AllRoads Solutions Pty Ltd

[2020] FWCA 1222

[2020] FWCA 1222

FAIR WORK COMMISSION

DECISION

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

AllRoads Solutions Pty Ltd
(AG2019/4133)

ALLROADS SOLUTIONS PTY LTD ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 5 MARCH 2020

Application for approval of the Allroads Solutions Pty Ltd Enterprise Agreement 2019.

BACKGROUND

[1] AllRoads Solutions Pty Ltd (AllRoads/the Applicant) made an application for the approval of the AllRoads Solutions Pty Ltd Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). An assessment of the Agreement and supporting material identified a number of matters for response from the Employer in relation to the pre-approval steps, whether the Agreement met the National Employment Standards (NES) and the better off overall test (BOOT) when compared to the Building and Construction General On-site Award 2010 (the Award).

[1] The Construction, Forestry, Maritime, Mining and Energy Union, Mining and Energy Division (CFMMEU) corresponded with the Commission in relation to the application, referencing the Full Bench decision in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd 1andstating they had a material interest in the matter. The CFMMEU were invited to provide submissions in relation to the Agreement.

ISSUES

[2] Various issues were raised with the Applicant in correspondence. Matters in relation to the explanation of the terms of the Agreement were remedied by the provision of further information and the summary document that was provided to employees.

[3] In order to be satisfied that the Agreement was consistent with the NES, the Applicant provided undertakings to the matters raised, including a NES precedence clause.

BOOT related matters

[4] With regard to entitlements in relation to overtime and casual employees, it was noted that the Agreement did not provide an entitlement to particular allowances conferred by the Award. The Applicant was requested to address these matters.

[5] The CFMMEU noted that the above issues already raised and questioned whether the Commission can be satisfied on the basis of the material filed by the Applicant that the Agreement had been genuinely agreed to. In particular, the Union contended that the content of the Notice of Representational Rights (NERR) was not clearly explained to employees; in addition it was submitted that the mandatory terms (flexibility clause and consultation clause) were inconsistent with the Award; and the Agreement may not pass the Better Off Overall Test. These matters are addressed below.

EVIDENCE AND SUBMISSIONS

Genuine agreement

[6] The Applicant relied on the following material to establish that the requirements with respect to confirming that genuine agreement had been met. In the Form F17 Employer Statutory Declaration made on 25 October 2019, Mr Dan Fulton, Managing Director, stated at item 2.8 that the following steps were taken to explain the terms of the Agreement and their effect to relevant employees, and what was done to take into account the particular circumstances and needs of the relevant employees:

“All employees were provided with the NERR, enterprise agreement, ballot notice and summary document via email and this was then discussed during several pre-start meetings to encourage employees to seek enquiries regarding the content of the proposed agreement.”

[7] This step was taken between 13 September 2019 and 16 October 2019. The Declaration goes on to state that between 10 October 2019 to 16 October 2019, the following steps were also taken:

“The Supervisors held several pre-start meetings with employees to explain the contents of the proposed agreement with the aid of the summary document to ensure all employees understood the content of the Agreement.

All employees were provided with the opportunity to request further clarification from the Company after the release of the summary document, ballot notice and enterprise agreement.”

[8] Between 14 October 2019 and 16 October 2019, Mr Fulton declared that:

“The company provided employees with a summary of their payments under the proposed agreement to demonstrate that employees would not be disadvantaged. This ensured that all employees were aware of the flat rates, overtime rates and any allowance which may apply.”

[9] In addition, in response to requests for further information about the explanation of the terms of the Agreement and their effect, the Applicant, provided an email stating:

“…0 employees covered by the Enterprise Agreement are from a non-English speaking background. Further, 0 employees covered by the Enterprise Agreement are under 21 years of age.

Each of the employees covered by the Enterprise Agreement are experienced in the civil construction industry and are familiar with the bargaining process.

The proposed Agreement was closely modelled of the previous Enterprise Agreement so the employees were also familiar with their entitlements.

In addition to pre- start meeting and explanatory documents, employees were also provided with several opportunities to submit enquires to the Applicant.

The process takes into consideration the employees’ individual needs.”

[10] In its Form F17 at item 2.5, the Applicant stated a summary document was provided to employees via an email on the 10 October 2019. In order to be satisfied that the Agreement has been explained, the Commissioner must consider the contents of the explanation and the way it was, having regard to all the circumstances and needs of the employees, and the nature of the changes made by the Agreement. 2Accordingly, a copy of this document was sought.

[11] The four-page document titled “Summary of Proposed Enterprise Agreement” contained questions and answers framed around the Agreement. The document stipulated that the proposed Agreement “replaces the existing engagement under the Allroads Solutions Pty Ltd Enterprise Agreement 2016” and included embedded hyperlinks to the Award, the NES and the Building Code 2016. Hard copies of these documents were also made available.

[12] In relation to the matters raised by the Union, AllRoads submitted in response that at the time of making the Agreement, only 59 employees were covered by the Agreement. This was reflected in the Declaration at item 2.10. AllRoads further asserted that the NERR were issued in accordance with the requirements of the Act and that the bargaining process occurred over a period of 35 days. AllRoads also relied on the notes to supervisors that assisted them in explaining the contents of the NERR and specifically that the NERR outlined the employees’ representational rights during bargaining.

The NES issue

[13] NES and BOOT issues relating to the following clauses of the Agreement were raised with the Applicant:

•  Clause 7.2.1 – Overtime Rate;

•  Clause 8.1.1 – Annual leave - Entitlement;

•  Clause 8.2 – Personal/Carers Leave – Payment; and

•  Clause 8.7 – Public Holidays.

[14] In response to the issues raised, the Applicant provided the following undertaking addressing the concern:

“1. National Employment Standards

The Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.”

BOOT

[15] The Applicant provided further modelling to address the issues, raised that the Agreement provided reduced entitlements to casual employees and employees entitlement to overtime.

[16] Concerns were raised that clause 7.2.1 of the Agreement provided overtime rates for time worked in excess of 35 hours worked in a week from Monday to Friday for permanent employees, whereas the Award provides overtime rates for time worked in excess of 38 hours worked in a week from Monday to Friday. Specifically, modelling conducted by the Commission, demonstrated that due to the reduced overtime rates payable on weekends, a permanent employee who works a Saturday or Sunday or both as part of a 50 hour week does not appear to be better off under the Agreement.

[17] The Applicant provided further wage modelling in response that indicated that the higher rates of pay provided for in the Agreement were high enough to ensure that this was not a BOOT concern, even for a Wednesday to Sunday 50-hour-week. The Employer noted these were particular circumstances; the first example provided, indicated that the Agreement provided a further $10.54 for a Wednesday to Sunday 50-hour week, with AllRoads noting that “a 50-hour week worked Wednesday to Sunday, would be extremely rare in the industry of the Applicant”. The second example indicated that the Agreement provided a further $4.91 for a Tuesday to Saturday 50-hour work week. AllRoads submitted on this modelling that a permanent employee, working a 50-hour work week, was better off overall under the Agreement.

[18] Similarly, concerns were raised that shift workers working a 50 hour week did not appear to be better off overall, as overtime (including all time worked on a weekend) is paid at 160%. In contrast, the Award provides that all overtime on shift work is paid at 200%.

[19] AllRoads provided further modelling with regard to shift workers working a 50 hour week, that indicated that the higher rates of pay provided, compensated for the difference in the overtime rate and the absences of maximum ordinary day provision. The example provided demonstrated that the Agreement provided $148.10 above the Award. It was AllRoads submission that a shift working a 50 hour week was therefore better off overall under the Agreement.

[20] Matters were raised in respect to casual employees, which identified that although a casual employee who works ordinary hours appears better off under the Agreement, casual employees who work a 50 hour week Monday to Friday do not appear better off due to reduced casual pay rates and reduced overtime rates. Secondly, clause 7.2.1 of the Agreement was silent on whether the overtime 160% penalty rate applied to casual employees working weekends.

[21] The Applicant again provided further modelling to advance their submission that casual employees working a 50 hour week were better off overall under the Agreement. Modelling provided by AllRoads indicated that casual employees working a 50 hour week would receive a further $17.79 under the Agreement. In respect to whether the overtime penalty rate of 160% applied to casual employees working weekends, AllRoads provided the following undertaking:

“2. Casual Overtime

The Applicant undertakes that the final sentence of the first paragraph of Clause 7. 2. 1 Overtime Rate will be read and interpreted to prescribed any hours worked in excess of 45 hours Monday to Friday, or on weekends shall be paid at the overtime rate of 1. 6 times the relevant hourly rate prescribed in clause 6. 2 Wage Rates.”

[22] The modelling provided by Allroads identified that casual employees working a 50 hour week, and a casual employee working weekends in isolation, are better off overall under the Agreement.

[23] However, the following employees do not appear to be better off overall under the Agreement:

•  A day worker working weekends as part of a 50 hour week (e.g. Wednesday-Sunday);

•  A day worker working weekends in isolation; and

•  A shift worker working a 50 hour week.

[24] It was identified that the modelling conducted by AllRoads failed to incorporate tool allowance into the hourly rate and crib time allowance on weekends and failed to apply a loading of 200% for all overtime worked by shift workers.

[25] Further correspondence was sent to the Applicant on 5 February 2020, in which the above matters were identified. In response, AllRoads stated:

“In all cases, the enterprise agreement is approximately 0.21% - 3.18% above the Modern Award based on a 50 hour week. [T]he comparison provided by FWC applied the tool allowance of $32.11 per week of the Modern Award. The rates of pay for a CW 5. The CW5 rate applies to plant operators, which do not [utilise] tools. The tool allowance applies to trade level in CW3. Furthermore the tool allowance is not relevant in the wage modelling as the company provides any necessary tools for the performance of work and has provided an undertaking to that effect.”

[26] The undertaking provided by Allroads with regards to providing the necessary tools is as follows:

“5. Tools

The Applicant undertakes to supply tools to the employees to cover all works under the enterprise agreement.”

[27] AllRoads also provided further modelling that included the payment of crib time allowance on weekends, and the travel allowance, meal allowance and annual leave loading prescribed under the Award. The modelling indicated that the Award ordinary rate, exclusive of tool allowance, is $25.17, and the Agreement ordinary rate is $32.60.

[28] The CFMMEU also raised concerns in relation to a series of terms that the Agreement had allegedly failed to include specific provisions provided in the Award:

[29] To address the majority of issues identified by the CFMMEU, AllRoads provided the following undertakings:

“3. Adoption of the Modern Award

The Applicant undertakes to apply the following clauses of the Building and Construction General On-site Award 2010 in addition to the terms of the Enterprise Agreement:

•  Clause 16- Termination of employment in lieu of Clause 5.3- Termination

•  Clause 9.10- Dispute resolution procedure training leave.

•  Clause 30 - Higher Duties.

•  Clause 33.1(c) - Washing time.

•  Clause 19. 2 - Leading hands in respect of employees appointed to be a leading hand.

•  Clause 21. 10 - First aid allowance in respect of employees appointed to be a first aid attendant.

4. Personal Protective Equipment

The Applicant undertakes to supply to employees all necessary personal protective equipment.”

[30] AllRoads responded to the CFMMEU’s concerns to casual conversion, stating that it is common practice in the industry that casual employees are engaged to supplement labour for a particular project and that it is typically reasonably foreseeable that a casual position will cease to exist with the cessation of works on that project. Accordingly, AllRoads submitted that “it is more industrially appropriate for the work conducted by its employees that a minimum of 12 months be implemented, given the general span of civil construction projects”. 3

[31] AllRoads addressed the issue raised by CFMMEU with respect to the Agreement failing to provide rostered days off. AllRoads submitted:

“the Applicant and its employees have agreed by majority vote not to implement an RDO system as such a system is not appropriate for the Applicant’s operation. In place of an RDO, employees are paid at flat ordinary rate of pay and overtime which compensate for the distinct arrangement agreed upon.” 4

The mandatory terms issue

[32] CFMMEU took issue with the flexibility terms provided at schedule 2 paragraph 5 of the Agreement, stating that the notice given for termination of individual flexible arrangement is 28 days and is inconsistent with clause 7.11 of the Award. AllRoads, in response, stated that clause 7.11 of the Award regulates flexibility arrangements for those employees engaged in terms of the Award. Further, AllRoads submitted that the flexibility term meets the requirements prescribed in s. 203 of the Act.

[33] Similarly, CFMMEU objected to the consultation term contained in schedule 1 of the Agreement, stating that “clause 8 cancels clause 2, 3,5 in a cyclic fashion in such a way as to give the employer no obligation to consult with workers under this agreement”. 5 AllRoads submitted that the consultation term is consistent with that of the model consultation term prescribed at schedule 2.3 of the Fair Work Regulations 2009 (Cth) (the Regulations). Accordingly, the model consultation term is taken to be a term of the Agreement.

CONSIDERATION

Was the Agreement genuinely agreed?

[34] Section 186 of the Act relates to genuine agreement, and provides as follows at subsection (2):

“(2) The FWC must be satisfied that:

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

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.”

[35] Section 188 of the Act defines when an agreement is genuinely agreed to:

“188 When employees have genuinely agreed to an enterprise agreement

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

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

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

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

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

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

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

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

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

[36] Section 180(5) provides:

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

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

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

[37] The recent decision of the application for approval of the GO2 People Australia Pty Ltd Black Coal Mining Industry Enterprise Agreement 2019 (GO2 People), 6 summarised the legislative provisions relating to genuine agreement:

“[34] In One Key Resources v CFMEU 7 the Full Court of the Federal Court considered the legislative provisions relating to genuine agreement. The Court held that a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach the required state of satisfaction. The Court said:

“… In order to reach the requisite state of satisfaction that s. 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement.” 8

[35] The Court also said that:

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

In order for the employer to comply with the obligation it must take into account the particular circumstances and needs of those employees, including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative. That is made explicit in s 180(6). How could the Commission decide whether the steps the employer had taken were “all reasonable steps” unless it knew what the employees had been told before they cast their votes? Without knowing the terms in which the explanation had been conveyed how could the Commission form an opinion on the sufficiency of the explanation, particularly having regard to the considerations mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine agreement had been reached without having evidence upon which it could answer both these questions?”  9

[36] The relevant principles applicable to s 180(5) were summarised in paragraphs [35]-[36] of the Full Bench decision in AWU v Rigforce Pty Ltd where it was stated that:

“…The nature of the requirement in s 180(5) was analysed in detail by the Federal Court (Flick J) in CFMEU v One Key Workforce Pty Ltd. We adopt the summary of that analysis set out in CFMMEU v Ditchfield Mining Services Pty Limited, which reduced it to the following four propositions:

(1) whether an employer has complied with the obligation in s 180(5) depends on the circumstances of the case;

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

•  the steps taken were reasonable in the circumstances; and

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

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

(4) an employer does not fall short of complying with the obligation in s 180(5) of the FW Act merely because an employee does not understand the explanation provided.

[36] Additionally, we also adopt the analysis of Gostencnik DP in BGC Contracting Pty Ltd 11 concerning the nature of a statutory obligation to take “all reasonable steps” as follows (footnote omitted):

“[43] A requirement or obligation to take “all reasonable steps” seems to me to require the identification of the steps a reasonable person would regard as reasonable in the circumstances that apply. Whether particular steps are reasonable will depend on the particular circumstances existing at the time the obligation arises. A requirement to take all reasonable steps does not extend to all steps that are reasonably open in some literal or theoretical sense…”

[37] It is well established that s. 180(5) of the Act requires that more than an explanation of the terms of an agreement is provided to employees. The section also requires that employees are provided with an explanation of the effect of the terms of an agreement. The statutory requirements with respect to the explanation to employees are qualified by the fact that the Commission must be satisfied that reasonable steps are taken, but requirement to take “reasonable steps” is enhanced by the by the inclusion of the term “all”.

[38] In some circumstances the effect of a term of an agreement will be straightforward. For example:

• The relevant award provides X and the agreement provides Y and the effect is you will be entitled to Y and not X; or

• The existing agreement provides X and the replacement agreement provides Y and the effect is that you will now be entitled to Y instead of X.

[39] In such cases, it may be more readily established that the requirement to take all reasonable steps to explain the terms of a proposed agreement and the effects of those terms has been met. Whether all reasonable steps have been taken to provide an explanation about the terms of an agreement and the effect of those terms may also depend on context. In cases where employees have been actively engaged in bargaining either directly or through bargaining representatives and numerous drafts of an agreement have been circulated, discussed and amended it may also be more readily established that the requirements in s. 180(5) have been met than where a process of an NERR and preliminary information and a proposed agreement is provided to employees as a fait accompli within the precise timing required by the Act with no discussion or negotiation of the agreement terms.

[40] Similarly, where an agreement is the latest in a series of agreements in a workplace where there is a history of engagement in bargaining and the latest iteration of an agreement is substantially the same as the previous iteration it may also be more readily established that those requirements have been met. In such cases there will be little doubt that employees understand the basis upon which they are employed, their existing entitlements and the source of those entitlements. This understanding on the part of employees can be inferred where there is evidence of engagement in bargaining or of previous bargaining and such evidence can be placed before the Commission by bargaining representatives where there is any question as to whether the requirements in s. 180(5) have been met.”

[38] In the present case, I am satisfied that all reasonable steps were taken to explain the terms of the Agreement and their effect to the relevant employees. This Agreement replaces a previous Agreement and the explanatory material was sufficient. The explanatory material provided, as noted above, provided questions and answers, and was written in a way that all employees could have easily understood the terms.

[39] As noted, it was identified that the Agreement did not include a title clause. AllRoads submitted that a title clause is not a mandatory term in the enterprise Agreement. I am satisfied that the Agreement has been genuinely agreed to within the meaning of s. 182(2)(a), despite this technical error. 10

Does the Agreement exclude the NES in contravention of s. 55 of the Act?

[40] Noting the undertaking provided, I am satisfied that the more beneficial entitlements of the NES prevail, where there is an inconsistency between the Agreement and the NES.

Does the Agreement pass the BOOT?

[41] A range of undertakings were provided by AllRoads to address the BOOT issues. As noted above, undertaking 3 adopts certain provisions in the Award. In GO2 People it was noted that the issues that can arise where an agreement incorporates terms of an Award:

“[63] Significant and complex issues can arise where an enterprise agreement incorporates some terms of a modern award, particularly in circumstances where the Agreement also provides for the same matter. This complexity is exacerbated where there is a partial inconsistency between an agreement and an award. Where a modern award covers and applies to an employee, there are only two sources for an employee to consider in seeking to understand entitlements – the modern award and the NES and the relationship between these sources of entitlements is generally clear…”

[42] However, this matter can be distinguished from the circumstances in GO2 People. The Black Coal Award was the applicable Award in that matter and is well known to be a complex industrial instrument. In this matter, the undertakings provided by AllRoads clearly identify the Award clauses that have been incorporated into the Agreement. Accordingly, I am satisfied that the undertakings provided resolve the BOOT issues identified.

[43] In respect to the concern the CFMMEU raised, in relation to casual conversion, I accept AllRoads submissions, specifically that it is industrially appropriate that a minimum of 12 months be implemented, taking into account the general span of civil construction projects.

[44] The submissions of AllRoads, in that an RDO arrangement was not voted by employees. It is further noted that had AllRoads provided an undertaking, it would have likely resulted in a substantial change to Agreement.

[45] Relevantly, s. 190(3)(b) provides:

“190 FWC may approve an enterprise agreement with undertakings

(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any employee covered by the agreement; or

(b) result in substantial changes to the agreement.”

[46] In Re Hyatt Engineering Pty Ltd, 35it was stated:

“[30] The sense in which the word ‘substantial’ appears in s.190(3)(b) is in my view to describe changes to the agreement as result of undertakings offered where the changes are not ‘trivial or minimal’ or ‘ephemeral or nominal’.

[31] In this sense ‘substantial’ is not a quantitative term but a qualitative term. A number of trivial or minimal changes to the agreement may not constitute a substantial change to the agreement. However even a single change to a provision of the agreement where the change was not trivial or minimal would constitute a substantial change to the agreement.”

[47] The final issue for determination in relation to the BOOT is whether the modelling provided by AllRoads on the 7 February 2020, that excludes tool allowance, passes the BOOT. The modelling undertaken by AllRoads show percentages of difference between the rate of pay under the Award and the Agreement, exclusive of the tool allowance. Based on these percentages, and in combination with AllRoad’s undertaking to provide the necessary tools, it is considered that this issue is resolved.

Does the Agreement contain the mandatory terms?

[48] It is clear that the consultation term contained at schedule 1 of the Agreement is consistent with s. 205(1) of the Act. Similarly, the flexibility term provided at schedule 2 of the Agreement meets the prescribed requirement in s. 203 of the Act, and paragraph 5 reflects the wording of the model flexibility terms provided at schedule 2.2 of the Regulation.

CONCLUSION

[49] In relation to the matter of genuine agreement, there is sufficient basis on the method and materials provided to employees to conclude that all reasonable steps were taken and a  proper explanation of the NERR, the terms of the Agreement and their effect was given to employees.

[50] With regard to the NES, the Agreement clearly states that the Agreement does not exclude the NES or any provision of the NES which shall have effect in accordance with the Act.

[51] Subject to matters that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[52] Pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached in Appendix A and to the Agreement.

[53] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 March 2020. The nominal expiry date of the Agreement is 30 December 2022.

[54] I Order accordingly

COMMISSIONER

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 1   [2016] FWCFB 8413.

 2   One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (25 May 2018) at para. 112.

 3 AllRoads submissions, 13 November 2019, at [6].

 4 Ibid, at [7].

 5 CFMMEU submission, 7 November 2019, at [4].

 6   [2019] FWC 8505,

 7 [2018] FCAFC 77.

 8 Ibid at [112].

 9   Ibid at [115] – [116].

 10   One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77, at para [115].