DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Australian Manufacturing Workers' Union;
Construction, Forestry, Maritime, Mining and Energy Union
v
Temmco Total Energy Mining Maintenance Company Pty Ltd
(C2021/4898)

Appeal against decision [2021] FWCA 4580 of Commissioner McKinnon at Melbourne on 29 July 2021 in matter number AG2021/6276.

Introduction and background

[1] The Australian Manufacturing Workers’ Union (AMWU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) have appealed against a decision made by Commissioner McKinnon on 29 July 2021 1 (decision) to approve the Temmco Certified Agreement for Loy Yang A Power Station and Open Cut Mine Victoria, 20212 (Agreement). Permission is required for the appeal. There are four grounds for the appeal which were pressed at the hearing, for which particulars were provided in the notice of appeal:

1. The Commissioner erred in approving the Agreement by failing to make proper inquiries about whether the group of employees who were requested to vote on and who ultimately approved the Agreement, pursuant to s 181 and s 182 of the Fair Work Act 2009 (Cth) (FW Act), were employees who were covered by the Agreement.

2. The Commissioner erred in approving the Agreement in circumstances where she could not be satisfied on the material before her that the Applicant requested all employees employed at the time who would be covered by the Agreement to approve it for the purposes of s 181 of the FW Act. Further, the Commissioner could not be satisfied that the Applicant complied with the pre-approval requirements contained in s 180 of the FW Act in respect of all employees that were covered by the Agreement.

3. In the circumstances above, there was no sufficient basis for the Commissioner to conclude that the requirements for an Agreement to be made set out in ss 181(1) and 188 of the FW Act had been met.

4. In the circumstances of this matter, the Commissioner failed to exercise jurisdiction to properly ascertain whether there was a competent application before her, and by so doing, she fell into appellable error.

[2] The background of the matter is as follows. The employer which applied for approval of the Agreement, Temmco Total Energy Mining Maintenance Company Pty Ltd (Temmco) is based at Rutherford in New South Wales. It has two divisions: a Workshop Division, comprising of machine, fabrication, fitting, blasting and spray‐painting shops servicing equipment manufacturers and industrial customers across the Hunter Valley, and a Site Services Division which provides onsite machining and valve maintenance services across Australia and Asia predominantly for power generators. When Temmco obtains a contract to service a power generator, this usually involves employees in its Site Services Division travelling interstate to the site and being accommodated nearby for the duration of the work. Its practice is to establish a separate enterprise agreement for each case in which this occurs.

[3] Clause 3, Parties Bound, of the Agreement provides that the Agreement shall be binding on Temmco and its employees covered by the classifications contained in the Agreement. The classifications in the Agreement are set out in clause 13, Rates, and are: Supervisor; Team Leader; C7 Special Class Machinist; C8 Advanced Machinist; C9 Machinist; C10 Tradesman; C11 Intermed Rigger or Scaffolder; C12a Basic Rigger or Scaffolder; C12 Basic Rigger or Scaffolder; C13a Trades Assist Storeman, Peggy; and C13 Trades Assist Storeman, Peggy.

[4] Clause 4, Scope and Application, of the Agreement provides:

This agreement shall apply to TEMMCO's activities at the Loy Yang A Power Station & Mine and its employees engaged in the classifications covered by this agreement for engineering and maintenance activities at those sites.

The rates of pay and conditions of employment in this Agreement cannot be used as a basis for altering existing rates of pay or allowances on any other site not covered by this Agreement.

[5] The Loy Yang A Power Station referred to in clause 4 is located in the Latrobe Valley in Victoria.

[6] Clause 5.1 of the Agreement provides:

5.1 The terms of the Manufacturing and Associated Industries and Occupations Award 2010, or its successor award(s) ("Award"), as varied from time to time, are incorporated into this Agreement. However, variations to the Award that are detrimental to the employees covered by this Agreement will not be incorporated.

The application for approval and the decision

[7] Temmco’s application for approval of the Agreement (application) was lodged on 16 July 2021. The application was signed by Mr Andrew Dibley, Temmco’s General Manager, and Mr Dibley also made the Form F17 declaration which was filed with the application. Mr Dibley’s declaration discloses the following matters:

•  The agreement does not cover all of the employees of the employer, but covers “on Site Machinists and valve fitters who are required to work interstate”.

•  The Agreement will operate only in Victoria.

•  For the purpose of matching classifications in the Agreement with the corresponding classifications in the relevant modern award, Mr Dibley only identified three classifications in the Agreement: C10 Tradesman, C9 Machinist and C8 Advanced Machinist.

•  The notification time for the Agreement under s 173(2) of the FW Act was 28 May 2021, when the Notice of Employee Representational Rights (NERR) was placed on the notice board in the on-site machining workshop and valve fitting workshop.

•  On 24 June 2021, a letter was sent by email to “all employees that will be voting on the agreement” to advise of the voting process.

•  Voting for the Agreement commenced on 2 July 2021, and the voting process concluded and the Agreement was made on 5 July 2021.

•  At the time the Agreement was made 8 employees were covered by the Agreement, 8 employees cast a valid vote and 8 voted to approve the Agreement.

[8] Specifically in relation to the requirement in s 180(2)(a) for the employer to take all reasonable steps during the “access period” to ensure that all employees who will be covered by the proposed agreement are given a copy of the written text of the agreement and any material incorporated by reference, or provided with access to this, Mr Dibley stated in his declaration that, on 15 June 2021, “[c]opy of agreement sent to nominated representative Kyle Berry for distribution to machinists” and a copy of the Agreement was also sent to the “valve fitter working at Vales Point Power Station”. Section 180(4) provides that the “access period” for a proposed agreement is the 7-day period ending immediately before the start of the voting process. In this case, therefore, the access period began on 25 June 2021 and ended on 1 July 2021 (the day immediately before the voting process commenced). Mr Dibley did not identify any material as having been incorporated into the Agreement by reference.

[9] In relation to the requirement in s 180(5)(a) that the employer must take all reasonable steps to explain the terms of the proposed agreement and their effect to the relevant employees, Mr Dibley said in his declaration that, in addition to the provision of copies of the Agreement on 15 June 2021 as mentioned above, the following steps had been taken:

•  An email was sent to Kyle Berry and Dean Simmons on 16 June 2021 to organise a meeting on 18 June 2021 for a first discussion regarding the Agreement;

•  On 18 June 2021, a phone meeting was held with Mr Berry and Mr Simmons and Mr Dibley went through the terms and conditions of the Agreement. An email was also sent to Steve Bryant and Shannon Watt to explain the terms and conditions of the Agreement;

•  On 22 June 2021, an email was sent to all employees voting on the Agreement to ask for any queries they may have with the Agreement or if they needed any further explanation; and

•  On 24 June 2021, the letter advising of the voting process was sent to all employees who would be voting.

[10] Also filed together with the application were four other documents:

(1) A copy of the NERR. This stated that the proposed agreement was to cover “employees that carry out Engineering, Maintenance and Refurbishment Projects”.

(2) A letter under Temmco letterhead dated 11 June 2021 addressed to Tony Metcalfe, the Commercial Manager, and signed by a David Winter. This stated that “the employees of the Temmco Group have nominated Kyle Berry as their nominated Bargaining Representative for the renewal of the Temmco Pty Ltd Certified Agreement 2021 for Loy Yang A Power Station and Open Cut Mine Victoria”. It is not clear whether Mr Winter is an employee covered by the Agreement.

(3) A document under Temmco letterhead dated 24 June 2021, addressed as a “Notice to Employees”, from Mr Metcalfe. The document says that a copy of the Agreement is “enclosed […] for your consideration” and that “You will be asked to approve the Agreement by voting on it”. It also says that a copy of the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award) “has been made available to each employee”. Under the subheading “How, when and where will the vote take place?”, the document says that voting will be held on 2 July 2021 by way of the provision of a ballot paper to be marked “yes” or “no” as to approval of the Agreement, and that “If you are unable to make it in to vote you can return your vote by email…”. Under the further subheading “Explanation and questions”, the document states: “Further to the meetings already held, please let us know if you require any further meetings to discuss the Agreement or require clarification of the Agreement, or have any further questions.” It may be assumed that this document was the letter sent by email on 24 June 2021 referred to in Mr Dibley’s declaration. It is unclear whether a copy of the Agreement was “enclosed” or otherwise provided with the letter, as it states in the text, noting that Mr Dibley’s declaration did not state that employees were provided with a copy of the Agreement on 24 June 2021.

(4) A copy of the Fair Work Information Statement issued by the Fair Work Ombudsman.

[11] On 23 July 2021, the administrative staff of the Commission prepared an internal analysis of the application and the Agreement. This identified a number of “issues” with the Agreement, including that in relation to the pre-approval requirements, the declaration made no mention of the incorporated Award being provided to employees, and did not report what terms of the Agreement were explained to employees or whether the Agreement terms were explained to all covered employees. The application was allocated to the Commissioner for determination on the same day.

[12] On 29 July 2021 at 2.45pm, an email was received by the Commission’s registry in Melbourne from the CFMMEU, in which the CFMMEU stated that it wished to be heard in relation to the application and requested that it be provided with the application, the Form F17 declaration, the NERR, and other documents filed in support of the application.

[13] At 3.28pm the same day, the Commissioner published her decision approving the Agreement. There had been no communication passing between the Commissioner’s chambers and Temmco prior to this time concerning the application. The decision simply stated that the Commissioner was satisfied that each of the requirements of ss 186, 187, 188 and 190 as were relevant to the application had been met, and that the Agreement was approved and would operate from 5 August 2021. At 3.33pm the registry forwarded the CFMMEU’s email to the Commissioner’s chambers. At 4.02pm the Commissioner’s chambers sent the CFMMEU an email advising that the CFMMEU’s email had not been brought to the attention of the Commissioner or her chambers before a decision was issued in the matter.

Appeal submissions and further evidence

AMWU and CFMMEU

[14] The AMWU and the CFMMEU submitted that they were persons aggrieved by the decision within the meaning of s 604(1) of the FW Act and therefore had standing to bring the appeal because, although they were not bargaining representatives for the Agreement, they are active in the industries the Agreement covers, namely metal trades, rigging and dogging, brown coal mining and power generation, and the CFMMEU attempted to be heard at first instance. These matters, it was submitted, gave them an interest beyond that of ordinary members of the public. The AMWU and the CFMMEU submitted that permission to appeal should be granted because the appeal raises issues of general importance concerning the Commission’s approval process for enterprise agreements and the decision was attended by sufficient doubt such as to warrant its reconsideration.

[15] In relation to appeal ground 1, it was submitted that, in circumstances where the application was made by a business based in New South Wales to apply to work in Victoria, the Commissioner should have made further inquiries as to whether the employees of Temmco who voted to approve the Agreement were those to whom the Agreement would cover or apply. In support of ground 1, the appellants referred to the decision of Colman DP of 6 August 2021 3 (Yallourn decision) in which he rejected an application by Temmco for approval of the Temmco Certified Agreement for Yallourn Power Station and Open Cut Mine Victoria 2021 on the basis that he was not satisfied on the evidence before him that the 8 employees who voted for the agreement would be covered by it and, accordingly, was not satisfied that the agreement was made in accordance with s 182(1) and thereby genuinely agreed within the meaning of s 188, as required by s 186(2)(a). The appellants submitted that, consistent with the Yallourn decision, there was insufficient evidence that the 8 employees who voted will be covered by the Agreement.

[16] As to appeal grounds 2 and 3, the AMWU and the CFMMEU similarly submitted that, on the material before her, the Commissioner could not be satisfied that all the employees at the time who would be covered by the Agreement were requested to vote on it, as required by s 181, nor could she be satisfied that Temmco complied with its obligations throughout the pre-approval process concerning the provision of the Agreement and any incorporated material, the notification of the time, place and method of the vote and the explanation of the terms of the Agreement and their effect. The appellants pointed to the inconsistency in the description of the Agreement’s coverage between clauses 4 and 13 of the Agreement and the Form F17 declaration, and submitted that this gave rise to a real possibility that riggers employed by Temmco were excluded from the vote upon the Agreement which should have been the subject of further inquiry on the part of the Commissioner. As to appeal ground 4, the AMWU and the CFMMEU submitted that the Commissioner failed to exercise her jurisdiction because she failed to turn her mind to matters essential for an enterprise agreement to be approved under the FW Act.

[17] The appellants sought leave to adduce evidence in the appeal by way of a witness statement made by Toby Thornton, an organiser employed by the CFMMEU in Victoria who represents the industrial interests of CFMMEU members employed at Loy Yang A power station (and in the Latrobe Valley generally). Mr Thornton said that maintenance on the generators at the power station is usually performed by contractors during planned outages lasting for 2-3 months, and that Temmco has been one of the contractors engaged since at least 2012. He said that Temmco is predominantly engaged for the purpose of performing on-site machining, that riggers are regularly required to support the work undertaken by machinists and valve fitters, and that he was aware of Temmco deploying riggers and scaffolders to perform work at the power station alongside machinists and valve fitters.

Temmco

[18] Temmco submitted that there was a question, at the outset, as to whether the AMWU and the CFMMEU have standing to appeal. They submitted that the AMWU and the CFMMEU were not bargaining representatives for the Agreement, were not affected directly or indirectly by the making of the Agreement, nor did they have any rights or benefits curtailed by the making of the Agreement. Their contention that they are active in the industries in which the Agreement applied was, it was submitted, insufficient to demonstrate an entitlement to appeal.

[19] If the AMWU and the CFMMEU were found to have standing to appeal, Temmco submitted that permission to appeal should be refused, since the appeal does not raise any matters of importance or general application, the approval of the Agreement did not involve any injustice to those who were employed at the time and voted upon the Agreement, there was no challenge to the conclusion that the Agreement passed the better off overall test (BOOT), and the decision is not counter-intuitive or disharmonious with any other recent decisions dealing with similar matters.

[20] Temmco submitted that the new evidence which the AMWU and the CFMMEU sought to adduce in the appeal should not be admitted since the evidence could, with reasonable diligence, have been obtained for use in the proceedings at first instance and, in any event, it could not be said that there was a high degree of probability that the evidence would produce a different decision. In the alternative, if the evidence were admitted, Temmco submitted that the witness statement of Mr Dibley in response should also be admitted.

[21] As to the merits of the appeal, Temmco submitted in relation to the first ground of appeal that its application and accompanying Form F17 declaration provided the information required for approval of the Agreement in accordance with the FW Act and the forms for which it provides. The requirement for genuine agreement in s 186(2)(a) did not have any geographic criteria, and that fact of geographic separation between the location of the employer and the location of the work is not, it was submitted, relevant to whether there was genuine agreement. Temmco submitted that, in the context of a federal system applying to national employers, there is no basis to import a statutory criterion that there be some form of close geographic connection between the employer and the employees covered in the work they do. Temmco said that this submission deals equally with the fourth ground of appeal, in that the fact that an enterprise agreement may apply to work in a different state is unremarkable and does not trigger the need for further enquiry or prevent the Commission being satisfied as to genuine agreement.

[22] In relation to the second and third grounds of appeal, Temmco submitted that:

•  the only employees engaged at the time the Agreement was voted upon were the onsite machinists and a valve fitter required to work interstate at the Loy Yang A power station and mine, and thus these were the only employees employed at the time within the classifications in the Agreement who voted upon it;

•  there is no evidence that Temmco employed anyone in the other classifications provided for in the Agreement (such as riggers or scaffolders) at the time of the vote upon the Agreement;

•  there is no requirement that there be existing employees in each and every classification in an enterprise agreement at the time it is made in order for there to be genuine agreement;

•  in the Yallourn decision, the refusal to approve the agreement under consideration arose from the fact that there was a contested approval process, a sufficient challenge and material before the Deputy President to cause a lack of satisfaction and a failure to produce additional evidence to overcome that lack of satisfaction; and

•  in the present case, there was no challenge to the approval of the Agreement, no issues were raised and there was no requirement to produce further evidence.

[23] Accordingly, Temmco submitted, the appeal should be dismissed. In the alternative, if the appeal were upheld and the approval of the Agreement quashed, Temmco submitted that the Full Bench should make a further decision to approve the Agreement based on the further evidence before it.

[24] As stated in its submissions, Temmco sought at the hearing of the appeal that we receive a witness statement made by Mr Dibley and dated 11 October 2021 if we admitted the statement of Mr Thornton. At the hearing of the appeal, we asked Temmco’s counsel a number of questions without notice about Temmco’s operations and the approval process for the Agreement and, in order to provide Temmco with a fair opportunity to answer these questions, we gave leave for Temmco to file further evidence and submissions. Pursuant to this grant of leave, Temmco filed a further statement of Mr Dibley dated 28 October 2021 and further written submissions also dated 28 October 2021.

[25] It is not necessary to refer to Mr Dibley’s first witness statement since its contents were incorporated into his second witness statement dated 28 October 2021. In his second witness statement, Mr Dibley described the operations of Temmco. He said that Temmco had a contract with AGL Loy Yang Pty Ltd for onsite machining work at the Loy Yang A power station for approximately two months this year, and that Temmco has the same type of maintenance and engineering contracts with a number of power generators around Australia and Asia. Temmco’s practice, he said, was to establish an enterprise agreement to cover its workers to go on site and do the work, which usually involved interstate travel. These agreements pick up and mirror the enterprise agreement of the major contractor except that Temmco’s agreements provide for a more beneficial “Living Away from Home Allowance” for its employees who are travelling away from their usual place of residence and who stay in accommodation close to their work sites.

[26] In response to Mr Thornton’s witness statement, Mr Dibley said that Temmco does not perform scaffolding work at all, nor does it employ persons as riggers under this contract and Agreement or on this site, with riggers being supplied by AGL Loy Yang Pty Ltd for work at the Loy Yang A site. He said that, at the time of the making of the Agreement, “the group of 7 machinists and 1 valve fitter were the persons employed by Temmco who could travel to Loy Yang A to do the work and be covered by the Agreement”. Mr Dibley said that this group consisted of 6 employees from the Site Services Division and 2 employees from the Workshop Division “who from time-to-time travel away with the site services team”. The classifications in the Agreement, he believed, were simply copied from the table in the major contractor’s enterprise agreement covering the relevant classifications.

[27] In response to the specific questions raised at the hearing, Mr Dibley said:

•  The group of employees who voted on the Agreement are those employees in the Site Services Division and the Workshop Division “who have the skills relevant to this type of site-based machining work”, and the group of 8 who voted “are those employed at the time that are reasonably predicted to be likely to be called on to work at Loy Yang during the life of the Agreement”;

•  Only one machinist (Nathan Wilson, who voted) and two casuals (who did not vote as they were not employed at the time of the vote) undertook the work at the Loy Yang A shut down this year. The casual employees were used due to the other 7 permanent employees who voted being required to quarantine for COVID-19 at short notice in Queensland for an outage in Rockhampton. The group of 8 “are those reasonably predicted to be required to work at Loy Yang A during the life of the agreement” because “this is a three year agreement”.

•  The 2021 contract only required a smaller number of workers. Historically, Temmco has done work that requires more of the workers to be involved, “hence it is a reasonable prediction that the group of 8 are likely to be required to work at Loy Yang A during the life of the agreement and therefore should vote”.

•  Mr Berry was the primary person to explain the Agreement to his colleagues, supplemented by sending a copy of the Agreement to the employee who does not work directly with Mr Berry and inviting questions from the group. Mr Berry works daily with the majority of the voting group and uses morning meetings and other meeting times (lunch for example) to discuss and explain agreements with his colleagues. Furthermore, there were very few changes between the new and prior agreements, so the need for an explanation was minimal.

•  The one employee in the Site Services Division who did not vote is permanently allocated to work on a long-term contract at a NSW power station and would not be required to work at Loy Yang A.

[28] In its further submissions, Temmco referred to Mr Dibley’s second witness statement, and said that it demonstrates that the group of 8 employees who voted were those who, because of their skills, competence and experience were reasonably believed would be involved with this work and therefore covered by the Agreement, and there was no other cohort of employees who could have been involved. His statement also showed, it was submitted, that riggers and scaffolders were not employed under the Agreement or at all, and otiose or extra classifications do not raise any error.

Consideration

Standing

[29] We are satisfied that the AMWU and the CFMMEU have standing to bring the appeal in accordance with the principles stated in CEPU and AMWU v Main People Pty Ltd. 4

Permission to appeal and the merits of the appeal

[30] For reasons similar to those given by Colman DP in the Yallourn decision, we have decided to grant permission to appeal and uphold ground 1 of the appeal.

[31] The Yallourn decision concerned an application for approval of an enterprise agreement, the Temmco Certified Agreement for Yallourn Power Station and Open Cut Mine Victoria 2021 (Yallourn agreement) said to have been made by Temmco with 8 of its employees. The Yallourn agreement was described in the decision as applying to the employment of employees of Temmco who will undertake critical maintenance work at the Yallourn power station in Victoria, which work was expected to commence in September 2021.

[32] Section 186(2)(a) of the FW Act requires, as a prerequisite for the approval of an enterprise agreement, that the Commission be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement. Section 188 sets out what constitutes genuine agreement for the purpose of s 186(2)(a). The Yallourn agreement included classifications for machinists, tradesmen and riggers. 5 As to the making of the agreement, the Yallourn decision records:

“[3] Temmco’s F17 statutory declaration in support of its application states that at the time of the employee vote on the Agreement, which occurred from 4 to 7 June 2021, eight employees were covered by the Agreement, all of whom cast a valid vote to approve the Agreement. The employees in question were at that time working for Temmco at the Tarong power station in Queensland and the Vales Point power station in New South Wales. Their employment was covered by other enterprise agreements that apply to Temmco. The F17 declaration further identifies that these employees were employed as machinists and valve fitters.”

[33] The AMWU and the CFMMEU appeared in the proceedings for the approval of the Yallourn agreement and submitted that Temmco had failed to explain why the 8 individuals had been selected to vote on the agreement and that there was no objective basis for the Commission to conclude that, at the time of the vote, those employees would necessarily be covered by the agreement. Temmco submitted before the Deputy President that the 8 employees are the same employees who had approved other agreements covering work of the kind that would be performed under the Yallourn agreement, that these employees travelled around the country to perform this work as required, and that this had been occurring for the past 15-20 years.

[34] In response to these contentions, the Deputy President said:

“[12] It is perfectly possible for an employer to make an enterprise agreement with existing employees in respect of work that will commence at some point in the future. However, it is necessary to ascertain, as at the time of the vote, who will be covered by the agreement. The effect of ss 181(1) and 182(1) is that, in order for an enterprise agreement to be made, it is necessary for the employees employed at the time, and who ‘will be covered’ by the proposed agreement, to vote on it, and for a majority of those who cast a valid vote to approve it. In Commonwealth Bank Group Enterprise Agreement [2021] FWCFB 3635, a Full Bench of the Commission concluded, at [9], that employees who vote on the agreement must be those who will be covered by the agreement, not those who simply might be covered. The question is assessed at the time of the vote. This does not mean that, in the context of an agreement that will apply to future work, there must be absolute certainty that each employee will undertake the work. For example, an employee who votes on the agreement might cease to be employed before the work under the new agreement commences, or might become unable to perform it. One must however be able to say with confidence, as at the time of the vote, that the voting employees will be covered by the agreement.

[13] In the present case, eight employees employed by the company in Queensland and New South Wales voted in June 2021 on an agreement that would apply to a project in Victoria in or about September 2021. The company has not led any evidence or submitted any documents to substantiate that these employees would be deployed to work on the Yallourn Project, nor has the company provided any detailed submissions about why the Commission should be satisfied as to these matters. For example, the company did not say that the employees have signed contracts to work on the project, or that they have been offered the work and have agreed to perform it, or even that the eight employees have each confirmed their willingness and intention to work on the project. The company simply asserts, very generally, that this is the group that undertakes such work and that it has done so previously. The contention that this has occurred over the past 15 to 20 years is difficult to accept without evidence; that there would have been no change in the composition of the group over such a period seems unlikely. And there is nothing before the Commission that defines or even describes what constitutes this group. I am not satisfied that, at the time of the vote, the eight employees were persons who will be covered by the Agreement.”

[35] The Deputy President also noted that the Yallourn agreement contained classifications for riggers and found that Temmco had not denied the contention advanced by the AMWU and the CFMMEU that other employees employed at the time of the vote might have been covered by the Yallourn agreement. Finally, the Deputy President said in conclusion:

“[18] The company has evidently adopted a practice over time of making enterprise agreements for future projects with existing employees. There is nothing wrong with this. But each application for approval of an enterprise agreement must meet the approval requirements in ss 186 and 187. I am not satisfied that all of these requirements have been met. This is what distinguishes the present case from previous applications made in the Commission, not, as the company contended, the fact that the unions opposed the application. For these reasons, the application for approval of the Agreement is dismissed.”

[36] We equally consider that, on the basis of the information before her, it was not reasonably open for the Commissioner to have been satisfied that the Agreement was “genuinely agreed to by the employees covered by the agreement” as required by s 186(2)(a) of the FW Act. Section 188 requires, as an element of genuine agreement for the purpose of s 186(2)(a), that the Commissioner be satisfied that the employer covered by a non-greenfields enterprise agreement for which approval is sought complied with, relevantly, s 182(1). Section 181(1) provides that 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. Section 182(1) provides that, in the case of a single-enterprise agreement, the agreement is “made” when a majority of the employees, pursuant to a request made under s 181(1), cast a valid vote to approve the agreement.

[37] Accordingly, it was necessary for the Commissioner, in order to approve the Agreement, to be satisfied that the employees who Temmco asked to approve the Agreement were those who “will be covered by the agreement”. The coverage of the Agreement has been described in inconsistent ways by Temmco. As earlier set out, the coverage of the proposed agreement was described in the NERR as “employees that carry out Engineering, Maintenance and Refurbishment Projects”, but in Mr Dibley’s Form F17 declaration it was stated to be “on Site Machinists and valve fitter who are required to work interstate”. However, the coverage of the Agreement must ultimately be determined by reference to its own terms. Clause 4 of the Agreement, although it uses the language of application rather than coverage, must be regarded as identifying the employees covered, namely those engaged in the classifications in the Agreement working in engineering and maintenance activities at the Loy Yang A Power Station and Mine.

[38] The material before the Commissioner was not such as to permit a state of satisfaction to be reached that the 8 employees who voted on the Agreement were those current employees of Temmco who did, or would in the future, fall within the scope of coverage described. This is most clearly apparent from two aspects of Mr Dibley’s Form F17 declaration:

(1) The declaration asserts that, at the time of the vote, 8 employees were covered by the Agreement. However, there was no evidence before the Commissioner that these 8 employees, or any of them, were or would be deployed to the Loy Yang A site at any time. The misdescription of the coverage of the Agreement in the declaration, which makes no reference to the requirement for work to be performed at the Loy Yang A site but refers to the performance of interstate work generally, suggests that employees other than those who will fall within the much narrower scope of coverage delineated by clause 4 may have voted on the Agreement. Further information was required to resolve this discrepancy and reach the requisite state of satisfaction.

(2) The description of the coverage of the Agreement in the declaration, which only refers to machinists and valve fitters, the matching of classifications to the relevant award, which only refers to the classifications in the Agreement of C10 Tradesman, C9 Machinist and C8 Advanced Machinist, and the description of the process of the making of the Agreement, which only refers to machinists and a valve fitter, make no reference to the other classifications of supervisor, team leader, rigger, scaffolder or trades assist storeman to be found in the Agreement. This would have at least suggested that it was possible that not all persons covered by it were given the opportunity to vote upon it and called for further inquiry.

[39] The witness statement of Mr Thornton sought to be admitted in the appeal by the CFMMEU, and the second witness statement of Mr Dibley sought to be admitted by Temmco in response, clearly bear upon the above matters. We consider that the evidence should be admitted because there was no opportunity for this evidence to be admitted at first instance and it is clearly relevant to the question of whether the Agreement is capable of approval under the FW Act.

[40] In respect of the second issue identified above, the new evidence would not have led us to grant permission to appeal. The evidence demonstrates to our satisfaction that Temmco did not employ anyone within the coverage of the Agreement who was not a machinist or valve fitter at the time the vote on the Agreement occurred. Accordingly, any further inquiry by the Commissioner in respect to this issue could not have led to a different result and thus an appeal concerned with that issue only would lack utility.

[41] However, the position is different with respect to the first issue. Having regard to the second witness statement of Mr Dibley and the submissions of Temmco generally, the following factual propositions may be stated:

•  The group of 8 employees who voted on the Agreement were selected because they have the skills relevant to undertaking site-based machining work.

•  Only one of the 8 employees (Mr Wilson) actually worked on the Loy Yang A site this year. This occurred in the period from 12 August to 24 September 2021. 6 This means that only one employee can positively be identified as subsequently having performed work within the coverage of the Agreement.

•  Temmco does not at this stage have a contract to perform any future work with Loy Yang A, but “likely has an expectation” that it will obtain another contract. 7

[42] We do not consider that, even with the benefit of the additional evidence and submissions in the appeal, the Commission could be satisfied that the 8 employees who were requested to vote on the Agreement were those who will be covered by the Agreement. Even allowing for the fact that one employee worked at Loy Yang A this year, the highest it could be put is that the 8 employees had the skills to perform the work and that some or all of them might possibly be allocated to perform the work at some time in the future if Temmco obtained a relevant contract to perform the work contemplated in the Agreement. There is no basis to say “with confidence”, as Colman DP put it in the Yallourn decision, that the 8 employees will work at the Loy Yang A site in the future. The position is, we consider, crystallised by the following exchange which occurred at the appeal hearing between the bench and counsel for Temmco:

VICE PRESIDENT HATCHER:  Can I characterise this, this way, that the company chose the cohort of people who it would make the agreement with on the basis that they might do work, might possibly do work covered by the agreement, not that they will do work covered by the agreement?

MS STOJANOVA:  That is correct, in the sense that that was the group of employees that would be covered by the enterprise agreement and it was open for Temmco to potentially - I mean, of course, if the enterprise agreement remains in force, it's still open for Temmco to potentially need all of those employees at any given time.  But that it is also the case that there would be operational resourcing matters that may mean that, for example, only a subset of those employees would be required. 8

[43] It is clear, we consider, that the statement in Mr Dibley’s declaration that the 8 persons who voted were covered by the Agreement at the time of the vote was incorrect. None of them was covered since no work at the Loy Yang A site was being performed at the time. Nor could it be said, in relation to the requirement in s 181(1), that the 8 employees who voted were employees who “will be covered by the agreement” in the future. The mere possibility of future coverage is not sufficient. 9 Further inquiry at first instance would have exposed these matters and led to a different outcome.

Redetermination of the application for approval of the Agreement

[44] Having found that the Commissioner erred in approving the Agreement, we consider that the most convenient course is for us to redetermine the application for approval of the Agreement. For the following three reasons, we are not satisfied that the Agreement was genuinely agreed to by the employees covered by it, as required by s 186(2)(a). The application must therefore be dismissed.

[45] First, for the reasons already stated, the Agreement was not made in accordance with s 188(1)(b), and thus the element of genuine agreement in s 188(1)(b) cannot be satisfied.

[46] Second, we are not satisfied that s 180(2) was complied with. Section 180(2) provides:

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

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i)  the written text of the agreement;

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

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

[47] Satisfaction as to compliance with s 180(2) is a required element of genuine agreement: s 188(1)(a)(i).

[48] Mr Dibley’s Form F17 declaration, as earlier set out, did not identify that the employees were given a copy of the proposed agreement during the access period. He states that copies of the proposed agreement were given only to Mr Berry “for distribution to machinists” and to the valve fitter at Vales Point Power Station on 15 June 2021, 10 days before the beginning of the access period. There is no evidence that Mr Berry distributed a copy of the proposed agreement to anybody. The letter of 24 June 2021 advising of the time, place and method of the vote (which was sent by email) referred to a copy of the proposed agreement being “enclosed”, but Mr Dibley did not say that the agreement was provided to employees at this time in his declaration and there is no other material indicating that the proposed agreement was provided at this time or that it was otherwise made accessible during the access period. In addition, although the Manufacturing Award was incorporated by reference into the Agreement, Mr Dibley did not say in his declaration that the award was ever provided or made accessible to the employees. The letter of 24 June 2021 asserts that a copy of the award had been made available to each employee, but it does not explain when or how this occurred.

[49] Third, we are not satisfied that s 180(5) was complied with. Section 180(5) provides:

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

(a)  the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b)  the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

[50] Satisfaction as to compliance with s 180(5) is also a required element of genuine agreement under s 188(1)(a)(i).

[51] Mr Dibley’s declaration discloses that, at best, Temmco only explained the terms of the Agreement to 4 of the 8 employees who voted (which did not include Mr Wilson, the only employee who has actually worked at Loy Yang A since the Agreement was voted upon). His declaration did not say anything about the content of the explanation given to the 4 employees. The email sent to employees on 22 June 2021 asking whether they had any queries or required any further explanation does not, in our view, constitute a reasonable step to explain the terms of the Agreement and their effect.

[52] In his second witness statement, Mr Dibley said that Mr Berry was “the primary person to explain the agreement to his colleagues” and that he “uses morning meetings and other meeting times … to discuss and explain agreements with his colleagues”. This does not constitute evidence that Mr Berry explained anything to anybody about the Agreement. Nor is there any evidence that Temmco requested Mr Berry to explain the Agreement to other employees or that he had the requisite knowledge or expertise to do so.

[53] In summary, there is no evidence that Temmco took any step at all to explain the Agreement to 4 of the 8 employees, and we are not satisfied that Temmco took all reasonable steps to explain the Agreement to the other 4 employees.

[54] None of the above three matters is curable under s 188(2), since none of them constitutes a “minor procedural or technical error”.

Orders

[55] We order as follows:

(1) Permission to appeal is granted.

(2) Ground 1 of the appeal is upheld.

(3) The decision ([2021] FWCA 4580) is quashed.

(4) The application for approval of the Temmco Certified Agreement for Loy Yang A Power Station and Open Cut Mine Victoria, 2021 (AG2021/6276) is dismissed.

VICE PRESIDENT

Appearances:

B Terzic on behalf of the Australian Manufacturing Workers’ Union.
E Barnes-Whelan on behalf of the Construction, Forestry, Maritime, Mining and Energy Union.
N Stojanova of counsel on behalf of the respondent.

Hearing details:

2021.

Sydney and Adelaide (via video-link):
18 October.

Final written submissions:

28 October 2021.

Printed by authority of the Commonwealth Government Printer

<PR735688>

 1   [2021] FWCA 4580

 2   AE512501

 3   [2021] FWC 4831

 4   [2014] FWCFB 8429 at [5]-[7]

 5   [2021] FWC 4831 at [2]

 6   Transcript, 18 October 2021, PN 167

 7   Ibid, PNs 195-196, 198

 8   Ibid, PNs 173-174

 9   Commonwealth Bank of Australia [2021] FWCFB 3635 at [9]