[1] This decision will determine an application, pursuant to s 185 of the Fair Work Act 2009 (the Act), filed by Aero Care Flight Support Pty Ltd (the 'applicant') which seeks the approval of Fair Work Australia ('FWA') of a single enterprise agreement to be known as the Aero Care Collective Agreement 2011 (the 'Agreement'). The Agreement is to cover over 900 employees engaged in various airline related services including ground handling, cabin crew, baggage handling, aircraft marshalling and passenger services and is to operate in all States and Territories of the Commonwealth.

[2] The application for the approval of the Agreement was filed on 20 December 2011 following a vote of employees conducted between 13 - 15 December 2011, in which 709 out of the 822 employees who cast a valid vote, supported the Agreement's approval. Accordingly, the 14 day time period from approval to filing, required by s 185(3) of the Act, has been met.

[3] Prior to the application being listed before FWA (20 February 2012), the Australian Municipal, Administrative, Clerical and Services Union (the 'Union') wrote to FWA and the applicant's representative - Mr Peter Rochfort of Rochfort Associates Pty Ltd, identifying an alleged defect in the preapproval process, specifically in respect to the notice of employee representational rights, and also claiming that the Agreement contravened s 55 of the Act which deals with the interaction between the National Employment Standards ('NES') and an enterprise agreement. The Union had also filed a Declaration in relation to the application (Form F18) in which it claimed to be a bargaining representative for the Agreement and, while it did not support FWA's approval of the Agreement, nevertheless gave notice that it wished to be covered by it (this notice was withdrawn when a fresh F18 was later filed).

[4] At a hearing of the application on 20 February 2012, Mr Rochfort with Mr G Shelley, General Manager - Employee Relations, appeared for the applicant and Mr J Cooney, appeared for the Union. Mr Cooney raised two further matters of concern to the Union; firstly, that the proposed Agreement did not satisfy the Better Off Overall Test ('BOOT') and secondly, that in the Employer's F17 no relevant reference instrument had been identified. Mr Cooney said that the relevant reference instrument is the Airline Operations - Ground Staff Award 2010 [MA000048] (the 'Award'). In addition, Mr Cooney put submissions as to the Union's right to represent the industrial interests of the employees to be covered by the Agreement. However, Mr Rochfort made clear that the applicant did not dispute this right; except to note that the Union has never sought to participate in negotiations for the Agreement. I need take this last matter no further.

[5] As to the relevant Award comparison, Mr Rochfort accepted that the applicant had mistakenly named the former (although current) agreement as the relevant reference instrument for the purposes of the BOOT. He acknowledged that the Award identified by the Union was the correct comparator. Nevertheless, the applicant remained convinced that the Agreement would still satisfy the BOOT if measured against the Award.

[6] In reply, Mr Cooney identified a number of clauses which were less beneficial than the corresponding Award clauses; namely,

• minimum engagements for casuals and part time employees;

• not allowing a family member to represent an employee in disputes under the disputes procedure.

Further, Mr Cooney put that the Agreement offended the provisions of the NES in respect to;

• the accrual of personal leave (s 96(2)); and

• redundancy (s 119)

[7] Mr Cooney also noted that the Agreement contained classifications for cabin crew and said that the relevant Union covering aircraft cabin crew, should have been notified of the approval proceedings and the appropriate reference instrument should have been identified for the purposes of the BOOT.

[8] Mr Cooney developed his other objection to the Agreement's approval and submitted that because the employees were requested to approve the Agreement before 21 days after the last day on which the notice of representational rights had been given to employees (28 November 2011) the Agreement cannot be approved because of the mandatory requirements under s 173(1) of the Act. Mr Cooney noted that voting for the approval of the Agreement commenced on 15 December 2011, being 15 days and not the 21 days as required by s 181(2) of the Act. In this respect, he relied on Stephen Bland v CEVA Logistics (Australia) Pty Ltd [2011] FWAFB 7453 ('Bland') and Eagle People Pty Ltd Enterprise Agreement and other Agreements [2010] FWAA 3636 ('Eagle Boys').

[9] In reply, Mr Rochfort relied on s 173(4) of the Act which, at this point, I conveniently reproduce as follows:

'An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement'.

[10] Mr Rochfort accepted that there were two written notices provided to employees - one dated 19 November 2011 which did not comply with the statutory requirements and the other, dated 28 November 2011 (see Annexure B), which, on its face, complied with the notice requirements. However, this later notice had more to do with giving the employees notice of the ballot. In any event, Mr Rochfort contended that in presentations given to all employees, in 16 locations throughout Australia, involving Mr Shelley and other managers, slides were shown which clearly gave the employees notice of their representational rights beyond the 21 day requirement and certainly 'within a reasonable period'. (see Annexure A)

[11] At this juncture, I indicated to Mr Rochfort that absent properly called evidence as to the meetings he referred to, I could not be satisfied that each employee had received notice of their representational rights in accordance with the specific requirements of the Act (my emphasis). I also raised two minor drafting mistakes in the Agreement concerning a reference to the non-existent 'Workplace Authority' and referring to the Agreement as a 'contract'. More importantly, I was concerned that the Agreement did not appear to provide for any mechanism to adjust wage rates during its nominal term of 4 years. Mr Rochfort's answer to this later concern was that the Agreement provides up front wage increases of 15 per cent more than the previous agreement and while there was no provision to adjust the rates beyond that, the 15 per cent would be absorbed into any Award increases during that time. He also observed that employees move upward through the classification structure based exclusively on years of service.

[12] At this point, I identified a number of other poorly worded provisions in the Agreement which did not disclose that wage increases through the classification structure were automatic and that years of service meant years of service in the new position. Mr Rochfort explained that this was not how the provisions were meant to operate in practice.

[13] That being so, I indicated to Mr Rochfort that I could not be convinced that the employees had genuinely agreed to the Agreement when the words used do not mean what they say. As I did not want to delay any wage increases under the Agreement for employees through no fault of their own, Mr Rochfort gave an undertaking that increases flowing from the Agreement would be paid from 20 February 2012. Further, I directed that an affidavit be filed and served as to where, when and how the employees were informed of their representational rights and that should any deponent of evidence be required for cross-examination, or either party wished to put further submissions, arrangements would be made for a further listing of the matter.

[14] At the union's request, the matter was relisted on 15 March 2012 with Mr A Slevin of Counsel, appearing for the Union, assisted by Mr Cooney and Mr Rochfort with Mr Shelley, again appearing for the applicant. Mr Shelley had filed two statements and was cross-examined by Mr Slevin.

[15] It was Mr Shelley's evidence that meetings were held with employees and Company Executives in Coolangatta, Darwin, Maroochydore, Brisbane, Townsville, Canberra, Hobart, Cairns, Melbourne, Gladstone, Sydney and Perth from 17 October 2011 to 16 November 2011, in which powerpoint presentations were made concerning the proposed Agreement. One of the slides shown during the presentations is annexed to this decision and marked 'Annexure A'.

[16] Mr Shelley said the meetings included questions from the employees and follow up by some of them seeking clarification of matters raised in the meetings. Mr Shelley observed that shortly after the Sydney meeting on 4 November 2011, a TWU notice was posted in a Company toilet. He included this document in his evidence to demonstrate that at least one Union was aware of the negotiations, but there had been no Union input into the development of the Agreement.

[17] Mr Shelley acknowledged the mistake in the F17 in that no modern award was identified for the purposes of the BOOT analysis. However, it should have been the Award and comparisons were made to that Award for the purposes of the BOOT.

[18] In cross examination, Mr Shelley deposed that for the purposes of rostering and pay advice, all employees have an account with the Company's intranet system. However, other means of communication include meetings and Company notice boards. He noted that the memorandum of 28 November 2011 (Annexure B) was posted on notice boards and sent electronically.

[19] Mr Shelley acknowledged that there were no programs in place to assist the 214 identified employees from non-English speaking backgrounds. He could not give exact numbers of employees who attended the meetings in the various ports, but said he understood most employees had attended.

[20] In response to the evidence of Mr Shelley, the Union, in further written submissions dated 5 March 2012, put that the Agreement does not meet the BOOT under s193(1) of the Act in that the Agreement does not leave the employees better off when compared to the Award, in the following respects:

No differentiation between roles in the classification structure, i.e. customer service / ramp etc. The document is worded as such that all employees are employed to work across all roles as required subject to possessing the relevant skill and or certification. This in itself presents an issue when comparing classifications and pay levels against the Award.

Casual rates of pay offer less than 25% loading on the permanent equivalent rates and are lower than the Award (based on the Modern Award Clerical, admin and support stream classification structure to which Customer service/ check in/ load control and baggage services fall into).

Undercuts the Award on minimum engagement. EA offers 3 hours, Award= 4 hours.

Meal breaks offer less than Award in that they are required to take an unpaid break between 30 mins and 2 hours including continuous shift workers whose breaks are paid time under the Award.

Full Time Employees required to work a minimum of 42 hours per week (546hrs/13wks)

There is no stand by allowance for employees rostered on standby. [the employee must be paid standing by time at the employee's ordinary time rate for the time they are standing by]

There is capacity to work multiple shifts per day contrary to the provisions in the Award

Doubtful that the flat rate of pay adequately compensates for the many allowances and penalties employees would otherwise receive under the applicable Award(s)

Variation to EA by application to Workplace Authority.

FWAct - s219

FWAct - s207→

No BOOT reference to Aircraft Cabin Crew Award 2010 [MA000047]

There are no "specialist duties" rates of pay in Schedule A as referred to at 7.8 in the Document.

Dispute Resolution Procedure contains discriminatory content by preventing employees from appointing a family member to advocate on their behalf.

s524

[21] Mr Slevin concentrated his oral submissions on the proper construction of the sections of the Act dealing with the notice of employee representational rights. He put that even on the face of the applicant's F17, the last notice of representational rights given to employees was the 28 November 2011. Obviously, this was 15 days to the commencement of voting and not the required minimum of 21 days. As this was the last notice, the mandatory requirement under s 173(1) of the Act has not been complied with. Mr Slevin added that it must be accepted that the notice of the 19 November 2011 was not a notice of representational rights in the prescribed form and can therefore be ignored.

[22] Mr Slevin dealt with the applicant's argument that the employees were given notice in the various meetings called the 'slide shows', all of which took place before 16 November, 2011. Mr Slevin noted that the requirement is for 'all reasonable steps' (s 173(1)) to be taken and the first point to observe is that the 'slide shows' were not the usual form of communication between the applicant and its employees. It had sent the 28 November 2011 notice and the 19 November 2011 memo through the intranet to all employees. If it had utilised that means to send copies of the 'slide show', then that may have been a 'reasonable step'. The Regulations do not contemplate a 'slide show' or 'powerpoint' presentation as satisfying the reasonable steps obligation. It was not even a notice on a notice board being the other means by which the applicant communicated with its employees (see: Cambridge C in CQ Leisure Investments Pty Ltd t/a Tabatinga Entertainment Centre & Cafe [2010] FWA 3118). Mr Slevin noted that the 'slide show' was not a written notice which employees could take away and properly consider. Moreover, Mr Shelley could not guarantee all employees had attended the meetings.

[23] Mr Slevin observed that, in any event, not all the required regulatory information was included on the relevant slide, such as where employees could go to obtain independent advice or information. The purported notice was thereby 'tainted' in that:

(c) it was not a 'reasonable step' to satisfy the applicant's obligations under the Act.

[24] Mr Slevin did not accept that subs. (4) of s 173 can be relied upon, because the 'slide show' wasn't a notification before bargaining began and so could not be 'a reasonable period' before the notification time in subsection (2) of s 173. He also relied on the Act's Explanatory Memorandum as there have been no authorities in respect to the meaning of s 173(4) of the Act. Mr Slevin put that, in any event, 'all roads lead to Rome' and 'Rome' is the 28 November 2011. That must be the end of the matter.

[25] Mr Rochfort submitted that Mr Shelley was unshaken in his belief that the employees had been given notice of their representational rights in the port meetings and these meetings were 'reasonable steps' taken by the applicant. He also cited Bland to demonstrate that a notice is not required to be given to each employee, but only that the employer take reasonable steps to do so. Moreover, the Full Bench doubted that s 173(1) was a mandatory requirement for the approval of an enterprise agreement.

[26] Mr Rochfort dismissed the Union's claim that the Agreement did not meet the BOOT because its submission ignored the benefits to employees, which included significant wage increases compared to the current agreement. Mr Rochfort noted the overwhelming majority of employees supporting the Agreement and put that this was evidence that the applicant had made all reasonable efforts to contact every employee and invite them to attend the meetings. The Union says it has only one member in Queensland, but importantly it had never approached the applicant to disclose it was a bargaining agent. Mr Rochfort said that the Agreement should be approved, for all its shortcomings, because it is in the interests of the affected employees, whereas the Union is not affected at all. Mr Rochfort confirmed that the benefits of the Agreement will be back paid to 20 February 2012.

[27] In reply, Mr Slevin said that submissions based on discretionary factors were not relevant to mandatory requirements. Mr Slevin noted that the applicant was no 'corner store', but a large employer with a Human Resources Manager and a sophisticated means of communicating with its employees. It should have followed the Act's requirements. Mr Slevin said that although the Union does not seek to be covered by the Agreement, (rather it should not be approved) it seeks to be involved in renewed negotiations on behalf of its members.

[28] Shortly after the hearing, FWA received a report from the internal Enterprise Agreement Unit ('EAU') raising a number of concerns with the Agreement's compliance with the BOOT. I provided the report to the parties and invited further submissions from them.

[29] The Union did not dispute the EAU's BOOT analysis and identified a number of other Awards that might also be relevant to this analysis.

[30] On the other hand, Mr Rochfort submitted that:

• the applicant had made the incorrect Award comparison;

• the applicant recognises the disparity in the casual hourly rates in the Agreement. However, it sought to 'incentivise' existing permanent employees and for casual employees to convert to permanent employment. It had done so by using the existing roster arrangements. This resulted in an advantage for all employees used in the comparison exercise;

• the EAU had used a hypothetical roster which indicated a marginal disadvantage for a minimal number of employees. However, in recognising that all employees must be better off overall, the applicant proposed an undertaking to increase the Airline Service Trainee casual rate by 0.45% to $21.65. This rectified the identified anomaly.

• in respect to the Advanced Airline Service Agent, the EAU's methodology did not represent the functionality of their roles. It was equivalent to Level 2 Airline Service Agent in the Award and not the Level 4 rate.

• the methodology of employees working on a Saturday and Sunday for an equal number of hours does not reflect the reality of what occurs at the applicant's enterprise. However, to the extent there is a hypothetical disadvantage, the applicant undertook to ensure it does not occur for any employee.

• to the extent of any disadvantage for casual Airline Service Agents, the applicant would give an undertaking to increase rates at Level 1 to $23.79 (3.25%) and Level 2 to $24.14 (2.25%) in respect to the full time Level 3 comparison. The EAU had applied the wrong comparison and the correct comparison met the BOOT.

• the applicant does not, as a matter of policy, roster employees on overtime. Voluntary additional hours are worked at the employee's request.

• the applicant does not offer cabin crew work at the present time. Should that situation change, the applicant undertook to pay the rates and allowances applicable to the relevant Modern Award.

• there are infrequent occasions where employees work shift work.

• rosters are prepared 6 weeks in advance and employees can take issue with any rostering arrangements.

• rates of pay are automatically varied at the anniversary of appointment.

• the following allowances would apply to employees:

• these allowances are more than compensated for by the higher rates of pay.

Mr Rochfort submitted that overall the Agreement satisfies the BOOT in that up front increases of up to 15 per cent are available to existing and future employees from 20 February 2012.

[31] Unfortunately, I would dismiss this application on three bases. Firstly, I cannot be satisfied that the employees genuinely agreed to the Agreement, as contemplated by ss 186(2) and 188 of the Act; secondly, the employees were not properly given notice of their representational rights as required by ss 173 and s 181(2) of the Act; and thirdly, the undertakings proposed by the applicant to remedy my concerns as to the Agreement's compliance with the BOOT, will substantially alter the Agreement and therefore the Agreement cannot be approved. I will now develop each of these conclusions.

Was the Agreement genuinely agreed to by the employees?

[32] Section 180 of the Act is a condition precedent for the approval of an enterprise agreement. It is expressed as follows:

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

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

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

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

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

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

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

(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).

Terms of the agreement must be explained to employees etc.

(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.

(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(c) employees who did not have a bargaining representative for the agreement.

s 180 is to be read in conjunction with s 186 and s 188 which are expressed as follows:

186 When FWA must approve an enterprise agreement - general requirements

(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).

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

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2: FWA may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).

Requirement that the group of employees covered by the agreement is fairly chosen

(3) FWA must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

(4) FWA must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

Requirement that there be no designated outworker terms

(4A) FWA must be satisfied that the agreement does not include any designated outworker terms.

(a) the agreement specifies a date as its nominal expiry date; and

(b) the date will not be more than 4 years after the day on which FWA approves the agreement.

(6) FWA must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.

Note 1: FWA or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

Note 2: However, this does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).

188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(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

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

[33] Regrettably, this application was carelessly prepared and the Agreement itself, poorly drafted. On the other hand, I am cognisant of the fact that the Agreement, in its current form, is to cover many hundreds of employees and was overwhelmingly approved by them in a secret ballot conducted over 3 days in which 822 employees cast a valid vote and 709 employees voted to approve the Agreement (86.25%). I also acknowledge that the applicant has undertaken information sessions with employees in all ports where the Agreement is to operate and I do not doubt that it has genuinely sought to consult with its employees.

[34] Nevertheless, the documentation filed with FWA includes wrong dates, references to repealed legislation, confusing notices, curious wording of clauses and the inclusion of cabin crew classifications without any reference, let alone comparison, to the relevant Award. However, two matters are of particular concern; firstly, the incorrect identification of the relevant reference instrument for the purposes of the BOOT which meant that no less beneficial terms compared to the relevant reference instrument were identified and secondly, critical clauses, for example, dealing with wage adjustments and years of service in Mr Rochfort's own words, do not mean what is applied in practice in the workplace. In other words, the clauses do not mean what their plain English meaning say they mean. Given these circumstances, it is not too difficult to envisage that future disputation over the meaning of the clauses is a real and practical prospect; particularly considering the Agreement is to cover hundreds of current and future employees for a period of 4 years. This is an outcome which, to my mind, is to be deprecated and avoided.

[35] When viewed in this light, it is difficult for me to be satisfied, to the requisite standard, that the employees genuinely agreed to the Agreement within the meaning of s 186(2) and s 188 of the Act. Even putting this conclusion aside, as the Union correctly submitted, there remains the two other hurdles to the Agreement being approved by FWA.

Did the employees receive notice of their representational rights in accordance with the requirements of the Act?

[36] In answering this question, the following statutory provisions are relevant:

Employer to notify each employee of representational rights

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

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

Note: For the content of the notice, see section 174.

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(c) a scope order in relation to the agreement comes into operation; or

(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

Notice need not be given in certain circumstances

(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.

(5) The regulations may prescribe how notices under subsection (1) may be given.

It is to be observed that s 173 is to be read in conjunction with s 188(a)(ii) and s 181(2) of the Act.

[37] Section 181(2) sets out the time period which must elapse between the last day on which the notice of representational rights is given and the commencement of the voting period for the Agreement. The subsection is expressed as follows:

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

[38] Regulation 2.04 of the Fair Work Regulations 2009 (the 'Regulations') is also relevant and is expressed as follows:

(1) For subsection 173 (5) of the Act, each of the following is a manner in which the employer for a proposed enterprise agreement may give employees who will be covered by the agreement notice of the right to be represented by a bargaining representative for the agreement.

(2) The employer may give the notice to the employee personally.

(3) The employer may send the notice by pre-paid post to:

(b) another email address nominated by the employee.

(5) The employer may send to the employee's email address at work (or to another email address nominated by the employee) an electronic link that takes the employee directly to a copy of the notice on the employer's intranet.

(7) The employer may display the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee.

(8) Subregulations (2) to (7) do not prevent the employer from using another manner of giving the notice to the employee.

[39] By way of comparison, I have annexed to this decision the two crucial documents referred to by the parties (Annexures A and B) and the Act's prescribed notice of employee representational rights set out at Regulation 2.05, Sch. 2.1 (Annexure C).

[40] A number of observations may be made about whether the various port meetings and the relevant slide (Annexure A) constituted 'reasonable steps' as contemplated by s 173 of the Act.

(a) Obviously the relevant slide was not a written notice of representational rights.

(b) There was no evidence that the slide show was sent to the employees by way of the applicant's intranet site or provided to each employee in hard copy format. If either of these means of communication were used, they both may well have constituted 'all reasonable steps' as required by the Act.

(c) Mr Shelley properly conceded that 'most' of the employees attended the meetings. Therefore, there could be no assurance that all employees attended the meetings. There may well have been employees who chose not to attend, were required to work or were absent for some other reason, such as on various forms of leave. Thus, it is difficult for me to be satisfied that each employee received the notice of representational rights, notwithstanding whether the slide itself was a 'reasonable step' of giving the notice.

(d) As will be readily apparent, the slide did not include all of the required information necessary for it to be consistent with the prescribed form at Reg 2.05, Sch. 2.1. The last heading and arguably the most important, relating to how employees can obtain independent information about the notice and bargaining, is omitted.

[41] As to the applicant's reliance on subs (4) of s 173, Mr Slevin was correct in submitting that the terms of the subclause, provide no comfort to the applicant. This must be so, as the giving of the notice, is predicated on the notification time under subs (2). It must precede the commencement of bargaining or be relatively close to the commencement of bargaining. It cannot purport to be a notice when bargaining has long since commenced and in some cases, in the Perth slide show of 16 November 2011 for example, bargaining had virtually concluded with voting taking place from 13 December 2011. In this regard, I respectfully agree with what Gooley C said in Smith & Nephew Pty Ltd [2010] FWA 2465 ('Smith & Nephew') at paras 13 - 15:

'I accept that it is possible under the Act for an employer to develop an agreement and initiate bargaining or commence bargaining by presenting that agreement to employees at the same time as the employees are given the notice of employee representational rights and provided the employees are not requested to vote until 21 days have elapsed, section 182(2) of the Act will be satisfied.

I do not, however, accept that an employer can initiate bargaining and not provide the employees with the notice of employee representational rights within 14 days of that date. Even if I accept S&N's submissions that the initiation of bargaining commenced on 19 October 2010, the employer was required to provide the employees with the notice by 3 November 2010 and S&N did not do so until 12 November 2010.

It is clear that the Act requires that employees know of their rights to be represented during the bargaining process and not after bargaining has been completed'.

[42] Given my conclusions that the applicant had not taken reasonable steps to give the employees notice of their representational rights, I do not accept that the Full Bench decision in Bland supports the applicant's contentions in this case. Moreover, the Full Bench in Bland speculated on the very circumstances disclosed in this case. The majority said at par 43:

'There might be circumstances where a failure to comply with the requirements of s.173(1) could lead to Fair Work Australia not being satisfied that an agreement was genuinely agreed to. We could envisage a situation where a failure by an employer to take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee might lead to a conclusion that the employees who did not receive such a notice and nevertheless voted to approve the agreement did not genuinely agree to it because they had been deprived of the opportunity to appoint a bargaining agent and were thereby prejudiced in the decision-making process. In such a case there would be reasonable grounds for believing that the agreement had not been genuinely agreed to by the employees under s.188(c). However, that is not the case here'.

[43] Nevertheless, while I readily acknowledge that the majority of the Full Bench in Bland doubted whether compliance with s 173(1) was a mandatory requirement for an agreement's approval, there does appear to be some tension with that view and numerous decisions of the Tribunal on the point: see Bupa Care Services Pty Ltd & P & A Securities Pty Ltd as trustee for the D'Agostino Family Trust t/a Michel's Patisserie Murwillumbah and others [2010] FWAFB 2762; CQ Leisure Investments Pty Ltd t/a Tabatinga Entertainment Centre & Cafe [2010] FWA 3118; Eagle Boys and Smith & Nephew. In any event, I do not understand the majority in Bland to have conclusively decided the point by their use of the words 'we doubt that compliance with the provisions of s.173(1) is mandatory, such that a breach of it necessarily renders an enterprise agreement void and incapable of approval' (see para [42]).

[44] That said, there is much force to Mr Slevin's submission, that the last date the employees were given notice of their representational rights must be the 28 November 2011, as recorded in the F17 prepared by the applicant. As a result, the mandatory requirement of s 173(1) has not been met and, as a further consequence, the application for approval of the enterprise agreement must be dismissed. I note that, as Mr Rochfort said, the 28 November 2011 notice had more to do with giving notice of the ballot, rather than giving notice of employee representational rights. Such notice should be given at, or soon after, bargaining is to be initiated or commenced.

[45] The relevant statutory provisions FWA is required to take into account concerning the BOOT are found at s 186(2)(d) and s 190 of the Act which are set out below:

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

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

190 FWA may approve an enterprise agreement with undertakings

(a) an application for the approval of an enterprise agreement has been made under section 185; and

(b) FWA has a concern that the agreement does not meet the requirements set out in sections 186 and 187.

(2) FWA may approve the agreement under section 186 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.

(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any employee covered by the agreement; or

(b) result in substantial changes to the agreement.

FWA must seek views of bargaining representatives

(4) FWA must not accept an undertaking under subsection (3) unless FWA has sought the views of each person who FWA knows is a bargaining representative for the agreement.

(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.

[46] The applicant has proposed a number of undertakings in respect to some specific deficiencies identified by the FWA EAU as to the Agreement's compliance with the BOOT.

[47] It must be readily accepted that in the ordinary course, the BOOT requires FWA to undertake a balancing exercise of all the less beneficial terms and the more beneficial terms when an agreement is compared to its relevant reference instrument/s. It is not a strict comparison of clause against clause.

[48] In my opinion, the undertakings proposed by the applicant, and particularly considering that no undertakings were given in respect to clauses which do not mean what they say, the proposed Agreement could not reflect what the employees voted for, or believed they were voting for. Any further changes by way of additional undertakings would likely exacerbate this disparity and result in the undertakings being substantial changes to the Agreement which could not satisfy FWA that the Agreement should be approved (see s 190(3)(b)).

[49] I do not underestimate the logistical difficulties and inconvenience a fresh application and the voting for a new Agreement will create. This is regrettable, but unavoidable. That said, the accepted use of the applicant's intranet facility will no doubt relieve the parties of any particularly onerous obligations in that regard. It should not be lost sight of, that this Agreement was to cover the employment of hundreds of existing and future employees of the applicant for 4 years. The Agreement is to have Australia-wide coverage in a very competitive industry. It behoves the applicant to 'get it right'. This case demonstrates why it is incumbent on all employers who initiate bargaining for an enterprise agreement, to take care in complying with their legislative obligations, in respect to both the application for approval, but more importantly, in respect to the details of the terms and conditions it expects its employees to be bound by.

[50] In summary, I cannot be satisfied that the legislative requirements for approval of the Agreement have been met. The application for approval of this Agreement is dismissed. An order to this effect will be published contemporaneously with this decision.

Applicant: Mr P Rochfort, Industrial Advocate, Rochfort & Associates Pty Ltd and Mr G Shelley, Employee Relations Manager for Aero Care Flight Support Pty Ltd.

ASU: Mr Slevin of Counsel and Mr J Cooney, National Industrial Officer, of the Australian Municipal, Administrative, Clerical and Services Union.

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