Fair Work Act 2009

s.185 - Enterprise agreement

Construction, Forestry and Maritime Employees Union

Application for approval of the Hawthorne Civil Pty Ltd and CFMEU Union Collective Agreement 2023-2027 - whether genuine agreement - not satisfied employees were given fair and reasonable opportunity to vote - application dismissed.

• [1] The Construction, Forestry and Maritime Employees Union (CFMEU) has applied to the Commission for approval of the Hawthorne Civil Pty Ltd and CFMEU Union Collective Agreement 2023-2027 (Agreement). The Agreement is a single enterprise agreement for the purposes of s 172(2) of the Fair Work Act 2009 (Cth) (Act). The employer covered by the Agreement is Hawthorne Civil Pty Ltd.

• [2] As a single enterprise agreement, which was not a greenfields agreement, the Agreement could only be made when a majority of the employees of the employer cast a valid vote to approve the enterprise agreement: s 182. For the reasons that follow, I am not satisfied that the Agreement was genuinely agreed to, as I am not satisfied the employees entitled to vote were given a fair and reasonable opportunity to vote.

• [3] The application was accompanied by the prescribed Form F17B declaration, made by the employer. Among other matters, that form requires the provision of information about the enterprise agreement itself and the process for the making of that agreement.

• [4] Question 6 of the Form F17B declaration required certain information to be given about employees covered by the Agreement. In response to this question, 71 employees were stated to be casual employees.

• [5] By questions 19 and 20 of the Form F17B declaration, bargaining between the company and employees formally commenced on 6 May 2025, by the issuance from the employer of a Notice of Representation Rights (NERR). The NERR was circulated by email.

• [6] On 9 May 2025, the employer sent an email to employees titled "Hawthorne Civil Enterprise agreement documentation and commencement of access period". That email relevantly stated (original emphasis):

As per previous correspondence Please see the attached documents for your review.

1. Draft Hawthorne Civil Pty Ltd and CFMEU Union Collective Agreement
2. Reference to the relevant Fair Work Awards
3. Schedule 2.1A - Document for disclosure of benefits
4. Notice of vote

We will be holding consultation meetings to discuss any key points and take any questions and queries that you may have. This will be at the Pimpama School of Arts - 15 Clark Way, Pimpama QLD 4209 on the dates below:

• 14 May 2025 - 3pm to 4pm
• 22 May 2025 - 3:30pm to 5pm

The vote for the agreement will be done by show of hands and will be undertaken on Monday, 02 June 2025 . The hall venue will be open at 3PM and the Voting will start at 3:15PM. This will be held at the Pimpama School of Arts - 15 Clark Way, Pimpama QLD 4209

If you would like more information, please contact [details omitted].

• [7] The 'Notice of vote' referred to in the email was a single-page document containing substantially the same information as set out in the email extracted above under the heading 'Voting'.

• [8] A reminder email was sent about the vote on 28 May 2025, containing substantially the same information as the above. However, in addition, it also stated the vote "will include voting down the current Hawthorne Civil agreement 2021 and voting for the proposed agreement Hawthorne Civil and CFMEU Union agreement 2023 - 2027."

• [9] Question 25 of the Form 17B declaration sought information of the steps taken to inform employees entitled to vote of the time and place for the vote and voting method. Explanatory information adjoined to that part of the form required the employer to lodge copies of any materials that were provided to employees to notify them about the vote. The narrative response to question 25 stated that, on 9 and 28 May 2025:

"The employees were notified via email that a vote on the new agreement would be conducted on 02/06/2025 at a Toolbox meeting to be held at a specific time on the sites they would be working on, and that the voting method would be by a show of hands."

• [10] The reference in the Form F17B declaration to notifications given on 9 and 28 May 2025 is clearly a reference to the two emails above. However, the reference to "sites" (plural) in the answer to question 25 of the Form F17B declaration was not explained in the answer to that question nor the earlier emails. I note that the answer to question 21.2 of the Form F17B declaration (which asks about what steps were taken to give a reasonable time for employees to consider the Agreement before voting upon it) refers in two separate places to "sites" (plural). Specifically, the answer to that question stated that, all throughout the access period (emphasis added):

"(b) All sites have access to a computer and an internet connection from which the incorporated materials can be accessed;

(c) Company and site delegates are provided with iPads in order to access the Incorporated materials and have hardcopies of relevant modern awards in their own offices at each of the sites, which are accessible to all employees; ... "

• [11] Question 29 of the Form F17B declaration asks for information about the number of people eligible to vote and the vote outcome. In response to that question, the employer stated that there were 109 employees covered by the Agreement, 32 of whom cast a vote (with each of those 32 votes cast in favour). While the employer's declaration does not appear to be based on the direct observations of the declarant, I note that a toolbox signature sheet submitted with the application provides some corroboration that 32 people were at least in attendance and, presumably, voted as indicated.

• [12] On 4 July 2025, I corresponded through chambers to the CFMEU and employer raising the two following issues:

1. Low voter turnout: Question 29 of the Form 17 provides that only 32 of 109 employees covered by the agreement cast a valid vote. The Deputy President seeks an explanation for the low voter turnout, and requests you provide further information in regard to the voting numbers, and submissions addressing whether or not there is an issue that the Agreement has been genuinely agreed. In your response, please also provide information about the number of eligible employees who were at work and on site at the time the vote was conducted.

1. Casual employees: Question 6 and 29 of the Form F17 provides that of the 109 employees covered by the Agreement, 71 are casual employees. 32 employees cast a valid vote, with 32 voting to approve. It is unclear whether all casual employees who cast a valid vote were employed at the time. The Full Bench of the Commission in Kmart Australia Limited t/a Kmart and others [2019] FWCFB 7599 ('Kmart') held that an employee is only eligible to vote if they are employed during the access period. The Deputy President therefore seeks clarification around the composition of staff that voted and whether the casual employees who voted were employed during the access period, with supporting evidence.

• [13] A response to that correspondence was sought by the end of 9 July 2025. No response was received, which prompted a follow up query from chambers. In response to that, my chambers received a very brief email from the Industrial Officer of the Queensland Branch of the CFMEU who wrote (formalities omitted):

"My apologies, I have now spoken to [the Queensland Branch Industrial Coordinator] who has spoken to the company, and he has informed me that the answer to the two questions raised by the Deputy President are all employees were given an opportunity to vote including all casual employees who were employed at the time."

• [14] I did not consider that correspondence addressed my concerns, causing further correspondence to be sent from my chambers on 11 July 2025 in the following terms:

"The Deputy President does not consider the explanation allays his concerns. He requires the employer (not the CFMEU) to provide a list of all 109 employees said to be eligible to have voted for the Agreement with the following information:

1. Whether the employee was at work on the day of the vote.
2. What site the employee was at during the vote.
3. Whether the vote location and time (Pimpana School of Arts, from 3 - 3.15pm) was on a work site during work time and, if not, why the parties submit all employees had a reasonable opportunity to vote."

• [15] A response to the above correspondence was required by 14 July 2025. The email stated that I intended to determine the application on the basis of the information already before me and any further information that might be provided. At the time of publication of these reasons, no response to the further information request has been received by my chambers.

• [16] Section 186(2) of the Act requires that I must be "satisfied" that the Agreement was "genuinely agreed to" by the employees covered by the Agreement. Section 188(1) of the Act requires me to take into account the Statement of Principles of Genuine Agreement.

• [17] Paragraph 15 of the Statement of Principles of Genuine Agreement states that employees should be given a reasonable opportunity to vote on a proposed enterprise agreement in a free and informed manner, which should include a method and period of voting that provides all employees entitled to vote with a "fair and reasonable opportunity to cast a vote".

• [18] Putting to one side the eligibility of casuals to vote given the Act no longer describes a statutory "access period"[1] and the potential challenges of ascertaining which casuals ought be included or excluded,[2] I proceed on the basis that there were 109 employees who were entitled to vote, although that is also a matter I have reservations above.

• [19] Here, 32 employees voted out of 109 eligible voters. A low voter turnout does not inherently suggest a lack of genuine agreement. There are many instances where there have been low voter turnouts.

• [20] In the present case, however, no clear explanation has been given for the low voter turnout at all, despite a number of features calling for an explanation and my specific requests for those explanations. In the first correspondence with the parties, they were specifically asked to provide information concerning "the number of eligible employees who were at work and on site at the time the vote was conducted". In response, the Commission merely received a generic response, based on (at best) second-hand hearsay from "the company", asserting that "all employees were given an opportunity to vote". That response begged the question as to what that "opportunity" was.

• [21] As a consequence, the second request for further information sent to the parties sought more concrete information, including whether the vote location was a work site, whether employees were even at work that day (with supporting evidence), and if the answer to either of those questions was 'no' for particular employees, how it was all employees had a reasonable opportunity to vote. In circumstances where the material before me indicates employees may have been working on multiple sites, where the vote for the Agreement possibly occurred at the end of a work shift and may have been out of work time (including not being at work at all that day), and where employees may have been required to positively attend the voting location some distance from their site (or even home) for a show of hands vote, I am not satisfied from the information before me that employees were given a fair and reasonable opportunity to vote.

• [22] I must be "satisfied" that the Agreement was genuinely agreed to, taking into account the Statement of Principles of Genuine Agreement. The position may well have been very different had the ballot been conducted remotely by a ballot agent, which is a common occurrence for application to approve enterprise agreements. If the information before me indicated that any deficiencies were isolated, and minor in number, I also might nonetheless be satisfied the Agreement was genuinely agreed to. I note factors in favour being the very high rates of pay above base award rates and union support.

• [23] But in the present case, I can only speculate as to what might or might not have been the state of affairs for employees' attendance at work that day, their location and hours. The parties have been given multiple opportunities to provide that information, including with the original Form F17B declaration. Despite those repeated opportunities, no meaningful information was forthcoming.

• [24] In all the circumstances, I am not satisfied there was a genuine agreement. Not being satisfied that there was a genuine agreement, I must not approve the Agreement.

• [25] The application for approval of the Hawthorne Civil Pty Ltd and CFMEU Union Collective Agreement 2023-2027 is dismissed.

[1] See the discussion in Monadelphous Engineering Pty Ltd [2025] FWCA 1123 at [31] ff (Matheson C).

[2] See the discussion in Dof Subsea Australia Pty Ltd [2025] FWC 749 at [33] - [46] (Slevin DP).

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