s.185 - Enterprise agreement

Capital Lines & Signs Pty Ltd Trading AS Capital Lines And Signs

Application for approval of the Capital Lines & Signs Enterprise Agreement 2025

• [1] Capital Lines & Signs Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Capital Lines & Signs Enterprise Agreement 2025 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single enterprise agreement.

• [2] The Agreement will apply to employees who are covered by either the Building and Construction General On-site Award 2020 (Building Award), the Clerks - Private Sector Award 2020 (Clerks Award), or the Miscellaneous Award 2020 (Miscellaneous Award).

• [3] Where an application for approval of an enterprise agreement is made under s.185 of the FW Act, s.186(1) requires that the Fair Work Commission (Commission) approve the agreement if the requirements set out in ss.186 and 187 are met. Section 186(2)(a) requires the Commission to be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement. Section 186(2)(d) requires the Commission to be satisfied that the agreement passes the BOOT.

• [4] Section 188 of the FW Act sets out the requirements for determining whether an agreement has been genuinely agreed to by employees. It provides:

188 Determining whether an enterprise agreement has been genuinely agreed to by employees

(1) The FWC must take into account the statement of principles made under section 188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement.

Sufficient interest and sufficiently representative

(2) The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employees requested to approve the agreement by voting for it:

(a) have a sufficient interest in the terms of the agreement; and

(b) are sufficiently representative, having regard to the employees the agreement is expressed to cover.

Note: In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (2018) 262 FCR 527, a Full Court of the Federal Court observed that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved.

Agreement of bargaining representatives that are employee organisations

(2A) The FWC cannot be satisfied that an enterprise agreement to which section 180A or 180B applies has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with section 180A or 180B (as the case requires) in relation to the agreement.

Where notice of employee representational rights was required

(3) Subsection (4) applies in relation to an enterprise agreement if an employer was required by subsection 173(1) (which deals with giving notice of employee representational rights) to take all reasonable steps to give notice in relation to the agreement.

(4) The FWC cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with the following provisions in relation to the agreement:

(a) sections 173 and 174 (which deal with giving notice of employee representational rights);

(b) subsection 181(2) (which requires that employees not be requested to approve certain enterprise agreements until 21 days after the last notice of employee representational rights is given).

(4A) The FWC cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with subsection 180(5) in relation to the agreement.

(5) In determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement (including determining whether it is satisfied that an employer complied with the provisions mentioned in subsection (2A) or (4) or (4A)), the FWC may disregard minor procedural or technical errors made in relation to the following requirements if it is satisfied that the employees were not likely to have been disadvantaged by the errors:

(a) section 173 or 174 (which deal with notices of employee representational rights for certain agreements);

(aa) subsection 180(5) (which requires employers to explain the terms of agreements);

(ab) section 180A or 180B (which deal with agreement of certain bargaining representatives);

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

(c) subsection 182(1) or (2) (which deal with the making of different kinds of enterprise agreements by employee vote).

(6) The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the requirements (if any) prescribed by the regulations for the purposes of this subsection are met.

• [5] Section 188(1) requires the Commission to take into account the Statement of Principles of Genuine Agreement (SOP) made under s.188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement.

• [6] Paragraphs 1-3 of the SOP deal with the requirement that employees are informed of bargaining for a proposed enterprise agreement and of their right to be represented by a bargaining representative. Paragraphs 4-7 deal with the requirement that employees are provided with a reasonable opportunity to consider a proposed enterprise agreement. Paragraphs 8-14 deal with the requirement to explain to employees the terms of an enterprise agreement and their effect. Paragraph 17 deals with the matters which may be taken into account when considering whether employees have a sufficient interest in the terms of an enterprise agreement as required by s.188(2)(a) of the FW Act, and whether the employees are sufficiently representative as required by s.188(2)(b). Paragraph 18 provides that an enterprise agreement will generally not have been genuinely agreed to by the employees covered by the agreement unless the agreement was the product of an authentic exercise in agreement-making between the relevant employer and employees. Paragraph 19 refers to the circumstances where one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees covered by the enterprise agreement which is not the case here as no union bargaining representatives were involved.

• [7] Paragraphs 15 and 16 of the SOP deal with providing employees with a reasonable opportunity to vote on a proposed agreement in a free and informed manner, including by informing the employees of the time, place and method for the vote. Paragraphs 15 and 16 provide:

1. Employees should be given a reasonable opportunity to vote on a proposed enterprise agreement in a free and informed manner. This should include:

(a) a voting process that ensures the vote of each employee is not disclosed to or ascertainable by the employer, and

(b) a method and period of voting that provides all employees entitled to vote with a fair and reasonable opportunity to cast a vote.

1. Employees should be informed of the time, place and method for the vote:

(a) at least 7 full calendar days before the day on which voting starts (for example, if the voting is to start on 9 May, employees should be informed on or before 1 May), or

(b) by such other reasonable time before the day on which voting starts as is agreed with one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.

• [8] The Commission initially raised a number of concerns with the Employer in relation to its compliance with Paragraphs 15 and 16 of the SOP which were:

• Employees were informed of the time, place and method for the vote on 5 September 2025. The vote commenced on 12 September 2025 and concluded on the same day. The vote therefore commenced less than 7 full calendar days before the day on which voting started as required by paragraph 16 of the SOP.

• The Employer advised that voting upon the Agreement was completed via reply email, with the option for employees to vote anonymously. Paragraph 15 of the SOP requires a voting process that ensures that an employer cannot ascertain an employee's vote.

• [9] After receiving the Employer's initial response to the issues raised by the Commission, my Chambers sent an email to the Employer's representative on 27 October 2025 which relevantly provided:

Deputy President Wright has reviewed the [Employer's submissions] and formed the preliminary view that she cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement because of the extremely low voter turnout combined with all of the following factors:

• The vote commenced less than the 7 clear days of the full access period required by paragraph 16 of the Statement of Principles of Genuine Agreement (SoP).
• Employees were advised by email on 5 September 2025 that on Friday 12 September 2025, they would be asked to consider and approve the proposed enterprise agreement by way of a secret ballot, that a voting form will be provided to each employee on the day of the vote and that the vote will be held via email. There is no indication that a secret ballot was held. Voting upon the Agreement was completed via reply email, with the option for employees to vote anonymously, which is inconsistent with paragraph 15 of the SoP which requires a voting process that ensures that an employer cannot ascertain an employee's vote.
• It appears that information about the vote was send to the personal email addresses of employees. It is unclear whether employees have access to this mode of communication during working hours.

If your client wishes to proceed with the application, please provide any further submissions in relation to the above matters and advise whether your client requires a hearing in relation to the application by 4:00pm AWST on Wednesday 29 October 2025. If your client does not require a hearing, the application will be determined on the papers.

• [10] In relation to paragraph 15 of the SOP, the Employer submitted that:

• It accepts that it gave only six days' notice period of the time, place and method for the vote as a result of an error.
• The workforce is relatively small and consists of a group of permanent employees who have been with the business for a relatively lengthy period of time.
• The Agreement is designed to encapsulate the current terms and conditions of employment the employees currently enjoy. Accordingly, the terms and conditions in the Agreement are very familiar to the employees as they have been currently working under those arrangements.
• Non-compliance with Paragraph 15 of the SOP is a minor error with no disadvantage to employees.

• [11] The Employer relied upon the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others.[1]

• [12] This decision dealt with the amendment of s.188 of the FW Act by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 to provide, among other things, a mechanism for the Commission to conclude that an enterprise agreement has been 'genuinely agreed', within the meaning of s.186(2)(a), despite 'minor procedural or technical errors'. This amendment has been superseded by further amendments to the FW Act by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act) that commenced operation on 6 June 2023. The provision which currently permits the Commission to disregard minor procedural or technical errors in determining whether it is satisfied that an enterprise agreement has been genuinely agreed is s.188(5) of the FW Act.

• [13] The decision referred to the requirement to notify employees of the time and place at which the vote will occur and the voting method at least 7 clear days before the start of the voting process which was then in s.180(3) of the FW Act and made the following observations:

[79] Whether a failure to comply with s.180(3) constitutes a 'minor error' depends on the extent of the non-compliance and the circumstances. Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a 'minor error'. So, informing the employees of the matters in s.180(3)(a) and (b) 'just after the start of the access period', say 6 days before the start of the voting process, is likely to be a 'minor error' in most cases; but in some circumstances it may not be. For example, if it is the first agreement at the enterprise, the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a 'minor error'.

[80] It may also be the case that what appears to be a more significant instance of non-compliance may still be categorised as a 'minor error', depending on the particular circumstances. For example, only informing the employees of the ss.180(3)(a) and (b) matters 4 days before the voting process starts may be a 'minor error' where all of the relevant employees actually voted.

[81] It is also important to distinguish between the requirements in ss.180(3)(a) and (b). It seems to us that the need to inform employees of the time and place of the vote (i.e. s.180(3)(a)) is more significant than informing them of the 'voting method' (i.e. s.180(3)(b)). The first requirement may impact on the employees' capacity to participate in the voting process, the second may not.[2]

• [14] Following amendments to the FW Act by the SJBP Act, ss.180(2)-(4) were repealed and the matters referred to therein are now dealt with by the SOP. Paragraph 16 of the SOP deals with the matters which were regulated by the now repealed s.180(3).

• [15] In relation to paragraph 15 of the SOP, the Employer submitted that its method of voting by email was equivalent to an electronic show of hands. The Employer submitted that it applied no pressure or influence and that employees were also given the opportunity to vote anonymously if they felt uncomfortable with the electronic method.

• [16] The Employer referred me to decisions of the Commission in Re Enermech Pty Ltd,[3] Thompson, Kelly & Lewis Pty Ltd (t/a Flowserve Pump Division)[4] and Glenn Howard Family Trust ta/as Beachside Plumbing Services Pty Ltd (t/a Beachside Plumbing).[5] The Employer claimed that in each of these decisions, the Commission held that a show of hands vote where the voters could be identified was not inconsistent with the SOP.

• [17] In Re Enermech Pty Ltd,[6] the complaint by the union was that the voting method adopted by the employer was highly irregular in that there was no probative evidence of the ballot outcome provided to the Commission. Deputy President Beaumont rejected the union's concerns as previous decisions of the Commission demonstrated that voting by show of hands was not irregular and that there was probative evidence of the ballot outcome provided to the Commission. The union did not complain that the the voters could be identified by the employer. The evidence before the Commission was that the vote did not take place in front the employer but was supervised by an employee bargaining representative.

• [18] In Glenn Howard Family Trust ta/as Beachside Plumbing Services Pty Ltd (t/a Beachside Plumbing), Deputy President Masson noted that the standard method of voting by a show of hands at a meeting was used and was familiar to employees to consider approval of the Agreement. The decision recorded that the owner of the business opened the meeting then withdrew to allow the show of hands vote to be conducted.[7]

• [19] In Thompson, Kelly & Lewis Pty Ltd (t/a Flowserve Pump Division), the decision recorded that the show of hands voting process was conducted, as agreed between the parties, by the AMWU who was a bargaining representative in the bargaining process. It was also agreed between the parties that this method was appropriate having regard to the fact that voting on previous iterations of the Agreement, including its immediate predecessor, had been conducted in this way by the AMWU, and that two representatives of the employer would be present to collect the voting statistics for the purposes of completing the Form F17B in support of the application. In concluding that he was satisfied that the agreement was genuinely agreed to by the employees, Deputy President Roberts took into account that the AMWU supported the approval of the agreement, the AMWU was not concerned that the agreement was not genuinely agreed to by the employees and that the AMWU conducted the show of hands voting process by which the overwhelming majority of those voting ultimately voted.[8]

• [20] The Employer submitted that there was a low voter turnout because the Agreement is simply encapsulating the existing terms and conditions of employment to which the employees have been used to for a long time. The Employer submitted that where no changes were being made to the existing terms of employment there may well have been a level of apathy from employees after assurances and explanations were provided that the Agreement does not change anything about how they are currently remunerated and the purpose of bargaining was to enshrine those conditions in a more formal agreement that protects employees from any changes without their approval.

Response to email from Chambers dated 27 October 2025

• [21] On 28 October 2025, the Employer's representative sent an email to my Chambers advising that the Employer had raised the Commission's concern with the low voter turnout with the employees and provided a document called 'Team Minutes - EBA Discussion with All Staff' dated 28 October 2025 - 8am.

To address concerns raised by the Fair Work Commissioner regarding low voter turnout on the Capital Lines & Signs Enterprise Agreement 2025 (EBA), specifically that only 3 of 30 employees had participated in the vote.

• Confirm all employees understood the EBA proposal
• Provide the opportunity for questions or concerns
• Clarify the voting process and expectations

Reference: The proposed EBA is titled Capital Lines & Signs Enterprise Agreement 2025 and outlines terms and conditions of employment for covered staff.

The Commissioner expressed concern over participation levels, wanting confirmation that staff fully understood the agreement before approval could proceed.

• Voting was not compulsory
• Everyone was encouraged to review the EBA and vote to ensure genuine employee agreement and representativeness
• Employees indicated they had assumed others had already voted, leading to the low turnout.
• Jessica & Ben invited any questions, concerns, objections, or clarification requests regarding the EBA.
• No concerns were raised publicly.
• Staff were advised they could still discuss concerns privately if preferred. (No one came to speak to Jessica or Ben after the meeting)

• All staff verbally confirmed they are happy with the proposed EBA
• Employees expressed no objections during the meeting

The meeting concluded with acknowledgment that employees are satisfied with the proposed conditions as set out in the Capital Lines & Signs Enterprise Agreement 2025.

• [23] Attached to the document was a list of 27 names under the heading 'Attending Names'. Signatures appeared next to 17 names. On this basis, I infer that 17 employees attended the meeting. It is not clear who 'Jessica & Ben' are however I note that one of these names was 'Jessica Stewart', who was the person who submitted the Form 17B Employer's declaration on behalf of the Employer and also signed the 'Attending Names' document next to her name.

• [24] The Employer's representative subsequently confirmed that the Employer did not wish to make any further submissions and consented to the application being determined on the papers.

• [25] In the current application, the materials before me showed that employees were advised by the Employer by email dated 5 September 2025 of the following:

On Friday 12th of September 2025, employees will be asked to consider and approve the proposed enterprise agreement by way of a secret ballot. A voting form will be provided to each employee on the day of the vote. The vote will be held Via Email. Commencing at 8am and ending at 4pm.

• [26] At 7:52am on 12 September 2025, the Employer sent the following email to employees:

Just a reminder that voting is open today until 4pm. You can vote via reply email, if this is not available to you, please contact me & an alternative way can be arranged.

• [27] These emails showed that the voting method that employees were advised of prior to the commencement of the vote was different to the method that was used. Employees were advised prior to the vote that the voting method was a secret ballot using a ballot paper. However, on the day that the vote commenced, employees were advised to vote via reply email to the CEO's assistant. In the email from my Chambers to the Employer's representative, I raised concerns about this matter and invited the Employer to make further submissions however the Employer did not make submissions about the different vote method. I also observed that it appeared that information about the vote was sent to the personal email addresses of employees and that it was unclear whether employees had access to this mode of communication during working hours. I invited the Employer to make submissions about this matter, but it did not do so.

• [28] In the circumstances, I find that the emails from the Employer dated 5 and 12 September 2025 establish that:

• The method of voting was by email, not by secret ballot;
• The Employer informed employees of the method of voting on 12 September 2025 which was the day of the vote;
• The Employer did not comply with paragraph 16(a) of the SOP as the Employer did not inform employees of the method for the vote at least 7 full calendar days before the day on which voting starts.

• [29] Further as the Employer did not provide submissions in relation to employees appearing to have received the emails dated 5 and 12 September 2025 through their personal email address, there is insufficient evidence for me to conclude that the Employer provided a method and period of voting that provided all employees entitled to vote with a fair and reasonable opportunity to cast a vote as required by paragraph 15(b) of the SOP. This is because I cannot exclude the possibility that employees may not have received these emails at the time they were sent, particularly the email that the Employer sent to employees at 7:52am on 12 September 2025 advising that voting was open until 4pm that day.

• [30] The Employer did not deny that the voting method that was actually used permitted the vote of each employee to be disclosed to or ascertained by the employer. Although the Employer submitted that employees were given the option to vote anonymously, there is nothing in the text of the Employer's email dated 12 September 2025 which indicates that this was the case. The Employer responded to the Commission's concerns that the Employer did not comply with paragraph 15(a) of the SOP by submitting that the email voting was equivalent to an electronic show of hands and that the Commission had previously held that a show of hands vote where the voters could be identified was not inconsistent with the SOP.

• [31] The decisions of Re Enermech Pty Ltd,[9] and Glenn Howard Family Trust ta/as Beachside Plumbing Services Pty Ltd (t/a Beachside Plumbing)[10] which the Employer relies on do not assist it as neither of these decisions suggest that the relevant employer was present for the vote or that the vote of each employee was otherwise 'disclosed to or ascertainable by the employer'. In Thompson, Kelly & Lewis Pty Ltd (t/a Flowserve Pump Division),[11] the presence of two representatives of the relevant employer during the vote had the potential to result in the vote of each employee being disclosed to or ascertained by the employer. However, in that case, in considering whether the agreement had been genuinely agreed, the Commission was required by paragraph 19 of the SOP to give significant weight to the fact that the AMWU supported the approval of the agreement and did not have concerns that the agreement was not genuinely agreed to by the employees covered by the agreement. In the application before me, there were no employee organisations acting as bargaining representatives, so paragraph 19 does not apply. It follows that the facts and circumstances in the application before me are distinguishable from those in Thompson, Kelly & Lewis Pty Ltd (t/a Flowserve Pump Division).

• [32] Having regard to the submission of the Employer and the evidence before me, I find that the Employer did not comply with paragraph 15 of the SOP as employees were not given a reasonable opportunity to vote on a proposed enterprise agreement in a free and informed manner because the voting process used resulted in the vote of each employee being disclosed to or ascertained by the employer.

• [33] The Employer attempted to address its non-compliance with paragraphs 15 and 16 of the SOP by providing the 'Team Minutes - EBA Discussion with All Staff' dated 28 October 2025 to the Commission. This document is of limited probative value. It was not attached to a statutory declaration or a witness statement made by an authorised officer of the Employer. The Commission has not been informed of role of the person who took the minutes. There are vague statements about the views of employees which include that 'all staff verbally confirmed they are happy with the proposed EBA,' 'employees indicated they had assumed others had already voted' and 'employees expressed no objections during the meeting' however it is unclear how these views were ascertained and whether all employees expressed these views. No witness statements or other evidence have been provided by any of the employees. Finally, it appears that only 17 employees attended the meeting out of the 30 employees who were eligible to vote in relation to the Agreement. The Employer's attempt to overcome the issues raised in my email of 27 October 2025 by meeting with some of its employees the following day is unsatisfactory and does not in any way address its non-compliance with paragraphs 15 and 16 of the SOP.

• [34] The Employer also submitted that its non-compliance with paragraphs 15 and 16 of the SOP were minor procedural errors which should be disregarded by the Commission. Although non-compliance with the SOP is not a matter which is specifically referred to in s.188(5) of the FW Act, I accept that the Commission may disregard contraventions of the SOP in certain circumstances, based on the following observations of the Full Bench in Shop, Distributive and Allied Employees Association v Allen Family Pty Ltd t/a Subway Clare, Subway Findon, Subway Broken Hill, Subway Kadina, Subway Port Adelaide, Subway Port Pirie:[12]

[76] The important point to be made is that while the Commission is required to take into account the Statement of Principles in determining whether an agreement has been genuinely agreed, it does not operate as a set of mandatory rules that must be complied with by an employer absent which the Commission cannot be satisfied that an agreement has been genuinely agreed. Where an employer follows pre-approval steps that are consistent with the Statement of Principles, that would weigh more favourably towards a conclusion that an agreement has been genuinely agreed. The converse is equally true of course. The requirement to take into account the Statement of Principles does not displace the requirement to consider each of the other matters set out in s 188 in determining whether an agreement has been genuinely agreed....[13]

• [35] I am not persuaded that paragraphs 15 and 16 of the SOP were minor procedural errors which should be disregarded by the Commission. This is not a case where it can be inferred that the Employer's non-compliance with the SOP had no impact on participation by employees in voting for the Agreement given the extremely low participation rate. I cannot rule out that the very low participation rate was caused by the following matters either individually or in combination:

• the vote of each employee was disclosed to or ascertainable by the employer;
• the method of voting changed from a secret ballot to a 'non-secret' email vote on the day of the vote; and
• the voting email appeared to be sent to employee's personal email addresses which may not have been accessible during working hours, so employees may have been unaware that voting was taking place on 12 September 2025.

• [36] The Employer submitted that the employees were not disadvantaged by the Employer's non-compliance with paragraphs 15 and 16 of the SOP because the Agreement is designed to confirm the current terms and conditions of employment of employees. However, the Employer has not provided any evidence which establishes that this is the case, so I have afforded little weight to this submission.

• [37] I have considered the SOP in its entirety and all of the matters in s.188 of the FW Act. I am satisfied that the Employer has complied with s.188 and the SOP apart from paragraphs 15 and 16 of the SOP. In my view, there is a high likelihood that a very low number of employees participated in the vote for the Agreement because of the Employer's multiple contraventions of paragraphs 15 and 16 of the SOP. Based on these findings, I am not satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement. As such, I am not satisfied that there was genuine agreement in relation to the Agreement under s.186(2)(a).

• [38] If I have a concern that an agreement does not meet the requirements set out in ss.186 and 187 of the FW Act, I may approve the agreement under s.186 if I am satisfied that an undertaking under s.190(3) meets the concern. This is not a matter where an undertaking will address the Employer's non-compliance with paragraphs 15 and 16 of the SOP.

• [39] Pursuant to s.186(2)(a), I am not satisfied that that the Agreement has been genuinely agreed to by the employees covered by the Agreement having regard to the matters in s.188 of the FW Act and the SOP. It follows that I cannot approve the Agreement under s.186. It is therefore unnecessary for me to consider whether the other requirements in ss.186 and 187 are met. I dismiss the application.

[1] [2019] FWCFB 318

[3] [2024] FWC 2300

[4] [2024] FWCA 2767

[5] [2023] FWCA 2826

[6] [2024] FWC 2300

[7] [2023] FWCA 2826, [6]

[8] [2024] FWCA 2767 [9]

[9] [2024] FWC 2300

[10] [2024] FWCA 2767

[11] [2024] FWCA 2767 [9]

[12] [2024] FWCFB 48

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