[2015] FWCA 550

FAIR WORK COMMISSION

DECISION

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

Aurizon Operations Limited and Aurizon Network Pty Ltd
(AG2014/7891)

AURIZON STAFF ENTERPRISE AGREEMENT 2014

Rail industry
DEPUTY PRESIDENT SAMS	BRISBANE, 21 JANUARY 2015

Application for approval of the Aurizon Staff Enterprise Agreement 2014 - Queensland rail freight operator - three proposed enterprise agreements - only the Staff Agreement approved - narrow majority for approval - alleged voting irregularities - whether Agreement genuinely agreed to by employees - alleged invalidity of Notice of Employee Representational Rights - irregularities would not have altered the vote for approval - evidence of confusion not sufficient - irregularities in the Notice of Employee Representational Rights not sustained - Agreement approved.

[1] On 16 October 2014, Aurizon Operations Limited (Aurizon Operations) and Aurizon Network Pty Ltd (Aurizon Network) (collectively, ‘Aurizon’ or the ‘applicants’), filed an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), for the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Aurizon Staff Enterprise Agreement 2014 (the ‘Agreement’).

[2] Aurizon Operations Limited is a wholly owned subsidiary of Aurizon Holdings Limited. Aurizon is the largest rail freight operator in Australia and is a top 50 listed company on the Australian Securities Exchange. It offers rail and road based freight transport and associated infrastructure throughout Queensland, New South Wales, South Australia, Victoria and Western Australia. Aurizon Operations is responsible for rail service delivery in Queensland. Aurizon Network operates a rail network of approximately 2,670km of heavy rail infrastructure in central Queensland. It maintains the track, bridges, structures, overheads and other associated facilities, including the planning, scheduling and control of the running of the trains on the network.

[3] Aurizon was formerly known as QR National Ltd until it was privatised in 2010. Together, both Aurizon Operations and Aurizon Network have around 5,167 employees who are members of the following Unions:

Rail Tram and Bus Union (RTBU);

Queensland Services, Industrial Union of Employees (QSU);

Professionals Australia (APESMA);

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; known as the Australian Manufacturing Workers’ Union (AMWU); and

Australian Federated Union of Locomotive Employees (AFULE).

[4] The employees of Aurizon are presently covered by thirteen enterprise agreements; all of which passed their nominal expiry date on 31 December 2013. Since 2013, Aurizon has been negotiating with the Unions for three new enterprise agreements to cover the train crews, construction/manufacturing employees and staff personnel. In or about September/October 2014, Aurizon put the three proposed agreements to a vote of the employees. The Staff Agreement was the only one approved, by a narrow margin of 463 to 433, in a ballot conducted between 7 and 13 October 2014. The other two were voted down by their respectively covered employees.

[5] At this point, I note that in the Employer’s declaration in support of the application (Form F17), it was conceded by Aurizon that originally the number of eligible voters was 896, which had included 50 employees ineligible to vote. On the second day of voting, Aurizon sought to remove the ineligible voters from the roll, but thirteen of them had already voted. It was assumed by Aurizon that even if all ineligible employees who voted were invalid ‘yes’ votes, this still left a comfortable majority for approval of 446-433.

[6] The application for approval of the Agreement was listed for hearing on 24 October 2014. Mr Michael Heenan, Manager Employee Relations appeared with Mr D Hooper, Employee Relations Leader. Mr M Jaye appeared for the QSU, Mr P Allen for the RTBU, Ms K Allen for the AMWU and Mr J Young for the CEPU. The QSU, AMWU, RTBU, CEPU and APESMA had each filed a Form F18 Declaration in which the Unions alleged that certain voting irregularities and anomalies had occurred which would satisfy the Commission that the employees had not genuinely entered into the Agreement and/or the ballot outcome was, in fact, invalid and the Agreement could therefore not be approved by the Commission.

[7] It was also alleged that there were irregularities in, and confusion about, the Notices of Employee Representational Rights (NoERR or ‘Notice’) issued to the employees, such as to also render the Agreement unable to be approved by the Commission.

[8] Given the Union’s objections to the approval of the Agreement and despite Mr Heenan pressing me to approve the Agreement , I decided that the Agreement could not be approved that day and that the Unions’ objections would need to be tested by the bringing of evidence to that effect and for Aurizon to respond by its own evidence. Directions were issued, in short compass, for the filing and service of any evidence and submissions on the issues in dispute between the parties. At a further hearing of the matter, Mr S Meehan of Counsel appeared for Aurizon and Mr G Sivaraman, Solicitor appeared for the RTBU and QSU, with permission granted to both of them to appear, pursuant to s 596 of the Act. The AMWU and CEPU corresponded with my chambers to indicate that they supported the position of the RTBU and QSU.

[9] At this juncture, I note that Aurizon has also sought to terminate all the existing enterprise agreements covering their employees, pursuant to s 225 of the Act. Those matters were listed before a Full Bench of the Commission in late November 2014 and a decision of the Commission is reserved.

THE EVIDENCE

For the applicants

[10] Mr Hooper is employed by Aurizon Operations Limited as Employee Relations Leader. He has responsibility for advising on employee discipline and termination, the preparation and execution of bargaining activity and the provision of advice on compliance with industrial instruments, legislation and HR policy.

[11] In written evidence, Mr Hooper explained that prior to its privatisation, Aurizon (or QR National Ltd, as it then was) had operated under a business unit structure with each business unit having its own support staff. After privatisation, it divided its business along function lines, as follows:

Operations (including coal, freight, rollingstock maintenance, program delivery, operations planning and safety);

Network operations;

Human Resources;

Commercial and Marketing;

Strategy and Business Development;

Finance; and

Enterprise Services.

[12] Mr Hooper deposed that this Agreement is to cover employees of Aurizon Operations and Aurizon Network involved in the performance of administrative, finance, technical (non-trade qualification), professional and/or similar work, the performance of work associated with network control and employees engaged in engineering trade work and civil construction work, in any role for which a classification appears in the Agreement and for which a trade qualification is not mandatory. It also covered a small number of supervisors who did not have trade qualifications and who are covered by one of the currently applicable enterprise agreements.

[13] Mr Hooper stated that there were two streams of employee classifications under the Agreement, being the broadly ‘white collar’ Staff Stream and the broadly ‘blue collar’ Network Control Stream. The levels in the Staff Stream were derived from the broad classification streams in five of the older enterprise agreements by using job evaluation methodologies and position descriptions to determine an employee’s placement, based on a points system. All employees’ positions had position descriptions and Aurizon’s Remuneration Team was responsible for the evaluation of each position. It was intended that the classifications under cl 39 of the Agreement and the transitional wage provisions at cl 49, would correlate with staff classifications under the existing enterprise agreements.

[14] Mr Hooper explained that Aurizon’s Trainees were engaged on a Vocational Education Training Contract, which was intended to provide them with the necessary skills to be employed in a role which would be covered by the Agreement. They were included in the Agreement’s coverage as their work was similar to other roles, albeit at a trainee level.

[15] Mr Hooper said that the Network Control stream in the Agreement covered a distinct operational group of employees whose work involved controlling the running of trains on the network and who were currently covered by the QR National Network Enterprise Agreement 2010 [AE880766]. Specifically, Network Controllers, through their ‘Control Boards’ were responsible for the control of planned rail traffic movements, the development of movement and rail corridor access plans, the review and revision of procedures in relation to unplanned events and reporting on day to day events. ‘Control Boards’ were ranged in levels of 2 to 5 - a score which was arrived at by taking into account workload, complexity and the nature of traffic on the Board. The relevant employees were trained to the standard of TLI42211 Certificate IV in Rail Network Control or higher and then on specific Control Boards.

[16] Mr Hooper listed 16 locations at which the employees worked throughout Queensland. The Agreement did not cover employees working outside Queensland. The Agreement did not cover persons employed on a temporary basis as part of a cadetship or graduate program, which typically ran for two years. He described the graduate engineer programs, noting that these graduates reported to operational line managers and undertake operational tasks. By contrast, graduates in non-engineering capacities report to line managers in the corporate support functions and perform corporate support work. Most graduates were employed by Aurizon on a fixed term basis. All of the employees employed by Aurizon Network, who worked outside of Queensland, were graduates.

[17] Mr Hooper said that cadets were sometimes employed in areas such as drafting and surveying. These cadets would generally work full time for Aurizon while completing their qualifications. There were no cadets employed on a temporary basis.

[18] Mr Hooper annexed a document to his statement which purported to set out the personnel numbers of those employees in graduate positions and cadetships who were included on the roll of voters for the approval of the Agreement; all of these, apart from a Ms Catherine Hornby, were Engineers. He described the source of each employee’s contractual terms and conditions, which was by way of a template ‘Letter of Offer’ (before 2013) or by way of a document marked ‘Enhanced Remuneration Package’. All of these employees who were in graduate engineering positions were permanent employees. Mr Hooper also drew attention to documents which set out ‘Letters of Offer’ or ‘Offers of Enhanced Remuneration Package’, the employees’ current position description, a confirmation of successful completion of probation (if relevant) and a Transfer of Employment agreement (if relevant).

[19] Mr Hooper put that while the ‘Offer of Enhanced Remuneration Package’ referred at cl 17.2 to ‘when this agreement ceases at the end of the fixed term period’, there were no fixed term periods for graduate engineers. There was another error in that it referred to participation in the graduate program for two years, which did not include the third year of rotational placements. He believed that these errors had arisen because the same template letter was used for Graduate Engineers, as well as other graduates on a fixed term basis. The template highlighted the phrase to ‘when this agreement ceases at the end of the fixed term period’, but there was no explicit direction to delete it for permanent employees.

[20] Mr Hooper believed that the vast majority of employees to be covered by the Agreement used desktop computers with access to the Aurizon intranet in their day to day work. 27 graduates included on the voters roll had been issued with smartphones with Aurizon email access. A dedicated bargaining intranet and internet site had been created in or about April 2013. This had been notified on the Aurizon intranet homepage.

[21] Mr Hooper referred to a notice distributed by email from Mr John Stephens, Aurizon’s Executive Vice President on 19 September 2014 which indicated Aurizon’s intention to put the three enterprise agreements to a vote of employees between 7 and 13 October 2014. While the specific enterprise agreements were not identified, it was made clear that employees could only vote in relation to the enterprise agreement which would cover them. It was also advised that further information was to be provided via information sessions. A draft of the Agreement was uploaded to the intranet on 23 September 2014 and onto the internet bargaining website. This was notified on the same day by way of a further email from Mr Stephens. This email offered information and assistance from supervisors to employees if they were a young person, from a culturally diverse background, from a non-English speaking background or did not have an employee bargaining representative.

[22] Mr Hooper reported that between 23 and 30 September 2014, 53 information sessions were held with employees at 21 locations across Queensland. He had personally presented a total of seven information sessions at Rockhampton, Mackay, Jilalan and Collinsville. Annexed to his statement was a copy of a Powerpoint presentation he had given at these sessions. This included information about the voting process and how to vote by phone and over the internet. During his presentation he had advised employees on who was and who was not to be covered by the Agreement; the proposed classifications, band levels and wage increases; changes to hours of work, including changes to shift allowances; and the overtime, annual leave, public holiday and shift loading entitlements under the Agreement. After presenting each slide, he had asked whether employees had any questions.

[23] Mr Hooper said that the notification as to the time and place for these information sessions had been by way of pre-start briefings, notices on notice boards and emails to distinct employee groups. He provided a bundle of emails confirming the notification to employees of information sessions in Brisbane, Townsville, Acacia Bridge, Rockhampton and Mackay.

[24] Mr Hooper referred to a transcript of a webcast uploaded to the intranet on 24 September 2014, in which Mr Heenan had said the following:

‘Yes, so what we are in currently is what is known as an access period. We will be going around and there will be some road shows where ER and your managers will be explaining the proposals to you. And the ballot will be open from the 7th of October and will run until the 13th of October. You will be able to vote via the internet or via phone and in the next week or so you’ll be getting an information pack sent to your home explaining how that will all work. We have engaged a company called the Australian Election Company to run the ballot for us in 2010 and they have run a number of ballots for us over the last few years. They ran the ballot in New South Wales Coal for instance so they are tried and tested and they have done a good job for us in the past.’

On the same day, an email with a link to the webcast was sent to all employees to be covered by the Agreement.

[25] Mr Hooper deposed that further documents setting out information on the voting process and the Agreement itself were posted on the intranet on 26 September 2014. An email was sent by Mr Heenan to a bulk email recipient group for managers with responsibility for communicating enterprise bargaining information, which set out what information had been provided to employees. A hard copy letter with details about the decision to put the Agreement to a vote was sent to each employee’s home address on 29 September and separate documents with instructions on the balloting process were sent on 30 September.

[26] Mr Hooper noted that the Australian Electoral Company (the AEC), which Aurizon had retained to administer the ballot, had provided a free 1800 helpline and a help desk facility contactable on [email protected]. These facilities were monitored between 8:30am and 5:00pm AEST on business days during the ballot. They were able to deal with employees who did not have access to the login details for the ballot. Guidance as to what to do in this instance had been provided to employees in a document marked ‘Employee Ballot - Frequently Asked Questions’, which was posted on the intranet on 26 September 2014.

[27] Mr Hooper acknowledged his involvement in the compilation of the roll of eligible voters. He had provided a spreadsheet containing the voter roll to the AEC. He understood that on 3 October 2014, Mr Heenan had become aware that the voter roll included all graduate employees. He had emailed the graduate team the same day in the following terms:

‘It has come to our attention that a number of graduates, students and cadets have received voting information to their home addresses.

As you would be aware the new Enterprise Agreements will not provide coverage for graduates, students and cadets and therefore you will not be eligible to vote.

We apologise for any inconvenience caused.’

[28] Mr Hooper believed that Mr Hadley at the AEC had been contacted and directed to disable the voting for graduates. He understood that this contact had been prior to the opening of the ballot. However, on 7 October 2014, Mr Hooper realised that voting had been incorrectly disabled for all permanent graduates. He had found a list of permanent graduates and directed Mr Andrew Webster, Payroll Systems Coordinator, to bring this to the attention of the AEC so that they could be restored to the roll. Mr Hooper then sent a corrective email to these employees in the following terms:

‘It has been clarified that as permanent employees you are covered by the proposed Staff EA. As such you are entitled to a vote. The voting instructions and password which you would have originally received will still apply.

My apologies for the mix up.’

[29] Mr Hooper stated that he had not received a reply or follow up message from any of these employees, but stressed that he had not received an ‘out of office auto-reply’ either. On 21 November 2014, Mr Hooper had discovered that three graduate employees based in Perth had been incorrectly reinstated to the roll, being Cathryn Hornby, Kellan Morrow and Nicholas Keogh. Nevertheless, the marked roll of voters suggested that they had not voted. However, Mr Frederik Averesch, who was not working in Queensland had been inadvertently put on the roll. Mr Averesch had voted in the ballot.

[30] Mr Hooper referred to correspondence sent from Aurizon to the RTBU and the QSU on 20 October 2014, which was in the following terms:

‘Thank you for your letter of 17 October in which you express concerns regarding the ballot for the making of the Aurizon Staff Enterprise Agreement 2014 (the Staff Agreement).

Aurizon does not share your concerns that:

• the validity of the ballot is in question; and/or
• the result of the ballot is dubious; and/or
• the result of the ballot should not be relied on.

Aurizon considers that the requirements of the Fair Work Act 2009 (the Act) have been met and that accordingly the Staff Agreement has been validly made. In these circumstances the Act requires that Aurizon, as employer, must make an application to the Fair Work Commission (FWC) for the Agreement to be approved. For the Agreement to be approved the FWC must be satisfied that (among other things) that the making of the agreement was supported by a majority of those employees who cast a valid vote.

Regarding your request for “a list of the positions held by all employees who were issued with voting instructions for the Staff Agreement ballot” please find attached the list of 1407 position titles allocated to the Staff Agreement. In the interests of completeness, please also find attached the list of 64 position titles for employees who were initially wrongly assigned to the roll for the Staff Agreement prior to the opening of the ballot and subsequently reallocated to the roll for the Aurizon Construction and Maintenance Enterprise Agreement 2014 as soon as the error was identified.

While it would have been better had this initial error not occurred, it did not affect the outcome of the ballot. A majority of employees who cast a valid vote still supported the approval of the Staff Agreement. Taking the union case on this point at its highest, the impact on the ballot is that the margin of employees approving the agreement would be reduced by 13 votes. Of course correspondingly the total number of votes validly cast must also be reduced by 13.

You also suggest that, in the alternative, Aurizon should withdraw the application before the FWC and run the ballot again. Aurizon has no intention of withdrawing its application for the approval of the Staff Agreement. Aurizon is bound to apply under s. 185 of the Act to the FWC for approval of the Staff Agreement. Furthermore it is not now open to Aurizon unilaterally to withdraw its application and request employees to vote again on the Staff Agreement. The proper course is for the FWC to consider and determine the application on the evidence before it.

Aurizon is prepared to meet with you and any other relevant union to discuss your concerns. It is noted that you are unsure if there is any “probative value” in relation to some of those concerns and we await further advice from you in relation to any such concerns.;

[31] Mr Hooper referred to a subsequent letter sent to Mr Doogan of the RTBU and Mr Henderson of the QSU, in which Aurizon accepted that the Agreement did not cover Business Managers, Legal Counsel or Senior Management Accountants. He acknowledged that the marked-up voter roll disclosed that two Senior Management Accountants and one Business Manager had voted in the ballot.

[32] Mr Hooper referred to the written statement of Mr Dwyer and claimed that there was no person with the surname of Bryans who was employed as a Contract Manager by Aurizon. While there was a Mr Allan Bryans, employed as Townsville Operations Manager, he was covered by the Agreement. Mr Hooper denied that Mr Swaminathan was required to apply for a permanent job at the end of his graduate program. As an Engineering Graduate, he was a permanent employee.

[33] In cross examination, Mr Hooper was shown a document titled the AEC’s Returning Officer’s Report for the Agreement (the ‘Report’), dated 14 October 2014. He had accepted it as accurate at the time it had been given to him. He conceded that 1,486 employees had been mailed an instruction sheet and password advice, meaning that 79 more employees than on the roll of voters had been mailed this material. Mr Hooper agreed that 83 employees were deleted from the list of eligible voters, but it was possible for those 83 employees to have voted in the interim. 68 employees had also been added to the roll. He could not say whether those employees had received the voting material.

[34] Mr Hooper agreed that the Report also set out that two sets of instruction sheets and password advice notices were returned to the AEC, although they may have received the material from the Helpline. He was shown copies of returned letters from Mr Erwin Grosskopf and Ms Nicole Newell. He acknowledged that the marked up roll of voters set out that those two employees did not vote in the ballot. The Report also set out that there were ten employees who had contacted the AEC Helpdesk to say that they were not on the roll. These employees were then directed to contact Aurizon. If eligible, Aurizon would have directed the AEC to add them to the voter list. However, Mr Hooper did not accept that it would have been necessary to send these employees the voting material, as they could have received the voting instructions and password information by quoting their service number and date of birth to the AEC Helpline. He could not say how many of these ten employees would have been eligible to vote.

[35] Mr Hooper accepted that 64 employees on the voter roll at the commencement of the vote should not have been on the roll. Their names were then included on the roll for the construction and maintenance enterprise agreement after that ballot opened.

[36] Mr Hooper was shown a call log maintained by the AEC which indicated that Mr Oliver Rogers had contacted the AEC on 10 October 2014 at 2:29pm, to advise that he had been ‘Left off data base’. Mr Rogers would have been directed to Aurizon. It appeared that Mr Rogers’ name had then been added to the voter roll, although he was not eligible as he was a Senior Management Accountant. This was also the case in relation to Mr Raymond Syratt, who had contacted the AEC’s Helpdesk on 13 October 2014.

[37] Mr Hooper agreed that 66 employees had voted in the last two hours of the ballot. He acknowledged that there would be ‘a bit of a rush’ in the closing hours of the time for voting, although he did not see this number as significant. He conceded that he did not have definitive advice from the AEC as to how many people attempted to access the ballot in the period during which it was temporarily shutdown.

[38] Mr Hooper admitted that while he had been satisfied that the voter roll provided to the AEC on 24 September 2014 was accurate, this had not been the case. Aurizon was also wrong to believe that the voter roll amended with 83 deletions and 68 additions was accurate. It was not accurate after the further removal of 64 employees from the roll. He said:

‘But I don’t think there would have been any point during the ballot where Aurizon could have satisfied - if a new person started while the ballot was on and they asked to be included in the roll, if they were eligibly covered we’d add them to it. So it was never a case that it was a static ballot. Eligibility - for instance, one of the employees in the list of people who got taken off was someone who got promoted between the time the first data was cut and the time the ballot opened. See, it was never able to be a static roll.’

[39] Mr Hooper agreed that when the application for approval of the Agreement had been filed with the Commission, Aurizon had been satisfied that the voter roll, as amended, was accurate. He now conceded that this was wrong. Nor had the roll been accurate on 23 October 2014, when Aurizon wrote to the RTBU to say that five further positions had been removed. He believed it was unfair to suggest that he could not now be certain that the roll was accurate. In any event, whether the vote was affected would depend on the nature and scope of the inaccuracies in the voter roll.

[40] Mr Hooper acknowledged that graduates who were entitled to vote had been told they were not to vote. They would have been entitled to rely on the advice of Aurizon’s Senior HR Manager. He could not rule out some confusion may have been caused. These employees had not been forwarded their voting material again and they had not been given a further seven days to vote.

[41] Mr Hooper rejected the proposition that the NoERR distributed to employees must disclose who was to be covered by the Agreement - this was not the purpose of the notice. It was still open to conclude an enterprise agreement which does or does not cover the employees mentioned in the NoERR. He conceded that employees would be entitled to rely on the NoERR as indicative of their rights in a bargaining period. However, it would have been unwise to rely on this as setting out the coverage of the Agreement, rather than the Agreement’s ultimate coverage clause.

[42] Mr Hooper noted that all current employees proposed to be covered by the Agreement, were currently covered by existing enterprise agreements. A senior employee who is not currently covered by an enterprise agreement, would not be covered by the Agreement. Mr Hooper was shown a letter of appointment and an employment agreement, which he accepted related to two employees of Aurizon included in the coverage of the Agreement. He agreed that neither of these documents made reference to an enterprise agreement, but the classification of the employees as defined in the contractual documents (AS6 and AS2 respectively) would necessarily be covered by an enterprise agreement.

[43] In brief oral reply evidence, Mr Hooper clarified that there were currently no employees employed at the classification of AS8. It was a defunct classification that had been included at the QSU’s request during the creation of classifications in the last round of bargaining in 2010. However, no employees had ever been ‘scored’ by Aurizon at the AS8 level. It was Mr Hooper’s evidence that no employee had been employed at this level in over a decade.

For the Unions

Mr Arjun Swaminathan

[44] Mr Swaminathan worked as a student employee at Aurizon when studying for a Bachelor of Engineering at the University of Queensland. He graduated in July 2013 and he commenced employment as a rotational engineer (electrical) in January 2014. This was part of a graduate program. He is a member of APESMA.

[45] In written evidence, Mr Swaminathan claimed he had had a conversation with the Technical Director at the beginning of 2014, in which he was told that the graduate program lasted for three years and that he would have to apply for a permanent job at the end of this time. He was not aware that he was covered by an enterprise agreement.

[46] Mr Swaminathan had become aware, through his participation in graduate development programs throughout 2014, that seventeen graduates had been employed by Aurizon in 2014. Approximately ten of these were engineering graduates and the remainder were accounting graduates. He was also aware of 70 graduates having been employed by Aurizon in 2013, in the areas of Human Resources, Accounting and Engineering. Senior graduates had told him that the enterprise agreement did not cover the 2014 graduates and that both the 2013 and 2014 graduates were on fixed term contracts.

[47] Mr Swaminathan claimed that he had been confused as to whether he was eligible to vote for the approval of the Agreement. He had received an email notification on 22 September 2014 notifying of information sessions to be held on 23 September in relation to the Agreement. He had not attended, because he believed he would not be covered by the Agreement. He had also received an email on 24 September 2014 from his Senior Manager notifying him of the voting process and that the three enterprise agreements were available for inspection on the intranet. Upon review of the Agreement, cl 3.2 confirmed his view that he was not covered by the Agreement and therefore not eligible to vote.

[48] Mr Swaminathan said he had sent an email to his manager setting out the text of cl 3.2 and asking: ‘Am I eligible to vote on the proposed EA when I am not covered by it? Please let me know.’ He understood that this manager had followed up his query with Mr Hooper, who sent an email on 25 September 2014. The email clarified that graduate employees were not covered by the Agreement. However, on 9 October 2014, a further email was sent, which stated:

‘It has been clarified that as permanent employees you are covered by the Staff EA. As such you are entitled to a vote. The voting instructions and passwords which you would have originally have received will still apply.

My apologies for the mix up.’

It was Mr Swaminathan’s evidence that this email did not resolve his confusion as to whether he was covered by the Agreement.

Mr David Dwyer

[49] Mr Dwyer is employed as an Administrative Assistant. He has been employed by Aurizon since 1981. In written evidence, he stated that he had been aware of the negotiations for the three proposed enterprise agreements. He claimed that he had had a discussion with Mr Jim Bryans, Contract Manager in or about October 2014 in which Mr Bryans had said he was confused, as he had received voting material and instructions in relation to the Agreement, although he believed he was not covered by it. Mr Dwyer could not say whether Mr Bryans had voted. This information had caused him to become concerned about the voting process and he had reported this example to the RTBU.

Donald Skerman

[50] Mr Skerman has been employed by Aurizon/Queensland Government Railways since 1974. He is employed as a Principal Engineer, Vehicle and Track and is a delegate for APESMA.

[51] In a written statement, Mr Skerman said that there were eight Mechanical or Electrical Engineering graduates. He supervised them on one of their various rotations. Mr Roger Buckley, Chief Engineer supervised two graduates in other sections of Aurizon. Mr Skerman claimed that graduates had told him in conversations between 3 and 9 October 2014 that they had received voting material for the Agreement, but they had also received an email from the ‘EA Bargaining Team’ dated 3 October 2014, which was as follows:

‘Hi All,

It has come to our attention that a number of graduates, students and cadets have received voting information to their home addresses.

As you would be aware the new Enterprise Agreements will not provide coverage for graduates, students and cadets and therefore you will not be eligible to vote.’

[52] Mr Skerman understood that these graduates had raised their confusion with Mr Buckley on 3 October 2014 and been told by Mr Buckley on 8 or 9 October 2014 that they were permitted to vote and an email to this effect was sent to them from Mr Hooper on 9 October (see para [27]). One of the employees had told Mr Skerman that he had already thrown away his ballot material by this time.

Mr Peter Allen

[53] Mr Allen is the Principal Industrial Officer for the RTBU and has been involved in bargaining with Aurizon, on behalf of his members, since April 2013. In written evidence, Mr Allen stated that the RTBU’s position in bargaining throughout this period was that there should be two enterprise agreements covering the employees who were proposed to be covered by the Agreement. Mr Heenan and Mr David Pullen of APESMA had debated whether the coverage of graduates and cadets should be covered by the Agreement. Mr Heenan had opposed the coverage of graduates and cadets and had advised the Union that they would not be covered.

[54] Mr Allen explained that after the contents of the proposed three enterprise agreements were circulated and posted on the intranet on or about 20 September 2014, the RTBU had raised issues of concern with the agreements in correspondence to its members.

[55] Mr Allen said that after the ballot had commenced, Mr Jason Young of the CEPU had told him that some of his members had complained that they had received voting material, but as they had trade qualifications, were therefore ineligible to vote. Some time in early October 2014, Mr Dwyer had raised his concerns about the ballot in a conversation with him, noting specifically that a Contract Manager had received the voting material. Mr Allen had since confirmed that this position was not covered by the Agreement.

[56] Mr Allen claimed that after the close of the ballot, a number of RTBU members had complained to the Union that other managers had received the voting material, despite not being covered by the Agreement. Mr Craig Allen, an Organiser, had mentioned that one employee, who had been working at a different location, had not received his mail until after the vote had closed. Another employee had received the voting material at home a day after the ballot was closed.

[57] Mr Allen said that he was surprised when Mr Pullen had told him that graduates had not had clear information about the vote, as he had not been aware that they were able to vote. He understood that they were on fixed term arrangements, which excluded them from coverage under the Agreement. He recalled, from his own time studying at University of Queensland, that the graduate program, advertised by Aurizon, was said to be for two years, with an opportunity to apply for a permanent position after graduation. He noted that the Frequently Asked Questions section relating to graduate recruitment on Aurizon’s website, identified employment as being for a fixed term of two or three years.

[58] Mr Allen said that after discussions with Mr Pullen and Mr Mattner from the QSU in mid-October, they had decided to write to Aurizon to raise their concerns with the voting process. However, the application for approval of the Agreement had been lodged on 16 October 2014. The RTBU wrote to Aurizon on 17 October 2014 raising its concerns and seeking a meeting. Aurizon agreed to meet on 23 October 2014 (Mr Allen contacted my chambers on 17 October 2014, indicating that the RTBU opposed the approval of the Agreement. He followed this up with an email on 20 October 2014).

[59] Mr Allen referred to correspondence from Aurizon to the QSU on 20 October 2014 (see para [30]). In this correspondence, Aurizon had conceded that 64 employees, who were not entitled to vote for the Agreement, had been sent the voting material. The correspondence included a list of positions which were supposedly covered by the Agreement. He and Mr Mattner had reviewed this list. They were surprised to find that it included 26 graduates. Mr Mattner had believed that 30-40 of these positions were too senior to be covered by the Agreement. They had met with Mr Heenan and Mr Hooper on 23 October 2014 to raise these issues. Mr Heenan was not overly concerned and had said he would get back to them. Mr Mattner had asked for the position descriptions for all the positions included in the vote and Mr Heenan had agreed to provide this information. In further correspondence, Aurizon had conceded that five more ineligible employees had been provided with the voting material.

[60] Mr Allen complained that the position descriptions provided by Aurizon on 24 October 2014 did not set out the relevant dates of their creation, amendment or effect and did not identify coverage by any industrial instrument or individual contract.

[61] In oral evidence, Mr Allen clarified that a small number of supervisors, proposed to be covered by the Agreement, are currently covered by the QR National Rollingstock and Component Services Enterprise Agreement 2010 [AE880774]. He stressed that the Unions had always sought a separate enterprise agreement for Network Controllers.

[62] In cross examination, Mr Allen agreed that the Unions had believed the Network Controllers were a distinct category of employees. Mr Allen could not say whether there were any employees currently employed by Aurizon at Level AS8, although he would have thought that if they did exist, they would have been covered by the Agreement. His view was that Level AS8 had been removed, as the Agreement had seven levels, while the existing enterprise agreement referred to eight. He understood that there were employees of Aurizon presently covered by enterprise agreements at level AS8 who would not be covered by the Agreement and specifically the classification structure, under the heading of Staff Employee Stream.

SUBMISSIONS

For the applicant

[63] In written submissions, Mr Meehan described the operations of the applicants, the proposed coverage of the Agreement and the arrangements made by the AEC for the vote to be conducted by telephone and internet, with the provision of a helpdesk for employees. Mr Meehan said that from a total of 1,407 employees listed on the roll as eligible to participate in the vote, 896 employees had voted, with 463 voting for the approval of the Agreement and 433 voting against approval.

[64] Mr Meehan submitted that the applicants had complied with s 180(2)(b) of the Act through its provision of electronic access to the written text of the Agreement on its intranet from 23 September 2014. That same day, Mr Stephens also sent an email (see para [21]) to all Aurizon employees in Queensland who were covered by the existing enterprise agreements. His email set out that the text of the proposed enterprise agreements was available on the intranet. He advised of the dates for the ballots and that information sessions would be conducted across Queensland. It advised that if an employee required additional assistance with the explanation of the enterprise agreement, he/she should contact their supervisor or manager.

[65] Mr Meehan said that the applicant had complied with s 180(3) of the Act by way of the various information sessions, conducted across Queensland between 23 and 30 September 2014, a ‘webcast’ on 24 September 2014 and the placing of a document titled ‘Voting on your proposed agreement’, on the applicants’ intranet on 26 September 2014.

[66] Mr Meehan submitted the applicants had complied with s 180(5) of the Act by way of the information sessions conducted by the applicant before and during the access period. The applicants had complied with s 181(2) and s 173(1) of the Act through its provision of the NoERR of 12 September 2014, with the employees being asked to approve the Agreement by voting on it.

[67] Mr Meehan put that the Agreement did not contravene the National Employment Standards (NES) (s 55) and that it passed the Better Off Overall Test (BOOT) (s 193). The Commission could be satisfied that the employees covered by the Agreement were fairly chosen in that they were organisationally and operationally distinct from the other employees (s 186(3)); See: Construction, Forestry, Mining and Energy Union v Queensland Bulk Handling Pty Ltd[2012] FWAFB 7551. He explained the differences between the Staff stream employees, who are involved in administration, customer service, human resource management, operational support development, policy implementation and advisory services and the Network Control stream employees who are involved in the planning, scheduling and control the running of trains on the network. He described the work and duties of Network Controllers and the ‘Control Boards’, being an area placed under the direct control of a Network Controller. Network Controllers are required to have a TLI42211 Certificate IV in Rail Network Control of the Australian Qualifications Framework.

[68] Mr Meehan explained that graduates and cadets employed on a temporary basis, had been excluded from coverage of the Agreement. However, Graduate Engineers, unlike other graduates are employed permanently and are organisationally distinct from the other graduates, in that they report to the operational engineering management, while the other graduates report through the operational support division. All Cadets were employed on a permanent basis.

[69] Mr Meehan highlighted and conceded a number of errors in the voter roll identified by Aurizon over a period of time. On 8 October 2014, the applicant had become aware that 64 employees had been incorrectly included on the voter roll. They were removed from the roll, but not before 13 of the employees had voted. Five Senior Managers had been identified as having been included on the voter roll and three of them had cast a vote. Three permanent graduate employees based in Western Australia were incorrectly added to the Roll when permanent graduates were reinstated to the voter roll, but did not vote. One further employee, not based in Queensland, was incorrectly included on the voter roll and had voted. Mr Meehan emphasised that even if the 17 invalid votes were counted as invalid ‘yes’ votes, the result would be 446 in favour and 433 against.

[70] Mr Meehan conceded that permanently employed graduates had been mistakenly told that they were not to be covered by the Agreement. When this error was corrected on 9 October 2014, the relevant employees had been given a further four days to vote. The Union’s submission that the ballot had miscarried due to these issues was unsustainable. Additionally, the Unions had made reference to ‘certain managers’ having incorrectly received voting material and being permitted to vote in the ballot. However, the Union had not provided clear and cogent evidence as to their identity.

[71] Mr Meehan submitted that the applicants had taken ‘all reasonable steps’ to notify the relevant employees of the date, time, place and method of the vote. Taking ‘all reasonable steps’ did not require that each of the relevant employees were personally notified - this was practically impossible for a large employer; See: National Tertiary Education Industry Union v University of New South Wales[2011] FWAFB 5163 (‘NTEU v UNSW’).

[72] Mr Meehan argued that the reference to coverage in a NoERR was not required to accurately reflect the coverage of an enterprise agreement at the time it is subsequently made. There was no authority for a submission that the coverage set out in the NoERR must define the final coverage of an enterprise agreement that was proposed to be the subject of bargaining. There was authority for a proposition that ‘proposed enterprise agreement’ is a generic term allowing for a variety of possibilities and outcomes in relation to a negotiated agreement; See: Wesfarmers Premier Coal Limited v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737.

[73] Mr Meehan stressed that there was no evidence to support the Unions’ submission that the provision of confusing and/or misleading information was likely to have altered the ballot result. This was merely speculation. The Commission should find that the ballot did not miscarry and that a majority of eligible voters who cast a valid vote, voted to approve the Agreement. As all of the pre-requisites for approval of the Agreement in ss 186-187 of the Act had been met, the Agreement must be approved by the Commission.

[74] In oral submissions, Mr Meehan put that there was no intention by the applicants to expand upon the historical coverage of the existing enterprise agreements. Rather, the applicants were seeking to consolidate numerous enterprise agreements into three. The QR National Network Enterprise Agreement 2010 currently covers supervisory, administrative and clerical employees, including the Network Controllers. Mr Allen’s evidence demonstrated that the RTBU agreed with the applicants that Network Controllers are considered as a group distinct from the operational employees.

[75] Mr Meehan noted that the employees engaged on a temporary basis as part of a graduate development or cadetship program were not covered by the Agreement. The evidence disclosed that some of the applicants’ graduates were employed on a fixed term basis, but engineering graduates were employed on a permanent basis. The uncontested evidence of Mr Hooper demonstrated that none of the Graduate Engineers on the voters roll were temporary employees.

[76] Mr Meehan highlighted the sample documents marked ‘Offer of Employment’ and ‘Enhanced Remuneration Package’, which both referred to employment as a Graduate Engineer on a permanent basis. The Enhanced Remuneration Package was an individual flexibility arrangement as permitted under cl 2 of the QR National Network Enterprise Agreement 2010. Another document, setting out a transfer of employment, confirmed that these employees were employed on a permanent basis. Mr Hooper had also given evidence that there were no fixed term cadets employed by the applicants. Mr Hooper’s unchallenged evidence was that a reference to the ‘end of the fixed term’ was the result of an error in a template document. The assertions made by Mr Allen, Mr Skerman and Mr Swaminathan as to the basis on which graduate employees were employed, were without foundation.

[77] Mr Meehan addressed the issue of ‘confusion’ raised by the Unions. He conceded that the applicants had informed the workforce that the new enterprise agreement would not cover graduates and cadets and that they were therefore ineligible to vote. However, this was clarified by the email of 9 October 2014 (see para [28]). At this time, the permanent graduates still had four days to vote. He agreed they would not have been able to vote until this time. Mr Meehan acknowledged that the permanent graduate employees lost the benefit of some days in the voting period. However, any confusion was sufficiently rectified by Mr Hooper’s email of 9 October 2014 when he told them to rely on the voting information which had already had been sent. There was no direct evidence adduced that any of these employees had thrown away their voting information. In any event, they could have asked for further information if they had done so, or contacted the Helpdesk.

[78] Mr Meehan said that the challenge to the voters roll on the basis that it incorrectly included Managerial and other Senior employees was not made out by the evidence. Contracts provided to some of these employees contemplated the possibility of an industrial instrument applying to them. The Unions had simply contested 90 positions on the voters roll on the basis that they had ‘Manager’, ‘Senior Engineer’ or ‘Civil Engineer’ in their titles. There was no evidence that these employees would not be covered by the Agreement.

[79] Mr Meehan submitted that Mr Hooper’s evidence, as to references to coverage in a NoERR, represented the correct approach. Such a reference was not binding and conclusive as to coverage of a proposed enterprise agreement that is yet to be subject to bargaining. There was no evidence that employees had not received the Notice and, in any event, the applicants were only required to take ‘reasonable steps’ to ensure that every employee received the Notice, rather than ensure that every employee did in fact receive the Notice; See: NTEU v UNSW.

[80] Mr Meehan put that the applicants had been transparent in relation to errors and irregularities in the voting roll. Even taking into account the 17 invalid votes, the Commission should come to a conclusion, on the balance of probabilities, that there was still a requisite majority in favour of approving the Agreement. This was so regardless of any submission made by the Unions as to the applicants’ lack of certainty as to the correctness of the voting roll at different times in the process.

[81] Mr Meehan provided the Commission with a document detailing the benefits under the Rail Industry Award 2010 [MA000015] compared to the Agreement. He submitted that the Agreement met the BOOT.

[82] Mr Meehan said that in the event that the Commission approved the Agreement, it would replace two enterprise agreements which the applicants have asked a Full Bench of the Commission to terminate, pursuant to s 225 of the Act. There were separate enterprise agreements which would still cover other employees.

For the Unions

[83] In written submissions, the Unions put that the Commission could not be satisfied that the Agreement had been made in accordance with s 182 of the Act in that it had not been ‘genuinely agreed to’ by the employees to be covered by it. Nor could the Commission be satisfied that all of the employees to be covered by the Agreement and only the employees to be covered by the Agreement, were asked to approve the Agreement. Accordingly, the approval of the Agreement should be refused.

[84] In supporting these submissions, the Unions noted the concession by the applicants that ‘approximately’ 50 employees had also been wrongfully included in the ballot and its subsequent acceptance that 64 employees had been wrongfully included in the ballot. On 23 October 2014, the applicants had further conceded that a further five employees had been wrongfully included in the ballot. This demonstrated that the applicant was unsure as to what employees had been included in the ballot. This was particularly pertinent where the margin for approval of the ballot was so small.

[85] The Unions put that the evidence disclosed that graduates engaged on a temporary basis, who were excluded by the Agreement’s coverage clause, had been included in the ballot. Similarly, Senior Managers had been provided with voting material and permitted to vote, including Business Managers, Legal Counsel and Senior Management Accountants referred to by the applicants in correspondence to the Unions. Mr Dwyer had given evidence that a Contract Manager had voted in the ballot. It could be that if these numbers were taken into account, only 427 of the 860 employees who had validly cast a vote, had voted to approve the Agreement.

[86] The Unions examined the meaning of the expression ‘genuinely agreed’ in s 188 of the Act and submitted that the applicants had not complied with the Agreement’s pre-approval steps. Voting for approval of the Agreement had taken place on 7 October 2014, meaning that the access period was between 30 September and 6 October 2014. The applicants were therefore required to take ‘all reasonable steps’ to notify the relevant employees of the time, place and method of the vote by 30 September 2014. The applicants had first proposed that the Agreement cover graduates and cadets not engaged on a temporary basis. However, the graduate employees had been confused by the conflicting communications from the applicants. The Unions had understood that graduate employees were all temporary employees and should not have voted. If the Commission found that the graduate employees were permanent employees, it could not be said that ‘all reasonable steps’ had been taken to notify them.

[87] The Unions further argued that the text of the NoERR did not comply with the Sch 2.1 of the Fair Work Regulations 2009 (the ‘Regulations’) as the coverage of the Agreement as set out in the NoERR, did not accord with the coverage clause in the Agreement. The coverage of the Agreement was broader than that identified in the NoERR. This discrepancy invalidated the Notice. The Commission could not approve an enterprise agreement in these circumstances; See: Peabody Moorvale Pty Ltd [2014] FWCFB 2042 (‘Peabody Moorvale’).

[88] The Unions submitted that the evidence, particularly in relation to graduate employees, demonstrated that the employees to be covered by the Agreement had been provided with information by the applicants which was confusing and/or misleading. The evidence also demonstrated that even the applicants were confused as to the coverage of the Agreement. These were reasonable grounds for believing that the Agreement had not been ‘genuinely agreed to’ by the employees to be covered by it.

[89] In oral submissions, Mr Sivaraman submitted that the evidence demonstrated the following propositions:

(a) the AEC’s Returning Officer’s Report was an accurate report of the voting process;

(b) 1,486 voting instruction sheets and passwords were mailed out to the employees;

(d) 83 employees were deleted from the voting roll and may have had the potential to vote;

(e) 68 additional employees were added to the ballot, although they may not have received voting material;

(f) 10 employees contacted the AEC because they were not on the voting roll and it was unclear what happened in relation to these employees;

(g) the voting roll was amended during the ballot to remove 64 employees;

(h) two employees, Mr Syratt and Mr Rogers were reinstated to the voting roll when they should not have been; and

(i) the final two hours of the voting period were a ‘rush’ and the ballot was closed for an unknown period during the final two hours, although this may have been for a few minutes only.

[90] Mr Sivaraman emphasised that at different times, the applicants had been convinced that the voting roll was accurate, only to be later proven incorrect. Indeed, the applicants thought the voting roll to be accurate up to the point it filed this application. Again, this was proven to be incorrect.

[91] Mr Sivaraman submitted that where there was a distinct possibility that the vote may have been substantially affected by the variations of the voting roll and there were issues with mailing out of voting information and passwords, the Commission could not be satisfied that the Agreement had been ‘genuinely agreed to’. Given the evidence, Mr Meehan’s calculations could not be relied upon to show that the Agreement was validly approved by a majority of the employees to be covered by it.

[92] In reply, Mr Meehan put that the evidence of Mr Allen suggested that the ballot had been closed for only six minutes in the final two hours of voting. Mr Meehan emphasised that the Commission had prima facie evidence of a comfortable margin of employees having approved the Agreement and there was no direct, probative evidence to undermine this finding.

CONSIDERATION

Relevant statutory provisions

[93] S 186(2) of the Act provides that the Commission must approve an enterprise agreement if, inter alia, the enterprise agreement has been ‘genuinely agreed by the employees covered by the agreement’. S 188 deals with the circumstances when employees have ‘genuinely agreed’ to an enterprise agreement. This section states:

‘188 When employees have genuinely agreed to an enterprise agreement

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.’

[94] The ‘pre approval steps’ referred to above are set out in s 181(1) as follows:

‘180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre-approval requirements
(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.
(2) The employer must take all reasonable steps to ensure that:

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

(i) the written text of the agreement;

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

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

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a) the time and place at which the vote will occur;

(b) the voting method that will be used.

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

Terms of the agreement must be explained to employees etc.
(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.

(6) Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

[95] S 53(1) provides that an enterprise agreement covers an employee if ‘the agreement is expressed to cover (however described')’the employee. Relevantly, s 256A deals with how employees are to be described as follows:

‘256A How employees, employers and employee organisations are to be described

(1) This section applies if a provision of this Part requires or permits an instrument of any kind to specify the employers, employees or employee organisations covered, or who will be covered, by an enterprise agreement or other instrument.

(2) The employees may be specified by class or by name.

(3) The employers and employee organisations must be specified by name.

(4) Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to one or more of the following:

(a) a particular industry or part of an industry;

(b) a particular kind of work;

(d) a particular classification, job level or grade.’

[96] At this point, I note that in Australian Meat Industry Employees Union v Teys Australia Beenleigh Pty Ltd[2014] FWCFB 5643, the Full Bench considered the phrase ‘will be covered by the agreement’ in s 181(1) of the Act. At para [21], the Full Bench said:

‘[21] The expression “will be covered” in s.182(1) of the FW Act was considered in Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Others, in circumstances where employees who had voted on the approval of an enterprise agreement included employees who did not fall within the coverage clause of the agreement at the time of the vote. In Cimeco, a Full Bench of Fair Work Australia stated the following:

“[48] The second matter we wish to address concerns whether the Midwest Agreement was made in accordance with the Act. Fair Work Australia is not empowered to approve the Midwest Agreement unless it was made in accordance with the terms of s.180 and s.182(1) of the Act.

[49] As we have already noted, fourteen Cimeco employees voted to approve the Midwest Agreement on 16 September 2011. Hence, in the usual course, the agreement would be taken to have been ‘made’ on 16 September 2011. But at the time the Midwest Agreement was purportedly made four of the Cimeco employees who voted to approve the agreement did not fall within the area and scope of the Midwest Agreement as set out in clause 3(a) of that agreement.

[50] Counsel for the appellant contended that the task of identifying who will be covered by the agreement is ‘in a sense a factual exercise’. The four Cimeco employees employed on the Marandoo Project were included in the vote because at that time they had been ‘mobilised’ to go to the De Grussa Copper Plant. It was put to counsel that the expression ‘will be covered’ means those actually falling within the coverage clause at the time of the vote as opposed to those it was anticipated would be covered by the agreement on the basis that they had been ‘mobilised’ to perform work in the region covered by the agreement. Counsel responded to this suggestion in the following terms:

‘One runs the risk then of an argument that there’s not been a genuine agreement because you’ve actually excluded people from the voting process, people that you’ve identified who are going to be because - they’re mobilising. If you know these people are going to - they will be covered and you exclude them from the vote, then you run into an argument that the agreement hasn’t been properly made, there’s no genuine agreement because you’ve excluded a group of people who are to be covered. Just from a factual point of view, in our respectful submission, the suggestion which appears to have been taken up by his Honour that because it was anticipated that at a future point, employees who were working on other projects, who were employees of this company working on other projects outside of the area - the fact that at some future point they are to be deployed, mobilised in and work at Meekatharra - that, in no way, could affect, in our respectful submission, either of the two questions: namely, was the group that was geographically distinct fairly chosen and it would not affect in any way the genuine making of the agreement because all those persons who had been identified as who would be covered participate in the agreement-making process.’

[51] We do not find counsel’s submission persuasive. As we have previously mentioned the expression ‘will be covered by the agreement’ in s.182(1) does not indicate future likelihood but rather expresses a determinate or necessary consequence.

[52] It follows that the four employees working on the Marandoo agreement were not entitled to vote to approve the Midwest Agreement because at the time of the vote they did not fall within the area and scope of the agreement.”’

[97] Put another way, an agreement can only be made with employees who are expressly named, or whose classification is described in the agreement and whom the agreement purports to cover.

[98] S 181(2) defines when an enterprise agreement is made between an employer and its employees as follows:

‘(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.’

[99] It is self-evident that for an enterprise agreement to be validly made, the Act does not require a majority of the employees to approve it; only that a majority of employees who cast a valid vote in the ballot for approval do so. However, it must be stressed that at the time of the ballot, only employees covered by the Agreement can vote for its approval. These considerations lead me to now set out the relevant terms of the Agreement.

Relevant terms of the Agreement

[100] The coverage clause of the Agreement is set out at cl 3 as follows:

‘3. COVERAGE

3.1 This Agreement covers and applies to Aurizon Operations Limited and Aurizon Network Pty Ltd and any employees of those Companies working in Queensland in a classification contained in this Agreement.

3.2 This Agreement does not cover or apply to any employee who is engaged on a temporary employment basis as part of a graduate development or cadetship programme.

3.3 This Agreement does not cover any employee engaged in a position where Aurizon has determined that a trade qualification is mandatory.’

[101] Mr Hooper’s evidence, which did not appear to be seriously challenged, was that the Agreement would cover employees of Aurizon Operations and Aurizon Networks who:

(a) Perform administration, finance, technical (other than a technical role for which a trade qualification is mandatory), professional and/or similar work (including developing and/or administering Aurizon’s health and/or safety policies and programmes; and/or

(b) Perform work associated with network control;

(c) Are engaged in an engineering trade work and civil construction work in any role for which a classification that appears in the Staff EA and for which a trade qualification is not mandatory.

[102] Mr Hooper’s further evidence was that the Agreement does not cover:

(a) Employees working outside of Queensland; and

(b) Employees who are employed on a temporary basis as part of any cadetship or graduate program.

There are only a small number of employees working outside of Queensland and, in the case of Aurizon Network, the only employees who work outside of Queensland are graduates.

[103] At cl 8, four categories of employment are identified - full time, part time, casual and temporary. The definition of temporary employment is set out at ccl 8.1-8.11 as follows:

‘Temporary employment

8.7 Temporary employees are engaged by the Company for a specified period or project.

8.8 Temporary employees may be employed on a full-time or part-time basis.

8.9 Temporary employment will terminate on expiry of the specified period or on completion of the specified project (whichever is applicable).

8.10 Temporary employees may have their employment terminated or may terminate their employment at any time in accordance with the termination of employment provisions in this Agreement.

8.11 The Company is under no obligation to offer further employment upon the expiry of temporary employment.’

[104] Over a three year period, the Agreement seeks to transition the existing 76 level AS and PT classification structure under the current agreements into a seven level staff classification structure.

Irregularities in the ballot

[105] At the outset, it must be accepted that the coverage clause of the Agreement does not extend to any employee engaged on a temporary basis as part of a graduate development or cadetship programme. This exclusion is to distinguish from other employees (who may include graduates who have completed their training) who are actually employed by Aurizon on a full time or part time basis and/or for a specified period or project. This distinction was not fully appreciated at the relevant time and resulted in the error which was subsequently rectified by Mr Hooper’s email of 9 October 2014.

[106] The Unions’ case relied heavily on the employees’ confusion and it followed, so the argument went, that the affected employees were so confused that the Commission could not be confident that the Agreement was ‘genuinely agreed to’ by them. I reject this submission for the following reasons.

[107] Accepting the Unions’ best case scenario, it seems an inescapable conclusion that even if all those employees who remained on the voters roll but were ineligible to vote, the result would not have been reversed. Put another way, if all those employees who were ineligible to be covered by the Agreement and assuming all of them were counted as invalid ‘yes’ votes, the vote for approval would still be carried by a ‘majority of employees’ eligible to vote for the Agreement’s approval (446-433, a majority of 13).

[108] This is not a case where there is a sound evidentiary foundation that the number of the employees ineligible to vote could have possibly affected a different outcome. So much so seems to have been accepted by Mr Sivaraman on behalf of the Unions. The Unions’ submission was not that there were sufficient ineligible voters who had voted, such as to call into question the validity of the majority, rather, as I understand the Unions’ argument, there was sufficient confusion surrounding those who were told they could not vote, but then told they could vote, that the Commission could not be satisfied the Agreement was ‘genuinely agreed to by the employees.’

[109] Given Aurizon’s acknowledged errors in the voter roll, there is an obvious attraction to the submission that the employees, most notably the graduates, may have been confused as to, firstly, their non-eligibility to vote in the approval vote and then being advised that they were eligible to vote. However, there was no cogent evidence that this alleged confusion resulted in any eligible voter not doing so. Moreover, I note that all of the graduates who were first told they were ineligible to vote were then emailed on 9 October 2014 to indicate they could vote. There was still four days before the close of the ballot. My view may have been different if the employees only had a small ‘window’ in which to vote once having been told they could do so.

[110] Mr Swaminathan, an engineering graduate, gave evidence that he was confused as to being covered by the Agreement, but he acknowledged he was told in the email of 9 October that he was covered and eligible to vote and that he could utilise the voting instructions and password previously issued to him. Mr Swaminathan said he did not vote, but knew of another graduate who had.

[111] Mr David Dwyer, an administrative assistant, gave evidence that he was told by a Contract Manager, Mr Jim Bryans that he (Mr Bryans) was confused when he received the voting material. He did not know if Mr Bryans had voted. A person named Allan Bryans had voted. Mr Dwyer himself had also voted.

[112] Mr Donald Skerman, a graduate engineer who did vote, said he had discussed the issue with other graduates who had claimed to be confused. However, he did not say that he was confused. He also knew of another graduate who had voted in the ballot.

[113] From this limited evidence, much of it hearsay, and which indicated that at least three graduates had voted in the ballot, I cannot be satisfied that the Unions have established a sound evidentiary foundation for a conclusion that sufficient employees were so confused that they did not vote. I am fortified to this conclusion by the unlikelihood that such employees were confused in circumstances where:

(a) the vote was conducted over a seven day period, although for some it may have been four days;

(b) all employees were made aware of the employee helpline for any assistance or advice on the Agreement and the voting process;

(c) the very public, controversial and long running negotiations around the terms of the proposed agreement would have been well known and understood by the employees;

(d) the Unions had mounted a vigorous and intense ‘No’ campaign against the approval of the three enterprise agreements; and

(e) it might be reasonably assumed that there would be a high level of understanding and participation in the approval vote by employees covered by the Staff Agreement.

[114] In any event, the statutory provisions governing the voting process for an enterprise agreement, do not envisage the Commission conducting a rather difficult conceptual test of speculating whether a particular employee or group of employees were so confused that they decided not to vote. This must be particularly so, in the absence of any direct evidence that some employees were so confused that they did not vote.

[115] The Commission regularly reviews enterprise agreements where the number of validly cast votes do not go anywhere near the number of employees who are to be covered by the proposed agreement. I sometimes ask the parties to speculate why there is such a low voter turnout and the answers are just that - speculation. In the absence of asking each employee why they did not vote (which would hardly be useful), the only statutory test which matters is whether there was a majority of those who cast a valid vote for the approval of the Agreement.

[116] As to the six minute ‘gap’ where the voting system went down, I accept the possibility that some employees may have tried to vote, but could not do so. However, there was simply no direct evidence that any employee had sought to vote, but was unable to do so. On the other hand, nor was there any evidence that any employees who could not vote, due to the six minute shutdown and had subsequently done so. In any event, given there was a seven day voting period, a single six minute shutdown was such as to not even to be within the ‘margin of error’. It is implausible that such a short shutdown period could have invalidated the vote.

[117] For completeness, I am satisfied, pursuant to s 186(3) of the Act, that the employees proposed to be covered by the Agreement, were ‘fairly chosen’.

Invalidity of the NoERR

[118] As earlier mentioned, Aurizon is seeking to reduce its existing 13 enterprise agreements covering all of its employees, into three. There have been simultaneous negotiations with the Unions since 2013 in which Aurizon has proposed a number of consistent and contested conditions. The vote for all three proposed enterprise agreements were set for the week of 7-13 October 2014. To me, it is unsurprising that Aurizon sent the three NoERRs to all its employees at the same time with the title and coverage of each reflecting each of the three distinct groups. The NoERR relevant to this application was expressed as follows:

‘Notice of employee representational rights

Fair Work Act 2009, subsection 174 (6), Regulation 2.05, Schedule 2.1

Aurizon Operations Limited and Aurizon Network Pty Ltd gives notice that it is bargaining in relation to an enterprise agreement, the Aurizon Staff Enterprise Agreement 2014 which is proposed to cover employees that:

perform administration, Finance, Technical (other than a technical role for which a trade qualification is mandatory), Professional and/or similar work (including developing and/or administering Aurizon’s Health and/or Safety Policies and Programmes (over and above each individual employee’s health and safety obligations); and/or

are Team Leaders in Rollingstock Maintenance Workshops or Depots in any role not requiring mandatory trade qualifications; and/or

performs work associated with Network Control including Safe Work Supervisors

What is an enterprise agreement?

An enterprise agreement is an agreement between an employer and its employees that will be covered by the agreement that sets the wages and conditions of those employees for a period of up to 4 years. To come into operation, the agreement must be supported by a majority of the employees who cast a vote to approve the agreement and it must be approved by an independent authority, the Fair Work Commission.

If you are an employee who would be covered by the proposed agreement:

You have the right to appoint a bargaining representative to represent you in bargaining for the agreement or in a matter before the Fair Work Commission.

You can do this by notifying the person in writing that you appoint that person as your bargaining representative. You can also appoint yourself as a bargaining representative. In either case you must give a copy of the appointment to your employer.

If you are a member of a union that is entitled to represent your industrial interests in relation to the work to be performed under the agreement, your union will be your bargaining representative for the agreement unless you appoint another person as your representative or you revoke the union’s status as your representative.

Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to either your employer, bargaining representative, go to or contact the Fair Work Commission Infoline on 1300 799 675.’

[119] Section 173(1) of the Act requires an employer who will be covered by a proposed enterprise agreement to take all reasonable steps to give notice of the right to be represented by a bargaining representative, to each employee who will be covered by the Agreement and who is employed at the notification time. The notice must be given as soon as practicable, but not later than 14 days after the notification for the agreement.

[120] Section 181(1) of the Act provides that an employer who will be covered by an enterprise agreement may request employees employed at the time who will be covered, to approve an agreement by voting for it. Section 181(2) provides that such a request must not be made until at least 21 days after the day on which the last NoERR under s 173(1) is given. A failure to do so will render the Agreement invalidly made.

[121] As I comprehend the Unions’ case, there is no argument with the various time requirements for the giving of the Notice and advice as to the voting process. The central argument concerns the content of the NoERR, being the three Notices sent to all employees. The content of a Notice is prescribed by s 174 of the Act and, by virtue of s 176(6). The Fair Work Regulations 2009 (the ‘Regulations’) may prescribe other matters relating to the content or form of the Notice and the manner in which it may be given. Section 174 is expressed as follows:

‘174 Content and form of notice of employee representational rights

Application of this section
(1) This section applies if an employer that will be covered by a proposed enterprise agreement is required to give a notice under subsection 173(1) to an employee.

Notice requirements
(1A) The notice must:

(a) contain the content prescribed by the regulations; and

(b) not contain any other content; and

(1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), the regulations must ensure that the notice complies with this section.

Content of notice—employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining representative to represent the employee:

(a) in bargaining for the agreement; and

(b) in a matter before the FWC that relates to bargaining for the agreement.

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

(a) if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and

(b) the employee does not appoint another person as his or her bargaining representative for the agreement;

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low-paid authorisation is in operation
(4) If a low-paid authorisation in relation to the agreement that specifies the employer is in operation, the notice must explain the effect of paragraph 176(1)(b) and subsection 176(2) (which deal with bargaining representatives for such agreements).

Content of notice—copy of instrument of appointment to be given
(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee’s employer).’

[122] For present purposes, rr 2.04 and 2.05 of the Regulations provide as follows:

‘2.04 Notice of employee representational rights—how notice is given

(1) For subsection 173(5) of the Act, each of the following is a manner in which the employer for a proposed enterprise agreement may give employees who will be covered by the agreement notice of the right to be represented by a bargaining representative for the agreement.

(2) The employer may give the notice to the employee personally.

(3) The employer may send the notice by pre-paid post to:

(a) the employee’s residential address; or

(b) a postal address nominated by the employee.

(4) The employer may send the notice to:

(a) the employee’s email address at work; or

(b) another email address nominated by the employee.

(5) The employer may send to the employee’s email address at work (or to another email address nominated by the employee) an electronic link that takes the employee directly to a copy of the notice on the employer’s intranet.

(6) The employer may fax the notice to:

(a) the employee’s fax number at work; or

(b) the employee’s fax number at home; or

(7) The employer may display the notice in a conspicuous location at the workplace that is known by and readily accessible to the employee [my emphasis].

(8) Subregulations (2) to (7) do not prevent the employer from using another manner of giving the notice to the employee.

2.05 Notice of employee representational rights—prescribed form

For subsection 174(6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.’

[123] As I understand the Unions’ submissions, given that the three Notices were sent to all employees, the employees were uncertain or confused as to which Notice applied to them. It therefore followed that the NoERRs were invalid due to the mandatory prerequisite of the Act and the Regulations as to the requirements of the Notice’s content, the Agreement could not be approved. In my view, this submission is misconceived for the following reasons.

[124] Firstly, the statutory purpose of the Notice is to ensure that employees are informed about their right to representation in bargaining and to ensure that their consent to an agreement is genuine in that such representational rights have been understood and appropriately exercised by them. The NoERR is not intended to be definitive about the enterprise agreement’s title or coverage at such an early stage, especially before negotiations have even commenced.

[125] I cannot be satisfied that the issuance of the three different notices to all employees created uncertainty or was confusing, given its clear statutory purpose has to do with bargaining representation and not the content of the proposed agreement. There was no evidence that employees (or any of them) were confused or uncertain as to their bargaining rights.

[126] In Sommerville Maintenance Enterprise Agreement 2011 [2011] FWAA 2606 (‘Sommerville’), a Full Bench of Fair Work Australia (FWA, the Commission’s predecessor body), said at paras [49]-[54]:

‘[49] An object of the FW Act emphasises “enterprise-level collective bargaining underpinned by simple good faith bargaining obligations” and the objects of Part 2-4 of the FW Act concerning enterprise agreements include providing “a simple, flexible and fair framework that enables collective bargaining in good faith ... for enterprise agreements” and enabling “FWA to facilitate good faith bargaining and the making of enterprise agreements, including through ... ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay.”

[50] Provisions in Part 2-4 of the FW Act require that an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give the notice of the right to be represented by a bargaining representative to each relevant employee and the employer cannot request the relevant employees to approve the proposed enterprise agreement by voting for it until at least 21 days after the day on which the last notice is given. Further, in order to approve an enterprise agreement, FWA must be satisfied the enterprise agreement has been genuinely agreed to by the employees covered by it and FWA will be so satisfied if it is satisfied the employer, amongst other things, did not request that the relevant employees approve the enterprise agreement until 21 days after giving the last notice of employee representational rights.

[51] A notice of employee representational rights consistent with Schedule 2.1 of the FW Regulations, except for an omission of the type made by Inghams, still notifies the employee in question that they have a right to appoint a bargaining representative. The failure to include the qualification to that right set out in item 2(3) of Schedule 13 of the TPCA Act and the additional paragraph in Schedule 2.1 of the FW Regulations merely means the employee is not notified through the notice that their right to appoint a bargaining representative or for a person to become their bargaining representative is qualified.

[52] The omission does not affect the legislative entitlement of an employee covered by an individual agreement-based transitional instrument to appoint a bargaining representative or for a person to become the bargaining representative of such an employee. That legislative entitlement is governed by item 2(2) of Schedule 13 of the TPCA Act.

[53] Against this background we have come to the view that the legislature did not intend a notice of employee representational rights to be rendered invalid because of an omission of the type made by Inghams. Given the limited effect of the omission and the centrality under the FW Act of a valid notice of employee representational rights to the making and approval of an enterprise agreement, such a conclusion is the most consistent with the attainment of the objects of the FW Act.

[54] Accordingly, we are not persuaded the omission of the qualification in item 2(3) of Schedule 13 of the TPCA Act or the additional paragraph concerning an employee covered by an individual agreement-based transitional instrument from the notice of employee representational rights given by Inghams affected the validity of the notice or was of any consequence for the making and approval of the Somerville Agreement. We dismiss the AMWU’s ground of appeal concerning the notice of employee representational rights.’

[127] In Melian Transport Pty Ltd [2012] FWA 8975, Asbury C (as she then was), after citing the above decision, and other Full Bench authorities, referred to the primary purpose of the NoERR as follows:

‘[21] These cases indicate that while non-compliance with the provisions of s.173(1) does not necessarily render an agreement void and incapable of approval, the notice of representational rights is directed to ensuring that employees are informed about how they may be represented, and that their approval of an enterprise agreement is genuine in that it is given in circumstances where they have had the opportunity to exercise all of their rights with respect to representation. This is a significant matter about which the Tribunal must be positively satisfied, before approving an agreement.’

See also: Bland v CEVA Logistics (Australia) Pty Ltd [2011] FWAFB 7453; Racing Queensland Limited [2012] FWA 6290; Ostwald Bros Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 9512; Galintel Rolling Mills Pty Ltd t/a The Graham Group [2011] FWAFB 6772 (‘Galintel’).

[128] In my view, Aurizon’s decision to issue all three NoERRs to all employees meets the test of taking ‘all reasonable steps’ to give the Notice to the employees to be covered by it.

[129] Secondly, there was no evidence adduced by the Unions that identified any employees who had been confused about the NoERR, its information or its intent. There have been long-running concurrent negotiations with a number of Unions for three separate enterprise agreements which have not been hampered by, or confused by Aurizon’s preapproval process.

[130] Thirdly, if a failure to identify to each employee the precise name of the enterprise agreement proposed to cover him or her or fails to precisely identify the coverage of the proposed agreement, even before the bargaining commences, renders the NoERR invalid and the Agreement unable to be approved, then many Agreements approved by the Commission under the current legislative regime, would be similarly found to be invalidly made. This would be inconsistent with the objects of the Act (See: Sommerville) and, to my mind, just plain illogical. It would be permitting form to triumph over substance.

[131] Fourthly, the misconception of the Union’s argument is no better demonstrated than by the plain and unequivocal words used in the preamble to the template NoERR in the Regulations. It uses the expression [name of the proposed enterprise agreement] and [proposed coverage]. By the use of the word ‘proposed’, it must be acknowledged that there is no definite name or definite coverage required to be outlined at this starting point in the process. In one sense it is a guide only. This accords with the plain, commonsense understanding that both the name and coverage of an agreement, ultimately to be voted on by the employees, may well be the subject of discussion, negotiation and alteration by the parties.

[132] Fifthly, in my opinion, the issuance of three Notices to all employees is no different than if Aurizon had displayed the three Notices ‘in a conspicuous location at the workplace that is known by and readily accessible to the employees’ in satisfaction of the requirement of para 7 of regulation 2.04; See: para [122]. In these circumstances, employees would still have to distinguish which Notice applied to them.

[133] Sixthly, in my opinion, Mr Sivaraman’s reliance on the Full Bench decision in Peabody Moorvale does not assist his argument. The gravamen of Peabody Moorvale is to be found at paras [44]-[46] and [67] as follows:

‘[44] The 21 day requirement in s.181(2) is met if there was a period of at least 21 days after the last Notice was given before employees were asked to approve the proposed agreement. This requirement is not met unless the Notice is validly issued under s.173 and a Notice will be valid provided that it complies with the content and form requirements of s.174(1A).

[45] The consequence of failing to give a Notice which complies with the content and form requirements of s.174(1A) is that the Commission cannot approve the enterprise agreement. We note that this does not prevent the employer from recommencing the bargaining process, completing the pre-approval steps (including the giving of valid Notices) and making application to have the resultant enterprise agreement approved by the Commission.

[46] In our view s.174(1A) is clear and unambiguous. There is simply no capacity to depart from the form and content of the notice template provided in the Regulations. A failure to comply with these provisions goes to invalidity. We agree with the Minister’s submissions on this point, that is:

“A mandatory template is provided in the Regulations. The provisions make it clear that there is not scope to modify either the content or the form of the Notice other than as set out in the template.”

...

[67] First, s.174(1A) is not to be construed so as to preclude an employer from providing additional material to its employees at the same time as the Notice is given to them. Subsection 174(1A) is directed at the form and content of the Notice. It does not require the Notice to be provided in isolation and to construe the provision in that way would produce some absurd results, for example, it would prevent an employee from providing employees with a simple covering letter or an offer of interpreter services. Such a construction would also give rise to considerable uncertainty, for example, about whether an employer could merely provide the additional information in a separate envelope to the envelope containing the Notice, or whether the additional information could be provided at the same time or whether the employer would need to wait until a later time, and if so how long should the employer wait.’

[134] Whatever might be said about the confusion issue, the fact was that Aurizon had provided the Notice for this Agreement precisely in accordance with the Notice template and did not depart from the form and content of the Notice template. The fact that it provided additional information to the employees about the other proposed agreements, can be seen in the same light as providing additional information material to employees at the same time as the Notice, which is expressly not precluded by the decisions in Peabody Moorvale and Galintel.

[135] Seventhly, given the hyper industrial activity, publicity and campaigning associated with the negotiation of new enterprise agreements between Aurizon and its employees, it is difficult to accept that any employee would be unaware of, or confused as to where they stood in the enterprise bargaining framework concerning their representational rights.

[136] I am satisfied that there was no invalidity in the issuance of, and content of the NoERR issued to the employees to be covered by the Agreement.

CONCLUSION

[137] As I have found that there was a valid majority of employees who voted to approve the Agreement, I am further satisfied that the employees genuinely agreed to the approval of the Agreement. Given these findings and that there are no other grounds to warrant the Commission refusing to approve the Agreement, the Commission must do so, in accordance with s 186(2) of the Act.

[138] Having heard the parties’ submissions and upon reviewing the terms of the pre-approval process documentation and the Agreement itself, I am satisfied that the Agreement meets the BOOT and that all of the requirements of the Act, in particular, ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Pursuant to s 201(2) of the Act, and the Form F18 Declarations filed in these proceedings, the Unions referred to in para [3] shall be covered by this Agreement. Pursuant to s 54 of the Act, the Aurizon Staff Enterprise Agreement 2014 shall have a commencement date of 28 January 2015 and have a nominal expiry date of 28 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Appearances:
Mr S Meehan of Counsel with Mr A Morris, Solicitor for the applicant.
Mr G Sivaraman, Solicitor with Ms A Heffernan, Solicitor for the Australian Rail, Tram and Bus Industry Union and the Queensland Services Industrial Union of Employees.

Hearing details:
2014:
Brisbane
1 December.

Aurizon Operations Limited and Aurizon Network Pty Ltd