Fair Work Act 2009

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

Construction, Forestry and Maritime Employees Union

ADVANCED CIVIL GROUP PTY LTD GOLD COAST LIGHT RAIL STAGE 3 PROJECT AGREEMENT

Application for approval of the Advanced Civil Group Pty Ltd GOLD COAST LIGHT RAIL STAGE 3 PROJECT AGREEMENT - Application

• [1] An application has been made for approval of an enterprise agreement known as the Advanced Civil Group Pty Ltd GOLD COAST LIGHT RAIL STAGE 3 PROJECT AGREEMENT (Proposed Agreement). The application was made by the Construction, Forestry and Maritime Employees Union (CFMEU) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Proposed Agreement is a single enterprise agreement. The employer covered by the Proposed Agreement is Advanced Civil Group Pty Ltd (Employer).

• [2] The Australian Workers' Union (AWU) objected to the approval of the Proposed Agreement on the following grounds:[1]

1. The CFMEU has not demonstrated that it is a bargaining representative for an employee covered by the Proposed Agreement.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has not demonstrated that it is a bargaining representative for an employee covered by the Proposed Agreement.

1. There are deficiencies in the signing of the Proposed Agreement.

1. The information contained in the Notice of Employee Representational Rights (NERR) is inaccurate in relation to the work that the Proposed Agreement will cover.

1. The Commission cannot be satisfied that the six or fewer employees who voted on and were covered by the Proposed Agreement:

1. have a sufficient interest in the terms of the Proposed Agreement as required by section 188(2)(a) of the Act; and
2. are sufficiently representative as required by s.188(2)(b) of the Act.

1. There are deficiencies in the way in which the Proposed Agreement has been explained to the employees as set out in the Form F17B filed by the Employer such that the Commission cannot be satisfied that the employees who voted for the Proposed Agreement had an informed and genuine understanding of what was being approved, pursuant to principle 18 of the Statement of Principles on Genuine Agreement (SoPs).

• [3] As pointed out by both parties, this is the second attempt that the CFMEU has made to have an agreement approved covering the Employer and the Employer's employees and which has the same coverage provisions. An earlier application AG2023/3110 (Initial Application) was refused at first instance. That decision (Initial Application Decision)[2] was the subject of an appeal in which the Full Bench quashed it (Appeal Decision).[3] The terms of the agreement that the CFMEU sought to have approved in the Initial Application are identical to the terms of the Proposed Agreement.

• [4] The Full Bench remitted the matter back to the Deputy President who made the Initial Application Decision for it to be redetermined however the application was withdrawn on 12 July 2024 and a new application, being the current application (Current Application), was made. The reasons for the withdrawal of the Initial Application are unknown. The withdrawal of the Initial Application before its determination by the Deputy President creates a complication in that it has opened the door for the AWU to agitate issues raised and, in respect of some of those issues, determined by a Full Bench in the Appeal Decision. However neither the Deputy President at first instance nor the Full Bench in the Appeal Decision dealt with all of the issues raised by the AWU in relation to the Initial Application.

• [5] The AWU noted that its objections proceed on the basis that the Commission is aware of the (Initial Application) relating to the approval of the Proposed Agreement and has access to the file for that matter.[4]

• [6] The AWU filed detailed submissions in relation to the Current Application on 20 September 2024 (AWU Submissions) and filed submissions in reply on 10 October 2024 (AWU Reply Submissions) ahead of a hearing in relation to the matter. The AWU also referred to and relied upon its submissions dated 10 June 2024 (AWU Initial Application Submissions) and reply submissions dated 2 July 2024 (AWU Initial Application Reply Submissions) as filed in the Initial Application insofar as those submissions relate to the current matter.[5] The AWU acknowledged that its submissions filed in relation to the Current Application follow and replicate the AWU Initial Application Submissions and AWU Initial Application Reply Submissions in many respects.[6]

• [7] The CFMEU filed submissions on 2 October 2024 (CFMEU Submissions) as well as a copy of its speaking notes ahead of the hearing (CFMEU Speaking Notes). The CFMEU also filed a copy of the appeal book prepared in the Initial Application and sought to rely on its materials and evidence in the Initial Application insofar as they relate to the current matter.

The AWU's interests in relation to the application

• [8] The AWU submitted it has an interest in the matter because it is the principal civil construction union in Queensland and has the capacity to represent the industrial interests of all workers performing work covered by the Proposed Agreement.[7]

Coverage provisions within the Proposed Agreement

• [9] Clause 1 of the Proposed Agreement provides:

• 1.1 This Agreement is made under the Fair Work Act 2009 (Cth) and those covered by this Agreement are:

1.1.1 Advanced Civil Group Pty Ltd ABN: (35638485328) (Employer);

1.1.2 Employees employed by Advanced Civil Group Pty Ltd on the Gold Coast Light Rail Stage 3 Project (Project) for which classifications and rates of pay are prescribed by this Agreement (Employees).

1.1.3 The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); and

1.1.4 The Construction, Forestry, Maritime, Mining and Energy Union

1.2 This Agreement shall be read and interpreted wholly in conjunction with the Building Construction General On-site Award 2020 and Plumbing and Fire Sprinklers Award 2020 to the extent this Agreement is silent. Where this Agreement is not silent, the conditions of this Agreement shall take precedence and apply to the full exclusion of the relevant provisions under the Award'.

• [10] The Proposed Agreement does not describe what the 'Gold Coast Light Rail Stage 3 Project' (Project) entails. However the AWU pointed to a website co-branded by the Australian Government, City of Gold Coast, Queensland Government and 'GoldlinQ' which appears to be an official website for the Project.[8] This website explains that the Gold Coast Light Rail Stage 3 is a $1.2 billion, 6.7-kilometre extension of the light rail network from Broadbeach to Burleigh Heads and is funded by the Queensland and Australian governments in partnership with City of Gold Coast. It is clearly a civil construction project involving light rail construction and this does not appear to be in contention.

• [11] The classification structure appears in Appendix B of the Proposed Agreement. There are two classification streams in the Proposed Agreement including a 'Construction Worker/Labourer' classification stream and a 'Plumbing and Mechanical Services' classification stream. In relation to the 'Construction Worker/Labourer Classifications', Appendix B states that:

'The Civil Worker (CW) classifications will apply to Employee(s) performing work of the nature of Civil Construction who are engaged in the classifications set out below and are employed to perform the works set out in this Agreement.'

• [12] While 'Civil Construction' is a capitalised term, it is not expressly defined in the Proposed Agreement. Notwithstanding this, the term should be understood in context noting that clause 1.2 expresses the intention that the Proposed Agreement shall be read and interpreted wholly in conjunction with the Building and Construction General On-site Award 2020 (Building Award) and Plumbing and Fire Sprinklers Award 2020 (Plumbing Award) to the extent it is silent. In this regard:

• clause 4.1 of the Building Award states that it 'covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classification within Schedule A - Classification Definitions to the exclusion of any other modern award';

• [13] clause 4.2 of the Building Award provides that 'for the purpose of clause 4.1, on-site building, engineering and civil construction industry means the industry of general building and construction, civil construction and metal and engineering construction, in all cases undertaken on-site';
  • clause 4.3(b) of the Building Award relevantly defines 'civil construction' as:

'(i) the construction, repair, maintenance or demolition of:

(x) railways, tramways, roads, freeways, causeways, aerodromes, drains, dams, weirs, bridges, overpasses, underpasses, channels, waterworks, pipe tracks, tunnels, water and sewerage works, conduits, and all concrete work and preparation incidental thereto;

• [14] Rule 5, Section 1, Part A (4) of the Rules of the Australian Workers' Union (AWU Rules) relevantly provides:

'(4) Without limiting the generality of any other provisions of this Rule or being limited in any way thereby, every bona fide worker employed in or in connection with the industries or callings of:

(c) The construction, repair maintenance or demolition of:

(ii) Power transmission, light, television, radio, communication,

radar, navigation, observation towers or structures.

(iii) Power houses, chemical plants, hydrocarbons and/or oil

(iv) Silos, excepting grain silos in Tasmania, South Australia, Western Australia and that area of Queensland not included in paragraph 4(b) above.

(vi) Car parks excepting car park buildings and car parks within the alignment of a building;

• [15] Further 'Rule 6A - ADDITIONAL ELIGIBILITY FOR ADMISSION TO MEMBERSHIP IN THE STATE OF QUEENSLAND' relevantly provides:

'(1) Notwithstanding Rules 5 and 6, and without limiting the generality of those rules, this Rule 6A does not apply outside the State of Queensland.

(3) Only within this Rule 6A the following definitions apply:

1. "Bona fide Worker" means any employee, male or female, engaged in manual or mental labour in or in connection with any of the industries mentioned in Rule 6A(4) hereof.

(4) Subject to this Rule 6A every bona fide worker male or female, engaged in manual or mental labour in or in connection with any of the following industries or callings namely:

12. Road Making including construction and/or maintenance and/or repair

and all work in or in connection with or incidental thereto.

1. Railway construction and/or Maintenance and/or repairs and all work in or in connection with or incidental thereto.

1. All labour other than craftsmen employed on in or in connection with or incidental to the construction and/or maintenance and/or repair and/or operation of State and/or Federal Public Works, and/or works for semi-governmental bodies (including Harbour Boards).

1. All employees engaged in or in connection with or incidental to the construction and/or maintenance and/or repair and/or operation of local authority work or works.

1. All employees engaged in the construction and maintenance of tramways.

20. Bridge Carpenters and all other labour employed in or in connection with or incidental to the construction and/or maintenance and/or repair and/or alteration and/or demolition of bridges, wharves, piers, jetties, dolphins, barrages and other similar or like structures.

24. All kinds of general labour (including builders' labourers)'

• [16] It is apparent that the Proposed Agreement is described to cover employees engaged in civil construction work involving a light rail project, the nature of which falls within the coverage of the AWU's eligibility rules. I find that the AWU has, prima facie, the capacity to represent the industrial interests of workers performing work covered by the Proposed Agreement pursuant to the AWU Rules, that the AWU has an interest in and should be heard in relation to the matter. However, even if the AWU did not have the capacity to represent the industrial interests of workers performing work covered by the Proposed Agreement, the AWU's objections relating to section 188(2) deal with relatively new provisions of the Act requiring consideration of the proper construction and application of these provisions in determining the application. I considered that I would benefit from the AWU's involvement as a contradictor and therefore considered it appropriate to exercise my discretion to inform myself pursuant to s.590 of the Act in enabling the AWU to be heard in relation to the matter.

1. Is the CFMEU a bargaining representative for the Proposed Agreement?

• [17] As noted above, the application for approval of the Proposed Agreement has been made by the CFMEU. The Proposed Agreement is a single enterprise agreement and in this respect s.185(1) of the Act provides that if an enterprise agreement is made, a bargaining representative for the agreement must apply to the Commission for its approval.

• [18] The AWU submitted that the CFMEU has not demonstrated that it is a bargaining representative for the Proposed Agreement and therefore lacks standing to bring the application.

• [19] Section 176 of the Act relevantly provides:

'Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a supported bargaining authorisation is in operation - the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(b) an official of an employee organisation (whether acting in that capacity or otherwise;

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement'.

What does the CFMEU need to establish in order to be a 'bargaining representative'

• [20] The AWU referred to Construction, Forestry, Mining and Energy Union v Otswald Bros Pty Ltd[9] in which SDP Richards said:

'[95] The Act establishes a number of factual conditions that must be satisfied for an employee organisation to be a bargaining representative. These include that the employee is a member of the employee organisation, and that the organisation is entitled to represent the industrial interests of the employee in relation to the work that will be performed under the proposed agreement.

[96] The Company called into question whether these factual conditions were in existence such that it had obligations in relation to good faith bargaining in respect of the CFMEU. These are inherently questions of a jurisdictional type. When they are called into question, the onus falls upon the employee organisation to demonstrate that its status is not merely asserted but open to demonstration as a fact'.[10]

• [21] The 'Form F17B - Employer's declaration in support of an application for approval of a single-enterprise agreement (other than a greenfields agreement)' (Form F17B) indicates that there are six employees who will be covered by the Agreement.[11] For the CFMEU to be a bargaining representative it will therefore need to establish that:

• at least one of these employees is a member of the CFMEU; and
• the CFMEU is entitled to represent the industrial interests of the employee or employees referred to above.

• [22] The focus of the objection that AWU has raised is not that the CFMEU does not have a member, but rather that the CFMEU is not entitled to represent the industrial interests of the employees covered by the Proposed Agreement.[12] I deal with this issue further below.

Is at least one of the employees who will be covered by the Proposed Agreement a member of the CFMEU?

• [23] The CFMEU did not squarely address the question of whether at least one of the employees who will be covered by the Proposed Agreement was a member in its submissions directed at the Current Application. Rather, the CFMEU's submissions concerning its coverage simply identify that a Full Bench of the Commission accepted its submissions about coverage in an earlier application, overturning the finding at first instance that excavator operators employed by the Respondent were not eligible for membership.[13] In asking the Commission to adopt the findings of the Full Bench the CFMEU is, in effect, seeking to rely on the evidence it has led in relation to the Initial Application. As noted above, the materials filed by the CFMEU in this application include the Appeal Book prepared in those proceedings. The AWU appears to take issue with the CFMEU's reliance on evidence brought in the Initial Application in these proceedings.

• [24] While the Current Application is a new application, I consider that the context in which it is made is important and that it is open to me to have regard to those matters raised in the Initial Application and that were the subject of the Full Bench's consideration in circumstances where the issues and facts concerning the Current Application are analogous. Indeed, the AWU has indicated in its own submissions that it relies on its submissions made in relation to the Initial Application and assumes that the Commission has access to the file in that matter.

• [25] In this regard I note that in the Initial Application Decision the Deputy President considered the confidential list of CFMEU members against the list of employees covered by the Proposed Agreement and was satisfied that the CFMEU had a purported member. [14] This is a conventional approach and the Deputy President's finding in this respect was not disturbed by the Appeal Decision.[15] In the current matter, it is declared in the Form F17B that there were six employees covered by the Proposed Agreement. Among the materials filed with the application is an email dated 15 July 2024 which appears to have been provided to six employees notifying them of the process for voting on the Proposed Agreement and in which the names of employees are discernible from the email addresses included that email. Based on the materials before the Commission I find that the employee identifiable as a purported member in the Initial Application remained an employee who will be covered by the Proposed Agreement. That employee (Purported Member) is a purported member of the CFMEU.

Is the CFMEU is entitled to represent the industrial interests of the Purported Member?

• [26] The real issue in contest concerning the question of whether the CFMEU is a bargaining representative relates to whether the CFMEU is entitled to represent the industrial interests of the Purported Member.

• [27] In Regional Express Holdings Limited v Australian Federation of Air Pilots ('REX')[16] the High Court considered whether the fact that a person is eligible for membership of an industrial association in accordance with its eligibility rules is sufficient to make the industrial association "entitled to represent the interests of" that person within the meaning of s.540(6)(b)(ii) of the Act. The High Court said that subject to contrary indication, it is to be presumed that the expression "entitled to represent the industrial interests of" has the same meaning wherever it appears in the Act.[17] The High Court then observed that the majority of provisions in which the expression appears prescribe the standing of an industrial organisation in relation to a person who is a member of the organisation and said that:

"...In each such case, the presence of the expression "entitled to prepresent the industrial interests of" adds to the requirement that the person be a member of the organisation a second or further condition that the organisation be entitled to represent the industrial interests of the person. Consequently, in each such case, the condition "entitled to represent the industrial interests of" is logically to be understood as something which may arise otherwise than from a person's membership of the organisation".[18]

• • unlike s.176(1), s.540(6) was not conditioned on membership;[19]

• given the way the Act draws a distinction between a person's membership of an organisation and the organisation's entitlement to represent the industrial interests of the person, it cannot be that membership is the only entitlement to represent the industrial interests of a person recognised by the Act;

• • the Act's conception of the entitlement to represent the industrial interests of a person reflects the Dunlop Rubber principle in the sense of an entitlement to represent the industrial interests of a person who satisfies an organisation's eligibility rules;[20]
• • the fact that some sections of the Act require that a person both be a member of an organisation and that the organisation be entitled to represent the person does not suggest that the latter must mean something other than an entitlement to represent the industrial interests of the person arising by reason of the organisation's eligibility rules.[21]

• [29] The High Court noted that in Dunlop Rubber[22]it was held that a trade union had the capacity "to formulate industrial claims in the interests of that group or class ascertainable by reference to the 'conditions of eligibility' prescribed by its rules" and it was no obstacle to the existence of an industrial dispute that none of the employer's employees was a union member.[23] The High Court then traced the history of relevant industrial relations legislation including various provisions of the Workplace Relations Act and s.178(5A) of the now repealed statute which provided that:

"A penalty for a breach of a term of a certified agreement may be sued for and recovered by:

(i) that has at least one member whose employment is subject to the agreement; and

(ii) that is entitled to represent the industrial interests of the member in relation to work carried on by the member that is subject to the agreement ..."

"Consistently with the Dunlop Rubber principle, those provisions were understood as operating on the basis that an organisation's entitlement to represent the industrial interests of a member in relation to work covered by the agreement derived from eligibility rules giving the organisation coverage in relation to the work of the member covered by the agreement".[24]

• [31] The High Court then specifically turned to s.176(3) of the Act and said:

"Standing alone, there might be some doubt about the meaning of that provision. Read, however, against the background of s 178(5A) of the Workplace Relations Act, and its legislative antecedents outlined above, there really is no room for any doubt that the entitlement to represent the industrial interests of an employee referred to in s 176(3) of the Fair Work Act is the same Dunlop Rubber principle sense of an organisation's entitlement to represent the industrial interests of persons eligible for membership of the organisation."[25]

• [32] It can be drawn from the above that the assessment of whether an organisation is entitled to represent the industrial interests of an employee in relation to work that will be performed under the Proposed Agreement is therefore to be determined with reference to the organisation's eligibility rules.

• [33] The AWU submitted that the Courts and the Commission have recognised that there are two broad categories of union eligibility rules:

1. 'industry rules' concerning the particular industry in which the business operates; and

• 2. 'occupational rules' based on the nature or type of work performed by employees. [26]

• [34] This submission is broadly consistent with the principles identified by a Full Bench of the Australian Industrial Relations Commission in Construction, Forestry, Mining and Energy Union v Dyno Nobel Asia Pacific Limited[27] which said:

"The Courts and the Commission have long recognised two particular categories of eligibility rule:

(i) rules based on the industry in which the business or enterprise of the employer operates (such a rule is referred to as an 'industry rule');

(ii) rules based on the type of work performed by employees (such a rule is usually referred to as a 'vocational rule' and sometimes referred to as a trade, craft or calling rule)

Sometimes a particular eligibility rule may be expressed in such a way as to form a hybrid with different parts falling into each of these two categories. Of course, a rule may be framed in such a way that it does not fall into either of these categories."

• 1. The test for the eligibility of an employee under an industry rule looks at the 'substantial character' of the activities in which the employer is engaged.[28]

• 2. By contrast, eligibility under a vocational/occupational rule looks at the "principal purpose or primary function" of the employee's role "in the context of the employer's organisation of work."[29]

• [36] Rule 2(E)(a) of the Rules of the Construction, Forestry and Maritime Employees Union (CFMEU Rules) provides:

'Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union:-

(a) An unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes and such persons as have been elected or appointed as paid officers of the Union or a branch of the Union or whilst financial members of the Union are elected as representatives of any working-class organisation to which the Union or a branch thereof is affiliated, or as a working-class member of Parliament.

Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon such work being that of a waterside worker or engaged in the transport of goods by road, or motor truck drivers wherever employed, shall not be eligible for membership' (underlining added).

• [37] In Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd[30] (DuluxGroup) the Full Court of the Federal Court observed, in relation to rule 2(E)(a) of the CFMEU Rules that:

• the coverage afforded by rule 2(E)(a) was the result of an amalgamation with the Federated Engine Drivers and Firemen's Association of Australasia (FEDFA) in 1992;
• the addition of 'forklift drivers' to FEDFA's eligibility rule in 1947 was contested and justified to the Industrial Registrar by FEDFA that it was for the purposes of 'clarification' rather than 'enlargement' in that forklifts were 'basically engines or cranes' that were already comprised in FEDFA's constitution;
• it was recognised that FEDFA was a 'craft organisation' with members 'found in in all industries wherein the generation or utilisation of power is an ordinary incident' and that the proposed change did not involve any innovation;

• • it was contended that FEDFA should be able to admit as members employees involving the 'generation by a unit of power which is utilised by means of the unit itself'; [31]

• the Transport Workers' Union (TWU) opposed the proposed change and contented that '[m]embers engaged in the transport industry load and unload vehicles and stack carted goods and the work of forklifts is closely allied to this work of loading unloading and stacking';
• the Industrial Registrar concluded, by way of summary, that:
  • FEDFA was organised on craft lines, the craft being that of employees concerned principally with the generation of power and the direct utilisation of power;
  • it was common to the mobile crane and forklift that the unit generated its own propelling power and power utilised for the purposes of raising, lowering and transporting goods;
  • the mobile cranes and forklift are units the user of which appeared to be an increasing feature of the industry and in a great many instances were quite adapted to perform functions for which fixed or traverser cranes had been used;
  • the TWU was concerned mainly with the transport by road of goods and to a lesser extent passengers;
  • as incidental to that goods transport, TWU members load and unload vehicles and at times break down stacks of goods for loading or stack unloaded goods;
  • the TWU's objection about forklifts appeared mainly directed at this work upon stacks of goods;
  • the spheres of the TWU and FEDFA were well recognised in that the business of the road transport of goods was the province of the TWU and not FEDFA, the TWU had no place in establishments where the business was in the production of power or the utilisation of power generated there or elsewhere, and these limits had been well observed by the parties;
• the Industrial Registrar ultimately approved the proposed eligibility of the rule subject to the following proviso: 'Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon work being that of a waterside worker or engaged in the transport of goods by road shall not be eligible for membership'.

• [38] Rule 2(E)(a) has since been amended such that the proviso above as referred to in DuluxGroup has been extended to exclude from membership eligibility 'motor truck drivers wherever described'.

Findings in the Initial Decision following DuluxGroup

• [39] In the Initial Decision the Deputy President found that she was satisfied that the work of the Purported Member was to perform civil construction work, specifically to construct a light rail, and this was sufficient to satisfy her that the CFMEU was not eligible to represent the industrial interests of the Purported Member covered by the Proposed Agreement.[32] The Initial Application was dismissed on that basis in the Initial Application Decision.[33] It is apparent that the Deputy President sought to follow DuluxGroup[34] in arriving at that decision.[35]

• [40] In DuluxGroup[36] the Full Court of the Federal Court dealt with a finding of the Commission that the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), as it was then constituted, did not have standing to make an application for approval of an enterprise agreement because it was not entitled to represent the interests of a particular 'Warehouse Operator'. In that matter the CFMMEU sought to rely on part of rule 2(E)(a) of its rules which referred to 'forklift drivers'.

• [41] The Full Court of the Federal Court observed that the following principles of construction of eligibility rules such as rule 2(E)(a), were not in dispute:[37]

1. 'such rules are to be construed objectively, not narrowly nor technically, but rather

• 2. 'the identity of the industry in respect of which the organisation is registered is not definitive of eligibility where the eligibility clause travels beyond the bounds of the industry in respect of which the organisation is registered, but where there is some ambiguity in the eligibility rule, recourse may be had to the industry rule to resolve the ambiguity';[39]

• 3. 'in determining whether an employee is engaged in a particular calling or occupation, the relevant task involves a qualitative assessment of the primary purpose of the position. Put another way, the proper approach requires an assessment of the principal purpose or primary function for which the employee was employed'.[40]

• [42] In considering the CFMMEU's submissions, the Full Court said:

'A singular focus on text while eschewing consideration of context and the history of the rule is apt to mislead. Although the notion that anyone who drives a forklift for a significant proportion of their work activity is to be classified as a "forklift driver" has the attraction of simplicity, it is incongruent with the objectively ascertained intent of the rule when one considers the relevant context and history. As the Full Bench correctly recognised, since initial registration, "the FEDFA was established as a 'craft union' or, in more contemporary parlance, an occupational union". When this is appreciated, the employment identified in the rule must be construed as a descriptor of an occupation.'[41]

• [43] The Full Court ultimately accepted that:

• there was nothing intrinsic to the activity of forklift driving that suggests it has to be an exclusive duty;
• the characterisation of the employee as a Warehouse operator was not determinative of occupation;
• although it is a necessary condition for classification as a forklift driver that an employee operates a forklift for a substantial amount of their work time, it is not a sufficient condition;
• on the undisputed facts, the employee had a range of activities, akin to those commonly associated with a storeman and packer and this was the purpose of his position within the context of his Employer's business operation;

• • notwithstanding that the employee used a forklift to undertake those work activities, this did not mean he was a forklift driver as that term was used in the rule;[42]

• the employee spent the vast bulk of his working time in control of forklifts but his purpose (and his role within the employer in that matter) was to work as a Warehouse Operator to perform of all tasks in connexion with the receiving, storing, picking and despatching of goods in the employer's business (and, if required, to work flexibly in the paint manufacturing facility);

• • the driving or other use of forklifts was best seen as a function directed to the end of fulfilling the purpose of the employee's job, which was to carry out his assigned tasks necessary for the operation of the warehouse.[43]

• [44] In finding that the employee was not a 'forklift driver' as contemplated by rule 2(E)(a) the Full Court of the Federal Court went on to say:

'45 As the principles set out above demonstrate, when the task of identifying the employment identified in the rule is undertaken, it occurs in the context of the purpose of employment and the employer's organisation of work. In the Appeal Decision (at [55]), the Full Bench fastened upon, and articulated the central question: Was Mr Lambert employed to drive a forklift so that he earns his wages by doing that, or whether he is employed to do something else? The Full Bench then went on to observe correctly that Mr Lambert will not be a "forklift driver" within the meaning of rule 2(E)(a) "merely because he drives a forklift in order to do what he is employed to do".

46 The conclusion he earns his wages by being a Warehouse Operator and not as a forklift driver is not only consistent with the factual findings as to his range of activities and his work description, but also accords with both the context and history.

47 As to the context and history, when one legitimately has regard to the industry rule ... consistently with the Full Court's reasons in CSBP Limited, the scope of the eligibility rule is better understood. As the Full Bench recognised (at [56]), the CFMMEU's approach would give eligibility "in respect of virtually any employee who operates a forklift to a significant degree in their employment". Although it is to be construed objectively, the terms of the industry rule do not confirm the CFMMEU's approach, but rather reinforce the focus of the rule on the occupation of persons "employed ... as drivers of ... any ... fork lift". The terms of the rule are directed to the purpose of employment, which accords with the history of approval of the rule as explained above'.[44]

Approach to the construction of a union's eligibility rules

• [45] In the Appeal Decision the Full Bench helpfully summarised the approach to the construction of a union's eligibility rules, identifying the following principles:[45]

• • 'Interpreting the eligibility rules of a union and determining their application in a particular factual context is "a legal question to be solved by legal considerations"'.[46]
• • 'The essential task is to construe the words of the eligibility rules objectively and give the words used their ordinary meaning'.[47]

• 'It is legitimate to have regard to the industry rule for the purpose of resolving doubt

as to the proper construction of the eligibility rule of a union,[48] understanding that the scope of the eligibility rule is not restricted by the scope of the industry rule'.[49]

• • 'The eligibility rules of a union are generally construed in a liberal or purposive manner,[50] but the approach of giving a broad or generous construction to a legal document has limits and the meaning of the words used remains a legal question and the ordinary meaning of the words used will generally be applied'.[51]

• 'Eligibility rules will not be interpreted in a manner that would give the rule a wide

and indefinite scope of operation[52] or to promote exorbitant claims to coverage'.[53]

• • 'Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation - that is, they may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work'.[54]

• [46] The AWU submitted that Appendix B of the Proposed Agreement puts beyond doubt that the work to performed by employees covered by the Proposed Agreement will be performing work of the nature of civil construction.[55] The AWU submitted that the eligibility rules of the CFMEU do not provide the CFMEU with industry coverage in the civil construction industry[56] and the only avenue by which the CFMEU could be a bargaining representative for employees covered by the Proposed Agreement would be if it had relevant occupational rules for employees performing work under the Proposed Agreement.[57]

• [47] In its submissions he AWU referred to the matter of O'Connor v Setka[58]in which a Full Court of the Federal Court considered the structure and history of the CFMEU and observed that its present-day composition is the product of a series of amalgamations of which its rules were reflective.[59] In respect of Rule 2 of the CFMEU Rules, the Full Court of the Federal Court said:

"25. Rule 2, under the heading "Constitution", contains a statement of those eligible to be members of the Union. It is extensive, 40 pages in length, and provides for 20 different principal categories of membership. It is apparent that the categories 14

reflect the membership eligibility clauses of the various amalgamating unions

which were, in effect, cut and pasted into the National Rules with each successive

• [48] The AWU submitted that the only pre-amalgamation unions that had occupational coverage of employees in the civil construction industry was the Building Workers Industrial Union and FEDFA.[61]

• [49] Rule 2(E)(a) is indeed derived from the equivalent rule in the old constitution of FEFDA (FEDFA Rule) and in Re Coldham; Ex parte the Australian Workers' Union[62]the High Court held that the equivalent FEDFA rule fell into three parts:

(a) all classes of listed drivers (i.e. engine, crane, mobile crane, forklift, tow motor, excavator, pile and motor drivers), firemen and pump attendants;

(b) attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river; and

(c) boiler attendants attending boilers not generating steam for power purposes.

• [50] The AWU also noted that the FEDFA Rule was also extensively considered in Re John Holland Queensland Pty Ltd (John Holland) where the Commission said: [63]

"283. Whilst in submissions the AWU did not concede the 2 CW5 - Crane Operators; the 16 CW5 - Skid Steer Excavators; the 46 CW6 - Plant Operator Excavators not exceeding 3 cubic metres; or the 2 CW7 - Plant Operator Excavators from 3 cubic metres; they did not in Schedule A to their 6 May written submissions describe them as being in contest. Given that crane drivers and excavator drivers are specifically identified as occupations falling within the FEDFA, I am prepared for the purpose of the exercise of going through the numbers to identify those roles as eligible to test whether there is any prospect of the Applicant achieving a majority. The AWU did not contest the 6 Trade Qualified Tradespersons (Carpenter) so I will include that number with the engine drivers. I am conscious of the most recent Full Court decision endorsing the approach that the role must be an occupation in the context of the purpose of the employment and the employers organisation of work, and that is the basis that the AWU has not conceded the crane operators and excavator roles, even though they are specifically mentioned in the rule.

284. However, for the purpose of a mathematical exercise if it is assumed that the CFMEU gets to 72 I will explore where that leads. The other roles that it has been argued fall within the occupation of engine driver are described as follows:

• 2 CW5 - Plant Operator - Mobile Concrete Pump Boom

• 5 CW5 - Plant Operator up to but not exceeding 48kw (65bhp)

• 1 CW6 - Plant Operator Loader - Front End and Overhead from 48kw up to but not exceeding 370kw including 960, 966, 980

285. None of the occupations in the dot points above are expressly named in the FEDFA rule. The first difficulty to arise is the question of whether driving the machines that are intended to be used by employees that are to be employed in the broad classification's descriptions by reference to various types of plant intended to be caught by the classifications, is engine driving. Whilst certain types of plant are better described than the generic "plant operator", for example road roller, or grader, there has been no specific evidence about the particular plant other than the broad descriptors set out above.

286. The evidence is also not precise about the nature of what some of the plant is going to be to doing to assist in determining whether it is likely that operating that plant will be driving an engine within the meaning of the rule. I am inclined to the view that without more evidence on the issue it remains unclear particularly regarding the broad titles such as plant operator, or heavy mobile plant operator.

287. Even assuming that operating all of the plant could fall within the rule if the driving of the plant was the principal purpose of the driver's role, it is still necessary to determine whether the person who will operate the plant will be engaged by the Applicant for the principal purpose of "engine driving" as their occupation in the context of the employers organisation of work."

• [51] I note that the John Holland decision was concerned with the proper construction of the introductory words to subparagraph (a) being an 'unlimited number of all classes of engine drivers'. Excavator drivers are specifically identified as occupations falling within the FEDFA Rule and within the current CFMEU Rules.

• [52] The AWU prepared a table with respect to the 'Construction Worker/Labourer Classifications' in the Proposed Agreement which are referred to as 'Civil Worker (CW)' classifications in Appendix B.[64] In that table the AWU identified the following as having potential CFMEU coverage:

• in respect of the CW3 classification a, 'Ticketed Forklift Driver' and 'Telehandler (Up to 4.5T)';
• in respect of the CW4 classification, a 'Sleeper gantry operator';
• in respect of the CW5 classification, a 'Crane Operator (5-20T), a 'Skid Steer Excavator up to but not exceeding 48kw (65bhp)', a 'Forklift not exceeding 48kw' and a 'Gantry Crane Operator';
• in respect of the CW6 classification, a Loader-Front End and Overhead from 48kw up to but not exceeding 370kw...', a 'Forklift from 48kw but not exceeding 220kw' and an 'Excavator not exceeding 3cubic metres';
• in respect of the CW7 classification, an 'Excavator from 3 cubic metres' and a 'Loader-Front End and Overhead from 370kw up to but not exceeding 450kw'.

• [53] The AWU submitted, unless one of the six employees who was employed by the Employer and was covered by the Proposed Agreement was employed 'as their principal or primary purpose' in one of the occupations identified above, the CFMEU could not be a bargaining representative within the meaning of s.176 of the Act.[65] The AWU submitted that in the absence of probative evidence the Commission ought not be satisfied that the CFMEU is a bargaining representative for the Proposed Agreement.[66]

• [54] In the Appeal Decision the Full Bench said, citing Construction, Forestry, Mining and Energy Union v CSBP Ltd (CSBP) ,[67] that it is clear that rule 2(E)(a) is an occupational rule.[68] In this regard the Full Court of the Federal Court in CSBP said that rule 2(E)(a) confers an entitlement to membership by reference to occupations of employed persons, not by reference to the industry or enterprise of the employer.[69] The Full Court in CSBP went on to say:

'Secondly, the circumstance that, in conformity with s 166(1) of the Act, the focus of the Eligibility Rule is upon the occupations of the employees covered by it as opposed to what s 166(1) contemplated it might have covered, but did not, namely the industry in which their employers are engaged, also means that the primary purpose test of employment is appropriate. In applying this test one does not focus upon one aspect of an employee's work in isolation from the totality of his or her duties. Thus in Federated Engine Drivers & Firemen's Union (WA) v Mt Newman Mining Co Pty Ltd (1977) 57 WAIG 794, Burt CJ observed in this regard at 794 that not every worker, who in doing the work which he is employed to do drives an engine, is an engine driver within the meaning of the rule. Rather:

... The question in any particular case is, I think, whether the worker is

employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else. And if the answer is that he is employed to do something else then he is not an engine driver merely because he operates a machine and drives the engine of that machine so as to do what he is employed to do.[70]'

• [55] It is apparent that the Full Bench followed this logic in finding that it was appropriate to apply the primary purpose test in ascertaining whether an excavator operator employed by the Employer and covered by the agreement fell within one of the occupations listed in rule 2E(a).[71] I also consider it appropriate to apply this approach.

• [56] It is apparent from the Proposed Agreement's coverage provisions that it covers employees employed by the Employer to perform work on the Project.[72] The Project is the same project referred to in the agreement subject of the Initial Application.[73] As noted above, it is a light rail project in Queensland.

• [57] It is declared in the Form F17B that the primary activity of the Employer is 'Earthmoving', consistent with the Form F17B filed in respect of the Initial Application.

• [58] It is apparent from the Proposed Agreement's classification structure that the Proposed Agreement covers employees who are Excavator Operators, although their classification level under the Proposed Agreement will vary depending on the type of excavator operated.

• [59] In the Initial Application Decision, the Deputy President was satisfied that the Purported Member was engaged as an Excavator Operator based on the uncontested statement of Mr Nathan Stewart, the Managing Director or the Employer.[74] Mr Stewart's brief statement of evidence in relation to the Initial Application indicated that:

• in May 2023 the Employer was engaged to perform work at the Project;
• the work the Employer had been engaged to perform by the principal contractor on the Project was earthmoving works using earthmoving machinery;
• the three employees who commenced work at the Project were engaged as Excavator Operators and that the role title accurately described their purpose and duties;
• based on the needs of the Project the Employer may need to support additional employees to the Project to work as Excavator Operators.[75]

• [60] Mr Stewart's evidence in the proceedings concerning the Initial Application was uncontested, and in the Appeal Decision the Full Bench accepted that each employee was employed as an Excavator Operator and worked as such.[76] I do not consider that there is any basis to depart from the factual findings made by the Full Bench that the Purported Member was employed as an Excavator Operator in carrying out earthmoving works on the Project using excavators. This is the primary purpose of the Purported Member's employment and there is no basis for a finding that the Purported Member is now employed to do something else. The facts surrounding the Purported Member are therefore to be distinguished from the 'forklift driver' employee in Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd[77] in which the Full Court of the Federal Court found that employee's purpose (and his role within the employer in that matter) was to work as a Warehouse Operator and the purpose of his role was the performance of all tasks in connexion with the receiving, storing, picking and despatching of goods in the employer's business (and, if required, to work flexibly in the paint manufacturing facility).

• [61] In the appeal of Initial Application Decision the Full Bench noted that there was no dispute before it that there was any distinction between an excavator operator and 'excavator driver', being the term used in rule 2(E)(a), and found that whether Excavator Operators employed by the Employer and covered by the Proposed Agreement are eligible for membership of the CFMEU is to be resolved in part by properly construing rule 2(E)(a).[78] I see no reason to depart from this approach in the current matter. Consistent with the findings of the Full Bench, I find that the Purported member is an Excavator Operator, this occupation is captured by the occupation of 'excavator drivers' in rule 2(E)(a) and that the Purported Member is therefore eligible for membership of the CFMEU.

1. Is the CEPU a bargaining representative for the Proposed Agreement?'

• [62] The AWU did not cavil with the proposition that the CEPU has the capacity to represent the industrial interests of employees covered by the Proposed Agreement employed in the 'Plumbing and Mechanical Services Sheet Metal Worker Level' classifications in Appendix B.[79] However the AWU pointed out that:

• • the Form F17B identified that the Employer's primary activity is 'Earthmoving';[80]
• • the Form F17B identifies that the Award covers the Employer and any of the employees covered by the Proposed Agreement[81] but does not list the Plumbing and Firs Sprinklers Award 2023 (Plumbing Award) as a modern award that covers the Employer or any of the employees covered by the Proposed Agreement;[82]
• • the Form F16 application does not list the CEPU as a bargaining representative for the Proposed Agreement.[83]

• • it appears unlikely that any of the six or fewer employees who voted on the Proposed Agreement would be employed by the Employer;[84]
• • an inference ought to be drawn that the CEPU was not a bargaining representative for any of the six employees who were employed by the Employer and who may or may not have voted on the Proposed Agreement.[85]

• [64] The CEPU has not been identified as a bargaining representative in the Form F16 and the CFMEU said the CEPU was not a bargaining representative when the Commission sought to clarify this matter. I accept that it is unlikely that an Employer whose primary activity is earthmoving would employ employees in the 'Plumbing and Mechanical Services' classification stream. Rather, and consistent with my earlier findings, the employees are Excavator Operators employed to carry out earthmoving works on the Project using excavator. I find that the CEPU is not a bargaining representative for the Proposed Agreement.

• [65] Section 185(2) of the Act provides that an application for approval of an enterprise agreement must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations thar re required by the procedural rules to accompany the application.

• [66] Section 185(5) provides that the regulations may prescribe requirements relating to the signing of enterprise agreements. In this regard Regulation 2.06A of the Fair Work Regulations (Regulations) provides:

'Bargaining representative must apply for FWC approval of an enterprise agreement--requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(ii) at least 1 representative of the employees covered by the

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person's authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.

(3) Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative's signature is not taken to indicate that the representative intends to be bound by the agreement'.

• [67] The AWU submits that there are deficiencies in the signing of the Proposed Agreement.[86] because:

• • the CFMEU has signed the Proposed Agreement but is not a bargaining representative for the Agreement;[87]
• • the CEPU has signed the Agreement but is not a bargaining representative for the Agreement.[88]

• [68] The signatory page of the Proposed Agreement is found at Appendix F. It is not in contention that it is signed by the employer covered by the Proposed Agreement. The Proposed Agreement has been signed by the CFMEU. I have earlier found that the CFMEU is a bargaining representative for the Proposed Agreement and in those circumstances, I find that the Proposed Agreement has been signed by at least one representative of the employees covered by it. The signatory page includes the full name and address of each person who signs the agreement and an explanation of the person's authority to sign the agreement. I find that, in accordance with s.185(2)(a) of the Act the application for approval of the Proposed Agreement was accompanied by a signed copy of the Proposed Agreement.

1. Issues concerning the Notice of Employee Representational Rights (NERR)

• [69] The Notice of Employee Representational Rights (NERR) provided to employees states:

'Fair Work Act 2009, subsection 174(1A)

Advanced Civil Group Pty Ltd gives notice that it is bargaining in relation to a single-enterprise agreement (Advanced Civil Group Pty Ltd Gold Coast Light Rail Stage 3 Project Agreement) which is proposed to cover employees that do building and construction and similar work and who are based in Queensland'.

• [70] Clause 1 of the Proposed Agreement deals with the Proposed Agreement's scope and states:

1.1 This Agreement is made under the Fair Work Act 2009 (Cth) and those covered by this Agreement are:

1.1.1 Advanced Civil Group Pty Ltd ABN: (35638485328) (Employer);

1.1.2 Employees employed by Advanced Civil Group Pty Ltd on the Gold Coast Light Rail Stage 3 Project (Project) for which classifications and rates of pay are prescribed by this Agreement (Employees).

1.1.3 The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); and

1.1.4 The Construction, Forestry, Maritime, and Energy Union (CFMEU)

1.2 This Agreement shall be read and interpreted wholly in conjunction with the Building Construction General On-site Award 2020 and Plumbing and fire Sprinklers Award 2020 to the extent this Agreement is silent. Where this Agreement is not silent, the conditions of this Agreement shall take precedence and apply to the full exclusion of the relevant provisions under the Award'.

• [71] The AWU submitted, by way of summary:

• The Regulations stipulate that the NERR must contain the following content:

'Fair Work Act 2009, subsection 174(1A)

[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].

• • In circumstances where the NERR must contain only the content prescribed by the Regulations and be in the form prescribed in Schedule 2.1, if the mandatory content of the NERR is inaccurate, the consequence is that the NERR is invalid.[90]
• • The NERR represents that the Proposed Agreement 'is proposed to cover employees that do building and construction and similar work who are based in Queensland,'[91] this representation is inaccurate and had the real possibility to mislead the employees who voted on the Proposed Agreement to the conclusion that:
  • the work being performed is 'general building and construction' work as defined by the Award as opposed to 'civil construction work'; and
• o the Proposed Agreement will apply to work performed through Queensland and is not limited to work performed on the Project.[92]
• • Providing inaccurate information in the 'proposed coverage' of the Proposed Agreement is not a minor procedural or technical error within the meaning of s.188(5) of the Act.[93]
• • Further, s.188(5) provides that the Commission would not be satisfied that employees were not likely to have been disadvantaged by the errors where the work covered by the NERR is inaccurately described and the geographic description of the area to be covered is significantly exaggerated.[94]
• • If the NERR is invalid, the Proposed Agreement cannot be approved by reason of s.188(4) of the FW Act.[95]
• • If the Commission is satisfied that the inaccuracies in the NERR do not invalidate the NERR, the inaccuracies are relevant considerations for the Commission's assessment of whether the Proposed Agreement has been 'genuinely agreed' by the employees'[96] and weigh against the Commission concluding that the Proposed Agreement had been 'genuinely agreed' by the employees'.[97]

• [72] The CFMEU submitted that in the Appeal Decision the Full Bench accepted the CFMEU submissions about the NERR.[98] In this regard the Full Bench noted that the Deputy President regarded that the NERR was broader in scope than the agreement in the Initial Application and concluded that the deficiency could not be overlooked as a minor procedural error for the purposes of s.188(5) of the Act.[99]

• [73] On appeal, the CFMEU submitted that the Deputy President erred as to the NERR issue because there was no defect in the NERR. The Full Bench found that the scope of the Proposed Agreement described in the NERR did not render the NERR invalid because:

• the scope of a proposed enterprise agreement is a legitimate matter for bargaining;
• the scope set out in the NERR does not determine or affect the scope of an enterprise agreement thereafter made;

• • while casting the scope too narrowly in a NERR might lead to potential problems such as a failure to provide the NERR to employees, the same cannot be said in reverse and an employer who issues a NERR containing a broad scope for the proposed agreement may rely on that NERR to make an agreement with a narrower scope;[100]

• the Employer had issued a NERR with a broad scope but made an agreement with a narrower scope that fits wholly within the broader scope;

• • while the agreement was concerned with civil construction work on the Project, civil construction is a form of construction and comfortably falls within the description of 'building and construction and similar work' found in the NERR.[101]

• [74] The relevant content of the NERR and coverage provisions of the Proposed Agreement remain as they were in documents lodged with the Initial Application.

• [75] I agree with the findings of the Full Bench that the scope of a proposed enterprise agreement is a legitimate matter for bargaining and that the scope of the proposed agreement as described in the NERR does not determine or affect the scope of an enterprise agreement.

• [76] In this matter the geographical coverage of the NERR, being Queensland, is broader that the 'Project' which is confined to a light rail project on the Gold Coast. To the extent that the NERR refers to 'building and construction and similar work', I do not consider there is a basis to understand this as a reference to 'general building and construction' work as defined by the Award or evidence that the employees have been misled to understand it as such. Civil construction is a form of 'construction' and fits within the broader description of coverage of the NERR, being 'building and construction and similar work'.

• [77] I do however note that there are two classification streams in the Proposed Agreement including a 'Construction Worker/Labourer' classification stream and a 'Plumbing and Mechanical Services' classification stream. This appears to be a product of the use of a template project agreement, and I return to this issue further in this decision. I consider it unlikely that the Employer, whose primary activity is earthmoving and who has been engaged to perform earthmoving works on the Project using earthmoving machinery, would ever employ employees covered by the 'Plumbing and Mechanical Services' stream to work on the Project. In these circumstances, there is no risk of problems such as a failure to provide the NERR to employees who were employed at the notification time and who fall within 'Plumbing and Mechanical Services' classification stream as there are no such employees employed by the Employer.

• [78] Having regard to these matters, I find that no deficiencies arise in respect of the NERR that would render it invalid.

1. Do the employees who were requested to approve the Proposed Agreement by voting on it have a sufficient interest in its terms and are they sufficiently representative, having regard to the employees the Proposed Agreement is expressed to cover?

Relevant legislation and Statement of Principles on Genuine Agreement

• [79] Section 188(2) of the Act has the effect that the Commission cannot be satisfied that the Proposed Agreement has been genuinely agreed to by the employees covered by it unless the Commission is satisfied that the employees requested to approve the Proposed Agreement by voting for it:

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

• [80] A note appearing under s.188(2) states:

'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.'

• [81] Section 188(1) of the Act provides that the Commission must take into account the SoPs made under s.188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by it.

• [82] Principles 17 and 18 of the SoPs relevantly provide:

17. 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

(iii) industries and occupations the agreement covers.

18. An enterprise agreement will generally not have been genuinely agreed to by the employees covered by the agreement unless the agreement was the product of an authentic exercise in agreement-making between the employer(s) and employees in one or more enterprises, and the employees who voted for the agreement had an informed and genuine understanding of what was being approved.

• • in circumstances where the Proposed Agreement has 74 CW classifications and 10 Plumbing and Mechanical Services classifications yet there are only six employees employed by the Employer, it could not be reasonably argued that those employees have a sufficient interest in the terms of the Proposed Agreement and were sufficiently representative, having regard to the employees the Proposed Agreement is expressed to cover;[102]
• • that the Employer's Form F17B for the Initial Application confirms that the 'Access Period' for the Proposed Agreement was commenced on the same day as the six employees were given the NERR, provides a strong inference that no authentic bargaining (or no bargaining at all) occurred and the process reflects "characteristics akin to individual bargaining than collective bargaining".[103]

• [84] In support of its submissions, the AWU relied on the decision of the Full Court of the Federal Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (One Key) which said: [104]

'149. Collective bargaining is a well-known process for resolving industrial disputes. It is recognised and promoted by conventions of the International Labour Organisation, principally the Right to Organise and Collective Bargaining Convention (No 98) (1949) (entered into force 18 July 1951), which Australia ratified on 28 February 1973. Collective bargaining, as a formal process for resolving industrial disputes, was introduced into federal industrial legislation by amendments made to the Industrial Relations Act 1988 (Cth) in 1994 by the Industrial Relations Reform Act 1993 (Cth). Simply put, collective bargaining is a process in which employees bargain with their employer as a collective, rather than as individuals. It is a process which is designed to overcome the power imbalance between an employer and an employee bargaining alone.

150. In relation to the setting of terms and conditions of employment, the Fair Work Act expresses a preference for collective bargaining and disapproval of individual bargaining. Individual bargaining for statutory employment agreements available under the Workplace Relations Act through the making of what were called "Australian Workplace Agreements" was not continued by the Fair Work Act. The legislative distaste for individual bargaining and individual agreement making is expressed in strong language in s 3(c) of the Fair Work Act, which states that individual employment agreements "can never be part of a fair workplace relations system". The strong preference of the Fair Work Act for collective bargaining must logically be anchored in an acceptance of the proposition that collective bargaining has characteristics more likely to facilitate a fair workplace relations system than does individual bargaining.

151. An enterprise agreement made early in the life of an enterprise with two or three employees and before the employment of the much larger workforce necessary to operate the business of the enterprise is, in terms of the process by which it was made, far more likely to reflect characteristics akin to individual bargaining than collective bargaining. As the facts of this case demonstrate, there will be no bargaining with the collective of employees because, in substance, the collective is yet to be formed. In the absence of any real opportunity for employees to form an effective collective, the power imbalance will reflect that of individual bargaining. As the Full Court said in a similar context in Construction, Forestry, Mining and Energy Union v Pilbara Iron Company [2011] FCAFC 91; (2011) 194 FCR 269 at [38]:

"If it were possible for an employer to choose any employees it wishes, and to

designate them as the employees in part of its single business with whom it wishes to make a collective agreement, the underlying purpose of promoting collective negotiation might be subverted."

152. Still, it is abundantly clear that an enterprise agreement may be made with two or three employees and, in relation to a new enterprise, may be made as a non-greenfields agreement where some employees of the enterprise are already employed (see ALDI at [76]). That that should be so is not really surprising. Enterprises come in all shapes and sizes. Nor, as the High Court observed at [84] in ALDI, is it implausible for the legislature to have intended that a small group of employees should be able to fix the terms and conditions of employment of a larger group of employees who are later employed and covered by the enterprise agreement.

153. But it does not follow from the fact that agreement-making of that kind has not been prohibited by the Fair Work Act that the Act is unconcerned with agreement-making that may undermine or subvert its preference for collective bargaining. That concern, as the High Court observed in ALDI at [84] and [87], is addressed not by prohibition but by the Fair Work Act's "protective provisions".

154. Section 186(3) (the "fairly chosen" requirement) is one example of such a "protective provision". A primary purpose of this provision is to avoid the workforce of an enterprise being broken up into artificial employee groupings with the consequence that the workforce of the enterprise is unable to bargain as a single collective: see Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74 at [19] (Jagot, Bromberg and Rangiah JJ). Another example of a protective provision referred to by the High Court in ALDI is the BOOT. Each of those provisions is an element of the approval process specified by Sub-division B of Part 2-4. Like those provisions, other provisions of that sub-division, including ss 186(2) and 188, have a protective purpose. That s 188 harbours a concern directed at agreements made by a small number of employees in circumstances where the agreement covers a wider range of employee classifications is confirmed by [824] of the Explanatory Memorandum which provides:

"Note that where an agreement covers a large number of classifications of employees in which no employees are actually engaged there may be a question as to whether the agreement has been genuinely agreed - see clause 188."

155. Where employees working in few occupational classifications consent to an agreement which covers numerous other occupations or other occupations in many industries beyond their own, an explanation of the terms of the agreement and their effect may fall short of providing an adequate basis for the formation of genuine consent. The employees who voted may be indifferent to the impact of an agreement on other employees or prospective employees in occupational classifications outside their own training or experience. As Buchanan J observed in John Holland (Besanko and Barker JJ agreeing), in those circumstances the employees will presumably act out of self-interest (at [33]) with the possible result that "it may not be fair for an enterprise agreement made with three existing employees to cover a wide range of other classifications and jobs in which they may have no conceivable interest" (at [83]).

156. Therein lies the concern. The legislative objective of achieving "fairness through an emphasis on enterprise-level collective bargaining" could be undermined if the employees who vote on the agreement have no basis for appreciating its nature and terms. What is required by s 186(2)(a) is genuine agreement. To construe that requirement as mandating an informed and genuine understanding of what is being approved is consistent with the text of the provision (as defined) and accords with its underlying purpose." addressed not by prohibition but by the Fair Work Act's "protective provisions" (AWU's emphasis).

• [85] The CFMEU submitted that there was nothing in the facts of the Current Application that demonstrated:

• an absence of collective bargaining; or
• a subversion of the making of a collective agreement; or
• a lack of sufficient interest in the Proposed Agreement; or

• • an obvious disjunction between the content of the Proposed Agreement and the characteristics of those who entered into it.[105]

• [86] The CFMEU further submitted, citing Aldi Foods Pty Limited v SDA[106](Aldi) and One Key[107] that there was nothing in the scheme of the Act that prohibits a small group of employees from making an enterprise agreement with their employer that might cover a larger group of employees in the future.

The construction of s.188(2) and purpose toward which s.188(2) was directed

• [87] As noted above, the question that arises in this matter is whether the Commission is satisfied, in accordance with s.188(2) that the employees requested to approve the Proposed Agreement by voting for it:

• have a sufficient interest; and
• are sufficiently representative, having regard to the employees the agreement is expressed to cover.

• [88] Unless the Commission is satisfied of these matters, the Commission cannot be satisfied that the Proposed Agreement has been genuinely agreed to by the employees covered by it.

• [89] The use of the terms 'sufficient' and 'sufficiently' suggests that reaching the requisite state of satisfaction concerns a consideration of the degree or extent to which employees have an interest in the agreement and are representative of those employees covered or prospective employees to be covered by it. There is no legislated requirement that they be employed cross every classification set out in in an agreement.

• [90] The note appearing below s.188(2) of the Act provides an indication as to the purpose toward which s.188(2) was directed with reference to One Key[108] and the observation of the Full Court of the Federal Court 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.

• [91] One Key[109] was concerned with circumstances where:

• • an agreement was made with three employees hired at different times over the preceding months;[110]
• • two of these employees worked in the coal mining industry and were covered by the Black Coal Mining Industry Award 2010, the third employee worked in the construction industry and was covered by the Building and Construction General On-site Award 2010 and there was no reason to think they had any interest in the effect of the agreement on employees working outside their respective industries;[111]
• • the employees the agreement intended to cover were employees of the employer, employed to work anywhere in Australia, and whose employment would be covered by 11 awards;[112]
• • two of the three employees who voted on the agreement were employed as casuals;[113]
• • there was no employee bargaining representative for the agreement.[114]

• [92] As noted by the AWU, the Full Court of the Federal Court said the following in the One Key decision:

'155. Where employees working in few occupational classifications consent to an agreement which covers numerous other occupations or other occupations in many industries beyond their own, an explanation of the terms of the agreement and their effect may fall short of providing an adequate basis for the formation of genuine consent. The Employees who voted may be indifferent to the impact of an agreement on other employees or prospective employees in occupational classifications outside their own training or experience. As Buchanan J observed in John Holland (Besanko and Barker JJ agreeing), in those circumstances the employees will presumably act out of self-interest (at [33]) with the possible result that "it may not be fair for an enterprise agreement made with three existing employees to cover a wide range of other classifications and jobs in which they may have no conceivable interest" (at [83]).

1. Therein lies the concern. The legislative objective of achieving "fairness through an emphasis on enterprise-level collective bargaining" could be undermined if the employees who vote on the agreement have no basis for appreciating its nature and terms. What is required by s.186(2)(a) is genuine agreement. To construe that requirement as mandating an informed and genuine understanding of what is being approved is consistent with the text of the provision (as defined) and accords with its underlying purpose'.

• [93] The Full Court said, in finding that the Commissioner at first instance fell into jurisdictional error:

'It is not readily apparent why the Commissioner was no longer troubled by his initial concern (raised in his email of 18 September 2015) about whether the agreement had been "genuinely agreed" to. It is clear, however, that the Commissioner did not believe he needed to consider whether, in the light of the small number of employees and the large number of awards, he could be satisfied that the three employees had understood the Agreement and its effect before casting their votes. On the face of the material before the Commission there was a vast disparity of occupational classifications as between those held by the three individuals who voted and the classifications covered by the Agreement. How it was that the three employees might be regarded as having had a sufficient appreciation of the appropriateness of the terms and conditions proposed for the disparate occupational classifications covered, including in industries foreign to their own, was not identified by the Commissioner as a factor relevant to the genuineness of the approval and was not the subject of his consideration. Whether the three employees had appreciated the terms and conditions provided for by the Agreement, beyond those of direct interest and relevance to them, and thereby "genuinely agreed" to its terms (not just those that directly affected them) should have been considered. As the primary judge held, the Commissioner's failure to do that evinced jurisdictional error'.[115]

• [94] The Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Revised Explanatory Memorandum) provides a further indication as to the mischief toward which s.188(2) is directed stating:

'Sufficient interest and sufficiently representative

723. New subsection 188(2) would provide that the FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to unless the FWC is satisfied that the employees requested to vote on the agreement:

• have a sufficient interest in the terms of the agreement; and
• are sufficiently representative, having regard to the employees the agreement is expressed to cover.

724. A note to subsection 188(2) indicates that in the decision of One Key

Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union (2018)

[2018] FCAFC 77; 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.

725. New subsection 188(2) is intended as a safeguard against agreements which are

not the result of collective bargaining in good faith, including 'unrepresentative' and 'low voter cohort' agreements. For example, a small cohort of employees offered rates of pay above those provided in the enterprise agreement should not be capable of being found to have genuinely agreed (see, for example, Re KCL Industries Pty Ltd [2016] FWCFB 3048; (2016) 257 IR 266)).

726. New paragraph 188(2)(a) is directed at ensuring that employees must have a

'sufficient stake' in the terms of the agreement. For example, employees would

not have a sufficient interest in the terms of an agreement if no genuine

collective bargaining in good faith occurred as part of the agreement-making

727. New paragraph 188(2)(b) is intended to ensure that employees requested to

vote on an agreement are sufficiently representative, having regard to the

coverage terms or intended coverage of the agreement. For example,

employees engaged in one industry, occupation or classification should not be

capable of being found to have genuinely agreed to an enterprise agreement

intended to cover employees across a substantially wider range of industries,

728. A small cohort of employees would also not be sufficiently representative

where the agreement is intended to ultimately cover a much wider workforce

following transfers of employment, possibly within a corporate group'.

• [95] In the matter referred to at paragraph 725 of the Revised Explanatory Memorandum, Re KCL Industries Pty Ltd (KCL), a Full Bench of the Commission found that the enterprise agreement in that matter was incapable of approval because it could not be regarded as having been "genuinely agreed" as required by s.186(2)(a), having regard to then s.188(c) of the Act.[116] Section 188(2) was not in force when KCL was decided however s.188 of the Act as it then stood had the effect that an enterprise agreement could not have been "genuinely agreed" to by the employees covered by it unless the Commission was satisfied that the employer had taken certain steps (s.188(a)), the agreement had been made in accordance with the Act (s.188(b)) and that there were "no other reasonable grounds" for believing that the agreement had not been genuinely agreed to by the employees" (s.188(c)).

• [96] In KCL the Full Bench identified that there was a disjuncture between the content of the enterprise agreement in that matter and the employees who entered into it.[117] In particular, the enterprise agreement in that matter:

• described itself as being applicable to all employees of KCL, whether full-time, part-time, casual or temporary and it covered all KCL employees except senior executives;

• • set out classifications and pay rates for private sector clerical employees, manufacturing employees and production and staff employees in the black coal mining industry (with the last category including classifications for safety officers, deputies, forepersons, open cut overseers, geologists, chemists, production supervisors and undermanagers).[118]

• [97] However, the materials filed in relation to the application in KCL disclosed that:

• KCL's industry was manufacturing, and its primary activity was "Manufacturing including providing services on coal sites";
• three employees would be covered by the enterprise agreement, of whom two cast a valid vote and voted to approve it;

• • two of the employees were casual employees;[119]

• the employees employed by KCL were trades level employees under the Manufacturing and Associated Industries and Occupations Award.

• [98] In relation to future employees to be covered by the agreement., KCL disclosed that:

• it was expected that employees in supporting roles such as a Trades Assistant role may have become necessary in the future;
• it was feasible that in time the business may develop to be predominantly mine-based in which case the black coal mining classifications and provisions were already in place in the enterprise agreement;
• it was also conceivable that the business would evolve into a solely workshop-based (off-site) business;

• • there was a prospect that the business would grow and require various clerical or administrative staff and the enterprise agreement had conditions in place to facilitate that.[120]

• [99] Further, the explanatory material provided to KCL employees included the following statement:

"You are entitled to vote on the proposed Enterprise Agreement, and you will see that it provides a safety net along the same lines as Awards do, but the safety net is higher than that provided under the Awards. It provides for employees to be paid on the same structure as the Awards, meaning a base rate, with penalties for overtime, weekend and late work etc, or if it suits you and the company, you can be paid a flat rate, as agreed. It also allows for payout of annual leave and long service leave where agreed.

Approval of the Enterprise Agreement will not mean that you are then paid at the rates stipulated in the Agreement. Subject to operational needs and satisfactory performance, you will continue to be paid for your current work in accordance with our existing arrangements" (underlining added).

• [100] In this regard the Full Bench found that the enterprise agreement contained rates of pay which, even in respect of those classifications relevant to the current employees, would not apply to these employees.[121]

• [101] The Full Bench ultimately found:[122]

"[36] In summary, the position is that the Agreement covers a wide range of classifications most of which have no relevance to the work performed by KCL's three existing employees, encompasses industries in which KCL does not currently operate, and contains rates of pay which, even in respect of those classifications relevant to the current employees, are not to apply to those employees. In those circumstances we do not consider that any authenticity could attach to the agreement of the two employees to the rates and conditions in the Agreement. The employees had no "stake" in the Agreement's rates of pay, since they were assured that their existing, higher rates of pay would remain in place (subject to "operational needs and satisfactory performance"), and they could not have given informed consent in relation to occupation and industries in which they did not work and presumably had no experience.

[37] The latter consideration applies with particular force to the Agreement's coverage of work in the black coal mining industry. The award covering that industry, the Black Coal Mining Industry Award 2010, contains a range of provisions which are specifically tailored to the unique circumstances of that industry. An example of that is the industry-specific redundancy scheme contained in clause 14 of the Award, which provides for severance and retrenchment benefits greatly in excess of the NES redundancy pay provisions. Those benefits have not been included in the Agreement, and thus would not apply to hypothetical future coal mining employees. The two employees who agreed to this outcome could never have received the benefit of these provisions, because their work is not covered by the Black Coal Mining Industry Award, and there is nothing to suggest that they had any knowledge of the existence of these benefits. It is impossible to conclude that the provisions of the Agreement applicable to black coal mining were agreed with the informed consent of the existing employees" (underlining added).

• [102] In KCL the Full Bench noted that the circumstances of that matter were not dissimilar to those in McMah Pty Ltd in which the Commission observed that it was "understandable and unremarkable that employees voting on an agreement will not always cover the full range of classifications in a modern award that the agreement is to either supplant" or incorporate but it was "another matter for employees to make an enterprise agreement covering industries where no employees in any classifications are engaged when the agreement was made and may possibly never be engaged".[123] While the Full Bench noted that the then Commissioner in that matter resolved this concern by way of acceptance of undertaking, it had since been decided by a Full Bench in CEPU v Main People Pty Ltd[124]that an undertaking which sought to confine the coverage of an enterprise agreement in a significant way could not be accepted because it would necessarily result in a significant change contrary to the requirement in s.190(3) of the Act. In this respect the Full Bench in CEPU v Main People Pty Ltd found:

'[34] We consider that in two respects the Deputy President erred in approving the Agreement on the basis of the undertaking proposed by Main People. First, we consider that acceptance of paragraph 1 of the undertaking, which confined the coverage of the Agreement to work covered by the Metals Award, resulted in a significant change to the Agreement contrary to the requirement in s.190(3)(b) of the FW Act. It may be accepted that an undertaking which clarifies an ambiguous provision of an agreement for which approval is sought in accordance with the intention of the parties will not be likely to cause a significant change in that agreement. However, this was not a case of ambiguity. The breadth of the classifications in the Agreement, and the geographical scope of its coverage, made it apparent that it had application beyond work covered by the Metals Award. The first Full Bench made a clear finding to that effect in the Appeal Decision with which we agree.

[35] The scope of coverage of an enterprise agreement is one of its fundamental features. The coverage provision of an agreement serves to identify the class of persons who will be entitled to its benefits while it is in operation. The importance of an agreement's coverage is signified by the fact that, under the FW Act, s.186(3) requires the group of employees covered by the agreement to be fairly chosen. For that reason an undertaking which purports to alter the coverage of an enterprise agreement by excluding classes of persons who, on the face of the agreement, would be covered by it, will always be likely to be a significant change.[125]'

• [103] Having regard to that matter the Full Bench in KCL did not consider that accepting an undertaking to address its concern was available to it.[126]

• [104] It can be drawn from the legislative note, Revised Explanatory Memorandum and principles arising from the cases referred to therein, that the drafters of s.188(2) intended that employees requested to approve an agreement by voting on it may be considered to be lacking a 'sufficient interest' in an agreement in circumstances where they did not have a sufficient 'stake' in the agreement because, for example:

• • they were paid rates of pay above those provided in the enterprise agreement or rates of pay above those provided in the enterprise agreement;[127]
• • the employees were working in a few occupational classifications in circumstances where the enterprise agreement covered numerous other occupations or occupations in many industries beyond their own such that the employees may have been indifferent to the impact of an agreement on other employees or prospective employees in those other occupational classifications outside their own training or experience.[128]

• [105] It is also apparent that the question of whether the employees requested to vote have a 'sufficient interest' is to be considered in the context of the 'collective', with the Revised Explanatory Memorandum indicating that there will not be a sufficient interest if no genuine collective bargaining in good faith occurred as part of the agreement-making process'.[129] This may be because there were only two or three employees who made the enterprise agreement early in the life of an enterprise and before the employment of the much larger workforce such that the process by which it was made undermined or subverted collective bargaining.[130] By way of example, in One Key, the Full Court found there was no bargaining with the collective of employees because, in that matter the relevant collective was yet to be formed.[131]

• [106] It is apparent that it was intended that employees requested to vote on an enterprise agreement may not be 'sufficiently representative', 'having regard to the employees the agreement is expressed to cover' because, for example:

• there were a small number of employees and a large number of relevant awards that would otherwise apply but for the agreement, resulting in a vast disparity of occupational classifications as between those held by those who voted and the classifications covered by the agreement;
• the employees did not have a sufficient appreciation of the appropriateness of the terms and conditions proposed for the disparate occupational classifications covered, including in industries foreign to their own;
• the employees did not appreciate the terms and conditions provided for by the agreement, beyond those of direct interest and relevance to them.

• [107] These factors may impact 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.

• [108] The requirement to have regard to 'the employees the agreement is expressed to cover' indicates that it is 'the employees' need to be considered and this is not limited to those employees who were requested to vote but other employees, including prospective employees, who would fall within the agreement's expressed coverage. This is reflected in the Revised Explanatory Memorandum which states:

'727. New paragraph 188(2)(b) is intended to ensure that employees requested to

vote on an agreement are sufficiently representative, having regard to the

coverage terms or intended coverage of the agreement....

728. A small cohort of employees would also not be sufficiently representative

where the agreement is intended to ultimately cover a much wider workforce

following transfers of employment, possibly within a corporate group.'

• [109] While s.172(6) of the Act provides that an enterprise agreement cannot be made with a single employee, there is no prohibition on the making of an agreement with a small cohort consisting of two or more employees. The question that arises in this matter is whether the Commission is satisfied, in accordance with s.188(2), that the small cohort of employees who were requested to approve the Proposed Agreement by voting on it have:

(a) a sufficient interest; and

(b) are sufficiently representative having regard to the employees the agreement is

• [110] This is not a case where the margin between the rates in the Proposed Agreement as compared to the modern awards is slim. The pay and conditions in the Proposed Agreement, considered holistically, are significantly more beneficial than those set out in the Award and no better off overall test issues arise. The Proposed Agreement therefore stands in contrast to those agreements in question in in One Key[132] and KCL[133] which provided marginal increases to pay, while removing a number of conditions that employees would have been entitled to under the relevant modern awards. The employees do not currently have the benefit of an enterprise agreement and there is no suggestion or evidence that the employees who were requested to vote on the Proposed Agreement will in practice be paid rates and/or provided with conditions in excess of those provided by the Proposed Agreement. If the Proposed Agreement is approved, the employees who were requested to vote on the Proposed Agreement will be entitled to the comprehensive set of wages and conditions prescribed by it in respect of their work on the Project.

• [111] The employees who were requested to vote for the Proposed Agreement are only employed in classifications relevant to Excavator Operators and these sit within the 'Construction Worker/Labourer' classification stream. While the Agreement also covers casual employees, there does not appear to be any casual employees within the Employer's workforce. As such the employees are not employed across the full range of classifications, types of employment and industries and occupations the Proposed Agreement is expressed to cover. This is it itself unremarkable as there are many agreements that come before the Commission in which those requested to vote will not always span the full coverage of an agreement, particularly where an agreement seeks to supplant classifications in a modern award.

• [112] In considering the extent to which the cohort requested to vote departs from the Proposed Agreement's coverage, I note the circumstances of this matter can be distinguished from the circumstances in One Key.[134] In One Key, the agreement covered employees employed to work anywhere in Australia whose employment would fall within the coverage of 11 modern awards and in which the employees asked to vote on an enterprise agreement intended to cover employees across a substantially wider range of industries, occupations or classifications. The coverage of the Proposed Agreement is comparatively narrow. It is expressed to cover employees working on the Project in classifications that are broadly aligned to those in the Building Award and Plumbing Award. The employees requested to vote on the Proposed Agreement are covered by the Building Award and not the Plumbing Award. However, the Employer has been engaged to undertake earthmoving works on the Project using earthmoving machinery. In these circumstances it is unlikely that employees were ever intended to be employed across the full range of classifications in the Proposed Agreement. I do not consider there is a disjunction between the characteristics of those who were requested to vote on the Proposed Agreement and those intended to be covered by it in the nature of the disjuncture present in KCL and One Key. Those who are covered and those who will be covered will fall within the relevant 'Construction Worker/Labourer Classifications' in Appendix B. Further, this is not a case where the Proposed Agreement's coverage extends to many industries beyond the industries of those employees who were requested to vote. In these circumstances I do not hold any concern that the employees were indifferent to the impact of an agreement on other employees or prospective employees in occupational classifications outside their own.[135]

• [113] Rather, the broader classification structure can be explained by the use of a template as the basis for the drafting of the Proposed Agreement. In this regard, Mr Dunbar's evidence during the hearing was that:

• in Queensland there is a government procurement framework for funded projects and the relevant unions will negotiate a set of standards with the principal contractor for a project. In relation to the Project, the principal contractor and relevant unions negotiated a set of employment standards and this forms part of the contracts that go out to subcontractors and is reflected in the terms of Proposed Agreement;
• while the employment standards are a framework, often there are other things that subcontractors might need in respect of their business model, for example differing start times and breaks.

• [114] The implications of using a template as the basis for the Proposed Agreement warrants closer consideration. In this regard I return to the AWU's submission that that the Employer's Form F17B for the Initial Application confirms that the 'Access Period' for the Proposed Agreement was commenced on the same day as the six employees were given the NERR, provides a strong inference that no authentic bargaining (or no bargaining at all) occurred and the process reflects "characteristics akin to individual bargaining than collective bargaining".[136]

• [115] The timeline of relevant events concerning the Initial Application are set out in the Form F17B filed in respect of that application. These include:

• a notification time of 26 July 2023;
• provision of the NERR on 26 July 2023;
• provision of the agreement and incorporated material at a toolbox meeting on 26 July 2023;
• explanation of the terms and effect of the agreement on 26 July 2023;
• notification of the vote on 9 August 2023;
• voting on 23 August 2023.

• [116] In my view, the fact that the notification time, provision of the NERR, provision of agreement and incorporated material and explanation of the terms and the effect of the agreement all occurred on the same day raises a concern as to whether the agreement purported to have been made in the Initial Application was a product of authentic bargaining.

• [117] However, the Initial Application was withdrawn on 12 July 2024. The CFMEU has subsequently made the Current Application and while the content of the Proposed Agreement remains the same, the sequence of events since the Initial Application means that the timeline of events for the making of the Proposed Agreement is now different. Taking into account the matters declared in the Form F17B for the Current Application and events occurring since the Initial Application was made, the timeline of events is as follows:

• the notification time was 26 July 2023;
• the NERR was provided 26 July 2023;
• an explanation of the terms and effect of the Proposed Agreement occurred on 26 July 2023;
• the Initial Application was made on 6 September 2023;
• the Initial Decision was handed down on 2 January 2024;
• the Initial Decision was overturned in the Appeal Decision on 25 June 2024 and the matter was remitted to the Deputy President for redetermination;
• the matter was listed for hearing on 9 July 2024, orders for production were made on 10 July 2024 and the matter was discontinued on 12 July 2024;
• employees were provided with copies of the Agreement via email on 15 July 2024;
• the employees were notified of the time, place and voting method on 15 July 2024;
• an explanation of the terms and effect of the Proposed Agreement was again provided at a toolbox meeting on 23 July 2024 ahead of a vote that same day.

• [118] It seems likely that the CFMEU, as a bargaining representative for the Proposed Agreement, first put the Proposed Agreement forward for the consideration of the employees and Employer covered by it on 26 July 2023 and it has remained unchanged since that time. On the one hand, this raises a question as to whether genuine collective bargaining in good faith has occurred. On the other hand, the period between the time employees were first presented with the agreement proposed by the CFMEU and when they voted on it on 23 July 2024 is lengthy. No party involved in the process of making the Proposed Agreement has brought any concerns to the Commission's attention about the conduct of bargaining at any juncture across the period. Further, while the Employer had indicated in respect of the Initial Application may need to supply additional employees to work as excavator operators on the Project and it appears it has done so as the number of employees covered has increased from three to six, the workforce remains small. It remains the case that the Employer's principal activity is earthmoving. It employs Excavator Operators to carry out earthmoving work on the Project and these were the employees who were requested to vote. There is no evidence to suggest that the Proposed Agreement was intended to ultimately cover a much wider workforce. To the contrary, despite the lengthy time that has passed there has been no material change in characteristics of the 'collective' requested to vote in relation to the agreements the subject of the Initial Application and Current Application. As I have earlier found, it is unlikely that employees were ever intended to be employed across the full range of classifications in the Proposed Agreement and I do not consider there is a disjunction between the characteristics of those who were requested to vote on the Proposed Agreement and those intended to be covered by in the way that there was in KCL and One Key. In these circumstances this is not a case where there is evidence of an agreement that undermines or subverts collective bargaining.

• [119] Paragraph 188(2)(a) is directed at ensuring that employees must have a 'sufficient stake' in an enterprise agreement and I am satisfied that the employees concerned do so in respect of the Proposed Agreement. I am satisfied, having regard to the above matters and taking into account the SoPs, that in accordance with s.188(2)(a) that the employees requested to approve the Proposed Agreement by voting for it have a sufficient interest in it. Further, having regard to all the circumstances in this matter, I am satisfied that the employees requested to approve the Proposed Agreement by voting on it are, in accordance with s.188(2)(b) sufficiently representative having regard to the employees the Proposed Agreement is expressed to cover.

1. 'Genuine agreement', including the question of whether the employees who voted for the Proposed Agreement had an informed and genuine understanding of what was being approved.

• [120] As noted above, the AWU submitted that there are deficiencies in the way in which the Proposed Agreement has been explained to the employees as set out in the Form F17B filed by the Employer such that the Commission cannot be satisfied that the employees who voted for the Proposed Agreement had an informed and genuine understanding of what was being approved pursuant to principle 18 of the SoPs. Principle 18 provides:

1. An enterprise agreement will generally not have been genuinely agreed to by the employees covered by the agreement unless the agreement was the product of an authentic exercise in agreement-making between the employer(s) and employees in one or more enterprises, and the employees who voted for the agreement had an informed and genuine understanding of what was being approved (emphasis added).

• [121] This objection is relevant to the consideration of whether the Proposed Agreement has been genuinely agreed to by employees. In particular, s.186(2) of the Act has the effect that the Commission is not able to approve the Proposed Agreement unless it is satisfied that it has been genuinely agreed to by employees.

• [122] Section 188 sets out provisions dealing with whether an enterprise agreement has been genuinely agreed to by employees.

• [123] The Commission cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by it unless it is satisfied about the matters in s.188(2) which I have dealt with earlier in this decision.

• [124] Section 188(1) requires the Commission to take into account the statement of principles made under s.188B in determining whether an enterprise agreement has been genuinely agreed to by the employees covered by it. As noted by the Revised Explanatory Memorandum to the Fair Work Legislation (Secure Jobs, Better Pay) Bill 2022 (Revised Explanatory Memorandum) the SoPs are intended to provide 'guidance' on how an employer can seek employees' genuine agreement.[137] While the SoPs must be taken into account, they are not necessarily determinative of whether an agreement has been genuinely agreed to and they do not override the mandatory requirements in the Act that relate to genuine agreement. Further, while the SoPs do not override the legislative requirements, some of the SoPs provide guidance as to how those legislative requirements may be met. For completeness, I deal with the balance of requirements relating to genuine agreement and SoPs not otherwise dealt with earlier in this decision below.

Informing employees of bargaining for a proposed enterprise agreement and their right to be represented by a bargaining representative

• [125] Section 188(3) of the Act provides that s.188(4) of the Act applies if an employer was required by s.173(1) (which deals with giving notice of employee representational rights) to take all reasonable steps to give notice in relation to the agreement. Section 173(1) requires an employer that will be covered by a proposed single-enterprise agreement (other than a greenfields agreement) to take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

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

• [126] The Proposed Agreement is a proposed single-enterprise agreement (other than a greenfields agreement) and as such s.188(4) of the Act applies. Section 188(4)(a) provides that the Commission cannot be satisfied that the Proposed Agreement has been genuinely agreed to by the employees covered by it unless the Commission is satisfied that the Applicant complied with sections 173 and 174.

• [127] Section 173(2) of the Act describes the notification time for a proposed enterprise agreement. Section 173(3) of the Act requires that the employer give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

• [128] Section 174(1A) of the Act requires that the notice:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.

• [129] Principles 1-3 of the SoPs provide guidance in relation to these requirements, stating:

1. The employer should ensure that employees of the employer who will be covered by a proposed enterprise agreement and are employed at the notification time for the agreement (as defined in s. 173(2) of the Act) are informed:

(a) that the employer is bargaining for an enterprise agreement and of the proposed coverage of the agreement, and

(b) of the employees' rights to be represented in bargaining for the agreement, including by an employee organisation or by another bargaining representative of their choice, and how to exercise those rights at such a time and in such a manner that the employees have a reasonable opportunity to be represented in bargaining for the agreement.

1. Where s.173(1) of the Act applies to the employer in relation to a proposed enterprise agreement, the employer will be taken to satisfy paragraph 1 if, subject to paragraph 3, the employer gives a notice of employee representational rights in accordance with ss.173 and 174.

1. An employer should not mislead employees (by words, action or otherwise) as to:

(a) the employee's right to be represented by a bargaining representative, or

(b) the role of an employee organisation as to the default bargaining representative of its members.

• [130] It is declared in the Form F17B that the notification time for the Proposed Agreement was 26 July 2023 and that the NERR was issued that same day at a Toolbox meeting. A copy of the NERR that the Applicant says was provided to employees was provided to the Commission. I have earlier dealt with the AWU's contentions concerning the content of the NERR and found that no deficiencies arise in respect of the NERR. There is no evidence before the Commission to suggest that the Applicant has misled employees as to their right to be represented by a bargaining representative, or the role of an employee organisation as to the default bargaining representative of its members.

• [131] Based on the information before the Commission and, taking into account the relevant SoPs, I am satisfied that the requirements of ss.173 and 174 have been met.

Providing employees with a reasonable opportunity to consider a proposed enterprise agreement

1. The employer should provide employees with a reasonable opportunity to consider a proposed enterprise agreement before voting on it, so that the employees can vote in an informed manner.

1. The employer will be taken to satisfy paragraph 4 if, a reasonable time period before the start of the voting on the proposed agreement, the employer provides to employees who are entitled to vote on the agreement:

(b) a full copy of any other material incorporated by reference in the agreement.

1. In paragraph 5, a reasonable time period will include:

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

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

1. The employer may provide the material specified in paragraph 5 to an employee:

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

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

provided the employee has a reasonable opportunity to access and read the material during the whole of the period from the time the material is provide until completion of the voting process.

• [133] It is declared in the Form F17B that on 15 July 2024 employees were given copies of the Proposed Agreement via email. Evidence of an email from an administrative officer of the Employer sent to employees attaching the Proposed Agreement and a document with a link to the Building Award was provided to the Commission. It is declared in the Form F17B that voting on the Proposed Agreement commenced on 23 July 2024.

• [134] Based on the material before the Commission I am satisfied that a copy of the Proposed Agreement was provided to employees at least 7 full calendar days before the day on which voting started, and that employees had access to a copy of the Building Award during the whole of the period from the time the material was provided until completion of the voting process.

• [135] I note that clause 1.2 of the Agreement provides that the Proposed Agreement shall be read and interpreted wholly in conjunction with the Building Award and Plumbing Award to the extent that the Proposed Agreement is silent. It is not apparent that the employees were provided with the Plumbing Award. Given my earlier finding that it is unlikely that the Employer, whose primary activity is earthmoving and who has been engaged to perform earthmoving works on the Project using earthmoving machinery, would ever employ employees covered by the 'Plumbing and Mechanical Services' stream to work on the Project, it seems this is of little practical consequence. Despite this, I note the Full Bench in CFMEU v AKN Pty Ltd[138] considered an agreement in which there had been partial incorporation of modern awards, found that these were publicly available on a range of websites and that this is sufficient for the material to be readily available to employees and I do not consider that this reasoning is invalidated by the SoPs.

• [136] I am satisfied that the written text of the Proposed Agreement was given to employees during the access period and that, given the modern awards referred to in the Proposed Agreement are publicly available on a range of websites and readily available to employees, no concerns arise with respect to principles 4-7 of the SoPs.

• [137] Section 188(4)(b) has the effect that the Commission cannot be satisfied the Proposed Agreement has been genuinely agreed to by the employees covered by it unless the Commission is satisfied that the Applicant complied with s.181(2), which requires that employees not be requested to approve the Proposed Agreement until 21 days after the last NERR is given.

• [138] The notification time for the Proposed Agreement was 26 July 2023 and the last date on which the NERR was provided was that same date. I am satisfied that employees were not requested to approve the Proposed Agreement until 21 days after the last NERR was given.

• [139] Principles 15 and 16 of the SoPs set out additional guidance related to the voting process.

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

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

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

• [141] It is declared in the Form F17B that on 15 July 2024 the employees were notified via email that a vote would be conducted on 23 July 2024 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. A copy of the email sent to employees on 15 July 2024 was provided to the Commission and it is apparent that it communicated to employees that the vote would occur on 23 July 2024 at 2pm at specific lunchrooms on the site of the Project. I am satisfied that the employer took steps consistent with Principle 16.

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

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

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

• [143] It is declared in the Form F17B that it was the delegate or organiser who conducted the vote by way of show of hands. While this does not necessarily raise concerns that the vote was disclosed or ascertainable by the employer, the consequence of a show of hands voting process is that the way in which an employee voted is also ascertainable by others who voted and administered the voting process and in my view this gives rise to a risk that employees may feel some pressure to vote a certain way. There are other obvious methods available that do no present such a risk. However, the Act does not currently prevent voting via a show of hands, and I accept that this method may seem a logical choice in a site based small business. In the circumstances of this matter the fact of a show of hands vote is not, considered in isolation, enough to stand in the way of genuine agreement, and there is no evidence to establish that employees were coerced to vote a certain way.

Explaining to employees the terms of a proposed enterprise agreement and their effect

• [144] Section 188(4A) provides that the Commission cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless it is satisfied that the employer complied with subsection 180(5). Section 180(5) of the Act provides that the employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, have been explained to the employees employed at the time who will be covered by the agreement; and

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

• [145] Section 180(6) provides that without limiting s.180(5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

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

• [146] Principles 8-14 of the SoPs provide guidance in relation to the requirement in s.180(5).

• [147] Principles 8 and 9 provides guidance in relation to a pathway for compliance in relation to s.180(5) and where a proposed enterprise agreement will replace an existing enterprise agreement. However, in this case, that pathway cannot be relied on by the Employer because there is no evidence of the existence of a current agreement. Indeed, Mr Dunbar's evidence during the hearing is that this would be the first enterprise agreement that employees covered by the Proposed Agreement have entered into with the Employer.

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

• [150] Principles 12 - 13 of the SoPs provide the following guidance in relation to the requirement in s.180(5):

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

(a) by giving the employee, or ensuring that 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 Commission 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 s.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 s.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.

• [151] Principle 14 of the SoPs also provides guidance in relation to ss.180(5)(b) and 180(6) and states:

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 s.180(6), the Commission 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

• [152] Also relevant is principle 18 of the SoPs which states:

1. An enterprise agreement will generally not have been genuinely agreed to by the employees covered by the agreement unless the agreement was the product of an authentic exercise in agreement-making between the employer(s) and employees in one or more enterprises, and the employees who voted for the agreement had an informed and genuine understanding of what was being approved.

• [153] As noted above, the AWU has submitted that there are deficiencies in the way in which the Proposed Agreement has been explained to the employees as set out in the Form F17B filed by the Employer such that the Commission cannot be satisfied that the employees who voted for the Proposed Agreement had an informed and genuine understanding of what was being approved, pursuant to principle 18 of the Statement of Principles on Genuine Agreement (SoPs).

• [154] In support of its objection the AWU notes that the Employer's Form F17B says the following in response to question 22 which asks "What steps were taken by the employer to explain the terms of the Agreement?":

Employees were encouraged to ask questions which were answered, and employees were advised of the availability of their union representative for further questions. Employer and Union Delegate made themselves available throughout the entire process to answer any questions employees may have in regards to the agreement.

Prior to the vote, the terms of the agreement were explained to the employees. The employees were informed of their wages, conditions and increases. Employees were informed that the agreement incorporated the award, and that no conditions were less than the award. Employees were encouraged to ask questions which were answered.

• [155] The AWU noted that there is no reference to any 'existing agreement' that the Proposed Agreement was apparently replacing in the NERR or the Proposed Agreement however in the Form F17 filed with the Initial Application an existing agreement was explicitly referred to:

The terms of the new agreement were explained to the employees. As the new agreement was a replacement to an existing agreement, the employees were informed that their wages, conditions and increases would be maintained, but that some changes to the wording of clauses had to be made to enable the company to continue to tender for government funded work. Employees were advised that there were a number of improvements made to the agreement dealing with apprentice training and development; health and safety including hot weather guidelines; increased casual loading for casuals who were refused conversion to permanent employment; family violence leave; and a comprehensive impairment policy. Employees were informed that the agreement incorporated the award, and that no conditions were less than the award. Employees were encouraged to ask questions which were answered and employees were advised of the availability of their union representative for any further questions.

• [156] The AWU also noted that the Employer's Form F17B states the following in response to question 24 which asks "When the employer explained the terms of the agreement, and the effect of those terms, to the relevant employees, what was done to take into account the particular circumstances and needs of the relevant employees?":

Prior to the vote, the agreement was explained in clear terms to the employees. The explanations were, as far as possible, given in simple language to address any language or literacy issues that employees had. The Industrial Officer and Employer made themselves available throughout the process for any questions.

• [157] The AWU submitted that the Commission cannot be satisfied that the employees who voted for the Proposed Agreement had an informed and genuine understanding of what was being approved pursuant to clause 18 of the Statement of principles because:

• there is no evidence of what "the old agreement" is;
• there is no evidence as to what information was provided about how the "explanations were, as far as possible given in simple language to address any language or literacy issues that employees had".

• [158] I accept that there is no evidence of an existing agreement applying to the employees. In this respect the explanation of the Proposed Agreement accompanying the Initial Application would have been deficient if representations were made about the differences between the Proposed Agreement and "existing agreement" in circumstances where there was no "existing agreement". However, the Initial Application was withdrawn and the Current Application was made. The explanation provided in relation to the Proposed Agreement provided to employees on 26 July 2023 as described in the Form F17B accompanying the Initial Application does not assist the Employer in relation to s.180(5) and if anything, means that subsequent explanations warrant careful consideration.

• [159] It is apparent from the Form F17B that the steps that the Employer is now seeking to rely on in satisfaction of s.180(5) are as follows:

1. Employees were encouraged to ask questions which were answered.
2. Employees were advised of the availability of their union representative for further questions.
3. The Employer and a union delegate made themselves available throughout the process to answer any questions employees may have had in regards to the Proposed Agreement.
4. On 23 July 2024, prior to the vote, the terms of the Proposed Agreement were explained to employees at a toolbox meeting and during this meeting:
   • employees 'were informed of their wages, conditions and increases';
   • employees were informed that the Proposed Agreement incorporated the Award;
   • employees were informed that no conditions were less than the Award; and
   • employees were encouraged to ask questions which were answered;
   • the explanations were, as far as possible, given in simple language to address any language or literacy issues employees had; and
   • the industrial officer and Employer made themselves available throughout the process for questions.

• [160] On 15 August 2024 the Commission wrote to the parties stating that, in accordance with the President's statement about CFMEU agreements issued on 30 July 2024, the Commission was seeking further information for applications where any branches of the CFMEU were an applicant, employee bargaining representative, or signatory to an agreement and that the documents sought would assist the Commission in determining whether it is satisfied under the requirements of Act including the genuine agreement requirements in Part 2-4. The correspondence stated that all parties are encouraged to submit applications which contain all relevant supporting documentation and that among the types of information requested were copies of any document functioning as explanatory material to the agreement, including summaries of the terms and comparisons of the agreement to the Modern Award or previous agreements.

• [161] The Commission again wrote to the parties on 16 September 2024 seeking, if available, a copy of any document functioning as explanatory material to the Proposed Agreement (e.g. summaries of the terms and comparisons of the agreement to the Modern Award or previous agreements if available). The CFMEU responded on 20 September 2024 stating:

"This was achieved by Mr Paul Dunbar at a Toolbox meeting with employees prior to the vote on the Agreement".

• [162] The CFMEU was a bargaining representative for the Proposed Agreement, and it is apparent that it was Mr Dunbar of the CFMEU that provided an explanation about the Proposed Agreement at the Toolbox meeting on 23 July 2024 prior to the vote. In this regard, principle 11 of the SoPs provides that the Commission may have regard to any explanation of the proposed enterprise agreement given to employees by one or more employee organisation(s) acting as a bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.

• [163] Principle 12 contemplates that an employee may be provided with an oral explanation in order to meet the requirements of s.180(5) but goes on to say that the Commission may take into account whether there is a written record or summary kept of the oral explanation. It is apparent that no other documentation was provided to employees that explained the terms of the Proposed Agreement and their effect beyond the oral explanation of Mr Dunbar. It is also apparent that no written record or summary of the oral explanation was kept.

• [164] Principle 13 states that the employee should have a reasonable opportunity to attend the oral explanation. There is no suggestion that the employees did not have a reasonable opportunity to attend the oral explanation.

• [165] However, the Form F17B and response to the Commission on 20 September 2024 is of little assistance in understanding what was said to employees.

• [166] In Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services[139] (Ditchfield) the Full Bench of the Commission summarised the propositions arising from Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd (One Key Workforce (No 1))[140] in which Flick J considered the scope and substance of an employer's obligation under s.180(5) of the Act, as follows:

"[65] First, whether an employer complied with the obligation in s.180(5) depends on the circumstances of the case.

[66] Secondly, the focus of the enquiry whether an employer has complied with s.180(5) is first on the steps taken to comply, and then to consider whether;

• the steps taken were reasonable in the circumstances; and
• these were all the reasonable steps that should have been taken in the circumstances.

[67] Thirdly, the object of the reasonable steps that are to be taken is to ensure that the terms of the agreement, and their effect, are explained to employees in a manner that considers their particular circumstances and needs. This requires attention to the content of the explanation given.

[68] Fourthly, an employer does not fall short of complying with the obligation in s.180(5) of the Act merely because an employee does not understand the explanation provided."[141]

• [167] The Full Bench in Ditchfield went on to say that the content of the explanation given is an important consideration in assessing whether all reasonable steps were taken for the purposes of s.180(5) as made clear by the Full Court of the Federal Court in One Key.[142] In this regard, the Full Court in One Key found in that matter:

"112 It is common ground that the Commission was never told what was said to the relevant employees. It was simply told that they had been given an explanation of the terms of the Agreement and the effect of those terms. In effect, this amounted to little more than a self-serving statement that the employer had complied with its obligation under the Act. OKW contended that the fact that it made such a statement in a statutory declaration was significant. It is not. As the CFMEU argued, whether all reasonable steps were taken to ensure that the effect of the terms of the Agreement was explained in an appropriate manner is a question of substance, not form. The recital of a conclusion on the very question the Commission was required (through an evaluative process) to determine is not, without more, a sufficient basis for the satisfaction of the statutory test. In other words, a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach a state of satisfaction. OKW submitted that if the Commission had erred in this respect, it was an error in fact finding or an error in process, which would be an error within its jurisdiction. We reject this submission. In order to reach the requisite state of satisfaction that s 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement. It is true that the Act does not expressly say that. But the question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act; it may also be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-44 (Mason J).

113 A consideration of the subject-matter, scope and purpose of the relevant provisions of the Fair Work Act indicates that the content of the explanation and the terms in which it was conveyed were relevant considerations to which the Commission was bound to have regard. The absence of that information meant that the Commission was not in a position to form the requisite state of satisfaction. Put differently, without knowing the content of the explanation, it was not open to the Commission to be satisfied that all reasonable steps had been taken to ensure that the terms and their effect had been explained to the employees who voted on the Agreement or that they had genuinely agreed to the Agreement.

114 The following considerations point inexorably to that conclusion.

115 The Commission was required to be satisfied that OKW had taken "all reasonable steps to ensure" that both the terms and the effect of the terms had been explained to the relevant employees as an element in the inquiry as to whether "genuine" agreement had been obtained from them. The agreed purpose of the obligation imposed on employers by s 180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.

116 In order for the employer to comply with the obligation it must take into account the particular circumstances and needs of those employees, including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative. That is made explicit in s 180(6). How could the Commission decide whether the steps the employer had taken were "all reasonable steps" unless it knew what the employees had been told before they cast their votes? Without knowing the terms in which the explanation had been conveyed how could the Commission form an opinion on the sufficiency of the explanation, particularly having regard to the considerations mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine agreement had been reached without having evidence upon which it could answer both these questions?

117 As there was no evidence of these matters before the Commission, it necessarily follows that the Commission purported to be satisfied that OKW's obligations under s 180(5) had been discharged without taking those matters into account. That was a jurisdictional error because the Commission did not have authority to make the decision unless its satisfaction had been informed by them. As is often the case, there are several ways of describing the error. It could be characterised as a misconception as to what the exercise of the statutory power entails or an error "as to an important attribute of the decision to be made": Graham at [68]. Equally it could be seen as a misunderstanding on the part of the Commission of the nature of the opinion it was required to form: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ). Had the Commissioner applied his mind to the question of what the putative explanation entailed, he would inevitably have inquired into its content and terms."[143]

• [168] It can be drawn from the above that in order to reach the requisite state of satisfaction that s.180(5) has been complied with, the Commission is required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the agreement.

• [169] There are six employees covered by the Proposed Agreement. They are Excavator Operators working on site at the Project. The demographic data in the Form F17B does not identify them as being part of any particular demographic group such as being from a non-English speaking background or being under the age of 21. The information before the Commission does not identify that the six employees have any specific needs, although it is stated that:

"The explanations were, as far as possible, given in simple language to address any language or literacy issues employees had".

• [170] At the hearing Mr Dunbar confirmed that the cohort of employees covered by the Proposed Agreement does not have an agreement in place and this was their first experience in working under an agreement negotiated by a union.

• [171] It was Mr Dunbar who delivered the oral explanation and Mr Dunbar attended the hearing with the CFMEU indicating that Mr Dunbar was willing to clarify issues of concern. The CFMEU submitted that in the conduct of proceedings before the Commission, the rules of evidence are, as observed by Evatt J in R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott[144] "...a method of inquiry best calculated to prevent error and elicit the truth."

• [172] The AWU, whilst a contradictor in the proceedings, was not present during the delivery of the oral explanation. It is unclear from the evidence filed with the Commission what was said to employees during the oral explanation given by Mr Dunbar on 23 July 2024. During the hearing I enquired as to what was said and required that Mr Dunbar provide sworn evidence in response. Mr Dunbar's evidence in relation to his general approach in explaining the terms and effect of an enterprise agreement was broadly that:

• what he does is the same for every agreement;
• the process he adopts is to go through the agreement; and
• he is reasonably thorough.

• [173] Mr Dunbar said he has "spent 20 years on the tools", he was an organiser for two years and the vernacular he uses is what construction workers understand. Mr Dunbar said he does not usually provide explanations but now gives an explanation to organisers as a part of their training. Mr Dunbar said he does however step in to provide an explanation when someone is sick or can't make it to a meeting and in the circumstances of the current matter, this is what occurred.

• [174] Mr Dunbar said the process with the employees covered by the Proposed Agreement went for over an hour. The evidence Mr Dunbar gave was framed as a combination of things he usually does in explaining the terms and effect of the agreement and things he did do in respect of the explanation on 23 July 2024. Mr Dunbar also made a number of observations and expressed opinions about the content of the Proposed Agreement and it is unclear as to whether these were communicated to the employees. I accept that Mr Dunbar gave truthful evidence to the Commission but it was apparent that Mr Dunbar's recollection was largely informed by what he usually does and not what he specifically said in relation to the Proposed Agreement on 23 July 2024. Without a written record of what was said, it would likely have been challenging to recall what was specifically said in an hour-long explanation months after the time it was provided. I have considered Mr Dunbar's evidence in that context. To assist in understanding Mr Dunbar's evidence, the table below compares Mr Dunbar's explanation, or likely explanation based on what he "usually" does, against each clause of the Proposed Agreement.

• starts with the scope of the agreement and explains who it covers;
• informs employees about the interaction with the Building Award and that the agreement takes precedence and where the agreement is silent the provisions of the award "may kick in" and that there are few instances where this might be the case, including "accident pay", maybe the additional Schedule X measures during Covid, "TOIL";
• would normally talk to employees about daily hire and weekly hire which is not articulated in the Proposed Agreement but is articulated in the Building Award and has ramifications for the notice period; and
  • said that in his personal experience weekly hire was how most people were engaged in civil construction whereas in "building and construction" daily hire is more likely as it is more itinerant.

Mr Dunbar "goes into the operation of the agreement" and informs employees that the agreement will come into effect "seven days after it is certified" by the Commission.

Mr Dunbar explains that the "base below the awards, the NES" can be found at clause 3.

Mr Dunbar said he would talk about the objectives of the agreement to:

• set the conditions of employment;
• safely complete quality works on time and on budget;
• respect and care for the environment.

In respect of clause 5 Mr Dunbar would say that this is the clause that articulates individual flexibility agreements.

Mr Dunbar said words to the effect that he always talks about consultation and he makes it clear to people that they do need to be consulted by their employer.

Mr Dunbar said that he explains that if there is a dispute employees have a right to be represented and the dispute resolution clause reflects that.

• he informed the employees that there are requirements under the contracts from government for indigenous content and they should expect in the future that a smoking ceremony would be undertaken by local indigenous people;
• he would inform employees that if they are indigenous themselves they may access certain types of leave.

Mr Dunbar said there is a "six week hurdle for being a casual" and if an employee is there on a "permanent and systemic basis" for six weeks then the Proposed Agreement says the employee is entitled to be full time.

Mr Dunbar said apprentices don't really apply to people who drive excavators but they do have traineeships and the Proposed Agreement talks about this.

Mr Dunbar said that in respect of clause 15 he would explain that employees have an entitlement to be trained not only in the identification of asbestos containing materials but also in the nationally recognised course in crystalline silica exposure.

Mr Dunbar said in respect of hours of work, hours of work under the Proposed Agreement are 36 hours per week and because it is the first time that employees would have likely worked under a RDO system he would explain that at the back of the agreement is a calendar that articulates 13 "set in stone" days off.

Mr Dunbar said "something new that is coming into civil now" is an additional 13 days which results in 26 RDOs per year (or one per fortnight) and under the Proposed Agreement employees can take them at their own leisure or save them until the end of the Project.

Mr Dunbar said words to the effect that there is shift work on the job and the Proposed Agreement itself "articulates the cut off time from the award and although they are not exactly the same as the award they are very similar".

• in respect of the difference between afternoon shift, night shift and day work, he explains penalty rates that apply to them; and
• "importantly that if the employer brings you on for only three days you will be entitled to double time not the standard shift penalties but if they were to bring you on a five day roster or more than a five day roster continuously then it is the actual shift penalties that apply".

• overtime and rostered days off together with hours of work; and
• the daily fares and travel allowance entitlement on an RDO which was taken out of the award in 2020 but maintained in the agreement.

• in respect of meals and rest breaks, he talks to workers about their entitlement to breaks;
• often people are confused about crib breaks and ask questions and he explains this is different to an entitlement to a meal allowance and if they do 10 hours or more they are entitled to 20 minutes paid at the relevant penalty rate.

Mr Dunbar said words to the effect that he would talk about clause 21 rest period, including the requirement to have 10 consecutive hours off during the rest period.

Mr Dunbar said words to the effect that he would talk about clause 22, income protection and in doing so laboured the importance of income protection which is through CIPQ and explained:

• that it is an insurance product and if something happens to you in an area that you are not insured in another way, an employee is looked after, their family is looked after and their mortgage can be paid
• CIPQ really comes into effect if an employee falls ill or becomes injured and wouldn't be covered by Workcover.

• he would go into redundancy contributions and the fund;
• under the Proposed Agreement and the current rate is $89;
• redundancy is something that is available to you between jobs;
• clause 23.4 is a very important clause because many in the construction industry have "holes in their superannuation" and once redundancy money is up to a certain level an employee can divert it into their superannuation.

Mr Dunbar said words to the effect that "superannuation is pretty much in line with SGA", the default fud is BUSS(Q) and the escalations of superannuation is articulated.

Mr Dunbar said words to the effect that because there were shift workers in the room he would address that shift workers get an extra week of annual leave and that there is a requirement to pay 17.5% leave loading.

Mr Dunbar said he then moves onto personal leave and clause 26.2 and explains that:

• under the old construction awards personal leave was not accrued on a weekly basis like the other awards; and
• the accrual for personal leave starts at three days on the day the employee starts and is then one day every month for the next 9 months; and
• on the first day of the anniversary of the employee's employment they are credited with another 12 days.

Mr Dunbar said words to the effect that long services leave is under state law and he didn't know what else he could be said other than it accrues over time and if an employee stay sin the industry long enough they time off and get paid for it.

Mr Dunbar said family violence leave is new to agreements in construction and he explains:

• it's new;
• it's important;
• that family violence is the scourge of our society and it's good to see companies agreeing to have family violence clauses.

Mr Dunbar said he spoke about family violence with the employees of coveted by the Proposed Agreement, their entitlement and that if they are involved in it and need to go to their employer about it the Proposed Agreement insists on confidentiality

Mr Dunbar said words to the effect that he talks about termination of employment, notice period and the additional week that employees are entitled to if over 45 years of age.

Mr Dunbar said in respect of time and wages records he says very little to people about this other than mentioning that there is a list of things that the employer must have and must keep track of.

Mr Dunbar said the training and related matters at clause 32 touches on the best practice principles (BPP) applicable to projects and this a is part of how some agreements come about. Mr Dunbar said there are entitlements under the BPP have these sorts of clauses for different types of training and that people should familiarise themselves with the principal contractor's training regime.

• the health and safety representatives clauses provide an entitlement to vote someone up to assist in bringing up safety issues and when employees do, the Proposed Agreement supports the person in that role;
• it is important to note that it is the employees on the job that vote and that is their democratic right, it is not their employer who elects the health and safety representatives.

Mr Dunbar said that in respect of the procedure dealing with safety incidents he lets people know:

• the importance of voting up a HSR;
• the process is a fairly set in stone way of dealing with safety issues on site that not only keeps people safe but informs people who the appropriate people are if work needs to cease if it is unsafe;
• it the HSR group that has that right in Queensland.

Mr Dunbar said the employer should be having these a minimum once a month so they can bring up issues.

• inclement weather provisions are very similar to what is in the award;
• if its raining and its dangerous you don't need to work in it but if its an emergency and you need to work in it, for a concrete pour for example, you are entitled to 200 percent rate under the Proposed Agreement;
• there is only a set amount of hours under the award and agreement and while it used to be 8 hours under awards it currently sits at 32 hours (under full employment) that can be used as wet weather hours that the employer must pay;
• employees have an entitlement for work to cease at certain temperatures, being 35 degrees or 29 degrees and 75 percent humidity;
• that there is a process in place including an obligation for people to measure the heat and find work in shade and other places;
• he would go through the fact that the employer cannot pretend it's not going to be a hot day tomorrow and carry on as usual, that there has to be thought and the HSR has to be involved in determining whether it is hot and what are the appropriate tasks to be scheduled for the following day.

Mr Dunbar said he then talks to people about their employer's obligations for boots, shirts, trousers and a high visibility winter jacket which would only be used about three days per year in Queensland and said these things were bolstered under the award in 2020.

• he didn't "touch on a whole lot" in relation to this clause;
• the clause is an obligation that employers lend their minds to using quality, locally sourced domestic products and is somewhat aspirational.

Union Representatives and Delegates, Union Training Leave and Union Delegate Facilities

• he likes to talk extensively about the rights of delegates, if there is one, including what they can and can't do;
• if someone does put their hand up to be a delegate and is voted in by their peers he explains what is expected of them and what they are entitled to including the five days of paid leave for training; and
• that if an employee is a delegate there are facilities that need to be provided to them in doing their job.

Mr Dunbar said words to the effect that he talks about the pay rates and he told the workers that "three percent per year is what's in this agreement" which he said was probably indicative of it being negotiated at a time when there was a lull in the market.

Mr Dunbar said he did not go into the plumbing rates of pay as they are not applicable to the workers and he didn't see a point in wasting their time or his in talking about it.

• he would go through the allowances;
• he wouldn't necessarily touch on clause 43.6 dealing with plumbing and fire; but he would say there are a couple of companies that do have cohorts of workers that are covered by both t awards and when he does those meetings he will traverse the full extent of the allowances and often the organisers would do that with someone from another union.

Mr Dunbar said people can read the definitions for themselves.

• there are a range of different classifications that people can work on under the Proposed Agreement depending on what they are driving but he didn't go out onto site and look at the equipment;
• he wouldn't go into the additional plumbing classifications.

• he goes into the impairment policy every time which he believes is the "Rolls Royce" of impairment policies;
• the policy does not just deal with drugs and alcohol but deals with fatigue
• the policy was written by people from Adelaide University and Flinders University;
• in situations where someone has drug or alcohol problem there are obligations to look after them and assist them in getting back to work to be a functioning member of society.

• [175] There is nothing wrong with an employer collaborating with bargaining representatives to provide relevant explanations and it may in fact be very useful. In McDonald's Australia Pty Ltd on behalf of Operators of McDonald's outlets McDonald's)[145] the applicant relied on a number of documents summarising the agreement which were posted on its internal platform 'Metime' to support the contention that it took all reasonable steps to ensure the terms of the agreement and the effect of those terms, were explained to employees.[146] The Commissioner at first instance observed that these were the SDA's documents and not the applicant's documents.[147]Those documents included various summary documents customised for employees in each state and territory in which they were working and in Broken Hill. The Commissioner at first instance dismissed the application and in doing so said:

'[74] I do not accept the proposition that electronic posting on Metime of SDA documents (or manual posting on a notice board at the workplace or provision of such documents at information sessions) satisfies the obligations on the applicant itself to provide such information. The applicant cannot come before Fair Work Australia saying it did not actually provide the information contemplated by s.180(5) of the Act, but the application should be approved because another organisation or person provided such information. It is irrelevant, in terms of satisfying the applicant's own obligations for the purposes of s.180(5) of the Act, whether, for example, an officer of a union wishes to extol what he or she personally perceives as the benefits of an enterprise agreement and, in so doing, provides some summary of the terms of the agreement (as in the case of Exhibit 9-SDA15), and the applicant determined to post that commendation on Metime. Similarly, the minimalist brochure in Exhibit 9-SDA11, for South Australia, is bereft of any information which reasonably could be regarded as satisfying the requirements of s.180(5) of the Act - but nothing turns on that, because it was the applicant's statutory responsibility to comply with s.180(5), not that of the South Australian Branch of the SDA.

[75] I do not consider the applicant's own obligations under s.180(5) are somehow delegable in the way that has been adopted in this matter. If the applicant's contention were to be accepted that it can rely on the SDA's materials as having discharged its own responsibilities under s.180(5) of the Act, then there could be, by extension to other applications that may come before Fair Work Australia, some perverse outcomes. For instance, an employer could come to Fair Work Australia saying it had not provided any information whatsoever to employees proposed to be covered by an enterprise agreement, but the application should be approved because: (a) the employer was aware another organisation, such as a union, had provided a summary document for the information of employees/members in recommending a vote for or against a particular agreement; and (b) the employer was aware these union materials had been posted on the staff notice board or the union notice board at the workplace; or (c) the employer had, for example, allowed a union to disseminate its materials concerning the enterprise agreement on the internal email system at the workplace.

[79] I would dismiss the application as I have not been satisfied the requirements of s.180(5) of the Act have been met. The evidence does not support a conclusion the applicant properly discharged its own responsibilities concerning the provision of documentation such as might otherwise satisfy the requirements of s.180(5)(a) of the Act.'[148]

• [176] The Full Bench found, in an appeal of that decision that:

'[29] These extracts reveal a number of errors. First, the Commissioner has not accurately stated the test under s 180(5)(a). The heading and introductory paragraphs of this aspect of the decision express the test as an absolute requirement to ensure particular outcomes are achieved. The section does not establish any such requirement. It requires only that the employer take reasonable steps to ensure that the terms and conditions are explained to employees. In misstating the test the Commissioner erred.

[30] Secondly there is no requirement in the Act that there be a full explanation of the terms of the agreement prior to the employer requesting employees vote on an agreement. The requirement in s 180(5)(a) is that the employer take reasonable steps to ensure that explanations are provided. Under s 180(1) the employer must comply with this requirement before requesting employees to approve an enterprise agreement. In our view these provisions do not preclude explanations being given during the access period. It is open to an employer to make arrangements for subsequent explanations prior to requesting employees to vote. If the arrangements are reasonable steps, s 180(5)(a) is satisfied.

[31] Thirdly there is no impediment in the Act to collaborate with bargaining representatives to provide relevant explanations. The Commissioner rejected certain explanations because they were given by the SDA. In some cases SDA documents were communicated by McDonald's by electronic means. In our view the Commissioner was quite wrong to disregard these steps. In our view an employer would be taking reasonable steps to ensure terms are explained to employees if it collaborated with a bargaining representative to arrange for this to be undertaken.

[32] Considering the evidence for ourselves we are satisfied that the employer took reasonable steps to ensure that the agreement was explained to employees. The documents produced by the SDA and McDonald's were comprehensive and detailed. They clearly satisfy the obligations of the employer. Again, we commend the collaborative approach of the parties.'[149]

• [177] As noted by the Full Court of the Federal Court in One Key[150] the purpose of the obligation imposed on employers by s.180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.

• [178] It is apparent from the Form F17B that the steps that the Employer is now seeking to rely on in satisfaction of s.180(5) are largely dependent on explanations provided by the CFMEU. In the circumstances of this matter, the Proposed Agreement is a detailed document and its terms out a comprehensive suite of entitlements and obligations. While the employees likely stand to benefit from the terms in the Proposed Agreement, it does not automatically follow that they had an informed and genuine understanding of what was being approved. I agree with the Full Bench in McDonald's that there is no requirement in the Act that there be a full explanation of the terms of the agreement prior to the employer requesting that employees vote on it.[151] However, the particular circumstances in this matter warrant consideration. While the Form F17B filed in respect of the Initial Application explicitly referred to an existing agreement, the employees did not have an existing enterprise agreement in place and the Proposed Agreement would be their first enterprise agreement with the Employer. If the Proposed Agreement was to come into effect, it would likely affect their terms and conditions of employment in a substantial way. The steps taken and content of the explanation require consideration in this context.

• [179] Seeking the assistance of the CFMEU, as a bargaining representative with knowledge of the terms of the Proposed Agreement, to explain its terms and effect of the Proposed Agreement was a reasonable step. However, in consideration of whether the Employer has taken all reasonable steps, the Employer should have given further thought and direction as to the circumstances of its workforce and how that step would be executed. It is uncontroversial that employees were provided with a copy of the Proposed Agreement in advance of them voting for it and had access to this document for a considerable period. However, this is not in itself enough to satisfy the Commission that the steps in s.180(5) have been taken. Deputy President Masson found in relation to an enterprise agreement application:

'[29] It is plainly apparent that the explanation of the terms of the Agreement, such as it was, was confined to the provision of a copy of the Agreement with an offer to employees to seek assistance from employee bargaining representatives if they were unsure or didn't understand the terms of the Agreement. That approach falls well short of the requirements of s.180(5). The mere circulation of the Agreement is not an explanation of the Agreement at all let alone meeting the higher standard of taking all reasonable steps'.[152]

• [180] While the nature of the workforce is such that it is appropriate to explain content in plain and simple terms, the explanation provided by Mr Dunbar appears to have been in the form of a very 'high level' summary delivered on the day of the vote, and his evidence appeared largely based on his recollection of what he usually does in explaining an enterprise agreement. The evidence does not establish that Mr Dunbar explained:

• the nominal expiry date and what the effect of the Proposed Agreement's nominal term was;
• the effect of clause 5 dealing with individual flexibility arrangements;
• the consultation requirements in any real detail (including the circumstances in which the clause is to apply and when consultation is required);
• the dispute resolution process beyond the right to appoint a representative;
• the terms applicable to casual employees beyond a very high level summary of the casual conversion clause;
• the span of hours (beyond an explanation that ordinary hours are 36 per week);
• overtime rates applicable for working outside that span; the rates applicable to weekend work;
• the ability of the Employer to direct employees to take annual leave;
• the interaction between annual leave loading and shift loading; penalty rates that may be applicable for working public holidays;
• which allowances may be relevant to the employees and the circumstances in which they would be paid (beyond his assertion that he would 'go through the allowances' and wouldn't necessarily touch on clause 43.6);
• or the classifications of relevance to the Excavator Operator employees.

• [181] Mr Dunbar's explanation concerning crib breaks also appears to have been inaccurate or at the very least unclear when considering the content of clause 20. Unlike the situation in McDonald's, there were no written explanations setting out further detail that the employees could access ahead of the vote.

• [182] I am not satisfied that the steps taken by the employer, considered objectively, were sufficient to enable the relevant employees to understand how wages and working conditions might be affected by voting in favour of the Proposed Agreement in circumstances where:

• this was the first enterprise agreement that would apply to them;
• the explanation provided in relation to the Proposed Agreement provided to employees on 26 July 2023 as described in the Form F17B accompanying the Initial Application references an 'existing agreement' that did not exist and is not and cannot be relied on;
• the oral explanation in relation to the Proposed Agreement was provided on 23 July 2024 and occurred prior to the vote that same day such that there was a very narrow opportunity for employees to consider the limited oral information relayed to them before casting a vote; and
• the Proposed Agreement sets out a comprehensive set of terms, it is apparent that many of these terms were not explained with a level of detail reasonably expected to support an understanding of those terms and there is no written record of the explanation that would suggest otherwise.

• [183] I am not satisfied that the Employer has taken all the reasonable steps that should have been taken in the circumstances.

• [184] For completeness, I note that Principle 19 of the SoPs provides:

1. If one or more employee organisations(s) acting as bargaining representative(s) for a significant proportion of the employees covered by the enterprise agreement:

(b) does not have concerns that the agreement was not genuinely agreed to by the employees covered by the agreement, then this should be given significant weight by the Commission in considering whether the agreement has been genuinely agreed.

• [185] The CFMEU does not have concerns that the Proposed Agreement was not genuinely agreed to and in a broader consideration as to whether the Proposed Agreement has been genuinely agreed this would carry significant weight however this does not overtime the statutory requirement in s.180(5).

• [186] I am not satisfied that the Applicant has taken all reasonable steps to ensure that the terms of the Proposed Agreement, and the effect of those terms, were explained to the employees employed at the time who will be covered by the agreement as contemplated by s.180(5) of the Act and I have found above that the non-compliance with s.180(5) cannot be remedied by s.188(5). As such, I am not satisfied that the Proposed Agreement has been genuinely agreed to by the employees covered by the Proposed Agreement as required by s.186(2) of the Act, the application is dismissed.

Mr E. Dalgeish for the Construction, Forestry and Maritime Employees Union.

[2] Construction, Forestry and Maritime Employees Union [2024] FWC 9.

[3] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers' Union, The [2024] FWCFB 246.

[8] Gold Coast Light Rail Stage 3 | GoldlinQ

[9] Construction, Forestry, Mining and Energy Union v Otswald Bros Pty Ltd [201] FWA 2484.

[10] Construction, Forestry, Mining and Energy Union v Otswald Bros Pty Ltd [201] FWA 2484 at [95] - [96].

[11] Form F17B, response to question 29.

[14] Construction, Forestry and Maritime Employees Union [2024] FWC 9 at [19].

[15] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers' Union, The [2024] FWCFB 246 at [22].

[16] [2017] HCA 55.

[17] [2017] HCA 55 at [21].

[18] [2017] HCA 55 at [22].

[19] [2017] HCA 55 at [25].

[20] [2017] HCA 55 at [26].

[21] [2017] HCA 55 at [27].

[22] (1935) 54 CLR 387; [1935] HCA 79.

[23] [2017] HCA 55 at [32].

[24] [2017] HCA 55 at [40].

[25] [2017] HCA 55 at [45].

[27] [2005] AIRC 622 at [13], [63].

[30] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101.

[31] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [39].

[32] [2024] FWC 9 at [23].

[33] [2024] FWC 9 at [23].

[34] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101.

[35] [2024] FWC 9 at [20] - [21].

[36] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101.

[37] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [27].

[38] In this regard the Full Court of the Federal Court cited, as the basis for this principle, R v Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 68; (1982) 153 CLR 402 (at 407 per Gibbs, Mason, Wilson, Brennan, Deane and Dawson JJ),

[39] In this regard the Full Court of the Federal Court cited, as the basis for this principle, v Watson; Ex parte Australian Workers' Union [1972] HCA 72; (1972) 128 CLR 77 (at 79 per Barwick CJ); R v Gough; Ex parte Municipal Offıcers' Association Australia [1975] HCA 30; (1975) 133 CLR 59 (at 69 per Gibbs, Stephen, Mason and Jacobs JJ);

[40] In this regard the Full Court of the Federal Court cited, as the basis for this principle, Re Application by Prichard; Re Federated Clerks' Union of Australia (SA Branch) (1985) 12 FCR 66 (at 77-78 per Gray J).

[41] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [42].

[42] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [43].

[43] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [44].

[44] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [45] - [47].

[45] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers' Union, The [2024] FWCFB 246 at [15]. The cases cited by the Full Bench from which these principles have been distilled are included.

[46] R v Aird; ex parte Australian Workers' Union (1973) 129 CLR 654, [1973] HCA 53 at 659; Re Australian Workers' Union.

Ex parte Construction Forestry Mining and Energy Union [2002] FCAFC 150; (2002) 120 FCR 527, (2002) 120 FCR 527 at [44].

[47] R v Williams; Ex parte Australian Building, Construction Employees' and Builders Labourers' Federation (1982) 153

CLR 402, [1982] HCA 68 at 408; Australian Manufacturing Workers' Union v ResMed Limited [2014] FWCFB 3501 at [34].

[48] Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48, (2012) 212 IR 206 at [50]- [52];

Australian Manufacturing Workers' Union v ResMed Limited [2014] FWCFB 3501 at [34].

[49] R v Gough; Ex parte Municipal Officers' Association (1975) 133 CLR 59, [1975] HCA 30 at 69; Australian Manufacturing

Workers' Union v ResMed Limited [2014] FWCFB 3501 at [34].

[50] R v Cohen ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, [1979] HCA 46 at 587; Re Electrical Trades

Union of Australia v Waterside Workers Federation of Australia (1982) 59 FLR 78, (1982) 1 IR 349 at 87; Australian

Manufacturing Workers' Union v ResMed Limited [2014] FWCFB 3501 at [34].

[51] R v Aird; ex parte Australian Workers' Union (1973) 129 CLR 654, [1973] HCA 53 at 659; Co-operative Bulk Handling

Ltd v Waterside Workers' Federation of Australia [1980] FCA 141, (1980) 49 FLR 355 at 361.

[52] R v Gough; Ex parte Municipal Offıcers' Association Australia (1975) 133 CLR 59, [1975] HCA 30 at 68-69;

Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48, (2012) 212 IR 206 at [52]- [53].

[53] R v Gough; Ex parte Municipal Offıcers' Association Australia (1975) 133 CLR 59, [1975] HCA 30 at 68-69;

Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48, (2012) 212 IR 206 at [52]- [53].

[54] Co-operative Bulk Handling Ltd v Waterside Workers' Federation of Australia [1980] FCA 141, (1980) 49 FLR 355 at

363-364; Australian Manufacturing Workers' Union v ResMed Limited [2014] FWCFB 3501 at [34]

[57] AWU Submissions at [40], [51].

[58] [2020] FCAFC 195.

[59] AWU Submissions at [41] - [42].

[60] [2020] FCAFC 195 at [25].

[62] [1984] HCA 62; (1984) 56 ALR 149 at [50].

[63] AWU Submissions at [50] with reference to Re John Holland Queensland Pty Ltd [2022] FWC 1524 at [238] to [297].

[64] AWU Submissions at [53], Table 1.

[67] Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48.

[68] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers' Union, The [2024] FWCFB 246 at [16].

[69] Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48 at [41].

[70] Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48 at [44].

[71] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers' Union, The [2024] FWCFB 246 at [17].

[72] See clause 1.1.2 of the Proposed Agreement.

[73] Proposed Agreement, Appendix B, Construction Worker/Labourer Classifications, CW6 and CW7.

[74] Construction, Forestry and Maritime Employees Union [2024] FWC 9 at [19].

[75]Statement of Nathan Stewart dated 7 November 2023.

[76] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers' Union, The [2024] FWCFB 246 at [18].

[77] [2022] FCAFC 101.

[78] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers' Union, The [2024] FWCFB 246 at [14].

[87] AWU Submissions at [58] - [59], [62].

[99] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers' Union, The [2024] FWCFB 246 at [27].

[100] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers' Union, The [2024] FWCFB 246 at [32].

[101] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers' Union, The [2024] FWCFB 246 at [33].

[102] AWU Submissions at [90] - [91].

[104] [2018] FCAFC 77; (2018) 262 FCR 527 at [157]

[105] CFMEU Speaking Notes citing Re KCL Industries Pty Ltd [2016] FWCFB 3048 at [31].

[106] Aldi Foods Pty Limited v SDA [2017] HCA 53 at [84].

[107] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [152].

[108] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [152].

[109] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [152].

[110] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [2].

[111] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [3].

[112] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [3].

[113] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [4].

[114] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [5].

[115] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [168].

[116] Re KCL Industries Pty Ltd [2016] FWCFB 3048 at [23].

[117] Re KCL Industries Pty Ltd [2016] FWCFB 3048 at [31].

[118] Re KCL Industries Pty Ltd [2016] FWCFB 3048 at [31].

[119] Re KCL Industries Pty Ltd [2016] FWCFB 3048 at [32].

[120] Re KCL Industries Pty Ltd [2016] FWCFB 3048 at [35].

[121] Re KCL Industries Pty Ltd [2016] FWCFB 3048 at [36].

[122] Re KCL Industries Pty Ltd [2016] FWCFB 3048 at [36] - [37].

[123] McMah Pty Ltd [2015] FWCA 253.

[124] CEPU v Main People Pty Ltd [2015] FWCFB 4467.

[125] CEPU v Main People Pty Ltd [2015] FWCFB 4467 at [24]

[126] Re KCL Industries Pty Ltd [2016] FWCFB 3048 at [39].

[127] Revised Explanatory Memorandum at [725], Re KCL Industries Pty Ltd [2016] FWCFB 3048 at [36]..

[128] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [155].

[129] Revised Explanatory Memorandum at [726].

[130] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [151] - [153].

[131] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [151].

[132] [2019] FWCFB 7599.

[133] Appeal by KCL Industries Pty Ltd [2016] FWCFB 3048.

[134] [2018] FCAFC 77.

[135] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [155].

[137] Revised Explanatory Memorandum to the Fair Work Legislation (Secure Jobs, Better Pay) Bill 2022 at [712].

[138] [2020] FWCFB 3438.

[139] [2019] FWCFB 4022.

[140] Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 at [94] - 109].

[141] Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services [2019] FWCFB 4022 at [65 - [68].

[142] Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services [2019] FWCFB 4022 at [65 - [69].

[143] [2018] FCAFC 77 at [112]- [117].

[144] (1933) CLR 228, 256.

[145] [2010] FWA 1347.

[146] [2010] FWA 1347 at [60].

[147] [2010] FWA 1347 at [60].

[148] [2010] FWA 1347 at [74], [75], [90].

[149] [2010] FWAFB 4602 at [29] - [32].

[150] [2018] FCAFC 77.

[151] [2010] FWAFB 4602 at [30].

[152] [2021] FWC 4672 at [29].

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