[2019] FWC 6496

The attached document replaces the document previously issued with the above code on 18 September 2019.

Certain catchwords were repeated on the first page of the decision. Those repeated words have been removed.

Associate to Deputy President Boyce

Dated 18 September 2019

[2019] FWC 6496
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.185—Enterprise agreement

Sodexo Remote Sites Australia Pty Ltd T/A Sodexo Remote Sites
(AG2018/3064)

DEPUTY PRESIDENT BOYCE

SYDNEY, 18 SEPTEMBER 2019

Application for approval of the Sodexo Remote Sites (Offshore Operations) Enterprise Agreement 2018 – referral from Full Bench – extension of time, all reasonable steps, genuine agreement.

[1] On 6 July 2018, Sodexo Remote Sites Pty Ltd (Applicant) lodged an application for approval of a single enterprise agreement titled the Sodexo Remote Sites (Offshore Operations) Enterprise Agreement 2018 (2018 Agreement) with the Fair Work Commission (Commission). The Agreement was made (by way of majority employee vote approving the Agreement) on 18 June 2018.

[2] The matter was originally heard before Commissioner McKenna, who dismissed the approval application on the basis that it was lodged out of time, contrary to s.185(3)(a) of the Fair Work Act 2009 (Act1. An appeal of that decision was upheld on 7 February 20192, and the matter was remitted to me by the Full Bench for rehearing.3 It was allocated to my Chambers on 11 February 2019.

[3] The original directions made by me in the matter (on 19 February 2019) were extended by all involved (with my leave) for various reasons. Witness evidence was ultimately heard on 13 May 2019 (via video-link to Perth), and closing oral submissions were heard in Sydney on 18 July 2019.

[4] Permission for the Applicant to be legally represented was granted in accordance with s.596 of the Act on the basis of complexity and efficiency (i.e. having regard to the long history of the matter, its remittal from a Full Bench, and the issues of law involved). Such permission was not opposed.

[5] The Construction, Forestry, Mining, Maritime and Energy Union (CFMMEU), and the Australian Workers’ Union (AWU), requested to be involved and heard in the matter. Permission in this regard was not opposed by the Applicant at the directions hearing on 19 February 2019. 4 I further note that the CFMMEU and AWU were granted permission to be involved at the hearing before Commissioner McKenna, and before the Full Bench on appeal. I granted permission for the CFMMEU and AWU to be involved generally in this matter pursuant to s.590 of the Fair Work Act 2009 (Act) on 19 February 2019. Such permission was granted on the basis of the clear ability for the CFMMEU and the AWU to assist the Commission in the determination of the issues arising in this matter (given their history of involvement to date), and on the basis that such permission was not opposed by the Applicant.

[6] In passing, I note that the Applicant, by way of written submissions dated 4 April 2019, sought to traverse the permission previously granted to the CFMMEU and the AWU, and have such permission to be involved limited to arguments about award coverage. This change of position was not pressed orally (or even raised) at the hearing of evidence on 13 May 2019, but was again pressed by the Applicant during closing written and oral submissions.

[7] In my view, any limitation as to the CFMMEU’s and AWU’s involvement in these proceedings should have been raised by the Applicant at the initial directions hearing on 19 February 2019. The CFMMEU and the AWU have, quite rightly, conducted themselves in these proceedings on the basis of no relevant limitation applying. The limitation raised by the Applicant would have required the Commission to determine the issue of award coverage as a threshold issue, and then revisit again union involvement in the matter depending upon the outcome of that threshold issue. It could only result in delay, the matter being part-heard, and/or witnesses having to potentially give evidence on two separate occasions. In view of the foregoing, I reject the Applicant’s contention that a limitation ought be placed upon the involvement or submissions of the CFMMEU and AWU in these proceedings.

[8] At the hearing, the Applicant was represented by Mr B Avallone of Counsel (instructed by Mr T Lang and Mr J Evans of Piper Alderman lawyers). The CFMMEU was represented by Mr L Edmonds, CFMMEU Legal Officer (Maritime Union of Australia Division). The AWU was represented by Mr Z Duncalfe, AWU National Legal Officer.

Sodexo’s (Applicant’s) business in Australia

[9] The Applicant is (relevantly) in the business of providing hospitality and/or facility management (including cleaning) services in remote offshore locations (being fixed, floating and non-propelled rigs and platforms (including drilling)) (Sites) conducted by companies operating in the “offshore” oil, gas and/or exploration industries. 5

Background

[10] The 2018 Agreement replaces the Sodexo Remote Sites (Offshore Operations) Enterprise Agreement 2013 (2013 Agreement), which nominally expired on 24 October 2017.

[11] The Applicant agreed to commence bargaining for a proposed enterprise agreement, to replace the 2013 Agreement, by sending out to relevant employees a Notice of Employee Representational Rights (NERR) on 12 January 2017. The number of relevant employees who received this NERR on 12 January 2017 was 39. 6

Absence of bargaining representatives

[12] Although there is evidence that five employees represented themselves (and purportedly some other employees) during bargaining, none of these employees appointed themselves, or were appointed by other employees, as “bargaining representatives” (in writing) in accordance with the requirements of s.176(c) of the Act. In other words, there were no written instruments of appointment for any bargaining representatives, and thus no recognised bargaining representatives, for the purposes of Part 2-4 of the Act.

[13] There is no suggestion by the CFMMEU or the AWU that they were bargaining representatives (default or otherwise) of any relevant employee/s. Nor is there any suggestion that the CFMMEU or AWU had any member/s relevantly employed by the Applicant who would be covered by the proposed enterprise agreement (during bargaining or at the time any proposed enterprise agreement was made).

[14] The Applicant conducted bargaining meetings in respect of a proposed enterprise agreement with relevant employees, as follows:

  24 January 2017 — 10 employees in attendance;

  12 February 2017 — four employees in attendance;

  20 February 2017 — four employees in attendance; and

  9 May 2017 — one employee in attendance. 7

First Agreement approved

[15] On 9 May 2017, the Applicant emailed relevant employees to be covered by the proposed enterprise agreement a copy of minutes of a meeting held on 9 May 2017 between three management representatives and one employee (Mr Willem Jansen) (Meeting Minutes May 2017). 8 The Meeting Minutes May 2017 state that Mr Jansen was representing himself at the meeting. My observation of the Meeting Minutes May 2017 is that they are scant in detail, and go no way towards explaining the content of the Agreement or the effect of the terms of the Agreement. Rather, they are better described as brief notes of proposed changes to the 2013 Agreement, as discussed at a meeting on 9 May 2017.

[16] On 23 June 2017 relevant employees to be covered by the proposed enterprise agreement (to replace the 2013 Agreement) were emailed a copy of the proposed enterprise agreement to be voted upon, along with details of the vote to be conducted on 1 and 2 July 2017. The evidence is that the Applicant itself held no further discussions or meetings with relevant employees to be covered by the proposed enterprise agreement, nor did the Applicant distribute any further documentation to relevant employees, explaining the content of the proposed enterprise agreement or the effect of the terms of the proposed enterprise agreement. Indeed, the evidence is that post 9 May 2017, to the end of the access period on 30 June 2017, the only communication to relevant employees was the distribution of the Meeting Minutes May 2017.

[17] On 2 July 2017, relevant employees voted by majority to approve the proposed enterprise agreement. It was lodged with the Commission for approval on 16 July 2017 (First Agreement). At the time of the vote on 2 July 2017, relevant employees to be covered by the First Agreement had risen from 39 to 44. 9 Twenty-three (of 44) employees voted in respect of the First Agreement, with 14 voting to approve it.10

First Agreement filed with Commission for approval but later withdrawn

[18] After lodgement, the First Agreement was withdrawn from the Commission by the Applicant, prior to its approval being determined, on 16 January 2018. An email on that day was sent to relevant employees advising them of the withdrawal of the First Agreement, and the intention of the Applicant to re-commence bargaining for a further proposed enterprise agreement (Second Agreement). 11 The email did not advise employees why the First Agreement had been withdrawn from the Commission. Further, relevant employees were not consulted as to the Applicant’s decision to withdraw the First Agreement from the Commission.

[19] By way of Memorandum dated 23 January 2018, relevant employees were advised that the First Agreement was withdrawn from the Commission by the Applicant because “we [Sodexo] wish to make some changes to the Agreement”.

Second Agreement voted down by employees

[20] Ms Jeanette Murray (Human Resources Business Partner – Oil and Gas, Sodexo Australia Pty Ltd) gave evidence that between 24 and 25 January 2018 she communicated with relevant employees on Sites by way of attendance at meetings onsite, telephone calls, emails directly to employees, and/or emails to the manager onsite (the latter which Ms Murray understood, as a normal business practice, would be distributed by those managers to relevant employees). 12 According to Ms Murray, the purpose and substance of this communication was to “discuss the withdrawn agreement and the steps Sodexo was going to take to bring an amended agreement back to vote”.13

[21] Ms Murray’s evidence is that the Applicant made the decision to withdraw the First Agreement due to issues surrounding the Applicant not employing any employees in trades classifications covered by the First Agreement, thus creating issues or concerns (in the Applicant’s view) as to its approval, including from a “genuine agreement” perspective. 14 However, an email from the Chambers of Deputy President Kovacic, dated 9 January 2018, raises “a number of serious doubts” surrounding the issue of genuine agreement at large.15

[22] On 21, 24 and 25 February 2018, the Applicant distributed (via email) a Question & Answer sheet (Q&A Sheet) to nominated persons on relevant Sites. 16 Such nominated persons (usually a chief steward, facilities manager or team leader) were directed to distribute the Q&A Sheet/s across their Site to relevant employees to be covered by the Second Agreement.17

[23] In her email of 21 February 2018, Ms Murray requests that nominated persons return signed sheets evidencing that the Q&A Sheet was distributed to relevant employees as directed “so that we can demonstrate to Fairwork [sic] that this information has been shared”. 18 The Applicant did not tender into evidence copies of any signed sheets that were returned.

[24] When questioned during cross-examination by Mr Edmonds, Ms Murray confirmed that the Applicant did not propose to tender returned signed sheets into evidence, stated that some signed sheets were returned, she could not recall checking the signed sheets that were returned, but in any event the signed sheets that she did review did not contain signatures of all employees to whom distribution had purportedly occurred. 19

[25] Between 26 February 2018 and 2 March 2018, Ms Murray emailed a copy of the Second Agreement to nominated persons on Sites for distribution to employees. 20 During this period, the only evidence of Ms Murray holding a meeting with employees is on one Site, the Yolla Offshore Gas Platform, on 28 February 2018.21

[26] The changes between the First Agreement and the Second Agreement were the removal of trade classifications, the inclusion of a nominal expiry date, and the removal of a clause relating to a changing basis of employment. 22 These were in addition to the changes made between the 2013 Agreement and the First Agreement.

[27] Between 7 March and 14 March 2018 Ms Murray engaged and communicated with Mr Harwood (Varanus Island Site), Mr Casey (5006 Site), and Ms Acosta (Varanus Island site) relating to questions raised by Mr Hardwood, and to determine if there were any concerns in relation to the Second Agreement by Mr Casey or Mr Acosta. 23 I note that these communications concerned employees on only two of the Applicant’s (at that time) seven Sites.

[28] On 14 March 2018, Ms Murray emailed a copy of the Second Agreement and voting instructions to nominated persons on the Sites for distribution to employees. For employees who were not present on the offshore Sites, Ms Murray emailed employees individually, and spoke to them on the telephone. 24 No documentation was tendered by the Applicant as to individual employees receiving a copy of the materials emailed to nominated persons (usually a chief steward, facilities manager or team leader).

[29] On 21 and 23 March 2018, Ms Murray emailed relevant employees two memorandums. These memorandums set out the basic history of the bargaining process to date, reiterated voting procedures, and set out in three dot points the changes referred to in paragraph [26] above between the First Agreement and the Second Agreement (i.e. not between the 2013 Agreement and the Second Agreement). 25 Despite the memorandum of 21 March 2018 stating “[b]elow is a summary of the Changes that were made between the SRS Offshore 2013 [enterprise agreement] and the current Offshore 2018 Agreement [Second Agreement] that we are taking to vote”, no such summary was contained in either of the 21 or 23 March 2018 memorandums.

[30] A vote on the Second Agreement was conducted between 24 and 26 March 2018. At the time of this vote, relevant employees to be covered by the Second Agreement had risen from 39 to 76. 26 Thirty-five employees voted against the approval of the Second Agreement, with thirty-two voting in favour (9 employees did not vote).27 It was therefore not approved by a valid majority of employees.

Second Agreement approved by valid majority of employees on second vote round

[31] The Applicant sought a further vote of relevant employees on the Second Agreement, in exactly the same form (apart from some changes to numbers in the table of contents). 28

[32] Between 12 and 22 April, various Sites, and thus relevant employees of the Applicant, fell out of and into coverage of the 2013 Agreement (and thus coverage under the Second Agreement). 29

[33] Ms Murray issued (via email) a memorandum to relevant employees updating them on next steps towards a second vote on the Second Agreement. 30 This memorandum did not contain any explanation of the Second Agreement, or the differences between it and the 2013 Agreement, or the differences between it and the applicable modern award.

[34] Between 21 May and 8 June 2019, Ms Murray visited the Prelude and 5006 sites (two of the applicable (and relevant) seven or eight sites being run by the Applicant at that time) and held telephone conferences with “a number of offshore employees”, “employees on the 5006 site”, and “employees from each site who were on R&R at the [relevant] time”. 31

[35] On 9 June 2018, Ms Murray emailed employees voting instructions for the second vote on the Second Agreement, along with a copy of the Second Agreement. Whilst Ms Murray states that this email “describ[es] the effect of the 2018 Agreement [the Second Agreement] in comparison to the terms that employees were on at that time”, it does not. Indeed, this email makes no reference to any differences between existing terms and conditions of employment, and the Second Agreement. 32

[36] A second vote on the Second Agreement was conducted between 16 and 18 June 2018. At the time of the vote, relevant employees to be covered by the Second Agreement had risen from 76 to 77. Sixty-one employees voted to approve the Second Agreement, with ten voting no, and six abstaining. 33

[37] The Second Agreement was lodged with the Commission for approval on 6 July 2018, being 18 days after the end of the voting period on 18 June 2019, or 4 days out of the 14 day time limit (s.185(3) of the Act).

Request for extension of time to lodge agreement approval application with the Commission

[38] I accept the evidence of the Applicant identifying the delays associated with the proper execution of documents offshore (for lodgement with the approval application with the Commission), and Ms Murray’s travel to offshore locations during the period post the vote on 18 June 2018. I also note that the delay was only 4 days. I therefore find it fair to exercise my discretion to extend the time for the filing of the approval application in this matter to 6 July 2018.

The Commission’s role in approving enterprise agreements

[39] In Newlands Coal Pty Ltd v CFMEU,34 the Full Bench summarised the Commission’s role in determining whether an enterprise agreement should be approved as follows:

“[33] FWA does not have a general discretion under the Act to determine whether an enterprise agreement should be approved. Rather, s.186 imposes an obligation on the tribunal to approve an agreement if a valid application for approval of the agreement is made under s.185 and the requirements of ss.186 and 187 are met.

[34] Broadly, the directions of s.187 involve examining the steps followed in the making of the agreement and the lodging of the application. Section 186 broadly involves the content of the agreement. Essentially, the role is one of examining whether the procedures followed leading up to the agreement being made were in accordance with what the Act requires and whether the content of the agreement satisfies certain conditions that the Act imposes.

[35] There is also a requirement for FWA to consider whether the agreement contains unlawful matters. What is an unlawful matter is defined by s.194. Additionally, and despite the requirements of s.186, Fair Work Australia may refuse to approve an agreement if a term of the agreement would mean compliance with that term would involve a breach of a Commonwealth law (s.192). There is no general role for the Tribunal to examine the validity of provisions in the agreement.

[36] The tribunal has no general nor specific power to rectify matters in the agreement if the terms of the agreement do not meet the requirements of the Act. The tribunal can accept undertakings but those undertakings can only be accepted if they are regarding concerns over the meeting of the requirements of s.186 and s.187.

[37] In summary, the role of FWA is to decide on whether the prescribed rules for conduct and procedures have been followed in the making of the agreement and if an agreement is made did the parties agree to things which an agreement can be about and are the terms agreed sufficient to satisfy the tests set out in the Act”. 35

Legislative requirements

[40] Section 188 of the Act expands upon the meaning of “genuinely agreed” in s.186(2)(a).

[41] The Commission must approve a proposed enterprise agreement if it is satisfied that each of the requirements set out in s.186 and s.187 of the Act are met. If the Commission has a concern that the agreement does not meet those requirements, it may exercise its discretion to approve the agreement if it is satisfied that an undertaking it meets the particular concern. 36

[42] Section 188(a)(i) of the Act provides that for an enterprise agreement to have been genuinely agreed to by the employees (as required by sub-s.186(2)(a)) the Commission needs to be satisfied (amongst other things) that sub-s.180(2), (3), and (5) of the Act have been complied with. Section 188(c) requires satisfaction as to there being “no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees”.

[43] Section 180(5) of the Act requires that the employer must “take all reasonable steps” to ensure that the terms of the agreement and the effect of those terms are explained to the relevant employees.37

[44] In The Maritime Union of Australia v Northern Stevedoring Services Pty Ltd,38 the Full Bench discussed the construction of the expression “all reasonable steps” in the following manner:

“[33] The expression “all reasonable steps”, and the case authorities concerning that and similar expressions were discussed at length in the decision of the Industrial Relations Commission of NSW in Court Session Bluescope Steel Ltd v The Australian Workers’ Union, New South Wales.39 The following propositions may be derived from the Court’s analysis:

  reasonable steps are what a reasonable man or woman would regard as being reasonable steps in the circumstances which apply;

  the obligation to take “reasonable steps” depends on the particular circumstances existing at the time the obligation arises; and

  a requirement to take all reasonable steps does not extend to all steps that are reasonably open in some narrow or theoretical sense (such as, for example, matters not directly within the particular knowledge or experience of a relevant party).

[34] Additionally in Parland Pty Ltd & Ors v Mariposa Pty Ltd40 the Tasmanian Supreme Court said, in relation to a requirement for a party to use its best endeavours to achieve a particular object, that a failure to take a particular step had to be assessed by reference to its materiality to the failure to achieve the relevant object. The Court said:

‘In any event quite apart from authority it would seem to me to be an untenable proposition that a party could be held to have failed to satisfy a condition requiring it to use its best endeavors in relation to an application because it failed to take some particular step if in fact the application would have been unsuccessful even had that step been taken.’

[35] That proposition appears to us to be equally applicable to consideration of whether an obligation to take all reasonable steps has been complied with”.

[45] In the Federal Court first instance decision in Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd,41 Flick J stated that the nature of the task of the Commission under s.180(5) of the Act, and other terms requiring its satisfaction or otherwise about a state of affairs, is to make a broadly-based value judgment.42

[46] Justice Flick said that in respect of the requirements established by s.180(5) of the Act:

“[103] …The requirement imposed by s.180(5) to ‘take all reasonable steps to ensure that…the terms of the agreement and the effect of those terms, are explained’ is an important obligation imposed upon an employer to ensure that employees are as fully informed as practicable. The requirement is not a mere formality. Whatever steps may be necessary will depend upon the facts and circumstances of each particular case: but those steps are not satisfied by a person reading – without explanation – the terms of an agreement to an employee”.43

[47] In One Key Workforce Pty Ltd v Construction Forestry Mining and Energy Union (One Key44, the Full Court stated that the matters in s.180(5) of the Act were matters to which the employer was required to attend but were not jurisdictional facts for the purpose of the exercise of the Commission’s approval powers.45

[48] The Full Court in One Key went on to hold that a condition precedent to the exercise by the Commission of its jurisdiction under s.186 of the Act to approve an enterprise agreement was its satisfaction that the employer had complied, amongst other things, with s.180(5) of the Act. The Full Court held that satisfaction as to whether s.180(5) had been complied with involved an evaluative judgment as to whether “reasonable steps” were taken by the employer, and on the issues of compliance with s.180(5), and the requirement for “genuine” agreement, stated:

“[105] Furthermore, like many of the pre-approval requirements, satisfaction as to whether s 180(5) has been complied with involves an evaluative judgment, including because an assessment is to be made as to whether “reasonable steps” were taken by the employer. As Bromberg J said in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union (No 2) [2016] FCA 2; (2016) 259 IR 164 at [75], in a passage cited by the primary judge at [119]:

These are difficult questions, upon which reasonable minds might sometimes (perhaps often) differ. The legislature’s intent was evidently that they be dealt with — for the benefit of employees and employers both — by independent specialists and experts, through the process of Commission scrutiny. ...

[112] It is common ground that the Commission was never told what was said to the relevant employees. It was simply told that they had been given an explanation of the terms of the Agreement and the effect of those terms. In effect, this amounted to little more than a self-serving statement that the employer had complied with its obligation under the Act. OKW contended that the fact that it made such a statement in a statutory declaration was significant. It is not. As the CFMEU argued, whether all reasonable steps were taken to ensure that the effect of the terms of the Agreement was explained in an appropriate manner is a question of substance, not form. The recital of a conclusion on the very question the Commission was required (through an evaluative process) to determine is not, without more, a sufficient basis for the satisfaction of the statutory test. In other words, a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach a state of satisfaction. OKW submitted that if the Commission had erred in this respect, it was an error in fact finding or an error in process, which would be an error within its jurisdiction. We reject this submission. In order to reach the requisite state of satisfaction that s 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement. It is true that the Act does not expressly say that. But the question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act; it may also be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39–44 (Mason J).

[113] A consideration of the subject-matter, scope and purpose of the relevant provisions of the Fair Work Act indicates that the content of the explanation and the terms in which it was conveyed were relevant considerations to which the Commission was bound to have regard. The absence of that information meant that the Commission was not in a position to form the requisite state of satisfaction. Put differently, without knowing the content of the explanation, it was not open to the Commission to be satisfied that all reasonable steps had been taken to ensure that the terms and their effect had been explained to the employees who voted on the Agreement or that they had genuinely agreed to the Agreement.

[114] The following considerations point inexorably to that conclusion.

[115] The Commission was required to be satisfied that OKW had taken “all reasonable steps to ensure” that both the terms and the effect of the terms had been explained to the relevant employees as an element in the inquiry as to whether “genuine” agreement had been obtained from them. The agreed purpose of the obligation imposed on employers by s 180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.

[116] In order for the employer to comply with the obligation it must take into account the particular circumstances and needs of those employees, including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative. That is made explicit in s 180(6). How could the Commission decide whether the steps the employer had taken were “all reasonable steps” unless it knew what the employees had been told before they cast their votes? Without knowing the terms in which the explanation had been conveyed how could the Commission form an opinion on the sufficiency of the explanation, particularly having regard to the considerations mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine agreement had been reached without having evidence upon which it could answer both these questions?

[141] Turning then to the language utilised in ss 186(2)(a) and 188(c), the word “genuinely” in the phrase “genuinely agreed”, indicates that mere agreement will not suffice and that consent of a higher quality is required. We reject OKW’s contention that the phrase is only directed at requiring an absence of fraud, coercion or duress in the process of employees providing their agreement. The word “agreed” on its own, suffices to achieve those ends. The word “genuinely” must be given some additional work to do. A court construing a statutory provision must strive to give meaning to every word of it: Project Blue Sky at [71]. The limits OKW seeks to put on para 188(c) are too narrow. The requirement for genuine agreement in the Fair Work Act prescribes some, but not all, factors that must be taken into account. In this respect, in contrast to its predecessor, s 170LT(6) of the Workplace Relations Act, paras 188(a) and (b) direct the Commission’s attention to a number of discrete matters. Paragraph 188(c), however, it is not at all prescriptive.

[142] Paragraph 188(c) is cast in very broad terms. It is intended to pick up anything not caught by paras (a) and (b). Thus, any circumstance which could logically bear on the question of whether the agreement of the relevant employees was genuine would be relevant. One obvious example is the provision of misleading information or an absence of full disclosure (see, for example, Re Toys “R” Us (Australia) Pty Limited Enterprise Flexibility Agreement 1994 (1995) 37 AILR 3-068 (Print L9066) (C No 23663 of 1994)). Another is the likelihood that the relevant employees understood the operation of the various awards that would be affected by the agreement and the extent to which the wages and working conditions for employees under each of those awards would change, for better or worse, under the terms of the agreement. Thus, if we be wrong to conclude that the Commission is bound by s 180(5) to consider the content of the employer’s explanation of the terms of the Agreement and their effect, in order to be satisfied that the Agreement was “genuinely agreed to” having regard to s 188(a)(i), then for similar reasons we would hold that this was a matter which was not only relevant to the question raised by para 188(c), but was a mandatory consideration”.

[49] On the issue of the classification coverage of employees’ voting, the Full Court in One Key stated:

“[155] Where employees working in few occupational classifications consent to an agreement which covers numerous other occupations or other occupations in many industries beyond their own, an explanation of the terms of the agreement and their effect may fall short of providing an adequate basis for the formation of genuine consent. The employees who voted may be indifferent to the impact of an agreement on other employees or prospective employees in occupational classifications outside their own training or experience. As Buchanan J observed in John Holland (Besanko and Barker JJ agreeing), in those circumstances the employees will presumably act out of self-interest (at [33]) with the possible result that “it may not be fair for an enterprise agreement made with three existing employees to cover a wide range of other classifications and jobs in which they may have no conceivable interest” (at [83]).

[156] Therein lies the concern. The legislative objective of achieving “fairness through an emphasis on enterprise-level collective bargaining” could be undermined if the employees who vote on the agreement have no basis for appreciating its nature and terms. What is required by s 186(2)(a) is genuine agreement. To construe that requirement as mandating an informed and genuine understanding of what is being approved is consistent with the text of the provision (as defined) and accords with its underlying purpose.

[157] Ordinarily, non-greenfields agreements are made with the participation of the employees who are representative of the range of employee classifications covered by the enterprise agreement. The capacity to provide consent based upon a true understanding of the consequences of the proposed agreement across the breadth of classifications covered is likely to be adequate, including because representatives of each classification or classificational grouping will be involved. While it is correct to say, as OKW submitted, that the group of employees who vote are not required by the Fair Work Act to be representatives for, or agents of, the wider group of employees who may ultimately be covered by the agreement, the fact that the group does not broadly reflect the occupational scope of the proposed agreement restricts the terms and conditions in the agreement for which the group can genuinely speak”.

[50] Ultimately, the Full Court in One Key concluded:

“[172] Nevertheless, the primary judge was correct to find that the Commissioner fell into jurisdictional error by failing to have regard to the content and terms of the explanation OKW purportedly provided the employees before they cast their votes. In addition the Commissioner’s decision was affected by jurisdictional error because he failed to appreciate that, in determining whether the relevant employees had genuinely agreed to the Agreement he needed to consider whether they were likely to have understood its terms and effect”.

Contentions of the CFMMEU and the AWU

[51] In opposing the approval of the Second Agreement, the CFMMEU and AWU raised the following issues (in summary):

a) non-compliance with s.173 of the Act, in that (it is contended):

i. bargaining for the First Agreement ended upon a valid majority of employees approving the agreement by way of vote on 2 July 2017;

ii. further or in the alternative, bargaining for the First Agreement ended upon it being lodged for approval with the Commission on 16 July 2017;

iii. the Applicant’s decision to commence bargaining for the Second Agreement (post the valid majority employee vote approving the First Agreement and/or the Applicant’s withdrawal of the First Agreement approval application from the Commission) triggered a new “notification time” for the purposes of the s.173(2) of the Act. Given the Applicant did not issue a new NERR at this new notification time, it failed to comply with s.173(1) of the Act;

iv. bargaining for the Second Agreement ended upon a valid majority of employees voting not to approve the Second Agreement on 26 March 2018; and/or

v. the Applicant’s decision to again commence bargaining for the Second Agreement (post it being voted down by employees) triggered a new notification time for the purposes of the s.173(2) of the Act. Given the Applicant did not issue a new NERR at this new notification time, it failed to comply with s.173(1) of the Act;

b) non-compliance with ss 180(2) and 180(3) of the Act in relation to the period leading up to the second vote on the Second Agreement (i.e. the access period for the second vote of the Second Agreement was six days, not seven days as required). Relevant voting information, and a copy of the Second Agreement, was provided to relevant employees on 9 July 2018, and voting to approve the agreement commenced on 16 July 2018;

c) non-compliance with the better off overall test (BOOT) in that the Second Agreement (as approved by a valid majority of employees on 18 July 2018) fails to make relevant employees better off overall when compared to the Hospitality Industry (General) Award 2010 (Hospitality Award);

d) non-compliance with the BOOT in that the Second Agreement (as approved by a valid majority of employees on 18 July 2018) fails to make relevant employees better off overall when compared to the Maritime Offshore Oil and Gas Award 2010 (Maritime Award);

e) non-compliance with s.180(5) of the Act, in that the Applicant failed to take all reasonable steps to ensure that the terms of the Second Agreement (as approved by a valid majority of employees on 18 July 2018), and the effect of those terms, were explained to relevant employees having regard to the particular circumstances and needs of employees; and

f) the Second Agreement was not genuinely agreed by relevant employees by reference to ss 188(1)(a) and 188(1)(c) of the Act, especially having regard to the objections raised under (b) and (e) above, and the expansion of the size of the cohort of relevant employees between the first, second and third voting rounds (i.e. from 39 to 77 employees).

Response by Applicant to the contentions of CFMMEU and AWU

[52] The Applicant rejects the contentions made by the CFMMEU and the AWU in opposition to the approval of the Second Agreement. In this regard, the Applicant relevantly submits (in summary) that:

a) no new notification time occurred post the issuing of the initial NERR on 12 January 2017. No breach of s.173 of the Act therefore arises for consideration;

b) the Second Agreement passes the BOOT;

c) the Maritime Award does not cover the Applicant as the Applicant (relevantly for the purposes of these proceedings) does not operate its business in the “maritime offshore oil and gas industry”. The Maritime Award therefore does not arise for BOOT analysis, or any other purpose (e.g. s.180(5) of the Act);

d) the Applicant complied with s.180(5) of the Act having regard to the history and circumstances leading up to employees voting to approve the Second Agreement on 18 June 2018;

e) the Second Agreement was genuinely agreed; and

f) despite accepted non-compliance with ss 180(2) and 180(3) of the Act, such non-compliance was a minor procedural or technical error, relevant employees were not disadvantaged by such non-compliance, and the Second Agreement would have been genuinely agreed but for the minor procedural or technical non-compliance that occurred (see s.188(2) of the Act).

Consideration

[53] For the reasons that follow, I cannot be satisfied that the Applicant has complied with s.180(5) of the Act. Nor can I be satisfied that the Second Agreement (being the proposed enterprise agreement the subject of this application for approval) has been genuinely agreed (s.188).

[54] Whilst it might be accepted that bargaining for the Second Agreement has notionally occurred over a period of 18 months, the relevant focus here is on the period post the withdrawal of the First Agreement by the Applicant from the Commission.

[55] The First Agreement was withdrawn, on Ms Murray’s evidence, after Deputy President Kovacic emailed the Applicant (on 9 May 2018) raising a number of serious concerns surrounding genuine agreement. On the evidence before me, those serious concerns appear to be well founded in the context of “all reasonable steps” under s.180(5) of the Act. In this regard:

a) no bargaining representatives were formally appointed by employees to undertake bargaining for the First Agreement;

b) of the 44 employees notionally covered by the First Agreement, the Applicant held bargaining meetings with only 19 employees. Such meetings were bargaining meetings, not meetings to explain the terms of the First Agreement to employees. Further, there is no evidence as to what was actually discussed at these bargaining meetings;

c) whatever the understanding of the Applicant was as to these 19 employees discussing the First Agreement with other employees (not in attendance at these meetings), there is no evidence as to these discussions actually occurring, or the content of such discussions. Further, it is not for an Applicant to transfer its obligations under the Act to employees, or have them pass-on enterprise agreement information that ought be communicated to relevant employees directly by the Applicant;

d) prior to the commencement of the access period for the First Agreement, the only document distributed to relevant employees was the Meeting Minutes May 2017. This meeting was attended by three management representatives and one employee (from one site, being the Ensco 5006 site). The minutes are marked as a “meeting report”;

e) post the commencement of the access period for the First Agreement, there were no discussions with employees, nor were there any further documents distributed to employees.

[56] Significantly, in view of the email of Deputy President Kovacic, the Applicant was very much on notice that it needed to do more if it was going to satisfy the Commission into the future as to compliance with ss 180(5) and 188 of the Act.

[57] Some of the changes between the 2013 Agreement, and the Second Agreement, are significant. They include changes to:

a) the application of the enterprise agreement;

b) the definition of full time employees (full time employee hours (38) to be averaged over 12 months) – no such definition exists in the 2013 Agreement;

c) the introduction of a new “relief employee” definition;

d) an almost complete overhaul of rostering arrangements;

e) changes to the cyclone/stand-by clause, allowing the employer to stand-down employees without pay (there was no ability for the employer to do this under the 2013 Agreement);

f) changes to the payment of overtime, with the Second Agreement reducing the circumstances upon which an employee will be entitled to overtime rates of pay; and

g) the insertion of a new stand-down clause in the Second Agreement.

[58] Again, no bargaining representatives were formally appointed by employees to undertake bargaining for the Second Agreement.

[59] The Form F17 statutory declaration signed by Mr Sean Edwards, Industrial Relations Director Sodexo, identifies that of the 77 employees entitled to vote to approve the Second Agreement, 34 were women, 10 were from non-English speaking backgrounds, 6 identified themselves as Aboriginal or Torres Strait Islander, and 30 were over 45 years of age.

[60] Between the withdrawal of the First Agreement, and the first unsuccessful vote rejecting the Second Agreement, the cohort of relevant employees increased from 44 to 76, meaning 32 new employees were employed (or fell into the coverage of the 2013 Agreement and thus the coverage of the Second Agreement) who had previously had no involvement in the lead up to the vote on the First Agreement. 46

[61] I have summarised the evidence as to the steps taken by the Applicant to explain the terms, and the effect of the terms, of the Second Agreement (between the withdrawal of the First Agreement, and the second successful vote approving the Second Agreement). None of the documentary materials tendered by the Applicant into evidence go any way towards explaining the terms, and the effect of the terms, of the Second Agreement as compared to the 2013 Agreement.

[62] Whilst Ms Murray gives evidence of discussions with relevant employees between the withdrawal of the First Agreement, and the second successful vote approving the Second Agreement, there is no evidence as to the content of such discussions other than by way of generalised summary.

[63] There is no evidence of any explanation being provided by the Applicant between any modern award and the Second Agreement.

[64] Mr Harwood was cross-examined by Mr Edmonds. During such cross-examination, Mr Harwood gave evidence that:

a) he considered himself as an employee bargaining representative (for 18 employees on the Varanus Island Site) for the Second Agreement, despite no formal instrument/s of appointment being executed by any employee, or himself, to that effect; 47

b) his feedback to relevant employees on the Varanus Island Site, in terms of bargaining updates, was verbal. 48 The content of such verbal discussions did not make their way into evidence in the proceedings;

c) he was not confident he spoke to all 18 employees at each stage of the bargaining discussions for the enterprise agreement; 49

d) he had no understanding of the changes made to the application of the Second Agreement, and had never been spoken to about it; 50

e) he had never been spoken to about the revised policies and procedures clause contained in the Second Agreement, nor any understanding as to why it had been changed; 51

f) he had never been spoken to about the change to the definition of a full time employee as contained in the Second Agreement; 52

g) he had never been spoken to about the new “relief employee” classification as contained in the Second Agreement, nor any understanding as to why it had been introduced, or its effect or application; 53

h) in relation to the significant changes to the rostering provisions between the 2013 Agreement and the Second Agreement, Mr Harwood could not recall if they had been discussed with him, 54 but in any event stated that he did “recall it [the Applicant] basically saying that our pay wouldn’t change” and that “there would essentially [be] no change to our annual salary”.55 He denied that there was any mention of hours of work changing due to the roster changes made under the Second Agreement, i.e. despite it being clear on the words of the new rostering clause in the Second Agreement that rosters operated differently to those under the 2013 Agreement;56

i) he had never been spoken to about the new cyclone standby provisions as contained in the Second Agreement, and upon reading same in the witness box stated “I don’t agree with that”57

j) in relation to the overtime payment changes for full time employees between the 2013 Agreement and the Second Agreement, Mr Harwood stated that at the time he voted he was not aware that overtime could potentially be averaged over the whole year under the Second Agreement, but he now understood how it worked as he was reading it in the witness box; 58

k) he had never been spoken to about the removal of casual employee overtime under the Second Agreement; 59

l) he had never been spoken to about the new stand-down clause contained in the Second Agreement; 60 and

m) he did not understand how the annual leave provisions in the Second Agreement applied or worked. 61

[65] Towards the end of his cross-examination, the following exchange occurred between Mr Edmonds and Mr Harwood:

“MR EDMONDS:  Okay.  Of all those clauses I've gone through, a number of them weren't drawn to your attention or weren't discussed with you, or you weren't aware of them.  Obviously in those circumstances you haven't discussed them with the employees from your workplace, have you?

MR HARWOOD: Possibly.

MR EDMONDS:  Well, I put it to you that if you weren't aware of those changes you couldn't have discussed them with those employees, could you?

MR HARWOOD: Correct.” 62

[66] The cross-examination of Mr Harwood is to also be considered in light of Ms Murray’s understanding of the terms of the Second Agreement and the effect of those terms, including the changes made between the 2013 Agreement and the Second Agreement. In this regard, during cross-examination by Mr Edmonds, Ms Murray conceded that she:

a) did not know why the application clause of the Second Agreement had been changed;

b) did not know why the words contained in the company policies and procedures clause in the Second Agreement had been changed;

c) did not know why casual employees were expressly included in the Second Agreement when they are employed by Sodexo under a different enterprise agreement;

d) did not know why relief employees were included in the Second Agreement;

e) did not know why four rostering appendix were deleted from the 2013 Agreement (i.e. not included in the Second Agreement);

f) did not know what the effect of the rostering changes between the 2013 Agreement and the Second Agreement would be upon employees;

g) did not discuss with employees the changes in the overtime provisions in the Second Agreement as compared to the 2013 Agreement;

h) did not discuss with employees the new stand-down clause in the Second Agreement;

i) did not know what the effect of the annual leave provisions under the Second Agreement were; and

j) agreed that whilst she issued a memorandum advising employees that nothing would change in terms of their pay and conditions if they voted to approve the Second Agreement, this statement was about what terms and conditions Sodexo proposed to apply post the vote, not what it could actually enforce or apply under the actual terms of the Second Agreement if it is approved. 63

[67] On the issue of casual employees who purportedly did not vote on the Second Agreement, the following exchange between Mr Edmonds and Ms Murray occurred:

“MR EDMONDS: How many other casual employees did you have in these workplaces that didn't vote for this agreement?

MS MURRAY: To be honest, I don't know.  I don't know what the number was because we had increased scopes of work taking place at Varanus Island [Site], so we had casuals there.  Then with the Prelude [Site] we were going through the hook-up and commissioning phase, so we had an amount of casuals there. Then with the 107 [Site], it was just a short term contract, so we had casuals there.  There were a couple of casuals on the various facilities [Sites], but the actual amounts, I can't recall.

MR EDMONDS: Would you say more than 10?

MS MURRAY: I really - I wouldn't know.  I really wouldn't know.  It was Prelude [Site] - there was such a lot of work going on with the hook-up and commissioning.  With the 107 [Site] there would have been a small amount of people.  At Varanus Island [Site], I don't know and at Prelude [Site], I really don't know.  I don't know the numbers.” 64

[68] On the question of whether Ms Murray explained the terms and the effect of the terms of the Second Agreement to relevant employees, the following exchange between Mr Edmonds and Ms Murray occurred:

“MR EDMONDS: Right.  But because people didn't raise questions, you just explained the re-vote process; you didn't explain the terms of the agreement.  Is that fair to say?

MS MURRAY: Yes.  Yes, I suppose it is fair to say”. 65

Determination

[69] Having regard to the case law and principles cited in this decision, and the facts and evidence set out in this decision, by reference to s.180(5) of the Act, I find that I cannot be satisfied that the Applicant has taken all reasonable steps to ensure that the terms of the Second Agreement, and the effect of those terms, were explained to relevant employees in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

[70] In reaching the foregoing conclusion, I take into account that:

a) none of the employees had a bargaining representative who was appointed in accordance with s.176 of the Act;

b) many of the employees are from culturally and linguistically diverse backgrounds (see paragraph [59] above);

c) the cohort of relevant employees increased dramatically (i.e. 44 to 77) between the withdrawal of the First Agreement (16 January 2017), and the making of the Second Agreement (18 June 2018);

d) there is no documentary evidence of any explanation of the terms of the proposed enterprise agreement provided to relevant employees (i.e. by way of comparison to the 2013 Agreement or any modern award);

e) the changes between the 2013 Agreement and the Second Agreement (as approved by a majority of relevant employees) were ‘significant’ (Ms Murray conceded this point freely). 66 In my view, the changes warranted an explanation beyond what the Applicant provided, especially having regard to the circumstances of relevant employees described in (a) to (c) above;

f) the fact that relevant employees work on offshore remote locations ought not diminish the Applicant’s obligations under s.180(5) of the Act. If anything, a more thorough approach should have been adopted than the one adopted by the Applicant. Whilst some sites, at least at some times, may be very difficult, even impossible, to obtain direct physical access to, that does not mean that documentary materials and explanations to employees could not have been provided beyond what the Applicant supplied to relevant employees;

g) although meetings were held with relevant employees to discuss the terms of the Second Agreement, none of the content of the discussions at such meetings has made its way into evidence before the Commission (other than in the general sense);

h) although (group and one-on-one) meetings were held with relevant employees to discuss the terms of the Second Agreement, the attendance of relevant employees at such meetings cannot be said, on the evidence before the Commission, to disclose that all relevant employees attended such meetings (i.e. even putting aside employees on leave or R&R who were purportedly communicated with individually);

i) Ms Murray’s understanding as to the Applicant’s normal business practices in terms of the distribution of emails and related documentation to relevant employees is hardly persuasive in terms of founding a clear evidentiary basis for such distribution actually occurring;

j) Mr Harwood’s evidence was frank and compelling. The summary of that evidence is that many of the terms of the First and/or Second Agreements, concerning changes arising in such proposed enterprise agreement, were either not discussed with him at all, or were not explained to him in a satisfactory manner sufficient for him to understand them. This is in circumstances where Mr Harwood was present and/or involved in the bargaining for the First and Second Agreements, and present during some of the Applicant’s discussions with other relevant employees. If these changes were not explained at all to Mr Harwood, I infer that that they were not explained to other employees either;

k) Ms Murray’s understanding of the terms of the Second Agreement, and the effect of those terms, gives me no confidence that she explained the terms of the Second Agreement and the effect of those terms to relevant employees;

l) further to all of the matters above, the access period provided to relevant employees was six, not seven, days as required by ss 180(2) and 180(3) of the Act. Given my absence of satisfaction as to genuine agreement, s.188(2) of the Act does not arise for consideration.  67

[71] In view of my findings as to my inability to be satisfied that the requirements of s.180(5) have been met, I also find that I cannot be satisfied that the Second Agreement has been “genuinely agreed” in accordance with s.188 of the Act.

Other matters

[72] At the hearing, Mr Avallone submitted that notwithstanding any findings made by me as to non-compliance with ss 180(2), 180(3), 180(5) and/or 188 of the Act, I ought also make findings as to compliance with s.173 of the Act, CFMMEU coverage, modern award coverage, and/or contested BOOT issues. I decline to do so. My findings as to an absence of genuine agreement in the making of the Second Agreement mean that I am unable to approve the agreement. Determination of the remaining issues, even if determined favourably to the Applicant, simply cannot alter the position that this proposed enterprise agreement is unable to be approved given the absence of genuine agreement.

Conclusion

[73] An Order [PR712511] dismissing this enterprise agreement approval application will be issued with this decision.

DEPUTY PRESIDENT

Mr B Avallone of Counsel, instructed by Mr T Lang and Mr J Evans of Piper Alderman lawyers), for the Applicant.

Mr L Edmonds for the CFMMEU.

Mr Z Duncalfe for the AWU.

Printed by authority of the Commonwealth Government Printer

<PR712514>

 1   AG2018/3064, Order PR702622 (23 November 2018, per transcript)

 2   Sodexo Remote Sites Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union; Australian Workers’ Union (C2018/6845) [2019] FWCFB 690

 3   Ibid at [23].

 4   At the directions hearing on 19 February 2019, Mr Avallone (Counsel for the Applicant) stated to the Commission that the Applicant had previously run arguments opposing the intervention of the CFMMEU and the AWU in the approval hearing, but the Commission had ruled against the Applicant and allowed the unions to be involved in the proceedings. Mr Avallone the stated: “I don’t propose to re-run that argument” (taken from recorded transcript of Directions hearing on 19 February 2019).

 5   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [4]-[6].

 6   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [19].

 7   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [22] and Annexure “JM-5”.

 8   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [23] and Annexure “JM-6”.

 9   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [25].

 10   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [27] and Annexure “JM-8” (F17 Form dated 13 July 2017, Item 2.10, pp.5-6).

 11   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [33] and Annexure “JM-9”.

 12   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [36], see also at [29]-[31].

 13   Ibid.

 14   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [34].

 15   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [34] and Annexure “JM-10”.

 16   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [37]-[42] and Annexures “JM-12” to “JM-17”. A copy of the Q&A sheet is found behind Annexure “JM-13”.

 17   Ibid.

 18   Ibid.

 19   Transcript, 13 May 2019, PN272-PN278.

 20   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [43]-[50] and Annexures “JM-18” to “JM-23” (I also note paragraph [52] and Annexure “JM-24).

 21   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [45]-[46].

 22   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [51].

 23   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [53]-[55].

 24   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [56]-[62]

 25   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [63] and Annexure “JM-35”.

 26   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [64].

 27   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [27] and Annexure “JM-8” (F17 Form dated 13 July 2017, Item 2.10, pp.5-6).

 28   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [73].

 29   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at 68]-[69].

 30   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [70] and Annexure “KM-38”

 31   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [71].

 32   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [72] and Annexure “JM-39”.

 33   Exhibit A2, Statutory Declaration of Jeanette Murray dated 28 February 2019, at [75] and Annexure “JM-40”.

34 [2010] FWAFB 7401.

 35   References in endnotes omitted.

 36   Section 190 of the Fair Work Act 2009.

37 Section186(2)(a) the Fair Work Act 2009 requires “genuine agreement”, which is defined in s.188(a)(1) and requires compliance with s.180(5), which in turn requires an employer to take all reasonable steps to explain the terms of the Agreement and their effect.

38 [2016] FWCFB 1926.

39 [2004] NSWIRC 222; 137 IR 176 at [67]-[71].

40 [1995] TASSC 91; (1995) 5 TASR 121 at 133.

41 [2017] FCA 1266, 270 IR 410.

42 Ibid at [43] – [44], citing the judgement of Buchanan J in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2015] FCAFC 16; 228 FCR 297; 247 IR 55.

43 [2017] FCA 1266, 270 IR 410 at [103].

 44   [2018] FCAFC 77; 277 IR 2.

45 Ibid at 103.

 46   F17 Form, signed by Mr Sean Edwards, dated 27 June 2018, at Item 4.3. pp.10

 47   Transcript, 13 May 2019, PN60-PN72.

 48   Transcript, 13 May 2019, PN74.

 49   Transcript, 13 May 2019, PN78.

 50   Transcript, 13 May 2019, PN92-PN95.

 51   Transcript, 13 May 2019, PN97-PN98.

 52   Transcript, 13 May 2019, PN106-PN107.

 53   Transcript, 13 May 2019, PN108-PN109.

 54   Transcript, 13 May 2019, PN125.

 55   Transcript, 13 May 2019, PN119 and PN121.

 56   Transcript, 13 May 2019, PN120.

 57   Transcript, 13 May 2019, PN134.

 58   Transcript, 13 May 2019, PN139-PN144

 59   Transcript, 13 May 2019, PN151.

 60   Transcript, 13 May 2019, PN153.

 61   Transcript, 13 May 2019, PN163.

 62   Transcript, 13 May 2019, PN159-PN160.

 63   Transcript, 13 May 2019, PN436 -PN535.

 64   Transcript, 13 May 2019, PN569-PN570.

 65   Transcript, 13 May 2019, PN559.

 66   Transcript, 13 May 2019, PN429.

 67   Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318, at [37].