Fair Work Act 2009

s.604 - Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union

Appeal against decision [ [2019] FWCA 8471] of Commissioner McKinnon at Melbourne on 13 December 2019 in matter number AG2018/1899.

[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal, for which permission is required, against a decision of Commissioner McKinnon issued 13 December 2019 (final decision).[1] The decision concerned an application by Mechanical Maintenance Solutions Pty Ltd (MMS) for the approval of the MMS Latrobe Valley Enterprise Agreement 2018 (Agreement). The Commissioner approved the Agreement with undertakings and, in doing so, determined to alter the description of the role of an employee signatory on the signature page of the Agreement pursuant to s 586 of the Fair Work Act 2009 (FW Act).

[2] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission's powers on appeal are exercisable only if there is error on the part of the primary decision maker. There is no right to appeal and an appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is "in the public interest to do so". Permission may otherwise be granted on discretionary grounds.

[3] In its notice of appeal lodged on 2 January 2020, the CFMMEU set out the following substantive grounds of appeal:

1. The Commissioner erred in finding that the application for approval of the Agreement that was not made in accordance with s 185 of the FW Act could be remedied by s 586 of the FW Act on the basis of finding that Wayne Silvester was an employee covered by the Agreement.

2. The Commissioner erred in identifying the extent of the material omissions in the explanation given to employees as required by s 180(5) of the FW Act.

3. The Commissioner erred in determining that she could be satisfied that there were no other reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees who voted upon it.

4. The Commissioner erred by excepting undertakings ostensibly given under s 190 of the FW Act in order to remedy material omissions in the explanation given to employees as required by s 180(5) of the Act.

5. Further and in the alternative the Commissioner erred in finding that the undertakings given by the applicant would not result in substantial changes to the Agreement.

6. Further and in the alternative the undertakings accepted by the Commissioner were insufficient to resolve the absence of genuine agreement.

[4] Ground 5 was not pressed by the CFMMEU at the hearing of the appeal.

[5] MMS, the employer covered by the Agreement, provides maintenance services to power stations in the Latrobe Valley, Victoria. The Agreement applies to work performed at the Loy Yang A, Loy Yang B and Yallourn power stations as well as the MMS workshop in Morwell, Victoria.

[6] MMS issued a notice of representational rights (NERR) to its employees on 15 February 2018, and bargaining then commenced for a new enterprise agreement to replace two existing greenfields agreements, the Mechanical Maintenance Solutions P/L (MMS) Latrobe Valley Power Stations (AMWU and CFMEU) Greenfields Enterprise Bargaining Agreement 2012 - 2016 and the Mechanical Maintenance Solutions Pty Ltd (MMS) Latrobe Valley (Victoria) Power Industry Electrical (ETU) Greenfields Enterprise Agreement 2013 (Greenfields Maintenance Agreement and Greenfields Electrical Agreement respectively). MMS appointed a consultant, Mr Ryan Murphy, to assist it in the conduct of the bargaining with the employees. MMS had five employees at the time, four of whom nominated Mr Luke Brown, the son of the managing director of MMS, as their employee bargaining representative pursuant to s 176 of the FW Act. However during the course of bargaining Mr Brown was redeployed to another state. Two of the employees provided with the NERR left the business and another three employees joined the business. Just prior to the Agreement going to vote Mr Wayne Silvester began to represent three other employees in the bargaining, without ever being formally nominated as a bargaining representative in accordance with s 176.

[7] When the Agreement was put to a vote on 4 May 2018, four of the five employees who would be covered by it voted to approve it. The Agreement was then signed (on 6 May 2018) by Mr Tim Brown, the Managing Director of MMS, and (on 7 May 2018) by Mr Silvester. Underneath Mr Silvester's signature, the word "Employee" was typed to indicate his position, and the words "Employee bargaining repersentative" [sic] were typed underneath this to indicate the "Authority of Person to Sign".

[8] MMS applied for approval of the Agreement on 7 May 2018. On 24 May 2018, Mr Silvester filed a purported Form F18A declaration in relation to the application for approval of the Agreement. In his declaration Mr Silvester described his occupation as "Project and Stores Coordinator". In response to the proposition in the standard form F18A "I was a bargaining representative for the Agreement because one or more employees appointed me in writing to represent their industrial interests in accordance with s.176(1)(c) of the Fair Work Act 2009", Mr Silvester ticked the box "No". He went on the explain in the declaration:

"1. At the start of negotiations another employee was appointed, in writing, as bargaining representative. That employee left MMS about half way through the negotiations.

2. I took over as bargaining representative as I am a full time employee.

3. Although not in writing I was verbally appointed by three of the employees."

[9] Mr Silvester went on to tick the box "Yes" in answer to the proposition "The employees I represent support the approval of the Agreement by the Fair Work Commission".

[10] The CFMMEU together with the Australian Manufacturing Workers' Union (AMWU), the Australian Workers' Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), sought to be heard in opposition to approval of the Agreement. In a decision published on 23 October 2018[2] (first decision) the Commissioner determined, on the basis that they were covered by the greenfields agreements, that she would accept submissions from the CFMMEU and the AMWU on the requirements in the FW Act in relation to the dispute settlement procedure and the better off overall test even though she did not consider they had a right to be heard, but declined to hear further from the AWU or the CEPU.

[11] In a further decision issued on 14 December 2018[3] (second decision), the Commissioner approved the Agreement with undertakings. The second decision included a finding that the terms of the Agreement had appropriately been explained to the workforce prior to the vote[4] and that there were no other reasonable grounds for believing that the Agreement had not been genuinely agreed notwithstanding that "...one of the employees, who acted as an employee representative in bargaining, was not formally appointed in writing as a bargaining representative...".[5]

[12] The CFMMEU then lodged appeals against the first decision, the second decision, and some interlocutory decisions made by the Commissioner prior to the second decision. The third of these appeals was not pressed. The other two appeals were the subject of a Full Bench decision issued on 21 June 2019[6] (appeal decision). There were a large number of appeal grounds. The Full Bench determined in the appeal decision that, in respect of the first decision, the Commissioner erred in concluding that the CFMMEU did not have a right to be heard and consequently erred in restricting the matters upon which it could be heard. In respect of the second decision, the Full Bench determined that the application for approval of the Agreement was not made in accordance with the requirements of s 185 of the FW Act, in that the Agreement was not signed as required by reg 2.06A of the Fair Work Regulations 2009 (FW Regulations) because the capacity in which Mr Silvester signed the Agreement was incorrectly stated and there was insufficient evidence that he was an employee who would be covered by the Agreement. Consequently, the Full Bench determined, the application before the Commissioner was not competent (absent correction or waiver under s 586 of the FW Act). The Full Bench granted permission to appeal, upheld the appeals, quashed the first and second decisions, and remitted the application for approval of the Agreement to the Commissioner for redetermination.

[13] It is the Commissioner's redetermination of the application for approval of the Agreement that is now under appeal. The Commissioner made two decisions in 2019 in relation to the application. In a decision issued on 2 October 2019[7] (third decision), she decided that she was not satisfied that the Agreement was genuinely agreed and invited MMS to provide further undertakings to address the matters set out in the decision. In the final decision issued on 13 December 2019, as earlier stated the Commissioner approved the Agreement with undertakings. The CFMMEU appeal is against the final decision, but we accept that the Commissioner's reasons are to be found in both the third and final decisions.

[14] In the third decision the Commissioner dealt initially with the issue of whether Mr Silvester was a person with capacity to sign the Agreement on behalf of employees. On the basis of evidence given by Mr Murphy, the consultant MMS engaged for the purpose of the enterprise bargaining process, the Commissioner concluded:

"[31] I am persuaded on the evidence that the principal purpose of Mr Silvester's employment is to ensure that the rigging gear of MMS is maintained in good condition and available for use as required at the various work sites where MMS undertakes its activities. It is the kind of work that falls within the ordinary meaning of Storeperson, which as MMS submits, is classified as 'MMS2' under the Agreement. Mr Murphy gave evidence that Mr Silvester also works 'on site' from time to time. To the extent that his work on site involves the use of rigging gear, he would also fall within the classifications of the Agreement that cover 'Rigger' (MMS2 to MMS4), although there is no evidence before me as to his particular level of competency as a Rigger or in relation to the difference between Basic, Intermediate and Advanced Rigger. The nature of his role suggests a depth of familiarity with rigging work. MMS submits that he is classified as an MMS3 'Intermediate Rigger', but the evidence is not conclusive. There is also no evidence of what work Mr Silvester might perform as a Scaffolder, although I cannot rule out that possibility.

[32] For present purposes, I am comfortable in the conclusion that Mr Silvester was covered by the Agreement at all relevant times as a 'Storeperson'."

[15] The Commissioner went on to find that, as Mr Silvester was covered by the Agreement, he was a person capable of signing it under reg 2.06A.[8] The Commissioner then said:

"[38] Mr Silvester has signed the Agreement's signature page in a section headed 'Signed for and on behalf of the employees'. Those words, together with the description of Mr Silvester as 'Employee' under his signature would in my view be sufficient to explain his authority to sign the Agreement. However, the deficiency identified by the Full Bench is that his role has been misstated as "employee bargaining representative". It is a matter that must be resolved because the Act requires an application for approval of an enterprise agreement to be accompanied by a 'signed copy' of the Agreement.

[39] The deficiency can be resolved by the exercise of discretion under section 586 of the Act. In that regard, it is relevant that each of the other signing requirements have been met in relation to the Agreement. The Agreement is signed by Tim Brown in his capacity as the Managing Director of MMS. The full name and business address of both Mr Brown and Mr Silvester are apparent on the signature page. The Agreement is signed by Mr Silvester in a way that substantially complies with the Regulations, but not quite.

[40] These matters weigh heavily in favour of a correction or waiver under section 586. Accordingly, if the Agreement is capable of approval, I will amend the signature page of the Agreement under section 586 to remove the words 'bargaining repersentative' from the 'Authority to Sign' section of Mr Silvester's signature block and replace them with the word 'employee'."

[16] The Commissioner then considered whether the Agreement was genuinely agreed as required by s 186(2)(a) of the FW Act and defined by s 188. In respect of compliance with the pre-approval step in s 180(5) (an element of the genuinely agreed requirement set out in s 188(1)(a)(i), the Commissioner set out the evidence given by Mr Murphy as to the steps he took to explain the terms of the Agreement prior to the vote. In summary, it was Mr Murphy's evidence that he held three meetings with the employees, although not all employees were present at each meeting, and that he took "every single one of the five through a clause by clause explanation of the agreement and the operation of that agreement". The Commissioner found:

"[84] Mr Murphy gave detailed evidence about his explanation of a range of terms of the Agreement and how they would operate. I am satisfied that he went through each clause of the Agreement with each employee. The discussion of each term, and the depth of that discussion, varied. There was limited discussion about some of the National Employment Standards, the flexibility term and consultation term except in reference to the Act. There was detailed discussion about other matters, such as ticketed training, hours of work and rostered days off. The classification structure, and the appropriate relativities for certain roles, was a focus of some of the employees. I am satisfied that Mr Murphy took all reasonable steps to explain the Agreement to the employees, and to ensure that the explanation was tailored to the individual circumstances of employees. His approach was informed by his understanding of those circumstances:

'I knew what the position for each of the employees was relative to their own experience, their own tickets, where they sat within the classifications and things like that.'

[85] The discussion canvassed key differences between the Agreement and the Manufacturing Award, as well as some of the differences between the Agreement and the Greenfields Maintenance Agreement (although some differences, such as the omission of union rights under the dispute resolution term, were not explained). Mr Murphy conceded, however, that it did not deal with the Greenfields Electrical Agreement, despite its overlapping coverage with the Agreement in relation to electricians.

[86] Mr Murphy explained this omission on the basis that because the Greenfields Electrical Agreement and the Greenfields Maintenance Agreement are very similar, one only needed to explain the changes from one of the two. It is also the case that none of the employees were employed as electricians, although one appears to have advanced electrical instrumentation qualifications."

[17] The Commissioner accepted that the Greenfields Electrical Agreement and the Greenfields Maintenance Agreement were "substantially similar" such that any failure to explain differences with the Greenfields Electrical Agreement would not amount to non-compliance with s 180(5), except in one respect.[9] This was that there had been a failure to explain how the Agreement would displace a number of award instruments incorporated by reference into the two existing greenfields agreements. Because of this failure, the Commissioner concluded that she could not be satisfied that "employees were put in a position to fully appreciate the effect on their existing conditions of employment in voting to approve the Agreement", and that accordingly she was not satisfied as to the s 188(1)(a)(i) element of the genuinely agreed requirement.

[18] The Commissioner went on to conclude that the other elements of the genuinely agreed requirement in s 188 were satisfied. The Commissioner also noted that there was no contention that the Agreement did not pass the BOOT:

"[122] There is no contention in these proceedings that the Agreement does not pass the better off overall test. The rates of pay are at least 62.99% - 150.93% above the Manufacturing Award and 32.30% - 61.70% above the rates of pay for Apprentices. There are a range of other benefits in the Agreement compared to the Manufacturing Award, as well as some detriments. MMS contends that the test is met "comfortably". The unions have not made any submission to the effect that the Agreement does not meet the better off overall test, and the Commission's own analysis of the Agreement indicates that the test is met."

[19] The Commissioner was satisfied that the other approval requirements in s 187 of the FW Act were met, save that the nominal expiry date was more than four years from the date of approval. The Commissioner then made directions to facilitate the provision of undertakings by MMS to address the deficiencies she had identified.

[20] In the final decision, the Commissioner undertook a detailed analysis of the incorporated award terms in the Greenfields Electrical Agreement which would be displaced by the Agreement on approval, which were more beneficial to employees than the Agreement, and which were not adequately explained to them.[10] The Commissioner concluded that the only terms which fell into this category concerned: (1) a maximum shift length of eight hours for continuous shiftworkers; (2) notice of annual shutdown and minimum shutdown periods; and (3) the taking of annual leave over an extended period by agreement.[11] The Commissioner found, after further detailed analysis, that there were no terms in this category in the Greenfields Mechanical Agreement.[12] In relation to the three more beneficial displaced provisions in the Greenfields Electrical Agreement, the Commissioner determined that this could be resolved by the acceptance of undertakings proposed by MMS which would restore these provisions. The Commissioner said (footnote omitted):

"[39] A Full Bench of the Commission has recently clarified that undertakings can be accepted in appropriate cases to deal with a concern about whether an enterprise agreement has been genuinely agreed. In this case, undertakings have been given in a bid to remedy the failure to explain that certain employee entitlements would be displaced by the Agreement.

[40] The undertakings have the protective purpose of ensuring that employees are not disadvantaged by the failure to adequately explain the relationship between the Agreement and the instruments it will displace. I have already found that employees will be better off overall under the Agreement than the modern award by a significant margin. The undertakings will enhance, rather than detract from, this position. Except in relation to the nominal expiry date (which meets a separate statutory condition), each of the undertakings will operate to the benefit of employees and will have the result that the detriments which required explanation no longer exist. For these reasons, the undertakings resolve my concern about the failure to explain the effect of the Agreement in relation to the Electrical Award and incorporated terms of the Greenfields Manufacturing Agreement. I am satisfied that the effect of accepting the undertakings is not likely to cause financial detriment to any relevant employee."

[21] The Commissioner also concluded that acceptance of these undertakings would not be likely to result in changes to the Agreement. On this basis, the Commissioner accepted the undertakings proposed by MMS (which included an undertaking to rectify the issue concerning the nominal expiry date).[13] The Commissioner also, as foreshadowed in the third decision, amended the signature page of the Agreement to remove the words "bargaining repersentative" [sic] under Mr Silvester's signature and replace them with the word "employee".

[22] The CFMMEU case on appeal centres on four contentions of error said to have been made by the Commissioner.

[23] The first is that the Commissioner erred in finding that the deficiency in meeting the signature requirements for the Agreement could be remedied by the exercise of power under s 586 of the FW Act to change the signature page of the Agreement to reflect that Mr Silvester was not a formally-appointed employee bargaining representative but merely an employee. This submission was founded on the contention that the Commissioner erred in finding that Mr Silvester was an employee covered by the Agreement. In this respect the CFMMEU submitted that the finding was based solely on the evidence of Mr Murphy, who was not in a position to describe the work performed by Mr Silvester. Mr Silvester himself or Mr Tim Brown, as the Managing Director, would have been more appropriate sources for reliable evidence concerning Mr Silvester's work. It was submitted that a Jones v Dunkel[14] inference should have been drawn in relation to the failure to call Mr Brown, and the Commissioner erred in not addressing the principles of Jones v Dunkel in the first decision. The CFMMEU noted the inconsistency between Mr Murphy's evidence and Mr Silvester's description of himself as a "Project and Stores Coordinator" in the Form F18A. In substance, the evidentiary position concerning Mr Silvester's role advanced beyond that determined as insufficient in the appeal decision.

[24] The second concerns the Commissioner's acceptance of undertakings to remedy the failure that she identified concerning the failure to comply with s 180(5). The CFMMEU contends that the Commissioner failed to identify the full extent of the omissions and accordingly accepted undertakings that did not fully remedy those omissions. In this respect, the CFMMEU pointed to the deficiency of evidence during the initial determination of the application for approval of the Agreement concerning any explanation of the terms of the Agreement. It pointed to the Form F17 declaration which accompanied the application for approval as referring only to oral explanations which focused on the casual loading on overtime and the difference between flat and all-purpose allowances. The evidence given by Mr Murphy at the rehearing did not advance the position significantly further, it was submitted, because he only gave bald statements as to the topics discussed and provided little elaboration when invited to do so in cross-examination. The CFMMEU identified a range of terms of employment in relation to which, taking Mr Murphy's evidence at its highest, he may have explained how the Agreement would operate but gave no evidence as to how those terms would operate differently and what was actually to be lost as compared to the existing provisions in the two greenfields agreements.

[25] Third, the CFMMEU contends that the Commission erred in her consideration pursuant to s 188(1)(c) as to whether there were other reasonable grounds for believing that the Agreement had not been genuinely agreed to, in that:

• the Commissioner erroneously found that the work to be covered by the Agreement would otherwise be covered only by the Manufacturing Award, when in fact the classifications in the Agreement encompassed work within the coverage of a number of other modern awards;

• the Commissioner erred in finding that the employees who voted on the Agreement were representative of the range of classifications in the Agreement and thus failed to recognise that the agreement of the employees lacked the requisite moral authority and/or authenticity to be genuine, because in fact the employees at most represented 11 of 23 job roles covered; and

• the Commissioner failed to consider that there was little or no actual bargaining; that the only appointed employee bargaining representative, Mr Luke Brown, was not independent of the employer because he was the managing director's son; the manner in which bargaining occurred had the hallmarks of individual rather than collective bargaining; and Mr Silvester had no stake in the Agreement because he would not be covered by it.

[26] The fourth error contended by the CFMMEU was that the Commissioner's conclusion that she could accept undertakings pursuant to s 190 to rectify non-compliance with s 180(5) was contrary to the Full Bench decisions in AWU v Professional Traffic Solutions Pty Ltd[15] and Diamond Offshore General Company v Baldwin.[16] To the extent that the Commissioner relied on CFMMEU v Specialist People Pty Ltd[17] for a contrary proposition, that case was said to be wrongly decided. It was submitted that although s 190(1)(b) provides that s 190 applies, inter alia, to a concern that an enterprise agreement does not meet the requirements of ss 186 and 187, such a concern must be one about the agreement itself and not to the pre-approval steps set out in s 180. A failure to take such steps cannot, the CFMMEU submitted, be retrospectively cured by an undertaking.

[27] For the reasons which follow with respect to each of the CFMMEU's four contentions of error, we have decided to refuse permission to appeal.

[28] In relation to the first contention, we do not consider that the issue of whether Mr Silvester was an employee covered by the Agreement was a matter of significance in connection with the competency of the application. Section 185(2)(a) of the FW Act requires that an application for approval of an enterprise agreement be accompanied by a signed copy of the agreement, and s 185(5) authorises the making of regulations prescribing signature requirements for agreements. Regulation 2.06A of the FW Regulations has been made pursuant to s 185(5). Regulation 2.06A(2)(a)(ii) provides that one of the requirements for a signed enterprise agreement is that the agreement has been signed by "at least 1 representative of the employees covered by the agreement". Regulation 2.06A(3) provides:

(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.

[29] Two things are apparent from the regulation. The first, which is not in dispute, is that the signatory for the purpose of reg 2.06A(2)(a)(ii), although described as a representative of the employees covered by the agreement, does not have to be a bargaining representative appointed pursuant to s 176 of the FW Act. This must be the case because the expression "bargaining representative", which is a term defined in s 176(1), is not used, and also because there is no requirement for employees involved in bargaining for an enterprise agreement to have any bargaining representative. The second is that such a signatory does not need to be an employee covered by the agreement - otherwise reg 2.06A(3) would have no function.

[30] It is not in dispute that Mr Silvester was an employee of MMS. On the signature page of the Agreement, his position was simply described as that of "Employee", which was therefore clearly accurate. It was not asserted that he was an employee covered by the Agreement. The materiality of whether he was covered by the Agreement is therefore not apparent to us.

[31] It may also be noted that the description of Mr Silvester's authority to sign the Agreement, as required by reg 2.06A(2)(b)(ii), as "Employee bargaining repersentative" [sic], did not assert that he was an employee bargaining representative within the meaning of s 176(1). In the appeal decision the Full Bench took it that this was what was meant, although it accepted that that he did not need to be a bargaining representative in order to be able to sign the Agreement as a representative of employees.[18] However the Full Bench does not appear to have had its attention drawn to Mr Silvester's purported[19] Form F18A declaration. Certainly it is not referred to in the appeal decision. In that declaration, the relevant parts of which we have earlier set out, Mr Silvester made it clear that he was not a bargaining representative under s 176, and had represented three employees in the bargaining in an informal capacity. This should have informed an understanding of the way in which his capacity to sign the Agreement was described. Understood as involving the use of ordinary (albeit misspelt) English rather than a defined statutory expression, it was an accurate description of the capacity in which he signed the Agreement.

[32] Accordingly, we do not consider that the issue raised by the CFMMEU concerning Mr Silvester's signature is of any import to the competency of the application before the Commissioner. In any event, given that the evidence of Mr Murphy was the only evidence concerning Mr Silvester's work duties, we consider that it was clearly open to the Commissioner to accept that evidence and conclude on the basis of it that Mr Silvester was an employee covered by the Agreement. No Jones v Dunkel point of substance arose. It was clear from the evidence of Mr Murphy that Mr Silvester was not willing to give evidence voluntarily; the reason why that was the case is immaterial. It is true that MMS could have called Mr Tim Brown to give evidence about Mr Silvester's work duties; equally however the CFMMEU could have sought an order for Mr Silvester to attend and give evidence or alternatively, could have called one of its members employed by MMS to at least give evidence about what Mr Silvester's current duties were.

[33] We add one observation about the CFMMEU's first contention of error. Although it was not specifically raised by the CFMMEU, we consider that there is some doubt as to whether the power in s 586 to correct or amend documents relating to a matter before the Commission confers on the Commission a general discretion to amend the text of an enterprise agreement, particularly given that there are separate powers to vary enterprise agreements in prescribed circumstances in s 217 and 218. However we do not regard this as a matter of sufficient importance to justify the grant of permission to appeal because, to the extent there was any difficulty concerning the description of Mr Silvester's capacity to sign the Agreement, the Commissioner could simply have treated this as an irregularity in the form or manner in which the application for approval of the Agreement was made (noting that the requirement for an enterprise agreement to be signed is one of the conditions for a valid application for approval prescribed by s 185), and waived it pursuant to s 586(b).

[34] In relation to the second contention of error, we are not persuaded that the CFMMEU has demonstrated any arguable case of error in the Commissioner's evaluative assessment of whether MMS had taken all reasonable steps to explain the terms of the Agreement and their effect to the employees who would be covered in accordance with s 180(5). There is no requirement that the requisite explanation has to be in writing and where, as here, the cohort of employees who are to vote is small, oral explanations to individuals or small groups that are sufficiently detailed may reasonably be assessed as compliant with s 180(5). The evidence of Mr Murphy was demonstrative, we consider, that all of the employees received a considerably detailed briefing as to the provisions of the Agreement, and the Commissioner was entitled to accept this evidence. The Commissioner undertook a detailed analysis of award provisions incorporated into the greenfields agreements which were displaced by the Agreement and which were not the subject of explanation by Mr Murphy, and was only able to identify three conditions of employment in this category for which the Agreement made less beneficial provision. We are not persuaded that any of the matters which the CFMMEU contends was not the subject of a proper explanation pursuant to s 180(5) was of sufficient significance to render the Commissioner's conclusion not reasonably open to her, or that her analysis of whether the employer took all reasonable steps to explain the terms of the Agreement in the manner required by s 180(5) was otherwise demonstrably in error.

[35] As to third contention of error, we are similarly not persuaded that the CFMMEU has advanced an arguable case of error in respect of the Commissioner's evaluative assessment under s 188(1)(c). The import under s 188(1)(c) of any error concerning the modern awards which would otherwise cover employees covered by the Agreement was not articulated by the CFMMEU. In relation to the "moral authority" and "authenticity" of the Agreement, we consider that this case, where the Agreement related to an extant business providing maintenance services to the Loy Yang A, Loy Yang B and Yallourn power stations in which all the employees who voted were employed, is a very long distance from cases such as KCL Industries Pty Ltd,[20] CFMEU v Sparta Mining Services Pty Ltd[21] and CFMEU v One Key Workforce Pty Ltd.[22] As to the other matters which the CFMMEU says that the Commissioner erred in not taking into account, we are not persuaded that they were necessarily relevant considerations.

[36] Finally, the fourth contention of error raises the same argument that was considered and authoritatively rejected in the recent (3 March 2020) Full Bench decision in CFMMEU v Karijini Rail Pty Ltd.[23] We do not consider that permission to appeal should be granted to allow the CFMMEU to advance this argument again a few weeks later before a differently constituted Full Bench in the hope of obtaining a different response. It should be emphasised that Karijini is not authority for the proposition that any instance of non-compliance with s 180(5) is curable by undertakings. Clearly a wholesale failure to comply of the type dealt with in CFMEU v One Key Workforce Pty Ltd is not capable of rectification. But, for example, a concern arising from the making of a representation by the employer that a specific term of a proposed agreement is more beneficial than it actually is might, in some but not all circumstances, be addressed by an undertaking to apply the term in the more beneficial way represented by the employer.[24] In this case, there was a failure by the employer to explain that a small number of more beneficial terms in the pre-existing instruments had been excluded by the Agreement. The undertakings addressed this concern by restoring the more beneficial terms for the purpose of the Agreement. This was entirely consistent with the reasoning in Karijini.

[1] [2019] FWCA 8471

[2] [2018] FWC 6519

[3] [2018] FWCA 7386

[6] [2019] FWCFB 3585

[7] [2019] FWC 6801

[10] [2019] FWCA 8471 at [10]- [13]

[14] [1959] HCA 8, 101 CLR 298

[15] [2018] FWCFB 6333

[16] [2018] FWCFB 6907, 284 IR 1

[17] [2019] FWCFB 7919

[18] [2019] FWCFB 3585 at [52]- [55]

[19] "Purported" because he was not an employee bargaining representative under the FW Act and was therefore not entitled to make and file a Form F18A declaration (see r 24(4) of the Fair Work Commission Rules 2013)

[20] [2016] FWCFB 3048, 257 IR 266

[21] [2016] FWCFB 7057, 261 IR 107

[22] [2017] FCA 1266, 270 IR 410; appeal dismissed in [2018] FCAFC 77, 262 FCR 527

[23] [2020] FWCFB 958 at [97]- [109]

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