[2021] FWC 1315
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

VSL Australia Pty Ltd T/A VSL Australia Pty Ltd
(AG2020/3539)

VSL AUSTRALIA PTY LTD GENERAL CIVIL CONSTRUCTION WORKS ENTERPRISE AGREEMENT 2020 - 2024

Building, metal and civil construction industries

COMMISSIONER JOHNS

SYDNEY, 11 MARCH 2021

Application for approval of the VSL Australia Pty Ltd General Civil Construction Works Enterprise Agreement 2020 - 2024

[1] An application has been made for the approval of an enterprise agreement known as the VSL Australia Pty Ltd General Civil Construction Works Enterprise Agreement 2020 - 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act) on 17 November 2020. The application was made by VSL Australia Pty Ltd T/A VSL Australia Pty Ltd (VSL/Employer). The Employer was represented by their employer association, the Master Builders’ Association of New South Wales (MBA NSW). The Agreement is a single enterprise agreement.

[2] Until it is replaced, the employees are covered by the VSL Australia Pty Ltd General Civil Construction Works Enterprise Agreement 2014-2018 1 (2018 Agreement). The 2018 Agreement passed its nominal expiry date on 4 August 2018. The Employer commenced bargaining when it issued a Notice of Employee Representational Rights (NERR) on 21 October 2020.

[3] On 25 November 2020, correspondence was received from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU/Union) requesting to be provided with copies of the application documents and requesting to be heard in the matter. In line with Fair Work Commission’s (Commission) usual practice the application documents were provided to the Union on 27 November 2020.

[4] The application was accompanied by a Form F17 - Employer’s Declaration in support of an application for approval of an enterprise agreement (Form F17) declared by Craig Commerford, Managing Director of VSL. In relation to s.180(5) of the FW Act. In answer to the question “What steps were taken by the employer to explain the terms of the agreement, what was explained and how was the effect of those terms explained to the relevant employees”, Mr Commerford declared that, on 10 November 2020, the following occurred:

  Prior to the Formal Discussion meeting, Employees intended to be covered by the proposed Enterprise Agreement were advised on how to access the Building and Construction General On-Site Award 2010 on the FWC website www.fwc.gov.au and the Building Code 2016 on the ABCC website www.abcc.gov.au

  A Formal Discussion Meeting was held at the Company project to explain the terms of the Agreement and the effect of those terms successfully. Employees confirmed that they were able to access the Modern Award and the Building Code and a copy of the current Company Enterprise Agreement 2014 - 2018.

  During the Discussion Meeting, reference was made to the standards prescribed and the differences in wage rates and allowances from the Building and Construction General On-Site Award 2010, the current 2014 – 2018 Company Enterprise Agreement and the proposed new Agreement.

  Employees were advised that the wage rates contained in Appendix 2 of the Agreement were set higher than the current award rates and those in the current agreement and that they will increase annually during the life of the Agreement.

  The proposed classifications correspond to the Award classifications, the current 2014 - 2018 Enterprise Agreement and Appendix 1 of the new Agreement was explained.

  The Travel Arrangements at clause 6 of the Agreement were explained and discussed. This included the Distant Work Provisions and Allowances.

  Leave Entitlements in the Agreement were discussed and considered broadly consistent with the Award.

  Hours of Work and Overtime provisions were discussed and considered to be consistent with the Award including meal breaks, overtime crib breaks and payment of a meal allowance.

  The Shift Work provisions of the Agreement were also discussed and regarded as consistent with the Award.

  Employees actively participated in the Discussion Meeting with all their questions being answered to their satisfaction.”

[5] Other than the simple assertion that the terms of the Agreement “were explained successfully”, no other information was provided about what was explained. Self-serving statements by an employer about compliance are not sufficient to discharge the proof required in relation to s.180(5) of the FW Act.

[6] An administrative legislative assessment of the Agreement, including compliance with the necessary pre-approval steps, was conducted. In accordance with my usual practice, on 1 December 2020, I sent a copy of the Legislative Checklist to the MBA NSW /Employer. The Legislative Checklist noted that,

“Employer to take all reasonable steps to explain terms of the Agreement to employees

Q22 and Q23 state that the employer explained the Agreement to employees in a meeting. Q23 states that the employer compared the Agreement to the agreement that currently apples to employees. Q22 and Q23 do not indicate any other steps taken by the employer to explain the Agreement to employees (i.e. Q22 and Q23 do not indicate if employees were given any documentation which explained the Agreement, or compared the Agreement to the Award). This raises the issue of whether the employer took reasonable steps to explain the terms of the Agreement and the effect of the terms to employees as required by s.180(5)(a) of the Act in light of the considerations set out in One Key.

Please provide further information and/or evidence as to the steps taken by the employer to explain the terms of the Agreement and the effect of the terms to employees in light of the considerations set out in One Key.

[7] The reference to One Key was a reference to the decision of the Federal Court of Australia (Flick J) in Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd2 1 In that decision his Honour was required to address what it means to comply with s.180(5) of the FW Act.

[8] Section 180(5) provides that,

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.

(my emphasis)

[9] His Honour held that,

“[108] The response provided to the Commission in para 2.6 of the F17 Statutory Declaration was misleading to the extent that it asserted on behalf of One Key Workforce that the “terms of the Agreement and the effect of the terms were explained to the relevant employees” by means of either the 25 August 2015 email or during the “telephone conversations”.

[109] Such reasons as were provided by the Commissioner at para [9] of his reasons for decision expose jurisdictional error. Little, if any, consideration was given to what were the “steps” in fact taken by the employer or the adequacy of those steps. Such consideration as was given was more directed to the subject-matter of the information communicated rather than to the content of the information communicated or the effectiveness of the communication of that information or (for that matter) what was not communicated.

[110] Separate from that source of jurisdictional error is the further conclusion that there must in fact be compliance with s 180(5) before the power of the Commission to “approve” the agreement arises. Although the Commission must form a state of “satisfaction” for the purposes of s 188(a)(i) of the Fair Work Act as to whether an employer has “complied with” s 180(5), its statement of having reached that state of “satisfaction” cannot transform a manifestly inadequate explanation process into one which complies with s 180(5). That factual inquiry, on this alternative basis, remains a matter that this Court can examine.

[111] On this alternative basis, it is further concluded that the approval process entrusted to the Commission miscarried.”

[10] An appeal against the decision of Flick J was dismissed by the Full Federal Court of Australia (Bromberg, Katzman and O’Callaghan JJ) in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union3 The Full Court observed that,

“[111] The only material before the Commission on compliance with s 180(5) was contained in Ms Ind’s statutory declaration. Although the statutory declaration was silent as to the content of the explanation or, indeed, as to the substance of the communications, OKW submitted that the declaration itself was some evidence upon which the Commission could form the requisite state of satisfaction. That may be so, but it was by no means enough to enable the Commission to lawfully reach that state.

[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] HCA 40; (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] HCA 47; (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.

[11] One Key mandates the Commission to focus its enquiry on the steps actually taken to comply s.180(5) and to consider whether:

a) the steps taken were reasonable in the circumstances; and

b) these were all the reasonable steps that should have been taken in the circumstances. 4

[12] [12] The task before the Commission “requires attention to the content of the explanation given.” 5

[13] On 3 December 2020, I issued directions that provided the MBA NSW/VSL the opportunity to respond to the concerns raised in the Legislative Checklist, including the One Key Issue, by 17 December 2020. The directions also set out the timetable for the filing and service of materials should the matter need to proceed to hearing.

[14] On 11 December 2020, MBA NSW provided undertakings and submissions. In the submissions the MBA NSW made a number of assertions of fact. It provided no evidence to support the assertions it made.

[15] On 22 December 2020, the parties requested, by consent, for a mutual extension of time to provide their materials. On 24 December 2020 I granted the request.

The hearing

[16] The matter was heard on 5 February 2021. The Applicant was represented by Mr I Jarman of the MBA NSW. I determined that I would be assisted by the participation of the CFMMEU. I granted the Union a limited opportunity to participate in the proceedings pursuant to s.590 of the FW Act. The Union was represented by Mr D Syron of the Union.

[17] In coming to my decision, I have had regard to all of the material filed in this matter, including the following documents:

EXHIBIT

 

DOCUMENT TITLE

1

 

Form 16 dated 20 November 2020

2

 

Form 17 dated 19 November 2020

3

 

How and when to vote for approval document (undated)

4

 

Notice of appointment of bargaining agent dated 21 October 2020

5

 

Privacy Consent Letter dated 21 October 2020

6

 

Notice of employee representational rights (undated)

7

 

VSL Australia Pty Ltd General Civil Construction Works Enterprise Agreement 2020 – 2024

8

 

VSL Australia Pty Ltd submissions filed 11 December 2020

9

 

Section 190 Undertaking dated 10 December 2020

10

 

CFMMEU Submissions dated 7 January 2021

11

 

VSL Australia Pty Ltd Submissions dated 14 January 2021

12

 

Statement of Mr Andrew Manser dated 12 January 2021

13

 

Statement of Mr Huw Riley dated 20 January 2021

14

 

CFMMEU Submissions in reply dated 29 January 2021

15

 

Fair Work Commission Agreement Checklist

R1

 

Attachment to Statement of Mr Huw Riley

Witness evidence provided

[18] As stated above, the Commission having raised (amongst other things) the One Key issue neither the Form F17 nor the submissions filed on 11 December 2020 provided any “cogent evidence about what employees had been told before they cast their vote…”. 6

[19] On 14 January 2021 the MBA NSW filed further submissions in relation to the matter. It also filed a Witness Statements from Andrew Manser, General Manager of Civil Works, VSL Australia and Huw Riley, Construction Manager.

[20] In relation to explaining the effect of the terms of the Agreement Mr Manser stated the following,

“A discussion meeting was held at 12:00 pm on the 10th of November. The key discussion points in this meeting were:

3. General review of the EBA.

4. Detail of the changes to the new EBA.

We also explained that further questions / clarifications are welcome after this meeting these could be made either personally to myself or to site management.”

[21] Mr Riley agreed with Mr Manser’s account of the meeting.

[22] Notwithstanding the statements (and the fact that it was VSL’s third attempt at addressing the Commission’s One Key concerns) I remained none the wiser about the content of the explanation given to the employees before they voted on the Agreement.

[23] At the hearing on 5 February 2021 no further evidence was led by VSL.

What explanations were given to the employees?

[24] One important difference between the Agreement and the 2018 Agreement is that the Agreement incorporates the Building and Construction General On-site Award 2010 (see clause 3.4.2). The 2018 Agreement did not by operation of law.

[25] This causes this matter to be akin to the decision of Deputy President Gostencnik BGC Contracting Pty Ltd 7 where his Honour was concerned (amongst other things) with a replacement enterprise agreement that, unlike the predecessor agreement, incorporated the Black Coal Award. He held,

[86] I accept BGC’s contentions that it should not be required to overcome a “higher than usual bar” in respect of the s.180(5) obligation. But s.180(5) is concerned with the taking of all reasonable steps to explain. 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 be required by “all reasonable steps” is be assessed by reference to the circumstances of the particular case.

[87] I also accept that compliance with s.180(5) will not always require an employer to identify detriments in an agreement vis--vis the reference instrument or for the employer to provide an analysis between an agreement and the relevant reference instrument in circumstances where an existing enterprise agreement, not a reference instrument, applies to the employees in their employment with the employer. But as I have already stated, 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. That was the case at the relevant time that explanations were given vis--vis the 2012 Enterprise Agreements and the Mining Award, it would continue to be so in relation to the Agreement, if the Agreement is approved by the Commission. That is the effect of an operative enterprise agreement, save in circumstances where an agreement itself incorporates a modern award, but those terms operate in relation to relevant employees as terms of the agreement. Here there was an additional circumstance, the incorporation of the identified provisions of the Coal Award. These were new provisions to be introduced into the Agreement, which were not part of the 2012 Enterprise Agreements and the Coal Award did not cover the relevant employees.

[88] The relevant employees to be covered by the Agreement were at the relevant time, subject to the application of existing enterprise agreements. Insofar as the terms of the Agreement would have had any relevant effect on existing terms and conditions, it was to displace the application of the terms of the existing agreements. That effect was explained to those employees in considerable detail, in particular as set out in the comparative table.

….

[93] With the exception of the terms of the Coal Award incorporated in the Agreement by Schedule A thereof, I would otherwise be satisfied that BGC took all reasonable steps to explain the terms of the Agreement and their effect to the relevant employees. In my opinion, BGC did this through a combination of communications with relevant employees. The evidence is that it did so during return to site meetings, pre-shift meetings and consultative committee meetings. It did so on an ad hoc basis through discussions with individual employees. It did so through a series of FAQ documents. It also did so by providing to employees the Final Information Pack. This included detailed tables comparing the terms of the Agreement and the 2012 Enterprise Agreements, the Reference Document, and information about the Preserved Conditions Contracts.

[94] Turning then to the issue of the explanation of the incorporated terms of the Coal Award. BGC readily conceded that it did not initiate or publish any explanation about the Agreement as it would apply to employees performing work in black coal mining. 96 It is uncontroversial that no relevant employee was working in black coal mining at the time of the explanations and at the time that employees voted to approve the Agreement. There is also no evidence that the relevant employees had any particular or relevant experience in black coal mining. The distinction BGC sought to make between One Key Workforce (No 1) and the circumstances applicable here, by pointing to the differing “effect” vis--vis the reference or existing industrial instruments of the impugned agreement in One Key Workforce (No 1) does not assist it. It was required to take all reasonable steps to explain the effect of the incorporated provisions of the Coal Award, but it took no steps to do so.

[95] BGC contends that as there were no employees employed by it at the relevant time engaged in the black coal mining industry it was reasonable in the circumstances to make available an opportunity for employees to ask questions of management about all matters concerning the Agreement including the terms and effect of those terms as they would apply to employees who might work in the coal mining sector in the future.  BGC did explain to employees that it was seeking an Agreement in order that it may remain competitive in the market and to win new work including in coal mining.

[96] Whether the steps taken by an employer to explain the terms of an agreement and the effect of those terms to relevant employees were reasonable steps or were all reasonable steps is, as I have already indicated, to be assessed in the circumstances faced by the employer. Whilst the fact that there were no relevant employees employed by BGC at the relevant time working in black coal mining is a relevant circumstance, the absence of such an employee does not relieve the employer of the obligation to explain to the relevant employees the terms of the agreement and their effect. This is so even if those terms will have no immediate effect upon the relevant employees. Were it otherwise, an employer would only have an obligation to explain the terms of the agreement and their effect to employees insofar as those terms have any application to the relevant employees who are asked to vote to approve the agreement.

[97] Section 180(5) places an obligation on an employer to take all reasonable steps to explain the terms of an agreement and the effect of those terms to relevant employees. It does not delineate between those terms that may have effect on relevant employees and those terms which will have no effect on relevant employees. As I have already noted, the distinction between the effect of the impugned agreement in One Key Workforce (No 1) and this Agreement sought to be made by BGC does not assist it. The explanation given by an employer is one of the vehicles through which an employee becomes informed about the terms of the agreement and is able to then give informed consent, or to use the statutory phrase, to genuinely agree to the agreement. An employee voting to approve the agreement is not asked to vote to approve only those terms and conditions of an agreement which will have application to that employee. The employee and indeed all employees who will be covered by the agreement are asked to vote for or against the totality of the agreement not just aspects of it. It is for this reason that an employer is obliged by s.180(5) to take all reasonable steps to explain the terms of the whole agreement and the effect of those terms to relevant employees.

[98] The view I have expressed above is reinforced by the Full Court’s judgment in One Key Workforce (No 2).

[99] In this case, it is clear that apart from making available the opportunity at various fora to relevant employees to ask questions, BGC took no other material step to explain to relevant employees the terms of the Coal Award which are incorporated in the Agreement by Schedule A or the effect of those terms. The incorporated terms were not trifling, insignificant, or inconsequential so that no or minimal explanation need have been given. These were substantive terms. That the employees were not working in, nor had experience in, black coal mining, meant that a more not less comprehensive, explanation was warranted in the circumstances in order that informed consent might be given. The employer was required to take all reasonable steps to explain these terms and their effect and it did not do so. It took no step. In these circumstances I am not satisfied that the employer has complied with its obligation under s.180(5) of the Act to explain the terms of the Coal Award that are incorporated in the Agreement by Schedule A or the effect of those terms to relevant employees.

[26] The Agreement is not a roll-over agreement. It contains new terms that are not trifling, insignificant, or inconsequential so that no or minimal explanation needed to be given. This is not about requiring a system of perfection. However, a mere statement that “detail of the changes to the new EBA” is clearly woefully inadequate and is not cogent evidence of what was explained to employee before they voted.

[27] There are substantive terms in the Agreement that required a proper explanation. It would have been reasonable to do so. An omission to explain is of “particular significance in circumstances where there were material differences between” the old and new agreement: see Construction, Forestry, Maritime, Mining and Energy Union v McNab Constructions Pty Ltd8 The failure to explain the effect of them means that VSL did not “take all reasonable steps” as required by s.180(5) of the FW Act.

Conclusion

[28] For the reasons set out above:

a) I am not satisfied that VSL took all reasonable steps to explain the terms of the Agreement or the effect of those terms to relevant employees.

b) Consequently, I am not satisfied that the relevant employees genuinely agreed to the Agreement as described in s.188 of the FW Act.

c) Accordingly, I am not satisfied as to the matter in s.186(2)(a) of the FW Act.

[29] In BCG (No 2)  9 the Deputy President held,

[43] The evident purpose of ss.180(2) and (5), as is clear from their inclusion in s.188 and thus s.186(2)(a), is to ensure so far as is practicable that employees who are asked to vote to approve an agreement make an informed choice as to whether or not they will vote to approve the agreement. That is, the choice that an employee makes in deciding whether to cast a vote to approve the agreement is to be informed by, relevantly, having access to the agreement and any material incorporated by reference during the relevant period, and importantly by having the terms of that agreement (including incorporated terms) and their effect explained. The failure to take all reasonable steps vis-a-vis the material incorporated and the explanation of the terms and their effect means that employees who voted to approve the agreement were deprived of the benefit of very important pre-approval steps designed to ensure that relevant employees genuinely agree to the agreement.

[45] An employer cannot know which employees will and which will not vote in the agreement approval process, how employees will vote or the reason employees vote in a particular way. Voting is not compulsory. Thus the preapproval steps play an important role in providing information to employees so that the employees can each choose whether or not to participate in the voting process, and if so whether to vote to approve the agreement. The mischief sought to be overcome is to ensure that employees understand the terms of the agreement as a whole upon which they are asked to vote. This mischief and the concern that employees did not genuinely agree to the Agreement is not overcome or met by accepting the genuine agreement undertaking proffered by BGC, which in essence is about the ongoing application of the Agreement (through a self-imposed restraint on employment) in respect of certain classes of employees and not about the fundamental issue of whether the Agreement was genuinely agreed to by employees covered by it. That a future cohort of voting employees may make an informed choice about varying the Agreement (alone or coupled with a restraint on employment until any future variation takes effect) does not meet the concern that those employees asked to approve the Agreement in June 2016 did not have information designed to enable them to make an informed choice about whether to approve the Agreement.

[30] In the BCG matter the Deputy President allowed the employer an opportunity to offer up undertakings to deal with the genuinely agreed issue. Undertakings were offered, but the Deputy President was ultimately not “persuaded that the genuine agreement undertaking, [met] the concern identified in [his] earlier decision.” 10 The application for approval of the decision was dismissed.

[31] In this matter I have decided to allow VSL an opportunity to proffer undertakings aimed at curing the genuinely agreed issues.

[32] It may be that given the nature of my concern, it would be extremely difficult to meet my concern with an undertaking. This proposition is best explained by reference to the Full Bench decision in Construction, Forestry, Maritime, Mining and Energy Union v Karijini Rail Pty Ltd, where it was said that:

“…a concern about whether an employer has complied with s.180(5) and therefore whether the agreement has been genuinely agreed to by the relevant employees, may as a matter of logic be remedied depending on the nature of the concern. It is accepted that in a number of cases concerns about genuine agreement will not be able to be met by an undertaking. But it is not the case, as a matter of logic, that any such concern could never be met. Why for example, could not a concern that an employer explained the effect of a term of the agreement as to shift work was that an afternoon shiftworker would receive a 15% loading under the agreement, when the agreement only provides for a 10% loading, be met by an undertaking that the employer would pay an afternoon shiftworker a loading of 15%? We consider that such an undertaking would remedy the concern since the agreement operating with the undertaking is consistent with the explanation given.” 11

[33] The example above unfortunately does not align with the circumstances in this case. The genuine agreement concern is much broader. Nevertheless, the Applicant will be afforded the opportunity to provide undertakings to meet the genuine agreement concern articulated.

[34] Any undertakings that the Applicant wishes to provide to meet the concerns are to be provided to my Chambers by no later than by 10.00 am on Friday 12 March 2021.

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COMMISSIONER

Appearances:

Mr I Jarmann of Master Builders’ Association of New South Wales for the Applicant
Mr D Syron for the Construction, Forestry, Maritime, Mining and Energy Union

Hearing details:

2021,
Sydney (By Microsoft Teams),
5 February.

Printed by authority of the Commonwealth Government Printer

<PR727678>

 1   [2014] FWCA 5250 <AE409420>

 2   [2017] FCA 1266.

 3   [2018] FCAFC 77.

 4   BGC Contracting Pty Ltd [2018] FWC 1466, [76].

 5   Ibid, [77].

 6   CFMEU v Dawsons Maintenance Contractors Pty Ltd [2018] FWCFB 2992 at [41].

 7   [2018] FWC 1466.

 8   [2020] FWCFB 5080, [26].

 9   [2018] FWC 6936.

 10   [2018] FWC 6936, 46.

 11   Construction, Forestry, Maritime, Mining and Energy Union v Karijini Rail Pty Ltd [2020] FWCFB 958 at [107].