Fair Work Commission|2022-09-19

OGS Project Services Pty Ltd [2022] FWC 2501 (19 September 2022)

s.185 - Enterprise agreement

Application for approval of the OPS Enterprise Agreement 2022 - Award coverage - Standing of union to be heard in application for approval of agreement - Scope of discretion in s. 590 to hear from union in relation to approval of Agreement - Whether exercise of discretion to hear from union can be exercised so as to confine subject matter on which union will be heard - Whether Agreement genuinely agreed - Effect on genuineness of Agreement of failure of employer to identify relevant modern award in explanation to employees - Whether failure to identify relevant award can be cured by undertaking - Opportunity for employer to consider views in relation to award coverage - Provisional views in relation to BOOT issues provided for consideration by employer and CEPU.

[1] OGS Project Services Pty Ltd (the OGS / Employer) applies to the Fair Work Commission (Commission) for approval of an enterprise agreement known as the OPS Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

[2] Correspondence was sent to OGS raising issues of concern with the Agreement including pre-approval requirements; whether the Agreement contained a shift worker definition for the purposes of the National Employment Standards (NES); inconsistencies with the NES and matters associated with the better off overall test (BOOT). Further information was requested from OGS in response to these matters.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) filed a F18 Declaration in relation to the Agreement raising concerns about the Agreement, which can be summarised as: the Agreement was not genuinely agreed; the group of employees covered by the Agreement was not fairly chosen; and the Agreement did not pass the BOOT. The CEPU also set out detailed submissions in the Form F18 in relation to why it should be heard in the application for approval of the Agreement.

[4] Directions were issued requiring the Employer to provide its views in relation to the CEPU's request to be heard. The employer objected and after considering the submissions of the parties I determined that I would exercise the discretion in s. 590 of the FW Act to hear from the CEPU in relation to issues with respect to relevant awards and the BOOT. I also expressed a provisional view that I would not allow the CEPU to call evidence or to cross-examine witnesses on the basis that the Union was not a bargaining representative for the Agreement but indicated that I would reconsider my provisional view depending on the material filed by the Union and whether any evidence the CEPU sought to call would be relevant to the matters I was required to determine. I deal below with the issue of the CEPU's right to be heard and the terms upon which I decided to hear from the Union.

[5] The matter was listed for hearing and Directions were issued requiring the CEPU to file submissions and statements of evidence from any witness it intended to rely on in relation to matters raised in the Form F18 upon which it sought to be heard. The Employer was directed to file material in support of the application for approval and in response to any matters raised by the CEPU.

[6] The CEPU filed Notices seeking production of contracts of employment and positions descriptions for each of the three persons who participated in the ballot for approval of the Agreement, which were applicable as of 28 March 2022. An order was issued requiring the documents to be produced, subject to any objection by OGS. OGS objected to the provision of the documents sought and instead proposed that the order be varied so that redacted copies of the contracts of employment of each employee were provided to the CEPU and unredacted copies to the Commission. This proposal was agreed to by the CEPU and the orders for production were varied accordingly.

[7] The CEPU filed submissions and a statement of evidence from Mr Ian Gill, Organiser with the Western Australian Branch of the Electrical, Energy & Services Division (known as the Electrical Trades Union or "ETU") of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. The CEPU's submissions addressed all issues it has with the approval of the Agreement. OGS filed submissions in relation to whether the Commission should hear from the CEPU and in response to submissions made by the Union and a statement of evidence from Mr Mark Hudston, Executive Director of Mapien, the industrial relations representative for OGS.

[8] The matter was listed for hearing. Permission for the Employer to be represented by a lawyer was granted based on my view, pursuant to s. 596 of the FW Act, that it would enable the matter to be dealt with more efficiently, having regard to its complexity. OGS was represented by Mr McLean of Counsel and the CEPU by Mr Aghazarian, National Industrial Officer. Mr Hudston was cross-examined by Mr Aghazarian. Mr Gill was not required for cross-examination and I received his statement.

[9] During the hearing, and after canvassing the course of action with OGS and the CEPU, I decided to determine the issues related to the modern awards covering employees performing work under the Agreement and whether the Agreement was genuinely agreed, before considering issues associated with the BOOT. Before turning to those matters, it is necessary to first consider submissions made by the CEPU in relation to its standing to be heard in the proceedings relating to the approval of the Agreement.

[10] The CEPU contended that it had standing to be heard on the basis that its rights, interests and legitimate expectations are affected by the decision and in the alternative, that the discretion in s. 590 should be exercised in the CEPU's favour to allow the Union to be heard in relation to the application. In the Form F18 filed by the CEPU it was contended that the Union has standing to appear in the proceedings on the following bases:

The CEPU presently has a right to apply to the Commission for a majority support determination to require OGS Australia to bargain with the Union and is in the process of exercising that right, with a hearing having been conducted in December 2021 and a decision pending at the time the Form F18 was completed (14 April 2022);

Should the Agreement be approved the employees of OGS Australia could be transferred to OPS creating a real risk that the CEPU's right to bargain will be affected;

The CEPU has an interest in and an expectation in relation to bargaining with employers who employ, or will employ, electrical workers;

While the Agreement applied to three workers when it was made it has an indeterminate coverage and is clearly intended to apply to a national workforce spread across a range of industries;

While the CEPU may not have a legitimate expectation to act as a bargaining representative where an enterprise agreement already operates, it has a legitimate expectation to be able to ascertain where it can bargain; and

The CEPU has a legitimate interest in being able to enforce the provisions of any industrial instrument which applies to employees whose industrial interests the Union is entitled to represent and does not have independent standing to prosecute any contraventions thereby shrinking the CEPU's ability to ensure compliance with industrial instruments that exist within its constitutional coverage.

[11] In relation to the exercise of discretion under s. 590, the CEPU contended in the Form F18, that it has experience in the industries where the Agreement will operate and given its broad coverage and the likelihood that it will replace several awards and not just the award nominated by the Employer, the CEPU can assist the Commission in relation to the BOOT. It was also submitted that although the Commission has the Member Assist Team in relation to the application of the BOOT, it would assist to have the CEPU as a contradictor to focus on the relevant issues. As a contradictor, the CEPU could also assist with the determination of issues including whether the group of employees covered by the Agreement is fairly chosen, whether there was genuine agreement and whether the Agreement contains unlawful terms.

[12] OGS opposed the exercise of the discretion in s. 590 to hear from the CEPU on several bases including:

The CEPU Submissions do not give rise to any consideration concerns that the Commission cannot, of its own volition, interrogate and consider.

The CEPU provides no authority upon which it relies to establish that the Commission should, in this circumstance, exercise its discretion to hear from it pursuant to s 590 of the FW Act.

The mere fact that there is no contradictor for the application is not a sufficient basis for the exercise of the discretion in the present case as the CEPU submissions concern whether the Agreement satisfies the BOOT, whether the Agreement was genuinely agreed and whether the group of employees covered by the Agreement was fairly chosen, and these are issues which the Commission is able to adequately address without granting leave to a third party intervenor.

The CEPU was a stranger to the bargaining process, and it has no relevant knowledge or information about the making of the Agreement that would likely assist the Commission in its consideration of the application.

[13] OGS also submitted that procedural fairness did not dictate that the Union be heard in the application for approval of the Agreement and advanced no basis for being heard other than its role in the electrical industry and that at some point in the future, an employee of OGS may be a member of the CEPU.

[14] As previously noted, I indicated to the parties that I would exercise the discretion in s. 590 of the FW Act to hear from the CEPU in relation to questions about relevant awards for the purposes of the BOOT and whether the Agreement passed the BOOT. I also expressed a provisional view that I would not allow the CEPU to call evidence or to cross-examine witnesses on the basis that the Union was not a bargaining representative for the Agreement but indicated that I would reconsider my provisional view depending on the material filed by the Union and whether any evidence the CEPU sought to call would inform me in relation to matters I am required to determine other than award coverage and the BOOT.

[15] After considering the submissions of the parties, I confirmed my provisional view that I would only hear from the CEPU in relation to relevant awards and the BOOT, on the basis that I was satisfied that the submissions of the CEPU in relation to these matters would assist with my deliberations in relation to the relevant awards for the purposes of the BOOT. I also allowed the CEPU representative to cross-examine Mr Hudston in relation to award coverage. In deciding to hear from the CEPU and allow it to cross-examine on these matters, I had regard to the fact that the CEPU has membership within at least one of the subsidiaries of the OGS Group and could provide information about the type of work performed by its members, relevant to the consideration of the award coverage issue. Further, I was of the view that as there was no contradictor, I would be assisted by the submissions of the CEPU in relation to the BOOT.

[16] While I accept that the Commission has internal resources to conduct analysis in respect of BOOT issues, such analysis is informed by the awards nominated by applicants for approval and where there is a challenge to the relevance of the awards nominated or a question as to whether there are awards which should be considered in addition to those nominated, a contradictor is of assistance. In the present case, I also considered that the CEPU took issue with a range of matters that were not identified by Commission staff and that these matters should be fully ventilated by a contradictor.

[17] In response to my decision to exercise the discretion in s. 590 to hear from the CEPU, the Union advised in its written submissions, that while it: "doesn't concede on the issue of independent standing, it will not cavil in relation to this point given the FWC's determination under s. 590."

[18] My reasons for rejecting the CEPU's submissions in relation to standing and restricting the CEPU's involvement in the proceedings, are as follows. In CFMEU v Collinsville Coal Operations Pty Ltd[1] (Collinsville) a Full Bench of the Commission held that an employee organisation may establish standing to be heard in an application for approval of an enterprise agreement because:

• it is a bargaining representative of one or more employees to be subject to the proposed enterprise agreement;[2]
• as a matter of procedural fairness if the employee organisation is able to establish a "right, interest, or legitimate expectation" that it will be adversely affected by the decision;[3] or
• it is invited by the Commission in the exercise of its power under s 590 of the FW Act.[4]

[19] In Construction, Forestry, Maritime, Mining and Energy CFMMEU v Mechanical Maintenance Solutions Pty Ltd [5] a Full Bench of the Commission endorsed the decision in Collinsville and said in relation to what is required of administrative decision makers in their obligation to accord procedural fairness:

"...administrative decision-makers, including Members of the Commission must accord procedural fairness to those affected by decisions they make. What is required is to ensure the decision is made fairly and is determined by reference to the circumstances of a given case having regard to the legal framework under which the decision is to be made. The legislative framework discussed in Collinsville Coal was then, and remains relevant to that assessment in the context of an enterprise agreement approval application. In that context the focus of the enquiry is not on what was promised or is expected, rather it is on what should be provided in the circumstances of the case to ensure the decision is made fairly."[6]

[20] I do not accept that the CEPU has standing to be heard in the approval of the Agreement as of right. The CEPU is not a bargaining representative for the Agreement. That the CEPU may be a person aggrieved in an appeal against the approval of the Agreement is not sufficient to establish that it has a right, interest or legitimate expectation to be heard in the application for approval. The fact that a union may lack standing in relation to the approval of an enterprise agreement, and have standing to appeal the approval decision, is a function of different statutory tests that apply at each stage of the process and is not, of itself, a basis to grant leave to be heard at first instance.[7] As the full Bench in Collinsville stated:

"That an employee organisation has an ongoing relationship with its members who might become covered by an agreement and has a role under its rules in representing those members is not relevant in the context of a right to be heard in relation to the approval of an agreement."[8]

[21] Other than the argument in relation to a pending majority support application in the Form F18, the CEPU advanced arguments in its submissions of the kind that were rejected in Collinsville. The CEPU is not a bargaining representative for the Agreement and placed no evidence before the Commission, from employees covered by the Agreement or employees of other entities related to OGS, relevant to whether the Agreement was genuinely agreed.

[22] In those circumstances, the CEPU has no right, or interest related to this question. Whether the Agreement is genuinely agreed is a matter for the Employer to establish, by placing evidence before the Commission to satisfy this requirement. The Commission can assess the evidence and require further information to determine whether an agreement is genuinely agreed using powers under s. 590 to inform itself in any way that it sees fit. There is no basis for a Union that is not a bargaining representative for the Agreement to cross-examine an employer witness or make submissions about whether an Agreement in which it was not involved, is genuinely agreed by employees it does not represent.

[23] Had the CEPU established that a majority support determination had been made with respect to a related entity, and that there was a possibility that employees of that entity would be transferred to OGS, I may have had a different view. However, other than asserting that as of 14 April 2022, it was awaiting a decision of the Commission in relation to an application for a majority support determination in relation to "OGS Australia" no further information was provided despite the CEPU filing written submissions on 20 May 2022 and making oral submissions at a subsequent hearing. I assume that had the CEPU been successful with its application, this matter would have been fully ventilated in its submissions.

[24] Having decided to exercise the discretion in s. 590 of the FW Act in favour of the CEPU, issue was taken by the Union with my decision to restrict the content of submissions and involvement in the hearing to matters relating to award coverage and the BOOT. In its submissions the CEPU asserted that:

The FWC has made a determination under s 590 that it will hear from the CEPU in relation to the Application, which gives the CEPU the ability to be heard in relation to the matter.

Section 590(2) gives the FWC the power to inform itself by "by inviting, subject to any terms and conditions determined by the FWC, oral and written submissions" and the power does not extend to limiting the content of those oral and written submissions once a determination under s 590(2) has been made.

The words "subject to any terms and conditions" are in clear reference to the invitation and not the oral and written submissions. They are thus limited to the procedure for making such oral and written submissions, not to the content of the oral submissions and written submissions themselves.

[25] I do not accept that submission. The discretion of the Commission to inform itself in any matter before it in such manner as it sees fit, is not constrained in the manner contended for by the CEPU and is certainly broad enough to encompass restrictions on the content or subject matter of submissions. If this were not the case, the Commission would be placed in an invidious position whereby the desirability of allowing a person to be heard would need to be weighed against the inefficiency that would be caused by the Commission being compelled to hear from that person about irrelevant matters or matters about which the Commission may not require the party to provide information. This scenario is contrary to s. 577 which requires that the Commission perform its functions and exercise its powers in a way that is fair and just and quick, informal and avoids unnecessary technicalities.

[26] In the present case, the CEPU does not seek to call evidence from any employees of OGS or its related entities relevant to the question of whether the Agreement has been genuinely made and raises no issue with respect to genuine agreement that I am not able to consider and decide without the assistance of the CEPU's views. As previously noted, the CEPU is not a bargaining representative for the Agreement. OGS as the applicant for approval of the Agreement is required to satisfy the Commission that the Agreement was genuinely agreed.

[27] The scope of the Agreement is determinative of the relevant awards for the purposes of the BOOT and other pre-approval requirements. To determine the scope of the Agreement it is necessary to construe its terms. For the purposes of the BOOT it is necessary that the Commission is satisfied that at the "test time", that "each award covered employee" and "each prospective award covered 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 (see also ss. 193(4)(b) and 194(5)(b)). The relevant awards for the purposes of the BOOT are also relevant to the issue of whether the Agreement was genuinely agreed for the purposes of s. 186(2)(a), particularly, whether the explanation to employees of the Agreement and the effect of its terms, complied with s. 180(5).

[28] The coverage of the Agreement is set out in clause 3.1 which deals with the subject matter of Parties bound and application and is in the following terms:

"3. PARTIES BOUND AND APPLICATION OF AGREEMENT

(a) OGS Project Services Pty Ltd (ACN: 656 042 205);

(b) Employees of the Employer when engaged in any work involving or in association with maintenance, modification, repair, fabrication, commissioning, decommissioning, construction, metal and engineering construction, on site building, civil construction and any related or associated works when employed in the classifications in this Agreement anywhere in the Commonwealth of Australia."

[29] Clause 4 provides that that the Agreement will operate for a period of 4 years after the day on which the Commission approves the Agreement. By virtue of clause 5.2, the Agreement is expressed to operate to the exclusion of "the Award" except as expressly referred to in the Agreement and to exclude the operation of any other Award or other industrial instrument. The term "Award" is defined in clause 2.1 as the Building and Construction General On-site Award 2020 (Construction Award).

[30] Clause 7 of the Agreement sets out classification levels and base rates of pay as follows:

7.1 Employees (other than Apprentices) shall be paid no less than the following base hourly rates of pay:

[31] The Agreement does not contain definitions for each of the classification levels, however, the note refers to the "Award classifications", which consistent with the definition of "Award" as defined by clause 2.1 of the Agreement, is the Construction Award. Clause 7.6 of the Agreement provides as follows:

"7.6 Where the Employer engages or directs an Employee to perform work which would otherwise be covered by the manufacturing and Associated Industries and Occupations Award 2020, or the Hydrocarbons Industry (Upstream) Award 2020, the Employer will pay the Employee, for the performance of such work, the greater of the following amounts:

(a) The rates of pay in clause 7.1 of this Agreement; or

(b) An amount comprising the base rate of pay for the relevant classification in the relevant award plus 10%, and any applicable allowances, overtime, and penalties plus 10%, as provided for in the relevant award."

[32] The Construction Award covers employers throughout Australia in the "on-site building, engineering and civil construction industry" and their employees in the classifications within Appendix A of the Award, to the exclusion of any other modern award. Clause 4.2 of that Award defines "on-site building, engineering and civil construction industry" to mean the industry of general building and construction, civil construction and metal and engineering construction, in all cases undertaken "on-site". While there is no specific definition of the term "on site" in clause 4.2, clause 4.3 of the Construction Award, sets out the meaning of general building and construction, civil construction and metal and engineering construction in some detail.

[33] In summary, clause 4.3(a) in relation to "general building and construction" refers to buildings, structures or works that form, or are to form, part of land. The locations where civil construction as described in clause 4.3(b) of the Construction Award, generally indicate that such work is performed on land. Although dredging or sluicing for, or at premises in 4.3(b)(i), is also covered, the premises described in 4.3(b)(i) are generally located on land and in some cases in or around buildings and structures. Similarly, metal and engineering construction as defined in 4.3(c) refers to metal trades work at a construction site, established for the purpose of constructing, fabricating, erecting, and/or installing the establishments, plant and facilities listed in the clause. Reference is also made to on-site maintenance, repair and servicing work carried out on-site by employees of contractors or sub-contractors in connection with contracts for on-site construction work referred to in the clause except for work that is incidental or of a minor nature in relation to the work normally performed by an employee of an employer not engaged substantially in metal and engineering construction.

[34] Clause 4.4 provides that the Construction Award does not cover employees covered by several Awards which relevantly include the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award) and the Electrical, Electronic and Communications Contracting Award 2020 (Electrical Contracting Award). The list of awards in clause 4.4 of the Construction Award does not include the Hydrocarbons Industry (Upstream)Award 2010 (Hydrocarbons Award). The effect of clause 4.4 of the Construction Award is to carve out employers covered by the listed awards.

[35] In relation to this provision and its operation with respect to the Manufacturing Award, a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v Specialist People Pty Ltd [9] (Specialist People No 1) observed that the exclusion must be read as attaching to employers covered by the Manufacturing Award not generally, but with respect to relevant employees.[10] The same observation applies to the other modern awards listed in clause 4.4 of the Construction Award (noting that clause 4.2 of the Construction Award referred to by the Full Bench Specialist People No. 1 is now numbered 4.4 but is in identical terms).

[36] By virtue of clause 4.5, the Construction Award covers any employer which provides labour on an on-hire basis in the on-site building, engineering and civil construction industry in respect of on-hire employees in classifications covered by the Award and while engaged in the performance of work for a business in that industry. Clause 4.5 operates subject to the exclusions from coverage in clause 4.4 the Construction Award_._ Relevantly, clause 4.8 provides that where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which that work is performed. The Note to clause 4.8 of the Construction Award states that where there is no classification for a particular employee in that award, it is possible that the employer and the employee are covered by an award with occupational coverage_._

[37] Clause 3.1 of the Agreement describes some, but not all the work in clause 4 of the Construction Award_._ Further, the coverage of the Agreement is not limited to work covered by that Award. Rather, the coverage of the Agreement is coterminous with the classifications in the Agreement. The classifications in the Agreement, set out in clause 7.1 refer, in the note appearing under the table, to the classifications in the Construction Award_._

[38] Those classifications are contained in Schedule A to the Construction Award and definitions for the classifications in the Award are grouped in streams comprising:

Civil construction stream including skills involved in earthmoving, plant operation and associated activity and does not extend beyond the scope of the Construction Award (item A.1.2);
Engineering streams defined as Electrical/electronic, Mechanical and Fabrication (item A.1.3); and
General construction stream including all fields of work principally concerned with general building and construction (item A.1.5).

[39] Classifications set out in the Agreement are referred to as CW/ECW 1 - 7. These classifications align with those in Schedule A.2.1 of the Construction Award which contains classifications for Construction Workers/Engineering Construction Workers (CW/ECW) at various levels from CW/ECW 1 to CW/ECW 9. CW/ECW1 is the entry level under the Construction Award and movement between those levels is essentially time based. The level includes employees assisting workers at higher levels, labourers and employees using a range of tools and equipment.

[40] CW/ECW 2 describes employees who work above the level of CW/ECW 1 and have completed formal training or equivalent. Employees at this level operate a range of plant and equipment. CW/ECW 3 is the base trades or equivalent level and employees at this level have a relevant trade as a result of completing an apprenticeship or equivalent skills. CW/ECW 4 covers inter alia Engineering construction tradespersons Level II in the electrical/electronic, mechanical or fabrication streams, who have completed 3 additional modules of training as specified or equivalent. CW/ECW 5 is the special class tradesperson level and includes persons who have completed 6 additional modules or equivalent. CW/ECW 6 is the level II special class classification level and employees have completed 9 modules or equivalent towards an Advanced Certificate or Associate Diploma.

[41] Level CW/ECW 7 in the Construction Award is the Special Class Tradesperson level III requiring successful completion of relevant structured training at that level or successful completion in accordance with RPL principles of 10 ½ modules of an advanced certificate or associate diploma or a construction skills test equal to the requirements of the level. The classification structure in the Agreement does not include the Construction Award classifications for CW/ECW 8 and 9 which cover Advanced engineering construction tradesperson level 1 and Engineering construction tradesperson level IV and Advanced engineering construction tradesperson level II and Engineering construction technician level V respectively.

[42] The Hydrocarbons Award covers employers throughout Australia who are engaged in the hydrocarbons industry, as defined, in respect of employees falling within the classifications listed. Clause 4.2(e) of the Hydrocarbons Award relevantly covers the following:

"(e) the commissioning, servicing, maintaining (including mechanical, electrical, fabricating or engineering and preparatory work) modification, upgrading or repairing of facilities, plant and/or equipment used in the activities set out above by employees principally employed to perform work on an ongoing basis at a location where the activities described above are being performed;"

[43] The "activities described above" in 4.2(a) - (d) in summary, are: exploration and/or drilling; preparatory work and development of an oil or gas field including well development and servicing and decommissioning of hydrocarbon facilities; extraction, separation, production and processing, piping, storage distribution and transport of hydrocarbons; and the provision of incidental services such as administration, warehousing and accommodation.

[44] Clause 4.2(f) of the Hydrocarbons Award states that it covers the provision of temporary labour services used in the activities set out in 4.2(a) to (e) above, by temporary labour personnel principally engaged to perform work at a location where the activities described above are being performed.

[45] Clause 4.3(e) states that the Hydrocarbons Award does not cover "employers in respect of their operations or activities covered by the Manufacturing and Associated Industries and Occupations Award 2010, except for work covered by clause 4.2 above". The effect is that the carve out in clause 4.3(e) of the Hydrocarbons Award is limited to the Manufacturing Award and has an exception with respect to work described in clause 4.2. There is no carve-out in the Hydrocarbons Award for employers in respect of their operations in the Construction Award or the Electrical Contracting Award.

[46] The classification structure in the Hydrocarbons Award is based on groups: Services Employees; Onshore Drilling Employees; Offshore Drilling Employees; Operations and Processing Employees and Modification and Maintenance Trades Employees. The classification levels in the Hydrocarbons Award are: Basic; Intermediate; Competent; Advanced; Advanced Specialist; Dual Trade and Dual Trade Instrument Technician.

[47] The Electrical Contracting Award covers employers throughout Australia in the industry of electrical services, provided by electrical, electronics and communications contractors and their employees in the classifications in Schedule A, to the exclusion of any other modern award (clause 4.1). The term "contractors" is defined in clause 2.3 to mean "any entity who or which contracts to provide electrical services as defined in clause 4.3". By virtue of clause 4.3, "electrical services" includes:

"(a) the maintenance of electric power distribution lines and all associated work; and/or

(b) the installation of electric light and power, all classes of assembly, wiring, repair and maintenance of electrical installations and appliances including, without in any way limiting the generality of the foregoing, the assembling, installing, diagnosing, servicing and rectifying of faults in any of the following:

electronic products (e.g. television receivers, video cassette recorders, audio equipment/systems, home computers, etc) and any combination of these products together with ancillary devices and/or equipment;

television and radio transmitting devices including: LF (low frequency); HF (high frequency); VHF (very high frequency); UHF (ultra high frequency); and CB radios;

telemetry systems and ancillary equipment;

multiple access television distribution systems;

computers and their peripherals;

microwave and associated equipment;

electrically operated refrigeration and air conditioning plant and/or equipment;

telephone communication devices;

fibre optic transmission lines and associated equipment;

public address systems;

domestic satellite television receivers;

maritime electronic equipment (including depth sounders, radar, etc);

security alarm systems;

fire alarm systems;

superconductivity systems and associated equipment;

electromagnetic devices;

instrumentation; and

all work incidental to the above."

[48] The classification structure and definitions in the Construction Award are consistent with the structures in other awards referred to by OGS and the CEPU in evidence and submissions. Those awards have classifications structures which include a level for employees who have successfully completed a relevant trade apprenticeship or its equivalent under the Australian Qualifications Framework (AQF). I will refer to this as the base trade level. The awards said to be relevant also prescribe levels above and below the base trade level which include reference to tasks, jobs, qualifications, AQF modules which are credited towards qualifications and processes for recognising equivalent skills by a process known as recognition of prior learning (RPL).

[49] Level CW/ECW 3 in the Construction Award is the base trade level and includes fitter, electrical fitter, electrical mechanic and other trades_._ The equivalent level in the Manufacturing Award is C10 and in the Hydrocarbons Award the base trade level is Level 3. In the Electrical Contracting Award the base trade classification in that award is Electrical Worker Grade 5. The minimum hourly award rate for these levels in all these awards, is $24.76 per hour. Similarly, the rates for the level above the base trade in each of those awards is identical - $25.54 per hour. Thereafter, at higher levels, the rates in the Hydrocarbons Award and the Electrical Contracting Award exceed those in the Construction Award, but at various levels, the difference is not significant.

[50] Turning to the evidence in relation to the question of awards that would otherwise cover employees to whom the Agreement applies, I first consider the evidence of Mr Hudston, who states that he has over 33 years of industrial relations experience, including an extensive working knowledge of the Construction Award. In relation to the three employees who made the Agreement, Mr Hudston states that each has extensive experience, ranging from 10 to 53 years, in the construction industry including working under the Construction Award. Mr Hudston tendered details of the qualifications, skills, experience and classification under the Agreement of each employee. The information provided indicates that each employee has worked across the range of trades and non-trades classifications in the Construction Award and holds various tickets, licences and trades qualifications.

[51] Mr Hudston states that OGS Project Services Pty Ltd does not have an electrical license of the kind required to undertake work in the electrical services industry and that the only work undertaken by OGS is to supply labour to construction contractors on construction projects. In oral evidence in chief, Mr Hudston said that none of the Associated entities of OGS holds an electrical contracting licence of the relevant kind. Mr Hudston also states that given the skills, qualification and work being performed by the employees covered by the Agreement during the Agreement making process, up to and including the "test time", being 5 April 2022 when the application for the approval for the Agreement was made, the employees were engaging in work that was covered by the Construction Award which was reflected in the Form F17. Further, Mr Hudston states that at some point in the future, employees covered by the Agreement may, at least theoretically, engage in work that is covered by the Manufacturing Award and/or the Hydrocarbons Award. Notwithstanding this, Mr Hudston considers that the sole nature of the work undertaken by the employees during the entire Agreement-making process and on application for approval of the Agreement, was covered by the Construction Award.

[52] Under cross-examination, Mr Hudston accepted that it is common for electrical contractors to undertake work on a building site, usually pursuant to an electrical package of work for the site. Mr Hudston accepted that the Agreement could cover work other than work performed on a building site. Mr Hudston also said that if the work were not covered by the Construction Award, it would not be covered by the Agreement.

[53] In submissions, OGS contended that the effect of clause 3.1 and the classification definitions in clause 7 of the Agreement is that if work did not fall within the coverage of the Construction Award, it is not covered by the Agreement. It was also contended that the Construction Award covers commissioning and other work undertaken by OGS and that if the coverage clause of the Agreement is read with its classification structure, that the work is covered by the Construction Industry Award is a prerequisite to the Agreement operating. Further, if work moves beyond the classification structure in clause 7.1 it is not picked up by clause 3.1 of the Agreement. In relation to clause 7.6, it was contended that the clause is a nullity and cannot extend the operation of the Agreement outside the on-site building, engineering and civil construction industry.

[54] Mr Gill's evidence is that commissioning is a process that tends to be carried out by specialist contractors. It requires specific skilled tradespeople and particular testing equipment. There are different types of commissioning, and there will usually be mechanical and electrical commissioning. Mr Gill's evidence related to electrical commissioning, which may require the following roles as part of a commissioning contract:

Experienced Licenced Electricians;
Extra Low Voltage Instrument Technicians (restricted licence);
Dual Trade Electrical Instrumentation Technicians;
Hazardous Area Qualified Electrical Tradespersons; and
Persons with High Voltage switching tickets.

[55] Mr Gill said that companies that provide electrical commissioning normally mobilise once construction and installation has reached a point where commissioning activities can begin. This is usually once plant, piping and equipment is in place and cables of all voltages are run, in place and terminated at both ends and "ITR'd" (tested and recorded). Companies that provide commissioning may also work on shutdowns where old equipment might be replaced and/or upgraded or where specific areas of plant are being modified, while still operational or partially operational. Such works, both at the phase following and during construction and for shutdowns, can take place in the following resource industries:

Iron ore, coal, salt, lithium, gold, nickel and other minerals,
The onshore and offshore hydrocarbons sector, generally oil and gas;
Any plant of any kind that contains complex mechanical/electrical plant; and Renewables, such as wind and solar.

[56] Mr Gill said that OGS Project Services Pty Ltd is part of the OGS Group. OGS Australia is also part of the OGS group. Mr Gill has dealt with OGS Australia and the CEPU has members at two of their sites:

OGS Australia has a commissioning contract at the Kemerton Albmerale Lithium Hyrdoxide Processing Plant ('Kemerton');
OGS Australia has a contract at the Kwinana Industrial Strip ('Kwinana').

[57] According to Mr Gill, the employees at the Kemerton site are on common law contracts, however the work that they perform puts them under the coverage of the Electrical Contracting Award. Mr Gill also said that the employees at Kwinana are covered by an enterprise agreement, but if they were not, the work they perform would fall under the Electrical Contracting Award. Mr Gill expects that OGS Project Services would be doing similar work to the OGS Group's other subsidiary OGS Australia. This would put most of their employees under the Electrical Contracting Award. Mr Gill set out an extract from a position description taken from a contract he has been given for an OGS employee who has worked at the Kemerton site. The specific tasks set out by Mr Gill are as follows:

"• To deliver a high quality, consistent and competent electrical, instrumentation and controls technician commissioning service in accordance with project / company requirements, standards and procedures.

Function test and commission the electrical, instrumentation and control systems in accordance with mechanical completion, pre-commissioning, and commissioning procedures.
Utilise all required test equipment to test the installation and operation of all EI&C systems, troubleshooting all faults and failures.
"Red line" project drawings and procedures with any changes made during testing and pre-commissioning.
Complete all inspection test reports and supporting documentation in accordance with the commissioning test procedures for population in the project Completions Management System.
Ensure all activities are implemented in a safe manner and in accordance with the project Permit to Work and HSE management systems.
Review construction documentation prior to executing commissioning activities.
Perform all required discipline tasks, safely, consistently and in accordance with project requirements, procedures, and specifications.
Read, understand, and implement all applicable company / project policies, working practices and procedures, ensuring at all times that the EI&C technicians work scope is completed safely and to a high standard.
To support the overall completion of activities in accordance with the project schedule.
Complete all work scope in accordance with applicable work pack / job card instructions, associated procedures and drawings / sketches.
Provide support to other trades/disciplines where required or form part of an integrated multi-discipline team.
Conduct work in accordance with Permit to Work (PTW) requirements to ensure completion in a controlled and safe manner.
Undertake appropriate Risk Assessments (RA) and demonstrate understanding of HSE safe working practices and procedures (including solation procedures) and able to implement these during completion of work scope.
Ensure all that all work scope is completed in a safe manner ensuring no detrimental impact to personnel, equipment or environment.
Complete applicable commissioning documentation (including test records, daily logs, fault reports and permit to work system) accurately and to a good standard.
Completion of the Albemarle site inductions
Current holder of applicable trade qualifications per Australian and Western Australian standards, regulations and requirements.
Overall compliance with OGS & Policies Procedures
100% compliance requirements of OGS HR and WHS policies, procedures and codes of practice
100% compliance with OHS laws and following reasonable HSE requests from the Company."

[58] The CEPU contended that it is not necessary for OGS to hold an electrical contracting license in order for the Electrical Contracting Award to apply to the Company and its employees. According to the CEPU, commissioning work falls under the Electrical Contracting Award and it is common for employees to have their own electrical licenses under which work covered by the Electrical Contracting Award may be performed. Further, the CEPU pointed to the fact that the Electrical Contracting Award applies to on-hire employees and Mr Hudston's evidence that the Company may supply labour to contractors on a site, in circumstances where those contractors are undertaking work covered by the Electrical Contracting Award.

[59] OGS submits that the Commission should be satisfied that the Agreement was genuinely agreed. In support of this submission, reference is made to a document entitled Enterprise Agreement - Explanation Sheet that was provided to employees. The explanation is appended to the Form F17 Employer declaration filed by OGS. It extends over 14 pages in tabular form and compares the Agreement to the Construction Award, highlighting eight terms and conditions of employment where the Agreement is different, four where the Agreement is different/less beneficial, and three where it is more beneficial. The Explanation Sheet also includes information about how the Manufacturing Award and the Hydrocarbons Award "fit in with the Agreement" and the preamble to that explanation states:

"Currently the Company does not believe that it has any work that would be covered by the Manufacturing Award or the Hydrocarbons Award. The Agreement is intended to cover the employer's entire maintenance and construction operations within Australia, current and future, onshore and offshore. Accordingly, there may be an occasion in the future where the work performed by an employee would not be covered by the Building Award but may be covered by the Manufacturing Award or the Hydrocarbons Award.

To ensure that an employee will not be disadvantaged by the Agreement and its potential future application, the Agreement provides that where an employee performs work that would otherwise be covered by the Manufacturing Award or the Hydrocarbons Award, the Employer will ensure that the employee will be paid the higher of the rate of pay contained in the Agreement, or, where the rate of pay (base rate of pay + allowances + penalties) would be higher under the relevant Modern Award, that rate of pay for the applicable classification."

[60] In the Form F17, the CEO of OGS, Mr Jason Antunovich, declares that the Agreement covers three employees, two of whom cast a valid vote to approve the Agreement. Mr Antunovich also declares that Mr Hudston explained the terms of the Agreement to employees and answered their questions about the Agreement. Further, Mr Antunovich declares that on 18 March 2022, within the access period, each employee was provided with a copy of the Agreement and copies of the Construction Award, the Manufacturing Award and the Hydrocarbons Award. The Form F17 also indicates that two of the employees are employed as tradespersons in the mechanical/fabrication streams and one employee is an electrician special class with experience in the electrical/electronic stream.

[61] Mr Hudston gave evidence confirming the information in the Form F17 and that he had individual discussions with each employee during which he went through the explanation sheet. Mr Hudston states that employees asked general questions around rates of pay during the meetings. Under cross-examination, Mr Hudston said that the meetings were conducted by telephone due to travel restrictions associated with the COVID-19 Pandemic.

[62] OGS submits that contrary to the circumstances considered by the Full Court of the Federal Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union[11] (One Key), there are, in the present application, no grounds for believing that the Agreement was not real or authentic in any sense. The only similarities between One Key and this application are that a small group of employees made the relevant agreement (albeit legitimately in this instance). The comparison between this Agreement and One Key goes no further. In this regard, the employees have extensive experience in the construction industry, including working under the Construction Award. Considering this level of experience, along with the content of the agreement explanation sheet, and the discussions that occurred between 18 March 2022 and 28 March 2022, the employees were well informed such that they "genuinely agreed", and gave informed consent, to the terms of the Agreement.

[63] OGS also submits that based on the Form F17 and the evidence of Mr Hudston, the Commission should be satisfied that the three employees who made the Agreement:

"(a) Were the only employees "employed at the time" by the Applicant who were undertaking work in Australia within the coverage of the proposed Agreement;

(b) Were undertaking work for the Applicant in Australia within the coverage of the proposed Agreement for the entire Agreement-making process; and

(c) Possess the necessary skills, qualifications and experience to work in all of the classifications in the proposed agreement, with each employee having extensive experience (between 10 and 53 years) in the construction industry."

[64] In light of the submissions above, and the material filed with the Commission in support of the application, OGS submits that the Commission can be satisfied that the employees genuinely and authentically agreed to the Agreement and there are no other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees for the purposes of section 188(1)(c) of the Act and the Commission should approve the Agreement.

[65] Mr Hudston's evidence, the terms of the Agreement and the submissions of OGS, indicate that it is accepted by OGS that the Manufacturing Award and the Hydrocarbons Award may cover work that employees are engaged in while the Agreement is in operation. OGS does not accept that the Electrical Contracting Award will cover employees to whom the Agreement applies, at any time.

[66] The central matter in contest between OGS and the CEPU, is whether the Electrical Contracting Award is a relevant award for the purposes of the better off overall test and with respect to pre-approval requirements related to whether the Agreement was genuinely agreed.

[67] I accept that the scope of the Agreement is established by clause 3.1 read in conjunction with clauses 7.1 and 7.6. Accordingly, the Agreement applies to employees performing work described in clause 3.1 for whom rates of pay and classifications are prescribed in clause 7.1. The list of types of work set out in clause 3.1(b) of the Agreement is inclusive (by virtue of the term "work involving or in association with") and only illustrative of work covered by the Agreement. There is no restriction or limitation on the operations or activities of OGS, or the work that employees covered by the Agreement may perform, to the on-site building, engineering and civil construction industry or to work within the scope of the Construction Award. There is no provision in the Agreement that indicates that it will only have application to employees or to the extent that OGS undertakes work in that industry or work that would be covered by the Construction Award, and clause 7.6 is an indication to the contrary, referring as it does to the Manufacturing and the Hydrocarbons Awards respectively.

[68] On a plain reading, the Agreement is expressed to apply, by virtue of clause 3.1, to work described in the classification definitions in clause 7 and is not limited by reference to the location or context in which the work described in those classification definitions is performed. In particular, the application of the Agreement is not limited or tied to the "on site building, engineering and civil construction industry" as defined in clause 4.5 of the Construction Award. The references in clause 3.1 of the Agreement to "engineering construction, on-site building and civil construction" are simply descriptors of the work covered by the Agreement along with other generic descriptors such as maintenance, modification, repair, fabrication, commissioning, decommissioning, construction, and metal construction and any related or associated works, when employees doing such work are employed in the classifications in the Agreement.

[69] While the wages clause in 7.1 of the Agreement references the classification structure in the Construction Award, it does not do so in a way that limits the classifications by reference to the on-site building, engineering and civil construction industry or to operations of OGS or work performed by employees, that would otherwise be covered by the Construction Award. In effect, the Note to the clause simply incorporates by reference, the text of the definitions from the Construction Award without the coverage of that Award also being referred to or incorporated. As set out above, other modern awards including the Manufacturing Award and the Hydrocarbons Award contain classification definitions for employees with the same (or substantially the same) qualifications and experience, and in some cases, the same wage rates, as those in the Construction Award, albeit the definitions in other awards are not in identical terms.

[70] While I accept the argument advanced on behalf of OGS that the Agreement covers only work for which classifications are prescribed, for the reasons set out above, the classifications are not limited to the coverage of the Construction Award.

[71] Even if I am wrong with respect to this view, the fact that the coverage of the Agreement may extend beyond that of the Construction Award, is evidenced by clause 7.6 which refers to the Manufacturing Award and the Hydrocarbons Award and covers circumstances where OGS may engage or direct an employee to perform work which would otherwise be covered by those Awards and acknowledges that this may occur. In this regard, I note the submissions of OGS that clause 7.6 was included in the Agreement in an endeavour to address circumstances which were considered by a Full Bench of the Commission in Construction, Forestry, Maritime, Mining and Energy Union v Specialist People Pty Ltd[12] (Specialist People No 1) where it was found that the scope of an enterprise agreement was broader than the modern award relied on by the employer to assert that an enterprise agreement passed the BOOT and that the decision to approve the agreement was erroneous because it failed to consider other applicable modern awards for that purpose.

[72] I do not accept the submission advanced by OGS to the effect that clause 7.6 of the Agreement is a nullity. To accept that submission would be contrary to the principles of construction requiring that a provision be construed in the context of the Agreement as a whole and that it be given work to do. Acceptance of this submission would also give rise to a concern as to whether the Agreement was genuinely agreed given the evidence of Mr Hudston that employees were provided with copies of the Manufacturing Award and the Hydrocarbons Award in addition to the Construction Award, as part of the explanation of the terms of the Agreement and were informed of the possibility of those Awards applying to work covered by the Agreement that they may be performing. Further, to treat the clause as a nullity would result in a potential disadvantage to employees by depriving them of the benefit of a higher rate, in circumstances where they were informed that they would receive such higher rates when performing work covered by the Manufacturing Award and the Hydrocarbons Award.

[73] Finally, to accept that the provision is a nullity would have the effect of confining the scope of the Agreement in a manner that was found by a Full Bench of the Commission in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Main People (Main People)[13], to be a significant change to the Agreement contrary to the requirement in s. 190(3)(b) of the FW Act. Clause 7.6 of the Agreement is not ambiguous and evidences a clear intention that employees may be engaged or directed to perform work that would otherwise be covered by awards other than the Construction Award. As the Full Bench said in Main People:

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

[74] Having found that clause 7.6 of the Agreement is not a nullity and that the Manufacturing Award and the Hydrocarbons Award may cover work within the scope of the Agreement, I now turn to consider whether the Electrical Contracting Award covers work within the scope of the Agreement.

[75] In my view, the circumstances in this case are substantially like those considered by the Full Bench in Specialist People No. 1. In that case, the Full Bench considered arguments by the employer that its business was in the manufacturing industry and that by operation of its exclusionary provisions, the Manufacturing Award alone covered work within the scope of the Agreement, and that the Construction Award, the Hydrocarbons Award and the Electrical Contracting Award did not apply. The scope of the agreement considered in Specialist People No. 1 was set out in clause 2 of the agreement as follows:

"b) employees of the Company employed to perform work in Australia (onshore or offshore), including but not limited to earth works, civil works, concrete works, infrastructure, utilities, fabrication, preassembly, assembly, disassembly, construction, maintenance, breakdowns, shutdowns, turnarounds, access of any type (including by rope), preparatory, repair, demolition, modification, pre-commissioning, commissioning, de-commissioning, hook-up, hook-up and commissioning, completions, local service upgrades, minor capital or capital works and all associated works for all areas listed above (employees)."[14]

[76] The classifications in the agreement included Electrician, Electrician Special Class, Electronics Tradesperson and Instrumentation Tradesperson. The Full Bench observed that on the face of clause 2 and the classification structure in clause 5, the scope of the agreement would plainly cover employees undertaking work covered by each of the additional three awards and relevantly, that the Electrical Contracting Award would cover work performed by an electrician special class at level 7 of the classification structure in the agreement.[15]

[77] The company in that case argued that although it might, on a project basis, provide manufacturing and maintenance services to offshore oil and gas clients whose operations fall within the scope of the hydrocarbons industry as defined in the Hydrocarbons Award, this would not alter the fact that the Manufacturing Award applies to the exclusion of the Hydrocarbons Award. In relation to the Electrical Contracting Award, the Company argued that it is not an "electrical, electronics and communications contractor", and that although electrical services form one aspect of its manufacturing and maintenance business, they do not form its substantial character, and nor can it be said that the company is an "electrical, electronics and communications contractor". The company also contended that the type of work that it performs and hopes to perform under the terms of the Agreement is directed toward producing a "final product" for a client and that it did at the test time for the Agreement, or subsequently, intend to conduct another enterprise that falls outside the "manufacturing industry", as that term is defined in the Manufacturing Award.

[78] The Full Bench in Specialist People No. 1 rejected the Company's argument that the Manufacturing Award was the only relevant award for the purposes of the BOOT finding that there was nothing in the agreement in that case manifesting that the employer would only engage in work in the manufacturing industry or that the agreement would only apply to employees if, or to the extent that the company undertook work in that industry. The full Bench said:

"[34] The company contended that at the test time, if the employees had been undertaking any of the work covered by the Agreement, the Manufacturing Award alone would have applied to them, because the Award focuses on the company's industry, and the exclusions in the other awards apply. However, the better off overall test, as expressed in s 193(1), asks whether each award covered and prospective award covered employee for the agreement would be better off overall under the agreement than the award, and ss 193(4) and (5) define "award covered employee" and "prospective award covered employee" as employees who are or would be covered by a modern award that is in operation and which covers the employee in relation to the work that he or she is to perform.' It is not enough to identify the industry of the employer and the Award that applies to it at the time it makes the agreement. The scope of work that may be undertaken under the agreement is a central part of the analysis.

[35] As noted earlier, the Agreement on its plain terms covers work that falls within the scope of the other three awards. Further, there is nothing in the Agreement to prevent the company having employees work such that the exclusions in the other awards do not apply. For example, it could have employees "principally employed to perform work on an ongoing basis at a location where the [hydrocarbon-related] activities described above are being performed", such that the exception to the carve-out in the Hydrocarbons Award is engaged and the carve-out will not apply. Similarly, the company could under the Agreement provide services in a manner akin to an electrical contractor, such that the relevant work would fall squarely within the coverage of the Electrical Contracting Award. Contrary to the company's submission, this is not an exercise in speculation, but of ascertaining objectively the scope of the work that is covered by the enterprise agreement.

[36] The better off overall test must be assessed in light of the work that may be performed under an agreement, measured against the relevant awards. If an agreement allows for work to be performed in a manner that would bring it within the coverage of a particular award, this must be taken into account. Fanciful or improbable working arrangements can of course be put to one side in conducting the analysis required by the better off overall test. But there is nothing fanciful about the possibility of work under this Agreement falling within the scope of the other three awards. The terms of the Agreement expressly permit this to occur. On the company's argument, its link with the manufacturing industry prevents this from occurring, but the Agreement makes no reference to this at all. The company says that it will maintain the link as a matter of operational fact, but the Commission cannot content itself with informal statements of intention."

[79] The Full Bench went on to conclude that each of the Construction, Hydrocarbons and Electrical Contracting Awards were relevant modern awards for the purpose of assessing whether the Agreement passed the better off overall test. This finding also had consequences for the question of whether the agreement in that case was genuinely agreed, which are discussed below.

[80] In the present case, the Agreement on its plain terms covers work that falls within the scope of the Electrical Contracting Award. Contrary to the submission advanced by OGS, the coverage of the Electrical Contracting Award is not dependent on whether an employer has an electrical license. While it is necessary under various legislative regimes that certain electrical work is performed under the auspices of an electrical license, this does not determine whether the Electrical Contract Award covers the work. It is possible that OGS employees could perform work that is covered by the Electrical Contracting Award under the auspices of an electrical license held by another entity. It is clear from the evidence that OGS is an entity which contracts to provide electrical services as defined in clause 4.3 of the Electrical Contracting Award. Furthermore, OGS provides labour to contractors on site and there is nothing to prevent OGS supplying labour to an entity that is undertaking work covered by the Electrical Contracting Award. Given the acceptance by OGS of the possible operation of the Manufacturing Award and the Hydrocarbons Award, there is no basis to make a different finding with respect to the Electrical Contracting Award.

[81] Finally, the Construction Award has a carve out to the effect that where employers covered by the Construction Award are performing work that is covered by the Electrical Contracting Award, that Award applies. Consistent with the observations of the Full Bench in Specialist People No. 1 the carve out in the Construction Award applies to OGS with respect to employees performing work that is covered by the Electrical Contracting Award. Some of the work described in clause 3.1of the Agreement is within the scope of the Electrical Contracting Award and could be undertaken by employees engaged in classifications which are incorporated by reference into the Agreement. For example, the classification definitions in the Agreement cover Tradespersons with electrical/electronic, instrumentation, complex or intricate circuitry and controls, and describes work including installation, testing, commissioning and decommissioning. Further, if OGS accepts that the carve out in the Construction Award operates with respect to the Manufacturing Award, then it operates equally in respect of the Electrical Award.

[82] For these reasons, I am satisfied that each of the Construction Award, the Manufacturing Award, the Hydrocarbons Award and the Electrical Contracting Award would cover employees to whom the Agreement applies, and that each of those Awards is relevant for the purposes of the BOOT and for preapproval requirements. I turn now to deal with the question of whether the Agreement is genuinely agreed.

[83] Notwithstanding my conclusion in relation to award coverage, there is no basis for me to find that the Agreement was not genuinely agreed. While the Agreement is made with a small number of employees - three in total - it is well established that this fact alone is not a basis for finding that an agreement is not genuine. The concept of genuine agreement was discussed extensively in the decision of the Full Court of the Federal Court in One Key where the Court considered the concepts of the authenticity and moral authority of an agreement.

[84] In the Form F17 filed with the Agreement, OGS declared that an explanation of the terms of the Agreement was provided to employees via the Enterprise Agreement Explanation Sheet and that copies of the Agreement and relevant modern awards were provided to employees who voted to approve the Agreement. Further, Mr Hudston said in his evidence that on 18 March 2022, employees were provided by email from Ms Jasvita Patel, OGS Project Services Pty Ltd HR/IR Advisor, with a copy of the Agreement and copies of the Construction Award, the Manufacturing Award and the Hydrocarbons Award and the Enterprise Agreement Explanation Sheet. Employees were also provided with Ms Patel's name and contact number and it was explained to them that, should they have any questions, they were welcome to contact her at any time.

[85] Mr Hudston also said that he conducted individual discussions with each of the relevant employees and took them through the Enterprise Agreement Explanation Sheet. That the discussions were conducted by telephone is not a basis to find that they were not effective in the provision of the explanation. There is nothing inappropriate about telephone discussions for such purposes and it is entirely understandable that the discussions were conducted by telephone because of travel restrictions associated with the COVID - 19 Pandemic. Even absent such restrictions, there are other equally valid reasons for discussions to be conducted by electronic means including that employees may be working at distant locations or on rosters that make in person meetings difficult to arrange.

[86] I have considered the Enterprise Agreement Explanation Sheet filed with the Form F17, and I am satisfied that it explains the terms of the Agreement and their effect consistent with the requirement in s. 180(5)(a) of the FW Act. In this regard, I note that the facts in the present case differ significantly from those considered by the Court in One Key, where it was noted that no comparison of the Agreement and the Awards it supplanted had been conducted by the employer, much less provided to employees covered by the agreement.

[87] In the present case, there is a detailed comparison which was undertaken by OGS and provided to employees and evidence of the content of the explanation has been tendered to the Commission, which there is no basis to doubt. Clearly in the present case, employees have been informed about the extent to which their wages and working conditions under the nominated modern awards, would change, for better or worse, if the Agreement was approved and came into operation.[16]

[88] I also note that the contents of the Enterprise Agreement Explanation Sheet are consistent with the information provided by OGS in the Form F17 and I am satisfied that there are no errors, omissions or inconsistencies in the Employer declaration that would give rise to a reasonable belief that the Agreement is not genuinely made. In short, this is not a case where erroneous responses to questions posed in the Form F17 call into question the explanation about the terms of the Agreement and their effect, that was given to the relevant employees.

[89] I have also been provided with evidence about the circumstances of the employees who voted to approve the Agreement. It is apparent from the details provided about each of the three employees, that they have extensive skills, experience and qualifications working in the construction industry in all its facets and could perform most, if not all of the work, covered by the Agreement. The scope of the Agreement, while not confined to work covered by the Construction Award, is confined to work that is commonly understood to be performed on construction, engineering, civil, infrastructure and resource development projects. The Agreement does not purport to cover apparently unrelated work as was the case in One Key where the Court noted that where employees working in a few occupations or classifications consent to an agreement covering numerous other occupations in many industries beyond their own, an explanation of the terms of the agreement and their effect, may fall short of providing an adequate basis for the formation of genuine consent.[17]

[90] In the present case, the classifications in the Agreement are relevant to work performed by the three employees who made the Agreement and the Agreement encompasses industries in which OGS operates or, on the submissions of the CEPU, will likely operate.[18] There is evidence that the relevant employees have performed work in a range of the classifications set out in the Agreement. Accordingly, no issues of informed consent arise on this basis. This is not a case where a small group of employees have made an agreement covering industries and classifications in which they have not worked or will not work, or which bear no relationship to the industries and classifications in which those employees work.

[91] I have determined that the Electrical Contracting Award is a relevant modern award for the purposes of the BOOT. Accordingly, that Award should have formed part of the explanation provided to employees. However, the fact that this did not occur is not fatal to a finding that the Agreement was genuinely agreed. To explain my view on this point, it is necessary to return to the proceedings involving Specialist People Pty Ltd_._

[92] Relevantly, the grounds of appeal before the Full Bench Specialist People No. 1 included a contention that the assessment as to whether the agreement passed the BOOT was not properly conducted on the basis that the terms of the agreement were compared only with the Manufacturing Award and not with the Construction Award, the Hydrocarbons Award and the Electrical Contracting Award. A further ground of appeal was that the Commission could not have been satisfied that the employer took all reasonable steps to explain the terms of the agreement and their effect, as required by s. 180(5), with the result that the agreement was not genuinely agreed to as required by s. 186(2)(a). In this respect it was contended in the appeal that the explanation of the terms provided by the employer did not address matters including the range of modern awards that would otherwise cover the work in question and the relevant benefits that would be provided under the agreement.

[93] After deciding in Specialist People No. 1, that in addition to the Manufacturing Award, the Construction Award, the Hydrocarbons Award and the Electrical Contracting Award were relevant modern awards for the purposes of the BOOT, the Full Bench decided to rehear the application for approval of the relevant agreement and went on in Construction, Forestry, Maritime, Mining and Energy Union and Others v Specialist People Pty Ltd[19] (Specialist People No. 2), to approve the agreement.[20]

[94] In deciding to approve the agreement, The Full Bench accepted an undertaking in the following terms, to address BOOT issues:

"Where the company engages or directs an employee to perform work which would otherwise be covered by any of the terms of the following awards:

Building and Construction General On-Site Award 2010;
Hydrocarbons Industry (Upstream) Award; or
Electrical, Electronic and Communications Contracting Award 2010

the company will pay the employee, for the performance of such work, the greater of the following amounts:

the rates of pay set out in clause 5.2 of the Agreement; or
an amount comprising:
- the applicable base rate of pay set out in the Other Awards, plus 20%; and

o any applicable allowances and penalties as provided for in the Other Awards."[21]

[95] The Full Bench in Specialist People No. 2 stated that it had a concern about compliance with s 180(5) arising from its conclusion about the coverage of the Agreement on the basis that the explanation of the terms of the agreement and their effect, omitted to was to explain the differences between the rates and conditions of employment provided for in the Agreement as compared to those under the four awards the Agreement was intended to displace in their application to Specialist People's employees. The Full Bench observed that this step was one reasonably necessary to be taken at least in respect of the Building and Construction Award, the Hydrocarbons Award and the Electrical Contracting Award because, as Specialist People has conceded, employees would not be better off overall under the Agreement than under those awards when applicable. The Full Bench also observed that this was something the employees obviously needed to know before they were asked to vote to approve the Agreement.

[96] However, the Full Bench determined that the undertaking proposed by Specialist People to address its BOOT concern would also address its concern about compliance with s 180(5), because, ensuring that employees would be better off overall under the Agreement by a "significant margin" when performing work covered by the Construction Award, the Hydrocarbons Award and the Electrical Contracting Award, effectively rendered moot the omission, in that the detriment which required explanation would no longer exist. It was concluded that acceptance of the undertaking would allow the Full Bench to be satisfied that s 180(5) was complied with and it would not be likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. Given this conclusion that the undertaking addressed concern about the requirement in s 186(2)(a), it was not necessary for the Full Bench to consider the company's submission that the omission in its explanation of the Agreement to employees was a minor procedural or technical error for the purpose of s 188(2).

[97] In the present case, OGS submitted that clause 7.6 of the Agreement is intended to incorporate the undertaking accepted by the Full Bench in Specialist People No. 2 into the Agreement, to pre-emptively deal with any objection to its approval on the grounds that the Construction Industry Award may not cover all work that employees are directed or engaged to perform under the Agreement. I note that the text of clause 7.6 of the Agreement reflects the undertaking which was set out in Appendix A to the decision in Specialist People No. 2 other than:
- There is no reference to the Electrical Contracting Award; and
- The margin above the base rates is 10 %, and there is a margin of 10% above applicable allowances, overtime and penalties, rather than a 20% margin on the base rate only.

[98] Given my conclusion that the Electrical Contracting Award is relevant for the BOOT, it follows that the explanation about the terms of the Agreement and their effect was required to include consideration of that Award. Clause 7.6 implicitly acknowledges that the Agreement may not pass the BOOT in respect of the Manufacturing Award and the Hydrocarbons Award. It follows that the Agreement may not pass the BOOT in relation to the Electrical Contracting Award.

[99] Accordingly, consistent with the Full Bench decision in Specialist People No. 2, I would accept an undertaking to the effect that where OGS engages or directs an employee to perform work which would otherwise be covered by the Electrical Contracting Award, OGS will pay the employee the rates of pay in clause 7.1 of the Agreement or an amount comprising the base rate for the relevant classification in the Electrical Contracting Award plus a margin sufficiently in excess of the base rate in that Award, and any applicable allowances, overtime and penalties.

[100] If OGS provides this undertaking, I would be satisfied that the requirements in s. 180(5)(c) have been met and for the reasons set out above, that the Agreement is genuinely agreed as required by s. 186(2) and that the requirements in s. 188(1)(a) - (c) have been met.

[101] For completeness, and to expedite consideration of whether the Agreement should be approved, I provide the following provisional views in relation to other issues raised with respect to the Agreement. In relation to whether the employees covered by the Agreement are fairly chosen as required by s. 186(3), I accept that the Agreement covers employees undertaking work as described in CW/ECW 1 - 7 and that the classification CW/ECW 8 is a senior or supervisory level such that the employees covered by the Agreement are organisationally or operationally distinct. I am also of the view that the distinction between these classifications in the Construction Award is reflected in the Electrical Contracting Award.

[102] In this regard, the CW/ECW 8 level in the Construction Award had a training requirement or equivalent of 12 modules of an Advanced Certificate or Associate Diploma and a CW9 has an Advanced Certificate or 15 Modules of an Associate Diploma. There are equivalent levels in the Electrical Contracting Award whereby an Electrical Worker Grade 8 has 9 Modules or equivalent towards an Advanced Certificate or an AQF Certificate 4 and an Electrical Worker Grade 9 has an Advanced Certificate or AQF Diploma or equivalent. Under both Awards employees at these levels have training, planning, quality control and technical skills which differentiate them from employees at levels below.

[103] In relation to the BOOT issues raised by the CEPU, I do not accept that it is relevant to compare the highest classification in the Electrical Contracting Award with the highest classification in the Agreement, based on a contention that there is no material before the Commission concerning equivalence. Yhere is material before the Commission concerning equivalence based on a comparison between the classification structure in the Construction Award which is effectively incorporated into the Agreement with respect to CW/ECW 1 - 7 classification definitions and the classification structure in the Electrical Contracting Award. In any event, for the reasons set out above, I am of the view that the undertaking with respect to the Electrical Contracting Industry will address any issues with respect to the Agreement passing the BOOT compared to that Award.

[104] In relation to the other BOOT issues raised by the CEPU with respect to the Building Award, my provisional views are as follows:

In relation to allowances, the undertakings suggested by OGS in paragraphs 32 to 37 of its submission would address any concerns that the CEPU raises about allowances;
The ability for OGS to engage an employee for a specified period of time or a specified task or tasks and to pay the employee on a full-time weekly basis, is not precluded by clause 8 or any other clause of the Construction Award and is not a detriment;
In relation to daily employment the rates in the Agreement exceed the Award rates for such employees and no BOOT issue arises and nor is any detriment specifically identified by the CEPU;
The CEPU's submission in relation to casual conversion was properly withdrawn at the hearing on the basis that is erroneous;
The provisions of clauses 6.20 and 6.21 of the Agreement which provide for a six-month probation period and that either party may terminate employment during that period by giving notice, does not provide "an explicit right to terminate during the first six months of employment", is not objectionable and does not implicitly or otherwise provide for unfair or unlawful dismissal;
Clause 5.3 of the Agreement provides that it does not supplant NES entitlements which include notice on termination of employment;
Clause 6.22 is unexceptional and simply provides that OGS may vary an employee's duties and responsibilities provided they are within the employee's range of skills, qualifications, competency and training and is not detrimental when compared to the Construction Award, which does not prohibit such a variation;
Clauses 6.25 - 6.27 provide for multi-skilling and workplace flexibility and are unexceptional and are not detrimental compared to the terms of the Construction Award;
Clause 6.27 dealing with fitness for work is not detrimental simply because the Construction Award does not contain an equivalent provision and there is nothing that prevents such a provision from being included in an enterprise agreement;
Clause 7.5 in relation to reviewing expense related allowances does not specifically preclude a reduction in such allowances and the undertaking suggested by OGS in paragraph 63 of the submission would address this issue subject to the undertaking in relation to the Electrical Contracting Award also being provided and the application of the undertaking to the Awards referred to in clause 7.6;
The Agreement does not increase the span of hours in a manner that would be detrimental to employees, and I am also of the view that the undertaking in relation to RDOs accruing for public holidays referred to in paragraph 65 of the OGS submission will address that issue;
The undertaking in paragraph 66 of the OGS submission addresses any issue with respect to clause 26(f) of the Construction Award;
I agree with the submission of OGS in relation to continuous service being provided for in the relevant provisions of the FW Act and the CEPU submission at paragraph 75(n) does not disclose any issue in this respect;
Clause 14 of the Agreement is not detrimental and nor does it impose onerous obligations on employees that are relevant to the BOOT regardless of the fact that they are not contained in the Construction Award;
In relation to inclement weather, OGS has provided an undertaking in response to concerns raised by the Commission, which addresses this issue
The undertaking offered by OGS to ensure that employees will receive any allowance for annual leave that they are entitled to under clause 31.2 of the Construction Award addresses that issue;
The consultation term in clause 31 of the Agreement is not consistent with the Model Consultation Term and if the Agreement is approved the Model Consultation Term will be taken to be a term of the Agreement; and
In relation to the matters raised by the CEPU in paragraph 76 of its submission, I agree with OGS that these matters are expressed with such a level of generality that they cannot be addressed, and in any event, I can discern no issue that would cause the Agreement to fail the BOOT with respect to these provisions.

[105] I am also of the view that if these matters are addressed by way of undertakings, it will not result in substantial changes to the Agreement.

[106] Finally, I note that OGS has maintained that a comparison of the base rates in the Award and those in the Agreement result in the Agreement rates exceeding those in the Award by amounts ranging from 14.74% to 16.91%. Comparisons undertaken by the Commission using the daily hire rates under the Award as a comparator result in the Agreement rates exceeding the daily hire rates under the Award by an amount between 2.43% to 6.6%. This matter should also be addressed by OGS as it is not apparent how daily hire employees will be better off overall given the lower margins between Agreement and Award rates for this category of employee, noting that the Agreement provides for employees to be employed in the category of daily hire.

[107] I provide OGS with an opportunity to consider the conclusions I have reached in relation to the coverage the scope of the Agreement, the coverage of modern awards and the issues associated with genuine agreement. I also provide OGS with an opportunity to consider my provisional views in relation to the BOOT issues set out above. If OGS intends to provide undertakings to address these matters it should do so by 12.00 pm on Wednesday 21 September 2022 and consolidate those undertakings with the undertakings already offered. OGS should seek the views of bargaining representatives for the Agreement in relation to the proposed undertakings and advise the Commission of those views.

[108] If the undertakings are provided in accordance with this decision, and the issue with daily hire rates is addressed by an appropriate undertaking, my provisional view is that I will accept the undertakings and approve the Agreement.

[109] If the CEPU has any further submissions in relation to the BOOT only, it should provide those submissions by 12.00 pm on Wednesday 21 September 2022. Absent such submissions I will confirm my provisional view and approve the Agreement.

J McLean of Counsel instructed by Mills Oakley for the Applicant.

A Aghazarian for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (intervening).

[7] Inco Ships Pty Ltd v AIMPE and Anor [2016] FWCFB 3370 at [15]- [16].

[18] Cf. Re KCL Industries Pty Ltd [2016] FWCFB 3048; (2016) 257 IR 266 at [29]-[36].

[21] [2019] FWCFB 7919 [11], Annexure A.

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OGS Project Services Pty Ltd [2022] FWC 2501 (19 September 2022)

At a glance

Court

Decision date

Source

Judgment (174 paragraphs)

OGS Project Services Pty Ltd [2022] FWC 2501 (19 September 2022)

Legislation Cited (1)

Cases Cited (2)