FWAFB 5163
FAIR WORK AUSTRALIA
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT HARRISON
SYDNEY, 10 AUGUST 2011
Appeal against decision  FWAA 9588 of Vice President Lawler at Sydney on 16 December in matter number AG2010/14910, approval of enterprise agreement.
 This decision concerns an appeal under s.604 of the Fair Work Act 2009 (the Act) by the National Tertiary Education Industry Union (NTEU or Appellant) against the approval by Vice President Lawler of the University of New South Wales (Professional Staff) Enterprise Agreement 2010 (Agreement) 1 The NTEU opposed the approval of the Agreement. The University of New South Wales (UNSW), CPSU, the Community and Public Sector Union (CPSU) and Australian Higher Education Industrial Association (AHEIA) all supported its approval before His Honour and, before us, all opposed the granting of permission to appeal.
 The Agreement covers the UNSW and employees who are members of its professional staff. Clause 5.2 excludes some employees from coverage and we say more about some persons in this group later in this decision. Each of the NTEU, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the CPSU gave notice under s.183 of the Act that they wanted the Agreement to cover them. Accordingly, the Vice President’s decision notes that the Agreement covers these organisations. 2
 The background to the application for approval of the Agreement provides an important context in which the Vice President considered each of the relevant provisions of Part 2-4 of the Act. It is appropriate we reproduce that part of his decision which addresses that background:
“ For present purposes, UNSW divides its employees into two groups: academic staff and professional staff (professional staff were previously referred to as “general staff”).
 There is a long history of collective agreement making at UNSW. Until now those agreements have been statutory collective agreements made with unions under successive iterations of the Workplace Relations Act 1996.
 The current operative agreement covering professional (general) staff, the University of New South Wales (General Staff) Enterprise Agreement 2006 (2006 Agreement), reached its nominal expiry in mid 2009.
 Negotiations for a new agreement to cover professional staff, of whom there are some 5000, commenced in early 2009, that is, before the commencement of the FW Act and have continued since that time. That is, the negotiations have been protracted. Protected action has been taken.
 It is not disputed that there is a relatively high density of union membership among employees of UNSW and a history of employees acting collectively through their unions. In this case bargaining proceeded with three unions, the CPSU, the NTEU and the AMWU, who were bargaining representatives for the Agreement by virtue of s.176(1)(b). The three unions were the only employee bargaining representatives for the Agreement.
 The AMWU covers a relatively small number of maintenance employees. The CPSU and the NTEU have overlapping coverage of remaining professional staff. It seems that there has been a degree of competition between the CPSU and NTEU, at times hostile. UNSW eventually concluded terms for the Agreement with the CPSU and AMWU. Pursuant to s.181, UNSW put the Agreement to vote of employees. The NTEU was dissatisfied with the Agreement and actively campaigned amongst employees for a “no” vote. The CPSU actively campaigned for a “yes” vote.
 UNSW retained an independent third party, Elections Australia, to conduct the vote. A clear majority of voters voted to approve the Agreement.
 The application for approval is supported by the CPSU and the AMWU. It is opposed by the NTEU. It would be fair to say that the NTEU has taken every conceivable point in opposing the application for approval of the Agreement.”
 After the above background His Honour then referred to a number of provisions of the Act which he was required to consider in deciding whether to approve the Agreement. In this context he noted that s.186 of the Act provides that if the requirements of that section and s.187 are met then he must approve the Agreement. One of the requirements in s.186(2)(a) is that an agreement had been genuinely agreed to by the employees covered by it. Section 188 deals with the matters FWA must be satisfied about when considering if an agreement has been genuinely agreed. This section is referred to several times in His Honour’s decision and it is convenient for it to be set it out here:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”
 We return to His Honour’s decision. He summarised the NTEU’s objection to the approval of the Agreement in the following terms:
“(a) UNSW did not give employees notice of their representational rights in compliance with s.173 and s.174. In particular, UNSW did not comply with the requirements in Section 174(6) and/or Regulation 2.04.
(b) UNSW failed to comply with s.180 of the FW Act because it:
(i) failed to take all reasonable steps to ensure access to documents incorporated by reference in the Agreement; and or
(ii) failed to adequately explain the effect of the terms of the Agreement.
(c) The group of employees to be covered by the agreement was not fairly chosen.
(d) The Agreement was not “genuinely agreed to by the employees” as required by s.186(2)(a) and s.188 of the FW Act because, in addition to the matters referred to in (b) and (c):
(i) Persons who were not entitled to vote on whether to approve the Agreement were given a vote.
(ii) Employees were misled about the terms of the Agreement
(e) The Agreement does not pass the better off overall test as required by Section 186(2)(d) of the FW Act. “ 3
The Grounds of Appeal
 The errors the Appellant submits were made by His Honour in approving the Agreement are in the same terms as the objections listed above. Additionally, a challenge is made to His Honour’s acceptance of an undertaking from the UNSW. We now turn to the grounds of appeal.
 The first grounds of appeal relate principally to s.173 of the Act. The Appellant submits that the Vice President failed to properly apply that section. It submits that he should have found that the UNSW failed to take all reasonable steps to give notice of the right to be represented by a bargaining representative to each relevant employee. It asserts that as a result there was no jurisdiction to approve the Agreement. The term “all reasonable steps” is in s.173(1). Section 173(5) provides that the regulations may prescribe how notices under subsection (1) may be given. Regulation 2.04 is the relevant regulation. The Appellant submits that His Honour did not afford appropriate weight and meaning to the word ‘all’ and, in effect, concluded that an employer was simply to take ‘reasonable steps’ as opposed to ‘all reasonable steps’. In developing this argument reference was made to provisions in the Workplace Relations Act 1996 which dealt with obligations on employers who wished to negotiate a collective agreement under that act.
 The Appellant’s argument relies on the evidence of Mr Ward, the UNSW Director, Human Resources who acknowledged that the notice of representational rights not been given by way of a broadcast email to all relevant employees and that such a step was reasonably open for the university to have undertaken. On this basis, the NTEU submits that His Honour should have found that the UNSW did not take a reasonable step to distribute the notice of employee representational rights. Accordingly, it submits that as a matter of statutory construction the Vice President fell into jurisdictional error in finding that UNSW complied with the mandatory requirements of s.173 to take all reasonable steps. He had no jurisdiction to approve the Agreement and we should quash its approval.
 It is appropriate that we refer to and reproduce His Honour’s reasons in which he describes how he interpreted s.173 and its application to the steps which the UNSW had taken to comply with it. He did so having first observed that when FWA is considering the approval of an Agreement the Act does not expressly require it to consider if s.173 or s.174 were complied with. Consideration of those sections arises in an indirect way through the application of the requirements of ss186, 187 and 188. His Honour said:
“ Part 2-4 of the FW Act, in which s.173 appears, commenced on 1 July 2009. At that time, bargaining for an agreement to replace the 2006 Agreement had already been proceeding for some months. UNSW took the view, correctly, that the commencement of Part 2-4 meant that UNSW had an obligation to give employees notice of their representational rights as required by s.173.
 It is not disputed that all employees covered by the Agreement had a UNSW email address and access to a computer or that UNSW has a history of communicating with its employees electronically.
 UNSW operates a very extensive intranet site called “myUNSW”. There is a web address that acts as a portal to that website. All students and staff have an account on “myUNSW”. A person logging on to the “myUNSW” is directed to a different home page depending upon whether they are logging on as a student or as a member of staff. The middle column on the staff home page has a heading “My Announcements”.
 UNSW posted an announcement under immediately under the heading “My Announcements” as follows:
“New Industrial Relations Legislation
With the commencement of the new industrial relations legislation on 1 July 2009, the University is required to give notice of employee representational rights.
 Pursuant to the common convention on websites “more...” was a highlighted hypertext link which the user could click to continue reading. Upon the clicking of that link, the user was taken to a webpage that repeated the text set out above and then continued with the text of the notice of representation rights.
 UNSW has a broadcast email facility that allows it to send a single email to all email users or to a particular groups of users. There is no dispute that UNSW had the capacity to send the notice of representational rights to all relevant employees directly as a broadcast email. Mr David Ward is the head of human resources for UNSW. He had overall responsibility for negotiating the Agreement and was UNSW’s lead negotiator. Mr Ward was the only witness to give evidence. He gave careful and considered evidence which I accept without reservation. Mr Ward admitted that, with the benefit of hindsight, it would have been better if UNSW had sent the notice of representational rights direct to employees. Of course that candid admission must be seen in the context of new legislation coming into effect during a course of bargaining that was already well underway.
 The NTEU contends in effect that the requirement in s.173(1) that an employer “must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee” should be approached on the basis of identifying all of the steps to give notice that could be taken and that are “reasonable” and, then, if one of those steps was not taken, FWA must find that mandatory requirement in s.173(1) has not been satisfied with the result that the application for approval must be refused. The NTEU argues that because the sending of the notice direct to employees by broadcast email was an available and obviously reasonable step that was not taken the requirement in s.173(1) was not satisfied and therefore the application for approval of the Agreement must fail.
 Of course, what is a “reasonable” step will depend upon the circumstances of the particular employer and employees. It may be noted that s.173(1) does not impose an obligation to give notice to each employee but, rather, to take “all reasonable steps” to give notice. This distinction ought be seen as recognising that, in many circumstances, and inevitably in the case of a very large employer like UNSW, it will be practically impossible to ensure that every single employee receives the notice. Assessing whether “all reasonable steps” have been taken must take account of this reality. For example, employees on extended leave who are travelling abroad will often be almost impossible to notify. Some steps which will typically be obviously reasonable, such as by post or email to an address supplied by the employee, may fail in relation to some employees. Giving notice by post or email to a private address supplied by the employee may fail if the employee has changed their address without notifying the employer of that change.
 I do not agree that s.173(1), on its proper construction, requires the approach for which the NTEU contends. Such an approach attributes a meaning to the word “all” that is at odds with the overall object and purpose of the regime for the making of enterprise agreements created by Part 2-4.
 In my view, s.173(1), on its proper construction, requires that reasonable steps be taken to give the requisite notice to all employees and the requirement that “all” reasonable steps be taken merely underscores that it may be necessary in particular circumstances for the employer to take multiple steps rather than a single step to notify employees because a given step may be “reasonable” in the sense of likely to be effective in respect of one group of employees but not in respect of another group of employees. For example, an employer may have a workforce some of whom have access to a computer and routinely communicate by email and others who do not and who instead rely on communication via notice boards, meetings or the like. Notification by email would be “reasonable step” for the first group but not for the second: an additional step or steps would be needed in relation to the second group.
 This construction is confirmed by the explanatory memorandum for s.173(1) which states:
“Clause 173 - Notice of employee representational rights
698. Subclause 173(1) requires an employer to take all reasonable steps to give notice to each employee of their right to be represented by a bargaining representative. Reasonable steps could include sending the notice by email to each employee or posting the notice to a forum or site that is known by and accessible to the relevant employees. The requirement applies to those employees employed at the notification time. Separate rules apply for proposed greenfields agreements.”
 Resort to the explanatory memorandum for this purpose is authorised by s.15AB of the Acts Interpretation Act 1901 (Cth).
 Adopting that approach to the requirement in s.173(1) in this case, I am satisfied that UNSW did take all reasonable steps to give notice to each employee. On Mr Ward’s evidence, the “myUNSW” website is used as the primary mechanism for staff to interact with the university in relation to a range of employment related matters. It was a “forum or site that is known by and accessible to the relevant employees” and therefore a mechanism that the explanatory memorandum recognised “could” be a reasonable step. I am satisfied in the circumstances of this case that the giving of notice on the “myUNSW” website in the manner that occurred was a reasonable step for employees who were not on leave. Employees who were recorded as being on leave had the notice posted to their private address in the UNSW records. That was also a reasonable step in relation to such employees. I am satisfied that the requirement in s.173(1) was met.”
 We agree with the Vice President’s interpretation of s.173 of the Act and its application to the established facts as to the steps taken by the UNSW. We do not agree with the NTEU submission that His Honour’s summary of the submission which the NTEU had made below was inaccurate. His Honour correctly identified that the NTEU contended that the requirement in s.173(1) of the Act should be approached by first identifying all of the steps to give notice that could be taken and that are “reasonable” and then, if one of those steps was not taken the mandatory requirement in s173(1) had not been satisfied. A not dissimilar construction of s.173 was also contended for by NTEU on appeal. 4
 There was no evidence before His Honour that any employee who would be covered by the Agreement did not receive notice of their representational rights and the NTEU did not submit that the steps actually taken by the UNSW to notify employees of their representational rights were not reasonable steps. Accordingly, there was no error in His Honour finding that the giving of notice on the “myUNSW” website in the manner that occurred was a reasonable step. What the NTEU submitted below, and before us, is that there was another reasonable step which the UNSW did not take. That step was to send the representational notices to employees by broadcast email. By not taking that step it could not be found that it took all reasonable steps (as distinct from only some reasonable steps) as required by s.173 of the Act.
 The NTEU did not accept that the practical application of its construction of s.173 meant that all reasonable steps had to be ascertained and then an employer needed to take all of them regardless of whether that employer might have had a high degree of confidence that, say, the first step had achieved its purpose. The NTEU submits that the practical application of its construction is that all reasonable steps would be ascertained in advance and then, whilst in the course of taking them, an employer may form the view that one of the steps had constituted all reasonable steps so the next were not necessary to take. We have some difficulty with it being said that the practical effect of this construction is not just the same as that His Honour adopted. It seems to us that if, whilst taking steps identified as reasonable, an employer can along the way decide that it had taken all reasonable steps there is no reason in our opinion why His Honour should have found what the UNSW did here had not complied with s.173.
 We do not agree that s.173 should be given the construction that an employer, having ascertained the various steps that are reasonable, is then required to take each one of them. We agree with the UNSW submission that construction reflects an insistence upon a ‘literal’ interpretation, the results of which lead to a conclusion that the legislature could not have intended. It would mean for example if an employer took a reasonable step of handing a notice to an employee or group of employees, the employer would none the less be required to take a range of further steps which are also reasonable to give the same notification to the same employee or employees.
 It seems to us that the NTEU argument in this case relies heavily on the frank concession that was made by Mr Ward that, in retrospect, sending a broadcast email directly to the address of each employee might have been wise. Of course, as His Honour quite rightly observed, it is appropriate when considering whether all reasonable steps were taken to place in context the stage at which bargaining had reached. It had been going for some time. However, because the legislation came into operation whilst it was under way the view was taken that it was necessary for the UNSW to comply with ss173 and 174. Although somewhat unrealistic in a practical sense where the only bargaining representatives were (and had always been) the unions, nonetheless the view was taken that there was a necessity to give notice as required by s.173. It is in this context, and against the factual findings His Honour made in paragraphs 17 - 22 of his decision, that he needed to consider whether the UNSW had taken all reasonable steps to give relevant employees notice of their representational rights.
 The NTEU construction of s.173 is not one to be preferred to that adopted by His Honour. His Honour’s construction that “all reasonable steps” requires, in particular circumstances, that an employer take multiple steps rather than a single step because a given step may be reasonable in respect of one group of employees, but not in respect of another group of employees is the better construction. In applying that construction to the facts there was acceptable evidence for His Honour’s conclusion that the requirements of s.173 had been met.
 We should indicate that in reaching our conclusion on this ground of appeal we have not overlooked the UNSW submission that the Appellant’s categorisation of this ground as a jurisdictional error is misconceived and wrong. It is not strictly necessary for us to say much more about this but we consider it useful to summarise the submission that was made.
 As we have earlier observed FWA must approve an enterprise agreement if the requirements of ss186 and 187 of the Act are met. One requirement is that FWA must be satisfied that the Agreement was genuinely agreed to by the employees to be covered by it. 5 Section 188 is relevant to this consideration. We have reproduced that section earlier. Nowhere in that section does FWA need to be satisfied the employer had taken all reasonable steps to give notice of representational rights under s.173 of the Act. The requirement arises in an indirect way through the reference in s.188(a)(ii) to s.181(2) having been complied with. This provides that employees are not to be requested to approve an agreement until at least 21 days after the day on which the last notice under s.173(1) is given. FWA is not required to consider whether all reasonable steps were taken to give that notice. On this basis the UNSW submits no jurisdictional error is apparent.
 Although we have decided this ground of appeal on the basis of the correct construction of s.173 and its application to the facts, we think it appropriate to observe that the UNSW submission that it was not strictly necessary for His Honour to consider whether s.173 had been complied with is arguable. One important consideration weighing against this submission however is the key role of bargaining representatives in the enterprise bargaining regime in the Act and the rights and obligations employee organisations have in that regime. In this context, informing an employee at the start of bargaining about how they may be represented is an essential component. So, a construction of the Act which may deprive a party from informing FWA, when called upon to approve an agreement, that in fact all reasonable steps had not been taken as required by s.173 would not be one readily adopted. It is not necessary however for us to say more about this argument in this decision.
 The next grounds of appeal concern the manner in which His Honour applied s.180(2) of the Act. That section is in the following terms:
“Employees must be given copy of the agreement etc.
(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.”
 The need for His Honour to consider this section arises by virtue of s.188(a)(i) which made compliance with s.180(2) a precondition for him to be satisfied that the Agreement was genuinely agreed to by employees. The clauses of the Agreement which are the subject of this challenge are clauses 38.3 and 38.4(a). They are in the following terms:
“38.3 Casual Employees
A casual employee will be eligible for long service leave in accordance with the New South Wales Long Service Leave Act 1955.
38.4 Recognition of Other Employment and Service
(a) For persons entering employment with the University on or after 1 January 1974, eligibility for long service leave will be determined taking into account prior continuous full-time and part-time paid service with the University and other Australian universities in accordance with the provisions in place the day before the commencement of this Agreement. A copy of these provisions will be in an easily accessible location on the University's web site.”
 The Appellant submits the Long Service Leave Act 1955 (LSL Act) and the material referred to in clause 38.4(a) is incorporated by reference into the Agreement by virtue of those provisions. As copies of the LSL Act and material in clause 38.4(a) were not provided to employees s.180(2)(a)(ii) was not complied with. Therefore, it submits His Honour should not have been satisfied the Agreement had been genuinely agreed.
 His Honour dealt with this challenge when made below in this way:
“ Clause 9(c) provides:
“(c) Nothing in this Agreement will be taken as incorporating as a term of this Agreement any University policy, procedure or guideline referred to in it.”
 I agree with the submission of the NTEU that, generally speaking, if a particular provision explicitly incorporates another document by reference then the presence of a general provision such as clause 9(c) cannot take effect to prevent that incorporation by reference. However, clause 9(c) may be relevant in determining whether a particular provision, on its proper construction, has the effect of incorporating material by reference.
 In any event, to the extent that clause 38.3 incorporates the LSL Act into the Agreement by reference, I consider myself bound by the decision of the Full Bench in Re McDonald’s Australia Enterprise Agreement 2009 which made it clear that there is no need to take further steps to provide access to materials, like legislation, that is freely available in the public domain.
 However, I disagree with the NTEU that the material referred to in clause 38.4(a) is properly to be regarded as being incorporated into the Agreement. Rather, that paragraph does no more than identify that, in particular circumstances, an entitlement will be as it was immediately prior to the commencement of the Agreement, noting that the documents specifying that entitlement will be available on UNSW’s website. That is not incorporation by reference.”
 The decision in Re McDonald’s Australia Enterprise Agreement 2009 referred to by His Honour contains the following comments which we understand to be what His Honour is referring to above in paragraph 43 of his decision. This extract also happens to be paragraph 43 of the Full Bench decision:
“ We have reviewed the terms of the Agreement and agree with that submission. References in the Agreement to the NES do not incorporate the terms of the NES into the Agreement. The South Australian Long Service Leave Act 1987 is however incorporated because the terms of the agreement provide for its application in Broken Hill - which is beyond its legislative effect. The benefits are greater than those provided by New South Wales legislation. The laws of the land are available to Australian citizens in a variety of ways. We find that the employer was not required to take any further steps to ensure that the relevant employees had access to the South Australian legislation. Because the legislation is freely available in the public domain, no further steps were required.” 6
 Although it is not entirely clear that the effect of clause 38.3 is to incorporate the LSL Act we proceed on the basis that it appears His Honour found it to be. We say “it appears” as we note His Honour’s comments in paragraph 43 of his decision that “....to the extent that clause 38.3 incorporates” the LSL Act. We assume that as the Agreement extends to employees in the ACT it is in that respect His Honour accepted the LSL Act was incorporated. His Honour was correct to find he was bound to follow the decision of the Full Bench in McDonalds and no sufficiently persuasive submission was put to establish a basis that may have allowed him not to do so. We are not persuaded a sufficient argument has been made out to revisit the approach taken in McDonalds. 7 We do acknowledge however that there may be cases where the characteristics of the workplace and the composition of the workforce may require more than what that Full Bench indicated was adequate. This is not such a case.
 We accept the UNSW submission that there was sufficient evidence before His Honour to be satisfied the requirements of s.180(2) were met. In this respect we note the unchallenged evidence of Mr Ward that every employee has access to a computer and there was no evidence to suggest that any employee did not have access to their computer during the access period.
 We have not been persuaded that His Honour’s conclusion that the material referred to in clause 38.4(a) was not incorporated into the Agreement is erroneous. To adopt the NTEU submission is to place no weight on the express terms of clause 9(c) of the Agreement that provides as follows:
“Nothing in this Agreement will be taken as incorporating as a term of this Agreement any University policy, procedure or guidelines referred to in it.”
 In respect to this ground we adopt the submissions of the UNSW at paragraphs 36 to 47 of its written submission. A summary of those submissions is sufficient. The relevant ‘provisions’ are an Information Paper titled, “Long Service Leave - recognition of prior service” and an excerpt from clause 32 of the University of New South Wales General Staff Agreement 2003 (the 2003 Agreement). The Information Paper is a source of information that is expressed to “clarify whether prior service” is recognised by UNSW. The Information Paper contains the major heading “POLICY” under which the position of ‘Academic Staff’ is set out. It is implausible to contend that the parties intended to incorporate as terms of the Agreement, details of academic staff entitlements whose employment is not covered by the Agreement. It is also implausible to contend that the parties intended to incorporate clause 32 of the 2003 Agreement. To do so would introduce duplication of many of the provisions dealing with long service leave that are expressly dealt with in clause 38 of the Agreement.
 Finally we should observe that had we found error in His Honour’s finding that the material in clause 38.4(a) was incorporated then we would have also found that requisite access as required by s.180(2)(a) had been given. As has earlier been noted all employees had electronic access to the material which was located on the UNSW website and all employees had a computer from which the website could be accessed.
 The next grounds relate to the NTEU assertion that the Vice President was in error in finding that the requirements of s.180(5)(a) were met. This challenge relates to the obligation upon an employer to take all reasonable steps to ensure that the terms of an agreement and the effect of those terms are explained to the relevant employees.
 The NTEU again refers to clauses 38.3 and 38.4(a) and submits that the UNSW did not take any steps to explain the effect of those clauses. It follows, it submits, that UNSW cannot be taken as having satisfied s.180(5)(a). In addressing this ground of appeal reference was also made to a sign on bonus offered to certain employees. About this the NTEU submitted that the UNSW took no steps to explain how that bonus would be paid and to whom it would be paid. It contends that so far as this was a relevant consideration, the Vice President failed to have regard to it and as such fell into error.
 We should first indicate that it appears the NTEU did not submit to His Honour that the UNSW had failed to explain the effect of clauses 38.3 and 38.4(a). It raises this particular challenge for the first time on appeal. Its submission to His Honour was in different terms. To the extent on appeal it refers specifically to those two clauses in the context of this ground of appeal we are not inclined to accommodate that challenge. No basis was made out to persuade us this was a proper case in which to do so. 8 In passing, we note that comparable provisions were in the predecessor 2006 Agreement and there was no suggestion any issue about the way those terms operated had ever arisen.
 His Honour dealt with the challenge that was made by reference to the requirements of s.180(5)(a) in this way:
“ The NTEU contends that the University failed to adequately explain the terms of the Agreement, and the effect of those terms, as required by s.180(5)(a) because it failed to identify certain disadvantageous changes from the 2006 Agreement. Having regard to the evidence of Mr Ward, which I accept, none of the matters relied upon by the NTEU were matters of any great moment. UNSW provided substantial explanatory material. A practical approach needs to be adopted in relation to the obligation in s.180(5)(a). Obviously, the nature of the explanation provided to employees who will be covered by an agreement, and the steps that will constitute “all reasonable steps” will vary according to the circumstances of the employer and employees covered by the agreement and the complexity of the agreement.
 In this case the Agreement is lengthy and complicated. The obligation in s.180(5)(a) did not require UNSW to explain every single feature or every single clause in the Agreement. I am not persuaded that UNSW failed to comply with s.180(5)(a).”
 We can identify no error in His Honour’s approach. We agree with the UNSW submission that the obligation on an employer in s.180(5)(a) of the Act to explain the terms of the Agreement and the effect of those terms to employees does not require an explanation of every clause in the Agreement. These are not employees new to bargaining and it can be assumed they were well informed about the pre-approval steps needed to be taken to obtain FWA approval of the Agreement. The evidence certainly establishes the UNSW went into great detail to explain these matters and the content of the Agreement. Comparative schedules identifying all significant provisions were distributed and some 14 information sessions were conducted. Although we accept it is the actions taken by the UNSW to explain the Agreement to which s.180(5)(a) is directed, it would be unrealistic to ignore the active campaigns undertaken by the Appellant and the CPSU accompanied as they were by leaflets, emails and posters. These facts, and taking account of the composition of the workforce to be covered by the Agreement, could properly inform His Honour in his consideration of the requirements of s.180(5)(a). As for the sign on bonus His Honour was taken to the various documents and occasions where it was explained to employees. The evidence was adequate for His Honour to form the view that the requirements of s.180(5)(a) were met. No error has been established.
 The next grounds of appeal relate to s.186(3) of the Act which required His Honour to be satisfied the group of employees covered by the Agreement was fairly chosen. There are three aspects to these grounds of appeal. One relates to whether the clause is discrimatory, the next is to His Honour’s comments about whether the persons in question were employees and the third relates to the exclusion of these persons by virtue of the operation of clause 5.2 of the Agreement. That clause is in these terms:
“5.2 Exclusions from Agreement
(a) This Agreement does not cover:
(i) academic staff employed by the University;
(ii) a person employed as a fellow at the Kensington Colleges;
(iii) a person employed by separate legal entities controlled by UNSW;
(iv) a person engaged by the University as a trainee or a cadet to undertake a structured program of paid work and/or training pursuant to a training or similar agreement provided by a State or Federal authority or as a trainee or cadet under an Indigenous Program offered by Nura Gili at the UNSW; and ....”
 It is the exclusion which relates to Nura Gili trainees and cadets which is the focus of this challenge to His Honour’s approval decision. It is submitted by the NTEU that His Honour erred in finding that indigenous cadets performing work through the Nura Gili program were not employees. It also submits that there is no evidence that in performing the work over the long second semester break they were operationally or organisationally different to other employees performing the same work.
 The NTEU also submits that if the Nura Gili cadets are employees, performing the same work as non-Nura Gili cadets but are denied the benefit of all the terms and conditions in the Agreement, and the only reason for them not having the benefit of the agreement is the fact that they are placed within the Nura Gili cadetship program, such reason is unfair and discrimatory.
 His Honour dealt with this issue below in the following way:
“ Nura Gili is an organisation created by UNSW to administer programs for indigenous persons. It operates under a policy entitled “UNSW Indigenous Employment Plan 2007-2010” which at one point refers to “trainees” and “traineeships” and then states:
“Cadetships create opportunities for Indigenous students enrolled in full-time tertiary study to undertake work experience in their chosen discipline at UNSW and or other organisations during the long second semester break.”
 There is a long history of separate industrial arrangements for apprentices and trainees/cadets. The exclusion of trainees/cadets from the coverage of an agreement is not uncommon and such exclusion does not, of itself, lead to a conclusion that the group of employees covered by the agreement was not fairly chosen. The NTEU appears to accept that proposition. It makes a different point. The NTEU contends that non-indigenous full-time students who perform paid work for UNSW during the long second semester break will be covered by the Agreement but, by virtue of clause 5.2(a)(iv), indigenous full-time students who undertake work experience at UNSW during the long second semester break will not be covered by the Agreement leading to a situation where full-time students who perform work experience at UNSW as a paid employee during the long second semester break will be treated differently depending upon whether or not they are indigenous. Mr McAlpine for the NTEU did not press any contention that this involved adverse discrimination against indigenous persons. I accept without reservation that UNSW is strongly opposed to adverse discrimination on the basis race or ethnicity and did even conceive, let alone intend, that the exclusion in clause 5.2(a)(iv) would have an adverse discriminatory effect.
 As a matter of general law, mere “work experience” does not involve a contract of employment. That is, as a matter of general law, a full-time student who performs a period of “work experience” will not be an employee of the host employer unless there is there an agreement between the host employer and the student that constitutes a contract of employment. There can be no contract of employment unless there is the “mutuality of obligation” that is essential to existence of a contract of employment, including, relevantly, an obligation on the student to perform work during the period of work experience. 4 The approach of the High Court in Deitrich v Dare5 would suggest that, absent an express agreement to contrary, there is no contract of employment involved in period of “work experience”, even where some (modest) payment is agreed. Obviously, that position is subject to legislation regulating periods of “work experience” by full-time students. I can find no Federal or NSW legislation that would render a full-time student at UNSW performing “work experience” during the long semester break an employee.
 Thus, it would seem that, to the extent that a non-indigenous full-time student is performing work experience, they will not be an employee and therefore will not covered by the Agreement. To the extent that they are an employee this will only be because there is an express contract of employment. An indigenous full-time student is in exactly the same position. If such a student is engaged in mere work experience then the Agreement will not cover them. There is nothing to prevent UNSW entering an express contract of employment with an indigenous student in relation to a period that is described as “work experience” independently of any program run by Nura Gili in the exactly the same way that the UNSW may so engage a non-indigenous student.
 I am satisfied that the group of employees covered by the Agreement was fairly chosen.”
 First we do not accept that part of the NTEU submission which asserts the operation of the clause is discriminatory. That was not submitted below indeed the NTEU expressly denied the clause was discriminatory 9. It was never suggested throughout the bargaining process that the clause was discriminatory and the first the UNSW knew of this challenge was on appeal. We are not persuaded it is meritorious. In the event an argument was made out that this challenge had some merit we would have done no more on this appeal than rely on the provisions of s.253 of the Act. This section provides that a term of an enterprise agreement has no effect to the extent that it is an unlawful term. An unlawful term includes a discrimatory term.10
 The next finding made by His Honour was that it is not uncommon for an agreement to exclude trainess and cadets and such an exclusion in itself does not lead to a conclusion that the group of employees covered by the agreement was not fairly chosen. We do not understand the NTEU challenges that proposition.
 We accept that part of the NTEU submission which relates to His Honour’s comment about the persons referred to in clause 5.2(a)(iv) not being employees. Neither the NTEU or UNSW had contended for that finding before His Honour. However, accepting that his Honour should have concluded that cadets performing work through the Nura Gili program were employees does not mean their exclusion from the Agreement results in the group covered by it not being fairly chosen. We read clause 5.2(a)(iv) as excluding from coverage all employed trainees or cadets. It appears that His Honour also was of the opinion that if these persons were covered by the Agreement (and obviously they could only be so if they were employees) then the exclusion was an acceptable one. As this was never an issue during bargaining we accept the UNSW submission that the intention of the parties was that all such employees would be excluded from coverage under the Agreement. There was no evidence to suggest otherwise. This too seems to be the way in which His Honour, during the hearing, said he read the clause. He indicated that the clause reflected an intention to carve out cadets and traineeships “in toto, full stop”. 11 The UNSW agreed with that comment and the NTEU did not challenge it.
 To the extent the NTEU submission proceeds on the basis that there are non-Nura Gili cadets who are entitled to the benefits of the Agreement it appears there was no evidence there are any non-Nura Gili cadets (that is there were no other cadetship programs operated by the UNSW). To the extent there are other cadets the first part of the clause excludes them. Despite the error in His Honour’s finding about the status of the relevant persons we are not persuaded that in finding, as he did, the group covered was fairly chosen that His Honour was in error and it was this conclusion which s.186(3) required of him.
 Next it is argued His Honour was in error in concluding the Agreement passed the better off overall test. That test is contained in s.193 of the Act and the key parts of that section were reproduced by His Honour in an extract from his decision we set out below. The test is applied as at the time the application for approval was made. 12 For the purposes of applying the test the provisions of two enterprise awards were considered. The awards were the University of New South Wales General Staff Award 200313 and the University of New South Wales, Australian Defence Force Academy General Staff Award 200314 (the Awards).
 The NTEU submitted that the Agreement disadvantages employees in a number of ways. It submitted that the Vice President failed to take into account or give proper weight to the several provisions of the Agreement which were inferior to the counterpart provisions in the Awards.
 We reproduce here the comments made by His Honour about his approach to the better off overall test and related considerations.
“Better Off Overall Test
 The requirement in s.186(d) is that “the agreement passes the better off overall test.” Pursuant to s.189, FWA may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest but there was no argument in this case that the Agreement should be approved on that basis if it fails that test.
 The better off overall test (BOOT) is specified in s.193. The key provision is s.193(1) which provides:
“(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if FWA is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”
 Where, as here, employees are covered by a enterprise award with continuing operation rather than a modern award, the test in s.193(1) is applied by reference to that enterprise award.
 There were two reference instruments for the purposes of the BOOT test:
 The NTEU contends that the Agreement disadvantages employees in several ways. The main matters identified by the NTEU in that regard are:
 The NTEU relied on several other matters that are relatively minor.
 It is trite to observe that awards typically contain both monetary and non-monetary terms and conditions. Obviously enough, the BOOT calls for an overall assessment. Comparing monetary terms and conditions is, at the end of the day, a matter of arithmetic. There is an obvious problem of comparing apples with oranges when it comes to including changes to non-monetary terms and conditions into the “overall” assessment that is required by the BOOT. In such circumstances the Tribunal must simply do its best and make what amounts to an impressionistic assessment, albeit by taking into account any evidence about the significance to particular classes of employees covered by the Agreement of changes to particular non-monetary terms that render them less beneficial than the equivalent non-monetary term in an award. In my view, it may also be relevant to consider the terms of any existing agreement and whether there is a relevant change of position when compared to that existing agreement.
 Exhibits H and I are lengthy tabular comparisons between the Agreement and the two awards which identify an extensive list of ways in which the Agreement is more beneficial than each of the relevant award. Those documents do not refer to any disadvantages in the Agreement and the F17 Employer’s Declaration indicates that there are no terms and conditions in the Agreement that are less beneficial than equivalent terms and conditions in the reference awards. While I have no doubt that Mr Ward made that declaration in good faith, the NTEU had identified a number of respects in which the Agreement is less advantageous than each of the relevant awards.
 Whether the removal of the restrictions on fixed term employment is properly to be regarded as rendering the Agreement less beneficial to the extent to which the NTEU contends is debatable. It is true that under the Agreement a fixed term employee can be made the subject of a probation period and there can be early termination for misconduct or poor performance and that this will involve a reduction in job security for employees engaged under new fixed term contracts during the life of the Agreement. On the other hand, there is a reasonable argument that these changes will lead to a decrease in the use of casual employment and an increase in the use of fixed term employment (a benefit for an employee who can secure a fixed term contract in circumstances where they would otherwise only be offered casual employment) and an enhanced chance of a fixed term contract being renewed.
 Be all that as it may, and subject to concerns that I have arising from differences in the span of hours and the removal of a minimum period of engagement for casuals, the contention that the Agreement fails the BOOT in relation to any employee is, in my view, unsustainable. I circulated to the parties a copy of a comparison prepared by the Agreements Team of FWA. That analysis correctly identifies that every employee is substantially better off in monetary terms under the Agreement. Subject to the concerns I have identified, I am satisfied that every employee is better off overall under the Agreement. While I am prepared to accept that the matters relied upon by the NTEU do represent a species of disadvantage to some employees my assessment is that any such disadvantage is substantially outweighed by the monetary and non-monetary benefits conferred by the Agreement.”
 We first refer to the Vice President’s reference to the “existing agreement” which we take to be the 2006 Agreement. The UNSW accepts that s.193 does not require consideration of the terms of any existing agreement and whether there is a relevant change of position when compared to that existing agreement. However, as it correctly points out, no arguable basis has been established by the NTEU for concluding that his Honour approached the assessment of the better off overall test by reference to a comparison with the 2006 Agreement.
 The test, as the name implies, requires an assessment of the overall benefit to an employee employed under an enterprise agreement as compared to the relevant award. 15 This consideration does not require an assessment of the circumstances of each individual employee but, as s.193(7) allows, “... if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant award applied to that class , FWA is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee”.
 As His Honour was well aware the Agreement contained some provisions which may be considered inferior to the counterparts provision in the Awards and provisions which were superior. There is nothing unusual about that. What he needed to satisfy himself of was whether, weighing the Agreement provisions as a whole with those in the Awards, an employee is better off overall. This, in our opinion, is clearly what His Honour did.
 Contrary to the NTEU submission His Honour did not fail to take account of the provisions concerning fixed term appointments and the manner in which casual conversion was dealt with in the Agreement. It is fair to say that the provisions concerning fixed term employment feature large in the NTEU evidence and submissions. His Honour was well aware of the importance of this category of employment. As head of the panel of which the higher education industry was a part, his understanding of the importance, historically and currently, of this category of employee can rightly be assumed by us. What the real complaint is of the NTEU is that he did not place the same weight on what were said to be the disadvantages as it would have preferred. As for the NTEU submission about the manner in which His Honour dealt with minimum engagements of casuals and safe guarding the wages of employees as a consequence of working the span of hours in the Agreement no error is made out. His Honour was well aware of these provisions. In fact he raised them himself in the proceedings as matters about which he was considering that undertakings should be sought. His Honour was not required to comment in his decision about every single provision about which the NTEU, CPSU or UNSW called to their aid to bolster an argument for or against the better off overall test being met. What His Honour did say was adequate to indicate his reasoning process and how he came to be satisfied the test was met. Also, in this assessment, it should not be overlooked that His Honour sought and obtained a detailed comparison undertaken by the FWA agreement’s team. It was provided to the parties and His Honour informed them he would be taking it into account and gave them an opportunity to comment on it.
 The evidence before His Honour was substantial. The respective assessments made by the NTEU, CPSU and UNSW and the FWA agreement’s team were all considered by him. He was clearly aware of what were said to be the advantages and disadvantages and, in that context, the superior monetary entitlements were an unarguable advantage. No basis has been made out for us to undertake an assessment of the respective benefits and entitlements. No error has been identified in the way His Honour undertook that task. It is a discretionary exercise and one in which his discretion did not miscarry.
 The final ground of appeal concerns the undertakings which were given by the UNSW and accepted by the Vice President. Section 190 deals with undertakings that may be sought when a member of FWA has concerns an agreement does not meet the requirements of ss186 and 187. It reads as follows:
“190 FWA may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under section 185; and
(b) FWA has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) FWA may approve the agreement under section 186 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.
(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
FWA must seek views of bargaining representatives
(4) FWA must not accept an undertaking under subsection (3) unless FWA has sought the views of each person who FWA knows is a bargaining representative for the agreement.
(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.”
 His Honour sought and was given undertakings and about this consideration he said :
“ I was concerned that the greater span of ordinary hours under the Agreement has the potential to leave some employees worse off, notwithstanding the higher wage rates in the Agreement. This is because an employee who has the a large number of their ordinary hours rostered within the span in the Agreement but outside the span in the relevant award could end up being worse off through not receiving shift penalties that would be payable under the award.
 I was also concerned that the Agreement removes the award restriction on the minimum hours of engagement. The costs associated with travel to and from work can leave a casual employee disadvantaged if their engagement is for significantly less than the minimum period in the award.
 My concerns were met by an undertaking given by the UNSW, a copy of which is attached to the last page of the Agreement.”
 The NTEU submits His Honour was in error in that he failed to seek its view about the undertaking that was given by the UNSW. It submits that the undertaking was inadequate.
 In considering this ground of appeal we have taken into account the fact His Honour specifically raised with the parties his concerns about the matters which were ultimately the subject of the undertaking annexed to his decision. The transcript on the last day of hearing in particular contains numerous references to the undertaking His Honour was considering should be given by the UNSW. He said that he was inclined to approve the Agreement but with an undertaking and he sought the views of the parties about that undertaking. 16 His Honour concluded the hearing by indicating that if anyone had any views on the undertaking he had proposed they were to inform his chambers by a particular deadline.
 Both the NTEU and the UNSW made further written submissions. In the NTEU submission reference was made to the undertaking His Honour had foreshadowed on the last hearing date. In relation to casuals it submitted that the three hour minimum engagement provision in the Awards should apply and the only exemptions should be the same as those in the Awards. In relation to the span of hours clause it indicated it would not accept the test His Honour had proposed as a safe guard for employees. In relation to the FWA agreement’s team document it indicated it had no specific comments and the two observations it did make were of little significance. It indicated that no undertaking should be accepted as it would substantially change the Agreement. The UNSW also lodged written submissions in which it addressed the undertaking His Honour had proposed. It confirmed that it was prepared to give that undertaking.
 It would appear that about one week after the above submissions were received an email was sent from His Honour’s chambers to the solicitor for the UNSW setting out the undertaking that the UNSW needed to sign. The email was not sent to the NTEU (nor it appears to the CPSU or AMWU but neither of those bargaining representatives support this ground of appeal).
 We note that the Awards contain numerous provisions allowing for minimum periods of engagement of employees. Several provisions allow for a period of less than 3 hours. They also allow for parties to agree to lesser periods. This is not a case where the Awards prescribe for all casual engagements to be for no less than 3 hours. The Agreement, when now read with the undertaking, also provides for a mix of minimum engagements in identified circumstances. The undertaking was what His Honour believed would be adequate for the concerns he had to be met. As for the undertaking in respect of the safeguard as to earnings it is difficult to understand how the NTEU could genuinely object to it. Nonetheless, what is clear is that His Honour was of the opinion that undertaking met his concerns.
 There can be no doubt the NTEU clearly had an opportunity to comment on the subject matter of the undertaking in the hearing before His Honour. It also subsequently made written submissions about it. However, in failing to bring the undertaking to the attention of the NTEU, in the terms in which it was ultimately sought and given, s.190(4) was not complied with. In reaching this view we read the requirement in s.190(4) about seeking the views of the bargaining representatives to be seeking the views about the undertaking referred to in s.190(3). We read this undertaking to be the written undertaking of the employer.
 Accepting that His Honour was in error in not strictly complying with ss190(3) and 190(4) there can be no doubt of two things; that it was highly unlikely the NTEU would ever fully accept the terms of any undertaking and His Honour would have made the decision to approve the Agreement. This error of itself, and in the context of our rulings on each of the other grounds, is not of such significance to persuade us to revisit the approval of the Agreement. It is not a ground that warrants the grant of permission to appeal.
 The grounds of the appeal do not raise matters of such importance that enliven any public interest considerations. We are not persuaded the grounds warrant the grant of permission to appeal on the basis that the decision is attended with sufficient doubt to warrant its reconsideration or a substantial injustice may result if permission to appeal is refused. The appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Ms C. Howell of counsel for the National Tertiary Education Union.
Mr S. Meehan of counsel with Mr J De Flamingh, solicitor, for the University of New South Wales.
Mr M. Perica for the CPSU, Community and Public Sector Union.
Mr D. Wedgwood for the Australian Higher Education Industrial Association.
1  FWAA 9588
2 Ibid para 103 and s.201(2) Fair Work Act 2009
3 Ibid para 14
4 PN 37, PN109, PN115
5 Section 186(2)(a)
6 FWAFB 4602
7 See cases referred to in Transport Workers’ Union of Australia and Air Express Pty Ltd PR959284 at paras 14-15
8 Coulton v Holcombe (1986) 162 CLR 1,  HCA 33; University of Wollongong v Metwally [No.2] (1985) 59 ALJR 481 at 483.
10 Sections 194 and 195
12 Section 193(6)
15 Armacell Australia Pty Ltd  FWAFB 9985 at para 41
16 PN 2120 - 2130
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