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

Skout Solutions Pty Ltd Trading AS Skout Solutions

SKOUT SOLUTIONS INDUSTRIAL ENTERPRISE AGREEMENT 2024

Application for approval of the Skout Solutions Industrial Enterprise Agreement 2024 - voter cohort all casual employees - sufficient interest - sufficiently representative requirements considered - requirements for approval satisfied - undertakings provided - application granted.

[1] Skout Solutions Pty Ltd trading as Skout Solutions (Skout) has applied for the approval of an enterprise agreement known as the Skout Solutions Industrial Enterprise Agreement 2024 (2024 Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act). The agreement is a single enterprise agreement. The Commission can only approve this Agreement if the requirements in ss 186 and 187 are met.

[2] The Australian Workers' Union (AWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) oppose the application on several grounds.

[3] Skout is a labour company that provides on-hire workers to their clients in a variety of industries across Australia, including remote regions. Skout's clients operate across multiple industries, including construction, electrical, manufacturing, oil and gas.

[4] In December 2024, Skout commenced bargaining for an enterprise agreement to replace the Skout Solutions Industrial Enterprise Agreement 2019 (2019 Agreement). On 9 December 2024, it arranged for a Notice of Employee Representational Rights (NERR) to be sent by email to all employees covered by the Agreement.

[5] Neither the AWU nor the CEPU were appointed bargaining representatives for the 2024 Agreement. No other bargaining representatives were appointed.

[6] As part of its management team, Skout employs managers with responsibility for staff in particular regions who conduct monthly "one on one" Monitor and Consult calls with its employees engaged by Skout to work at client sites within their region. Following the issuance of the NERR, all employees had a Monitor and Consult call in which they were made aware Skout was considering the renewal of the 2019 Agreement and the importance of participating in a vote down the track.[1]

[7] Following a slow-down in work and employee engagement from the middle of December 2024 for the holiday period, Skout waited until 28 January 2025 to notify employees it intended to hold an employee vote on the proposed agreement. The vote would be held between 5 and 9 February 2025. On 28 January 2025, Skout provided all employees with a copy of the Agreement, an explanatory document explaining its terms relevant to the Modern Awards and the existing agreement, along with information on how to vote.

[8] Skout also raised the proposed Agreement with employees during its January Monitor and Consult calls. They provided employees with access to a dedicated website with further information on the Agreement and invited employees to attend one of two virtual information sessions being held to provide further information on the proposed Agreement prior to it proceeding to ballot. These information sessions convened on 29 and 31 January 2025. No employees attended.

[9] An electronic secret ballot on the Agreement was held between 5 and 9 February 2025. Of 128 employees provided an opportunity to vote on the Agreement, 80 out of 85 votes (94%) were for the approval of the Agreement.

[10] The Agreement covers Skout and any of its employees engaged to perform work for a client within the definition of clause 2.1(b) of the 2024 Agreement, as follows:

"...involving repair, replacement, renovation, rehabilitation, maintenance, earth works, civil works, concrete works, electrical services, infrastructure, power or water, fabrication, preassembly, assembly, disassembly, construction, breakdowns, shutdowns, outages, turnarounds, access of any type including by rope, preparatory, repair, modification, pre-commissioning, commissioning, decommissioning, hook up, hook-up and commissioning, completions, local service upgrades, minor capital or capital works and all associated and similar miscellaneous industrial works for all nature of work listed above within the Commonwealth of Australia (onshore and offshore).[2]

[11] The Agreement covers employees who are employed on a full-time, part-time, casual, fixed or maximum term or project specific basis, but does not cover any managerial, supervisory, hospitality, administrative or clerical employees.[3]

[12] All of the employees who voted on the proposed Agreement were engaged on a casual basis.[4]

[13] But for the 2024 Agreement, the Modern Awards that would otherwise cover and apply to Skout's employees under the Agreement are the Electrical, Electronic and Communications Contracting Award 2020, the Hydrocarbons Industry (Upstream) Award 2020, the Building and Construction General On-site Award 2020, and the Manufacturing and Associated Industries and Occupations Award 2020.

[14] The 2024 Agreement is made on similar terms to those included in the 2019 Agreement approved by the Commission, itself made on similar terms to the 2016 Agreement but for a removal of carve-outs for sites in the Wollongong region.[5]

[15] On its application with the Commission for approval, the AWU and the CEPU requested a copy of the Application and supporting materials. Redacted copies of the documents were subsequently provided consistent with rule 130 of the Fair Work Commission Rules 2024 and the principles stated in the Full Bench decision in CFMEU v Ron Southon Pty Ltd.[6]

[16] On review of the materials provided, on 13 March 2025, both the AWU and the CEPU expressed concerns that the Agreement was incapable of approval and sought to be heard under s 590 of the FW Act in respect of the application.

[17] Whilst not bargaining representatives, the Unions' concerns were expressed in terms of the Agreement not being genuinely made and not sufficiently explained, from their perspective as representatives of employees performing work covered by the proposed Agreement.

[18] The Full Bench has observed that the Commission may choose, in a particular case, to hear from an employee organisation or any other person about the approval of an agreement even though the organisation or person may not otherwise have a right to be heard.[7] The exercise of discretion is not such that there be a "compelling reason", but rather in the particular circumstances of the matter before it, the Commission considers it appropriate to inform itself by inviting oral or written submission from a person or an organisation.

[19] The concerns raised by the AWU in this matter included:

1. Whether the employees who voted to approve the proposed agreement were sufficiently representative of those who will be covered by it, inconsistent with s.188(2)(b);

2. Whether the employees who voted to approve the proposed agreement had a sufficient interest in the terms of the proposed agreement, inconsistent with s.188(2)(a);

3. Whether the Applicant had taken all reasonable steps to explain the terms and effect of the terms of the proposed agreement in comparison to the industrial instrument that currently apply to the employees it seeks to apply, inconsistent with s.180(5) and 188(4A);

4. There is no evidence before the Commission that the employees who were asked to vote for the proposed agreement pursuant to s.181 of the Act were "employed at the time" as required;

5. There is no evidence of any actual negotiation to the terms of the agreement.

[20] The CEPU raised the same concerns with focus on the requirement for the Commission to consider the Statement of Principles on Genuine Agreement (SoPs) in considering the approval of an agreement.

[21] Considering the concerns raised by the Unions, I was satisfied I would be assisted by submissions and evidence from both the Applicant, the AWU and the CEPU. On 9 April 2025, I heard from all 3 parties. Permission was granted for Skout to be represented in proceedings by Mr Brendan Avallone (Of Counsel). Mr Zach Duncalfe appeared on behalf of the AWU. Mr James Fox appeared for the CEPU.

[22] The parties were invited to provided supplementary submissions after the hearing by 9 May 2025. Only the Applicant filed supplementary submissions.

[23] Considering all the material before the Commission, I convened a further case management conference on 26 June 2025, at which I advised them I had formed a preliminary view that the Agreement had not been genuinely agreed as I was not satisfied the voting cohort was sufficiently representative or had sufficient interest in the Agreement. I particularly noted the paucity of evidence before me led to this preliminary conclusion.

[24] In circumstances where the application appears to be a roll over Agreement and where the Applicant's evidence was not tested in proceedings,[8] I determined to provide the Applicant a final opportunity to provide the evidence available to support their application.

[25] The Applicant provided additional submission and a further witness statement from Mr Berry with supporting documentation. The objecting Unions made further submissions in support of their contentions and on 30 July 2025, the Applicant filed final submissions and a further statutory declaration from Mr Berry.

[26] I have considered all the evidence and submissions of the parties in this matter. For the reasons that follow, I am satisfied the Agreement was genuinely agreed to by the employees covered by it pursuant to s.186(2) of the FW Act.

[27] The Application is approved.

[28] Before approving an enterprise agreement under s.185 of the FW Act, the Commission must be satisfied that the agreement has been "genuinely agreed to by the employees covered by the agreement".[9] Section 188 of the FW Act sets out the requirements for determining whether an enterprise agreement has been genuinely agreed to by employees. It provides:

188 Determining whether an enterprise agreement has been genuinely agreed to by employees

(1) The FWC must take into account the Statement of Principles made under section 188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement.

Sufficient interest and sufficiently representative

(2) The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the Agreement unless the FWC is satisfied that the employees request to approve the agreement by voting for it:

• (a) have a sufficient interest in the terms of the agreement; and

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

Note: In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527, a Full Court of the Federal Court observed that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being improved.

Agreement of bargaining representatives that are employee organisations

(2A) The FWC cannot be satisfied that an enterprise agreement to which section 180A or 180B applies has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with section 180A or 180B (as the case requires) in relation to the agreement.

Where notice of employee representational rights was required

(3) Subsection (4) applies in relation to an enterprise agreement if an employer was required by subsection 173(1) (which deals with giving notice of employee representational rights) to take all reasonable steps to give notice in relation to the agreement.

(4) The FWC cannot be satisfied that the agreement has been generally agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with the following provisions in relation to the agreement:

• (a) sections 173 and 174 (which deal with giving notice of employee representational rights);

• (b) subsection 181(2) (which requires that employees not be requested to approve certain agreements until 21 days after the last notice of employee representation or rights is given)

(4A) The FWC cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with subsection 185 in relation to the agreement.

(5) In determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement (including determining whether it is satisfied that the employer complied with the provisions mentioned in subsection (2A) or (4) or (4A) the FWC may disregard minor procedural or technical errors made in relation to the following requirements if it is satisfied that the employees were not likely to have been disadvantaged by the errors:

• (a) Section 173 or 174 (which deal with notices of employee representational rights for certain agreements);

(aa) Subsection 180(5) (which requires employer to explain the terms of agreements);

(ab) Subsection 180A or 180B (which deal with agreement of certain bargaining representatives);

(b) subsection 181(2) (which requires that employees not be requested to approve certain enterprise agreements until 21 days after the last notice of employee representational rights is given);

(c) Subsection 182(1) or (2) (which deal with the making of different kinds of enterprise agreements by employee vote).

(6) The FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the requirements (if any) prescribed by the regulations for the purposes of this subsection are met.

[29] Relevant to this matter, Principle 17 of the SoPs states:

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

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

   2. the extent to which the employees entitled to vote on the enterprise agreement are employed across the full range of:

      1. classifications in the agreement

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

      3. geographic locations the agreement covers, and

      4. industries and occupations the agreement covers.

[30] The application of the SoPs was considered by the Full Bench in SDA v Allen Family Pty Limited at [76], as follows:[10]

"The important point to be made is that while the Commission is required to take into account the Statement of Principles in determining whether an agreement has been genuinely agreed, it does not operate as a set of mandatory rules that must be complied with by an employer absent which the Commission cannot be satisfied that an agreement has been genuinely agreed. Where an employer follows pre-approval steps that are consistent with the Statement of Principles, that would weigh more favourably towards a conclusion that an agreement has been genuinely agreed. The converse is equally true of course. The requirement to take into account the Statement of Principles does not displace the requirement to consider each of the other matters set out in s 188 in determining whether an agreement has been genuinely agreed."

[31] Section 188(2) requires the Commission cannot be satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by it unless the Commission is satisfied that the employees requested to approve the enterprise agreement by voting for it have a sufficient interest in the terms of the Agreement; and are sufficiently representative, having regard to the employees the Agreement is expressed to cover.

[32] These provisions were inserted by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. The Revised Explanatory Memorandum to this bill provided the following:

Sufficient interest and sufficiently representative

723. New subsection 188(2) would provide that the FWC cannot be satisfied that an enterprise agreement has been genuinely agreed to unless the FWC is satisfied that the employees requested to vote on the agreement:

• have a sufficient interest in the terms of the agreement; and

• are sufficiently representative, having regard to the employees the agreement is expressed to cover.

724. A note to subsection 188(2) indicates that in the decision of One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527, a Full Court of the Federal Court observed that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved.

725. New subsection 188(2) is intended as a safeguard against agreements which are not the result of collective bargaining in good faith, including 'unrepresentative' and 'low voter cohort' agreements. For example, a small cohort of employees offered rates of pay above those provided in the enterprise agreement should not be capable of being found to have genuinely agreed (see, for example, Re KCL Industries Pty Ltd [2016] FWCFB 3048; (2016) 257 IR 266)).

726. New paragraph 188(2)(a) is directed at ensuring that employees must have a 'sufficient stake' in the terms of the agreement. For example, employees would not have a sufficient interest in the terms of an agreement if no genuine collective bargaining in good faith occurred as part of the agreement-making process.

727. New paragraph 188(2)(b) is intended to ensure that employees requested to vote on an agreement are sufficiently representative, having regard to the coverage terms or intended coverage of the agreement. For example, employees engaged in one industry, occupation or classification should not be capable of being found to have genuinely agreed to an enterprise agreement intended to cover employees across a substantially wider range of industries, occupations or classifications.

728. A small cohort of employees would also not be sufficiently representative where the agreement is intended to ultimately cover a much wider workforce following transfers of employment, possibly within a corporate group.

[33] The Unions' submissions are as follows:[11]

• The scope of the proposed agreement seeks to set terms and conditions for at least 49 different classifications from across at least 4 modern awards[12] operating across a range of industries and sectors, across every Australian State and Territory, including offshore and onshore work.

• All the employees who voted on the proposed agreement were casuals.

• The Applicant must satisfy the Commission employees requesting to approve the Agreement are sufficiently representative, having regard to the employees the Agreement is expressed to cover. And that the Applicant has not provided evidence of locations where voting employees work; details of the industry or industries where voting employees work, including award coverage; or the classifications in which the voting employees were engaged at the time of the vote.

• The Agreement is a 'baseline' enterprise agreement providing for base rates of pay and conditions far below prevailing rates currently paid to employees working in many of the industries proposed to be covered by the Agreement.

• Clause 22 - Above Agreement Payments provides a mechanism for employees to be paid beyond the rates set out in the Agreement.

• The employer's explanatory material specifically states the wage increases in the Agreement "does not necessarily mean employees will receive this increase as some employees are paid more...".

• Considering the above, if an employee who voted for the proposed agreement was receiving above agreement payments such that the agreement had no material impact on their terms and conditions of employment it is unlikely the Commission can find such employees were sufficiently interested in the terms of the proposed Agreement.

Reasonable steps to explain the agreement - ss.180(5) and 188(4A)

• The Applicant prepared and distributed a comparison document to explain the differences between the proposed Agreement, the 2019 Agreement and provided contrasting comments relevant to four modern awards. It relies on these materials to discharge it obligations to have taken all reasonable steps to ensure that the terms of the Agreement and the effect of those terms were explained to employees covered by the Agreement.

• The material provided by the Applicant is not exhaustive and places the onus on the employee to seek further explanation.

• The Applicant's material notes a changed definition of 'casual employees', but fails to provide any explanation, placing the onus on employees (who are likely to be casual) to seek their own explanation by contacting an unnamed "contact person".

• The document's explanation for changes to the casual conversion places the onus on employees to seek a further explanation.

• The explanation for changes to the definition of shift work and the inclusion of "loading" into the clause, which makes a practical difference to the detriment of employees, are explained in the document as having "no material practical changes".

• The explanation for changes to the definition of overtime and the inclusion of "loading" into the clause, which makes a practical difference to the detriment of employees, are explained in the document as having "no material practical changes".

• The explanation in relation to wage rates is misleading and to the detriment of employees. The explanation includes the rates in the 2019 Agreement and do not reflect three 2% increases applied over the life of the Agreement. The document indicates the Agreement's proposed rates are significantly above those in the 2019 Agreement. That these rates are set out alongside those in the 2019 Agreement in a misleading way, creating an impression the proposed rates increase more than $3 per hour when the reality of the increase is significantly less.

• The Applicant has not presented any evidence to the Commission to confirm that the employees - who are overwhelmingly casual - requested to vote on the Agreement were in fact employed at the time for the purposes of s.181.

• Out of 129 employees there were no employee bargaining representatives and the changes to the Agreement seem largely administrative with modest increases to rates of pay and allowances.

• The Applicant consistently referred to steps it was taking to renew the enterprise agreement, without reference to bargaining or negotiations, including:

• - in the email accompanying the NERR on 9 December 2024, stating "we will speak to you about the enterprise agreement and the process involved to have it renewed....".

• - On a supporting webpage it created on the Skout website which repeatedly refers to the Agreement's "renewal" not negotiation and explicitly states - "We've made minimal changes to the new agreement, keeping it similar to the old one, but improving conditions.".

• The Agreement was put to vote on 28 January 2025, a short period after the NERR was issued, at the end of the holiday season when there were practical limitations on bargaining, further indicating no bargaining occurred. A fact supported by there being no employee bargaining representatives.

[34] Mr Ross Kumeroa provided a witness statement in support of the AWU's position, from the perspective of his experience as the AWU Organiser in the Offshore oil and gas industry, a position he has held since 2020.

[35] Based on the above, the Unions submit the Commission cannot be satisfied the Applicant has met the statutory requirements for approval and that the application must be dismissed.

[36] The Applicant relies on the F17B statutory declaration of Mr Matthew Berry, and subsequent statutory declarations by Mr Berry dated 7 April 2025, 11 July 2025 and 29 July 2025 in support of their submission. Mr Berry is the General Manager of Skout Solutions and has been in this role since 2016. Mr Berry's statements are supported by Skout's written submissions.

[37] The Applicant's position is out below:

Employees were sufficiently representative - s.188(2)(b)

[38] Skout submits the Agreement covers employees set out in clause 2.1(b) of the Agreement which are substantially the same terms of coverage of both the existing 2019 Agreement and its predecessor, except for minor changes.

[39] That there has not been a material change to the business, work, or proposed work since at least 2016.[13] And that at the time the Agreement was made, the employees covered by the Agreement work across 4 States and 1 territory; in 4 of the 6 classification levels of the Agreement; employed under the 2019 Agreement and employed in roles including _l_abourers, plant operators, maintenance workers, trade assistants, storepersons, riggers and fitters, grounds persons, plumbers, machine operators, electronic assemblers, roller operators, scaffolders, traffic control, bulk material handlers and boilermakers.

[40] That the work covered by the Agreement is within the scope of the modern awards against which the Agreement has been assessed, and the industries wherein work is performed by employees for Skout. That the scope of the Agreement is not unlimited, that it does not cover Skout's employees, or seek to apply without reference to industries where work will be performed. Rather, that the Agreement's scope is consistent with industries covered by employees performing work under the 2016 Agreement, and the 2019 Agreement. That these industries have not materially changed, it is not intended they will change, and there is no reason they will materially change over the life of the proposed Agreement.

[41] In supplementary material provided to the Commission after proceedings, Skout provided further evidence that all 128 employees who were eligible to vote on the Agreement had worked in the industries covered by the Agreement during their employment with Skout as follows:[14]

• 33 employees worked in the Construction industry;

• 65 employees worked in the Manufacturing industry;

• 3 employees worked in the Electrical industry;

• 4 employees worked in the Oil & Gas/Hydrocarbons industry;

• 27 employees worked in the above industries in sub-industries labelled by Skout as Utilities, Defence, Building and Grounds, Maintenance and Facilities Maintenance.

[42] Skout's additional material also acknowledged that at the time of the ballot, none of its employees in the voting cohort were working in the offshore sector, but that 78 of its employees had worked in the offshore sector during the life of the 2019 Agreement.[15]

[43] Skout accepts the Agreement provides for employees across a range of employment types - full-time, part-time, fixed term, casual or project based. That this flexibility provides Skout with the capacity to meet client requests without being confined to only offering a client employees on a casual basis. That these types of employment have not changed. And that in this case, where the Agreement has been successfully voted on by an established cohort of employees already covered by the same coverage, the Commission can be satisfied employees were sufficiently representative for the Agreement to be genuinely made. Particularly in circumstances where it is not the case the Agreement has being contrived for an industrial or opportunistic purpose with inferior wages and conditions.

[44] Further, that the Statement of Principles the Commission is required to consider do not place mandatory requirements on the Commission, rather, further guidance to assess the true nature of the Agreement. And that in this case, the Agreement has been made in effectively the same terms as previous Agreements approved by the Commission, with effectively the same group of employees.

[45] On this basis, the Applicant submits the Commission can be satisfied the Agreement has been genuinely made and that it should be approved. Further referring to several previous decisions of the Commissions in Aerision;[16] LAF Contracting; and Ealwin Pty Ltd.[17] Along with the Full Bench decision to approve the 2019 EA in AWU v Skout Solutions[18] where it considered the question of whether employees making the Agreement were fairly chosen, making the following remark at [89]:[19]

"We accept that legitimate questions may arise where a small group of employees make an agreement with their employer covering a much wider group in terms of classifications and geography, but that is not the case here on the material that was before the Deputy President or before us. There is no evidence that the coverage was chosen arbitrarily or in a discriminatory fashion or was done for the purposes of manipulating the group of employees of Skout who were able to participate in the bargaining process."

Employees were sufficiently interested - s.188(2)(a)

[46] Skout's position on this factor is that the Commission can be satisfied that employees requested to vote on the Agreement had a sufficient material interest in the terms of the Agreement as required on the following grounds.

• All the employees requested to vote on the proposed Agreement were employees of Skout at the time of the making of the Agreement and its consideration, being employees of Skout under the terms of the 2019 Agreement with the same coverage.[20]

• Some employees requested to vote on the Agreement will be paid the rates under the Agreement, and some will be paid above Agreement rates as provided by Clause 22 for genuine business reasons, including experience, market conditions, geographical factors and client considerations.

• The minimum rates provided for by the Agreement, along with undertakings proffered, will ensure employees are better of overall in comparison to the four relevant Awards.

• There is nothing unlawful or prohibited about enterprise agreements which have rates of pay higher than applicable Modern Awards, but lower than prevailing market conditions at the time the Agreement is made.

[47] In its supplementary submissions, Skout provided additional evidence confirming at the time of ballot there where 14 employees within the voting cohort who were paid at or within $1 of the rates in the 2019 Agreement as increased on 1 December 2023 and 1 December 2024. Further, that during the life of the 2019 Agreement:[21]

• 45 employees were paid at or within $1 of the rates in the 2019 Agreement between December 2023 and December 2024 and increased by Skout from 1 December 2023;

• 25 employees were paid at or within $1 of the rates in the 2019 Agreement between December 2022 and December 2023;

• 7 employees were paid at or within $1 of the rates in the 2019 Agreement between 1 December 2021 and December 2022; and

• 8 employees were paid at or within $1 of the rates in the 2019 Agreement between December 2020 and December 2021.

[48] Further material from Skout confirmed that these 14 employees were engaged in roles for Skout in work across the manufacturing and construction industries and performing electrical maintenance duties for NBN Projects within the scope of the electrical and electronics industry.[22]

[49] Considering the Statement of Principles, Skout reiterates the requirement for consideration are not a set of mandatory rules that must be complied with, absent which the Commission is precluded from approving the Agreement.[23] Further, that the Commission has observed it can be common practice, in some industries such as construction, for employees to be paid rates on sites higher than the enterprise agreement that covers them and being satisfied they remain sufficiently interested in the making of an enterprise agreement being considered by the Commission.[24]

[50] To the point of some employees considering the Agreement currently being paid higher rates such that the making of the Agreement would not have a material impact on their pay, Skout contends these employees continued to have a sufficient interest in the making of the Agreement on two grounds. Firstly, if their conditions were to change then they would have been guaranteed the Agreement rates of pay such that they had a sufficient "stake in the Agreement" as held in Aerison and LAF Contracting. Secondly, employees were directed to consider the rates of pay in the Agreement as applying to future employees in the explanatory material provided supporting the Agreement.

[51] Skout submit this is not a case of a contrived voting cohort on higher rates being asked to approve an enterprise agreement that will be used to employ vast numbers of new employees on lower rates. Rather, it is a case of an agreement "genuinely" made with a group of existing employees employed under an existing agreement with the same coverage with an obvious stake in the proposed agreement.[25]

Reasonable steps to explain the Agreement - ss.180(5) and s.188(4A)

[52] I have set out above the steps taken by the Applicant in the making of the Agreement. Skout relies in these facts in support of its position, submitting the Commission can be satisfied it has taken all reasonable steps to explain the proposed Agreement to its employees requested to vote on it.

[53] In particular, that in the context of Skout's employees covered by the Agreement working across Australia at different times as required by Skout's clients, the Commission can be satisfied the terms of the Agreement were explained in an appropriate manner as required, considered the following:

• Time allotted during December and January monitor and consult calls to raise the renewal of the Agreement with employees.

• Waiting until a return to normal employee engagement levels at the of January 2025 before notification of an employee ballot between 5 to 9 February 2025.

• Providing employees with a copy of the Agreement, explanatory and comparison documents and information on how to vote on 28 January 2025, the same day employees were notified an employee ballot would be held early February.

• Establishing a dedicating website to provide employees with the above information on the Agreement, voting process and additional information on the terms of the Agreement and encouraging employees to access this information.

• Encouraging employees to attend 2 virtual information sessions on the proposed Agreement on 29 and/or 31 January 2025 at different times to maximise employee attendance.

• Holding additional monitor and consult calls with employees in January and February which led Skout to conclude employees had an understanding of the Agreement and no further steps would be necessary to ensure they understood its terms given its similarity with the 2019 Agreement.

• The employees voting on the Agreement are required to communicate in written and spoken English and there is no reason to conclude any issue with the comprehension of English exists.

• At no point did any employee raise any issue with the terms of the Agreement or seek clarification of a term.

• That 85 out of 128 employees requested to vote, voted for the Agreement with 94% of those voting supporting its approval.

[54] Skout accept an anomaly in the presentation of wage increases in the explanatory material provided to employees in the table provided. They submit this error is not fatal and that the complete material makes clear the rates in the table reflecting those in the 2019 Agreement have been adjusted by 2% per annum. Furthermore, that as existing employees they would be aware of these increases applying.

[55] Regarding the contention that the addition of the word "loading" is a substantial and material change to the Agreement that has not been explained to employees, Skout reject this submission. Skout submit this assertion is misplaced. That the intended effect of the change to the Agreement is not material, that it has not caused a situation where casual employees have voted on the change substantially impacting full time employees, and that the intended effect of the change is not about the interaction of the shift or casual loading with the allowances in clause 20. Further, that the Applicant has provided an undertaking confirming eligible employees will not be disentitled to payment of an allowance under clauses 20.1 - 20.17 due to the operation of clauses 17.1(d) and 18.4.

[56] The Applicant submits that consistent with the authority established by the Full Bench in Kmart Australia Limited t/a Kmart and others (Kmart),[26] Skout curated the voting cohort with the best available information available in order to limit the voting cohort to those who it expected to be engaged to work during the relevant period between 28 January 2025 and 4 February 2025. 128 employees were identified. All of whom were casual employees.

[57] Of the 128 employees, Skout affirms that 110 employees were engaged during the relevant period (Category 1 Cohort). Two further employees were engaged during the period the vote was open between 5 and 9 February 2025 and having been previously engaged with Skout (Category 2 Cohort) were eligible to vote on the Agreement consistent with the decision in Kmart.

[58] Five employees who were provided an opportunity to vote did not work in the relevant period but did work in the weeks immediately prior and following the voting period (Category 3 Cohort). Consistent with Commission's decisions in McDermot Australia Pty Ltd v AMWU[27] and Application by Dof Subsea Australia Pty Ltd[28] and taking into account the insertion of s.15A of the FW Act, Skout's position is that the Category 3 employees were eligible to vote on the Agreement.

[59] A further 6 employees were engaged to work during January 2025 prior to the relevant period and have not worked since (Category 4 Cohort) and 5 employees had not been engaged in 2025 (Category 5 Cohort). Skout accepts Category 4 and 5 employees should not have been provided an opportunity to vote on the Agreement.

[60] Considering the above, Skout's submissions are that even if the Commission were to consider all 18 of the votes in category 2-5 were ineligible and every one of these ineligible votes were cast in favour of the approval of the Agreement it would have been impossible for this to result in the Agreement not being made. Even in this worst-case scenario, the ballot result would have been 62 votes for yes, and 5 votes for no - still an overwhelmingly yes vote, supporting a conclusion the Agreement was genuinely agreed.

[61] Skout do not dispute that the type of bargaining the AWU and CEPU would normally expect to occur did not in this case. There being no union or employee bargaining representatives, however, their position is this is hardly surprising. That in considering whether the Agreement was genuinely agreed in the making of the Agreement, the test is not whether bargaining has occurred, nor that the absence of bargaining necessarily means a lack of genuine agreement-making.

[62] The Applicant's position is that there is no requirement of the FW Act or the Statement of Principles for employees to nominate a bargaining representative. That freedom of association includes the right to join a union, appoint a bargaining representative, or not to do so. And that the fact Skout employees did not choose to do so should not disqualify them from making an enterprise agreement.

[63] In further support of this position, Skout maintain the Commission has established the task is determining whether the agreement making process was one of authenticity, as identified in Subway. That in making the determination, the Commission can consider such matters as the genuineness of the enterprise; the workforce with which the agreement is made, whether the agreement was intended to cover and apply to those with whom it was made; and whether the agreement is merely a device to achieve a collateral industrial or commercial objective.

[64] On this basis, Skout rely on the genuine steps taken to make employees aware of the proposed Agreement, the opportunity to engage in the agreement making process and submit the Agreement is made by a genuine and established enterprise and with employees who have been working under an existing agreement and are intended to be covered by the Agreement.

s.188(2) - Sufficient interest & sufficiently representative

[65] This is the first occasion the Commission has been requested to consider an application by Skout for the approval of an enterprise agreement since the provisions in s.188(2) and the Statement of Principles have been introduced.

[66] As Commissioner Matheson recently observed in CFMEU and Advanced Civil Group Pty Ltd Gold Coast Light Rail:[29]

"[104] It can be drawn from the legislative note, Revised Explanatory Memorandum and principles arising from the cases referred to therein, that the drafters of s.188(2) intended that employees requested to approve an agreement by voting on it may be considered to be lacking a 'sufficient interest' in an agreement in circumstances where they did not have a sufficient 'stake' in the agreement because, for example:

• they were paid rates of pay above those provided in the enterprise agreement or rates of pay above those provided in the enterprise agreement;
• the employees were working in a few occupational classifications in circumstances where the enterprise agreement covered numerous other occupations or occupations in many industries beyond their own such that the employees may have been indifferent to the impact of an agreement on other employees or prospective employees in those other occupational classifications outside their own training or experience.

[105] It is also apparent that the question of whether the employees requested to vote have a 'sufficient interest' is to be considered in the context of the 'collective', with the Revised Explanatory Memorandum indicating that there will not be a sufficient interest if no genuine collective bargaining in good faith occurred as part of the agreement-making process'. This may be because there were only two or three employees who made the enterprise agreement early in the life of an enterprise and before the employment of the much larger workforce such that the process by which it was made undermined or subverted collective bargaining. By way of example, in One Key, the Full Court found there was no bargaining with the collective of employees because, in that matter the relevant collective was yet to be formed.

[106] It is apparent that it was intended that employees requested to vote on an enterprise agreement may not be 'sufficiently representative', 'having regard to the employees the agreement is expressed to cover' because, for example:

• there were a small number of employees and a large number of relevant awards that would otherwise apply but for the agreement, resulting in a vast disparity of occupational classifications as between those held by those who voted and the classifications covered by the agreement;
• the employees did not have a sufficient appreciation of the appropriateness of the terms and conditions proposed for the disparate occupational classifications covered, including in industries foreign to their own;
• the employees did not appreciate the terms and conditions provided for by the agreement, beyond those of direct interest and relevance to them.

[107] These factors may impact the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved.

[108] The requirement to have regard to 'the employees the agreement is expressed to cover' indicates that it is 'the employees' need to be considered and this is not limited to those employees who were requested to vote but other employees, including prospective employees, who would fall within the agreement's expressed coverage..."

[67] As Commissioner Lim identified in Innovative Asset Solutions Pty Ltd,[30] the language in s.188(2) is not discretionary.

[68] I cannot be satisfied that the Agreement has been genuinely agreed to if I am not satisfied that the voting cohort had a sufficient interest in the proposed Agreement and are sufficiently representative of the workers to be covered by its terms. Determining the sufficiently level of satisfaction to reach a conclusion the Agreement has been genuinely agreed requires an evaluative assessment of the facts in each case.

[69] In the present case, the AWU and CEPU contend the Agreement has a broad scope, purporting to replace all classifications within at least 4 Modern Awards and that the Applicant has provided no basis on which the Commission can be satisfied the requirements of s.188(2) are met. They argue the onus is on the Applicant to present evidence to the Commission so that it can be satisfied the employees voting on the Agreement are sufficiently representative of workers to be covered by the Agreement. An onus, they say, that the Applicant has failed to discharge.

[70] In addition, that the Agreement proposes to cover full-time, part-time, casual, fixed and term limited employees, whereas all 128 employees who voted on the Agreement were casual employees.

[71] Skout contends the coverage of the Agreement has been determined according to the industries and occupations that it has assessed it needs to cover to maintain its capacity to services its clients. That the scope of the proposed Agreement, except for minor changes, is the same as that of both the existing 2019 Agreement and its predecessor, the 2016 Agreement. That Skout had engaged employees at all classification levels in the 2019 Agreement, and that it envisaged its ongoing operations would be consistent with these arrangements and that its business, its work, or proposed work has not materially changed since 2016.

[72] Skout submit that at the time the Agreement was made, employees who will be covered by the Agreement:[31]

1. were engaged in all geographical locations the Agreement covers except for Tasmania and across all industries for which the underpinning modern awards would have otherwise applied;

2. were employed in roles including labourers, plant operators, maintenance workers, trade assistants, storepersons, riggers and fitters, ground persons, plumbers, machine operators, electronic assemblers, roller operators, scaffolders, traffic control, bulk material handlers, and boilermakers;

3. were engaged in 4 out of the 6 classifications in the Agreement, with all classifications having been used during the 2019 Agreement; and

4. were currently covered by the 2019 Agreement.

[73] In support of these submissions, Skout rely on the sworn statements of Mr Berry. In addition to the above, Mr Berry's further evidence is that:

"40. All of Skout's current employees who will be covered by the Agreement are currently covered by the 2019 Agreement, and have been since their employment started - unless they have been employed by Skout since before 14 April 2020 in which case they were previously covered by the 2016 Agreement until the 2019 Agreement replaced it.

41. I have reviewed the experience of employees employed by Skout who will be covered by the Agreement. In terms of years at Skout, there are employees who are relatively new, and there are employees who have served over 3 years of service with Skout. Some have been employed since prior to 14 April 2020.

42. In terms of their experience before commencing employment with Skout, some of the employees who will be covered by the Agreement are new entrants to the workforce, and others are very experienced. Some have decades of experience in the industries in which Skout works, such as construction, manufacturing, electrical and hydrocarbons."[32]

[74] These submissions were further supported by the information Mr Berry provided in his supplementary statutory declarations as I have identified at [41], [42], [47] and [48] above.

[75] In these circumstances, where the Agreement has been successfully voted on by an established cohort of employees already covered by an existing approved agreement with the same coverage, Skout submit the Commission can be satisfied employees voting to approve its terms were sufficiently representative.

[76] I accept these submissions. Skout has presented detailed evidence of the roles employees voting on the Agreement performed in, and the industries in which all 128 employees have been performing work under the 2019 Agreement. I accept this evidence. I have no reason to question the authenticity or legitimacy of the material presented to the Commission, including multiple statutory declarations of Mr Berry.

[77] In reaching this conclusion, I have considered several previous decisions of the Commission referred to by the Applicant.[33] I have also consider that the circumstances of this case supported by the evidence ultimately provided by the Applicant are clearly distinguishable from those identified by the Full Court of the Federal Court in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union[34] and the further guidance provided in the Revised Explanatory Memorandum as discussed above at [32].

[78] The Applicant's evidence is such that I am satisfied that the employees who voted on the Agreement had a sufficient interest in the Agreement and are sufficiently representative of those employees covered or prospective employees to be covered by it.[35]

[79] Furthermore, I have considered that the Full Bench was also asked to consider the approval of the last 2019 Agreement and was satisfied the agreement had been genuinely agreed under the terms of s.188(1)(c).[36] In that case, the Bench was satisfied the employees with whom the agreement was made were fairly chosen, the agreement was reasonably explained, and that the relevant benchmark for employees' understanding of the terms of the proposed agreement was the previous agreement.

[80] Since making its application, Skout has consistently acknowledged that all 128 employees who voted on the Agreement where casual employees, while the proposed Agreement covers employees engaged on a full-time, part-time, fixed term, maximum term or project specific basis.

[81] There is no rule to say that a voting cohort of all casuals, or all permanent employees, cannot have a sufficient interest or be sufficiently representative in relation to an enterprise agreement covering a variety of types of employment, it may be a relevant consideration in the Commission's evaluation of whether there is genuine agreement. Each case will turn on its own facts.

[82] In the present case, Skout's evidence on the types of employment being sufficiently representative is that the types of employment have not changed from the 2019 Agreement, and that each type of employment has been reasonably explained in the comparison documents provided to employees.

[83] In addition, Mr Berry's evidence is that "the modes of employment provided Skout the capacity to fill any position a client requests without being confined to only offering employees on a casual basis".

[84] I accept this evidence establishes a sound and factual basis of the all casual voter cohort in the circumstances of this case, and I am satisfied of the sufficient interest of these employees in the Agreement presented for approval. No evidence has been presented to lead me to an alternative conclusion.

[85] In reaching my conclusion, I also considered the evidence that approximately only 11% of employees who voted on the Agreement would be directly impacted by the wage rates being proposed. I accept it is not uncommon in some industries (like construction) for employees to be paid rates above those in the enterprise agreement covering them.

[86] As indicated above at [77] in support of its position, the Applicant referred to several recent decisions made by the Commission under the new legislative provisions where it has been satisfied of the sufficient interest of employees voting on the Agreement being paid higher rates of pay than provided.

[87] I have considered each of these decisions. Further, I have also considered the Applicant's further evidence of its business and labour deployment practices for clients, including the evidence it has presented of employees being paid within $1 of the rates under the 2019 Agreement. I accept this evidence and am satisfied it establishes the sufficient interest of employees voting on the Agreement.

[88] In reaching this conclusion, I find the circumstances of this case comparable to the decision in Application by Enermech Pty Limited, where the Deputy President considered the application relevant to the Hydrocarbons Industry (Upstream) Award 2020 and the Manufacturing and Associated Industries and Occupations Award 2020. In that case, the Deputy President was presented with an "exhaustive list of all the positions held by employees who will be covered by the Agreement and the classification levels of the employees."[37]

[89] In the present case, I am satisfied that the additional detailed evidence and supporting statements from Mr Berry also meet these requirements.

[90] An additional concern arises from my consideration of the requirements of s.188(1) and the guidance provided by the Statement of Principles on whether the Agreement was genuinely agreed to by the employees covered by the Agreement. In this regard, Principle 18 of the Statement of Principles provides.

"An enterprise agreement will generally not have been genuinely agreed to by the employees covered by the agreement unless the agreement was the product of an authentic exercise in agreement-making between the employer(s) and employees in one or more enterprises, and the employees who voted for the agreement had an informed and genuine understanding of what was being approved."

[91] It is not disputed in this case that there has not been any genuine bargaining or bargaining at all in the making of this Agreement. The Applicant's position is this fact ought not be fatal to the application being approved and the test for the Commission is not that bargaining has occurred. But rather, one of an evaluation of whether the Agreement was a product of an authentic exercise in agreement making. I am not satisfied there has been any evidence presented to the Commission to lead me to a conclusion this was not the case in the circumstances of this application. On this basis, I accept the evidence of the applicant with respect to the steps taken in the authentic exercise in agreement-making and am satisfied this requirement is met.

[92] Principle 18 operates to compliment the requirements of s.188(4A) that the Commission cannot be satisfied the Agreement has been genuinely agreed unless the Commission is satisfied that the employer complied with subsection 180(5) in relation to the explanation of the Agreement. The Applicant relies on the submissions set out above in this regard and the steps taken to circulate the Agreement, hold information sessions and provide and explain its terms in comparison to existing conditions to employees.

[93] Accepting only 1 of its employees with whom the Agreement was made worked for Skout prior to the 2019 Agreement coming into effect, Skout has provided further evidence to support their submissions of the experience of Skout employees in the industries to which the Agreement applies. That all employees voting on the Agreement were directed to and provided with the explanatory material. And that these factors indicate the employees had a good base of knowledge and understanding from which to judge the adequacy of the conditions they were considering and being asked to vote on.

[94] I accept this evidence, and I am satisfied that all reasonable steps were taken to explain the Agreement. No evidence has been presented to dissuade me from this conclusion

[95] As I have been satisfied the employees who were requested to vote on the proposed Agreement were sufficiently representative of the employees who would be covered by it and that they had a sufficient interest in the Agreement on which they were being asked to vote on, I am satisfied the Agreement was genuinely agreed to.

[96] It follows from this conclusion that the Agreement can be approved.

[97] In reaching this conclusion, I have also considered the additional concerns identified by the Unions in full. A summary of the conclusions I have reached in relation to these additional matters is as follows.

[98] Firstly, the contention that the insertion of the word "loading" at 17(d) and 18.4 of the proposed Agreement and its significance to the extent casual employees have voted on a change to the Agreement affecting non-casual employees. I do not accept this contention. Plainly, as the Applicant identifies, the references to loading elsewhere in the Agreement are limited and not do apply to the Ordinary Time Rate as the terms of clauses 17(d) and 18.4 do.

[99] Secondly, I am satisfied that the employer in this case has taken steps to ensure the employees voting on the Agreement were limited to those who it expected to be engaged to work during the relevant period. I acknowledge, as the Applicant identifies, cohorts 4 and 5 should not have been included in the voting cohort, but accept, their inclusion has not had a material impact on the outcome of the vote. In reaching this conclusion, I accept the Applicant has correctly included cohorts 2 and 3 in the list of employees provided an opportunity to vote on the Agreement. It follows that I do not accept a concern raises from the cohort of employees selected and who had an opportunity to vote on the proposed Agreement.

[100] Thirdly, that the provided explanatory material's comparative table of wage rates under the proposed Agreement did not account for increases that had been applied under the 2019 Agreement. The Applicant acknowledged this anomaly, identifying correctly, that later in the explanatory material the 2% increases that applied are acknowledged. I accept these submissions and do not consider a concern arises from the requirements of s.180(5) in the circumstances of this case.

[101] There is one National Employment Standards (NES) issue that requires comment:

• Compassionate leave: The entitlement to compassionate leave provided by clause 29 of the agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee's immediate family or household as per s.105(1)(b) of the Act or after the employee or the employee's spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act.

[102] Clause 6 of the Agreement acts as an effective NES precedence clause, in that it states that 'Where there is an inconsistency between the NES and a clause of this agreement, the NES will apply and the clause of the agreement will not apply, except to the extent that the clause of the agreement provides for a more beneficial outcome for employees than the NES'. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

[103] In reviewing the Agreement a number of BOOT concerns were identified that were brought to the attention of the Applicant and objection unions in proceedings. The Applicant has provided written undertakings, dated 2 May 2025, and a copy is attached in Annexure A. No bargaining representatives were appointed.

[104] I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

[105] Pursuant to s.205A(2) of the Act, the workplace delegates' rights term prescribed by the Building and Construction General On-site Award 2020 is taken to be a term of the Agreement.

[106] I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

[107] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 26 August 2029.

Mr James Fox for the Communications, Electrical, Electronic, Energy, Information,

Postal, Plumbing and Allied Services Union of Australia.

[1] Statutory Declaration of Matthew Berry at [19]-[31], Court Book pages 17 - 19.

[4] F17B Employer's Declaration at Question 6, Court Book page 121.

[5] Statutory Declaration of Matthew Berry at [7]-12], Court Book page 16.

[6] [2016] FWCFB 8413 at [26]-[28].

[7] CFMEU v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 at [48] and [75].

[8] Noting Mr Berry's sworn evidence to the Commission was not examined by the objecting unions in proceedings when they had to opportunity to do so.

[9] Fair Work Act 2009 (Cth), s.186(2)(a).

[10] [2024] FWCFB 48.

[12] The Unions submit the scope of the proposed Agreement has the potential to extend to the coverage of a number of other modern awards, a submission rejected by the Applicant.

[13] Applicant's Outline of Submissions at [24]-[26], Court Book page 3 - 14.

[14] Statutory Declaration of Matthew Berry dated 11 July 2025 at [7].

[16] [2024] FWCA 2628.

[17] [2025] FWCA 612.

[18] [2021] FWCFB 119.

[19] See Transcript of Proceedings on 9 April 2025 at [PN161] - [PN163].

[20] Application by Enermech Pty Limited [2024] FWC 2300 at [64].

[21] Statutory Declaration of Matthew Berry dated 11 July 2025 at [24].

[22] Statutory Declaration of Matthew Berry dated 29 July 2025 at [3].

[23] SDA v Allen Family Pty Ltd t/a Subway [2024] FWCFB 48 at [76] (Subway).

[24] [2024] FWC 631 at [97].

[25] [2024] FWC 2300 at [64], Ealwin Pty Ltd [2025] FWCA 612 at [22].

[26] [2019] FWCFB 7599.

[27] [2016] FWCFB 2222.

[28] [2025] FWC 749.

[29] [2025] FWC 738.

[30] [2025] FWC 904.

[31] Applicant's Outline of Submission at [26], Court Book page 7.

[32] Statutory Declaration of Matthew Berry at [40]-[42], Court Book page 20.

[33] For example - Aerison EPC Pty Ltd [2024] FWCA 2628; Ealwin Pty Ltd [2025] FWCA 612; LAF Contracting (NSW) Pty Ltd [2024] 631; and Enermech Pty Ltd [2024] 2300.

[34] [2018] FCAFC 77; (2018) 277 IR 23 at [83] as identified in CFMEU v JWLand Construction Pty Ltd [2025] FWCFB 147 at [47].

[35] See CFMEU and Advanced Civil Group Pty Ltd Gold Coast Light Rail [2025] FWC 738.

[36] AWU v Skout Pty Ltd [2021] FWCFB 119.

[37] [2024] FWCA 2300 at [49].

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