[2021] FWC 3483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mastermyne Underground Pty Ltd
(AG2021/3985)

COMMISSIONER JOHNS

SYDNEY, 16 JUNE 2021

Application for approval of the Mastermyne Underground Pty Ltd Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Mastermyne Underground Pty Ltd Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act) on 26 February 2021. The application was made by Mastermyne Underground Pty Ltd (Applicant/ Mastermyne/ Employer). The Agreement is a single enterprise agreement.

[2] Until it is replaced, the employees are covered by the Mastermyne Underground Pty Ltd Enterprise Agreement 2016 1(2016 Agreement). The 2016 Agreement passed its nominal expiry date on 23 March 2020. The Employer commenced bargaining when it issued a Notice of Employee Representational Rights (NERR) by email on 12 October 2020.

[3] The Agreement is largely a roll-over of the 2016 Agreement. The Agreement pay rates for full time employees are 18.76%-46.56% higher than comparative award rates. The Agreement offers wage increases of 1.5% on each anniversary of the Agreement during the nominal term.

[4] On 12 February 2021 14 of the employees eligible to vote voted to approve the Agreement.

[5] On 9 March 2021 I issued Directions, which programmed and provisionally listed the matter for hearing. I also provided the parties with the Commission’s administrative analysis of the Agreement (Commission’s Checklist). I explained that I had not formed any view about the matters in the Commission’s Checklist, but that I was providing it as a matter of procedural fairness.

[6] The Directions provided an opportunity for the Applicant to address any issues identified in the review of the Commission’s Checklist by way of filing further materials and/or the proffering of undertakings.

[7] On 23 March 2021, the Employer provided a response to the matters raised in the Checklist. It made submissions about the Commission’s Checklist. 2 It proffered no undertakings. To the extent that the Employee took issue with aspects of the Commission’s Checklist, for the most part, I agree with the Employer’s rebuttal analysis.

[8] On 25 March 2021, The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU/Union), who were a bargaining representative during negotiations for the Agreement, lodged a Form F18 – Declaration of employee organisation in relation to an application for approval of an enterprise agreement in which it indicated that it opposed the approval of the Agreement. In light of the opposition to the approval of the Application, it was necessary that the Directions remain in place, with both parties being afforded the opportunity to provide submissions and evidence, and the matter being set down for hearing.

The hearing

[9] A hearing in the matter occurred on 15 April 2021. The Applicant was represented by Mr M Connan, Solicitor of Herbert Smith Freehills. Being satisfied that the matter was invested with some complexity and that I would be assisted in the efficient conduct of the matter if permission to be represented by an external solicitor was afforded, I granted Mr Connan permission to appear pursuant to s.596 of the FW Act. 3 The Union was represented by Mr A Kentish, National Legal Officer.

[10] All the application documents, emails from the parties, and formal submissions and attachments filed, whether specifically noted or not, are before me in considering the application and the Union’s opposition to same. This includes the following:

Exhibit	Document title
1	Forms: F16 Application for approval of an Enterprise Agreement dated 26 February 2021
1a	• Mastermyne Underground Pty Ltd Enterprise Agreement 2020
1b	• Schedule 2.1 - NERR no date
2	Forms: F17 Employer’s Declaration in Support of an Application for Approval of and Enterprise Agreement dated 26 December 2020
2a	• Mastermyne Underground Pty Ltd Enterprise Agreement 2020 (Ballot Version)
2b	• Letter to Employees re EBA and how to Vote Instructions dated 3 February 2021
2c	• Outline of Changes and Explanation no date
2d	• How to Vote Instructions no date
3	CFMMEU Form F18 – Declaration of employee organisation in relation to an application for approval of an enterprise agreement dated 25 March 2021
4	Applicant’s Response to Concerns no date
4a	• Mastermyne Underground Pty Ltd Enterprise Agreement 2020
4b	• Mastermyne Underground Pty Ltd Enterprise Agreement 2020 (Ballot Version)
4c	• Email to employees re NERR dated 12 October 2020
4d	• Schedule 2.1 - NERR no date
4e	• Letter to Employees re EBA and how to Vote Instructions dated 3 February 2021
4f	• Outline of Changes and Explanation no date
4g	• How to Vote Instructions no date
4h	• Email to employees re Ballot Commences Midnight tonight dated 10 February 2021
4i	• Email from Wayne Price re Employee Ballot dated 3 February 2021
5	Applicant’s Affidavit of Shaun McKenzie dated 18 March 2021
6	Applicant’s F53 Notice that a person has a lawyer or paid agent dated 1 April 2021
7	CFMMEU Outline of submissions dated 30 March 2021
8	Applicant’s Outline of Submission in Reply dated 9 April 2021
8a	• Response to BOOT Contentions raised no date

The Issues

[11] In its submissions dated 30 March 2021, the CFMMEU set out the basis upon which it opposes the approval of the Agreement. It stated that the Commission could not be satisfied that:

“(a) The terms of the Agreement do not contravene s.55 of the Act (which deals with the interaction of the enterprise agreements and the National Employment Standards (“NES”): s.186(2)(c) of the Act. (NES Objection)

(b) The Agreement has been genuinely agreed to taking into account the requirement that all reasonable steps were taken to explain the terms and effect of the Agreement as required by s.180(5): s.188(1)(a)(i) of the Act. (Reasonable Steps Objection)

(c) The Agreement has been genuinely agreed to taking into account that there are other reasonable grounds for believing the agreement has not been genuinely agreed to by employees: s.188(1)(c) of the Act. In particular the aspects of the Agreement were inadequately explained or misrepresented in the material sent to employees in the access period. (Explanation Objection)

(d) The Agreement passes the better off overall test: s.186(2(d) of the Act. (BOOT Objection)” 4

[12] The views of each party on the above issues and my determination of each is set out below.

NES Objection

NES Objection - Union’s Submissions

[13] In their submissions, the Union stated:

“5. The Agreement contains a number of terms that appear inconsistent with the Applicant’s obligations under the Fair Work Act 2009 (“the Act”), including but not limited to clauses that, considered on their own terms, appear to exclude the National Employment Standards and therefore contravene s.55 of the Act. The effect of s.186(2)(c) of the Act is that for the Commission to approve an enterprise agreement, it must be satisfied that the terms of the agreement do not contravene s.55 of the Act (which deals with the interaction between the National Employment Standards and enterprise agreements).

6. In the paragraphs that follow, the CFMMEU identifies specific terms in the Agreement that on their face appear to contravene s.55 of the Act. The CFMMEU then makes submissions regarding the effect of those specific terms in the context of clause 2.5 of the Agreement, which in general terms deals with the interaction of all terms of the Agreement with the National Employment Standards. In drawing the Commission’s attention to such terms, the union will also, in particular in the case of several clauses that purport to allow deductions from pay, raise issues of concern in relation to section 323 of the Act.

Public Holidays

“Requirement” to Work

7. Several terms of the Agreement provide that employees will be required to work public holidays. In particular, the first sentence of clause 19 of the Agreement states that employees “will be rostered to work public holidays”. Subclause 12.3 of the Agreement purports to provide the employer the power to “require” an employee to “work on public holidays in accordance with your roster or other unforeseen circumstances”. While subclause 19.3 refers to an employee who “is required to work a day on which a public holiday falls”.

8. Section 114 of the Act does not allow employees to be required to work a public holiday. It provides that an employee is entitled to be absent on a public holiday. An employer may make a “request” that an employee work on a public holiday, but only if the request is “reasonable”. An employee is entitled to refuse the request if either “the request is not reasonable” or if “the refusal is reasonable”. The identified terms of the Agreement purport to:

(a) displace employees’ rights to be absent;

(b) remove the requirement that any request to work a public holiday be “reasonable”; and

No Payment if Absent the Day Before or After

9. Clause 19 of the Agreement states that an employee will not be entitled to be paid for being absent on a public holiday where:

“the Employee, without good and sufficient reason, fails to work on the Employee’s:

• last working day immediately before the holiday; or

• first working day after the holiday”

10. Clause 19 on its own terms is unambiguously intended to exclude payment for public holidays in the identified circumstances. The clause is directly contrary to sections 115 and 116 of the Act, which guarantee that an employee will be paid when absent on a public holiday, subject to the making of a reasonable request which is not reasonably refused that the employee will work that day. In no circumstances does the Act allow an employee not to be paid on a public holiday because they were absent on another day, regardless of the reason for that absence.

11. The CFMMEU submits that both clauses 12 and 19 of the Agreement, as they are expressed in the Agreement, purport to exclude National Employment Standards in a manner that would contravene s.55 of the Act and the union submits are matters properly to be considered by the Commission in accordance with s.186(2)(c) of the Act.

Deductions from Pay

Deductions from “Wages”

12. Clause 7.5 of the Agreement purports to provide that employees covered by the agreement authorise certain deductions to their “wages” be made. The clause is as follows:

“7.5 Deduction of monies

Wages will be paid subject to your authorised deductions as agreed with Mastermyne. You authorise Mastermyne to deduct from your Wages:

a) all taxes, payable by you;

b) all overpayments (if any, and after consultation with you);

c) any amount attributable to unauthorised absences, approved unpaid leave or monies owing to Mastermyne (after agreement); and

d) any other deductions authorised by you and agreed by Mastermyne or as required by law.

Any deductions made under clause 7.6 will otherwise be made in accordance with the Fair Work Act 2009 (Cth).”

13. On the wording of clause 7.5, all deductions which aren’t otherwise required by law appear to require actual agreement from the individual employee affected by the deduction, except for deductions for overpayments.

14. Section 323 of the Act requires that an employer pay the full amount in relation to the performance of work. While the Act makes allowance for particular deductions in s.324 of the Act, deductions made pursuant to the term of an enterprise agreement cannot be made without actual authorisation of the employee involved: see Application by Calvary Health Care Tasmania Limited [2013] FWC 908 (1 March 2013) at paragraphs [42] to [49]. It is not enough that an agreement purports to provide authorisation by the terms of a particular clause. If the applicant withholds money because of overpayment without the specific authorisation of an employee, as the clause purports to allow the Applicant, the Applicant will contravene s.323 of the Act, which is a civil penalty provision.

15. The CFMMEU accepts however, that notwithstanding the problematic nature of the clause, the Commission has found that clauses purporting to allow for a breach of s.323 of the Act is not a bar to the approval of the Agreement: see Radploy Pty Ltd T/A Lake Imaging [2011] FWA 39 at paragraphs [47] to [50] and again Application by Calvary Health Care Tasmania Limited [2013] FWC 908 (1 March 2013). The CFMMEU nevertheless submits that the term may be relevant as part of the circumstances when the Commission considers whether or not the applicant has taken all reasonable steps to explain the agreement under clause s.180(5) of the Act and to the consideration of the better off overall test under s.186(2)(d) of the Act.

Deductions for Clothing and Failure to Give Notice

16. Clauses 7.6 and 24.4 of the Agreement contain provision for deductions from “termination pay” that would appear to be similarly contrary to the Act in that they allow for deductions that have not been specifically authorised by an employee. Although with respect to clause 7.6, the intended effect the clause is presumably intended to be altered, in part, by of the final sentence of clause 7.5. The relevant sub-clauses provide:

“7.6 Clothing

...

b) Should you cease employment with Mastermyne prior to completing three (3) months of your probationary period from the order date, a deduction for the full cost of the items supplied to you will be made directly from your termination pay.”

“24.4 If you fail to give the requisite notice, the equivalent wages for the notice that should have been given will be deducted from your termination pay. An amount in lieu of notice will be calculated at the rate required by the Act, namely the amount that you would otherwise been entitled to, had you worked during the notice period.” (emphasis added)

17. Both clauses suffer from the same deficiencies with respect to s.323 and 324 of the Act as clause 7.5’s treatment of overtime payments. In its response to matters raised by the Commission, the applicant states in the table on page 2 that “the Award permits for deduction for notice not given”. The observation whilst pertinent to the better off overall test, which is the context in which it was made, does not however, deal with the issue of a potential breach of s.323 of the Act for the reason that matter can be included in an Award that cannot be included in an enterprise agreement under s.324.

18. To the extent that the clauses purport to allow a reduction to “termination pay” which may include monies payable for accrued annual leave entitlements, the clauses will also be contrary to s.90 of the Act: see the relevant discussion of the issue of NES entitlements and similar clauses in award in the Full Bench’s decision 4 yearly review of modern awards – Plain language re-drafting – Standard clauses [2018] FWCFB 3009 (13 June 2018) at paragraphs [60] to [62]. On their own terms, subject to the potential operation of clause 2.5, both clause 7.6 and clause 24.4 contravene the s.55 of the Act and are therefore necessarily a matter to be considered under s. 186(2)(c) of the Act. The clauses are also relevant as part of the circumstances when the Commission considers whether or not the applicant has taken all reasonable steps to explain the agreement under clause s.180(5) of the Act and to the consideration of the better off overall test under s.186(2)(d) of the Act.

Annual Leave

19. Clause 15 of the Agreement contains provisions going to the taking of annual leave. While the clause states that it “supplements” NES entitlements, in a number of respects the clause is clearly detrimental as compared to those entitlements. In particular:

(a) Section 88(2) of the Act provides that an employer must not unreasonably refuse a request by an employee that they take annual leave. Clause 15.2(c) of the Agreement provides that leave can only be taken by agreement with the applicant and in accordance with procedures that do not appear to be before the Commission. The Agreement, on its terms, therefore appears intended to exclude the obligation not to unreasonably refuse access to annual leave.

(b) The National Employment Standards provide no entitlement for an employer to direct an employee to take leave. However, section 93(3) of the Act allows an enterprise agreement to include terms requiring or allowing an employee to be required to take leave in particular circumstances, but only if the request is reasonable. The Agreement suggests that “ordinarily”, an employee will take leave “after completing 12 months of service” and that leave “should be taken within 12 months of it falling due”. However, the Agreement also provides the applicant with a right to direct employees to take annual leave at any time and in any circumstances, once an employee has more than one year’s leave accrued, noting that such accrual, it appears, is stated by the Agreement to be the “ordinary” position. The Agreement is not consistent with s.93(3) for two reasons: the taking of leave is not limited to particular circumstances (other than the employee has accrued above one years’ accrual) and there is no requirement for reasonableness. The effect of the Agreement’s terms is that an employee could be refused access to annual leave until they had accrued over 1 years’ accrual, indeed that appears to be expressly envisaged, and thereafter directed to take leave at times and in quantities that are of convenience to the operational needs of the applicant and without the need for agreement from the employee. In this way the Agreement is fundamentally at odds with the National Employment Standards with respect to the taking of annual leave.

Personal Leave

20. In the table titled “s.185 SINGLE ENTERPRISE AGREEMENT LEGISLATIVE CHECKLIST” the administrative staff of the Fair Work Commission have identified two issues with personal leave in clause 16.3 of the Agreement which, like the matters identified by the CFMMEU above, appear by the terms used in clause 16.3, and subject to the Commission’s view of the effect of clause 2.5, intended to create rights and obligations that contravene s.55 of the Act. Specifically, what is “satisfactory” evidence for the purposes of accessing is said to be “at the sole discretion of the Project Manager”. This appear to be detrimental as compared to the requirement that an employee provide “evidence that would satisfy a reasonable person” as contained in s.107(3) of the Act. Further, the requirement that notice of absence must be given prior to the commencement of shift is directly inconsistent with s.107 of the Act which states that notice be provided” as soon as practicable (which may be a time after the leave has started)”.

21. In its response to the issues raised by the Commission recorded in the table headed “Response by Mastermyne”, the applicant does not engage with the particulars of the issue, submitting only that “any concern is resolved by clause 2.5”.

22. Like the other matters addressed above, in addition to the issue regarding contravention of s.55, the clauses are also relevant as part of the circumstances when the Commission considers whether or not the applicant has taken all reasonable steps to explain the agreement under clause s.180(5) of the Act and to the consideration of the better off overall test under s.186(2)(d) of the Act.

Effect of NES Inconsistency Clause

23. The CFMMEU accepts that it is a fundamental tenant of the construction of enterprise agreements that terms within an agreement should be considered in the context in which they appear in the Agreement and that one term may affect the meaning of another in an enterprise agreement. It is significant therefore that the Agreement contains a clause that refers to the interaction of the Agreement with the National Employment Standards:

“2.5 The NES and this Agreement (including any schedule) contain the conditions of employment for Employees covered by this Agreement. Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply.”

24. As the Commission as constituted would be aware, sections 55 and 56 of the Act prohibit terms of an enterprise agreement excluding National Employment Standards and render any terms that contravene that prohibition of no effect. Notwithstanding those provisions, for an enterprise agreement to be approved by the Commission, the Commission must be satisfied under s.186(2)(c) of the Act that the terms of the agreement do not contravene section 55 of the Act. For the reasons provided above, the union submits that specific terms in the Agreement do directly contravene s.55. Further, notwithstanding clause 2.5 it would be unlikely, for example, that by including the terms of clause 19 in the Agreement, the employer did not intend that the agreement have the effect that an employee who was absent without “good and sufficient” reason the day before a public holiday would be paid for the public holiday. Nor that employees would not be required to work on public holidays. Nor, it is submitted, could the applicant reasonably be taken to have intended that any of the other clauses which on their terms are directly inconsistent with the National Employment Standards have no effect whatsoever. It is indicative, for example that when clause 24.4 of the Agreement was raised by Member Assist that in its response on page 2 of the table of responses provided to the Commission, the applicant appears to indicate that the clause has application and will be applied.

25. Unless the Commission is satisfied that the application of clause 2.5 means that the specific clauses identified that would otherwise contravene s.55 have no application in accordance with the ordinary meaning of the language contained in those specific terms, the union respectfully submits that, without some form or specific undertakings addressing the subject matter of those clauses, the Commission could not be satisfied that the requirement of s.186(2)(c) of the Act has been met. Should the Commission be satisfied that the effect of clause 2.5 is to remove the impugned application, the CFMMEU submits that the content of the clauses are nevertheless relevant to other aspects of the approval process, in particular whether all reasonable steps were taken to explain the terms and effect of the Agreement under s.180(5) of the Act and whether the Commission has other reasonable grounds to believe that the agreement has not been genuinely agreed.”

NES Objection - Employer’s Submissions

[14] In their submissions, the employer stated:

“(2) NES precedence clause

5. The NES precedence clause addresses any alleged concern.

6. To the extent that the Commission has concerns with the wording within the Agreement clauses raised by the CFMMEU, considered in isolation, the NES precedence (clause 2.5) provides assurance that the Agreement’s terms do not contravene the NES. It provides:

‘The NES and this Agreement (including any schedule) contain the conditions of employment for Employees covered by this Agreement. Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply.’

7. The CFMMEU is effectively asking the Commission to review particular clauses of the Agreement in isolation, for the purpose of assessing NES compliance. Such an approach is contrary to well-recognised principles that apply to interpreting enterprise agreements.

8. Regard must be had to the context and purpose of the provision or expression being construed and the commercial and legislative context. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It may extend to the entire document of which it is a part or to other documents with which there is an association.

9. In this instance, the terms of the Agreement must be construed in the context of clause 2.5 of the Agreement, which makes clear that NES is not excluded by the Agreement and takes precedence to the extent of any inconsistency.

10. The operation of a similar NES precedence clause was considered by Hatcher VP in Mondelez Australia Pty Ltd, who was applying Full Bench authority, in the context of annual and personal leave terms of an agreement. His Honour observed at [19] – [20]:

‘Although clause 24 of the Agreement expresses the personal/carer’s leave entitlement in terms of hours, and therefore (particularly in the case of 12 hour shift workers) might, considered in isolation, result in some employees receiving less that their NES entitlement under s 96(1) (as interpreted in RACV v ASU), clause 3 requires any more beneficial provision of the NES to “take precedence” where there is an inconsistency between the Agreement and the NES. Therefore, to the extent that clause 24 might lead in some circumstances to a shortfall in the personal/carer’s leave entitlement under the Agreement as compared to the NES, clause 3 would require this to be “topped up” to the level of the NES entitlement. That is, on any view of s 96(1), the Agreement does not exclude the NES in respect of personal/carer’s leave, and there is no impediment to its approval on that score under s 186(2)(c), nor is any undertaking required to address that issue.

[20] My conclusion in this respect is consistent with the approach taken to the enterprise agreement there under consideration in RACV Road Service Pty Ltd v ASU (2).15 The Full Bench in that matter said:

“[17] We accept RACV’s submission that clauses 15.1(a)-(c) and 16.1(a)-(b) of the Agreement are to be interpreted as operating subject to the last paragraph of clause 4 of the Agreement. The effect of clause 4 is that no provision of the Agreement, in its operation, may lead to a result whereby any employee receives less than his or her entitlements under the NES. The practical effect of clause 4 is therefore that RACV must “top up” the entitlement of an employee in any case where there would otherwise be a detrimental outcome when compared to the NES. Therefore, on the annual leave example set out in paragraph [88] of the initial decision and the personal/carer’s leave examples set out in paragraph [89], no shortfall compared to the NES could occur because clause 4 of the Agreement requires RACV to make good any potential shortfall that might arise. There is no exclusion of the NES to which s.56 of the FW Act might apply because clause 4 ensures, as RACV submitted, that the Agreement is “self-correcting” vis-à-vis the NES.’

(Emphasis added)

11. The proper interpretation of the Agreement, in light of clause 2.5, is that where a term of an Agreement might in some cases result in an outcome contrary to the NES, then clause 2.5 will operate to supplement that term, to meet the NES requirement.

12. As observed by Hatcher VP, an undertaking is not required to achieve this legal effect – it is required on the terms of the Agreement as voted up by employees.

13. In any case, the CFMMEU’s assertions that Mastermyne’s ‘intention’ as regards certain clauses is inconsistent with the NES, and that Mastermyne may apply the Agreement in a manner inconsistent with the NES 5, have no basis.

14. The legal effect of clause 2.5 of the Agreement, is to create a legal obligation under the EA, which if breached would a contravention of the enterprise agreement under s 50 of the Fair Work Act 2009 (Cth) (FW Act). It could be subject to civil penalties if this were to occur. The recent observations of DP Boyce in this regard are apposite:

‘[129] Employees may raise a dispute under the proposed enterprise agreements if they have concerns as to non-compliance with the NES. They may also (if eligible) make a claim for unfair dismissal if they consider they have been terminated unfairly in connection with an NES entitlement. All employees are of course protected by Part 3-1 of the Act should adverse action be taken against them because of the exercise or proposed exercise of a workplace right (e.g. a workplace right arising under Part 2-2 of the Act). Employees (or their union representative) may also apply for pecuniary penalty orders in relation to contravention of the NES (s44). I therefore work on the basis that given these highly protective remedial provisions available to employees, and the operation of ss 44 and 56 of the Act, any alleged contravention or inconsistency with the NES must be clear and unambiguous (on a reading the terms of the proposed enterprise agreements as a whole).

15. Mastermyne is required and will continue to apply the Agreement according to its terms to apply it in a manner consistent with the NES.

16. On the above basis, Mastermyne submits that the Commission can be satisfied that the Agreement do not contravene section 55 of the FW Act regarding NES compliance for the purpose of the approval pre-requisite in s 186(2)(c) of the FW Act.

(3) Requests to work public holidays

17. The CFMMEU alleges that clause 19 of the Agreement contravenes s 114 of the FW Act because the Agreement purports to provide the employer the power to “require” an employee to “work on public holidays in accordance with your roster or other unforeseen circumstances”.

18. It alleges this

(b) displaces employees’ rights to be absent;

(d) removes the ability for an employee to refuse to the request where that refusal is reasonable.

19. This clause has never concerned the CFMMEU before. It has been in the previous agreement for over 4 years. Neither the union nor any employee has ever expressed a concern that the clause has not been properly applied.

20. Section 114 of the FW Act provides that an employer may request an employee to work on a public holiday if the request is reasonable, which may be refused if the request is not reasonable or the refusal is reasonable. The FW Act does not require that the details of the request must be contained in an enterprise agreement.

21. The Agreement is consistent with s 114 of the FW Act, when construed in its industrial context. 8 When a person applies for employment with the Mastermyne, they are informed that the Mastermyne’s client’s operations are 24/7 and that if employed, the candidate will be required to work a set roster. Employees appreciate that working on a public holiday is normal in the coal mining industry.

22. Additionally, employees appreciate that work is continuous 24/7 for each year and therefore the Mastermyne needs them to work on some public holidays. The letter of offer, which each employee has accepted, specifies the roster that they work, and the remuneration they receive in compensation for the additional hours it involves, including for work on public holidays.

23. The process that Mastermyne has followed with its letter of offer is in effect a request to each employee that they work on any public holiday that falls during their rostered time on. The request is reasonable in the circumstances of the employees’ remuneration, the nature and history of the industry, the nature and history of the employees’ engagement with Mastermyne, and the Mastermyne’s contractual obligations to its clients. Each employee has accepted the request by agreeing to the letter of offer and accepting employment with Mastermyne. They have not refused the request, which is understandable as this is a normal feature of employment in the coal mining industry.

24. The industrial context outlined above to coal mining work is clear from the Black Coal Mining Industry Award 2010 (Award), which would apply to the employee cohort if no enterprise agreement covered them. This Award, just as the proposed EA, anticipates that employees will work public holidays, and provides that a loading of 200% of the ordinary hourly base rate of pay is payable in those circumstances for ordinary hours, and a loading of 300% for overtime hours. 9 Mastermyne pays the employees base hourly rates significantly above the Award, and offers loadings for public holiday work that are equivalent to the Award percentages. 10

25. The practical effect of the CFMMEU’s pro1p9o9sed construction of s 114 of the FW Act would require each public holiday to be treated separately. This would require employers of employees performing continuous shifts to ask every employee whether they are prepared each public holiday which falls within their roster, even where they have committed to working that roster, and receive remuneration which compensation them for working public holidays. This would be impractical and not intended by the NES. There has not been any case law under s 114 of the FW Act which has held that that section should be applied as submitted by the union. Indeed there is ample authority to the contrary in the context of the coal mining industry.

26. In any event, the Agreement clearly contemplates that there might be instances where an employee may refuse to work a public holiday that falls within their rostered on duty time, and where that request may be accommodated, through the following Agreement clauses:

(a) the ability to transfer public holidays under clause 19.1;

(b) the payment mechanism for public holidays not worked, which would have otherwise been a work day for an employee, under clause 19.2; and

(c) the NES precedence clause 2.5, which requires Mastermyne to have regard to s 114 of the FW Act in managing public holiday work.

(4) Public holidays – payment

27. The CFMMEU has raised concern with clause 19.2 of the Agreement, which provides that where “the Employee, without good and sufficient reason, fails to work on the Employee’s:

(a) last working day immediately before the holiday; or (b) first working day after the holiday” they will not be entitled to pay for the public holiday that immediately follows that absence.

28. Again this clause has never concerned the CFMMEU before. It has been in the previous agreement for over 4 years. Neither the union nor any employee has ever expressed a concern that the clause has not been properly applied. This is unsurprising given Clause 19.2 of the Agreement unambiguously replicates clause 27.3 of the Award.

29. Now it is specifically alleged that this is u2n0a0mbiguously intended to exclude payment for public holidays in the identified circumstances, in a manner contrary to sections 115 and 116 of the FW Act.

30. The Commission has found on multiple occasions the language of this provision does not exclude the NES, in the context of public holiday pay benefits provided for by the Award and equivalent enterprise agreement provisions.

31. To the extent there is residual concern regarding NES compliance in respect of individual employee’s circumstances, clause 2.5 of the Agreement makes clear that the NES is not excluded and will apply to the extent of any inconsistency.

(5) Annual leave

32. The CFMMEU asserts that clause 15.2(c) of the Agreement provides that leave can only be taken by agreement with Mastermyne, and in accordance with procedures that do not appear to be before the Commission. It contends that the Agreement, on its terms, therefore appears intended to exclude the obligation not to unreasonably refuse access to annual leave under s 88(2) of the FW Act.

33. The language of this submission by the union is pertinent given, again, this clause has never concerned the CFMMEU before. It has been in the previous agreement for over 4 years. Neither the union nor any employee has ever expressed a concern that the clause has not been properly applied.

34. There is no basis for the CFMMEU’s assertion in this regard. Clause 15.2(c) of the Agreement is reflective of the language in s.88(1) of the FW Act, which provides for the taking of leave by agreement.

35. Clause 2.5 of the Agreement also provides the Agreement will be read alongside the NES, which incorporates the requirement to not unreasonably refuse to agree to a request by the employee to take paid annual leave under s 88(2) FW Act.

36. Plainly s 88(2) of the FW Act can comfortable coexist with clause 15.2(c) of the Agreement – this is reflective of the the structure of the NES entitlement itself. Much was found by Boulton SPD in ALDI Foods Pty Ltd

“It is noted that an employer is under an overriding obligation, as provided by s.88(2), not to “unreasonably refuse” to agree to a request to take annual leave. The terms of clause 19 of the Minchinbury Agreement do not preclude such agreement by ALDI, even in relation to peak operational periods. There is no evidence or material before me to warrant a conclusion that the obligation in s.88(2) of the Act will not be observed in the case of the Minchinbury Agreement.”

37. Any policies and procedures that sit outside the Agreement cannot derogate from the Agreement’s terms, or that of the NES.

38. The CFMMEU also asserts that the Agreement is not consistent s 93(3) of the FW Act. 16 Section 93(3) of the FW Act permits an enterprise agreement to include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable.

39. The CFMMEU advances its concerns regarding the Agreement on two grounds:

(a) the taking of leave is not limited to particular circumstances (other than where the employee has accrued above one years’ accrual); and

(b) there is no requirement for reasonableness.

40. The CFMMEU further alleges that the effect of the Agreement’s terms is that an employee could be refused access to annual leave until they had accrued over one years’ accrual, and thereafter directed to take leave at times and in quantities that are of convenience to the operational needs of the applicant, and without the need for agreement from the employee.

41. The Agreement is compliant with s 93(3) of the FW Act and the NES, and the CFMMEU’s submissions are untenable for the following reasons:

(a) section 93(3) of the FW Act permits an enterprise agreement term to contain provisions on directing leave ‘if reasonable’. This does not require the relevant term to use the language of ‘reasonable’ as an express caveat. Rather the assessment is whether , in substance, the term is reasonable. For the reasons set out below, the Commission can be so satisfied;

(b) the Agreement uses the language that leave should ‘ordinarily’ be taken after one years’ service. The language of ‘ordinarily’ is not an absolute requirement. It’s plain and ordinary meaning is, ‘usually… to the usual extent.’ 19 Similarly the language that an employee ‘should’ take leave within 12 months of it accruing is not mandatory – it indicates advisability. 20 Particularly when read in the context of clause 15.2(d) of the Agreement, which contemplates employees may have over one years’ worth of leave accrued (and noting these provisions were carried over from the Mastermyne Underground Pty Ltd Enterprise Agreement 2016 (2016 Agreement)). This language comfortably allows for assessment of individual circumstances, and so is reasonable;

(c) the proviso that Mastermyne will not direct an employee to take any accrued but untaken annual leave above one year’s accrual (175 hours / 5 weeks for a full-time employee and 210 hours / 6 weeks for a seven day roster employee) is entirely reasonable, when considered against the Award, which similarly requires the residual leave balance for excessive leave directions to be 6 weeks 21; and

(d) to the extent the Commission has remaining concerns, the NES precedence requirement in clause 2.5 makes clear that leave requests will be assessed in accordance with the NES.

(6) Personal leave

42. The CFMMEU re-iterates two concerns raised by the Commission in relation to the Agreement’s personal leave provisions, which Mastermyne has previously responded to:

(a) the requirement that notice of absence must be given prior to the commencement of shift (clause 16.3(a) of the Agreement) is directly inconsistent with s 107 of the FW Act which states that notice be provided as soon as practicable (which may be a time after the leave has started); and

(b) what is “satisfactory” evidence for2t0h3e purposes of accessing is said to be “at the sole discretion of the Project Manager” (clause 16.3(b) of the Agreement). This appears detrimental as compared to the requirement that an employee provide “evidence that would satisfy a reasonable person” as contained in s 107(3) of the FW Act.

43. Intention of clause 16.3(a) of the Agreement is to ensure wherever possible that leave absences are notified before a shift commences. It acknowledged that this operates alongside s 107(2) of the FW Act, which provides notice may be given, ‘as soon as practicable (which may be a time after the leave has started).’

44. As regards the discretion afforded to the Project Manager on the kind of evidence received, s 107(3) of the FW Act recognises an employer has a level of discretion as to the type of evidence it requests, provided that it accepts evidence that would satisfy a ‘reasonable person’.

45. Mastermyne re-iterates its response to the Commission dated 23 March 2021 that any concern that the Commission has with the manner in which Mastermyne might apply the above Agreement terms is resolved by s 2.5 of the Agreement, which makes clear that clause 16 of the Agreement will be read alongside the NES.

46. However, if it resolves the issue, Mastermyne is prepared to offer undertakings to address these concerns with clause 16.3 of the Agreement to the effect that:

(a) “For the purpose of clause 16.3(a) of the Agreement, notice must be given to Mastermyne as soon as practicable (which may be a time after the leave has started) if an employee is unable to notify their absence prior to the commencement of their first absent shift.”

(b) “Where the Project Manager exercises discretion for the purpose of clause 16.3(b) of the Agreement, they must exercise that discretion in a reasonable way in accordance with s 107 of the Fair Work Act 2009 (Cth).”

(footnotes omitted)

NES Objection - Consideration

[15] The Union contends that the Agreement contains a number of terms that “appear inconsistent the Applicant’s obligations under the Fair Work Act 2009, including, but not limited to clauses that … appear to exclude the National Employment Standards.”

[16] Clause 2.5 in the Agreement is an effective NES precedence clause. And so while I might prefer that clause 2.5 be drafted differently 5, in its current form it is not an impediment to approving the Agreement. The NES is not excluded by any terms in the Agreement.

[17] For the same reasons that Hatcher VP outlined in Mondelez I am satisfied that the NES precedence clause means that the NES is not excluded by operation of any of the clauses of the Agreement. While I might prefer specific undertakings for the avoidance of doubt and to provide greater clarity about the operation of specific clauses, the fact that Mastermyne has not provided specific undertakings, but rather relies upon the NES precedence clause is not an impediment to approval of the Agreement.

Reasonable Steps Objection

Reasonable Steps Objection - Union’s Submissions

[18] In their submissions, the Union stated:

“26. For an agreement to be found to have been genuinely agreed to, section 188(1) of the Act requires that the Commission consider, amongst other things, whether the Commission has met with the pre-approval step contained in s.180(5) of that Act, that is, whether all reasonable steps have been taken to ensure that:

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

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

27. The CFMMEU submits that the Commission could not be satisfied that the Applicant took all reasonable steps to explain the terms of the agreement and the effect of those terms for the reasons that are detailed in paragraphs below.

Presentation of Agreement for Consideration

28. In a cover letter dated 3 February 2021 and signed by Wayne Price, Executive General Manager NSW Mining, which has been provided to the Commission by the applicant, the applicant begins by announcing that it “presents” the Agreement to employees for their consideration and approval by ballot. The third paragraph is as follows

“What does it mean for me:

• Existing employees while engaged at Tahmoor on the current contract will receive a 1.5% wage increase on their existing base rate and annual increases of 1.5% for the 4 year life of the Agreement.

• No change to the existing $450/wk bonus at Tahmoor for current employees.

• Total benefits of site rate, wage escalations and bonus level in line with our competitors.”

29. It is respectfully submitted that the word “it” used in that context “What does it mean for me”, could only be a reference to the Agreement and that the communication significantly misrepresents the terms and effect of the Agreement in at least 3 ways. First, the Agreement does not provide that employees engaged at Tahmoor on “the current contract” will receive a 1.5% wage increase on their “existing base rate” and annualised increases of 1.5% for the 4 year life of the Agreement. The employees engaged at Tahmoor, who made up the entirety of the voting cohort, have an “existing base rate” higher than the rates contained in clause 8 of the Agreement. For example, the CFMMEU understands that an Experienced Underground Mineworker at Tahmoor currently receives $38 an hour, which is higher than the $37 contained in the Agreement, while an Experienced Underground Tradesman receives approximately $40, again above the $39 in the Agreement. The Agreement does not guarantee the existing rates above Agreement rates, nor provide increases for those rates at all.

30. Secondly, the Agreement does not provide that there will be “no change to the existing $450/wk bonus at Tahmoor for current employees”. On bonuses the Agreement provides at clause 8.4 “Mastermyne may elect at its sole discretion, to pay a productivity bonus in accordance with production, safety, conduct and efficiency targets.” The CFMMEU submits that the Commission could not be satisfied that “all reasonable steps” had been taken to explain the terms of the Agreement and its effect in circumstances where the effect of the Agreement has misrepresented a benefit to employees worth $450/wk.

31. Thirdly, the explanation also mispresents the content and effect of the Agreement when it suggests that it contains “Total benefits of site rate, wage escalations and bonus level in line with our competitors”. The Agreement contains no payment of a “site rate”. Rather at clause 8.3 it provides “[t]he rates of pay and the increases set out in this clause of the Agreement are minimum rates of pay and increases only. Mastermyne may elect at its sole discretion, to pay the Employee higher rates of pay at any time.” Similarly, there is no provision stating that “bonus level” will be paid in line with competitors, or indeed be paid at all.

Clauses Contradicting NES

32. As the CFMMEU submitted above in paragraphs [5] to [25], the Agreement contains several clauses that purport, on their terms, to have an effect that would exclude the National Employment Standards. The CFMMEU submits that a reasonable step in explaining the effect of the Agreement, given those terms, must necessarily have included advice from the applicant that:

(a) Contrary to the terms of clauses 12.3 and 19 of the Agreement, employees cannot be required to work on public holidays.

(b) Contrary to the terms of clause 19 of the Agreement, pay cannot be withheld for a public holiday because an employee is absent on another day.

(c) Contrary to the terms of clause 24.4 of the Agreement, amounts cannot be withheld from an employee’s termination pay if the employee fails to give the required notice, without the agreement of the employee, and not at all in the case of accrued annual leave entitlements.

(d) Contrary to the terms of clause 7.5 of the Agreement, deduction from wages because of previous overpayments cannot be made “after consultation” without the agreement of the employee affected. Employees cannot be taken to have “authorised” such deductions merely by the Agreement being in operation, as the clause purports.

(e) Contrary to the terms of clause 7.6 of the Agreement, no amount can be deducted from an employee’s wages to reimburse the employer for providing clothes without the employee’s agreement to such a deduction.

(f) Contrary to the terms of clause 16.3, to access paid personal leave, what forms “satisfactory” evidence is not “at the sole discretion of the Project Manager”.

(g) Contrary to the terms of clause 16.3, to access paid personal leave, does not require notice of an inability to attend and estimated duration of absence “prior to the commencement of your first absent shift”.

(h) Contrary to the terms of clause 15 of the Agreement, the applicant’s agreement and processes are not the final word on when annual leave can be taken, rather a request to take annual leave cannot reasonably be refused. Further, the Agreement contains clauses that purport to allow the applicant to direct leave be taken at its sole discretion (once 1 years’ worth of leave has been accrued) which is inconsistent with s.93(3) of the Act.

33. The CFMMEU therefore submits that given the specific and express words of the clauses referred to in the above paragraph, any reasonable explanation of the terms of the Agreement, would have included specific advice about those entitlements. An explanation containing only general advice that the NES may contain entitlements that are more beneficial than some or all of the terms of the Agreement is not a substitute for more specific detail given the terms of the Agreement.

34. It is respectfully submitted that the Commission could not be satisfied that if the employees had been advised that the above terms of the Agreement were directly in conflict with the statutory minima, and that the substance of those clauses was impermissible, that it may not have affected the employee’s willingness to vote for an agreement containing clauses that purported to exclude the number of, and variety of, substantive rights for employees that the Agreement purports to exclude.”

Reasonable Steps Objection - Employer’s Submissions

[19] In their submissions, the employer stated:

“47. Pursuant to s 180(5) of the FW Act, Mastermyne was required to have taken all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees, and that the explanation was provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

48. In order to reach the requisite state of satisfaction, the Commission is required to consider the content of the explanation and the terms in which it was conveyed, having regard to the nature of the changes made by the proposed agreement.

49. Case authority has recognised that the level of explanation differs according to circumstances. A practical approach needs to be adopted in relation to these obligations.

50. Specifically, the level of explanation required is less onerous where

(a) wages significantly exceed the reference Award, or

(b) where the agreement is a renewal or an earlier agreement that is substantially on same the same terms.

51. It is also relevant that at no stage during bargaining did the union raise any concerns with the clauses it now asserts it is justified to challenge or claim should have been better explained to employees.

(2) Representation of the Agreement

52. The CFMMEU alleges Mastermyne’s 3 February 2021 communication to employees misrepresents the Agreement in the following respects:

(a) First, the union asserts the Agreement does not provide that employees engaged at Tahmoor on “the current contract” will receive a 1.5% wage increase on their

53. Pursuant to s 180(5) of the FW Act, Mastermyne was required to have taken all reasonable steps to ensure that the terms of the Agreement, and the effect of those terms, were explained to the relevant employees, and that the explanation was provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

54. In order to reach the requisite state of satisfaction, the Commission is required to consider the content of the explanation and the terms in which it was conveyed, having regard to the nature of the changes made by the proposed agreement.

55. Case authority has recognised that the level of explanation differs according to circumstances. A practical approach needs to be adopted in relation to these obligations.

56. Specifically, the level of explanation required is less onerous where

(a) wages significantly exceed the reference Award, or

(b) where the agreement is a renewal or an earlier agreement that is substantially on same the same terms.

57. It is also relevant that at no stage during bargaining did the union raise any concerns with the clauses it now asserts it is justified to challenge or claim should have been better explained to employees.

(3) Representation of the Agreement

58. The CFMMEU alleges Mastermyne’s 3 February 2021 communication to employees misrepresents the Agreement in the following respects:

(a) First, the union asserts the Agreement does not provide that employees engaged at Tahmoor on “the current contract” will receive a 1.5% wage increase on their

59. In response to these unsupported contentions:

(a) First, the employees were aware that the context to the communication was a request to vote on a new enterprise agreement, and that this would be a new minimum safety net for them. Clause 8.2 of the Agreement clearly provides that, “The rates above will be increased by 1.5% on each anniversary of the Agreement during the nominal term of this Agreement”, and clause 2.2 sets out the four year nominal term. Accordingly, Mastermyne’s explanation was an accurate reflection of the terms of the proposed Agreement, and was not in any way misleading. The fact some employees may currently receive remuneration that is higher than the enterprise agreement minimum, does not detract from the accuracy of the explanation, or their capacity to appreciate they were receiving an explanation of an enterprise agreement and not contractual entitlements.

(b) Second, there is no term of the Agreement that restricts or prohibits Mastermyne from continuing to pay a bonus of $450 per week. It is therefore accurate for Mastermyne to have explained this there being ‘no change’ to the circumstances in which the bonus is paid. The basis upon which this bonus was paid in the past under the 2016 Agreement was rolled over through clause 8.4 of the Agreement, “Mastermyne may elect at its sole discretion, to pay a productivity bonus in accordance with production, safety, conduct and efficiency targets.” Mastermyne’s representation must be viewed in this industrial context.

(c) Third, inherent in the requirement to explain an agreement’s terms and their effect is a need to use language that is accessible and meaningful to the workforce so they can interpret the proposed agreement. The fact Mastermyne used the language of ‘site rate’ to explain the effect of the minimum remuneration in the Agreement does not detract from the quality of its explanation to the employees. It is industry jargon that was used to explain the effect of the terms, which is widely understood as being interchangeable with the concept of a ‘rate of pay’ as is used in clause 8.3 of the Agreement. Additionally, the CFMMEU has not raised any evidence to demonstrate that Mastermyne’s explanation that, ‘Total benefits of site rate, wage escalations and bonus level in line with our competitors’ is inaccurate. The Agreement’s rates are competitive, which is evident from the substantial amount by which the Agreement’s rates exceed the Award. The Award is industry specific, and would otherwise apply to the employees if they had no enterprise agreement.

(d) Finally, the basis of the CFMMEU’s assertion that, ‘there is no provision stating that “bonus level” will be paid in line with competitors, or indeed be paid at all’ is not supported by any submission let alone evidence. This language was not used by Mastermyne to explain the Agreement’s terms and their effect to employees.

60. Mastermyne’s explanation to its employees was in all respects an accurate reflection of the terms of the Agreement to be voted on, and its practical effect on employees in the context of their industrial reality. Therefore the Commission can be satisfied Mastermyne took all reasonable steps, for the purpose of ss 180(5), 186(2)(a) and 188 of the FW Act.”

(footnotes omitted)

Reasonable Steps Objection - Consideration

[20] Section 180(5) provides that,

The employer must take all reasonable steps to ensure that:

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

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

(my emphasis)

[21] The Federal Court of Australia (Flick J) in Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd. 6 held that,

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

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

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

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

[22] An appeal against the decision of Flick J was dismissed by the Full Federal Court of Australia (Bromberg, Katzman and O’Callaghan JJ) in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union. 7 The Full Court observed that,

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

[112] It is common ground that the Commission was never told what was said to the relevant employees. It was simply told that they had been given an explanation of the terms of the Agreement and the effect of those terms. In effect, this amounted to little more than a self-serving statement that the employer had complied with its obligation under the Act. OKW contended that the fact that it made such a statement in a statutory declaration was significant.

It is not. As the CFMEU argued, whether all reasonable steps were taken to ensure that the effect of the terms of the Agreement was explained in an appropriate manner is a question of substance, not form. The recital of a conclusion on the very question the Commission was required (through an evaluative process) to determine is not, without more, a sufficient basis for the satisfaction of the statutory test. In other words, a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach a state of satisfaction. OKW submitted that if the Commission had erred in this respect, it was an error in fact finding or an error in process, which would be an error within its jurisdiction. We reject this submission. In order to reach the requisite state of satisfaction that s 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement. It is true that the Act does not expressly say that. But the question of whether an administrative decision-maker is required to consider a matter is not determined only by the express words of the Act; it may also be determined by implication from the subject-matter, scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39–44 (Mason J).

[113] A consideration of the subject-matter, scope and purpose of the relevant provisions of the Fair Work Act indicates that the content of the explanation and the terms in which it was conveyed were relevant considerations to which the Commission was bound to have regard. The absence of that information meant that the Commission was not in a position to form the requisite state of satisfaction. Put differently, without knowing the content of the explanation, it was not open to the Commission to be satisfied that all reasonable steps had been taken to ensure that the terms and their effect had been explained to the employees who voted on the Agreement or that they had genuinely agreed to the Agreement.

[114] The following considerations point inexorably to that conclusion.

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

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

[117] As there was no evidence of these matters before the Commission, it necessarily follows that the Commission purported to be satisfied that OKW’s obligations under s 180(5) had been discharged without taking those matters into account. That was a jurisdictional error because the Commission did not have authority to make the decision unless its satisfaction had been informed by them. As is often the case, there are several ways of describing the error. It could be characterised as a misconception as to what the exercise of the statutory power entails or an error “as to an important attribute of the decision to be made”: Graham at [68]. Equally it could be seen as a misunderstanding on the part of the Commission of the nature of the opinion it was required to form: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [31] (Gleeson CJ, Gaudron and Hayne JJ). Had the Commissioner applied his mind to the question of what the putative explanation entailed, he would inevitably have inquired into its content and terms.

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

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

b) these were all the reasonable steps that should have been taken in the circumstances. 8

[24] The task before the Commission “requires attention to the content of the explanation given.” 9

[25] The 3 February 2020 cover letter 10 (Cover Letter) states that,

“The …. Agreement provides a number of benefits to employees ….”

“What does it mean for me:

• No change to the existing $450/wk bonus at Tahmoor for current employees.

• Total benefits of site rate, wage escalations and bonus level in line with our competitors.

Benefits provided to employees…”

[26] In the Employer’s Declaration (Form F17), Shaun McKenzie, the Employer’s IR Manager, declared that there were crew briefings on 3 February 2020 and that there was an email to employees. This was the primary evidence about the steps taken to explain the Agreement.

[27] In order to be satisfied that the requisite standard was met in terms of the obligation imposed on the Employer to take reasonable steps it is necessary to know the content of the explanation. From the Form F17 we know it was the content of the Cover Letter. However, any steps need to be considered in light of the relevant circumstances. In this matter those relevant circumstances are that the wages significantly exceed those in the reference Award and, as stated above, the Agreement is largely a roll-over the 2016 Agreement.

[28] The Agreement is a minimum safety net. It does not reflect actual rates paid to employees. The employees know this. Consequently, the employees also must understand that the increases proposed in the Agreement apply to the rates of pay in the Agreement. That is what is obviously meant by “existing base rate.” Clause 8.1 of the Agreement contains the base rates. Clause 8.2 then states “The rates above will be increased by 1.5% on each anniversary of the Agreement during the nominal term of this Agreement.” I see no discernible difference between the terms of the Agreement and the explanation contained in the Cover Letter.

[29] The same cannot be said for what the Cover Letter says about the bonus. The Cover Letter clearly states that there will be “No change to the existing $450/wk bonus…” However, the Agreement, at clause 8.4 does not provide for a $450/wk bonus”. It provides for an entirely discretionary productivity bonus. Clause 8.4 does not give rise to an enforceable right. Consequently, it is not clear what purpose it serves in the Agreement. It is otiose.

[30] The “no change” in the Cover Letter was clearly linked to the $450/wk bonus, and not to the fact that there was no change in the discretionary nature of the bonus. The Employer failed to take reasonable steps to explain the same to employees. The proper effect of clause 8.4 was not explained to employees. This is a material matter that may have affected how employees voted. However, it seems to me that it is a matter that can be addressed by an undertaking. Before me Mr Kentish for the Union agreed. 11 I will return to this later.

[31] I am not persuaded that the Union’s third complaint about the Cover Letter has merit. The rate of pay in the Agreement are 18.76%-46.56% higher than comparative award rates. There can be no suggestion that the “total benefits … [are not] in line with [Mastermyne’s] competitors.”

Explanation Objection

Explanation Objection - Union’s Submissions

[32] In their submissions, the Union stated:

“35. Further to the above submissions, the CFMMEU presses that the terms of the Agreement and the explanation provided give rise to considerations under s.188(1)(c), that is, that the Commission should have reasonable grounds to believe that the agreement was not genuinely agreed to by employees. As to matters that can be considered pursuant to s.188(1)(c), the Full Federal Court has previously observed that s.188(c), as it then was, is cast in broad terms and “any circumstance” may be relevant: and specifically that s.180(5) matters can and should also be considered under s.188(1)(c). In particular in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 the Court found at paragraph [142]:

Paragraph 188(c) is cast in very broad terms. It is intended to pick up anything not caught by paras (a) and (b). Thus, any circumstance which could logically bear on the question of whether the agreement of the relevant employees was genuine would be relevant. One obvious example is the provision of misleading information or an absence of full disclosure (see, for example, Re Toys “R” Us (Australia) Pty Limited Enterprise Flexibility Agreement 1994 (1995) 37 AILR 3-068 (Print L9066) (C No 23663 of 1994)). Another is the likelihood that the relevant employees understood the operation of the various awards that would be affected by the agreement and the extent to which the wages and working conditions for employees under each of those awards would change, for better or worse, under the terms of the agreement. Thus, if we be wrong to conclude that the Commission is bound by s 180(5) to consider the content of the employer’s explanation of the terms of the Agreement and their effect, in order to be satisfied that the Agreement was “genuinely agreed to” having regard to s 188(a)(i), then for similar reasons we would hold that this was a matter which was not only relevant to the question raised by para 188(c), but was a mandatory consideration. (emphasis added)

36. It is the union’s submission that the flaws identified above in the explanation of the Agreement are such that the Commission would have reasonable grounds to believe that the employees did not genuinely agree to the Agreement. The most obvious example being that misleading suggestions were made in writing that the Agreement contained wage rises on existing rates of pay, that there was “no change” to the $450 per week bonus for employees voting for the Agreement, and that the total benefits of the Agreement, including wage escalations and bonus level were “in line with our competitors”. Those matters could reasonably be taken to have been likely to have had an effect on the approval of the Agreement.

37. Further, as the entire voting cohort received wages above the wage levels contained in the Agreement, the approval lacked the authenticity required for the Commission to be satisfied that the employees genuinely agreed to the Agreement. This is because the employees lacked a sufficient “stake” in the actual terms of the Agreement in manner similar to that described in Appeal by KCL Industries P/L against decision of Roe C of 18 February 2016 [[2016] FWC 1031] Re: KCL Industries Enterprise Agreement 2015 [2016] FWCFB 3048 (3 June 2016):

[36] In summary, the position is that the Agreement covers a wide range of classifications most of which have no relevance to the work performed by KCL’s three existing employees, encompasses industries in which KCL does not currently operate, and contains rates of pay which, even in respect of those classifications relevant to the current employees, are not to apply to those employees. In those circumstances we do not consider that any authenticity could attach to the agreement of the two employees to the rates and conditions in the Agreement. The employees had no “stake” in the Agreement’s rates of pay, since they were assured that their existing, higher rates of pay would remain in place (subject to “operational needs and satisfactory performance”), and they could not have given informed consent in relation to occupation and industries in which they did not work and presumably had no experience.”

(footnotes omitted)

Explanation Objection – Employer’s Submissions

[33] In their submissions, the employer stated:

93. The CFMMEU also raises the concern that as the entire voting cohort received wages above the wage levels contained in the Agreement, the approval lacked the authenticity required for the Commission to be satisfied that the employees genuinely agreed to the Agreement.

94. This is advanced on the basis that the employees lacked a sufficient “stake” in the actual terms of the Agreement in manner similar to that described in Appeal by KCL Industries P/L against decision of Roe C of 18 February 2016 [[2016] FWC 1031] Re: KCL Industries Enterprise Agreement 2015 [2016] FWCFB 3048 (KCL).

95. The submission pointedly does not raise any argument that the agreement contains multiple other benefits for employees in which they have a “sufficient stake” such that they have a stake in the agreement as a whole.

96. In any case, the KCL decision arose in unique circumstances, which are distinguishable from Mastermyne’s. The KCL decision related to a small voting cohort, who was tasked with voting on an agreement that covered multiple awards and classifications.

97. Since that decision, the Commission has accepted on a multitude of occasions that employees may have a stake in an agreement, and may have genuinely agreed it, even if the agreement provides for lower rates than they are entitled to under their employment contracts.

98. Mastermyne’s employees did not lack authenticity or a stake in the Agreement. There is no reasonable ground for believing that the agreement has not been genuinely agreed to by the employees for the purpose of ss 186 and 188 of the FW Act in a context where:

(a) the FW Act does not exclude, from a voting cohort, any employees who have terms and conditions that are more beneficial than those contained in a proposed enterprise agreement;

(b) the group employed at the time of the vote comprised 16 employees who were at that time employed in classifications that fall under the Agreement. Of the 14 of those who voted, 100% voted to approve the Agreement;

(d) the Agreement provides for a safety net of conditions in excess of the Award, and the 2016 Agreement;

(e) there are benefits to relevant prospective employees beyond the terms and conditions that applied to relevant existing employees at the time bargaining was commenced, that exceed the Award. Existing employees can be said to hold a ‘community of interest’ in respect to prospective employees in this regard 45;

(f) an in-term enterprise agreement will support Mastermyne, as a contractor, to win new work as it will be able to tender on the basis that its workforce will not be able tot ake protected industrial action during the Agreement term. This favourable position to be in for tenders in the coal mining industry, as continuity of operations on a 24/7 basis is critical for principals. Employees have an interest in supporting Mastermyne’s efforts to win new contracts, as this will contribute to the profitability of the enterprise, which will in turn expand opportunities for employees.

99. On the above basis, the Commission can be satisfied the employees genuinely agreed to the Agreement for the purpose of ss 186(2)(a) and 188 of the FW Act.”

(footnotes omitted)

Explanation Objection - Consideration

[34] The Explanation Objection rests upon the operation of s.188(1)(c) of the Fair Work Act which provides that,

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

….

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

[35] The decision in One Key makes clear that where there has been a misrepresentation or misleading information provided to employees it can attract the operation of s.188(1)(c). That is to say it can provide reasonable grounds for believing that the agreement has not been genuinely agreed to.

[36] At the hearing on 15 April 2021 the point in relation to the bonus misstatement was pressed by Mr Kentish on behalf of the Union. 12

[37] For the reasons I have already expressed above I agree with the Union that the explanation given in the Cover Letter about the bonus was misleading. It is not insignificant. It is certainly arguable that the misleading information may have affected how employees voted and the approval of the Agreement.

[38] I reject the Union’s contention that, just because employees are paid in excess of the rates of pay contained in the Agreement, the employees lacked the sufficient stake in the Agreement to cast an authentic vote. This case is not analogous to KCL Industries. In any case I note that the Agreement contains many other benefits to the employees who voted for it so overwhelmingly.

BOOT Objection

Boot Objection - Union’s Submissions

[39] In their submissions, the Union stated:

“40. To approve the Agreement, the Commission must be satisfied, amongst the other requirements of Part 2-4 of the Act, that the Agreement passes the better off overall test: s.186(2)(d) of the Act. The applicant has identified various differences between the Agreement and the Black Coal Mining Award 2010 (“the Award”) in its Form F17.

41. The CFMMEU accepts that the wages in the Agreement are above those contained in the Award, even allowing for allowances paid under the Award,however, there are a number of clauses of the Agreement that are undeniably detrimental as compared to the Award, for example:

(a) Clause 7 of the Agreement provide for deductions to be made from wages and/or termination pay. The Award does not provide for deduction to be in circumstances of overpayment or for clothes being previously provided.

(b) Clause 5 of the Award provides that an employer must make the Award and the National Employment Standards available either on a notice board or electronically if more accessible. The Agreement does not provide for any obligation on the applicant to make the terms and conditions of the Agreement nor the National Employment Standards (which are substantially more beneficial than what appears on the face of the Agreement) accessible to employees.

(c) Clause 10.3 of the Award contains arrangements for reasonably predictable hours for part-time employees and penalty rates for work over those hours, the Agreement has no similar provision. The applicant in its response table on page 3, contends, whilst giving no reasons for that contention, that an undertaking is unnecessary. The applicant nevertheless indicates a preparedness to provide an undertaking that is significantly less than favourable to employees than that contained in the Award. In particular, the referred to undertaking does not commit to actual hours and days of the week, does not provide that agreement is necessary to change those days and does not provide that overtime will be paid unless “an employee is required to work beyond the reasonably predictable hours in any one day”.

(d) Clause 12.3 of the Award provides that an employee will carry out duties “consistent with the classification structures of this award”. Clause 7.4 of the Agreement provides that in addition to duties “reasonably associated with your position”, employees must “also perform other duties which you are capable of performing as required by Mastermyne”. The provision appears to undermine the classification and pay structure of the Agreement in a manner that would not be possible under the Award.

(e) Clause 13.3 of the Award provides that an employee who is made redundant must receive a minimum of 4 weeks’ notice or 5 weeks if the employee is over 45 years of age. The Agreement contains notice period in clause 24 that are substantially lower for employees, particularly for employees with less than 12 months’ service (1 week).

(f) Clause 13.4(b)(ii) of the Award provides that where an employer dismisses an employee who is on paid personal leave, the employee must be paid until the employee has no further personal leave or is fit for duty whichever occurs first. Clause 16.5 of the Agreement provides that where an employee is dismissed for misconduct, the employee will not be paid accrued personal leave.

(g) Clause 16.2 of the Award provides that where an employee performs mixed functions during a shift that the employee must be paid the higher rate for the “whole shift”. Clause 8.8 of the Agreement provides only that if an employee is directed to “act up in a higher classification” “for an entire shift” and the employee performs duties of the higher classification “for the entire shift” that they will be paid the higher base rate, subject to the time sheet being approved by the Shift Manager or Client. In any respect, clause 12.3 would appear to mean that employees would rarely be entitled to higher pay for higher duties.

(h) Clause 17.2 of the Award provides overtime rates for all time worked in excess or outside ordinary hours on “any shift”. Clause 10 of the Agreement provides only that overtime will be payable for time “worked in excess of the maximum ordinary hours in a roster cycle”.

(i) Clause 17.3 of the Award has a minimum payment for overtime work on a Saturday or Sunday, the Agreement has no such minimum payment.

(j) Clause 17.6 of the Award provides for a minimum 10 hour break between shifts, with penalties applying if the break is not provided. The Agreement has no such provision.

(k) Clause 17.7 of the Award has a minimum 4 hours pay for call-back overtime. The Agreement has no such payment.

(l) Clause 23.4 of the Award provides that starting and finishing places for shifts are to be agreed by the employer and a majority of the employees and that for underground mines, the place will be on the surface. Clause

12.5 of the Agreement provides that employees will commence at the “designated starting time and location”.

(m) Clause 24.3 of the Award provides that an employer must pay overtime rates if an employee works for more than five consecutive hours without a break “unless otherwise agreed”. Clause 13 of the Agreement provides no financial benefit to employees if required to work for greater than consecutive 5 hours.

(n) Clause 25 of the Award relies upon and supplements the National Employment Standards entitlements to annual leave. The NES entitlements include that an employer will not unreasonably refuse to agree to a request by an employee to take paid annual leave. Clause 15.2 of the Agreement provides that annual leave “must be taken by agreement with Mastermyne and in accordance with Mastermyne leave process procedure”.

(o) Clause 25 of the Award provides rights for an employee to access excessive accrued annual leave. The Award also provides restrictions around when an employer can direct an employee to take annual leave, including that the accrued leave is 12 weeks for shiftworkers, that at least 8 weeks notice is given and that no less than 1 week is taken. The Agreement provides no right for employees to access annual leave other than by “agreement with Mastermyne and in accordance with Mastermyne leave process procedure”. The Agreement allows the applicant an unrestricted power to direct that accrued annual leave above one year’s accrual be taken. This is particularly disadvantageous given that employees “Ordinarily, ... will take annual leave after completing 12 months service” and can only take leave by agreement and that no restriction is provided on notice to take annual leave or the amount of leave to be taken. Unlike the Award, the Agreement could easily lead to circumstances where employees had virtually no control over when their annual leave was taken.

(p) Clause 25.2 of the Award provides that an employee who works a roster which requires ordinary shifts on public holidays and not less than 272 ordinary hours on Sundays is entitled to an extra 35 ordinary hours of annual leave each year. The Agreement does not, clause 15.1 confining the additional leave to seven day roster employees.

(q) Clause 26.3 of the Award provides that an employee claiming personal leave must provide “a medical certificate or such other evidences as will prove to the employer’s reasonable satisfaction” to explain the need for the leave. Clause 16.3 of the Agreement provides, inter alia, that what is satisfactory evidence is “at the sole discretion of the Project Manager”.

(r) Clause 29 of the Agreement, as discussed above at paragraphs [36] to [37] of these submissions potentially has a significant negative impact on an affected employee. The Award contains no stand down provisions.

42. The better off overall test requires the Commission to make an assessment concerning if all employees covered by the Agreement would be better off. Whilst such an assessment requires a balance, the union respectfully submits that the nature of a number of the above disadvantages are such that the Commission should appropriately have concerns that not all employees would be better off overall and, if the Commission is otherwise minded to approve the Agreement, that further undertakings may be appropriate to ameliorate or remove disadvantages to certain classes of employees.”

(footnotes omitted)

Boot Objection - Employer’s Submissions

[40] In their submissions, the employer stated:

“100. The CFMMEU alleges that the Commission cannot be satisfied that the Agreement passes the BOOT as required by s 193 of the FW Act, on the basis of 18 sub-clauses.

101. The BOOT, as the name implies, requires an overall assessment to be made. The BOOT is not applied as a line by line analysis – it is a global test. This requires:

(a) a finding that each award covered employee and prospective employee would be better off under the agreement than under the relevant modern award;

(b) an evaluative assessment after considering the provisions of the award and the agreement that may have been more beneficial to employees, and those that may have been less beneficial; and

(c) an overall assessment, which requires the identification of terms which are more beneficial for an employee, terms which are less beneficial, and an overall assessment of whether an employee would be better off under the agreement.

102. An agreement may pass the test even if some award benefits have been reduced, as long as overall those reductions are more than offset by the benefits of the agreement.

103. Mastermyne relies on and repeats the detailed BOOT analysis enclosed with its Form 17 Statutory Declaration dated 26 February 2021. It has also responded to the specific matters raised by the CFMMEU in Schedule 1, to support the Commission’s evaluative assessment.

104. In several instances in Schedule 1, Mastermyne objects to the characterisation of the Agreement entitlement as less beneficial to the Award. In other instances, while an Agreement entitlement (or absence of an entitlement) might be considered less beneficial relative to the Award, it is practically very unlikely to arise for each employee. In other instances, the difference between the Agreement and Award is marginal.

105. Overall, the Commission can be satisfied that the Agreement’s remuneration and other benefits substantially exceed the Award, leaving employees better off overall.”

(footnotes omitted)

Boot Objection - Consideration

[41] The Boot Objection is readily dispensed with. The Union’s line-by-line assessment of the Agreement is an incorrect approach.

[42] The BOOT is not applied as a line by line analysis. It is a global test requiring consideration of advantages and disadvantages to award covered employees and prospective award covered employees. The application of the better off overall test therefore requires the identification of the terms of an Agreement which are more beneficial to employees when compared to the relevant modern award, and the terms of an Agreement which are less beneficial and then an overall assessment of whether an employee would be better off under the Agreement. 13

[43] As stated above, the Agreement pay rates for full time employees are 18.76%-46.56% higher than comparative award rates. The Agreement offers wage increases of 1.5% on each anniversary of the Agreement during the nominal term.

[44] Having considered both the benefits of the Agreement compared with less beneficial terms (See Table C), I am satisfied that the Agreement passes the BOOT.

Conclusion

[45] For the reasons set out above:

a) I am not satisfied that Mastermyne took all reasonable steps to explain the terms of the Agreement or the effect of those terms to relevant employees because of its misstatement in the Cover Letter about the operation of the bonus.

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

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

[46] In BCG (No 2) 14 the Deputy President held,

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

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

[47] In the BCG matter the Deputy President allowed the employer an opportunity to offer up undertakings to deal with the genuinely agreed issue. Undertakings were offered, but the Deputy President was ultimately not “persuaded that the genuine agreement undertaking, [met] the concern identified in [his] earlier decision.” 15 The application for approval of the decision was dismissed.

[48] In this matter I have decided to allow Mastermyne an opportunity to proffer undertakings aimed at curing the genuinely agreed issue concerning the operation of the bonus.

[49] This proposition is best explained by reference to the Full Bench decision in Construction, Forestry, Maritime, Mining and Energy Union v Karijini Rail Pty Ltd, where it was said that:

“…a concern about whether an employer has complied with s.180(5) and therefore whether the agreement has been genuinely agreed to by the relevant employees, may as a matter of logic be remedied depending on the nature of the concern. It is accepted that in a number of cases concerns about genuine agreement will not be able to be met by an undertaking. But it is not the case, as a matter of logic, that any such concern could never be met. Why for example, could not a concern that an employer explained the effect of a term of the agreement as to shift work was that an afternoon shiftworker would receive a 15% loading under the agreement, when the agreement only provides for a 10% loading, be met by an undertaking that the employer would pay an afternoon shiftworker a loading of 15%? We consider that such an undertaking would remedy the concern since the agreement operating with the undertaking is consistent with the explanation given.” 16

[50] Any undertakings that the Applicant wishes to provide to meet the concerns are to be provided to my Chambers by no later than by 9.00 am on Friday 18 June 2021. The Applicant should also provide evidence that it sought the views of all bargaining representatives for any undertaking pursuant to s 190(4) of the FW Act.

[51] If the Applicant is not prepared to proffer an undertaking then I will proceed to decide the matter to finality. Alternatively, the Applicant is invited to file a Notice of Discontinuance.

COMMISSIONER

Appearances:

Mr M Coonan, Solicitor, for the Applicant

Mr A Kentish, for the Construction, Forestry, Maritime, Mining and Energy Union

Hearing details:

Sydney;
2021;
15 April.

Printed by authority of the Commonwealth Government Printer

1 <AE418346>

2 Court Book pp 100-102.

3 Transcript of Proceedings, PN7

4 Submissions of the Construction, Forestry, Maritime, Mining and Energy Union dated 30 March 2021, at [4]. I have added the definitions in brackets.

5 My template NES precedence clause is,

“This Agreement will be read and be interpreted in conjunction with the National Employment Standards (NES). If there is any inconsistency between this Agreement and the NES, the more beneficial provision to an employee prevails. Where this Agreement includes terms that have the same effect as terms of the NES or Award, or terms that are ancillary or supplementary to the NES or Award, the Agreement terms operate subject to the same qualifications, limitations and exclusions as the relevant NES entitlement unless otherwise specified"

6 [2017] FCA 1266.

7 [2018] FCAFC 77.

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

9 Ibid, [77].

10 Court Book page 84.

11 Transcript PN50.

12 Transcript PN40.

13 Re Armacell Australia Pty Ltd [2010] FWAFB 9985 (Giudice J, Acton SDP, Lewin C, 24 December 2010) at para. 41, [(2010) 202 IR 38].

14 [2018] FWC 6936.

15 [2018] FWC 6936, 46.

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