FWAFB 2206
FAIR WORK AUSTRALIA
Fair Work Act 2009
s.604—Appeal of decision
JUSTICE ROSS, PRESIDENT
Appeal - s.604 Fair Work Act - meaning of ‘fairly chosen’ in s.186(3) - error of law - permission to appeal granted - appeal upheld - decision subject to appeal quashed - matter referred back to the primary decision maker.
 On 16 January 2012 Deputy President McCarthy rejected an application by Cimeco Pty Ltd for the approval of two agreements - the Cimeco Pty Ltd Midwest and Goldfields Regional Construction Projects Agreement 2011 (the Midwest Agreement) and the Cimeco Pty Ltd North Western Australian Construction Projects Agreement 2011 (the North West Agreement). Cimeco has appealed his Honour’s decision in respect of the Midwest Agreement. No challenge is made to his Honour’s decision in relation to the North Western Agreement. The Deputy President refused to approve the Midwest Agreement because he was not satisfied that the group of employees covered by the agreement was ‘fairly chosen’ within the meaning of s.186(3) of the Fair Work Act 2009 (the Act).
 The facts may be briefly stated. The employees covered by the Midwest Agreement are persons employed by Cimeco in the classifications set out in clause 17 of the agreement who are engaged to perform construction project works in a geographically distinct area. The geographically distinct area in question is that part of the Midwest and Goldfields Regions of Western Australia as identified in Addendum A to the agreement. So much is clear from clause 3 of the Midwest Agreement, which is in the following terms:
“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 Midwest and Goldfields Regions of Western Australia, as identified and specified in the regions outlined in Addendum A.”
 The Midwest Agreement is said to have been made on 16 September 2011 when 14 Cimeco employees voted to approve the agreement. At the time of the vote, ten of the 14 employees who voted were working on the De Grussa Copper Plant. The De Grussa Copper Plant is located near Meekatharra in the Midwest region of Western Australia and is within the geographical scope of the Midwest Agreement.
 The other four employees who voted to approve the agreement were employees who were ‘engaged to mobilise’ to the De Grussa Copper Plant but at the time of the vote they were working on the Marandoo Project. The Marandoo Project is located outside the geographic scope of the Midwest Agreement.
 At the time of the vote the De Grussa Copper Plant was the only site within the Midwest and Goldfields regions of Western Australia on which Cimeco had employees working and other than the 14 employees who voted to approve the agreement no other Cimeco employees working in the classifications in the agreement were working in the relevant geographic area and no other employees had been engaged to do so. 1 We return to the question of whether the Midwest Agreement was validly made later in our decision.
 Cimeco submits that his Honour misdirected himself in law and misapplied the test in s.186(3) of the Act. It is also submitted that his Honour’s decision is not consistent with the decision of the Full Bench in AMWU v Inghams Enterprises Pty Ltd 2. Before turning to the detail of the appellant’s submissions we propose to deal with the nature of the appeal and relevant statutory provisions.
 An appeal under s.604 is an appeal by way of rehearing and the tribunal’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3
 A member’s decision as to whether or not they are satisfied that the group of employees covered by the agreement was ‘fairly chosen’ involves a degree of subjectivity or value judgment. Hence, in a broad sense that decision can be characterised as a discretionary decision. 4 In Coal and Allied v AIRC the High Court addressed the concept of error in the context of an appeal from a discretionary decision, in these terms:
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King in these terms:
If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.” 5
 Section 186 of the Act provides when Fair Work Australia must approve an enterprise agreement, in the following terms:
“When FWA must approve an enterprise agreement—general requirements
(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) FWA must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.
Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.
Note 2: 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 (see section 189).
Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).
Requirement that the group of employees covered by the agreement is fairly chosen
(3) FWA must be satisfied that the group of employees covered by the agreement was fairly chosen.
(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Requirement that there be no unlawful terms
(4) FWA must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).
Requirement that there be no designated outworker terms
(4A) FWA must be satisfied that the agreement does not include any designated outworker terms.
Requirement for a nominal expiry date etc.
(5) FWA must be satisfied that:
(a) the agreement specifies a date as its nominal expiry date; and
(b) the date will not be more than 4 years after the day on which FWA approves the agreement.
Requirement for a term about settling disputes
(6) FWA must be satisfied that the agreement includes a term:
(a) that provides a procedure that requires or allows FWA, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:
(i) about any matters arising under the agreement; and
(ii) in relation to the National Employment Standards; and
(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.
Note 1: FWA or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).
Note 2: However, this does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).”
 The Tribunal’s first task under s.186(3) is to establish whether the agreement covers all of the employees of the employer(s) covered by the agreement. If all of the employees are covered then s.186(3A) is irrelevant but the Tribunal must still decide whether the group of employees covered by the agreement (ie. all of the employers’ employees) was ‘fairly chosen’. In some circumstances it may not be fair to choose all of the employees of an employer as the group to be covered by an agreement. 6 If all of the employees are not covered then the Tribunal must make a finding as to whether the group of employees covered by the agreement is geographically, operationally or organisationally distinct. Absent such a finding the Tribunal cannot properly perform its statutory task.7 Section 186(3A) provides that the Tribunal must take that matter (ie. whether the group is geographically, operationally or organisationally distinct) into account and give it due weight, having regard to all other relevant factors. Finally, the Tribunal must state its reasons for concluding that the group of employees either was or was not fairly chosen.
 At issue in these proceedings is the proper construction of the expression “fairly chosen” in s.186(3). The starting point is to construe the words according to their ordinary meaning having regard to their context and purpose.
 The words “fairly” and “chosen” have a variety of meanings, depending on the context. The Oxford Dictionary defines “chosen” to mean, among other things, “taken by preference, selected, picked out”. The word “chosen” in the context of s.186(3) simply means selected to be covered by the relevant agreement.
 The word “fairly” is derived from the adverb “fair” and is a word of wide import. What is fair in a particular context is largely a matter of impression and judgment. Of the various definitions of “fairly” in The Oxford Dictionary the most apt in this context are:
“by proper means, legitimately, impartially, justly”; and
“with due regard to equity, candidly, impartially; without undue advantage on either side.”
 It is also relevant to note that s.186(3) requires FWA to be satisfied that the group of employees covered by the agreement ‘was fairly chosen’. We agree with the observation of Lawler VP in Re ANZ Stadium Casual Employees Enterprise Agreement 2009 8 that:
“... the group of employees to be covered by a proposed agreement is ‘chosen’ when the employer and the main employee bargaining representatives agree on a particular scope or the bargaining representatives commence bargaining on a shared assumption as to scope (as is often the case when bargaining proceeds by reference to the terms of an existing agreement that is to be replaced by a proposed new agreement)... The time of the choosing is a factual issue to be determined in the usual way. The group of employees to be covered by a proposed agreement - the scope of the agreement - will typically be chosen at or shortly after the commencement of bargaining ...” 9
 Section 186(3A) is also relevant. In circumstances where an agreement does not cover all of the employees of the employer(s) covered by the agreement s.186(3A) imposes an obligation on FWA, in deciding whether the employees were ‘fairly chosen’, to ‘take into account’ whether the group of employees covered by the agreement is geographically, operationally or organisationally distinct. To take a matter into account means that the matter is a ‘relevant consideration’ in the Peko-Wallsend 10 sense of matters which the decision maker is bound to take into account. As Wilcox J said in Nestle Australia Ltd v Federal Commissioner of Taxation:11
“To take a matter into account means to evaluate it and give it due weight, having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.”
 Curiously the Act does not specify how the matters in s.186(3A) are to be taken into account. The context and legislative history are relevant. In terms of the context each of the characteristics identified in s.186(3A) has a degree of objectivity about them. The selection of the group of employees to be covered by an agreement on some objective basis (as opposed to an arbitrary or subjective basis) is likely to favour a conclusion that the group was fairly chosen.
 The legislative history of these provisions is also instructive. For example, the Workplace Relations Act 1996 (the 1996 Act) provided that collective agreements could be made covering a ‘single business’ or ‘part of a single business’. Section 322(3) of that act provided that ‘part of a single business’ included:
“(a) a geographically distinct part of the single business; or
(b) a distinct operational or organisational unit within the single business.”
 Hence, under the 1996 Act an agreement could be made in relation to a part of a business that was geographically, operationally or organisationally distinct, without any separate consideration of whether the group of employees covered by the agreement were fairly chosen.
 Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen.
 It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations.
 It is not appropriate to seek to exhaustively identify what might be the other relevant considerations. They will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal. The word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. It is also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant. We note that there is a suggestion to the contrary in the oral submissions put on behalf of Cimeco when counsel submitted that:
“It was an erroneous approach to introduce the identification of the persons who were relevantly employed at the time of the making of the agreement for the purposes of testing the group chosen.” 12
 To the extent that it is suggested that the interests of the excluded employees are irrelevant we reject that submission. In evaluating whether the group to be covered by the agreement has been fairly chosen it is entirely appropriate to have regard to the consequences of that choice, that is, which employees have been excluded from the agreement.
 In circumstances where FWA has made a ‘majority support determination’ or a ‘scope order’ during the bargaining process for the agreement this will be relevant to the determination under s.186(3) of whether the group covered by the agreement was ‘fairly chosen’. This is because one of the requirements of which FWA must be satisfied before making a majority support determination or a scope order is that ‘the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen’ (see s.237(2)(c) and 238(4)(c)). 13
 In the context of this matter his Honour had regard to the nature and practices of the industry concerned and the past practices of Cimeco. 14 As noted in the CFMEU’s Outline of Submissions (at paragraph ) it was Cimeco’s practice to transfer its employees from site to site between geographic regions.15 In our view, such matters are clearly relevant and it was appropriate for his Honour to take them into account.
 We now turn to the submissions advanced in support of the appeal.
 There are two limbs to Cimeco’s contention that his Honour fell into legal error. First, Cimeco submits that his Honour did not have regard to s.186(3A) because in deciding whether the group of employees covered by the agreement was fairly chosen he did not take into account the fact that the group of employees in question is geographically distinct. In the course of oral argument counsel for Cimeco advanced the following submission:
“If one goes back to the test in section 186(3) and 186(3A), his Honour was required to take into account - which means to give due weight - the question of whether the group chosen was geographically, operationally or organisationally distinct. So the first step is, it was required of his Honour to identify that this was a geographically distinct area. His Honour was required to give due weight that the group constituted employees who would be employed in a geographically distinct area ... We say he did not and he did not then determine why the group so chosen was not fairly chosen.” 16
 Counsel relied on the judgment of her Honour Katzmann J in CFMEU v FWA in support of this submission. In that matter her Honour concluded that the majority of the Full Bench had fallen into jurisdictional error in deciding to approve an agreement in circumstances where the majority had failed to make a finding as to whether the group of employees covered by the agreement was geographically, operationally or organisationally distinct. As no finding was made and as the decision of the majority did not mention these matters her Honour concluded that the majority had not considered the issue.
 The circumstances in this case are quite different to those present in CFMEU v FWA. It is apparent from his Honour’s decision that he was well aware of the geographically distinct coverage of the agreement. At paragraphs - his Honour says:
“ 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 contends that in paragraphs  and  his Honour was referring to the North West Agreement. This is said to be so because the Midwest Agreement did not exclude any employees in that region by operation of Addendum A and, as the Deputy President noted, the evidence was that all employees who would be employed at any project in the identified region were covered and voted to make the Midwest Agreement.
 We reject that contention. The decision subject to appeal must be read as a whole and considered fairly. As Kirby J observed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang 17:
“The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.”
 As we have noted, his Honour’s decision deals with applications for the approval of two agreements. It is apparent from his Honour’s use of the plural ‘agreements’ and ‘regions’ in paragraphs - that he was referring to both of the agreements before him. It is also apparent that when his Honour refers to the site specific agreements in paragraph  he is referring to the North Western Agreement.
 His Honour was also aware of the significance of s.186(3A). At  of his decision his Honour says:
“I outlined the legislative requirements for approval of agreements in the Solomon decision. It is unnecessary that I repeat that outline.”
 The decision referred to dealt with an application by Cimeco for the approval of the Cimeco Pty Ltd FMG Solomon Project Construction Agreement 2011. At paragraph  of that decision his Honour says:
“FWA must also be satisfied that the group of employees covered by the agreement was fairly chosen (s.187(3)). If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct (s.187(3A)).” 18
 Further, it is apparent from the transcript of the proceeding before his Honour in relation to the Midwest Agreement that he was acutely conscious of his obligations under s.186(3A) and of the judgment of Katzmann J in CFMEU v FWA. The following exchange between Mr Davies, then representing Cimeco, and his Honour is particularly relevant:
“... if I might now turn to group fairly chosen. Section 186(3) of the Fair Work Act provides that, “Fair Work Australia must be satisfied the group of employees covered by the agreement was fairly chosen”. And subsection (3)(a) which is an addendum inserted late in the legislative piece provides that:
‘If the agreement does not cover all of the employees of the employer or employers covered by the agreement Fair Work Australia must in deciding whether the group of employees covered was fairly chosen take into account whether the group is geographically, operationally, or organisationally distinct.’
So, your Honour, whilst those three criteria aren’t the only criteria that the Tribunal is permitted to taken into account in making its decision about whether or not the group is fairly chosen, they are clearly significant and relevant considerations.
THE DEPUTY PRESIDENT: Well they must be taken into account, those.
MR DAVIES: They must be taken into account. Yes, that’s correct.
THE DEPUTY PRESIDENT: That’s where Justice Katzman found a flaw in the process that the Full Bench undertook, that I understand of her decision anyway.
MR DAVIES: Yes, your Honour, and the emphasis that they’re required to be taken into account was also made in United Firefighters’ Union v Metropolitan Fire and Emergency Services Board (2010) FWA FB 3009, where the Full Bench stated that there’s a particular focus on geography, operation or organisation, however a group can be fairly chosen even if one of those criteria is not met.” 19
 We reject the first limb to Cimeco’s contention that his Honour fell into legal error.
 The second limb of Cimeco’s contention relates to paragraph  of his Honour’s reasons. At paragraph 39 his Honour says:
“ 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.”
 Cimeco submits that his Honour had regard to an erroneous consideration, namely a requirement that a number more than the existing employees in the geographically distinct group at the time be included and involved. It is submitted that this amounted to an error of law given that all of the existing employees who were to be covered by the agreement were ‘included’ in the geographically distinct group at the time the agreement was made and were ‘involved’ in that they participated in the making of the agreement.
 We agree with the proposition that paragraph  of his Honour’s decision discloses error. The error is apparent in the statement 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’. This statement is erroneous because an agreement can only be made by a vote of the employees who will be covered by it. A ‘much more representative group of existing employees’ cannot vote to make a geographically distinct agreement unless at the time of the vote they will be covered by that agreement.
 Subsection 182(1) deals with when a single enterprise agreement (that is not a greenfields agreement) is ‘made’:
“If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”
 Relevantly, an agreement such as the Midwest Agreement is made when a majority of the employees of the employer that ‘will be covered by the proposed agreement’ vote to approve the agreement.
 The expression ‘will be covered by the agreement’ in this context does not indicate future likelihood rather it expresses a determinate or necessary consequence. As Katzmann J observed in CFMEU v FWA 20:
“Objectively, the intention of the legislature in using the expression was to ensure that the employer could only make an agreement with those employees who were named or described in the agreement and whom the agreement purported to cover.”
 In dealing with this issue we have had regard to the CFMEU’s contention that, properly characterised, his Honour’s conclusion was that having regard to Cimeco’s operational practice the group covered by the agreement was not fair or to put it another way, the geographical boundary was artificially and too narrowly drawn. The difficulty with the CFMEU’s contention is that the characterisation posited is not reflected in paragraph  of his Honour’s decision.
 We are satisfied that his Honour made an error of law. We will grant permission to appeal, uphold the appeal and quash his Honour’s decision. Before turning to the appropriate disposition of this matter we wish to make two further observations relating to the submissions advanced on behalf of Cimeco.
 The first matter is the submission that the decision subject to appeal is not consistent with Full Bench authority. This point is developed at paragraph  of the appellant’s written submission:
“The fact that in the future more employees would be employed in the chosen group does not render the groups unfairly chosen.”
 This proposition is said to be derived from the decision of the Full Bench in AMWU v Inghams Enterprises Pty Ltd 21. In our view, the decision in Inghams turns on its own facts and circumstances and is not authority for the general proposition advanced on behalf of the appellant. This is apparent from paragraph  of the Full Bench’s decision:
“ In the circumstances, we are satisfied the group of employees covered by the Somerville Agreement was fairly chosen and that we should not further deal with the other issues raised in our previous decision. We are satisfied the group of employees covered by the Somerville Agreement was fairly chosen because we are persuaded that the two employees who made the Somerville Agreement are part of the maintenance group of employees at the Somerville site, that the group of employees covered by the Somerville Agreement is the maintenance employees at the Somerville site and that that group is operationally distinct.”
 The assessment of whether the group of employees covered by the agreement was fairly chosen will turn on the facts and circumstances in each case. It is erroneous to seek to elevate the conclusion in Inghams to a statement of general application.
 We also note that the circumstances in this case are quite different from the circumstances in Inghams. In that case, at the time the agreement was made, only two persons had been employed in the operationally distinct group covered by the agreement. In the present matter Cimeco employs a significant number of employees on sites outside the geographical scope of the Midwest Agreement and has an operational practice of transferring its employees from site to site between geographic regions. 22
 The second matter we wish to address concerns whether the Midwest Agreement was made in accordance with the Act. Fair Work Australia is not empowered to approve the Midwest Agreement unless it was made in accordance with the terms of s.180 and s.182(1) of the Act. 23
 As we have already noted, fourteen Cimeco employees voted to approve the Midwest Agreement on 16 September 2011. Hence, in the usual course, the agreement would be taken to have been ‘made’ on 16 September 2011. But at the time the Midwest Agreement was purportedly made four of the Cimeco employees who voted to approve the agreement did not fall within the area and scope of the Midwest Agreement as set out in clause 3(a) of that agreement.
 Counsel for the appellant contended that the task of identifying who will be covered by the agreement is ‘in a sense a factual exercise’. 24 The four Cimeco employees employed on the Marandoo Project were included in the vote because at that time they had been ‘mobilised’ to go to the De Grussa Copper Plant. It was put to counsel that the expression ‘will be covered’ means those actually falling within the coverage clause at the time of the vote as opposed to those it was anticipated would be covered by the agreement on the basis that they had been ‘mobilised’ to perform work in the region covered by the agreement. Counsel responded to this suggestion in the following terms:
“One runs the risk then of an argument that there’s not been a genuine agreement because you’ve actually excluded people from the voting process, people that you’ve identified who are going to be because - they’re mobilising. If you know these people are going to - they will be covered and you exclude them from the vote, then you run into an argument that the agreement hasn’t been properly made, there’s no genuine agreement because you’ve excluded a group of people who are to be covered. Just from a factual point of view, in our respectful submission, the suggestion which appears to have been taken up by his Honour that because it was anticipated that at a future point, employees who were working on other projects, who were employees of this company working on other projects outside of the area - the fact that at some future point they are to be deployed, mobilised in and work at Meekatharra - that, in no way, could affect, in our respectful submission, either of the two questions: namely, was the group that was geographically distinct fairly chosen and it would not affect in any way the genuine making of the agreement because all those persons who had been identified as who would be covered participate in the agreement-making process.” 25
 We do not find counsel’s submission persuasive. As we have previously mentioned the expression ‘will be covered by the agreement’ in s.182(1) does not indicate future likelihood but rather expresses a determinate or necessary consequence.
 It follows that the four employees working on the Marandoo agreement were not entitled to vote to approve the Midwest Agreement because at the time of the vote they did not fall within the area and scope of the agreement.
 But in the particular circumstances of this case the erroneous inclusion of these four employees does not invalidate the making of the agreement. All fourteen employees voted in favour of approving the agreement and, importantly, all of the employees who will be covered by the agreement (ie. the ten employees employed at the De Grussa Copper Plant) voted in favour of approving the agreement. Accordingly the agreement was made on 16 September 2011. 26 We note that the situation would have been quite different if, for example, there were 14 employees covered by the agreement but only ten were given an opportunity to vote. Even if all ten voted in favour of approving the agreement it is unlikely that the agreement would be held to have been validly made.
 For completeness, we note that the question of whether any failure to comply with a provision in Part 2-4 of the Act is fatal to the approval of an agreement will depend on the application of the approach set out in Project Blue Sky v Australian Broadcasting Authority 27 to the particular circumstances. In Project Blue Sky the majority of the High Court held as follows:
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.” 28
 In this regard the broad purpose of Part 2-4 of the Act is to facilitate the making of a democratic and informed decision on whether the agreement should be made. 29
 Finally, we turn to the disposition of the appeal. Given the relevance of Cimeco’s operational practice and his Honour’s knowledge of the practices in the relevant industry we have decided to refer the matter that is the subject of the appeal to Deputy President McCarthy for determination, pursuant to s.607(3)(c)(i) of the Act.
H.J. Dixon SC and B. Miles for Cimeco Pty Ltd.
J. Nicholas and K. Sneddon in house counsel for the Construction, Forestry, Mining and Energy Union and others.
1 See generally the witness statement of Adrienne Mary McNamara dated 24 October 2011.
2  FWAFB 6106.
3 This is so because on appeal FWA has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at  per Gleeson CJ, Gaudron and Hayne JJ.
4 Ibid at -.
5 Ibid at  citations omitted.
6 Re ANZ Stadium Casual Employees Enterprise Agreement 2009  FWAA 3758
7 CFMEU v Fair Work Australia (2011) 195 FCR 74 at -.
8  FWAA 3758
9 Ibid at -
10 Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24.
11 (1987) 16 FCR 167 at 184; cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at  and by Katzmann J in CFMEU v FWA (2011) 195 FCR 74 at .
12 Transcript 14 March 2012 at 132.
13 Re ANZ Stadium Casual Employees Enterprise Agreement 2009  FWAA 3758
14 See paragraph - of the decision subject to appeal.
15 Also see Appeal Book at pp18, 34-35 and 37.
16 Transcript of proceeding 14 March 2012 p108-110.
17 (1996) 185 CLR 259 at 291.
18 The misdescription of the relevant sections is clearly just a clerical error.
19 Transcript 15 November 2011 paragraph 151-157.
20 (2011) 195 FCR 74 at .
21  FWAFB 7283.
22 See Appeal Book pp18, 34-35 and 37.
23 See CFMEU v Fair Work Australia (2011) 195 FCR 74 at  per Katzmann J.
24 Transcript 14 March 2012 at paragraph .
25 Ibid at paragraph 
26 We note that our conclusion in this regard is consistent with the first Full Bench decision in AMWU v Ingham  FWAFB 6106.
27 (1998) 194 CLR 355. See AMWU v Inghams Enterprises Pty Ltd  FWAFB 6106
28 Ibid at  per McHugh, Gummow, Kirby and Hayne JJ. See also Tasker and others v Fullwood and others  NSWLR 20
29 See CFMEU v FWA (2011) 195 FCR 74 at .
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