Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Compass Group Remote Hospitality Services Pty Ltd t/as ESS Support Services

COMPASS GROUP (ESS CANNINGTON) ENTERPRISE AGREEMENT 2024

Application for approval of the Compass Group (ESS Cannington) Enterprise Agreement 2024

• [1] Compass Group Remote Hospitality Services Pty Ltd t/as ESS Support Services (the Employer) has made an application for approval of an enterprise agreement known as the Compass Group (ESS Cannington) Enterprise Agreement 2024 (the 2024 Agreement) pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The 2024 Agreement is a single enterprise agreement.

• [2] The 2024 Agreement will apply to employees who are covered by the Hospitality Industry (General) Award (the Award).

• [3] The Australian Workers Union (AWU) was a bargaining representative in relation to the 2024 Agreement. The AWU opposes the approval of the 2024 Agreement on the grounds that the employees requested to approve the agreement by voting for it did not have a sufficient interest in the agreement and that the Employer did not take all reasonable steps to explain its terms to employees.

• [4] In summary, I find that the Employer did not take all reasonable steps to explain the terms the 2024 Agreement, and the effect of those terms, to employees employed at the time who will be covered by the agreement. As such, I am not satisfied that there was genuine agreement in relation to the 2024 Agreement under s.188(4A) of the FW Act. I have invited the Employer to provide undertakings pursuant to s.190 of the FW Act and for the bargaining representatives to provide their views about any proposed undertakings before making a final decision in relation to the matter.

• [5] The employees to be covered by the 2024 Agreement work at the Cannington Mine providing catering and hospitality services on a fly in fly out basis. The mine is an underground lead and silver mine in a remote part of north-west Queensland. The agreement which currently applies to the employees is the Compass Group (ESS Cannington) Enterprise Agreement 2019 (the 2019 Agreement) which was approved by Deputy President Asbury, as she then was, on 23 November 2019 and operated from 3 December 2019.

• [6] The 2019 Agreement has a nominal expiry date of 26 November 2023. Clause 20 of the 2019 Agreement makes provision for full time employees to be paid an annualised wage. It states:

20.1 A full time employee will be paid an Annualised Wage. An Annualised Wage is an amount not less than the total of all the amounts payable to the employee under the Agreement during a 12 month period for working a Work Cycle Roster (as defined by clause 25.2) including weekend penalties, rostered overtime, public holiday penalties (for working up to 7 public holidays), allowances and annual leave loading.

20.2 To avoid doubt, the following allowances are not included in an Annualised Wage and are payable as separate amounts in accordance with the relevant provisions of the Agreement:

20.3 The Annualised Wage is comprised of an amount identified as payment for ordinary time earnings (OTE) (for working 38 ordinary hours per week) or 'Annualised Ordinary Hours' and an amount for the rostered additional/overtime hours in the Work Cycle Roster or 'Annualised Rostered Additional Hours'.

20.4 Appendix B provides the Annualised Wages for the Work Cycle Rosters used at ESS Cannington. To avoid doubt, this does not prevent other Work Cycle Rosters from being used by the Company at ESS Cannington after following the provisions of Clause 9 of the Agreement.

• [7] At the date of approval, the 2019 Agreement provided for annualised salaries for six classification levels which varied according to roster pattern. For example, a level 2 employee working 12 hours per shift, 7 days on, 7 days off was entitled to the following annualised salary under Appendix B of the 2019 Agreement:

From first pay period commencing on or after 1 January 2020: $76,767

From first pay period commencing on or after 1 January 2021: $77,914

From first pay period commencing on or after 1 January 2022: $79,272

From first pay period commencing on or after 1 January 2023: $80,852

• [8] Appendix C of the 2019 Agreement provided for the hourly rates of pay for part-time and casual employees.

• [9] On 9 March 2021, the Commission approved a variation to the 2019 Agreement[1] which introduced new pay and conditions for employees engaged after the commencement of operation of the variation, who were defined as 'new employees'. Employees engaged before this date were defined as 'existing employees'. The pay and conditions for new employees were provided in new appendices, being:
  1. Appendix E (New Employees Terms and Conditions);
  2. Appendix F (New Employees Classification Definitions);
  3. Appendix G (New Employee Annualised Wages); and
  4. Appendix H (New Employee Casual Rates of Pay).

• [10] The variation application was made by the Employer pursuant to s.210 of the Act and was opposed by the Australian Workers Union (AWU). The 2019 Agreement as varied made provision for lower rates of pay for new employees. For example, a level 2 employee working 12 hours per shift, 7 days on, 7 days off, was entitled to an annualised salary of $55,440 from the first pay period after 9 March 2021. At this time, an existing employee working the same roster was entitled to an annualised salary of $77,914.

• [11] In the decision approving the variation. Deputy President Colman referred to the reasons that the Employer gave to employees for the change as follows:

the company's contract with South 32, under which it provides catering and hospitality services at the Cannington site, had been causing significant operating costs for the client, and that these were not sustainable if the company wished to retain the contract. ... a reduction in labour costs was needed, and ... South 32 had notified the company that if the variation to the Agreement was not approved, the company's contract would not be renewed when it expired in February 2021.[2]

• [12] The 2024 Agreement abolishes the different rates of pay and the preserved conditions for existing employees. In information provided to employees, the Employer advised that it intended that all employees will be on the same terms and conditions following the approval of the 2024 Agreement. The Employer explained that the rates under the 2019 Agreement for existing employees are no longer commercially viable for the Employer, which is why they will be reduced under the 2024 Agreement. The Employer said that it has been absorbing the higher pay rates and this is having an impact on the commercial viability of the contract. The Employer said that it intends to reduce the rates of pay for existing employees and that this 'will be a result of collective bargaining and not a contractual variation.'

• [13] In most cases, the reduction in pay rates for existing employees is significant, for example, the 2024 Agreement provides that a full time level 2 employee working 12 hours per shift, 7 days on, 7 days off, is entitled to an annualised salary of $69,921 if they are a non shift worker compared to their current annualised salary under the 2019 Agreement of $80,852. However, new employees at the same classification receive a substantial payrise. Such employees currently receive an annualised salary of $64,740 per annum which will increase to $69,921 per annum under the 2024 Agreement.
• [14] In addition, employees were informed that all employees (full time, part time, casual and apprentices) who were employed at the time of the vote and who will be covered by the Enterprise Agreement will receive a $3,000 (gross before tax) sign-on bonus payable upon a 'yes' vote and approval of the 2024 Agreement by the Commission.

• [15] The notification time for the 2024 Agreement was 19 January 2024 and it was made on 26 September 2024. There were 82 employees covered by the 2024 Agreement at the time of the vote. 74 of these employees cast a valid vote and 42 voted to approve the 2024 Agreement. There were 15 casual employees and no part-time employees. The Employer made an application to the Commission to approve the Agreement on 9 October 2024. The AWU, who was a bargaining representative, submitted a Form F18 which indicated that the AWU opposed the approval of the 2024 Agreement.

• [16] Section 186 of the FW Act requires me to approve the 2024 Agreement if the requirements in ss. 186 and 187 are met. The provisions of s.186 that are relevant to the 2024 Agreement require me to be satisfied of a number of matters including that the agreement has been genuinely agreed to by the employees covered by the agreement, the agreement passes the better off overall test, the group of employees covered by the agreement was fairly chosen and that the agreement contains no unlawful terms.

• [17] On 4 November 2024, I raised a number of issues with the parties by email in relation to the approval application including matters relating to the better off overall test. On 7 November 2024, the Employer made submissions by email and offered draft undertakings in response to the issues raised. The AWU continued to oppose approval of the 2024 Agreement on the basis of its contention that it has not been genuinely agreed to by the employees it covers. On 8 November 2024, I made directions for the filing and serving of submissions and evidence and set the matter down for hearing on 20 December 2024 in relation to the AWU's objections.

• [18] At the hearing, the AWU was represented by Mr Aaron Santelises

Industrial Advocate and Legal Advisor. The Employer was represented by Mr James Parkinson, Lawyer, who I granted permission to appear pursuant to s.596(2) of the FW Act as I was satisfied that it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

• [19] Ms Sarah Maree De Ruyter, Area Manager, Compass Group, gave evidence on behalf of the Employer and was cross-examined by Mr Santelises.

• [20] The following witnesses gave evidence on behalf of the AWU and were cross-examined by Mr Parkinson:

• [21] Ms Bonita Lorimer, an employee bargaining representative, and Ms Betty Hickox and Mr Anthony Osborn, who are employees of the Employer, all provided statutory declarations which were admitted into evidence without objection. They were not required for cross-examination.

• [22] 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.

• [23] The AWU contends that the Commission cannot be satisfied of the matters in ss.188(2) and (4A) because the Commission cannot be satisfied that:

• the employees requested to approve the agreement by voting for it have a sufficient interest in the terms of the agreement as required by s.188(2)(b) and

• the Employer took all reasonable steps to ensure, as required by s.180(5) that:

• the terms of the agreement, and the effect of those terms, were explained to the employees employed at the time who will be covered by the agreement; and
• the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.

• [24] Ms Sarah Maree De Ruyter has been engaged by Compass Group in the role of Area Manager since in or around August 2022. Ms De Ruyter commenced work at the Cannington Mine site in or around June 2024. Ms De Ruyter's responsibilities include assisting the Employer with enterprise bargaining in respect of the 2024 Agreement.[3]

• [25] Ms De Ruyter explained that on 26 November 2023, the 2019 Agreement passed the nominal expiry date so the Employer determined it was appropriate to commence bargaining for a new enterprise agreement with employees and the AWU.[4]

• [26] In May 2024, employees voted no to a new enterprise agreement that was offered by the Employer.[5]

• [27] On 17 September 2024, Ms De Ruyter was copied to an email sent from Ms Nicole Thompson, Business Partner ER/IR, to employees in relation to the 2024 Agreement. The email:

a. confirmed the formal offer for the 2024 Agreement;

b. advised that the 2024 Agreement would be put to vote from 8 am AEST on 25 September to 6 pm AEST on 26 September 2024 inclusive;

c. set out information regarding the vote, including that CiVS was appointed as an external provider to conduct the vote and information on how to vote;

d. confirmed that the access period for the 2024 Agreement commenced on 17 September 2024; and

e. advised employees that 10 information sessions would be offered on the 2024 Agreement, both in person in the Cannington Mine Site training room and on Microsoft Teams, at the following times:

v. at 6 am and 2 pm on 24 September 2024.[6]

• [28] The email of 17 September 2024 also contained a copy of the 2024 Agreement and a range of access period materials, including:

c. an Explanation of Terms document, outlining the key terms of the 2024 Agreement;

d. Reference Material, containing hyperlinks to, or the location of, any other material incorporated into the 2024 Agreement such as the Fair Work Act 2009 (Cth) and the National Employment Standards;

e. a Briefing Document, which explains the effect of each term of the 2024 Agreement and compares the 2024 Agreement to the 2019 Agreement;

h. correspondence from CiVS regarding the vote, including that the confidential ballot

for the 2024 Agreement will be online and via telephone;

i. a Supporting Assistance Document which outlined contact information for additional support including phone numbers for the Fair Work Ombudsman and Translating and Interpreting Services.[7]

• [29] The General Information and Frequently Asked Questions[8] document distributed to employees relevantly provided:

I am an existing employee, will my rate of pay decrease?

Yes. For further information please see the Annualised Wage Comparison document.

Why do the existing employee rates need to reduce?

The rates under the 2019 Agreement for existing employees are no longer commercially viable for ESS, which is why under the proposed Agreement they will be reduced. ESS have been absorbing the higher pay rates and this is having an impact on the commercial viability of the contract.

The proposed decrease to existing employee's rates of pay will be a result of collective bargaining and not a contractual variation.

I am an existing employee, what if I don't agree to reducing my rate of pay?

The rates of pay in the proposed agreement are a result of collective bargaining. From the commencement of the proposed agreement these rates will be the applicable pay rates.

ESS wants to stress that we are not making existing employees' roles redundant, as these roles are still required to be performed.

For existing employees what happens to the balance of accumulated annual leave, will it be paid at the current rate or the proposed agreement rate?

Annual leave is required to be paid at the annualised wage applicable to a full-time employee when the leave is taken. If the proposed agreement is successful and approved by employees by vote and approved by the Fair Work Commission, annual leave taken by existing employees after the commencement of the proposed agreement will be paid at the applicable annualised wage at the time. It will not be paid at 'existing rates' or the rate at which it accrued.

Whilst we understand that this will be disappointing to existing employees, we note that they may avail themselves of cashing out accrued annual leave subject to the provisions of clause 30.4 of the 2019 Agreement. Note that these requests would need to be made before the proposed Agreement commences.

For existing employees what happens to the balance of accumulated Long Service Leave (LSL), will it be paid at the current rate or the proposed agreement rate?

Long Service Leave is required to be paid at the annualised wage applicable to an employee when the leave is taken.

I am a new employee, what does this Agreement mean for my rate of pay?

Base rates of pay for 'new employees' (as defined in the 2019 Agreement) to increase by 8% on commencement of the Agreement.

• [30] As part of the access period and bargaining process, Ms De Ruyter conducted information sessions with employees to discuss the terms of the 2024 Agreement and any queries or concerns. Specifically, Ms De Ruyter conducted meetings at the Cannington Mine Site training room with employees at the following times and dates:

e. 6 am and 2 pm on 24 September 2024.[9]

• [31] Employees were also offered to attend these by way of Microsoft Teams. Ms De Ruyter said she did not take notice of attendance at all of the meetings during the access period, but that there were over 20 employees who attended the meeting on 17 September 2024. The remaining meetings had minimal attendance.[10]

• [32] Ms De Ruyter explained that the Employer needs to employ casuals in the casual pool to meet manning requirements at the Cannington Mine Site and to address vacancies due to leave, including for example personal leave and annual leave. Ms De Ruyter said that the Employer did not deploy additional casual employees to the Cannington Mine Site during the access period or voting dates in respect of the 2024 Agreement. Further, Ms De Ruyter said that the Employer did not employ additional casual employees to the Cannington Mine Site, above the contractual manning requirements, during the access period or voting dates in respect of the 2024 Agreement.[11]

• [33] Ms De Ruyter said during the hearing that the Employer employed 15 casual employees during the access period and the vote and that 12 of these employees were still employed at the time of the hearing.

• [34] Ms De Ruyter provided an Explanation of Terms document in relation to both the May 2024 and September 2024 ballots which confirmed that employees receive a $3,000 sign-on bonus upon a yes vote and approval of the 2024 Agreement by the Commission. The bonus is payable to all employees covered by the 2024 Agreement, including new employees and existing employees as defined under the 2019 Agreement, who are employed at the time of the vote.[12]

• [35] Ms De Ruyter said that as part of the recruitment process and on-site induction process for the Cannington Mine Site, employees are required to have a basic comprehension of English. In any event, the Supporting Materials included contact details for translation and interpretation services. To date, no employee covered by the 2024 Agreement has made any request for translation or interpretation services.[13]

• [36] Ms Sheree Sordelli has been employed by the Employer since 18 June 2008. She is employed as a Utility Attendant level 2 working a 7 days on, 7 days off roster. Ms Sordelli also does shift work and works nightshift for 7 nights every second swing. Ms Sordelli's annual pay is currently $80,601 plus allowances. Ms Sordelli says that her annual pay will decrease to $69,770 plus allowances under the 2024 Agreement, which is a significant loss for her. Ms Sordelli explained that the 2024 Agreement was voted on twice. The 2024 Agreement was not approved the first time it was voted on by employees. Ms Sordelli said that none of the proposals changed in any way between the first and second vote. Ms Sordelli said that prior to the second vote, the Employer hired a large number of casual employees. Ms Sordelli said that to her knowledge, during the period that she has been employed, there have never been as many casual employees employed at the mine site as there were at the time of the second vote.

• [37] Ms Sordelli said that her salary reflects her years of service, her past performance and experience in the role. The cost of living is steadily rising and she is finding it more difficult to make ends meet especially since her wages were negatively impacted in the last enterprise agreement negotiation. Ms Sordelli said she was very concerned about her annual leave entitlements. She has opted to have a large part of her balance paid out in an attempt to retain the monetary value of those hours. This has left her in a position where she has less time available to her if she needs it in an emergency as she has an aged parent and aunt who she supports. She felt that she had no other option but to cash out her leave. Ms Sordelli says that her long service leave has also been impacted as she has 13.59 weeks of long service leave which she cannot get paid out now and which will be paid at a lower rate in the future which further disadvantages her.[14]

• [38] Mr Stephen Roberts has worked at Cannington Mine for the last 12 years. He said that he has worked hard and been dedicated to his job. He feels that it is grossly unfair that he is being forced to take a massive pay cut during a cost of living crisis. He said that at the time of the vote there seemed to be an usually high number of transient casual employees working at the Carrington site.[15]

• [39] Ms Bonita Lorimer commenced employment with Compass Group on 11 November 2007 in the role of kitchenhand and then became an employee of the Employer on 24 February 2020 in the role of Attendant Utility. Ms Lorimer said that she is aware that there are workers performing work for the Employer who are from non-English speaking backgrounds and who have limited English language skills.

• [40] Ms Lorimer said that in the course of negotiations for the 2024 Agreement, the agreement was explained to the voting employees at team meetings which Ms Lorimer was unable to attend due to working on site and on night shift.

• [41] Ms Lorimer said that during the course of the ballot, she became aware on 12 September 2024 that there were casual employees performing work for her employer who did not usually work at the mine site.

• [42] Ms Lorimer said there were up to ten casual employees who did not usually work at the mine who were from overseas. Ms Lorimer has not seen any of these workers before the voting for the 2024 Agreement commenced and has not seen any of them since the ballot closed. There are 26 existing employees who will be worse off if the 2024 Agreement is approved. Some existing employees have been working for the Employer for over 20 years.[16]

• [43] Ms Betty Hickcox said she had been employed by the Employer since February 2008 and if the 2024 Agreement is approved, she will be paid $9.62 less per hour and will lose $19,944.94 of her annual leave and long service leave as soon as it is approved. She is 67 years of age and is concerned about how the lower rates of pay will affect her superannuation. This is a very stressful situation as she still has debts to pay off before she retires and feels that at her age, it will be difficult to find another job and be retrained.[17]

• [44] Mr Anthony Osborn said that he has worked at Carrington Mine for 17 years. If the Agreement is approved, he will lose over $14,000 per year in salary and $20,000 in annual leave as he has over 900 hours annual leave. He has just taken long service leave as he did not want to lose all of those entitlements at the lower rate. When Mr Osborn was on long service leave, he had to vote for the 2024 Agreement. When he went to log on to vote, he was told that he had already voted yes. As he was overseas, he had to call Australia to find out how this was possible. He was told that they had sent the message to a wrong number so someone else had voted for Mr Osborn. The voting agent reset the vote and Mr Osborn had his vote but he is concerned about whether the other vote was removed from the count.[18]

• [45] In response to Mr Osborn's concerns about the voting process, the Employer explained to the Commission that the ballot agent, CiVS, confirmed that it had inadvertently entered the email contact details for Mr Osborn against another eligible voter. CiVS subsequently removed the vote that was cast in error and corrected the email contact details so that the employee could cast their vote. The Employer said that in its experience with using CiVS as a provider, this issue is an anomaly and has not occurred previously.[19]

Section 188(2): Sufficient interest

• [46] The AWU referred to its Form F18 which noted the concerns of its members that there were a number of employees working on the site who only performed work at the site during or around the 2024 Agreement's access period and the voting period. The AWU is concerned that this group of employees were brought to work at the site covered by the 2024 Agreement for the purpose of engineering a majority 'yes' vote for the agreement.

• [47] The AWU provided statutory declarations of Ms Sheree Sordelli and Mr Stephen Roberts, who each are long term employees of the Employer and who each describe a cohort of irregular workers engaged at the worksite around the time the 2024 Agreement was voted on.

• [48] In all of the above circumstances, and noting that the Employer's response made on 7 November 2024 includes no evidence or even explanation about the nature of the workers voting on the 2024 Agreement who do not normally work at the site, the AWU submitted that the Commission cannot be satisfied that the 2024 Agreement has been genuinely agreed to within the meaning of section 188 of the FW Act after taking into account the Statement of Principles made under section 188B.

• [49] In response to Ms De Ruyter's evidence that 12 of the 15 casual employees who were employed during the access and voting period remain employed by the Employer, the AWU submitted that there is no certainty that these 12 employees will be employed for the life of the 2024 Agreement, therefore they do not a have a 'sufficient stake'.

• [50] On 7 November 2024, the Employer advised my Chambers by email that following the closure of the vote to approve the 2024 Agreement on 26 September 2024, the Employer commenced a review of casual employee data relating to those employees who voted on the 2024 Agreement between 25 September 2024 - 26 September 2024, to ensure compliance with Appeal by Kmart Australia Limited t/a Kmart and others (Kmart)[20] This analysis involved a review of the shifts worked by casual employees who were included in the roll of voters for the 2024 Agreement to ensure that those employees were eligible to cast a vote.[21]

• [51] The Employer explained that a list of casual employees included in the roll of voters were cross-referenced with time and attendance data from the Employer's payroll system to verify that they worked during the access period and vote (that is, from 17 September 2024 - 26 September 2024). Casual employees who did not work during this period were identified by the Employer as not eligible to vote. The Employer then provided this list of ineligible casual employees to the Employer's external vote provider, CiVS. CiVS reviewed the list provided by the Employer and amended the results of the vote to remove any votes cast by casual employees who were ineligible to vote and subsequently provided the declaration of results to the Employer. The Employer submits its approach is consistent with the principles of Kmart.[22]

• [52] The Employer relied on the evidence of Ms De Ruyter in submitting that:
  • it is required to employ casual employees in the casual pool to meet minimum manning requirements at the Cannington Mine Site and to address vacancies due to leave, including for example personal leave and annual leave.
  • It did not deploy additional casual employees to the Site during the access period or voting dates in respect of the 2024 Agreement.
  • It did not employ additional casual employees at the Cannington Mine Site, above the contractual manning requirements, during the access period or voting dates in respect of the 2024 Agreement.

• [53] The Employer submitted that the AWU's grounds for this objection, being broadly that Ms Sordelli and Mr Roberts did not recognise some casual employees, is ambiguous, baseless and without merit. For these reasons, the AWU's claim that the employees did not have sufficient interest in the 2024 Agreement should be dismissed by the Commission.

• [54] Paragraph 17 of the Statement of Principles which are referred to in s.188(1) of the FW Act deals with sufficient interest. It states:

In considering whether employees have a sufficient interest in the terms of an enterprise agreement as required by section 188(2)(a) of the Fair Work Act, and whether the employees are sufficiently representative as required by section 188(2)(b), the FWC may take into account:

(a) whether the employees entitled to vote on the enterprise agreement are to be paid the rates of pay provided for in the agreement, and

(b) the extent to which the employees entitled to vote on the enterprise agreement are employed across the full range of:

(ii) types of employment in the agreement (for example, full-time, part-time and casual)

(iii) geographic locations the agreement covers, and

(iv) industries and occupations the agreement covers.

• [55] The AWU's submissions in relation to casual employees raise two issues, firstly, whether the casual employees who voted in relation to the 2024 Agreement were entitled to do so, and secondly whether those employees have a sufficient interest in the 2024 Agreement.

• [56] The Employer provided evidence, both in the Form 17 Declaration and through the evidence of Ms De Ruyter, that 12 of the 15 casual employees who were employed during the access and voting period remain employed by the Employer. If the AWU had any concerns about the veracity of this information, it could have sought orders that the Employer produce documents which established these matters but it did not do so. In the circumstances, I accept Ms De Ruyter's evidence that 15 casual employees were entitled to vote in relation to the 2024 Agreement. I note the matters raised by Mr Osborn about the voting process which are very concerning. These issues appear to have been addressed by CiVS and there is no evidence to indicate that any other employee experienced similar issues. I have not been asked to make any findings about the integrity of the voting process and have no reason to doubt the results of the ballot declared by CiVS on 27 September 2024.

• [57] Ms Sordelli, Ms Lorimer and Mr Roberts all said that there were a higher number of casual employees than usual at the site during the voting period. The AWU has invited me to draw an inference, based on this evidence, that the Employer engaged these employees to work at the site to engineer a 'yes' vote for the 2024 Agreement.

• [58] Ms De Ruyter's evidence is that the Employer did not employ additional casual employees to the Cannington Mine Site, above the contractual manning requirements, during the access period or voting dates in respect of the 2024 Agreement. I have considered Ms De Ruyter's evidence in the context of the evidence before me about number of eligible voters for both the first and second ballots for the 2024 Agreement. The results of the first ballot were declared by CiVS on 9 May 2024[23] and stated that there were 85 eligible voters. The results of the second ballot were declared by CiVS on 27 September 2024 and stated that there were 82 eligible voters.[24] The similar numbers of eligible voters for the first and second ballot are consistent with Ms De Ruyter's evidence that the Employer did not employ additional casual employees, above the contractual manning requirements, during the access period or voting dates in respect of the 2024 Agreement. If the Employer had deliberately inflated the number of casual employees to secure a 'yes' vote, I would expect the number of eligible voters for the second vote to be significantly higher than the number of eligible voters for the first vote, however this was not the case.

• [59] I have no reason to doubt the evidence of Ms Sordelli, Ms Lorimer and Mr Roberts that there were a higher number of casual employees than usual at the site during the voting period. However, I accept Ms De Ruyter's evidence that these employees were engaged pursuant to the contractual manning requirements. As 12 of these employees continued to be employed at the site three months after the ballot was declared, I find that the employees who were requested to approve the agreement by voting for it have a sufficient interest in the terms of the 2024 Agreement. It is not necessary for me to be satisfied, as contended by the AWU, that these employees will remain employed for the life of the 2024 Agreement.

• [60] The AWU raised concerns about the payment of the $3,000 bonus. It submitted that the fact that a $3,000 bonus was offered to voting employees if the second ballot resulted in the 2024 Agreement being voted up is particularly relevant in circumstances where the first ballot was heavily voted down in May 2024.

• [61] The AWU submitted that the bonus is not a term of the 2024 Agreement and is the likely reason the Employer obtained a yes vote in the second ballot for the 2024 Agreement. The AWU submitted that at least some of the voting casual employees were likely to have voted 'yes' only to obtain the bonus, and not because they otherwise had any interest in the terms of the 2024 Agreement.

• [62] The AWU relied upon the Full Bench decision of National Tertiary Education Industry Union v Southern Cross University, CPSU, the Community and Public Sector Union-SPSF Group (NTEU).[25] In this case, the Full Bench found that the employer had misled employees when it stated that a sign-on bonus of $750 would be available to every current casual staff member should the agreement be endorsed by a majority of staff whereas in fact the agreement provided for a sign-on bonus of $750 upon approval by the Commission.[26]

• [63] The Employer confirmed that it had undertaken to pay employees covered by the 2024 Agreement a $3,000 sign-on bonus upon a yes vote and approval of the 2024 Agreement by the Commission. However, the Employer notes that this bonus was also proposed as part of the 2024 Agreement for the first ballot in May 2024.

• [64] In light of the fact that the bonus was offered as part of both the first ballot and second

ballot in respect of the 2024 Agreement, the Employer submitted that the bonus did not have any undue influence on the second ballot for the 2024 Agreement.

• [65] The Employer submitted that the bonus is payable to all employees who will be covered by the 2024 Agreement once the 2024 Agreement is approved by the Commission. This condition is a benefit to all employees, irrespective of how they voted and is effectively a sign on bonus payable to all employees once the 2024 Agreement commences operation.

• [66] The Employer submitted that it is not uncommon for an employer to provide certain conditions, including one off payments, once an enterprise agreement commences operation. Such circumstances do not represent a barrier to approval. For such reasons, the objections should be dismissed.

• [67] At the outset, I note that the Explanation of Terms document stated that a 'key feature of the Agreement' was 'a $3,000 sign-on bonus (gross before tax)...payable upon a YES vote and approval of the Agreement by the Fair Work Commission [which] [a]pplies to all employees ('new' and 'existing' employees as defined under the current Agreement) who are employed at the time of the vote. This bonus will be paid within two pay periods following commencement of the Agreement.'

• [68] The AWU submitted that this was misleading as the bonus is not a feature of the Agreement. However, assuming that the Employer follows through with its commitment to pay the bonus, the circumstances of this case are distinguishable from NTEU as the Employer made it clear in communications with employees that the bonus for the 2024 Agreement would only be payable upon approval of the 2024 Agreement by the Fair Work Commission.

• [69] In my view, there are aspects of the Agreement which are likely to have incentivised all new employees (and not just casual employees) to vote in favour of the 2024 Agreement. In addition to the bonus, it is likely that new employees covered by the Agreement would have been motivated by the 8% payrise. It is concerning to me that one group of employees, the new employees, could receive such significant financial benefits under the 2024 Agreement in circumstances where the other group of employees, the existing employees, face substantial pay cuts and the choice between having their leave cashed out or devalued. The evidence of Ms Sordelli, Mr Roberts, Ms Lorimer, Ms Hickox and Mr Osborn, who are all long term employees and say that they will be more than $10,000 a year worse off under the 2024 Agreement, is harrowing reading.

• [70] The Employer said that the reason that it is reducing rates of existing employees is because they are no longer commercially viable for the Employer, however this rationale is inconsistent with the significant payments is it making to new employees. Further, I have some difficulty in accepting the Employer's advice to employees that the reduction of rates of pay for existing employees 'will be a result of collective bargaining and not a contractual variation'.

• [71] The 2024 Agreement sets minimum rates of pay but does not disturb any contractual entitlements that existing employees have for their current pay of pay to be maintained. I am concerned that the Employer's advice to existing employees during the access period that their pay will be reduced may be misleading however I am unable to express a definitive view about this in the absence of evidence about their contractual entitlements.

• [72] I note that one of the objects of the Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by achieving productivity and fairness through an emphasis on enterprise - level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action. In my view, an enterprise agreement which delivers a significant pay cut to long term employees with no corresponding benefits does not promote social inclusion or achieve fairness and is therefore inconsistent with the objects of the Act. Notwithstanding my views in this regard, the financial incentives provided by the Employer to new employees and the communication in relation to these benefits, do not by themselves, establish that there was not genuine agreement in relation to the 2024 Agreement.

Section 188(4A): Explanation of the Agreement

• [73] The AWU submitted that the materials provided by the Employer, including the Form F17B, do not sufficiently explain how the 2024 Agreement was explained in circumstances where the voting cohort includes six people from culturally and linguistically diverse backgrounds.

• [74] The AWU submitted that, in circumstances where the 2024 Enterprise Agreement was voted up by such a narrow margin, and where six of the voting employees were from culturally and linguistically diverse backgrounds, the Commission cannot be satisfied without more that the terms of the agreement have been sufficiently explained to the employees eligible to vote.

• [75] The AWU submitted that it was unreasonable for the Employer to expect employees from a culturally and linguistically diverse background to read multiple attachments to the email containing information about the 2024 Agreement which was distributed to employees during the access period. The AWU notes that information about translation and interpreting services was provided to employees by way of one sentence in one of many attachments sent to employees on 17 September 2024.

• [76] The AWU was critical of the information provided by the Employer to employees. It pointed to changes to clauses 27, 28 and 29 which deal with breaks, penalty rates and overtime respectively. The Employer provided a briefing document to employees which included a column headed, 'Compass Group (ESS Cannington) Enterprise Agreement 2019 comparison and comment'. In that column, the Employer stated words to the effect that clauses 27, 28 and 29 had been updated to ensure that they were in line with the underpinning award.

• [77] The AWU submitted that the Employer failed to explain to the employees differences in entitlements and other terms and conditions between the 2024 Agreement and the following modern award provisions that have been varied since the existing agreement was made:

• Requests for flexible working arrangements term which was inserted into the Award on 10 July 2023;
• Right to Disconnect term which was inserted into the Award on 23 August 2024; and
• Casual employment term which was inserted into the Award on 26 August 2024.

• [78] The Employer relied on the evidence of Ms De Ruyter in submitting that:

• the access period materials for the employees covered by the 2024 Agreement, which was emailed to all employees on 17 September 2024, contained contact details for translation and interpretation services.
• no employee covered by the 2024 Agreement made any request for translation or interpretation services.
• all employees covered by the 2024 Agreement, including those from culturally and linguistically diverse backgrounds, must have competent English language skills.
• As part of the recruitment process for the employees and induction to the Cannington Mine Site, all employees are required to demonstrate that they have a basic comprehension of the English language.

• [79] The Employer submitted that authenticity of the 2024 Agreement requires consideration of whether the employees have genuinely agreed to it, including whether they were informed and genuinely understood what was being approved.

• [80] The Employer submitted that it need only be established to the satisfaction of the Commission, that the Employer has taken reasonable steps to ensure that:

(a) the terms of the 2024 Agreement, and the effect of those terms, were explained to employees of culturally and linguistically diverse backgrounds who will be covered by the 2024 Agreement; and

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

• [81] The Employer submitted that it has taken all reasonable steps to ensure that the terms of

the 2024 Agreement and its effects were adequately explained to all individuals, including those of culturally and linguistically diverse backgrounds.

• [82] The Employer submitted that all employees had a full opportunity to consider the content of the 2024 Agreement and that those who voted in favour genuinely agreed to its content.

• [83] Paragraphs 8-14 of the Statement of Principles are relevant to the Commission's consideration under s.180(5). Paragraphs 8-14 provide:

1. Section 180(5)(a) of the Fair Work Act requires the employer to take all reasonable steps to explain the terms of a proposed enterprise agreement, and the effect of those terms, to employees employed at the time who will be covered by the agreement. This should include at a minimum explaining to employees how the 2024 Agreement will alter their existing minimum entitlements and other terms and conditions of employment. In explaining this, subject to paragraph 9:

(a) where a proposed enterprise agreement will replace an existing enterprise agreement - it will generally be sufficient to explain:

(i) the differences in entitlements and other terms and conditions between the 2024 Agreement and the existing agreement, and

(ii) the differences in entitlements and other terms and conditions between the 2024 Agreement and any applicable modern award provisions that have been varied since the existing agreement was made (including award variations that have not yet come into effect), or

(b) where a proposed enterprise agreement will not replace an existing enterprise agreement - it will generally be necessary to explain the differences in entitlements and other terms and conditions between the 2024 Agreement and any applicable modern award.

1. In explaining to employees how the proposed enterprise agreement will alter their existing minimum entitlements and other terms and conditions of employment, there is usually no need to explain trivial differences between the proposed agreement and an existing enterprise agreement or modern award that have no effect on employees' entitlements or obligations.

1. Section 180(5) will generally not be satisfied if the employer makes an incorrect representation or misleads employees (by words, action or otherwise) about a significant term of the proposed enterprise agreement or its effect.

1. In determining whether section 180(5) has been complied with, the FWC may have regard to any explanation of the proposed enterprise agreement given to employees by one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.

1. Subject to paragraph 13, an employee may be provided with the explanation required by section 180(5):

(a) by giving the employee, or ensuring the employee has access to, a hard copy of the explanation

(b) by electronic means (either by sending the explanation to the employee, or by sending the employee a link to the explanation or otherwise giving the employee access to the explanation online)

(c) orally, but the FWC may take into account whether there is a written record or summary kept of the oral explanation, or

1. Where an employee is provided with the explanation required by section 180(5) in part or full by the method in paragraph 12(a) or 12(b), the employee should have a reasonable opportunity to read the explanation. Where an employee is provided with the explanation required by section 180(5) in part or full by the method in paragraph 12(c), the employee should have a reasonable opportunity to attend the oral explanation.

1. Section 180(5)(b) of the Fair Work Act requires the explanation of the proposed enterprise agreement to be provided in an appropriate manner taking into account the particular circumstances and needs of the employees. In determining whether the explanation of the proposed enterprise agreement was given in an appropriate manner, in addition to taking into account the circumstances and needs of the kinds of employees in section 180(6), the FWC may take into account:

(b) the environment(s) in which work is performed (for example, office, workshop, field, operating equipment or machinery, driving between locations)

(c) facilities available at the location(s) or in the environment(s) in which work is performed (for example, internet access, computer facilities, ability for employees to access mobile telephones while working, printing/copying facilities, private space for employees to consider material or information)

(d) hours of work or rosters which may limit access to relevant facilities or limit the time employees have to consider materials or information

(e) the circumstances and needs of employees who are absent from a workplace due to their roster cycle or for other reasons, and

(f) the nature of the work performed by the employees.

• [84] In CFMMEU v Mechanical Maintenance Solutions Pty Ltd (Mechanical Maintenance)[27]

the Full Federal Court said in relation to s.180(5):

[78] To advance the purpose of enabling relevant employees to cast an informed vote, s 180(5) expressly requires that they be given, not only an explanation of the terms of the agreement, but the effect of those terms. A proposed enterprise agreement will almost invariably be intended to affect existing working conditions. The ordinary meaning of the noun "effect" includes "consequence". The obligation to explain the effect or consequences of the terms of a proposed enterprise agreement requires explanation of how those terms will affect existing conditions. Any detrimental changes to existing conditions will be of particular significance to employees. The employer's obligation under s 180(5) requires that all reasonable steps must be taken to ensure that the effect of all the terms in bringing about detrimental changes to existing conditions are explained. That means, effectively, that all detrimental changes must be explained, whether through omission or alteration of a favourable existing condition.

[79] The obligations cast upon employers under s 180(5) are undoubtedly onerous. However, the clear language and purpose of the provision means that it cannot be read as requiring anything less than that the employer must take all reasonable steps to ensure that all the terms, and the effect of all the terms, are explained. The consequence of non-compliance by the employer is the risk that an enterprise agreement approved by the employees will not be approved by the Commission.[28]

• [85] In order to consider the AWU's submissions about the adequacy of the written information provided by the Employer in the briefing document, it is necessary to examine what this document says about the differences in entitlements and other terms and conditions between the 2024 Agreement and the 2019 Agreement.

• [86] Clause 20 of the 2024 Agreement deals with annualised wages. The briefing document states:

In the 2019 Agreement, public holidays were factored into the annualised wage. Under the 2024 Agreement employees who are paid an annualised wage and required to work a public holiday will be paid in accordance with clause 34.

• [87] The briefing document states in relation to clause 34:

1. Agreement has amended the application of how public holidays are paid.

• [88] The effect of clause 34 of the 2024 Agreement is that:

• a full time employee will be requested to work on public holidays that fall on rostered working days within the Work Cycle Roster and
• the employee will be paid an additional loading to 'top up' the rate they receive for working a public holiday to 225%.

• [89] Clause 27.1 deals with meal breaks. The clause in the 2024 Agreement is in the same terms as the 2019 Agreement. Clause 27.2 deals with rest breaks. The current clause provides that an employee working a shift of 10 hours or more will be given two 10 minute paid rest breaks to be taken during each half of their shift. The clause in the 2024 Agreement provides that employees are entitled to the following rest breaks:

• 8-10 hours or more - two x paid 10-minute rest pauses (note that this can be combined into one 20 minute break).
• More than 10 hours - 2x 20-minute paid rest breaks.

• [90] Clause 27.2 of the 2024 Agreement mirrors the entitlement in clause 16.2 of the Award and is more favourable than clause 27.2 of the 2019 Agreement.

• [91] Clause 28 deals with penalty rates. In the 2019 Agreement, penalty rates for existing employees are set out in Appendix C of the 2019 Agreement and are as follows:

• [92] In the 2019 Agreement, penalty rates for new employees are set out in Appendix E of the 2019 Agreement and are as follows:

• [93] In the 2024 Agreement, penalty rates are as follows:

• [94] The penalty rates for working on Sundays and public holidays are lower for existing full-time and part-time employees in the 2024 Agreement compared to the 2019 Agreement, however I note that no part-time employees are covered by the 2024 Agreement. The penalty rates for working on public holidays are lower for existing casual employees in the 2024 Agreement compared to the 2019 Agreement. The penalty rates for working on Saturdays, Sundays and public holidays in the 2024 Agreement have not changed for new employees and reflect the entitlements in clause 29.2 of the Award.

• [95] Clause 29 deals with overtime rates. Clause 29.2 provides that hours worked in excess of the total hours of a Work Cycle Roster are paid at overtime rates. In the 2019 Agreement, overtime rates for existing full time and part time employees are set out in Appendix C of the 2019 Agreement. The overtime rates for full time and part time existing employees which apply from the first pay period commencing on or after 1 January 2023 are:

• [96] Monday to Sunday overtime rates in Appendix C are double the base rates and the Public holiday rates are two and a half times the base rates.

• [97] In the 2019 Agreement, overtime rates for new employees are set out in Appendix E of the 2019 Agreement and are as follows:

• [98] In the 2024 Agreement, overtime rates for new full time and part time employees are the same as provided in Appendix E of the 2019 Agreement, except in respect of public holidays where the public holiday overtime rate is 225% rather than 250%. This reflects the entitlements in clauses 28.4 and 29.2 of the Award. Overtime rates are lower for existing employees in respect of the first two hours worked Monday to Friday.

• [99] Under clause 29.3 of the 2019 Agreement, a casual employee is not entitled to overtime rates of pay. In the 2024 Agreement, a casual employee is only entitled to overtime rates of pay if they work outside of the hours pursuant to clause 14.1.2.

• [100] The briefing document noted that Appendix D contained an explanation of how the annualised wages are calculated. However, the table did not state that the calculation of the annualised wage changed for existing employees with respect to Sunday penalty rates. Appendix D of the 2019 Agreement states that for an existing employee working 12 hours per shift, 7 days on, 7 days off, they would receive a 75% penalty for working 10 hours on a Sunday per roster cycle. Appendix D of the 2024 Agreement states that for an existing employee working 12 hours per shift, 7 days on, 7 days off, they would receive a 50% penalty for working 10 hours on a Sunday per roster cycle.

• [101] The above analysis shows that the following entitlements have changed in the 2024 Agreement for existing employees:

• Overtime is payable for the first two hours at time and a half rather than double time.
• The penalty rates for working on Sundays and public holidays are lower for full-time employees.
• The penalty rates for working on public holidays are lower for casual employees.

• [102] Further, the above analysis shows that the following entitlements have changed in the 2024 Agreement for new employees:

• Overtime rates for full time employees working on public holidays are lower.

• [103] The Employer did not advise employees that some of the entitlements in clauses 28 and 29 of the 2024 Agreement have been reduced. Rather, it said that clauses 28 and 29 had been updated to ensure that they were in line with the underpinning award. There was no need for the Employer to change the entitlements under clauses 28 and 29 to align them to the Award unless they are below the Award which is not the case.

• [104] Paragraph 8 of the Statement of Principles required the Employer 'at a minimum' to explain to employees how the 2024 Agreement will alter their existing minimum entitlements and other terms and conditions of employment. The Employer did not do this. It was particularly important for the Employer to explain to existing employees how their conditions would change, given the Employer's intention to reduce their pay. It was not sufficient for the Employer to simply advise employees that the conditions for existing employees would be abolished without explaining how these conditions differed with respect to those applying to new employees.

• [105] I do not regard these as trivial differences between the proposed agreement and an existing enterprise agreement or modern award that have no effect on employees' entitlements or obligations.

• [106] I accept the AWU's contention that the Employer should have explained to the employees differences in entitlements and other terms and conditions between the 2024 Agreement and the following Award provisions that have been varied since the existing agreement was made:

• Requests for flexible working arrangements term which was inserted into the Award on 10 July 2023;
• Right to Disconnect term which was inserted into the Award on 23 August 2024; and
• Casual employment term which was inserted into the Award on 26 August 2024.

• [107] Such an explanation is consistent with paragraph 8.a.ii of the Statement of Principles.

• [108] Taking all of these matters into account, I find that the Employer has not complied with s.180(5)(a) of the FW Act as it did not take all reasonable steps to explain the terms the 2024 Agreement, and the effect of those terms, to employees employed at the time who will be covered by the agreement. As such, I am not satisfied that there was genuine agreement in relation to the 2024 Agreement under s.188(4A).

• [109] I now turn to the AWU's submissions that the Employer did not provide the explanation of the terms of the 2024 Agreement to its employees from culturally and linguistically diverse backgrounds in an appropriate manner. The Employer's evidence was that all employees covered by the 2024 Agreement, including those from culturally and linguistically diverse backgrounds, must have competent English language skills and that all employees are required to demonstrate that they have a basic comprehension of the English language as part of the recruitment process for the employees and induction to the Cannington Mine Site. Of 82 employees covered by the 2024 Agreement, only six are from culturally and linguistically diverse backgrounds, so it would be expected that those employees would be regularly interacting with and receiving instructions from English speaking employees. The AWU has not made any submissions about the specific steps that should have been taken by the Employer in communicating with the six employees from culturally and linguistically diverse backgrounds. In the circumstances and having regard to the Employer's requirements in relation to English language proficiency and offer of translation and interpretation services, I do not accept that any additional action was required to be taken by the Employer in relation to the manner of communication with employees from culturally and linguistically diverse backgrounds about the 2024 Agreement.

• [110] Section 188(5)(aa) permits me to disregard minor procedural or technical errors made in relation to the requirements of s.180(5) if I am satisfied that the employees were not likely to have been disadvantaged by the errors. The reduction of entitlements is a significant matter, particularly for employees who have been advised that their pay will be reduced. Employees should have been informed of these reductions, so they were fully aware of all of their entitlements under the 2024 Agreement prior to exercising their vote. For these reasons, I do not regard the Employer's failure to advise employees of reduced entitlements as a minor procedural or technical error. As such, I am not able to disregard the Employer's actions in this regard under s.188(5)(aa).

• [111] 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 section 186 if I am satisfied that an undertaking under s.190(3) meets the concern. Section 190(3) permits me to accept a written undertaking from one or more employers covered by the agreement if I am 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.

• [112] I must not accept an undertaking under s.190(3) unless I have sought the views of each person who the Commission knows is a bargaining representative for the agreement.

• [113] I have not formed a view about whether the Employer's non-compliance with s.180(5) of the FW Act with respect to the 2024 Agreement can be addressed by an undertaking, however I note that it is permissible to accept an undertaking under s.190 of the Act in order to overcome an employer's failure to comply with s.180(5).[32]

• [114] I believe that it is appropriate to invite the Employer to provide undertakings pursuant to s.190 of the FW Act and for the bargaining representatives to provide their views about any proposed undertakings before making a final decision in relation to the matter.

• [115] In the circumstances, I make the following directions:

1. If the Employer wishes to provide any undertakings to address its non-compliance with s.180(5)(a) of the FW Act, it is required to send the proposed undertakings to the Commission and all Bargaining Representatives by email by 4:00pm AEST on Thursday 6 March 2025.

1. If the Bargaining Representatives wish to provide any views in relation to any proposed undertakings, they are required to send these views to the Commission and the Employer by email by 4:00pm AEST on Thursday 13 March 2025.

• [116] I will issue my final decision in the matter following receipt of any further material provided by the parties in accordance with these directions.

Mr J Parkinson, Solicitor appeared on behalf of the Applicant

Mr A Santelises appeared on behalf of the Australian Workers Union

[1] Compass Group (Australia) Pty Ltd T/A ESS [2021] FWCA 1234

[3] Witness Statement of Sarah Maree De Ruyter dated 6 December 2024 [5]-[8], Court Book (CB) 203-204

[14] Statutory Declaration of Sheree Sordelli declared on 10 November 2024, CB 333-334

[15] Statutory Declaration of Stephen Roberts declared on 10 November 2024, CB 331-332

[16] Statutory Declaration of Bonita Lorimer declared on 20 November 2024

[17] Statutory Declaration of Betty Hickcox declared on 19 November 2024

[18] Statutory Declaration of Anthony Osborn declared on 13 November 2024

[20] [2019] FWCFB 7599

[25] [2023] FWCFB 200

[27] [2022] FCAFC 15