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

Peregian Beach Community College Ltd trading as Peregian Beach College

Application for approval of the Peregian Beach College Enterprise Agreement 2025 - application dismissed

• [1] Peregian Beach Community College Ltd trading as Peregian Beach College ("the Employer") has applied for approval of an enterprise agreement known as the Peregian Beach College Enterprise Agreement 2025 ("the Agreement"). The Application was made under section 185 of the Fair Work Act 2009 ("the Fair Work Act"). The Agreement is a single enterprise agreement. The Independent Education Union of Australia-Queensland and Northern Territory Branch ("the union") opposes the Application.

• [2] For the reasons that follow I am unable find that the Agreement has been made, because I am unable to find that a majority of those employees who cast a valid vote approved the Agreement. I also cannot find the Agreement has been genuinely agreed to, for the same reason. Accordingly I have decided to dismiss the Application.

• [3] Part 2-4 of the Fair Work Act relates to enterprise agreements. The Part's objects are to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits, and to enable the Fair Work Commission ("the Commission") to facilitate good faith bargaining and the making of enterprise agreements, including through, relevantly, ensuring that applications to the Commission for approval of enterprise agreements are dealt with without delay.[1] Division 2 of the Part allows an employer to make an enterprise agreement with the employees who are employed at the time the agreement is made and will be covered by the agreement.[2] In those circumstances, "the agreement is made when a majority of those employees who cast a valid vote approve the agreement."[3] If an enterprise agreement is made, a bargaining representative must apply to the Commission for approval of the agreement.[4] The employer is a bargaining representative,[5] as is a relevant union (that is a registered organisation) under certain conditions.[6]

• [4] In Part 2-4 "employee" means a national system employee. A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14 of the Fair Work Act, by a national system employer, except on a vocational placement.[7] National system employer has a particular meaning under section 14. By operation of the Fair Work Act, Part 1-3, Divisions 2A and 2B, these meanings are extended in respect of employers and employees in a "referring State" as defined in those Divisions. Part 1-2 of the Fair Work Act contains, in Division 3, certain definitions relating to employment, including casual employment.

• [5] The Application was filed on 18 June 2025. Among other supporting materials, the Employer also filed a declaration of Mr Joshua Woodall, a director, declared 18 June 2025, and a signed copy of the Agreement. An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.[8] The vote can be conducted "by ballot or by an electronic method."[9]

• [6] The union filed its declaration noting its objection to approval on 23 June 2025. The Employer wrote to the Commission responding to that declaration on 26 June 2025. Both the union's declaration and the Employer's response referred to the issue of the eligibility of the voting cohort.

• [7] As is usual with applications under section 185, on 22 July 2025 my chambers corresponded with the Employer and the bargaining representative with a view to ascertaining whether the application could be resolved by consent, and in doing so set out issues of concern for response. One of the issues that my chambers raised for response was the presence of casual employees in the voting cohort. From Mr Woodall's declaration of 18 June 2025 it appears the ballot result was in favour of approving the Agreement, in that of 69 voters, 35 voted in favour. This is a margin of one. This meant the eligibility of those who voted would be a significant issue for the Commission in considering whether the Agreement had been made, having regard to section 182 of the Fair Work Act. The letter from my chambers included the following:

The parties are alive to the issue of the inclusion of casual employees in the voting cohort. Having regard to the employer declaration (F17), and in particular the answers at questions 29 and 6, it would assist the Commission if the employer could confirm that in its view all of the casuals on the voting roll had been employed during the access period. The employer may wish to refer to Re Shop, Distributive and Allied Employees Association [2019] FWCFB 7599; 291 IR 233.

The parties should satisfy themselves as to the correctness of their submissions in this matter. The employer may wish to consult its employer association, if it is a member."

• [8] The Employer responded in submissions of 29 July 2025, along with an undertaking. The union responded on 31 July 2025, pressing several objections to the Agreement being approved. The Employer provided a reply on 1 August 2025.

• [9] The Employer's submissions of 29 July 2025 asserted that twenty-six casuals had participated in the vote (correcting an error in Mr Woodall's earlier declaration as to the number of casuals). The Employer later revised this position to say that it did not know whether the individuals referred to had participated in the vote, but said they had been included on the voter roll. For its part, the union identified an individual they said was on the roll but not eligible to vote as they were no longer an employee. The union asserted the person had been contacted and encouraged to vote, and they raised the possibility that that may have been the case with other ex-employees.

• [10] Given the one-vote majority, if any one of the individuals who voted did so without being eligible, that could have affected the outcome of the ballot. Via correspondence from my chambers of 26 August 2025 I put the bargaining representatives on notice that I considered the entitlement of the voters to vote was a material issue to be considered in the determination of the application for approval. I invited the Employer to voluntarily supply additional information to establish the eligibility to vote of nine individuals whose eligibility appeared to be in issue. The Employer did not do so.

• [11] The Employer instead responded with more submissions about this matter. In those submissions it argued, inter alia, that even if ineligible persons had voted, it was possible that would not have affected the outcome of the vote. This argument was misconceived; the question was whether the number of potentially ineligible voters was sufficient that it could have (not would have) materially affected the outcome of the vote. It also stated that it had been proceeding on the basis that assertions that had been made were not contested, but said that if the Commission was not satisfied as to any matters of fact as advanced by the Employer, the Employer was more than willing to provide any relevant evidence to alleviate those concerns.

• [12] As the Employer had not provided the information sought voluntarily, I listed the matter for hearing and programmed directions for filing and serving witness statements and outlines of submissions. By a directions order of 3 September 2025 I directed that by 17 September 2025, the Employer may file with the Commission, and provide to each other bargaining party an outline of submissions in support of its Application, and, if it wished to provide any evidence in addition to Mr Woodall's declaration, witness statements for each of the witnesses the Applicant intended to call at the hearing. In response the Employer filed a written outline of submissions but, surprisingly, no further evidence. In its outline it indicated that it would also rely on:

1. Form 16 dated 18 June 2025 - Filed by the Applicant

2. Form F17B dated 18 June 2025 - Employer's Declaration in support of Application

3. Proposed Peregian Beach College Enterprise Agreement 2025

4. Form F18 dated 24 June 2025 - Declaration of Employee Organisation

5. Response to F18 by the Applicant dated 25 June 2025

6. Correspondence from the Fair Work Commission to the parties dated 22 July 2025

7. Correspondence by Respondent to the Commission dated 29 July 2025

8. Submissions by the Applicant dated 29 July 2025

9. Undertaking by Joshua Woodall for the Applicant dated 29 July 2025

10. Submissions in Reply by the Respondent dated 31 July 2025

11. Correspondence from the Fair Work Commission to the parties dated 26 August 2025.

• [13] I had also directed that by 1 October 2025, each bargaining representative other than the Employer may file with the Commission, and provide to each other bargaining party, an outline of submissions and any evidence additional to any declaration already filed. The union filed an outline of submissions and a witness statement of Ms Helen Catherine Smith signed 25 September 2025.

• [14] The union had also filed an application for an order to produce documents directed to the Proper Officer of the Employer, seeking production of certain documents and records. This application for an order to produce documents was contested. The parties to that application provided submissions in writing in that regard, and on 2 October after considering their submissions I ordered that the Proper Officer of the Employer produce, by 9 October, various documents and records.

• [15] Under my directions order of 3 September the Employer's reply materials were due by 8 October 2025. On that date it wrote to my chambers stating:

"Noting the separate orders of 2 October 2025 and the impact of same, the Applicant does not feel the need to provide submissions in reply to the bargaining representative's submissions of 1 October 2025, as the matters contained within same have already been addressed within the Applicant's prior submissions in the matter."

• [16] In response to my orders of 2 October the Employer produced a bundle of employment contracts and letters of appointment, an extract of digital timesheets for seventeen employees, and an excerpt from its computer system showing certain information in respect of each of 26 casual employees. These were annexed to a witness statement, of Ms Nicole Alice Kelly, a human resources administrator employed by the Employer. Ms Kelly's statement also provided an explanation as to why no rosters were produced in response to the order of 2 October 2025.

• [17] The employer did not seek leave to file the witness statement as part of its reply materials after the date prescribed in the directions order of 3 September. Nor did I take the statement as being filed for that purpose; it appeared to be filed in response to the order to produce of 2 October, which was explicitly referred to in the correspondence under cover of which it was provided.

• [18] The union, on the other hand, did seek leave to file and rely on an additional witness statement for the purposes of the hearing. On 7 November it provided a witness statement of Mark Moorhead, of that same date, indicating that leave would be sought to rely upon it at the hearing of 11 November 2025.

• [19] The matter was heard in Brisbane on 11 November 2025. The Employer sought permission to be represented by counsel. This was contested. After hearing from the Employer and the union, and having regard to section 596 of the Fair Work Act, I granted permission for the reasons that appear on the transcript.

• [20] Prior to the commencement of the hearing the Employer had indicated to my associate that a document had been omitted from the hearing book. I was surprised to hear this as the hearing book had been issued weeks earlier, and no issue had been raised with my chambers in the intervening period. After dealing with permission for representation I dealt with this issue with Counsel for the Applicant who indicated that though the statement of Ms Kelly had been provided in relation to the order to produce, the Employer now wished to rely on it for the purposes of the substantive proceeding. The union indicated it had no objection to the statement being received for that purpose. The statement of Ms Kelly was later tendered, without objection, and admitted.[10] The Employer sought leave to also adduce additional evidence in chief from Ms Kelly. I indicated that I would deal with that request by allowing Counsel to ask questions, but that before Ms Kelly answered them I would hear and determine any objections from the union. Counsel duly asked questions to adduce additional evidence in chief, and the union did not object to any of them. Ms Kelly was made available for cross-examination.

• [21] I also had before me Mr Woodall's declaration. After the incorrect information in the declaration as to the number of casual employees had been corrected, I consider I can have regard to that declaration's contents, treating it carefully as Mr Woodall was not made available for cross-examination. The Employer also submitted that I could rely on assertions of fact that Mr Woodall had made in the Employer's previous correspondence and submissions, pointing out that in its submissions filed 17 September it had indicated an intention to rely on those documents. The union submitted there had been no consent to rely on the submissions as statements of fact or evidence that the Commission could factor into its consideration. I do not accept the Employer's submission that I can treat the assertions in its submissions as uncontested. The casuals' eligibility to vote in the ballot was squarely in issue. The Directions order of 3 September 2025 had been clear. Counsel for the Employer told the Commission that a "forensic decision" had been made not to simply state the truth of those facts that were already in material before it, but if that was required "that invitation was there." But it is up to a party to proceedings to decide what evidence to put before the Commission. Mr Woodall, when corresponding with my chambers on behalf of the Employer, had done so from an email address bearing a signature indicating he was a Senior Associate at a law firm. In the circumstances I do not consider that fairness obliged the Commission to explain to the Employer that the Commission was required to have regard to probative evidence.

• [22] As stated above the union had filed a witness statement of Ms Smith in compliance with the directions of 3 September. Ms Smith gave evidence for the union and was made available for cross-examination.[11] Later at the hearing, Mr Moorhead's statement was also tendered, without objection, and admitted.[12] Mr Moorhead was not required for cross-examination.

• [23] I have had regard to the bargaining representatives' written outlines of submissions, as well as to the submissions advanced orally at hearing.

• [24] The Employer submitted this case ultimately concerns the manner in which section 181 of the Fair Work Act is interpreted as it relates to casual employees. It submitted the choice, ultimately, was a question of whether or not an individual must be allocated the shift in an access period, or a specific period, or whether it is sufficient that there is an "operational expectation" that that individual would, in fact, be engaged going forward.

• [25] It submitted the question relates to who gets a say in the formation of an agreement that will be in place for a number of years. It submitted the question relates to who gets a vote in their rights and obligations that they will live under while that agreement is in place. It submitted the interpretation needs to take into account those factors.

• [26] In closing submissions the employer referred the Commission to McDermott Australia Pty Ltd v The Australian Workers' Union, and Anor [2016] FWCFB 2222; 255 IR 146 ("McDermott"), Re Shop, Distributive and Allied Employees Association [2019] FWCFB 7599; 291 IR 233 ("Kmart"), and Woolworths Group Limited [2024] FWCFB 314 ("Woolworths").[13] It submitted these matters related to events that had occurred before the commencement of section 15A of the Fair Work Act in its current form. It submitted that section provides, if not a definition, guidance to the Commission, in order to determine who is a casual employee. The Employer also drew my attention to the matter of DOF Subsea Australia Pty Ltd [2025] FWC 749 ("DOF Subsea") in which the Commission as constituted by Deputy President Slevin had canvassed the relevant authorities, including those referred to above, along with National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98; 232 FCR 246, Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd T/A Manly Fast Ferry [2018] FWCFB 7224 ("Noorton"), Charles Darwin University v National Tertiary Education Union and Others [2023] FWCFB 65 ("CDU").

• [27] The Employer submitted that ultimately the Commission would look at what are the future expectations and the requirements of that individual within the confines of the operation. That is to say, whether or not that individual has an expectation and how certain that expectation is, of future employment. It would always be a question of degree. However, it is not simply an answer to say that someone did not appear on a roster.

• [28] It submitted that there was evidence before the Commission that of the relevant individuals that we are focused on, being the eight individuals who it is unknown whether they voted or not, they all worked in the future (i.e. after the ballot). It submitted the evidence shows there is a substantial and significant reliance upon the use of relief teacher's aides and teachers within the business.

• [29] In essence the Employer submitted that I could be satisfied that all of the casuals who had been on the voter roll were eligible to vote, with the exception of one who was not eligible but also had not voted, and therefore could not have affected the ballot outcome. It pointed to Ms Kelly's additional evidence in chief as supporting this submission.

• [30] The union, for its part, submitted that I could not be satisfied that the voter roll contained only persons eligible to vote. In its written outline it had referred to the various authorities and had also drawn my attention to DOF Subsea. The union submitted that the Employer had been directed to provide any evidence in relation to the casuals in the voting cohort by a particular date, but had not done so. It submitted the only evidence that the Employer had provided was compelled out of them by the union's application for an order to produce.

• [31] It submitted that on that evidence there is some evidence that employees did work during the access period, which was captured in annexure B of Ms Kelly's statement. It made clear it took no issue with the individuals in respect of whom there was some tangible evidence that they had worked in the access period. For those employees that didn't work in the access period, the union accepted that Ms Kelly had said that they all had worked since, barring one. It pointed out that when pressed on the work history of a particular employee in this period, she had said she was unsure and did not know when they had worked.

• [32] The union submitted that excluding Ms Kelly's evidence, there was no evidence before the Commission that could satisfy it that these employees have worked since the ballot and it followed that there was no evidence that these employees had any entitlement to vote in the ballot.

• [33] The union pointed out that this information had been directly requested by my Chambers, in July, and that the applicant had opted not to provide it. It submitted that this was evidence that could have been verified with other documents, but that the Employer had elected not to do so.

• [34] It submitted that we had heard from Ms Kelly that there were employment records available to the applicant, yet the applicant had not provided them. Relying on Jones v Dunkel it submitted that I should infer that this evidence would not have assisted the applicant.

• [35] In regard to the work arrangements and expectations of ongoing work or an ongoing relationship with these casual relief employees, the union submitted Ms Kelly had been unsure of how or if these expectations had been communicated. It submitted Ms Kelly had agreed that it was possible that an individual could be working full-time elsewhere and still appear on the list. It submitted no weight should be placed on the evidence surrounding these purported ongoing arrangements and purported expectations.

• [36] It submitted there were uncertainties around the casual employees in general. It pointed out that the evidence, initially, had been that 36 had participated in the ballot; then it was 26. And, going off the report made to the Australian Charities and Not-for-profits Commission ("the ACNC"),[14] as at 31 December 2024, there were just five casual employees. It conceded Ms Kelly's evidence had been that that report related only to employees employed in the last week of December, but expressed doubt about that proposition. It pointed out that of twenty-six purported casual employees, the Employer had managed to produce only four written employment contracts.

• [37] The bargaining representatives' submissions also went to other issues in relation to applications to approve enterprise agreements. Because I am unable to find that the Agreement has been made, or that it was genuinely agreed to in light of the issues concerning the voter roll, it is not necessary to deal with the other issues about which the bargaining representatives made submissions.

• [38] For the reasons above, to be eligible to vote, a person had to be an employee who was employed at the time the Agreement was made, and an employee who would be covered by the Agreement.

• [39] It does not appear to have been in contest that the persons included on the voter roll would have been covered by the Agreement, had they been employed in the roles attributed to them in the materials. The issue in contest is whether they were, at the time the Agreement was made, employees within the meaning of that term for the purposes of Part 2-4, which is to say national system employees.

• [40] The term "national system employee" refers to a person who is employed "or usually employed" by a "national system employer." However, only national system employees who were employed at the time the Agreement was made are eligible to vote, having regard to Part 2-4. These are words of limitation.[15] So, the meaning of "employed at the time" needs consideration.

• [41] Turning first to the meaning of "employed," I do not consider the definitions of the ordinary meanings of "employee" and "employer" in section 15AA are of much assistance in this regard because they are definitions of those terms for the purposes of the Fair Work Act, not a codification of the meaning of those terms for all legal purposes, and Part 2-4 is not a Part relying on the ordinary meanings of "employee" and "employer." In any event, having regard to the applicant's name and (uncontested) registration with the ACNC it is far from clear that the applicant would be a "national system employer" but for Queensland being a referring state, and the definition of employee in section 15AA of the Fair Work Act expressly does not apply to Divisions 2A and 2B of Part 1-3. These matters were not argued before me. They may be of little consequence given the absence of any written contracts in respect of the individuals concerned, and the paucity of evidence about the nature of any contractual relationship between them and the applicant. That is to say, whether section 15AA applies or whether one only takes guidance from authorities such as CFMMEU v Personnel Contracting [2022] HCA 1 and ZG Operations v Jamsek [2022] HCA 2, and from authorities applying them in situations where there is no or no comprehensive written contract, such as Gang Ma v Yan Massage Wynnum West Pty Ltd [2024] FWCFB 419; 335 IR 57 and EFEX Group Pty Ltd v Bennett [2024] FCAFC 35; (2024) 330 IR 171, because, as discussed below, there is simply not much evidence on which the Commission can form any real impression of the nature of the employment contract or employment relationship, if any, between the relevant individuals and the applicant.

• [42] Does the definition of "casual employee" in section 15A shed any light on whether an individual was an employee employed at the time the Agreement was made? As the Employer submitted, the current definition came into force after the events giving rise to the authorities referred to above (Kmart, Woolworths, McDermott). However the earlier iteration of section 15A had been in force since 27 March 2021. Though it differed from the current provision in many respects, like the current provision it was couched in general terms as though it was a definition for all purposes, not just the purposes of the Act. And like the current provision it was directed towards the issue of distinguishing between casual employees and other employees,[16] not towards ascertaining whether the person is an employee at all. The Full Benches in CDU and Woolworths did not consider the previous section 15A. Deputy President Slevin referred to the provision in DOF Subsea[17] and considered it assisted in that it required consideration of the real substance, practical reality, and true nature of the employment relationship, and allowed regard to be had to the form of the contract, and additionally any mutual understanding or expectation. If this approach were to be adopted then it would appear that applying section 15A to a situation such as this would not require any divergence from the approach taken by the authorities, discussed below.

• [43] I now turn to the meaning of "at the time" in section 181 of the Fair Work Act. In Woolworths the Full Bench referred[18] to the employer's evidence that it had settled its voting roll by excluding casuals "unless they fell into one of two categories: those who worked at least one shift during the seven day access period immediately before the start of the vote (category 1); and those who during the access period were rostered to work a shift the following week during the voting period (category 2)." In considering this approach the Full Bench referred to the decision in Kmart and said:

"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 s 181(1) encompassed the whole of the access period in s 180(4) and was to be equated with the 'time' referred to in s 180(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."

• [44] The term "access period" had been defined in subsection 180(4) of the Fair Work Act as the 7-day period ending immediately before the vote. It was the period for which the employer had to provide employees with access to the text of the proposed agreement and any materials incorporated by reference. That subsection was repealed effective 6 June 2023. Instead the Statement of Principles on Genuine Agreement now 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. This period is "at least 7 full calendar days before the day on which voting starts," or "such other reasonable time period as is agreed with one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees to be covered by the agreement."[19] I consider that the proper approach to construing section 181 is that "at the time" is a reference to this reasonable period leading up to the vote. It does not seem to be in contest that the union agreed to a five-day "reasonable period," though there does seem to be some contest as to circumstances in which that agreement was made. Is the "time" for the purposes of s 181 referrable to a shorter period agreed with another bargaining representative? The Commission (constituted by Commissioner Matheson) has given thoughtful consideration to the question of how to construe the reference to "the time" in light of the repeal of subsection 180(4) in Monadelphous Engineering Pty Ltd [2025] FWCA 1123, [29]-[31]. Given my findings below, it is not necessary to resolve this particular question in this matter.

• [45] In DOF Subsea, Deputy President Slevin summarised the effect of the authorities in relation to casuals' voting eligibility as follows:

[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.

• [46] With respect, I agree. Having considered the approach to be taken I now turn to the evidence. As indicated Ms Kelly had provided a witness statement with three annexures and some additional evidence in chief. The union sought to impugn Ms Kelly's credibility. I consider she answered questions honestly. The annexures to Ms Kelly's statement were the bundle of employment contracts / appointment letters (annexure A), a spreadsheet showing timesheet data for seventeen individuals (annexure B), and a spreadsheet showing some employment data for 26 individuals (annexure C).

• [47] The timesheet data showed that of the seventeen individuals, fourteen had worked in the 5-day period prior to the vote, and all had worked in the 7-day period prior to the vote. In giving her evidence Ms Kelly confirmed that the nine individuals who appeared in annexure C but not annexure B had not submitted timesheets for any of the weeks ending 25 May, 1 June, or 8 June 2025. As stated above the ballot commenced on 29 May.

• [48] The nine that appeared in annexure C but not annexure B (the employment records but not the timesheets for the access period) included, according to annexure C, one maintenance worker, two relief teacher assistants, and six relief teachers. I will refer to these nine employees as "the cohort in issue."

• [49] Of those in the cohort in issue, it was common ground that one individual should not have been on the voter roll, as he had taken full-time work elsewhere and was not available for shifts. Voting commenced on 29 May 2025 according to Mr Woodall's declaration. The Employer produced Ms Kelly's spreadsheets to the Commission on 9 October 2025. According to Annexure C to Ms Kelly's statement, the individual concerned, AW, was still showing as "Active" in the Employer's system by then. This suggests that the general information in the Employer's system, excerpted in this document, is not entirely reliable. However, I can have more confidence in the data excerpted from timesheets or payslips because as the Employer's witness Ms Kelly indicated it is unlikely that if an employee worked, they would have failed to submit a timesheet, since that was how they got paid.

• [50] Of the remaining 8 individuals in the cohort in issue (i.e all excluding AW), three had commenced in 2023, two had commenced in 2024, and three had commenced in 2025 (as had AW). This of itself tells us very little about whether they were still employed in the period immediately before 29 May 2025. None of the employment contracts annexed to Ms Kelly's statement related to any of these eight casuals. Ms Kelly's additional evidence in chief about these individuals was:[20]

[PN83] MR RAWLINGS: Ms Kelly, we're just going to go through a couple of things that are contained inside that statement, if you don't mind. Now, you've referred to a number of roles that are of a casual nature, in that they are casual employees. Two of them are relief teachers and relief teachers assistants. Would you be able to describe, for her Honour, the role of relief teachers within the operation of the college? Yes. So, generally, if a teacher calls in sick on the morning we have a small pool of relief teachers that we can access to come in and cover.

[PN84] And how often does the college rely upon relief teachers? Almost every day.

[PN85] Now, I understand that you are aware that there are eight individual casual positions that this proceeding is focused on; are you aware of that? Yes.

[PN86] Sorry, nine individuals. Now, I want you to exclude [AW]? Yes.

[PN87] The remaining eight positions, have they worked for the college since the vote took place? Yes.

[PN88] Have they worked for the college in the positions that have been outlined in your annexures? Yes. All but one.

[PN89] Okay. Could you explain which one that is? [FM] has been working since that, in the role of grounds and maintenance as well.

[PN90] I understand. So just to clarify, all eight individuals have engaged in shifts after the vote? Yes.

[PN91] And all except for [FM] were engaged in the positions that are described in annexure C? Yes.

[PN92] [FM] was engaged in addition to being a relief teachers assistant, also in grounds keeping? Yes.

• [51] The lack of detail means this evidence from Ms Kelly does not take this matter very far. If accepted, this evidence tells us that each of the individuals concerned worked at some time between 8 June and 11 November. Mr Woodall's correspondence to my chambers of 2 September 2025 had said:

As to the factual matters of actuality for the Casual staff in question being the 8 referred too, we have referred to this within our submissions, but perhaps for convenience we again confirm 6 have worked for the Employer since the vote took place. The remaining two being a Relief Teacher and Relief Teacher Aid. The Former has been unavailable as she is caring for her children and the other has been undertaking University Studies. The Relief Teacher Aid is scheduled to work next week and the Relief Teacher during the First week of Term 4. Both employees have confirmed they will be in attendance. At that time, all 8 would have worked for the employer since the vote took place and we will advise the Deputy President of same once this has occurred.

• [52] This was not before me on the evidence. Mr Woodall did not give evidence and was not made available for cross-examination. In any event it is unclear how much of this paragraph would have been objectionable on the basis of being hearsay in the event Mr Woodall had given evidence. However, even if these assertions were to be taken at face value, they are affected by the same issues as those I have referred to above in relation to Ms Kelly's evidence, with the added difficulty that there seems to have been very little engagement between two of the individuals on the voter roll in the period commencing in the week ending 25 May and concluding on 2 September 2025.

• [53] Nor does the Employer's concept of "operational expectation" take the matter very far. The better formulation is that used by Deputy President Slevin in DOF Subsea (at [46]), synthesising the previous authorities, which I have set out above. The mere fact that an employer might "expect" a person to be engaged for more shifts in the future, in the absence of any evidence of such expectation being mutual or even communicated, does not rise to the level of engagement on an ongoing basis, especially where there is no evidence that the expectation is mutual. In this case I accept the union's submissions that there is no evidence that the expectation had even been communicated to the individuals in question. This was explicitly put to Ms Kelly and was a matter outside her knowledge.[21]

• [54] Ms Kelly had explained in her statement why casual employees could not simply be rostered ahead of time. I accept that the nature of, particularly, relief teaching (or working as a teacher's assistant on a relief basis) is that relief is often needed to cover unplanned absences. This could self-evidently be managed in different ways. Six individuals in the cohort in question were described as either Relief Teachers or Relief Teachers Assistants. Ms Kelly's statement explained the mechanism by which those persons came to perform work for the Employer, as follows:

[5] I say, there are not formal Rosters to provide. Rather the following applies:

b. Relief Teachers and Relief Teacher Assistants are engaged via the service called Class Cover, from the School's nominated list. It is a fairly common system used by a majority of schools to source relief staff. The process involves the school creating a profile on the system and Relief staff apply to be added to the School's list of available relief staff. The school then selects the relevant staff it wishes to hold on its list and adds them. It's the expectation that if those staff are included on the school's list they will be available for relief work on an ongoing basis. If the staff no longer wish to be included on the School's list they can notify the school they are to be removed. Similarly the school can remove anyone from its list that it no longer has an intention of engaging again in the future. By its nature being relief work at short notice, there isn't a roster available unless the relief is in regard to pre-arranged leave to be taken by a permanent staff member, but this is ad hoc.

• [55] From this description it seems that Class Cover is a digital platform that connects relief teachers and teachers' assistants with schools. I doubt that simply being on the platform, and included in a school's list on the platform, is sufficient to make a person an employee of the relevant school. To the contrary, this seems more consistent with a situation where the individuals are merely "on the books" without current shifts or ongoing engagement.[22] As indicated above, there were no written contracts for these people. There is nothing from the evidence that would lead me to infer that there was an employment contract on foot with them that was wholly oral at the material time. I cannot find these persons were employees at that time.

• [56] Under cross-examination Ms Kelly was able to refer to two maintenance workers. Her statement had said, in relation to them:

[5] ... f. There are two Grounds/Maintenance staff. One works each day for the same hours unless otherwise on leave. The other works only during the school holidays to provide additional support for the Maintenance Department whilst the students are offsite.

• [57] As can be seen from the foregoing Ms Kelly indicated that FM was one of the maintenance workers, despite being shown as a relief teachers assistant in annexure C to her statement. She did not say when FM had taken up the maintenance role. She was able to say that JT, who is referred to as a maintenance worker in Annexure C to her statement, had worked the July school holidays. It appears likely that JT was an employee and eligible to vote at the time of the ballot. There is insufficient evidence for me to find that FM was an employee and eligible to vote at the time.

• [58] I asked Ms Kelly whether she could have excerpted payroll or timesheet records in relation to the eight individuals in the cohort in issue, to show how recently before or after the three weeks ending 25 May, 1 June, and 8 June they had worked. These were the periods in Annexure B. Ms Kelly said she likely could have got those timesheets, but she was only looking at the weeks in question because she was responding to the order to produce. I make no criticism of Ms Kelly in that regard as it is perfectly clear that the materials she prepared and annexed to her statement were directly in response to the order to produce, as was the statement itself. However, there is no reason why the employer could not have simply extracted the relevant records from its system and put them before the Commission in these proceedings. I infer from its failure to lead this documentary evidence that the relevant records would not have helped the Employer's case.

• [59] On the evidence before me I cannot find that the eight members of the cohort in question (i.e., all of the individuals excluding AW for the reasons set out above) were eligible to be on the voter roll. It seems likely that JT would have been but that still leaves seven individuals. As the vote was 35 to 34 in favour, this is material.

• [60] The Employer did not lead any evidence to show whether (as opposed to how) those persons voted. Mr Woodall's declaration had stated:

Voting took place by way of an online ballot (Microsoft forms), the employees were sent a link to the ballot once it opened on 9:00 am Thursday 29th May 2025. The Ballot then remained open until 9:01am 5th June 2025.

The form required the employee to login to their work email account. Each account could only vote once and the vote was anonymous.

Employees whom did not already have work email addresses had their addresses created and were provided with instructions as to how to access same, prior to the vote. Employees whom had technical difficulties at any time were advised to contact the Principal for assistance.

• [61] This passage raises the issue of why there were people who were considered to be employees who did not already have work email addresses. This does not appear to have been addressed but it is possible that some workers in classifications other than teaching did not ordinarily require a work email address. More relevantly, if there was only one vote per login then presumably the Employer could have obtained a list of who voted without also seeing whether the person voted in favour or not. But this is not before the Commission so I have little option but to assume that they may all have voted, except AW (as it was common ground that he did not).

• [62] It is not necessary to consider the ACNC report annexed to Mr Moorhead's statement. Whether or not Ms Kelly was correct about the period referred to in it, the data was clearly not current by May 2025 given the union conceded there were seventeen casuals employed during the access period.

• [63] In the circumstances where there are nine casuals who did not work in the access period, of whom eight may have voted, of whom there are at least seven whose eligibility to have done so is not established on the evidence, I cannot find that the Agreement has been made. That is because I cannot find that the Agreement has been approved by a majority of those who cast a valid vote, as required by section 182 before a bargaining representative can apply for approval. In those circumstances I also cannot be satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement.

• [64] The union submitted,[23] and I agree, that the inclusion of these individuals on the voter roll could not be considered a minor procedural or technical error in light of the slender majority.

• [65] The inclusion of casuals in the voting cohort was not the only issue in these proceedings. However, it is not necessary to deal with the other issues, or to consider Ms Smith's evidence, given my finding that there are at least seven persons who were included on the voter roll but whose eligibility is not established on the evidence.

• [66] For the reasons set out above the Application is dismissed. I order accordingly.

J Tully for the Independent Education Union-Queensland and Northern Territory Branch.

[1] Fair Work Act s 181.

[2] Fair Work Act s 181(3).

[3] Fair Work Act s 182(1).

[4] Fair Work Act s 185(1).

[5] Fair Work Act s 176(1)(a).

[6] Fair Work Act s 176(1)(b).

[7] Fair Work Act s 13.

[8] Fair Work Act, s 172(1).

[9] Fair Work Act, s 172(2).

[11] Her witness statement was admitted and marked Exhibit 3.

[13] Undisturbed by Retail and Fast Food Workers' Union Inc v Woolworths Group Ltd [2025] FCAFC 105.

[14] Exhibit 2, Statement of Mark Moorhead.

[15] National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98; 232 FCR 246, [26] to [27] (Jessup J with whom White J agreed).

[16] See also paragraphs [306] and following of the Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth).

[19] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (Cth), Schedule 1, Principles [4] and [6].

[20] With workers' names omitted and replaced with initials.

[22] I observe in passing that the Employer has obviously grappled with the question of when a relief teacher is an employee, having regard to clause 7.3.1 of the Agreement. However, this clause was not relied upon by the parties in argument before me and I do not rely on it in deciding this application.

[23] Outline of submissions of the IEU-QNT filed 1 October 2025, [22].

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