DECISION

Fair Work Act 2009
s.604—Appeal of decision

Construction, Forestry, Maritime, Mining and Energy Union
v
Karijini Rail Pty Limited
(C2021/885)

Appeal against decisions [2021] FWC 364 on 29 January 2021 and [2021] FWCA 2154 on 19 April 2021 of Deputy President Beaumont at Perth in matter number AG2018/3844.

Introduction

[1] On 14 August 2018 Karijini Rail Pty Ltd (Karijini) applied under s 185(1) of the Fair Work Act 2009 (FW Act) for approval of the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 (Agreement). The Agreement was said to have been made with Karijini’s two employees on 2 August 2018. Although not a bargaining representative for the proposed agreement, the Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU) was permitted to participate in the subsequent approval proceedings. It opposed the approval of the Agreement on several grounds. The Agreement was approved by Deputy President Beaumont with undertakings on 16 September 2019,¹ after the Deputy President had in an earlier decision issued on 30 April 2019 2 rejected a number of objections to approval of the Agreement advanced by the CFMMEU. The CFMMEU appealed the decision to approve the Agreement and, in a decision issued on 3 March 2020³ (appeal decision), permission to appeal was granted, the appeal was upheld in part and the Deputy President’s decision to approve the Agreement was quashed by a differently constituted Full Bench. The application for approval of the Agreement was remitted to the Deputy President for redetermination in accordance with the appeal decision.

[2] After conducting a further hearing on remittal, on 29 January 2021 the Deputy President published a decision setting out her reasons, inter alia, for rejecting the various grounds advanced by the CFMMEU against the Agreement’s approval (first decision).⁴ On 19 February 2021 the CFMMEU lodged an appeal, for which permission is required, against the first decision. The appeal was listed for hearing before us on 22 April 2021. On 19 April 2021 the Deputy President issued a decision in which she approved the Agreement with undertakings (approval decision).⁵ The approval decision also set out the Deputy President’s reasons for earlier declining several applications by the CFMMEU for orders for the production of documents by various entities related to Karijini.

[3] At the appeal hearing, by consent, we granted the CFMMEU leave to amend its notice of appeal to include the approval decision as subject to the appeal and to amend its appeal grounds as earlier foreshadowed in its filed outline of submissions.⁶

Factual background

[4] In order to explain the issues raised by the appeal, it is first necessary to set out in some detail the factual background and to make some observations about it.

[5] Railtrain Pty Ltd (Railtrain) is essentially a labour hire company supplying railway workers, mainly train drivers, to businesses in the rail and mining industries in Queensland, New South Wales, Victoria and Western Australia. 7 Karijini, TRRC Pty Ltd (TRRC) and several other corporate entities are related entities of Railtrain.⁸ All of these entities are part of the “Railtrain Group”, of which the holding company is Railtrain Holdings Pty Ltd. The group operates in various areas of the Australian rail industry and provides, inter alia, train drivers to operate trains including in the mining industry.9

[6] TRRC previously held a contract with Roy Hill Infrastructure Pty Ltd (Roy Hill) to provide it with rail crew labour. 10 This involved TRRC providing approximately 50 of its train crew employees (TRRC employees) to Roy Hill to drive trains hauling iron ore from its mining operations in the Pilbara in Western Australia. The employment of TRRC employees was covered by the TRRC Pty Ltd Operations Agreement 2014 (TRRC Agreement), the nominal expiry date of which was 21 January 2019. TRRC’s contract with Roy Hill was due to expire by 1 November 2018.11

[7] In May or June of 2018 Roy Hill held discussions with TRRC about the possibility of it being awarded a new contract for a further 4 years. 12 The evidence of Mr Graham Butler, who was employed as the Director of Business Transformation with Railtrain, and was a director of Railtrain, TRRC and subsequently Karijini, concerning the discussions with Roy Hill and the circumstances surrounding the discussions was as follows:

Why did TRRC not continue with the contract?---TRRC at the time that we met with Roy Hill prior that there was an opportunity to extend our commercial contract, our TRRC contract – sorry, our enterprise agreement was expiring in January. The commercial arrangement with TRRC was expiring 1 November, and the opportunity for us was if we could have an enterprise agreement to match the commercial agreement, Roy Hill would then offer us the same term to continue onto business. So for us it was about securing four more years work for the drivers and also a commercial agreement for our business.

I see. So the agreement was expiring, and, what, you need an unexpired agreement to have the contract or - - -?---Not necessarily an unexpired, however, the commercial contract was getting renewed on 1 November, and we had to have an agreement in place prior to that.

But the agreement was still in place at TRRC, wasn't it?---The agreement was expiring in January. I think end of January it was.

Yes?---But the opportunity for us was to get a new enterprise agreement, to get a commercial agreement in place before 1 November before the old commercial agreement with TRRC expired on 1 November.

But that opportunity – so it was all about getting a new agreement in place. That was - - -?---To have a clear pathway that we could match the commercial agreement with an enterprise agreement, then we'd be allowed to continue to have a commercial agreement with Roy Hill.

And you couldn't do that with TRRC?---Well, we had to have this in place before the contract expired on 1 November, and the enterprise agreement was not expiring until January with TRRC.

That you had an enterprise agreement with?---Which was expiring.

In January?---2019.

And that was a problem?---Yes.

Okay. So when did you realise that that was a problem?---Just in early discussions with Roy Hill around about May/June is we had our first discussions and they said if we had an enterprise agreement to match the commercial agreement, then they would – then we'd have a contract going forward with Roy Hill.

I see. So Roy Hill, what, encouraged you to set up another - - -?---No, no, Roy Hill didn't encourage that. They just said if we had an enterprise agreement they would match the commercial agreement.¹³

[8] It is apparent from Mr Butler’s evidence that TRRC was under some commercial pressure to make a new enterprise agreement which would align with the commercial contract Roy Hill was prepared to offer post 1 November 2018. Mr Butler said that apart from requiring an in-term enterprise agreement to operate for the duration of the commercial contract there needed to be “a pathway to marry the contract . . . [T]o have an agreement to marry the - to mirror the contract”.¹⁴ It is also clear from Mr Butler’s evidence that TRRC (or perhaps more properly, Railtrain) was concerned to secure four more years’ work for the TRRC employees and a commercial agreement for the business.¹⁵

[9] In early 2018 the CFMMEU appears to have raised with TRRC the prospect of negotiating a new enterprise agreement but was told that “the company was not ready to start negotiations yet but they would contact” the CFMMEU when ready to do so.¹⁶ TRRC made no attempt to bargain with its workforce for a new enterprise agreement in order to secure a contract and secure the on-going employment of its driver workforce. Mr Butler’s evidence was that after taking advice, “we [presumably including the Railtrain Board discussed further below] made the decision collectively that [i.e. seeking an enterprise agreement with TRRC employees] wasn't the best course of action”.¹⁷ The evidence was that a consideration in Railtrain’s decision not to bargain for a new agreement with TRRC employees was that it did not want to bargain with the CFMMEU, which would have been a default bargaining representative for such an agreement.¹⁸

[10] The Railtrain Board decided to take a different path.¹⁹ A new entity, Karijini, was incorporated on 22 June 2018 for the purpose of securing a new contract with Roy Hill.²⁰ The incorporation of Karijini is said to have occurred as part of or at the same time as a restructure of the Railtrain Group involving a restructure of five business units in the group.²¹ Nonetheless, whether part of a restructure or not, the decision to incorporate Karijini was made to enable an enterprise agreement to be made to “match the commercial agreement” which Roy Hill would offer.²²

[11] The reason for the decision made by the Railtrain Board is far from clear. Although the decision was said to have been made after “weigh[ing] up all the various factors”²³ and on the basis of advice as to the “relative merits of all the options, the organisation [Railtrain or the Railtrain Group] chose to utilise Karijini”²⁴, what those factors and the relative merits of all the options were was not disclosed by Karijini’s witnesses. Attempts by the CFMMEU to obtain information during cross-examination of Karijini’s witnesses about those factors appear to have been met with evasion. For example, Mr Christopher Elston, Railtrain’s General Manager, Operations Support Services, gave the following evidence in cross-examination:

Mr Elston, you've told the Commission that alternatives were considered and I'm not going to ask you anything else about what the alternatives were. Ultimately obviously the decision was made to incorporate Karijini employ two employees and make an agreement with those two employees, we know that?---Correct.

In terms - I'm sorry, it was a long question but it involves a couple of propositions as preliminary points. You gave evidence that some alternatives were considered and I'm not asking you anything about those alternatives and ultimately the option which was taken was to use Karijini employ two employees and make an agreement in that way?---Correct.

And what I want to suggest to you is that the reason that that option was taken rather than any other option was so that Railtrain could make an agreement through Karijini with two employees rather than negotiating an agreement with the workforce that was at the time performing work on the Roy Hill operations?---After due and careful consideration the decision was made to use Karijini as the legal entity and put an EA in place through Karijini.

Yes, I'm well aware that's what's happened, Mr Elston, what I'm asking you about is the reason why that option was chosen and I've put to you that the reason was that - so that there would be no necessity to negotiate a new agreement with the TRRC employees. That's the proposition I'm putting to you. Do you agree with it?---Do I agree that that was the basis upon which the decision was made?

Correct?---No, I don't.

I see. I further suggest to you that there was no logical reason other than the reason I've put to you, why that particular option was ultimately taken, that is the Karijini option?---I'm sorry, I must admit what - I must have missed the question in that.

Yes. I'm suggesting to you that other than the reason which I put to you which you've just disagreed with, there was no logical reason why you should take that option, the Karijini option?---In our discussions looking at the options a number of factors were taken into account and from an organisational perspective utilising Karijini as the appropriate vehicle to put the EA in place, was deemed to be the best and most appropriate in the circumstances.

And why was that?---Again, they were discussions that took place in our conversation with our legal advisor taking into account all the various and necessary factors.

So you're unable to tell the Commission why that option was preferred over other options?---It was the most suitable option for our business at that particular point in time.

Yes. I'm trying to ask - trying to give you the opportunity, Mr Elston, to explain why that was the case. I understand that that was the decision taken. Are you able to assist in any way as to why that was the preferred option rather than the other options which you considered?---As with all the decision-making in the entire organisation you weigh up all the various factors and in this case make an advice on the relative merits of all the options, the organisation chose to utilise Karijini.²⁵

[12] As a further example, Mr Butler gave the following evidence in cross-examination:

MS HOWELL: …Mr Butler, the question was did Railtrain consider whether arrangements could or should be put in place that would enable the employees working at Roy Hill to bargain for an enterprise agreement that would cover their employment?---Again, from a board perspective we considered different options, but under the option - obviously the KR option was the best option for Railtrain Group.

Did the board again receive documents, discussion papers, recommendations, that that route should be taken?---Again, I don't remember documents, but there was definitely discussions with the board, with Mr Elston, about different optionality, and the board collectively made a decision to pursue the KR - - -

Accepting that the board and yourself considered a range of options, what I'm asking you is did the board or yourself or Mr Elston, to your knowledge, consider putting in place arrangements that would enable the TRRC employees - I withdraw that - the employees who worked at Roy Hill - other than the two Karijini employees who ultimately made the agreements, those other employees, did yourself or the board consider whether arrangements could or should be put in place which would enable those employees to bargain?---Again, we had a discussion with the group about what - Railtrain Group, its best pathway would be, and we considered all options, and the KR path was the most effective way forward for us as a business - businesses.

In what respect was it the most effective option?---Again, to - back to Roy Hill, to have an agreement that was going to have the life of the contract. So that was the option that was put to us from Roy Hill and we believed the very best - the way to do that.

Why didn't you just negotiate an agreement with the TRRC employees which would come into effect on the termination of their existing agreement?

. . .

MS HOWELL: Mr Butler, do you recall the question?---Sorry, can you just repeat that?

Yes. The question was why didn't you seek to negotiate with the TRRC employees for an agreement which would come into operation on the expiry of their old agreement?---Again, I just refer to our advice to the board was that the best option for us was to negotiate our agreement so it's considered, given options, but the best option was the KR agreement going forward.

Mr Butler, I'm sorry, I don't think that really answers my question. For what reason did you determine that the option of negotiating a new agreement with the employees actually performing the work was unacceptable?---From advice from Mr Elston and others about that's not the favoured option. So, you know, I'm no expert in the optionality, but that was the advice given to the board, and as a board member we took that advice.

So you've got no idea why that advice was given?---It wasn't the best course of action.

Why wasn't it the best course of action?---Because the agreement - to get a KR agreement for a life of the contract was the best option. So we considered different options, but that wasn't the preferred option.

You accept that it was possible to negotiate with the TRRC employees for an agreement which commenced at the expiry of the existing agreements in January 2019. You accept that that was a possibility?---Yes, that was a possibility.

You knew that that was a possibility at the time these decisions were made?---Yes, correct.

What I'm asking you to explain, Mr Butler, is why that option was not considered to be acceptable and a viable (indistinct)?---Well, again, back to the group's statements, that it could have caused disruption to continuity of work, it wasn't an option.

If you'd negotiated an agreement to come into operation immediately following the expiry of the existing TRRC agreements then there was no possibility of disruption of work, was there?---By again getting the agreement done. So the agreement was the best course of action was KR so we could continue work.

So, Mr Butler, what I want to put to you is that in the evidence which you've given so far you've provided no substantive reason why the option of negotiating with the Roy Hill employees for agreements to commence immediately after the expiry of the TRRC agreements (indistinct). That is what I'm suggesting to you. Do you agree (indistinct)?---Again, we took advice and we made the decision collectively that wasn't the best course of action, no.

And you're not able to assist the Commission as to why that wasn't the best course of action?---We believed it could have caused disruption and the easiest way forward for us - the best way forward was the KR agreement - - -

How - - -?---(Indistinct) the operations.

Sorry. How could that option have caused disruption, Mr Butler?---Again, if the agreement didn't get made and the agreement expired, it could have caused disruption, so the best course of action that was presented to us was the KR agreement.

So what you're now saying is the possibility that you would be unable to (indistinct) an agreement despite your best efforts. That was (indistinct), was it? That was the good option.

. . .

MS HOWELL: If you had made an agreement with the TRRC employees which had commenced at the expiry date of the old agreement, in those circumstances there was no possibility of disruption, was there?---Again, there was no guarantee that that would happen.

So there was no guarantee, was there, that you'd be able to make an agreement with the two Karijini employees?---Possibly not, but we still believed that was our best course of action.

I see. So the reason you didn't even attempt to make - I withdraw that. First of all, you agree that you didn't even attempt to make any kind of agreement with the Roy Hill workforce before entering into the Karijini agreement?---That's correct.

And you say - is it your evidence that the reason you didn't do that was because it was possible that you might have been unsuccessful in negotiating an agreement with them? Is that right?---Possibly. That was the advice given to us.

When you say that was the advice given, what advice are you referring to?---Through Mr Elston and his - the relations with our executives.

So you're saying that Mr Elston advised you that it was undesirable to try and make an agreement with the TRRC employees because you might be unsuccessful in that endeavour. Is that right?---It was presented to the board, the different options of what we could and couldn't do, and the KR option was the option that the board chose.

Is it your evidence that Mr Elston or anyone else in the organisation recommended to the board that it was undesirable to try and reach an agreement with the TRRC employees because that endeavour might have been unsuccessful. Is that your evidence?---Yes, with advice. That was the communications to the board, it wasn't the preferred option. That's correct.²⁶

[13] In order to make an enterprise agreement, Karijini needed at least two employees to make the agreement with, given that it did not propose to make a greenfields agreement²⁷ (which, even if permissible, would have required it to negotiate with the CFMMEU or some other union with the requisite coverage). Karijini employed two train drivers, with whom the Agreement was subsequently made, commencing on 9 July 2018. Mr Butler’s evidence was that after Karijini was incorporated, there was a need to employ two train drivers because TRRC required an additional two drivers in order to fulfil its obligations under the contract with Roy Hill at that time. He said that TRRC did not want to employ additional drivers directly because the contract was coming to an end and it was therefore likely that it would not require this labour on an ongoing basis. He said that it was determined that Karijini could assist with TRRC's need by employing two employees who could be seconded to TRRC until its contract came to an end. 28

[14] The two employees engaged by Karijini were known to Mr Butler (who was now a director of Karijini and was also said to be the General Manager of Karijini), he having previously managed them during his prior employment with the Skilled Group. 29 It is not in dispute that, at all relevant times during their employment with Karijini and when the Agreement was not in operation, the Mining Industry Award 2010 (Mining Award) applied to the employment of the two employees. However, the offers of employment made to the two employees state that their positions are covered by the Rail Industry Award 2010 (RI Award). Mr Butler explained in his evidence that the letters of offer mistakenly refer to the RI Award (“an administration error”)³⁰ and accepted that the two employees were actually covered by the Mining Award. It is reasonably clear that the mistake was never corrected at any time prior to the making of the Agreement, since Karijini only identified the mistake at the time that statements of evidence were being prepared for the purpose of the contested proceedings before the Deputy President.³¹ Moreover, it is not just the reference to the relevant award in the offers of employment which was mistaken. Clause 3.3 of the letter of offer32 set out provisions of the relevant award (by reference to clause numbers) which were said to be absorbed by the excess rate of pay offered compared to the relevant award. The table below sets out the term identified in the letter of offer and the corresponding term in the two awards.

[15] Clause 10.2 of the letters of offer provides that “...superannuation will be paid in accordance with clause 19 of the Modern Award”. Clause 19 of the RI Award deals with superannuation whereas clause 19 of the Mining Award deals with maximum weekly hours.

[16] As earlier stated, the evidence before the Deputy President was that the reference in the letters of offer to the RI Award was simply a mistake. However, it is apparent from the table above that the mistake was a more fundamental one as to the author’s understanding of the relevant applicable award that would apply to the employment of the two employees by Karijini. The table shows that letters were plainly designed for employees who would be covered by the RI Award. Thus, there was a significant misrepresentation made to the employees about which award covered their employment from the very outset.

[17] The offers of employment made to and accepted by the two employees were for a “maximum term”, so that their employment term could be aligned with the commercial agreement that Karijini anticipated entering with Roy Hill. 33 The end of term for each employment term was 30 April 2022. The employment contracts provided for flat rates of pay inclusive of all applicable penalties and allowances.

[18] Despite Mr Butler’s evidence that the two employees were employed by Karijini because “we [presumably TRRC] had vacancies”³⁴ and that was “the primary [reason] – why they were employed”³⁵, it is apparent that, at least initially, the primary purpose of the two employees’ employment was for the purpose of enabling Karijini to make an enterprise agreement with them. The two employees were given a notice of employee representational rights (NERR) pursuant to s 173 of the FW Act the day after commencing employment. 36 According to Karijini’s Form F17 statutory declaration made by Mr Butler in support of the application for approval the Agreement (Employer’s declaration), Karijini initiated bargaining or agreed to bargain for the proposed agreement on 4 July 2018,37 which was two days after the two employees were interviewed for positions with Karijini38 and five days before they commenced employment. How Karijini initiated or agreed to bargain on this date and with whom when it had no employees is unexplained. In the Employer’s declaration Mr Butler attests to certain discussions occurring on 4 July 2018 during which the two employees were undertaking training. However, it is clear from his subsequent witness statement that the two employees did not actually commence employment until 9 July 2018, so the employees’ training and the discussions could not have occurred before that date. The relevant discussion is recorded in the Employer’s declaration as follows:

“•  On or about 4 July 2018 [sic] [the two employees] commenced employment with Karijini Rail as train divers and were undertaking induction training.

•  At this time, I spoke to them while they were in our training room and explained that Karijini Rail would be seeking to negotiate an enterprise agreement with them as the first employees to be employed.

•  I explained that this was necessary because Karijini Rail was negotiating with iron ore mining company, Roy Hill, to enter into a 4 year agreement to supply train drivers to operate Roy Hill's railway.

•  I also explained that the enterprise agreement would need to align with the term of the commercial contract (that is, the contract to supply train drivers), or there was a risk that Karijini Rail would not reach agreement with Roy Hill for the new contract. I explained that this is a common requirement imposed on labour supply contractors by mining companies to ensure certainty throughout the period of the commercial terms.

•  I explained that if Karijini Rail was not successful in reaching agreement with Roy Hill, then it was likely that the current train drivers working for TRRC Pty Ltd (a related entity to Karijini Rail) would no longer have positions.

•  During the course of the discussion [the two employees] asked me a lot of questions about the effect of the proposed enterprise agreement on the current train drivers working for TRRC and whether they would be disadvantaged as a result. I explained that they would not be disadvantaged because Karijini Rail would offer them employment and for those who accepted the new role, Karijini Rail would maintain their existing rates of pay inclusive of CPI adjustments, provide additional monetary benefits and recognise prior service and allow their accrued entitlements to come across. I also explained that any TRRC train drivers who did not want to work for Karijini Rail would receive their full entitlements, including redundancy pay.”³⁹ (underlining added)

[19] Mr Butler was responsible for negotiating the Agreement on behalf of Karijini. 40 The first bargaining meeting with the two employees was held on 13 July 2018.41 At the meeting the two employees were given a hard copy of the draft enterprise agreement which was said to have been prepared to reflect the terms and conditions of employment that were standard in the industry for train drivers working in the Pilbara and the operational requirements of the proposed commercial contract with Roy Hill.42 Mr Butler and Mr Elston were both present at the meeting.43 Mr Elston’s evidence was that, during the meeting, he proceeded with a clause-by-clause “page turn” of the draft agreement, which meant that he started at the beginning and read out each clause and then asked the employees if they had any questions or concerns. As he went through the draft agreement, he or Mr Butler addressed any issues or concerns raised.44 Mr Elston made notes of the meeting.45

[20] A revised draft agreement, amended to take into account some issues raised during the 13 July 2018 meeting, was prepared and discussed at a second meeting with the two employees on 23 July 2018. 46 Mr Elston also made notes of this meeting.47 At this meeting Mr Elston did not read out every clause but just went to each page identifying any amendments that were made.48 On 24 July 2018, Mr Butler spoke separately to the employees by telephone enquiring whether the employees had a good understanding of the terms of the draft agreement and whether they had “any further questions or comments before we go to the access period”.⁴⁹ Mr Butler’s evidence was that neither employee had any question or comment.⁵⁰ On 25 July 2018, an email was sent on Mr Butler’s behalf to both employees attaching a final copy of the proposed enterprise agreement, an explanation sheet and the details of the process for voting advising “we were now in the access period”.⁵¹ On or about 27 July 2018, Mr Butler separately called both employees by telephone during which he enquired whether there were any more questions, or a need for any more explanation or clarification around the application and effect of the proposed agreement before the vote on 2 August 2018. Mr Butler’s evidence was that each employee responded with words to the effect “No I am clear and I will see you next week.”⁵² We interpolate at this point that neither of the two employees were called to give evidence in the proceedings before the Deputy President, so that the evidence concerning the bargaining process was confined to that of Mr Butler and Mr Elston.

[21] On 30 July 2018, a second explanation sheet was emailed to each employee which provided URL links to legislation referred to in the proposed enterprise agreement. 53 The links provided were to the NES explanation sheet, the WA Long Service Leave Act 1958, the FW Act and the Superannuation Guarantee (Administration) Act 1992.54 No link was provided to the Mining Award which applied to the employment of the two employees at that time and no explanation of the terms of the proposed agreement and the effect of those terms by reference to the Mining Award was given.

[22] The Agreement was approved by the two employees and made on 2 August 2018. Clause 2.1(b) of the Agreement provides that it covers employees employed in the classifications in clause 5 of the Agreement when engaged in rail operations at the Roy Hill Operations in the Pilbara Region. Its nominal expiry date is four years from the date the Agreement was approved by the Commission.

[23] On 6 August 2018 the two employees were seconded to TRRC to work as train drivers supplied to Roy Hill by TRRC pursuant to its contract with Roy Hill until 1 November 2018. They do not appear to have performed any actual train driving work before that date, but rather had only undertaken training until 22 July 2018 and were then given two weeks off. Karijini secured a contract with Roy Hill on 3 September 2018 to supply train drivers to Roy Hill after the TRRC contract expired. The term of the contract was from 1 November 2018 to 30 April 2022. On 5 September 2018, Roy Hill wrote to TRRC stating that it had decided not to renew its contract with TRRC.

[24] As early as 4 July 2018, it was clear that if Karijini was awarded the Roy Hill contract, the balance or at least a preponderance of the workforce Karijini needed to provide pursuant to the contract would need to be sourced from the existing TRRC employees. This fact and the terms on which the TRRC employees would be employed by Karijini was discussed with the two employees during their induction. Mr Elston gave evidence that Railtrain intended that TRRC employees would become Karijini employees if Karijini secured a contract with Roy Hill and if the TRRC employees chose to do so. Once the contract between Karijini and Roy Hill was made the overwhelming majority of the TRRC employees became employed by Karijini. In October 2018, Karijini offered all 52 of TRRC's employees at the time (48 permanent and 4 casual employees) employment. All permanent TRRC employees were offered maximum-term contracts by Karijini, with the term aligning with the term of Karijini’s contract with Roy Hill, and with the same flat rates as those applicable to the two employees already employed. Casual TRRC employees were offered casual contracts with a higher casual flat rate. All of the TRRC employees accepted the offers and, by or about 1 November 2018, all had become Karijini employees.⁵⁵ Thus, the workforce which Karijini supplied pursuant to its contract with Roy Hill consisted, apart from the two employees who made the Agreement, of the TRRC employees.

Relevant provisions of the Agreement, the Mining Award and the TRRC Agreement

[25] The coverage of the Agreement is initially specified in clause 2 as follows:

2 PARTIES BOUND AND APPLICATION OF AGREEMENT

2.1 This Agreement shall cover:

(a) Karijini Rail Pty Ltd (ACN 627 019 489) (Employer);

(b) the Employees of the Employer employed in the classifications contained in Clause 5 - Classifications and Base Rates of Pay of this Agreement when engaged in rail operations at the Roy Hill Operations in the Pilbara Region (Employees).

'Pilbara Region' means the region defined by Schedule 1 to the Regional Development Commissions Act 1993 (WA) comprising of the following local government districts: Shire of Ashburton, Shire of East Pilbara, Shire of Roebourne and the Town of Port Hedland.

[26] Clause 4 is entitled “Contract of Service”. Clauses 4.1-4.3 provide:

Types of Employment

4.1 Employees will be employed in one of the following categories:

(a) fixed-term, maximum term or project specific Employees; or

(b) casual Employees.

Fixed-term, maximum term or project specific employment

4.2 Employees may also be engaged on a fixed term or maximum term contract or on a project specific role basis with no guarantee of ongoing employment beyond that fixed or maximum term contract or specified task on the project.

Casual employment

4.3 A casual Employee is one engaged and paid in accordance with the provisions of Clauses 4.4 to 4.9.

[27] Clause 4.9 further provides for coverage of the Agreement as follows:

4.9 For the avoidance of doubt this agreement does not cover any employee engaged under an indefinite or permanent contract of employment.

[28] The classifications of employees are set out in clause 5.2 of the Agreement. There are three classifications of “Railway Worker”: Level 1, Level 2 and Level 3. The duties and responsibilities of each classification level are set out in Appendix 1.

[29] Clause 20 of the Agreement provides that “Redundancy entitlements are provided for in the NES”. In respect of meal breaks, clause 8.1 provides: “Meals breaks for train crew will be a paid thirty (30) minute meal break and work will continue due to operational requirements”. This is to be compared with clause 22.1 of the Mining Award, which at all relevant times in 2018 provided:

22.1 Meal breaks and rest breaks

(a) An employee, other than a shiftworker, is entitled to an unpaid meal break of not less than 30 minutes after every five hours worked.

(b) A shiftworker working 10 hours or less will be entitled to a paid meal break of 20 minutes per shift.

(c) A shiftworker working for longer than 10 hours will be entitled to paid meal breaks totalling 40 minutes per shift.

(d) Breaks will be scheduled by the employee’s supervisor based upon operational requirements so as to ensure continuity of operations. The employer will not require an employee to work more than five hours before the first meal is taken or between subsequent meal breaks if any.

[30] Clause 2.1 of the TRRC Agreement provided for its coverage in equivalent terms to the Agreement:

2.1 This Agreement shall apply to and cover:

(a) TRRC Pty Ltd (ABN 63 600 146 852); (Employer)

(b) the employees of the Employer of the types listed in the categories contained in Clause 4.1 who are employed in a classification contained in Clause 5 - Classifications and Wage Rates of this Agreement and who work, and are based, in the Pilbara region of Western Australia (Employees).

[31] Clause 4, “Contract of Service” of the TRRC Agreement was, however, fundamentally different to clause 4 of the Agreement. Clauses 4.1 and 4.2 provided:

4.1 Employees will be employed in one of the following categories:

(a) permanent full-time Employees;

(b) permanent part-time Employees;

(c) casual Employees.

4.2 For the avoidance of doubt, this Agreement does not cover fixed-term or maximum term employees.

Issues for redetermination arising from the appeal decision

[32] In order to identify the critical issues required to be dealt with by the Deputy President in her redetermination of the application for approval of the Agreement, it is necessary first to set out the key conclusions of the Full Bench in the appeal decision, which were as follows:

(1) Although the Deputy President found that Karijini had not complied with s 180(5) of the FW Act, she had erred as to the extent of that non-compliance and, as a consequence, erred in accepting an undertaking to meet her concern about that non-compliance. Karijini failed to take all reasonable steps to explain the effect of the following provisions of the Agreement:

(i) Clause 4 which, unlike the Mining Award and the TRRC Agreement, provided only for fixed term, maximum term and casual employment and excluded permanent full-time and part-time employment from the coverage of the Agreement.

(ii) Clause 8, which provided for meal breaks in terms that were detrimental to employees compared to the equivalent provisions in the Mining Award.

(iii) Clauses 11.4 and 11.5, which deal with the circumstances in which annual leave is to be taken and which are detrimental to employees compared to the equivalent provisions in the Mining Award. 56

(2) The Deputy President erred in not dealing with the CFMMEU’s contention that Karijini misled the two employees who voted upon the Agreement, who were engaged on maximum term contracts, by wrongly representing that they and any other employees on maximum term contracts would be entitled to redundancy benefits if Karijini’s contract with Roy Hill was not renewed. 57

(3) The CFMMEU’s contention in the appeal that Mr Butler made a misleading representation that employees transferring from TRRC to Karijini would not be disadvantaged by the Agreement was not raised before the Deputy President, but should be dealt with in the redetermination of the matter. 58

(4) Appeal grounds concerning whether the Deputy President erred in determining, pursuant to s 188(1)(c), that there were no other reasonable grounds for believing that the Agreement had not been genuinely agreed to did not need to be determined because the matters which the Full Bench had identified, and any further undertakings proffered, were likely (on redetermination) to be relevant to the assessment under s 188(1)(c). 59

(5) The Deputy President failed to give proper consideration as to whether she was satisfied that the group of employees covered by the Agreement was “fairly chosen”, as required by s 186(3) of the FW Act. 60

[33] The issues required to be dealt with by the Deputy President in the redetermination of the application pursuant to the appeal decision may, by reference to the above conclusions, be formulated as comprising the following questions:

(A) Did the failures to comply with s 180(5) identified by the Full Bench in (1)(i)-(iii) above constitute “minor procedural or technical errors” made in relation to the requirement in s 188(1)(a)(i) for compliance with s 180(5) that “were not likely to have …disadvantaged” the employees covered by the Agreement, such that the Agreement could be regarded as having been “genuinely agreed” under s 186(2)(a) by operation of s 188(2)?

(B) If the answer to (A) in regard to any or all of the three identified instances of non-compliance is “No”, could the consequential failure to satisfy the approval requirement in s 186(2)(a) be resolved by the acceptance of undertakings under s 190?

(C) Did the alleged misrepresentations in (2) above constitute further instances of non-compliance with s 180(5)? If so, could genuine agreement nonetheless be found under s 188(1)(c)? Alternatively, could the difficulty be resolved by the acceptance of undertakings under s 190?

(D) Did the alleged misrepresentations in (3) above constitute further instances of non-compliance with s 180(5)? If so, could genuine agreement nonetheless be found under s 188(1)(c)? Alternatively, could the difficulty be resolved by the acceptance of undertakings under s 190?

(E) Were there, for the purpose of s 188(1)(c), any other reasonable grounds for believing that the Agreement had not been genuinely agreed to?

(F) Was the group of employees covered by the Agreement fairly chosen for the purpose of the approval requirement in s 186(3)? In that respect, did the Agreement cover all of the employees of Karijini and, if not, was the group of employees chosen geographically, operationally or organisationally distinct?

Summary of the first decision, the approval decision and the appeal grounds

[34] The conclusions of the Deputy President in respect of the above questions in the first decision and the approval decision may be summarised as follows:

(1) In relation to question (A), the Deputy President found in the first decision that the instances of Karijini’s non-compliance with s 180(5) identified by the Full Bench were unintentional and as such constituted an error for the purpose of s 188(2), and were procedural in nature. 61 The Deputy President also found that the failures to comply with s 180(5) with respect to clause 4 (types of employment)62 and clause 8 (meal breaks)63 were minor and unlikely to disadvantage employees covered by the Agreement. However, the Deputy President found that the non-compliance with respect to clauses 11.4-11.5 (taking annual leave)64 was not minor in nature. That meant that only in respect of clauses 11.4-11.5 (taking annual leave) did the Deputy President retain a concern that the non-compliance with s 180(5) meant that she was not satisfied that the Agreement was genuinely agreed under s 186(2)(a).65

(2) In relation to question (B), the Deputy President accepted an undertaking with respect to the non-compliance with s 180(5) concerning the taking of annual leave to resolve her concern. 66 However the Deputy President also accepted the following undertakings with respect to non-compliance with s 180(5) concerning the types of employment, notwithstanding that she retained no concern about this for the purpose of s 186(2)(a):

1. In the event Karijini recruits new employees, it will give genuine consideration to whether the role can be recruited on a permanent full-time basis. Karijini will apply the terms of the Agreement to any permanent full-time employee.

2. The circumstances of Karijini’s operations at the time of this undertaking mean it will not engage any part-time employees in the classifications covered by this Agreement. In the event of a change to its operations which impacts its ability to operationally utilise part-time employees, where Karijini recruits new employees it will give genuine consideration to whether the role can be part-time. Karijini will apply the terms of the Agreement to the part-time employee.

The Deputy President also accepted the following undertaking in respect of the non-compliance with s 180(5) concerning meal breaks, again notwithstanding that she retained no concern about this for the purpose of s 186(2)(a):

3. Karijini will provide employees covered by the Agreement with a paid 40 minute meal break in each shift.

(3) In relation to question (C), the Deputy President relied on evidence led by Karijini that it would pay redundancy pay in circumstances of a redundancy, notwithstanding the employment of employees on maximum term contracts, to conclude that there was no utility in considering the operation of s 188(2). 67 The Deputy President also accepted the following undertaking relevant to this issue:68

5. Karijini will provide any maximum term employee whose employment ends because their role is made redundant with a redundancy payment as if they were a permanent employee.

(4) As to question (D), the Deputy President found in the first decision that the relevant representation to the two employees by Mr Butler had no relevance under s 180(5) because it did not constitute the terms of the Agreement or their effect. Rather, it concerned the terms of the offer of employment that would be made to the TRRC employees. 69 The Deputy President also accepted Karijini’s submission that s 180(5) did not extend as far as requiring an explanation specifically addressing a group of persons not yet employed, and the explanation provided to the two employees concerning the terms of the Agreement and their effect was equally pertinent to the position of any future employees.70 Accordingly there was no non-compliance with s 180(5) in this respect.

(5) In relation to question (E), the Deputy President found that the two employees were not uninformed when they voted to approve the Agreement, 71 rejected the submission that the two employees did not have a sufficient stake in the Agreement,72 and that the position of the TRRC employees was not relevant to the question of genuine agreement.73 On this basis the Deputy President concluded, for the purpose of s 188(1)(c), that there were no other reasons for believing that the Agreement had not been genuinely agreed to by the two employees.74

(6) As to question (F), the Deputy President found in the first decision that the selection of the group of employees covered by the Agreement was neither arbitrary nor discriminatory, and therefore fairly chosen. 75 The Deputy President also found that the Agreement covered every existing employee of Karijini engaged on the Roy Hill contract and did not exclude any future employees. In the alternative, the Deputy President said that if she was wrong about this, the group was organisationally and geographically distinct, which she took into account in determining that the group was fairly chosen.76

[35] In the approval decision, the Deputy President set out her reasons for declining to issue an order for the production of documents by Karijini sought by the CFMMEU, which decision she had pronounced at the hearing on 26 May 2020. 77

[36] By its amended notice of appeal the CFMMEU advances 18 appeal grounds (numbered 1 through 20, with grounds 8 and 9 in the original notice of appeal not pressed). These may conveniently be summarised as follows:

•  Ground 1 concerns the Deputy President’s decision to refuse the CFMMEU’s applications for orders for the production of documents, and contends that the Deputy President erred in so deciding because the documents sought had an apparent relevance to matters requiring determination (order for production ground).

•  Grounds 2, 4-6 and 10-11 challenge the Deputy President’s findings under s 188(2) set out in (1) above (s 188(2) grounds).

•  Ground 3 concerns the Deputy President’s finding in (4) above (TRRC misrepresentation ground).

•  Ground 7 challenges the Deputy President’s acceptance of the undertakings concerning the types of employment referred to in (2) above (undertakings ground).

•  Grounds 12-18 challenge the Deputy President’s “fairly chosen” findings set out in (6) above (fairly chosen grounds).

•  Grounds 19-20 challenge the Deputy President’s conclusions concerning s 188(1)(c) set out in (5) above (s 188(1)(c) grounds).

[37] We will refer in greater detail to the contentions advanced in the appeal grounds, and the Deputy President’s reasoning in support of the findings challenged in those appeal grounds, in our consideration below.

Consideration

Permission to appeal

[38] We consider that permission to appeal should be granted because we consider that the first decision and the approval decision are attended by sufficient doubt as to justify appellate consideration and, in some respect, the appeal raises issues of general application concerning consideration of applications for approval of enterprise agreements.

Section 188(2) grounds

[39] We will deal with the s 188(2) grounds first.

[40] By ground 2 of the appeal, the CFMMEU contends that the Deputy President erred in “[f]inding that any disadvantage to the two employees… in the bargaining process, or impairment of their capacity to bargain, as a result of the failure of… Karijini to explain the effect of terms of the Agreement was not relevant to the operation of s 180(5), s 188(2), and s 190 of the FW Act”. The CFMMEU’s written submissions do not address how the finding made in respect of undertakings is wrong and its submissions appear to be confined to how the finding of non-compliance with s 180(5) should be treated under 188(2). In essence this ground of appeal contends the Deputy President committed an error of law because she failed to take into account, in assessing likely disadvantage, the effect of non-compliance with s 180(5) on the bargaining process and that she was required to take this consideration into account but failed to do so. Before the Deputy President, the CFMMEU argued that because Karijini failed to explain the effect of terms of the Agreement by reference to the Mining Award and the two employees did not, during the period of bargaining, have knowledge of their existing entitlements under the Mining Award, this adversely affected their capacity to participate in the bargaining process (as well as to cast an informed vote on the Agreement).

[41] The relevant finding said to have erroneously been made is set out in the first decision as follows:

“[170] 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. While the Union pressed arguments concerning the ‘participation in the bargaining process’ and to ‘the quality of the bargaining process’ when referring to the implications arising from Karijini’s non-compliance with s 180(5), Karijini was correct with its submission that both were unrelated to s 180(5). Whilst those concepts are in the province of the good faith bargaining requirements, in s 228 of the Act, they do not impact upon the assessment required by s 180(5). Nor did they impact the acceptability of undertakings, or the consideration embarked upon under s 188(2).” [Footnote omitted]

[42] Section 188(2) of the FW Act provides:

(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.

[43] In Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics & Others⁷⁸ a Full Bench stated the following propositions concerning the effect of s 188(2)(b):

•  the application of the test in s 188(2)(b) involves a retrospective and counterfactual inquiry into the circumstances pertaining to the particular case;⁷⁹

•  the test in s 188(2)(b) is whether 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”;⁸⁰

•  the impact of the errors is to be assessed by reference to the objects of those requirements and not by reference to any more general sense of “genuine agreement”;⁸¹

•  in assessing whether employees were not likely to have been disadvantaged by an error, it may be necessary to consider the particular circumstances of the employees concerned at the time the error occurred and the impact of the error on the subsequent course of bargaining. This may include a consideration of what occurred following the error, such as considering any steps taken by the employer to address the adverse impact of the non-compliance;⁸²

•  assessing whether the employees were not likely to have been disadvantaged by the error may also involve considering the subsequent conduct of the relevant employees;⁸³

•  the word “likely” in s 188(2)(b) means “probable”’ in the sense that there is an odds-on chance of it happening, rather than there merely being some possibility of it happening;⁸⁴ and

•  the word “disadvantaged” suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the FW Act.⁸⁵

[44] Relevantly, the minor procedural or technical error in relation to which the question of whether the relevant employees were not likely to have been disadvantaged arose concerns the failure to take the reasonable step of explaining the terms of the Agreement and the effect of those terms by reference to the Mining Award and/or to provide the employees with a copy of the Mining Award or instruction about how the Mining Award could be accessed.

[45] It is to be accepted that the meaning of the word “disadvantage” takes its colour from the particular context in which it is deployed, and the likely impact of the errors is to be assessed by reference to the objects of the requirements in relation to which the errors are made.

[46] It is necessary therefore to consider the purpose of the relevant requirement in s 180(5) because it is in respect of that provision that the error arose. As the Full Court explained in One Key Workforce Pty Ltd v Construction, Forestry, Mining, and Energy Union and Anor⁸⁶ the purpose of “the obligation imposed on employers under 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”. 87 In short, its purpose is to ensure informed voting by relevant employees on whether to approve an enterprise agreement. Its purpose is not to ensure informed participation by relevant employees at some earlier stage in the bargaining process.

[47] We do not accept the CFMMEU’s contention that there is no logical reason why the assessment of the likely impact of the s 180(5) explanation errors should be confined to assessing whether the employees were not likely to have been disadvantaged in being able to make an informed decision when voting on the Agreement and that the impact on their capacity to participate in the bargaining process in an informed way is relevant.

[48] The subject matter and scope of s 180(5) and purpose for which it is engaged in the enterprise agreement making scheme under the FW Act all tell against this contention. This is because:

•  First, s 180(5) is part of a series of steps which the employer must take before the approval of a proposed agreement by employees may be sought;

•  Second, the reference to “proposed enterprise agreement” and “agreement” in s 180 read in context means an “agreement” that is in final form ready for employees to consider whether approval is to be given, once the s 180 steps have been taken by the employer;

•  Third, save for s 180(5), each of the other steps in s 180 creates an obligation to be carried by reference to its proximity to the “access period”. This also suggests that the reference to “proposed agreement” or “agreement” in s 180 is to an agreement in final form;

•  Fourth, the overarching obligation in s 180(1) that the steps be taken before a request of employees is made under s 181(1) to vote suggests that the “proposed enterprise agreement” or “agreement” is a finalised document;

•  Fifth, this construction is reinforced by some of the circumstances and needs of the relevant employees against which the manner of the explanation is to be assessed. Section 180(6) provides that among the employees whose circumstances and needs are to be taken into account include “employees who did not have a bargaining representative for the agreement”. The past tense used in the words “did not” suggest that, at the stage the s 180(5) obligations arise, the bargaining for the proposed agreement has completed and it is now in a final form, hence the special need; and

•  Sixth, the only context in which compliance with s 180(5) is relevant is when the Commission considers whether an agreement was genuinely agreed to by the relevant employees (s 186(2)(a) and s 188). An agreement is made when a majority of employees who cast a valid vote approve the agreement (182(1)). It is the genuineness of this agreement (the approval by employees) with which s 186(2)(a) and s 188 are concerned and consequently to which s 180(5) is relevant.

[49] It is uncontroversial that the matters a decision-maker is bound to consider are determined by the construction of the statute conferring the discretionary power. Not every matter that is or might be relevant to the exercise of a discretionary power must be taken into account. In exercising a discretionary power under a statute, a decision maker will often times be bound to consider some matters and entitled to consider others. But error, on the ground of a failure to take into account a relevant consideration, will only be shown if a decision maker has not taken into account a matter the decision maker was bound to consider.

[50] Whether relevant employees were not likely to have been disadvantaged by the errors (that is, the impact of the errors), is as we have already observed, to be assessed by reference to the objects of the requirements in respect of which there was error. Having regard to the subject matter, scope and purpose of the provisions⁸⁸ discussed above we do not consider that, in assessing whether the two employees were not likely to have been disadvantaged by the error, the Deputy President was bound in the circumstances to take into account impact on their capacity to participate in the bargaining process (as opposed to the voting process) in an informed way.

[51] Ground 2 of the appeal is therefore rejected.

[52] In the other s 188(2) grounds, the CFMMEU contends that the Deputy President erred in finding that Karijini’s non-compliance with s 180(5) arising from its failure to provide the two employees with a copy of the Mining Award (or instructions on how to access the Mining Award), or with any comparison between the Mining Award and the Agreement, were minor procedural errors and were not likely to disadvantage the two employees. The CFMMEU also contends the Deputy President erred in concluding that the failure by Karijini to explain the differences in the award and agreement provisions concerning meal breaks and types of employment were each minor procedural errors and the relevant employees were not likely to have been disadvantaged by the errors.

[53] The Deputy President dealt with the question whether the failure to take the reasonable step of providing the two employees with a copy of the Mining Award or information about accessing it was a minor procedural error in the first decision relevantly as follows:

“[288] Section 180(5) requires an explanation to be given about the Agreement terms and their effect. Simply put, an explanation is the ‘act or process of explaining’ – such that it is a statement made to clarify something and make it understandable. By not providing access to the Award, Karijini had failed in part to comply with its obligation in s 180(5) of the Act. However, in all the circumstances that error was minor.

[289] The lack of access to the Award, did not detract from the employees being informed about the Agreement’s terms and their effect. After all the Award is simply that – an award. It is not in and of itself an explanation without something more. That something more being, according to the Full Bench, a comparison between the detrimental clause and the equivalent Award provision – an explanation.

[290] Section 188(2) places no limitation on what may or may not constitute relevant circumstances. In this matter the evidence showed that Karijini had sought to comply with its obligations under s 180 – that expressly required it to provide documents or access to the same. It is open to find that it understood those documents, as far as the pre-approval requirements were concerned, constituted the documents referred to in s 180(2). What Karijini failed to do was to anticipate that s 180(5) would be construed in such a manner that s 180(5) would also require the provision of a certain document. An error was made. It was not intentional.

[291] These circumstances are not equivalent to where ignorance of the law is simply claimed and relied upon. The evidence shows that Karijini was aware of the obligation arising under s 180(5). What occurred was a legitimate misapprehension on behalf of Karijini as to what was required from it, in a procedural sense, under s 180(5). Where there is evidence to show that Karijini complied with s 180(2), provided an explanation of the terms, was unaware that there was a legal requirement under s 180(5) to provide access to the Award, and the provision of the Award constituted only one of two or more ‘reasonable steps’, then I am satisfied the error is a minor procedural error.

[292] In my view, the two employees were unlikely to have been disadvantaged by the absence of access to the Award. As I have noted, the Award does not in and of itself constitute an explanation without something more. While it may form one of the ‘reasonable steps’, the absence of this particular step does not render the consent of the two employees uninformed in all of the circumstances of this case.” [Footnote omitted]

[54] As to the question whether the failure to take the reasonable step of providing the two employees with an explanation involving a comparison between the proposed agreement and the Mining Award, the Deputy President did not make a general finding that this was a minor procedural error that was not likely to have disadvantaged the two employees. Instead, the Deputy President dealt under s 188(2) with the specific departures by the Agreement from the Mining Award which were found in the appeal decision not to have been the subject of explanation in accordance with s 180(5).

[55] As to the differences in the types of employment for which the Agreement provides in comparison to the Mining Award, the Deputy President concluded in the first decision:

“[226] Karijini had explained to the employees why the two types of employment had been included in the Agreement. The Full Bench considered that further steps were required to explain the effect of clause 4. Yet as it stood, Karijini did not intend to employ part-time employees or permanent full-time employees, its business model was not inclined that way. As such, Karijini’s non-compliance was a hypothetical. It did not intend to employ permanent full-time or part-time employees; the two employees themselves were not permanent full-time employees. The relevant clause was self-explanatory and in all the circumstances, and in light of the above, I am satisfied that Karijini’s omission to explain the effect of cl 4 as detailed by the Full Bench, constituted a minor procedural error. It was an error that was unlikely to disadvantage the two employees because of the aforementioned reasons. In the circumstances, the steps taken, and the context being such that it was, the employees were nevertheless positioned to make an informed decision about clause 4 of the Agreement, which formed part of the Agreement upon which they were to vote.”

[56] As to the meal breaks provisions, the Deputy President concluded:

“[247] Evidence was given of the two employees’ longevity working in the iron ore industry. There was reason for that – it was not superfluous information. It was provided to present a narrative of non-precarity, in respect of the industrial context and the two employees’ knowledge of the same. The two employees had worked in the resources industry, where continuous operations on a 24/7 basis are the ‘norm’ and had been for years. The clause was unambiguous, its effect self-evident, and it mirrored a practice that had formed part of driving trains in the Pilbara for the iron ore miners. From the evidence provided, including the background information about the two employees, which had been provided via the evidence of Mr Butler, the Agreement was simply embodying and giving effect to that which occurred daily.

[248] The purpose of s 180(5) of the Act has already been explored – the emphasis being on whether the employees might not have been in a position to make an informed decision about the terms of the agreement upon which they are eligible to vote. While the two employees were not appraised of the provision for meal breaks in the Award, and this constituted an error, they were nevertheless positioned to understand the implications of such provision and what it meant in practice, given the context in which they had previously worked. On any objective level it was a minor error that had been made.

[249] The test posited by s 188(2)(b) is whether ‘the employees covered by the agreement were not likely to have been disadvantaged by the errors’ (sic). In all of the circumstances no likely disadvantage can be found given that the Agreement’s meal break provision simply reduced to writing an anodyne practice already known (as evinced in the numerous agreements annexed to Karijini’s evidence) and accepted within this particular industry.”⁸⁹ [Emphasis in original, footnote omitted]

[57] In relation to the annual leave provisions, the Deputy President concluded:

“[269] I have considered the submissions of Karijini and the Union. I do not consider Karijini’s submissions persuasive that the omission to provide a comparative explanation between Award and Agreement constituted a minor procedural error, in the circumstances. The circumstances were dissimilar to those concerning meal breaks and the types of employment; it could not, for example, be shown that there was an industry practice or that the employees had otherwise agreed to the provision via their contractual arrangements. In short, there was no evidence drawn to my attention that the two employees were otherwise familiar with this term, or that the term formed part of a known industry practice or arrangement, or that the two employees had previously consented to the same. The employment contracts of the two employees revealed: ‘[A]nnual leave as per the Modern Award’.

[270] The error made was not minor. Were it the case that clause 11.5 of the Agreement was explained by reference to clause 22 of the Award, with Mr Butler or Mr Elston providing a comparison, the two employees would have been better appraised of the imposition of clause 11.5, understanding that Karijini was in effect potentially limiting choice as to when annual leave could be taken and limiting input into the same. The absence of an explanation that compared the Agreement clause with the equivalent provisions under the Award, was therefore not a minor error in all of the circumstances.

[271] In my view, a discussion about the likely disadvantage arising from the error is unnecessary given the error was not minor. However, were one required, I would remark that the two employees, notwithstanding the error made, were positioned to make an informed decision about whether to vote in favour of the Agreement. The term in question manifested no ambiguity - its language is plain. While the error was not minor - the further step of the comparative explanation would have better positioned the employees to understand the effect of the clause, it was nevertheless the case that they were not disadvantaged by the error made because the plain meaning of the clause was clear.”⁹⁰ [Emphasis in original]

[58] As to the differences in redundancy entitlements brought about by the limited modes of employment under the Agreement, the Deputy President concluded:

“[272] Given the submissions of the parties, the evidence led by Karijini that it would provide redundancy pay in circumstances of a redundancy, notwithstanding the employment of employees on maximum term contracts, and the undertaking proffered by Karijini in this respect – there is no utility in considering the operation of s 188(2).”91

[59] The CFMMEU contends that the Deputy President’s conclusions under s 188(2) concerning non-compliance with s 180(5) in respect of the Agreement provisions dealing with types of employment and meal breaks were in error because she failed to take into account relevant considerations, including the likely disadvantage arising because the defaults reduced the opportunity for the employees to identify the detriments and other changes that arose from the Agreement when compared to the Mining Award. It says that, having regard to the lack of any finding that the two employees knew of the relevant detriments and differences, independently of the default, it was not open to the Deputy President to find that Karijini’s failure to provide access to the Award or to explain the differences between the two instruments was a minor default which was not likely to disadvantage the two employees.

[60] Karijini contends that:

•  the CFMMEU fails to identify a “relevant consideration” in the House v The King sense. It says that in applying s 188(2), the Deputy President was required to make an evaluative judgement having regard to both the underlying purpose of the relevant procedural or technical requirement which had not been met, and the relevant circumstances. It says that the “reduced opportunity” upon which the CFMMEU relies was neither a “binding rule” (in the sense described by Mason and Deane JJ in Norbis v Norbis 92) or a mandatory relevant consideration (in the sense described by Mason J in Peko-Wallsend93) which, if not taken into account, would result in the miscarriage of discretion;

•  in any event the Deputy President took into account the consideration upon which the CFMMEU relies;

•  in concluding that Karijini’s errors were minor procedural ones, the Deputy President gave weight to the further evidence Karijini adduced on rehearing, which went to various aspects of industry practice, and the industry experience of the two employees. No complaint is made about the Deputy President’s reliance upon that evidence;

•  the CFMMEU’s complaint is really one of weight and no discretionary error arises in that context unless it can be shown that the weight given to the CFMMEU’s purportedly relevant consideration was so manifestly inadequate that the discretionary exercise miscarried; and

•  the CFMMEU’s contention regarding the need for the Deputy President to have made findings about the actual knowledge of the two employees in order to make an evaluative judgement about s 188(2) is misconceived. Nothing in the statutory text of s 188(2) requires any such finding. Further, in circumstances where s 180(5) does not require that the voting group actually understand the employer’s explanation, the CFMMEU’s contention would impose a more stringent requirement at the s 188(2) stage which is at odds with the facilitative purpose of s 188(2).

[61] Returning for a moment to the decision in Huntsman, the Full Bench discussed the meaning of “minor procedural or technical errors” and observed:

•  as a matter of grammatical construction, and from the context, it is plain that the adjective “minor” qualifies both “procedural” errors and “technical” errors, such that one reads the expression as “minor procedural errors or minor technical errors”;⁹⁴

•  what constitutes a “minor” error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances;⁹⁵

•  a failure to comply with a procedural requirement will constitute a “procedural error” within the meaning of s 188(2)(a). A procedural requirement is one that requires an employer to follow a particular process or course of action;⁹⁶

•  a failure to comply with a technical requirement will constitute a “technical error” within the meaning of s 188(2)(a);⁹⁷

•  a single error may have both procedural and technical components;⁹⁸

•  an intentional or deliberate act may nevertheless constitute an “error” because the person was unaware of the legal consequences of their action;⁹⁹

•  a proper distinction is to be made between an intentional act which unintentionally results in non-compliance with the procedural and/or technical requirements for the making of an enterprise agreement and which may, depending on the circumstances, be capable of characterisation as an error, and intentional non-compliance with those requirements, which will not constitute an error for the purpose of s 188(2);¹⁰⁰ and

•  whether an incidence of non-compliance is characterised as a “minor error” also depends on the nature of the requirement which has not been complied with.¹⁰¹

[62] In the instant case, the nature of the requirement with which Karijini was found not to have complied was to take all reasonable steps to ensure that the terms of the Agreement and the effect of those terms were explained to the two employees. Non-compliance arose from its failure to provide the employees with a copy of the Mining Award (or instructions about accessing the Mining Award) and failing to provide the employees with a comparison between the Agreement terms and the Mining Award terms. As we have earlier noted, the Full Court in One Key Workforce observed that the purpose of the obligation under s 180(5) includes enabling relevant employees to understand “how wages and working conditions might be affected by voting in favour of the agreement”.¹⁰²

[63] Whether Karijini needed to both provide a copy of the Mining Award and to explain the differences between the Agreement and the Mining Award may be open for debate. It may, for example, have been unnecessary for Karijini to have provided the two employees with a copy of the Mining Award (or instructions about accessing the Mining Award) if Karijini had provided the employees with an explanation of the terms of the Agreement and the effect of those terms which included a comparison between the Agreement terms and the Mining Award terms, and which also identified how Mining Award terms which then applied to the employees would change under the Agreement. But in this case, Karijini did neither.

[64] As previously stated, compliance with s 180(5) will not always require an employer to identify detriments or changes in an agreement by undertaking a comparison with the relevant award, or for the employer to provide an analysis between the agreement and the award instrument, particularly in circumstances where an existing enterprise agreement, not an award, 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.¹⁰³ In the instant case there was no evidence that the two employees were familiar with the Mining Award terms which applied to them. Their offers of employment cited a different award, the RI Award, as applicable. The Agreement brought about detrimental changes to several terms and conditions of employment for which the Mining Award made provision. We do not accept, as Karijini has suggested, that the employees were given access to the Mining Award because they were provided with a link the Fair Work Ombudsman web site on which the Mining Award could be accessed. 104 The link is to the NES explanation sheet, not the Mining Award, and the contention presupposes the employees had knowledge of the modern award which applied to them in order to locate it - about which there is no evidence.

[65] In the circumstances, absent an explanation involving a comparison between the Agreement terms and the Mining Award terms and absent any evidence that the employees understood the Mining Award terms which applied to them, the error cannot reasonably be said to have been minor. A compliant explanation would have aided in the employees’ understanding of how wages and working conditions might be affected by voting in favour of the Agreement. Moreover, it is difficult to reconcile, on the one hand, the Deputy President’s finding that the failure to provide a comparison between the annual leave provisions of the two instruments was not a minor procedural error and, on the other, absent any comparison at all and absent any evidence that the employees were familiar with the Mining Award entitlements, her finding that a failure to provide a copy of the Award in order to aid the employees’ understanding of the effect of the terms of the Agreement on their working conditions, was minor. We do not consider the conclusion to have been open.

[66] Turning then to the conclusion that the errors identified, so far as they pertained to the explanation of the types of employment and meal breaks under the Agreement, were minor procedural errors not likely to have caused disadvantage, we deal first with meal breaks. We have earlier set out the relevant provisions of the Agreement and the Mining Award. It is clear that there are several material differences between the meal break provisions in the Mining Award and the Agreement, particularly for a shift worker. The two employees were engaged to work “as per client requirements which is currently 12 hours (sic) shifts on a 14 day on/14 days off roster”.¹⁰⁵ The differences are detrimental because the Agreement term would deprive the employees of breaks for which the Mining Award provided. Under clause 8 of the Agreement, employees are required to continue to work during their meal breaks, in contrast to clause 22.1(d) of the Mining Award which made clear than an employee cannot be required to work more than 5 hours without a break. For 12-hour shift workers - which the two employees were - this requires two breaks per shift totalling 40 minutes paid (clause 22.1(c)). Under clause 8 of the Agreement, “a paid thirty (30) minute meal break” is provided, which if scheduled as a break at all, may be scheduled at any time during a 12-hour shift.

[67] In her reasoning on this issue in the first decision, set out above, it is apparent the Deputy President considered that because the Agreement’s meal break provision reflected the “industry practice” with which the two employees were said to be familiar and although “not appraised of the provision for meal breaks in the Award” the two employees were nevertheless in a position to understand the implications of the Agreement provision and what it meant in practice. Consequently, the Deputy President concluded the error was minor and there was no likely disadvantage.

[68] This conclusion was not open on the facts. First, the Deputy President did not deal with the fact that the Mining Award and the Agreement terms are materially different, as we have earlier described. Second, whether the Agreement terms reflect the “industry practice” is beside the point. If such an industry practice existed, it was not in conformity with the Mining Award.¹⁰⁶ Third, the Mining Award required meal breaks to be taken as actual paid breaks from work, whereas the Agreement effectively did not (because it allows work to continue during the “breaks”), and the “industry practice” does not support two paid meal breaks being taken during a 12-hour shift, which the Mining Award requires. Fourth, there was no evidence that the employees had any knowledge of the Mining Award provision, with the only reference to a modern award and meal breaks to be found in the employees’ letters of offer which, as earlier noted, referred to the wrong award, the RI Award. The meal break provision in the RI Award is materially different to that in the Mining Award, and much more aligned to the “industry practice”. Fifth, the two employees had an entitlement to paid meal breaks under the Mining Award. Sixth, the two employees’ knowledge of “industry practice”, says nothing about their understanding of their existing rights under the Mining Award and how the Agreement would alter those rights. Seventh, neither employee gave evidence about the extent of their knowledge, either as to the “industry practice” or as to the terms of the Mining Award which covered their employment.

[69] Since a purpose of the explanation is to assist employees in understanding how wages and working conditions might be affected by voting in favour of the Agreement, it was material to that understanding to explain to the two employees their existing Mining Award entitlement to two paid meal breaks per 12-hour shift, and how the Agreement term would alter that entitlement, and in this case, alter it in a detrimental way. The error was not minor because there was a failure to properly explain the effect of the meal break term in the Mining Award, the meal break entitlement under the Mining Award was not insignificant (particularly in the context of the requirement for the employees to work 12-hours shifts in the conditions of the Pilbara) and the Agreement term altered the entitlement in a way that was detrimental to the two employees. In the circumstances, the employees were likely to be disadvantaged by the error because they were not made aware that their legal meal breaks entitlement under the Mining Award would be removed by the Agreement. That was important to ensuring an informed vote, regardless of the employees’ understanding of any prevailing industry practice. For these reasons, it was not open on the evidence for the Deputy President to have concluded otherwise.

[70] As to types of employment, the Mining Award provides that an employee may be engaged on a full-time, part-time or casual basis (clause 10). It does not prevent an employer engaging employees for a fixed or maximum term. Clause 4.1 of the Agreement provides that employees will be employed in one of the following categories - fixed term, maximum term, or project specific employees or as casual employees. Clause 4.9 provides that for the avoidance of doubt the Agreement does not cover any employee engaged under an indefinite or permanent contract of employment. The Agreement did not in terms prohibit Karijini from engaging employees in full or part time employment on a permanent basis, but the effect was that any such employment would not be covered by the Agreement.

[71] It is uncontroversial that Karijini did not explain the effect of clause 4 of the Agreement by reference to the modes of employment for which the Mining Award provided. The Deputy President reasoned that because the two employees were already engaged on maximum term contracts and Karijini told the employees that it did not intend to employ any person other than on maximum or fixed term contracts, the error was a minor procedural error, and the two employees were not likely to have been disadvantaged by the error.

[72] Karijini contends that the Deputy President was correct in both her reasoning and conclusion.

[73] As we have already explained, the obligation under s 180(5) of the FW Act fulfils the purpose of giving employees an understanding of how wages and working conditions might be affected by voting in favour of the Agreement. In the instant case the two employees knew that the Agreement would have application to a broader cohort of employees. They were told that Karijini intended to offer the existing TRRC employees employment. As earlier outlined, the two employees asked “a lot of questions about the effect of the proposed enterprise agreement on the current train drivers working for TRRC and whether they would be disadvantaged as a result.”¹⁰⁷ The employees had a legitimate industrial interest in not just their own future terms and conditions of employment, but also of those who would comprise the workforce of which they would form a part. The two employees were told that TRRC employees would not be disadvantaged.

[74] Both the Mining Award and the Agreement provide that redundancy pay will be in accordance with the NES. Section 123 of the FW Act provides, inter alia, that the redundancy pay provisions in Division 11 of Part 2-2 do not apply to an employee employed for a specified period of time, for a specified task, or for the duration of a specified season. Thus, the differences in types of employment for which the Mining Award provided compared to those under the Agreement had the potential of making a significant difference to entitlements to redundancy pay if the contractual arrangements between Roy Hill and Karijini ended. As earlier set out, permanent full-time and part-time employment modes were provided for under the TRRC Agreement, and the TRRC employees to whom that agreement applied were employed as permanent employees. The employment of the TRRC employees by Karijini under the Agreement (as was understood would happen by Karijini and the two employees throughout the bargaining for the Agreement) would, by virtue of clause 4.1, require them to be employed on a fixed or maximum term basis (since there was no contemplation of them being engaged to perform the Roy Hill work without being covered by the Agreement). Further, if this was aligned with the end of Karijini’s contract with Roy Hill (consistent with the rationale for Karijini’s establishment and with the engagement terms of the two employees who voted upon the Agreement¹⁰⁸), the TRRC employees would not have any entitlement to redundancy pay upon termination of the Roy Hill contract. This would constitute a discernible disadvantage to the TRRC employees, contrary to the representation made about them to the two employees who voted upon the Agreement.

[75] It is not to the point, as Karijini argues, that it could offer employment on a fixed or maximum term basis notwithstanding whatever modes of employment were provided for under the Agreement. This is true. However, s 180(5) is concerned with explaining the effect of the terms of the Agreement on which employees will be asked to vote and is not concerned with explaining the effect of the contractual terms under which employees are or would be employed. It is evident that the two employees were concerned about any disadvantage that might be borne by TRRC employees upon becoming engaged under the Agreement. An explanation that included an award comparison would have highlighted that the Mining Award makes provision for particular types of employment which would provide redundancy benefits to employees under the NES if employment was terminated upon the ending of the Roy Hill contract, but the types of employment for which the Agreement provided could never provide such an entitlement where the fixed or maximum term end coincided with the ending of the Roy Hill contract.

[76] On the evidence we do not consider that it was open for the Deputy President to conclude that the error was a minor procedural error or that the two employees were not likely to have been disadvantaged by the error. The error plainly caused them disadvantage as to their capacity to be informed about the effect of the Agreement on TRRC employees who would in the future be employed under the Agreement – a matter about which they had specifically expressed concern.

[77] For the foregoing reasons, grounds 4, 5, 6 and 10 of the appeal are upheld.

TRRC misrepresentation ground

[78] The CFMMEU contends by ground 3 of the appeal that the Deputy President erred in not taking into account the representation made by Mr Butler to the effect that the TRRC employees would not be disadvantaged in response to questions by the two employees concerning the effect of the Agreement upon TRRC employees when they moved across to Karijini. We reject this ground of appeal for similar reasons as for ground 2. The relevant representation made by Mr Butler, the evidence about which we have set out in paragraph [18] above, was said by Mr Butler to have been made by him on 4 July 2018. However, for the reasons earlier set out, it is more likely to have occurred on or around 9 July 2018 when the two employees commenced employment. It certainly occurred before 13 July 2018, when the first bargaining meeting began, because Mr Butler was at that stage merely foreshadowing the negotiation of an enterprise agreement. It therefore was not relevant to the assessment required by s 180(5), which for the reasons set out above is concerned with explaining the terms of the Agreement that is proposed to be put to a vote and their effect. This is the case notwithstanding that the discussion in which this representation was made was identified by Mr Butler in the Employer’s declaration as a step taken to explain the Agreement under s 180(5). The Deputy President did not err in her consideration of this matter. However, that is not to say that Mr Butler’s representation is not relevant for other purposes, as we will come to later in this decision.

The undertakings ground

[79] By ground 7 of the appeal, the CFMMEU contends that the undertakings 1 and 2 accepted by the Deputy President (set out in paragraph [34](2) above) did not overcome Karijini’s non-compliance with s 180(5) in respect of explaining the effect of the Agreement provisions concerning types of employment, and that the Deputy President therefore erred in accepting the undertakings. Karijini submitted in response that the undertakings addressed the concern which the Deputy President actually held - being the failure to explain the Agreement’s excision of coverage of permanent employment in circumstances where the Mining Award covered that mode of employment – by removing that excision. It further submitted that:

•  whether or not Karijini would ever decide (as a matter of contract) to employ permanent employees, or whether any persons in receipt of such offers would accept them, was irrelevant, because the fact remained that the Agreement (as varied by the undertaking) covered precisely the same modes of employment as the Mining Award;

•  the undertakings rendered the explanation defect moot in precisely the manner accepted in CFMMEU v Specialist People Pty Ltd 109 at [23]; and

•  the undertakings did not have to “address the position of the TRRC employees…who had already converted to maximum term”, as the CFMMEU submitted, since it was intended to address a concern about the accuracy of the explanation given to the two employees and, whatever decisions the TRRC employees might have made (as a matter of contract) to accept maximum term employment with Karijini were irrelevant to the undertakings.

[80] Relevant to this issue, the Deputy President said in the first decision:

“[302] Karijini proffered an undertaking which it said resolved the non-compliance with s 180(5) of the Act, with respect to permanent employment whether on a full time or part time basis. The undertaking proffered read:

In the event Karijini recruits new employees, it will give genuine consideration to whether the role can be recruited on a permanent full-time basis. Karijini will apply the terms of the Agreement to any permanent full-time employee.

The circumstances of Karijini’s operations at the time of this undertaking mean that it will not engage any part time employees in the classifications covered by the Agreement. In the event of a change to its operations which impacts its ability to operationally utilise part time employees, where Karijini recruits new employees it will give genuine consideration to whether the role can be part time. Karijini will apply the terms of the Agreement to the part-time employee. 

[303] In this case, the concern that Karijini sought to address under s 190 was that although it failed to explain that the terms of the Agreement were substantially different to the Award concerning types of employment, the effect of the undertaking was to mirror the types of employment available under the Award. The undertaking was not likely to cause financial detriment to any employee covered by the Agreement because the Agreement (including any undertaking proffered in relation to pay entitlements) provided for flat hourly rates of pay that applied to all employees covered by the Agreement.

[304] The Union’s view was that an undertaking could not address this concern because it would not alter the fact that the two employees participated in bargaining, and voted on the Agreement, without knowledge of a significant change to the modes of employment which directly affected the position of the TRRC employees.

[305] The Union pressed that even if the concern about the failure to explain the change in employment categories was construed more narrowly, it remained unaddressed. Karijini had offered an undertaking which, said the Union, only addressed the position of future employees, and did not address the position of employee who had been engaged under the Agreement to date, including the TRRC employees.

[306] The Union concluded its submissions on this point noting that the undertaking had not addressed the reasons why permanent employment was available under the Award and the TRRC agreement, but not under the Agreement. Absent such explanation, the undertaking as to giving ‘genuine consideration’ was meaningless, because there was no way of identifying the circumstance in which permanent employment may, once more, be available.

[307] I am satisfied that the undertaking proffered mirrors that in the Award, rendering the issue concerning the types of employment moot. The Union has raised argument that the undertaking does not address that the two employees have been employed on maximum term contracts (as have TRRC employees) and that the undertaking addresses the modes of employment only for future employees. However, it is important to revert to that which has been reiterated earlier in this decision. Ultimately, Karijini, as the employer, retains discretion to determine the mode of employment to be offered to its employees. The Agreement does not dictate or otherwise prescribe the type of employment. What it does do is set out the various types of employment that are available under an enterprise agreement. That now mirrors those available under the Award. Further, Karijini has undertaken to apply the terms of the Agreement to any permanent employee.

[308] The concern that the Agreement does not meet the requirements in s 186(2)(a) is therefore satisfied by the undertaking proffered …”  [Footnote omitted]

[81] As Karijini correctly points out, and as is evident from the Deputy President’s reasoning above, the concern to which the undertakings were directed was the failure to explain the Agreement’s excision of coverage of permanent employment in circumstances where the Mining Award covered that mode of employment. Relevantly, the power to accept an undertaking under s 190 of the FW Act is not engaged unless the Commission has a concern that the agreement does not meet the requirements set out in ss 186 and 187¹¹⁰ and the Commission must be satisfied that the undertaking accepted meets the concern.¹¹¹ The relevant requirement about which a concern might legitimately arise was whether the genuinely agreed requirement in s 186(2)(a) had been met.

[82] The Deputy President had earlier concluded that the error was a minor procedural error and the relevant employees were not likely to have been disadvantaged by the error. Consequently, on that conclusion the Agreement had been genuinely agreed to by the relevant employees by reason of s 188(2) of the FW Act in respect of this matter. No other concern about that requirement is relevantly expressed. Consequently s 190 was not engaged and the Deputy President did not have power to accept the undertakings. This is not a case where the undertakings could be accepted in the alternative. Absent a relevant concern about s 186(2)(a) having been met, the Deputy President was in error to accept the undertakings because she had no power to do so.

[83] Accordingly, Ground 7 is upheld on the basis that the Deputy President was not empowered to accept undertakings 1 and 2. However, even if the Deputy President had found that Karijini’s failure to comply with s 180(5) in respect of the provisions of the Agreement concerning types of employment was not “saved” by s 188(2), we would nonetheless uphold ground 7. There was no basis for the Deputy President’s conclusion that the undertakings “mirror” the Mining Award or that they rendered the lack of a relevant explanation moot, nor did the undertakings remove the excision of permanent employment as submitted by Karijini. The effect of the undertakings is somewhat obscure. The requirement to give “genuine consideration” to engaging future employees on a full-time or part-time basis has no relationship to any provision of the Mining Award and does not establish any entitlement of substance for any employee. The statement that “Karijini will apply the terms of the agreement…” to any full-time and part-time employee engaged in the future does not appear to be intended to have the legal effect of widening the coverage of the Agreement to encompass such employees, but rather to constitute only a promise to administratively apply the terms of the Agreement to such employees. It is doubtful whether an undertaking applicable to persons not covered by an enterprise agreement, and to whom the Agreement therefore cannot apply, is capable of acceptance under s 190, 112 but in any event a promise of this nature is not in any way reflective of the Mining Award’s coverage provisions. Alternatively, if the undertaking was intended to effect a widening of the coverage of the Agreement, it would have been necessary for the Deputy President to give serious consideration as to whether this would be likely to result in a substantial change to the Agreement.113 No such consideration was engaged in by the Deputy President.

Fairly chosen grounds

[84] By appeal grounds 12-18, the CFMMEU advances three contentions which may be summarised as follows:

(1) The Deputy President erred in confining her consideration of the fairly chosen requirement by reference only to the employees of the employing entity rather than considering the whole of the factual context which included the position of the TRRC employees. It contends that the facts raised the question of whether a coverage clause which applied to Roy Hill Operations, but which excluded the very employees who were then working on Roy Hill Operations, and who (it was intended) would transfer to Karijini to do the same work under the Agreement, was fairly chosen. In this regard the CFMMEU contends that the Deputy President did not consider the evidence and its submissions which were to the effect that both the intent and the effect of the Agreement was to prevent bargaining at the enterprise level by ensuring that an agreement was in place before the TRRC employees transferred to the new entity, and to avoid any transmission of the TRRC Agreement. The CFMMEU therefore contends that the Deputy President misconstrued the provision, applied the wrong test, and thereby failed to take into account relevant matters.

(2) The Deputy President erred in finding that, although the Agreement did not cover permanent full time and part time employees, no employees were excluded from the coverage of the Agreement. The Deputy President’s conclusion in this respect was based on a purported difference between the interests of employees not covered by the Agreement and those excluded from coverage, and the Deputy President considered that, as Karijini had no intention to employ any employees on a permanent full time or part time basis, the idea that such employees were excluded from coverage was esoteric and theoretical. The CFMMEU contends that Karijini’s present intention says nothing about the legal effect of the Agreement. It says there was no practical reason identified by Karijini for the exclusion of permanent employment from the Agreement. The CFMMEU said it submitted below that the exclusion of permanent employees from the coverage of the Agreement was intended to ensure that the TRRC Agreement did not, pursuant to the transfer of business provisions in Pt 2-8 of the FW Act, continue to cover any TRRC employees who were employed by Karijini. The TRRC Agreement excluded from its coverage fixed-term and maximum-term employees and, by choosing a coverage scope for the Agreement which included such employees but excluded permanent employees, Karijini hoped to achieve a result whereby transferring employees from TRRC could only be engaged as fixed-term or maximum-term employees and thus the TRRC Agreement could not continue to apply to them. Because, the CFMMEU submits, the Deputy President did not consider that the Agreement actually excluded from its coverage permanent employees, she did not consider the CFMMEU’s submission in this respect. Inconsistent with her conclusion about this, however, the Deputy President accepted undertakings 1 and 2, which contemplated the future possibility of the engagement of permanent employees and thus demonstrated that this was not esoteric or hypothetical.

(3) The Deputy President erred in her alternative conclusion that, if any employees were excluded from the coverage of the Agreement, the employees covered by the Agreement were organisationally and operationally distinct for the purpose of s 186(3A) of the FW Act. It says that these concepts could only be applied by reference to the other parts of the organisation or other employees. This exercise was not undertaken.

[85] Karijini submitted that:

•  section 186(3) does not require an inquiry into some particular cohort of future employees, but rather inquires into the whole class of employees to whom the agreement might in future apply, with such whole class merging on the face of the agreement’s coverage clause;

•  the relevant enterprise for the purpose of s 186(3) is Karijini’s and Karijini’s alone, and no activities of any other employers are to be assessed;

•  to the extent relevant, there was evidence before the Deputy President that Karijini had an intelligible and legitimate business rationale for its choice of coverage, namely Mr Butler’s evidence of Karijini’s need for modes of employment “synergistic” with its commercial contract with Roy Hill, and “organisational logistics around flights, accommodation and rosters”;

•  there was no evidence to suggest that the voting group was itself employed for the artificial and short-term purpose of making the Agreement, and the evidence was that the two employees were employed to meet a shortfall in required labour;

•  the Deputy President dealt, in the alternative, with s 186(3A), and her findings concerning Karijini’s legitimate business rationale were plainly open to her, as were her findings concerning organisational distinctiveness; and

•  even if the Railtrain Group had used Karijini to avoid bargaining with the TRRC employees as contended by the CFMMEU, this would be irrelevant to the statutory test in s 186(3).

[86] The principles concerning the proper construction and application of s 186(3) and (3A) may be summarised as follows. The expression “the group of employees covered by the agreement” in s 186(3) refers to the whole class of employees to whom the agreement might in future apply, not the group of employees who actually voted on whether to make the agreement. 114 The references in ss 186(3) and (3A) to whether “the group of employees covered by the agreement was fairly chosen” are, in the case of an enterprise agreement that is not a greenfields agreement and is made with a group of employees, particularly a small group, to a choice made by the employer.115 A decision by a Commission member as to whether that member is “satisfied” that the group of employees covered by an agreement was “fairly chosen” involves a degree of subjectivity and the exercise of a very broad judgment or value judgment, and in a broad sense may be characterised as a discretionary decision.116 Thus in an appeal from a decision of that nature, it will be necessary for the appellant to demonstrate error in the decision-making process of the type identified in House v The King117 in order for a Full Bench to set aside the decision.118

[87] As to the CFMMEU’s first contention earlier summarised, the following observation made by the Full Bench in Australian Workers' Union v Rigforce Pty Ltd 119 appears to us to be apposite:

“The real complaint of the AWU is that the Rigforce business has changed the corporate entity it uses to employ its workforce and make enterprise agreements in order to avoid bargaining with the substantial portion of its existing workforce, for many of whom the AWU would have been the default bargaining representative. It may be accepted that an inference could be drawn from the available material that this is what has occurred, although we note that Rigforce’s position is that it wished to consolidate its employment in one single corporate entity. However, it seems to us that the “fairly chosen” requirement in s 186(3) and (3A) is concerned with the selection of the group of employees employed by the employer or employers who made the agreement in question, and does not deal with a situation where a group of companies selects (and perhaps manipulates) different employing entities within the group at different times for the purpose of making enterprise agreements and operating as the employer of the relevant part of the workforce. In other words, taking the AWU’s case at its highest, it is not demonstrative of any error in the conclusion that the “fairly chosen” requirement was satisfied.” 120

[88] Here Railtrain, or the Railtrain Group, incorporated Karijini and selected that entity to contract with Roy Hill, to be the employer of labour to be supplied to Roy Hill pursuant to that contract, and to make an enterprise agreement covering that labour, instead of using the existing entity, TRRC, for that purpose. This kind of corporate manipulation, even if it had the effect of depriving TRRC employees who might in the future become employees of Karijini of the opportunity to bargain for the Agreement, is not demonstrative that the fairly chosen requirement was not met. This is because, in respect of the single-employer agreement which Karijini proposed to make, the scope of coverage of the agreement could never extend beyond those persons employed or to be employed by Karijini itself. The fairness of the employer’s choice as to coverage cannot be assessed by reference to persons not employed by the employer. The CFMMEU has not identified any alternative, “fair” scope of coverage which could have allowed TRRC employees to participate in bargaining, for the obvious reason that there is none. The position about which the CFMMEU complains has arisen because of Railtrain’s selection of Karijini as the new employing entity, not because of the selection of the group of Karijini’s employees to be covered by the Agreement. Accordingly, we reject the CFMMEU’s first contention.

[89] We consider, however, that the CFMMEU’s second and third contentions have substantial merit. In relation to the restriction of or exclusion from coverage contained in clause 4.9 of the Agreement, the Deputy President said:

“[411] The examination that is required is that of the whole class of employees to whom the agreement might in the future apply. It is the group that is the focus. In the circumstances of this case, the whole class of employees is set out in the coverage clause at clause 2. However, it is not the case that clause 4 has no work to do, and clearly consideration of the nature of the work can extend to the type or types of employment under the Agreement. Clause 4.9 makes it clear that the Agreement does not cover any employee engaged under an indefinite or permanent contract of employment. Further, clause 4.1 sets, says Karijini, its intention of the types of employment under the Agreement. Those types are absent the category of permanent employment.

[412] While Karijini speaks of ‘intent’ when it comes to specifying the types of employment under the Agreement, the inclusion of the word ‘will’ and the specification of ‘types of employment’ clearly limits the type of employment to those ‘types’ under the Agreement. Permanent employment, as a type of employment, is evidently not contemplated. It follows that any future employee employed on a permanent basis would not be covered by the Agreement. However, it cannot be concluded from this that clause 4 excludes an existing or future employee from coverage.

[413] As submitted by Karijini, the notion that clause 4 excludes anyone from the coverage of the Agreement is an esoteric and fundamentally theoretical construct. There are no permanent employees. The Agreement does not extend coverage to permanent employees, and there is no obligation to offer permanent employment. Fundamentally, there is a difference between the ‘interests of employees not covered by the agreement’ on the one hand and ‘the interest of employees excluded from coverage’ on the other.

[414] While permanent employment, whether full-time or part-time, is not a type of employment catered for under the Agreement, it remains, and must be emphasised, no existing or future employee has been excluded from coverage. It follows that the Agreement covers the whole class of employees to whom the agreement might in the future apply and therefore s 186(3A) is not triggered.”

[90] The Deputy President then proceeded to consider, if she was “wrong on this point”, whether any of the s 186(3A) criteria had been met. The Deputy President relevantly stated:

“[417] Karijini has not shied away from disclosing the impetus for the types of employment available under the Agreement. Mr Butler further acknowledged that part-time employment was not a type of employment under the Agreement because Karijini did not employ part-time employees. Detailed evidence was provided regarding the rationale for this position. As far as it is relevant, the logistics of the rail operations, the associated rosters, operational requirements, and productivity factors provide a cogent basis for particular types of employment to be within the Agreement and not for others.

. . .

[423] While the Agreement does not include two particular types of employment, it is not the case that the absence of these ‘types’ renders the circumstances one where the group of employees was not fairly chosen.

[424] In making its submissions on the point of the business rationale, the Union turned to the course taken by the Railtrain Group. However, the Railtrain Group was not the employer. It was the employer who agreed upon the coverage clause with those employees employed at the time. As submitted by Karijini, the ‘business rationale’ is that of the employer who made the relevant agreement. It is not open to pick and choose other employers, whether related entities or not, and seek to interrogate their business rationales.

[425] Turning to the business rationale for the course taken by the Railtrain Group, the Union referred to Karijini’s contention, that Roy Hill ‘required’ its labour supplier to have an enterprise agreement of an appropriate duration in place to ensure continuity of production, had not been demonstrated. It can be appreciated that this assertion had no bearing on the absence of two types of employment, but was apparently relevant to the argument advanced regarding the ‘exclusion’ of the TRRC employees. So much is evident from the Union’s submission that there was no evidence to establish a legitimate business rationale for replacing one subsidiary, TRRC, with another, Karijini.

[426] Based upon the evidence before me, I am satisfied that the selection of the group of employees was neither arbitrary nor discriminatory, and it cannot be said that the selection was ‘based on criteria which would have the effect of undermining collective bargaining or other legislative objectives’.

[427] In my view, the incontrovertible evidence was that the Agreement covered every existing employee of Karijini engaged on the Roy Hill contract and did not exclude any group of future employees. If wrong on that point for the reason cited, then it remains that I am able to take into account the organisational distinctiveness of the group. I have taken into account the business rationale for the selection of the particular group, the structuring of the organisation such that the types of employment are synergistic with the commercial contract in play, in addition to the organisational logistics around flights, accommodation and rosters (regarding part-time employment). I have no reason to disbelieve the evidence of Mr Butler in this respect. The business rationale is legitimate and the distinctiveness of the group is evident in organisational terms. In addition, it strikes me that I am able to take into account the geographical distinctiveness of the group. The group works at a confined location, as described at paragraph [9] of this decision, a factor that has bearing in determining the group has been fairly chosen.”

[91] We consider that the Deputy President’s analysis was, with respect, in error. As we have earlier set out, clause 2.1(b) of the Agreement provides that it covers employees of Karijini employed in the classifications contained in clause 5 when engaged in rail operations at Roy Hill Operations in the Pilbara Region. The classifications in clause 5 consist of Railway Worker Levels 1, 2 and 3, and make no distinction between the mode of employment (full-time, part-time, casual, fixed term etc.). The duties and responsibilities of Railway Workers at each level are set out in Appendix 1. To this point, it may be said that the Agreement covers all of the current and future employees of Karijini engaged in rail operations work. However, clause 4.9 provides that: “For the avoidance of doubt this agreement does not cover any employee engaged under an indefinite or permanent contract of employment”. As the Deputy President recognised, and Karijini conceded, clause 4.9 is a coverage term. Although, absent clause 4.9, there would be no doubt that employees “engaged under an indefinite or permanent contract of employment” are covered by the Agreement, nevertheless the effect of clause 4.9 is clearly to “carve out” or exclude employees in this category from the Agreement’s coverage.

[92] Two points arise from this. The first is that clause 4.9 represents a fundamental aspect of Karijini’s selection of the scope of the Agreement’s coverage, and s 186(3) requires the fairness of this to be assessed independent of any question as to the application of s 186(3A). A major part of the CFMMEU’s case in this respect was that the true rationale for clause 4.9 was that Karijini wanted to avoid the TRRC Agreement continuing to apply to any TRRC employees it engaged once the Agreement was made by virtue of the transfer of business provisions in Pt 2-8 of the FW Act, and that this was not a fair basis for the choice of the Agreement’s coverage. Because the Deputy President viewed clause 4.9 through the prism only of whether it “excluded” any employees from coverage such as to make s 186(3A) applicable, she failed entirely to give consideration to this aspect of the CFMMEU’s case.

[93] As Karijini no doubt anticipated at the time it made the Agreement, the subsequent employment by it of TRRC employees to continue to perform the Roy Hill operations under the new contract constituted a “transfer of business” within the meaning of s 311(1) of the FW Act, and these employees were “transferring employees” within the meaning of s 311(2). The employment of the TRRC employees terminated, they were engaged by Karijini within 3 months after termination, they performed the same work for Karijini as they had for TRRC, and Karijini was an “associated entity” of TRRC. The TRRC Agreement was a “transferable instrument” within the meaning of s 312(1). Bearing those matters in mind, s 313(1) provides:

313 Transferring employees and new employer covered by transferable instrument

(1)  If a transferable instrument covered the old employer and a transferring employee immediately before the termination of the transferring employee’s employment with the old employer, then:

(a)  the transferable instrument covers the new employer and the transferring employee in relation to the transferring work after the time (the transfer time) the transferring employee becomes employed by the new employer; and

(b)  while the transferable instrument covers the new employer and the transferring employee in relation to the transferring work, no other enterprise agreement or named employer award that covers the new employer at the transfer time covers the transferring employee in relation to that work.

[94] Section 313(1) operates subject to any order made by the Commission under s 318(1), but there is no question that no such order had been made in this case. The relevant effect of s 313(1) would appear to be therefore that the TRRC Agreement would continue to cover the ex-TRRC employees engaged by Karijini and that the Agreement would not. If this is so, this would substantially defeat the purpose of the Agreement, and indeed the purpose for the establishment of Karijini.

[95] The CFMMEU raised the question in the proceedings before the Deputy President as to whether the rationale for clause 4.9 was to ensure that the TRRC employees could only be engaged as fixed or maximum term employees, so that once engaged they would be excluded from coverage of the TRRC Agreement by virtue of 4.2 of that agreement and s 313(1) would therefore not operate. It questioned Mr Butler about this. His evidence was, relevantly, that at the time Railtrain made the decision to use Karijini and the two employees to make an enterprise agreement in mid-2018, it was intended that the TRRC workforce would go across to Karijini after the Agreement was made. 121 Mr Butler also gave evidence to the general effect that he was advised by Mr Elston that because the Agreement was “different” to the TRRC Agreement, the transfer of business provisions would not apply. He said that the advice did not specifically identify clause 4.9 as bringing about that result, but he could not identify what else was “different” about the Agreement compared to the TRRC Agreement that made the transfer of business provision inapplicable.122

[96] We consider that at least this may be concluded from Mr Butler’s evidence: that Karijini had in mind the need to avoid the operation of the transfer of business provisions of the FW Act, and that the Agreement was drafted in a way that was sufficiently “different” to the TRRC Agreement such as to make, at least in Mr Elston’s view, the transfer of business provisions inapplicable. Mr Butler’s evidence did not deny the proposition that clause 4.9 (together with clauses 4.1 and 4.2) were the provisions that were “different” such as to bring about the intended result, and it is impossible to identify any other provision of the Agreement that could conceivably be thought to bring about the intended result. Accordingly, we consider that it would have been reasonably open for the Deputy President to infer, consistent with the CFMMEU’s submission, that the rationale for the coverage provision in clause 4.9 was to assist in achieving a result whereby the TRRC Agreement would not continue to apply to TRRC employees who transferred to Karijini and that, as a result, the coverage of the Agreement was not fairly chosen. The failure of the Deputy President to give any consideration to the CFMMEU’s argument in this respect therefore, in our view, meant that the evaluative exercise required by s 186(3) miscarried.

[97] The second point is that clause 4.9 engages s 186(3A) because it clearly excludes from the coverage of the Agreement categories of employees who might be engaged by Karijini to perform the work otherwise covered by the Agreement. As earlier stated, the “group of employees covered by the agreement” by reference to which s 186(3) and (3A) operate is the whole class of employees to whom the agreement might in future apply and, but for clause 4.9, this would obviously include full-time and part-time permanent employees. There is nothing in the text of s 186(3) and (3A) by which the operation of the “fairly chosen” requirement may be restricted by a consideration of the employer’s stated present intentions as to its preferred mode of hiring employees. Further, the Deputy President’s acceptance of undertakings 1 and 2, which contemplated at least the possibility of the future employment of full-time and part-time permanent employees, is at odds with her conclusion that this was such an “esoteric and fundamentally theoretical construct” that it did not warrant consideration under s 186(3) and (3A). Accordingly, we consider the Deputy President erred in finding that s 186(3A) did not apply.

[98] As we have set out above, the Deputy President did, in the alternative, consider s 186(3A) and found that the group of employees was organisationally and (perhaps) geographically distinct. We do not consider that either of those conclusions were reasonably available. The following principles are applicable to the expression “organisationally distinct” in s 186(3A):

•  the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations;

•  most businesses have organisation structures which will allow organisationally distinct groups to be identified; and

•  the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct; however, the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function. 123

[99] In our view, the mode of the employment of particular employees by Karijini does not bear any meaningful relationship to the way in which it organises its business. There was no evidence that Karijini had any organisational structure which was relevant to s 186(3A). If permanent full-time or part-time employees are in future engaged by Karijini to perform the Roy Hill train driving work – which undertakings 1 and 2 contemplate as a possibility – their duties would be the same as those covered by the Agreement and there is no basis to think they would not work in an integrated way with the other employees performing this work. As the Full Bench said in Aerocare Flight Support Pty Ltd v ASU and TWU 124 in relation to the exclusion of casual employees from the coverage of an enterprise agreement:

“[33]…The conclusion reached by the Commissioner that the PSEs covered by the 2017 Agreement were not organisationally distinct from the casual employees we find to be completely unsurprising. There was no evidence that, in its organisation structure, PSEs and casuals performing the same work were placed into different organisational units, had different reporting lines or were managed differently. As earlier stated, for functional purposes they were, on the agreed facts, indistinguishable. That a different model of remuneration was used for groups of persons who had otherwise performed the same work on similar rosters in order to discharge the same business function could not by itself be sufficient to demonstrate that the groups were organisationally distinct.”

[100] As to geographic distinctness, although the coverage of the Agreement has a geographic element insofar as clause 2.1(b) confines its operation to the Pilbara Region, the full scope of coverage established by clauses 2.1 and 4.9 operating in concert is simply not distinguishable by geography.

[101] We therefore conclude that the Deputy President’s assessment under s 186(3) and (3A) miscarried. Grounds 12-14 and 18 of the appeal, which effectively embody the CFMMEU’s second and third contentions outlined above, are upheld.

Section 188(1)(c) grounds

[102] By grounds 19 and 20 of the appeal, the CFMMEU contends the Deputy President was in error in concluding, for the purpose of s 188(1)(c), that there were no other reasonable grounds for believing that the Agreement was not genuinely agreed to by the two employees.

[103] The CFMMEU contends error under three heads:

(1) There were reasonable grounds to believe the two employees did not sufficiently understand the effect of various terms of the Agreement to genuinely agree to it.

(2) The fact that the rates of remuneration in the Agreement would not apply to the two employees, and that they would be covered by Individual Flexibility Agreements (IFAs) once the Agreement was made, meant that they lacked a sufficient stake in the Agreement to genuinely agree to an Agreement which would apply to at least 50 other employees and which was a “baseline safety net agreement”; and

(3) The circumstances surrounding the TRRC employees, and the fact that Railtrain Group intended that those employees would shortly thereafter be covered by the Agreement, meant that the two employees lacked the “moral authority” to genuinely agree.

[104] Karijini submitted in response that:

•  section 188(1)(c) is concerned with “other reasonable grounds” and encompasses matters not caught by s 188(1)(a) and (b), so that a defective explanation which fails to meet the requirement of s 180(5) engages s 188(1)(a)(i) and, for that reason, cannot also engage s 188(1)(c);

•  the CFMMEU’s contention seeks to impose by the “side door” of s 188(1)(c) a far more stringent explanatory requirement that that which s 180(5) requires, and this would impose an impossible burden upon employers, employees and the Commission alike;

•  even if the voting group’s actual knowledge of the differences between the Agreement and the Award was somehow relevant as a “reasonable ground” under s 188(1)(c), the CFMMEU bore the evidentiary onus to establish facts giving rise to that “reasonable ground” on the balance of probabilities. Karijini adduced substantial evidence concerning its compliance with s 186(2) and, if the CFMMEU wished to advance a contrary case by asserting the existence of a s 188(1)(c) reasonable ground referable to the two employees’ actual knowledge, it could have called them to give evidence but did not;

•  the notion of “stake” which the CFMMEU propounds is not a mandatory relevant consideration and finds no voice in the text of s 188(1)(c) but, in any event, the two employees plainly had a sufficient stake in the Agreement because the Agreement would provide an enforceable safety net in respect of any IFAs they might be offered;

•  in addition, there was evidence before the Deputy President that it was communicated to the two employees that the need to have an enterprise agreement in place that aligned with the terms of the proposed commercial contract between Karijini and Roy Hill, which was a condition of Roy Hill reaching agreement on those commercial terms, and this provided a sound basis for the two employees to provide informed consent to the Agreement notwithstanding that their applicable terms were set elsewhere;

•  it is inexplicable that the Act could require enterprise agreements to contain a term facilitating the making of IFAs and at the same time prevent approval of an agreement should the employer suggest that it intends to use IFAs;

•  the requirement in s 188(1)(c) has never extended to value-laden speculation about how the voting group might view the terms on which their employer might make contractual offers of employment to another cohort of prospective employees at some unknown time in the future, nor has it extended to consideration of the bargaining position of third parties (such as future employees);

•  section 188(1)(c) is not an at-large criterion to be deployed whenever the commercial or industrial strategy surrounding an enterprise agreement might be viewed as odious: the section is, as its plain and properly construed text mandates, concerned with the quality of the consent given by the voting group;

•  expanding the possible scope of already nebulous concepts of “moral authority” and “authenticity” beyond matters affecting the voting group invites the imposition of value-laden considerations the scope of which would be limited only by the imagination of the contradictor; and

•  even if s 180(5) were capable of extending to the effect of the Agreement on TRRC employees, the CFMMEU fails to identify any appealable error in the Deputy President’s evaluation of Mr Butler’s explanation about the effect of the Agreement on the TRRC employees, and no error in the exercise of the discretion arises.

[105] The CFMMEU’s contentions summarised at paragraph [103] above are essentially the same points which it made below. The first contention was rejected by the Deputy President on the basis that the concerns raised were matters concerning the explanation required by s 180(5) of the FW Act. The Deputy President reasoned that, as s 188(1)(c) is concerned with “other reasonable grounds”, matters relating to the adequacy of the explanation given, which necessarily arise for consideration under s 188(1)(a)(i), do not arise again under this head.¹²⁵

[106] The Deputy President’s analysis as we have summarised above is correct so far as it goes. However, it does not address the point raised below or here on appeal. That s 188(1)(c) is not concerned with contraventions of s 180(5) was uncontroversial below. The relevant proposition which the CFMMEU sought to advance was that consent cannot be informed, and thereby genuine, if differences between Award and Agreement are not known. In other words, the two employees could not have genuinely agreed to the Agreement because, absent knowledge of their existing Award entitlements, they were not likely to have understood the terms of the Agreement or its effect. In this regard, it is apparent that the CFMMEU was relying on the following passage in One Key Workforce in which the Court discussed the statutory task under then s 188(c) of the FW Act:

“[170] Here, in arriving at the opinion required by s 186(2)(a), the Commissioner made a similar error. He failed to appreciate that his statutory task required a consideration of whether the three employees who approved the Agreement were likely to have understood the terms of the Agreement and its effect and whether by reason of that factor, there were reasonable grounds for believing that the Agreement had not been “genuinely agreed” to. In the result, he misconceived his duty, failed to apply himself to the question raised by para 188(c) and misunderstood the nature of the opinion he was to form.”126

[107] As to this aspect, the Deputy President concluded in the first decision:

“[449] While the Full Bench in its decision concluded it was not satisfied there was compliance with s 180(5) of the Act, in various respects, I am unable to reach the conclusion that because of this there are other reasons for believing that the Agreement was not genuinely agreed to because of the explanation provided. At paragraphs [441] – [448] of this decision, I have explained in part why.

[450] In adding to this, I note that while the steps taken fell short of ‘all reasonable steps’, it is not the case that the consent of the employees was uninformed. It was evident that at material times the two employees were provided with an explanation about the terms of the Agreement, were asked whether they had any questions and were provided with opportunities to query answers provided. While it may have been the case that Karijini did not take all reasonable steps to explain the effect of the ‘detrimental’ terms, the two employees had been informed that there were such terms, what the ‘BOOT test’ stood for, and that, when the two employees’ conditions and rates of pay were measured against the Award, the Agreement did pass the BOOT. The two employees were not uninformed when it came to being asked to vote on the Agreement.”

[108] This rather misses the point because it is uncontroversial that an award comparison explanation was not given and, for reasons already explained, there was no evidence that the two employees even knew, much less understood, the Mining Award terms under which they were employed. Consequently, given these facts, the Deputy President was required to turn her attention to whether the two employees were likely to have understood the terms of the Agreement and their effect, not only from the perspective of the explanation given, but also from the perspective of the absence of any understanding of the Mining Award terms and the absence of a comparative explanation. The relevant question was whether, by reason of these factors, there were reasonable grounds for believing that the Agreement had not been “genuinely agreed” to. This is not asked nor answered by the Deputy President. As is evident from the passages of the first decision reproduced above, the Deputy President confined her consideration to whether the two employees understood the literal meaning of the words used in the Agreement without giving any consideration to whether they understood what award entitlement would be displaced by approving the Agreement.

[109] Such consideration was, we consider, fundamental to a proper assessment under s 188(1)(c). The Deputy President’s evaluation under s 188(1)(c) miscarried because there was a failure to take into account a material consideration and an error of principle. We uphold ground 19 of the appeal on this basis. This conclusion makes it unnecessary to consider to finality ground 20 of the appeal or the other two contentions advanced by the CFMMEU as set out above. It is sufficient to say, as to the proposition that the two employees lacked a sufficient “stake” in the Agreement, to make the following points:

•  the fact the two employees were to be offered IFAs with higher rates of pay after the Agreement was made did not mean that they had no stake in the Agreement, since the making, content and termination of such IFAs are regulated by clause 22 of the Agreement; and

•  as is apparent from the evidence, a purpose of the proposed agreement was to enable Karijini to obtain a contract with Roy Hill. At the time the Agreement was being voted on, Karijini had not yet secured a contract with Roy Hill. The two employees were employed as Train Drivers at Roy Hill Rail Operations in the Pilbara Region. If a contract was not secured, no employment in such a position would be able to continue. The two employees had an interest in Karijini winning the contract and thus they had a stake in the Agreement, because it was the vehicle through which the contract would be awarded.

Order for production ground

[110] Having regard to the conclusions we have stated above, we do not consider that it is necessary to deal with this appeal ground.

Conclusion

[111] We uphold grounds 4, 5, 6, 7, 10, 12, 13, 14, 18 and 19 of the appeal. In summary, we consider that the Deputy President erred in determining that the approval requirements in s 186(2)(a) and s 186(3) were satisfied and in accepting undertakings 1 and 2. In those circumstances, the first decision and the approval decision must be quashed.

Redetermination of the application for approval of the Agreement

[112] We consider that the most efficient course is for us to redetermine the application for approval of the Agreement ourselves based on the evidence and submissions received to date.

[113] In respect of the approval requirement in s 186(2)(a), we are not satisfied that the Agreement was genuinely agreed to by the employees covered by the Agreement. We have reached this conclusion on two bases.

[114] First, for the reasons given in the appeal decision, we consider that Karijini did not comply with s 180(5) in that it did not take reasonable steps to explain the effect of the terms of the Agreement in respect of the Mining Award provisions it would displace if approved. This had particular saliency for three aspects of the Agreement: the types of employment permitted under clauses 4.1, 4.2 and 4.9 of the Agreement; the provision for meal breaks in clause 8.1 of the Agreement; and the provision for the taking of annual leave in clauses 11.4 and 11.5 of the Agreement. For the reasons given in paragraphs [69]-[77] above, we are not satisfied that, in respect of the provisions concerning types of employment and meal breaks, Karijini’s non-compliance with s 180(5) constituted a procedural or technical error that was minor in nature, nor are we satisfied that the two employees were not likely to be disadvantaged by the error. In respect of the provisions of the Agreement concerning the taking of annual leave, we agree with and adopt the Deputy President’s conclusion that this error was not minor in nature.

[115] The undertakings proposed to date by Karijini do not resolve our concerns concerning non-compliance with s 180(5) in relation to the types of employment and meal breaks provisions of the Agreement. As to the former, we rely upon our observations about undertakings 1 and 2 in paragraph [83] above. We also add that, as the TRRC employees have already been engaged on maximum term contracts since 2018 and were not the subject of “genuine consideration” for permanent full-time or part-time employment, these undertakings are incapable of remedying the disadvantage accruing from the two employees who voted upon the Agreement not having properly explained to them the effect of clauses 4.1, 4.2 and 4.9 of the Agreement. In respect of the meal break provisions, undertaking 3 (set out in paragraph [34](2) above) does not resolve our concern. We adopt what the Deputy President said about this undertaking in the first decision (notwithstanding that, for reasons which are unclear, she went on to accept it):

“[315] Further, the undertaking proffered did not, in the Union’s view, address the direct disadvantage to employees, arising from clause 8. The Union submitted that, at the first instance hearing, Karijini had proffered an undertaking that employees will have a 40 minute break (rather than 30 minutes (sic) breaks provided in the Agreement). The proposed undertaking on redetermination had replicated the undertaking. The Union expressed that the undertaking was of limited import, where the employees can be required to work through their break. Further, it only permitted employees one break in 12 hours, whereas the Award required at least two breaks in a 12 hour period.

[316] While Karijini could have given an undertaking to bring the meal break provisions in the Agreement into conformity with the Award, it had not. That failure meant that the ‘concern’ identified by the Full Bench had not been addressed. In part, I agree with Union in this respect. While Karijini has sought to render moot the issue identified by the Full Bench in respect of the explanation, the paid meal break proffered is a 40 minute paid meal break. The Award speaks of meal breaks totalling 40 minutes and in addition includes the aforementioned ‘safeguard’; these terms are not covered in the undertaking proffered.”

[116] Second, we are not satisfied for the purpose of s 188(1)(c) that there are no other reasonable grounds for believing that the Agreement was not genuinely agreed to by the two employees. Rather, we find that there are reasonable grounds for believing that the agreement of those two employees did not constitute properly informed consent, and lacked the moral authority required for genuine agreement, by reason of the following matters considered in combination:

(1) The Railtrain Group engaged in an exercise of corporate manipulation by creating a new entity, Karijini, to enter into a new rail operations contract with Roy Hill and to make an enterprise agreement covering work performed pursuant to that contract. For the purpose of making the enterprise agreement, Karijini engaged two employees – the statutory minimum number for making an enterprise agreement – who had not previously performed the Roy Hill work. Railtrain/Karijini always intended, once the requisite enterprise agreement was made and the new contract with Roy Hill obtained, to transfer as many as possible of the existing TRRC workforce to Karijini to perform the work under the contract. We infer that the only reason why this course was taken was to avoid having to negotiate a new enterprise agreement with the TRRC workforce and their likely bargaining representative, the CFMMEU. While we accept that Roy Hill required that there be an “in term” enterprise agreement in place in order for the new contract to be obtained, there is no reason why that enterprise agreement could not have been negotiated by TRRC with its existing workforce.

(2) Because, by reason of the circumstances in (1), the two employees were all for practical purposes negotiating an enterprise agreement that was to apply to the bulk of the TRRC workforce as well as themselves, it was essential that they have a proper understanding of the way in which the Agreement would affect the interests of the transferring TRRC workforce as well as their own interests. The evidence of Mr Butler that the two employees, when told of the need to negotiate a new enterprise agreement to align with the new contract with Roy Hill being negotiated, asked him a “lot of questions about the effect of the proposed enterprise agreement on the current train drivers working for TRRC and whether they would be disadvantaged as a result” shows that the two employees were fully aware that they would be negotiating an enterprise agreement that would cover the transferring TRRC workforce as well as themselves, and were concerned at protecting the interests of that workforce as well as their own interests in the bargaining process.

(3) It is not in dispute that the Mining Award covered and applied to the employment of the two employees at all times from the commencement of their employment until the Agreement commenced operation. However, Karijini never informed the employees that they were covered by the Mining Award, but rather misrepresented to them at the commencement of their employment that they were covered by the RI Award and never corrected that misrepresentation prior to the making of the Agreement. That meant that the employees did not have a correct understanding of the modern award entitlements they enjoyed which would be displaced by the making of the Agreement. Further, as has earlier been set out, Karijini did not:

•  provide the two employees with a copy of the Mining Award;

•  provide them with any comparison between the Agreement and the Mining Award; or

•  identify that the Agreement contained inferior entitlements concerning types of employment, meal breaks and the taking of annual leave when compared to the Mining Award.

It is a fundamental aspect of enterprise agreement-making that an agreement displaces the application of the relevant modern award: s 57(1). Informed consent to an enterprise agreement on the part of employees to whom a modern award applies requires an understanding, or at least access to the means of understanding, the award conditions and entitlements which will be displaced by the agreement. This was entirely lacking here.

(4) As set out in paragraph [18] above, it was represented to the two employees by Mr Butler immediately prior to the commencement of bargaining that the TRRC employees would not be disadvantaged because they would be offered employment with Karijini on their existing rates of pay inclusive of CPI adjustments, with additional monetary benefits, recognition of prior service and transfer of their accrued entitlements. However, it was never explained to the two employees that the intended effect and purpose of clauses 4.1, 4.2 and 4.9 of the Agreement was to ensure that the TRRC employees, who were permanent employees of TRRC, were engaged as maximum term or fixed term employees. This meant that, on the basis that the term of their engagement aligned with the term of Karijini’s contract with Roy Hill, they would not have any entitlement to redundancy pay under clause 20 of the Agreement if their employment terminated as a result of the contract not being renewed. It also meant that, in respect of redundancy, Mr Butler’s representation that the TRRC employees’ prior service would be recognised was both meaningless and, by omission, misleading. It may also be noted that Mr Butler positively represented to the two employees, in response to a specific question, that employees on maximum term contracts would be entitled to redundancy if there was no more work at the end of the Roy Hill contract. This constituted a misrepresentation about clause 20 of the Agreement, the effect of which is that employees on maximum term contracts are disentitled to redundancy on the termination of their employment at the end of the term of their contracts. 127 The misrepresentation was made in circumstances where Mr Elston, who drafted the Agreement, knew that there was no entitlement to redundancy in that situation.128 The ultimate upshot was that, unbeknownst to them, the two employees’ concern to protect the TRRC employees from disadvantage was not met when they voted to approve the Agreement.

[117] The undertakings proposed by Karijini and accepted by the Deputy President do not resolve our concern in respect of s 188(1)(c). We have already addressed undertakings 1 and 2. Undertaking 5 (set out in paragraph [34](3) above) superficially addresses the redundancy issue, but on analysis we consider it is likely to be ineffective. For an entitlement to redundancy pay under s 119 of the FW Act to arise, the employee’s employment must (except other than in circumstances of the employer’s insolvency or bankruptcy) be terminated at the initiative of the employer. It is doubtful that such a termination could be characterised as occurring in circumstances where the maximum term of a Karijini employee’s contract of employment expires simultaneously with the expiry of the term of Karijini’s contract with Roy Hill. The undertaking provides that a maximum term employee whose employment ends because their role is made redundant will be provided with a redundancy payment “as if they were a permanent employee”, but a permanent employee does not have a redundancy payment entitlement if they are not terminated at the employer’s initiative.

[118] We are also not satisfied that the approval requirement in s 186(3) has been met. For the reasons set out in paragraphs [96]-[99] above, we consider that s 186(3A) was engaged in this case, and we find that the group of employees covered by the Agreement is not geographically, operationally or organisationally distinct. Nor can a sensible business rationale for that element of the coverage of the Agreement in clause 4.9 be readily identified. While the evidence suggests that Karijini wished to ensure that the term of the employment contracts of its employees were aligned with the term of its contract with Roy Hill, it was left entirely unclear in the evidence of Mr Butler and Mr Elston what benefit Karijini derived from this. Part of the effect of the restriction upon coverage in clause 4.9, operating together with clauses 4.1 and 4.2, was that transferring TRRC employees would have to be engaged on fixed term or maximum term contracts (or as casuals) in order to be covered by the Agreement (which Karijini’s contract with Roy Hill required), and would therefore not have redundancy entitlements if the contract with Roy Hill was not renewed. Even if this was not the result intended by Karijini (albeit that Mr Elston’s evidence that he knew maximum and fixed term employees were not entitled to redundancy under the Agreement if their employment terminated at the end of their contracts suggests that it was the result intended at the time the Agreement was made), the choice of coverage in clause 4.9 was nonetheless unfair because it was incorrectly represented to those employees who made the Agreement that clause 4.9 would not have that result. Further, for the reasons set out in paragraphs [92]-[95], we consider it more likely than not that part of the intended purpose of clause 4.9 was to defeat the operation of s 313 of the FW Act in respect of transferring TRRC employees. While there is a real question as to whether it is effectual in achieving that purpose, we consider that a choice of coverage based on a rationale of this nature is illegitimate and hence unfair.

[119] The conclusions we have reached mean that the Agreement cannot be approved under the FW Act unless we accept undertakings that resolve our concerns in respect of s 186(2)(a) and s 186(3). For the reasons earlier explained, we do not consider that the undertakings accepted by the Deputy President resolve our concerns in respect of s 186(2)(a). We likewise consider that none of those undertakings address our concern in respect of s 186(3).

[120] We do not propose to afford Karijini a further opportunity to propose undertakings. It is now almost three years since the Agreement was made and accepting new undertakings now to modify the terms of an agreement made so long ago would be a process lacking in legitimacy, particularly as the current Karijini workforce on the Roy Hill contract would appear to bear little resemblance to the workforce of two which made the Agreement. Karijini has had ample opportunity over a long period of time to address by way of undertakings the issues raised by the CFMMEU in the proceedings and, as stated by the Full Bench in AKN Pty Ltd t/a Aitkin Crane Services, 129 there is no requirement in the FW Act for an employer to be given multiple opportunities to provide undertakings addressing approval concerns or for the employer effectively to be allowed to bargain with the Commission as to the terms of an appropriate undertaking.130

[121] Nor, in any event, would the acceptance of undertakings in response to our concerns necessarily lead to the approval of the Agreement. We would still need to be satisfied that the Agreement meets the other approval criteria in s 186 and 187. In respect of the better off overall test (BOOT) criterion in s 186(2)(d), the Deputy President does not appear to us to have ever made a clear finding that the Agreement, in the form that it was made, passed the BOOT. The relevant finding made by the Deputy President was rather that the Agreement would pass the BOOT with certain undertakings proffered by Karijini. 131 Although it is not an issue agitated in the appeal, that is not the correct approach for the reasons set out in paragraphs [81]-[82] above. Absent a concern about whether the BOOT was passed, the Deputy President had no power to accept undertakings in respect of the BOOT, and as far as we can identify the Deputy President never made a finding as to whether she held any BOOT concern.

[122] It is clear that the Deputy President accepted undertakings which effected fundamental alterations to the remuneration scheme provided for in the Agreement. In the Agreement as made, clause 5 provides for the following hourly ordinary-time rates of pay:

[123] Clause 7 of the Agreement provides for overtime, weekend and public holiday penalty rates, and clause 9 provides for shiftwork loadings.

[124] Undertaking 9 accepted by the Deputy President provides:

Without limiting the pay entitlements that employees otherwise have under the Agreement, the total gross amount that Karijini will pay an employee covered by the Agreement with respect to every pay cycle (not including superannuation) will be at least H x R where:

•  H is the number of hours that the employee worked (or took as paid leave) during that pay cycle; and

•  R is the relevant flat hourly rate set out below:

For Railway Worker Level 3 (maximum term): $71.94 per hour

For Railway Worker Level 2 (maximum term): $56.99 per hour

For Railway Worker Level 1 (maximum term): $55.30 per hour

For Railway Worker Level 3 (casual): $77.97 per hour

For Railway Worker Level 2 (casual): $62.37 per hour

For Railway Worker Level 1 (casual): $60.52 per hour

To avoid doubt, the hourly rates set out above are all-inclusive flat rates. For the purposes of calculating the minimum amount that Karijini undertakes to pay under this undertaking, no penalties, loadings or allowances of any kind are to be applied to these rates. These rates are fixed and are not subject to indexation under clause 5.3 of the Agreement.

[125] The Deputy President recorded that Karijini submitted that “the new pay entitlement effectively rendered the original base rates, penalties and loadings in the Agreement irrelevant in a practical sense”. 132 We cannot conceive of a clearer case of an undertaking being likely to result in substantial changes to an agreement such as to make it incapable of acceptance by reason of s 190(3)(b). The undertaking effects not just a change to the quantum of rates (from nominal “safety net” rates to actual paid rates), but a wholesale reshaping of the remuneration structure of the Agreement to replace a conventional “hours and overtime” structure with a loaded, non-adjustable flat rate structure. Nothing like this was contemplated in the bargaining for the Agreement between Karijini and the two employees in 2018. We would not for this reason accept this undertaking in our redetermination of the application for approval of the Agreement, which may have the effect of re-opening issues which were not ventilated in the appeal. This is another reason why we consider it would be an inappropriate course to invite further proposals for undertakings. The appropriate course, we consider, is to dismiss the application for approval of the Agreement.

Orders

[126] We order as follows:

1. Permission to appeal is granted.

2. The appeal is upheld on grounds 4, 5, 6, 7, 10, 12, 13, 14, 18 and 19 of the amended notice of appeal.

3. The decisions in Karijini Rail Pty Limited [2021] FWC 364 and [2021] FWCA 2154 are quashed.

4. The application for approval of the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 (AG2018/3844) is dismissed.

VICE PRESIDENT

Appearances:

C Howell of counsel for the Appellant.
C O’Grady QC and A Pollock of counsel for the Respondent.

Hearing details:

2021.
Sydney and Melbourne (via video link):
22 April.

Further written submissions:

Appellant - 29 April 2021.

Printed by authority of the Commonwealth Government Printer

<PR732181>

1 Karijini Rail Pty Limited [2019] FWCA 6451

 2   Karijini Rail Pty Limited [2019] FWC 2907

3 Construction, Forestry, Maritime, Mining and Energy Union v Karijini Rail Pty Limited [2020] FWCFB 958, 293 IR 254

4 Karijini Rail Pty Limited [2021] FWC 364

5 Karijini Rail Pty Limited [2021] FWCA 2154

6 Transcript, 22 April 2021 at PNs 24-27

 7   Witness Statement of Graham Robert Butler at [10]–[11]

8 Ibid at [12], [14]

 9   Third Witness Statement of Graham Robert Butler at [3]

 10   Witness Statement of Graham Robert Butler at [14]

 11   Transcript, 13 December 2018 at PN80

 12   Ibid at PNs 75-80

13 Ibid at PNs 75-85

14 Transcript, 27 May 2020 at PNs 1362-1363

15 Transcript, 13 December 2018 at PN75

16 Supplementary Witness Statement of Gregory John Busson at [19]

17 Transcript, 27 May 2020 at PN1457

18 Ibid at PNs 1603-1604

19 Ibid at PNs 1309-1311, 1356, 1364-1366, 1372-1373, 1402, 1426-1428, 1449-1450, 1468-1469, 1472, 1576

20 Ibid at PNs 1360-1361

21 Transcript, 13 December 2018 at PNs 86-90; Transcript, 27 May 2020 at PNs 1356-1360

22 Transcript, 13 December 2018 at PN116

23 Transcript, 26 May 2020 at PN434

24 Ibid

25 Ibid at PNs 425-434

26 Transcript, 27 May 2020 at PNs 1426-1430, 1448-1461, 1463-1469

27 Transcript, 13 December 2018 at PNs 113-114

 28   Third Witness Statement of Graham Robert Butler at [10]-[11]

 29   Witness Statement of Graham Robert Butler at [37]

30 Transcript, 13 December 2018 at PN226

31 Ibid at PNs 226-228

 32   Witness Statement of Graham Robert Butler, Attachments “GB-11” and “GB-12”

 33   Witness Statement of Graham Robert Butler at [31]

34 Transcript, 13 December 2018 at PN109

35 Ibid

 36   Employer’s declaration at p 3/14

 37   Ibid at p 7/14

 38   Witness Statement of Graham Robert Butler at [31]

39 Employer’s declaration at pp 3-4/14

 40   Witness Statement of Graham Robert Butler at [44]

 41   Witness Statement of Christopher Elston at [10]

 42   Ibid at [12]

 43   Ibid at [10]; Witness Statement of Graham Robert Butler at [47]

 44   Witness Statement of Christopher Elston at [14]

 45   Ibid and at Attachment “CE-2”

 46   Ibid at [20]-[24]

 47   Ibid at [23] and Attachment “CE-4”

 48   Ibid at [24]

49 Witness Statement of Graham Robert Butler at [49]-[51]

50 Ibid

51 Ibid at [52]; attachment “GB-5” to the Employer’s declaration

52 Ibid at [53]-[55]

 53   Employer’s declaration at p 6/14

 54   Attachment “GB-7” to the Employer’s declaration

55 Transcript, 13 December 2018 at PNs 61-63, 982

 56   [2020] FWCFB 958, 293 IR 254 at [67]-[90]

 57   Ibid at [91], [94]

 58   Ibid at [91], [95]

 59   Ibid at [116]

 60   Ibid at [123]-[125]

 61   [2021] FWC 364 at [181]-[182]

 62   Ibid at [226]

 63   Ibid at [248]-[249]

 64   Ibid at [270]

 65   Ibid at [294]

 66   Ibid at [295]-[301]; [2021] FWCA 2154 at [40]-[42]

 67   [2021] FWC 364 at [272]

 68   Ibid at [294], [2021] FWCA 2154 at [40]-[41]

 69   [2021] FWC 364 at [194], [196]-[198]

 70   Ibid at [195]

 71   Ibid at [450]

 72   Ibid at [456]-[457]

 73   Ibid at [464]-[465]

 74   Ibid at [472]

 75   Ibid at [426]

 76   Ibid at [427]

 77   [2021] FWCA 2154 at [16]-[36]

78 [2019] FWCFB 318

79 Ibid at [112]

80 Ibid at [95]

81 Ibid

82 Ibid at [113]

83 Ibid at [115]

84 Ibid at [110]

85 Ibid at [104]

86 [2018] FCAFC 77, 262 FCR 527, 277 IR 23

 87   Ibid at [115]

88 See Minister for Aboriginal Affairs v Peko- Wallsend Ltd [1986] HCA 40, 162 CLR 24 at 39-40 (per Mason J)

89 [2021] FWC 364 at [247]-[249]

90 Ibid at [269]-[271]

91 Ibid at [272]

 92   [1986] HCA 17, 161 CLR 513

 93   [1986] HCA 40, 162 CLR 24 

94 [2019] FWCFB 318 at [54]

95 Ibid at [55]

96 Ibid at [56]

97 Ibid at [57]

98 Ibid at [58]

99 Ibid at [72]

100 Ibid at [73]

101 Ibid at [117]

102 [2018] FCAFC 77, 262 FCR 527, 277 IR 23 at [115]

103 Construction, Forestry, Maritime, Mining, and Energy Union v Ditchfield Mining Services Pty Ltd [2019] FWCFB 4022 at [71]

 104   Attachment GB-7 to the Employer’s declaration

105 See for example Letter of Offer at cl 5.1

106 It seems clear from Karijini Rail Pty Limited [2021] FWC 364 at [245] that the “industry practice” the Deputy President accepted was as described at [232]-[233]

107 Employer’s declaration at p 4/14

108 See Karijini Rail ‘Frequently Asked Questions’ – “Question: What will be my employment status? Answer: KR is aligning all employment contracts to commercial contract length. That means you will be employed on the basis of full time maximum term. Maximum term means that your employment will cease on 30 April 2022 as that is the end date of the contract. KR is aware that you are currently employed as full time permanent.”

 109   [2019] FWCFB 7919

110 FW Act, s 190(1)(b)

111 Ibid, s 190(2)

 112   See Aerocare Flight Support Pty Ltd v ASU and TWU [2018] FWCFB 59 at [14]

 113   See CEPU v Main People Pty Ltd [2015] FWCFB 4467, 252 IR 340; CFMMEU v C&H Acquisition Pty Ltd [2020] FWCFB 3134, 296 IR 294 at [40]-[44]

 114   Construction, Forestry, Mining, and Energy Union v John Holland Pty Ltd [2015] FCAFC 16, 228 FCR 297, 247 IR 55 at [34]-[41], approved in ALDI Foods Pty Limited v SDAEA [2017] HCA 53, 262 CLR 593, 270 IR 459 at [83]

 115   Ibid at [28]-[32]

 116   Ibid at [60]-62]; Cimeco Pty Ltd v Construction, Forestry, Mining, and Energy Union [2012] FWAFB 2206, 219 IR 139 at [8]

 117   [1936] HCA 40, 55 CLR 499

 118   Cimeco Pty Ltd v Construction, Forestry, Mining, and Energy Union [2012] FWAFB 2206, 219 IR 139 at [8]

 119   [2019] FWCFB 6960

 120   Ibid at [34]

 121   Transcript, 27 May 2020, PNs 1575-1585

 122   Ibid, PNs 1775-1796

 123   Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74, 261 FCR 175, 278 IR 211 at [12]

 124   [2017] FWCFB 5826, 270 IR 385

125 [2021] FWC 364 at [441]-[449]

126 [2018] FCAFC 77, 262 FCR 527, 277 IR 23

 127   Transcript, 13 December 2018, PNs 728-753

 128   Transcript, 26 May 2020, PNs 843-848

 129   [2015] FWCFB 1833, 248 IR 129

 130   Ibid at [35]

 131   [2019] FWC 2907 at [182]-[186]

 132   [2019] FWCA 6451 at [8]