DECISION

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

Scotts Refrigerated Freightways Pty Ltd
(AG2021/234)

Application for approval of the Scott's Refrigerated Freightways Pty Limited NSW Drivers (Local and Linehaul) Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Scott's Refrigerated Freightways Pty Limited NSW Drivers (Local and Linehaul) Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act) on 5 February 2021. The application was made by Scott’s Refrigerated Freightways Pty Ltd (Scott’s/ Employer). The Agreement is a single enterprise agreement.

[2] Until it is replaced, the employees are covered by the Scott’s Refrigerated Freightways (NSW) Pty Ltd and Scott’s Refrigerated Freightways Services (NSW) Pty Ltd Enterprise Agreement 2014 1 (2014 Agreement). The 2014 Agreement passed its nominal expiry date on 31 December 2018. The Employer commenced bargaining when it purported to issue a Notice of Employee Representational Rights (NERR) on 13 and 14 January 2020. There is a contest about whether there was an effective issuing of the NERR. I deal with this below.

[3] The Agreement was made on 22 January 2021. That is the date upon which voting to approve the Agreement concluded. 175 employees were eligible to vote. However, only 83 (47% of those eligible to vote) voted. Of those who voted, 56 (67.4%) voted to approve the Agreement. That fact that less than 50% of eligible voters voted and only 32% of eligible votes approved the Agreement is not necessarily an indication that employees were disenfranchised. It may simply be that they were apathetic about the Agreement.

[4] The Transport Workers’ Union (Respondent/TWU/Union) were a bargaining representative during negotiations for the Agreement. On 18 February 2021 the TWU filed a Form F18 Declaration in which it opposed the approval of the Agreement.

[5] Also on 18 February 2021 I issued Directions, which programmed and provisionally listed the matter for hearing. I also provided the parties with the Commission’s administrative analysis of the Agreement (Commission’s Checklist).

[6] The Directions provided an opportunity for the Applicant to address any issues identified in the review of the Commission’s Checklist by way of filing further materials and/or the proffering of undertakings.

[7] On 9 March the Applicant filed proposed undertakings as well as written submissions and a witness statement of Ms Fiona King, the Applicant’s Head of Human Resources, and Mr Phil Lewis, principal of Elections Australia Pty Ltd.

[8] In light of the material filed by the Applicant, on 16 March 2021, my Chambers inquired whether the TWU maintained its objection to the application. On the same day the TWU replied confirming the objection was pressed. In a further email the Union filed and served written submissions, a statement of Mr John Waltis, a driver and TWU delegate employed by the Applicant, and Mr Mark Smallwood, TWU Organiser. On 19 March 2021, the Applicant filed its reply submissions and a statement of Mr Gavin Kable, Human Resources Manager of the Applicant.

[9] In opposing the approval of the Agreement, the TWU makes the following claims: 2

a. The Applicant did not take all reasonable steps to ensure that each of the employees were made aware that the NERR had been issued (ss. 173(1) of the FW Act; Fair Work Regulations reg 2.04, 2.05) (NERR Issue);

b. The Applicant did not take all reasonable steps to ensure that the employees were provided with a written copy of the Agreement during the access period (s180(2)(a)(i) of the FW Act) (Access Issue);

c. The Applicant did not take all reasonable steps to ensure that the employees were given details of the voting process (s.180(3) of the FW Act) (Voting Process Issue);

d. The Applicant did not take all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the employees (s180(5) of the FW Act) (Explanation Issue); and, consequently,

e. That the employees did not genuinely agree to the Agreement (s188(1)) (Genuine Agreement Issue).

[10] The issues identified by the TWU were consistent with those contained in the Commission’s Checklist.

[11] The Union submits that, on the basis of the issues raised above, the Agreement cannot be approved because the Employer did not comply with the pre-approval steps required by the FW Act.

The materials

[12] The matter was listed for a hearing on 24 March 2021. The Applicant was represented by Mr L Howard of counsel. The TWU was represented by its Legal Officer, Mr Adam Grumley. Following a short exchange with me, neither party pressed a desire to cross-examine the other side’s witnesses. However, both sides requested the opportunity to file additional submissions. I acceded to that request. I then reserved my decision and determined the matter on the basis of the documentary materials filed in the matter, including the final written submissions that were filed and served by both parties on 26 March 2021.

[13] All the application documents, emails from the parties, and formal submissions and attachments filed, whether specifically noted or not, are before me in considering the application and the Union’s opposition to same. This includes the following:

NERR Issue

NERR Issue – legislative requirement

[14] Section 173(1) of the FW Act provides:

“173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.”

NERR Issue – Employer Evidence

[15] The application was accompanied by a Form 17 – Employer’s Declaration in support of an application for approval of an enterprise agreement (Form F17) declared by Fiona King, National HR Manager of the Employer. In answer to the question “What steps did the employer take to give the notice of employee representational rights to each employee who will be covered by the agreement and is employed at the notification time for the agreement?”, Ms King declared,

a. 14 August 2020 - A copy of the Notice of Employee Representational Rights (NERR) was affixed to three Scott’s NSW Drivers depot staff communication notice boards (Notice Boards) where drivers obtain information. The Notice Boards were located at:

•  Daily trip allocation counter noticeboard;

•  Main dock noticeboard; and

•  Meal and rest area noticeboard.

b. The Notice Boards are the primary channel of communication between Scott’s and its drivers. The Notice Boards are the most effective method of communicating with drivers as the business operates 24 hours a day with drivers working early morning, day, afternoon and night shifts.

c. This practice is consistent with the issuing of NERR for other company enterprise agreements in NSW and other states for which unions (including the TWU) and employee bargaining representatives have been a party to.

d. Relevantly, a new clause 11.1.1 was included into the Agreement that was not contained in the 2014 Agreement. Clause 11.1.1 permits the use of noticeboards to enable the Union or Employee Representatives to post notices in connection with the Agreement or matters related to the employment of Scott’s employees. The TWU did not oppose inclusion of this clause.

e. The NERR remained on two of the three Notice Boards until 20 November 2020. The NERR is still available on one of the Notice Boards. A copy of a photograph showing the NERR displayed on one of the Notice Boards on 4 February 2021 is attached at Annexure A. 3

[16] On 9 March 2021, Ms King also filed a witness statement. In relation to the NERR Issue, she outlined:

“…

16 The TWU has raised a concern in its Form F18 that Scott’s did not take all reasonable steps to make copies of the NERR available to the employees covered by the Agreement.

17 However, my understanding is that we are not required to give out individual copies of the NERR to each employee. Rather, we are required to take all reasonable steps to give the NERR to employees.

18 Scott’s gave the NERR to employees via three notice boards (Notice Boards) in its Prestons depot (the location of work of the employees covered by the Agreement). These Notice Boards are the:

a. drivers shift sign-on and daily run allocation counter notice board;

b. drivers lunch and rest area notice board; and

c. drivers waiting area notice board.

19 These Notice Boards were easily accessible by all employees covered by the Agreement throughout negotiations. We have also placed the NERR on the same Notice Boards when bargaining for previous enterprise agreements.

20 Notice Boards are the most common method of communication for Scott’s NSW drivers and more broadly to drivers within our business. This is because we employ truck drivers who spend the majority of their day in their truck.

21 It is not practical nor effective to have “town hall” style meetings with our truck drivers because operational requirements mean that shifts often overlap. It is nearly impossible to have all of our employees together at one time because of the way the business operates. It would cause a significant stoppage of work and loss in productivity to do so. Drivers’ differing sleep patterns and the need for sufficient rest would also render this impracticable.

22 I don’t know why the TWU has said that the NERR was placed in a locked office. This is incorrect. The NERR was placed in three different locations and none of locations were locked during working hours.

23 I disagree that low voter turnout is an indication that the NERR was not given to employees. In my experience, low voter turnout is common within our business and the transport industry more broadly. For example, Scott’s and its associated entities has a number of enterprise agreements which recorded similar voter turnout, such as the Rand Transport (1986) Pty Ltd NSW Drivers (Local and Linehaul) Enterprise Agreement 2018 (Rand Agreement).

24 The Rand Agreement had 58% voter turnout which is comparable to the 48% (original results) or 53% (revised results) voter turnout for the Agreement.

25 The Rand Agreement was subsequently approved by the Commission regardless of this low voter turnout and the TWU did not object to the Rand Agreement on this basis.”

[17] On 19 March 2021, a witness statement was filed by Mr Gavin Kable, Human Resources Manager for the Employer. In relation to the NERR Issue, the witness statement outlined:

“…

37 The TWU assert that Scott’s did not take reasonable steps to ensure the employees were made aware that the NERR had been issued. I disagree. Notice boards are a common way to disseminate information at site. I find they are the most effective way to disseminate information to drivers given that the business operates on a 24 hour cycle and linehaul drivers come and go from the site. Further, I note that clause 11.1.1 of the Agreement specifically contemplates parties posting notices related to the Agreement on noticeboards.

38 I disagree that the allocation room was locked. While the number of drivers entering the room any one time was managed for COVID purposes the room was not locked. Even if a driver could not access the allocation room for a particular reason, the NERR was affixed to two other noticeboards at the depot.

39 Regardless, Mr Waltis was aware that the NERR had been issued and was privy to chatter from which it is evident that other employees had seen the NERR.

40 Further, it is evident from the Waltis Statement that Mr Waltis was aware that bargaining for an enterprise agreement had commenced. In my view, this is consistent with Mr Waltis having received a copy of the NERR shortly after the notification time.

41 For completeness, I assisted Ms King in the preparation of the F17 Employer Response. In the course of preparing that response, I noted that a NERR was still pinned on one of the noticeboards on 4 February 2021. I took a photograph of this NERR which was enclosed with the F17 at Annexure A. Regardless, this says that the NERR remained affixed to this noticeboard during bargaining and so employees would have been aware of their right to appoint a bargaining representative.”

NERR Issue – TWU Evidence

[18] As evidence for the above propositions, the Union relied on the witness statement of Mr John Waltis, a full-time long-distance driver and TWU delegate employed by Scott’s. In his statement, Mr Waltis declared:

“…

24. I may have received a copy of the NERR via email however, I do not recall actually being given a physical copy of the NERR.

25. I did hear through other employees that a copy of the NERR was placed on a notice board within the allocation room.

26. I was unable to access the allocation room as it had been locked off to all employees with the exception of a few local drivers.”

NERR Issue – Employer Submissions

[19] In the Employer’s submissions filed on 9 March 2021, the Employer submitted:

“…

19. Firstly, as per question 18 of the Form F17, the NERR was printed and displayed on three Scott’s depot staff communication notice boards (Notice Boards) on 14 August 2020. This is illustrated by Annexure A to the Form F17 which contains a picture of the Notice Boards.

20. The Notice Boards are the main communication channel for Scott’s drivers as outlined at paragraphs [18] to [20] of the Witness Statement of Ms King. Scott’s has used the same Notice Boards to bring the NERR to its employees’ attention when bargaining for previous enterprise agreements that were subsequently approved by the Commission. The TWU has not objected to such practice in the past.

21. Additionally, Deputy President Gostencnik’s decision in Woolworths Supermarket Agreement 2018 [2019] FWCA 7 (which was subsequently upheld by the Full Bench on appeal) confirms that a notice board in a conspicuous location is an appropriate communication method. In our opinion, the Deputy President’s reasoning (concurred by the Full Bench) is also relevant in this matter.

22. Paragraph [21] of the Witness Statement of Ms King also confirms that the Notice Boards were not in a location that was locked due to COVID-19 restrictions. Further, low voter turnout is not in itself evidence of the failure to provide the NERR to employees. Rather, as per paragraphs [22] to [24] of Witness Statement of Ms King, low voter turnout is consistent with prior enterprise agreement votes within the business.

23. On this basis, Scott’s consider that the TWU’s concern about the NERR are not an impediment to the approval of the Agreement.”

[20] On 19 March 2021, the Employer filed submissions in reply. On 26 March 2021, the Employer filed final written submissions. The final written submissions were an annotated version of their 19 March submissions. In relation to the NERR Issue the Employer submitted (footnotes omitted):

“…

1. Scott’s gave the NERR to the relevant employees via three notice boards. Each of these notice boards are known by and readily accessible to the relevant employees. This is the statutorily endorsed mechanism: Regulation 2.04(7). See also Retail and Fast Food Workers Union Incorporated v Woolworths Group Limited and others [2019] FWCFB 2355 who confirmed the reasoning in Application by Woolworths Group Limited and Woolworths (South Australia) Pty Ltd [2019] FWCA (AB10, 11).

2. The allegation that a NERR was placed on a notice board in an area that “could not be freely accessed by each employee” cannot be accepted. Nothing corroborates it. As Mr Kable and Ms King explain, the allocation room was not locked at any time. The submission has no merit in circumstances where the notice was placed in multiple conspicuous locations.

•  Section 173(1) is satisfied on an employer taking all reasonable steps to give the notice. Subsection (4) specifies that Regulations may set out how this is satisfied.

•  Regulation 2.04(7) says that an employer: "The employer may display the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee."

•  RFFWUI v Woolworths Group Limited & Ors (2019) 289 IR 214, [34], [36] (AB10, 11): Compliance with the prescribed method in regulation 2.04(7) will constitute compliance with section 173(1).

•  The evidence is that, on 14 August 2020, the NERR was affixed to three noticeboards that are routinely used to communicate to employees. Noticeboards are the primary channel of communication (and this is evidenced by new clause 11.1.1 of the Agreement which permits the TWU to also use these noticeboards for communication). It is not practical to communicate through other means (and Scott’s does not provide its truckdrivers with work email addresses). See:

•  Form F17 at Question 18 (CB280-281).

•  Kable Statement at [6], [37] – [42] (CB388, 392-393).

•  King Statement at [18] – [22] (CB332-333).

•  Annexure A (CB63-64). As can be seen from Annexure A, one NERR had remained on one of the noticeboards up to filing the application for approval.

•  The allocation room was not “locked off to all employees with the exception of a few local drivers”: Waltis Statement, [26] (CB380). Why would Scott’s ‘lock’ the room at which work is allocated? Social distancing measures were in place to control the density of people in the room at any one time (Kable Statement, [38] (CB391)).”

NERR Issue – TWU Submissions

[21] In its written submissions filed on 16 March 2021 the TWU submitted (footnotes omitted) that, in relation to the distribution of the NERR:

•  The Applicant did not provide copies of the Notice of Employee Representation Rights (NERR) to all relevant employees (Employees) who were employed at the time and would be covered by the Proposed Agreement

•  The Applicant did not take all reasonable steps to ensure that each of the Employees were made aware that the NERR had been issued

•  The Fair Work Regulations reg2.04 (the Regulations) provides, amongst other things, that the Employer may display notice in a conspicuous location at the workplace that is known by and readily accessible to the employee

•  The Applicant contends in the Form F17 Statutory Declaration (the F-17) that on 14 August 2020 the NERR was affixed to notice boards located in three (3) separate locations namely the daily trip allocation notice board, main dock notice board and the notice board located in the meal and rest areas

•  It is not contested that the Applicant may have supplied a copy of the NERR on at least one (1) notice board, however, the copy of the NERR was placed on a notice board in an area that could not be freely accessed by each employee as the area in question was locked off due to Covid-19 precautions taken by the Applicant

•  The effects of leaving the NERR in a locked off area was that the Applicant displayed the NERR in a non-conspicuous location that could not be freely accessed by each employee to be covered by the Proposed Agreement which is contrary to the requirements of the Act and the Regulations

•  The decision to disseminate the NERR in a non-conspicuous location that was locked off and inaccessible was not a positive action of the Applicant and by doing so it has not satisfied the requirement to identify the purpose of providing the NERR to each employee or to identify how the NERR could have been accessed

•  It is submitted that each employee was somewhat disadvantaged by not being appropriately made aware that they had a right to be represented during bargaining negotiations as a result of the Applicant choosing to issue a copy of the NERR in the manner that it chose to do so

•  It would be open to the Commission to make finding that the Proposed Agreement could not have been genuinely agreed to based on these facts alone

[22] In its final written submissions filed on 26 March 2021 the TWU submitted (footnotes omitted):

a) The Commission should consider whether the Respondent had taken all reasonable steps towards issuing the NERR.

b) The Respondent states that it gave the NERR to the relevant employees (the Employees) via three (3) noticeboards. The evidence of Mr Gavin Kable (Mr Kahle) was that copies of the NERR were issued via the three (3) notice boards. Mr Kable also provides evidence that Mr Kable himself affixed two (2) of copies of the NERR on two (2) of the three (3) noticeboards. Mr Kable states that Mr Gareth McLeod (Mr Mcleod) also affixed a copy of the NERR on one (1) of the three (3) noticeboards. Mr Kable does not specifically state where Mr Kable affixed copies of the NERR other than to say that he did so at two (2) locations. Mr Mcleod has not provided evidence as part of these proceedings therefore the evidence provided by Mr Kable in regards to Mr Mcleod should not be given any consideration.

c) Mr Kable provided evidence that Mr Kable assisted Ms Fiona King (Ms King) in preparing the Respondent's F-17 statutory declaration. Mr Kable also provided evidence that on 4 February 2021, that Mr Kable took a photograph of a copy of the NERR that was allegedly still then placed on a noticeboard.15 Mr Kable has not provided evidence of where the NERR was located or which one (1) of the three (3) noticeboards the photograph relates to. Mr Kable has not confirmed whether or not the photo of NERR was one (1) of the alleged copies that Mr Kable had affixed in one (1) of two (2) separate locations.

d) Mr Kable provided evidence that Mr John Waltis (Mr Waltis) was aware that the NERR had been issued and was privy to chatter from which is evident that other employees had seen the NERR.16 The onus to take reasonable steps to provide copies of the NERR did not rest with chatter heard by Mr Waltis the onus to provide copies of the NERR rests with the Applicant.

e) The evidence of Ms King does not support the evidence provided by Mr Kable with respect to the NERR. Ms King provides evidence that the NERR was placed in three (3) separate locations. Ms King has not provided evidence that supports whether or not it was Mr Kable who posted copies of the NERR in any of the three (3) locations where the noticeboards were located. Ms King has not confirmed or identified where Mr Kable placed copies of NERR nor has Ms King acknowledged actually witnessing a copy of the NERR.

1. The Applicant could have but did not issue an SMS as a reasonable step towards ensuring that the Applicant had provided a copy of the NERR and how it could have been accessed to the Employees.

2. Based on the balance of probabilities the Applicant has not provided sufficient enough evidence to confirm that the Applicant had taken all reasonable steps towards providing copies of the NERR pursuant to s173 of the Act.

NERR Issue – Consideration

[23] The evidence of the Applicant and the Union is limited. Ms King says the NERR was affixed to three noticeboards, that the noticeboards are the primary channel of communication with employees and are easily accessible. Ms King says this is the usual practice. However, Ms King does not say she affixed them. Ms King does not say she saw the NERR’s on the noticeboard (although she does attach one photo – taken by Mr Kable 4). Ms King denies the accusation that the noticeboard areas were locked. However, Ms King does not explain the source of her evidence. Mr Kable also denied that the noticeboard rooms were locked. However, he conceded that “the number of drivers entering the room at any one time was managed for COVID purposes”.

[24] Mr Waltis, an employee and TWU delegate says he “was unable to access the allocation room as it had been locked off to all employees with the exception of a few local drivers.” Mr Waltis gives no evidence about what time he tried to access the “allocation room” when, he says, the rooms was locked. Further, he says nothing about access to the “lunch and rest area notice board” or the “drivers waiting area notice board.” Finally, Mr Waltis concedes that “he may have received a copy of the NERR…”

[25] The Applicant conceded that it does not provide its employees with work email addresses as they do not use email for work purposes. 5 The evidence of the Applicant is that it had only obtained approximately 75% of personal emails addresses for employees and that advising the Applicant of their personal email addresses is a voluntary decision made by the employee.6

[26] It is the unchallenged evidence of the Employer that the most common method of communication with employees is the posting on notice boards within areas frequented by employees (such as the allocation room) in the Employers premises. This is because the employees spend the majority of their time away from the premises driving motor vehicles.

[27] There is no obligation on the Employer to ensure that all employees have received, a copy of the NERR rather they must take reasonable steps to do this. The circumstances of the employer and the employee are relevant to the issue of reasonableness. In the present circumstances I am satisfied that issuing the NERR by affixing it to the noticeboards was appropriate. The evidence establishes that the Employer did affix the NERR to three noticeboards. Only one person gave evidence that he was unable to access one of the noticeboards. However, there is no other evidence that the NERR was inaccessible to employees. Consequently, I prefer the evidence of the Applicant. To the extent that one noticeboard may have been inaccessible at one stage, I am satisfied that it was likely due to COVID-19 restrictions.

[28] In relation to the assertion that SMS could have been used, I note that the Applicant, in its final written submissions in reply, relied on the case of AWU v Skout Solutions 7 (‘Skout Solutions’) where the Full Bench said: “A requirement to take all reasonable steps does not extend to all steps that are reasonably open in some literal or theoretical sense.”8 I adopt this reasoning.

NERR Issue – Conclusion

[29] Having considered all of the evidence, and noting the views outlined by the Full Bench in RAFFWU v Woolworths and Skout Solutions, I am satisfied that the Applicant has complied with the obligations as set out in the FW Act and the Regulations with regards to the distribution of the NERR. The Applicant took all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who was to be covered by the Agreement and were employed at the notification time for the Agreement.

Access Issue

Access Issue – legislative requirement

[30] Section 180(2) of the FW Act outlines:

“(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.”

Access Issue – Employer Evidence

[31] In the Form 17 in answer to the question “What steps were taken by the employer to ensure that the relevant employees either: were given a copy of the written text of the agreement and any other material incorporated by reference in the agreement during the access period, or had access to a copy of the above materials throughout the access period?” Ms King declared,

a. 5 January 2021 - The Kable Email was displayed on the Notice Boards providing employees with information about where to locate:

•  hard copies of the Agreement at the Prestons depot;

•  a summary of the Agreement; and

•  the relevant Awards.

b. A copy of the above documents were also sent by email to employees who had provided their email address to Scott’s.

c. Depot Management printed hard copies of the Agreement and placed them next to location where the employees sign in.

d. 5 – 12 January 2021 Depot Management held briefings for Scott’s NSW Drivers regarding the Agreement and relevant awards. Hard copies of the Agreement and Agreement summary were made available during these meetings

[32] In Ms King’s witness statement of 9 March 2021 she further outlined:

“…

26 The TWU has also said that Scott’s did not make copies of the Agreement available to employees covered by the Agreement. Again, I disagree with the TWU about this.

27 As outlined in the Form F17, I am informed by Mr Kable that physical copies of the Agreement were printed and placed in the Prestons depot next to the location where employees sign in. I am informed by Mr Kable that these physical copies remained within the depot for the entire Access Period.

28 Further, Mr Kable advises me that physical copies of the Agreement were also made available at meetings held by management to explain the terms of the Agreement.”

[33] Mr Kable gave the following evidence in relation to the Access Issue:

“…

43. The TWU asserts that Scott’s has not taken reasonable steps to provide employees with a copy of the Agreement during the access period. I disagree. The business does not provide drivers with an email address because they do not need one to perform their job. We obviously have driver phone numbers but these are mainly used by the business to arrange shift times and the like. We have the home address for drivers (on the assumption that they notify us when they move house). However, we would not typically communicate with drivers by post. This would not make sense given that linehaul drivers especially are frequently away from home.

44. Consequently, the most effective way to communicate with drivers is on a noticeboard. Regardless, I think there is benefit – especially when needing to communicate with drivers during bargaining – to obtain drivers’ personal email addresses. This is obviously a voluntary process because we would not compel a driver to provide us with a personal email address. Even if we did compel this there would be no obligation on the driver to check their email because they do not need to look at their email to do their job. In these circumstances, I think sending information directly to those who provided us with an email address (augmented by the information on the noticeboard and there being copies of the Agreement at site) were appropriate measures in the circumstances.

45. I attach a copy of an email exchange I had with a driver during the notice period. You can see that the driver specifically requests that he be added to my email list. A copy of this email is attached to this statement as Annexure GK-8.

46. Separately, I was aware from talking to Mr George (employee bargaining representative) that a lot of information was being shared on the Scott’s NSW Drivers Facebook site about the Agreement (this site is not controlled by the company).

47. Regardless, Mr Waltis acknowledges receiving a copy of the Agreement and was privy to chatter from which it is evident that other employees had been given a copy of the Agreement.

48. I have reviewed the list of email addresses I have for Scott’s drivers to see if I could identify an email address for Bernie Shaw. I could not readily identify an email address for Mr Shaw. However, it may be possible that I do have an email address for Mr Shaw because there are a small number of email addresses that do not identify a driver by name. Regardless, and on the presumption I do not have an email address for Mr Shaw, it is clear to me that the business took sufficient steps to ensure that drivers who had not provided us with an email address were aware of the negotiations and impending vote. Further, Mr Shaw would have been able to access a copy of the Agreement at the depot or he could otherwise have obtained a copy from Mr Waltis.”

Access Issue – TWU Evidence

[34] In the witness statement of Mr Waltis, in relation to the Access issue he outlines,

“…

27. I did receive a copy of the proposed EA via email and I am aware that some other staff members were handed a copy of the EA.

28. The Applicant did conduct some meetings with other employees in regards to the Proposed Agreement on two (2) occasions that was attended by possibly twenty (20) members of staff.”

Access Issue – Employer Submissions

[35] On 9 March 2021, the Employer filed submissions. In relation to the Access Issue they outlined:

“…

24. Further, Scott’s considers that it took all reasonable steps to give the relevant employees the written text of the Agreement.

25. These steps are outlined in question 21 of the Form F17.

26. Specifically, Gavin Kable sent a copy of the Agreement via email to approximately 75% of Scott’s drivers on 5 January 2021. Mr Kable sent the Agreement under cover of an email explaining the purpose of his communication and providing voting instructions (Kable Email). The Kable Email is Annexure C to the Form F17.

27. Mr Kable did not send all drivers the Agreement via email because not all drivers have provided Scott’s with a personal email address. However, the Kable Email was also affixed to the Notice Boards on 5 January 2021. This email can also be observed on a Scott’s noticeboard in Annexure A to the Form F17.

28. Physical copies of the Agreement were also placed in conspicuous locations on 5 January 2021, including next to the employee sign in. These physical copies of the Agreement remained on site during the entirety of the access period as per paragraph [27] of the Witness Statement of Ms King.

29. Additionally, Scott’s depot management held on-site briefings between 5 and 12 January 2021 where hard copies of the Agreement and a summary of the Agreement were distributed and the terms were discussed. Employees were also provided with an opportunity to ask any questions they may have about the terms of the Agreement.

30. On this basis, Scott’s considers that it has taken all reasonable steps to ensure that employees were provided with the relevant materials during the access period.”

[36] On 19 March 2021, the Employer filed submissions in reply. On 26 March 2021 as their final written submissions, the Employer filed an annotated version of these submissions. In relation to the Access Issue they outlined:

“…

1. Scott’s has explained how it took all reasonable steps to give the relevant employees the written text of the Agreement during the access period at paragraphs [24]-[30] of its initial submissions (CB326-327).

2. The TWU accepts that copies of the Agreement were sent to ~75% of the relevant employees via email.8 However, the TWU omits to explain to the FWC how Scott’s made copies of the Agreement were available to other employees who did not provide an email address:

(a) First, Scott’s placed copies of the Agreement at conspicuous locations on 5 January 2021, including next to the employee sign in. The physical copies of the Agreement remained on site during the entirety of the access period.9

(b) Second, Scott’s held six on-site briefings during the Access Period (Briefings). As Mr Kable explains, approximately 10 employees attended each briefing.10 Mr Waltis was not present at any of these meetings.11 Mr Kable was.12 Mr Waltis’ evidence on this issue must be rejected.

CFMEU v Dawsons Maintenance Contractors (2018) 281 IR 124, [48] (AB13): “At the least, taking all reasonable steps to provide this information would require no less than providing employees with a hard copy of the [material], perhaps in their lunchrooms or pinned to noticeboards”

•  The evidence is that:

•  On 5 January 2021, the proposed agreement (and those documents referenced by it) were emailed to those drivers who had provided their personal email address.

•  In addition (and on the same day), hard copies of the agreement (and the summary) were then printed and placed next to the employee’s sign in area.

•  Between 5 – 12 January 2021, hard copies of the agreement (and the summary) were also distributed at six briefing sessions. See:

•  Form F17 at Question 21 (CB282-283).

•  Waltis Statement at [27] (CB380).

•  King Statement at [27] – [28] (CB333).

•  Kable Statement at [44] – [48] (CB393-394).

•  Annexure C (CB71-72). This email (reproduced as a noticeboard notice (CB70)) corroborates the provision by email and by hard copy.”

Access Issue – TWU Submissions

[37] In their submissions filed on 16 March 2021, the TWU submitted:

“…

16. It was a basic requirement of the Act for the Applicant to allow for the Employees to have access to the materials pursuant s180 of the Act.

17. The Applicant has not complied with its obligations towards taking reasonable steps with respect to providing the Employees with a copy of the Proposed Agreement during the access period.

18. The Applicant submits that it issued copies of the proposed Agreement via email and that it held meetings between 5 and 12 January 2021.

19. The TWU acknowledges that the Applicant may have held some meetings, however, there were some members of staff who were on leave at such time the meetings occurred and the meetings were attended by no more than twenty (20) staff. The Applicant itself acknowledges that the operational requirements of the business make it difficult to hold large meetings.

20. Furthermore, the Applicant's representative acknowledged that it did not have email addresses for some thirty-six (36) Employees.

21. The TWU does not know exactly how many Employees were given or were not given a copy of the Proposed Agreement. Nonetheless, it cannot be established that such Employees would have genuinely agreed to the Proposed Agreement.”

[38] The TWU in their final submissions filed on 26 March outlined:

“…

3. Secondly, the Applicant-did not take all reasonable steps to provide the Employees with a copy of the Proposed Agreement pursuant to s180 of the Act.

4. The Respondent relies upon the information that it provided in the Respondents submissions at paragraphs (13-21) as to the issues to be determined.

5. In support of the information mentioned above the Respondent submits the following information.

a) The Commission should consider whether the Respondent had taken all reasonable steps towards providing the Employees with a copy of the Proposed Agreement.

b) Firstly, the Respondent does not accept that ~75% of the Employees were issued with a copy of the Proposed Agreement via email. The evidence is that _the Respondent does not know exactly how many employees were issued a copy of the Proposed Agreement by email or otherwise. The evidence of Mr Kable is that the business does not provide drivers with an email because they do not need one (1) to perform their job. The Respondent acknowledges that the Employees are truck drivers who probably do not require an email address to meet the inherent requirements of performing their role. The evidence of Mr Kable is that the Applicant obviously have driver phone numbers but these are mainly used by the business to arrange shift times. Mr Kable has not provided any evidence that notification was sent via an SMS particularly after Mr Kable became aware that not all of the Employee were receiving the information that was apparently placed around the depot nor were they receiving the information that was being sent via email. The Applicant could have as a reasonable step sent information about the Proposed Agreement via SMS but chose not to.

c) The evidence that has been provided is that the Applicant held some six (6) on site meetings during the access period. Mr Kable has provided evidence that Mr Kable was aware that six small briefing sessions were conducted with the drivers.²¹ The evidence provided by Mr Kable does not provide any evidence of exactly when the small briefing sessions took place nor does the evidence confirm that copies of the Proposed Agreement were provided during the small briefing sessions.

d) The evidence provided by Ms King is that Ms King was informed by Mr Kable that physical copies of the Proposed Agreement were printed and placed around the Prestons Depot. Furthermore, the evidence of Ms King is that Ms King was informed that physical copies of the Proposed Agreement remained within the depot for the entire access period.

e) The evidence provided by Ms King is unreliable as Ms King has no direct or personal knowledge of where, when or how the Proposed Agreement was placed around the Prestons depot. Ms King can only relay what Ms King was told by Mr Kable which is at best very vague information.

f) The evidence provided by Ms King is that Mr Kable advised Ms King that physical copies of the Proposed Agreement were also made available at meetings held by management to explain the terms of the Proposed Agreement. Once again, this evidence cannot be relied upon as Ms King has not provided any evidence of where or when the meetings took place. Ms King has not provided any evidence of attending any of the alleged meetings herself nor has Ms King provided evidence of who was in attendance or what was actually discussed at these meetings.

g) The evidence provided by the Applicant does not support the Applicant's position that the Applicant had taken all reasonable steps to provide the Employees with a copy of the Proposed Agreement during the access period.

h) Not all employees received copies of the Proposed Agreement during the access period. Mr Kable confirmed that Employee Bernie Shaw could not be identified as an Employee who had received a copy of the Proposed Agreement. The evidence is that the Employee Bernie Shaw had to contact the Respondent directly when the vote in regards to the Proposed Agreement was being conducted.

i) The Respondent does not know exactly how many Employees were given copies of the Proposed Agreement during the access period. Therefore, it cannot be established that the Employees would have genuinely agreed to the Proposed Agreement.”

Access Issue – Consideration

[39] Again, the evidence about the Access Issue was limited.

[40] However, I am satisfied that the evidence supports a finding that a written copy of the Agreement was emailed to those employees who had provided their personal email addresses to the Applicant. The Applicant estimated this number to be approximately 75% 9 whilst the Union submitted that the true figure was unclear.10

[41] The evidence further supports a finding that on-site meetings occurred during the access period. The Statement of Mr Waltis contends that this occurred on two occasions and was attended by approximately twenty staff members. 11 The Applicant asserts that six meetings took place and that copies of the Agreement were distributed.12 Further, the Applicant states that Mr Waltis was not present at the meetings, but Mr Kable was.13

[42] The evidence further supports a finding that hard copies of the Agreement were available where staff sign in at the Employer premises.

Access Issue – Conclusion

[43] In the circumstances of this matter, I am satisfied that the provision of the written copy of the Agreement by email (to those employees who provided their personal email addresses), distribution at on-site meetings and distribution at the worksite satisfies the requirement that the employer take all reasonable steps to provide a written copy of the Agreement. Therefore, I am satisfied that s.180(2)(a)(i) of the FW Act was complied with.

Voting Process Issue

Voting Process Issue - legislative requirement

[44] Section 180(3) of the FW Act outlines:

“(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.”

Voting Process Issue – Employer Evidence

[45] Ms King gave the following evidence in relation to the Voting Process Issue:

“…

34. A list was prepared on 4 March 2021 of all of the permanent employees who were absent during the Access Period. This list is attached as Annexure 2 to this statement. Annexure 2 also indicates whether Scott’s had an email address for the employees who were absent because the email address on file were used to communicate with the relevant about the Agreement.

35. This list indicates that five employees were absent during the Access Period. Of this total, Scott’s did not have an email address for one of these employees. This means that only one employee is at risk of not having received the Access Period Information within the Access Period.”

[46] Mr Kable gave the following evidence in relation to the Voting Process Issue:

“…

49. The TWU alleges that it was “unlikely” that Scott’s has taken all reasonable steps to notify each employee of the time, place and method of the vote. I strongly disagree with this. Specifically, I sent an email on 5 January 2021 to drivers notifying them that the vote would commence on 13 January 202115. This email was then pinned to the noticeboards.

50. I respond specifically to paragraph 25 of the Respondent’s Outline of Submissions. This statement is clearly false. The statement is made on the false presumption that the 36 employees who we did not have email addresses for did not see the voting information as contained on the noticeboards.

51. Separately, I agree with the TWU’s conclusion that 88 drivers did not vote. However, I do not accept that this itself demonstrates our failure to comply with our pre-approval requirements. Specifically, voter turnout for the business is historically low when employees are asked to approve enterprise agreements. Specifically, I refer to the ballot result for the Rand Transport (1986) Pty Ltd NSW Drivers (Local and Linehaul) Enterprise Agreement 2018 (Rand Agreement). Rand is a related entity to Scott’s because it is owned by the same company.

52. The Rand Agreement was supported by the TWU at the time. However, notwithstanding union endorsement, and a strong majority vote, only 47 employees out of an eligible 85 employees chose to vote. This demonstrates general voter apathy and disinterest, even in circumstances where the deal offered to drivers is a good one. Attached to my statement as Annexure GK-9 is a copy of the ballot result from the Rand Agreement.”

Voting Process Issue – TWU Evidence

[47] Mr Waltis gave the following evidence about the Voting Process Issue:

“…

30. The email contained instructions that the ballot would commence on 13 January 2021 and would close on the 22 January 2021.

31. The ballot would be conducted electronically I am unaware if the Applicant provided any other instructions in regards to the voting process. However, I received a phone call from TWU member Bernie Shaw who mentioned that he was aware that a vote was going on but that he had not received any instructions in regards to submitting his vote.

32. 1 suggested to Bernie that he should contact Tony Gogivski (Tony) who is the operations manager. Tony instructed Bernie to come into the office and that he would assist Bernie on how to lodge his vote via the office computer.

33. During the period when the employees were able to vote the Applicant issued a message to the employee's instructions on how to vote. I am aware that a number of employees were also told that they would be required to vote by the Applicant's allocators and that they were told that they should vote "yes in support of the EA

…

The TWU did not have any input as to how the vote would be conducted.”

Voting Process Issue – Employer Submissions

[48] On 9 March 2021, the Employer filed submissions. In relation to the Voting Process Issue it contended:

“…

Scott’s also considers that it took all reasonable steps to give the relevant employees the voting instructions and access to the vote.

These steps are outlined in question 20 of the Form F17.

As noted above, the Kable Email also provided the relevant employees with voting instructions. Specifically, the Kable Email notified drivers about the time and place at which the vote would occur and the voting method that was to be used.

Mr Kable then also emailed the relevant employees on 12 January 2021 to remind them that the vote would open the following day. This email contained a link to the voting site as well as specific instructions about how drivers could access the online vote (Voting Instructions).

Mr Kable also affixed the email containing the Voting Instructions to the Notice Boards. Employees were unable to cast their vote until 13 January 2021. The vote subsequently remained open for nine days.

Minor Procedural or Technical Errors

36. As outlined above, Scott’s considers that it took all reasonable steps to meet the pre-approval requirements contained in the Act.

37. However, as outlined in paragraphs [28] to [34] of Witness Statement of Ms King and Annexure 2 to the statement, following the vote for the Agreement, Scott’s identified one permanent employee who:

(a) is covered by the Agreement;

(b) did not provide their email to Scott’s (which meant they did not receive email correspondence from Scott’s relating to the Agreement); and

(c) was not present on site during the access period (which meant they could not have reviewed the physical material posted on the noticeboards).

38. Consequently, the Commissioner may form a view that Scott’s failed to meet its obligations under section 180(2) and (3) with respect to this employee, despite the steps outlined in questions 20 and 21 of the Form 17.

39. Should the Commissioner hold this concern, Scott’s requests that the Commissioner exercise his discretion pursuant to section 188(2) of the Act. Specifically, Scott’s submits that it is open to the Commissioner to find that the Agreement was genuinely agreed by the employees covered by the Agreement because the Commissioner can be satisfied that:

(a) the Agreement would have been genuinely agreed to within the meaning of subsection 188(1) but for minor procedural or technical errors made in relation to the requirements contained in subsections 180(2) and (3) of the Act; and

(b) the employees covered by the Agreement were not likely to have been disadvantaged by the errors, in relation to the requirements outlined in subsections 180(2) and (3) of the Act.

40. Scott’s considers that the employees covered by the Agreement were not likely to have been disadvantaged by its errors in relation to the requirements outlined in subsections 180(2) and (3) of the Act because the Agreement was made by a margin of 31 votes. This means that “no” votes from this employee (in the event that he did not vote for the Agreement due to the failure to provide the relevant information) could not have altered the outcome of the Agreement vote.

41. Consequently, the Agreement would have been made on 22 January 2021 irrespective of whether this employee had the relevant information to enable him to vote.

42. Scott’s therefore asks the Commissioner to find that it has satisfied the agreement was genuinely agreed in accordance with section 188(2) regardless of its inadvertent mistake with respect to these three employees.”

[49] On 19 March 2021, the Employer filed submissions in reply. On 26 March 2021 the Employer filed an annotated version of these submissions as their final written submissions. In relation to the Voting Process Issue it submitted (footnotes omitted):

“…

1. Scott’s has explained how it took all reasonable steps to give the relevant employees the voting instructions and access to the vote at paragraphs [31]-[35] of its initial submissions (CB327).

2. The TWU accepts that voting instructions and access to the vote was sent via email to ~75% of the relevant employees. Yet again, the TWU omits to explain to the FWC that:

(a) Scott’s also provided voting information in the same locations as the NERR; and

(b) Scott’s also detailed this information at the six Briefings.

3. No evidence is offered for the allegation at [24]-[25] of the TWU’s submission (CB363). It cannot be tested, let alone accepted. It is wrong. The evidence is that timetable.

•  On 5 January 2021, drivers were notified of the commencement of the access period, and that voting would commence on 13 January 2021. This email was then placed on noticeboards.

•  Between 5 – 12 January 2021, drivers were notified of the voting process during the six briefings.

•  On 12 January 2021, drivers were then provided a link to the voting website, with further instructions. See:

•  Form F17 at Question 20 (CB282).

•  24 December 2020 email (Annexure B) (CB66-69).

•  5 January 2021 email (Annexure C) (CB71-73).

•  12 January 2012 email (Annexure D) (CB262-263).

•  Photos of the 5 January 2021 email at Annexure A (CB63, 65).

•  Kable Statement at [49]-[52] (CB394).

•  Waltis Statement at [29]-[30] (CB381).”

Voting Process Issue – TWU Submissions

[50] In the written submissions of the TWU filed 16 March 2021, the Union submitted:

“…

24. The TWU is aware that some eighty-eight (88) employees never voted during the voting process.

25. The TWU is also aware that thirty-six (36) employees were not provided with the opportunity to participate in the voting process.

26. It is possible that each of these employees were never given notice of the voting process pursuant to s180(3) of the Act.

27. It is submitted based on these numbers alone that it was unlikely that the Applicant had taken all reasonable steps to notify each Employee details of the vote pursuant to s180(3)(a)(b) of the Act.

28. There were other reasonable steps available to the Applicant to advise the Employees of the time and place at which the vote would occur and were not taken.

29. Further there was at least five (5) Employees absent during the access period where one (1) of the five (5) Employees did not receive notification on how or where to vote and there was no provision for the Employee in question to be able to cast a vote.

30. There was an incident where another employee was unlikely to have received notification on how and or where the employee could cast his vote and only became aware that the employee was eligible to vote while the actual vote was in progress.16

31. The Applicant instructed the employee in question to attend the office where a representative of the Applicant would assist the employee on how to vote via the · office computer.

32. It is unlikely that the Applicant had complied with either s180(2) of Act or a180(3) of the Act in this instance.

33. According to the Form F17 Statutory Declaration of Ms Fiona King (Ms King) at point six (6) it is stated that sixty-six (66) employees covered by the agreement were casual employees.

34. On 4 March 2021, the TWU became aware that a number of casual employees namely twenty-three (23) had taken part in the ballot sixteen (16) of which may not have been employed during the access period pursuant to s180 of the Act.

35. The Applicant contends that it is unsure of how many of the sixteen (16) may have cast votes that were invalid.

36. The Applicant notes that it became aware that nine (9) voters were in favour of the Proposed Agreement and that seven (7) votes were against the Proposed Agreement

37. The TWU acknowledges that the somewhat invalid votes may have since been removed from the official totals of the ballot. Regardless of how the invalid voters may have voted and notwithstanding the outcome of the ballot the Applicant cannot clearly establish that it complied with the obligations of s180(3) of the Act.”

[51] In their final written submissions dated 26 March 2021, in relation to the Voting Process Issue the TWU submitted that:

“…

18. Thirdly, the Applicant did not take all reasonable steps to provide the Employees with details of the voting process pursuant to s180(3) of the Act.

19. The Respondent relies upon the information that it provided in the Respondents submissions at paragraphs (22-37) as to the issues to be determined.

20. In support of the information mentioned above the Respondent submits the following information.

a) The Commission should consider whether the Respondent had taken all reasonable steps towards providing the Employees with notification of the voting process.

b) The Respondent does not accept that 75% of the Employees were issued with details of the proposed vote via email. The evidence is that the Respondent does not know exactly how many employees were issued details in regards to the ballot.

c) The Respondent relies on the results of the ballot in that 152 were eligible to vote 55 voted yes to support the Proposed Agreement and 24 voted against the Proposed Agreement. The total number of valid votes was 79 with 1 invalid vote meaning that 72 Employees never voted during the ballot. The Respondent initially stated that eighty-eight (88) Employees never voted but now confirms that it was seventy-two (72) Employees that never voted as per the updated ballot results.

d) The Respondent relies on the evidence it has submitted in that thirty-six (36) Employees were not provided with the opportunity to vote. The thirty-six (36) in question did not receive emails regarding the voting process. The evidence is that at least one (1) Employee contacted the Respondent directly about the vote after being instructed to do so by TWU delegate Mr Waltis. The Respondent does not know exactly how many Employees were not notified about the ballot

e) The Applicant contends that the Applicant had taken all reasonable steps to provide details of the vote in the same way the Applicant provided details of the NERR and how it held meetings. The Respondent has already addressed the issues with respect to the provision of issuing the NERR and the onsite meetings throughout these submissions.

f) The evidence of Mr Kable is that Mr Kable sent an email on 5 January 2021 notifying drivers about the vote. Mr Kable also submits that a copy of the email was pinned to the noticeboards. Mr Kable submits that the_ Respondents presumption is that some thirty-six (36) Employees never voted as the Applicant did not have email addresses for the Employees nor did the Employees see the noticeboards.”

Voting Process Issue - Consideration

[52] More than half of the employees to be covered by the Agreement did not vote. However, “decisions are made by those who show up.” 14

[53] Voter apathy is not uncommon in agreement making. Consequently, I do not accept the submission of the TWU that in circumstances where 72 of 152 eligible voters did not vote, it is unlikely that the Applicant took all reasonable steps to provide employees with the details of the voting process. 15 The Union submitted that employees should have been provided with the voting details via SMS.16 The Applicant contends that it took the same steps with regards to advising of the details of the voting process as it did with distribution of the written Agreement and that these steps were reasonable.17

[54] In the present matter the evidence supports a finding that Scott’s took all reasonable steps to notify the relevant employees of details about the vote. The fact that many employees did not vote, is a matter for them. There is simply not credible evidence that employees did not know the vote was on. The TWU could have, but did not, bring before the Commission employees/warm bodies asserting that they were not advised of the vote. The TWU bases its whole case on this point, on an inference that it asks the Commission to draw. I decline to draw that inference.

[55] However, there was one employee who was not notified about the vote. In this matter I am satisfied that this issue was a procedural or minor technical issue.

Voting Process Issue - Conclusion

[56] Scott’s took all reasonable steps to notify the relevant employees of details about the vote.

Explanation Issue

Explanation Issue – legislative requirement

[57] Section 180(5) provides that,

“The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.”

(my emphasis)

Explanation Issue – Employer Evidence

[58] In the Form 17 Ms King, in relation to s.180(5) of the FW Act, in answer to the question “What steps were taken by the employer to explain the terms of the agreement, what was explained and how was the effect of those terms explained to the relevant employees?”, declared,

“…

•  24 December 2020 An email was sent to employees providing information about the proposed schedule of payments for Scott’s NSW Drivers under the Agreement. A copy of the email dated 24 December 2020 and attachment are attached at Annexure B.

•  5 January 2021 An email was sent to employees attaching a copy of the Agreement, relevant awards and payment summary schedule. A copy of the email was printed and displayed on the Notice Boards.

•  5 – 20 January 2021 Scott’s Depot Management team held briefings regarding:

•  the terms of the Agreement; and

•  the effect of the terms of the Agreement.

The briefings provided an opportunity for employees to ask any questions they had about the Agreement. The briefings were held between these days to ensure that employees had the opportunity to attend. Key terms of the Agreement. Information about the proposed schedule of payments for Scott’s NSW Drivers under the Agreement contained at Annexure B.

•  5 – 12 January 2021. Text of the Agreement made available during the access period. Hard copies of the Agreement were provided next to the employee sign in. Employees were also sent an electronic copy of the Agreement.

•  12 January 2021. Agreement payment schedule summary provided to Scott’s NSW Drivers. An email was sent to employees on 12 January 2021 attaching updated proposed payment schedules for local and linehaul drivers. A copy of the email and attachment is contained at Annexure E.”

[59] In the witness statement of Mr Kable dated 19 March, among other matters Mr Kable states:

“…

53 The TWU asserts that it was “unlikely” that Scott’s had explained the terms of the proposed Agreement to employees. I disagree with this assertion and detail the steps below that the business took to explain the terms of the Agreement as appropriate to the circumstances.

54 Annexure B of the F17 was an email from Drew Richardson dated 24 December 2020 to Scott’s employees who had provided us with an email list. You can’t see the email addresses because Mr Richardson would have used the blind copy function. This is consistent with my practice when communicating with drivers. I was also copied into this email.

55 Mr Richardson’s 24 December 2020 email enclosed a document called ‘Scott’s NSW Drivers Enterprise Agreement 2020 – Proposed Payment Schedule’. A copy of this document is attached as Annexure GK-10 to this witness statement. The purpose of this document was to clarify the pay increases that drivers would receive if the Agreement was approved. Further, Scott’s had applied some pay increases to drivers in good faith notwithstanding that the current enterprise agreement had passed its nominal expiry date. Annexure GK-10 was provided to the drivers to explain these issues.

56 Mr Richardson’s 24 December 2020 email and Annexure GK-10 were posted on the noticeboard at the Prestons site.

57 I don’t accept that our decision to issue this email on 24 December 2020 was ‘incomprehensible’. The email was sent on 24 December 2020 because negotiations were finalised in late-December 2020 and we wanted to get the Agreement to a vote as soon as possible so we could get pay increases to drivers. The business also continues to operate during this period. The alternative would be delaying the whole process to the new year, which would not have been well-received by the employee bargaining representatives who wanted to start the access period before the New Year.

58 I refer to Annexure C of the F17. I note my email concludes with an offer to drivers to contact me if they require further information.

59 I disagree with paragraph 28 of the Waltis Statement. I am aware that six small briefing sessions were conducted with drivers. I personally conducted two of these briefing sessions. Doug Sutton conducted a further two sessions and so did Drew Richardson. I spoke about key elements of the Agreement along with details of how to vote. There were approximately 10 people at the sessions I conducted. A TWU Official was present at one of these sessions and despite not receiving a right of entry notice, I allowed him to talk to drivers freely. There were also approximately 10 people at Doug and Drew’s respective sessions. I know this because I spoke with Drew about how many people we should have at these sessions.

60 These briefing sessions involved gathering drivers up at a shift change or changeover, which is the most effective time for face-to-face communication. They were optional for drivers to attend if they wanted to know more information about the Agreement than what we had already told them.

61 Drivers who attended these sessions were given further information about the applicable pay rates should the Agreement be approved. A copy of the local driver and linehaul driver information is attached to my statement as Annexure GK-11. These documents were also attached to my 12 January 2021 email (see Annexure E of the F17). They were also placed on at least one noticeboard, being a large one where drivers congregate before commencing duties. I can’t recall if they were placed on the other two.

62 I note Mr Smallwood was on leave during the ballot process at this time and Mr Waltis did not attend a briefing session despite being actively involved in the negotiations. It is unclear how they can give evidence about what happened at these briefing sessions, including commenting on the number of sessions and the number of attendees, if they were not there.

63 In my view, these steps were appropriate considering the Agreement was largely a rollover from the 2014 Agreement. The Agreement did not seek to take away a number of key entitlements from the 2014 Agreement as has been asserted. The major difference between the 2014 Agreement and the Agreement pertains to wage rates.

64 I refer to paragraph 50 of the Respondent’s Outline of Submissions. That statement is reliant upon paragraph 18 of the Waltis Statement. However, paragraph 18 of the Waltis Statement is misconceived given that we did not take away anything with respect to casual loading. Relevantly, clauses 3.2.3(i) and (ii) of the 2014 Agreement state:

Casual drivers – local employees shall be paid 1/38th of the rate of pay for their classification, plus 15% loading.

Casual drivers – linehaul employees shall be paid the cents per kilometre rate plus a 15% casual loading with a minimum payment per day for 500 km.

65 These provisions are identical in the Agreement. This is consistent with the Agreement being more of a rollover and administrative tidy-up rather than a wholesale renegotiation of terms and conditions.

66 In my view, the steps we took to explain the terms of the Agreement were appropriate to our workforce. Based on my involvement in the negotiations, the key issue was about pay rates and this is why our explanation focused very much on pay rates in the context of a rollover agreement.”

Explanation Issue – TWU Evidence

[60] In the statement on Mr Waltis, in relation to the Explanation Issue he outlined:

“…

16. The Parties could not reach agreement on a number of matters including that the Applicant was only willing to pay casual employees fifteen (15) percent loading and that long distance employees would only be paid the kilometre provided under the Long Distance Award (LDA) and 0.2 cents extra per kilometre.

17. The Applicant was seeking to register the EA for a period of four (4) years where our position was the EA should only run for a period of three (3) years.

18. The Applicant also proposed to pay local drivers (not long-distance drivers) a flat hourly rate and when on holidays the rates of pay would reduce from thirty-four ($34.00) per hour to twenty-six ($26.00) per hour.

19. The Parties could not reach agreement on these and other issues where on 30 December 2020. I received an email from Gavin providing notification that the Applicant would be seeking to put the proposed EA out to a vote.

….

35. The actual EA that was put out to a vote did not contain a number of clauses that had originally be proposed by the Applicant.

36. For instance, Clause 4 of the EA refers at 4.1.1 that grades and classifications listed in the agreement from the first full pay period following coming into operation pursuant to Clause 1.3.9.

37. The EA that was filed with the FWC does not include any information in relation to Clause 1.3.9 as there is no such clause contained in the EA.

38. The EA provides that a Grade 6 employee is paid 0.40c per kilometre instead of 0.45 cents per km which is available under the Award. The EA provides that a Grade 6 employee is classified by weight in that the vehicle can carry 54.9 tonne to 70 tonnes is actually a B-Double driver (two trailers and a prime mover) which is a Grade 8 under the award.”

Explanation Issue – Employer Submissions

[61] On 19 March 2021, the Employer filed submissions in reply. On 26 March the Employer filed final written submissions, these were an annotated version of their reply submissions. In relation to the Explanation Issue the Employer submitted:

“…

1. Scott’s has explained how it took all reasonable steps to give the relevant employees the voting instructions and access to the vote at [56]-[71] of Gavin Kable’s witness statement dated 19 March 2021. To summarise:

(a) Scott’s conducted six separate Briefings:

(b) Scott’s sent the 24 December 2020 email enclosing the proposed payment schedule for the Agreement (and other enclosures);

(c) Scott’s sent a further email on 5 January 2021 which, amongst other things, attached a copy of the Agreement and the incorporated Awards and invited drivers to get in contact if they had any questions; and

Scott’s disseminated a handout containing information about the applicable pay rates for drivers should the Agreement be approved was distributed to drivers who attended the small group sessions.

•  As mentioned, all of this information was disseminated by email, placed on the three notice boards ordinarily used to communicate, and also distributed at the Briefings.

•  The changes to the Agreement were explained through these mechanisms. Contrary to the assertion made, the Agreement did not remove a number of key entitlements from employees. Rather, the Agreement was a rollover of the previous Agreement which only saw changes to:

•  wage rates (which were increased);

•  Agreement coverage, to remove warehouse, workshop and clerical coverage;

•  clause 8 (to remove duplicated clauses in relation to consultation and flexibility) (clauses confirming union facilities and delegate training were also included); and

•  legal compliance changes in order to minimise the likelihood of having to give undertakings through the approval process, such as including a new clause 5.6.1(iv) to clarify that clause 5.6.1 operates in a manner consistent with the Act. Such changes were necessary to ensure that the enterprise agreement did not mistakenly interfere with NES entitlements: see sections 55(1) and (6).

•  Sections 188(1) and 180(5) require the Commission to be satisfied that: “The employer [has taken] all reasonable steps to ensure that:

•  the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

•  the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.”

•  Re McDonalds Australia (2010) 196 IR 155, [35] (AB17): Explanations can be assisted by summary sheets, briefings, the provision of copies of the proposed agreement, the answering of questions, and the like.

•  AWU v Skout Solutions [2021] FWCFB 119, [65]-[66] (AB5): The explanation required is informed by what has been in place previously. Explanations can be straightforward where (as here) it is a rollover, or where the employees are already familiar with their general terms and conditions.

•  NTEIU v UNSW (2011) 210 IR 244, [32]-[33] (AB15): A “practical” approach is required. What is practical will depend on the circumstances of the employees (section 180(5)(b)).

As to Scott’s employees’ circumstances:

•  They are truck drivers, and by definition, travelling for their job. They are thus concerned with conditions that most affect them (pay and penalties) rather than ancillary terms that do not affect the day to day performance of their job.

•  None of them identify as non-English speakers, identify as indigenous, or identify as disabled: Form F17 at Question 24 (CB286-286).

•  Therefore, they can all be taken to be able to read the proposed agreement (if that was their wish).

•  They were asked to approve what was essentially a rollover agreement. They can be taken to be already familiar with the general workings of their terms and conditions.

•  The evidence is that:

•  on 24 December 2020, the proposed agreement was explained. A summary schedule was prepared and emailed to those who provided a personal email address.

•  On 5 January 2021, the proposed agreement was emailed to drivers (together with the summary and the awards that were cross referenced). This email was also placed on noticeboards. Hard copies of the agreement (and the summary) were then printed and placed next to the employee’s sign in area.

•  Between 5 – 12 January 2021, six briefing sessions were organised at shift changeovers. In these briefings, the new conditions were explained, and the agreement and summary were redistributed. Employees asked questions, which were answered.

•  On 12 January 2021, Scott’s disseminated another email which answered common questions raised by employees during the access period. A second summary document was prepared as a means to explain the answers to these questions…

•  Form F17 at Question 22 (CB283-284).

•  24 December 2020 email (Annexure B) (CB66-69).

•  5 January 2021 email (Annexure C) (CB71-75).

•  12 January 2021 email (Annexure E) (CB268-270).

•  Kable Statement at [61]-[65] (CB395-396).

•  King Statement at [28] (CB350).

•  Waltis Statement at [28] (CB380). Although note that Waltis did not attend any of these meetings and cannot give evidence of who (or how many drivers) attended.”

Explanation Issue – TWU Submissions

[62] In their submission filed on 16 March 2021 the TWU submits that:

“…

50. The Proposed Agreement seeks to take away a number of key entitlements that would require explanation of and response to any questions regarding the effects of the terms of the Proposed Agreement.

51. The Applicant has not provided evidence to support that it had taken all reasonable steps to ensure that it provided a sufficient enough explanation to the extent that the Employees were in an informed position to understand what they were being asked to agree to.

52. The requirement is not that each term of a Proposed Agreement need be explained however, the Applicants was required to take reasonable steps to ensure that the Employees were able understand the terms and effects of the Proposed Agreement t.

53. The Applicant submitted the Proposed Agreement for approval containing terms that could not be explained as they were incomplete.

54. The Applicant cannot establish that it had taken all reasonable steps to establish that the Employees would have genuinely agreed to the Proposed Agreement when considering that the Proposed Agreement contained terms without any information.

55. Based on the facts it is unlikely that the Applicant had taken all reasonable steps to explain the terms conditions and effects of the Proposed Agreement pursuant to s180(5) of the Act.”

[63] In their final written submission filed on 26 March 2021, the TWU contends:

“…

23. Fourthly, the Applicant did not take all reasonable steps to explain the terms of the Proposed Agreement pursuant to s180(5)(6) of the Act.33

24. The Respondent relies upon the information that it provided in the Respondents submissions at paragraphs (38-55) as to the issues to be determined.

25. In support of the information mentioned above the Respondent submits the following information.

a) The Commission should consider whether the Respondent had taken all reasonable steps towards Explaining the terms of the Agreement.

b) The evidence of Mr Kable was that on 24 December 2020, colleague Mr Drew Richardson issued an email to Employees containing details of the Proposed Agreement.34 Mr Kable further provides that a copy of the email that was issued on Christmas Eve was posted on the noticeboards. Once again the Respondent has addressed the issues with respect to emails being sent by the Applicant and the noticeboards. Mr Kable does not provide ·evidence as to who posted the Christmas Eve email on the noticeboards.

c) The Respondent rejects that negotiations were finalised in late December 2020; the Respondent filed a s240 application on Christmas Eve in an effort to stop the ballot going ahead due to the fact amongst other things that negotiations were not finalised.

d) Mr Kable submits that the terms of the agreement and how to vote were discussed at six (6) small briefings. The Respondent has already addressed these issues throughout these respectful submissions. Mr Kable further submits that two (2) colleagues of Mr Kable's Doug Sutton and Drew Richardson also conducted similar briefing sessions. Mr Kable submits that there were ten (10) employees in attendance at each of the briefings conducted by Mr Kable's colleagues. Mr Kable contends that he knows this because Mr Kable spoke about this with Drew.

e) The Respondent rejects Mr Kable's evidence as Mr Kable was not present at the briefings conducted by his colleagues. Mr Kable only spoke to Doug and not Drew about the briefings and neither of Mr Kable's colleagues have provided evidence as part of these proceedings.

f) Mr Kable provides evidence that the key issues in regard to the Proposed Agreement that were discussed with the Employees was in relation to pay rates. The Applicant nor Mr Kable have provided evidence that the Applicant discussed other key issues of the Proposed Agreement for the purpose of the National Employment Standards (NES) such· as the definition of a shift worker, compassionate leave along with termination of employment and withholding monies (NES issues).

g) The Applicant was obligated to ensure that all Employees eligible to vote were provided with a reasonable opportunity to have the Proposed Agreement explained to them in an appropriate manner, it did not. The Applicant was obligated to explain to the Employees the terms of the Proposed Agreement and the effects that the terms of the· Proposed Agreement would have on their employment. The Applicant did not provide any correspondence or discuss the effects that the terms of the Proposed Agreement would have on the Employee's employment in regard to the NES issues.

h) The evidence provided by Ms King does little to support that the Applicant had explained the terms of the Agreement as Ms King has no personal knowledge of whether the terms of the Proposed Agreement were discussed with the Employees. Ms King has not provided any evidence that the NES issues were ever discussed with the Employees nor has Ms King provided details of any correspondence in regards to the NES issues being provided to the Employees.

26. The Commission raised some concerns in regards to the NES issues that would go against having the Proposed Agreement approved.

27. The Applicant contends that the Proposed Agreement did not seek to take away any key entitlements as the terms of the Proposed Agreement were a rollover from a previous agreement.

28. The Respondent submits regardless of whether or not the Applicant was seeking to rollover the terms of a previous agreement the terms of the Proposed Agreement infringed on the NES and required further explanation by way of an undertaking.

29. The Applicant has since provided a response to the concerns held by the Commission by way of providing an undertaking however, the Applicant would not have been in a reasonable position to have explained the NES issues at such time that it would have been able to communicate this with the Employees. In fact, there is no evidence to establish that the Applicant ever explained the effects that the Proposed Agreement would have had on the Employees employment in regards to the NES issues.

30. The evidence contained in the undertaking does change what was initially contained in the Proposed Agreement. The Applicant would not have had the opportunity to discuss the effects of the changes contained in the undertaking to the Employees.

31. Based on the facts the Applicant did not take all reasonable steps towards explaining the terms of the Proposed Agreement and the effects of those terms with the Employees.

32. The evidence contained in the undertaking does change what was initially contained in the Proposed Agreement. The Applicant would not have had the opportunity to discuss the effects of the changes contained in the undertaking to the Employees.

33. Based on the facts the Applicant did not take all reasonable steps towards explaining the terms of the Proposed Agreement and the effects of those terms with the Employees.”

Explanation Issue - Consideration

[64] At the time of lodgement, other than the simple assertion that Scott’s Depot Management team “held briefings regarding the terms of the Agreement and the effect of the terms of the Agreement.” and that a document summarising the changes to wages was provided to employees, no other information was provided about what was actually explained to employees. Self-serving statements by an employer about compliance are not sufficient to discharge the proof required in relation to s.180(5) of the FW Act.

[65] I accept that the Agreement was in large part a “roll-over” agreement. I accept that employees were likely most interested in the new proposed rates of pay. However, neither of those facts is determinative of the obligation to take all reasonable steps to explain the terms of the Agreement and the effect of those terms. An employer should not assume that employees are disinterested in a more fulsome explanation of the effect of the agreement other than answering “how much am I going to get paid?”

[66] Having regard to the decision of the Federal Court of Australia (Flick J) in Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd 18 compliance with s.180(5) of the FW Act in an essential pre-approval requirement. His Honour held that,

“[108] The response provided to the Commission in para 2.6 of the F17 Statutory Declaration was misleading to the extent that it asserted on behalf of One Key Workforce that the “terms of the Agreement and the effect of the terms were explained to the relevant employees” by means of either the 25 August 2015 email or during the “telephone conversations”.

[109] Such reasons as were provided by the Commissioner at para [9] of his reasons for decision expose jurisdictional error. Little, if any, consideration was given to what were the “steps” in fact taken by the employer or the adequacy of those steps. Such consideration as was given was more directed to the subject-matter of the information communicated rather than to the content of the information communicated or the effectiveness of the communication of that information or (for that matter) what was not communicated.

[110] Separate from that source of jurisdictional error is the further conclusion that there must in fact be compliance with s 180(5) before the power of the Commission to “approve” the agreement arises. Although the Commission must form a state of “satisfaction” for the purposes of s 188(a)(i) of the Fair Work Act as to whether an employer has “complied with” s 180(5), its statement of having reached that state of “satisfaction” cannot transform a manifestly inadequate explanation process into one which complies with s 180(5). That factual inquiry, on this alternative basis, remains a matter that this Court can examine.

[111] On this alternative basis, it is further concluded that the approval process entrusted to the Commission miscarried.”

[67] An appeal against the decision of Flick J was dismissed by the Full Federal Court of Australia (Bromberg, Katzman and O’Callaghan JJ) in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union. 19 The Full Court observed that,

“[111] The only material before the Commission on compliance with s 180(5) was contained in Ms Ind’s statutory declaration. Although the statutory declaration was silent as to the content of the explanation or, indeed, as to the substance of the communications, OKW submitted that the declaration itself was some evidence upon which the Commission could form the requisite state of satisfaction. That may be so, but it was by no means enough to enable the Commission to lawfully reach that 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] HCA 40; (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?

[117] As there was no evidence of these matters before the Commission, it necessarily follows that the Commission purported to be satisfied that OKW’s obligations under s 180(5) had been discharged without taking those matters into account. That was a jurisdictional error because the Commission did not have authority to make the decision unless its satisfaction had been informed by them. As is often the case, there are several ways of describing the error. It could be characterised as a misconception as to what the exercise of the statutory power entails or an error “as to an important attribute of the decision to be made”: Graham at [68]. Equally it could be seen as a misunderstanding on the part of the Commission of the nature of the opinion it was required to form: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ). Had the Commissioner applied his mind to the question of what the putative explanation entailed, he would inevitably have inquired into its content and terms.”

[68] One Key mandates the Commission to focus its enquiry on the steps actually taken to comply s.180(5) and to consider whether:

a) the steps taken were reasonable in the circumstances; and

b) these were all the reasonable steps that should have been taken in the circumstances. 20

[69] The task before the Commission “requires attention to the content of the explanation given.” 21

[70] If the explanation is in writing the task of assessing the reasonableness of the explanation is relatively easy. If it was not in writing (as in the present case) then it is vitally necessary to understand what words were spoken.

[71] The obligation imposed on employers by s.180(5) of the FW Act is of critical importance. It goes to the integrity of the understanding of employees, their vote and the making of the agreement.

[72] In BGC Contracting Pty Ltd 22 Deputy President Gostencnik was concerned (amongst other things) with a replacement enterprise agreement that, unlike the predecessor agreement, incorporated the Black Coal Award. He held, (footnotes omitted)

“[86] I accept BGC’s contentions that it should not be required to overcome a “higher than usual bar” in respect of the s.180(5) obligation. But s.180(5) is concerned with the taking of all reasonable steps to explain. How many steps and the content of those steps will necessarily depend on the circumstances. Some employers may, by reasons of the prevailing circumstances, need to take more or fewer steps than other employers with different agreements facing different circumstances. The steps which may in a given case be required by “all reasonable steps” is be assessed by reference to the circumstances of the particular case.

[87] I also 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 vis-à-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.

[88] The relevant employees to be covered by the Agreement were at the relevant time, subject to the application of existing enterprise agreements. Insofar as the terms of the Agreement would have had any relevant effect on existing terms and conditions, it was to displace the application of the terms of the existing agreements. That effect was explained to those employees in considerable detail, in particular as set out in the comparative table.

….

[93] With the exception of the terms of the Coal Award incorporated in the Agreement by Schedule A thereof, I would otherwise be satisfied that BGC took all reasonable steps to explain the terms of the Agreement and their effect to the relevant employees. In my opinion, BGC did this through a combination of communications with relevant employees. The evidence is that it did so during return to site meetings, pre-shift meetings and consultative committee meetings. It did so on an ad hoc basis through discussions with individual employees. It did so through a series of FAQ documents. It also did so by providing to employees the Final Information Pack. This included detailed tables comparing the terms of the Agreement and the 2012 Enterprise Agreements, the Reference Document, and information about the Preserved Conditions Contracts.

[94] Turning then to the issue of the explanation of the incorporated terms of the Coal Award. BGC readily conceded that it did not initiate or publish any explanation about the Agreement as it would apply to employees performing work in black coal mining. It is uncontroversial that no relevant employee was working in black coal mining at the time of the explanations and at the time that employees voted to approve the Agreement. There is also no evidence that the relevant employees had any particular or relevant experience in black coal mining. The distinction BGC sought to make between One Key Workforce (No 1) and the circumstances applicable here, by pointing to the differing “effect” vis-à-vis the reference or existing industrial instruments of the impugned agreement in One Key Workforce (No 1) does not assist it. It was required to take all reasonable steps to explain the effect of the incorporated provisions of the Coal Award, but it took no steps to do so.

[95] BGC contends that as there were no employees employed by it at the relevant time engaged in the black coal mining industry it was reasonable in the circumstances to make available an opportunity for employees to ask questions of management about all matters concerning the Agreement including the terms and effect of those terms as they would apply to employees who might work in the coal mining sector in the future.  BGC did explain to employees that it was seeking an Agreement in order that it may remain competitive in the market and to win new work including in coal mining.

[96] Whether the steps taken by an employer to explain the terms of an agreement and the effect of those terms to relevant employees were reasonable steps or were all reasonable steps is, as I have already indicated, to be assessed in the circumstances faced by the employer. Whilst the fact that there were no relevant employees employed by BGC at the relevant time working in black coal mining is a relevant circumstance, the absence of such an employee does not relieve the employer of the obligation to explain to the relevant employees the terms of the agreement and their effect. This is so even if those terms will have no immediate effect upon the relevant employees. Were it otherwise, an employer would only have an obligation to explain the terms of the agreement and their effect to employees insofar as those terms have any application to the relevant employees who are asked to vote to approve the agreement.

[97] Section 180(5) places an obligation on an employer to take all reasonable steps to explain the terms of an agreement and the effect of those terms to relevant employees. It does not delineate between those terms that may have effect on relevant employees and those terms which will have no effect on relevant employees. As I have already noted, the distinction between the effect of the impugned agreement in One Key Workforce (No 1) and this Agreement sought to be made by BGC does not assist it. The explanation given by an employer is one of the vehicles through which an employee becomes informed about the terms of the agreement and is able to then give informed consent, or to use the statutory phrase, to genuinely agree to the agreement. An employee voting to approve the agreement is not asked to vote to approve only those terms and conditions of an agreement which will have application to that employee. The employee and indeed all employees who will be covered by the agreement are asked to vote for or against the totality of the agreement not just aspects of it. It is for this reason that an employer is obliged by s.180(5) to take all reasonable steps to explain the terms of the whole agreement and the effect of those terms to relevant employees.

[98] The view I have expressed above is reinforced by the Full Court’s judgment in One Key Workforce (No 2).

[99] In this case, it is clear that apart from making available the opportunity at various fora to relevant employees to ask questions, BGC took no other material step to explain to relevant employees the terms of the Coal Award which are incorporated in the Agreement by Schedule A or the effect of those terms. The incorporated terms were not trifling, insignificant, or inconsequential so that no or minimal explanation need have been given. These were substantive terms. That the employees were not working in, nor had experience in, black coal mining, meant that a more not less comprehensive, explanation was warranted in the circumstances in order that informed consent might be given. The employer was required to take all reasonable steps to explain these terms and their effect and it did not do so. It took no step. In these circumstances I am not satisfied that the employer has complied with its obligation under s.180(5) of the Act to explain the terms of the Coal Award that are incorporated in the Agreement by Schedule A or the effect of those terms to relevant employees.”

[73] That is to say, the non-explanation of the incorporation of the Coal Award (even when voting employees were not covered by it), resulted in the non-approval of the agreement. In this matter it is relevant context that the Agreement is largely a roll-over agreement with increased rates of pay.

[74] I accept that the meetings and emails in December and January 2021 were all reasonable steps. However, that is not the end of the matter.

[75] Ms King says,

“I personally conducted two of these briefing sessions. Doug Sutton conducted a further two sessions and so did Drew Richardson. I spoke about key elements of the Agreement along with details of how to vote.”

[76] However, there is no evidence before me (other than in relation to the pay rates) about what explanation was given to employees about the effect of the terms of the Agreement. It is still unknown what was “the content of the explanation given”. 23 The Applicant has had every opportunity to put on evidence about what was actually said at the meetings it conducted, but it has not.

[77] For example, one clause that is different as between the 2014 Agreement and the proposed agreement is the clause about the commencement and operation of the proposed agreement. There is no evidence before me of what was explained to employees in relation to this clause. A new nominal expiry date (NED) of 14 July 2021 was inserted. This is not an inconsequential change. The effect of a NED is that it makes “unprotected” any industrial action engaged in during the life of the Agreement (see ss. 408, 409 of the FW Act). Industrial action that is not protected industrial action can be the subject of a stop order by the Commission (see s.418 of the FW Act). There is no evidence that this was explained to the employees. This is not about requiring a system of perfection. This is a substantive term in the proposed agreement that required a proper explanation. It would have been reasonable to do so. An omission to explain or provide evidence of what was explained is of “particular significance in circumstances where there were material differences between” the old and new agreement: see Construction, Forestry, Maritime, Mining and Energy Union v McNab Constructions Pty Ltd. 24 The failure to explain the effect of this clause means that Scott’s did not “take all reasonable steps” as required by s.180(5) of the FW Act.

[78] Having compared the Agreement to the 2014 Agreement I also note that:

a) Clause 4.2 provides for changes around “overtime” to “additional hours” including a limit on using time of in lieu within a 6 month period,

b) Clause 6.3 expands the concept of “no entitlement to redundancy pay”,

c) Clause 6.5 adds “harassment”, “inefficiency” and “neglect” to the definition of “serious misconduct”,

d) Clause 6.7 expands the “abandonment of employment” clause,

e) Part 8 concerning “Safety Target Incentive Payment” looks an entirely new clause altogether, and

f) Clause 11.1.1 provides for new Union rights in relation to the use of the noticeboards.

[79] There is no evidence that any of these terms were explained to employees or the effect of them.

Explanation Issue - Conclusion

[80] For the reasons set out above:

a) I am not satisfied that Scott’s took all reasonable steps to:

a. explain the terms of the Agreement or the effect of those terms to relevant employees;

b) Consequently, I am not satisfied that the relevant employees genuinely agreed to the Agreement as described in s.188 of the FW Act.

c) Accordingly, I am not satisfied as to the matter in s.186(2)(a) of the FW Act.

[81] In BCG (No 2)  25 the Deputy President held,

“[43] The evident purpose of ss.180(2) and (5), as is clear from their inclusion in s.188 and thus s.186(2)(a), is to ensure so far as is practicable that employees who are asked to vote to approve an agreement make an informed choice as to whether or not they will vote to approve the agreement. That is, the choice that an employee makes in deciding whether to cast a vote to approve the agreement is to be informed by, relevantly, having access to the agreement and any material incorporated by reference during the relevant period, and importantly by having the terms of that agreement (including incorporated terms) and their effect explained. The failure to take all reasonable steps vis-a-vis the material incorporated and the explanation of the terms and their effect means that employees who voted to approve the agreement were deprived of the benefit of very important pre-approval steps designed to ensure that relevant employees genuinely agree to the agreement.

[45] An employer cannot know which employees will and which will not vote in the agreement approval process, how employees will vote or the reason employees vote in a particular way. Voting is not compulsory. Thus the preapproval steps play an important role in providing information to employees so that the employees can each choose whether or not to participate in the voting process, and if so whether to vote to approve the agreement. The mischief sought to be overcome is to ensure that employees understand the terms of the agreement as a whole upon which they are asked to vote. This mischief and the concern that employees did not genuinely agree to the Agreement is not overcome or met by accepting the genuine agreement undertaking proffered by BGC, which in essence is about the ongoing application of the Agreement (through a self-imposed restraint on employment) in respect of certain classes of employees and not about the fundamental issue of whether the Agreement was genuinely agreed to by employees covered by it. That a future cohort of voting employees may make an informed choice about varying the Agreement (alone or coupled with a restraint on employment until any future variation takes effect) does not meet the concern that those employees asked to approve the Agreement in June 2016 did not have information designed to enable them to make an informed choice about whether to approve the Agreement.”

[82] In the BCG matter the Deputy President allowed the employer an opportunity to offer up undertakings to deal with the genuinely agreed issue. Undertakings were offered, but the Deputy President was ultimately not “persuaded that the genuine agreement undertaking, [met] the concern identified in [his] earlier decision.” 26 The application for approval of the decision was dismissed.

[83] In this matter I have decided not to allow the Applicant an opportunity to proffer undertakings aimed at curing the genuinely agreed issues. This is because s.180(5) is a pre-approval requirement concerned with ensuring employees have adequate information about the terms of a proposed enterprise agreement to facilitate their genuine agreement in bargaining. I am not satisfied that RCC is capable of retrospectively curing its non-compliance with s.180(5) by proffering an undertaking at the agreement approval stage.

[84] This is not like the situation discussed in the Full Bench decision in Construction, Forestry, Maritime, Mining and Energy Union v Karijini Rail Pty Ltd. 27

[85] I cannot readily envisage an undertaking being proffered to meet the concerns I have raised.

[86] In the circumstances, given the conclusions I have reached about the failure of the Applicant in respect of s.180(5) of the FW Act, the Agreement cannot be approved and the application for its approval is dismissed.

[87] For completeness I note there was an issue raised in the Commission’s Checklist about the eligibility of casual employees to vote. In light of the finding I have made about Scott’s failure to “take all reasonable steps” as required by s.180(5) of the FW Act I do not need to determine the causal voting issue.

[88] It seems to me that the deficiencies I have identified could be remedied quickly if Scott’s were minded to re-commence the agreement making process. If it decides to do so, and, in the course of doing so, explains the effect of all of the terms of the Agreement, then, when it lodges its application for approval, I would be minded to expedite consideration (and if all issues are addressed pre-emptively, approval) of expedite the same.

COMMISSIONER

Appearances:

Mr L Howard of Counsel for the Applicant.
Mr Adam Grumley, Legal Officer for the Transport Workers’ Union of Australia on behalf of the TWU.

Hearing details:

2021.
24 March.
Sydney.

Printed by authority of the Commonwealth Government Printer

<PR730157>

 1   <AE427812>.

 2   Respondent’s Submissions filed 16 March 2021.

 3   Form F17, at 18 and 19.

 4   Witness Statement of Gavin Kable dated 19 March 2021 at [41].

 5   Witness Statement of Gavin Kable dated 19 March 2021 at [43].

 6   Witness Statement of Gavin Kable dated 19 March 2021 at [44].

 7   [2021] FWCFB 119.

 8   Ibid, at [55].

 9   Witness Statement of Gavin Kable dated 19 March 2021 at [44].

 10   Final written submissions of the Respondent, dated 26 March 2021, at [15].

 11   Statement of John Waltis, at [28].

 12   Applicant’s written submissions dated 9 March 2021, at [29]; Statement of Gavin Kable, at [59]-[61]; Statement of Fiona King, at [28].

 13   Applicant’s annotated final submissions in reply dated 26 March 2021, at [6]; Statement of Gavin Kable dated 19 March 2021 at [59].

 14   President Josiah Bartlett, Season 1, Episode 22, The West Wing.

 15   Respondent’s Outline of Submissions filed 16 March 2021, at [27]; Respondent’s final written submissions dated 26 March 2021, at [21]-[22].

 16   Final written submissions of the Respondent, dated 26 March 2021, at [22].

 17   Applicant’s annotated final submissions in reply dated 26 March 2021, at [7]-[9].

 18   [2017] FCA 1266.

 19   [2018] FCAFC 77.

 20   BGC Contracting Pty Ltd [2018] FWC 1466, [76].

 21   BGC Contracting Pty Ltd [2018] FWC 1466, [77].

 22   [2018] FWC 1466.

 23   BCG Contracting Pty Ltd [2018] FWC 1466, [77].

 24   [2020] FWCFB 5080, [26].

 25   [2018] FWC 6936.

 26   [2018] FWC 6936, 46.

 27   [2020] FWCFB 958 at [107].