Note: An appeal pursuant to s.604 (C2012/2551) was lodged against this decision - refer to Full Bench decision dated 12 April 2012 [ FWAFB 2206] for result of appeal.
 FWA 526
Fair Work Act 2009
Cimeco Pty Ltd
(AG2011/2473 and AG2011/2546)
DEPUTY PRESIDENT MCCARTHY
PERTH, 16 JANUARY 2012
Cimeco Pty Ltd North Western Australian Construction Projects Agreement 2011 and Cimeco Pty Ltd Midwest and Goldfields Regional Construction Projects Agreement 2011.
 On 14 September and 20 September 2011, Cimeco Pty Ltd (Cimeco) lodged Applications for Approval of two Enterprise Agreements (the Applications). Another application for approval of another agreement was also lodged by Cimeco on 14 September 2011 and is the subject of a separate decision.
 The Construction, Forestry, Mining and Energy Union (the CFMEU), The Australian Workers’ Union (the AWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) expressed concerns about the agreements meeting the requirements for approval. I shall refer to the three unions collectively as the Objectors.
 The concerns that the Objectors raised related to:
 The agreements provide in Clause 2, Parties to the Agreement, that the agreements are binding upon Cimeco and the employees of Cimeco performing work within the Area and Scope of the Agreements.
 The Area and Scope of Agreement is defined in Clause 3. They are identical other than for the area of operation. One agreement (AG2011/2473) (the North West Agreement) is to operate in the North Western Australia Region and the other is to operate in the Midwest and Goldfields regions of Western Australia (AG2011/2546) (the Midwest Agreement). Clause 3 of the Northwest Agreement provides:
“3 AREA 8. SCOPE OF AGREEMENT
a) This Agreement shall apply to all work undertaken by Employees of the Company when engaged to perform construction project works (i.e. works on or in the vicinity of a client construction site In connection with construction activities at the site) in the North Western Australia Region of Western Australia, as identified and specified in the regions outlined in Addendum A- Regional Development Regions of Western Australia, and who are employed In classifications set out In Clause 17- Hourly Rates of Pay and Clause 18- Classification Definitions.
b) This agreement excludes all plant maintenance related works Inclusive of plant modification, sustained capital works and shutdown, breakdown and outage works directly related to operating or brown fields plant works.”
 Addendum A of the North West Agreement provides:
“Where a project specific agreement applies, the rates payable under the specific project agreement shall apply.
This agreement shall not apply to those employees employed under the following project specific agreements:
Cimeco Pty Ltd Burrup Fertilisers Maintenance Shutdown and Plant Modification Agreement 2011.
Cimeco Pty Ltd CFMEU Gorgon Project Barrow Island Greenfields Agreement 2010.
Cimeco Pty Ltd Employee Collective Pluto Project Agreement 2009.
Cimeco Pty Ltd Marandoo Mine Phase 2 Project Agreement 2011.
Cimeco Pty Ltd Onslow Salt Wash Plant Upgrade Agreement 2011.
Cimeco Pty Ltd Pilbara Processing Plant (Dismantlement) Agreement 2011.
Cimeco Pty Ltd Sino Iron Construction Agreement 2009.
The Cimeco Pty Ltd North Western Australia Agreement 2011 shall apply to all work undertaken by Employees of the Company when engaged to perform construction project works (I.e works on or in the vicinity of a client construction site in connection with construction activities at the site) in the Regional Development regions of Western Australia as specified in the following map:” (map not attached).
 The classifications in Clause 17, Hourly Rates of Pay, include classifications under five broad groups viz:
(ii) Metal Trades;
(iii) Crane Operators;
(iv) Electrical Trades; and
(v) Plumber, Carpenter and Painter.
 Clause 18, Classification Definitions, defines the tasks undertaken in respect of each work group.
 The Applications state that there were no union bargaining representatives for the agreements but that there were five instruments of appointment appointing a bargaining representative. There were copies of notices of employee representation rights attached to the Employer’s Declaration in Support of Application for Approval of Enterprise Agreement (the Employer’s Declarations) and I presume that is what the Applications are intending to refer to in that regard.
 The Employer’s Declarations state that the agreement does not cover all of the employees of the employer. The explanation provided in the Employer’s Declarations for Fair Work Australia (FWA) to be satisfied that the groups of employees were fairly chosen are similar, if not identical. I will use the declaration for the North West Agreement:
“All eligible Cimeco employees engaged to perform construction project works (i.e. works on or in the vicinity of a client construction site in connection with construction activities at the site) in the North Western Australia Region of Western Australia, as identified and specified in the regions outlined in Addendum A- Regional Development Regions of Western Australia (see attached) will be covered by the agreement. It is a geographically distinct agreement which will operate to the exclusion of any project specific agreements operating in the area.”
 The steps the employer took to notify all relevant employees of the time and place at which the vote of employees was to occur for the making of the agreements was:
“All eligible employees received a Notice to Vote on 5 September 2011. This was given to the employees via email. This was followed up by phone calls to each employee to confirm receipt.”
 The steps taken to explain the terms of the agreements to relevant employees was:
“All employees received a copy of the draft agreement on the 23rd August, and two HR team members were present to explain the agreement. Two meetings were held on the day with the staff, and a third on the 24th August. The employees’ bargaining representative consulted with all eligible employees to ensure full understanding of the terms and conditions of the draft agreement. The HR team made themselves available on site for a few days, and afterwards throughout the bargaining period (via email and phone) to help answer any questions.”
 It was stated in the Employer’s Declarations in respect of details of the vote that five employees will be covered by the agreement, that five cast a valid vote and that five voted to approve the agreement.
The Objectors’ concerns
 The Objectors argue that for an agreement to be genuinely agreed to, all employees employed at the time who will be covered by the agreement must be given the opportunity to vote for its approval. They argue that only one agreement can apply to an employee at any one time and that where more than one agreement covers and may apply to an employee then the earliest agreement applies.
 The Objectors state that if an employee falls under the area and scope of the agreements as provided in Clause 3(a) and do not fall under the exclusions provided for in Clause 3(b) then that employee is covered by the agreement even though other project agreements identified in Addendum A might apply to the employee.
 Other arguments were raised directed at the capacity of an agreement to be genuinely agreed when only a handful of employees are involved in its approval and making where those employees are engaged in a limited number of classifications. I have dealt with this issue in the other decision I issued regarding the Solomon Agreement. 1
 The Objectors also argue that the group of employees that made the agreement were not fairly chosen. They say that Cimeco does not structure its operations geographically but these agreements give the impression that they do. Rather, the Objectors say that the operations of Cimeco are structured along the types of operations such as Concrete and Civil, Mechanical, Electrical and Commercial Building.
 The Objectors assert that Cimeco has endeavoured to throw a blanket over an area to cover work that may or may not materialise. They say that Cimeco has created artificial boundaries which have the effect of denying those that may work in those areas the right to collectively bargain.
 Cimeco submitted that the requirements for the agreements to be approved had been met and I should be satisfied of that. In addition to the Application and Employer’s Declarations, a statutory declaration made of Ms Adrienne McNamara was lodged.
 Cimeco stated that at the time of the vote for the North West Agreement the employees who voted for the agreement were working on the Esplanade Hotel Project in Port Hedland. That project is in the North West region of Western Australia. They say that the time at which it is determined, whether or not an employee is covered by an agreement, is the time at which an enterprise agreement is made. And in the case of the North West agreement that would be 13 September 2011.
 The Midwest agreement was made on 16 September 2011 and voted on by 14 employees, 10 of whom were working on the De Grussa Copper Plant Project located near Meekatharra in the Midwest region of Western Australia. The four other employees had been mobilised to work on the project from other sites they had been engaged on. There were no other projects on foot within the Midwest and Goldfields region at the time of the vote and hence no other employees were involved in approving the agreement, therefore no other employees could have been involved in the vote.
 Cimeco argue that the coverage of the agreements are a common class, namely employees involved in construction, and the terms of the agreements are similar to other agreements that have been made for specific projects.
 They argue that the agreements were genuinely made, that the employees involved in the votes were the only employees that could be involved and that they were thereby fairly chosen.
The Legislative Provisions
 I outlined the legislative requirements for approval of agreements in the Solomon decision. It is unnecessary that I repeat that outline.
 Essentially, the issues in contest involved with these two agreements relate to the coverage of the agreements and the application of the agreements.
 An employer may make an enterprise agreement with the employees who are employed at the time the agreement is made and who will be covered by the agreement. An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer and only one enterprise agreement can apply to an employee at any particular time. A number of agreements may cover an employee at the same time but only one enterprise agreement can apply to an employee at the one time.
 What the legislation provides is for flexibility by allowing employers and employees to have multiple instruments covering different or even the same operations with the terms and conditions applying to particular work for employees covered by the agreement, dependent on the scope and operation of the relevant instruments. The terms of a particular enterprise agreement will apply to an employee that may be covered by an agreement when it is made and there may be multiple enterprise agreements covering an employee with the terms of the enterprise agreement itself defining when the agreement applies.
 For a particular employee, an agreement may apply at some times and may not apply at other times. The determination for when it applies turns on the terms of the scope and coverage that the agreement itself provides.
 The nature and practices of the industry involved here and the circumstances surrounding the operations and practices of Cimeco at the time of the making of these agreements are influential in my considerations.
 The building and construction industry, especially in the resources sector, by its nature involves employment of various categories of employees for the duration of works involved in their classifications until that work is completed. Numbers of employees varies depending on the needs at a particular time. Work is performed on the particular construction sites and the employees that work on those sites may move from site to site. The construction sites may have specific enterprise agreements for those sites with their being an expectation that any employees that work on those sites have the conditions of the site apply to them.
 The practices in resource projects of any size or significance are usually for greenfields agreements to be struck before works commence. Practices vary from project to project with some projects having a greenfields agreement with each of the major unions and others have a comprehensive agreement with all unions involved. Where employees have been engaged for project agreements, they are generally made again sometimes with the scope limited to particular trades and occupations and sometimes with a more comprehensive coverage. It is widely accepted that each project is a genuine new business, activity, project or undertaking and hence greenfields agreements are often made. Where greenfields agreements are not made it is usually accepted that the employees for a particular project have been fairly chosen because of the distinct geographical or operational nature of the work.
 Here, Cimeco is involved in a number of projects and may be involved in others. The intent behind these agreements seems to be to have umbrella coverage for particular regions regardless of the project concerned involved but with specific exclusions for named projects.
 The question that first arises is what is the coverage of the agreements? The terms of the agreements do not make this as clear as it could be. Clause 3(a) uses the terminology that the agreements “applies to work undertaken by employees.” It does, therefore, not refer to employees or types of employees but to the work concerned. The work concerned is construction project works. Whilst the words “applies to” has the appearance of being an identification of the circumstances when the agreements are to apply to particular types of workers, it is actually a definition of what employees the agreements cover. Clause 3(a) seems to use the word “applies” when what it is actually doing is defining what the coverage of the agreement is. Whilst it appears tautological it is not, the agreements cover the work they are specified as applying to. That work is any work in the North West Region of Western Australia or the Midwest and Goldfields Regions of Western Australia. The Area and Scope Clause then states that the regions the agreements apply are those regions “as identified and specified in the Appendum A - Regional Development Regions of Western Australia”.
 The agreements go on to state that Appendum A specifies what those regions are. Firstly, the appendices state where the agreements do not “apply.” In both cases it specifies that the agreements do not apply where a specific project agreement applies. In the case of the North West agreement, seven different project agreements are then named. Secondly, the agreements specify that they shall apply to all work undertaken in the Regional Development areas identified in an attached map.
 I consider that what the Area and Scope clause actually does is to identify the coverage of the agreements as being the Regions on the map attached to Appendum A. What Appendum A also does is to identify when the agreement does not apply, namely when there is a site specific agreement.
 On this view it is clear that the agreements apply to any employees employed in the region including those employees that other agreements cover with those agreements having application to those employees. That is, any existing employees in the regions will, in my view, be covered by the agreement. However, the agreement does not apply to the vast majority of those employees by operation of Appendum A and indeed by application of s.58.
 Cimeco was therefore obliged to include all employees employed at any project in the regions the agreements will cover.
 It is clear that Cimeco employed employees in the North West Region and they were not notified of nor involved in the approving of the agreement. The North West Agreement was therefore not genuinely agreed.
 Cimeco says it only employed persons involved in the approving of the agreement for the Midwest and Goldfields Agreement. I consider that agreement was genuinely agreed. However, it is clear that the practice of Cimeco is to deploy employees from site to site. It is also clear that Cimeco wish to operate on both a site specific basis and on a geographical basis. In my view, given the history and practices of Cimeco and indeed their custom and practices for resource project construction work that for Cimeco to make an agreement of a geographical nature, it should include a much more representative group of existing employees for that group to be regarded as fairly chosen. In my view it is not sufficient in the circumstances here to involve those employees employed in the region concerned if there is a real prospect of other employees being deployed to work in that area or region.
 I therefore am not satisfied that in the case of the North West Agreement that the agreement was either genuinely agreed, or were the employees who approved the agreement fairly chosen. In the case of the Midwest and Goldfields Agreement, I do not consider that the employees who approved the agreement were fairly chosen.
 The applications for approval are refused.
Mr K Sneddon for the Construction, Forestry, Mining and Energy Union
Mr S Banovich for The Australian Workers’ Union
Ms N Ireland for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
Mr J Wilson for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
Mr T Davies on behalf of Cimeco Pty Ltd
1  FWAA 9314
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