DECISION

Fair Work Act 2009
s.604—Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union
v
Ditchfield Mining Services Pty Limited
(C2019/1236)

Appeal against decision [2019] FWCA 661 of Deputy President Bull at Sydney on 5 February 2019 in matter number AG2018/1902 – whether there was a denial of procedural fairness – whether there could be satisfaction that employer complied with s.180(5) – permission to appeal granted – appeal upheld – decision to approve agreement quashed – application to approve agreement remitted to the Deputy President.

[1] By its notice of appeal lodged on 26 February 2019, the Construction, Forestry, Maritime, Mining, and Energy Union (Appellant) seeks permission to appeal and appeals a decision made on 5 February 2019 by Deputy President Bull to approve a single-enterprise agreement with undertakings¹ (Decision). The agreement is titled the Ditchfield Mining Services Pty Ltd – Coal Mining Enterprise Agreement 2018 (Agreement).

Background

[2] The Agreement was made on 26 April 2018, when Ditchfield Mining Services Pty Ltd (Respondent) requested four employees employed at the time and covered by the Agreement to approve the Agreement and those employees voted to approve it.² At the time the Agreement was made, the four employees were covered by the Black Coal Mining Award 2010 (Award). According to the Respondent’s material filed in support of its application for the approval of the Agreement, there had previously been an enterprise agreement covering the employees while these employees had been working for a parent company of the Respondent.³ It appears from the Respondent’s material that the relevance of the prior enterprise agreement was that it operated as a reference point for the purposes of explaining the terms of the Agreement and effect of those terms to employees. So much is clear from the following, which appears in answer to question 2.6 in the employer’s statutory declaration:

“The agreement is similar to an enterprise agreement which had previously applied to former mining operations undertaken by a parent company of the Applicant and which was well known to all of the employees (who had previously been employed under this agreement). All amendments to the previous Agreement were clearly highlighted to make it easy for the employees to identify any changes. Employees were invited to discuss any concerns with management.”4

[3] There appears no dispute that at the time the four employees voted to approve the Agreement, their employment was covered by the Award, and that the Award applied in relation to their employment by the Respondent. The Agreement is expressed to cover employees undertaking work that would otherwise be covered by the Award.⁵

[4] The Appellant was not a bargaining representative for the Agreement. The Appellant sought to be heard in relation to the application to approve the Agreement. The Deputy President opined that the Appellant was able to assist the Fair Work Commission (the Commission) in its approval deliberations and, pursuant to s.590(1) of the Fair Work Act 2009 (Act), he accepted written submissions made by the Appellant and said he would take them into account.⁶

[5] The Respondent initiated bargaining or agreed to bargain on 19 March 2018 by purporting to issue a notice of employee representational rights (NERR).⁷ It subsequently discovered the notice was defective. It therefore ceased bargaining, then initiated bargaining when it gave employees employed at the time a compliant NERR on 3 April 2018.⁸ The provision of the compliant NERR appears to have coincided with the notification time.

[6] The four employees who voted to approve the Agreement were also employee bargaining representatives for the proposed Agreement.⁹ On 7 May 2018, the Respondent applied to the Commission for the approval of the Agreement. On 11 May 2018, the Appellant advised the Commission that it had concerns about the Agreement and that it wished to have its concerns heard. On 22 May 2018, the Appellant advised the Commission that it sought to be heard pursuant to s.590 of the Act. It sought a copy of an unredacted employer statutory declaration filed in support of its application for approval and it provided submissions on these matters.¹⁰

[7] The approval application was initially allocated to Deputy President Colman. On 28 August 2018, the Appellant was advised that the Deputy President had requested further information in relation to the substantial issues the Appellant had with the application and an articulation of the reasons why the Appellant wished to see the unredacted version of the statutory declaration.¹¹ The Appellant provided an email response the following day, 29 August 2018, in which it set out the concerns it had with the Respondent’s compliance with s.180(2) and s.180(5) of the Act, with genuine agreement under s.188 of the Act and with the better off overall test.¹²

[8] Also on 28 August 2018, staff of the Commission emailed the Respondent setting out several issues Deputy President Colman had raised in relation to the application for approval of the Agreement.¹³ A copy of that correspondence was not sent to the Appellant.

[9] On 30 August 2018, the Respondent sent an email to the Commission setting out its responses to the matters raised in the email dated 28 August 2018.¹⁴ An undertaking was also provided.¹⁵ A copy of that correspondence was not sent to the Appellant.

[10] On 5 September 2018, the Appellant sent an email to the Commission setting out a correction to its earlier email of 29 August 2018.¹⁶

[11] On 11 September 2018, the Appellant was provided a table to which the employer’s statutory declaration refers, and was also advised that Deputy President Colman invited further submissions in relation to the Appellant’s objections.¹⁷ The Appellant made a submission in response to that invitation on 17 September 2018.¹⁸ The Appellant’s submission was provided to the Respondent and the Respondent provided a submission in response on 3 October 2018.¹⁹ It is uncontroversial that a copy of this response submission was not provided to the Appellant prior to the Decision.

[12] The Appellant sought an update on the status of the application on 16 October 2018 by sending an email to “agreementsprogressenquiry@fwc.gov.au”.²⁰ A response to the request for an update does not appear to have been given. The approval application was subsequently allocated to Deputy President Bull. After that allocation, there were various communications between the Commission and the Respondent, none of which were disclosed to or shared with the Appellant prior to the Decision.²¹ These communications included a telephone conference involving the Respondent and the Deputy President on 29 November 2018, and email exchanges that largely dealt with the content of undertakings the Respondent had proposed.²²

[13] On 25 October 2018, and further to its earlier request, the Appellant sought an update on the status of the approval application by sending an email to “agreementsprogressenquiry@fwc.gov.au”.²³ Again, a response to the request for an update does not appear to have been given.

[14] On 13 December 2018, the Appellant sent an email to member.assist@fwc.gov.au, attaching an updated submission and requesting that the material be forwarded to Deputy President Colman.²⁴ The text of the email was as follows:

“In September the CFMMEU filed with the FWC a submission setting out our objections to the approval of the above mentioned Agreement.

We have been informed the matter is before Colman DP.

Recently we identified an error in some of the calculations in that submission. Whilst the error does not change the ultimate outcome or conclusions we draw from the analysis, we thought it appropriate to identify and inform the FWC of the error, its cause, the correction and its impact.

To that end we attach a document setting out the error and the correction. We apologise for not picking it up earlier.

To our knowledge the matter is still before the Deputy President. We have not copied in the applicant because our submission was sent to the FWC only. The FWC is of course free to provide any material from us to the Applicant. If the FWC wants us to provide this material to the applicant, please let us know.

We would be grateful if you could pass on this material to the Deputy President.”²⁵

[15] A response to this email also does not appear to have been given.

[16] Various communications between the Commission and the Respondent continued. The last of these was an email from the Respondent to Deputy President Bull’s chambers on 21 January 2019 responding, inter alia, to issues raised by the Appellant and contained revised undertakings.²⁶ Those communications, however, were not confined to the undertakings. For example, an email from the Deputy President’s chambers to the Respondent on 11 December 2018 requested a “response to the CFMMEU submission that as the lesser conditions in the Agreement as compared to the Award were not explained to employees [there] was a failure to comply with s.180(5)…”. 27 The Respondent provides a response by email dated 14 December 2018 that, inter alia, provided:

“…the terms of the EA, and the effect of those terms were explained in detail to the employees including that the Ditchfield EA provides for wages that are significantly more generous as compared to the Award. That being the case we do not consider that the issue raised by the CFMMEU prevents the Commission from approving the EA.” 28

[17] As to the specific question posed in the email of 11 December 2018, the Respondent wrote that it disagreed with the CFMMEU submission. 29

[18] This response prompted a further email from the Deputy President’s chambers on 21 December 2018, which relevantly stated:

“From your 14 December response is it taken that the more beneficial conditions of the Award not contained in the Agreement were not identified and advised to employees? If this is not correct please advise what occurred.” 30

[19] None of these communications which concerned submissions of the Appellant were provided to it.

[20] On 21 January 2019, the Deputy President’s chambers provided the Appellant with an unredacted copy of the employer statutory declaration filed in support of the application.³¹ Also on that day, the Respondent sent an email to the Deputy President’s Chambers, in which it relevantly provided a response to the issue raised in the Deputy President’s email of 21 December 2018. In essence, the Respondent contended that there was no statutory obligation to make the kind of comparison asserted by the Appellant. 32

[21] On 24 January 2019, the Appellant requested that it be permitted to make oral submissions and to participate in any hearing of the matter.³³

[22] On 25 January 2019, the Deputy President’s chambers advised the Appellant by email that the application was being dealt with “on the papers” and as such, there will not be an oral hearing, but that if the Appellant wished to make any written submissions it should do so by no later than close of business on 30 January 2019.³⁴ It is apparent that neither the Respondent’s submissions, its supplementary email communications responding to the issues raised by the Appellant, nor any of the undertakings were revealed to the Appellant prior to the Decision. This does not appear to be controversial.

[23] On 29 January 2019, the Appellant confirmed by email that in the absence of an oral hearing, it relied on the material already filed.³⁵

Appeal grounds

[24] The Appellant’s notice of appeal contains 9 appeal grounds. The first asserts standing to bring the appeal. The Respondent accepts that the Appellant has standing.³⁶ We agree. The ninth ground is a catch-all ground and since no other grounds of appeal have been asserted, this ground need not be considered further.

[25] Ground 2 contends that there was a denial of procedural fairness because although the Appellant was permitted to make written submissions, the Deputy President made the Decision without providing the Appellant with the submissions and/or responses of the Respondent and/or his communications with the Respondent.

[26] Grounds 3, 4 and 5 contend that the Deputy President erred in being satisfied that the relevant employees had genuinely agreed to the Agreement because the Respondent did not take all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees, and that the explanation was provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

[27] Ground 6 is that the Deputy President erred in seeking the views of the bargaining representatives as to the undertakings proposed by the Commission under s.190(4) of the Act through the Respondent’s representative, and in accepting undertakings obtained in that manner.

[28] Grounds 7 and 8 also engage with whether the relevant employees genuinely agreed to the Agreement. The former ground contends error in the Deputy President’s satisfaction that each employee had access to the relevant safety policies and procedures, and that the requirements of s.180(2) of the Act were met. The error is said to arise because the Deputy President relied on a submission from the Respondent of a general nature rather than sworn evidence, in circumstances where sworn evidence had been provided to the Commission that was incomplete. The latter ground contends the Deputy President erred in failing to consider whether there were any other reasonable grounds for believing that the Agreement had not been genuinely agreed to by the relevant employees, as required by s.188(1)(c) of the Act.

[29] We turn now to consider the appeal grounds.

Appeal ground 2 – whether there was a denial of procedural fairness

[30] The Appellant contends the Deputy President failed to afford the Appellant procedural fairness by making his Decision without providing it with the Respondent’s submissions, responses and communications with the Commission. The Appellant says that procedural fairness required that it be provided with these, as both Deputy Presidents Colman and Bull had sought submissions from the Appellant without limitation, and the Respondent’s submissions, responses and communications directly addressed matters that were in contest.

[31] The Respondent contends that the Appellant was not denied procedural fairness in substance or in fact. It says the Appellant was given numerous opportunities to provide written submissions setting out its concerns, and a full opportunity to make or address every point of substance touching on its concerns, as disclosed by the chronology that we have set out in the background earlier in this decision.

[32] The Respondent contends the correspondence between the Respondent and the Commission about which the Appellant complains falls into three categories. First, correspondence containing responses to matters raised by the Commission before any submissions were filed by the Appellant. Secondly, correspondence containing responses to the Appellant’s submissions. Thirdly, correspondence relating to an undertaking. The Respondent says that a failure to provide the Appellant with communications in the first category cannot amount to procedural unfairness, as the correspondence did not, and could not, relate to the matters raised by the Appellant. As to the third, the Respondent says the Deputy President considered the undertaking in accordance with s.190, including by seeking the views of the bargaining representatives, and the Appellant was not a bargaining representative.

[33] As to the second category, the Respondent says that the Appellant does not set out what steps it would have taken, or what different or additional matters it would have raised, if it had received this correspondence. In the alternative, it says that any deficiencies in the procedural fairness afforded to the Appellant were of no consequence because any denial of procedural fairness did not have a bearing on the Decision. The matters the Appellant raises on appeal are the same issues and concerns which it set out in its written submissions before the Deputy President. The Respondent contends that the Appellant, now armed with the knowledge of all the communications between the Respondent and the Commission, does not seek to raise any new issues or concerns.

[34] Administrative decision-makers, including Members of the Commission, must accord procedural fairness to those affected by decisions they make. What is required to achieve this in any given case should be determined by reference to “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”.³⁷ The procedure adopted by an administrative decision-maker can sometimes itself be shown to have failed to afford a fair opportunity to be heard to a person. In such cases, a denial of procedural fairness may be established by nothing more than that failure, unless the failure did not deprive the person of the possibility of a successful outcome.³⁸

[35] However, not every breach of the rules of natural justice will affect a decision. As the High Court observed in Re Refugee Review Tribunal; Ex parte Aala:³⁹

“Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this court in Stead v State Government Insurance Commission when it said that “not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial”. Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because “[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome”. In this case, however, the denial of natural justice did not affect the outcome. After analysing the reasons of the second tribunal and the history of the proceedings, the best conclusion is that the tribunal would have found that the prosecutor did not have a well-founded fear of persecution even if it had had the four statements before it.”40

[36] Where an obligation to accord procedural fairness to a person arises, that which is required will also depend upon the circumstances in each case. As is evident from our discussion about the background to this matter, the Appellant advised the Commission that it had concerns about the Agreement and that it wished to have those heard. Specifically, the Appellant sought to be heard pursuant to s.590 of the Act. The Appellant articulated its concerns that the Respondent had not complied with s.180(2) and s.180(5) of the Act, that there were other reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees (s.188(1)(c)), and that the Agreement did not pass the better off overall test.⁴¹

[37] The Appellant was permitted to make submissions about its concerns. We agree with the Respondent that failing to provide the Appellant with communications falling in the first category identified above did not amount to a denial of procedural fairness. That correspondence did not relate to the matters raised by the Appellant; rather, it was concerned with matters raised by the Commission before the Appellant had articulated any concerns.

[38] Furthermore, although it may have been wise for the Deputy President to have provided the Appellant with the undertakings, since they touched on the assessment as to whether the Agreement passed the better off overall test, the Deputy President was not under a statutory obligation to do so, since the Appellant was not a bargaining representative. Given the statutory context in which undertakings are considered, we do not think that procedural fairness in these circumstances required providing the Appellant with correspondence relating to the undertakings. Undertakings are given in response to the Commission’s concerns about whether one or more of the approval matters in ss.186 and 187 have been met. They are not responsive to concerns raised by an interested third party such as the Appellant. We therefore do not consider that there has been any denial of procedural fairness by reason only of the failure to provide the Appellant with copies of communications falling into the third category.

[39] However, the failure to provide the Appellant with documents falling within the second category seems to us to amount to a denial of procedural fairness, particularly given the procedure the Deputy President adopted to deal with the application. As we have already noted, the Appellant articulated four broad areas of concern and provided written submissions in respect of its concerns. The Respondent was provided with a copy of the Appellant’s written submissions, and it provided submissions in response. Subsequently, the Appellant sought the opportunity to make oral submissions at a hearing. This request was denied. We make no criticism of that decision. However, the Deputy President’s Associate advised the Appellant by email on 25 January 2019 that the matter would be determined “on the papers” and that if it wished to make any written submissions it should do so by no later than close of business 30 January 2019.⁴²

[40] The invitation to make any written submissions occurred in circumstances where the Appellant had already made written submissions, but the Appellant was not aware that the Respondent had subsequently made submissions and provided other written communications in response to the Appellant’s submissions. The Appellant’s advice to the Deputy President that it relies on material already filed by it in the matter must be viewed in this context.

[41] It seems plain to us that the Appellant decided not to make any further written submissions and rested on the submissions that it had already filed because, on the material available to it, the Appellant had nothing more to say. It did not know the Respondent had filed responsive submissions. It was thus denied the opportunity to join issue with those submissions. When dealing with a matter “on the papers” and a party is invited to make any written submissions it wishes, that party may only make an informed decision about whether it will make some submissions if it has available to it “the papers” on which the decision-maker will base his or her decision. Relevantly here, those papers included the Respondent’s submissions responding to the Appellant’s earlier filed submissions.

[42] The information that was initially available to the Deputy President about the steps that the Respondent took to explain the terms of the Agreement and their effect to relevant employees was limited to the paragraph responsive to question 2.6 in the employer’s statutory declaration, which we have earlier reproduced. The Appellant’s submissions as to the Respondent’s compliance with s.180(5) addressed the adequacy of that explanation. The Appellant was not concerned with whether additional information not contained in the employer statutory declaration disclosed compliance with s.180(5), because it was unaware of any such additional information. That additional information was contained in the submissions filed by the Respondent on 3 October 2018.⁴³

[43] It is clear that the Deputy President considered this additional information in satisfying himself that there had been compliance with s.180(5) for the purposes of assessing whether the employees covered by the Agreement had genuinely agreed to it. The Deputy President dealt with this issue as follows:

“[41] The CFMMEU submit that the Commission cannot be satisfied that the Applicant has complied with the requirements of s.180(5) of the Act based on what has been supplied to the Commission by way of the F17. It is contended that presenting employees with a marked up copy of the Agreement did not constitute an explanation in light of the decision in CFMEU v One Key Workforce Pty Ltd.

[42] The CFMMEU’s submission states that inviting and providing time for employees to raise any concerns is still a failure to provide an explanation of the Agreement and the effect of its terms. The fact that the applicant stated there were no less beneficial terms in comparison to the Award when there were, indicate that these matters were not raised with employees.

[43] I accept that, on the face of the responses provided in the F17, the CFMMEU submissions raise legitimate concerns.

[44] Mr Ditchfield’s F17 Statutory Declaration provided some detail as to the process undertaken to explain the Agreement and the effect of its terms stating that:

•  on 19 March 2018, the applicant agreed to bargain (the notification time).

•  on 3 April 2018, the NERR notices were provided to all employees by hand following which they returned a signed instrument of appointment and 4 bargaining representatives were appointed. On the same day, all employees were issued with a copy of the draft Agreement. Additional copies were available in the site office. A copy was also made available in the Tuncurry office of the applicant’s parent company where employees worked on occasion leading up to the vote.

•  on 17 April 2018, employees were hand-delivered a written notice advising that a secret ballot would take place at the work site on 26 April 2018. On 26 April 2018, the vote took place.

[45] Mr Ditchfield, in his Statutory Declaration, states that the Agreement was similar to an enterprise agreement that previously applied to former mining operations undertaken by the parent company of the applicant which was known to all employees as they had worked under the parent company agreement.

[46] All amendments to the previous agreement were ‘clearly highlighted’ to make it easy for the employees to identify any changes. Employees were invited to discuss any concerns with management.

[47] In the applicant’s further written response of 3 October 2018 the applicant acknowledged that its F17 explanation was not a comprehensive response and provided further elaboration on how its explanation of the Agreement, and the effect of its terms to employees, was provided.

•  a meeting was held on site on 17 April 2018, involving three members of management and all of the relevant employees during which the attendees went through the Agreement in detail, from front to back, discussing each of the terms of the Agreement;

•  during that meeting, employees asked a range of questions about the Agreement, which were answered by management;

•  a further meeting was held on 24 April 2018, with the same attendees, during which the Agreement was again discussed at length; and

•  throughout the bargaining/negotiation period and the access period, the Mine Manager was based full time on site and was available to discuss the Agreement with the relevant employees.

[48] The explanation was appropriate taking into account the particular circumstances and needs of the employees. There is nothing in the demographic group in answer to question 4.3 of the F17 which would require special consideration to be given to any employee.

[49] Each employee had nominated themselves as a bargaining representative; no employee had been employed for less than 8 years or was aged less than 21 years; all employees came from an English speaking background and to the applicant’s knowledge no circumstances existed to warrant any additional steps being taken.

[50] The process adopted by the applicant was reasonable in ensuring that the terms of the Agreement and the effect of those terms were explained to the employees.

[51] The CFMMEU rely extensively on the Federal Court decision of One Key Workforce Pty Ltd v CFMEU (One Key) and the subsequent Full Court appeal decision in CFMEU v One Key Workforce Pty Ltd. I am satisfied the factual circumstances in this application are markedly different from those which applied in One Key.

[52] In One Key there were no face to face meetings, the agreement for approval covered classifications in 11 awards, the 3 employees voting on the agreement only worked across two awards and could not give informed consent in regard to occupations and industries in which they did not work. Those circumstances, or anything similar, do not exist in this application.

[53] The CFMMEU further submits that there was no genuine agreement as the employees were not advised of the Agreement’s terms and conditions which are less beneficial than the Award. The statutory declaration of Mr Ditchfield states at 3.5 that there are no less beneficial terms and conditions. This assertion is incorrect as conceded by the applicant in their further written submissions. Where less beneficial terms have been identified by the applicant, the applicant has provided undertakings to ensure that the Award terms and conditions apply.

[54] The identified less beneficial terms and conditions are discussed below in respect to the better off overall test (BOOT). The foremost less beneficial terms of the Agreement as submitted by the CFMMEU relate to wages and the working of overtime. Contrary to the CFMMEU submissions, the applicant does not accept that the wages and overtime terms of the Agreement are less beneficial than the Award, instead stating that the CFMMEU have misinterpreted the wording of the Agreement. For the reasons provided below, the Commission is satisfied that the wages and overtime provisions of the Agreement are not less beneficial than the Award.

[55] There is no direct legislative requirement for an employer to raise with employees any or every less beneficial provision in comparison with the Award, however it may be a factor for the Commission to take into account in applying s.180(5) of the Act.

[56] In this application, the Commission accepts that there are less beneficial provisions in the Agreement than those contained in the Award; these are identified below in discussing the better off overall test (BOOT). This required further Commission enquiry, having regard to Mr Warren Ditchfield’s F17 statutory declaration incorrectly stating that there are no lesser benefits.

[57] The identified less beneficial conditions identified below are not substantial in their nature and an undertaking has been provided by the applicant to provide no less than the Award provision in each case. All employees covered by the Agreement when it was made have lengthy service with the applicant, were bargaining representatives for the Agreement, and have been shown the undertakings and support Commission approval of the Agreement. Further, the rates in the Agreement are well above those in the Award.

[58] Having regard to the process set out in the applicant’s statutory declaration, and the further written explanation of the process undertaken by the applicant, the Commission is satisfied that all reasonable steps were taken to explain the terms of the Agreement to employees as per s.180(5) of the Act. I am satisfied that the employees were in a position to cast a fully informed vote in the sense that they were aware of the terms of the Agreement and the effect of its terms.”⁴⁴ [Endnotes omitted]

[44] The Deputy President accepted that the Appellant’s initial concern was legitimate. He then took into account the additional information contained in the Respondent’s submission of 3 October 2018 to satisfy himself that the employer had complied with s.180(5) of the Act. This was done without providing the Appellant with a copy of that submission. Considering the procedure that was adopted, the opportunity afforded to the Appellant to provide further written submissions was no opportunity at all, since it had neither a copy of, nor knowledge of, the Respondent’s submissions containing the additional information. In our view, there was plainly a denial of procedural fairness in these circumstances.

[45] The Respondent also made a further submission on 21 January 2019. In response to the Appellant’s submission about the explanation of the differences between the Award and the Agreement, it contended, inter alia, that an employer has no legislative obligation to explain the more beneficial terms of an award that are not contained in an agreement. The submission also sought to distinguish other Full Bench decisions of the Commission in which an employer’s failure to identify less beneficial terms in an agreement compared to the relevant award in its statutory declaration was held to be a material consideration in assessing whether there had been compliance with s.180(5) of the Act.⁴⁵ The Deputy President appears to take this into account at [55]-[57] of the Decision, but this submission was not provided to the Appellant. Consequently, it did not have an opportunity to join issue with the submission.

[46] We do not accept the Respondent’s contention on appeal that the Appellant has not identified what further steps it would have taken in light of the matters the Appellant has identified in its outline of submissions on appeal at [43], [44], [45] [46] and [51]. Moreover, and quite obviously, if the Appellant had been armed with the Respondent’s submissions, it would have addressed whether the additional information provides a sufficient basis upon which the Deputy President could be satisfied that the employer had complied with s.180(5) of the Act when it lodged further submissions pursuant to the Deputy President’s invitation. This is not a case where the Appellant, armed with full knowledge of the Respondent’s response to its contention as to compliance with s.180(5), made a strategic or forensic calculation to say nothing more. It made its decision absent that knowledge.

[47] It follows, in our view, that the failure to provide the Appellant with the Respondent’s submissions of 3 October 2018 and email correspondence of 21 January 2019 was a denial of procedural fairness. In circumstances where the hearing was to be conducted on the papers, providing the Appellant with those submissions and correspondence was required to ensure that the decision concerning the approval of the Agreement was made fairly. As the Appellant was denied procedural fairness, the Decision is affected by appealable error.

[48] However, that conclusion does not of itself result in the grant of permission to appeal the Decision. The Appellant has been given a full opportunity on appeal to agitate the matters it would have advanced had it been given the information that it lacked at first instance. Unless we are persuaded that the Deputy President was otherwise in error in reaching his Decision that the approval requirements in ss.186 and 187 of the Act had been met and in accepting the undertaking, there would be little utility in granting permission to appeal the Decision, or at least, no utility in upholding the appeal.

[49] We turn then to consider the remaining grounds of appeal.

Appeal ground 6 – obtaining the views of known bargaining representatives about the undertaking

[50] The Appellant contends the Deputy President erred in seeking the employee bargaining representatives’ views on the undertakings proposed by the Commission under s.190(4) of the Act through the Respondent’s representative, and in accepting undertakings obtained in that manner. It says that accepting an undertaking from a bargaining representative through the employer with which the bargaining representative was bargaining cannot guarantee fulfilment of the purpose of s.190(4). The Appellant contends that s.190(4) is designed to ensure that the employer alone cannot be the source of the undertaking. The Appellant contends that the proper procedure is that adopted by several Full Bench decisions, to set in place a process whereby the bargaining representatives communicate directly with the Commission.⁴⁶

[51] Section 190(4) of the Act provides that the Commission must not accept an undertaking under s.190(3) unless it has sought the views of each person who it knows is a bargaining representative for the Agreement. As noted in the background earlier discussed, on 28 August 2018, staff of the Commission emailed the Respondent setting out concerns with the application for approval of the Agreement. The email noted that, “[i]f undertakings are to be provided… please ensure you seek the views of any bargaining representative in relation to the issues raised. Any objections to the proposed undertakings should be raised with the Commission prior to the approval of the Agreement.”⁴⁷ On 21 December 2018, the Deputy President’s Associate wrote to the Respondent requesting, inter alia, that it “please provide the view of the Bargaining Representatives on the undertakings”.⁴⁸

[52] On 8 January 2019, the Respondent advised the Deputy President’s Associate that one of the bargaining representatives was still on annual leave, and that the undertakings would not be formally submitted until he returned from leave.⁴⁹ On 21 January 2019, the Respondent wrote to the Deputy President’s Associate by email, attaching a signed copy of the undertaking,⁵⁰ and advising that it had obtained the views of each of the bargaining representatives and that they each support the undertakings and the approval of the Agreement.⁵¹ The email also attached letters the Respondent had provided to each of the bargaining representatives seeking their views on the undertakings. The letters noted that feedback may be provided directly to the Deputy President’s chambers.⁵² The letters contained a signed acknowledgement and feedback from each bargaining representative about the proposed undertakings.⁵³

[53] The Act does not circumscribe the way the Commission might seek the views of known bargaining representatives in relation to an undertaking. Specifically, there is no prohibition on the Commission utilising the employer to seek those views and communicate those views to the Commission. Whilst it is always preferable for the views of bargaining representatives to be communicated directly to the Commission, views communicated through the employer are no less valid. They are not to be impugned merely because they were sought through the employer. In the circumstances that we have highlighted above, there does not appear to us to have been anything improper in the way the Deputy President sought the bargaining representatives’ views. No appealable error is disclosed by grounds 6 and it is rejected.

Appeal grounds 3, 4 and 5 – whether employees genuinely agreed to the Agreement

[54] The Appellant contends that the Deputy President erred in being satisfied that the relevant employees genuinely agreed to the Agreement, because the Respondent did not take all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees, and that the explanation was provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

[55] The Respondent contends that s.188(1) of the Act required the Deputy President to reach a state of satisfaction based on the material before him – and reasonable minds may differ in that regard. It says the existence of the requisite opinion or belief on the part of Deputy President is a jurisdictional fact.⁵⁴ In reaching the requisite satisfaction, the Deputy President was required to evaluate whether in all the circumstances, the employer has taken all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees. It contends that the Respondent’s compliance with s.180(5) of the Act need only be established to the satisfaction of the decision-maker. Compliance with s.180(5) is not a jurisdictional fact. That is, its objective existence is not a precondition to the Commission’s power to approve the Agreement.⁵⁵

[56] So much is correct, but as the Respondent acknowledges, it is a jurisdictional fact that the Deputy President reached the requisite state of satisfaction as to, inter alia, compliance with s.180(5). Moreover, in reaching the requisite state of satisfaction, there must be material available to the Deputy President to support reaching that state. An evaluative assessment of no or insufficient information in reaching a state of satisfaction is no assessment at all.

[57] The Respondent maintains that the Decision discloses that the Deputy President reached the requisite state of satisfaction with respect to the Respondent’s compliance with the requirements of s.180(5) of the Act. It says that not only is there no error identified by the Appellant in this regard, but also that any appealable error would need to be of the kind identified House v The King.⁵⁶

[58] The Respondent points to the details provided in the employer statutory declaration about the steps it took to explain the terms of the Agreement and the effect of those terms to employees, as well as the additional information provided in its submission of 3 October 2018 to supplement the statutory declaration. It points to the fact that the Appellant relied on the Full Court’s decision in One Key Workforce Pty Ltd v CFMEU⁵⁷(One Key Workforce (No 2)) and that the Deputy President considered that decision and distinguished the factual circumstances where there was no evidence before the Commission about the quality of the explanation, and the circumstances that pertained in respect of this application. Therefore, the Respondent contends that as the application before the Deputy President bore no resemblance to the facts in One Key Workforce (No 2), the only question before the Deputy President below was whether he was satisfied that the Respondent had complied with the requirements set out in s.180(5), amongst others. The Deputy President set out in his Decision the reasons for his satisfaction. The Respondent says that it was open for him to do so, with the consequence that no error is disclosed.

[59] Section 186(2) relevantly provides:

“(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement;” 

[60] Section 188 of the Act provides:

“188 When employees have genuinely agreed to an enterprise agreement

(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps); 

(ii)  subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and 

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.”

[61] Section 180 of the Act sets out several pre-approval steps that an employer must take before employees that will be covered by an agreement are asked to approve that agreement. It relevantly provides the following:

“180 Employees must be given copy of the agreement etc.

…

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

…

(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).

…

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.”

[62] As is evident from the above, satisfaction that the Agreement has been genuinely agreed to by the employees covered by the Agreement will be achieved, inter alia, if the Commission Member dealing with an application is satisfied for the purpose of s.186(2)(a) that the employer complied with ss.180(2) and 180(5) in relation to the Agreement. 

[63] In Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd (One Key Workforce (No 1)), Flick J considered the scope and substance of an employer’s obligation under s.180(5) of the Act.⁵⁸

[64] Without repeating his Honour’s analysis, it seems to us that the following general propositions may be derived from One Key Workforce (No 1).

[65] First, whether an employer has complied with the obligation in s.180(5) depends on the circumstances of the case.

[66] Secondly, the focus of the enquiry whether an employer has complied with s.180(5) is first on the steps taken to comply, and then to consider whether:

•  the steps taken were reasonable in the circumstances; and

•  these were all the reasonable steps that should have been taken in the circumstances.

[67] Thirdly, the object of the reasonable steps that are to be taken is to ensure that the terms of the agreement, and their effect, are explained to relevant employees in a manner that considers their particular circumstances and needs. This requires attention to the content of the explanation given.

[68] Fourthly, an employer does not fall short of complying with the obligation in s.180(5) of the Act merely because an employee does not understand the explanation provided.⁵⁹

[69] That the content of the explanation given is an important consideration in assessing whether all reasonable steps were taken for the purposes of s.180(5) is made clear by the Full Court of the Federal Court in  One Key Workforce (No 2).⁶⁰ In this regard, the Full Court made the following observations about the Commission’s function in considering under s.188(a)(i) of the Act whether it is satisfied that the employer has complied with s.180(5):

“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?

117 As there was no evidence of these matters before the Commission, it necessarily follows that the Commission purported to be satisfied that OKW’s obligations under s 180(5) had been discharged without taking those matters into account. That was a jurisdictional error because the Commission did not have authority to make the decision unless its satisfaction had been informed by them. As is often the case, there are several ways of describing the error. It could be characterised as a misconception as to what the exercise of the statutory power entails or an error “as to an important attribute of the decision to be made”: Graham at [68]. Equally it could be seen as a misunderstanding on the part of the Commission of the nature of the opinion it was required to form: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ). Had the Commissioner applied his mind to the question of what the putative explanation entailed, he would inevitably have inquired into its content and terms.”⁶¹

[70] Section 180(5) of the Act is concerned with the taking of all reasonable steps to explain the terms of an agreement and the effect of those terms. How many steps and the content of those steps will necessarily depend on the circumstances. Some employers may, by reasons of the prevailing circumstances, need to take more or fewer steps than other employers with different agreements, facing different circumstances. The steps which may, in a given case, comprise “all reasonable steps” are to be assessed by reference to the circumstances of the particular case.

[71] Compliance with s.180(5) will not always require an employer to identify detriments in an agreement vis-à-vis the reference instrument, or for the employer to provide an analysis between the agreement and the relevant reference instrument, particularly in circumstances where an existing enterprise agreement, not a reference instrument, applies to the employees in their employment with the employer. The question of compliance with s.180(5) is to be judged against the circumstances that pertain at the time at which compliance was required. Section 57 of the Act makes clear that a modern award does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment. In the present case, when the explanations were given, no enterprise agreement applied to the employees and the Award did apply. An explanation of the effect of the terms of the Agreement vis-à-vis the Award was therefore capable of being relevant to the evaluative assessment of whether all reasonable steps were taken to explain the terms of the Agreement and the effect of those terms.

[72] The obligation under s.180(5) to take all reasonable steps to explain to relevant employees the terms of an enterprise agreement and the effect of those terms is an important function of the agreement-making scheme established by Part 2-4 of the Act. Its evident purpose, taking into account its role in assessing whether the employees who were asked to vote to approve an agreement genuinely agreed to the agreement, is to ensure that employees are as fully informed as practicable about the terms and effect of the terms of a proposed enterprise agreement before voting on whether to approve it.⁶² An employer’s discharge of its obligation under s.180(5) is intended to enable employees to know what they are being asked to agree to, and to understand how their wages and working conditions might be affected by voting in favour of an agreement.⁶³

[73] The information available to the Deputy President from the combination of the Respondent’s statutory declaration and its subsequent submission is at best scant as to the content of the explanation it gave its employees. The sum of that information was as follows:

•  the agreement was similar to an enterprise agreement which had previously applied to former mining operations undertaken by a parent company of the Respondent and which was well known to all of the employees (who had previously been employed under this agreement). All amendments to the previous agreement were clearly highlighted to make it easy for the employees to identify any changes. Employees were invited to discuss any concerns with management;

•  a meeting was held on site on 17 April 2018, involving three members of management and all of the relevant employees during which the attendees went through the Agreement in detail, from front to back, discussing each of the terms of the Agreement;

•  during that meeting, employees asked a range of questions about the Agreement, which were answered by management;

•  a further meeting was held on 24 April 2018, with the same attendees, during which the Agreement was again discussed at length;

•  throughout the bargaining/negotiation period and the access period, the Mine Manager was based full time on site and was available to discuss the Agreement with the relevant employees; and

•  the agreement provided for wages that were significantly more generous than the Award.

[74] This informed the Deputy President that some explanatory comparison had been given between the Agreement and another agreement that did not, at the time of the explanation, apply to the four employees, but that had applied in the past when the employees worked for a different, albeit related, employer. The information also informed the Deputy President of meetings at which management and the employees “went through the Agreement, from front to back, discussing each of the terms of the Agreement”, that questions were asked and that the Mine Manager was available on site to discuss the Agreement.

[75] That information might be sufficient to support satisfaction that the terms of the Agreement were relevantly explained, but it says nothing about what if any explanation had been given to employees about the effect of those terms.

[76] The Deputy President’s conclusion as to satisfaction in relation to s.180(5) of the Act is at [58] of the Decision, which is earlier set out in this decision. At [52] of the Decision, the Deputy President distinguishes the decision in One Key Workforce (No 2). The Deputy President reasoned that in One Key Workforce (No 2) there were no face-to-face meetings, the agreement for approval covered classifications in 11 awards, and the three employees voting on the agreement only worked across two awards and could not give informed consent in regard to occupations and industries in which they did not work. He concluded that those circumstances, or anything similar, do not exist in this application.

[77] So much is correct, but, respectfully, there are further matters that require consideration. In One Key Workforce (No 2), the Full Court made several observations about the quality of the explanation required in order to comply with s.180(5) of the Act, and the Commission’s approach to assessing compliance. It is important to remember that the Full Court said of the Commission’s approach that

“[i]n 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”.64 [our emphasis]

[78] As to the absence of information about the content of the explanation that had been given, the Full Court observed, inter alia, that

“[t]he 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”.65 [our emphasis]

[79] As should be evident from the terms of s.180(5) of the Act, the content of the explanation required is twofold. First, there must be an explanation of the terms of the Agreement. Secondly, the effect of those terms must be explained.

[80] Having regard to the information that we have earlier reproduced about the explanation given to relevant employees, we are not persuaded that there was any information based on which the Deputy President could have concluded to the requisite level of satisfaction that the Respondent explained the effect of the terms of the Agreement to relevant employees. This is because there is no information that discloses the content of that explanation (as to the effect of the terms), or that such an explanation was given.

[81] Although the Deputy President was correct that there is no express legislative requirement for an employer to raise any less beneficial provisions of an agreement with employees in providing an explanation as to the terms of an agreement or the effect of those terms, it does not follow that such an explanation will not be required in a particular case in order that there can be satisfaction that the employer has complied with s.180(5) of the Act. Much will depend on the circumstances of a given case.

[82] The circumstances in the instant case were that the relevant employees were, at the time of the vote, entitled to the terms and conditions of the Award. The Award, and not the other enterprise agreement with which comparisons were made, applied to the employees in relation to their employment with the Respondent.

[83] The employer’s statutory declaration incorrectly deposed that none of the provisions of the Agreement were less beneficial than the Award, when in fact there were clearly a number of less beneficial terms in the Agreement.⁶⁶ That there were some less beneficial terms in the Agreement compared to the Award is not in contest, since the Respondent provided an undertaking addressing some of these in order for the Agreement to pass the better off overall test.⁶⁷ There was no evidence before the Deputy President that the Respondent explained these less beneficial terms to the employees before they voted on the Agreement. The Deputy President identified the potentially less beneficial nature of the Agreement in respect of rates of pay,⁶⁸ time off instead of payment for overtime,⁶⁹ termination of employment,⁷⁰ shift start and finishing times,⁷¹ shift start and finishing places,⁷² meal breaks,⁷³ standing down employees without payment,⁷⁴ the redundancy notice period⁷⁵ and safety compliance,⁷⁶ although the last matter did not trouble the Deputy President vis-à-vis the better off overall test.

[84] In the particular circumstances of this case, we consider that reasonable steps to explain the terms of the Agreement and the effect of those terms included an explanation of the less beneficial terms of the Agreement compared to the employees’ existing terms and conditions under the Award.

[85] As we have already observed, the evidence as to the content of the explanation given says nothing about what, if any, explanation was given to explain the effect of the terms of the Agreement to relevant employees. It follows that it was not open to the Deputy President to conclude that he was satisfied the Respondent took all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees. The Deputy President therefore erred in doing so. Accordingly, we uphold appeal ground 3.

Grounds 7 and 8

[86] Grounds 7 and 8 also engage with whether the relevant employees genuinely agreed to the Agreement. Ground 7 contends error in finding that the Deputy President was satisfied that each employee had access to the relevant safety policies and procedures and that the requirements of s.180(2) of the Act were met. The error is said to arise because the Deputy President relied on a submission from the Respondent of a general nature, rather than sworn evidence, in circumstances where the Commission had received sworn evidence that was incomplete. Ground 8 contends that the Deputy President erred in failing to consider, as required by s.188(1)(c) of the Act, that there were no other reasonable grounds for believing that the Agreement had not been genuinely agreed to by the relevant employees.

[87] The latter is advanced as an alternative to ground 3 on the basis of the Full Court’s observation in One Key Workforce (No 2) that if it was wrong to conclude the Commission is bound by s.180(5) of the Act to consider the content of the employer’s explanation of the terms of the Agreement and their effect, then, in order to be satisfied that the Agreement was “genuinely agreed to” having regard to s.188(a)(i), it would for similar reasons hold that this was a matter which was not only relevant to the question raised by s.188(c), but also a mandatory consideration.⁷⁷

[88] As the matters on which the Appellant relies to make good this ground are the same in substance as those raised by appeal ground 3 and we have upheld appeal ground 3 by concluding that the Deputy President erred in being satisfied that there was compliance with s.180(5) of the Act, it is unnecessary for us to consider this ground further.

[89] It is also unnecessary to deal with so much of ground 7 as is covered by sub-ground 3 (e). As to the remainder of ground 7, the Appellant contends that the Deputy President erred in finding that he was satisfied at [40] of the Decision that each employee had access to the relevant safety policies and procedures, and that the requirements of s.180(2) of the Act were met by relying on a submission from the Respondent of a general nature, set out at [39] of the Decision, rather than sworn evidence, in circumstances where sworn evidence had been provided to the Commission, but was incomplete.

[90] This ground must be rejected. There is no requirement that the Deputy President satisfy himself as to matters by way of sworn evidence as opposed to submissions. As s.590(1) of the Act makes clear, except as otherwise provided in the Act, the Commission may inform itself in relation to any matter in such a manner as it considers appropriate. The Appellant does not set out any persuasive reason why it was not appropriate for the Deputy President to satisfy himself as to employee access of incorporated policies during the relevant period based on the Respondent’s submissions. The incomplete nature of the employer statutory declaration, without more, does not provide a reason why a submission filling in the “gaps” should not have been accepted. No appealable error is disclosed by this ground and it is rejected.

Permission to appeal

[91] Having regard to the analysis above, we are persuaded that the public interest is enlivened by the appeal, because the Appellant has identified appealable error, and because there is public interest in ensuring that the requirements of which the Commission must be satisfied when approving an enterprise agreement are properly considered, administered and applied.

Conclusion

[92] For the reasons stated, we consider that it is appropriate to uphold the appeal on the basis of grounds 2 and 3 of the notice of appeal. In those circumstances, it is appropriate to quash the Decision. Given that the Respondent might wish to supplement the material filed in support of its application to assuage the Commission’s concerns about its compliance with, for example, s.180(5) of the Act, to consider an undertaking or to make a submission that the Agreement was nevertheless genuinely agreed to by the employees covered by the Agreement because the Commission can be satisfied as to s.188(2) of the Act, we propose to remit the application for approval of the Agreement to Deputy President Bull for reconsideration.

Orders

[93] We order as follows:

1. permission to appeal is granted;

2. the appeal is upheld on grounds 2 and 3 of the Notice of Appeal;

3. the decision in [2019] FWCA 661 to approve the Ditchfield Mining Services Pty Ltd – Coal Mining Enterprise Agreement 2018 with undertakings is quashed; and

4. the application for the approval of the Ditchfield Mining Services Pty Ltd – Coal Mining Enterprise Agreement 2018 is remitted to Deputy President Bull for redetermination.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr S Crawshaw SC for the Appellant.

Mr I Neil SC and Ms V Bulut of counsel for the Respondent.

Hearing details:

Sydney.

2019.

April 17.

Written submissions:

Appellant: 18 March 2019.

Respondent: 1 April 2019.

Printed by authority of the Commonwealth Government Printer

<PR709204>

1 [2019] FWCA 661.

2 Appeal Book p 70.

3 Ibid p 69.

4 Ibid.

5 Appeal Book p 37 clause 1.2.

6 [2019] FWCA 661 [21].

7 Appeal Book pp 70, 98.

8 Ibid pp 68, 70, 98.

9 Ibid pp 64-6.

10 Ibid pp 78-86.

11 Ibid pp 111-2.

12 Ibid pp 109-11.

13 Ibid pp 90-3.

14 Ibid pp 98-100.

15 Ibid p 102.

16 Ibid p 103.

17 Ibid p 108-14.

18 Ibid pp 117-45.

19 Ibid pp 146-63.

20 Ibid p 164.

21 Ibid pp 178-87 and 191-212.

22 See, for example, ibid pp 180-7.

23 Ibid p 171.

24 Ibid pp 188-90.

25 Ibid p 188.

26 Ibid pp 191-3.

 27   Ibid pp 184-5.

 28   Ibid pp 182-3.

 29   Ibid p 183.

 30   Ibid pp 181-2.

31 Ibid p 214.

 32   Ibid pp 191-2.

33 Ibid p 214.

34 Ibid p 213.

35 Ibid.

36 Respondent’s Outline of Submission [2].

37 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 [28]-[30] (Kiefel, Bell and Keane JJ).

38 Ibid [59]-[61] (Gageler and Gordon JJ).

39 (2000) 204 CLR 82.

40 Ibid [104].

41 Appeal Book pp 109-11.

42 Ibid p 213.

43 Ibid p 149 [16].

44 [2019] FWCA 661 [41]-[58].

45 Appeal Book p 192.

⁴⁶ For this proposition, the Appellant referred to Newlands Coal Pty Ltd v CFMEU [2010] FWAFB 7401 [79] and Australian Workers' Union v Roadworx Surfacing Pty Ltd [2011] FWAFB 1759 [21].

47 Appeal Book p 91.

48 Ibid p 181.

49 Ibid p 180.

50 Ibid pp 195-6.

51 Ibid p 191.

52 Ibid pp 197-212.

53 Ibid.

54 Citing One Key Workforce Pty Ltd v CFMEU (2018) 356 ALR 535 [99].

55 Ibid [103].

56 (1936) 55 CLR 499.

⁵⁷ (2018) 356 ALR 535.

58 (2017) 270 IR 410; see, in particular, [94]-[109].

59 This will, of course, depend on the circumstances of each case. Thus, an employer who takes steps to explain the terms of an Agreement and the effect of those terms in English to a workforce that does not speak or has difficulty in comprehending English is unlikely to have taken reasonable steps.

60 (2018) 356 ALR 535.

61 Ibid [112]-[117].

62 One Key Workforce (No 1) (2017) 270 IR 410 [103].

63 One Key Workforce (No 2) (2018) 356 ALR 535 [115].

64 (2018) 356 ALR 535 [112].

65 Ibid [113].

66 Appeal Book p 74.

67 Ibid p 195, specifically [2], [5], [6], [10], [11] and [12].

68 [2019] FWCA 661 [72].

69 Ibid [83].

70 Ibid [93].

71 Ibid [98].

72 Ibid [101].

73 Ibid [104]-[105].

74 Ibid [110].

75 Ibid [115].

76 Ibid [117].

77 [2018] FCAFC 77 at [142]