[2017] FWCA 3859
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.185—Enterprise agreement

Swan Transit Services Pty Limited; Swan Transit Services (South) Pty Limited; Transit Systems WA Pty Limited
(AG2017/913)

SWAN TRANSIT ENTERPRISE AGREEMENT 2017

Road transport industry

DEPUTY PRESIDENT BULL

PERTH, 28 JULY 2017

Application for approval of the Swan Transit Enterprise Agreement 2017. Undertakings provided. Objection based on no genuine agreement.

[1] An application has been made by:

(the applicant/employer) for the approval of a single enterprise agreement known as the Swan Transit Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the FW Act).

[2] The Agreement purports to cover all employees engaged by the employer primarily to drive buses. 1 There have been two previous unsuccessful attempts by the employer to have an Agreement voted up by employees. The bargaining process has also been subject to an unsuccessful application under s.229 of the FW Act for bargaining orders, filed by bargaining representative Mr Glen Ferguson.2

[3] The applicant’s F17 Statutory Declaration indicated that at the time of the ballot for support of the Agreement, 841 employees were covered by the Agreement, of whom 763 voted, of which 452 voted to approve the Agreement.

[4] Two or more employers that are single interest employers may make a single enterprise agreement subject to certain legislative requirements. On 26 April 2017 the Commission, by email, queried with the applicant how the three named employers met the definition of a single interest application under s.172(5) under the FW Act:

(a) the employers are engaged in a joint venture or common enterprise; or

(b) the employers are related bodies corporate; or

(c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.”

[5] The Commission also raised issues concerning the signature pages in the Agreement, the nominal expiry date, compliance with the National Employment Standards (NES) in respect to redundancy and public holidays and the better off overall test (BOOT) in respect of clause 13- Provisional Employment for Training Purposes of the Agreement.

[6] The Commission sought relevant undertakings to address these concerns and that the views of all bargaining representatives be sought regarding any undertakings that may be provided.

[7] The Commission also sought a response from the applicant to the objection to the approval of the Agreement filed by an employee representative, Mr Glen Ferguson.

[8] The Commission subsequently received a revised signature page which is in compliance with s.185(2) of the FW Act and regulation 2.06A of the Fair Work Regulations.

[9] On 4 May 2017, the applicant provided a written response to the issues raised by the Commission.

[10] The applicant advised that the named employers are all related bodies corporate as defined in s.50 of the Corporations Act 2001 and thus met the definition of a ‘single interest employers’ at s.172(5) of the FW Act.

Undertakings

[11] Where the Commission has a concern that an agreement does not meet the requirements set out in s.186 and s.187, which includes that the agreement does not pass the BOOT, s.190 provides the employer with an opportunity to provide a written undertaking acceptable to the Commission aimed at meeting those concerns. 3

[12] The applicant provided undertakings to address the concerns raised which are summarised below:

[13] The applicant advised that the draft undertakings had been circulated to all bargaining representatives for their views as per the requirement at s.190(4) of the FW Act.

[14] Mr Ferguson submitted that the undertakings cannot retrospectively correct any failings in respect to the requirements under.180(5). 4 The only other written response in respect of the undertakings was from a Darin Griffin, a bargaining representative who had no objections to the undertakings provided by the applicant.

[15] The undertakings meet the concerns raised by the Commission.

Bargaining representatives

[16] The employer advised that there were a number of bargaining representatives appointed for the purposes of negotiating the Agreement. The applicant’s Form F16 names 16 individual persons as bargaining representatives together with the Transport Workers’ Union of Australia (TWU).

[17] The TWU was a default bargaining representative and filed a Form F18 in support of approval of the Agreement.

[18] The Commission also received 8 x Form F18As from bargaining representatives supporting approval of the Agreement 5 and one F18A from bargaining representative Glen Ferguson opposing the approval of the Agreement.

[19] The thrust of the Mr Ferguson’s objection relates to the allegation that the applicant did not sufficiently identify to employees all changes in the Agreement that flowed from replacing the previous agreement and did not take all reasonable steps to explain the terms and the effect of the terms to employees. Mr Ferguson further objects on the basis that the applicant made misleading and incorrect statements to its employees and that a number of employees who voted in the ballot were covered under common law contracts. Further, not all employees received a verbal explanation regarding the Agreement and did not have access to their depot representative/bargaining agent to explain the Agreement. As a result of these failings, Mr Ferguson alleges the Agreement has not been genuinely agreed to by employees.

[20] Mr Ferguson also contends that employees who were covered by a common law contract were not eligible to vote in the Agreement ballot.

[21] Mr Ferguson subsequently added to his objection 6 by submitting that the Notice of Employee Representation Rights (NERR) required to be provided under s.173 of the FW Act was not compliant as it did not contain the correct and necessary content.

Better Off Overall Test

[22] Section 193(1) of the Act defines the BOOT in the following manner:

[23] Subsection s.186(2)(d) of the FW Act provides that in order to approve an agreement, the Commission must be satisfied that the agreement passes the BOOT. The BOOT is to be applied at the test time7 (when the application is made to the Commission as opposed to when the Agreement is made).8 The application of the BOOT requires satisfaction that each award covered employee and each prospective award covered employee would be better off overall under the Agreement.

[24] The Passenger Vehicle Transportation Award 2010 (the Award) is the relevant reference instrument for the purposes of applying the better off overall test (BOOT) as required under s.186 of the Act.

[25] The Full Bench in Armacell Australia Pty and Others9 stated in respect of the BOOT:

[26] In Re McDonald’s Australia Enterprise Agreement 200911 the Full Bench held that the role of the Commission includes facilitating enterprise agreements:

[27] The applicant’s Statutory Declaration (F17) in support of the Agreement approval lists at question 3.4 the subject matters considered relevant to whether the Agreement satisfies the BOOT. The applicant states at 3.6 that they consider the Agreement passes the BOOT.

[28] The application of the BOOT is an all-embracing and comprehensive test, as elicited from the authorities cited above. It requires the identification of the terms which are more beneficial and the terms which are less beneficial for an employee, and an overall assessment as to whether an employee would be better off under the agreement is then undertaken by the Commission.13

Greater benefits

[29] Under the Agreement the following entitlements are listed as superior benefits as compared to the Award, which in the view of the applicant results in employees being significantly better off:

1. Five weeks annual leave, as compared to the Award entitlement of four weeks;

2. An hourly rate of $31.95 linked to the WA Labour Price Index as compared to the Award rate of $21.41 without any specific indexation;

3. Saturday work remunerated at 1.75x the ordinary rate as compared to the Award rate of 1.5x the ordinary rate;

4. Superannuation of 10.5% compared to Award rate of 9.5%;

5. Ability to convert overtime at relevant penalty rates to additional annual leave up to a maximum of 5 weeks; and

6. A superior public holiday payment.

Lesser benefits

[30] The following are cited by the applicant as less beneficial provisions as compared to the Award:

1. For part time employees additional un-rostered hours will be paid at 1.2x the ordinary rate whereas the Award requires payment at 1.5x the ordinary rate.

The applicant states that these extra hours are in the ‘minority’ and due to the Agreement’s higher hourly rate, employees are still better off.

[31] The applicant submitted that the rates of pay under the Agreement, which are higher than the relevant award classifications, and the other listed benefits are high enough to compensate for any reduction in entitlements that would otherwise be offered under the Award.

[32] In this Agreement the rates of pay are significantly higher than the comparable Award classification.

[33] Taking into account the higher rates of pay under the Agreement and other more beneficial provisions and entitlements including the additional weeks’ leave and the higher employer superannuation contribution and balancing these benefits with the terms of the Agreement that are less beneficial than the Award and the undertakings provided, I am satisfied that the Agreement results in employees being better off overall under the Agreement.

Genuine Agreement

[34] Section 186 of the FW Act sets out a number of general requirements for approval of an enterprise agreement.

[35] One such requirement, is found in s.186(2)(a) of the Act which states:

“(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement - the agreement has been genuinely agreed to by the employees covered by the agreement.”

(my emphasis)

[36] Section 188 of the Act provides that employees have genuinely agreed to an enterprise agreement, if the Fair Work Commission is satisfied that:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

[37] Section 180(5) of the FW Act referred to in s.188(a)(1) requires that:

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

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

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

[38] Compliance with s.180(5) of the Act was specifically raised in this application in the objection to the approval of the Agreement.

Applicant’s steps taken to explain terms of Agreement and the effect of terms

[39] In taking all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, are explained to the relevant employees the applicant provided details to the Commission of a process undertaken to ensure that this occurred.

[40] Witness statements and evidence from the following witnesses was relied upon:

[41] Mr Thompson tendered a statutory declaration 15 setting out his involvement in the enterprise agreement negotiation process and was cross examined on his evidence.

[42] Mr Thompson’s evidence was that following Commission approval of the previous two agreements, a common law contract was entered into with a limited number of employees, being those who took up a common law contract prior to 2008. It was intended that this would also occur following the approval of the 2017 Agreement, currently before the Commission. He stated that a common law contract would be offered to around 40 employees in accordance with the previous practice. The common law contract provides for an average 42 hour week salary whereas the Agreement provides for a guaranteed 38 hour week for full time employees.

[43] Common law contract employees are still covered by the Agreement which underpins the common law contract.

[44] Contained in an Agreement package distributed to employees between 27 February and 1 March 2017 was information regarding the proposed Agreement. The information included a checklist of changes (Comparison Table 16) so drivers could easily understand the material differences contained in the proposed Agreement as compared to the terms of the existing agreement the Swan Transit Enterprise Agreement 2012 which has a nominal expiry date of 23 April 2016.

[45] Mr Thompson referred to information sessions being held at each bus depot. He stated notices were placed on notice boards and employees coming on and off shifts were spoken to. He attended the Beenyup depot between 9.00am and 6.00pm solely for this purpose. Mr Thompson stated he was satisfied that all employees had the opportunity to attend the information sessions or request further information if they were unable to attend. Bargaining representatives were not excluded from this process.

[46] According to Mr Thompson, the comparison table provided to employees, together with a covering letter, was designed to provide information on topics that had attracted the most attention during the negotiations. Changes that did not materially affect existing drivers  17were not included as these details would be explained to new drivers when employed.

[47] Mr Thompson stated that during the depot meetings not all employees required an explanation of the Agreement from the relevant depot manager. Mr Thompson acknowledged that not all changes from the previous agreement were dealt with at the depot meetings however employees were able to raise any issues they wished concerning the Agreement.

[48] Mr Thompson was of the opinion that a comparison table containing greater detail than that provided would not be read by drivers. Minutes of all bargaining meetings were also posted on notice boards following the meetings.

[49] Mr Thompson stated that he did advise some bargaining representatives that they would not be given permission to talk to employees before the vote if they were not going to explain the Agreement but simply going to advise employees to vote ‘no’. 18

[50] Mr Richie, the Area Manager for Midvale, Ellenbrook, Mundaring and Karrinyup depots, stated 19 that on 28 February 2017 he had placed on the noticeboards at the Midvale, Ellenbrook and Mundaring depots, a notice titled ‘2017 Swan Transit Enterprise Agreement Information and Ballot’. The notice provided the days and times that information sessions would be held at the various depots to explain the Agreement and answer any questions.20 He instructed that Enterprise Agreement packs be handed to each of the drivers at the Midvale, Ellenbrook and Mundaring depots on 28 February 2017, and any driver not working on the relevant day had the Agreement pack mailed to their home address. Mr Ritchie advised that he conducted information sessions on the enterprise Agreement at the Mundaring, Midvale, Ellenbrook and Beckenham depots. He saw drivers in their respective lunch rooms and that a barbeque for drivers in conjunction with the information sessions was held.

[51] Mr Ritchie stated that where he was unable to speak to drivers he understood that the respective Operations Managers undertook this task.

[52] Mr Perry, Operations Manager Southern Rivers Depot, stated that on 28 February 2017, he handed out in the lunch room the enterprise Agreement package. Where a driver did not come into the depot or was on annual leave at the time, the package was emailed and posted to them. Mr Perry’s evidence was that at the time of handing out the package, he stated to each driver words to the effect of ‘If you have any questions about the enterprise agreement or need it explained to you, please come and see me and I will take you through it or answer your questions’.

[53] On 7 March 2017, he conducted the information session at the Southern River depot in conjunction with a barbeque. Mr Perry estimated that he spoke to between 50 – 60 drivers on the day asking if they needed the Agreement explained to them or whether they had any questions. Mr Perry stated that there are a number of drivers of Indian ethnicity at the Southern River depot all of whom are able to speak and read English. Despite this Mr Perry had one of the Indian depot co-ordinators speak with as many Indian drivers as possible to ask if they had any questions on the Agreement. 21

[54] Mr Henderson, an Area Manager responsible for the Shenton Park, North Fremantle and Canning Vale depots, gave evidence that he had a notice titled ‘2017 Swan Transit Enterprise Agreement Information and Ballot’ placed on the notice boards of the Shenton Park, North Fremantle and Canning Vale depots. The enterprise Agreement package was given to all rostered drivers and where drivers were not rostered to work or away on leave when the package was given out, he had the package mailed to them.

[55] On 3 March 2017, Mr Henderson attended the North Fremantle depot between 09:00am and 12:00pm to provide drivers with information regarding the Agreement and to answer any questions. Mr Henderson’s evidence was that he spoke to every driver as they signed on or as they returned to the depot from their first driving shift. Later that day he went to the Shenton Park depot to undertake the same process together with the Shenton Park Operations Manager. 22

[56] Mr Henderson stated that a number of drivers of Indian background tended to form small groups which he then spoke to; all indicated that they understood what he had explained to them.

[57] On 8 March 2017, an information session and barbeque was held at the Canning Vale depot which he attended together with the Canning Vale Operations Manager.

[58] Mr Murray who at the relevant time was the Operations Manager at the Beckenham depot stated that he had placed a notice titled ‘2017 Swan Transit Enterprise Agreement Information and Ballot’ on the noticeboard together with the proposed Agreement and the comparison table. In addition to this, drivers at Beckenham were each given an enterprise Agreement hand-out containing the same documents. 23

[59] Mr Murray’s evidence was that between 28 February and 9 March he spoke to between 50 and 60 drivers at the Beckenham depot concerning the enterprise Agreement, including one on one discussion with drivers that wanted a more detailed explanation. 24

TWU submissions

[60] Mr Dzieciol, on behalf of the TWU, advised the Commission that it was in support of the approval of the Agreement. While the Agreement was not the ideal outcome in the eyes of the TWU, the majority of employees voted to support its approval, having voted against the Agreement on two previous occasions. The final Agreement and vote was the result of a long process including 24 bargaining meetings, which at times involved heated debate amongst the participants.

[61] Mr Dzieciol noted that most of the changes didn’t impact on existing employees but new employees and that the requirement on the employer is to take reasonable steps to explain the Agreement by providing sufficient information, not to undertake an exhaustive process.

Mr Ferguson’s objections

[62] In support of Mr Ferguson’s objection to the approval of the Agreement, he called the following witnesses who provided witness statements and gave evidence:

[63] Mr Sturgess provided written submissions 25 and a statement of evidence26 opposing the approval of the Agreement on the basis that the Commission could not be satisfied that the Agreement has been genuinely agreed to by employees. Mr Sturgess’ complaint was that he did not understand some of the variations to the Agreement and consequences of the changes and was not provided with sufficient opportunity to advise ‘fellow employees’ on the Agreement details.

[64] Much of Mr Sturgess’ submissions related to matters leading up to the finalisation of the proposed Agreement concerning whether the applicant had bargained in good faith. 27

[65] Mr Fawkes gave evidence that he conducted a survey at the Beckenham depot after the vote on the Agreement, where 40 of the 51 employees surveyed indicated that they had not received an explanation of the changes in the Agreement or an explanation of the effects of those changes. 28 Mr Fawkes attached his survey sheets which comprised of various pages containing employee signatures attesting to not having been provided with a verbal explanation of the terms and effect of the Agreement.

[66] Mr Fawkes submission was that as a result of advising drivers to reject the Agreement and vote NO, he was then actively pursued by his employer with the intent to prevent him from communicating with drivers his concerns with the proposed Agreement. 29 Mr Fawkes also referred to being disciplined and receiving a final notice regarding his employment for not following a management direction regarding his handing out and posting of material relating to the agreement without management consent.30 Mr Fawkes also recalled Mr Thompson stating, in reply to a question from an employee representative, that representatives would be given time to explain the Agreement to drivers, but not if they were promoting a NO vote.

[67] Mr Fawkes didn’t recall seeing any notices on the noticeboard concerning the information session for the proposed Agreement at his depot.

[68] Mr Murdoch stated he was an elected depot representative for Southern River depot drivers and was also employed under the terms of a common law contract linked to the 2012 enterprise agreement. 31 Despite stating that the applicant had refused to allow him to provide advice to ‘fellow employees’ on the outcomes of the proposed Agreement32, Mr Murdoch in cross examination stated he did not have written authorisation to represent other drivers as a bargaining representative.

[69] Ms McCarthy gave evidence 33 that she had signed a document which stated she did not receive a verbal explanation of the Agreement from her employer on the basis that she felt there was insufficient time to allow her to access her workplace representative or employer to discuss the Agreement and its terms. This was due to her having limited free time to attend meetings being a mother and primary care giver and other personal circumstances she faced. On this basis she voted against supporting the Agreement. Ms McCarthy accepted that Mr Perry, the Southern River depot Manager, did ask her whether she had any questions regarding the Agreement, but did not avail herself of this opportunity to ask questions.

[70] Mr Phipps stated that he received the Agreement information package but could not recall seeing the notice on the noticeboard regarding the information session. Mr Phipps recalled that Mr Thomson had attended a barbeque and explained the Agreement. Mr Phipps stated he was not a supporter of the Agreement and although he received a verbal explanation on questions he had, he wanted the responses provided in writing. He was aware he could speak to his manager regarding questions about the Agreement during the access period.

[71] John Jamieson stated that he received the information pack but did not receive a verbal explanation from the applicant explaining the terms of the Agreement. 34 While he was aware of the barbeque to be held at the Southern River depot where drivers could have the terms of the Agreement explained, he chose not to attend preferring to receive an explanation from another person. Mr Jamieson also acknowledged that he could have spoken to his manager about the Agreement if he wished.

[72] Mr Kevin Giblett in his statement of evidence declared he also signed a document stating that he did not receive a verbal explanation from his employer on the terms of the Agreement and the effect of those terms. In cross examination he advised he attended a barbeque where Mr Perry tried to give him an explanation regarding the crib break term but the explanation provided did not resolve the issue he had with the term of the Agreement. He then went from the barbeque to the office and spoke to Mr Perry for 10-15 minutes regarding the Agreement.

Finding on whether employer took all reasonable steps

[73] Section 180(5)(a) of the FW Act requires that an employer must ‘take all reasonable steps’ to ensure that the terms of the agreement and the effect of those terms are explained to the relevant employees. As the TWU submitted, the legislative requirement is for the employer to take all reasonable steps, not to not undertake an exhaustive process.

[74] In The Maritime Union of Australia v Northern Stevedoring Services Pty Ltd  35 the Full Bench discussed the construction of the expression ‘all reasonable steps’ in the following manner:

[75] On 1 March 2017, an information session was held with all Operation Managers and Co-ordinators from all depots to ensure the information provided to drivers across 10 sites covered by the Agreement was accurate and consistent. The employer submitted that the necessity to ensure employees from non-English speaking backgrounds understood the Agreement was emphasised. 38

[76] I am satisfied that prior to 1 March 2017, notices were placed at each depot advising employees of scheduled information sessions to be held at each depot. The applicant stated that the information sessions were scheduled during the periods before drivers commenced work, during their meal breaks or after their finish times to ensure that all drivers had the opportunity to attend information sessions.

[77] The applicant provided evidence that between the period 1 March 2017 and 8 March 2017 management, supervisory staff and some bargaining representatives made themselves available in the lunchroom and within the depots and bus stations for drivers to ask questions. Where possible it was submitted that every driver was approached on a one on one basis to ensure that they had adequate information.

[78] The employer submitted that as the minutes of all 24 bargaining meetings had been posted on notice boards as well as notices advising drivers of outcomes during the process, most drivers showed a good understanding of the Agreement and changes from the 2012 agreement.

[79] On Monday 27 February, the Agreement, with explanatory information and information on the voting process, was either:

[80] The applicant submits that a non-technical and practical approach to s.180(5) appropriate to the circumstances should be adopted.

[81] It is submitted that in addition to its own efforts that the TWU was active in providing an explanation about the terms of the Agreement.

[82] It was submitted by the applicant that the comparison table document highlights the key clauses and changes relevant to employees. 40 The applicant does not accept that anything it has provided to employees is incorrect or misleading and submits that most matters not contained in the comparison table are either not material changes, have no effect on employees, only apply to new employees or were well canvassed in in the bargaining process.

[83] The applicant submitted that it followed the same process as in the two previous unsuccessful ballots and that the workforce was generally well aware of the contents of the proposed Agreement.

[84] The Full Bench decision in McDonald’s Australia Pty Ltd 41 stated that there is no requirement in s.180(5)(a) for there to be a full explanation of the terms of an agreement prior to the vote.42 The Full Bench held that the Commissioner in the first instance had erroneously elevated the test to requiring the applicants to establish in a definitive way that all employees were informed of all matters.

[85] In Glen Eden Thoroughbreds Pty Ltd T/A Ray While Shailer Park 43, Commissioner Asbury (as she then was) stated that where there are no employees in demographic groups who require more, it is reasonable that only major terms be explained to employees.44

[86] In the Full Bench decision of National Tertiary Education Union v University of New South Wales 45 it was stated:

[87] In respect of the decision in McDonald’s, I adopt the view of the Full Bench that the Act does not require a full explanation of the terms of the Agreement. In relation to some, if not most terms in an agreement, more than a cursory explanation is unlikely to be required. However it does not follow that the employer is not required to give any explanation at all, particularly in respect of the effect of terms which are likely to have a considerable effect on employees’ financial entitlements.

[88] I accept that a practical approach needs to be adopted in relation to the obligation in s.180(5)(a), particularly where an employer has a number of separate work sites with employees working various rosters outside a 9 to 5 working day, over 7 days of the week.

[89] The applicant has provided evidence that it had arranged information sessions at all depots, prior to which notices were placed at each depot advising employees of the information sessions. The information sessions covered the period before drivers’ commenced work, and took account of the meal breaks or finish times of every driver to ensure that all drivers had the opportunity to attend the information sessions. Management and other supervisory staff made themselves available in the lunchroom and within the depots for drivers to ask questions. To facilitate the information sessions, barbeques were also held at the same time. Where it was known employees were not at the workplace at the relevant times, the information packs were posted and emailed to them.

[90] There are a large number of employees covered by the Agreement who work at a number of work locations. The approach taken by the applicant in having senior management attend the various worksites for a significant portion of a day to speak to employees is to be commended. There is always more that can be done and Mr Ferguson pointed to what more could have been done or where some employees were unable to avail themselves of the information sessions. This does not result in the employer not having taken all reasonable steps. The FW Act doesn’t require perfection in the required communication of information to the workforce.

[91] A comparison table was provided to employees by the applicant which Mr Ferguson submitted did not contain all relevant comparisons. The statutory requirement that the terms of the Agreement, and the effect of those terms, are explained to the relevant employees is not a requirement that this explanation be put in writing, although that may be desirable. The applicant has used a combination of written material, information sessions and personal explanations in taking all reasonable steps to explain the terms and their effect to its workforce.

[92] Of the employees called by Mr Ferguson, their evidence went more to a dissatisfaction of the enterprise bargaining process and the final Agreement outcome. Of the witnesses who also signed a document stating that the employer had not attempted to explain the terms of the Agreement, when under cross examination, it became clear that this was not the case. They either chose not to attend the information sessions, did attend the information session, 47 received an explanation they weren’t content with,48 chose not to speak to their manager49 on being advised of the opportunity or wanted to speak to their own representative.50

[93] The action taken by the applicant to explain the terms of the Agreement and their effect, were in the circumstances ‘all reasonable steps’ within the meaning of s.180(5).

[94] The requirements of s.180(5) are satisfied.

[95] I am further satisfied that the needs of employees from culturally and linguistically diverse backgrounds were appropriately taken into account.

Common law contract

[96] It is not in dispute that a number of employees are, in addition to being covered under the current enterprise agreement, subject to a common law contract and will be offered a new common law contract should the proposed Agreement be approved. There is no suggestion that the proposed Agreement will not, in addition to the common law contract, cover these employees. On this basis they were entitled to vote on the Agreement. As the common law contract states, it is to be read in conjunction with the 2017 Enterprise Agreement. 51 I do not accept that the circumstances of the applicant’s common law contract employees are analogous with the situation described in BGC Contracting Pty Ltd,52 as submitted by Mr Ferguson.

NERR

[97] Section 174(1A)(a) of the FW Act states that the NERR must contain the content prescribed by the regulations.

[98] Regulation 2.05 states that the NERR is prescribed at Schedule 2.1. At the commencement of the prescribed notice the employer is required to populate the paragraph below:

[99] Each of the three employers which comprise the applicant issued their own separate NERR and stated that the proposed coverage is employees that drive primarily for Swan Transit Services Pty Ltd. Mr Ferguson contends that this results in the applicant not completing the NERR correctly as not all three employers were listed in the NERRs and the Agreement has extended coverage to include driving buses for all three employers.

[100] Each of the three employers’ party to the proposed single enterprise agreement completed NERR’s naming themselves as the employer and stating that the enterprise agreement would be known as the Swan Transit Enterprise Agreement 2016 and that the proposed coverage would be employees that primarily drive buses for Swan Transit Services Pty Ltd.

[101] The coverage clause of the Agreement at 2.1(a) states that the Agreement covers: “All employees who are engaged by the Employer primarily to drive buses.”

[102] While it is not uncommon that the proposed coverage of an enterprise agreement may vary during the bargaining process, it is incumbent on an employer to initially identify in the NERR what is intended to be the proposed coverage. 53

[103] The NERR’s named the correct employer, the correct name of the Agreement (apart from the year) and the proposed coverage of the Agreement; that is, employees primarily employed to drive buses for Swan Transit Services Pty Ltd. The proposed coverage in the NERR was not limited to driving buses for Swan Transit Services Pty Ltd (who is the larger employer of the three entities which comprise the applicant,) rather it was stated employees would primarily, (not exclusively) be employed to drive buses for Swan Transit Services Pty Ltd.

[104] The applicant states that the well-known commercial arrangements of the employers is that they provide labour to service a number of public transport contracts with the Western Australian Government and employees of one company may be employed to operate equipment under the possession or control of another company.

[105] The NERRs issued by the employers were in the form prescribed and did not contain any additional content. Including any other content would have exposed each employer to being non-compliant with s.174(1A). The proposition the NERR’s were non-compliant with the legislation is rejected.

Conclusion

[106] I have had regard for all the submissions made and the evidence of all witnesses appearing before the Commission in this matter, but have not considered it necessary to recount all that has been put by the various parties.

[107] I am satisfied that each of the requirements of s.186, including the requirement that the group of employees covered by the Agreement has been fairly chosen, and ss.187 and 188 of the Act as are relevant to this application for approval have been met.

[108] Having regard to the conclusions reached above, the Agreement is approved and will operate from the first pay period occurring 7 days from the date of approval, in accordance with the terms of the Agreement and s.54(1) of the FW Act.

[109] The nominal expiry date of the Agreement is 4 years from the date of approval.

[110] The undertakings provided by the applicant are in compliance with s.190(3) of the FW Act and having met the concerns raised by the Commission, they are taken to be a term of the Agreement. The undertakings provided are not so substantial that if asked to vote again, the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement as per s.190(3)(b) of the Act.

[111] A copy of the undertakings is attached at Annexure A.

[112] The TWU has stated in its F18 that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[113] This decision and undertakings should be brought to the attention of employees covered by the Agreement by the applicant.

al of the Fair Work Commission with member's signature

DEPUTY PRESIDENT

Appearances:
Mr M Kent In house counsel for the applicants
Mr A Dzieciol Legal Officer for the Transport Workers’ Union,
Mr G Ferguson, Mr J Fawkes, Mr G Sturgess, Bargaining representatives

Hearing details:
Perth
2017.
June 7 and 19

Annexure A

 1   Subclause 2.1(b)

 2   [2017] FWC 1358

 3   BUPA Care Services v P & A Securities Pty Ltd as trustee for the D’Agostino Family Trust T/as Michel’s Patisserie Murwillumbah and others [2010] FWAFB 2762 at (49).

 4   Submissions opposing approval of Agreement received 6 June 2017, Exhibit R10 at [29]

 5   The applicant’s written response Exhibit A3 indicates at 1.4 that 8 bargaining representatives filed an F18A

 6   Written submissions of 15 May; 6 June Exhibit R10; and 16 June Exhibit R11

7 S.193(1) Fair Work Act 2009

8 S.182(1) Fair Work Act 2009

9 [2010] FWAFB 9985

 10   Ibid at [41]

11 [2010] FWAFB 4602

12 Ibid at [13]

13 AKN Pty Ltd t/a Aitkin Crane Services [2015] FWCFB 1833; Armacell Australia Pty Ltd and others [2010] FWAFB 9985; National Tertiary Education Union v University of New South Wales [2011] FWAFB 5163; Solar Systems Pty Ltd [2012] FWAFB 6397

 14   Evidence by video link to Darwin

 15   Statutory declaration of Brian Thompson, Exhibit A4

 16   Exhibit R10, Attachment B

 17   For example the new classification structure

 18   Mr Thompson’s evidence on this matter was not consistent with the applicant’s written submissions of 4 May at 2.38

 19   Statutory declaration of Allan Ritchie, 15 June 2017, Exhibit A5

 20   Attachment AR1 of Exhibit A5

 21   Statutory declaration of Barry Perry, Exhibit A6

 22   Statutory declaration of Steven Henderson, Exhibit A7

 23   Statutory Declaration of Glenn Murray, Exhibit A8 at [2] and [3]

 24   Exhibit A8 at [5]

 25   6 June, 18 May 2017

 26   Statement of Garry Sturgess, 14 June 2017, Exhibit R1

 27   See statement of 18 May 2017

 28   Statement of John Fawkes, 5 June 2017, Exhibit R3

 29   Statement of John Fawkes, 15 May 2017, Exhibit R2

 30   Ibid, at attachment GM4

 31   Statement of Philip Murdoch, Exhibit R4

 32   Ibid at [8]

 33   Statement of April McCarthy, Exhibit R6

 34   Statement of John Jamieson, Exhibit R8

 35   [2016] FWCFB 1926

 36   [2004] NSWIRComm 222; 137 IR 176 at [67]-[71]

 37   [1995] TASSC 91; (1995) 5 TASR 121 at 133

 38   See answer to question 2.3 in applicants F17

 39   Applicant’s F17

 40   Written response 4 May 2017, Exhibit A3

 41   [2010] FWAFB 4602

 42   Ibid at [30]

 43   [2010] FWA 7217

 44   Ibid at [77]

 45   [2011] FWAFB 5163

 46   Ibid at [33]

 47   Mr Giblett’s evidence

 48   Mr Phipps’ evidence

 49   Mr Jamieson’s evidence

 50   Ms McCarthy’s evidence

 51   It was acknowledged by Mr Kent that the common law contract could not prevail over the Agreement despite the wording of the common law contract 3.3

 52   [2017] FWC 852 at [99] Noting this decision was also overturned on appeal

 53   Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd [2015] FWCFB 3337 at [30]

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