Construction, Forestry and Maritime Employees Union

[2025] FWC 738

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Construction, Forestry and Maritime Employees Union

(AG2024/2996)

ADVANCED CIVIL GROUP PTY LTD GOLD COAST LIGHT RAIL STAGE 3 PROJECT AGREEMENT

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 14 MARCH 2025

Application for approval of the Advanced Civil Group Pty Ltd GOLD COAST LIGHT RAIL STAGE 3 PROJECT AGREEMENT – Application

An application has been made for approval of an enterprise agreement known as the Advanced Civil Group Pty Ltd GOLD COAST LIGHT RAIL STAGE 3 PROJECT AGREEMENT (Proposed Agreement). The application was made by the Construction, Forestry and Maritime Employees Union (CFMEU) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Proposed Agreement is a single enterprise agreement. The employer covered by the Proposed Agreement is Advanced Civil Group Pty Ltd (Employer).

AWU Objections

The Australian Workers’ Union (AWU) objected to the approval of the Proposed Agreement on the following grounds:[1]

The CFMEU has not demonstrated that it is a bargaining representative for an employee covered by the Proposed Agreement.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has not demonstrated that it is a bargaining representative for an employee covered by the Proposed Agreement.

There are deficiencies in the signing of the Proposed Agreement.

The information contained in the Notice of Employee Representational Rights (NERR) is inaccurate in relation to the work that the Proposed Agreement will cover.

The Commission cannot be satisfied that the six or fewer employees who voted on and were covered by the Proposed Agreement:

have a sufficient interest in the terms of the Proposed Agreement as required by section 188(2)(a) of the Act; and
are sufficiently representative as required by s.188(2)(b) of the Act.

There are deficiencies in the way in which the Proposed Agreement has been explained to the employees as set out in the Form F17B filed by the Employer such that the Commission cannot be satisfied that the employees who voted for the Proposed Agreement had an informed and genuine understanding of what was being approved, pursuant to principle 18 of the Statement of Principles on Genuine Agreement (SoPs).

Initial Application

As pointed out by both parties, this is the second attempt that the CFMEU has made to have an agreement approved covering the Employer and the Employer’s employees and which has the same coverage provisions. An earlier application AG2023/3110 (Initial Application) was refused at first instance. That decision (Initial Application Decision)[2] was the subject of an appeal in which the Full Bench quashed it (Appeal Decision).[3] The terms of the agreement that the CFMEU sought to have approved in the Initial Application are identical to the terms of the Proposed Agreement.

The Full Bench remitted the matter back to the Deputy President who made the Initial Application Decision for it to be redetermined however the application was withdrawn on 12 July 2024 and a new application, being the current application (Current Application), was made. The reasons for the withdrawal of the Initial Application are unknown. The withdrawal of the Initial Application before its determination by the Deputy President creates a complication in that it has opened the door for the AWU to agitate issues raised and, in respect of some of those issues, determined by a Full Bench in the Appeal Decision. However neither the Deputy President at first instance nor the Full Bench in the Appeal Decision dealt with all of the issues raised by the AWU in relation to the Initial Application.

The AWU noted that its objections proceed on the basis that the Commission is aware of the (Initial Application) relating to the approval of the Proposed Agreement and has access to the file for that matter.[4]

Submissions

The AWU filed detailed submissions in relation to the Current Application on 20 September 2024 (AWU Submissions) and filed submissions in reply on 10 October 2024 (AWU Reply Submissions) ahead of a hearing in relation to the matter. The AWU also referred to and relied upon its submissions dated 10 June 2024 (AWU Initial Application Submissions) and reply submissions dated 2 July 2024 (AWU Initial Application Reply Submissions) as filed in the Initial Application insofar as those submissions relate to the current matter.[5] The AWU acknowledged that its submissions filed in relation to the Current Application follow and replicate the AWU Initial Application Submissions and AWU Initial Application Reply Submissions in many respects.[6]

The CFMEU filed submissions on 2 October 2024 (CFMEU Submissions) as well as a copy of its speaking notes ahead of the hearing (CFMEU Speaking Notes). The CFMEU also filed a copy of the appeal book prepared in the Initial Application and sought to rely on its materials and evidence in the Initial Application insofar as they relate to the current matter.

The AWU’s interests in relation to the application

The AWU submitted it has an interest in the matter because it is the principal civil construction union in Queensland and has the capacity to represent the industrial interests of all workers performing work covered by the Proposed Agreement.[7]

Coverage provisions within the Proposed Agreement

Clause 1 of the Proposed Agreement provides:

‘Scope and application of the Agreement
1.1This Agreement is made under the Fair Work Act 2009 (Cth) and those covered by this Agreement are:
1.1.1 Advanced Civil Group Pty Ltd ABN: (35638485328) (Employer);

1.1.2 Employees employed by Advanced Civil Group Pty Ltd on the Gold Coast Light Rail Stage 3 Project (Project) for which classifications and rates of pay are prescribed by this Agreement (Employees).
1.1.3 The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); and

1.1.4 The Construction, Forestry, Maritime, Mining and Energy Union
(CFMEU)

1.2 This Agreement shall be read and interpreted wholly in conjunction with the Building Construction General On-site Award 2020 and Plumbing and Fire Sprinklers Award 2020 to the extent this Agreement is silent. Where this Agreement is not silent, the conditions of this Agreement shall take precedence and apply to the full exclusion of the relevant provisions under the Award’.

The Proposed Agreement does not describe what the ‘Gold Coast Light Rail Stage 3 Project’ (Project) entails. However the AWU pointed to a website co-branded by the Australian Government, City of Gold Coast, Queensland Government and ‘GoldlinQ’ which appears to be an official website for the Project.[8] This website explains that the Gold Coast Light Rail Stage 3 is a $1.2 billion, 6.7-kilometre extension of the light rail network from Broadbeach to Burleigh Heads and is funded by the Queensland and Australian governments in partnership with City of Gold Coast. It is clearly a civil construction project involving light rail construction and this does not appear to be in contention.

The classification structure appears in Appendix B of the Proposed Agreement. There are two classification streams in the Proposed Agreement including a ‘Construction Worker/Labourer’ classification stream and a ‘Plumbing and Mechanical Services’ classification stream. In relation to the ‘Construction Worker/Labourer Classifications’, Appendix B states that:

‘The Civil Worker (CW) classifications will apply to Employee(s) performing work of the nature of Civil Construction who are engaged in the classifications set out below and are employed to perform the works set out in this Agreement.’

While ‘Civil Construction’ is a capitalised term, it is not expressly defined in the Proposed Agreement. Notwithstanding this, the term should be understood in context noting that clause 1.2 expresses the intention that the Proposed Agreement shall be read and interpreted wholly in conjunction with the Building and Construction General On-site Award 2020 (Building Award) and Plumbing and Fire Sprinklers Award 2020 (Plumbing Award) to the extent it is silent. In this regard:

clause 4.1 of the Building Award states that it ‘covers employers throughout Australia in the on-site building, engineering and civil construction industry and their employees in the classification within Schedule A—Classification Definitionsto the exclusion of any other modern award’;

clause 4.2 of the Building Award provides that ‘for the purpose of clause 4.1, on-site building, engineering and civil construction industry means the industry of general building and construction, civil construction and metal and engineering construction, in all cases undertaken on-site’;
- clause 4.3(b) of the Building Award relevantly defines ‘civil construction’ as:
‘(i) the construction, repair, maintenance or demolition of:

· civil and/or mechanical engineering projects;

…
(x) railways, tramways, roads, freeways, causeways, aerodromes, drains, dams, weirs, bridges, overpasses, underpasses, channels, waterworks, pipe tracks, tunnels, water and sewerage works, conduits, and all concrete work and preparation incidental thereto;
…’

Relevant AWU Rules

Rule 5, Section 1, Part A (4) of the Rules of the Australian Workers’ Union (AWU Rules) relevantly provides:

‘(4) Without limiting the generality of any other provisions of this Rule or being limited in any way thereby, every bona fide worker employed in or in connection with the industries or callings of:
…
(c) The construction, repair maintenance or demolition of:

(i) Civil and/or mechanical engineering projects.

(ii) Power transmission, light, television, radio, communication,
radar, navigation, observation towers or structures.

(iii) Power houses, chemical plants, hydrocarbons and/or oil
treatment plants or refineries.

(iv)Silos, excepting grain silos in Tasmania, South Australia, Western Australia and that area of Queensland not included in paragraph 4(b) above.

(v) Sports and/or entertainment complexes.

(vi)Car parks excepting car park buildings and car parks within the alignment of a building;

shall be eligible for membership of the Union’.

Further ‘Rule 6A – ADDITIONAL ELIGIBILITY FOR ADMISSION TO MEMBERSHIP IN THE STATE OF QUEENSLAND’ relevantly provides:

‘(1) Notwithstanding Rules 5 and 6, and without limiting the generality of those rules, this Rule 6A does not apply outside the State of Queensland.

…

(3) Only within this Rule 6A the following definitions apply:

…

b.“Bona fide Worker” means any employee, male or female, engaged in manual or mental labour in or in connection with any of the industries mentioned in Rule 6A(4) hereof.

(4) Subject to this Rule 6A every bona fide worker male or female, engaged in manual or mental labour in or in connection with any of the following industries or callings namely:

…

12. Road Making including construction and/or maintenance and/or repair
and all work in or in connection with or incidental thereto.

…

14.Railway construction and/or Maintenance and/or repairs and all work in or in connection with or incidental thereto.

15.All labour other than craftsmen employed on in or in connection with or incidental to the construction and/or maintenance and/or repair and/or operation of State and/or Federal Public Works, and/or works for semi-governmental bodies (including Harbour Boards).

…

17.All employees engaged in or in connection with or incidental to the construction and/or maintenance and/or repair and/or operation of local authority work or works.

18.All employees engaged in the construction and maintenance of tramways.

…

20. Bridge Carpenters and all other labour employed in or in connection with or incidental to the construction and/or maintenance and/or repair and/or alteration and/or demolition of bridges, wharves, piers, jetties, dolphins, barrages and other similar or like structures.

…

24. All kinds of general labour (including builders’ labourers)’
(underlining added).

AWU Interest

It is apparent that the Proposed Agreement is described to cover employees engaged in civil construction work involving a light rail project, the nature of which falls within the coverage of the AWU’s eligibility rules. I find that the AWU has, prima facie, the capacity to represent the industrial interests of workers performing work covered by the Proposed Agreement pursuant to the AWU Rules, that the AWU has an interest in and should be heard in relation to the matter. However, even if the AWU did not have the capacity to represent the industrial interests of workers performing work covered by the Proposed Agreement, the AWU’s objections relating to section 188(2) deal with relatively new provisions of the Act requiring consideration of the proper construction and application of these provisions in determining the application. I considered that I would benefit from the AWU’s involvement as a contradictor and therefore considered it appropriate to exercise my discretion to inform myself pursuant to s.590 of the Act in enabling the AWU to be heard in relation to the matter.

Is the CFMEU a bargaining representative for the Proposed Agreement?

As noted above, the application for approval of the Proposed Agreement has been made by the CFMEU. The Proposed Agreement is a single enterprise agreement and in this respect s.185(1) of the Act provides that if an enterprise agreement is made, a bargaining representative for the agreement must apply to the Commission for its approval.

The AWU submitted that the CFMEU has not demonstrated that it is a bargaining representative for the Proposed Agreement and therefore lacks standing to bring the application.

Relevant legislation

Section 176 of the Act relevantly provides:

‘Bargaining representatives for proposed enterprise agreements that are not greenfields agreements
Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a)an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b)an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i)the employee is a member of the organisation; and
(ii)in the case where the agreement is a multi-enterprise agreement in relation to which a supported bargaining authorisation is in operation – the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c)a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

…
(3) Despite subsections (1) and (2):
(a)an employee organisation; or
(b)an official of an employee organisation (whether acting in that capacity or otherwise;

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement’.

What does the CFMEU need to establish in order to be a ‘bargaining representative’

The AWU referred to Construction, Forestry, Mining and Energy Union v Otswald Bros Pty Ltd[9] in which SDP Richards said:

‘[95] The Act establishes a number of factual conditions that must be satisfied for an employee organisation to be a bargaining representative. These include that the employee is a member of the employee organisation, and that the organisation is entitled to represent the industrial interests of the employee in relation to the work that will be performed under the proposed agreement.
[96] The Company called into question whether these factual conditions were in existence such that it had obligations in relation to good faith bargaining in respect of the CFMEU. These are inherently questions of a jurisdictional type. When they are called into question, the onus falls upon the employee organisation to demonstrate that its status is not merely asserted but open to demonstration as a fact’.[10]

The ‘Form F17B – Employer’s declaration in support of an application for approval of a single-enterprise agreement (other than a greenfields agreement)’ (Form F17B) indicates that there are six employees who will be covered by the Agreement.[11] For the CFMEU to be a bargaining representative it will therefore need to establish that:

at least one of these employees is a member of the CFMEU; and
the CFMEU is entitled to represent the industrial interests of the employee or employees referred to above.

The focus of the objection that AWU has raised is not that the CFMEU does not have a member, but rather that the CFMEU is not entitled to represent the industrial interests of the employees covered by the Proposed Agreement.[12] I deal with this issue further below.

Is at least one of the employees who will be covered by the Proposed Agreement a member of the CFMEU?

The CFMEU did not squarely address the question of whether at least one of the employees who will be covered by the Proposed Agreement was a member in its submissions directed at the Current Application. Rather, the CFMEU’s submissions concerning its coverage simply identify that a Full Bench of the Commission accepted its submissions about coverage in an earlier application, overturning the finding at first instance that excavator operators employed by the Respondent were not eligible for membership.[13] In asking the Commission to adopt the findings of the Full Bench the CFMEU is, in effect, seeking to rely on the evidence it has led in relation to the Initial Application. As noted above, the materials filed by the CFMEU in this application include the Appeal Book prepared in those proceedings. The AWU appears to take issue with the CFMEU’s reliance on evidence brought in the Initial Application in these proceedings.

While the Current Application is a new application, I consider that the context in which it is made is important and that it is open to me to have regard to those matters raised in the Initial Application and that were the subject of the Full Bench’s consideration in circumstances where the issues and facts concerning the Current Application are analogous. Indeed, the AWU has indicated in its own submissions that it relies on its submissions made in relation to the Initial Application and assumes that the Commission has access to the file in that matter.

In this regard I note that in the Initial Application Decision the Deputy President considered the confidential list of CFMEU members against the list of employees covered by the Proposed Agreement and was satisfied that the CFMEU had a purported member. [14] This is a conventional approach and the Deputy President’s finding in this respect was not disturbed by the Appeal Decision.[15] In the current matter, it is declared in the Form F17B that there were six employees covered by the Proposed Agreement. Among the materials filed with the application is an email dated 15 July 2024 which appears to have been provided to six employees notifying them of the process for voting on the Proposed Agreement and in which the names of employees are discernible from the email addresses included that email. Based on the materials before the Commission I find that the employee identifiable as a purported member in the Initial Application remained an employee who will be covered by the Proposed Agreement. That employee (Purported Member) is a purported member of the CFMEU.

Is the CFMEU is entitled to represent the industrial interests of the Purported Member?

The real issue in contest concerning the question of whether the CFMEU is a bargaining representative relates to whether the CFMEU is entitled to represent the industrial interests of the Purported Member.

Significance of union eligibility rules

In Regional Express Holdings Limited v Australian Federation of Air Pilots (‘REX’)[16] the High Court considered whether the fact that a person is eligible for membership of an industrial association in accordance with its eligibility rules is sufficient to make the industrial association “entitled to represent the interests of” that person within the meaning of s.540(6)(b)(ii) of the Act. The High Court said that subject to contrary indication, it is to be presumed that the expression “entitled to represent the industrial interests of” has the same meaning wherever it appears in the Act.[17] The High Court then observed that the majority of provisions in which the expression appears prescribe the standing of an industrial organisation in relation to a person who is a member of the organisation and said that:

“…In each such case, the presence of the expression “entitled to prepresent the industrial interests of" adds to the requirement that the person be a member of the organisation a second or further condition that the organisation be entitled to represent the industrial interests of the person. Consequently, in each such case, the condition "entitled to represent the industrial interests of" is logically to be understood as something which may arise otherwise than from a person's membership of the organisation”.[18]

The High Court then said:

unlike s.176(1), s.540(6) was not conditioned on membership;[19]
given the way the Act draws a distinction between a person's membership of an organisation and the organisation's entitlement to represent the industrial interests of the person, it cannot be that membership is the only entitlement to represent the industrial interests of a person recognised by the Act;
- the Act’s conception of the entitlement to represent the industrial interests of a person reflects the Dunlop Rubber principle in the sense of an entitlement to represent the industrial interests of a person who satisfies an organisation's eligibility rules;[20]
- the fact that some sections of the Act require that a person both be a member of an organisation and that the organisation be entitled to represent the person does not suggest that the latter must mean something other than an entitlement to represent the industrial interests of the person arising by reason of the organisation's eligibility rules.[21]

The High Court noted that in Dunlop Rubber[22]it was held that a trade union had the capacity “to formulate industrial claims in the interests of that group or class ascertainable by reference to the 'conditions of eligibility' prescribed by its rules" and it was no obstacle to the existence of an industrial dispute that none of the employer's employees was a union member.[23] The High Court then traced the history of relevant industrial relations legislation including various provisions of the Workplace Relations Act and s.178(5A) of the now repealed statute which provided that:

"A penalty for a breach of a term of a certified agreement may be sued for and recovered by:
...
(d)an organisation:
(i)that has at least one member whose employment is subject to the agreement; and
(ii)that is entitled to represent the industrial interests of the member in relation to work carried on by the member that is subject to the agreement ..."

The High Court said:

“Consistently with the Dunlop Rubber principle, those provisions were understood as operating on the basis that an organisation's entitlement to represent the industrial interests of a member in relation to work covered by the agreement derived from eligibility rules giving the organisation coverage in relation to the work of the member covered by the agreement”.[24]

The High Court then specifically turned to s.176(3) of the Act and said:

“Standing alone, there might be some doubt about the meaning of that provision. Read, however, against the background of s 178(5A) of the Workplace Relations Act, and its legislative antecedents outlined above, there really is no room for any doubt that the entitlement to represent the industrial interests of an employee referred to in s 176(3) of the Fair Work Act is the same Dunlop Rubber principle sense of an organisation's entitlement to represent the industrial interests of persons eligible for membership of the organisation.”[25]

It can be drawn from the above that the assessment of whether an organisation is entitled to represent the industrial interests of an employee in relation to work that will be performed under the Proposed Agreement is therefore to be determined with reference to the organisation’s eligibility rules.

Types of union eligibility rules

The AWU submitted that the Courts and the Commission have recognised that there are two broad categories of union eligibility rules:

‘industry rules’ concerning the particular industry in which the business operates; and
‘occupational rules’ based on the nature or type of work performed by employees. [26]

This submission is broadly consistent with the principles identified by a Full Bench of the Australian Industrial Relations Commission in Construction, Forestry, Mining and Energy Union v Dyno Nobel Asia Pacific Limited[27] which said:

“The Courts and the Commission have long recognised two particular categories of eligibility rule:
(i) rules based on the industry in which the business or enterprise of the employer operates (such a rule is referred to as an ‘industry rule’);

(ii) rules based on the type of work performed by employees (such a rule is usually referred to as a ‘vocational rule’ and sometimes referred to as a trade, craft or calling rule)

Sometimes a particular eligibility rule may be expressed in such a way as to form a hybrid with different parts falling into each of these two categories. Of course, a rule may be framed in such a way that it does not fall into either of these categories.”

The AWU submitted that:

The test for the eligibility of an employee under an industry rule looks at the ‘substantial character’ of the activities in which the employer is engaged.[28]

By contrast, eligibility under a vocational/occupational rule looks at the “principal purpose or primary function” of the employee’s role “in the context of the employer’s organisation of work.”[29]

The CFMEU Rule in contention and its origin

Rule 2(E)(a) of the Rules of the Construction, Forestry and Maritime Employees Union (CFMEU Rules) provides:

‘Without limiting the generality of the foregoing and without being limited thereby the following are eligible to be members of the Union:-
(a)An unlimited number of all classes of engine drivers, firemen, crane drivers, mobile crane drivers, forklift drivers, tow motor drivers, excavator drivers, pump attendants, pile drivers, motor drivers or attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river, and boiler attendants attending boilers not generating steam for power purposes and such persons as have been elected or appointed as paid officers of the Union or a branch of the Union or whilst financial members of the Union are elected as representatives of any working-class organisation to which the Union or a branch thereof is affiliated, or as a working-class member of Parliament.
Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon such work being that of a waterside worker or engaged in the transport of goods by road, or motor truck drivers wherever employed, shall not be eligible for membership’ (underlining added).

In Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd[30] (DuluxGroup) the Full Court of the Federal Court observed, in relation to rule 2(E)(a) of the CFMEU Rules that:

the coverage afforded by rule 2(E)(a) was the result of an amalgamation with the Federated Engine Drivers and Firemen’s Association of Australasia (FEDFA) in 1992;
- the addition of ‘forklift drivers’ to FEDFA’s eligibility rule in 1947 was contested and justified to the Industrial Registrar by FEDFA that it was for the purposes of ‘clarification’ rather than ‘enlargement’ in that forklifts were ‘basically engines or cranes’ that were already comprised in FEDFA’s constitution;
- it was recognised that FEDFA was a ‘craft organisation’ with members ‘found in in all industries wherein the generation or utilisation of power is an ordinary incident’ and that the proposed change did not involve any innovation;
- it was contended that FEDFA should be able to admit as members employees involving the ‘generation by a unit of power which is utilised by means of the unit itself’; [31]
- the Transport Workers’ Union (TWU) opposed the proposed change and contented that ‘[m]embers engaged in the transport industry load and unload vehicles and stack carted goods and the work of forklifts is closely allied to this work of loading unloading and stacking’;
- the Industrial Registrar concluded, by way of summary, that:
- the Industrial Registrar ultimately approved the proposed eligibility of the rule subject to the following proviso: ‘Provided that mobile crane drivers, operators of fork lifts and/or tow motors engaged on the waterfront upon work being that of a waterside worker or engaged in the transport of goods by road shall not be eligible for membership’.

Rule 2(E)(a) has since been amended such that the proviso above as referred to in DuluxGroup has been extended to exclude from membership eligibility ‘motor truck drivers wherever described’.

Findings in the Initial Decision following DuluxGroup

In the Initial Decision the Deputy President found that she was satisfied that the work of the Purported Member was to perform civil construction work, specifically to construct a light rail, and this was sufficient to satisfy her that the CFMEU was not eligible to represent the industrial interests of the Purported Member covered by the Proposed Agreement.[32] The Initial Application was dismissed on that basis in the Initial Application Decision.[33] It is apparent that the Deputy President sought to follow DuluxGroup[34] in arriving at that decision.[35]

In DuluxGroup[36] the Full Court of the Federal Court dealt with a finding of the Commission that the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), as it was then constituted, did not have standing to make an application for approval of an enterprise agreement because it was not entitled to represent the interests of a particular ‘Warehouse Operator’. In that matter the CFMMEU sought to rely on part of rule 2(E)(a) of its rules which referred to ‘forklift drivers’.

The Full Court of the Federal Court observed that the following principles of construction of eligibility rules such as rule 2(E)(a), were not in dispute:[37]

‘such rules are to be construed objectively, not narrowly nor technically, but rather

liberally’;[38]

‘the identity of the industry in respect of which the organisation is registered is not definitive of eligibility where the eligibility clause travels beyond the bounds of the industry in respect of which the organisation is registered, but where there is some ambiguity in the eligibility rule, recourse may be had to the industry rule to resolve the ambiguity’;[39]

‘in determining whether an employee is engaged in a particular calling or occupation, the relevant task involves a qualitative assessment of the primary purpose of the position. Put another way, the proper approach requires an assessment of the principal purpose or primary function for which the employee was employed’.[40]

In considering the CFMMEU’s submissions, the Full Court said:

‘A singular focus on text while eschewing consideration of context and the history of the rule is apt to mislead. Although the notion that anyone who drives a forklift for a significant proportion of their work activity is to be classified as a “forklift driver” has the attraction of simplicity, it is incongruent with the objectively ascertained intent of the rule when one considers the relevant context and history. As the Full Bench correctly recognised, since initial registration, “the FEDFA was established as a ‘craft union’ or, in more contemporary parlance, an occupational union”. When this is appreciated, the employment identified in the rule must be construed as a descriptor of an occupation.’[41]

The Full Court ultimately accepted that:

there was nothing intrinsic to the activity of forklift driving that suggests it has to be an exclusive duty;
the characterisation of the employee as a Warehouse operator was not determinative of occupation;
although it is a necessary condition for classification as a forklift driver that an employee operates a forklift for a substantial amount of their work time, it is not a sufficient condition;
on the undisputed facts, the employee had a range of activities, akin to those commonly associated with a storeman and packer and this was the purpose of his position within the context of his Employer’s business operation;
notwithstanding that the employee used a forklift to undertake those work activities, this did not mean he was a forklift driver as that term was used in the rule;[42]
the employee spent the vast bulk of his working time in control of forklifts but his purpose (and his role within the employer in that matter) was to work as a Warehouse Operator to perform of all tasks in connexion with the receiving, storing, picking and despatching of goods in the employer’s business (and, if required, to work flexibly in the paint manufacturing facility);
the driving or other use of forklifts was best seen as a function directed to the end of fulfilling the purpose of the employee’s job, which was to carry out his assigned tasks necessary for the operation of the warehouse.[43]

In finding that the employee was not a ‘forklift driver’ as contemplated by rule 2(E)(a) the Full Court of the Federal Court went on to say:

‘45 As the principles set out above demonstrate, when the task of identifying the employment identified in the rule is undertaken, it occurs in the context of the purpose of employment and the employer’s organisation of work. In the Appeal Decision (at [55]), the Full Bench fastened upon, and articulated the central question: Was Mr Lambert employed to drive a forklift so that he earns his wages by doing that, or whether he is employed to do something else? The Full Bench then went on to observe correctly that Mr Lambert will not be a “forklift driver” within the meaning of rule 2(E)(a) “merely because he drives a forklift in order to do what he is employed to do”.
46 The conclusion he earns his wages by being a Warehouse Operator and not as a forklift driver is not only consistent with the factual findings as to his range of activities and his work description, but also accords with both the context and history.
47 As to the context and history, when one legitimately has regard to the industry rule … consistently with the Full Court’s reasons in CSBP Limited, the scope of the eligibility rule is better understood. As the Full Bench recognised (at [56]), the CFMMEU’s approach would give eligibility “in respect of virtually any employee who operates a forklift to a significant degree in their employment”. Although it is to be construed objectively, the terms of the industry rule do not confirm the CFMMEU’s approach, but rather reinforce the focus of the rule on the occupation of persons “employed ... as drivers of ... any ... fork lift”. The terms of the rule are directed to the purpose of employment, which accords with the history of approval of the rule as explained above’.[44]

Approach to the construction of a union’s eligibility rules

In the Appeal Decision the Full Bench helpfully summarised the approach to the construction of a union’s eligibility rules, identifying the following principles:[45]

‘Interpreting the eligibility rules of a union and determining their application in a particular factual context is “a legal question to be solved by legal considerations”’.[46]
‘The essential task is to construe the words of the eligibility rules objectively and give the words used their ordinary meaning’.[47]
‘It is legitimate to have regard to the industry rule for the purpose of resolving doubt

as to the proper construction of the eligibility rule of a union,[48] understanding that the scope of the eligibility rule is not restricted by the scope of the industry rule’.[49]
and indefinite scope of operation[52] or to promote exorbitant claims to coverage’.[53]

‘The eligibility rules of a union are generally construed in a liberal or purposive manner,[50] but the approach of giving a broad or generous construction to a legal document has limits and the meaning of the words used remains a legal question and the ordinary meaning of the words used will generally be applied’.[51]
‘Eligibility rules will not be interpreted in a manner that would give the rule a wide

‘Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation – that is, they may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work’.[54]

AWU Submissions

The AWU submitted that Appendix B of the Proposed Agreement puts beyond doubt that the work to performed by employees covered by the Proposed Agreement will be performing work of the nature of civil construction.[55] The AWU submitted that the eligibility rules of the CFMEU do not provide the CFMEU with industry coverage in the civil construction industry[56] and the only avenue by which the CFMEU could be a bargaining representative for employees covered by the Proposed Agreement would be if it had relevant occupational rules for employees performing work under the Proposed Agreement.[57]

In its submissions he AWU referred to the matter of O’Connor v Setka[58]in which a Full Court of the Federal Court considered the structure and history of the CFMEU and observed that its present-day composition is the product of a series of amalgamations of which its rules were reflective.[59] In respect of Rule 2 of the CFMEU Rules, the Full Court of the Federal Court said:

“25. Rule 2, under the heading “Constitution”, contains a statement of those eligible to be members of the Union. It is extensive, 40 pages in length, and provides for 20 different principal categories of membership. It is apparent that the categories 14
reflect the membership eligibility clauses of the various amalgamating unions
which were, in effect, cut and pasted into the National Rules with each successive
amalgamation...”[60]

The AWU submitted that the only pre-amalgamation unions that had occupational coverage of employees in the civil construction industry was the Building Workers Industrial Union and FEDFA.[61]

Rule 2(E)(a) is indeed derived from the equivalent rule in the old constitution of FEFDA (FEDFA Rule) and in Re Coldham; Ex parte the Australian Workers’ Union[62]the High Court held that the equivalent FEDFA rule fell into three parts:

(a) all classes of listed drivers (i.e. engine, crane, mobile crane, forklift, tow motor, excavator, pile and motor drivers), firemen and pump attendants;
(b) attendants, greasers, cleaners, trimmers and any other workers assisting in and about the work incidental to any engine, boiler or machinery connected with the production or utilisation of power on land or any harbour or river; and

(c) boiler attendants attending boilers not generating steam for power purposes.

The AWU also noted that the FEDFA Rule was also extensively considered in Re John Holland Queensland Pty Ltd (John Holland) where the Commission said: [63]

“283. Whilst in submissions the AWU did not concede the 2 CW5 - Crane Operators; the 16 CW5 - Skid Steer Excavators; the 46 CW6 - Plant Operator Excavators not exceeding 3 cubic metres; or the 2 CW7 - Plant Operator Excavators from 3 cubic metres; they did not in Schedule A to their 6 May written submissions describe them as being in contest. Given that crane drivers and excavator drivers are specifically identified as occupations falling within the FEDFA, I am prepared for the purpose of the exercise of going through the numbers to identify those roles as eligible to test whether there is any prospect of the Applicant achieving a majority. The AWU did not contest the 6 Trade Qualified Tradespersons (Carpenter) so I will include that number with the engine drivers. I am conscious of the most recent Full Court decision endorsing the approach that the role must be an occupation in the context of the purpose of the employment and the employers organisation of work, and that is the basis that the AWU has not conceded the crane operators and excavator roles, even though they are specifically mentioned in the rule.

284. However, for the purpose of a mathematical exercise if it is assumed that the CFMEU gets to 72 I will explore where that leads. The other roles that it has been argued fall within the occupation of engine driver are described as follows:
“• 22 CW3 - Heavy Mobile Plant Operator (0-5T)
• 1 CW3 - Hiab Operator
• 22 CW3 - Road Roller Plant Operator under 12T
• 6 CW3 - Plant Operator/Telehandler (up to 4.5 T)
• 4 CW4 - Road Roller Plant Operator 12T and over
• 2 CW5 - Plant Operator - Mobile Concrete Pump Boom
• 5 CW5 - Plant Operator up to but not exceeding 48kw (65bhp)
• 37 CW5 - Plant Operator not exceeding 40T
• 3 CW6 - Heavy Mobile Plant Operator (>20-60T)
• 1 CW6 - Plant Operator Loader - Front End and Overhead from 48kw up to but not exceeding 370kw including 960, 966, 980
• 1 CW7 - Graders 140,143,14,16 with GPS
• 1 CW7 - Heavy Mobile Plant Operator (>60-100T)
• 1 CW8 - Heavy Mobile Plant Operator (>100T)”

285. None of the occupations in the dot points above are expressly named in the FEDFA rule. The first difficulty to arise is the question of whether driving the machines that are intended to be used by employees that are to be employed in the broad classification's descriptions by reference to various types of plant intended to be caught by the classifications, is engine driving. Whilst certain types of plant are better described than the generic “plant operator”, for example road roller, or grader, there has been no specific evidence about the particular plant other than the broad descriptors set out above.

286. The evidence is also not precise about the nature of what some of the plant is going to be to doing to assist in determining whether it is likely that operating that plant will be driving an engine within the meaning of the rule. I am inclined to the view that without more evidence on the issue it remains unclear particularly regarding the broad titles such as plant operator, or heavy mobile plant operator.

287. Even assuming that operating all of the plant could fall within the rule if the driving of the plant was the principal purpose of the driver's role, it is still necessary to determine whether the person who will operate the plant will be engaged by the Applicant for the principal purpose of “engine driving” as their occupation in the context of the employers organisation of work.”

I note that the John Holland decision was concerned with the proper construction of the introductory words to subparagraph (a) being an ‘unlimited number of all classes of engine drivers’. Excavator drivers are specifically identified as occupations falling within the FEDFA Rule and within the current CFMEU Rules.

The AWU prepared a table with respect to the ‘Construction Worker/Labourer Classifications’ in the Proposed Agreement which are referred to as ‘Civil Worker (CW)’ classifications in Appendix B.[64] In that table the AWU identified the following as having potential CFMEU coverage:

in respect of the CW3 classification a, ‘Ticketed Forklift Driver’ and ‘Telehandler (Up to 4.5T)’;
in respect of the CW4 classification, a ‘Sleeper gantry operator’;
in respect of the CW5 classification, a ‘Crane Operator (5-20T), a ‘Skid Steer Excavator up to but not exceeding 48kw (65bhp)’, a ‘Forklift not exceeding 48kw’ and a ‘Gantry Crane Operator’;
in respect of the CW6 classification, a Loader-Front End and Overhead from 48kw up to but not exceeding 370kw…’, a ‘Forklift from 48kw but not exceeding 220kw’ and an ‘Excavator not exceeding 3cubic metres’;
in respect of the CW7 classification, an ‘Excavator from 3 cubic metres’ and a ‘Loader-Front End and Overhead from 370kw up to but not exceeding 450kw’.

The AWU submitted, unless one of the six employees who was employed by the Employer and was covered by the Proposed Agreement was employed ‘as their principal or primary purpose’ in one of the occupations identified above, the CFMEU could not be a bargaining representative within the meaning of s.176 of the Act.[65] The AWU submitted that in the absence of probative evidence the Commission ought not be satisfied that the CFMEU is a bargaining representative for the Proposed Agreement.[66]

Consideration and findings

In the Appeal Decision the Full Bench said, citing Construction, Forestry, Mining and Energy Union v CSBP Ltd (CSBP) ,[67] that it is clear that rule 2(E)(a) is an occupational rule.[68] In this regard the Full Court of the Federal Court in CSBP said that rule 2(E)(a) confers an entitlement to membership by reference to occupations of employed persons, not by reference to the industry or enterprise of the employer.[69] The Full Court in CSBP went on to say:

‘Secondly, the circumstance that, in conformity with s 166(1) of the Act, the focus of the Eligibility Rule is upon the occupations of the employees covered by it as opposed to what s 166(1) contemplated it might have covered, but did not, namely the industry in which their employers are engaged, also means that the primary purpose test of employment is appropriate. In applying this test one does not focus upon one aspect of an employee’s work in isolation from the totality of his or her duties. Thus in Federated Engine Drivers & Firemen’s Union (WA) v Mt Newman Mining Co Pty Ltd (1977) 57 WAIG 794, Burt CJ observed in this regard at 794 that not every worker, who in doing the work which he is employed to do drives an engine, is an engine driver within the meaning of the rule. Rather:

... The question in any particular case is, I think, whether the worker is
employed to drive an engine so that he earns his wages by doing that, or whether he is employed to do something else. And if the answer is that he is employed to do something else then he is not an engine driver merely because he operates a machine and drives the engine of that machine so as to do what he is employed to do.[70]’

It is apparent that the Full Bench followed this logic in finding that it was appropriate to apply the primary purpose test in ascertaining whether an excavator operator employed by the Employer and covered by the agreement fell within one of the occupations listed in rule 2E(a).[71] I also consider it appropriate to apply this approach.

It is apparent from the Proposed Agreement’s coverage provisions that it covers employees employed by the Employer to perform work on the Project.[72] The Project is the same project referred to in the agreement subject of the Initial Application.[73] As noted above, it is a light rail project in Queensland.

It is declared in the Form F17B that the primary activity of the Employer is ‘Earthmoving’, consistent with the Form F17B filed in respect of the Initial Application.

It is apparent from the Proposed Agreement’s classification structure that the Proposed Agreement covers employees who are Excavator Operators, although their classification level under the Proposed Agreement will vary depending on the type of excavator operated.

In the Initial Application Decision, the Deputy President was satisfied that the Purported Member was engaged as an Excavator Operator based on the uncontested statement of Mr Nathan Stewart, the Managing Director or the Employer.[74] Mr Stewart’s brief statement of evidence in relation to the Initial Application indicated that:

in May 2023 the Employer was engaged to perform work at the Project;
the work the Employer had been engaged to perform by the principal contractor on the Project was earthmoving works using earthmoving machinery;
the three employees who commenced work at the Project were engaged as Excavator Operators and that the role title accurately described their purpose and duties;
based on the needs of the Project the Employer may need to support additional employees to the Project to work as Excavator Operators.[75]

Mr Stewart’s evidence in the proceedings concerning the Initial Application was uncontested, and in the Appeal Decision the Full Bench accepted that each employee was employed as an Excavator Operator and worked as such.[76] I do not consider that there is any basis to depart from the factual findings made by the Full Bench that the Purported Member was employed as an Excavator Operator in carrying out earthmoving works on the Project using excavators. This is the primary purpose of the Purported Member’s employment and there is no basis for a finding that the Purported Member is now employed to do something else. The facts surrounding the Purported Member are therefore to be distinguished from the ‘forklift driver’ employee in Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd[77] in which the Full Court of the Federal Court found that employee’s purpose (and his role within the employer in that matter) was to work as a Warehouse Operator and the purpose of his role was the performance of all tasks in connexion with the receiving, storing, picking and despatching of goods in the employer’s business (and, if required, to work flexibly in the paint manufacturing facility).

In the appeal of Initial Application Decision the Full Bench noted that there was no dispute before it that there was any distinction between an excavator operator and ‘excavator driver’, being the term used in rule 2(E)(a), and found that whether Excavator Operators employed by the Employer and covered by the Proposed Agreement are eligible for membership of the CFMEU is to be resolved in part by properly construing rule 2(E)(a).[78] I see no reason to depart from this approach in the current matter. Consistent with the findings of the Full Bench, I find that the Purported member is an Excavator Operator, this occupation is captured by the occupation of ‘excavator drivers’ in rule 2(E)(a) and that the Purported Member is therefore eligible for membership of the CFMEU.

Is the CEPU a bargaining representative for the Proposed Agreement?’

The AWU did not cavil with the proposition that the CEPU has the capacity to represent the industrial interests of employees covered by the Proposed Agreement employed in the ‘Plumbing and Mechanical Services Sheet Metal Worker Level’ classifications in Appendix B.[79] However the AWU pointed out that:

the Form F17B identified that the Employer’s primary activity is ‘Earthmoving’;[80]
the Form F17B identifies that the Award covers the Employer and any of the employees covered by the Proposed Agreement[81] but does not list the Plumbing and Firs Sprinklers Award 2023 (Plumbing Award) as a modern award that covers the Employer or any of the employees covered by the Proposed Agreement;[82]
the Form F16 application does not list the CEPU as a bargaining representative for the Proposed Agreement.[83]

The AWU submitted:

it appears unlikely that any of the six or fewer employees who voted on the Proposed Agreement would be employed by the Employer;[84]
an inference ought to be drawn that the CEPU was not a bargaining representative for any of the six employees who were employed by the Employer and who may or may not have voted on the Proposed Agreement.[85]

The CEPU has not been identified as a bargaining representative in the Form F16 and the CFMEU said the CEPU was not a bargaining representative when the Commission sought to clarify this matter. I accept that it is unlikely that an Employer whose primary activity is earthmoving would employ employees in the ‘Plumbing and Mechanical Services’ classification stream. Rather, and consistent with my earlier findings, the employees are Excavator Operators employed to carry out earthmoving works on the Project using excavator. I find that the CEPU is not a bargaining representative for the Proposed Agreement.
Has the Proposed Agreement been ‘signed’?

Section 185(2) of the Act provides that an application for approval of an enterprise agreement must be accompanied by:

(a)a signed copy of the agreement; and
(b)any declarations thar re required by the procedural rules to accompany the application.

Section 185(5) provides that the regulations may prescribe requirements relating to the signing of enterprise agreements. In this regard Regulation 2.06A of the Fair Work Regulations (Regulations) provides:

‘Bargaining representative must apply for FWC approval of an enterprise agreement--requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a)       it is signed by:
(i)       the employer covered by the agreement; and
(ii)  at least 1 representative of the employees covered by the
agreement; and

(b) it includes:
(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person's authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.

(3) Unless the representative of the employees covered by the agreement is an employee in a class of employees who will be bound by the agreement, the representative's signature is not taken to indicate that the representative intends to be bound by the agreement’.

The AWU submits that there are deficiencies in the signing of the Proposed Agreement.[86] because:

the CFMEU has signed the Proposed Agreement but is not a bargaining representative for the Agreement;[87]
the CEPU has signed the Agreement but is not a bargaining representative for the Agreement.[88]

The signatory page of the Proposed Agreement is found at Appendix F. It is not in contention that it is signed by the employer covered by the Proposed Agreement. The Proposed Agreement has been signed by the CFMEU. I have earlier found that the CFMEU is a bargaining representative for the Proposed Agreement and in those circumstances, I find that the Proposed Agreement has been signed by at least one representative of the employees covered by it. The signatory page includes the full name and address of each person who signs the agreement and an explanation of the person's authority to sign the agreement. I find that, in accordance with s.185(2)(a) of the Act the application for approval of the Proposed Agreement was accompanied by a signed copy of the Proposed Agreement.

Issues concerning the Notice of Employee Representational Rights (NERR)

The Notice of Employee Representational Rights (NERR) provided to employees states:

‘Fair Work Act 2009, subsection 174(1A)
Advanced Civil Group Pty Ltd gives notice that it is bargaining in relation to a single-enterprise agreement (Advanced Civil Group Pty Ltd Gold Coast Light Rail Stage 3 Project Agreement) which is proposed to cover employees that do building and construction and similar work and who are based in Queensland’.

Clause 1 of the Proposed Agreement deals with the Proposed Agreement’s scope and states:

‘1. Scope and application of the Agreement

1.1 This Agreement is made under the Fair Work Act 2009 (Cth) and those covered by this Agreement are:
1.1.1 Advanced Civil Group Pty Ltd ABN: (35638485328) (Employer);
1.1.2 Employees employed by Advanced Civil Group Pty Ltd on the Gold Coast Light Rail Stage 3 Project (Project) for which classifications and rates of pay are prescribed by this Agreement (Employees).
1.1.3 The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU); and
1.1.4 The Construction, Forestry, Maritime, and Energy Union (CFMEU)

1.2 This Agreement shall be read and interpreted wholly in conjunction with the Building Construction General On-site Award 2020 and Plumbing and fire Sprinklers Award 2020 to the extent this Agreement is silent. Where this Agreement is not silent, the conditions of this Agreement shall take precedence and apply to the full exclusion of the relevant provisions under the Award’.

The AWU submitted, by way of summary:

The Regulations stipulate that the NERR must contain the following content:

‘Fair Work Act 2009, subsection 174(1A)
[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].
…’[89]

In circumstances where the NERR must contain only the content prescribed by the Regulations and be in the form prescribed in Schedule 2.1, if the mandatory content of the NERR is inaccurate, the consequence is that the NERR is invalid.[90]
The NERR represents that the Proposed Agreement ‘is proposed to cover employees that do building and construction and similar work who are based in Queensland,’[91] this representation is inaccurate and had the real possibility to mislead the employees who voted on the Proposed Agreement to the conclusion that:

the work being performed is ‘general building and construction’ work as defined by the Award as opposed to ‘civil construction work’; and
the Proposed Agreement will apply to work performed through Queensland and is not limited to work performed on the Project.[92]

Providing inaccurate information in the ‘proposed coverage’ of the Proposed Agreement is not a minor procedural or technical error within the meaning of s.188(5) of the Act.[93]

Further, s.188(5) provides that the Commission would not be satisfied that employees were not likely to have been disadvantaged by the errors where the work covered by the NERR is inaccurately described and the geographic description of the area to be covered is significantly exaggerated.[94]
If the NERR is invalid, the Proposed Agreement cannot be approved by reason of s.188(4) of the FW Act.[95]
If the Commission is satisfied that the inaccuracies in the NERR do not invalidate the NERR, the inaccuracies are relevant considerations for the Commission’s assessment of whether the Proposed Agreement has been ‘genuinely agreed’ by the employees’[96] and weigh against the Commission concluding that the Proposed Agreement had been ‘genuinely agreed’ by the employees’.[97]

The CFMEU submitted that in the Appeal Decision the Full Bench accepted the CFMEU submissions about the NERR.[98] In this regard the Full Bench noted that the Deputy President regarded that the NERR was broader in scope than the agreement in the Initial Application and concluded that the deficiency could not be overlooked as a minor procedural error for the purposes of s.188(5) of the Act.[99]

On appeal, the CFMEU submitted that the Deputy President erred as to the NERR issue because there was no defect in the NERR. The Full Bench found that the scope of the Proposed Agreement described in the NERR did not render the NERR invalid because:

the scope of a proposed enterprise agreement is a legitimate matter for bargaining;
- the scope set out in the NERR does not determine or affect the scope of an enterprise agreement thereafter made;
- while casting the scope too narrowly in a NERR might lead to potential problems such as a failure to provide the NERR to employees, the same cannot be said in reverse and an employer who issues a NERR containing a broad scope for the proposed agreement may rely on that NERR to make an agreement with a narrower scope;[100]
- the Employer had issued a NERR with a broad scope but made an agreement with a narrower scope that fits wholly within the broader scope;
- while the agreement was concerned with civil construction work on the Project, civil construction is a form of construction and comfortably falls within the description of ‘building and construction and similar work’ found in the NERR.[101]

The relevant content of the NERR and coverage provisions of the Proposed Agreement remain as they were in documents lodged with the Initial Application.

I agree with the findings of the Full Bench that the scope of a proposed enterprise agreement is a legitimate matter for bargaining and that the scope of the proposed agreement as described in the NERR does not determine or affect the scope of an enterprise agreement.

In this matter the geographical coverage of the NERR, being Queensland, is broader that the ‘Project’ which is confined to a light rail project on the Gold Coast. To the extent that the NERR refers to ‘building and construction and similar work’, I do not consider there is a basis to understand this as a reference to ‘general building and construction’ work as defined by the Award or evidence that the employees have been misled to understand it as such. Civil construction is a form of ‘construction’ and fits within the broader description of coverage of the NERR, being ‘building and construction and similar work’.

I do however note that there are two classification streams in the Proposed Agreement including a ‘Construction Worker/Labourer’ classification stream and a ‘Plumbing and Mechanical Services’ classification stream. This appears to be a product of the use of a template project agreement, and I return to this issue further in this decision. I consider it unlikely that the Employer, whose primary activity is earthmoving and who has been engaged to perform earthmoving works on the Project using earthmoving machinery, would ever employ employees covered by the ‘Plumbing and Mechanical Services’ stream to work on the Project. In these circumstances, there is no risk of problems such as a failure to provide the NERR to employees who were employed at the notification time and who fall within ‘Plumbing and Mechanical Services’ classification stream as there are no such employees employed by the Employer.

Having regard to these matters, I find that no deficiencies arise in respect of the NERR that would render it invalid.

Do the employees who were requested to approve the Proposed Agreement by voting on it have a sufficient interest in its terms and are they sufficiently representative, having regard to the employees the Proposed Agreement is expressed to cover?

Relevant legislation and Statement of Principles on Genuine Agreement

Section 188(2) of the Act has the effect that the Commission cannot be satisfied that the Proposed Agreement has been genuinely agreed to by the employees covered by it unless the Commission is satisfied that the employees requested to approve the Proposed Agreement by voting for it:

(a)have a sufficient interest in its terms; and

(b)are sufficiently representative, having regard to the employees the agreement is expressed to cover.

A note appearing under s.188(2) states:

‘Note: In One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 (2018) 262 FCR 527, a Full Court of the Federal Court observed that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved.’

Section 188(1) of the Act provides that the Commission must take into account the SoPs made under s.188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by it.

Principles 17 and 18 of the SoPs relevantly provide:

‘Other matters considered relevant
17. In considering whether employees have a sufficient interest in the terms of an enterprise agreement as required by section 188(2)(a) of the Fair Work Act, and whether the employees are sufficiently representative as required by section 188(2)(b), the FWC may take into account:
(a) whether the employees entitled to vote on the enterprise agreement are to be paid the rates of pay provided for in the agreement, and
(b) the extent to which the employees entitled to vote on the enterprise agreement are employed across the full range of:
(i) classifications in the agreement
(ii) types of employment in the agreement (for example, full-time, part-time and casual)
(iii) geographic locations the agreement covers, and
(iii)industries and occupations the agreement covers.

18. An enterprise agreement will generally not have been genuinely agreed to by the employees covered by the agreement unless the agreement was the product of an authentic exercise in agreement-making between the employer(s) and employees in one or more enterprises, and the employees who voted for the agreement had an informed and genuine understanding of what was being approved.

AWU submissions

The AWU submitted:

in circumstances where the Proposed Agreement has 74 CW classifications and 10 Plumbing and Mechanical Services classifications yet there are only six employees employed by the Employer, it could not be reasonably argued that those employees have a sufficient interest in the terms of the Proposed Agreement and were sufficiently representative, having regard to the employees the Proposed Agreement is expressed to cover;[102]
that the Employer’s Form F17B for the Initial Application confirms that the ‘Access Period’ for the Proposed Agreement was commenced on the same day as the six employees were given the NERR, provides a strong inference that no authentic bargaining (or no bargaining at all) occurred and the process reflects “characteristics akin to individual bargaining than collective bargaining”.[103]

In support of its submissions, the AWU relied on the decision of the Full Court of the Federal Court in One Key WorkforcePty Ltd v Construction, Forestry, Mining and Energy Union (One Key) which said: [104]

‘149. Collective bargaining is a well-known process for resolving industrial disputes. It is recognised and promoted by conventions of the International Labour Organisation, principally the Right to Organise and Collective Bargaining Convention (No 98) (1949) (entered into force 18 July 1951), which Australia ratified on 28 February 1973. Collective bargaining, as a formal process for resolving industrial disputes, was introduced into federal industrial legislation by amendments made to the Industrial Relations Act 1988 (Cth) in 1994 by the Industrial Relations Reform Act 1993 (Cth). Simply put, collective bargaining is a process in which employees bargain with their employer as a collective, rather than as individuals. It is a process which is designed to overcome the power imbalance between an employer and an employee bargaining alone.

150. In relation to the setting of terms and conditions of employment, the Fair Work Act expresses a preference for collective bargaining and disapproval of individual bargaining. Individual bargaining for statutory employment agreements available under the Workplace Relations Act through the making of what were called “Australian Workplace Agreements” was not continued by the Fair Work Act. The legislative distaste for individual bargaining and individual agreement making is expressed in strong language in s 3(c) of the Fair Work Act, which states that individual employment agreements “can never be part of a fair workplace relations system”. The strong preference of the Fair Work Act for collective bargaining must logically be anchored in an acceptance of the proposition that collective bargaining has characteristics more likely to facilitate a fair workplace relations system than does individual bargaining.
151. An enterprise agreement made early in the life of an enterprise with two or three employees and before the employment of the much larger workforce necessary to operate the business of the enterprise is, in terms of the process by which it was made, far more likely to reflect characteristics akin to individual bargaining than collective bargaining. As the facts of this case demonstrate, there will be no bargaining with the collective of employees because, in substance, the collective is yet to be formed. In the absence of any real opportunity for employees to form an effective collective, the power imbalance will reflect that of individual bargaining. As the Full Court said in a similar context in Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (2011) 194 FCR 269 at [38]:
“If it were possible for an employer to choose any employees it wishes, and to
designate them as the employees in part of its single business with whom it wishes to make a collective agreement, the underlying purpose of promoting collective negotiation might be subverted.”

152. Still, it is abundantly clear that an enterprise agreement may be made with two or three employees and, in relation to a new enterprise, may be made as a non-greenfields agreement where some employees of the enterprise are already employed (see ALDI at [76]). That that should be so is not really surprising. Enterprises come in all shapes and sizes. Nor, as the High Court observed at [84] in ALDI, is it implausible for the legislature to have intended that a small group of employees should be able to fix the terms and conditions of employment of a larger group of employees who are later employed and covered by the enterprise agreement.

153. But it does not follow from the fact that agreement-making of that kind has not been prohibited by the Fair Work Act that the Act is unconcerned with agreement-making that may undermine or subvert its preference for collective bargaining. That concern, as the High Court observed in ALDI at [84] and [87], is addressed not by prohibition but by the Fair Work Act's “protective provisions”.

154. Section 186(3) (the “fairly chosen” requirement) is one example of such a “protective provision”. A primary purpose of this provision is to avoid the workforce of an enterprise being broken up into artificial employee groupings with the consequence that the workforce of the enterprise is unable to bargain as a single collective: see Aerocare Flight Support Pty Ltd v Transport Workers' Union of Australia [2018] FCAFC 74 at [19] (Jagot, Bromberg and Rangiah JJ). Another example of a protective provision referred to by the High Court in ALDI is the BOOT. Each of those provisions is an element of the approval process specified by Sub-division B of Part 2-4. Like those provisions, other provisions of that sub-division, including ss 186(2) and 188, have a protective purpose. That s 188 harbours a concern directed at agreements made by a small number of employees in circumstances where the agreement covers a wider range of employee classifications is confirmed by [824] of the Explanatory Memorandum which provides:
“Note that where an agreement covers a large number of classifications of employees in which no employees are actually engaged there may be a question as to whether the agreement has been genuinely agreed - see clause 188.”

155. Where employees working in few occupational classifications consent to an agreement which covers numerous other occupations or other occupations in many industries beyond their own, an explanation of the terms of the agreement and their effect may fall short of providing an adequate basis for the formation of genuine consent. The employees who voted may be indifferent to the impact of an agreement on other employees or prospective employees in occupational classifications outside their own training or experience. As Buchanan J observed in John Holland (Besanko and Barker JJ agreeing), in those circumstances the employees will presumably act out of self-interest (at [33]) with the possible result that “it may not be fair for an enterprise agreement made with three existing employees to cover a wide range of other classifications and jobs in which they may have no conceivable interest” (at [83]).
156. Therein lies the concern. The legislative objective of achieving “fairness through an emphasis on enterprise-level collective bargaining” could be undermined if the employees who vote on the agreement have no basis for appreciating its nature and terms. What is required by s 186(2)(a) is genuine agreement. To construe that requirement as mandating an informed and genuine understanding of what is being approved is consistent with the text of the provision (as defined) and accords with its underlying purpose.” addressed not by prohibition but by the Fair Work Act's “protective provisions” (AWU’s emphasis).

CFMEU submissions

The CFMEU submitted that there was nothing in the facts of the Current Application that demonstrated:

an absence of collective bargaining; or
a subversion of the making of a collective agreement; or
a lack of sufficient interest in the Proposed Agreement; or
an obvious disjunction between the content of the Proposed Agreement and the characteristics of those who entered into it.[105]

The CFMEU further submitted, citing Aldi Foods Pty Limited v SDA[106](Aldi) and One Key[107] that there was nothing in the scheme of the Act that prohibits a small group of employees from making an enterprise agreement with their employer that might cover a larger group of employees in the future.

The construction of s.188(2) and purpose toward which s.188(2) was directed

As noted above, the question that arises in this matter is whether the Commission is satisfied, in accordance with s.188(2) that the employees requested to approve the Proposed Agreement by voting for it:

· have a sufficient interest; and
· are sufficiently representative, having regard to the employees the agreement is expressed to cover.

Unless the Commission is satisfied of these matters, the Commission cannot be satisfied that the Proposed Agreement has been genuinely agreed to by the employees covered by it.

The use of the terms ‘sufficient’ and ‘sufficiently’ suggests that reaching the requisite state of satisfaction concerns a consideration of the degree or extent to which employees have an interest in the agreement and are representative of those employees covered or prospective employees to be covered by it. There is no legislated requirement that they be employed cross every classification set out in in an agreement.

The note appearing below s.188(2) of the Act provides an indication as to the purpose toward which s.188(2) was directed with reference to One Key[108] and the observation of the Full Court of the Federal Court that whether an agreement has been genuinely agreed involves consideration of the authenticity of the agreement of the employees, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved.

One Key[109] was concerned with circumstances where:

an agreement was made with three employees hired at different times over the preceding months;[110]
two of these employees worked in the coal mining industry and were covered by the Black Coal Mining Industry Award 2010, the third employee worked in the construction industry and was covered by the Building and Construction General On-site Award 2010 and there was no reason to think they had any interest in the effect of the agreement on employees working outside their respective industries;[111]
the employees the agreement intended to cover were employees of the employer, employed to work anywhere in Australia, and whose employment would be covered by 11 awards;[112]
two of the three employees who voted on the agreement were employed as casuals;[113]
there was no employee bargaining representative for the agreement.[114]

As noted by the AWU, the Full Court of the Federal Court said the following in the One Key decision:

‘155.Where employees working in few occupational classifications consent to an agreement which covers numerous other occupations or other occupations in many industries beyond their own, an explanation of the terms of the agreement and their effect may fall short of providing an adequate basis for the formation of genuine consent. The Employees who voted may be indifferent to the impact of an agreement on other employees or prospective employees in occupational classifications outside their own training or experience. As Buchanan J observed in John Holland (Besanko and Barker JJ agreeing), in those circumstances the employees will presumably act out of self-interest (at [33]) with the possible result that “it may not be fair for an enterprise agreement made with three existing employees to cover a wide range of other classifications and jobs in which they may have no conceivable interest” (at [83]).

156.Therein lies the concern. The legislative objective of achieving “fairness through an emphasis on enterprise-level collective bargaining” could be undermined if the employees who vote on the agreement have no basis for appreciating its nature and terms. What is required by s.186(2)(a) is genuine agreement. To construe that requirement as mandating an informed and genuine understanding of what is being approved is consistent with the text of the provision (as defined) and accords with its underlying purpose’.

The Full Court said, in finding that the Commissioner at first instance fell into jurisdictional error:

‘It is not readily apparent why the Commissioner was no longer troubled by his initial concern (raised in his email of 18 September 2015) about whether the agreement had been “genuinely agreed” to. It is clear, however, that the Commissioner did not believe he needed to consider whether, in the light of the small number of employees and the large number of awards, he could be satisfied that the three employees had understood the Agreement and its effect before casting their votes. On the face of the material before the Commission there was a vast disparity of occupational classifications as between those held by the three individuals who voted and the classifications covered by the Agreement. How it was that the three employees might be regarded as having had a sufficient appreciation of the appropriateness of the terms and conditions proposed for the disparate occupational classifications covered, including in industries foreign to their own, was not identified by the Commissioner as a factor relevant to the genuineness of the approval and was not the subject of his consideration. Whether the three employees had appreciated the terms and conditions provided for by the Agreement, beyond those of direct interest and relevance to them, and thereby “genuinely agreed” to its terms (not just those that directly affected them) should have been considered. As the primary judge held, the Commissioner’s failure to do that evinced jurisdictional error’.[115]

‘[74] I do not accept the proposition that electronic posting on Metime of SDA documents (or manual posting on a notice board at the workplace or provision of such documents at information sessions) satisfies the obligations on the applicant itself to provide such information. The applicant cannot come before Fair Work Australia saying it did not actually provide the information contemplated by s.180(5) of the Act, but the application should be approved because another organisation or person provided such information. It is irrelevant, in terms of satisfying the applicant’s own obligations for the purposes of s.180(5) of the Act, whether, for example, an officer of a union wishes to extol what he or she personally perceives as the benefits of an enterprise agreement and, in so doing, provides some summary of the terms of the agreement (as in the case of Exhibit 9-SDA15), and the applicant determined to post that commendation on Metime. Similarly, the minimalist brochure in Exhibit 9-SDA11, for South Australia, is bereft of any information which reasonably could be regarded as satisfying the requirements of s.180(5) of the Act – but nothing turns on that, because it was the applicant’s statutory responsibility to comply with s.180(5), not that of the South Australian Branch of the SDA.
[75] I do not consider the applicant’s own obligations under s.180(5) are somehow delegable in the way that has been adopted in this matter. If the applicant’s contention were to be accepted that it can rely on the SDA’s materials as having discharged its own responsibilities under s.180(5) of the Act, then there could be, by extension to other applications that may come before Fair Work Australia, some perverse outcomes. For instance, an employer could come to Fair Work Australia saying it had not provided any information whatsoever to employees proposed to be covered by an enterprise agreement, but the application should be approved because: (a) the employer was aware another organisation, such as a union, had provided a summary document for the information of employees/members in recommending a vote for or against a particular agreement; and (b) the employer was aware these union materials had been posted on the staff notice board or the union notice board at the workplace; or (c) the employer had, for example, allowed a union to disseminate its materials concerning the enterprise agreement on the internal email system at the workplace.
...

[79] I would dismiss the application as I have not been satisfied the requirements of s.180(5) of the Act have been met. The evidence does not support a conclusion the applicant properly discharged its own responsibilities concerning the provision of documentation such as might otherwise satisfy the requirements of s.180(5)(a) of the Act.’[148]

The Full Bench found, in an appeal of that decision that:

‘[29] These extracts reveal a number of errors. First, the Commissioner has not accurately stated the test under s 180(5)(a). The heading and introductory paragraphs of this aspect of the decision express the test as an absolute requirement to ensure particular outcomes are achieved. The section does not establish any such requirement. It requires only that the employer take reasonable steps to ensure that the terms and conditions are explained to employees. In misstating the test the Commissioner erred.
[30] Secondly there is no requirement in the Act that there be a full explanation of the terms of the agreement prior to the employer requesting employees vote on an agreement. The requirement in s 180(5)(a) is that the employer take reasonable steps to ensure that explanations are provided. Under s 180(1) the employer must comply with this requirement before requesting employees to approve an enterprise agreement. In our view these provisions do not preclude explanations being given during the access period. It is open to an employer to make arrangements for subsequent explanations prior to requesting employees to vote. If the arrangements are reasonable steps, s 180(5)(a) is satisfied.
[31] Thirdly there is no impediment in the Act to collaborate with bargaining representatives to provide relevant explanations. The Commissioner rejected certain explanations because they were given by the SDA. In some cases SDA documents were communicated by McDonald’s by electronic means. In our view the Commissioner was quite wrong to disregard these steps. In our view an employer would be taking reasonable steps to ensure terms are explained to employees if it collaborated with a bargaining representative to arrange for this to be undertaken.
[32] Considering the evidence for ourselves we are satisfied that the employer took reasonable steps to ensure that the agreement was explained to employees. The documents produced by the SDA and McDonald’s were comprehensive and detailed. They clearly satisfy the obligations of the employer. Again, we commend the collaborative approach of the parties.’[149]

As noted by the Full Court of the Federal Court in One Key[150] the purpose of the obligation imposed on employers by s.180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.

It is apparent from the Form F17B that the steps that the Employer is now seeking to rely on in satisfaction of s.180(5) are largely dependent on explanations provided by the CFMEU. In the circumstances of this matter, the Proposed Agreement is a detailed document and its terms out a comprehensive suite of entitlements and obligations. While the employees likely stand to benefit from the terms in the Proposed Agreement, it does not automatically follow that they had an informed and genuine understanding of what was being approved. I agree with the Full Bench in McDonald’s that there is no requirement in the Act that there be a full explanation of the terms of the agreement prior to the employer requesting that employees vote on it.[151] However, the particular circumstances in this matter warrant consideration. While the Form F17B filed in respect of the Initial Application explicitly referred to an existing agreement, the employees did not have an existing enterprise agreement in place and the Proposed Agreement would be their first enterprise agreement with the Employer. If the Proposed Agreement was to come into effect, it would likely affect their terms and conditions of employment in a substantial way. The steps taken and content of the explanation require consideration in this context.

Seeking the assistance of the CFMEU, as a bargaining representative with knowledge of the terms of the Proposed Agreement, to explain its terms and effect of the Proposed Agreement was a reasonable step. However, in consideration of whether the Employer has taken all reasonable steps, the Employer should have given further thought and direction as to the circumstances of its workforce and how that step would be executed. It is uncontroversial that employees were provided with a copy of the Proposed Agreement in advance of them voting for it and had access to this document for a considerable period. However, this is not in itself enough to satisfy the Commission that the steps in s.180(5) have been taken. Deputy President Masson found in relation to an enterprise agreement application:

‘[29] It is plainly apparent that the explanation of the terms of the Agreement, such as it was, was confined to the provision of a copy of the Agreement with an offer to employees to seek assistance from employee bargaining representatives if they were unsure or didn’t understand the terms of the Agreement. That approach falls well short of the requirements of s.180(5). The mere circulation of the Agreement is not an explanation of the Agreement at all let alone meeting the higher standard of taking all reasonable steps’.[152]

While the nature of the workforce is such that it is appropriate to explain content in plain and simple terms, the explanation provided by Mr Dunbar appears to have been in the form of a very ‘high level’ summary delivered on the day of the vote, and his evidence appeared largely based on his recollection of what he usually does in explaining an enterprise agreement. The evidence does not establish that Mr Dunbar explained:

the nominal expiry date and what the effect of the Proposed Agreement’s nominal term was;
the effect of clause 5 dealing with individual flexibility arrangements;
the consultation requirements in any real detail (including the circumstances in which the clause is to apply and when consultation is required);
the dispute resolution process beyond the right to appoint a representative;
the terms applicable to casual employees beyond a very high level summary of the casual conversion clause;
the span of hours (beyond an explanation that ordinary hours are 36 per week);
overtime rates applicable for working outside that span; the rates applicable to weekend work;
the ability of the Employer to direct employees to take annual leave;
the interaction between annual leave loading and shift loading; penalty rates that may be applicable for working public holidays;
which allowances may be relevant to the employees and the circumstances in which they would be paid (beyond his assertion that he would ‘go through the allowances’ and wouldn’t necessarily touch on clause 43.6);
or the classifications of relevance to the Excavator Operator employees.

Mr Dunbar’s explanation concerning crib breaks also appears to have been inaccurate or at the very least unclear when considering the content of clause 20. Unlike the situation in McDonald’s, there were no written explanations setting out further detail that the employees could access ahead of the vote.

I am not satisfied that the steps taken by the employer, considered objectively, were sufficient to enable the relevant employees to understand how wages and working conditions might be affected by voting in favour of the Proposed Agreement in circumstances where:

this was the first enterprise agreement that would apply to them;
the explanation provided in relation to the Proposed Agreement provided to employees on 26 July 2023 as described in the Form F17B accompanying the Initial Application references an ‘existing agreement’ that did not exist and is not and cannot be relied on;
the oral explanation in relation to the Proposed Agreement was provided on 23 July 2024 and occurred prior to the vote that same day such that there was a very narrow opportunity for employees to consider the limited oral information relayed to them before casting a vote; and
the Proposed Agreement sets out a comprehensive set of terms, it is apparent that many of these terms were not explained with a level of detail reasonably expected to support an understanding of those terms and there is no written record of the explanation that would suggest otherwise.

I am not satisfied that the Employer has taken all the reasonable steps that should have been taken in the circumstances.

For completeness, I note that Principle 19 of the SoPs provides:

19.If one or more employee organisations(s) acting as bargaining representative(s) for a significant proportion of the employees covered by the enterprise agreement:

(a)supports the approval of the agreement, and

(b)does not have concerns that the agreement was not genuinely agreed to by the employees covered by the agreement, then this should be given significant weight by the Commission in considering whether the agreement has been genuinely agreed.

The CFMEU does not have concerns that the Proposed Agreement was not genuinely agreed to and in a broader consideration as to whether the Proposed Agreement has been genuinely agreed this would carry significant weight however this does not overtime the statutory requirement in s.180(5).

Conclusion

I am not satisfied that the Applicant has taken all reasonable steps to ensure that the terms of the Proposed Agreement, and the effect of those terms, were explained to the employees employed at the time who will be covered by the agreement as contemplated by s.180(5) of the Act and I have found above that the non-compliance with s.180(5) cannot be remedied by s.188(5). As such, I am not satisfied that the Proposed Agreement has been genuinely agreed to by the employees covered by the Proposed Agreement as required by s.186(2) of the Act, the application is dismissed.

COMMISSIONER

Appearances:

Mr E. Dalgeish for the Construction, Forestry and Maritime Employees Union.

Mr G. Taylor for the Australian Workers’ Union.

Hearing details:

2024.
11 October, by video using Microsoft Teams.

[1] AWU Submissions at [4].

[2] Construction, Forestry and Maritime Employees Union [2024] FWC 9.

[3] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers’ Union, The [2024] FWCFB 246.

[4] AWU Submissions at [2].

[5] AWU Submissions at [3].

[6] AWU Submissions at [3].

[7] AWU Submissions at [6].

[8] Gold Coast Light Rail Stage 3 | GoldlinQ

[9] Construction, Forestry, Mining and Energy Union v Otswald Bros Pty Ltd [201] FWA 2484.

[10] Construction, Forestry, Mining and Energy Union v Otswald Bros Pty Ltd [201] FWA 2484 at [95] – [96].

[11] Form F17B, response to question 29.

[12] AWU Submissions at [25].

[13] CFMEU Submissions at [1].

[14] Construction, Forestry and Maritime Employees Union [2024] FWC 9 at [19].

[15] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers’ Union, The [2024] FWCFB 246 at [22].

[16] [2017] HCA 55.

[17] [2017] HCA 55 at [21].

[18] [2017] HCA 55 at [22].

[19] [2017] HCA 55 at [25].

[20] [2017] HCA 55 at [26].

[21] [2017] HCA 55 at [27].

[22] (1935) 54 CLR 387; [1935] HCA 79.

[23] [2017] HCA 55 at [32].

[24] [2017] HCA 55 at [40].

[25] [2017] HCA 55 at [45].

[26] AWU Submissions at [33].

[27] [2005] AIRC 622 at [13], [63].

[28] AWU Submissions at [34].

[29] AWU Submissions at [35].

[30] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101.

[31] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [39].

[32] [2024] FWC 9 at [23].

[33] [2024] FWC 9 at [23].

[34] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101.

[35] [2024] FWC 9 at [20] – [21].

[36] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101.

[37] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [27].

[38] In this regard the Full Court of the Federal Court cited, as the basis for this principle, R v Williams; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation [1982] HCA 68; (1982) 153 CLR 402 (at 407 per Gibbs, Mason, Wilson, Brennan, Deane and Dawson JJ),

[39] In this regard the Full Court of the Federal Court cited, as the basis for this principle, v Watson; Ex parte Australian Workers’ Union [1972] HCA 72; (1972) 128 CLR 77 (at 79 per Barwick CJ); R v Gough; Ex parte Municipal Offıcers’ Association Australia [1975] HCA 30; (1975) 133 CLR 59 (at 69 per Gibbs, Stephen, Mason and Jacobs JJ);

[40] In this regard the Full Court of the Federal Court cited, as the basis for this principle, Re Application by Prichard; Re Federated Clerks’ Union of Australia (SA Branch) (1985) 12 FCR 66 (at 77–78 per Gray J).

[41] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [42].

[42] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [43].

[43] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [44].

[44] Construction, Forestry, Maritime, Mining and Energy Union v DuluxGroup (Australia) Pty Ltd [2022] FCAFC 101 at [45] – [47].

[45] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers’ Union, The [2024] FWCFB 246 at [15]. The cases cited by the Full Bench from which these principles have been distilled are included.

[46] R v Aird; ex parte Australian Workers' Union (1973) 129 CLR 654, [1973] HCA 53 at 659; Re Australian Workers' Union.

Ex parte Construction Forestry Mining and Energy Union (2002) 120 FCR 527, (2002) 120 FCR 527 at [44].

[47] R v Williams; Ex parte Australian Building, Construction Employees’ and Builders Labourers’ Federation (1982) 153

CLR 402, [1982] HCA 68 at 408; Australian Manufacturing Workers’ Union v ResMed Limited [2014] FWCFB 3501 at [34].

[48] Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48, (2012) 212 IR 206 at [50]-[52];

Australian Manufacturing Workers’ Union v ResMed Limited [2014] FWCFB 3501 at [34].

[49] R v Gough; Ex parte Municipal Officers’ Association (1975) 133 CLR 59, [1975] HCA 30 at 69; Australian Manufacturing

Workers’ Union v ResMed Limited [2014] FWCFB 3501 at [34].

[50] R v Cohen ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, [1979] HCA 46 at 587; Re Electrical Trades

Union of Australia v Waterside Workers Federation of Australia (1982) 59 FLR 78, (1982) 1 IR 349 at 87; Australian

Manufacturing Workers’ Union v ResMed Limited [2014] FWCFB 3501 at [34].

[51] R v Aird; ex parte Australian Workers’ Union (1973) 129 CLR 654, [1973] HCA 53 at 659; Co-operative Bulk Handling

Ltd v Waterside Workers’ Federation of Australia [1980] FCA 141, (1980) 49 FLR 355 at 361.

[52] R v Gough; Ex parte Municipal Offıcers’ Association Australia (1975) 133 CLR 59, [1975] HCA 30 at 68-69;

Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48, (2012) 212 IR 206 at [52]-[53].

[53] R v Gough; Ex parte Municipal Offıcers’ Association Australia (1975) 133 CLR 59, [1975] HCA 30 at 68-69;

Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48, (2012) 212 IR 206 at [52]-[53].

[54] Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia [1980] FCA 141, (1980) 49 FLR 355 at

363-364; Australian Manufacturing Workers’ Union v ResMed Limited [2014] FWCFB 3501 at [34]

[55] AWU Submissions at [52].

[56] AWU Submissions at [39].

[57] AWU Submissions at [40], [51].

[58] [2020] FCAFC 195.

[59] AWU Submissions at [41] – [42].

[60] [2020] FCAFC 195 at [25].

[61] AWU Submissions at [44].

[62] [1984] HCA 62; (1984) 56 ALR 149 at [50].

[63] AWU Submissions at [50] with reference to Re John Holland Queensland Pty Ltd [2022] FWC 1524 at [238] to [297].

[64] AWU Submissions at [53], Table 1.

[65] AWU Submissions at [56].

[66] AWU Submissions at [59].

[67] Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48.

[68] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers’ Union, The [2024] FWCFB 246 at [16].

[69] Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48 at [41].

[70] Construction, Forestry, Mining and Energy Union v CSBP Ltd [2012] FCAFC 48 at [44].

[71] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers’ Union, The [2024] FWCFB 246 at [17].

[72] See clause 1.1.2 of the Proposed Agreement.

[73] Proposed Agreement, Appendix B, Construction Worker/Labourer Classifications, CW6 and CW7.

[74] Construction, Forestry and Maritime Employees Union [2024] FWC 9 at [19].

[75]Statement of Nathan Stewart dated 7 November 2023.

[76] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers’ Union, The [2024] FWCFB 246 at [18].

[77] [2022] FCAFC 101.

[78] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers’ Union, The [2024] FWCFB 246 at [14].

[79] AWU Submissions at [64].

[80] AWU Submissions at [65].

[81] AWU Submissions at [66].

[82] AWU Submissions at [67].

[83] AWU Submissions at [68].

[84] AWU Submissions at [65].

[85] AWU Submissions at [69].

[86] AWU Submissions at [71].

[87] AWU Submissions at [58] – [59], [62].

[88] AWU Submissions at [63].

[89] AWU Submissions at [74].

[90] AWU Submissions at [76].

[91] AWU Submissions at [78].

[92] AWU Submissions at [79].

[93] AWU Submissions at [80].

[94] AWU Submissions at [80].

[95] AWU Submissions at [81].

[96] AWU Submissions at [82].

[97] AWU Submissions at [82].

[98] CFMEU Submissions at [3].

[99] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers’ Union, The [2024] FWCFB 246 at [27].

[100] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers’ Union, The [2024] FWCFB 246 at [32].

[101] Construction, Forestry and Maritime Employees Union v Advanced Civil Group Pty Ltd and Australian Workers’ Union, The [2024] FWCFB 246 at [33].

[102] AWU Submissions at [90] – [91].

[103] AWU Submissions at [92].

[104] (2018) 262 FCR 527 at [157]

[105] CFMEU Speaking Notes citing Re KCL Industries Pty Ltd [2016] FWCFB 3048 at [31].

[106] Aldi Foods Pty Limited v SDA [2017] HCA 53 at [84].

[107] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [152].

[108] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [152].

[109] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [152].

[110] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [2].

[111] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [3].

[112] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [3].

[113] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [4].

[114] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [5].

[115] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [168].

[116] Re KCL Industries Pty Ltd[2016] FWCFB 3048 at [23].

[117] Re KCL Industries Pty Ltd[2016] FWCFB 3048 at [31].

[118] Re KCL Industries Pty Ltd[2016] FWCFB 3048 at [31].

[119] Re KCL Industries Pty Ltd[2016] FWCFB 3048 at [32].

[120] Re KCL Industries Pty Ltd[2016] FWCFB 3048 at [35].

[121] Re KCL Industries Pty Ltd[2016] FWCFB 3048 at [36].

[122] Re KCL Industries Pty Ltd[2016] FWCFB 3048 at [36] – [37].

[123] McMah Pty Ltd [2015] FWCA 253.

[124] CEPU v Main People Pty Ltd [2015] FWCFB 4467.

[125] CEPU v Main People Pty Ltd [2015] FWCFB 4467 at [24]

[126] Re KCL Industries Pty Ltd[2016] FWCFB 3048 at [39].

[127] Revised Explanatory Memorandum at [725], Re KCL Industries Pty Ltd[2016] FWCFB 3048 at [36]..

[128] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [155].

[129] Revised Explanatory Memorandum at [726].

[130] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [151] – [153].

[131] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [151].

[132] [2019] FWCFB 7599.

[133] Appeal by KCL Industries Pty Ltd [2016] FWCFB 3048.

[134] [2018] FCAFC 77.

[135] One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [155].

[136] AWU Submissions at [92].

[137] Revised Explanatory Memorandum to the Fair Work Legislation (Secure Jobs, Better Pay) Bill 2022 at [712].

[138] [2020] FWCFB 3438.

[139] [2019] FWCFB 4022.

[140] Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 at [94] – 109].

[141] Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services [2019] FWCFB 4022 at [65 – [68].

[142] Construction, Forestry, Maritime, Mining and Energy Union v Ditchfield Mining Services [2019] FWCFB 4022 at [65 – [69].

[143] [2018] FCAFC 77 at [112]-[117].

[144] (1933) CLR 228, 256.

[145] [2010] FWA 1347.

[146] [2010] FWA 1347 at [60].

[147] [2010] FWA 1347 at [60].

[148] [2010] FWA 1347 at [74], [75], [90].

[149] [2010] FWAFB 4602 at [29] – [32].

[150] [2018] FCAFC 77.

[151] [2010] FWAFB 4602 at [30].

[152] [2021] FWC 4672 at [29].

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