DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Thiess Pty Ltd
(AG2016/7396)

Application for approval of the MTP Enterprise Agreement 2016. Whether scope is fairly chosen and whether there is genuine agreement.

[1] On 29 November 2016 Thiess Pty Ltd (Thiess) applied for the approval of the MTP Enterprise Agreement 2016 (the Agreement). There were no employee or union bargaining representatives. There are three employees said to be covered by the Agreement and they all voted in favour of the Agreement on 29 November 2016. The Notice of Representational Rights was issued on 7 November 2016 to the three employees.

[2] The Agreement is to cover employees who are engaged to work at or in connection with the Mt Pleasant Mine Project. Thiess has not yet been successful in obtaining a contract to engage in work at or in connection with the Mr Pleasant Mine. No Thiess employees are or have been working at the Mt Pleasant mine site. Thiess is hopeful of gaining such a contract and if they are successful some hundreds of workers are expected to be employed under the Agreement.

[3] Thiess submits that the three workers who voted for the Agreement were engaged at the time of the vote on the Agreement in work necessary for and preparatory to work at the Mt Pleasant Mine Project. Thiess identified in October 2016 that some of the equipment owned by Thiess which it may require for the Mr Pleasant Mine Project had not been used for some years and was not equipped to mandatory specifications. This included lack of appropriate sound attenuation equipment, handrails and steps, general maintenance requirements, and other regulatory requirements to enable the equipment to operate in NSW mines. Thiess determined that they would require three maintenance workers to carry out this work. Expressions of interest were sought from the maintenance team at the Brisbane based Thiess Component Rebuild Centre. The three employees were selected and allocated to the team from 7 November 2016. The team consists of two diesel fitters and one boilermaker. The three employees were provided with information about the requirements for the Mt Pleasant Mine Project and they went to sites at Nebo and Mt Thorley to inspect and repair equipment and create a schedule for further repair work. Thiess submits that this experience exposed employees to the mobilisation requirements and provided necessary training in the work that would continue to be required in the lead up to the commencement of operations at the Mount Pleasant Mine.

[4] The CFMEU raised a number of concerns about the Agreement. It was apparent from their correspondence that they had some particular knowledge about the Mt Pleasant Mine Project. I considered it necessary and appropriate to investigate further their allegations concerning the lack of genuine agreement. I considered it appropriate that I should better inform myself by allowing the CFMEU to be heard in respect to the matter.

[5] The CFMEU provided written submissions and Thiess provided written submissions in reply. A hearing was conducted on 30 January 2016.

[6] The CFMEU submitted that there were a number of issues with the bargaining process such that approval of the Agreement would be inconsistent with or undermine good faith bargaining. I am satisfied that the Notice of Representational Rights was provided to each of the three employees and that the content of the notice is compliant with the regulations. The F16 contained some contradictory answers concerning bargaining representatives. Thiess clarified that in fact no instruments of appointment were made and there were no bargaining representatives. Revised F16 and F17 Forms satisfy me of this. The scheme of the Act does not suggest that the absence of bargaining representatives is inconsistent with or undermining of good faith bargaining.

[7] The CFMEU submitted that the employees were not properly informed about the effect of the Agreement and they were not provided with copies of the incorporated Award. I am satisfied that the employees were properly informed of the effect of the Agreement and provided with access to relevant material including the incorporated Award. Thiess provide a revised F17 which satisfies me that these requirements were met.

[8] The CFMEU raised a number of concerns regarding unlawful terms, the BOOT and the NES. At the hearing I advised the parties that subject to receipt of appropriate undertakings I considered these matters resolved.

[9] The Agreement incorporates the Black Coal Mining Industry Award 2010. It is apparent that the intention of the drafters of the Agreement is to largely confine the alterations to the Award to minimum pay rates and allowances. The higher pay rates in the Agreement are designed to ensure that the rates in the Agreement are higher than the Award rate plus the allowances which are excluded. I consider that it is possible to envisage a scenario when a range of Award allowances might be applicable at the same time and an employee might not be better off overall in that scenario. Thiess agreed to provide an undertaking to overcome this concern. The circumstances where an employee would not be better off would not be common and hence the undertakings do not result in any significant alteration to the Agreement. The undertakings do not result in any financial detriment to an employee.

[10] The CFMEU correctly raised some concerns with what they described as the “make good” clauses in the Agreement. However, given the undertakings offered, I am not satisfied that these clauses have any work to do to ensure that the Agreement passes the BOOT at test time. They do have work to do to ensure that rates are adjusted over time and that Section 206 of the Act is met. I am satisfied that the clauses are appropriate for that purpose.

[11] Some of the provisions refer to matters being in accordance with the Award and the Act. The CFMEU correctly raised some concern about how these provisions may operate. For example, I am satisfied that the intention of the public holiday clause is to allow for reasonable refusal to work on a public holiday in the circumstances described in the Act, however, the drafting is unclear. I am satisfied that the intention of the drafters was to ensure that employees were entitled to the provisions of the Act or the Award whichever was more beneficial. Thiess agreed to provide undertakings to clarify this matter and that annual leave provisions, including for shiftworkers, are as per the Award. I am satisfied that this undertaking does not result in a substantial change to the Agreement and it does not result in any financial detriment to an employee.

[12] The Agreement contains a provision for an “all inclusive rate”. I was concerned that this provision was uncertain and left it to the employer to conduct the BOOT in setting these rates. The Agreement on its own terms must pass the BOOT as assessed by the Fair Work Commission at the test time. Thiess agreed to provide an undertaking which specifies how the “all inclusive rate” is calculated and to exclude overtime which is not part of the regular roster such that I can be satisfied that the BOOT is met.

[13] The CFMEU raised concerns about the provision which provides “employees may elect to cash out annual leave if they wish, subject to, and in accordance with, the provision of the Fair Work Act 2009 and or the Award (as applicable from time to time).” The CFMEU submit that the Agreement must include the specific requirements set out in Section 93(2) of the Act. It may be preferable for the Agreement to contain the actual terms so it is more accessible and understandable to employees and the employer but I am satisfied that the Agreement term does require the provisions set out in Section 93(2) to be met prior to any cashing out of annual leave.

Conclusion in respect to matters other than genuine agreement and fairly chosen.

[14] For the reasons set out earlier I am satisfied that the requirements in the Act for the approval of the Agreement are met other than the issues related to the scope of the Agreement being fairly chosen (Section 186(3) and (3A)) and the issue of whether there are other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees (Section 188(c)). I am satisfied that the issues of concern regarding the relationship to the NES and the BOOT are resolved by the undertakings provided by Thiess. Those undertakings do not result in any substantial change to the Agreement and do not result in any financial detriment to an employee.

The issues concerning genuine agreement and fairly chosen.

[15] The remaining issues of concern relate to the legitimacy of the Agreement being made with the three employees. At the conclusion of the hearing of this matter I advised the parties that, subject to receipt of the revised forms and the undertakings, this was the only outstanding issue and that I would consider the submissions made by the parties in respect to this issue and make a decision on that basis. There was no objection to this course of action. The basis of the attack on the legitimacy of the Agreement as it evolved from the submissions and the hearing can be described as follows:

a. The three employees are not employees covered by the Agreement.

b. The scope of the Agreement is not fairly chosen because the three employees engaged in preparatory maintenance work on the equipment which might be used at the mine in the future if Thiess gets the contract and the employees who may be employed at the mine or in connection with the mining operation as operators or maintainers are not, when taken together, operationally, organisationally or geographically distinct.

c. The scope is not fairly chosen because it is artificially selected to exclude bargaining a greenfields agreement with the CFMEU or to deny those who will be employed at the mine the opportunity to bargain. To approve an Agreement with this scope would be to undermine freedom of association and/or collective bargaining which is a good faith bargaining requirement under Section 228(1)(e).

d. There is not genuine agreement because the three employees had no real interest in the terms and conditions which would apply to the operators working at the mine and they had no real stake in the agreement as it did not change their actual conditions of employment.

[16] The CFMEU also submitted that the Agreement could not be approved because of Section 187(2) of the Act. I am satisfied that Section 187(2) is not relevant because there is no scope order in operation.

Are the three employees who made the Agreement covered by the Agreement?

[17] The CFMEU submitted that the three employees are not employees covered by the Agreement. Thiess say that this submission is misguided because the scope of the Agreement says that work “at or in connection with the Mt Pleasant Mine Project” includes “any work necessary for and preparatory to work at the Mt Pleasant Mine Project”. The parties did not add significantly to their written submissions on this point during the hearing.

[18] Section 53 of the Act provides that an Enterprise Agreement covers an employee or employer if the Agreement is expressed to cover (however described), the employee or the employer.

[19] Clause 3.1 of the Agreement sets out the description of the employees and the employer covered by it:

“3 Coverage

3.1 The Agreement covers and, subject to the provision of Part 2-1 of the Fair Work Act 2009 (Cth) (the FW Act), applies to:

(a) Thiess Pty Limited (The Company); and

(b) Employees of The Company who are engaged to work at, or in connection with, the Mt Pleasant Mine Project (including any work necessary for and preparatory to work at the Mt Pleasant Mine Project), and for whom classifications are contained in the Agreement (Employees).

3.2 The Agreement does not cover, or apply to, employees who are engaged to principally perform managerial, professional, supervisory and or administrative duties.”

[20] Thiess in their submission describe the work performed by the three employees as follows:

“13. During the last quarter of 2016, Thiess was working towards ‘Preferred Contractor’ status for the Mt Pleasant Mine Project. The project time line was tight and the equipment requirements were significant. In order to be in the best position to be able to deliver on the project, Thiess took action in late October 2016 in anticipation of it being appointed in late November 2016.

14. A key consideration for Thiess was the equipment list which had been compiled for the project. The equipment list identified equipment at a variety of different Thiess locations all over the country – from Prominent Hill in South Australia to its Nebo compound in North Queensland. Having reviewed the equipment list, Thiess immediately identified a number of challenges, including that:

(a) some of the equipment had been disused for long periods of time (up to four years);

(b) some of the equipment was not equipped to mandatory specifications, including for example:

(i) a lack of appropriate sound attenuation equipment having regard to the proximity of the project to the nearest town;

(ii) additional safety equipment requirements, such as handrails and steps;

(iii) general maintenance requirements, such as engine maintenance, tyre replacement and rim repairs; and

(iv) other regulatory requirements to enable the equipment to operate in New South Wales Coal Mines;

(c) some of the equipment had an unknown maintenance history and state of repair.

15. With an unknown but clearly significant maintenance and mobilisation lead-time due to the above factors, Thiess determined that a pre-mobilisation team was required.

16. Additional work requirements were also identified, including the timely formulation of site procedures such as safe operating procedures.

17. As a result, Thiess decided to appoint a pre-mobilisation team to perform the work identified above. A team of three was considered appropriate.

18. With a focus on mechanical maintenance work, the maintenance team at the Brisbane-based Thiess Component Rebuild Centre (TCRC) was targeted.

19. Expressions of interest were sought from the maintenance team at the TCRC on 28 October 2016. Three employees were selected during the week commencing 31 October 2016. The work requirements and the nature of the project were described to each of the three employees. The three employees transferred to the Mt Pleasant Mine Project pre-mobilisation team from 7 November 2016.

20. The team consisted of two diesel fitters and one boiler maker. While this was entirely consistent with the maintenance and mechanical requirements of the pre-mobilisation work, Thiess determined that the employees would also benefit from practical on-site training particularly preparatory requirements for mobilising equipment to site.

21. During the week, commencing on 7 November 2016, the Employees attended Thiess’ Brisbane Office to carry out an induction for their new roles. During induction:

(a) the Employees learnt about the Mount Pleasant Mine Project and the need for premobilisation activities; and

(b) the Employees’ role in the pre-mobilisation activities was explained to the Employees and an overview and schedule of the work required going forward was provided to the Employees.

22. On 14 November 2016, as part of the pre-mobilisation activities for the Mount Pleasant Mine Project, the Employees travelled to Thiess’ Nebo compound and the Burton Mine for a week to inspect and assess the state of repair of trucks (including the handrails, access steps, seating, truck body condition, fire equipment, tyres and rims) and other equipment for potential use at the Mount Pleasant Mine Project. The Employees inspected and completed condition reports for maintenance planning so that required repairs could be planned and coordinated in accordance with the Mount Pleasant Mine Project development schedule.

23. From 22 November 2016, the pre-mobilisation team was relocated to Mt Thorley to continue premobilisation preparation activities for the Mt Pleasant Mine Project. The purpose of the team’s work at Mt Thorley included:

(a) inspecting and repairing equipment so that it was ready, when required, for use at the Mount Pleasant Mine Project; and

(b) on-the-job training on mobilising the heavy mining equipment which would be needed for the Mt Pleasant Mine Project.

24. Thiess was satisfied that this experience would expose the employees to specific mobilisation activities including NSW-specific equipment specification regulatory requirements and afford the employees training in precisely the work that would continue to be required in the lead-up to commencement of operations at the Mount Pleasant Mine Project. The experience at Mt Thorley afforded the employees specifically relevant training in pre-mobilisation work.”

[21] There is no suggestion that the three employees were responsible for “the timely formulation of site procedures such as safe operating procedures”.

[22] For the following reasons I am not satisfied that the work performed by the three employees in the lead up to and at the time of the vote falls within the ordinary meaning of the words “work at, or in connection with, the Mt Pleasant Mine Project” read in conjunction with the words “including any work necessary for and preparatory to work at the Mt Pleasant Mine Project”.

•  Thiess has not secured work at or in connection with the Mt Pleasant Mine Project. It is hopeful of achieving a contract for such work and decided to undertake maintenance and planning for that eventuality.

•  The three employees have not been employed specifically for this purpose. The F17 Statutory Declaration confirms that the three employees are not casual or part time employees but are full time on-going employees of Thiess. They were already employees of Thiess and they will remain employees of Thiess regardless of whether Thiess does obtain a contract to perform mining work at the Mt Pleasant Mine Project or not.

•  The three employees were employed to perform, scope and schedule maintenance work on heavy machinery utilising their trade skills as boilermakers and diesel fitters. They performed this work prior to November 2016 and they have continued to perform this work after November 2016. The associated work described by Thiess related to training or familiarisation and planning and scheduling are normal tasks associated with the work of tradespersons.

•  It makes little difference to the employees what particular mine or civil construction project the equipment is to be used for. Tradespeople need to apply their skills to different equipment and different requirements. Obviously there are some regulatory requirements which vary depending upon the use the equipment is destined for but the tradespeople are expected to be able to meet these varying requirements. The change from the workshop to work on equipment in other locations is not a fundamental change in the employment.

•  The equipment is existing equipment owned or controlled by Thiess which has been utilised for other mining or civil construction work in the past. The requirement to maintain this equipment would exist at any time the equipment was required for further use. The possibility of the Mt Pleasant Mine Project may have influenced the timing of this particular maintenance but other business reasons could have arisen from time to time leading to the maintenance of the equipment.

•  If Thiess do not achieve a contract for work at or in connection with the Mt Pleasant Mine Project then the work the employees have performed could not reasonably be described as having been at or in connection with the project. The owners and managers of the Mine Project will not pay for the work performed by the three employees. If Thiess does not achieve the contract then the work could not in any way be described as necessary for work at the Mt Pleasant Mine Project. Nor could it reasonably be described as preparatory to work at the Mt Pleasant Mine Project. The work could be fairly described as the normal work of Thiess maintenance employees in maintaining equipment owned and/or controlled by Thiess.

[23] I am satisfied that the work would fall within the scope of the Agreement should Thiess obtain the contract but given all of the factors described above it would be more accurate to say that the employees who made the Agreement may be covered by the Agreement at some date in the future. It is not accurate to say that “the agreement has been genuinely agreed to by the employees covered by the agreement” as required by Section 186(2)(a). The Full Federal Court has recently found that the expression “covered by the agreement” in Section 186(2)(a) and Section 188 is about employees who are actually covered by the agreement and not those who would potentially or probably become covered by it at a date in the future.

[24] In Shop Distributive & Allied Employees Association v ALDI Foods Pty Ltd 1 Justice White of the Federal Court considered in detail the time at which employees were required to be “covered by the agreement” for the purposes of determining whether to approve an Agreement. Justice White and Justice Katzmann supported this construction of Sections 186 and 188 of the Act.

[25] Justice White at paragraphs [134] and [135] relevantly stated:

“134 The matters listed in s 188 to which the FWC is to have regard in determining whether there has been genuine agreement to an enterprise agreement seem, with the possible exception of (c), to be of an objective kind. Nevertheless, it is the genuineness of the agreement by particular persons which the FWC is to assess, these persons being the employees “covered by” the agreement. There is, accordingly, an inherent requirement in s 186(2)(a) and s 188 that there be such persons. That is to say, it is implicit in s 186(2)(a) that there be persons covered by the agreement whose genuineness in agreeing to it (on the basis identified in s 188) can be assessed by the FWC. Persons who will become covered by the agreement only at some time in the future do not answer that description, even if they did, by some means, vote to approve it.

135 Further, in my opinion, the expressions “will be covered” and “covered by” in the scheme established by Pt 2.4 are counterpoints. Sections 172 to 181 use the former expression because they are concerned with the sequence of events until an enterprise agreement is made and because a contemplated enterprise agreement cannot cover anyone until it is made. The immediate change to the present tense following the final step in the sequence, that is, the making of the agreement (s 182), is an indication that those whom it was previously contemplated would be covered by the agreement are now, on the making of the agreement, covered by it (subject of course to the approval the FWC and the commencement of operation of the agreement pursuant to s 54). The change in terminology occurs because the work done by the term “will be covered” is complete. Because the two expressions are counterpoints, the expression “who will be covered by the agreement” is a reference to those who, upon the making of the agreement, are covered by it and is not a reference to those who, at some future time will become covered by it.”

[26] I am not satisfied that Section 186(2)(a) is met because I am not satisfied that the employees who voted for the Agreement are in fact covered by it.

Was the group of employees covered by the Agreement fairly chosen? (Section 186(3) and (3A)

[27] During the hearing this was the main focus of the CFMEU’s submissions concerning the legitimacy of the Agreement. This question is only relevant if I am wrong in my finding that the three employees are not covered by the Agreement. The Agreement does not cover all employees of Thiess. In these circumstances one of the factors I must consider in determining whether the group is fairly chosen is “whether the group is geographically, operationally or organisationally distinct.”

[28] I am satisfied that the group is not geographically distinct. The three employees are not engaged at the mine site but rather they are engaged at the main workshop and at various sites where the equipment which could potentially be used at the mine site in the future are located. The other employees covered will work at or adjacent to the mine site. There are two geographical locations – the locations for the three employees and the location for the other employees who will be covered should the contract be secured.

[29] I am satisfied that the work at or in connection with the Mt Pleasant Mine Project is organisationally distinct. That is, Thiess would manage its contract, should it be achieved, for the mine project as a distinct project. However, I am not satisfied that the work of the three employees in maintaining existing equipment in advance of the achievement of the contract is organisationally distinct from the normal maintenance work of Thiess. It is not organisationally the same as the work at or in connection with the Mt Pleasant Mine Project. It is no different from other work which might be done to attract customers, seek contracts and maintain equipment. The inclusion in the scope of work necessary for and preparatory to work at the Mt Pleasant Mine Project means that the scope of the Agreement is not organisationally distinct if that expression includes the work of the three employees performing maintenance work on equipment prior to the securing of the contract for work at the Mt Pleasant Mine.

[30] For the same reasons that the scope is not operationally distinct. I accept that those who may work at or in connection with the Mt Pleasant Mine project engaged in operating the equipment in the mine or in maintaining the equipment are operationally distinct from other Thiess employees. However, they do not share that operational distinctiveness with those engaged in work necessary for and preparatory to work at the Mt Pleasant Mine Project if that expression includes the work of the three employees performing maintenance work on equipment prior to the securing of the contract for work at the Mt Pleasant Mine.

[31] Justice Buchanan in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd 2 made some oft quoted observations about the possibility that the scope of an agreement may be manipulated.

“20. Nevertheless, obviously questions may arise about the extent to which it is “fair” for a very small group of employees to fix the terms and conditions of a larger group of employees who may be engaged during a period of years into the future. Whatever position is taken, once an agreement is approved it endures for up to four years and no protected industrial action is possible during the term of an agreement. Future employees, therefore, have less (if any) opportunity to bargain. ….

33. There is no requirement that employees who vote to make an agreement must have been in employment for any length of time, and there is no requirement that they remain in employment after the agreement is made. Presumably, the presently employed members of such a group will act from self-interest, rather than from any particular concern for the interests of future employees. The potential for manipulation of the agreement-making procedures is, accordingly, a real one. However, no suggestion of that kind is made in the present case and the possibility may therefore be put to one side for the purpose of the discussion. That is an important consideration because it suggests, as the primary judge thought, that determination of whether the group of employees was fairly chosen in the present case needed to bring to account the business rationale for the choice, as well as deal with any possibility of unfair exploitation. It was not irrelevant in that assessment to bear in mind, as the primary judge said, that the agreement provided benefits, not detriments, for those to whom it would apply.”

[32] In the circumstances of this case I consider that the group has not been fairly chosen because I am satisfied that the selection of the group has been manipulated and it is not based on a clear or defensible business rationale. The inclusion in the scope of three existing employees of Thiess engaged in maintenance work on equipment which may be utilised for the project should Thiess achieve a contract for the project does not have a clear or defensible business rationale. The employees would be available to do the maintenance work whether or not there was an enterprise Agreement. There was no uncertainty about the capacity of the employees to undertake the work in the absence of the Agreement. There is no suggestion that the Agreement altered the conditions under which the work was performed or that there was any demand or need from either Thiess or the employees’ perspective to alter the conditions under which the work was performed. Thiess submitted that the employees were already employed and paid more than the Agreement would require. Given that the work is on Thiess owned or controlled equipment the existence or otherwise of the Agreement does not affect issues of access or certainty for Thiess or a third party.

[33] The Agreement utilises the Black Coal Mining Industry Award 2010 as the reference instrument. Almost all the wages and conditions in the Agreement come from the reference instrument. The coverage of that Award is based on employers of coal mining employees who are defined as follows:

“employees who are employed in the black coal mining industry by an employer engaged in the black coal mining industry, whose duties are directly connected with the day to day operation of a black coal mine and who are employed in a classification or class of work in Schedule A—Production and Engineering Employees or Schedule B—Staff Employees of this award;

(ii) employees who are employed in the black coal mining industry, whose duties are carried out at or about a place where black coal is mined and are directly connected with the day to day operation of a black coal mine and who are employed in a classification or class of work in Schedule A—Production and Engineering Employees or Schedule B—Staff Employees of this award; and

(iii) employees employed by a mines rescue service.”

[34] The normal maintenance work performed by Thiess in its workshops which are not at or about a mine or where employees duties are not directly connected to the day to day operations of a mine are covered by the Manufacturing and Associated Industries and Occupations Award 2010. If Thiess secures a contract for mining and maintenance at or in connection with the Mt Pleasant Mine Project then those employees performing the mining or maintenance work will be clearly covered by the Black Coal Mining Industry Award 2010. There are major differences between the two awards including in respect to redundancy entitlements and working hours. The three employees whilst engaged in normal maintenance work are likely to be covered by a completely different award to those who will be covered by the Agreement should the contract at the mine be secured by Thiess.

[35] This illustrates the lack of business rationale for the scope of the Agreement if it includes the three employees prior to the achievement of a contract for mining work.

[36] It is not necessary to consider the argument raised by the CFMEU that the scope of the Agreement is not fairly chosen because it is artificially selected to exclude bargaining a greenfields agreement with the CFMEU or to deny those who will be employed at the mine the opportunity to bargain. The decision of Justice Buchanan in CFMEU v John Holland quoted earlier suggests that this argument must be treated with caution.

Are there reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees? (Section 188(c))

[37] Again given my finding that the three employees were not covered by the Agreement it is not necessary to finally determine this matter. The three employees were already full time maintenance employees of Thiess. They were already paid more than the rates specified for tradespersons (level 3) in the Agreement. The Agreement does not offer any benefits over and above the Award other than the rates of pay. There is no evidence that the employees gained any benefit from voting for the Agreement. There is no certainty that Thiess would obtain a contract for work at the Mt Pleasant Mine and no certainty that if the contract was obtained that the three employees would work at the site. If those two eventualities came to pass it is possible that the working hours and rosters available at the site might result in some benefit to the three employees.

[38] Certainly the three maintenance employees had no stake or direct interest in the terms and conditions of the majority of potential employees who would be covered by the Agreement should Thiess get the contract. Those workers would be operators of the machinery at the mine. Thiess and the CFMEU estimated that there may be several hundred of these workers should Thiess get the contract.

[39] I consider that these factors would justify a finding that there are reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees.

[40] If it were necessary to determine the matter I would find that the selection of the three employees to participate in a ballot for the Agreement was a manipulation and that the outcome was not a genuine agreement.

Conclusion

[41] I am not satisfied that the employees who voted for the Agreement were covered by it. Section 186 (2)(a) is therefore not met and I cannot approve the Agreement. The Application for approval of the Agreement is therefore dismissed.

[42] If I am wrong about this then I am not satisfied that the scope of the Agreement was fairly chosen, having regard to the issue of geographical, operational and organisational distinctiveness and other factors. Section 186(3) and (3A) are therefore not met and I cannot approve the Agreement. I would also not be satisfied that the Agreement has been genuinely agreed to by the employees. If Section 188(c) is not met I could not approve the Agreement.

COMMISSIONER

Appearances:

Mr M Moy appeared for the Applicant.

Ms J Short appeared for the CFMEU.

Hearing details:

2017

Melbourne with video to Brisbane

January 30

 1   [2016] FCAFC 161.

 2   [2015] FCAFC 16.

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