[1] On 22 August 2025, Endeavour Group Limited applied for approval of the Endeavour Group Retail Agreement 2025, which covers Employees of Endeavour who are employed in its retail operations, meaning Endeavour's in-store retail operations, including without limitation Dan Murphy's, The Cellar, W for Wine, Swanbourne Cellars, BWS, and Customer Hub (customer service).

[2] The Agreement does not cover employees of Endeavour who work in salaried positions, above-store operations or Endeavour Support Office.

[3] The Employees are covered by the General Retail Industry Award 2020.

[4] The form F17B declaration filed by Endeavour in support of its application for approval of the Agreement states that, at the time the Agreement was made (10 August 2025), 12,868 Employees were covered by the Agreement, 8,816 (68.5%) Employees cast a valid vote, and 7,140 (81%) Employees voted to approve the Agreement.

[5] As of October 2025:[1]

• (a) the BWS Agreement 2019 applied to about 9,000 Employees working in 1,423 BWS stores;

• (b) the Dan Murphy's Agreement 2019 applied to about 5,300 Employees working in 283 Dan Murphy's stores and other stores trading as The Cellar, W for Wine, and Swanbourne Cellars; and

• (c) the Award applied to about 108 Employees working in customer service roles in the Customer Hub. These Employees provide information, assistance and advice to customers of Dan Murphy's and BWS through online and telephone channels.

[6] The Shop, Distributive and Allied Employees Association and the Australian Workers' Union are bargaining representatives for the Agreement. They both support approval of the Agreement by the Fair Work Commission.

[7] A number of Employees appointed the Retail and Fast Food Workers Union Incorporated as their bargaining representative for the Agreement.

[8] RAFFWU contends that the Agreement is not capable of being approved because it does not pass the better off overall test (BOOT) and was not genuinely agreed.

[9] There are also two individual employee bargaining representatives for the Agreement.

[10] Endeavour and RAFFWU have provided detailed written submissions and witness statements to the Commission about the issues in dispute. I have read and considered those submissions and witness statements.

[11] The SDA and one of the individual employee bargaining representatives provided brief submissions to the Commission. I have read and considered those submissions.

[12] On 3 November 2025, I conducted a hearing, by video conference, in relation to the application for approval of the Agreement.

[13] Endeavour has provided the Commission with Undertakings to address a number of issues in relation to the Agreement. A copy of the Undertakings is contained in Annexure A to this decision.

[14] I must be satisfied that the Agreement passes the BOOT before I can approve it.[2] Section 193(1) of the Fair Work Act 2009 (Cth) provides that an Agreement passes the BOOT if the Commission is satisfied, as at the test time, that each award covered employee, and each reasonably foreseeable employee, for the Agreement would be better off overall if the Agreement applied to the employee than if the relevant modern award applied to the employee. The "test time" is when the application for approval of the Agreement is made.[3]

[15] In Armacell Australia Pty and Others the application of the BOOT was explained by the Full Bench in the following manner:[4]

"The BOOT, as the name implies, requires an overall assessment to be made. This requires identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement."

[16] This principle is now enshrined in s 193A(2) of the Act.

[17] The BOOT is not applied as a line-by-line analysis. It is a global test requiring consideration of advantages and disadvantages to relevant employees.[5] An Agreement may pass the test even if some award benefits have been reduced, as long as overall, those reductions are more than offset by the benefits of the Agreement.[6]

[18] Ultimately the application of the BOOT is a matter that involves the exercise of discretion, and it involves a degree of subjectivity or value judgement.[7]

[19] It is clear from the references to "each ... employee" in section 193(1) of the Act that every employee to whom the Agreement will apply, if approved, must be better off overall than if the relevant modern award applied to the employee. It is not enough that a majority or most of the employees to whom the Agreement will apply, if approved, will be better off overall than if the relevant modern award applied.[8]

[20] The Commission must give consideration to any views relating to whether an Agreement passes the BOOT that have been expressed by any of the following:

• (a) the employer or employers covered by the agreement;

• (b) the award covered employees for the agreement; and

(c) a bargaining representative for the agreement.[9]

[21] Further, the Commission must give primary consideration to a common view (if any) relating to whether the agreement passes the BOOT expressed by all of the following:

• (a) the bargaining representative(s) of the employer; and

(b) the bargaining representative(s) of award covered employees for the agreement (other than a bargaining representative that is not an employee organisation).[10]

[22] In considering whether or not an agreement passes the BOOT, the Commission may only have regard to patterns or kinds of work, or types of employment, if they are reasonably foreseeable at the test time. In considering what is reasonably foreseeable, the Commission must have regard to the nature of the enterprise to which the agreement relates.[11]

[23] The Commission must determine whether a particular pattern or kind of work, or type of employment, is reasonably foreseeable for the purposes of s 193A(6) if a view is expressed by any of the following that it is, or is not, reasonably foreseeable:

• (a) the employer covered by the agreement;

• (b) the award covered employees for the agreement;

(c) a bargaining representative for the agreement.[12]

[24] Endeavour has expressed the view in its form F17B declaration that the Agreement does pass the BOOT. I have given consideration to this view.

[25] The SDA has expressed the view in its form F18 declaration that the Agreement does pass the BOOT. I have given consideration to this view.

[26] The AWU has not expressed any view about whether the Agreement passes the BOOT.

[27] RAFFWU has expressed the view that the Agreement does not pass the BOOT. I have given consideration to this view.

[28] Because the AWU has not expressed a view about whether the Agreement passes the BOOT, no common view has been expressed by all bargaining representatives of the employer and bargaining representatives of award covered employees for the Agreement (other than a bargaining representative that is not an employee organisation) as to whether the Agreement passes the BOOT.

[29] The pay rates, at the test time, under the Agreement for the Employees compare to the Award as follows:

[30] Endeavour's form F17B declaration comprehensively sets out the terms of the Agreement that are more beneficial than the Award, including entitlements not provided for by the Award, as well as the terms of the Agreement that are less beneficial than the Award, including Award entitlements for which the Agreement does not provide. Subject to my consideration of the contested matters below, I have had regard to those benefits and detriments in my global assessment of the BOOT.

[31] RAFFWU identifies the following matters that it contends, individually, taken together or in any combination, have the effect that the Agreement does not pass the BOOT.

[32] RAFFWU submits that Endeavour can change the days of work, and the hours of work on any day, for part time employees without the employee's consent. The question for the Commission, so RAFFWU submits, is whether the marginally higher rates of pay, and other benefits under the Agreement, mean that part time employees are better off overall than under the Award notwithstanding the right of Endeavour to unilaterally change their days and hours of work. No such right exists under the Award. RAFFWU submits that significant weight must be given to this detriment.

[33] In relation to any claimed prospective benefit to new employees of a guaranteed minimum number of hours, RAFFWU submits that existing employees have an entitlement under their contracts of employment to the minimum number of hours reflected in their contracts, underpinned by the Award entitlement not to have their hours changed without agreement. Accordingly, RAFFWU submits that the Agreement entitlement to a guaranteed minimum number of hours is insufficient to offset the detriment occasioned by the loss of the right to agreed hours and days of work.

[34] Endeavour accepts that the Agreement is less beneficial than the Award insofar as the Agreement allows Endeavour to change a standard roster of a part time employee (subject to the requirements of clause 9.1 of the Agreement), whereas clause 10.10 of the Award does not permit an employer to change a part time employee's 'guaranteed hours', being the number of hours to be worked on each particular day of the week (clause 10.5(a) of the Award). However, Endeavour submits that the Agreement provides a number of protections to part time employees in respect of their standard rostered hours. Relevantly, Endeavour:

• (a) must be 'mindful of the team member's needs, including family or carer responsibilities, study commitments, religious observance, safe transport home and any genuine sporting commitments which the team member is actively competing in';

• (b) 'will not frequently change a team member's standard roster';

• (c) must consult about a proposed standard roster change;

• (d) must provide a team member with at least 7 days' notice of a change to their standard roster, or if there is a disagreement, 14 days;

• (e) will not change an employee's roster until any dispute about a proposed change is resolved;

• (f) must pay overtime if a roster is changed only as a 'once off'; and

• (g) is prohibited from changing rosters so as to avoid entitlements payable under the Agreement.

[35] In addition, Endeavour submits that any dispute in relation to a roster change of a part-time team member can be dealt with in accordance with the dispute settlement provisions in clause 22. Endeavour also relies on Undertaking 9, which prohibits it from changing the number of hours to be worked on each particular day of the week, without the agreement of the part time team member.

[36] Endeavour submits that the Agreement is otherwise more beneficial than the Award, for the reasons set out in response to question 15 of the Form F17B.

[37] Endeavour contends that a Full Bench of the Commission endorsed the above analysis in respect of an almost identical clause relating to part time employees employed by Woolworths.[13] RAFFWU's application for judicial review of that decision was ultimately dismissed.[14]

[38] Absent Undertaking 9, this would have been a detriment. However, Undertaking 9 essentially mirrors the effect of clauses 10.5(a) and 10.10 of the Award, which do not permit an employer to unilaterally change a part time employee's 'guaranteed hours', being the agreed number of hours to be worked on each particular day of the week by the employee. Accordingly, this is a neutral consideration in my assessment of the BOOT.

Abolition and/or replacement of higher duties allowance

[39] RAFFWU submits that the Agreement contains no provision for the application of Award equivalent higher duties allowances in its BWS business. The only allocation of higher duties in its Dan Murphy's business is when an Employee is undertaking Duty Manager work. It is submitted that many BWS employees perform work at higher levels and are currently paid a higher duties allowance. The evidence discloses this includes for shifts of 7.5 hours and longer.

[40] RAFFWU submits that the Agreement introduces an in-charge allowance. That allowance is paid at flat rates. However, the allowance is not paid in circumstances where a manager or other Senior Team Member is on break, working elsewhere or is 'in-charge'. RAFFWU submits that Endeavour operates a structure whereby a manager may be managing two or more stores and therefore be away from the relevant workplace but remaining on duty. In such circumstances, RAFFWU contends that the in-charge allowance will not be paid at all.

[41] RAFFWU submits that where an Employee performs work at a retail establishment and undertakes one or more of the indicative tasks at A.3.2 of the Award, they would be entitled to higher duties pay pursuant to clause 17.5 of the Award. Such higher duties allowance would entitle an employee to a higher rate of pay than the Agreement.

[42] Endeavour submits that the Agreement introduces a new 'in charge' allowance in clause 5.2 (Item 5 of the Table), which replaces the 'higher duties' allowance in the BWS Agreement. That is, it applies to BWS employees only. The 'in-charge' allowance is paid to team members in compensation for being 'in-charge' - defined as when the team member is responsible for the store's opening or closing procedures, or where they have general responsibility for the store and associated security, when working alone or when in charge of another team member. However, it is not payable where a team member is working alone for a temporary period while another team member or Manager is on their break or away on work duties.

[43] While it does not accept that the 'in-charge' allowance constitutes a detriment in the relevant sense, Endeavour has offered an Undertaking to pay Employees a $5.20 allowance per shift where they are rostered to be 'in-charge' as defined in clause 5.2 of the Agreement, in lieu of the amounts specified in clause 5.2 of the Agreement in order to avoid any potential BOOT issues. Endeavour submits that the analysis performed by Mr Kakwani illustrates that Team Members who are paid the in-charge allowance (as amended by the proposed Undertaking) receive a higher benefit than they would otherwise receive if they were paid higher duties at Level 3 rates under the Award.

[44] Endeavour is also prepared to Undertake that the exclusion set out in the first dot point under the 'Note:' in respect of the 'in-charge' allowance will not apply in circumstances where the Manager is away from the store because they are managing another store.

[45] I am satisfied by the evidence given by Mr Kakwani that the Undertaking concerning the payment of an In-Charge allowance of $5.20 whenever an Employee in a BWS store is in-charge of the store, regardless of the time period for which the Employee is in-charge, will ensure that the Employee will be better off than if they were paid higher duties at Level 3 under the Award.[15] Mr Kakwani's analysis shows that such an Employee is better off under the Agreement whether they work a shift of average length or a full length shift for the day.[16] In accordance with clause 5.2 of the Agreement, the In-charge allowance is paid per shift if the Employee is "in-charge at a BWS store". The clause does not require the Employee to be "rostered to be in charge" to be entitled to the allowance. In any event, as Mr Kakwani explained in his oral evidence, a roster at a BWS store will show when an Employee is in-charge of the store, even if the roster has to be amended after the time has been worked by the Employee.

[46] Dan Murphy's stores are larger and have more employees per store than BWS store. As a result of these differences, there is no BOOT concern regarding Employees at Dan Murphy's stores being paid an In-charge allowance. It is not reasonably foreseeable that such Employees will be in-charge of a Dan Murphy's store. Managers or duty managers will be in-charge of Dan Murphy's stores.

[47] RAFFWU submits that the Agreement extends the span of hours on all days to 11pm as compared to the Award. The Federal Court has determined the Award clause is to be construed as entitling an employer to extend the span of hours pursuant to Award clause 15.2 where the trading hours of a particular store on a particular day are extended.[17]

[48] RAFFWU submits that many Endeavour stores close at or earlier than the relevant trading hours at clause 15.1 of the Award. At least some employees are working beyond 9pm in circumstances where the store ceases trade at 9pm on a weekday. The effect of the Agreement extension is, so RAFFWU contends, to entitle Endeavour to regularly roster hours beyond those which may be rostered under the Award, and to pay ordinary rates for such hours which would otherwise be overtime rates. For example, any Employee working after 9pm on a weekday in a store which closes at 9pm would be entitled to overtime rates under the Award for all time worked after 9pm.

[49] Since the rates of pay are only marginally above the Award rates, RAFFWU submits that such Employees will be paid less at such times under the Agreement than they would under the Award. This includes casual employees. This is so because the Award provides overtime rates for time worked outside the span of hours. RAFFWU contends that those rates are significantly higher than the rates of pay under the Agreement.

[50] Endeavour submits that in his evidence Mr Kakwani identifies two scenarios where there is the potential for employees to be paid less than their entitlement under the Award, namely where an employee:

• (a) classified as a Team Member works more than 30 minutes beyond 6:00 pm on a Sunday; and

• (b) classified as a Senior Team Member works more than 45 minutes beyond 6:00 pm on a Sunday.

[51] Endeavour submits that this is despite the fact that Employees on average only work 15.48 minutes past 6:00pm or 9:00pm as relevant (and in those circumstances, Employees would be better off under the Agreement as compared to the Award).

[52] To address this potential concern, Endeavour has provided an Undertaking in the following terms:

"Where a Team Member performs work for more than 30 minutes past 6 pm on a Sunday in a store that does not trade past 6 pm on that day, the Team Member will be paid overtime from 6:30 pm. Where a Senior Team Member performs work for more than 45 minutes past 6pm on a Sunday in a store that does not trade past 6 pm on that day, the Senior Team Member will be paid overtime from 6:45 pm."

[53] I am satisfied by Mr Kakwani's evidence that this Undertaking overcomes the BOOT concern identified by RAFFWU.[18] The data on which Mr Kakwani relied to perform his analysis relates to the period from 8 September 2025 to 5 October 2025. Although Endeavour employed more employees during this period than it did at the time the Agreement was made, I consider the period from 8 September 2025 to 5 October 2025 to be a reasonable period for the assessment of reasonably foreseeable time that may be worked by an Employee beyond their rostered shift when they close a store. Further, Mr Kakwani's analysis examines scenarios of 30 minutes and 60 minutes past the end of a rostered shift, not just the average of 15.48 minutes.

[54] I also accept Mr Kakwani's evidence that the scenario presented in paragraph [5] of RAFFWU's submissions in reply[19] does not present a BOOT concern. Mr Kakwani explained that, first, it would be highly unusual for a casual employee to work a three hour shift from 6:30pm until 9:30pm on a Friday night. It would unusual for a casual employee to work a shift from 6:15pm until 9:15pm on a Friday night. Secondly, Mr Kakwani explained that if a casual employee worked from 6:15pm until 9:15pm on a Friday night, they would be paid more under the Agreement compared to the Award and they would also be paid the In-charge allowance if they were closing a BWS store at 9pm.

[55] RAFFWU submits that the Agreement does not replicate the Award structures relating to break entitlements in relation to rostering and changing breaks. Under the Award, rest breaks must be rostered. Under the Agreement, there is no such protection. Under the Award, the timing and duration of meal breaks and rest breaks are to be included in the roster and subject to the roster protections in the Award. It is submitted that there is no such protection under the Agreement.

[56] RAFFWU submits that the right to have breaks rostered includes a right to only have changes made to the timing and duration of those breaks following consultation. It is submitted that the courts and Commission have long considered the important value of consultation.

[57] Endeavour submits that clause 7.1.5 of the Agreement provides that the timing and duration of meal breaks are to be included in the roster, and that Endeavour will seek to ensure meal breaks are taken at the rostered time. It is submitted that the Agreement affords Endeavour operational flexibility to change the timing of the meal break to meet the reasonable operational requirements of the store. However, in these circumstances the Agreement provides a number of protections to team members, as follows:

• (a) if a team member's rostered meal break time is changed frequently or unreasonably, the team member may commence a dispute in accordance with clause 22 of the Agreement;

• (b) a team member will not work for more than 5 consecutive hours without an unpaid meal break; and

• (c) unless otherwise requested by the team member, breaks are not to be taken within 1 hour of starting or finishing work and Endeavour Group will not require a team member to combine a rest and meal break.

[58] Endeavour submits that clause 7.2.2. of the Agreement provides that rest breaks shall be at a mutually agreed time. This allows for operational flexibility but provides a protection to team members because of the requirement for mutual agreement. The requirement for mutual agreement as to the timing of rest breaks is consistent with the current provisions under clause 7.2.3 of the BWS Agreement and clause 7.2.3 of the Dan Murphy's Agreement.

[59] To the extent that the flexibility to change the rostered time of a meal break and/or the absence of a requirement to roster rest breaks is seen as a detriment as compared to the Award provisions, Endeavour submits that the Commission can be satisfied that the Agreement is otherwise more beneficial than the Award for the reasons set out in response to question 15 of the Form F17B.

[60] I accept that this matter is a detriment and will give it weight in my overall assessment of the BOOT.

[61] The Undertakings have addressed BOOT concerns in relation to the payment of an in-charge allowance, Employees working beyond trading hours for a particular store, preservation of Level 2 rates of pay for a limited number of Employees, and changes to standard rosters for part time team members.

[62] From the benefits identified in Endeavour's form F17B declaration, I consider the following benefits described by the SDA in its form F18 declaration to be worthy of note, albeit some of them are conditional:

"2. Wages that exceed the GRIA in every year of the Agreement.

3. Adult rates of pay for all employees regardless of age.

1. By agreement, an employee working a shift of no more than 5 hours and up to 6 hours may take their unpaid break at the end of their shift.
2. Part time employees are guaranteed a minimum average of 10 hours per week, increasing to 12 hours over the life of the Agreement.
3. Part time employees can elect to increase their contract hours if they have worked additional hours for at least 12 months. Where this average is 35 hours or above for a period of 12 months the employee can elect to become full time.
4. Where practical, Casual employees will be notified of their anticipated days and hours of work 14 days in advance.
5. Comprehensive facilitative provisions clause which includes greater protections for employees such as requirements to provide explanations of how the standard and varied conditions differ, that the agreement be entered into voluntarily by the employee, and that the employee is provided with an explanation of how to exit out of the arrangement.
6. Permanent Employees are entitled to 11 paid days of Personal/Carers Leave.
7. Permanent employees are able to access 'Personal Choice Leave' to attend to lifestyle and wellbeing needs, birthdays, cultural and religious activities, or any other activity that is important to them.
8. An employee is not required to provide medical evidence for the first 4 single shift absences for personal leave unless the shifts are a day before or after a public holiday.
9. An employee may provide evidence once every 6 months when caring for an immediate family member with a long term disability or illness.
10. Permanent employees are entitled to up to 10 days compassionate leave on the death of a spouse, defacto partner, child or Found Family. They are also entitled to 10 days compassionate leave if they or their partner experience a stillbirth. Employees are entitled to 3 compassionate leave upon the death of a range of non-immediate family and upon the event that they or their partner suffer a miscarriage.
11. Superior family and domestic violence leave for casual employees as they will be entitled to payment calculated on the average number of shifts and hours worked in the previous 6 months in periods where they require leave and have not been rostered/accepted rostered shifts.
12. Uncapped jury service leave.
13. Permanent employees are entitled to up to 2 weeks paid emergency service leave per calendar year. Casuals can access unpaid emergency services leave.
14. Permanent employees are entitled to top up pay for a maximum of 2 weeks for defence forces leave. Casuals can access unpaid defence forces leave.
15. Permanent employees are entitled to up to 3 days paid natural disaster leave. Casuals can access unpaid natural disaster leave.
16. Permanent employees are entitled to up to 8 hours of paid blood donor leave (2 hours x 4 occasions).
17. Long service leave may be taken at double the period and half the pay where this provision is not provided for in the relevant state or territory legislation. Additionally, public holidays that fall during this leave are re-credited where the state or territory legislation does not provide for this entitlement.
18. Employees may request to take an unpaid leave of absence for a period of 1 week or more for a wider range of reasons.
19. All work on Christmas Day where not a public holiday is voluntary and where a team member works they will be paid at the rate of 200% for permanent employees and 225% for casual employees.
20. Permanent employees in NSW will receive the first Tuesday in November each year as a paid day off or a day off in lieu where the employee has that day in their roster.
21. If Easter Sunday is not declared a public holiday in Tasmania, it will be treated as a public holiday.
22. Employees in Victoria engaged prior to 11 June 2019 are able to access top up payments on workers' compensation.
23. Superior redundancy entitlements.
24. Inclusion of a Work & Care clause that contains principles that recognise that employees have caring commitments outside of work and includes references to meaningful hours of work and predictable and stable working hours and rosters.
25. An employee and Endeavour Group can agree to an arrangement where hours worked outside the span of hours are to be paid at the overtime rate equivalent and include employer superannuation contributions and leave accruals.
26. An employee and Endeavour Group can agree to an arrangement that allows for cross-site/cross-brand work. The employee can nominate additional sites that they are willing to work at and consequently access additional hours of work.
27. Employees have access to a specific process to address concerns about workload and staffing.
28. Employees may request, and Endeavour Group may agree to an arrangement that allows for employees to work 2 shifts on the same day. There are strict provisions around the form of this arrangement including a minimum 3 hour shift length of each shift, minimum break time between shifts, rest and meal breaks not to be taken during breaks between shifts and the employee being able to exit out of this arrangement on the provision of notice in writing.
29. Additional paid day of training for Union Delegates per subsequent year after initial training."

[63] Having carefully considered all the benefits and detriments in the Agreement (considered together with the Undertakings) compared to the Award, my value judgment is that I am satisfied, as at the 'test time', that each award covered Employee, and reasonably foreseeable employee, for the Agreement would be better off overall if the Agreement applied to the Employee than if the Award applied to the Employee. The benefits, including the higher pay rates, outweigh the detriments.

[64] Section 186(2)(a) of the Act requires that the Commission be satisfied that the Agreement was genuinely agreed to by the Employees covered by the Agreement. Section 188 goes on to set out certain matters that the Commission must take into account or be satisfied of in determining whether an agreement has been genuinely agreed. Relevantly for present purposes, s 188(1) of the Act requires the Commission to take into account the Statement of Principles made under section 188B in determining whether it is satisfied that the agreement was genuinely agreed.

[65] Further, s 188(4A) of the Act states the Commission cannot be satisfied that an agreement was genuinely agreed unless it is satisfied that the employer complied with s 180(5) of the Act. Section 180(5) requires an employer to take all reasonable steps to explain the terms of an enterprise agreement and the effect of those terms and ensure that the explanation is provided in an appropriate manner taking into the particular circumstances of the employees who will be covered by the agreement.

[66] The purpose of the requirement in 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".[20]

[67] Reaching the requisite state of satisfaction as to compliance with s 180(5) depends on the circumstances of the case. The nature of the requirement was helpfully summarised by a Full Bench in Australian Workers' Union v Rigforce Pty Ltd[21] as follows:

"[35] In considering the 'genuinely agreed' ground of appeal, it is necessary for reasons which will become apparent to consider in detail only the question of compliance with the pre-approval step in s 180(5). The nature of the requirement in s 180(5) was analysed in detail by the Federal Court (Flick J) in CFMEU v One Key Workforce Pty Ltd. We adopt the summary of that analysis set out in CFMMEU v Ditchfield Mining Services Pty Limited, which reduced it to the following four propositions:

(1) whether an employer has complied with the obligation in s 180(5) depends on the circumstances of the case;

(2) 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;

(3) 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 relevant employees in a manner that considers their particular circumstances and needs. This requires attention to the content of the explanation given; and

(4) an employer does not fall short of complying with the obligation in s 180(5) of the FW Act merely because an employee does not understand the explanation provided.

[36] Additionally, we also adopt the analysis of Gostencnik DP in BGC Contracting Pty Ltd concerning the nature of a statutory obligation to take "all reasonable steps" as follows (footnote omitted):

[43] A requirement or obligation to take "all reasonable steps" seems to me to require the identification of the steps a reasonable person would regard as reasonable in the circumstances that apply. Whether particular steps are reasonable will depend on the particular circumstances existing at the time the obligation arises. A requirement to take all reasonable steps does not extend to all steps that are reasonably open in some literal or theoretical sense..."

[68] On 12 May 2023, the Commission issued the Statement of Principles pursuant to s 188B of the Act which relevantly states as follows:

"This Statement of Principles sets out matters that the Fair Work Commission (FWC) must take into account in determining whether it is satisfied that an enterprise agreement 'has been genuinely agreed to by the employees covered by the agreement'.

The Fair Work Act 2009 (Cth) (Fair Work Act) provides that an enterprise agreement must be approved by the FWC to come into operation. Section 186 of the Fair Work Act sets out general requirements for the approval of an enterprise agreement. These requirements include, if the agreement is not a greenfields agreement, that the FWC is satisfied the agreement has been genuinely agreed to by the employees covered by the agreement.

Section 188 sets out requirements that must be met for the FWC to be satisfied an enterprise agreement has been genuinely agreed to by employees. One of these requirements (in section 188(1)) is that the FWC must take into account this Statement of Principles on Genuine Agreement, which is made by the FWC under section 188B.

The Fair Work Act also generally requires the FWC to be satisfied that a variation of an enterprise agreement has been genuinely agreed to by employees before it can approve the variation. In determining whether it is satisfied that a variation has been genuinely agreed to, the FWC must take into account this Statement of Principles on Genuine Agreement in the manner and to the extent provided for in the Fair Work Act and the Fair Work Regulations 2009.

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.
2. 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 provided until completion of the voting process.

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

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

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

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

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

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

1. In explaining to employees how the proposed enterprise agreement will alter their existing minimum entitlements and other terms and conditions of employment, there is usually no need to explain trivial differences between the proposed agreement and an existing enterprise agreement or modern award that have no effect on employees' entitlements or obligations.
2. 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.
3. In determining whether section 180(5) has been complied with, the FWC may have regard to any explanation of the proposed enterprise agreement given to employees by one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.
4. Subject to paragraph 13, an employee may be provided with the explanation required by section 180(5):

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

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

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

1. Where an employee is provided with the explanation required by section 180(5) in part or full by the method in paragraph 12(a) or 12(b), the employee should have a reasonable opportunity to read the explanation. Where an employee is provided with the explanation required by section 180(5) in part or full by the method in paragraph 12(c), the employee should have a reasonable opportunity to attend the oral explanation.
2. Section 180(5)(b) of the Fair Work Act requires the explanation of the proposed enterprise agreement to be provided in an appropriate manner taking into account the particular circumstances and needs of the employees. In determining whether the explanation of the proposed enterprise agreement was given in an appropriate manner, in addition to taking into account the circumstances and needs of the kinds of employees in section 180(6), the FWC may take into account:

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

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

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

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

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

NOTE 1: Under section 180 of the Fair Work Act, before an employer requests that employees vote on a proposed enterprise agreement, the employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the employees employed at the time who will be covered by the agreement (section 180(5)(a)), and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees (section 180(5)(b)).

Section 180(6) provides that, without limiting section 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 section 180(5)(b):

(a) employees from culturally and linguistically diverse backgrounds

(b) young employees, and

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

NOTE 2: Section 188(5) provides that the FWC may disregard minor procedural or technical errors in relation to section 180(5), provided that it is satisfied that the employees were not likely to have been disadvantaged by the errors.

Providing employees with a reasonable opportunity to vote on a proposed agreement in a free and informed manner, including by informing the employees of the time, place and method for the vote

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 to 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.

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.

NOTE 1: Section 181(1) of the Fair Work Act provides that 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. If the agreement is a single-enterprise agreement (so that the employer is required by section 173(1) to give employees the notice of employee representational rights), section 181(2) provides that the request must not be made until at least 21 days after the day on which the last notice is given. Section 180A requires that, in relation to a multi-enterprise agreement, the employer must not make a request under section 181(1) unless each bargaining representative for the enterprise agreement that is an employee organisation has provided the employer with written agreement to the making of the request, or a voting request order made by the FWC permits the employer to make the request.

Section 182(1) provides that a single-enterprise agreement that is not a greenfields agreement is made when the employees of each employer that will be covered by agreement have been asked to approve the agreement under section 181(1) and a majority of those employees who have cast a valid vote approve the agreement. Section 182(2) provides that a multi-enterprise agreement is made when the employees of each employer that will be covered by agreement have been asked to approve the agreement under section 181(1), those employees have voted on whether or not to approve the agreement, and a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement.

NOTE 2: Section 188(5) provides that the FWC may disregard minor procedural or technical errors in relation to sections 180A, 181(2), 182(1) or 182(2), provided that it is satisfied that the employees were not likely to have been disadvantaged by the errors

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

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

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

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

(iii) geographic locations the agreement covers, and

(iv) industries and occupations the agreement covers.

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.
2. If one or more employee organisation(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 FWC in considering whether the agreement has been genuinely agreed.

NOTE: Section 188(2) provides that the FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employees requested to approve the agreement by voting for it:

(a) have a sufficient interest in the terms of the agreement (section 188(2)(a)), and

(b) are sufficiently representative, having regard to the employees the agreement is expressed to cover (section 188(2)(b))."

[69] It is important to understand that although the Commission is required to take into account the Statement of Principles in determining whether an agreement has been genuinely agreed, it does not operate as a set of mandatory rules that must be complied with by an employer absent which the Commission cannot be satisfied that an agreement has been genuinely agreed.[22] Where an employer follows pre-approval steps that are consistent with the Statement of Principles, that weighs in favour of a conclusion that an agreement has been genuinely agreed. The converse is also true.

[70] The Commission's requirement to take into account the Statement of Principles does not displace the requirement to consider each of the other matters set out in s 188 in determining whether an agreement has been genuinely agreed.

[71] A concern about s 180(5) of the Act may be able to be remedied by an undertaking in an appropriate case.[23]

Submissions by RAFFWU and Endeavour in relation to genuine agreement

[72] RAFFWU identifies a number of matters that it submits, individually, taken together or in any combination, have the effect that the Agreement was not genuinely agreed within the meaning of s 188 of the Act.

[73] RAFFWU submits the matters below make plain that Endeavour did not comply with s 180(5) nor any of the principles in the Statement of Principles save for the NERR requirements and notice of the vote (albeit not of an informed vote.)

[74] RAFFWU further submits the nature of informed agreement (referred to in the principles) was explicated, albeit in an alternative context, in the decision of Justice Perram in Fair Work Ombudsman v Woolworths Group Ltd.[24]

Access to the Agreement and related materials and explanation of the Agreement to Employees

[75] RAFFWU contends that Endeavour did not:

• (a) email the Agreement to Employees;

• (b) email a link to the Agreement to Employees;

• (c) SMS Employees about the Agreement;

• (d) give a printed copy of the Agreement to Employees;

• (e) print copies of its alleged explanatory information and give those copies to Employees; or

• (f) email or SMS any Agreement materials to Employees.

[76] RAFFWU contends that Endeavour's approach to communicating the terms of the Agreement was heavily reliant upon its managers at the individual level. Prior to issuing the NERR, managers were directed to undertake a number of steps on 4 March 2025, comprised of:

• (a) attending the 'One EA' briefing session regarding the bargaining process;

• (b) setting up a dedicated area on store notice boards for bargaining related communications and materials;

• (c) speaking to team members about bargaining for an enterprise agreement; and

• (d) notifying team members of the opportunity to provide feedback.

[77] On 16 July 2025, managers were again directed to undertake various steps to provide the explanatory materials to Employees. The difficulty, so RAFFWU contends, is the lacuna of direct evidence of this actually happening. Mr Kakwani's evidence does not go beyond his subjective 'understanding' that these things ostensibly occurred.

[78] RAFFWU submits that the highest Endeavour's evidentiary case rises is Mr Kakwani's hearsay evidence that managers completed Google Forms, requiring them to confirm that:

"I have shared all of the One Endeavour EA information and communications material with the hourly-paid team members in my store. This includes making reasonable efforts to engage team members on long term leave, as well as team members who don't regularly work."

[79] RAFFWU submits that three key issues arise in this respect. First, what an individual manager would have considered to be 'all the One Endeavour EA information and communications material', 'reasonable efforts' or 'team members who don't regularly work' would inevitably differ from one person to another. This calls into question whether those Employees on leave or 'who don't work regularly' were given a genuine opportunity to review all the materials. Given that casual Employees and part-time Employees comprise 98% of the workforce, this represents a significant issue. Second, a respondent to the Google Form could only click 'yes'. In other words, there was no ability for a manager to disclose that they had not shared some, or all, of the information when responding to this form: the epitome of form over substance. Such an approach artificially increased the positive response rates contained in RK-26 and is not a sound basis for the Commission to conclude that managers had, in fact, provided all the materials and adequately explained them to Employees. Third, managers who were yet to complete the Google Form were directed to complete the form nine days after the access period had already commenced. An inference is available that those managers had not, at that late stage, shared any information. Many managers only returned the Google Form to Endeavour late in the process, including, in many cases, after voting had closed.

[80] RAFFWU submits that employees should be given a reasonable opportunity to consider a proposed enterprise agreement before voting on it, so that employees can vote in an informed manner. A 'reasonable time period' is at least 7 full calendar days before the day on which voting starts, unless some other time period is agreed with a bargaining representative for a significant proportion of employees to be covered by the agreement: Principles 4-6. The Commission cannot be satisfied that this occurred.

[81] RAFFWU submits that from the time bargaining commenced on 4 March 2025 until after voting had opened, communications were only sent via email to store email addresses and directly to Dan Murphy's managers. Briefing sessions were held for managers and Customer Hub employees, but not hourly paid team members. Only the 108 Customer Hub Employees have regular access to a computer during their shift. For the remaining hourly paid team members, the materials could only be accessed via a store computer or their personal device in limited circumstances. To obtain access via their personal device, team members had to scan a QR code where it was displayed digitally on materials on the store computer, or the hard copy documents. They would then be prompted to complete a two-factor authentication process to log in to the intranet where these materials were stored.

[82] RAFFWU submits that, unsurprisingly, Employees do not have time to access the materials during work hours. This necessitated the ability to have access from home which was not available, unless an Employee had already scanned a QR code at work on their phone towards the end of their shift; travelled home with the web page still open; and began reviewing hundreds of pages of materials on their phone upon arrival at home. This was not a reasonable way to convey information to Employees.

[83] RAFFWU submits that the problem with this approach is further compounded as:

• (a) at least some Employees did not have access to the materials outside work; and

• (b) even if there was access for some Employees, Endeavour's explanation as to how materials could be accessed was apt to create confusion.

[84] As to the latter, RAFFWU submits that the flyers circulated stated that the materials could be accessed via a QR code only on 'work devices'. Team members do not have work mobile phones or laptops, and the only flyer that explicitly said that a 'personal device' could be used to scan a QR code was initially sent to managers only. Unsurprisingly, some Employees had no idea they could access these materials on their personal devices. Even where one accessed to the intranet via a store computer, there was a prompt to click on an icon about the upcoming vote, but this linked to a different webpage which did not contain the Agreement. Indeed, it is submitted that even managers had to trawl through the intranet just to find the Agreement. This was clearly not easily accessible for those voting on the Agreement, nor were managers tasked with providing the information.

[85] RAFFWU's submits that Endeavour's approach to communication was inherently likely to reduce the amount of Employee engagement and undermines the concept of genuine agreement. Of particular relevance here, so RAFFWU contends, is Endeavour's obligation to take all reasonable steps to ensure that an explanation is provided in an appropriate manner taking into account the particular circumstances and needs of employees: s.180(5)(b). This required Endeavour to cater to its almost exclusively casual and part-time workforce who, by virtue of the very nature of their engagement, were vulnerable and susceptible to the provision of insufficient information. That obligation extended to the overwhelming majority of Employees who did not have a bargaining representative for the Agreement: s.180(6)(c).

[86] RAFFWU contends that a reasonable step available to Endeavour was to simply send the Agreement and the explanatory materials directly to Employees' personal or work email addresses. Instead, it chose to place heavy reliance on its managers to relay information to employees for which there is no direct evidence. If Endeavour was capable of sending the materials to its store email addresses, it could have easily sent it to team members' 'basic account' email addresses, which are created during the onboarding process. Indeed, the NERR and voter access codes were sent directly via personal email addresses or SMS. Why there was a departure from this approach once the materials needed to be explained is unclear. It follows, so RAFFWU contends, that Endeavour did not take all reasonable steps.

[87] Endeavour submits that the Commission could not be satisfied that the Employees did not have access to relevant materials prior to voting on it. To that end, Endeavour submits that the evidence establishes that:

• (a) the One EA Team Site was established on Endeavour's intranet for the purpose of hosting all bargaining and Agreement related information in a central location, which could be accessed by all team members (and their Managers);

• (b) employees were able to access, through the One EA Team Site, a copy of the Agreement, all explanatory materials and additional resources, as well as all communications sent to Managers and store email addresses, including any materials prepared for Endeavour businesses covered by the Agreement but which the employee did not work in. For example, BWS and Dan Murphy's employees were able to access all communications, FAQ documents and briefing session materials (including the recording) provided to Customer Hub employees;

• (c) Employees were able to access the One EA Team Site via any store computer or via a team member's personal device;

• (d) managers were also required to make available to Employees a copy of the Agreement, either in hard copy or on the store computers. Copies of the Agreement were usually printed in full and placed on the particular store's notice board and where managers chose to make the Agreement available digitally, they took steps to make the Agreement readily available on the store computer, for example by saving a copy of the Agreement locally on the computer (so it did not need to be accessed via the One EA Team Site); and

• (e) throughout the bargaining process, access and vote periods, Managers were directed to assist Employees in accessing the Agreement and associated explanatory materials.

[88] Endeavour submits that the evidence of Mr Kakwani is sufficient to allow the Commission to conclude that Endeavour has satisfied the requirements in Items 4, 5, 8 and 9 of the Statement of Principles, and thereby complied with s 180(5) of the Act.

[89] RAFFWU submits that there was no explanation in any materials before the Commission that, for example:

• (a) part-time Employees would be worse off when compared to the Award given the Agreement does not confer them with 'guaranteed hours';

• (b) in certain circumstances, Employees would be worse off when compared to the Award by receiving the proposed in-charge allowance of $1.20 per shift if rostered to be in-charge for two hours or less, or $4.00 per shift if rostered to be in-charge for two hours or more (which has since sought to be cured by way of a payment of $5.20 per shift where an Employee is rostered to be in-charge);

• (c) by reason of the increase to the span of hours, team members would be worse off in the circumstances identified in Endeavour's own submissions; or

• (d) Employees may not be able to take their meal breaks at the rostered time.

[90] RAFFWU submits that the 'explanations' did no more than repeat or rephrase the words of the relevant provisions. RAFFWU submits that the Commission has held that the proffering of undertakings does not necessarily overcome non-compliance with s 180(5). That is because employees would be deprived of making an informed choice. Had they been conferred with such an opportunity, they may well have decided to vote down the Agreement.[25]

[91] Endeavour submits that the explanatory material provided to Employees is canvassed at clause 21.2 of the Form 17B declaration and Attachments G - I, J, K, L, M, N and O thereto.

[92] In addition to Endeavour's own materials, it says that it actively circulated materials prepared by the SDA to assist in explaining the terms of the Agreement to Team Members. Relevantly, the SDA's material identified the key changes in the Agreement, including in relation to:

• (a) wage rates;

• (b) amendments to the higher duties allowance and the new in-charge allowance applicable to BWS employees;

• (c) breaks and rostering provisions;

• (d) leave entitlements; and

• (e) the dispute resolution procedure.

[93] Endeavour submits that, as identified in Item 11 of the Statement of Principles issued pursuant to s 188B, in determining whether s 180(5) of the Act 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 bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.' Endeavour contends that the Commission can be satisfied that the SDA, as the bargaining representative that represents the largest cohort of Employees to be covered by the Agreement, was acting 'for a significant portion of the Employees to be covered by' the Agreement. As a consequence, the materials it provided to Employees are to be taken into account when determining whether the Agreement was properly explained.

[94] Taking the material produced by Endeavour and the SDA together, Endeavour submits that the Commission should be satisfied that Employees have received an appropriate explanation of the terms of the Agreement for the purposes of s 180(5).

Did Endeavour misrepresent terms of the Agreement?

[95] RAFFWU relies on the fact that Endeavour alleges it represented to Employees that if a dispute was not resolved a party to a dispute could refer the matter to the Commission who will first try to resolve the matter through conciliation, and if that doesn't work, try to resolve the matter through arbitration. However, the Agreement only confers a right to consent arbitration. RAFFWU contends that this is a misrepresentation of the terms of the Agreement.

[96] Endeavour submits the Commission could not be satisfied that Endeavour made a misrepresentation to Employees in relation to the operation of the dispute resolution clause. Noting that it is permissible to take into account the explanatory material provided by the SDA in determining whether s 180(5) of the Act has been complied with, Endeavour relies on the fact that the SDA identified:

"Under the proposed Agreement, for a matter to proceed to arbitration it must be by consent and at the request of both parties. Where a team member is represented by the SDA/AWU, Endeavour will provide their consent to the FWC arbitrating that dispute."

[97] In response, RAFFWU submits that Endeavour solely relies on the SDA's explanation of the dispute resolution procedure to overcome its own deficient explanation of the effect of those terms. RAFFWU submits that the Commission may have regard to any explanation given to employees by a union acting as a bargaining representative for a significant proportion of employees to be covered by the agreement: Principle 11. RAFFWU contends that two issues arise in this respect. First, the conflict between what was canvassed by Endeavour and the SDA, at best, left Employees confused as to their entitlements under the dispute resolution procedure. The SDA's materials cannot, so RAFFWU contends, overcome the deficiencies of Endeavour's explanation. It follows, according to RAFFWU, that the Commission ought not exercise its discretion to consider the SDA's explanation of the dispute resolution procedure. To that end, RAFFWU submits that s 180(5) will generally not be satisfied if an 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: Principle 10. Second, RAFFWU submits that the SDA's membership of around 22% of the workforce does not represent a 'significant proportion' of employees. Accordingly, RAFFWU contends that the Commission cannot have regard to the SDA's explanation in any case.

Did Endeavour inform any Employees that some Employees would have substantial wage cuts imposed on them by the Agreement?

[98] As a result of the abolition of higher duties allowances in the Agreement, RAFFWU submits that Employees who would be covered by the Agreement and who are presently covered by the BWS Agreement (the majority of Employees to be covered by the Agreement) will be entitled to remuneration under the Agreement that is less than that to which they are presently entitled under the BWS Agreement.

[99] RAFFWU submits that Endeavour should have explained to all Employees who would be covered by the Agreement and therefore eligible to be invited to vote under s 181(1) of the Act the effect of the Agreement on the rates of pay for those Employees. That was necessary, so RAFFWU contends, to ensure that the Employees were informed about what was being approved - being a reduction in rates of pay for some Employees. RAFFWU contends that Endeavour did not do so; Endeavour did not even explain this to directly affected employees.

[100] Endeavour submits that this ground of objection is contingent upon RAFFWU's complaints in relation to 'higher duties' being substantiated. However, for the reasons explained by Endeavour elsewhere in its submissions, Endeavour submits that the contention must be rejected. Accordingly, Endeavour submits that this particular objection in relation to alleged 'wage cuts' is unfounded, and can be dismissed.

[101] I am satisfied on the evidence before the Commission that Endeavour took the following steps in relation to s 180(5) of the Act:

• (a) Endeavour relied heavily on Managers to disseminate relevant information to Employees, including by sending emails containing relevant information to Manager email addresses for dissemination to Employees, directing Managers to hold in-person discussions with Employees in relation to the Agreement and an explanation of its terms, directing Managers to place written information on store notice boards and other dedicated areas of stores where hard copy notices and communications are kept for team members to review, directing Managers to share with Team Members explanatory material prepared by the SDA in relation to the Agreement including by displaying the SDA material on notice boards, the back of the break room door and in 'daily comms' folders, and directing Managers to print information in relation to the Agreement for Employees who requested it. Some Managers also communicated with Employees on WhatsApp in relation to the Agreement.

• (b) In addition to relying on Managers to disseminate information to Employees, Endeavour placed a significant amount of information in relation to the Agreement and its terms on a dedicated One EA Team Site, including a copy of the Agreement, all explanatory materials and resources save for the SDA explanatory material, all communications sent to Managers and store email addresses, FAQ documents, and briefing session materials. The One EA Team Site was a dedicated website on Endeavour's intranet for information on the bargaining process and the Agreement. Employees could either access the One EA Team Site on work computers or on their personal devices. Each BWS store has one computer available for use by Employees. It is usually located near the register at the store. That presents difficulties because Employees often do not have the time or ability to sit quietly and read documents on a computer located near the register in the store. Each Dan Murphy's store has more than one computer available for use by Employees. Sometimes the computer is located near the register, while in other stores there is a computer in another office or part of the store which can be accessed by Employees. As to accessing information on the One EA Team Site from a personal device, an Employee could use their personal device to scan in a QR code on one of the many fliers and notices displaying the code and then use two factor authentication to access the materials on the One EA Team Site. One flier mistakenly referred to using the QR code on a work device. There were no such work devices. The other documents containing a QR code did not make the same mistake. Any Employee who saw a QR code and used their phone to scan it in would have readily found out that it gave them a link to the relevant information. Alternatively, an Employee could use their personal phone or computer to log in to the BWS or Dan Murphy's intranet site, which can be accessed easily outside the workplace, and on the intranet site the Employee would have seen a link to the One EA Team Site in relation to the Agreement.

• (c) Endeavour sent information relating to the Agreement to store email addresses, which Employees could access on computers in stores on through the One EA Team Site.

• (d) Endeavour sent emails to the work email addresses for the 108 Customer Hub Employees.

[102] On 16 July 2025, Endeavour directed its Managers to complete a Google Form in which the Manager was required to confirm that they had complied with their obligation to review the Agreement related information shared with them, print and share the required information with Team Members, have a conversation with each Team Member to explain the Agreement and proposed changes, and make the Agreement available for Team Members.[26] RAFFWU criticises the Google Form because it did not permit a Manager to state that they had completed only part of the tasks required of them. I do not accept that criticism. It is clear from the terms of the Google Form that a Manager would not be able to tick the 'yes' box to state that they had "shared all of the One Endeavour EA information and communications materials with the hourly-paid team members in my store" unless they completed such tasks. RAFFWU further criticises the fact that some Managers of stores did not include their name on the Google Form, but instead included the location and/or email address for the store. I do not consider that this deficiency has a material impact on the evidentiary value of the Google Forms completed and returned to Endeavour.

[103] The evidence establishes that the Google Forms were completed and returned by a high percentage of Managers.[27] RAFFWU criticises the times at which many of those forms were returned by Managers (in many cases, after bargaining had started or ended) and the fact that Endeavour had to remind Store Managers who had yet to complete a Google Form. I do not accept either of these criticisms. The date on which the Google Forms were returned to Endeavour does not disclose when each Manager undertook each of the steps required by them. It simply states that such steps have been taken. In circumstances where there are close to 2,000 stores, it is not surprising that Endeavour had to remind Store Managers who had yet to complete a Google Form. The evidence does not reveal any systematic failure by Managers to comply with the directions given by Endeavour for Managers to provide relevant information to Employees. Indeed, the evidence given by a number of RAFFWU's witnesses demonstrates that they received relevant information from Managers. That evidence only discloses a handful of cases where those Employees, out of a pool of almost 13,000 Employees, had any difficulty obtaining information in relation to the Agreement.

[104] Endeavour's original plan was to hold the access period from 7 to 20 July 2025 and the vote from 21 July 2025 to 3 August 2025. This plan was communicated to Employees. But the plan subsequently changed and Endeavour directed Managers to inform Employees of the new plan to conduct the access period from 16 to 29 July 2025 and the vote from 20 July to 10 August 2025.

[105] Endeavour directed its Managers to share with Team Members explanatory material prepared by the SDA in relation to the Agreement, including by displaying the SDA material on notice boards, the back of the break room door and in 'daily comms' folders. This was an important step for Endeavour to take because the SDA explanatory material included information about important changes such as amendments to the higher duties allowance and the introduction of an In-charge allowance for BWS Team Members, breaks, rostering, and the dispute resolution procedure.[28]

[106] The SDA has about 3,165 members who are within the cohort of Employees to be covered by the Agreement. This represents about 22% of the relevant cohort. In my view, this is a significant proportion of the Employees to be covered by the Agreement. It follows that I can have regard to the explanation of the Agreement given by Employees by the SDA in my consideration of whether s 180(5) has been complied with: Statement of Principles 11.

[107] Taking into account the explanatory material produced by both Endeavour and the SDA, I am satisfied that the Employees received an appropriate explanation of the terms of the Agreement for the purposes of s 180(5) of the Act.

[108] I do not accept RAFFWU's contention that Endeavour misrepresented the terms of the Agreement to Employees. Endeavour informed the Employees that under the Agreement if a dispute was not resolved a party to a dispute could refer the matter to the Commission who will first try to resolve the matter through conciliation, and if that doesn't work, try to resolve the matter through arbitration.[29] This was an accurate, albeit incomplete, description of the dispute resolution clause in the Agreement. Clause 22 of the Agreement provides that the Commission will deal with a dispute in two stages. First, the Commission will attempt to resolve the matter through conciliation. Secondly, where the matter cannot be resolved by conciliation, at the request of both parties, the Commission may arbitrate the dispute. Endeavour's explanation did not state that the Commission could only "try to resolve the matter through arbitration" with the consent of both parties. This was a change to the dispute resolution procedures in the BWS Agreement and the Dan Murphy's Agreement, both of which only required the request of one party for the Commission to have power to arbitrate the dispute. However, the SDA's explanatory material informed Employees that a dispute could only proceed to arbitration before the Commission "by consent and at the request of both parties".[30] When this explanation is read together with Endeavour's explanatory material, I am satisfied that Employees were not misled and the terms of the Agreement were not misrepresented to Employees.

[109] An undertaking may address a concern that an employer has not complied with s 180(5) if the undertaking involves an adjustment to the terms of the relevant enterprise agreement such that the effect of the non-compliance with s 180(5) is overcome and the statutory purpose of s 180(5) is achieved.[31] For example, (a) an undertaking may alter the relevant terms of the agreement in a way that turns what was previously a misrepresentation about that term or its effect into a correct explanation of the term that complies with s 180(5) or (b) an omission to explain a detrimental term of the agreement in breach of s 180(5) may cease to be an omission if the undertaking removes the detrimental term from the agreement.

[110] The Undertakings given by Endeavour in this case will ensure that a number of terms of the Agreement are not less beneficial than corresponding provisions in the BWS Agreement, the Dan Murphy's Agreement and/or the Award, including the dispute resolution procedure, the In-charge allowance, the span of hours, and rostering of part time team members. To the extent that RAFFWU complains that various detriments in the Agreement were not explained to the Employees, I am satisfied that the Undertakings effectively remove the detrimental aspect of the relevant terms from the Agreement. As a result, I am satisfied that the Undertakings overcome the alleged non-compliance with s 180(5) and achieve the statutory purpose of the provision.

[111] In addition to the general findings set out in the previous paragraph concerning the Undertakings, I will specifically address the topic of changes to part time Employees' rosters because a number of submissions were made in relation to that subject following the hearing. RAFFWU submitted that Endeavour did not explain to the Employees the detriments in the Agreement compared to the Award in relation to changes to a part time Employee's roster. The first point to make is that a part time Employee's agreed weekly contract hours cannot be unilaterally reduced (or otherwise changed) by Endeavour under the Agreement. Secondly, clause 9.1 of the Agreement, which permits Endeavour to make relevant changes to a standard roster, is in materially the same terms as the corresponding provisions in the BWS Agreement and the Dan Murphy's Agreement. It follows that there is no material change to a team member's terms and conditions of employment as between the Agreement and either the BWS Agreement or the Dan Murphy's Agreement that ought to have been explained to Employees. Thirdly, the effect of the amendments to clauses 10.5(a) and 10.10(a) of the Award, which came into effect on 1 July 2021, did no more than remove ambiguity from the drafting of those provisions.[32] Accordingly, with respect to rostering provisions for part time employees contained in the Award, there have been no material changes since the BWS Agreement and Dan Murphy's Agreement were made, which Endeavour was required to explain in accordance with principle 8(a)(ii) of the Statement of Principles. Fourthly, the effect of Undertaking 9 is to effectively remove the detrimental aspect of the relevant term (as compared to the Award) from the Agreement and thereby overcome the alleged non-compliance with s 180(5) of the Act.

[112] As to each part of the Statement of Principles, I am satisfied that:

• (a) Endeavour complied with paragraphs 1 to 3 in relation to informing Employees of bargaining and their right to be represented by a bargaining representative;

• (b) Endeavour complied with paragraphs 4 to 7 by providing the Employees with a reasonable opportunity to consider the Agreement, including by ensuring that Employees had access to a copy of the Agreement and related material on the One EA Team Site during the relevant period;

• (c) Endeavour complied with paragraphs 8 to 14 by providing Employees with detailed written explanatory material from both Endeavour and the SDA in relation to the terms of the Agreement and the effect of those terms. The Employees had a reasonable opportunity to read that material before they were invited to vote on the Agreement. I am satisfied that the manner of the explanation given to Employees was appropriate taking into account the circumstances and needs of the Employees, including those matters referred to in subparagraphs 14(a) to (f), most notably in this case the lack of computers at the workplace and the very high percentage of casual and part time employees working for Endeavour, which necessitated the requirement that such employees be able to access and read the relevant material on their personal devices outside the workplace. For the reasons explained above, I am also satisfied that Endeavour did not make an incorrect representation or mislead the Employees about a significant term of the Agreement or its effect;

• (d) Endeavour complied with paragraphs 15 and 16 by providing the Employees with a reasonable opportunity to vote on the Agreement in a free and informed manner, including by informing Employees of the time, place and method for the vote. Managers were required to provide this information to Employees, including the change in timing for the access period and the vote itself. The fact that 8,816 Employees cast a valid vote is consistent with my satisfaction, on the evidence before the Commission, that Endeavour informed the Employees of the time, place and method for the vote and gave them a reasonable opportunity to vote. As well as Managers informing Employees of the vote, emails and text messages were sent directly to the Employees about the voting process; and

• (e) The Employees have a sufficient interest in the terms of the Agreement, the Employees are sufficiently representative, having regard to the employees the Agreement is expressed to cover, the Agreement was the product of an authentic exercise in agreement making, the Employees had an informed and genuine understanding of what was being approved, and both the SDA and AWU support approval of the Agreement and do not have concerns that the Agreement was not genuinely agreed by the Employees (paragraphs 17 to 19 of the Statement of Principles).

[113] Having regard to the steps taken by Endeavour to comply with s 180(5) of the Act, I am satisfied that the steps taken by Endeavour were reasonable in the circumstances and these were all the reasonable steps that should have been taken in the circumstances. The fact that Endeavour could have emailed information directly to all Employees' personal email addresses does not, in the circumstances of this case, demonstrate to my satisfaction that Endeavour has not taken reasonable steps to comply with its obligations under s 180(5) of the Act.

[114] Taking into account the matters set out in the Statement of Principles, I am satisfied that the Agreement was genuinely agreed to by the Employees.

[115] In accordance with s 190(3) of the Act, I may only accept the Undertakings if I am satisfied that the effect of accepting the Undertakings is not likely to:

• (a) cause financial detriment to any employee covered by the Agreement; or

• (b) result in substantial changes to the Agreement.

[116] The Undertakings have been provided to address various BOOT issues. The purpose of the Undertakings is to provide additional protection and/or benefits to Employees. I am satisfied that accepting the Undertakings would not be likely to cause financial detriment to any Employee covered by the Agreement.

[117] As to whether the effect of accepting the Undertakings is likely to result in substantial changes to the Agreement, it is relevant that the Undertakings do not seek to alter the structure of remuneration paid under the Agreement.[33] The Undertakings use the remuneration structure built into the Agreement and enhance benefits for Employees by increasing the entitlements paid to Employees in particular scenarios. I am satisfied that the Undertakings do not change the "essence or nature" of the Agreement.[34] Having regard to all the circumstances, I am satisfied that the effect of accepting the Undertakings is not likely to result in substantial changes to the Agreement.

[118] In accordance with section 190(2) of the Act, I am satisfied that the Undertakings will meet the concerns I have identified in relation to whether the Agreement meets the requirements set out in sections 186 and 187 of the Act.

[119] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[120] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[121] Subject to the Undertakings, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval of the Agreement have been met.

[122] The Agreement is approved and, in accordance with s 54 of the Act, will operate from 21 November 2025. The nominal expiry date of the Agreement is 30 June 2029.

[123] The SDA and AWU have each given notice to the Commission that they want to be covered by the Agreement. In accordance with s 201(2) of the Act, I note that the Agreement covers the SDA and the AWU.

[1] Hearing book at p 455[12] and [20]. The numbers of Employees provided by Mr Kakwani in paragraphs [12] and [20] of his witness statement relate to the dates of 14 and 21 October 2025, compared to the earlier date at which the Agreement was made (10 August 2025). Notwithstanding this, it is relevant to understand the approximate size of each broad group of Employees covered by the Agreement.

[4] [2010] FWAFB 9985 at [41]

[5] SDA v Beechworth Bakery Employee Co Pty Ltd [2017] FWCFB 1664 at [12]; s 193A(2) of the Act

[6] Re Australia Western Railroad Pty Ltd T/A ARG - A QR Company [2011] FWAA 8555 at [8]; NTEIU v University of New South Wales [2011] FWAFB 5163 at [47]

[7] TWU v Jarman Ace Pty Ltd [2014] FWCFB 7097 at [28]

[8] Loaded Rates Agreements [2018] FWCFB 3610 at [100]

[13] Woolworths Australian Food Group Agreement 2024 [2024] FWCFB 314 at [23]- [24]

[14] Retail and Fast Food Workers' Union Inc v Woolworths Group Limited [2025] FCAFC 105

[15] Hearing Book at pp 471 - 473[79]-[88]

[17] Fair Work Ombudsman v Woolworths Group Ltd [2025] FCA 1092 at [211]

[18] Hearing Book at pp 474 - 478[89]-[97]

[20] CFMMEU v Ditchfield Mining Services Pty Ltd [2019] FWCFB 4022 at [69], applying One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [115]

[21] [2019] FWCFB 6960

[22] SDA v Allen Family Pty Ltd [2024] FWCFB 48 at [76]

[23] CFMMEU v Mechanical Maintenance Solutions Pty Ltd [2022] FCAFC 15; (2022) 289 FCR 508 at [112]- [123] & [176]; SDA v Allen Family Pty Ltd [2024] FWCFB 48 at [92]

[24] [2025] FCA 1092 at [193]- [194]

[25] Re Ausdrill Pty Ltd [2022] FWC 2539 at [24]

[31] CFMMEU v FMS Group Pty Ltd [2022] FWCFB 18 at [28]- [29]

[32] Award flexibility - General Retail Industry Award 2020 [2021] FWCFB 3571 at [30]- [42]

[33] CFMMEU v Macmahon Contractors Pty Ltd [2018] FWCFB 4429 at [28]; CFMMEU v Lightning Brick Pavers [2018] FWCFB 3825; (2018) 281 IR 9 at [24]

[34] CFMMEU v C&H Acquisition Pty Ltd [2020] FWCFB 3134; (2020) 296 IR 294 at [37]

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