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

MONADELPHOUS (REGIONAL NSW) ENTERPRISE AGREEMENT 2025

Application for approval of the Monadelphous (regional NSW) Enterprise Agreement 2025

[1] An application has been made to the Fair Work Commission (Commission) for approval of an enterprise agreement known as the Monadelphous (regional NSW) Enterprise Agreement 2025 (Agreement). The application was made by Monadelphous Engineering Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). There were four unions that were bargaining representatives for the Agreement as well as five employee bargaining representatives. One of these bargaining representatives raised concerns that the Agreement does not 'represent a genuine agreement' and raised concerns that it did not pass the better off overall test. Despite this the parties, including the employee bargaining representative opposing the Agreement's approval, indicated that they were content for the Commission to determine the application based on the material before the Commission and I have done so.

[2] An application for approval of an enterprise agreement can only be made if the enterprise agreement is 'made' (s.185(1)). The Agreement is a proposed single enterprise agreement that is not a greenfields agreement. The Applicant is the sole employer covered by the Agreement. In these circumstances s.182(1) has the effect that if the employees of the Applicant have been asked to approve the agreement under s.181(1) the agreement is 'made' when a majority of those employees who cast a valid vote approve the agreement.

[3] In this regard section 181(1) provides that an employer that will be covered by a proposed agreement may request the employees 'employed at the time' who will be covered by the agreement to approve the agreement by voting for it.

[4] It is declared in the Form F17B that:

• the Agreement covered 201 employees at the time of the vote;[1]

• 176 of these employees cast a valid vote;[2]

• 89 employees voted to approve the Agreement.[3]

[5] The data above suggests that there was a narrow majority (50.57%) and this warrants close attention to the voting cohort, particularly where a concern has been raised that the Agreement does not 'represent a genuine agreement'.

[6] It is also declared in the Form F17B that 91 of the employees covered by the Agreement are casual employees.[4] The Commission sought further information to understand whether the casual employees who were asked to vote on the Agreement were eligible to vote. The Applicant filed submissions to address this question along with statements of evidence from Tyler Clews, the Applicant's Industrial Relations Manager and Mark Deters, the Applicant's Rope Access Superintendent.

[7] The question of whether casual employees are eligible to vote on an enterprise agreement is a complex one that has been considered by a Full Court of the Federal Court and multiple Full Benches of the Commission. A majority of the Full Court of the Federal Court in National Tertiary Education Industry Union v Swinburne University of Technology[5] considered the Act as it then stood and observed that the procedure available to an employer under s.180(1) was subject to ss. 180(1), (2), (3) and (4) which were as follows:

• (1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

• (2) The employer must take all reasonable steps to ensure that:

  • (a) during the access period for the agreement, the employees (the relevant

employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).

[8] The majority of the Full Court noted that both ss.180(1) and 180(2)(a) used the expression "the employees employed at the time who will be covered by the vote".[6] In Swinburne the employer had put the agreement to its staff for a vote in February 2014 and the persons requested to vote included sessional academic staff who had been engaged at any time in the 2013 academic year. The Commission had summarised the context and employer's approach to determining the eligibility of these casual employees to vote as follows:

[28] ... The 2014 academic year commenced on 3 March 2014. Sessional academic staff are commonly engaged in the first week of the academic year. The sessional staff engaged in the first week of the academic year would be likely to have included staff who had been employed as sessional employees the previous year and those who were not.

[29] In contrast, the voter roll for the ballot to approve the 2014 Agreement was compiled having regard to whether a sessional employee had performed any work for Swinburne in the previous 12 months before the closing of the ballot to approve the 2014 Agreement. This list will probably have included some sessional employees who did not seek to work as sessional employees in 2014 and some employees who Swinburne did not ultimately engage to perform sessional work during the course of 2014.

[9] The Full Bench of the Commission considered that the relevant question was how to determine which casual or sessional employees were to be included in the request and which employees should be excluded.[7] The Full Bench ultimately found that it was appropriate to include sessional academic employees engaged during the previous academic year unless there was a basis for the employer to believe that a particular sessional employee was not likely to be engaged in the in the ensuing year and said:

"A person who, though employed as a sessional employee in the previous academic year, is not likely to be employed in the subsequent academic year cannot in our view be said to be employed or usually employed, and is therefore not "employed at the time" within the meaning of s. 181(1)..."[8]

[10] The Full Court considered the approach of the Full Bench in the context of the scheme of the Act then in place and the majority said:

[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.

[23] It will be seen that, broadly, this scheme of things is divided into three stages: pre-bargaining steps, bargaining, and the making of the agreement. As noted above, although there are specific time limits for the taking of some of the required, or permitted, steps, there is no time limit on bargaining. There is no reason why bargaining may not take many months, and we may, I consider, take judicial notice of the fact that it sometimes does. The legislature must have contemplated that employees would, in the normal course of labour turnover, come and go during an extended bargaining period. There should, therefore, be no assumption that the employees employed at the notification time for the agreement under s 173 would be the same employees as those employed "at the time" of the provision of a copy of the agreement under s 180, or as those employed "at the time" of the employer's request under s 181.

[24] Indeed, in my view, the legislature must be taken to have made the contrary assumption. The architecture of these provisions inescapably involves the perception that those who are provided with a copy of the agreement and are requested to vote, on the one hand, need not be the same as those who were, at some previous point, notified of their representational rights, on the other hand. Those to whom a request under s 181(1) should be addressed are confined, in my view, to those who are employed at that time. No other conclusion makes sense of the statutory scheme.

[11] The effect of the majority of the Full Court's reading of s.181(1) in Swinburne was that an employer should only make a request under s.181(1) to employees who are employed 'at the time', as opposed to those who are not employed at the time but who might otherwise be regarded as 'usually employed'.

[12] The majority of the Full Court went on to say:

[25] It is not necessary to consider whether employees to whom a copy of the proposed agreement was given under s 180 should, or may, be included within the requested group under s 181. The present case does not depend on such fine distinctions. However, and although the question was not argued, I would be disposed to the view that the "time" referred to in s 180(2)(a) is the whole of the "access period". Since that period is, at its later boundary, contiguous with the time of the request under s 181, the better view may be that such employees should be so included.[9]

[13] In Appeal by Kmart Australia Limited t/a Kmart and others[10] the Full Bench of the Commission also considered the scheme of the Act as it then stood and found:

[31] The above considerations lead us to conclude that the "request" contemplated by s 181(1) is a single act or event which occurs at the end of the access period and immediately prior to (or perhaps upon) the commencement of the voting process. This is consistent with the conclusion of Jessup J in Swinburne that the end of the access period "...presumably is the point in time at which the employer makes the request..." and that the access period is "at its later boundary, contiguous with the time of the request under s 181". 16 It is also consistent with the tentative view expressed by the Full Bench in CFMMEU v CBI Constructors Pty Ltd17 that the "request" aligns with the commencement of the voting process:

"[26] ...Section 181(1) only refers to a "request" by the employer that relevant employees vote to approve the agreement, without saying anything about the nature of the voting process. This suggests that the voting process starts when the employer requests that it take place. However what in practical terms constitutes such a request is obscure, although presumably a request is implicit when the employer begins the conduct of a voting process intended to seek approval of a proposed agreement that had earlier been notified pursuant to s 180(3)."

[32] Section 181(1) refers to the "request" being directed at employees employed "at the time" who will be covered by the agreement. On an ordinary reading of the text, the "time" being referred to is the time of the request, and no party in the appeal contended otherwise. This was also the conclusion reached by Jessup J in Swinburne: "Those to whom a request under s 181(1) should be addressed are confined, in my view, to those who are employed at that time". 18 This must at least encompasses the precise time at which the request is made, which as earlier stated is to be located at the end of the access period and immediately before or at the commencement of the voting process. However in ordinary usage the phrase "at the time" may, depending on the context, also encompass a broader period in which a relevant event is located. In Swinburne, Jessup J expressed the following view:

"[25] It is not necessary to consider whether employees to whom a copy of the proposed agreement was given under s 180 should, or may, be included within the requested group under s 181. The present case does not depend on such fine distinctions. However, and although the question was not argued, I would be disposed to the view that the "time" referred to in s 180(2)(a) is the whole of the "access period". Since that period is, at its later boundary, contiguous with the time of the request under s 181, the better view may be that such employees should be so included."

[33] We would likewise prefer an approach whereby the "time" of the request referred to in s 181(1) encompasses the whole of the access period and is to be equated to the "time" referred to in s 180(2)(a). As earlier stated, s 180(1) obliges the employer to comply with the requirements set out in the section, and the evident policy purpose of that obligation and the specific requirements in s 180(2), (3) and (5) is to ensure that before a vote upon a proposed agreement commences, the employer has taken all reasonable steps to ensure that employees have access to a copy of the agreement, have had it explained to them, and have been informed of the time, place and method of the vote. These steps may broadly be characterised as directed at endeavouring to ensure that there is an "informed electorate" which is capable of genuinely agreeing to a proposed enterprise agreement. That statutory purpose would obviously be best achieved if those employees to whom a request may be directed under s 181(1) constitute the same group of employees in relation to whom the requirements of s 180(2), (3) and (5) apply. Conversely, the achievement of that purpose would be undermined if employees to whom these requirements did not apply because they were not employed at the time referred to in s 180(2)(a) could nonetheless be requested to vote to approve a proposed agreement pursuant to s 181(1).

[14] In Application by Woolworths Group Limited[11] the Full Bench observed in reference to Kmart:

[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.

[15] In Mc Dermott Australia Pty Ltd v Australian Workers' Union & Australian Manufacturing Workers' Union[12] the Full Bench considered the finding of the Commissioner at first instance that certain casual employees who voted were not employed at the time and said:

[35] The Commissioner was of the view that there was something wrong with the vote occurring while employees were not actually performing or being paid for performing work at the time of the vote. This in our view was incorrect; the status of the 36 casual employees at the time of the vote is a natural and expected phenomenon of being employed on a casual contract as per the Full Bench decision in Smiths Snackfood. In our view it would be inappropriate and counter intuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on to work on the day/s of the vote, or during the 7 day access period. There are obvious implications for voting manipulation adopting this approach. Swinburne is not authority for the proposition that a casual employee is only "employed at the time" they are rostered to work and are being paid. Swinburne eschewed the proposition that employed at the time included "usually employed".

[16] Smiths Snackfoods[13], referred to in the decision above involved a consideration as to whether a casual employee had met the minimum period of employment rather than a consideration of whether an employee had been 'employed at the time' as contemplated by s.181. The Full Bench in that matter did however make some findings about a casual employee's 'period of employment' for the purposes of s.384:

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee's period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of 'leave' or an absence due to illness or injury.

[17] CFMMEU v Noorton Pty Ltd[14] was decided prior to the introduction of a definition of casual employee in the Act. The Full Bench in that matter considered the phrase 'employees employed at the time' in s.181(1) and observed that:

• a casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern and does not provide a reciprocal commitment to the employer;[15]

• irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability were the usual manifestations of an absence of a firm advance commitment;[16]

• ordinarily, the general contractual characteristics of casual employment were that a person who worked over an extended period as a casual employee would be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however they will not be engaged under a single continuous contract of employment;[17]

• a person who is a casual employee but who is not working on a particular day or during a particular period, is unlikely to be employed on that day or during that period.[18]

[18] In that matter there were a number of cohorts of casual employee who were asked to vote to approve the Agreement. Of these the timesheets showed that:

• (a) 5 were not at work on the day of the vote; and

  • (i) 4 of these employees were not at work for periods of between one and over four months, covering the period during which the vote occurred;
  • (ii) there was no evidence of one of those employees performing any shift subsequent to the date of the vote;

• (b) there was no evidence of one of the employees working on duties of roles covered by the Agreement and that employee was marked as "Raratonga Cook Islands Whale Research" from one week following the vote without any scheduled date of return;

• (c) there was no evidence of one of the employees on a traineeship performing any shifts subsequent to 12 July 2017, the day after the ballot;

• (d) one employee had only worked three days as a deckhand; and

(e) records for one employee showed that they had worked shifts in a sales staff role that would not be covered by the Agreement.[19]

[19] The Deputy President at first instance concluded:

• the employees in category (a) above were absent "on a period of leave at the time of the vote" and that all five were expected to resume work and did resume work after that period of leave;

• the employees in category (b), (c) and (d) above worked on the day of the vote as deckhands and were entitled to vote;

• the employee in category (e) was a ticket seller who also performed shifts as a deckhand and was entitled to vote.[20]

[20] On appeal of the decision the Full Bench found there was an absence of evidence about the nature of the engagement which underpinned the casual employment of the persons asked to vote to approve the agreement but that it was plain on the evidence that at least some of the employees who were asked to vote did not work on the day of the vote or during the access period.[21] In this regard the Full Bench, in finding that the Deputy President erred in his conclusion that the casual employees in question were all 'employees employed at the time' said:

"...It is difficult to see how one can conclude that these employees were "employed at the time" without evidence about the terms under which they were engaged. It is equally difficult to see how one can conclude that particular casual employees were "on leave" at the relevant time without evidence about the terms under which these casual employees were engaged".[22]

[21] The scheme of the Act has changed since these cases were decided and the reference to the 'access period' has now been removed from the Act with the passage of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. Section s.180(1) of the Act remains the same in that before an employer requests that employees approve a proposed enterprise agreement by voting for the agreement it must comply with the requirements set out in s.180. However s.180 is different in that:

• section 180(2) has now been removed, being the requirement that employer take all reasonable steps to ensure that:

  • (a) during the access period for the agreement, the employees (the relevant

employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials;

• section 180(3) has now been removed, being the requirement that the employer take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

[22] The term 'access period', previously defined as the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1), therefore no longer appears in the current text of the Act.

[23] The Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022[23] explains:

'To provide greater flexibility, these detailed requirements would be subsumed within the overarching requirement for the FWC to be satisfied that an enterprise agreement has been genuinely agreed to by employees. Guidance on how an employer can seek employees' genuine agreement would be included in the statement of principles published by the FWC under new section 188B'.

[24] Application by Dof Subsea Australia Pty Ltd[24] is one of the only cases in which the Commission appears to have considered this issue in detail in the case of an application to which the post-reform genuine agreement provisions apply. In that matter Slevin DP said the following after considering the relevant case law:

[46] It appears from the cases that casual employees can vote on a proposed enterprise agreement if they are employed at the time of the request to approve the agreement, as specified in section 181(1). This includes casual employees who have accepted ongoing employment for a project, even if they are not working on the specific day of the vote or during the access period if they are considered employed during the access period. Casual employees who are engaged on an ongoing basis or have been allocated shifts on a roster during the access period are eligible to vote. However, casual employees who are merely "on the books" without current shifts or ongoing engagement are not considered employed at the time for voting purposes.[25]

[25] Slevin DP went on to observe that since the cases he considered were decided the Act has been amended to include a new definition of casual employee with the amended definition coming into effect on 26 August 2024.[26] The general rule in s.15A(a) is that 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.[27]

[26] Section 15A(2) provides that for the purposes of s.15A(1)(a) whether the employment 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

(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.

[27] These provisions indicate that the question of casual employement is not solely determined based on the terms of the contract but other matters including the real substance, practical reality and true nature of the employment relationship. A note at the end of s.15A(1) provides that an employee who commences employment as a casual employee remains a casual employee until the occurrence of a specified event (see subsection (5) (emphasis added). A question arises as to whether it was intended that any casual employee within the meanings of s. 15A(1) to (4) who remains a casual employee of the employer (i.e. because the events ins.15A(5) have not occurred) are eligible to vote. It is not necessary to determine this question based on the facts of this matter. However as noted by Slevin DP:

'The definition assists in that it requires an approach in the assessment of the nature of these employees that considers the real substance, practical reality, and true nature of the employment relationship. Account can also be had to the form of the contract of employment or, in addition to the terms of that contract, any mutual understanding or expectation between the employer and employee. For that purpose, 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'.[28]

[28] Despite the removal of the reference to the 'access period' in the Act, the SoPs relevantly provide:

• that 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 (Principle 4);
• that 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:
  • a full copy of the agreement, and
  • a full copy of any other material incorporated by reference in the agreement (Principle 5); and
• that a 'reasonable time period' will include:

  • at least 7 full calendar days before the day on which voting starts; or

  • such 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.

[29] It is difficult to see how employees could 'genuinely agree' to an agreement that they have not had access to. In this respect I consider it would remain necessary to provide to employees who are entitled to vote a copy of the agreement before requesting that employees vote on it if they are to 'genuinely agree' to it. In this sense the 'notion' of the access period is preserved, although the length of the period is not mandated, and guidance is to be drawn from the SoPs.

[30] Having considered the cases, I find that casual employees can vote on a proposed enterprise agreement if they are 'employed at the time', with the 'time' being when the employer requested that the employees approve the agreement. Having considered the current scheme of the Act, as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 as well as the cases referred to above, [29] I agree with the tentative view expressed by the Full Bench in CFMMEU v CBI Constructors Pty Ltd[30] that a request is implicit when the employer begins the conduct of a voting process intended to seek approval of a proposed agreement. I have formed the view that this "request" contemplated by s 181(1) is an event that occurs immediately prior to (or perhaps upon) the commencement of the voting process.

[31] Now that the Act has removed the express reference to the 'access period' a question arises around the applicability of the approaches that considered the "time" of the request referred to in s.181(1) as encompassing the whole of the access period. While I consider that 'the time' is a specific point in time, given the nature of casual employment I do not consider that the absence of an employee performing work or being rostered to work at that specific point in time is in itself definitive as to whether they were, 'employed at the time' for the purposes of s.181. In this regard, similar to the view expressed by the Full Bench in Mc Dermott Australia Pty Ltd v Australian Workers' Union & Australian Manufacturing Workers' Union[31] I consider it would be inappropriate and counter intuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on to work immediately prior to (or upon) the commencement of the voting process. That cannot have been an intended consequence of the scheme of the Act and the broader expression 'employed at the time' must therefore be interpreted applying a purposive approach. Having considered the cases on this issue and recent developments in the legislation, I am of the view that if the circumstances of the casual employees in question demonstrate that they are not just employees 'on the books' but, rather, establish the actuality and currency of their casual employment, those employees were 'employed at the time' and eligible to vote.

[32] Enterprise agreements that come before the Commission may purport to cover a large number of casual employees and inquiring into the circumstances of every one of these may give rise to significant inefficiency in the approval process. Notwithstanding this, I do not always consider a detailed level of inquiry will be necessary because in circumstances where:

• an employer has followed the guidance in the SoPs and has, within a reasonable time period before the start of the voting on the proposed agreement, provided employees covered with a copy of the agreement; and

• during the period between the provision of the agreement and vote, the employees covered and requested to vote on the proposed agreement have worked,

the fact of these employees working during the notional access period generally establishes that they are not just employees 'on the books. Rather, absent evidence to the contrary, it establishes the actuality and currency of their casual employment such that those employees were 'employed at the time' and eligible to vote. A complication arises however where employees did not work during this period, and this requires closer consideration of the circumstances of those employees.

[33] In the current matter, on 24 February 2025 employees were provided with a copy of the Agreement and incorporated award via email.[32] This was the start of the notional access period (Access Period). The Access Period ended when voting commenced on 6 March 2025.[33] There are 91 casual employees covered by the Agreement.[34] The uncontested evidence of Mr Clews was that the Applicant reviewed the payroll records of the 91 employees and only three did not work during the Access Period between 24 February 2025 and 6 March 2025.[35] In respect of the 88 employees who worked during the Access Period, attached to Mr Clews statement was a series of timesheets showing the employees' rostered hours during the access period and the relevant payslips in respect of work during the access period.[36] The evidence establishes that the 88 employees were not just employees 'on the books'. Rather, it establishes the actuality and currency of their casual employment and I find that those 88 employees were 'employed at the time' and eligible to vote.

[34] The three employees who did not work during the access period are referred to as Employee One, Employee Two and Employee Three in this decision.

[35] A question arises as to whether each of these employees were 'employed at the time' for the purposes of s.181(1).

[36] The Applicant submitted that Employee One was 'employed at the time' because they were not merely 'on the books' and had rostered shifts during the 'access period'.[37]

[37] Employee One:

• commenced work for the Applicant on or around 25 November 2024 as a Fitter and worked consistently for the Applicant;

• was rostered to work on 24, 25, 26 and 27 February as well as 2 March 2025 but was unable to attend the rostered shifts due to personal circumstances.[38] Attached to Mr Clews' statement was a copy of Employee One's roster demonstrating this.[39]

[38] In these circumstances I consider that Employee One was not just an employee 'on the books' but rather the evidence establishes the actuality and currency of the employee's casual employment at the time the request to approve the agreement was made. I find that Employee One was 'employed at the time' as contemplated by s.181 of the Act.

[39] The Applicant submitted that Employee Three was eligible to vote because they were engaged on an ongoing basis during the 'access period' and their absence was akin to authorised leave approved by the Applicant with an expectation from both parties that Employee Three would return to his regular duties at the conclusion of the agreed period of absence.[40]

[40] Employee Three:

• commenced work for the Applicant on 24 June 2024 as a Level Three Rope Access Technician[41] which:

o is a critical role within the Applicant's rope access crew such that if a Rope access technician is not available to oversee the allocated rope access duties, the allocated rope access tasks cannot be conducted; [42] and

o is required to hold the highest level of rope access certification together with extensive experience and knowledge of IRATA standards;[43]

• regularly worked hours Monday to Friday each week since commencement except for two periods of extended absence:
  • one being over the Christmas closedown period;

o the other being the period between 22 February 2025 and 23 March 2025 about which the Applicant consulted with their supervisor. [44] In particular, Employee Three approached Mr Deters requested to take a month off to travel in New Zealand and after discussion dates were agreed;[45]

• emailed Mr Deters on 10 March 2025 and sent a text message to Mr Deters on 18 March 2025 confirming his return to work on 24 March 2025;[46]

• was advised that he had been booked into the roster which likely occurred in mid to late February 2025 as rosters are typically forecast four to six weeks ahead.[47]

[41] The evidence regarding Employee Three's circumstances establishes that they were not just an employee on the books. Rather the evidence establishes the actuality and currency of their casual employment at the time the request to approve the agreement was made. I find that the Employee Three was 'employed at the time' as contemplated by s.181 of the Act.

[42] The Applicant submitted that Employee Two was 'employed at the time' because despite Employee Two's absence due to illness:

• Employee Two was cleared to work by their general practitioner between the time the employee was provided with access to the Agreement and was requested to vote (Access Period);

• Employee Two was not given shifts during the Access Period not because of the absence of available work but due to concerns regarding their fitness for work;

• both parties expected the casual ongoing engagement to continue, despite Employee Two's absence due to illness.[48]

[43] Employee Two:

• commenced work for the Applicant on or around 17 July 2025 as a Trades Assistant and has worked consistent hours Monday to Friday until 13 September 2024 at which time they were unable to work due to illness;[49]

• was paid income protection payments in accordance with clause 12 of the Monadelphous (Regional NSW) Enterprise Agreement 2021 (Current Agreement) up until they were declared fit to return to work on 25 February 2025;[50]

• was directed to undertake a medical examination on 5 March 2025 and was subsequently cleared to return to normal duties and returned on 10 March 2025 in accordance with their normal work pattern;[51]

• continues to work Monday to Friday.[52]

[44] Despite Employee Two's illness resulting in time out of the workplace they were engaging with their employer about their return to work and both parties expected that Employee Two would continue to be engaged to work once fitness for work was established. The evidence in relation to Employee Two's circumstances establishes that they were not merely an 'employee on the books'. Rather, it establishes the actuality and currency of their casual employment at the time the request to approve the agreement was made. I find that the Employee Two was 'employed at the time' as contemplated by s.181 of the Act. However, even if I am wrong about Employee Two, such that their vote should be discounted from the total votes (176) and the votes in favour of the Agreement's approval (89), there would be 88 votes in favour of approval out of a total of 175 valid votes which constitutes a majority.

[45] I find pursuant to s.181(1) the Agreement was 'made' as a majority of those employees who cast a valid vote approved the Agreement.

[46] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

[47] The application was also accompanied by a Form F17B declaration and was made within 14 days after the Agreement was made.

[48] The Australian Workers' Union (AWU), "Automotive, Food, Metals, Engineering, Printed and Kindred Industries Union" known as the Australian Manufacturing Workers' union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Construction, Forestry and Maritime Employees Union (CFMEU) were bargaining representatives for the agreement and all filed Form F18 declarations. The Form F18 declarations filed by the AMWU and CFMEU indicated that they supported the Agreement's approval. The CEPU and AWU did not indicate whether they supported or opposed approval but did not otherwise raise any concerns in relation to the application.

[49] In addition to the above-mentioned unions there were also five employee bargaining representatives. One of these employee bargaining representatives, Mr John Kennedy (Mr Kennedy), raised a number of concerns about the enterprise agreement which I deal with below.

[50] Section 186(2)(a) of the Act has the effect that the Commission cannot approve the Agreement unless it is satisfied that it has been genuinely agreed to by the employees covered by it.

[51] In an email to the Commission on 25 March 2025 Mr Kennedy said:

"I feel this agreement doesn't represent a genuine agreement. I was on the bargaining team as an employee representative officially representing myself unofficial representing the Narrabri site. The Agreement was the final offer by the company who chose to put the Agreement to a vote. The vote was 89 Yes 87 No. From 201 eligible voters. I do not support this Agreement.

[52] It is declared in the Form F17B that there are 201 employees covered by the Agreement, 176 cast a valid vote and 89 employees voted to approve the Agreement. While the voting outcome was close, this does not mean that there was no genuine agreement.

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

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

[54] Section 188(4)(a) of the Act provides that the Commission cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by it unless it is satisfied that the employer complied with ss. 173 and 174 (which deal with giving notice or employee representational rights).

[55] Principle 1 of the SoPs provides that the employer should ensure that employees of the employer who will be covered by a proposed enterprise agreement and are employed at the notification time for the agreement (as defined in section 173(2) of the Act) are informed:

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

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

[56] Principle 2 of the SoPs provides that where section 173(1) of the Fair Work Act applies to the employer in relation to a proposed enterprise agreement, the employer will be taken to satisfy paragraph 1 if, subject to paragraph 3, the employer gives a notice of employee representational rights in accordance with sections 173 and 174.

[57] Principle 3 of the SoPs provides that an employer should not mislead employees (by words, action or otherwise) as to:

• (a) the employees' right to be represented by a bargaining representative, or

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

[58] As noted above, the Agreement is a single enterprise agreement. Section 173 provides that an employer that will be covered by a proposed single-enterprise agreement (other than a greenfields agreement) must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

• (a) will be covered by the agreement; and

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

[59] It is declared in the Form F17B that the notification date for the Agreement was 11 April 2024 when the Applicant issued a memorandum notifying that it was initiating bargaining.[53] A copy of that memorandum was provided to the Commission. It is also declared in the Form F17B that the notice of employee representational rights (NERR) was issued that same day [54] and no party disputed this. A copy of the NERR was provided and is in a form that complies with the Fair Work Regulations 2009 (Cth) and it was not contested that this was the NERR provided to employees employed at the notification time.

[60] I am satisfied that the Applicant has given a NERR in accordance with ss. 173 and 174 of the Act. There is no evidence that the Applicant has mislead employees in the manner described in Principle 3. I am therefore satisfied that the Applicant has met Principle 1 of the SoPs.

[61] Section 188(4)(b) provides that the Commission cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by it unless satisfied that the employer complied with s.181(2) which requires that employees not be requested to approve certain enterprise agreements until 21 days after the last NERR is given.

[62] It is declared in the Form F17B that the last date that a NERR was given to an employee who will be covered by the Agreement and who was employed at the notification time was 8 January 2025. A copy of the relevant email was provided. This was more than 21 prior to the date on which employees were requested to approve the Agreement and I am satisfied that the Applicant has complied with s.181(2).

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

[63] Principle 4 of the SoPs provides that 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.

[64] Principle 5 of the SoPs provides that 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:

• (a) a full copy of the agreement, and

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

[65] Principle 6 of the SoPs provides that a 'reasonable time period' will include:

• (a) at least 7 full calendar days before the day on which voting starts; or

• (b) such 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.

[66] Principle 7 of the SoPs provides that the employer may provide the material specified in Principle 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

• (c) by a combination of the above methods, provided the employee has a reasonable opportunity to access and read the material during the whole of the period from the time the material is provide until completion of the voting process.

[67] It is declared in the Form F17B that voting on the Agreement commenced on 6 March 2025[55] and no party contested this. It is also declared in the Form F17B that on 24 February 2025 employees were provide with a copy of the Agreement and incorporated award via email[56] and no party contested this. A copy of the email sent to employees on 24 February 2025 was provided to the Commission.

[68] I am satisfied that the Applicant has met Principle 4 of the SoPs.

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

[69] Section 188(4A) of the Act provides that the Commission cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless satisfied that the employer complied with s.180(5).

[70] Section 180(5)(a) of the 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. Principle 8 of the SoPs provides that 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. The Agreement is replacing an existing enterprise agreement. In this respect Principle 8 relevantly provides that, subject to Principle 9, it will be sufficient to explain:

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

• (b) 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).

[71] Principle 9 provides that 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 the existing enterprise agreement or modern award that have no effect on employees' entitlements or obligations.

[72] Principle 10 provides that s.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.

[73] Principle 11 provides that in determining whether s.180(5) has been complied with the Commission may have regard to any explanation of the proposed 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.

[74] Principle 12 provides that subject to Principle 13, an employee may be provided with the explanation required by s.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 Commission may take into account whether there is a written record or summary kept of the oral explanation, or

• (d) by a combination of the above methods.

[75] Principle 13 provides that:

• (a) where an employee is provided with the explanation required by s.180(5) in part or full by the method in paragraph (a) or (b) of Principle 12 above, the employee should have a reasonable opportunity to read the explanation; and

• (b) where an employee is provide with the explanation required by s.180(5) in part or full by the method in paragraph 12(c) the employee should have a reasonable opportunity to attend the oral explanation.

[76] Section 180(5)(b) of the Act requires the explanation to be provided in an appropriate manner taking into account the particular circumstances and needs of the employees. Section 180(6) provides that, without limiting s.180(50(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 s.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.

[77] Principle 14 of the SoPs provides that in determining whether the explanation was given in an appropriate manner, in addition to taking into account the circumstances and needs of the kinds of employees in s.180(6) the Commission may take into account:

• (a) the location(s) where employees are working;

• (b) the environment(s) in which work is performed;

• (c) facilities available at the location(s) or in the environment(s) in which work is performed;

• (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.

[78] There were multiple bargaining representatives for the Agreement, including four unions. It is declared in the Form F17B that there were no employees from a non-English speaking background and that there was only one employee out of the 201 covered that was under the age of 21.[57]

[79] It is declared in response to q.22 of the Form F17B that:

• eight bargaining meetings were held between April 2024 and February 2025 in which the Agreement was "well ventilated" with employee representatives;

• between March 2024 and May 2024 the Applicant arranged several employee feedback sessions to allow employee bargaining representatives to communicate its proposal to the workforce;

• on 24 February 2025 the Applicant provided to employees via email a copies of the Agreement, current agreement, incorporated award and a summary of changes;

• employees were provided with the contact details of the Operations Manager to discuss the proposal and were otherwise encouraged to speak to the bargaining representatives.[58]

[80] A copy of the email circulated to employees on 24 February 2025 was provided to the Commission. That email attaches the Current Agreement, the Agreement, and the Manufacturing and Associated Industries and Occupations Award 2020. A summary of the key changes to the Agreement are provided in the body of the email. No party pointed to any deficiencies in the explanation provided.

[81] Having regard to the material before the Commission and SoPs, I am satisfied that the Applicant took 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 and that s.180(5) has been complied with.

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

[82] Principle 15 of the SoPs provides that employees should be given a reasonable opportunity to vote on a proposed agreement in a free and informed manner and that 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.

[83] Principle 16 of the SoPs provides that employees should be informed of the time, place and method for the vote:

• (a) at least seven full calendar days before the day on which voting starts, 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.

[84] It is declared in the Form F17B that on 24 February 2025 employees were sent an email informing them that the vote would take place by secret electronic ballot on 6 March 2025.[59] A copy of the email was provided to the Commission. It is also declared that the secret electronic ballot was administered by a third-party provider, IR Balots and that all employees were sent a message asking whether the endorsed the Agreement and were provided with an opportunity to respond 'yes' or 'no'.

[85] Having regard to the material before the Commission, I am satisfied that Principles 15 and 16 of the SoPs have been met.

[86] Section 188(2) of the Act provides that the Commission cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless satisfied that the employees requested to approve the agreement by voting for it:

• (a) have a sufficient interest in the terms of the agreement (s.188(2)(a)); and

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

[87] Principle 17 of the SoPs provides that in considering whether employees have a sufficient interest in the terms of an enterprise agreement as required by s.188(2)(a) of the Act, and whether the employees are sufficiently representative as required by s.188(2)(b), the Commission may take into account:

• (a) whether the employees entitled to vote on the enterprise agreement are to be paid the rates of pay provided 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:

  • (i) classifications in the agreement

  • (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 that the agreement covers.

[88] Principle 18 of the SoPs provides that 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.

[89] The Agreement is a replacement of the Current Agreement and the coverage provisions are broadly the same. It covers full-time, part-time and casual employees. It is declared in the Form F17B that the employees voted for a 5 percent initial increase in their hourly rate, further escalations and other improvements to their terms and conditions and that the classifications of employees who were provided with the opportunity to vote reflect the classifications structure in the Agreement.

[90] Based on the material before the Commission and having had regard to the SoPs I am satisfied that the employees requested to approve the agreement by voting for it:

• (c) have a sufficient interest in the terms of the agreement (s.188(2)(a)); and

• (d) are sufficiently representative, having regard to the employees the agreement is expressed to cover (s.188(2)(b).

[91] There is no evidence to suggest that the Agreement was not the product of an authentic exercise in agreement-making between the employer(s) and employees or that the employees who voted for the agreement did not have an informed and genuine understanding of what was being approved.

[92] Principle 19 of the SoPs provides that if one or more employee organisation (s) acting as bargaining representative(s) for a significant proportion of the employees covered by the agreement:

• (a) supports the approval of the agreement, and

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

[93] As noted above, the Form F18 declarations filed by the AMWU and CFMEU indicated that they supported the Agreement's approval and do not have concerns that the Agreement was not genuinely agreed and I have given weight to this in considering whether the Agreement has been genuinely agreed.

Conclusion regarding genuine agreement - s.186(2)(a)

[94] Having regard to the SoPs and the requirements of the Act about which I have made findings above, I am satisfied that the Agreement has been genuinely agreed to by the employees covered by it.

[95] Section 186(3) has the effect that the Commission cannot approve the application unless satisfied that the group of employees covered by the agreement was fairly chosen. It is declared in the Form F17B that the Agreement does not cover all of the Applicant's employees.[60] In these circumstances section 186(3A) has the effect that the Commission must, in deciding whether the group of employees was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct. It is declared in the Form F17B and it can be drawn from clause 5 of the Agreement itself that the Agreement covers employees of a particular division of the Applicant being the 'Maintenance and Industrial Services - East division' who are covered by the classifications specified in the Agreement and whose wages are processed by any of the Applicant's New South Wales business units. It appears that the group of employees covered by the Agreement are organisationally distinct. It is not in contention and I find that this group of employees was fairly chosen.

Absence of unlawful terms and designated outworker terms

[96] In order to approve the Agreement the Commission must be satisfied that it does not include:

• any unlawful terms (s.186(4)); and

• any designated outworker terms (s.186(4A).

[97] No party brought to my attention any concerns in this regard and based on my own review of the terms of the agreement I am satisfied that it does not include any such terms.

[98] The Agreement's dispute settlement term can be found at clause 11. In accordance with s.186(6) of the Act this term:

• (a) provides a procedure that requires or allows the Commission to settle disputes about matters arsing under the Agreement and National Employment Standards (NES); and

• (b) allows for the representation of employees covered by the Agreement for the purposes of the procedure.

[99] Section 186(2)(c) has the effect that the Commission cannot approve the Agreement unless satisfied that its terms do not contravene s.55 which deals with the interaction between the NES and enterprise agreements.

[100] I observe that certain provisions of the Agreement may be inconsistent with the NES. However, noting clause 7(a) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. Further, the Applicant has provided undertakings to address some of the inconsistencies.

[101] Section 196 of the Act applies if an employee is covered by an enterprise agreement and a modern award that is in operation and covers the employee defines or describes the employee as a shiftworker for the purposes of the NES. In these circumstances the Commission be satisfied that the agreement defines or describes the employee as a shiftworker for the purposes of the NES (s.196(2)).

[102] Clause 2 of the Agreement defines a "Continuous Shift Worker" for the purposes of the NES an employee "employed in an enterprise in which shifts are continuously rostered twenty-four (24) hours per day, seven (7) days per week, and who is regularly rostered to work on Sundays and public holidays".

[103] The Commission raised the concern that this may provide a more restrictive definition of a shiftworker than Clause 34.2 of the Manufacturing and Associated Industries and Occupations Award 2020 (Award) which states for the purposes of the additional week's leave referred to in section 87(1)(b) of the Act, a shiftworker is a "7 day shiftworker who is regularly rostered to work on Sundays and public holidays. The Applicant provided an undertaking (Undertaking) to address this concern.

[104] The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertaking and no objections were raised. I am satisfied that the effect of accepting the Undertaking is not likely to:

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

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

[105] Pursuant to s.190(3) of the Act, I accept the Undertaking.

[106] Section 186(2)(d) has the effect that the Commission cannot approve the Agreement unless satisfied that it passes the better off overall test.

[107] The Award is the relevant award for the purposes of the better off overall test (BOOT). The Commission's analysis indicates that employees are paid a higher base hourly rate when compared to the Award:

• the Agreement's base rates of pay for permanent employees are between 39.75% and 62.29% above the base rates of pay in the Award;

• the Agreement's base rates of pay for junior apprentice employees are between 17.75% and 53.98% above the base rates of pay in the Award;

• the Agreement's base rates of pay for adult apprentice employees are between 30.50% and 53.30% above the rates of pay in the Award.

[108] Clause 13 d) provides that casual employees will be paid at the relevant classification rate in the Agreement plus a 25% loading for ordinary hours Monday to Friday only. Rates for a casual employee working ordinary hours Monday to Friday are set out below:

* Includes Tool Allowance (clause 30.2(c) of Award)

1. Rates are rounded to nearest cent and percentages are rounded to two decimal places for purposes of modelling

2. Rates are from fist full pay period on or after 18 March 2025

[109] Section 186(2)(d) has the effect that the Commission cannot approve the Agreement unless satisfied that it passes the better off overall test.

[110] Clause 6(a) of the Agreement provides that the terms of the Award are incorporated into the Agreement. Clause 6(b) of the Agreement provides that if the incorporated Award term is inconsistent with an express provision of the Agreement, the express term of the Agreement prevails over the incorporated term to the extent of the inconsistency.

[111] The Agreement provides a number of terms and conditions that are more beneficial that the equivalent terms in the Award including:

• higher base hourly rates (see above);

• payment of overtime at the rate of double time as per clause 18 of the Agreement, noting that for employees other than continuous shiftworkers, clause 32.2 of the Award prescribes overtime at the rate of 150% for the first 3 hours and 200% thereafter;

• a higher leading hand allowance ($3 per hour as per item (f) of Schedule 1 of the Agreement compared to an allowance ranging from $45.18 to $85.91 per week as per clause 30.2(a)(i) of the Award);

• a higher confined space allowance ($2 per hour as per item (h) of Schedule 1 of the Agreement compared to $1.03 per hour as per clause 30.4(f) of the Award);

• longer paid breaks (see clause 19 of the Agreement compared to clause 18 of the Award);

• a superior redundancy entitlement for employees with more than nine years' service;

• payment of the balance of unpaid personal leave, capped to a maximum of 20 days, in circumstances of redundancy (see clause 22(e)).

[112] Additionally, the Agreement provides for a number of entitlements that the Award does not including:

• a site allowance of $3.50 per hour when working at locations for which site rates apply (see item (d) of Schedule 1);

• a $1.00 per hour workshop allowance (see item (e) of Schedule 1);

• a $3.00 electrical licence allowance (see item (g)) of Schedule 1);

• income protection insurance (see clause 28);

• NAIDOC leave (see clause 36).

[113] Mr Kennedy expressed concerns in relation to the Agreement. By way of summary, Mr Kennedy suggests that the Agreement may not pass the better off overall test when considering ordinary hours of work under the Award. I deal with these concerns below.

[114] Clause 13(d) of the Agreement provides that a casual employee shall be paid at the relevant classification rate in the Agreement plus a 25% loading for ordinary hours Monday to Friday only.

[115] In comparison, clause 11.1(a) of the Award provides that for working ordinary time, a casual employee must be paid 25% of the ordinary hourly rate. It does not appear to limit the payment of casual loading to employees to ordinary hours worked Monday to Friday.

[116] Notwithstanding this, there are benefits in the Agreement that more than offset this detriment including higher base rates of pay (as demonstrated in the table above) and more generous overtime provisions in respect of the first three hours of overtime (as explained above).

Ordinary hours under the Agreement compared to the Award

[117] Some of Mr Kennedy's concerns relate to the way in which ordinary hours are structured under the Award and by way of context, I provide a comparison of the Agreement and Award below.

[118] Clause 16 of the Agreement provides as follows:

1. The nature of the Company's business is dependent upon a flexible approach towards the arrangement of work hours.
2. Subject to the flexibility provided for elsewhere in this clause the ordinary hours of work for day workers shall average 38 hours per week and not exceed 152 hours in 28 days.

1. Ordinary hours are to be worked continuously, except for meal breaks, and will ordinarily be worked between 6.00am and 3.30pm Monday to Friday. An alternative spread of ordinary hours such as accruing time to be taken as a rostered day off may be adopted by mutual agreement between the Company and a majority of the affected Employees.

1. Employees will be able to accrue a maximum of 8 RDOs. Any RDOs accrued but not taken will be paid out on termination of employment or may otherwise be cashed out at the request of the Employee.
2. In order to arrange working hour patter[n]s that comply with customer fatigue restrictions and operational requirements, it is possible that the ordinary hours of work in the week are less than 38. The Employee shall be paid any such shortfall at the applicable ordinary time rate if the total hours worked in that week, inclusive of overtime, are less than 38'.

[119] The Agreement also contemplates shift work and clause 17(a) provides:

'The ordinary hours of shift work shall be an average of 38 hours per week averaged over a 26-week period and may be worked on any or all of the days of the week Monday to Sunday inclusive'.

[120] The Agreement would appear to contemplate that ordinary hours may be worked on a weekend by shift workers but in the case of day workers, ordinary hours will 'ordinarily be worked' Monday to Friday.

[121] Clause 18 of the Agreement provides:

1. All time worked outside ordinary hours on any day or shift shall be paid at double the applicable ordinary rate. All time worked on a public holiday shall be paid at double time and one half the applicable ordinary rate.

2. In the computation of overtime each overtime each day shall stand alone. For the purposes of this clause, a day shall mean from the commencement of 1 ordinary shift to the commencement of the next ordinary shift. Ordinary hours shall commence from the start of the shift and the day shall be determined by where the maximum number of ordinary hours are expended.

[122] In comparison, ordinary hours for day workers, continuous shift workers and non-continuous shift workers ate prescribed in clauses 17.2, 17.3 and 17.4 of the Award respectively. By way of summary:

• clause 17.2 provides that, subject to clause 17.5, ordinary hours for day workers:
  • are an average of 38 per week but not exceeding 152 hours in 28 days;
  • will not exceed 8 hours per day unless otherwise agreed in accordance with clause 17.5;
  • may be worked Monday to Friday;
  • may include Saturday and Sunday by agreement between the employer and employees;
• clause 17.3 provides that ordinary hours of work for continuous shiftworkers (excepting vehicle manufacturing employees):
  • are an average of 38 per week but not exceeding 152 hours in 28 consecutive days (although the averaging period may be extended to be up to 12 months by agreement between the employer and the majority of employees concerned);
  • will not exceed 8 hours per day unless otherwise agreed in accordance with clause 17.5;
• clause 17.4 provides that ordinary hours of work for non-continuous shiftworkers excepting vehicle manufacturing employees):

  • are an average of 38 per week but not exceeding 152 hours in 28 consecutive days (although the averaging period may be extended to be up to 12 months by agreement between the employer and the majority of employees concerned)

  • will not exceed 8 hours per day unless otherwise agreed in accordance with clause 17.5.

[123] Clause 17.5 of the Award sets out methods of arranging working hours and also contemplates 12-hour days by agreement between the employer and the majority of employees concerned.

[124] As can be seen above, the Award contemplates that hours may be worked on a weekend by shift workers or, in the case of a day worker, by agreement.

[125] Mr Kennedy has expressed the understanding that under the Agreement:

• all hours worked in excess of 7.6 hours Monday-Friday; and

• all hours worked on Saturday and Sunday are paid at overtime rates.

[126] Mr Kennedy raised the concern that a casual employee working 12 hours on Saturday and 12 hours on Sunday will be paid 24 hours of overtime, and superannuation contributions will not be made in respect of this. Mr Kennedy contended that even though a Saturday and Sunday only roster doesn't exist on a regular basis the situation can arise and has happened.

[127] Clause 27(d) of the Agreement provides:

'In circumstances where a full-time employee is not paid 38 ordinary hours' worth of superannuation because of the arrangement of roster patterns as per clause 16(e), the employee will be paid any such shortfall of superannuation so that the employee is paid the equivalent of 38 ordinary hours' worth of superannuation calculated on their ordinary hourly rate' (emphasis added).

[128] Mr Kennedy indicated that this 'new addition' to the proposed Agreement has already been operating for some full-time employees and expressed concern that it does not extend to casual employees.

[129] As noted above, the Award contemplates that hours may be worked on a weekend by shift workers or, in the case of a day worker, by agreement. It is not the case that work on weekends will be considered as ordinary hours under the Award in all cases. However, even if that were the case, as noted above, the rates in the Agreement are higher than the Award and the overtime penalties in respect of the first three hours of overtime are more generous. I consider that these benefits more than offset the concerns raised by Mr Kennedy even when the issues of casual loading and superannuation are considered together.

[130] Mr Kennedy raised the concern that under clause 22 of the Agreement redundancy is calculated based on an employee's ordinary hours of work (as defined in the Act) and that if a full-time employee was working the weekend roster, they would only be entitled to 15.2 hours per week of redundancy because these would be the only 'ordinary hours' worked.

[131] The Applicant indicated that it did not agree with this interpretation and confirmed that, regardless of the roster scenario, in circumstances where a full-time employee is made redundant, redundancy will be paid in accordance with the NES and a weeks' pay will be based on 38 hours.

[132] I prefer the Applicant's construction in that it is contemplated that a full-time employee will work 38 ordinary hours a week. I do not consider that a BOOT concern arises in this respect.

[133] Notwithstanding Mr Kennedy's concerns I find that the Agreement passes the BOOT and note that this is a view that is shared by the AMWU and CFMEU in their Form F18s.

[134] Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

[135] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) , The Australian Workers' Union (AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ( CEPU) and the Construction, Forestry and Maritime Employees Union ( CFMEU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

[136] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 May 2025. The nominal expiry date of the Agreement is 16 May 2028.

[1] Applicant's Form F17B, response to q. 29.1.

[2] Applicant's Form F17B, response to q. 29.2.

[3] Applicant's Form F17B, response to q. 29.3.

[4] Applicant's Form F17B, response to q. 6.

[5] [2015] FCAFC 98.

[6] [2015] FCAFC 98 at [5].

[7] [2014] FWCFB 9023 at [31].

[8] [2014] FWCFB 9023 at [33].

[9] [2015] FCAFC 98 at [23] - [25].

[10] [2019] FWCFB 7599.

[11] [2024] FWCFB 314.

[12] [2016] FWCFB 2222 at [35].

[13] [2010] FWAFB 5709 at [13].

[14] [2018] FWCFB 7224.

[15] [2018] FWCFB 7224 at [20] with reference to WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [172].

[16] [2018] FWCFB 7224 at [20] with reference to WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [173].

[17] [2018] FWCFB 7224 at [21] with reference to Predl v DMC Plastering Pty Ltd [2014] FCCA 1066.

[18] [2018] FWCFB 7224 at [22].

[19] [2018] FWCFB at [26].

[20] [2018] FWC 4638 at [184]

[21] [2018] FWCFB at [30].

[22] [2018] FWCFB at [30].

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

[24] [2025] FWC 749.

[25] [2025] FWC 749 at [46].

[26] [2025] FWC 749 at [47].

[27] Fair Work Act 2009 (Cth), s.15A(1).

[28] [2025] FWC 749 at [49].

[29] See also Appeal by Kmart Australia Limited t/a Kmart and other s [2019] FWCFB 7599 at [31].

[30] [2018] FWC 2732.

[31] [2026] FWCFB 2222 at [35].

[32] Applicant's Form F17B, response to q.21.2.

[33] Applicant's Form F17B, response to q.28.

[34] Applicant's Form F17B, response to q.6.

[37] Applicant's Submissions at [27].

[38] Applicant's Submissions at [11]; Clews Statement, TC-5.

[40] Applicant's Submissions at [31].

[45] Deters Statement at [6] - [7].

[46] Deters Statement at [9] - [10], Annexures MD-2 and MD-3.

[50] Clews Statement at [17] - [18].

[53] Applicant's Form F17B, response to q.18.

[54] Applicant's Form F17B, response to q.18 and q.19. See also Clews Statement at [5].

[55] Applicant's Form F17B, response to q.28.

[56] Applicant's Form F17B, response to q.21.2.

[57] Applicant's Form F17B, response to q.6 and q.29.

[58] Applicant's Form F17B, response to q.22.

[59] Applicant's Form F17B, response to q.25.

[60] Applicant's Form F17B, response to q.4.

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