PN1

THE COMMISSIONER: I'll take appearances, please, for the applicant?

PN2

MR K BROTHERSON: If the Commission pleases, Brotherson, initial K. I appear for the applicant.

PN3

THE COMMISSIONER: And you ‑ ‑ ‑

PN4

MR BROTHERSON: I think permission has already been granted as I understand it.

PN5

THE COMMISSIONER: Yes. And you have with you ‑ ‑ ‑

PN6

MR BROTHERSON: I have with me Ms Delpiano, who is my instructing solicitor. We have also Ms Syme from the company in the court.

PN7

THE COMMISSIONER: Thank you very much. My apologies for the delay, Mr Brotherson and parties. Thank you.

PN8

MR BROTHERSON: That's all right. Thanks.

PN9

THE COMMISSIONER: And Ms Sarlos?

PN10

MS E SARLOS: Ms Sarlos, initial E, for the CFMMEU, mining and energy division.

PN11

THE COMMISSIONER: Thank you very much. So there's been a series of correspondence between the parties in this matter and this afternoon has been programmed as an opportunity for the parties to be heard, and as I understand there has been some efforts made to narrow the issues between the parties. I've endeavoured to keep up-to-date with those. I can't be entirely confident during the course of the day that I've done all of that, but as I understand the approach is to deal with the outstanding matters, but I'll leave it in your hands, Mr Brotherson and then we'll refer to Ms Sarlos. Thank you.

PN12

MR BROTHERSON: Thank you, Commissioner. I was going to inquire as to that because obviously whilst the parties can have a degree of discussion as to what is agreed or not ultimately the test for approval of the agreement are ones that ‑ ‑ ‑

PN13

THE COMMISSIONER: That's right.

PN14

MR BROTHERSON: ‑ ‑ ‑are in your hands.

PN15

THE COMMISSIONER: Yes, quite right.

PN16

MR BROTHERSON: And I'm happy to address all of the requirements if you wish to or I confine myself to what appear to be issues remaining in dispute on an understanding, it would have to be of course, Commissioner, that those other matters that we don't attend to are not ones concerning you at this stage, so ‑ ‑ ‑

PN17

THE COMMISSIONER: My experience that matters that are contention normally are the ones that - I understand that I've got a range of matters. I have to satisfy myself, but if we can deal with those that are in contention between the parties.

PN18

MR BROTHERSON: Yes.

PN19

THE COMMISSIONER: And you might just confirm on the way through as well those that you have reached agreement on, because I know there's been various updates overnight and you have provided a consolidated document that has those five undertakings as I understand, Mr Brotherson?

PN20

MR BROTHERSON: Yes.

PN21

THE COMMISSIONER: Thank you very much.

PN22

MR BROTHERSON: Commissioner, if I can just identify those documents. I understand you would've received, or your associate would've received, from Mr Bell at Corrs Chambers Westgarth this morning, it was sent at 6.32 am Sydney time, an amended version of what's been called the summary of objections and undertakings which is a three-column table that sets out ‑ ‑ ‑

PN23

THE COMMISSIONER: Yes.

PN24

MR BROTHERSON: ‑ ‑ ‑the CFMMEU objection, the applicant's response, and the CFMMEU response which does, I think, narrow the issues that are in dispute and if perhaps - do you have that document with you?

PN25

THE COMMISSIONER: I do. I do.

PN26

MR BROTHERSON: If I can just outline what I understand to be the issues that are remaining from that. They're not numbered but the first of the CFMMEU's objections, which is set out in column one, deals with what I'll describe as an NES issue. I understand that is still a matter that we need to address with you today that is still in dispute.

PN27

The second CFMMEU objection, which is identified in the first sentence of the objection, was the manner in which flat rates are paid varying the term of clause 11 of the agreement.

PN28

THE COMMISSIONER: Yes.

PN29

MR BROTHERSON: As I understand it, is essentially a resolved issue on the basis of undertakings that have now been provided. They've been amended through the course of the document and I don't think there's any constructive utility in me explaining the amendments. (Indistinct) in a moment to what they now are. So I think subject to what my friend might say we'd proceed on the basis that that issue is no longer in contest.

PN30

We then come to four particular ‑ ‑ ‑

PN31

THE COMMISSIONER: Ms Sarlos, sorry, we might just - you're in agreement with that?

PN32

MS SARLOS: Yes, we would say there's some level of, you know, difficulty in interpreting it for an employee onsite, but, yes, it resolves the substance of the issue.

PN33

THE COMMISSIONER: Thank you. Mr Brotherson?

PN34

MR BROTHERSON: Thank you. We then come to the second page of the document, or we've moved further into the second page of the document. There's four smaller boxes which I think are identified most easily as the genuinely agreed issues or the argument about whether the agreement has been genuinely agreed, and they, as I understand it, remain in contest and we need to address the Commission about that.

PN35

We then have an issue dealing with consultation, and as I understand it, that issue is now resolved and it's resolved on the basis that the company has basically accepted that the model consultation clause would apply. So that will not be a matter we should need further to address you on today other than perhaps when we come to the undertakings.

PN36

THE COMMISSIONER: Thank you.

PN37

MR BROTHERSON: We then have some BOOT issues which are in the final two boxes, but essentially are all BOOT issues, and as I understand it they are all still in contest, although I would - or perhaps I'll withdraw that, and perhaps if I can then come to another document that would've been sent through to your Chambers, Commissioner, at around about 12.15 Sydney time today, was a consolidated list of the undertakings ‑ ‑ ‑

PN38

THE COMMISSIONER: Yes.

PN39

MR BROTHERSON: ‑ ‑ ‑ as they now stand to reflect what has been shown as the evolution of the discussions between the parties in that middle column, and perhaps just by way of confirmation if I could ask you to look at that document?

PN40

THE COMMISSIONER: Yes.

PN41

MR BROTHERSON: But what's listed as the first undertaking is not really an undertaking at all, but the second undertaking is unchanged. The third undertaking has amended and evolved during the course of the discussions reflected in the bigger table. The fourth undertaking continues as it's previously been shown in the other document. What's shown as the fifth undertaking is a new document.

PN42

I realise, as I look at it, that what was said about the parties accepting that the model consultation clause should apply isn't on this list.

PN43

THE COMMISSIONER: Yes. That's fine.

PN44

MR BROTHERSON: It might be that you would appreciate that that be added as a number 6 to that list.

PN45

THE COMMISSIONER: Yes.

PN46

MR BROTHERSON: And we'll happily to do at the conclusion of the hearing if that is agreeable to you.

PN47

THE COMMISSIONER: That's fine. Thank you, Mr Brotherson.

PN48

MR BROTHERSON: As I mentioned, Commissioner, ultimately whatever the parties have said it is a matter for you, but we're working on the basis that we'll now address what are the matters in contest in this table document.

PN49

If I can turn firstly to the NES objection, which is the first one in the big table, if I can perhaps use that term. I actually would submit that this matter should resolve itself quite quickly. The CFMMEU objection, as we understand it, is that the definition of casual employees under the agreement is broader than the definition of casual employees for the purposes of the NES.

PN50

Our submission is that's a misconceived objection and it's misconceived for a number of reasons. Firstly, there is no definition of casuals in the National Employment Standards. Secondly, the agreement at clause 4.3, and I take it the Commissioner has ready access to a copy of the agreement.

PN51

THE COMMISSIONER: Yes, I do, Mr Brotherson.

PN52

MR BROTHERSON: At clause 4 of the agreement, subclause 4, the agreement really confirms what the Act itself provides in any event, and that is that the National Employment Standards set out in the Fair Work Act apply to employees covered by the agreement, and this agreement is to be read as being consistent with and not derogating from the NES.

PN53

Notwithstanding those first two points that I've identified, the applicant has provided undertaking number 2, which again reaffirms that the agreement will be read and interpreted with the NES, and where any term of the agreement is inconsistent with the NES and provides a lesser entitlement than that provided by the NES, the NES will apply to the extent of that inconsistency, which effectively simply repeats section 56 of the Act.

PN54

The final item that I think perhaps my friend has helpfully obliged with today, in the bundle of authorities that was provided at number 4 she provides a copy of a decision of Asbury DP of 17 December of this year in the G02 People, where it appears this argument was run, and appears to have been rejected.

PN55

Do you have a copy of those authorities available, Commissioner?

PN56

THE COMMISSIONER: Sorry, I do have a copy but I think I have left it in Chambers but my ‑ ‑ ‑

PN57

MR BROTHERSON: That's all right. I'm just wondering ‑ ‑ ‑

PN58

THE COMMISSIONER: No, no, we've got it here. Just give me what tab that was again, Mr Brotherson, sorry?

PN59

MR BROTHERSON: Tab 4. It's the decision of 17 December 2019.

PN60

THE COMMISSIONER: Yes, I'm aware of this.

PN61

MR BROTHERSON: And if I ‑ ‑ ‑

PN62

THE COMMISSIONER: And what's the reference?

PN63

MR BROTHERSON: The reference [2019] FWC ‑ ‑ ‑

PN64

THE COMMISSIONER: Sorry, the paragraph number.

PN65

MR BROTHERSON: Yes, at paragraph 24 of the decision of the Deputy President ‑ ‑ ‑

PN66

THE COMMISSIONER: Thank you.

PN67

MR BROTHERSON: ‑ ‑ ‑you will see that the CFMMEU effectively raise the same style of argument as they're now raising in this matter, and I think, if I give you a moment to just look at those first.

PN68

THE COMMISSIONER: I'm familiar with the decision. Thank you.

PN69

MR BROTHERSON: Thank you. On that basis, Commissioner, if I can take you then to paragraphs 57 to 61, it appears that the Deputy President essentially rejects the argument and confirms some of the propositions that I've just put, and that is that the NES doesn't define casuals arising from the Workpac decision there. It causes a live issue at law as to whether somebody in any given case may or may not be a casual.

PN70

But she pertinently says from paragraph 60:

PN71

I do not accept the CFMMEU submission that the agreement gives GO2 People the ability to designate employees as casuals in a manner that is inconsistent with the way that casual employees are defined for the purposes of the NES. In relation to this argument the CFMMEU refers to the decision of Workpac Pty Ltd v Skene. As I have previously noted the Full Court of the Federal Court in that case observed that the term casual employee has no precise meaning and whether an employee is a casual employee depends upon the objective characterisation of the nature of the particular employment as a matter of fact and law. The Court in Skene found that a particular employee was not as a matter of fact or law a casual employee as defined in the relevant enterprise agreement.

PN72

I do not accept that the fact that an enterprise agreement contains provisions for casual employment in circumstances where a modern award that would otherwise cover the relevant employees does not, is of itself a basis to refuse to approve the agreement on the ground that it excludes the NES. If an employee under an enterprise agreement is misclassified as a casual employee the NES is not excluded. Similarly if an enterprise agreement is inconsistent with the NES the NES will prevail. If the Agreement in the present case is otherwise capable of approval I would not refuse approval on the ground that it excludes the NES simply on the basis that the agreement provides for casual employment.

PN73

Commissioner, no two enterprise agreements - well, I shouldn't say that, sometimes they are, but without looking at each provision of the relevant enterprise agreement it strikes that it is effectively the same argument that's been run by the CFMMEU. The Deputy President has formed a view, and unless you are of the view that that decision is plainly wrong then comity would suggest that you should follow that and that that issue should drop away, and indeed it might be convenient if my friend indicates whether she still presses that argument or not in light of that.

PN74

MS SARLOS: It's a matter for reaching the state of satisfaction but in the circumstances we longer press the argument.

PN75

THE COMMISSIONER: Thank you. Thank you, Mr Brotherson, Ms Sarlos.

PN76

MR BROTHERSON: Thank you. That's what we say on the issue of the NES objection.

PN77

THE COMMISSIONER: All right.

PN78

MR BROTHERSON: If I can turn to what appears to be the next group of issues. It is the genuinely agreed sequence of objections.

PN79

THE COMMISSIONER: Yes.

PN80

MR BROTHERSON: And if I can deal with that in this way - excuse me for a moment. The genuinely agreed requirements of course begin at section 186(2)(a) of the Fair Work Act, and I think it's important for me to address what appears to be agreed as having satisfied those requirements to we understand exactly what is not resolved, and I can do that relatively quickly. 186(2)(a) sets out - sorry, it might be 188(2) - I withdraw that. Sorry, I've confused myself on that.

PN81

The genuinely agreed test obviously is set out principally at 188, and subsection (1) deals with the meaning of genuinely agreed, and it has three components, (a), (b) and (c). It appears that the dispute that the CFMMEU - or the objection that the CFMMEU raises is principally in relation to in subsection 188(1)(a)(i) in relation to subsection 188(5), which deals with certain pre-approval steps, and the second objection appears to arise under the more general 188(1)(c) that there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to. It appears that there is no particular issue with other matters which arise. Again, based on what we've discussed earlier I won't therefore address those points.

PN82

So if I can deal firstly with the objection under 188(1)(a) which is - as I said, appears to be directed to what's found in (i) and that is that subsection 180(5) has not been satisfied and if we deal with that, that is that all reasonable steps to ensure the terms of the agreement and its effect are explained and that the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of relevant employees.

PN83

The relevant requirements for that are well known to the Commission, so I don't propose to ‑ ‑ ‑

PN84

THE COMMISSIONER: Thank you.

PN85

MR BROTHERSON: ‑ ‑ ‑ deal exhaustively in case law nor the decisions arising from multiple applications.

PN86

THE COMMISSIONER: Yes.

PN87

MR BROTHERSON: But I think it is appropriate to just set out the tenets of those requirements are that requirement is reasonable steps. It does not extend to all steps that might be reasonably open in some theoretical sense. The third tenet would be that the explanation does not need to specifically address each and every term, and to that extent a standard of perfection is not required, and it leaves for the Commission an evaluative judgment having regard to the circumstances of the employer and its employees. And, again, I think the guidance on it, the recent decision of two days ago, of Deputy President Asbury is a convenient place for highlighting the approach, and if, Commissioner, you have that available.

PN88

THE COMMISSIONER: Yes, I do have it.

PN89

MR BROTHERSON: And again I think given the experience of the Commissioner, I don't propose to recite this at length, but certainly in paragraphs 32 and 38, the Deputy President recites quite clearly what would be expected when dealing with a consideration under section 180(5) of the Fair Work Act, and in particular she deals with a Full Bench decision in the matter of AWU v Rigforce Pty Ltd from paragraph 36.

PN90

THE COMMISSIONER: Yes.

PN91

MR BROTHERSON: Which I think is particularly useful in describing the approach. Unless you require I don't intend to address you on that.

PN92

THE COMMISSIONER: No.

PN93

MR BROTHERSON: I think you are well familiar with it.

PN94

THE COMMISSIONER: Thank you.

PN95

MR BROTHERSON: The steps that were taken by Hays in respect to these requirements are set out at the statutory declaration of Ms Syme at item 2.7, and if I can just take you to that, and this is the amended statutory declaration which I understand was filed on 6 September. Firstly, the steps that are set out there deals with the method by which Hays typically communicates with its employees, being normally phone and email. Commissioner, I'm trying not to jump between too many documents but - - -

PN96

THE COMMISSIONER: That's all right. Keep going, that's all right.

PN97

MR BROTHERSON: And to place this requirement, and indeed the other requirement for genuinely agreed, which we'll come to in a moment, in context, we are dealing – whilst there are employees who will be covered, or are covered currently by the Black Coal Award, we are dealing with an employer in the labour hire industry and it has employees spread throughout Queensland at eight different sites that are identified in the material. It doesn't have onsite presence in a managerial or supervisory sense on those sites so it communicates, and its normal means of communication with those employees is phone and email. And that is the method it uses. It's the method that its employees understand, and they themselves will use if they wish to communicate with the employer. So that's an important part of context when understanding how the explanation was provided.

PN98

Now what Hays did, of course, was provide two explanatory documents to employees at, or during the process of seeking approval of the agreement and they were, and again, Commissioner, if I can just confirm that you have access to these because I think the filing of the amended statutory declaration didn't repeat the annexures that were with the - - -

PN99

THE COMMISSIONER: No but I think I've had them put on.

PN100

MR BROTHERSON: Excellent.

PN101

THE COMMISSIONER: Just specifically indicate what you're referring to. The - - -

PN102

MR BROTHERSON: There should be two emails, I think that were annexed, arising from under item 2.7 of the statutory declaration.

PN103

THE COMMISSIONER: Yes.

PN104

MR BROTHERSON: There was an email from an Alison Burnett dated 12 June which annexed to it a summary of the enterprise agreement.

PN105

THE COMMISSIONER: Yes.

PN106

MR BROTHERSON: And also annexed a summary of the Black Coalmining Industry Award.

PN107

THE COMMISSIONER: I have those documents.

PN108

MR BROTHERSON: If you have those with you, Commissioner, it's probably convenient if I could take you to those at this point.

PN109

THE COMMISSIONER: Yes. Thank you.

PN110

MR BROTHERSON: In the email itself it begins by referring to the proposed new enterprise agreement that's being prepared that they're going to be asked to vote on. And the middle paragraph confirms in the second sentence, "We now attach summaries of the proposed agreement and the award that explain the key terms and the effect of those terms." And relevantly in the third paragraph, confirms, "If you have any questions about the proposed agreement and/or how it will apply, please contact Alison Burnett", a senior manager, and a phone number is provided, as is an email address.

PN111

If we then look at the two attachments the first one is the enterprise agreement itself and it's not my intention, Commissioner, to go through each clause of the agreement that is addressed but if I can take you firstly to item 4, which is relationship with awards and the National Employment Standards. In the second paragraph of that document you'll see, "The effect of this is that where the proposed EA is silent on an issue we can revert to the award for the minimum terms and conditions. For example, this is the case with base wage rates. These are higher in the EA than the award. The wage rates in the EA will then apply to you instead of the wage rates in the award. However because the EA does not include, for example, entitlements for full-time and part-time employees to penalties, overtimes, loadings or allowances, they will be paid in accordance with the award." And it goes on then in the third paragraph of that section, "Please refer to the summary document provided to you explaining the key terms of the award. You will also separately be provided with a copy of the award. You are encouraged to read both documents."

PN112

There is some criticism, I think, in the CFMMEU material that there is no linkage between these documents. Well, we reject that on the basis of what I've just taken you to. But the other criticism, or another significant criticism of the CFMMEU of what the company did, was that it might have set out the terms of the agreement but it didn't describe the effect. We again resist that objection and say that this document, certainly item 4 that we've just addressed, clearly deals with the issue of the effect of the terms of the agreement. And just by way of example, Commissioner, on that, and again I don't propose to deal with each item but in item 5, "Flexible arrangements", if I can take you to the second paragraph, "The flexibility arrangements clause allows you and Hays to agree to vary the effect of some clauses in the EA to meet the genuine needs of you and Hays. The clause will only apply", and so on. It is dealing with the effect of the provision.

PN113

Likewise, if we go to item 6, the dispute resolution item, the second paragraph, "A dispute may be raised about a matter under the EA, the NES, or in the course of employment. This is wider than the model term in the regulations which limits the raising of disputes to matters arising under the enterprise agreement or the NES." And then it goes on, "Once a dispute is raised", so again we say the explanatory note is not just setting out the terms, it is dealing with the effect of how these items would operate. And this continues, we say, throughout the document and importantly, employment status number 8 on the second page, which goes to one of the issues in contention in the proceedings, you'll see in the second paragraph the last sentence (indistinct) says, "The EA provides for casual employment for all employee covered by the EA, including those covered by schedule A of the award." We say that's a very clear statement of what the enterprise agreement will do.

PN114

But then in the next paragraph at the last sentence, "This means that casual employees get paid a higher hourly rate of pay and are not entitled to be paid", and then sets out the various things that will not apply. Again, it is not just explaining the term of the agreement but we say quite clearly, explaining the effect of the agreement, and doing so in a way that a group of employees of the type to be covered by this agreement would, in our submission, have no difficulty in understanding. The same applies then in item 9, "casual conversion." It's actually a provision not found in the Black Coal Award, but in the second paragraph of this item, again, "A regular casual employee is a casual employee who has over a period of at least twelve months' working pattern of hours on an ongoing basis which without seeking adjustment the employee could continue to perform as a full-time or part-time employee." It is describing the effect that this clause will have if someone seeks to activate the conversion.

PN115

Commissioner, I don't wish to belabour this point and I always find it somewhat difficult from a remote location to know whether you wish me to continue, but in terms of the enterprise agreement explanation I can take you to a number of these items.

PN116

THE COMMISSIONER: I think they are reflective of that submission, aren't they?

PN117

MR BROTHERSON: They are indeed.

PN118

THE COMMISSIONER: Yes, and I think it - - -

PN119

MR BROTHERSON: And so we say that the criticisms of it cannot be made out, and irrespective of those criticisms we would be saying to you, that as an explanatory memorandum of an enterprise agreement to employees of the type to be covered by the agreement, is more than adequate to satisfy the genuinely agreed requirements. And a similar effect if we go to the award explanatory memorandum, again there's some preamble paragraphs there that we think go a good way to making clear to employees what's going to apply and I think it's appropriate to at least specifically draw your attention to the first paragraph:- "As previously advised, the Hays agreement incorporates the terms of the award as amended from time to time. This means that where the proposed EA is silent on an issue we can then revert to the award for the minimum terms and conditions." So that's really the reverse comment of what we saw in the earlier document. So where there's a criticism that there's no linkage between these documents, we think that just can't be made out, and we're not sure why it could possibly be suggested that employees of this type would not be able to follow the explanation that's provided. And again, "Below is a summary." There's offers of a phone number and an email for assistance.

PN120

But again perhaps if we just deal with clause 10, "Types of employment", in the final bullet point there, "Casual employees are employees who are engaged and paid as such, and are paid an additional 25 per cent instead of the leave entitlements under the award. The award provides for casual employment for some employees. The effect of the EA is to make clear that any employee covered by the EA can be employed on a casual basis." Again we say that's going clearly not just to describing the terms of the agreement but its effect, and it's clearly explaining how it interacts with the award.

PN121

Commissioner, I'll follow your lead from what I just asked - - -

PN122

THE COMMISSIONER: I think that's sufficient, what - - -

PN123

MR BROTHERSON: I could continue that submission but I won't press the point. That's our point.

PN124

THE COMMISSIONER: It's sufficient to get an understanding of your submission. I appreciate that, thank you.

PN125

MR BROTHERSON: Thank you. Now I would also refer the Commissioner, and I think the written submissions that were filed by Hays in response to an earlier direction from you deal with the steps quite fully at paragraph 32, so I won't re-state those but - - -

PN126

THE COMMISSIONER: What's the date of that one? Do you have that to hand, or not?

PN127

MR BROTHERSON: The submissions that were filed?

PN128

THE COMMISSIONER: Just, you referred to those additional submissions. Perhaps Ms Syme, your instructor – I don't need to stop you and maybe that can be provided. I just want to comprehensively go to that.

PN129

MR BROTHERSON: Yes. I've come into this matter reasonably late but as I understand it when the amended statutory declaration was filed on 22 August, Hays filed written submissions which I think were provided - - -

PN130

THE COMMISSIONER: I have those, yes. That's good.

PN131

MR BROTHERSON: There was an email but there was also 58 numbered paragraphs dated 22nd of - - -

PN132

THE COMMISSIONER: Yes. That's all right. There has just been an enormous number of agreements and I just want to make sure that I've captured all of the submissions.

PN133

MR BROTHERSON: Yes.

PN134

THE COMMISSIONER: Thank you.

PN135

MR BROTHERSON: And I'm mindful, Commissioner, that I don't want to just unnecessarily re-state things that are already well set out.

PN136

THE COMMISSIONER: No, I understand.

PN137

MR BROTHERSON: Another point that we say should be a consideration for the Commission on this consideration as to the reasonable explanation point that is in contest, the CFMMEU had been a bargaining representative for this agreement. It's not like some agreements where the CFMMEU tries to intervene at a later point and say, well, we don't think this met various requirements. When the CFMMEU filed its F18 on 11 July this year it raised two objections as to why it said the agreement should not be approved. One was that they had concerns as to whether the BOOT was satisfied, and the other was they had concerns over the NES.

PN138

The concerns of the CFMMEU then grew. So when we see their written submissions filed later and then their reply submissions, we then get into the genuinely agreed point. But when Mr Pierce, who was the official involved, was there and when that F18 was filed, there's no mention of these concerns. So our submission, Commissioner, ultimately becomes on the section 180, subsection (5) point, that whilst the CFMMEU make a number of criticisms to the approach of Hays they shouldn't be accepted. And again, specifically to the criticisms that are made, they're addressed at paragraph 35 of the submissions that were filed on 22 August. And I would add in my submission today that what they seek to do is set the bar far too high and beyond what the Commission needs to consider to reach the requisite level of satisfaction.

PN139

And we think there's been a degree of misconstruing of what's been done. We've gone to the explanatory memorandums that were provided and the submission we make is that they were more than adequate for the employees there. The union also then goes to the fact that there was a phone call made, a follow up phone call to employees and they seemed to be critical of that in some way which I don't quite understand. The phone call wasn't the explanation. The explanation was principally in the explanatory memorandum. But what the phone call was, was to do take further steps to ensure that people had the documents, to provide an opportunity for them to express views or raise concerns. It was an add-on and should be seen as a positive step that was taken rather than critical, that they claim they have no details of the phone call, and all these details of every phone call should be provided. We say that's a nonsense proposition. That is not what the Commission requires to achieve the required level of satisfaction. And the explanatory memorandum taken with the other steps that were taken by the company including the follow-up to ensure people had documents, that they were reminded that documents had been sent, were enough to satisfy the requirements that they had taken all reasonable steps, and also that the steps were appropriate in the circumstances, and the explanation was provided in an appropriate manner, taking into account the circumstances and needs of the employees.

PN140

If I can then deal with the other ground that the CFMMEU seems to rely on, the genuinely agreed point which is 181(1)(c), and that is that there are no other reasonable grounds for believing that the agreement has not genuinely been agreed to. This of course is a more general criterial but it must be grounds that have not been relied on in opposing the truth - - -

PN141

THE COMMISSIONER: Grounds not relied on – I just missed that last bit.

PN142

MR BROTHERSON: They should rely for their argument or their objection under section 181(1)(c) - - -

PN143

THE COMMISSIONER: Yes.

PN144

MR BROTHERSON: On grounds other than they've used in their opposition under either of subsection 188(1)(a), or (b). And there is authority for that. And again I can use the bundle that's been provided by my friend. If I can take you to the One Key decision which I think is at tab 6 of the bundle - - -

PN145

THE COMMISSIONER: Thank you. Yes.

PN146

MR BROTHERSON: And at paragraph 142 it confirms the nature of this requirement. Paragraph 188, I think it should say, "(1)(c)", but I think we understand what it's referring to - - -

PN147

THE COMMISSIONER: Yes.

PN148

MR BROTHERSON: Is cast in very broad terms. It has tended to pick up anything not caught by paragraphs (a) and (b), of any circumstance which could logically bear on the question of whether the agreement of the relevant employees was genuine would be relevant. One obvious example of the provision of misleading information or an absence of full disclosure, and they reference Toys R Us. Another is the likelihood that the relevant employees understood the operation of the various awards but would be affected by the agreement and the extent to which the wages and working conditions for employees under each of those awards would change, for better or worse under the terms of the agreement. Thus if we'd be wrong to conclude the Commission is bound by section 180 subsection (5) to consider the content of the employer's explanation of the terms of the agreement and their effect in order to be satisfied that the agreement was genuinely agreed to having regard to section 188(a)(i), then for similar reasons we would hold that this was a matter which was not only relevant to the question raised by paragraph 188(c), but was a mandatory consideration.

PN149

Now genuine agreement requires informed consent and the circumstances to be considered are those that existed at the time the agreement was voted on. There's actually, I think in the one authority that we haven't provided that I can send but I suspect that you'd be aware of, Commissioner, Deputy President Asbury, again actually dealt with this, I think quite clearly in an earlier matter, Central Queensland Services Proprietary Limited, trading as BHP Billiton Mitsubishi Alliance [2015] FWC 1554.

PN150

THE COMMISSIONER: Yes.

PN151

MR BROTHERSON: And from paragraph 64, I think through to about 66 or 67, deals I think quite clearly with what the requirements for other reasonable grounds for believing agreement not genuinely agreed mean. And she certainly makes the point that I, I think, stumbled over earlier that if you've dealt with something under 188(1)(a) an (b), you don't have a second crack at it then under 188(1)(c), you've got to have something else under that grounds. So where I think my friend raises it in the alternative, it either succeeds under one or the other. She can't just keep saying, well, this is a good argument and it works here but if that fails we'll try something else. It either gets up the first time or it doesn't.

PN152

The submission we make as to other reasonable grounds, Commissioner, again these are often repeats of what we've already said but there is no other reasonable ground as to why this agreement is not genuinely proved. We've gone to the steps that were taken by the employer. The union was involved as a bargaining representative and took no objection as to the process. There's been a valid requisite majority of employees voted to approve the agreement, there is no suggestion that there's been any misleading information. There is some criticism perhaps of the quality of the information but we say none of the criticisms that are made go anywhere near being enough to say there are other reasonable grounds for believing this agreement has not been genuinely reached or genuinely agreed by the employees.

PN153

The final group of issues, we then come to the BOOT issues which are raised and that really captures the last two boxes in the table of objections and undertakings. The statutory declaration of Ms Syme at part 3 sets out in some detail, and certainly detail such as we say is routinely seen in such applications and would be accepted as sufficient, terms that are more beneficial, terms that are not provided by the award. It does say there are no terms which are less favourable than the award, and so that's a legitimate thing to have done in circumstances where the award is incorporated into the enterprise agreement. It says, "No award entitlements are omitted", which is correct in the circumstances that I've just mentioned. It does say that there are, at 3.7, yes, to there are some different terms and conditions and identifies 8.4, the casual provisions for production and engineering employees, and clause 9, casual conversion. Those provisions, perhaps depending on who would have completed the form, might in some circumstances in my submission perhaps have been included as beneficial terms, but in any event it's not incorrect to identify them as different terms and conditions.

PN154

But if we come to the actual objections that have been raised, a number of them can be grouped and dealt with quite readily that way. If the Commissioner can go back to the table of - - -

PN155

THE COMMISSIONER: The table?

PN156

MR BROTHERSON: The table. I think that the first box that identifies BOOT matters generally, given the agreement - - -

PN157

THE COMMISSIONER: Yes.

PN158

MR BROTHERSON: Rate increases only 0.5 per cent.

PN159

THE COMMISSIONER: Yes.

PN160

MR BROTHERSON: I will make the point before I deal with the items, the base rates in the agreement are 0.5 per cent above the award. The effect of the way the flat rates are calculated of course enhances that where people are working the approved rosters, because of the effect of penalties. I don't press that it takes it substantially higher but there certainly is more than that where the flat rates are applied. But in any event if we deal with the items that are listed there as bullets, the first two items both deal with the individual flexibility agreement clause which is clause 2 of the agreement. And there's two criticisms made of that provision, as I follow the objection.

PN161

The first is that it's claimed that where the award at clause 7.3 has a specific exclusion of persons not yet employed under the award, this flexibility agreement does not actually have that exclusion. We say that's a misconceived objection because the wording at 5.1 is, "Hays and an employee covered by this agreement." To be an employee covered by this agreement you would have to be employed to be covered by the agreement. And I understand that there's been some discussions where that's been put to my friend but rejected, but that remains our position that that's not a valid objection.

PN162

The second objection as it's understood, is that at 5.5 the agreements, or any agreement that is made can be terminated by the party by giving no more than 28 days notice. Whereas clause 7.11 of the Black Coal Award would provide in most circumstances for 13 weeks(sic) notice. Now we say the entire objection is misconceived, and certainly from an analysis of the BOOT would not be something that even if it was to be taken into account would attribute significant weight as a negative. It could potentially even be seen as a positive depending on what one thought of the agreement. But if there was no flexibility agreement at all in the enterprise agreement then the model clause would apply. That's the effect of section 202, subsection (4) of the Fair Work Act. The model clause provides for termination on 28 days notice.

PN163

So the agreement is consistent with the Act. It provides a provision. It provides a provision which is consistent with the model which would otherwise prevail if there was on agreement, and we say that is not something that the Commission would be troubled with when it comes to dealing with the BOOT assessment. Now that is the first two bullet points of the list.

PN164

THE COMMISSIONER: Yes.

PN165

MR BROTHERSON: The next group is the following three bullet points which all relate to the dispute settlement procedure, which of course is another mandatory requirement of an enterprise agreement and this is clause 6 of the enterprise agreement. And the three objections here, again we say firstly misunderstand the nature of the applicant's business but in any event are not matters that offend the Fair Work Act or raise BOOT issues and the three objections are firstly, removal of the capacity to attempt dispute resolution with the relevant supervisor.

PN166

If I can take the Commission to clause 6.1 of the agreement.

PN167

THE COMMISSIONER: Yes.

PN168

MR BROTHERSON: Continuing:

PN169

In the event of a dispute about a matter under this agreement, the NES or in the course of employment, the employee including the employee's representative if any will in the first instance discuss the matter with their Hayes consultant and will attempt to resolve the matter at the workplace.

PN170

Now I explained earlier the context, this is a labour hire company. It doesn't have site presence where the staff are working. The contact or the supervisor in perhaps more typical terminology of a dispute settlement procedure in this industry would be the Hays consultant that the person deals with. That is the misunderstanding of the business. But in any event, we say that's not a BOOT issue because parties are really at large, subject to certain constraints, but certainly not going to this when it comes to how they might prescribe a dispute settlement procedure.

PN171

The second objection is that there is a removal of any capacity to resolve a dispute at the workplace level. That, Commissioner, I think is in my many ways simply a repeat of the first one. What is the workplace is sometimes not always easy to define but in a labour hire industry yes, they're working at clients' premises but their employer is somewhere else, the contact is the consultant. There is still the effort to say in 6.1, 'resolve the matter at the workplace' which I think needs to be understood in this case as the employee doesn't need to leave some remote coal mine and come to Townsville or to Mackay or somewhere to deal with it. It can be dealt with in the usual manner by which these parties communicate.

PN172

The third objection again we say is misconceived, and that is the introduction of private mediation and dispute resolution and a failure to particularise how that cost will be covered. Now this can be seen in 6.3 and perhaps if I could just read from the third line.

PN173

THE COMMISSIONER: Yes.

PN174

MR BROTHERSON: Continuing:

PN175

Appropriate steps under clause 6.1 and 6.2 have been taken. A party to the dispute may refer the dispute to the Fair Work Commission or to an alternative mediator as agreed by the parties for conciliation or mediation.

PN176

Commissioner, I just do not see or understand how that could possibly offend the Fair Work Act or be a BOOT issue. My friend might be able to explain it, but I think it goes on:

PN177

Failure to particularise how that cost would be covered.

PN178

Well presumably the issue of cost would be discussed at the time that the parties decide whether they've agreed to use the mediator. So the submission would have to be that is just looking for a reason to object. It's not a BOOT issue. It should cover no weight and it's no disadvantage to employees, it in fact enlarges the range of dispute resolution options. On that issue it would be remiss if I also didn't point out of course in 6.1, I read the words, that the scope of the dispute settlement procedure is wider than under the award and wider than the minimum required under the Fair Work Act where it embraces also or in the course of employment. So that is not actually identified as a benefit but if the dispute resolution procedure was to be considered as a BOOT issue I think we'd make a reverse submission it should be seen more as a benefit rather than as a negative.

PN179

Commissioner, just ensuring we've addressed issues. I think that submission deals with bullet points 3, 4 and 5.

PN180

THE COMMISSIONER: Yes.

PN181

MR BROTHERSON: The sixth item is introduction of casual employment. I might just deal with that when I come to the final box.

PN182

THE COMMISSIONER: Yes.

PN183

MR BROTHERSON: The next objection is a complicated process around calculating and confirming rates of pay under the agreement. The short submission on that, Commissioner, is the complaint there appears to be about machinery provisions, not the outcomes. It doesn't appear to be a BOOT issue. The BOOT issue would be what those wage rates are or what those rates of pay are and we don't any longer seem to have particular criticism about those other than what I'll deal with when we come to casual employment. So again we would say that that shouldn't be considered as a BOOT issue.

PN184

The final issue in that objection, save for the one that I've deferred for later, is the creation of an obligation to repay for closing and DPE. This arises under clause 19 of the agreement and the relevant provisions are between clauses 19.7 and 19.10 as to where the employer provides a measure of work equipment and indeed at 19.8 I would identify that under the award I think where the Black Coal Award in both schedule A and schedule B provides for reimbursement of up to two outer layer sets of clothing per year, this agreement provides for potentially substantially more than that as set out in 19.8, and provides benefits of reimbursement for safety glasses as well.

PN185

The objection appears to arise in 19.12 where there is a requirement in certain circumstances that employees may need to repay for clothing that's been issued to them. Firstly, if I can say, that is a very narrow requirement and it has two pre-conditions. The requirement for a repayment only arises where an employee has been engaged for less than six months, and the second important pre-condition when one thinks about a BOOT requirement is it only applies, and if I can direct you most unscientifically to the middle part of 19.12 in the preamble.

PN186

THE COMMISSIONER: Yes.

PN187

MR BROTHERSON: It's the fourth line:

PN188

If the employee refuses and/or fails to return the clothing.

PN189

So there's two pre-conditions to that. It's not that every employee that's issued protective clothing has to repay. It's subject to those two, we say fairly strict pre-conditions, and it's then a sliding scale that is set out at 19.12.1, .2 and .3.

PN190

The wording of the provision, we say, is consistent with the Fair Work Act where it provides for deductions from employee wages, which provides in section 324 that where a payment is authorised under an enterprise agreement it would be a permitted deduction. So the clause is directed to what's provided for in the Fair Work Act. It's subject to we say tight pre-conditions that are really only activated principally where an employee, for whatever reason, has taken a view they want the clothing. If they want to give it back then that's not activated.

PN191

The modern award provisions we think are really quite limited when one look at what is there for clothing. It's in the schedules of both A and B of the Black Coal Award, I won't trouble the Commission with it. I suspect you're well and truly familiar with it.

PN192

THE COMMISSIONER: Yes.

PN193

MR BROTHERSON: We say overall the provision is far more beneficial for employees and that repayment provision is really not one that would allow the Commissioner in evaluating the BOOT test overall to come to a view that employees would not be better off under the agreement than otherwise.

PN194

The remaining issue is the one of casual employment which - and the principal objection to the introduction of casual employees, and we assume this is directed to employees who would otherwise be covered by schedule A of the Black Coal Award because as the Commissioner well knowns, casual employment is available under schedule B. But the objection as set out in the table is that the loading of 25 per cent is not sufficient to compensate for the entitlements lost.

PN195

Now the issue of how to calculate or to deal with casual employees in the Black Coal Award for the purposes of the BOOT, I think it must be acknowledged is something that is a work in progress. But we do have a state of law as it applies at the present time that is relevant to how this should be dealt with, and again if I can begin by saying - if I can take you to case number 2 in my friend's bundle of authorities.

PN196

THE COMMISSIONER: Thank you.

PN197

MR BROTHERSON: This of course is a Full Bench decision dealing with an appeal of a decision of Lee C in the matter of CFMEU v SESLS Industrial - - -

PN198

THE COMMISSIONER: I'm just losing you a little bit, Mr Brotherson.

PN199

MR BROTHERSON: Sorry, I might have moved. It's a decision - a Full Bench decision of an appeal of a decision of Lee C, dated 2 August 2017 reference [2017] FWCFB 3659.

PN200

THE COMMISSIONER: Yes, thank you.

PN201

MR BROTHERSON: Again it was an issue where part of the issue was how - a discussion around how a BOOT analysis might be done for employees under the Black Coal Award in circumstances where casual provisions were to be introduced into schedule A, and at 45 on page 8 of the Full Bench decision:

PN202

We recognise that the award provides for benefits that exceed those in the NES and that in important respects the conditions in question are those which do not apply to casual employees; leave, notice, termination and redundancy. However it is also the case that the award provides for casual employment of employees in staff classifications and that a casual loading of 25 per cent is provided. This does not necessarily mean that a 25 per cent loading would necessarily be appropriate as an award standard for production and engineering employees.

PN203

As the Full Bench noted in the modern award review case referred to above, this is a question that needs to be resolved by reference to an appropriate evidentiary merit case. However, for the purposes of the BOOT we consider that in the presence or the presence in the award of a 25 per cent loading for casual staff employees is a matter which can be taken into account in considering the adequacy of the 25 per cent loading in the agreement for BOOT purposes.

PN204

Now at some point I think it must be acknowledged that presumably it maybe a Full Bench that looks at the question in the award for casual employees, but that's not yet occurred. What we do have is saying a Full Bench of the Commission has accepted that the fact that casual staff employees under schedule B currently have that level of loading and I should add, particularly where all other terms and conditions of employment are largely the same, is a matter which can be taken into account in considering the adequacy of the 25 per cent loading in the agreement for BOOT purposes.

PN205

I think the complexity in the issue is the wording that the CFMMEU adopts in its objection, and that is it says it does not compensate in the case of the agreement for the other entitlements lost, including leave loading and entitlement to consultation and payments on termination provided for under the award.

PN206

Well, firstly, there are no casual employees currently employed by the employer in classifications that would be in schedule A of the award, so nobody loses anything. So we're talking about prospective employees and the question is - and our submission becomes, there will be an extension of casual employment into schedule A, and the provision will be, that they will have a base rate which is higher than under the modern award and they will receive a casual loading akin to that that is already in the award for casual staff employees, in circumstances where other terms and conditions under the award apply equally to staff employees and production and engineering employees.

PN207

So the wording of the agreement if we look at the casual provision at 11 - sorry, 8.4 of the agreement.

PN208

Casual employees are engaged and paid as such and will be a loading of 25 per cent. Rates prescribed in this agreement are inclusive of the 25 per cent loading which is a payment in lieu of the following entitlements of non casual employees -

PN209

and it sets out:

PN210

Paid leave and leave loading, notice of termination, redundancy and public holidays not worked.

PN211

Now somewhere in the various material that I've read from my friend I think there's a reference well under the award for staff employees the only exclusion is paid leave provisions if one looks in the modern award at clause 10.4 a casual employee working ordinary hours would be paid 135th of the appropriate weekly rate plus 25 per cent instead of leave entitlements. Now that would be A.

PN212

The reality is however of course that B, C and D are - I've described them as illusionary entitlements in any event for a casual employee because notice of termination, redundancy and public holidays not worked are things that a casual employee just does not get paid. So there's nothing lost. It is simply an extension of the casual provisions to cover people under what would be schedule A of the award and is comparable to those of existing casual employees, and we say that the 25 per cent loading is an appropriate margin for that casual engagement.

PN213

That was the approach adopted by the Full Bench as something for the Commission to take into account and there is nothing in this agreement that would otherwise say some higher amount should be given. I suspect we might hear something from my friend about that but I'll wait to hear that because at the moment I can't discern what could possibly be an argument as to why some higher amount should apply. Commissioner, they are the submissions as to those matters as I understand them to be the objections.

PN214

THE COMMISSIONER: Right. Well, we might hear from Ms Sarlos in relation to any of those.

PN215

MS SARLOS: Yes. Are you content with me staying seated?

PN216

THE COMMISSIONER: Yes, certainly. I should have said that to you Mr Brotherson. Just with so many documents, I don't want you to accuse me of any sexist conduct as I had in Ms Sarlos was in a prior matter and I had said that she could be seated to access her documents. I meant to offer the same invitation to you, so please forgive me.

PN217

MR BROTHERSON: Commissioner, I actually find that sometimes it's actually easier to be standing up. I'd also - - -

PN218

THE COMMISSIONER: Yes. I always knock my water over when I'm sitting down like that all over everything so.

PN219

MS SARLOS: The lid's on. We'll see how we go.

PN220

MR BROTHERSON: I'd also we're suffering a little bit from smoke inhalation in Sydney today too, so I'm actually finding being in an extended position better than - - -

PN221

THE COMMISSIONER: Yes, just elevates you somewhat. It's terrible I know.

PN222

MS SARLOS: So predominantly it's getting late in the day and we'll rely on our written submissions for the majority of the content concerns around the agreement and a number of the BOOT matters that my friend has gone through.

PN223

THE COMMISSIONER: Thank you. The parties can take them as read those submissions, thank you.

PN224

MS SARLOS: There are some matters I do want to respond to and some that I do want to go to in substance. In terms of what my friend has said in respect of our capacity to engage with the genuine agreement concerns, given what was set out in the F18, we would just that a bargaining representative is not confined to what was put in the F18 for consideration, just in the same way that the applicant isn't confined to what's set out in the F17, and in any event there's an undeniable procedural fairness right that is to be accorded to the CFMEU, both in its own right and as a representative of its members to be heard on these matters, even if they weren't in the F18.

PN225

Now there may be a bit of déjà vu for you, Commissioner, in going through some submissions so I'll cut to the chase a little bit. I don't want to skim over things that might be a substance that my friend would want to respond to, however. But I'll go first to the genuine agreement issues and which have helpfully been contextualised in the statute by my friend.

PN226

What is required by the Commission today is that it is satisfied that all reasonable steps were taken to explain the agreement to the employees given their particular circumstances. Put differently, the Commission must be satisfied that there were no other reasonable steps that should have been taken to explain the agreement and its terms. It's not as the applicant suggests that we seek to set the bar too high. I've done myself over by skipping the bits but it's as Flick J said in the first instance One Key decision, it's about informing - - -

PN227

MR BROTHERSON: Commissioner, sorry, but we're missing some of the words from my friend.

PN228

MS SARLOS: I may have to stand.

PN229

MR BROTHERSON: We're hearing most of it but some of it's - - -

PN230

THE COMMISSIONER: Yes.

PN231

MS SARLOS: Is that better?

PN232

MR BROTHERSON: That's much - - -

PN233

MS SARLOS: It seems very loud.

PN234

THE COMMISSIONER: Thank you for letting me know because the reporter normally lets us know but when you're on the video it's a different microphone so we'll see how we go.

PN235

MR BROTHERSON: It hasn't caused a problem I don't think today but we were - it could I think - - -

PN236

THE COMMISSIONER: You're starting to lose, okay, thank you.

PN237

MR BROTHERSON: Yes.

PN238

MS SARLOS: It's okay?

PN239

THE COMMISSIONER: Yes, thank you. We're just going to put the other microphone on you too just in case. Thank you.

PN240

MS SARLOS: So it's not that the CFMEU sets the bar extremely high. It's in the words of Flick J, the obligation is to ensure that employees are as fully informed as practicable and the requirement of all reasonable steps is a significant threshold, we don't dispute that, but that's not us setting the bar high, that's the legislature as has been interpreted by Flick J and endorsed by the Full Court in the Full Court One Key decision.

PN241

So today we're required to consider what is reasonable and what goes beyond perhaps the realm of reasonable. The applicant shows us what some reasonable steps are, even if it's accepted that all reasonable steps in the circumstances were the explanatory material that was provided and the phone contact which was sought to be made with the relevant employees, there is still some serious questions as to whether all reasonable steps had been taken within those parameters. Yes, they've handed out these tables of information which we've reviewed and my friend has gone to throughout today. That happened on 12 June 2019.

PN242

In that same email Hays advised employees that they could contact a representative to ask questions if they wanted. Acknowledging that might not be all reasonable steps, a representative from Hays, I think it was just one but we're not sure of that. I suspect it was Ms Burnett but a representative of Hays is then said to have called all employees covered by the agreement, where it was explained to those employees that they could speak - sorry, I'm stumbling through this. Where it was explained that they could - there were told about the effect of the agreement and that's the words that are set out in the F17. That's said to have occurred between 10 and 13 June 2019. Now remember they received the explanatory tables on 12 June 2019.

PN243

We have to make some assumptions about when these calls took place. Assuming they were equally spread across the period of 10 to 13 June 2019, more than half of the relevant employees would have received these calls before receiving the explanatory material. That can't be reasonable. It would be like if we were conducting today's hearing but received the undertakings document, a table to be considered tomorrow or the next day. To have a discussion about any content you need to have before you the content that you're being required to consider, unless of course those discussions went to every single detail that's in the explanatory notes. There's no evidence of that so I don't think we can say that that's what happened.

PN244

For the balance of employees who received a call after receiving the explanatory material, it's also relevant that the window that they had to consider that material was at best a day before receiving the call. While they're in a better position than their co-workers, that's not a sufficient period of time to consider the agreement, the award and each of the explanatory documents prior to engaging in a discussion with the applicant's representative about them. In our submission, these employers need - employees rather, needed notice of these calls and these documents provided well in advance to enable them to meaningfully engage in the consultation which the applicant sought to hold with each of them.

PN245

We have to make some further assumptions about those calls as we have no evidence of what proportion of the 108 employees were reached, what was said to them, how long these calls were and what the content of the purported explanation was. Counsel has suggested that we should place this as an additional step. It's a good thing. Yes, it's a good thing but it's a good thing when you consider the content. I think it's definitely a reasonable step, it's just we need to know how effective this step was before ascribing any kind of weight to how it fits within an all reasonable steps requirement.

PN246

We can't ascribe much to them at all, simply because - and in the words of the Full Court in One Key, and that's at 112 if you do want to go to it. But in order to reach the requisite state of satisfaction for section 180(5) has been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed. All we have about the content of these calls here is, and again the words of the Full Court in One Key at that same paragraph reference, we have a self-serving statement that the employer has complied with its obligation under the Act.

PN247

These calls aren't entirely without utility though. They demonstrate that the applicant was of the view that all reasonable steps were not satisfied with the explanatory documents and we agree. Something more needed to happen to ensure that the relevant employees were as fully informed as practicable. We needed to know what was said in those calls, how many of them were successful to ascribe any weight to them. We can accept that they were necessary. I believe that they were but we don't know what content was communicated in them and I think a reasonable - in terms of the reasonable steps requirement we don't know how many employees were reached, we don't know the - what was discussed in those conversations. We can't ascribe any weight to them in terms of what the reasonable steps were.

PN248

When that was put to the applicant they declined to put on any evidence direct from Ms Burnett or otherwise that went to what was said in those phone calls, so in trying to reach the satisfaction that the employee has taken all reasonable steps to explain the content of the agreement and the terms, and the effect of those terms, I think we're really limited to what's in those explanatory documents.

PN249

THE COMMISSIONER: Because Mr Brotherson says those are sufficient on their own, as I understand.

PN250

MS SARLOS: And if they were sufficient how do we term or how do we refer to the phone calls? Were they extraneous - - -

PN251

THE COMMISSIONER: I think it's reasonable on those two documents that it's an additional step.

PN252

MS SARLOS: And that would be - - -

PN253

THE COMMISSIONER: I'm not advocating on his behalf, I'm just putting it to you.

PN254

MS SARLOS: No, no, and I appreciate the opportunity to respond to that. We would say it's not reasonable, an email that sets out the terms and conditions is appropriately supported by a conversation about what's set out in that in writing, particularly when you're talking about employees that they're not like you and - like, you know, I sit at a computer, I read my emails every day. These employees are doing physical labour mostly, for the staff employees there may be some diversions from that. But a telephone conversation would be reasonable we would suggest. It would be part of the all reasonable steps required. I think the applicant accepts that.

PN255

I don't think the applicant would go out of their way to do something that was beyond reasonable to meet this requirement. If they felt it was necessary to discuss matters with employees, they took a step to do that. I think that that's completely reasonable. I also think it's reasonable that those conversations should have taken place after the documents were provided. I also think those conversations should have been mindful of the rosters being worked so there was an opportunity for those employees to engage with them. There's no evidence of what rosters were being worked by which employees across those three days.

PN256

I'm not saying that there is a requirement to provide that evidence. I'm suggesting that over a period of time it would have been appropriate to discuss the matters with those employees and to contact them at a time in which they could meaningfully engage with that discussion. I don't think there's any evidence that there was a meaningful engagement throughout those telephone conversations, but the fact that they occurred or are said to have occurred is suggestive that that was a reasonable step within the all reasonable steps required. Of course it's a matter for you, Commissioner, to determine that but that would be our submission on that point.

PN257

I will then turn briefly to section 188(1)(c) as Mr Brotherson has also. Of course this being for the second element of genuine agreement which is relevant for our purposes, being whether there is any other reasonable ground for believing that the agreement has not been genuinely agreed.

PN258

Mr Brotherson may be able to assist but I don't have the citation for the Central Queensland Services matter, but I believe it was before the One Key decision, please correct me if I'm mistaken?

PN259

THE COMMISSIONER: Certainly it was quoted. You have it there, Mr Brotherson, don't you?

PN260

MR BROTHERSON: Yes, it was 2015, so it was before One Key, but I don't think - look, I won't say what I think at this stage, but I can get you the reference.

PN261

THE COMMISSIONER: I don't have the decision with me here, but I have it in my Chambers.

PN262

MS SARLOS: That's fine. From what Mr Brotherson has discussed he suggested that the Deputy President had a view that matters were relevant for 180(5) but not relevant for 188(1)(c). I would take you to the same paragraph that Mr Brotherson took us to, in relation to One Key, and it may be just we have very different tinted glasses in how we read these things. But my read of that same paragraph, which - - -

PN263

THE COMMISSIONER: Which one are you referring to?

PN264

MS SARLOS: I think it's 142. Yes, it is. So paragraph 142. So paragraph 188(c), as it then was, is classed in broad terms.

PN265

This is intended to pick up anything not caught by paragraphs (a) and (b), thus any circumstance -

PN266

It goes on. But then the Full Court say:

PN267

Thus, if we be wrong to conclude that the Commission is bound by section 180(5) to consider the content of the employer's explanation of the terms of the agreement and their effect, in order to be satisfied that the agreement was genuinely agreed to, having regard to section 188(a)(i), as it then was, then for similar reasons we would hold that this was a matter which was not only relevant to the question raised by 188(1)(c) but was a mandatory conclusion.

PN268

Our submission is that they're not mutually exclusive explanations - that they're not mutually exclusive. The explanation for 180(5) goes to whether an employer has met its obligation to take all reasonable steps.

PN269

Section 188(1)(c) is a different requirement. The Commission's required to consider whether there are any other reasonable grounds that the agreement has not been genuinely agreed. The explanation and the content of the explanation, the way it was received, is relevant. It's not that you're confined in considering that information, or those facts, to one aspect of genuine agreement.

PN270

I think to separate them in that arbitrary way is unnecessary and it's not what the Full Court is saying in One Key, in our submission.

PN271

Now, in this context it's important to recall the particular circumstances of these employees, particularly the production and engineering employees whose employment will be affected more than the staff employees the applicant currently engages.

PN272

It's difficult because it's dealt, in passing, in the submissions and there's no evidence to this. I feel a little awkward. I have an email which I can pass up which goes to the circumstances of employees, previous to the making of this agreement, which hasn't been put on by the applicant and, regrettably, it's recently come to my attention.

PN273

It feels - I don't have a copy to give to - I do have a copy for my friend, but my friend is in Sydney. So maybe I'll just speak to it, rather than - - -

PN274

THE COMMISSIONER: Can we scan it to Mr Brotherson?

PN275

MS SARLOS: Ms Symes should have a copy.

PN276

THE COMMISSIONER: I'm also conscious of what my friend just said, in terms of the availability of material and I think she made reference now, how reasonable it would be if we wanted to refer to things that hadn't been provided before the hearing, without being told there's an email that she's got to hand that might be relevant. How long has she had that for?

PN277

MS SARLOS: I'm happy to refer to the submissions only and not provide the evidence, that's not a problem. It's an email authored by the applicant, so it should be within their possession. But if it raises concerns I would rather avoid that.

PN278

THE COMMISSIONER: Well, there has been many exchanges in this particular matter. That provides a difficulty that I will have to provide an additional - so that would be my preference.

PN279

MS SARLOS: I'll reference.

PN280

THE COMMISSIONER: Having said that, you're an experienced advocate, Ms Sarlos, if that's going to provide a prejudice or procedural fairness difficulty, it's a matter for you.

PN281

MS SARLOS: Look, it's a regrettable situation and in the circumstances I feel like I've created a mountain out of molehill, maybe I will just refer to what's been put in the submissions.

PN282

THE COMMISSIONER: All right.

PN283

MS SARLOS: I'll leave it at that. So the employees we're talking about, the production and engineering employees, weren't always full-time employees. The nature of their engagement changed at the end of March, when they were told that they could either leave Hays or continue as permanent employees. Before that time they were casual employees.

PN284

Now, this was solely at the instigation of the applicant. If employees did not agree to the proposed change they were no longer to be employed by the applicant. No reason for the change was given to these employees and that was because of the reason for the change, which I can elicit because I am familiar with the award, is because they couldn't be engaged as casuals under the award. That was the reason they had to be changed to permanent employees. So this happens in March. Their employment as casual ceases, they become full-time employees.

PN285

A month later the applicant provided employees with the NERR, which indicated the commencement of bargaining. The main change between the agreement and the award, which otherwise covers these employees, is the reintroduction of casual employment by the company for production and engineering employees.

PN286

Apart from that, the company predominantly has the award as its baseline. The agreement, rather, has the award as its baseline, with a couple of tweaks, a bit more discretion for the company, and a point 5 pay bump for employees.

PN287

I don't want to speak for the applicant, but it does appear that this agreement, the purpose of it is to reintroduce casual employment to its workforce. That would be consistent with the balance of its workforce, both within the black coal mining industry and outside of it. It's a labour hire company who do predominantly engage casual employees, to my knowledge.

PN288

Now, on the content of the explanation that we do know, the explanatory documents, our submission is that given the particular circumstances of the employees, this issue needed to be dealt with more comprehensively by the applicant. These employees needed to fully appreciate why it was they were required to become full-time employees, back in April, and what effect the agreement may have on the ongoing nature of that full-time employment.

PN289

THE COMMISSIONER: This is a negotiation that the CFMMEU were involved in.

PN290

MS SARLOS: Yes.

PN291

THE COMMISSIONER: And there was no consideration with the employer about your members, in relation to the explanation provided at that point?

PN292

MS SARLOS: I would need to get instruction on that, I'm sorry, Commissioner.

PN293

THE COMMISSIONER: Is this the first time that this argument has been articulated in this way?

PN294

MS SARLOS: In - sorry, could you - - -

PN295

THE COMMISSIONER: In relation to the exchange - the change, on this point, that effectively you're saying that in relation to the explanation of casual employees, that they have not had a proper explanation, in relation to - - -

PN296

MS SARLOS: It was in my written submissions. Perhaps not as comprehensively as I'm going to, but it was referred that the nature of their employment changed and that the obligation should have been higher to - - -

PN297

THE COMMISSIONER: But is would be something the CFMMEU were alive to, at the time, in terms of the negotiations?

PN298

MS SARLOS: Yes. And my understanding, although I don't have the officials here, so I can't get those instructions, but my understanding is that the change in the nature of the employment of these employees was because it was an issue we had raised.

PN299

So when it moved - when those employees moved from being casual to full-time, that was a consequence of the CFMMEU raising the issue directly with the applicant.

PN300

I appreciate it is regrettable raising this with any significance at this stage, particularly because the matter has been ongoing. I can apologise, but can't do anything else about it, unfortunately.

PN301

So all we would say on that is, given the circumstances of the change, the recent change to the employment conditions of those employees, it was incumbent upon the applicant to provide more detail. To provide more context as to why the change was being made.

PN302

On that, I think the explanatory documents to detail some aspects of the change, but it's interesting the language used in them. They refer to Schedule A employees, they don't refer to production and engineering employees. I think to anyone that wasn't deeply engaged with the way in which these changes effected the terms and conditions of employment, to anyone that wasn't aware what a Schedule A employee was, I think that there's the possibility of being confused in that context.

PN303

I'm conscious it might be a new issue for - - -

PN304

THE COMMISSIONER: No, I - I'm more concerned that it seems to have been a recurrent issue in matters for the CFMMEU.

PN305

MS SARLOS: In which - I'm sorry, I don't understand?

PN306

THE COMMISSIONER: Well, as I understand, this has been an issue in the - in the coal industry - - -

PN307

MS SARLOS: The casual employment?

PN308

THE COMMISSIONER: Yes.

PN309

MS SARLOS: Yes.

PN310

THE COMMISSIONER: And the change. And it would have been an issue that the union was alive to and, given that they were a bargaining representative in this matter, either that it was open to them to deal with the matter with the employer. But in the circumstances where they were a bargaining representative, as I understand, it's been left till after the explanation to raise, as a possible issue for your members.

PN311

MS SARLOS: I think there are some assumptions around the level of involvement as a bargaining representative the CFMMEU had. Now, again, I don't have my officials here, but my instructions are that it was not - it was not as meaningful as it could have been and it was an arbitrary engagement with the union because the obligation exists under the Act. It wasn't - I - I would need to get instructions on that, I'm sorry, Commissioner.

PN312

THE COMMISSIONER: All right. I'm not saying 'all right' to instructions, because this matter has been on foot. I think it was filed on 1 August and there has been, form my Chambers, a repetition of trying to get all of the relevant information from all of the parties, and I think that it's been - there's been a series of endeavours to engage with all of the issues. But in any event, I will allow Mr Brotherson to respond to that issue.

PN313

MS SARLOS: I appreciate that. It's a relevant - it's relevant for the explanation. We would say it's relevant for the explanation and it was a matter that was raised in our submissions. Regrettably the email that I have is not in evidence.

PN314

THE COMMISSIONER: All right.

PN315

MS SARLOS: If I can withdraw the reference to that, please do.

PN316

In terms of - I'm just trying to address your concern, in terms of the CFMMEU being a bargaining representative for this agreement, and I'm not quite sure I understand what it is?

PN317

THE COMMISSIONER: I think I'm really asking that, given how the issue seems to be developing at a late stage, that there would have been an awareness of this matter, from the union, and that's the way which I'm asking that question, in relation to that email really, as to why it's - - -

PN318

MS SARLOS: The CFMMEU was live to the issue. I think it's a miscommunication between my instructors and myself. I think that that's at fault there and I take responsibility for that.

PN319

THE COMMISSIONER: I'm not providing a criticism of you, Ms Sarlos, I'm just trying to understand.

PN320

MS SARLOS: I think it would be warranted if it were being provided.

PN321

THE COMMISSIONER: No, not at all. I know you've been in matters, and I've given you, basically, a 15 minute break, so I'm not providing criticism.

PN322

MS SARLOS: So I will leave that issue there and I'm sure my friend will have things to say about it, but I would just say that in circumstances where an employee's employment has recently changed and there's been no explanation for that change when the agreement that they are being asked to approve directly addresses that change. It think that there's a heightened explanation obligation around that and that explanation hasn't been met with the documents that have been provided.

PN323

Again, it may have been addressed in those phone conversations, but we don't know what was discussed in those conversations.

PN324

Now, on the BOOT, my friend has canvased it fairly extensively and I've addressed you on these matters, in a previous matter today. But the two issues we have, in relation to this agreement, are, as Mr Brotherson has identified, the casual employment issue, particularly around the accrual as well as the 0.5 per cent loading.

PN325

Now, the applicant - in relation to the first, the applicant rejects the CFMMEU's submission, on the basis that I understand that the appropriate comparator, at least in written submissions, it was that the appropriate comparator is a casual staff employee engaged under the award, and that the production and engineering employees are not an appropriate comparator, given the full-time or part-time status. I'm sorry, that is not an accurate reflection - Commissioner, I'm sorry, the confusion between the two matters today is responsible for that and I withdraw that statement.

PN326

THE COMMISSIONER: That's all right, Ms Sarlos. Would you like a break?

PN327

MS SARLOS: No, no. It's - - -

PN328

THE COMMISSIONER: I'm following you.

PN329

MS SARLOS: Okay. So the employees we're talking about, with Hays, they will work in excess of 35 hours a week, as they already do. As much has been implied - sorry, that inference can be drawn from the loaded rates provision in the agreement and the submissions of the applicant, on this point. They're predicated on employees working full four week rosters of in excess of 35 hours in a week.

PN330

In fact, these employees, under the current employment, are full-time employees. What this agreement seeks to do is to create an opportunity for employees working the same rosters to become casual employees.

PN331

The class of employees we're currently considering are production and engineering employees. They perform an entirely different set of tasks, on a mine that the employees - than the employees that perform work under a staff classification who works as under managers, payroll clerks, supervisors and the like.

PN332

If the employees we're talking about were covered by the award, as they currently are, they would be classed as full-time employees, as they currently are. There is no rational reason to compare their position under the agreement with any other position under the award than the one that they're currently filling.

PN333

Under the award those employees receive a range of benefits that they won't receive under the agreement. The agreement seeks to compensate them for the loss of those benefits, with a 25 per cent loading. The Commission may be satisfied that the loading is an appropriate compensation for some of these, but it cannot be for all, because of the particular form which some benefits under the award take.

PN334

This is particularly pronounced for personal leave, under the award, which is available, in full, to employees upon commencement of employment, at the equivalent of three weeks or ordinary time, or 105 hours.

PN335

The loading system is designed to offset an accrual and, accordingly, it will offset the leave entitlements under the award, once a casual employee has worked for a certain period of time. We've done those calculations, it's 20 weeks at full-time hours. But without a guarantee of employment for that period of time, the loading is inadequate compensation for what it seeks to replace.

PN336

Even if that submission is rejected and there's some rationale to support a submission that the appropriate comparator is a casual staff employee under the award, that employee would still not be better off overall, when compared to a casual staff employee.

PN337

Now, under the award, a casual staff employee has the benefit of all terms, conditions and entitlements, except for leave entitlements. My friend suggested that these were illusory entitlements because a casual can't receive the benefits of, say, public holidays not worked, or redundancy or notice of termination, but given the kinds of casuals we're considering here, they're casuals with rosters that are worked akin to full-time hours. They're not, in the sense, considered by the Full Court, in Skeiners(?), as true casuals. They're casuals that have advance commitment of the rosters they're working. These aren't illusory benefits, they're entitlements that they're owed, under the award.

PN338

This is a factor not just for the production and engineering employees, but also for the 50 or so staff employees currently covered by the award who will lose these entitlements.

PN339

Relevantly, this submission was not made clear to those employees in the explanation they received, nor in the F17 statutory declaration provided by the applicant to the Commission in these proceedings. In fact, the contrary was set out in the explanatory documents. It's in the award explanatory notes, in particular. They're in our submissions, but I can take you there.

PN340

THE COMMISSIONER: So this is the GO2 People issue that's been addressed?

PN341

MS SARLOS: It's different in part. Actually, it's wholly different. So in the GO2 People it would have been akin to had Hays made an agreement with these employees before they had changed over to being permanent employees. So had the agreement been made pre March.

PN342

In the GO2 People, those employees were under the misconception that they were engaged as casuals under the award, in circumstances where there was no capacity for casual employment under the award.

PN343

THE COMMISSIONER: But aren't you alleging, for that reason, the agreement was made at a later stage, to avoid that particular issue?

PN344

MS SARLOS: No. No, not at - I don't seek to make any allegation as to that, and it's an entirely separate issue. I make the point about change in employment was a created heightened explanatory requirement, and that's as far as I put it. I don't seek to make any allegations as to what the circumstance was, prior to that March period for the employment of those employees, but I do say it's relevant for the explanation that was required. It's an appropriate reference point when thinking about how these employees should be classed under the award. Were they - once the agreement - if the agreement is approved, how they would be classed, under the award, when there is no provision for casual employment under the award.

PN345

This issue is separate to the GO2 People issue, because it's entirely fixed on how an employee can be better off under an agreement when, under the award, they have an entitlement that accrues at commencement. When you have an accrual based system to meet those entitlements it naturally follows that after a period of time you will meet those entitlements. You're receiving it in portions, whereas under the award you receive it in bulk up front.

PN346

Now, my friend referred to the SESOS matter, and all I would say, yes, it is Full Bench authority but it is Full Bench authority that was concerned solely with the issue of the satisfaction that had been reached by the single member. It is not authority for 25 per cent being sufficient. In any event, these submissions were not put I that matter. The Full Bench, as the first instance decision-maker, were responding to the matter which had been put to them.

PN347

To my knowledge, this 25 per cent loading, when compared to the entitlement, on commencement, of personal leave, it's not a new matter, in the sense that the award hasn't changed, but it's the first time that the CFMMEU have run the matter. I think my friend is correct that it's certainly not straightforward, and as much is said on SESOS and, more recently, by Asbury DP, earlier this week.

PN348

We don't dispute the submission that the loading for casual staff can be taken into account, but there's more that must be taken into account and that's, specifically, the appropriate reference point under award, for the purposes of the BOOT, which is the employees that are working part-time and full-time and the entitlements that they have under the award.

PN349

I'm ready to move on to other matters, unless there are any questions.

PN350

THE COMMISSIONER: Thank you. No.

PN351

MS SARLOS: So the final issue we want to go to is the issue of the 0.5 per cent premium, and we rely, predominantly, on our written submissions on this point. But it is a very low margin above the award, and I know my friend spoke to how the loaded rate perhaps pumped that up a little. I don't see how that happens, but perhaps he can speak to that some more. I would say we're really dealing with an agreement that seeks to provide a 0.5 per cent benefit on the financial benefits in the award whilst taking away some of the non financial and, in some cases, financial benefits under the award.

PN352

So putting to one side what has been resolved in the proposed undertakings, which I should say, for completeness, I've not had the opportunity to review, and I don't have a printed copy, but that's kind of by the by. But employees, under the agreement, will no longer have, and I think we've canvased this for casual employees, they'll no longer have an entitlement to the generous industry redundancy scheme, which, despite what my friend has said, they're not excluded from under the agreement. The above NES notice of termination provisions and the entitlements on public holidays not worked, that's for casual employees in the staff classifications.

PN353

I've already dealt with what the newly casual employees won't receive and whether the 0.5 per cent premium can make up for that. But I'll add into that, which we haven't really discussed for the 25 per cent amount, is security of employment and other provisions attached to the leave within the award, which are more generous than the NES and more generous than other industries, it's that three weeks of personal leave and it's five or six weeks of annual leave, rather than the four or five that exist under the NES.

PN354

We have gone through some of the matters that exist for all other employees, but one that we haven't dealt with, I think, and I think this is significant. In the event that this agreement is approved, the employees that are covered by this agreement will be precluded from bargaining for a new agreement for the next four years, for the duration of the agreement. I think that's something we haven't ascribed any weight to in the BOOT, but I think it's a matter that must be considered, particularly where there is a question as to whether employees were properly informed about the effects of the agreement on their employment or on the prospective or ongoing employment.

PN355

I do apologise for before. It's been a busy day and regrettably instructions have not been as straightforward as I would have otherwise hoped. But unless there are any questions that - - -

PN356

THE COMMISSIONER: No. Thank you, Ms Sarlos.

PN357

Mr Brotherson, what do you say in response?

PN358

MR BROTHERSON: I think I can - - -

PN359

THE COMMISSIONER: Now we've completely lost you, Mr Brotherson, what's going on?

PN360

MR BROTHERSON: Is that better? Is that - - -

PN361

THE COMMISSIONER: That's good. Thank you.

PN362

MR BROTHERSON: If I can start with - on the issue of genuine agreement, I rely very much on the written material that's been filed and what I said earlier. But listening to my friend, what you're being asked to consider, Commissioner, so as to not reach the requisite satisfaction, is to rely on assumptions that she throws around - - -

PN363

THE COMMISSIONER: We're just getting a bit of feedback, we'll just turn that down a little bit.

PN364

MR BROTHERSON: Is that better?

PN365

THE COMMISSIONER: That's fine. Leave it there and if we just get that microphone put towards you a little bit more.

PN366

MR BROTHERSON: Is that better?

PN367

THE COMMISSIONER: Yes, it is. Thank you very much.

PN368

MR BROTHERSON: Commissioner, on the issue of genuinely agreed, I rely on what's been provided, both in written form and what I addressed you with earlier. But what my friend is really asking you to consider to say why it can't be genuinely agreed is we must make all these assumptions about a phone call, or phone calls, and how many might have been answered and what time of the day they were.

PN369

That is what I'm saying, is the test has been set far too high. It's an aspirational test that she seems to be ascribing to. As I've said, and I think you've put it very succinctly, Commissioner, and obviously fully taken on board the submission I made that we rely very much that the explanatory material, in the context of this industry where communication between employer and employee is largely by email and phone, those explanatory notes were adequate.

PN370

The phone call was not to do all of the things that my friend is saying, they were to make contact. Obviously you will never always make contact with people by phone, leave a message and send follow up emails to ensure that you can contact Ms Burnett if needs be.

PN371

Whether an employee had read the explanatory material when they were called by Ms Burnett is really not to the point. And this goes to the aspirational nature of my friend's submissions. What it allowed, where contact was made, was for a discussion, "Have you read it? Have you got any thoughts? If you haven't read it, please do read it and you can contact me". That is all reasonable steps. That is the test that the Commission is required to deal with.

PN372

There is no comparison with One Key. And when I say 'no comparison', it's not the principles enunciated by Flick J and confirmed by the Full Court, what it becomes is the practicality. In One Key what Flick J was referring to was a case where an employer with three employees, with at least 11 modern awards embraced by an enterprise agreement, had given the most bland statutory declaration as to steps taken to satisfy the Commission.

PN373

There is no comparison with what we are grappling with here. It is a much larger work force. With great respect, I'd say a much more sophisticated client, as evidenced by the explanatory memorandums, which weren't evident in One Kay. And further steps taken beyond that. They are the things that I'd ask the Commissioner to turn her mind to when considering the issue of satisfaction of the required steps.

PN374

If I can then turn to this issue that my friend's thrown into the mix a moment ago, as to the changed status of employees? I'd like, firstly, to just clarify some factual errors on what's been said, on her own material. If I turn to the submissions, this issue of changed status of employees was raised by my friend, in written submissions in reply. I apologise Commissioner.

PN375

THE COMMISSIONER: That's all right.

PN376

MR BROTHERSON: The submissions that were filed in reply by my friend, dated 29 October, I think the point she's referring to, as to this changed status of employees, is set out in relevant background, and she identifies that in March of 2019 persons who may have been employed as production and engineering employees as casuals became permanent employees.

PN377

She said this was at the time that the employers sought to introduce bargaining, well that's wrong. If we go to item 2.9 in the statutory declaration, the last notice of employee representational rights was, in fact, issued in May of 2018, a year earlier. 2.9:

PN378

Last date that a notice of right to be represented by a bargaining representative was given to an employee. Date 2 May 2018.

PN379

So the change in status that she tried to make some sort of issue of, in fact, was almost 12 months earlier.

PN380

Now, I can say a few things about this. Firstly, there is no question that at the time that the proposed agreement was provided to employees, and they were asked to vote on it, they were, in the case of the production and engineering employees, permanent employees of the company. That's plain from their own relevant background. We know that the CFMMEU was a bargaining representative, and I'll say something more about that in a moment.

PN381

There are many reasons in this industry, perhaps, where if somebody has been incorrectly engaged from a status point of view, an employer would seek to address that. I say no more on that, or make no admission, in the case of my client, but if they had been incorrectly engaging employees, then it was appropriate to fix that.

PN382

It is not something fatal to an application for an enterprise agreement to then try and give legitimacy to a form of employment that might be necessary, in a particular industry.

PN383

There's no indication and no sign of coercion or anything like that, no argument of that has been made out. I don't think my friend sought to go that far. So the point is, we would say, a nothing point.

PN384

If there's some issue that existed prior to March 2019, as to the status of these persons, that's an issue to be taken up in some other place on some other occasion.

PN385

As to the change that might have occurred in their status at that time, being some months prior to the vote, that, again, is not a matter that we would submit is relevant to the Commissioner's consideration of the application in this case. It is something that predates it.

PN386

The concern here is the status and standing of employees and, in this case, clearly for the case of production and engineering employees as permanent employees, in the lead up during the final stages of bargaining in being provided the proposed agreement. Again, I make the appoint that the explanatory memorandums make very plain what the agreement intends. There's no non disclosure act, or anything like that.

PN387

So whilst it was unclear, I think, with great respect to my friend, exactly what point she was trying to say or trying to make, our submission is it's not something that should trouble the Commissioner in this application. If there's an issue, it's some issue for another day and some other place.

PN388

As to the role of the CFMMEU, I just want to say this. My friend cannot say, "We were sort of a bargaining representative but not really, we weren't directly involved". The CFMMEU has filed a statutory declaration, their F18, to the effect, "We were a bargaining representative", to the point that they say they're a bargaining representative and if the Commissioner approves the agreement they've made a separate application, they wish to be covered by it.

PN389

My friend, with great respect, cannot make some late in the day submission, "Well, we sort of were in but sort of not, during the bargaining process". With great respect, that, again, is a submission that just can't be accepted.

PN390

I don't propose to say a great deal more on the BOOT issues, I think I addressed that in some length earlier in the afternoon and also it's addressed in the written submissions.

PN391

I do, though, just wish to rebut the seeming allegation that the purpose or motivation of the agreement is casualization of the workforce and that people will lose things. That is simply a Bar table assertion by my friend. If that was the case, one can only wonder why one of the provisions in the enterprise agreement is the casual conversion clause, which is a provision, I think it's clause 9 of the enterprise agreement. It's a provision that, at this point of time, does not actually even appear in the Black Coal Award.

PN392

Even where people are currently permanent employees, the fact that there may then be an ability to employ persons as causal employees, if the agreement is improved, my friend seems to be trying to assert that that means everybody becomes a casual. Well, that, again, is an issue, Commissioner, not to be dealt with in this application. If there's problems with that, that's an implementation issue and employees have a range of rights in the event that that was occur.

PN393

So I just wanted to raise that, that just, one, is not supported by the terms of the agreement, nor is there any evidence to suggest be the case. Otherwise, in terms of the BOOT, I think we've addressed that. I don't think my friend raised anything new, in terms of the issues on the BOOT.

PN394

Perhaps, other than I will say there's a submission of a sort there that a casual would need to work 20 weeks before the loading is of any value to them, or something.

PN395

THE COMMISSIONER: Yes.

PN396

MR BROTHERSON: There's no explanation of that made. She claims there's a calculation, it's not been put in and, accordingly, I don't think we need to respond to it. The simple fact, we say, is, it's a loading that is currently in the modern award. A Full Bench of the Commission has said it was something appropriate for the Commission to take into account, and we say there is no other reason why that would not be accepted, in this case, as an appropriate loading for casual employees, where it then becomes extended into the production and engineering area.

PN397

Commissioner, unless you require me to address anything further, those are the submissions.

PN398

THE COMMISSIONER: No. I appreciate the submissions of the parties and I apologise for the delay and I think you've done well, Ms Sarlos, I appreciate you batting on after the other matter as well.

PN399

All right. So I'll adjourn on that basis and deal with the matter as soon as possible. Thank you.

ADJOURNED INDEFINITELY [4.23 PM]