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[139]
[2025] FWC 749
General information, not legal advice.
Fair Work Commission
2025-03-17
Original judgment source is linked above.
The attached document wholly replaces the document previously issued with the above code on 17 March 2025
Typographical errors have been corrected and paragraphs renumbered accordingly.
s.185 - Application for approval of a single-enterprise agreement
Application for approval of the DOF Subsea Australia Pty Ltd Maintenance, Construction and Decommissioning Enterprise Agreement 2024
DOF Subsea Australia Pty Ltd gives notice that it is bargaining in relation to a single-enterprise agreement (DOF Subsea Australia Pty Ltd Casual Back Deck Crew Offshore Agreement 2024) which is proposed to cover employees that are engaged to undertake work on or in connection with offshore energy projects for DOF Subsea Australia Pty Ltd, engaged in the following classifications: Rigger/Scaffolder, Rigger/Leading Hand, Rigging/Deck Supervisor, Rigger/Boiler Maker Welders, Rigger/Mechanic, Rigger/Electrician.
The Casual Employee agrees to be engaged by the Company under a contract of services in the position, hours and location described in the Project Engagement Confirmation, on the terms and conditions in this Agreement.
2.1 An authorised Project Engagement Confirmation (PEC) will be issued to the Casual Employee via an email with the following details:
(a) Basis, position, working hours, project details and location; and
2.2 By issuing a PEC, the Company hereby engages the Casual Employee in the casual position
specified for the period noted. The casual work will cease at the Estimated Scheduled Completion Date stated in the PEC.
2.3 The Casual Employee understands that on each occasion that they are engaged by the Company, the terms of employment shall be governed by this Agreement plus any Applicable Industry Agreement.
2.4 Conversion of casual employment to permanent employment, will be in accordance with the National Employment Standards. A copy of the Fair Work Casual Employment Information Statement is attached to this Agreement.
2.5 The parties agree that the relationship between them is one of independent personal service. No relationship of principal/agent or partnership is intended to arise or does in fact arise as a consequence of this Agreement or the performance of the obligations under it.
4.1 This Agreement shall remain valid until the date specified in Part 2 / Schedule B - Casual Employee Details unless terminated earlier by either Party in accordance with Clause 11.
4.2 This Agreement applies to Casual Employees in Australia.
4.3 During the period of Agreement, the Company may issue any number of PEC to engage the Casual Employee to work for the Company. There is no guarantee on the number of PEC that may be issued under this Agreement....
5.4 If nominated mobilisation / demobilisation dates in the PEC change, the dates actually worked and approved by Company's authorised personnel, will override the dates of engagement in PEC.
(a) Either Party may terminate this Agreement at their own election, by giving the required
written notice, in accordance with the Casual Employee's position, as referred to in the PEC.
(b) If the Company terminates this Agreement, it must be in accordance with the provisions
of the Fair Work Act 2009 (Cth).
(c) If this Agreement is terminated by the Casual Employee and the Casual Employee fails to give the requisite notice, the Company reserves its right to recover repayment of any consideration provided to the Casual Employee for the notice period not served.
(c) If this Agreement is terminated by the Company in accordance with clause 11.1, then the
Company may pay in lieu all or part of the notice period.
a) Mr Hardeman was issued a PEC on 29 October 2024 which commenced on 30 October 2024. It referred to the effective date for an STEA as 26 September 2023. The PEC also recorded the estimated scheduled completion date as "as per project requirements". I note that the roster shows Mr Hardeman was required to work from 31 October 2024 to 11 November 2024.
b) Mr Marsden was issued with two PECs. The first was dated 25 June 2024 and was estimated to commence on 8 July 2024. It referred to the effective date for his STEA as 13 July 2023. The PEC recorded the estimated scheduled completion date as "Approx. 4 weeks". The second was dated 18 December 2024 and was estimated to commence on 27 December 2024. It also referred to the effective date for his STEA as 13 July 2023. The PEC also recorded the estimated scheduled completion date as "as per project requirements". I note that the roster shows Mr Marsden was only required to work 17 December 2024 to 14 January 2025.
c) Mr Bowles was issued a PEC on 20 August 2024 which commenced on 26 August 2024 with a duration of "Approx 1 week". It referred to the effective date for an STEA as 7 August 2023. I note that the roster shows Mr Bowles was required to work 29 August 2024 to 3 September 2024 and the 27 November 2024 to 23 December 2024.
d) Mr Hucherko was issued a PEC on 26 August 2024 which commenced on 26 August 2024. It was for "Approx. 1 week". It referred to the effective date for an STEA as 19 January 2024. I note that the roster shows Mr Hardeman was required to work 29 August 2024 to 2 September 2024.
e) Mr McKinstry was issued a PEC on 20 August 2024 which commenced on 26 August 2024 for "Approx. 1 week". It referred to the effective date for an STEA as 26 June 2024. I note that the roster required Mr McKinstry to work 29 August 2024 to 2 September 2024 and 7 to 10 December 2024.
f) Mr Lohmeyer was issued a PEC on 29 October 2024 which commenced on 30 October 2024. It referred to the effective date for an STEA as 29 October 2024. The PEC also recorded the estimated scheduled completion date as "as per project requirements". I note that the roster shows Mr Lohmeyer was required to work 1 to 6 November 2024.
g) Mr Schuurman was issued with two PECs. The first on 19 August 2024 commenced on 20 August 2024. It referred to the effective date for an STEA as 19 February 2024. The PEC also recorded the estimated scheduled completion date as "as per project requirements". The second on 25 October 2024 which commenced on 28 October 2024. It referred to the effective date for an STEA as 28 October 2024. The PEC also recorded the estimated scheduled completion date as "as per project requirements". I note that the roster shows Mr Schurmann was required to work 29 August 2024 to 2 September 2024, 29 October 2024 to 19 November 2024, and 7 to 9 December 2024. DOF explains that Mr Schuurman was issued a new PEC on 25 October 2024 which commenced on 28 October 2024.
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.
18. By s 182(1), the agreement is "made" when a majority of the employees who have been asked to approve the agreement under s 181(1), and who cast a "valid vote", approve the agreement. This fixes the point in time at which the agreement is made for the purposes of s 172(2). It is a point, however, which comes at the end of a process mandated by other provisions of Pt 2-4 of the FW Act, and it is necessary to take them into account also.
19. By s 173(1), the employer "must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who ... will be covered by the agreement; and ... is employed at the notification time for the agreement." As with s 172(2), there is here a preoccupation with the employment status of the individual at a particular time. What constitutes the "notification time" is the subject of detailed attention in s 173(2): it is when the employer agrees to bargain, or initiates bargaining. By s 173(3), the notice must be given as soon as practicable after the notification time, and in any case not more than 14 days after that time. The remaining provisions of Div 3 of Pt 2-4 are concerned with bargaining, and do not require further consideration here.
20. By s 181(1), the employer may "request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it". By s 181(3), the vote may be "by ballot or by an electronic method". However, by s 181(2), this request may not be made until at least 21 days after the last notice under s 173(1) in relation to the agreement has been given. This shows that s 173(1) allows for representational rights notices to be given to employees at different times: they must, however, be given within the 14-day period referred to in s 173(3).
21. Section 180 refers to an "access period for the agreement", being "the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1)". This, presumably, is the point in time at which the employer makes the request there referred to. By s 180(2), the employer must take all reasonable steps to ensure that, during this "access period", "the employees ... employed at the time who will be covered by the agreement" are given a copy of the agreement and of the other materials referred to. These employees are, by way of shorthand, referred to as "the relevant employees", and, by subs (3), the employer must also, by "the start of the access period", take all reasonable steps to notify them of the time and place at which the vote will occur and of the voting method that will be used.
22. Putting these provisions together in the chronological order which is implied by their terms, the following is the scheme contemplated. First, the employer agrees to bargain or initiates bargaining. Secondly, there is then a period of 14 days during which the employer gives the representational rights notices to the employees who were employed when the employer agreed to bargain. Thirdly, bargaining takes place. Although that process is not directly relevant to the subject here being considered, it should be noted that at least 21 days must pass after the giving of the last representational rights notification and the employer's request under s 181(1). But there appears to be no outer limit to that period. Fourthly, the employer gives a copy of the agreement upon which it is proposed that the employees should vote, and other required materials, to the employees employed at that time. Fifthly, no more than seven days later, the employer requests the employees who are employed at that time to approve the agreement by voting for it. Sixthly, when a majority of those employees who cast a valid vote approve the agreement, the agreement is made.
[27] In Appeal by Kmart Australia Limited (Kmart), the Full Bench concluded that the 'time' at which employees covered by the agreement had to be employed in order to be requested to vote referred to in s181(1) encompassed the whole of the access period in s 180(4) and was to be equated with the 'time' referred to in s180(2)(a). The Full Bench in Kmart concluded that casual employees who had been engaged for the first time during the voting period had not been 'employed at the time' at which employees were requested to vote. The Full Bench did not say that existing casuals who did not work during the access period were ineligible to do so. In our view, Woolworths' contention that category 2 casuals were eligible to vote has merit. These were not just casuals 'on the books' who might or might not have been given further shifts. The fact that these employees had been allocated shifts on the roster is evidence of the actuality and currency of their casual employment during the access period.
(1) An employee is a casual employee of an employer only if:
(a) the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work; and
(b) the employee would be entitled to a casual loading or a specific rate of pay for casual employees under the terms of a fair work instrument if the employee were a casual employee, or the employee is entitled to such a loading or rate of pay under the contract of employment.
Note: An employee who commences employment as a casual employee remains a casual employee until the occurrence of a specified event (see subsection (5)).
(2) For the purposes of paragraph (1)(a), whether the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work is to be assessed:
(a) on the basis of the real substance, practical reality, and true nature of the employment relationship; and
(b) on the basis that a firm advance commitment can be in the form of the contract of employment or, in addition to the terms of that contract, in the form of a mutual understanding or expectation between the employer and employee not rising to the level of a term of that contract (or to a variation of any such term); and
(c) having regard to, but not limited to, the following considerations (which may indicate the presence, rather than an absence, of such a commitment):
(i) whether there is an inability of the employer to elect to offer, or not offer, work or an inability of the employee to elect to accept or reject work (and whether this occurs in practice);
(ii) whether, having regard to the nature of the employer's enterprise, it is reasonably likely that there will be future availability of continuing work in that enterprise of the kind usually performed by the employee;
(iii) whether there are full‑time employees or part‑time employees performing the same kind of work in the employer's enterprise that is usually performed by the employee;
(iv) whether there is a regular pattern of work for the employee.
Note: A regular pattern of work does not of itself indicate a firm advance commitment to continuing and indefinite work. An employee who has a regular pattern of work may still be a casual employee if there is no firm advance commitment to continuing and indefinite work.
(a) for the purposes of paragraph (2)(b), a mutual understanding or expectation may be inferred from conduct of the employer and employee after entering into the contract of employment or from how the contract is performed; and
(b) the considerations referred to in paragraph (2)(c) must all be considered but no single consideration is determinative and not all considerations necessarily need to be satisfied for an employee to be considered as other than a casual employee; and
(c) a pattern of work is regular for the purposes of subparagraph (2)(c)(iv) even if it is not absolutely uniform and includes some fluctuation or variation over time (including for reasonable absences such as for illness, injury or recreation).
(a) The STEAs amounted to an acceptance by the employees to be employed as casual employees on future engagements. The employment that arose was to perform work on projects. It was casual employment in the sense that it was characterised by an absence of a firm advance commitment to continuing and indefinite work; and the employees were entitled to a casual loading or a specific rate of pay for casual employees under the terms of the enterprise agreement that applied at the time the STEAs were entered into.
(b) Under clause 2 of the STEA a PEC issued which engaged the employee to work on particular projects for the period noted in the PEC. The PEC was required to specify a commencement date and a completion date. The way the contracts in the current circumstances were performed however was that the PECs for the two vessels did not include a completion date.
(c) The practical reality was that the commencement and completion date for the work to be performed during the casual engagements brought about by the PECs was set out in the rosters. The rosters recorded the mutual understanding or expectation between the employer and employee
[49] We reject McColls' submission that the exclusion of the former PST employees could be characterised as "minor" on the basis that their inclusion in the vote could not, mathematically speaking, have made a difference. First, we do not consider that the magnitude of an error can only be measured by reference to its consequences. Second, McColls' approach is far too reductionist in nature. Participation in the voting process contemplated by the FW Act involves more than simply casting a vote. Under s 180, prior to employees being requested to vote under s 181(1), they must be provided with or given access to a copy of the proposed agreement and any relevant materials (s 180(2)) and the employer must take all reasonable steps to explain to employees the terms of the agreement and their effect (s 180(5)). The real possibility that employees may confer amongst themselves and influence each other's views when this is done cannot be excluded. For that additional reason, we do not consider that the exclusion of 27 employees from a voting cohort of 113, of which only 45 voted in favour of the McColls Agreement, could be assumed not to have made any difference to the outcome.
Applicant: 17 December 2024, 3 February 2025 and 14 February 2025
[1] The application lodged identified the employer as DOF Subsea Australia Pty Ltd. Application was made to amend the name of the applicant to DOF Australia Pty Ltd on the basis that the name of the company has changed. I grant the application.
[3] At [10] see also Kmart Australia Ltd [2019] FWCFB 7599 at [43]
[4] Wayne Shortland v The Smiths Snackfood Co Ltd (Smiths Snackfood) [2010] FWAFB 5709 at [10]
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