ZNX Pty Ltd [2025] FWCA 2685 (12 August 2025)

Application for approval of the Zinfra (ZNX Pty Ltd) New South Wales Gas Enterprise Agreement 2024

[1] ZNX Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the Zinfra (ZNX Pty Ltd) New South Wales Gas Enterprise Agreement 2024 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

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

[3] In considering an application for the approval of 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."[1] Section 188 provides that in determining whether an enterprise agreement has been genuinely agreed to by the employees covered by it, the Commission must take into account the Statement of Principles made under s.188B.

[4] Relevant to my consideration of this matter are Paragraphs 4-7 and 16 of the Statement of Principles,[2] which provide as follows:

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

1. The employer should provide employees with a reasonable opportunity to consider a proposed enterprise agreement before voting on it, so that the employees can vote in an informed manner.

2. The employer will be taken to satisfy paragraph 4 if, a reasonable time period before the start of the voting on the proposed agreement, the employer provides to employees who are entitled to vote on the agreement:
   1. a full copy of the agreement, and
   2. a full copy of any other material incorporated by reference in the agreement.

3. In paragraph 5, a reasonable time period will include:
   1. at least 7 full calendar days before the day on which voting starts (for example, if the voting is to start on 9 May, employees are to be given the materials on or before 1 May), or
   2. 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.

4. The employer may provide the material specified in paragraph 5 to an employee:

1. by giving the employee, or ensuring the employee has access to, a hard copy of the material 2. by electronic means (either by sending the material to the employee, or by sending the employee a link to the material or otherwise giving the employee access to the material online), or

provided the employee has a reasonable opportunity to access and read the material during the whole of the period from the time the material is provided until completion of the voting process.

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

1. Employees should be informed of the time, place and method for the vote:
   1. at least 7 full calendar days before the day on which voting starts (for example, if the voting is to start on 9 May, employees should be informed on or before 1 May), or
   2. by such other reasonable time before the day on which voting starts as is agreed with one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.

[5] The application of the Statement of Principles was considered by a Full Bench in SDA v Allen Family Pty Ltd.[3] The Full Bench stated:

[76] 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. In the present case, the SDA submits that there are various grounds upon which we should find that the Agreement has not been genuinely agreed. We turn to those matters now.[4]

[6] In the matter before me, the Employer did not provide at least 7 full calendar days between the day the Employer provided the provision of the Agreement/details of the vote (27 June 2025) and the day on which voting started (4 July 2025). Furthermore, the Agreement incorporates the Gas Industry Award 2020 (Award) and the Employer did not provide the employees with a copy of, or access to, the Award at least 7 full calendar days before the day on which voting started_._

[7] Despite these issues, I am satisfied that the Agreement was genuinely agreed to by the employees for the following reasons.

[8] First, the Employer provided a copy of the Agreement, explanatory material, and the details of the vote, at least 6 full calendar days prior to the start of the voting period. The voting period was open from 8:00am on 4 July 2025 until 12:00pm on 7 July 2025. The vote was conducted electronically by mobile telephone or email. In these circumstances, the failure to provide a copy of the Agreement and notice of vote at least 7 full calendar days prior to the start of the voting period was a minor issue inconsistent with the Statement of Principles and I am satisfied that the employees were not disadvantaged by it.

[9] Second, although the Employer did not provide a copy of, or access to, the Award, the Australian Workers' Union (AWU) conducted information sessions on 27 June 2025 (3 sessions with 135 attendees in total) and 1 July 2025 (2 sessions with 75 attendees in total). At each session, the AWU made copies of the Award available for the employees to view or take with them. This means up to 210 employees out of 230 employees covered by the Agreement attended the information sessions. Even if some employees attended more than one session, and there is no suggestion that that was the case, there was still a significantly high proportion of the Agreement covered employees that had access to the Award for at least 6 calendar days prior to the vote. Furthermore, I have had regard to the fact that the current agreement incorporates the Award. In these circumstances, the failure by the Employer to provide a copy of, or access to, the Award by at least 26 June 2025 was a minor issue inconsistent with the Statement of Principles, and I am satisfied that the employees were not disadvantaged by it.

[10] Having regard to the matters set out above, the material contained in the application, the accompanying declaration, the responses to issues identified, and the Statement of Principles, I am satisfied that each of the requirements of ss.186, 187 and 188 of the FW Act as are relevant to this application for approval has been met.

[11] The AWU has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), I note that the Agreement covers the AWU.

[12] The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 19 August 2025. The nominal expiry date of the Agreement is 30 November 2027.

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023

[3] [2024] FWCFB 48.

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