Note 1 Under subrule 3 (1) of Order 22, a party who discontinues a proceeding, or a part of a proceeding, without the leave of the Court and without the consent of the other party or parties, is liable to pay the costs of the other party, or parties, occasioned by the proceeding or the part of the proceeding that is discontinued.

Note 2 Under subrule 3 (1) of Order 22, a party who discontinues a proceeding, or a part of a proceeding, without the leave of the Court but with the consent of the other party or parties, is, unless the terms of the consent otherwise provide, liable to pay the costs of the other party, or parties, occasioned by the proceeding or the part of the proceeding that is discontinued.

*[Signature of consenting respondent or respondent's solicitor]

(If the discontinuance is by consent, each party, or the party's solicitor, must sign the notice of discontinuance.)

[97] Form 33 of the Uniform Civil Procedure Rules issued by the Supreme Court of New South Wales, are as follows:

#Second plaintiff #Number of plaintiffs (if more than two)

#Second defendant #Number of defendants (if more than two)

1 #The [role of party] discontinues the whole of these proceedings.

#The [role of party] discontinues these proceedings so far as they concern [role of party or parties being discontinued against].

2 The [role of party] does not represent any other person.

3 #Each active party consents to the discontinuance.

#This notice of discontinuance has been filed with the leave of the court granted on [date].

#Signature of or on behalf of party if not legally represented

[eg solicitor, authorised officer, role of party]

#Consent to the proceedings being discontinued is given on the following terms:

#Signature of or on behalf of party if not legally represented

[eg solicitor, authorised officer, role of party]

[98] The former Rules of the Industrial Relations Commission of New South Wales (now repealed) provided as follows:

(1) A party may, before the beginning of the hearing of any proceedings, discontinue the proceedings so far as concerns the whole or any part of any application made by that party:

(a) where the party or the party's solicitor certifies that the party does not represent any other person and all other parties having an address for service in the proceedings consent, or

(2) Leave of the tribunal may be given in Chambers without the appearance of any person.

139 Withdrawal of process in the nature of defence, reply etc

(1) A party raising any matter in process by way of a defence or reply or in a subsequent process may withdraw that matter at any time.

(2) Subrule (1) does not enable a party to withdraw, without the consent of another party or the leave of the tribunal, an admission or any other matter operating for the benefit of that other party.

A tribunal may give leave under Rule 138 or Rule 139 on terms.

(1) Except with leave of the tribunal, a discontinuance or withdrawal under Rule 138 or Rule 139 must be made by filing a notice stating the extent of the discontinuance or withdrawal.

(2) Where the discontinuance or withdrawal is by consent, the notice under subrule (1) must bear the consent of each consenting party."

[99] Finally, s 339 of the WR Act is an entirely different provision and was obviously designed to ensure that an employer could not unilaterally withdraw from a Union collective agreement:

"Prohibition on withdrawal from union collective agreement

(1) An employer that has made a union collective agreement must take reasonable steps to seek approval for the agreement under section 340, within a reasonable period after the agreement was made.

[100] It will be abundantly clear that the above examples of requirements as to consent and leave of the Tribunal are not evident under s 588 of the Act or in Form F50 of FWA's Rules. To my mind, this is a significantly less obligatory provision for discontinuing applications than previously existed.

[101] Thirdly, I note that there have been numerous examples, including before me, of s 185 applications being discontinued, either by way of correspondence filed with FWA, or the filing of the Form F50 - Notice of Discontinuance. Presumably, these matters were all discontinued by consent, although it is not apparent from all of the decisions of FWA recording the outcome that consent was obtained by the other parties. Of itself, this may not be determinative of the present matter. However, the point is that the procedural basis for discontinuing other s 185 applications has not been dependent on either gaining the consent of the other parties or the leave of the Tribunal.

[102] For these reasons, I am satisfied that the application has been properly discontinued and the proceedings have been brought to an end. Consequently, the application for approval of the Agreement has been withdrawn. Axiomatically, there can be no Agreement for FWA to approve.

The effect of the Union's alternative application

[103] The Tribunal also has before it an identical Agreement as that lodged in matter AG2010/24340. It is accompanied by the original Form F17 lodged by the Company. There are three differences in the documentation filed by the Union. These are:

• the date of the application, 7 March 2011 is some three months after the Agreement was made; and

• the Company's representative has not signed the Agreement.

[104] To accept the Union's application would require an exercise of discretion by FWA to extend the time for filing the application well beyond the 14 day time period specified by s 185(3)(b) of the Act if the Tribunal considers it fair to do so.

[105] Of course, there is no statutory impediment to a Union lodging a s 185 application. However, while I understand the tactical reason as to why the Union filed its own identical application to the one sought to be discontinued, I do not believe that the dispute between the parties can be cured or resolved by accepting a de facto application of this kind. In addition, there is a further technical difficulty with the Union's application in that the Agreement annexed thereto is not signed by the Company's authorised representative, or at all. This is a mandatory requirement of Reg 2.06A(2) which requires a signed copy of the Agreement (s 185(2)(a) of the Act) to be signed by the employer covered by the Agreement.

[106] For the reasons I have expressed, I would decline to exercise my discretion to extend the time for filing of the application. It would not be fair to do so, given the extraordinary circumstances surrounding the substance of the issues in dispute between the parties.

[107] Notwithstanding that I would conclude these substantive proceedings on the basis that they have been properly discontinued under the Rules of FWA, I intend to make some further observations and findings in respect of the arguments put by the Company regarding Propositions 2 and 3.

[108] Before doing so, let me say this. In my assessment, there was an unfortunate confluence of circumstances which satisfies me that Mr Francis had:

• never intended to agree to the intent of the disputed clause;

• never would have agreed to a provision of this kind;

• merely asked Mr Gauld to provide draft wording to make the clause clearer; and

[109] In observing Mr Francis in the witness box, I found him to be a thoughtful, helpful and cooperative witness. I have little reason to doubt the genuineness of his evidence as to his lack of understanding of what the disputed clause stood for. In some respects, Mr Francis has been placed in an invidious and very embarrassing position when the fruits of many months of negotiations ended up in the situation now faced by the parties. Notwithstanding that Mr Francis had some suspicions as to what the Union knew about the disputed clause, he did not sheet all the blame on the Union and its officials. During his evidence, he made open and forthright admissions. I believe him to be a witness of credit. In making this finding, I do not wish to imply that Mr Francis' evidence should be preferred over the Union's version of events. This is so because I consider that much of the conflicting evidence can be attributed to misunderstandings between the persons involved, rather than a real disagreement as to what was said or not said.

[110] I mentioned earlier a confluence of unfortunate circumstances. For me, these circumstances inform and explain the background to the present problem. They include, inter alia:

• Mr Francis' admitted inexperience in industrial relations matters;

• the suspension of negotiations for over four months while contractual negotiations with RTA were being undertaken;

• an obvious concentration of the Company representatives on these contract negotiations;

• Mr Francis' referral of the drafting to the ECAQ;

• the failure of the ECAQ to properly advise the Company of the intent of the disputed clause; and

• the four previous unsuccessful attempts at securing employee approval of the Agreement.

[111] In addition, two other matters are apposite to this background. Firstly, I do not accept the submission that the Union had explained to Mr Francis the true intent and effect of the disputed clause. On one view, it was not obliged to do so, and I completely understand that submission. However, at best, the evidence would suggest that Mr Francis misunderstood what Mr Gauld had said about the drafting coming from the G3 Agreement and that the Union misunderstood what Mr Francis might have known and understood about that Agreement's terms. I accept Mr Francis' evidence that he had asked Mr Gauld for draft wording to make the provision clearer to understand; not to turn the clause into something completely different. In any event, while the Agreement may have been reviewed 'clause-by-clause' it does not necessarily follow that each of the clauses were closely and carefully examined as to their effect and implications. Secondly, Mr Francis' evidence is supported by the fact that, prior to the vote of employees, there is not a single note, email, meeting minutes or any documented communication from, or by anyone directly involved, as to the specifics of the disputed clause. Turning then to Propositions 2 and 3.

[112] Section 188 of the Act provides that FWA must be satisfied that the Agreement was 'genuinely agreed' to by the employees to be covered by it. Section 188 states as follows:

"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."

[113] As will be evident, s 180(2) of the Act is to be read in conjunction with s 188. Section 180 is expressed as follows:

"180 Employees must be given a copy of a proposed enterprise agreement etc.

Employees must be given copy of the agreement etc.

(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."

[114] Section 182 of the Act is also a relevant consideration in this case. That section is expressed as follows:

Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

Multi-enterprise agreement that is not a greenfields agreement

(a) a proposed enterprise agreement is a multi-enterprise agreement; and

(b) the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and

(c) those employees have voted on whether or not to approve the agreement; and

(d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;

the agreement is made immediately after the end of the voting process referred to in subsection 181(1).

(3) A greenfields agreement is made when it has been signed by each employer and each relevant employee organisation that the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement)."

[115] The Union's principal argument is that an Agreement is made when the employees vote by majority to approve it. On a plain reading of s 182 of the Act, this submission is undoubtedly correct. However, in my judgement, that cannot be the end of the matter. In my view, s 182 must be read in conjunction with the pre-approval steps set out in the preceding sections 173 to 181 and having regard to the overall statutory context and purpose of Part 2-4 of the Act: See Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.

[116] There can be no doubt that, statutorily and conceptually, an agreement which is put to employees for a vote of approval is a 'proposed' agreement. So much so is evident from the heading to s 180 of the Act, 'Employees must be given a copy of a proposed enterprise agreement etc.' Moreover, the words 'proposed agreement' also appear in ss 180(4), 181(1), 182(1) and (2) and elsewhere.

[117] When viewed in this way, it seems only logical that if the 'proposed' agreement is one that is 'prepared' by the employer, then it must be a proposal which the employer truly intends to offer its employees. If it were otherwise, it would amount to misleading conduct by the employer. In other words, it is an offer which the employer is prepared to make in good faith and, knowing what it is, it proposes to offer the employees. Put another way, the written text of the agreement offered to employees must be in accord with the employer's intended offer. On the evidence in this case, this was plainly not the position. Thus, I find myself in accord with Mr Follett's second proposition that the proposed Agreement fell foul of s 180(2) of the Act. Consequently, the Agreement is not able to be approved, due to a failure to comply with the pre-approval processes required by the Act.

[118] In developing the argument a little further, given the ordinary, usual and industrial meaning of the term 'agreement' and having regard to its context and purpose under the Act: See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, I cannot accept that there had been an 'agreement' between the Company and its employees.

[119] 'Agreement' is defined in the Macquarie Concise Dictionary, Fifth Edition as:

"1. the act of coming to a mutual arrangement. 2. the arrangement itself. 3. unanimity of opinion; harmony in feeling [...]. 4. the state of being in accord; concord; harmony; conformity [...] 6. in agreement, united in a point of view."

[120] It follows that an 'agreement' could not have been put to employees for a vote of approval from 5 to 7 December 2009. Notwithstanding that the employees voted for the proposed Agreement, it was a vote which, in my view, had no validity. Moreover, I apprehend that the Agreement could not have been 'genuinely agreed' as required by s 188 of the Act, if the employees had a view of one of its essential terms and the Company had an entirely opposite view. I ask, rhetorically, how could this possibly be a proposed agreement, let alone a concluded agreement?

[121] In Monash, a Full Bench of the AIRC determined as follows:

"[43] In this case, an agreement was made between Monash and the two unions, the CFMEU and the CEPU. It was an agreement made in accordance with the requirements of s.170LJ(1). The agreement so made was, therefore, "the agreement" for the purposes of s.170LJ(2) and s.170LJ(3). The agreement so made was "the agreement" for which an application for certification was made. What the employees had to approve under s.170LJ(2) was that agreement, i.e. the agreement that was made under s.170LJ(1). What, under s.170LJ(3), the employer had to take reasonable steps to ensure that the employees were given access to was that agreement, i.e. the agreement that was made under s.170LJ(1).

[44] In his first decision, the Deputy President made a finding that "the Agreement as voted on by the employees, was that which did not contain a reference to the NTEU, albeit that the written document provided to the employees erroneously included such a reference".40 It was a finding that was based upon the facts before him. Those facts included the acceptance by the NTEU that the employees who voted were aware and had been told that the NTEU was not a party to it. We can find no reason to disagree with such a finding.

[45] It follows that the agreement that was approved by the relevant employees was a different agreement to that which was made under s.170LJ(1). It was not in the same terms as that which was the subject of the application. It was not in the same terms as the agreement certified by the Deputy President. The agreement that was the subject of the application and the agreement that was subsequently certified both contained specific provisions which named the NTEU as a party. This was "the agreement" which, for there to be a valid application for its certification, had to have been approved in accordance with the requirements of s.170LJ(2). According to the Deputy President's findings, however, it was not the agreement that was approved by the relevant employees. It cannot, therefore, be said that "the agreement" which was the subject of the application was "approved by a valid majority" of the relevant employees. The agreement which was the subject of the application for certification was not approved at all by those employees.

[46] It follows that there has not been satisfaction of the requirements of s.170LJ(2) and that there was, therefore, no valid application before the Commission.

[47] For present purposes, we are prepared to accept that, under s.111 of the Act, an application for certification may be allowed to be amended. However, in our view, in this case, allowing such an amendment would have been of no assistance. Even if the application were allowed to be amended so that the agreement for which certification was sought was the agreement as approved by the employees, the requirements of s.170LJ(2) would still not have been satisfied. Section 170LJ(2) required approval of "the agreement", i.e. the agreement made in accordance with s.170LJ(1). The agreement approved by the employees was not "the agreement" so made. Further, whilst we can accept, for the purpose of s.170LJ(3), that Monash took reasonable steps to ensure that, at least 14 days before approval was given, the employees had access in writing to "the agreement", i.e. the agreement made in accordance with s.170LJ(1), that agreement was not the agreement approved by the employees. It cannot, in our view, be said that reasonable steps were taken to ensure that the agreement approved by the employees was one to which they had been given access in writing 14 days before the approval was given by them. There would, in our view, have been no basis for exercising any discretion under s.111 to allow an amendment to the application.

[48] Section 170LV is also of no assistance. That section is not available unless there is a valid application for certification before the Commission. In any event, we do not consider that the terms of the undertaking remedy the vice in the agreement lodged for certification and certified by the Deputy President. Paragraph (a) does no more than reflect what was said to have happened at the voting stage. It is only evidence as to the knowledge and/or belief of the employees at the time they were casting a vote. Paragraph (b) was not adopted by the CFMEU and/or the CEPU. Paragraph (c) is meaningless. There is no ambiguity or uncertainty caused by the reference to the NTEU in the agreement. It plainly states that the NTEU is bound by it.

[49] The error in this case was one of jurisdiction. Either the Commission had jurisdiction to hear and determine the application for certification or it did not. It is generally considered that leave to appeal should be granted in cases which raise a question as to the Commission's jurisdiction. That, however, is not an immutable rule. In this case, however, we do not consider that it would be in the public interest that the error be allowed to stand. In the circumstances, we grant leave to appeal, uphold the appeal and quash the Deputy President's decision to certify the Agreement."

[122] While Monash was decided under a different statutory regime, it seems to me that the decision stands for the logical and sound proposition that an enterprise agreement voted upon by employees must be the same agreement the parties understood they had agreed upon. Based on the evidence in the present case, that is manifestly not the position. When viewed in this way, the agreement voted on by the employees was not an agreement at all. Logically, the employees could not have 'genuinely agreed' to the Agreement - a statutory prerequisite to the Agreement being approved by FWA.

[123] Notwithstanding the submissions of the Union as to the binding effect of s 188 of the Act, once the employees had voted for the Agreement's approval, there is still a third process of approval by FWA before the Agreement is legally in effect and enforceable. I would wish to add that, given there was no evidence of any claim by the Union or the employees for a third break during a 10 hour shift, it seems a very strange, if not perverse result of the negotiations, that that is what ultimately occurred. It is difficult to see, in these circumstances, how such an Agreement could possibly have been 'genuinely agreed' by the employees.

[124] The principles of unilateral mistake were helpfully summarised in Freight & Logistic Services Pty Ltd v Pogroske [2007] VSC 392. At page 7 Kaye J of the Supreme Court of Victoria said:

"20 The second submission on behalf of the defendants is based on the doctrine of unilateral mistake. Essentially it was submitted that, if the letter of 27 September constituted a binding agreement between the parties, the defendants would be entitled, in equity, to have the agreement set aside on the basis of unilateral mistake. The circumstances in which an agreement may, in equity, be set aside on the basis of a mistake made by one of the parties to the agreement, has been the subject of a number of authorities to which I was referred in the course of submissions, including the decision of the High Court in Taylor & Ors v Johnson.[6] See also Deputy Commissioner of Taxation (NSW) v Chamberlain;[7] Tlais v Tlais.[8] For the purposes of this application, the parties accepted as applicable the following statement of principle by Kenny JA in Leibler & Ors v Air New Zealand Limited & Anor (Nos 2):[9]

"The principles which govern an application for rectification of a contract on the ground of unilateral mistake can be briefly stated. If (1) one party, A, makes an agreement under a misapprehension that the agreement contains a particular provision which the agreement does not in fact contain; and (2) the other party, B, knows of the omission and that it is due to a mistake on A's part; and (3) lets A remain under the misapprehension and concludes the agreement on the mistaken basis in circumstances where equity would require B to take some step or steps, depending on those circumstances, to bring the mistake to A's attention; then (4) B will be precluded from relying on A's execution of the agreement to resist A's claim for rectification to give effect to A's intention ... ." "

[125] For the reasons I will shortly state, I think this is the least persuasive of the Company's arguments. There are two steps of investigation involved in establishing the principle of unilateral mistake:

• A failure on the part of that party to take steps to bring the mistake to the mistaken party's attention.

[126] The evidence of the Union witnesses was that they had, at all material times, been aware of the effect of the disputed clause. If the Union's evidence is accepted, the first step of the principle of unilateral mistake is obviously established. As to the second step, the Union says it did not fail to take steps to bring the matter to the Company's attention because it was not obliged to and, in any event, the Company must have, or should have, known what the effect of the disputed clause was. In addition, the Union vigorously denied any wrongdoing or deliberate act of falsely misrepresenting the true effect of the clause.

[127] On one view, the Union's submissions may well be a 'double-edged sword'. It begs the questions why the Company was never served with a claim of three breaks in a 10 hour shift, and secondly, why there is not a single recorded reference of the matter ever being discussed internally within the Union or with the Company? That said, while there may have been a fleeting conversation about the clause itself (on 12 November 2009), I am not satisfied that its true effect had ever been discussed; let alone made apparent.

[128] However, on the state of the evidence, I do not think I can safely find that the Union deliberately set out to avoid informing the Company of the true effect of the clause. Its officials and delegates may themselves not have fully comprehended the impact of the words used. There was no evidence as to whether the Union had told its members that the final vote for the Agreement was based on the unexpected windfall. It does, however, seem circumstantially curious that after three earlier unsuccessful votes (5-6 May 2010, 22 June - 1 July 2010 and 29 October - 4 November 2010) with the identical disputed clause in the Agreement and with little else being different, that the vote of employees was overwhelmingly in favour of approving the Agreement. Perhaps it merely reflected 'negotiation fatigue'. In any event, a smile on Mr Hayes' face and his later query of 'when do we start the three breaks' or the hearsay evidence of what was said at the farewell party on 7 January 2011, in my view, is insufficient to sustain a conclusion that the Union had deliberately set out to trick or mislead the Company.

[129] Nevertheless, I do not see how the Union's case is assisted by the conversations between Mr Francis and Mr Gauld in relation to the mechanical operators' agreement. The corresponding clause in their Agreement is markedly different to the disputed clause (see evidence of Mr Francis). In any event, it was referred to as an alternative starting point in order that a clearer understanding of what was intended might be achieved by redrafting the clause. Moreover, I do not understand the mechanical operators to enjoy a paid 20 minute period at the end of each shift. If this be so, then it is contrary to the Union's proposition that the disputed clause merely brought the electrical employees into line with their mechanical counterparts.

[130] In conclusion, I consider that the statutory instruction in s 577 of the Act for FWA to:

"[...] perform its functions and exercise its powers in a manner that:

d) promotes harmonious and cooperative workplace relations"

requires me to find that it would not be fair and just, nor would it be in the interests of promoting co-operative workplace relations, to resolve the present impasse between the parties in the manner pressed upon me by the Union. That said, I would strongly encourage the parties to recommit to a new process of reaching an agreement which may subsequently be put to employees and approved by FWA, having regard for all the statutory requirements under the Act.

[131] For all the foregoing reasons, these proceedings are concluded. Application AG2010/24340 is discontinued, or otherwise dismissed. Application AG2011/406 is dismissed. Orders reflecting these findings will be issued contemporaneously with this decision.

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