[2020] FWCFB 848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Australian Nursing and Midwifery Federation
v
Uniting Church in Australia Property Trust (Q.); Australian Workers' Union, The; United Workers' Union
(C2019/6229)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

MELBOURNE, 3 MARCH 2020

Appeal against decision [2019] FWCA 6559 of Commissioner Wilson at Melbourne on 19 September 2019 in matter number AG2018/5527

Introduction

[1] Uniting Church in Australia Property Trust (Q.) which for present purposes trades as Wesley Mission Queensland (the “first Respondent” or “Wesley Mission”) applied under s.185 of the Fair Work Act 2009 (Act) for approval by the Fair Work Commission (Commission) of an enterprise agreement titled Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 (Agreement). The relevant reference instruments which cover but do not apply to the employees covered by the Agreement are the Aged Care Award 2010 1 (Aged Care Award) and the Social, Community, Home Care and Disability Services Industry Award 20102 (SCHADS Award).

[2] The Australian Nursing and Midwifery Federation (ANMF) was a bargaining representative for the proposed agreement and opposed the approval of the Agreement on several grounds. The Australian Workers’ Union (AWU) was also a bargaining representative for the proposed agreement. It filed a Form F18 statutory declaration in which it said that it neither supports nor opposes approval of the Agreement but gave notice pursuant to s.183 of the Act that it wanted to be covered by the Agreement. The AWU appeared in the proceedings below and joined the ANMF in opposition but it did not provide any separate submissions.

[3] United Voice (UV) was also a bargaining representative for the proposed agreement and in that capacity, signed the Agreement. UV did not appear in the proceedings below nor did it provide submissions. UV filed a Form F18 statutory declaration in which it said that it supports approval of the Agreement and gave notice pursuant to s.183 of the Act that it wanted to be covered by the Agreement.

[4] The Agreement covers Wesley Mission and its employees in the State of Queensland for whom classifications are contained in the Agreement. The employees may generally be described as care and support employees. These employees were, before the Agreement was approved, covered by the Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 2013 3 (2013 Agreement). That agreement also covered employees employed in another of the first Respondent’s businesses, which trades as Blue Care.

[5] At first instance there was evidence that the first Respondent had initially proposed an agreement to cover the same group of employees covered by the 2013 Agreement. A proposed agreement was first put to a vote in September 2016 with a majority of relevant employees voting not to approve the proposed agreement. A further proposed agreement with the same coverage was put to a vote in May and June 2017. That proposed agreement also failed to gain majority support for its approval. On analysis by the first Respondent of the votes, it appeared that a majority of employees who cast a valid vote at Wesley Mission had voted to approve the proposed agreement, while a majority of employees who cast a valid vote at Blue Care had not. There was some evidence that the two cohorts of employees were pursuing substantively different logs of claim. Consequently, the CEOs of Wesley Mission and Blue Care determined to seek separate agreements covering employees in their respective businesses.

[6] The application for the approval of the Agreement was allocated to Commissioner Wilson who by decision published on 19 September 2019 approved the Agreement with undertakings (Approval Decision).⁴ To properly understand the decision-making process adopted by the Commissioner it is necessary to read the Approval Decision with two earlier decisions. The first, published on 29 July 2019 (July 2019 Decision),⁵ dealt with various ANMF objections concerning whether the group of employees covered by the Agreement was fairly chosen, whether relevant employees genuinely agreed to the Agreement and whether certain undertakings proffered by Wesley Mission should or could be accepted.

[7] The second decision was published on 13 September 2019 (September 2019 Decision).⁶ That decision dealt with a residual outstanding issue concerning the fairly chosen question which had been identified at [132] of the July 2019 Decision.

[8] The ANMF has applied for permission to appeal under s.604 of the Act, and if granted, appeals the Approval Decision.

The Approval Decision

[9] In the Approval Decision the Commissioner notes that Wesley Mission has provided written undertakings; that he is satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The Commissioner notes as he is required to do, that the undertakings are taken to be a term of the Agreement.⁷ The Commissioner’s reasons for this conclusion are to be found at [99]—[130] of the July 2019 Decision. Relevantly the Commissioner reasoned as follows:

“[125] I turn to a consideration of each of the undertakings given in these proceedings and find that the QNMU's objection that they amount to substantial changes and may not be accepted:

• Undertakings 1 and 2 – These undertakings deal with the Commission’s concern that the threshold for payment of the first level of overtime under the Agreements clause 7.6 was inferior when compared with the Aged Care Award 2010. In particular, the Award referred to double time commencing after two hours of overtime whereas overtime under the Agreement commences at double time only after three hours.

The response on the part of the Applicant was to incorporate the provisions of the Award, the effect of which is to require double time to be paid after two hours of overtime. In its objection the QNMU merely notes that the result of the undertakings “is to entitle employees to be paid for all work done in addition to their rostered ordinary hours on any day (except a public holiday) at Award overtime penalty rates”, whereas the WMQ submits that this “type of minor additional benefit is of a character that is routinely given as part of enterprise agreement undertakings”.

In the course of its submissions, WMQ argued that this “type of minor additional benefit is of a character that is routinely given as part of enterprise agreement undertakings”, but saw benefit in further clarifying employee entitlements putting forward an amended undertaking (replacing the original Undertakings 1 and 2)

“That despite clause 7.6.1(a) of the Agreement:

(i) for all authorised overtime worked by an employee on Monday to Friday, payment will be at the rate of time and a half for the first two hours and double time thereafter; and

(ii) for all authorised overtime worked by an employee on a Saturday, payment will be at the rate of double.”

The amended undertaking ensures that the concern originally identified by the Commission has been met. On its own the undertaking does not involve the wholesale reshaping of the Agreement and its effect is unlikely to have a significant bearing on working arrangements. On its own the undertaking would not be impermissible for these or any other reasons.

• Undertaking 3 – This undertaking incorporates ss.104 - 106 of the Act which deals with compassionate leave incorporating those sections “to the extent that they are more beneficial than those outlined in Clause 8.4 of the agreement”. The QNMU argues that by incorporating all of the more beneficial terms of the NES, “[b]y itself, undertaking 3 is not a substantial change to the Agreement”. The undertaking given ensures that the concern originally identified by the Commission has been met. This undertaking does not involve the wholesale reshaping of the Agreement and its effect has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

• Undertaking 4 – This undertaking has been dealt with at an earlier stage in this decision in respect of the terminology of the undertaking. The undertaking appears to have been provided in response to the Commission’s concerns expressed about weekend and other penalty rates, with the concern being raised in the context of a concern about “whether employees will be better off overall under the Agreement”. Specifically the Applicant and bargaining representatives were advised that in relation to Saturday penalties “The Agreement has a reduced Saturday overtime penalty of 150% for the first 3 hours and 200% thereafter compared to 200% in the Aged Care Award” and in relation to Sunday “The Agreement provides 175% for Sunday work. SCHDS Award provides for 200%.”

The QNMU argues in relation to the matter of substantial change that the undertaking entitles employees covered by the Social, Community, Home Care and Disability Services Industry Award 2010 to be paid for ordinary hours on Saturdays at time and a half and on Sundays at double time. It also notes that the penalty scheme in the Agreement as made provides for a penalty of 175% on Sundays, compared with the modern award requirement of double time. It notes that the effect of the undertaking would be to require penalties for weekend work to be calculated “on the base wage (which is defined by s.16 of the Fair Work Act to exclude loadings, allowances and other amounts) rather than the ordinary wage, which includes all amounts payable for work in ordinary time including applicable loadings, allowances and other amounts”. In response WMQ argues that the undertaking is of a type frequently given and that the QNMU’s “submission that weekend penalties are payable based on the 'ordinary' wage 'which includes all amounts payable for work in ordinary time including applicable loadings, allowances or other amounts' appears misconceived and does not reflect the terms of the 2018 EA or the Award”.

I agree that the undertaking is of a class which is frequently given, and mainly uncontroversially so. The undertaking given ensures that the concern originally identified by the Commission has been met. The undertaking does not involve the wholesale reshaping of the Agreement and its effect has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

• Undertaking 5 – This undertaking deals with the rates paid to trainees and responds to the concern expressed by the Commission on 19 February 2019 to the effect that “Payments for trainees shall be based on the provisions of the National Training Wage meaning that the rates of pay are the same as that under the Award not better”. The QNMU submits that the effect of the undertaking is to almost double the lowest wage rates, as well as removing a protection for employees generally not to have their work replaced by trainees. WMQ notes the context by which it came to give the undertaking; considers the QNMU’s submission to be cynical; withdraws the original undertaking and proffers an alternative, being:

“That base rate of pay for trainees be paid at 110% of the National Training Wage.”

An undertaking of this sort is frequently given. The undertaking given ensures that the concern originally identified by the Commission has been met. The undertaking does not involve the wholesale reshaping of the Agreement and its effect has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

• Undertaking 6 – This undertaking deals with a number of allowances, and in particular a meal allowance, about which the Commission had indicated a concern in February 2019. At that time the Applicant was advised that a number of allowances were lower than the Award at test time. The submission made by the QNMU is merely to note that the undertaking increases the overtime meal allowance “despite lower rates for that allowance and the agreement as voted”. The WMQ attacks the basis of the QNMU’s argument; to say “that this amounts to a substantial change to the 2018 EA is absurd”.

The undertaking given ensures that the concern originally identified by the Commission has been met. There is nothing within the undertaking which involves the wholesale reshaping of the Agreement and its effect has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

• Undertaking 7 – the undertaking deals with the concern expressed to the Applicant by the Commission regarding the higher duties’ payments under clause 7.5 the Agreement as made. The Applicant’s response was to substitute the drafted clause with clause 27 of the Aged Care Award. The effect of the substitution is to require that higher duties payments be made after two hours of work instead of four as drafted in Agreement as made. Most classically, this involves a change to the effect of the Agreement where “employees are not likely to object to higher monetary amounts”. The submission made by the QNMU on the subject is that such change “is a substantial increase the day’s wages of an employee whenever s/he performs higher duties for between two and four hours per day. In that case, the undertaking entitles the employee to be paid at the higher rate for the full day or shift, rather than only to be paid for four hours at the higher wage, according to the Agreement as voted”. The WMQ characterises the proposed amendment to be minor.

The undertaking given ensures that the concern originally identified by the Commission has been met. There is nothing within the undertaking which involves the wholesale reshaping of the Agreement and the effect of the undertaking has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

• Undertaking 8 – This undertaking responds to the concern expressed by the Commission in February 2019 regarding the on-call allowance paid under clause 7.7 of the Agreement as drafted, with the concern being that the rate for the allowance was lower than that provided for in the SACS Award. Again, the complaint of the QNMU is that the effect of the undertaking would be to provide for increased allowances “despite the lower rates for that allowance in the agreement as voted”. The QNMU also argues that the undertaking would provide an entitlement for “an employee to be paid on-call allowance who is required to be on-call but not by written direction” when the original agreement did not. WMQ does not accept the QNMU’s criticism but nonetheless proposes an amended undertaking:

“The QNMU effectively claims that the removal of a requirement that employees be given a written direction before they qualify for the on-call allowance amounts to a significant change. The QNMU's submission in respect of this undertaking attracts the same criticism as their complaint in respect of trainee wages and meal allowances. In any event, it is address by the following revised wording of Undertaking 8:

'That employees entitled to receive the on-call allowance, be paid the allowance at a rate of $19.20 on Monday to Friday, and $38.02 on weekends and public holidays, with that rate subject to the same rate of increase as contemplated in appendix 2. '”

The QNMU submitted that the change would result in substantial change by:

“entitle an employee to be paid on-call allowance who is required to be on-call but not by written direction (whereas the Agreement as voted does not), and; increase the on-call allowance from $17.61 to $19.20 for Monday to Friday, and from $28.69 to $38.02 for weekends and public holidays for each 24 hour period or part thereof from 21 September 2018, with those on-call allowances to increase by 2.25% each October in 2018, 2019 and 2020, despite the lower rates for that allowance in the Agreement as voted.”

The effect of the amended undertaking is to preserve the drafting in the Agreement as made, but to provide an increased rate for being on-call. Preserving the as-made clause ensures that the concern originally identified by the Commission has been met. There is nothing within the undertaking which involves the wholesale reshaping of the Agreement and the effect of the undertaking has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

• Undertakings 9 and 10 – These two undertakings have been dealt with in greater detail earlier in this decision. In any event, WMQ have responded to some aspects of the QNMU’s criticism regarding the drafting of the undertaking by proposing an amendment which it suggests “results in a minor change compare (sic) to the 2018 EA which is beneficial to employees” In comparison the QNMU suggests that the changes flowing from the two undertakings are complex and:

“49. … a) Any Aged Care Facility employee commencing a shift between 10am and 12pm will be paid an shift allowance of 10%, whereas no shift allowance (or similar) whatsoever is payable in such circumstances under the Agreement as voted, unless the majority of hours worked fall between 2pm and 6pm.

b) An Aged Care Facility employee who was employed prior to the commencement date of the Agreement (which is an unknown future date) commencing a shift between 12pm and 2pm will be paid a shift allowance of 12.5%, whereas no shift allowance (or similar) whatsoever is payable in such circumstances under the Agreement as voted.

c) Any Aged Care Facility employee working a shift which commences between 6pm one day and 6am the next day who does not work a majority of their hours between those times, will be entitled to a shift allowance of 15% (whereas no shift” allowance (or similar) whatsoever is payable in such circumstances under the Agreement as voted. [sic]

d) An In-Home Community employee who was employed prior to the commencement date of the Agreement (which is an unknown future date) commencing a shift at or after 2pm but finishing before 8pm will be denied the shift allowance of 12.5% to which the employee is entitled by the Agreement as voted.

e) An In-Home Community employee employed on or after the commencement date of the Agreement (which is an unknown future date) commencing a shift at or after 12pm and finishing before 8pm will be denied the shift allowance of 12.5% to which the employee is entitled by the Agreement as voted.

50. Any In-Home Community employee commencing a shift at or after 6pm and finishing before midnight will be denied the shift allowance of 15% to which the employee is entitled by the Agreement as voted.”

The amended undertaking is in these terms:

“That the following clauses be applied in substitution of clause 7.10 of the EA:

7.10.1 In respect of support employees whose classifications are covered by the Aged Care Award, such employees will be paid the following loading in addition to their base rate of pay where they work a relevant shift:

(a) Early afternoon shift commencing at 10am and before 12noon – 10%;

(b) Afternoon shift commencing at or after 12noon but before 6pm – 12.5%;

7.10.2 In respect of care employees whose classifications are covered by the SCHADS Award, such employees will be paid the following loading in addition to their base rate of pay where they work a relevant shift:

(a) For those employees employed prior to the commencement date of Agreement, afternoon shift starting on or after 2pm and before 6pm, or where the majority of hours fall between 2pm and 6pm – 12.5%; and

(b) For those employees employed on or after the commencement date of this agreement, afternoon shift starting on or after 12 noon and before 6pm – 12.5%;

(c) Night shift commencing at or after 6pm or before 6pm the following day, and where a majority of hours are worked between 6pm and 6am – 15%

7.10.3 Where an employee works an equal number of hours in any combination of day, afternoon or night shifts in a single engagement, the applicable penalty shall be determined in accordance with the time the shift commenced.

7.10.4 These allowances are not payable when penalty payments apply to weekend work as described in clause 7.9 nor work on public holidays as described in clause 8.2”

It is apparent from the amended undertakings that the hours arrangements would now be more closely aligned with those in the reference awards. The Aged Care Award provides for two different afternoon shifts; one commencing at 10:00 AM and before 1:00 PM, which attracts a 10% penalty rate; and another commencing at 1:00 PM and before 4:00 PM which attracts a 12.5% penalty. Quite obviously the proposal set out above provides a better outcome for a person whose shift starts at or after 12:00 PM and before 1:00 PM.

The amended undertakings ensure that the concern originally identified by the Commission has been met. There is nothing within the undertaking which involves the wholesale reshaping of the Agreement and the effect of the undertaking has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

• Undertaking 11 – this undertaking deals with employees who are required to be available for duty in a client’s home for a 24 hour period as provided for under clause 6.5.5 of the Agreement. The undertaking responds to the Commission’s concern expressed in February 2019 in these terms:

“Remote overnight respite allowance (clause 6.5.5): (24 hour care): Agreement provides a flat rate allowance of $262.09 per 24 hour period. If an employee works 8 hours under the award, they receive 155% of their appropriate rate for each 24 hour period.”

The QNMU contends that a number of benefits presently in the clause would be lost to employees with the original amendment proposed by the WMQ:

“a) An employee’s right to agree or not agree to provide respite services for periods longer than 24 hours would be lost. The undertaking may allow the Employer to compel an employee to work a 24 hour care shift, and an employee may lose the opportunity to earn greater income from another activity by being compelled by the Employer to work a 24 hour care shift.

b) An employee’s right to be reimbursed for all reasonable expenses would be lost.

c) An employee’s right to be given time off in lieu at public holiday rates when the employee provides respite services on a public holiday would be lost;

d) An employee’s right to do respite work for no more than 10 days out of any 14 day period would be lost

e) An employee’s right to be assisted by a second carer when caring for a client classified as high care would be lost.

f) The reduction of the rate of the Remote Overnight Respite /24 Hour Care allowance payable to an employee who would be classified as a Home Care Employee Level 1 under the SCHCADS Award, from $256.32 per day in the Agreement as voted, to $252.56.

g) An increase in the rate of the Remote Overnight Respite / 24 Hour Care allowance for an employee who would be classified as a Home Care Employee above Level 1 under the SCHCADS Award from $256.32 per day in the Agreement as voted, to amounts up to $332.16.”

The WMQ responds by arguing that such detriment as is identified by the QNMU would be remedied by an amendment to the undertaking it put forward, the substance of which would be to replace the payment scheme in clause 6.5.5 with an obligation to pay “eight hours work at 155% of their base rate of pay for each 24 hour period rather that the flat allowance provided for in appendix 2 of the Agreement”. The amended undertaking proffered by WMQ is in these terms:

“'That where an employee works respite services as contemplated in clause 6.5.5 of the Agreement, they will be paid eight hours work at 155% of their base rate of pay for each 24 hour period rather that the flat allowance provided for in appendix 2 of the Agreement'.”

The amended undertaking ensures that the concern originally identified by the Commission has been met. There is nothing within the undertaking which involves the wholesale reshaping of the Agreement and the effect of the undertaking has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

• Undertaking 12 – This undertaking incorporates clause 25.5(f) of the SCHADS Award without removing any provision of the Agreement as made. Clause 25 is entitled “Ordinary hours of work and rostering” and clause 25.5 sets out a rostering scheme, with subclause (f) dealing with the eventuality of client cancellation and the entitlement of an affected employee to have been provided with notice and of the employer to require make-up time. The clause itself provides:

“(f) Client cancellation

(i) Where a client cancels or changes the rostered home care service, an employee will be provided with notice of a change in roster by 5.00 pm the day prior and in such circumstances no payment will be made to the employee. If a full-time or part-time employee does not receive such notice, the employee will be entitled to receive payment for their minimum specified hours on that day.

(ii) The employer may direct the employee to make-up time equivalent to the cancelled time, in that or the subsequent fortnightly period. This time may be made up working with other clients or in other areas of the employer’s business providing the employee has the skill and competence to perform the work.”

The undertaking was provided after the Commission expressed a concern in February 2019 in these terms (noting that the reference to “the Award” is a reference to the SCHADS Award:

“Client Cancellation: The Agreement is silent in relation to Client Cancellation. The Award provides that where a client cancels or changes the rostered home care service, an employee will be provided with notice of a change in roster by 5.00 pm the day prior and in such circumstances no payment will be made to the employee.”

When it raised its concern, the Commission saw within the Award but not the Agreement the right for an employee to be provided with prior notice of a client cancellation in which case payment would not be made for the cancellation; but in the event that sufficient notice was not given of the cancellation are right for payment would accrue to the employee. QNMU argues that if the undertaking were accepted then “an employee would lose the right to be paid for their rostered hours on a day if the employer advises them of a change to his/her rostered hours before 5:00 pm on the preceding day”.

The undertaking ensures that the concern originally identified by the Commission has been met. It ensures that the benefit available to employees working under the Award regarding client cancellation at the test time remains available to employees working under the Agreement. In the absence of any cogent evidence before the Commission that the absence of the clause in the Agreement was directly intended to provide a benefit to employees not within the Award, there cannot be a finding invited by the QNMU that inclusion of an undertaking dealing with the Award provision amounts to a detriment in comparison to the Agreement as made. There is nothing within the undertaking which involves the wholesale reshaping of the Agreement and the effect of the undertaking has no significant bearing on working arrangements. The undertaking is not impermissible for these or any other reasons.

• Undertaking 13 – This undertaking deals with a sleepover allowance, which the Commission’s February 2019 concerns identified was in a different form to that in the reference SCHADS Award:

“Sleepover allowance (clause 7.11): Agreement provides an allowance of $46.33/overnight. The Award allowance expressed as 4.9% of the standard rate amounts to $47.04/night. Further, the Agreement provides where an employee is required to perform work immediately before or after a sleepover or a combination of both they will be provided with at least 4 hours work or payment for each instance. The Clause does not specify that this payment is in addition to the allowance as provided in Clause 25.7(f) of the Award. Further, the clause provides that a sleepover period is not to exceed 1a hours.”

The undertaking provides that the clause in the Agreement as made has no effect and that instead clause 25.7 of the SCHADS Award has operative effect. The QNMU critiques the clause on the grounds it provides these additional benefits to employees:

“a) An employee may refuse a sleepover in reasonable circumstances

b) The maximum period of a sleepover is increased from 1a hours to 8 hours.

c) An increase in the sleepover allowance from $45.31 to $47.04”

In the course of its submissions, the WMQ submitted that the undertaking was intended to resolve pay differentials and amended the originally proposed undertaking:

“The proposed incorporation of the clause 25.7 of the SCHADS Award was intended to address the pay differentials raised by the Commission in respect of sleepover work, and payment for hours worked before and after a sleep over.

To minimise the change made by the proposed undertaking, WMQ proposes the following revised undertaking:

'That employees required to sleep over as contemplated by clause 7.11 of the Agreement be paid an allowance of $47.04 per night with that rate be subject to the same rate of increase as contemplate in appendix 2.

For the avoidance of doubt, payment for work contemplated by clause 7.11.3 of the Agreement will be in addition to the sleep over allowance.

In addition, clause 7.11.2 of the Agreement refers to the sleep over period not exceeding 1a hours. This is an obvious typographical error. Accordingly, WMQ requests that the Commission exercise its direction under s 586 of the FW Act to correct the clause so that it refers to '10 hours'.”

The amended undertaking ensures that the concern originally identified by the Commission has been met. There is nothing within it which involves the wholesale reshaping of the Agreement and the effect of the undertaking has no significant bearing on working arrangements. The amended undertaking is not impermissible for these or any other reasons. It is reasonable that I exercise the discretion referred to by WMQ in its submissions about regarding the text of clause 7.11.2 of the Agreement as made.

• Undertaking 14 – This undertaking deals with the matter of payments to be made to employees when they accompany clients on excursions, with the Commission’s original concern being expressed with reference the Agreement’s flat-rate regime:

“Excursions (clause 6.5.4): The Agreement provides where an employee is required to accompany a client on an excursion and it is outside their normal working hours and is longer than 24 hours by mutual agreement a flat allowance can be paid in lieu of all other award and agreement entitlements (except superannuation) and all reasonable expenses should be reimbursed. It is unclear whether employees still receive payment for the time worked or the allowance compensates for time worked. It is also unclear how employees are remunerated if it is not outside normal working hours/longer than 24 hours. The Award (Clause 25.9) specifies an employee receives payment for ordinary time worked Monday to Friday 5am to 6pm up to a max 10 hours, overtime for all other hours (or TOIL if agreed) and a sleepover allowance.”

The QNMU notes an improved payment regime, with some detriment in respect of reimbursement of reasonably incurred expenses and time-off-in-lieu of payment of overtime when the work is on a public holiday;

“a) Payment to an employee at the ordinary rate of pay for time worked between the hours of 8.00 am to 6.00 pm Monday to Friday [$ 42.08 (2 hours’ wages or a CRE Level 2.1) - $284.50 (10 hours’ wages for a CRE Level 6.3)] rather than $256.32 by mutual agreement in accordance with the Agreement as voted;

b) An employee’s right to be reimbursed for all reasonable expenses incurred during the employee’s provision of respite services would be lost;

c) An employee’s right to be given time off in lieu at overtime rates when the employee provides respite services on a public holiday would be lost”

In contrast, the WMQ argues against adoption of the QNMU submissions, but nonetheless puts forward an alternative undertaking:

“Because of the high level at which the excursion allowance is set, WMQ expects that, in the vast majority of instances, employees will receive a higher quantum of pay that if clause 25.9 of the SCHADS Award were applied. However, to address these potential disparity, and to deal with the submission of the QNMU in respect of its claim that the undertaking removes important benefits, WMQ withdraws its earlier undertaking, and proposes the following alternative:

'That, where an employee who is classified as a CRE Level 4.2 employee or above agrees to work an excursion shift as contemplated by clause 6.5.4, they will be paid:

(A) at their base rate of pay for time worked between 8.00am to 6.00pm Monday to Friday (up to a maximum of 10 hours' pay); or

(B) the appendix contained in annexure 2,

whichever is higher.”

[126] As identified, 14 undertakings have been given by WMQ. While a significant number, the analysis required of the Commission by s.190(3) is not a numerical analysis, rather, it is one directed at whether the undertakings taken collectively as well as individually or in any combination “result in the wholesale reshaping of the agreement, such that it bears no resemblance to the pre-undertaking agreement that was approved by employees”, while “simply increasing the quantum of various benefits will not ordinarily result in “substantial changes” for the purposes of s 190(3)”. While so, the Commission should be alert to the possibility that the undertakings lead to an Agreement which is “radically different” to that which was originally made.

[127] Several of the undertakings are in relation to overtime, shift definitions and shift penalties; Undertakings 1 and 2 deal with overtime payments after two hours of overtime; Undertaking 4 is in relation to weekend and public holiday penalty rates; Undertaking 9 and 10 refer to the commencement times of shifts and the associated penalties; Undertaking 12 deals with the payments to be made to an employee for cancellation of an assignment due to a change in a client’s circumstances. Of those, it is likely the one that would have most impact on employees generally being the one dealing with the commencement time of shifts and associated penalties. I am satisfied that this, and the other “hours related” undertakings are incidental changes, rather than a wholesale reshaping of the Agreement.

[128] Some of the undertakings amend the quantum of or arrangements for certain allowances; Undertaking 6 adjusts the quantum of the Meal Allowance; Undertaking 7 deals with the rights of employees to a payment of a Higher Duties Allowance; Undertaking 8 refers to the quantum of and arrangements for the payment of an On-Call Allowance; Undertaking 11 refers to the Remote Overnight Respite allowance and in particular the payment to be made to employees; Undertaking 13 refers to the quantum of and arrangements for the Sleepover Allowance; Undertaking 14 deals with the matter of payment to employees required to undertake Excursions. I am satisfied that since these allowances are payable in relation to specific circumstances and would be unlikely to be paid in a way akin to an industry allowance or in some other way where it was likely to be part of the employee’s everyday wage, that the adjustments made through the undertakings are incidental and do not lead to a wholesale reshaping of the Agreement. Neither could it be said that the undertakings for these allowances lead to an agreement which is “radically different” to that which was originally made.

[129] Finally, Undertaking 3 refers to the rights of an employee taking compassionate leave, and Undertaking 5 is connected with the rates paid to trainees. These, too, are changes that should be regarded as incidental and not part of a wholesale reshaping of the Agreement.

[130] Whether individually, in combination or collectively, I am not satisfied that the undertakings given by WMQ, and as amended in these proceedings, lead to a wholesale reshaping of the Agreement. The undertakings do not leave the Agreement in such a state that it bears no resemblance to the pre-undertaking Agreement that was approved by employees. Neither may it be said that individually, in combination or collectively that they lead to an agreement which is “radically different” to that which was originally made.”⁸ [Endnotes omitted]

[10] The Commissioner determined that subject to the undertakings proffered by Wesley Mission, he was satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to the application for approval had been met.⁹

[11] Relevantly, the reasons for the Commissioner’s satisfaction as to the “genuinely agreed” requirement in s.186(2)(a) are to be found at [51]—[98] of the July 2019 Decision. Here the Commissioner deals with the ANMF’s genuinely agreed objections relating to the coverage of the Agreement, by which it was said that a deliberate decision was made by Wesley Mission to bargain only for a proposed agreement in relation to Wesley Mission employees. He sets out in summary form the nature of the ANMF’s objection at [57] of the July 2019 Decision. He notes first, that the ANMF submitted the way in which the first Respondent is structured, coupled with the terminology employed in the employer’s notification to employees, means that not all affected employees had an opportunity to bargain for or consider the Agreement purportedly made on 21 September 2018. The Commissioner notes that the second argument, an extension of the first, related to the wording of the Notice of Employee Representational Rights (NERR) which was said to imply wider coverage than the group ultimately covered by the Agreement.

[12] The first argument turned on a proper construction of the coverage provisions of the Agreement. The Commissioner rejected the ANMF’s contention. The second argument concerned in essence whether an employer in the structural circumstance of the first Respondent was bound to make an Agreement consistent with the scope set out in the NERR or whether it could make an agreement covering a group consisting only of some of the employees who fell within the scope of the NERR. The Commissioner also rejected this part of the ANMF’s contention. The Commissioner’s reasons for rejecting both arguments are set out at [58]—[77] of the July 2019 Decision.

[13] The next aspect of the genuinely agreed objection with which the Commissioner dealt, concerned whether Wesley Mission had taken all reasonable steps to explain to relevant employees the terms of the Agreement and the effect of those terms in a manner that was appropriate in the circumstances. The gravamen of the ANMF’s objection was that the explanation focused on the comparison between the Agreement and the 2013 Agreement but there was no explanation about the effect of the terms of the Agreement in relation to the reference instruments. It also maintained that there was no or insufficient explanation of the less beneficial terms and that there was an absence of material from which the Commissioner might be satisfied that appropriate steps had been taken by Wesley Mission to explain the content of the Agreement to non-English speaking background (NESB) employees, of which there was said to be a significant number. As to the first two of these matters, the Commissioner rejected the ANMF contentions and reasoned:

“[79] In relation to the matter of explanation of the terms of an Agreement the Full Bench discussed in Diamond Offshore General Company the principles of genuine agreement raised in Flick J’s One Key decision and the Full Court’s subsequent appeal stating:

“[22] In Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd the Federal Court (Flick J) observed that the nature of the task of the Commission under s. 180(5) of the FW Act and other terms requiring its satisfaction or otherwise about a state of affairs is to make a broadly-based value judgment. On appeal from that decision, the Full Court of the Federal Court held that the matters in s. 180(5) were matters to which the employer was required to attend but were not jurisdictional facts for the purpose of the exercise of the Commission’s approval powers. The Full Court went on to hold that a condition precedent to the exercise by the Commission of its jurisdiction under s. 186 to approve an enterprise agreement was its satisfaction that the employer had complied, among other things, with s.180(5). The Full Court determined that satisfaction as to whether s.180(5) had been complied with involved an evaluative judgment as to whether “reasonable steps” were taken by the employer. The Full Court went on to state:

“112 It is common ground that the Commission was never told what was said to the relevant employees. It was simply told that they had been given an explanation of the terms of the Agreement and the effect of those terms. In effect, this amounted to little more than a self-serving statement that the employer had complied with its obligation under the Act. OKW contended that the fact that it made such a statement in a statutory declaration was significant. It is not. As the CFMEU argued, whether all reasonable steps were taken to ensure that the effect of the terms of the Agreement was explained in an appropriate manner is a question of substance, not form. The recital of a conclusion on the very question the Commission was required (through an evaluative process) to determine is not, without more, a sufficient basis for the satisfaction of the statutory test. In other words, a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach a state of satisfaction. OKW submitted that if the Commission had erred in this respect, it was an error in fact finding or an error in process, which would be an error within its jurisdiction. We reject this submission. In 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. It is true that the Act does not expressly say that. But the question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act; it may also be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–44 (Mason J).

113 A consideration of the subject-matter, scope and purpose of the relevant provisions of the Fair Work Act indicates that the content of the explanation and the terms in which it was conveyed were relevant considerations to which the Commission was bound to have regard. The 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.

114 The following considerations point inexorably to that conclusion.

115 The Commission was required to be satisfied that OKW had taken “all reasonable steps to ensure” that both the terms and the effect of the terms had been explained to the relevant employees as an element in the inquiry as to whether “genuine” agreement had been obtained from them. The agreed purpose of the obligation imposed on employers by s 180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.

116 In order for the employer to comply with the obligation it must take into account the particular circumstances and needs of those employees, including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative. That is made explicit in s 180(6). How could the Commission decide whether the steps the employer had taken were “all reasonable steps” unless it knew what the employees had been told before they cast their votes? Without knowing the terms in which the explanation had been conveyed how could the Commission form an opinion on the sufficiency of the explanation, particularly having regard to the considerations mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine agreement had been reached without having evidence upon which it could answer both these questions?”

(references from original)

[80] WMQ resist the proposition it did not take all reasonable steps to explain the terms of the enterprise agreement taking into account the circumstances and needs of relevant employees. As part of their originating application, WMQ provided a Form F17 Statutory Declaration, subsequently amended, in support of its application with the following answers going to the steps taken to explain the terms of the Agreement and their effect to employees. Copies of the Agreement’s text and material incorporated by reference were “Sent to personal & work emails, on Intranet & staff noticeboards/rooms & alerts 07/09/2018 in leecare” and there were “Hard copies in staff lunch rooms”. Those steps were taken on 7 September 2018 and information dealing with “How to cast vote & FAQs and summary of changes” was provided to employees on 10 September 2018.

[81] WMQ argues in relation to the contention that it’s explanation focused upon the comparison between the current and former agreements as the circumstances of the agreement, coming off the base of a predecessor agreement mean that it is appropriate for the employer to focus upon a comparison with the predecessor agreement since the obligation of an employer in relation to the explanation gives employees about a proposed agreement is that it take all reasonable steps to ensure that the proposed agreement has been explained:

“19. In BGC Contracting Pty Ltd, Gostencnik DP relevantly held:

I … accept that compliance with s.180(5) will not always require an employer to identify detriments in an agreement vis-à-vis the reference instrument or for the employer to provide an analysis between an agreement and the relevant reference instrument in circumstances where an existing enterprise agreement, not a reference instrument, applies to the employees in their employment with the employer. But as I have already stated, the question of compliance with s.180(5) is to be judged against the circumstances that pertain at the time at which compliance was required. Section 57 of the Act makes clear that a modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment. That was the case at the relevant time that explanations were given visà- vis the 2012 Enterprise Agreements and the Mining Award, it would continue to be so in relation to the Agreement, if the Agreement is approved by the Commission. That is the effect of an operative enterprise agreement, save in circumstances where an agreement itself incorporates a modern award, but those terms operate in relation to relevant employees as terms of the agreement. Here there was an additional circumstance, the incorporation of the identified provisions of the Coal Award. These were new provisions to be introduced into the Agreement, which were not part of the 2012 Enterprise Agreements and the Coal Award did not cover the relevant employees.

20. In this case, it was appropriate for WMQ to focus, as it did, on comparing the terms of the predecessor enterprise agreement with the 2018 EA.

21. The BOOT analysis carried out by the Commission demonstrates that very few substantive provisions of the SCHADS and Aged Care Awards were less beneficial as against the 2018 EA. Although these matters are relevant for the assessment of the BOOT, the FWC can, in WMQ's submission, be satisfied that those matters were not of such importance as to require the type of line-by-line explanation that the QNMU appears to submit ought to have been made.” (references omitted)

[82] WMQ’s supporting statutory declaration provided at the time of making the application, the F17, indicated that the steps it took to explain the terms of the Agreement and the effect of the terms as being:

“Powerpoint slides of changes

Multiple Flyers with information

Summary Sheet (pdf) of proposed changes

Dedicated email address for general enquiries and explanations”

[83] Copies of at least some of this material was included in attachments to the amended F17 Statutory Declaration.

[84] The one page Summary Sheet provided to employees covers 12 items in total covering the change of coverage from Blue Care Works and Wesley Mission Queensland employees to just Wesley Mission Queensland employees; changes to the definitions of Day workers from the Aged Care Award; changes to the definition of immediate family; changes to the consultation term; changes to part time fortnightly hours; changes to the casual conversion scheme; changes to resignation payments; changes to contracting out clauses; the increase of 2.25% in rates of pay annually from 1 October 2018 to 1 October 2020; changes to the Income Protection Insurance provisions; changes to the cold work allowance and the increase in maximum daily hours from eight to 10 hours.

[85] The PowerPoint slides covered much of the same material also including the ability of employees to purchase additional leave; extended compassionate and bereavement leave; the inclusion of family and domestic violence leave; meal breaks and overtime.

[86] On analysis of the Agreement compared with the relevant Awards being the Aged Care Award 2010 and the Social, Community, Home Care and Disability Services Industry Award 2010 several changes of significance are evident as follows:

• Changes applicable to the Aged Care Award 2010

1. Part time employees’ hours are increased from a minimum of 2 hours per day to 3 hours per day in aged care facilities and a minimum of 20 hours per fortnight;

2. Casual employees are entitled to casual conversion provisions under the Agreement after 12 months regular rostering which are not applicable under the Award;

3. There is an increase in public holiday penalties payable to casual employees from 250% under the Award to 275% under the Agreement;

4. The definitions of afternoon and night shift penalties are changed. Under the Award afternoon shift penalties are payable either for work commencing at 10:00 am and before 1:00 PM (10% loading is applicable) or for work commencing at 1:00 PM and before 4:00 PM (12.5% loading is applicable). Under the Agreement a 12.5% penalty is applicable to employees whose shift commences at or after 2:00 PM but before 6:00 PM. Similarly, under the Award night shift penalties are payable for work commencing at 4:00 PM and before 4:00 AM (15% loading is applicable) or for work commencing at 4:00 AM and before 6:00 AM (10% loading is applicable. Alternatively, under the agreement a 15% penalty is applicable to employees for commence a shift at or after 6:00 PM and before 6:00 AM;

5. There is reduction in annual leave loading to 14% for day workers under the Agreement than under the Award;

6. There is a reduction in overtime penalties with the Award providing for a 50% penalty for the first two hours or overtime and a 100% penalty for overtime worked thereafter for overtime worked Monday to Friday, with a 100% penalty payable on Saturdays. Alternatively, the Agreement provides a 50% penalty for the first three hours or overtime and a 100% penalty for overtime worked thereafter for overtime worked Monday to Saturday;

7. There is a reduction in several of the allowances under the Agreement as follows:

a. Clause 7.6.1(b) (Aged Care Meal Allowance): Reduced Meal Allowance ($11.12 as opposed to $11.45 under Award);

b. Clause 7.5: Higher Duties are paid for time worked if 4 hours or less (or for full shift if more than 4 hours) as opposed to the Award where it is paid if 2 hours or less (or for full shift if more than 2 hours);

However, it is noted that prior to the allowance table in the Agreement it states ‘Allowances to be reviewed against the Awards to ensure not below that threshold’. It appears that the intention is that the allowances will be paid in line with the Award.

• Changes applicable to the Social, Community, Home Care and Disability Services Industry Award 2010

1. Part time employees’ hours are increase from having no minimum engagement periods to have a minimum of two hours in the community and 20 hours per fortnight;

2. There is a reduction in Sunday penalties payable from 200% under the Award to 175% under the Agreement;

3. There is an increase is public holiday penalties payable to casual employees from 250% under the Award to 275% under the Agreement;

4. There is reduction in annual leave loading to 14% for day workers under the Agreement than under the Award;

5. The definitions of afternoon and night shift penalties are changed. Under the Award afternoon shift penalties of 12.5% are payable for work which finishes after 8:00 PM and before 12:00 PM. Under the Agreement a 12.5% penalty is applicable to employees whose shift commences at or after 2:00 PM but before 6:00 PM. Similarly, under the Award night shift penalties are payable of 15% for any shift which finishes after midnight and before 6:00 AM. Alternatively, under the Agreement a 15% penalty is applicable to employees for commence a shift at or after 6:00 PM and before 6:00 AM;

8. There is a reduction in several of the allowances under the Agreement as follows:

a. Clause 7.6.1(b) (SACS Meal Allowance): Reduced Meal Allowance ($12.71 as opposed to $12.88 under Award)

c. Clause 7.5 (On Call Allowance) (SACS): $16.61/day as oppose to $18.01

9. Remote Overnight Respite Allowance (24 hour care): the Agreement provides a flat rate allowance of $262.09 per 24 hour period. If an employee works 8 hours under the award, they receive 155% of their appropriate rate for each 24 hour period. For employees other than a home care level 1, they would not be better off overall performing 24 hour care as the Agreement contains a reduced entitlement. Further, the Agreement does not specify that that the employee is required to provide a total of no more than 8 hours care during the period.

10. Client Cancellation: The Agreement is silent in relation to Client Cancellation. The Award provides that where a client cancels or changes the rostered home care service, an employee will be provided with notice of a change in roster by 5.00 pm the day prior and in such circumstances no payment will be made to the employee. If a full-time or part-time employee does not receive such notice, the employee will be entitled to receive payment for their minimum specified hours on that day.

11. Sleepover Allowance: Agreement provides an allowance of $46.33/overnight. The Award allowance expressed as 4.9% of the standard rate amounts to $47.04/night. Further, the Agreement provides where an employee is required to perform work immediately before or after a sleepover or a combination of both they will be provided with at least 4 hours work or payment for each instance. The Clause does not specify that this payment is in addition to the allowance as provided in Clause 25.7(f) of the Award. A sleepover period is not to exceed 1a hours.

12. Excursions: The Agreement provides where an employee is required to accompany a client on an excursion and it is outside their normal working hours and is longer than 24 hours by mutual agreement a flat allowance can be paid in lieu of all other award and agreement entitlements (except superannuation) and all reasonable expenses should be reimbursed. It is unclear whether employees still receive payment for the time worked or the allowance compensates for time worked. It is also unclear how employees are remunerated if it is not outside normal working hours/longer than 24 hours. The Award (Clause 25.9) specifies an employee receives payment for ordinary time worked Monday to Friday 5am to 6pm up to a max 10 hours, overtime for all other hours (or TOIL if agreed) and a sleepover allowance.

[87] While it appears that many if not all of the more beneficial terms of the Agreement when compared with the reference awards were explained to employees, several of the less beneficial terms do not appear to have been explained including changes to the allowances; definitions of night and afternoon allowances and changes to Saturday, Sunday and public holiday penalties. Even so, such may not lead to the Commission not being satisfied of compliance with s.180(5), precisely for the reasoning in BGC Contracting Pty Ltd and because explanations of differences between the proposed and predecessor agreements were given and were likely sufficient for the Commission to be satisfied that WMQ took all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, were explained to the relevant employees.

[88] The Full Court in One Key noted that when assessing whether s.180(5) of the Act has been complied with that:

“…

In 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. It is true that the Act does not expressly say that. But the question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act; it may also be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–44 (Mason J).”

[89] In assessing the context of the explanation of the terms it is noteworthy that the previous Blue Care/Wesley Mission Agreement which currently covers employees provides many of the same terms as the WMQ Agreement. In particular, of the terms listed above which vary from the Aged Care Award 2010 and the Social, Community, Home Care and Disability Services Industry Award 2010 all terms are currently provided in the previous Blue Care/Wesley Mission Agreement. While some of those terms have been amended for example, with changes to rates payable for the meal allowances and on call allowances these terms have somewhat minor payment changes in the overall context of the Agreement. As a result, it is open for the Commission to find that employees voting for the WMQ Agreement were likely familiar with many of these terms as they were already applicable to their employment. Certainly, there is no evidence to the contrary.

[90] On the basis of context of the materials and the evidence given by Mr Burns about what was provided, I am satisfied that, for the purposes of s.180(5)(a), WMQ took all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the employees who were to be covered by the Agreement.”¹⁰ [Endnotes omitted]

[14] As to the third contention, namely, whether Wesley Mission provided an explanation of the terms of the Agreement and the effect of those terms in a manner that was appropriate taking into account the NESB of a significant number of its employees, the Commissioner first summarised the ANMF’s contention. He observed that the ANMF’s argument may be reduced to a proposition that the level of English understanding of relevant employees in the organisation is so poor that translations must be given in order for the Commission to be satisfied that the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees. The Commissioner rejected the contention and reasoned:

“. . . Were there to be cogent evidence from the QNMU on the subject of employees’ English comprehension, and there is not, then – perhaps – the submission could be entertained. As it is, the only evidence that is before me on the subject is from Mr Burns who reasoned that since employees were required to hold certifications assessed in English it could not be inferred that the employees did not have sufficient grasp of the language to be able to read and understand WMQ’s explanation.

[97] Section 180(5)(b) requires that the Commission be satisfied that the employer has taken “all reasonable steps to ensure … the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees”. I am satisfied both that all reasonable steps were taken by WMQ to explain the terms of the Agreement and their effect to employees and that it met its obligation to take into account the particular circumstances and needs of the employees when it ensured the explanations given were clear, concise and avoidant of jargon and unnecessary complexity. I am satisfied that the forms of explaining the terms to employees were appropriate taking into account the particular circumstances of the needs of the relevant employees. The forms of communication included local managers connecting with staff; having a dedicated WMQ email address for employees to ask questions and seek responses; sending electronic copies of frequently asked questions, summary materials and PowerPoint slides to staff personal and work emails; and providing hard copies of these materials in staff gathering areas in combination. The materials provided were in English and were not overly technical. It cannot be inferred from the materials provided that staff required a level of English beyond the comprehension of the staff in question, especially given their need to be able to read and speak English for their employment.”¹¹

[15] As to whether the “fairly chosen” requirements in s.186(3) and (3A) of the Act had been met, the Commissioner was satisfied that the group of employees covered by the Agreement was fairly chosen. His reasons for that conclusion are to be found at [17]—[50] and [132] of the July 2019 Decision and [4]—[25] of the September 2019 Decision. At [132] of the July 2019 Decision the Commissioner said:

“[132] Beyond these matters, and as set out in detail earlier in this decision, I am satisfied that while the evidence leans toward a finding that the group of employees covered by the WMQ Agreement was fairly chosen taking into account that the employees within the group may be geographically, operationally or organisationally distinct, that for the reasons referred to I have not made such a finding. In relation to that matter alone, I invite the filing of further evidence on the subject from each party, after which they may be afforded an opportunity to be heard if either party seeks a hearing, or the Commission considers a hearing to be desirable. In all other respects I consider the Agreement capable of approval, but with the undertakings referred to. I reiterate to the parties the matter indicated above in relation to the question of whether the group of employees covered by the Agreement was fairly chosen taking into account that the employees within the group may be geographically, operationally or organisationally distinct: a repetition of the evidence given so far will, inevitably, lead to me not being satisfied the group was fairly chosen; and such lack of satisfaction would in turn lead to the refusal of the application for approval of the Agreement.”12

[16] In the September 2019 Decision the Commissioner rejected the ANMF’s contention and reasoned:

“ [23] The QNMU has not directly rebutted the submissions relied upon by WMQ about it being organisationally distinct.

[24] I am satisfied on the basis of the material before me that WMQ is organisationally distinct to Blue Care. The matters put forward by the QNMU focus upon two matters, namely the relevance of consideration of support services within the businesses being provided through different arrangements and that the ultimate governance arrangements of the Uniting Church, being its regulations, do not specifically mention Blue Care or WMQ. I am satisfied from the evidence that there are different organisational structures of some significance and meaning. Those structures start with the manner in which the Uniting Church has chosen to structure itself, pass through the trading names of WMQ and Blue Care, manifest themselves in the obvious separateness of different residential care facilities some distance from each other, and are supported by the fact that internal support arrangements, such as finance, IT and HR are delivered through different mechanisms as well. There is little question upon the evidence before me that WMQ is organisationally distinct to Blue Care.

[25] On the basis of the foregoing material as well as that which was considered in the proceedings leading to the Merits Decision, I am satisfied that for the purposes of ss.186(3) and (3A) of the Act that the group of employees covered by the WMQ Agreement is fairly chosen. A key part of the QNMU objections to the question of the group to be covered by the agreement, even after considering whether it is geographically, operationally or organisationally distinct, appears to be that the group covered by the WMQ Agreement is different from the Blue Care/Wesley Mission Agreement; being but a subset. Such objection cannot be sustained if the Commission is satisfied the group is fairly chosen, with the relevant distinctions being satisfied. There is no lack of fair choice simply because the groups are different, which seems to be the main QNMU complaint. There is no proposition that an enterprise agreement may only be made on the basis of the scope of an earlier agreement. No proposition arises that an earlier scope may not be varied or narrowed in a subsequent agreement.”¹³

[17] Relevant also to the grounds of appeal to which we will shortly turn, the Commissioner noted in the Approval Decision that:

“[5] The Agreement lodged was not compliant with the signatory requirements under s.185(2) of the Act and the Regulations for signing an enterprise agreement. On 19 September 2019 the Applicant filed an amended signatory page for the Agreement with differing signatories to those who sign the Agreement previously lodged and sought a correction pursuant to s.586 of the Act to incorporated these new signatories. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.”14

Grounds of appeal

[18] By its notice of appeal lodged on 10 October 2019 the ANMF sets out four appeal grounds.

[19] The first contends that the Commissioner erred in addressing the fairly chosen issue in ss.186(3) and (3A) of the Act by:

• failing to decide the material issue or question of whether the employees who worked in the unit known as Wesley Mission Queensland were fairly chosen when the choice was a subjective decision influenced by previously failed ballots of a wider group of employees;

• failing to take account, or proper account, of the relevant consideration that the employees who worked in the unit known as Wesley Mission Queensland were chosen because previous ballots of a wider group of employees had failed and when it was known from the 2017 ballot that employees in that unit had voted in favour of the agreement;

• failing to take account, or proper account, of the effects of the employer's choice on employees working in the unit described as Blue Care;

• failing to consider, or properly consider, the way that the first Respondent had organised its business;

• failing to consider, or properly consider, the nature of the work performed by employees working in the unit described as Blue Care including the historical industrial coverage and the operational relationships of the work performed by the two groups of employees of the first Respondent; and

• determining that the group of employees in the unit described as Blue Care and the employees in the unit described as Wesley Mission Queensland were geographically distinct.

[20] The second ground contends that the Commissioner erred in determining that the Agreement was genuinely agreed to by the employees covered by the Agreement by:

• applying the wrong test that explanations and differences between proposed and predecessor agreements were likely sufficient in order to be satisfied of compliance with s.180(5) of the Act;

• determining that there had been compliance with s.180(5) of the Act in the circumstance that less beneficial terms were not explained to the employees;

• determining that the ANMF had an obligation or onus to adduce evidence in respect of NESB employees when the employer bore that onus; and

• determining that there had been compliance with s.180(5) of the Act in the circumstance when the employer had given insufficient evidence of explanations to NESB employees.

[21] The third ground contends that the Commissioner erred in approving the Agreement by:

• accepting undertakings that substantially changed the Agreement, contrary to s.190(3)(b) of the Act;

• accepting undertakings that caused financial detriment, contrary to s.190(3)(a) of the Act;

• failing to consider the undertakings given to determine whether they addressed the disadvantage under the Agreement;

• failing to consider whether the undertakings in the form finally given were sufficient to satisfy the better off overall test (BOOT); and

• failing to consider whether the BOOT had been satisfied.

[22] The final ground contends the Commissioner erred in approving the Agreement by allowing a correction to include a signature page by different signatories to those who signed the Agreement previously lodged.

[23] We consider these grounds in turn below.

Consideration

Ground 1 – Fairly Chosen

[24] The ANMF variously contends in its first ground of appeal that the Commissioner erred in addressing the fairly chosen issue in ss.186(3) and (3A) of the Act by:

1.1 failing to decide the material issue or question of whether the employees who worked in the Wesley Mission business were fairly chosen when the choice was a subjective decision influenced by previously failed ballots of a wider group of employees;

1.2 failing to take account, or proper account, of the relevant consideration that the employees who worked in the Wesley Mission business were chosen because previous ballots of a wider group of employees failed and when it was known from the 2017 ballot that employees in that unit had voted in favour of the agreement;

1.3 failing to take account, or proper account, of the effects of the employer's choice on employees working in the Blue Care business;

1.4 failing to consider, or properly consider, the way the first Respondent had organised its business;

1.5 failing to consider, or properly consider, the nature of the work performed by employees working in the Blue Care business including the historical industrial coverage and the operational relationships of the work performed by the two groups of employees of the first Respondent; and

1.6 determining that the group of employees in the Blue Care business and the employees in the Wesley Mission business were geographically distinct.

[25] In summary the ANMF advances the following in support of this appeal ground.

[26] The ANMF submits that an assessment of the fairness of the choice of the group of employees as required by s.186(3) of the Act requires an examination of all the circumstances of the process of reasoning that resulted in the ultimate choice. The ANMF contends the Commissioner failed to go beyond an examination of the geographical, operational and organisational distinctions in s.186(3A) of the Act. That failure, according to the ANMF, was an error of law in that the Commissioner misconstrued the terms of the legislation and misconceived what the exercise of statutory power entailed.

[27] The ANMF further submits that the circumstances of the choice made by Wesley Mission required the Commissioner to look at the process and reasoning that resulted in the radical alteration of the organisation and operation of the industrial arrangements that had applied for over 30 years. Further, the Commissioner failed to recognise or act on the circumstances that prevented employees from bargaining as a single collective by means of breaking the workforce into industrially artificial cohorts. Selection of the group of employees to be covered by the proposed agreement on the basis of a propensity to vote in favour of the agreement is, according to the ANMF, as unfair as a selection on the basis of any other employee characteristic such as age or gender.

[28] The ANMF contends that contrary to the Commissioner’s findings, Wesley Mission employees covered by the Agreement and the Blue Care employees covered by the 2013 Agreement are operationally identical. Wesley Mission and Blue Care are business units of the first Respondent which is a statutory creation established to facilitate the service work of the Uniting Church. Both business units are engaged in the provision of residential aged care services and home care.

[29] The ANMF contends that Wesley Mission employees are not geographically distinct from the Blue Care employees in that Wesley Mission employees are engaged in residential care facilities or attend to work at various homecare locations in southeast Queensland whereas Blue Care’s employees are located at facilities and homecare locations throughout the broader area of Queensland. That broader area, according to the ANMF, is not relevant in the circumstances of the comparative work arrangements of Blue Care and Wesley Mission.

[30] While it accepts there are some managerial and branding differences between Wesley Mission and Blue Care, the ANMF contends that the Commissioner failed to appropriately balance those differences with the duties of the employees, which are qualitatively identical, and the other commonalities in the evidence.

[31] The first Respondent contends that the ANMF focus as to whether the group of employees covered by the Agreement was fairly chosen was, despite half-hearted challenges to the operational, organisational and geographical distinctiveness of the two cohorts, entirely premised on demonstrating some “malfeasance” in Wesley Mission’s decision to bargain for an agreement that would only apply to its employees. It says the ANMF’s argument has no merit for the following reasons:

• The ANMF had itself posited a position during bargaining that countenanced two separate agreements being made based on certain wages and conditions outcomes being satisfied. 15

• The ANMF refers to the ‘choice’ made by the first Respondent to have one agreement apply to both cohorts over a period of at least 30 years but claims Wesley Mission has no ‘choice’ but to bargain with Blue Care.

• The Commissioner had careful regard to the ANMF’s claim that there was some sort of industrial gerrymander and that the evidence of Mr Charles Ware, Legal Counsel for Wesley Mission, put paid to the argument that distinctions between the two cohorts was a recent invention.

• Wesley Mission had never sought to argue that the fact that a majority of its employees had supported an earlier agreement was not an important factor in its decision to pursue a separate agreement. That choice however was not unfair, illegitimate or irrational having regard to the authorities on the ‘fairly chosen’ test. The basis of selection of Wesley Mission employees was not because of a propensity to vote in favour of the Agreement but because of a pre-existing and distinct grouping.

[32] The first Respondent contends the ANMF’s submission that Wesley Mission and Blue Care are operationally identical was not supported by any evidence, that it had conflated the type of work carried out by the two cohorts with whether they are operationally distinct and had suggested that because Wesley Mission and Blue Care both provide services in South East Queensland they are not geographically distinct.

[33] We now turn to consider the various matters pressed by the ANMF in contending the Commissioner erred in deciding that the group of employees covered by the Agreement was fairly chosen.

[34] The relevant principles applicable to the requirements in ss.186(3)-(3A) are summarised in Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union¹⁶ and it is unnecessary to repeat them here.

(a) Paragraphs 1.1 & 1.2

[35] We will deal with paragraphs 1.1 and 1.2 of this ground of appeal together. The gravamen of these paragraphs is that in assessing whether the group of employees to be covered by the Agreement was fairly chosen pursuant to s.186 of the Act, the Commissioner failed to decide or take proper account of the subjective decision of Wesley Mission to separate the voting cohort, motivated by the previous ballot results in which Wesley Mission employees had shown a propensity to vote in favour of an agreement.

[36] The Commissioner was alive to the submissions of the ANMF about the failed ballots of 2016 and 2017 and the claimed motivation for Wesley Mission’s decision. In the July 2019 Decision the Commissioner said:

“[29] For the purposes both of the “fairly chosen” and the “genuinely agreed” contentions, it is evident from Mr Burns’ evidence that UPQT’s decision to separate WMQ employees from others followed his assessment that the WMQ employee cohort wanted an agreement and were more likely to vote for the agreement proposed by WMQ. He was not cross-examined to any great extent either on that assessment or the decisions subsequently taken by UPTQ or WMQ. The oral evidence about the decision does not go much beyond the following exchange when Mr Burns was asked in cross-examination about the proposition in his witness statement that “there were real substantive difference as between the claims sought by each of Blue Care and WMQ” and in particular about the example referred to in statement at paragraph 20(b):

(Mr Crank, for the QNMU) “I'm not asking about the 2013 agreement. I'm asking you about what Wesley Mission Queensland management and Blue Care management want?---In regards to 2016 and '17?

In regards to the time frame to which your statement at paragraph 20(b) relates?---Wesley Mission Queensland didn't share the same view ultimately or the same need to pursue the matter of broken shifts in the way in which Blue Care wanted to continue to negotiate.”

[30] The QNMU argue that the choice of the group to be covered by the WMQ Agreement is an “unfair industrial gerrymander”, with it being said that the “reason, or the main reason, for the employer choosing the group of employees it did to be covered by the Agreement is the way certain groups of employees voted in 2017 on the two preceding proposed enterprise agreements, both of which had the same scope as the current EAs”. It is argued that there has been no agreement with the QNMU that there should be separate enterprise agreements for the Blue Care and Wesley employees, and that what has emerged are artificial employee groupings, with those groupings, insofar as it relates to WMQ, offending the reasoning in One Key. It is also submitted that approval of the WMQ Agreement would break up the care and support workforce of the enterprise into artificial employee groupings:

“In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 a Full Court of the Federal Court held, at [154] that a "primary purpose of [s186(3)] is to avoid the workforce of an enterprise being broken up into artificial employee groupings with the consequence that the workforce of the enterprise is unable to bargain as a single collective". Approval of the Agreement would break up the care and support workforce of the Employer’s enterprise into artificial employee groupings with the consequence that the workforce of the enterprise is unable to bargain as a single collective, as they have in all previous EAs which covered them.”

[31] WMQ reject this reasoning, arguing that it has come to this place because of differences within the workgroups and the organisation’s need to respond to those needs:

“11. WMQ and Blue Care had in June 2017 attempted to make an agreement that jointly covered their care and support staff. This attempt was unsuccessful (and been followed by an earlier unsuccessful ballot in September 2016).

12. The June 2017 ballot showed significant difference as between the two cohorts of staff, with WMQ-based employees supporting the proposed agreement, and Blue Care employees withholding their support.

13. On that basis, it was clear that progressing an agreement with the WMQ cohort of employees would likely proceed more efficiently, which was a factor that the CEOs of WMQ and Blue Care were entitled to take in deciding to separately bargain with those employees. There is nothing unlawful or unreasonable about that approach.” (references omitted) 17

[37] The Commissioner went on to find that the group chosen was neither arbitrary or discriminatory and in doing so acknowledged the ANMF’s arguments stating that:

“[40] There is also no evidence that the group chosen was arbitrary or discriminatory in its dimensions, other than in the respects argued by the QNMU that there was an arbitrariness to the separation of Blue Care employees from bargaining.” 18

[38] While referring to an “arbitrariness” to the separation of the Blue Care employees for the purpose of bargaining, the Commissioner did not conclude that the choice of group of employees covered by the Agreement made by Wesley Mission was arbitrary or discriminatory.

[39] There is nothing in the statute that compels the preservation of the scope of an existing agreement in future bargaining or in future agreements. That a party or parties seek to narrow or expand the scope of a previous agreement during bargaining may be motivated by a range of reasons, including changes to the organisational, operational or geographic structure of the relevant business. It may also, as is the case in the matter before us, include an objective of resolving bargaining for or against a particular business unit or organisation. We do not accept that motivated by the latter consideration must necessarily weigh in favour of or lead to a conclusion that the group of employees covered by an agreement was not fairly chosen. It may be a relevant matter to be considered and weighed along with other relevant factors. Moreover, there is plainly a business rationale for the choice made since Blue Care and Wesley Mission are operated by the first Respondent as separate business units.

[40] It is apparent to us on a fair reading of the July 2019 Decision and the September 2019 Decision that the Commissioner considered the motivation of Wesley Mission’s decision to pursue a separate agreement. He therefore took the matter into account. He was not persuaded by the ANMF that the choice made by Wesley Mission to bargain separately with its workforce was a matter that weighed in favour of a finding that the group of employees was not fairly chosen. The Commissioner decided, taking into account the circumstances in which the choice was made, that the group was fairly chosen. The weight the Commissioner assigned to the circumstances in which the choice was made was a matter for him. We discern no error as contended by the ANMF by paragraphs 1.1 and 1.2 of ground 1 of the notice of appeal.

(b) Paragraph 1.3

[41] By paragraph 1.3, the ANMF contends the Commissioner failed to take account, or proper account, of the impact of Wesley Mission’s choice of employees to be covered by the Agreement on the Blue Care employees that were excluded from coverage.

[42] In assessing whether the group of employees covered by the Agreement was fairly chosen it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreement’s coverage and the employees excluded. 19

[43] It is evident that the Commissioner understood that it was necessary to consider the excision of the Blue Care workforce from bargaining when he stated:

“[38] The considerations to be taken account of in determining whether a group has been fairly chosen are set out above. Drawing upon those considerations, as well as the evidence before the Commission, the main question requiring determination is whether it was proper for WMQ or UPTQ to proceed on the basis of an agreement applying only to WMQ and to effectively excise Blue Care employees from bargaining.

[39] Noting that the reference in s.186(3) refers to the whole class of employees to whom the agreement might in future apply, not the group of employees who actually voted on whether to make the agreement, there is not a need in this matter for an inquiry beyond the excision of Blue Care employees. The coverage of the types of employees and their classifications are otherwise identical to those in the Blue Care/WMQ and WMQ Agreements.” 20

[44] While the Commissioner identified a need to consider the interests of excluded Blue Care employees, it is not apparent to us on reading the two decisions that he dealt with or considered the interests of Blue Care employees. Given the history of bargaining for the Agreement and the circumstances in which the choice of the group of employees to be covered by the Agreement was made the consequential impact on and interest of the Blue Care employees was clearly relevant. We are persuaded that the ANMF has made good this part of ground 1 of the notice of appeal and that the Commissioner erred.

[45] That said, we are not persuaded that the Commissioner’s omission is an error that was either significant or so material as to alter the conclusion that the group of employees was “fairly chosen”.

[46] The Blue Care employee’s statutory rights and capacity to bargain were unaffected by their exclusion from the scope of the Agreement. A majority of Blue Care employees had shown a propensity to vote against previous proposed agreements in 2016 and 2017 and their bargaining position was, if anything, likely to be strengthened in respect of bargaining for a new agreement that applied only to Blue Care. A majority of the Wesley Mission cohort had shown a propensity to vote in favour of previous proposed agreements. Any impact of the Wesley Mission employees on the Blue Care cohort of employees in terms of bargaining for an agreement was removed. In the end the Blue Care employees, as a majority, did not want to agree to be covered by an agreement which to a majority of Wesley Mission employees was satisfactory. Both cohorts are in the same position. Blue Care employees are not covered and can continue to bargain. Wesley Mission employees have concluded an agreement that is acceptable to that group. It seems to us that overall the impact on the Blue Care employees is neutral. Since the Wesley Mission employees as a majority supported the Agreement, it is unlikely that Blue Care employees could have garnered any effective industrial support from Wesley Mission employees for pursuing a more broadly scoped agreement with different terms.

[47] To the extent that the Commissioner failed to consider the interests of Blue Care employees, for the reasons stated the error was not significant as, in our view, the matter does not weigh in favour of a finding that the group of employees was not fairly chosen.

[48] Paragraph 1.4 contends the Commissioner failed to consider the way in which the first Respondent had organised its business.

[49] The Commissioner referred to the evidence of Mr Burns in the July 2019 Decision about the structure of the first Respondent’s operations in Queensland and provided an organogram to show the organisational relationship between the various entities. 21 According to the Commissioner, the evidence as to the organisational structure was unclear:

“[33] That is, the evidence is not clear whether the presbyteries are controlled by the UPTQ and likewise it is unclear whether Uniting Care Queensland is controlled by the UPTQ or whether some other form of relationship is evident. In some respects, this does not especially matter within the context of Mr Burns’ clear evidence that:

“Because they are not body corporates, each of Blue Care and WMQ contract their services through the Property Trust. The Property Trust is also the 'approved provider' for the purposes of registration under the Aged Care Act 1997 (Cth) and the regulation of service provision under that Act.”

[34] Mr Burns’ evidence also included that WMQ is a part of the Albert Street, Brisbane congregation, with it being unclear which presbytery shown in the above organisational chart the congregation is part of. Through cross-examination Mr Burns acknowledged that the Uniting Church in Queensland undertakes its activities through only one entity, with UPTQ being the employing body in Queensland. The QNMU argued that the legal structure of the employer was a matter to be considered, especially in relation to the matter of “fairly chosen”, with it being said:

“Particularly on the question of organisational distinctness the legal structure of the employer and the legal status, or lack of it, of Wesley Mission Queensland is a central feature in the question of whether there is organisational distinctness attributable to the group of employees covered by the agreement.

…

MR CRANK: The point, Commissioner, essentially is that Uniting Care Queensland - which is mentioned in paragraph 4 of the statutory declaration that I'm questioning Mr Burns about - is another umbrella brand for Blue Care which Wesley Mission Queensland says it's not part of, so that goes to part of the applicant's argument for distinctness. Our point is simply that Uniting Care Queensland is not a separate legal entity. It's not created under any regulations or any constitution of any organisation; it's simply another brand.” 22 (Endnotes omitted)

[50] The Commissioner also considered the ANMF’s arguments as to the relevance of the Regulations governing the operation of the first Respondent 23 and whether it was a national system employer. Having considered the evidence and submissions the Commissioner summarised the nature of the Wesley Mission and Blue Care businesses in the following terms in the July 2019 Decision:

“[42] The Uniting Church is said to provide “vast services” in Queensland, with Blue Care and WMQ being part of those services. Ultimately the activities of both Blue Care and WMQ are activities of the Uniting Church in Australia with those activities being performed through the auspices of at least two different bodies. On the one hand the “ownership” derives from two different bodies – Uniting Care Queensland in the case of Blue Care and Albert Street, Brisbane congregation in the case of WMQ. On the other hand, the agencies “contract” their services through UPQT, presumably meaning that it is the UPQT which actually buys and sells the things needed to provide services, including those people it employs. According to the evidence of Mr Burns the UPQT is a body corporate established by the Uniting Church in Australia Act 1977 (Qld) and:

“Because they are not body corporates, each of Blue Care and WMQ contract their services through the Property Trust. The Property Trust is also the 'approved provider' for the purposes of registration under the Aged Care Act 1997 (Cth) and the regulation of service provision under that Act.” 24 (Endnotes omitted)

[51] The Commissioner said that he was not satisfied on the material that Wesley Mission was geographically, operationally or organisationally distinct from Blue Care. He afforded both parties an opportunity to provide further submissions and materials on these points following receipt of which he proceeded to deal with the “organisationally distinct” point at paragraphs [19]-[24] of the September 2019 Decision. 25 In doing so he summarised the evidence including that of Mr Charles Ware,26 found that the ANMF had not directly rebutted Wesley Mission’s submissions as to its organisational distinctness27 and relevantly concluded as follows:

“[24] I am satisfied on the basis of the material before me that WMQ is organisationally distinct to Blue Care. The matters put forward by the QNMU focus upon two matters, namely the relevance of consideration of support services within the businesses being provided through different arrangements and that the ultimate governance arrangements of the Uniting Church, being its regulations, do not specifically mention Blue Care or WMQ. I am satisfied from the evidence that there are different organisational structures of some significance and meaning. Those structures start with the manner in which the Uniting Church has chosen to structure itself, pass through the trading names of WMQ and Blue Care, manifest themselves in the obvious separateness of different residential care facilities some distance from each other, and are supported by the fact that internal support arrangements, such as finance, IT and HR are delivered through different mechanisms as well. There is little question upon the evidence before me that WMQ is organisationally distinct to Blue Care.” 28 (our emphasis added)

[52] The focus of the inquiry in s.186(3A) is on whether “the group” is geographically, operationally or organisationally distinct not whether the business within which the group is employed is relevantly distinct, although this is relevant to assessing the distinctiveness of the group. No point is taken in this regard and we take the Commissioner’s findings that “WMQ is organisationally distinct to Blue Care” 29 as a finding that Wesley Mission employees covered by the Agreement and employed by the first Respondent are organisationally distinct from the Blue Care employees who are also employed by the first Respondent but not covered by the Agreement.

[53] We agree with the Commissioner that while the first Respondent is the employer of both Blue Care and Wesley Mission employees, this is not determinative of whether those business units are organisationally distinct. The Commissioner necessarily went beyond the ANMF’s argument in respect of the structure of the legal entity and considered the evidence of Mr Burns and Mr Ware on the way in which the first Respondent had organised its businesses. Their evidence established that while the first Respondent was the employing entity, Wesley Mission and Blue Care had separate boards and governance arrangements and different internal support arrangements such as finance, IT and HR with the result that the group of employees within those businesses were organisationally distinct.

[54] The Commissioner clearly considered the way in which the first Respondent had organised its business, he engaged with the parties’ submissions and evidence and made findings, which in our view were open to him, that the Wesley Mission group of employees was organisationally distinct. We discern no error in the Commissioner’s approach or conclusion reached in relation to the organisational distinctness of the group covered by the Agreement.

(d) Paragraph 1.5

[55] The ANMF contends the Commissioner erred in his conclusion as to the operational distinctness by failing to properly consider the nature of the work performed by employees working in Blue Care including the historical industrial coverage and the operational relationships of the work performed by the two groups of employees of the first Respondent.

[56] We disagree. The Commissioner summarised at [15] of the September 2019 Decision the ANMF’s submissions that the duties and work performed by Blue Care employees were identical to that of Wesley Mission employees. The Commissioner correctly did not accept the ANMF submissions. He correctly observed the test of operational distinctness was not assessed by reference to the duties of the employees as contended by the ANMF but by reference to the “industrial or productive activity”. 30 The industrial or productive activity of Wesley Mission is directed to providing residential aged care and other services to Wesley Mission’s residents and clients, not those of Blue Care. That industrial or productive activity stands as a point of operational distinctness between the two groups.

[57] As to the alleged failure of the Commissioner to consider the historical industrial coverage, that submission is plainly wrong. As we have previously observed, the background to Wesley Mission’s decision to pursue a separate agreement with its employees and the prior industrial arrangements were matters dealt with by the Commissioner. That the Commissioner did not regard them as weighing in favour of a finding that Wesley Mission employees as a group was not fairly chosen was open to him.

[58] It follows from the above that we are not persuaded that the Commissioner erred as contended by the ANMF in relation to his assessment of the group’s operational distinctness. In any event the Commissioner need only have concluded as he did that the group was organisationally distinct for the purposes of s.186(3A).

(e) Paragraph 1.6

[59] The ANMF also contends that the Commissioner erred in determining that Wesley Mission employees were geographically distinct from Blue Care employees. The argument advanced by the ANMF appears to be that because both entities employ staff in multiple residential aged care facilities or home care locations in Queensland there is no geographical distinction.

[60] The Commissioner summarised the relevant evidence on geographic distinctness in the September 2019 Decision as follows:

“[9] WMQ submit its facilities are not co-located with Blue Care. Further and specifically;

“WMQ operates 13 residential aged care services and 5 home care services within south-east Queensland, while Blue Care operates 53 residential aged care services and 28 home care services throughout Queensland. These services are not co-located and are clearly branded as either Blue Care or WMQ services. Each service is separately registered with the Department of Health in the name of Blue Care or WMQ.

[10] After providing a list of its residential aged care services, WMQ’s evidence in relation to its four particular facilities is that the nearest Blue Care facilities are between 3 km and 10.5 km in distance from them.” 31 (Endnotes omitted)

[61] It is evident that the Blue Care employees and the Wesley Mission employees are in one sense geographically distinct in that the various residential aged care facilities and home care services in which the employees work are not co-located. The employees of the two businesses do not work together at any location. The ANMF acknowledge this but seek to rely on the reasoning of the Full Bench in QGC Pty Ltd v The Australian Workers’ Union. 32 In that decision the Full Bench quashed a majority support determination decision (s.236) which had found, in part, that Gas Plant Operators of QGC were geographically distinct from QGC’s Well Site Operators because they were based at different geographic locations across Queensland.

[62] The Full Bench in QGC relevantly stated the following in dealing with the question of geographic distinctness:

“[47] With respect to appeal ground five, we are of the view that the relevant group of employees is not geographically distinct. At first instance the AWU did not contend that Gas Plant Operators and Gas Plant Lead Operators were geographically distinct. Distinctiveness relates to the group of employees with respect to whom the Determination is sought. The fact that each Gas Plant Operator and Gas Plant Lead Operator works alone at a particular location, is not a basis for a finding that the group is geographically distinct. The Gas Plant Operators and Gas Plant Lead Operators do not work in a single location or in a geographical subset of the total business; instead, the group of Gas Plant Operators and Gas Plant Lead Operators is scattered throughout QGC’s gas extraction and processing infrastructure in the Surat Basin, which stretches across about 3,700 square kilometres. They sometimes work at more than one facility in a day, and they move from location to location in the Surat Basin. Further, a number of QGC’s other operators and maintenance employees work at the same locations as the Gas Plant Operators and Gas Plant Lead Operators, sometimes at the same time and other times on different days.” 33

[63] The ANMF argues that the factual circumstances of QGC are not dissimilar to those in the matter before us. The factual background to the operations of QGC was summarised by the Full Bench as follows:

“[5] The Appellant operates and maintains gas extraction and processing infrastructure in the Surat Basin in Queensland. That infrastructure includes Coal Seam Gas (CSG) wells, Field Compression Stations (FCSs), Central Processing Plants (CPPs) and gas plants, pipelines and trunklines. The Appellant describes the operation and maintenance of this infrastructure as its “Upstream Operations”. Those operations are significant and consist of: 2,672 CSG wells; 24 FCSs; 6 CPPs; major water treatment facilities; the Condamine Power Station; a 390 km network of trunklines used for CSG and water; a 540 km export pipeline operated on behalf of an owner; Telecommunications and HV network; 18 above ground facilities; 32 water storage ponds; and 28 pump stations housing 42 pumps. Upstream operations are also divided into three regions: North, Central and South, which stretch across 3,700 square kilometres.” 34 (Endnotes omitted)

[64] The ANMF appears to contend based on QGC that a finding of geographical distinctness in the present matter was not open to the Commissioner on the basis that Blue Care and Wesley Mission employees are similarly scattered throughout Queensland. The comparison the ANMF seeks to draw between the factual circumstances in QGC and those which pertain here ignores the operational integration of QGC’s gas extraction and processing infrastructure, which the Full Bench described in that matter as “significant”. 35 The factual circumstances here are distinguishable.

[65] True it is that both Blue Care and Wesley Mission operate residential aged care facilities and have staff working at home care locations within Queensland. Wesley Mission’s services are provided in 13 residential aged care facilities and 5 home care services located in South East Queensland. By contrast, Blue Care’s services are delivered at 53 residential aged care facilities and 28 home care services located throughout Queensland. In our view the breadth of an organisation’s delivery of services in a geographical sense is a feature that may distinguish one business unit or organisation from another.

[66] We agree with the Commissioner’s finding that Wesley Mission employees are geographically distinct, taking into account both the absence of co-location of facilities and services and that Wesley Mission and Blue Care’s respective geographical “footprints” are clearly different and, in our view, distinct. The fact that the geographical footprint of Wesley Mission might come within the larger footprint of Blue Care’s operations does not mean that the two groups are not distinct geographically. We discern no error in the Commissioner’s conclusion that Wesley Mission employees are geographically distinct from Blue Care employees. In any event and as already noted, it was sufficient for the Commissioner to have considered that the Wesley Mission employees was as a group organisationally distinct for the purposes of s.186(3A) of the Act.

[67] It follows from the above that ground 1 of the notice of appeal fails.

Ground 2 – Genuinely Agreed

[68] The gravamen of the ANMF’s contention in support of this ground of appeal is that the requirement in s.186(2)(a) of the Act was not met (as the first Respondent did not comply with ss.180(5) and (6)) because:

(a) it did not provide comparisons between the agreement and the relevant reference instruments (the SCHADS and Aged Care Awards); and

(b) the steps taken to explain the Agreement were not sufficient when regard is had to the number of relevant employees who are from NESBs.

[69] In furtherance of this contention the ANMF points to the following:

• On the evidence there were 874 NESB employees which represents 80% of the employees balloted. 36

• The evidence about explanations given to employees was:

◦ A single-sheet FAQ which the ANMF claims did not touch at all on the content of the agreement; 37

◦ A single sheet comparison with the 2013 Agreement (not either or both of the Awards); 38

◦ A short PowerPoint about selected parts of the Agreement which the applicant claims was taken up predominantly by text under the large heading "Benefits" and with no relevant Award comparisons and an emphasis on wage increases; 39

◦ Face to Face meetings with relevant employees were not held. 40

[70] The ANMF also suggests in submissions that the first Respondent provided no documentary evidence of staff being directed to a contact point to obtain an explanation if they had queries. 41

[71] This suggestion is rejected. Mr Greg Burns, Wesley Mission’s Employee Relations Manager, gave evidence that “a dedicated WMQ email address was set up for employees to send their questions to which a number of employees did”. 42 That this was so is established by the screenshot of Wesley Mission’s intranet page dealing with the “proposed Enterprise Agreement” on which employees are directed to a dedicated email address if an employee has “further questions”.43

[72] The ANMF submits that the documentary material on which Wesley Mission relies tends to show a "yes" campaign rather than compliance with ss.180(5) and (6). It contends that no account was taken of the NESB employees or their needs and that Wesley Mission had made an assumption that a "reasonable knowledge" of English was sufficient for all these employees to make sense of the Agreement. 44

[73] The ANMF also points to the absence of evidence of any explanation given to staff by any Manager used to "connect" with staff. 45 The ANMF submits that the Commissioner erred in relying on the statement that local managers connected with staff as a basis for satisfaction in the absence of evidence of what was involved in “connecting.”46 It says the Commissioner was bound to consider the content of these explanations, if any, and erred in failing to do so.47

[74] A further factual matter that the ANMF says is relevant to the content of the explanation, is that Wesley Mission was ultimately required to provide 12 undertakings on a range of matters which the ANMF describes as significant issues in order to secure approval of the Agreement.

[75] In essence, the ANMF contends the Commissioner erred in being satisfied that Wesley Mission had complied with s.180(5) of the Act because:

• it has failed to provide an explanation to the employees that would allow them to understand the operation of the two reference awards that would be affected by the agreement and the extent to which the wages and working conditions for the employees working under the respective awards would be different and the Commissioner did not take this failure into account;

• the failure was significant given:

◦ the high proportion of NESB employees covered by the Agreement; and

◦ a number of undertakings on significant Award matters.

• the Commissioner’s finding at [89] of the July 2019 Decision that the employees were likely familiar with the 2013 Agreement terms was conjecture without evidence to support an inference and irrelevant to the mandatory consideration;

• the Commissioner misconstrued the terms of s.188(1)(a)(i) and s.180(5) which required him to be satisfied that Wesley Mission has taken all reasonable steps and in doing so the Commissioner has watered down the test to requiring a merely tentative opinion by finding that the explanations given were “likely sufficient” in forming the required satisfaction recorded at [87], [90], [97] and [98] of the July 2019 Decision;

• given a “dearth of evidence” from Wesley Mission about the background and makeup of the NESB employees the Commissioner should have, but failed to, make “the obvious enquiries” about “critical facts” concerning this group. Therefore, by relying on the evidence adduced by Wesley Mission as to the adequacy of the explanation to NESB members, the Commissioner misconceived the statute and the Commission’s function; and

• the inadequacy of the material before the Commissioner supports an inference that he applied the wrong test, was not reasonably satisfied of the requisite matters or misconceived the purpose of the function he was required to perform. Consequently, the conditions precedent for the exercise of the power to approve the Agreement did not exist.

[76] In reaching the requisite satisfaction, the Commissioner was required to evaluate whether in all the circumstances the first Respondent had taken all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees in a manner appropriate, taking into account the particular circumstances and need of the relevant employees. As s.188(1) makes clear, the first Respondent’s compliance with s.180(5) of the Act need only be established to the satisfaction of the decision-maker. Actual compliance with s.180(5) is not a jurisdictional fact. Its objective existence is not a precondition to the Commission’s power to approve the Agreement. 48

[77] That the Commission reach the requisite state of satisfaction as to, inter alia, compliance with s.180(5) on material sufficient to enable the Commission to reach the requisite satisfaction, is a condition precedent to the exercise of the power to approve the Agreement. The approval of an agreement absent any evidence, or upon insufficient evidence, about an employer’s compliance with s.180(5) results in the agreement having been approved without authority and so there will be jurisdictional error. 49 In reaching the requisite state of satisfaction, there must be material available to support reaching that state. An evaluative assessment of no or insufficient information in reaching a state of satisfaction is no assessment at all and will not provide a sufficient foundation for being satisfied as to the requisite compliance.

[78] Arriving at a state of satisfaction as to whether an employer has complied with the obligations in s.180(5) depends on the circumstances of the case. The focus of the enquiry involves considering and evaluating the steps taken to comply, and then assessing whether the steps taken were reasonable in the circumstances and whether these were all the reasonable steps that should have been taken in the circumstances.

[79] The nature of the requirement in s.180(5) was recently considered in The Australian Workers' Union v Rigforce Pty Ltd 50. There the Full Bench relevantly stated:

“[35] . . . The nature of the requirement in s 180(5) was analysed in detail by the Federal Court (Flick J) in CFMEU v One Key Workforce Pty Ltd. We adopt the summary of that analysis set out in CFMMEU v Ditchfield Mining Services Pty Limited, which reduced it to the following four propositions:

(1) whether an employer has complied with the obligation in s 180(5) depends on the circumstances of the case;

(2) the focus of the enquiry whether an employer has complied with s 180(5) is first on the steps taken to comply, and then to consider whether:

• the steps taken were reasonable in the circumstances; and

• these were all the reasonable steps that should have been taken in the circumstances;

(3) the object of the reasonable steps that are to be taken is to ensure that the terms of the agreement, and their effect, are explained to relevant employees in a manner that considers their particular circumstances and needs. This requires attention to the content of the explanation given; and

(4) an employer does not fall short of complying with the obligation in s 180(5) of the FW Act merely because an employee does not understand the explanation provided.

[36] Additionally, we also adopt the analysis of Gostencnik DP in BGC Contracting Pty Ltd concerning the nature of a statutory obligation to take “all reasonable steps” as follows (footnote omitted):

“[43] A requirement or obligation to take “all reasonable steps” seems to me to require the identification of the steps a reasonable person would regard as reasonable in the circumstances that apply. Whether particular steps are reasonable will depend on the particular circumstances existing at the time the obligation arises. A requirement to take all reasonable steps does not extend to all steps that are reasonably open in some literal or theoretical sense…” 51 [Endnotes omitted]

[80] As sub-paragraph (3) of the summary in Ditchfield Mining 52 reproduced above makes clear, an assessment whether an employer took all reasonable steps to explain to relevant employees the terms of an agreement and the effect of those terms necessarily requires an examination of the content of the explanation given by the employer. That the content of the explanation given is an important consideration in determining whether the Commission is satisfied that an employer has complied with s.180(5) is also made clear by the Full Court of the Federal Court in One Key Workforce Pty Ltd v CFMEU.53 So much is evident from the following passages from the Full Court’s judgment:

“112 …In 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. It is true that the Act does not expressly say that. But the question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act; it may also be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–44 (Mason J).

113 A consideration of the subject-matter, scope and purpose of the relevant provisions of the Fair Work Act indicates that the content of the explanation and the terms in which it was conveyed were relevant considerations to which the Commission was bound to have regard. The 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.” 54

[81] Ditchfield Mining also dealt with the issue of the extent to which an explanation involving a comparison between an agreement and an award covering relevant employees needs to be given:

“[71] Compliance with s.180(5) will not always require an employer to identify detriments in an agreement vis-à-vis the reference instrument, or for the employer to provide an analysis between the agreement and the relevant reference instrument, particularly in circumstances where an existing enterprise agreement, not a reference instrument, applies to the employees in their employment with the employer. The question of compliance with s.180(5) is to be judged against the circumstances that pertain at the time at which compliance was required. Section 57 of the Act makes clear that a modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment. In the present case, when the explanations were given, no enterprise agreement applied to the employees and the Award did apply. An explanation of the effect of the terms of the Agreement vis-à-vis the Award was therefore capable of being relevant to the evaluative assessment of whether all reasonable steps were taken to explain the terms of the Agreement and the effect of those terms.

[72] The obligation under s.180(5) to take all reasonable steps to explain to relevant employees the terms of an enterprise agreement and the effect of those terms is an important function of the agreement-making scheme established by Part 2-4 of the Act. Its evident purpose, taking into account its role in assessing whether the employees who were asked to vote to approve an agreement genuinely agreed to the agreement, is to ensure that employees are as fully informed as practicable about the terms and effect of the terms of a proposed enterprise agreement before voting on whether to approve it. An employer’s discharge of its obligation under s.180(5) is intended to enable employees to know what they are being asked to agree to, and to understand how their wages and working conditions might be affected by voting in favour of an agreement.” 55 [Endnotes omitted]

[82] The particular circumstances that applied included that the employees that would be covered by the Agreement were then covered by the 2013 Agreement and that agreement applied to their employment with the first Respondent. The 2013 Agreement, like the Agreement the Commissioner was considering, did not incorporate the reference awards. The effect of the terms of the new Agreement would be to wholly replace the terms in the 2013 Agreement. The reference awards covered the employees but did not apply to them at the time the explanations were given. This is an important factual circumstance and the Commissioner was entitled to have regard to it in reaching a state of satisfaction that all reasonable steps were taken as required by s.180(5). The Commissioner did so as is evident from [81] – [90] of the July 2019 Decision.

[83] The ANMF complains about the Commissioner finding that employees were likely to be familiar with the terms of an agreement that already covered and applied to them, arguing that there was no evidence of this and that it was conjecture without evidence to support an inference. 56 We disagree. The Commissioner determined that the 2013 Agreement had many of the same terms and conditions as the Agreement under consideration.57 In particular, the Commissioner noted that the terms which varied from the reference instruments, which he considered in some detail, are currently provided in the 2013 Agreement and that while some of those terms were amended in the Agreement, these were minor changes in the overall context of the Agreement.58 We do not understand these findings to be challenged. In these circumstances, a finding that the employees in these circumstances are likely to be familiar with the terms of the 2013 Agreement, in the absence of evidence to the contrary, was open to the Commissioner.

[84] Of course, the fact that the 2013 Agreement covered and applied to the employees at the time the Agreement was made, does not necessarily mean that an explanation involving a comparison between the Agreement and the relevant modern awards was unnecessary. However, as Wesley Mission points out, not only did the relevant modern awards not apply to the relevant employees, but reference to the relevant awards in the Agreement is minimal and the particular circumstances are that:

a) the classifications that apply under the Agreement are entirely self-contained;

b) clause 3.3.1 expressly provides that the Agreement operates to the exclusion of the otherwise relevant award;

c) clauses 6.5.4 and 6.5.5 refer to awards, but only in the context of the allowances provided under those clauses being paid in lieu of all other award entitlements; and

d) clause 11.5.2 merely reinforces s.206 of the Act, to the effect that the base rate of pay under the Agreement must not fall under the relevant modern award.

e) Clause 3.2(u) defines: “Trainee shall mean any person employed and remunerated in accordance with the National Training Wage rates as defined in the Aged Care Award 2010.”

[85] The 2013 Agreement was in the same form, making provision for a self-contained classification structure and containing essentially the same provisions noted in b) to e) above, which were found in clauses 6.5.4, 6.5.5, 11.5.2 and 3.2(s) of the 2013 Agreement.

[86] The ANMF submission that the Commissioner did not reach a state of satisfaction as to whether all reasonable steps had been taken because he reached a “tentative opinion” is also rejected.

[87] It is true that the Commissioner said that “…explanations of differences between the proposed and predecessor agreements were given and likely sufficient for the Commission to be satisfied…”.⁵⁹However, it is apparent that later in the July 2019 Decision after considering all of the relevant facts, the Commissioner made clear he had reached the requisite state of satisfaction.⁶⁰ The July 2019 Decision needs to be read as a whole. Relying on that one remark read out of context does not establish error on the part of the Commissioner.

[88] As to the method of conducting the explanation of the terms to the employees, the ANMF points to the fact that face to face information meetings were not held with employees. Whether face to face meetings are a necessary reasonable step will depend on the circumstances that apply. Wesley Mission was clear in the F17 statutory declaration it filed, that the reason face to face meetings were not held was that Wesley Mission has over 40 geographically diverse work locations from Hervey Bay to the New South Wales/Queensland border with staff working over a 24 hour day and with many of the in-home care staff travelling from home to clients and back home again without a central work office. In his evidence, Mr Burns said:

“Because our workforce is spread across South East Queensland, works all hours of the day, and approximately half of the WMQ cohort of employees works within homes of our various care recipients, it was not possible for us to organise the type of face to face meetings that employers with greater budgets are able to organise.” 61

[89] While it is undoubtedly the case Wesley Mission could have conducted face to face meetings with employees, the evidence is that this would not have been a straightforward exercise given the geographic dispersion and lack of base location for many employees. There was also a budgetary constraint in undertaking such an exercise in the circumstances. No doubt it was a step that could have been taken but again the test is not whether there was some theoretically available step that could have been taken, it was whether it was a reasonable step. In the circumstances, we consider it was open to the Commissioner to conclude that all reasonable steps had been taken based on the evidence and in light of the other steps that Wesley Mission took.

[90] As to the ANMF’s contention that the Commissioner erred in relying on the statement made in the F17 statutory declaration that “local managers connected with staff” in the absence of evidence of what was involved in “connecting”, it is to be borne in mind this was but one part of the evidence about the communications with relevant employees. It is true, there is no detail about what was involved in the connection. If this was the only step on which Wesley Mission relied as a means of explaining the terms it would undoubtedly be inadequate. However, the totality of the evidence about the explanation is to be considered.

[91] The Commissioner had before him evidence as to the steps taken to explain the terms of the Agreement and the effect of those terms in the form of the PowerPoint slides of changes, multiple flyers with information about the Agreement and a PDF summary sheet of proposed changes. The Commissioner discussed the content of those materials at [82]-[85] of the July 2019 Decision. He considered the changes in the Agreement vis-à-vis the relevant awards at [86] of the July 2019 Decision and noted at [87] that “it appears that many if not all of the more beneficial terms of the Agreement when compared with the reference awards were explained to employees, several of the less beneficial terms do not appear to have been explained including changes to the allowances; definitions of night and afternoon allowances and changes to Saturday, Sunday and public holiday penalties.”

[92] Nevertheless, the Commissioner was satisfied at [90] of the July 2019 Decision, taking into account the content of the materials and the evidence given by Mr Burns about the material that was provided to employees, that Wesley Mission took all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the employees who were to be covered by the Agreement. Part of the Commissioner’s reasons for so concluding were as follows:

“[89] In assessing the context of the explanation of the terms it is noteworthy that the previous Blue Care/Wesley Mission Agreement which currently covers employees provides many of the same terms as the WMQ Agreement. In particular, of the terms listed above which vary from the Aged Care Award 2010 and the Social, Community, Home Care and Disability Services Industry Award 2010 all terms are currently provided in the previous Blue Care/Wesley Mission Agreement. While some of those terms have been amended for example, with changes to rates payable for the meal allowances and on call allowances these terms have somewhat minor payment changes in the overall context of the Agreement. As a result, it is open for the Commission to find that employees voting for the WMQ Agreement were likely familiar with many of these terms as they were already applicable to their employment. Certainly, there is no evidence to the contrary.” 62

[93] We consider the Commissioner’s conclusion was open on the evidence and we do not consider he was in error. Nor was it necessary in the circumstances for him to enquire further about the content of any local Manager’s communicating with staff.

[94] Given the above, we consider that in all of the circumstances, it was open for the Commissioner to be satisfied that s.180(5)(a) of the Act had been met. This is so despite the absence of explanation by reference to the modern awards which covered but did not apply to the employees and the failure to highlight the detriments vis-à-vis the awards. It is evident the Commission had regard to this failure. 63

[95] Turning next to the s.180(5)(b) point - whether the explanation required by s.180(5)(a) was provided in an appropriate manner taking into account the particular circumstances and needs of the NESB employees. NESB employees are an example of one of the kinds of employees whose needs must be taken into account for that purpose.

[96] As set out above, the written explanatory materials relied on for the explanation included a single sheet FAQ document; a single page 12 point comparison with the 2013 Agreement and a PowerPoint presentation. These were the materials on which Wesley Mission relied on to explain the terms and the effect of the terms of the Agreement to all employees, including the NESB employees. The materials were sent to personal and work emails of employees and provided on the staff intranet. Hard copies were provided in staff gathering areas.

[97] Having regard to that material, the Commissioner determined that the explanations were clear, concise and avoidant of jargon and unnecessary complexity and the materials were in English and not overly technical or complex. 64 We agree and would observe that this is particularly the case in respect of the document comparing the Agreement with the 2013 Agreement. It clearly explains, in simple terms, the changes from the 2013 Agreement to the Agreement.

[98] The evidence before the Commissioner from Mr. Burns was that all employees were required to have a reasonable knowledge of English by reason of the minimum qualifications required to qualify for a care or support role. The Commissioner also noted that the ANMF did not provide any evidence on the subject of the employees English comprehension. 65 The ANMF claims that the Commissioner fell into error because paragraph [96] of his decision amounts to a proposition that the Commission should only act on the issue of adequacy of explanation to NESB members of a workforce on evidence adduced by a respondent and this misconceives the statute and the Commission’s functions. We think a fair reading of the July 2019 Decision does not disclose that he was acting on such a proposition. The Commissioner simply indicated that the only evidence he had on the point was from Mr Burns to the effect that it could be inferred that the employees could read and understand Wesley Mission’s explanation. We note that evidence from Mr Burns included the following exchange in cross examination:

“But there are no formal requirements regarding English for anyone to commence a certificate III with Wesley Mission, are there?---The staff have to be able to read a care plan and then put down information in English for progress notes, and all of our materials across the whole organisation for every staff member is in English; so I would say it is a requirement that there is a level of comprehension and literacy in English for all staff.” 66

[99] We therefore do not accept the submission there was a “dearth of evidence” so that the Commissioner should have made further inquiries on the matter.

[100] For these reasons, we are not persuaded that there is any appealable error on the part of the Commissioner in reaching a state of satisfaction as to Wesley Mission’s compliance with s.180(5) of the Act.

Ground 3 – Undertakings

[101] By this appeal ground, the ANMF contends the Commissioner erred in approving the Agreement by accepting the undertakings proffered. It says that before accepting an undertaking, the Commission must be satisfied that the effect of accepting the undertaking is not likely to cause financial detriment to any employee covered by the agreement, or result in substantial changes to the agreement. It says that substantial change is a qualitative assessment and that a series of changes can cumulatively have a substantial effect.

[102] Wesley Mission proffered twelve undertakings which the Commissioner accepted and were as follows:

“1. That despite clause 7.6.1 (a) of the Agreement:

(a) for all authorised overtime worked by an employee on Monday to Friday, payment will be at the rate of time and a half for the first two hours and double time thereafter; and

(b) for all authorised overtime worked by an employee on a Saturday, payment will be at the rate of double time;

2. That the Agreement shall incorporate sections 104, 105 and 106 of the Fair Work Act 2009 (Cth) (FW Act), which relate to compassionate leave, to the extent that they are more beneficial than those outlined in clause 8.4 of the Agreement. The provisions outlined in clause 8.4 of the Agreement that are less beneficial than those outline in sections 104, 105 and 106 of the FW Act shall have no effect.

3. That for employees whose classifications are covered by the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHDS Award), the Agreement will incorporate clause 26 of the SCHDS Award, and clause 7.9.2 of the Agreement will have no effect.

4. That the base rate of pay for trainees be paid at 110% of the National Training Wage.

5. That the Agreement will incorporate clause 20.3(a) of the SCHDS Award from the date at which the Agreement is made, with subsequent increases to occur in accordance with Appendix 2 of the Agreement as regards the rates relevant to clause 7.6.1(b)(i). The lower rates as outlined in Appendix 2 relevant to clause 7.6.1(b)(i) of the Agreement shall have no effect.

6. That the Agreement shall incorporate clause 27 of the Aged Care Award 2010 and that clause 7.5.1 of the Agreement shall have no effect.

7. That employees entitled to receive the on-call allowance, be paid the allowance at a rate of $19.20 on Monday to Friday, and $38.02 on weekends and public holidays with that rate subject to the same rate of increase as contemplated by Appendix 2.

8. That the following clauses be applied in substitution of clause 7.10 of the Agreement:

(a) Early afternoon shift commencing at or after 1Dam and before 12noon - 10%;

(b) Afternoon shift commencing at or after 12noon but before 6pm -12.5%;

(b) For those employees employed on or after the commencement date of this agreement, afternoon shift starting on or after 12 noon and before 6pm - 12.5%;

(c) Night shift commencing at or after 6pm or before 6pm the following day, and where a majority of hours are worked between 6pm and 6am - 15%

7.10.4 These allowances are not payable when penalty payments apply to weekend work as described in clause 7.9 nor work on public holidays as described in clause 8.2

9. That where an employee works respite services as contemplated in clause 6.5.5 of the Agreement, they will be paid eight hours work at 155% of their base rate of pay for each 24 hours period rather than the flat allowance provided for in appendix 2 of the Agreement.

10. That the Agreement shall incorporate clause 25.5(f) of the SCHDS Award.

11. That employees required to sleep over as contemplated by clause 7.11 of the Agreement be paid an allowance of $47.04 per night with that rate to be subject to the same rate of increase as contemplated in Appendix 2.

For the avoidance of doubt, payment for work contemplated by clause 7.11.3 of the Agreement will be in addition to the sleep over allowance.

12. That, where an employee who is classified as a CRE Level 4.2 employee or above agrees to work an excursion shift as contemplated by clause 6.5.4, they will be paid:

(a) at their base rate of pay for time worked between 8.00am to 6.00pm Monday to Friday (up to a maximum of 10 hours' pay); or

(b) the appendix contained in annexure 2, whichever is higher.” 67

[103] The ANMF contends the undertakings covered commencement time of shifts and associated penalties by jettisoning the provision voted on and substituting an entirely new scheme (Undertaking 8). It says that provisions voted on for overtime payments, weekend, public holiday penalty rates and cancellation of an assignment were substantially revised by the undertakings. It says that the undertakings also addressed “disbenefits and disadvantages” in the meal allowance, higher duties allowance, on call allowance, sleepover allowance and excursions.

[104] The ANMF contends that the undertakings proffered by Wesley Mission and accepted by the Commissioner were required to address substantial structural problems with the framing of the Agreement when compared to the reference instruments and, importantly, the National Employment Standards (NES) standards for compassionate leave. The giving of the undertakings was critical to the Approval Decision. It contends that the Commissioner erred in failing to take account of the relevant consideration that the nature of the changes had to be viewed in the context of employment and remuneration based on shift work, where duties require attendances away from the workplace such as on excursions, where allowances are important and, where the remuneration of the substantial number of employees engaged in home care can depend on the wants and whims of a client cancelling. It says that had the Commissioner done so, the only reasonable conclusion open to him was that the nature of the undertakings and the scale of their impact on remuneration constituted a substantial change to the Agreement. The changes brought about by the undertakings reintroduced award benefits that were otherwise excluded by the Agreement, thus rendering the Agreement a qualitatively different agreement.

[105] The ANMF also contend that the financial detriment caused by the undertakings it had identified was not addressed by the Commissioner. The financial detriment remained after the undertakings were accepted and thus provided a further reason for the Commissioner to refuse to accept the undertakings. He therefore erred in accepting the undertakings.

[106] Wesley Mission contends that as is apparent from the July 2019 Decision the Commissioner carefully reviewed each of the undertakings individually and collectively and determined that the undertakings did not amount to a substantial change to the Agreement. It says that the ANMF does not advance any tangible basis that would undermine the Commissioner's evaluative judgment in that regard.

[107] Wesley Mission contends that the undertakings do not bring about a substantial change to the Agreement. Moreover, it says that the ANMF's submission that the undertakings covered commencement time of shifts and associated penalties by jettisoning the provision voted on and substituting an entirely new scheme (undertaking 8) is overstated. Wesley Mission says that Undertaking 8 deals only with afternoon and night penalties and does not say anything about when employees are to start or finish work. It contends that although the undertaking provided for the substitution of clauses 7.10.1 to 7.10.3 of the Agreement, it does so merely for the sake of simplicity, with the substantive changes made as a result of that undertaking only affecting the shift entitlements of employees covered by the Aged Care Award by:

• introducing an early afternoon-shift penalty;

• bringing forward the payment of the 12.5% afternoon shift by two hours (but only for those employees who were employed prior to the Agreement's approval); and

• removing the entitlement to afternoon shift where a majority of hours are worked between 2.00 pm and 6.00 pm, which is consistent with the expansion of spread of hours that qualify for the shift, and the introduction of an early afternoon shift.

[108] Wesley Mission says that the other examples to which the ANMF refers do not support the claim that the undertakings result in a substantial change to the Agreement.

[109] As to the remainder of the undertakings Wesley Mission contends that:

“• The undertakings relating to overtime merely reduced the threshold for when overtime was payable;

• Undertaking 3 had the effect of entitling employees covered by the SCHADS Award to double time in respect of all ordinary hours worked on a Sunday (rather than time and three quarters); and

• The remaining undertakings relating to a small number of allowances, and the entitlements of care and support employees in the event that a shift is cancelled at late notice, were all marginal, and provided additional benefits to employees.

[110] In Metropolitan Fire and Emergency Services Board,⁶⁸ Gostencnik DP discussed and explained the operation of the provisions concerning the approval of enterprise agreements with undertakings in s.190 of the Act as follows and which we adopt:

“[6] The capacity of the Commission to accept an undertaking in relation to the approval of an enterprise agreement is dealt with in s.190 of the Act. Section 190 is engaged relevantly if an application for approval of an agreement has been made under s.185 and the Commission has a concern that the agreement does not meet the requirements set out in ss.186 and 187. It is uncontroversial in relation to the Agreement that there is an application for its approval under s.185 and that I have concerns that the Agreement does not meet, inter alia, the requirement in s.186(2)(c) of the Act.

[7] Section 190(2) confers discretion on the Commission to approve an agreement under s.186 if satisfied that acceptance of the undertaking, subject to the fetters in s.190(3), meets the concern. It is clear, therefore, that the undertaking proffered must meet the concern that the agreement does not meet one or more of the identified requirements set out in ss.186 and 187 of the Act. The relevant requirement here, about which there is a concern, is the requirement that the terms of the Agreement do not contravene s.55 of the Act.

[8] By s.190(3), the Commission may only accept a written undertaking if satisfied that the effect of accepting the undertaking is not likely to cause financial detriment to any employee covered by the agreement or result in a substantial change of the agreement. Section 190(4) prevents the Commission from accepting an undertaking unless it has sought the views of each person who the Commission knows is a bargaining representative for the agreement. Finally, an undertaking that is proffered must meet the signing requirements prescribed by regulations.

[9] The process for proffering, accepting undertakings, assessing whether an accepted undertaking meets the requisite concern, and considering whether to approve an enterprise agreement may be summarised, chronologically as follows.

[10] First, there must be made an application for approval of an enterprise agreement.

[11] Secondly, the Commission must have a concern that the agreement does not meet one or more of the requirements set out in ss.186 and 187 of the Act. It should go without saying that the relevant concern needs to be identified by the Commission and communicated to the applicant for the approval of the agreement, and where the applicant is a bargaining representative for the agreement which is not the employer, also communicated to the employer or employers covered by the agreement. Only an employer or employers covered by an agreement can give an undertaking.

[12] Thirdly, there must be a written undertaking from one or more of the employers covered by the agreement and that undertaking must meet the signing requirements.

[13] Fourthly, the Commission must assess and be satisfied that the effect of accepting the undertaking is not likely to cause financial detriment to any employee covered by the agreement or result in substantial changes to the agreement.

[14] Fifthly, before accepting an undertaking the Commission must seek the views of known bargaining representatives for the agreement.

[15] Sixthly, if the undertaking is accepted the Commission must be satisfied that the accepted undertaking meets its concern before it may approve the agreement.

[16] Seventhly, there is a residual discretion to be exercised whether to approve the agreement with the undertaking that has been accepted and that meets the identified concern.”⁶⁹ [Endnotes omitted]

[111] The issue raised by this appeal ground concerns only whether the Commissioner erred in being satisfied that the effect of accepting the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

[112] Dealing with the first aspect, namely whether the effect of accepting the undertaking is not likely to cause financial detriment to any employee covered by the Agreement, we consider that accepting Undertaking 8 is likely to cause financial detriment to one or more employees covered by the Agreement. Two examples of the likely detriment will suffice.

[113] Undertaking 8 deals with penalties for shift work. It operates in substitution for clause 7.10 of the Agreement and provides as follows:

“That the following clauses be applied in substitution of clause 7.10 of the Agreement:

(a) Early afternoon shift commencing at 10am and before 12noon – 10%;

(b) Afternoon shift commencing at or after 12noon but before 6pm – 12.5%;

(b) For those employees employed on or after the commencement date of this agreement, afternoon shift starting on or after 12 noon and before 6pm – 12.5%;

(c) Night shift commencing at or after 6pm or before 6pm the following day, and where a majority of hours are worked between 6pm and 6am – 15%

7.10.4 These allowances are not payable when penalty payments apply to weekend work as described in clause 7.9 nor work on public holidays as described in clause 8.2”

[114] The first obvious likely financial detriment concerns clause 7.10.4 of Undertaking 8. That clause operates so that shift work penalties are not payable to an employee covered by the Agreement in respect of ordinary hours of work performed on a weekend or a public holiday. The Agreement as approved by relevant employees contains no such limitation. Under the Agreement it appears that an employee who performs shift work as described in clause 7.10 of the Agreement on a weekend or a public holiday would be entitled to these allowances in addition to the applicable rates of pay for weekend or public holiday ordinary hours of work. The effect of including clause 7.10.4 in Undertaking 8 is to deny an employee working relevantly described shift work on a weekend or public holiday the applicable shift allowance which is prescribed in clause 7.10 of the Agreement. As a result, the acceptance of the undertaking will likely cause a financial detriment to such an employee.

[115] The second obvious financial detriment concerns employees who commence work before 12 noon and who perform the majority of their ordinary hours between 2:00 pm and 6:00 pm, for example, an employee who commences work at 11:00 am and finishes work at 6:00 pm. Pursuant to clause 7.10.1(a) of the Agreement, an employee (including one who is covered by a classification in the Aged Care Award) who is employed prior to the commencement date of the Agreement would be entitled to a shift penalty of 12.5% for each such shift of ordinary hours.

[116] However, clause 7.10.2 of Undertaking 8 has the effect of confining the operation of the above-mentioned provision of the Agreement to employees whose classifications are covered by the SCHADS Award. Instead an employee whose classification is covered by the Aged Care Award in the example set out in the previous paragraph will receive only 10% in addition to the base rate of pay for the relevant shift. This is the effect of clause 7.10.1(a) of Undertaking 8. Consequently, the effect of accepting Undertaking 8 is likely to cause financial detriment to such an employee.

[117] The Commissioner considered the effect of Undertaking 8 (then referred to as Undertakings 9 and 10) in the July 2019 decision relevantly as follows:

“[125] I turn to a consideration of each of the undertakings given in these proceedings and find that the QNMU's objection that they amount to substantial changes and may not be accepted:

…

c) Any Aged Care Facility employee working a shift which commences between 6pm one day and 6am the next day who does not work a majority of their hours between those times, will be entitled to a shift allowance of 15%, whereas no shift” allowance (or similar) whatsoever is payable in such circumstances under the Agreement as voted.

The amended undertaking is in these terms:

“That the following clauses be applied in substitution of clause 7.10 of the EA:

(a) Early afternoon shift commencing at 10am and before 12noon – 10%;

(b) Afternoon shift commencing at or after 12noon but before 6pm – 12.5%;

(b) For those employees employed on or after the commencement date of this agreement, afternoon shift starting on or after 12 noon and before 6pm – 12.5%;

(c) Night shift commencing at or after 6pm or before 6pm the following day, and where a majority of hours are worked between 6pm and 6am – 15%

7.10.4 These allowances are not payable when penalty payments apply to weekend work as described in clause 7.9 nor work on public holidays as described in clause 8.2”

…

[118] Two things may be observed from the Commissioner’s analysis above. The first is that the analysis appears to deal with only the question whether Undertaking 8 (described as Undertakings 9 and 10) results in substantial changes to the Agreement. There is no evident consideration of whether the effect of accepting the undertaking is not likely to cause financial detriment to any employee covered by the Agreement. The same may be said of the first Respondent’s written submissions on appeal which focus on substantial change and do not engage with the financial detriment aspect of this ground of appeal.⁷¹

[119] Secondly, the Commissioner does not appear to grapple with the submission as to financial detriment made by the ANMF which appears at [31] of its outline of submissions dated 29 March 2019.⁷² The first obvious financial detriment that we have described earlier is dealt with at [31(a)] of those submissions.

[120] In the circumstances we consider that the ANMF has made good this ground of appeal. In accepting Undertaking 8 the Commissioner failed to take into account (despite what is said at [2] of the Approval Decision) a material relevant consideration, namely, whether the effect of accepting Undertaking 8 is not likely to cause financial detriment to any employee covered by the Agreement. Moreover, on the material available to the Commissioner it was not open to him for the reasons we have described above, to be satisfied that accepting Undertaking 8 is not likely to cause financial detriment to any employee covered by the Agreement. Reaching the requisite level of satisfaction as to this issue is a jurisdictional fact. The Commissioner failed to do so and the discretion miscarried. He was in error.

[121] We turn then to the second aspect of this ground of appeal, namely, whether the Commissioner erred in being satisfied that the effect of accepting the undertakings results in substantial changes to the Agreement. The Commissioner’s analysis of this issue is earlier set out.

[122] The issue of when undertakings might result in substantial changes to an agreement was considered by a Full Bench in Construction, Forestry, Maritime, Mining and Energy Union v Lightning Brick Pavers t/a Lightning Brick Pavers.⁷³ There the Full Bench said:

“[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 2½ 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”. On either view the exercise of the discretion required by s 190(3)(b) miscarried.⁷⁴ [Endnotes omitted]

[123] It seems to us plain from the Commissioner’s analysis that he gave consideration to what is said in Lightning Brick Pavers and in CFMEU v Kaefer Integrated Services Pty Ltd⁷⁵ and applied those decisions to the undertakings under consideration. In exercising his discretion, the Commissioner asked himself the correct question and took into account relevant considerations as set out in his analysis. It is not suggested that he failed to take into account any particular relevant consideration or that he took into account any consideration that was not relevant. We consider that the Commissioner’s evaluative conclusion was open to him on the material before him and that no appealable error is disclosed in the Commissioner’s conclusion that the effect of accepting the undertakings did not result in substantial changes to an Agreement.

[124] We need not deal with those aspects of this ground of appeal which concern the BOOT as this issue can be revisited in light of any revised undertaking that might be given by the first Respondent.

Ground 4 – signature page amendment

[125] The ANMF contends the Commissioner erred in approving the Agreement by allowing a correction to include a signature page by different signatories to those who signed the Agreement previously lodged. It says that s.185(2)(a) of the Act requires that an application must be accompanied by a signed copy of the agreement. It also points to Reg. 2.06A(2) of the Fair Work Regulations 2009 (Regulations) which provides that a copy is a signed copy only if it is signed by the employer and at least one representative of the employees and it includes the full name and address of the person who signed and an explanation of person's authority to sign. It contends that although s.586 of the Act confers power on the Commission to allow a correction of any application or other document relating to a matter before the Commission, the Commissioner was not empowered by that section to allow an amended signatory page with a different signatory.

[126] The ANMF contends that s.185 of the Act and Reg. 2.06A(2) of the Regulations concentrate on the copy of the Agreement at the time the application is filed. The legislative scheme is concerned with the integrity of the agreement document. It says that “changes” to an agreement in the approval process are not to be affected by amendment but by the giving of an undertaking. Thus s.586 does not give the power purported to be exercised in this case to “correct” the Agreement and in so doing the Commissioner was in error.

[127] The first Respondent contends that the original version of the Agreement filed in the Commission did not comply with the signature requirements of Reg. 2.06A(2) of Regulations. This is because, the Agreement had only been signed by the employer (with a signature clause subsequently provided by United Voice). Accordingly, in the September 2019 Decision, the Commissioner invited it to file a copy of the Agreement that satisfied that requirement. It contends that the ANMF complaint that s.586 does not give the Commissioner the power to either amend the filed version of an agreement to comply with those signature requirements, or to waive compliance, is directly inconsistent with Full Bench authorities.

[128] We agree. The scope of the power in s.586 of the Act in relation to the filing of an application to approve an enterprise agreement in accordance with the requirements of s.185 of the Act was recently considered by a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v Griffiths Cranes Pty Ltd.⁷⁶ In that case the majority said:

“[40] We do not consider that a failure to comply with the requirement in s.180(2) (sic)77 that an application for the approval of an agreement be accompanied by a signed copy of the agreement results in the invalidity of the application in the sense that it or documents accompanying it cannot be corrected or amended or that certain irregularities cannot be waived by recourse to s.586. The preconditions to the exercise of the power to approve an agreement are that there has been an application to approve an agreement under s.185 and that the Commission is satisfied that the requirements of ss.186 and 187 are met.

[41] The scheme of the Act as we have described above mandates that once an agreement has been made under s.182(1), a bargaining representative for an agreement must make application to the Commission for its approval within the prescribed (or extended) time. The requirement in s.185 that an application for approval of an agreement be made within 14 days is in our view a clear signal that the legislature intended that once an agreement is “made” it must come to the Commission for consideration of approval. An application for an approval is to be made in accordance with the Act. But an application that is unaccompanied by one or more of the instruments required by s.185(2) (or in the case of a signed copy of the agreement that does not meet the requirements of reg 2.06A) is an application that is not made in accordance with the Act.

[42] As the Full Bench in Sustaining Works observed, the power to approve an agreement under s.186(1) is conditioned by the existence of “an application for the approval of an enterprise agreement ... under s. 185”, and this means an application that is made in accordance with that section. An application that is not made in accordance with s.185 is not an application that engages the power to approve an agreement under s.186. As a consequence, an application for approval which is not accompanied by a signed copy of the agreement for which approval is sought cannot be approved. But such an application is not by that reason alone invalid in the sense earlier noted. The legislature contemplated that applications might be made to the Commission other than in accordance with the Act and made provision for that eventuality. Such an application is amenable to dismissal under s.587(1)(a), to correction or amendment under s.586(a), or if the failure to make an application in accordance with the Act is an ‘irregularity in the form or manner’ in which the application is made, to waiver under s.586(b). Plainly if the Commission does not exercise the power to correct or amend, or to waive an irregularity in the form or manner in which an application has been made, the Commission will have no power to approve an agreement the subject of an application which is not accompanied by a signed copy of the agreement. For the Commission to do so would be beyond power and amenable to correction on appeal. But that says nothing about the power to correct, amend or waive a particular irregularity, before the approval power is exercised.

[43] In the context of its use in s.586(b), the ordinary meaning of “manner” is “a way in which a thing is done or happens”. “Irregularity” is “a defect, failure, or mistake” or a “departure from a prescribed rule or regulation.” Taken together, their use in s.586(b) connotes a failure to comply with or a departure from a prescribed requirement in the way in which an application permissible under the Act is made; that is, an irregular way in which an application is made.

[44] An application for the approval of an enterprise agreement which is accompanied by an agreement that is not signed in accordance with the signature requirements in reg 2.06A seems to us to be an irregularity in the manner in which the application is made. An exercise of the discretion under s.586 to correct an application or accompanying document or to waive an irregularity may render the application as having been made in accordance with the Act. Thereafter, the power in s.186 is exercisable, because the application is one made under s.185 since the requirement in s.185(2) has been met because of correction, or has been waived.

[45] It would defeat the evident statutory purpose of requiring bargaining representatives to apply for the approval of an agreement that has been made under s.182(1) of the Act if an application were a nullity merely because the bargaining representative applying for its approval could not comply with s.185(2). Non-compliance may occur because for example the employer, or an employee bargaining representative, or a representative of employees refuses to sign the agreement. Non-compliance might also occur if an employer refuses to complete a statutory declaration in support of the approval of the agreement as required by the regulations. In the case of an applicant that is an employee bargaining representative, the employer’s signing of the agreement is outside of its control. The entire scheme of bargaining and agreement making under the Act would be frustrated if the Commission could not exercise a waiver power as to the signing requirements in relation to an agreement which was validly made under s.182(1) but one which the employer subsequently refused to sign. This would permit the employer to deliberately frustrate the statutory scheme in much the same way as a refusal to make application to approve a validly made agreement notwithstanding the obligation to do so.

[46] The construction we favour is concordant with the plain meaning and interaction of the relevant provisions read in context. It also accords with the purpose or underlying object of the Act and in particular Part 2-4. A construction that an application which is not accompanied by an instrument as described in s.185(2) is a nullity and incapable of rectification or waiver under s.586 achieves the opposite. Furthermore, there can be little doubt that if an employer simply forgot to sign an agreement but made application to approve the agreement and supported its approval, the Commission could waive this irregularity. An irregularity in the signature page of an agreement lodged with an application for its approval might alternatively simply be corrected by allowing a substituted signature page to be filed to replace the irregular page, but the Commission would plainly in our view have power to waive non-compliance under s.586(b).⁷⁸

[129] Given the above the Commissioner was plainly empowered to waive the irregularity in the making of the application which was accompanied by an agreement which did not meet the signing requirements and to allow a correction to the signatory page of the Agreement which is plainly a document relating to a matter before the Commission within the meaning of s.586 (b) of the Act, on any terms that the Commissioner considers appropriate. It matters not that the corrected signature page carries different signatures to those in the defective signature page, so long as those signing the corrected signature page are authorised to do so. There is no suggestion that the exercise of the Commissioner’s discretion under s.586 otherwise miscarried. The proposition advanced by the ANMF is a want of power. That proposition is rejected. It follows that this ground of appeal fails.

Permission to appeal

[130] We are satisfied that it is in the public interest that permission to appeal be granted in respect of ground 3 of the notice of appeal because the ANMF has made out an arguable case of appealable error in respect of that ground and because there is appealable error as we have identified. We consider there is public interest in ensuring that the agreement approval requirements about which the Commission must be satisfied are properly considered and administered. We therefore grant permission to appeal in respect of ground 3.

Conclusion

[131] For the reasons stated we would grant permission to appeal in respect of ground 3 and uphold the appeal in part on that ground. Consequently, we would quash the Approval Decision and remit the application for the approval of the Agreement to Commissioner Wilson to determine those matters which remain outstanding in relation to the application. In that determination, the second and third matters raised with the first Respondent during the hearing of the appeal recorded at PN237 - PN252 may also need to be considered.

Orders

[132] We order as follows:

1. Permission to appeal is granted in respect of appeal ground 3 of the notice of appeal;

2. Permission to appeal is otherwise refused;

3. The appeal is upheld in part on ground 3 of the notice of appeal;

4. The decision to approve the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 in [2019] FWCA 6559 is quashed;

5. The application for the approval of the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 is remitted to Commissioner Wilson for the purposes of:

a. considering any further undertaking that may be proffered by the first Respondent;

b. addressing the second and third matters raised with the first Respondent during the hearing of the appeal recorded at PN237 - PN252; and

c. determining whether the Wesley Mission Queensland Care and Support Employees Enterprise Agreement 2018 with any undertakings is to be approved.