision. At [52] of the Decision, the Deputy President distinguishes the decision in One Key Workforce (No 2). The Deputy President reasoned that in One Key Workforce (No 2) there were no face-to-face meetings, the agreement for approval covered classifications in 11 awards, and the three employees voting on the agreement only worked across two awards and could not give informed consent in regard to occupations and industries in which they did not work. He concluded that those circumstances, or anything similar, do not exist in this application.

[77] So much is correct, but, respectfully, there are further matters that require consideration. In One Key Workforce (No 2), the Full Court made several observations about the quality of the explanation required in order to comply with s.180(5) of the Act, and the Commission’s approach to assessing compliance. It is important to remember that the Full Court said of the Commission’s approach that

“[i]n order to reach the requisite state of satisfaction that s.180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement”.

[Full Bench’s emphasis, citations omitted]

[78] As to the absence of information about the content of the explanation that had been given, the Full Court observed, inter alia, that

“[t]he absence of that information meant that the Commission was not in a position to form the requisite state of satisfaction. Put differently, without knowing the content of the explanation, it was not open to the Commission to be satisfied that all reasonable steps had been taken to ensure that the terms and their effect had been explained to the employees who voted on the Agreement or that they had genuinely agreed to the Agreement”.

[Full Bench’s emphasis, citations omitted]

[79] As should be evident from the terms of s.180(5) of the Act, the content of the explanation required is twofold. First, there must be an explanation of the terms of the Agreement. Secondly, the effect of those terms must be explained.” 55

[59] In the case before me, I am left with very little evidence from the Applicant about what was the content of the explanation was to its employees. The communication sent to employees on the 21 December 2018 is insufficient to satisfy me that all reasonable steps had been taken. Without evidence as to the content of any communications to employees at the information sessions and meetings and without any other evidence of communications outlining changes from the Existing Agreement to the Agreement, it is not open to me, in my consideration, to be satisfied that all reasonable steps had been taken to explain the terms of the Agreement and their effect.

Conclusion on explanation of the effect of the Agreement

[60] I am not satisfied that the Applicant took all reasonable steps to explain the effect of the terms of the Agreement to employees.

Conclusion on genuine agreement

[61] I am not satisfied that the Agreement was genuinely agreed to by the employees who would be covered by the Agreement, pursuant to the requirements of to ss.186(2)(a), 188(1)(a)(i) and 188(1)(c) of the Act.

[62] As I outlined to the parties in my communication to them on 31 October 2019, I was of the “…view that more comprehensive material (and evidence) was provided for Deputy President Saunders for His Honour’s… determination [regarding the genuine agreement point in] the Corestaff NSW Black Coal Enterprise Agreement 2018.”  56 It is clear that the Deputy President, in the NSW Agreement, had at least a detailed witness statement outlining the steps taken to explain the terms and effect of the Agreement. It is also clear that the Deputy President was provided further oral evidence by a witness as to the steps taken by the Applicant to explain the terms and the effect of the Agreement. Ultimately, no such evidence was before me in this case.

Conclusion

[63] For abundant clarity, and subject to the undertakings provided by the Applicant, I am satisfied that the Agreement is compliant with the NES and passes the BOOT. I am not satisfied, however, that the Agreement was genuinely agreed to by the employees. Should the Agreement be put back to the Applicant’s workforce in a manner that can demonstrate to the Commission, through evidence, that the Applicant has taken all reasonable steps to explain the terms of the Agreement (and their effect) to its employees, then it would be open to the Commission to approve the Agreement. Ultimately, the Agreement, as it is before me, is not approved. The application is dismissed.

Seal of the Fair Work Commission with member's signature

DEPUTY PRESIDENT

Appearances

Ms C. Brown for the Applicant of the law firm, KHQ Lawyers.

Mr A Kentish for the CFMMEU.

Hearing Date

25 July 2019 in Brisbane.

Final Written Submissions

15 November 2019.

Printed by authority of the Commonwealth Government Printer

<PR714885>

 1   Corestaff NSW Black Coal Enterprise Agreement 2018 [2019] FWCA 4403.

 2   Construction, Forestry, Maritime, Mining and Energy Union v CoreStaff NSW Pty Ltd [2019] FWCFB 5916.

 3   Corestaff NSW Black Coal Enterprise Agreement 2018 [2019] FWCA 4403 at [9].

 4   Ibid at [10].

 5   Written submissions of the CFMMEU at [6(a)].

 6   Ibid at [6(b)].

 7   Ibid at [6(c)].

 8   Ibid at [6(d)].

 9   Corestaff NSW Black Coal Enterprise Agreement 2018 [2019] FWCA 4403 at [28 - 30].

 10   Section 193(6) Fair Work Act 2009 (Cth).

 11   SDA v Beechworth Bakery Employee Co Pty Ltd [2017] FWCFB 1664 at [12].

 12   Re Australia Western Railroad Pty Ltd T/A ARG – A QR Company [2011] FWAA 8555 at [8]; NTEIU v University of New South Wales [2011] FWAFB 5163 at [47].

 13   TWU v Jarman Ace Pty Ltd [2014] FWCFB 7097 at [28].

 14   Written submissions of the CFMMEU at [14].

 15   Ibid at [15].

 16   Ibid at [16(a)].

 17   Ibid at [16(b)].

 18   Ibid at [16(c)].

 19   Ibid at [17].

 20   Corestaff NSW Black Coal Enterprise Agreement 2018 [2019] FWCA 4403 at [58 - 59].

 21   Transcript PN112.

 22   Transcript PN111.

 23   Transcript PN113.

 24   Ibid.

 25   Corestaff NSW Black Coal Enterprise Agreement 2018 [2019] FWCA 4403 at [44 - 45].

 26   Ibid at [78 – 86].

 27   One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77.

 28   Written submissions of the CFMMEU at [18].

 29   Ibid at [19].

 30   Ibid at [20 - 21].

 31   Ibid at [22].

 32   Ibid at [23].

 33   Ibid at [24].

 34   Ibid at [25].

 35   Ibid at [26 – 28].

 36   Written submissions from the Applicant at [9(a)].

 37   Ibid at [9(b)].

 38   Ibid at [9(c)].

 39   Ibid.

 40   Ibid at [10].

 41   Ibid at [11].

 42   Ibid.

 43   Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement by Nathan Hunter.

 44   Ibid at [2.5].

 45   Ibid.

 46   Ibid at [2.7].

 47   Ibid.

 48   Ibid.

 49   Ibid.

 50   Ibid at [2.8].

 51   Email to parties dated 31 October 2019.

 52   Email to chambers from the Applicant dated 15 November 2019.

 53   Transcript PN247.

 54   Transcript PN252; refer also to Transcript PN112.

 55   CFMEU v Ditchfield Mining Services Pty Ltd [2019] FWCFB 4022 at [75 – 79].

 56   Email to parties dated 31 October 2019.