NSW Electricity Networks Operations Pty Limited As Trustee For NSW Electricity Networks Operations Trust T/A Transgrid

[2021] FWC 6576

[2021] FWC 6576

FAIR WORK COMMISSION

DECISION

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

NSW Electricity Networks Operations Pty Limited As Trustee For NSW Electricity Networks Operations Trust T/A Transgrid
(AG2021/7679)

TRANSGRID ENTERPRISE AGREEMENT 2020

Electrical power industry
DEPUTY PRESIDENT CROSS	SYDNEY, 9 DECEMBER 2021

Application for approval of the TransGrid Enterprise Agreement 2020

[1] An application has been made for the approval of an enterprise agreement (the Application) known as the TransGrid Enterprise Agreement 2020 (the Agreement). The Application was made by NSW Electricity Networks Operations Pty Limited as Trustee for NSW Electricity Networks Operations Trust t/a TransGrid (the Applicant/TransGrid) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single-enterprise agreement.

[2] The Application was made on 1 October 2021, and allocated to the Commission as currently constituted on 9 October 2021 for determination. The Agreement will cover approximately 921 employees of the Applicant. On 1 October 2021, a Form F16 Application for approval of the Agreement was made and filed together with a Form F17 Statutory Declaration. Relevantly for the purposes of this Application, the Form F17 noted that of the 921 employees of the Applicant who were covered by the Agreement at the time of the vote, 820 cast a valid vote and 411 of those employees voted to approve the Agreement.

[3] Form F18 Declarations were filed by the following employee organisations, all of whom were Bargaining Representatives in relation to the Agreement:

(a) The Communication Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (the CEPU);

(b) The Association of Professional Engineers, Scientists and Managers, Australia (the Professionals);

(c) Australian Municipal, Administrative, Clerical and Services Union (the ASU);

(d) The Construction, Forestry, Maritime, Mining & Energy Union (the CFMMEU); and

(e) The Community and Public Sector Union (SPSF Group) New South Wales Branch (the CPSU).

[4] In their Form F18 Declarations each of the Union Bargaining Representatives opposed the approval of the Agreement on common grounds that were outlined in the CEPU Form F18 as:

1. “The Company failed to take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee within the meaning of s173 of the Fair Work Act 2009 (FW Act).

2. The Agreement was not made within the meaning of s182 of the FW Act and the Agreement was not genuinely agreed within the meaning of s186(2) of the FW Act.

3. During the access period for the vote the Company failed to take all reasonable steps to provide employees access to the proposed Agreement and terms incorporated in the Agreement within the meaning of s180(2) of the FW Act.

4. During the access period for the vote the Company failed to take all reasonable steps to notify employees the time and place of the ballot to vote for the Agreement, and the voting method for the ballot within the meaning of s180(3) of the FW Act.

5. During the access period for the vote the Company failed to take all reasonable steps to explain the terms of the Agreement and effects of those terms to employees covered by the Agreement within the meaning of s180(5) of the FW Act.

6. For the reasons set out above the Commission would not be satisfied that the Agreement was genuinely agreed within the meaning of s 188 of the FW Act.”

[5] On 15 October 2021, my Chambers wrote to the Applicant and the Bargaining Representatives regarding issues identified in the Agreement. On 20 October 2021, the Applicant responded to the issues identified, and those responses resolved those issues.

[6] The Applicant relied upon the contents of the Forms F16 and F17 in support of the Application. On 3 November 2021, directions were issued to further program the manner in which the Application was to proceed to hearing (the Directions).

[7] On 4 November 2021, the CEPU filed a Form F52 Application for an order for production of documents, records or information to the Commission (the Form F52), in which it sought production of the following categories of documents:

1. “All documents showing the names of any employees who were issued with a Notice of Employee Representational Rights (NERR), when the NERR was issued, and how the NERR was issued in relation to bargaining for the TransGrid Enterprise Agreement 2020 (Agreement).

2. All documents showing the names of employees who were on leave in the period from 30 August 2021 to 18 September 2021, when the employees commenced leave, and when they returned to work from leave.

3. All documents showing the names of any of the employees who were issued with a notification of the date, time, place and method of the vote to approve the Agreement.

4. All documents showing the names of any of the employees who were issued with copies of the proposed Agreement, copies of the Electrical Power Industry Award 2020, and explanation document during the access period for the proposed Agreement.

5. All documents showing the names of any of the employees who were issued with copies of any document comparing the Agreement to any other Agreement or Award during the access period for the proposed Agreement.

6. All documents showing the names of all of the employees who were considered eligible to vote and who in fact voted in the ballot for approval of the proposed Agreement.”

[8] The Applicant sought to be heard regarding the issuing of the Form F52 and on 10 November 2021, that matter was determined after the parties addressed the Commission.

[9] In oral submissions, two additional categories of documents were added to the list of categories of documents sought by the Form F52.

[10] I delivered an ex tempore decision in this matter, finding in summary, that:

(a) The original six calls for documents were in general, broad, with the exception of category two, which was limited in scope, relevant to the issue at hand, and was accompanied with a confidentiality undertaking proffered by the CEPU and accepted by the Applicant.

(b) The additional two categories were only particularised in oral submissions, and the second of the two, relating to instructions to leaders regarding the agreement explanation and its effect, was also relevant, and sufficiently particularised.

(c) The parties were to confer and provide to Chambers an agreed draft of the Order.

[11] A more limited Order for production of documents was subsequently issued that required production of the following documents:

1. All documents showing the names of employees who were on leave in the period from 30 August 2021 to 18 September 2021, when the employees commenced leave, and when they returned to work from leave.

2. All documents showing any instructions given to leaders in relation to explaining the terms of the Agreement and their effects.

[12] The parties complied with the Directions. In particular:

(a) On 17 and 18 November 2021, the CEPU filed an Outline of Submissions that attached confidential lists of employees absent at the commencement of the access period for the Agreement, and employees absent during the voting period for the Agreement, together with statements from:

(i) Mr Paul O’Malley, a Business Systems Analyst;

(ii) Mr Warwick Slee, a Network Control Manager;

(iii) Mr Colin Waring, a Sub-station Advisor;

(iv) Mr Benjamin Thornton, a System Operator; and

(v) Mr Mitchell Fry, a Sub-station Technician.

(b) On 24 November 2021, the Applicant filed an Outline of Applicant’s Submissions in Reply together with a witness statement of Ms Chiara Van Vliet, the Senior Employee Relations Advisor of the Applicant. Ms Van Vliet had previously deposed the contents of the Form F17.

[13] The matter was heard on 25 and 26 November, 2021 (the Hearing). In the Hearing, of the witnesses for the CEPU, Mr O’Malley. Mr Slee, Mr Waring and Mr Thornton were required for cross- examination. Mr Fry was not required for cross- examination and his statement was received into evidence subject to the apportionment of appropriate weight. Ms Van Vliet was also cross-examined. The Commission was assisted by each of the witnesses that attended to give evidence, who each gave clear, balanced and honest evidence.

[14] Subsequent to the Hearing the Applicant and the Professionals sought the ability to file further written submission regarding the issue of Individual Employment Agreements. Those further submissions were filed by the Professionals and the Applicant on 1 and 3 December respectively.

Background Facts and Findings

(a) Communication with Employees

[15] The existing Agreement, the TransGrid Employees Agreement 2016 (the 2016 Agreement), passed its nominal expiry date on 1 December 2020. The 2016 Agreement covers employees of the Applicant in the classifications of Administrative Officers, Engineering Officers, Professional Officers, Operators, Power Workers, Tradespersons and Apprentices, other than Senior Contract Officers and employees engaged in specialist roles (the Employees).

[16] On 14 February 2020, a Notice of Employee Representative Rights (NERR) was sent by email to employees employed by the Applicant at the time notifying them of their right to be represented during bargaining. In addition to those emails, the Applicant forwarded copies of that email to leaders to pass on to their employees on long term leave.

[17] Additionally, copies of the NERR were placed on the Applicant’s intranet page, referred to as “the Wire,” which the Applicant uses as one of the primary methods of communication with its employees. The Wire can be accessed through TransGrid devices, including laptop computers, iPads and desktop computers. Email can be accessed through these devices and through mobile phones. The Applicant frequently uses the Wire to communicate with employees, other than employees of its new business section called “Lumea.” The Lumea business has its own intranet site, separate from the Wire.

[18] Prior to the COVID-19 pandemic, some TransGrid employees with administrative or office based roles were not provided with TransGrid issued laptops as they worked from desktop computers at TransGrid worksites. However, at the beginning of the COVID-19 pandemic in March 2020, TransGrid made arrangements for such office-based employees to work remotely from home, including by providing them with TransGrid devices. Nonetheless, a limited number of roles in the Applicant’s Operations Room and Warehouse continued to work on site during the COVID-19 pandemic and were not provided with such TransGrid issued devices.

(b) The First Vote

[19] In May 2021, the Applicant put a proposed enterprise agreement which would cover the Employees to a vote. The Applicant sent an email to the Employees TransGrid email address informing them of the date, time, place and method of the vote. The email explained that the following documents would be available on the Wire during the access period:

(i) a copy of the text of the proposed agreement;

(ii) a comparison document showing the changes made when comparing the proposed agreement with the 2016 Agreement;

(iii) a copy of the 2016 Agreement;

(iv) the Electrical Power Industry Award 2020; and

(v) an explanation document that provided employees with a detailed explanation of the clauses in the proposed agreement that were being amended from the equivalent clauses in the 2016 Agreement.

[20] The Applicant conducted face to face information sessions with Employees to explain the terms of the proposed agreement, and there was an online information session to explain the terms of the proposed agreement for any employee to attend. That vote was eventually unsuccessful.

(c) The Agreement

[21] On 1 September 2021, the Applicant advised the Union and Employee Bargaining Representatives that it would be putting a revised offer to a vote. On that day the Applicant sent an email to all employees at their TransGrid email address informing them of the date, time, place and method of the vote to approve the Agreement. After outlining the asserted benefits of the revised offer, the email advised:

“Proceeding to a vote

Over the past 15 months, we have listened to your feedback as we developed a new enterprise agreement that supports and benefits our people.

We believe the offer we have put forward both recognises your commitment and contribution, and will facilitate commercial business outcomes in an increasingly competitive market. Under the proposed agreement, core terms and conditions will stay the same.

We are now giving you the opportunity to vote on the offer.

The offer

The final offer includes 2.5% salary increases to all-purpose allowances, significant increases to standby allowances, and indexing of sustenance rates.

This proposed agreement preserves the nine-day fortnight, 15% superannuation, weekly pay, generous leave provisions and maintains existing conditions and entitlements.

Employees have a choice to apportion part of the salary adjustment to increase super contributions above 15%.

Further significant improvements for employees

•  Improvements to domestic violence leave

•  Adjustments to the redundancy clause, prioritising redeployment

•  Increasing consultation with employee representatives

•  Consultation on shift rosters

•  Changes to leave when acting in a higher grade

•  Clarification of leave support for miscarriage and still birth

•  Commitments to apprentices and graduates

•  Commitments to Individual Development Programs

•  Recognition of service for parental leave without pay

Next Steps

Timeline
7-14 September	Access Period	Your time to review and consider the offer. The EA 2020 and explanation documents will be available on the Wire.
15-17 September	Vote	A secure ballot process will be run by CorpVote and will be accessible by internet and phone. You will receive instructions on how to vote by email. Employee representatives will be appointed to scrutineer the voting process.
17-21 September	Vote Outcome	The preliminary outcome of the vote will be available on Friday 17 September and the audited outcome will then be announced by Tuesday 21 September.

For more information

We will continue to communicate with you throughout the process.

You will be invited to a WebEx briefing with executive managers and senior leaders who will be available to answer your questions.

For further information, please speak with your leader or contact [email address]”

[22] On 6 September 2021, the Applicant sent an email to all employees at their TransGrid email address informing them that the access period for the Agreement would commence on 7 September 2021. The contents of that email were as follows:

“TransGrid Enterprise Agreement 2020 – Access Period commences

The access period of the TransGrid Enterprise Agreement 2020 (2020 Agreement) commences tomorrow. During this period you have access to a copy of the 2020 Agreement and any other material incorporated by reference in the agreement. You will also be provided with all the relevant information to consider the 2020 Agreement before the vote takes place.

An access period is the 7 day period preceding a vote for an enterprise agreement that allows for employees to have access to the agreement and all relevant documents in order to make an informed decision.

We encourage you to read the full terms of the 2020 Agreement and to contact [email address] if you have any questions about the terms or effect of the proposed agreement.

Available on the Wire are:

•  The TransGrid Enterprise Agreement 2020

•  A compare of the TransGrid Enterprise Agreement 2020 against the TransGrid Employees Agreement 2016

•  The TransGrid Employees Agreement 2016

•  The Electrical Power Industry Award 2020

•  A document with a detailed explanation of the terms of the 2020 Agreement that have changed from the TransGrid Employees Agreement 2016

The Vote

Employees in the classifications of Administrative Officers, Technical Officers, Professional Officers, Operators, Power Workers, Tradesperson and Trainee (other than Senior Contract Officers of TransGrid and employees engaged in specialist roles in new business) would be covered by the 2020 Agreement and are eligible to vote on it.

The vote is a secure ballot process, run by CorpVote and will be accessible by internet and phone. You will receive instructions on how to vote from CorpVote by email, and if you are on leave, also by text message.

Voting Opens at 12:01AM AEST Wednesday, 15 September 2021

Voting Closes at 12:00PM AEST Friday, 17 September 2021

The outcome of the vote will be audited by CorpVote, and then will be announced on Friday, 17 September 2021.

If the offer is rejected by a majority of eligible voters, then bargaining will continue, however this is TransGrid’s best offer.

For more information

Please see the Wire.

If you require further information, please don’t hesitate to speak with our leader or contact [email address].”

[23] Also on 6 September 2021, the Applicant sent an email to its employees who work in the Lumea business that was in the same terms as that outlined in the above paragraph. The documents referred to in that email were if fact attached to the email to Lumea employees as Ms Van Vliet did not have access to the Lumea intranet site to upload those documents as she had on the Wire.

[24] On 6 September 2021, the Applicant arranged for an external mail out organisation, Alpha Mail, to send a letter on 7 September 2021, to the residential addresses of each of the Employees with a document summarising the terms of the Applicant’s offer.

(d) Employees on Leave

[25] On 2 September 2021, a report was generated of employees who had entered leave into the system as at 2 September 2021, for the period 15 September to 17 September 2021 (the First Leave Report).

[26] On 6 September 2021, the Applicant sent a letter summarising the terms of the Applicant’s offer through Alpha Mail to the residential addresses of each of the employees identified in the First Leave Report. Unfortunately, the First Leave Report did not include all employees who were on leave at the start of the access period on 7 September 2021.

[27] On 14 September 2021, the Applicant requested an updated report to the First Leave Report in order to add any new employees to the voter roll, and remove any employees whose employment had ended. The First Leave Report was ‘re-run’ to capture any changes in leave arrangements that had been made since the First Leave Report was first run (the Second Leave Report), and to ensure that there were contact details for all Employees who would be on leave during the voting period. When Ms Van Vliet received the Second Leave Report, she identified a larger number of employees who would be on leave than she expected based on the First Leave Report. As a result, she reviewed the First Leave Report again and identified that the First Leave Report showed outstanding leave applications, being applications for leave which fell in the period of 15 September to 17 September 2021, but whose applications had not yet been processed. That report did not include employees who had submitted leave applications for the relevant period which had been approved.

[28] Ms Van Vliet reviewed the Second Leave Report to identify any employees who would be covered by the Agreement who would be on any form of leave during the voting period, and then added to the voter roll those employees that should receive their voter access details by both email and phone. She then provided the ballot provider, CorpVote, with any updated contact details obtained through that process and on 14 September 2021, the ballot provider undertook a test run of the roll.

[29] CorpVote then confirmed any bounce backs they received from the email addresses provided, and Ms Van Vliet took steps to contact the managers of those employees to ask them to reach out to those employees for alternative contact details. Five bounce backs were identified, being:

(a) Two bounce backs that were due to employees employment with TransGrid having ended. These employees were then removed from the voter roll;

(b) The third bounce back was due to an error in an email address, which was updated and the email was reissued to the employee by CorpVote;

(c) The fourth bounce back was regarding an employee for whom an alternate email address had also been included at the employee’s request; and

(d) The fifth bounce back was for an employee whose manager had made attempts to reach him however was unsuccessful.

[30] In summary, the substance of the errors in the First Leave Report were that employees who were on leave at the start of the access period were not included in the First Leave Report. Specifically, the Applicant asserted the impact was as follows:

(a) 53 employees were on leave at the start of the access period, of whom 49 were employees who would be covered by the Agreement;

(b) Of the 49 employees on leave, 2 were included in the group of employees who were sent the letter by Alpha Mail to their residential address on 6 September 2021;

(c) Of the 49 Employees on leave, 47 had a TransGrid laptop and 39 also had a TransGrid issued mobile phone;

(d) Of the 47 Employees who were not included in the group of Employees by Alpha Mail to their residential address on 6 September 2021, only one did not have a TransGrid issued mobile phone or laptop. One Employee has since left the organisation and it cannot be confirmed whether he had a device; and

(e) Of the 49 Employees on leave, 16 were not on leave on 1 September 2021, when the original email regarding the vote was sent.

[31] The Applicant did not send communications to employees’ personal email addresses because it did not have a record of such contact details for all employees, and does not use that contact information without permission due to privacy considerations.

(e) Explanation of Agreement Terms

[32] While there is no specific objection to the approval of the Agreement relating to the explanation of the Agreement terms, I note that on 6 September 2021, the Applicant sent an email to employees inviting them to information sessions in relation to the Agreement to be held on Webex video conferencing software at the following times and dates:

(a) 8:30am on 7 September 2021;

(b) 1:00pm on 8 September 2021; and

(c) 12:00pm on 14 September 2021.

[33] A recording of one of those information sessions was made available on the Wire from 14 to 17 September 2021. At least eight of the employees on leave from 2 to 17 September 2021 attended those information sessions.

(f) The Second Vote

[34] On 9 September 2021, the Applicant provided the ballot provider, CorpVote, with a list of all employees who would be covered by the Agreement and their contact details. The contact details provided were:

(a) for all Employees, including those on leave, their TransGrid email address; and

(b) in addition, for any Employees who were identified as on leave during the voting period, their TransGrid phone number or personal number or personal email.

[35] Ms Van Vliet also reviewed the First Leave Report to identify any employees who would be covered by the Agreement who would be on any form of leave during the voting period. She then reviewed the list to identify if those employees did not have a TransGrid issued phone, identified four employees who fell within this group, and then contacted the managers for each of those employees to ask if they had personal contact details for those employees.

[36] On 14 September 2021, CorpVote undertook a test run of the voting process. CorpVote confirmed any bounce backs they received from the email addresses provided to them, and Ms Van Vliet took steps to contact the managers of the identified employees to ask them to reach out to those employees for alternative contact details. Also on 14 September 2021, the Applicant sent an email to Employees reminding them that the voting period would open the next day and would conclude on 17 September 2021. Further reminders regarding voting were sent on 15 and 17 September 2021.

[37] On 15 September 2021, CorpVote sent the voting details to all employees who would be covered by the Agreement to the email addresses and phone numbers provided by the Applicant. CorpVote’s communication included both a link which employees could click on to vote online, and a phone number employees could call to place their vote.

[38] Voting closed at 12:00pm on 17 September 2021. Of the 921 employees who were covered by the Agreement, 820 cast a valid vote with 411 of those votes being to approve the Agreement.

The Evidence

(a) Ms Van Vliet

[39] Van Vliet provided detailed evidence regarding information provided to employees, explanation of the Agreement, and the voting that occurred. That evidence is outlined above under the heading “Background Facts and Findings.”

(b) Mr Thornton

[40] Mr Thornton is employed as a System Operator. His usual hours of work consist of a 36-hour week operating on a 12-hour rotating roster, with both night and day shifts.

[41] He was previously employed as a Communications Tradesperson, and given a work laptop and phone which allowed me to access work emails when not rostered on to work. Since being appointed as a Technical Support Officer in 2010, and in the subsequent roles, he has not had a work assigned mobile phone or laptop and was therefore unable to access any work emails or phone calls when he was not at work. He is only contactable through his personal mobile phone.

[42] Mr Thornton received emails from the Applicant regarding the proposed agreement the subject of the second vote, and the information sessions regarding the Agreement. He was unable to participate in information sessions on 7 September 2021 and 8 September 2021, as he was very busy completing work. From 12 September 2021 until the 16 September 2021, he was not rostered on to work and therefore was unable to participate in the information session on 14 September 2021.

[43] Mr Thornton stated that despite numerous emails sent from the Applicant concerning the second vote, there was no information provided for employees who were absent from work during that vote.

[44] On Thursday 16 September 2021, Mr Thornton called the on-duty Network Control Manager and advised that he was unwell and unable to attend his shift on 17 September 2021. On that Friday 17 September 2021, Mr Thornton received numerous text messages from colleagues at work advising that it was the last day to vote. As he was unwell, he did not look at his phone until approximately 2:15pm when he saw the messages in relation to the vote.

[45] Immediately after looking at his phone, Mr Thornton sent a text Mr Phillip Peattie, the Union Delegate, requesting he submit his vote of “No.” The attempts by Mr Peattie to vote for Mr Thornton were apparently unsuccessful.

[46] Upon his return to work on 18 September 2021, Mr Thornton checked his emails and saw that he received an email from the Applicant’s management on 14 September 2021 at 4:43pm, reminding employees that the vote commenced the next day with voting to close at 12:00pm on 17 September 2021, and included a summary of the offer. As he was not able to access his work emails when rostered off he did not see this reminder email until he returned to work.

[47] In her statement, Ms Van Vliet confirmed that as Mr Thornton was on unplanned leave on 17 September 2021, she did not previously identify him as someone needing an alternative contact method for the voting details.

(c) Mr O’Malley

[48] Mr O'Malley is employed as a Business Systems Analyst.

Mr O’Malley noted that employees are able to access work emails and the TransGrid intranet through devices provided to them by TransGrid, and employees are able to access work emails and the TransGrid intranet through TransGrid issued desktop computers, laptops or iPhone/other mobile devices. When accessing work emails and the TransGrid intranet through devices other than a desktop at work, employees are required to utilise an application on their phones such as Outlook which synchronises work emails from the TransGrid system onto their laptops, iPhone or tablet.

[49] In or around 2016, the Applicant’s licence to operate stipulated that no employee was allowed to take any work devices with access to TransGrid data overseas.

[50] Employees who have administrative and office specific roles or work within control and network rooms are not provided with a mobile phone or laptop. They are only provided with a desktop computer that they use while at work, and are only able to access work emails and TransGrid's intranet when they are physically at work.

[51] Mr O’Malley has been provided with a work laptop as the majority of his work involves designing and administering software applications. He is not provided with a work phone and is only contactable on his private mobile phone. He cannot access, outside of work, his work emails or TransGrid intranet on his private mobile phone.

(d) Mr Slee

[52] Mr Slee is employed by the Applicant as a Network Control Manager. His usual hours of work consist of a 35-hour week operating on a 12-hour rotating roster. He is often required to work two 12-hour day shifts consecutively, followed by two 12-hour night shifts consecutively, and is then not required to work for six 24 hour periods before attending his next shift.

[53] Mr Slee does not have a work assigned mobile phone or laptop, and is unable to access any work emails or phone calls when he is not at work. When not rostered to work, he is only contactable through his personal mobile phone.

[54] All Operations employees are required to lodge requests for annual leave at least twelve months in advance into the assigned leave roster to ensure that employees are not taking leave at the same time. As a result, Mr Slee had requested to take leave from 11 September 2021 until 17 September 2021 in late 2020 in order to comply with the leave requirements. This leave was taken as annual leave.

[55] On 1 September 2021 at 4:04pm, Mr Slee received an email from the Applicant enclosing an offer in relation to the Agreement which required employees to vote. The email included a timeline with the next steps required by employees should they want to vote.

[56] On 6 September at 1:07pm, Mr Slee received an email from the Applicant advising that it had organized the three information sessions in relation to the proposed enterprise agreement.

[57] Mr Slee stated that as he is unable to access the Applicant’s intranet and work emails unless he is at work, he was only available to participate on an information session on 7 September 2021 at 8:30am, as he was rostered on to work from 7:00am to 7:00pm that day. He noted, however, that he was unable to completely participate in the information session as he was still required to work, and the Applicant did not advise whether employees were able to refrain from working whilst participating in the information session.

[58] As Mr Slee was to be on leave when the vote was due to take place from 15 September 2021 until 17 September 2021, and he did not have any access to his work emails whilst on leave, Mr Slee took steps through his union delegate to seek a means by which he could vote. Eventually on 16 September 2021 at 10:36am, he received a text on his personal mobile phone from CorpVote with a link and all relevant information needed to vote on the Agreement. He proceeded to vote "No."

[59] On his return to work on 19 September 2021, Mr Slee checked his emails and saw that he received an email from the Applicant on 14 September 2021 at 4:43pm. The email reminded employees that the vote commenced the next day and included a summary of the offer. As he was not able to access my work emails whilst on leave, he did not see this reminder email until he returned to work from his annual leave

(e) Mr Waring

[60] Mr Waring is employed by the Applicant as a Substation Advisor.

[61] Mr Waring noted that the Applicant’s employees can only access emails on their work devices, being either:

(a) Desktop computers at work; or

(b) Tablets, laptops, iPhones and other mobile devices provided to them by the Applicant.

[62] To get access to TransGrid intranet and work emails, employees have to use an application on their work issued mobile phones which ensures that email and Intranet appear on their devices in a secure manner, but private email or webmail is not accessible on those devices.

[63] Despite having access to a work laptop, tablet and iPhone, Mr Waring noted that accessing the TransGrid network remotely is often very difficult as there are issues with synchronizing work emails and connectivity due to server, internet or user login profile issues on the work devices. As a result, there are often times when Mr Waring was unable to use his work phone or laptop to access my work emails or the TransGrid intranet and other applications.

[64] Mr Waring noted that the Applicant gave mobile phones, laptops or tablets to people who work in the field, such as Technicians, Project Managers and Electrical Fitters. However, Administrative employees and those whose work is office based do not always get mobile phones, laptops or tablets. Rather, they work on desktop computers which they can only use when at work. Mr Waring stated that throughout the Covid-19 pandemic lockdown period of July 2021 to October 2021, various employees were not provided with any devices to be able to work from home and as such could not access work emails or TransGrid's intranet unless they physically came into work.

(f) Mr Fry

[65] Mr Fry is employed by the Applicant as a Level 2, Substation Technician. His usual hours of work are on Monday to Friday with a start time of 7.15am and finish time 3.32pm.

[66] Mr Fry has been on annual leave since about 11 August 2021, and will be on long service at half pay until the end of January 2022. He is currently residing in England. In his role he has access to a work phone and tablet however those devices were left in Australia. As a result, he has not had any access to work-related emails or calls.

[67] Mr Fry participated in the First Vote. Prior to that vote he received copies of the proposed enterprise agreement and notice of how and when the vote would take place. The ballot was conducted by a link to his computer. After consultation with the CEPU workplace delegate, Mr Fry voted “no.”

[68] The first time Mr Fry became aware there was Second Vote was when I received a message on his Instagram from a work colleague. Mr Fry did not have any access to work emails or text messages, and he did not receive a Notice for the Second Vote. He also did not receive a copy of the Agreement, or any other documents that were incorporated into the Agreement or explained the terms and effects of the Agreement.

[69] Mr Fry would have voted “no” if I had the opportunity to vote, and he stated he was disappointed that the Applicant did not make any attempt to contact him about the vote or provide him with materials relevant to the vote.

The Issues Before the Commission

[70] The issues finally agitated before the Commission were the result of refinement between the parties. That refinement was the result of sensible identification of the real issues between the parties, and the involvement of experienced Counsel and Industrial Advocates quite obviously assisted that refinement. Those eventual issues were whether:

(a) The Applicant had during the access period provided Employees with copies of the Agreement and other incorporated materials (s.180(2));

(b) The Applicant had taken all reasonable steps to notify Employees at the start of the access period of the time and place where the vote would occur and the voting method to be used (s.180(3));

(c) There were no other reasonable grounds for believing that the Agreement had not been genuinely entered into (s.188(1)(c)); and

(d) Whether the provisions of the Agreement regarding Individual Employment Agreements (IEA’s) are inconsistent with s.202 of the Act.

The Submissions of the Parties

(a) S.180(2) – Provision of the Agreement and Incorporated Materials

[71] The CEPU (supported by the Professionals and the ASU) submitted that the Applicant did not give employees a copy of the Agreement. The only steps the Applicant took were to:

(a) Email an attachment containing a copy of the Agreement to employees at their work emails on 6 September 2021; and

(b) Display the Agreement on its Intranet from 6 September 2021.

[72] A number of employees were not present at work from 6-7 September 2021, with a number of those employees being on extended leave. A further number of those employees did not have access to their work emails or to the TransGrid’s Intranet. The only additional step the Applicant took to ensure that those employees had access throughout the access period to the Agreement was to mail it to their residential addresses.

[73] The CEPU submitted that it would have been reasonable for the Applicant to:

(a) send a copy of the Agreement to Employees who were on leave or away on 6-7 September 2021, to their personal email addresses;

(b) ascertain from Employees who were on leave or away on 6-7 September 2021, what was the best means for them to receive a copy of or otherwise access the Agreement and provide them with a copy or access to a copy by those means; and

(c) ensure that a copy of the Agreement was delivered to the residential addresses of Employees by 7 September 2021.

[74] The CEPU also noted that employees who worked as field-based operators did not have the ability to access work emails or the Intranet outside of work.

[75] The Applicant submitted that s.180(2)(b) of the Act does not impose an absolute obligation to ensure that each employee covered by the Agreement receive a copy of the Agreement. The obligation is expressed in qualified terms and requires only that all reasonable steps have been taken. The Applicant summarised those steps as follows:

(a) “on 1 September 2021, TransGrid sent an email to all Employees via their TransGrid email address informing them that the Agreement would be available on the TransGrid intranet page, the Wire, between 7 and 14 September 2021;

(b) on 6 September 2021, TransGrid sent a second email to all Employees via their TransGrid email address informing them that the access period would commence on the following day and that the Agreement, the 2016 Agreement, the Electrical Power Industry Award 2020 and a detailed explanation of the terms of the Agreement that had changed from the 2016 Agreement (Explanation Document). The email contained a link to the Wire. For employees in TransGrid’s new business section, “Lumea”, a copy of the relevant documents were sent in a second email later that day as Ms Van Vliet did not have access to the equivalent Lumea intranet site;

(c) on 6 September 2021, TransGrid arranged for an external mail out organisation, Alpha Mail, to send a letter to the residential addresses of each of the Employees with a document summarising the terms of TransGrid’s offer and a copy of the email dated 6 September 2021 to the residential addresses of employees who it believed were scheduled to be on leave between 2 September 2021 to 17 September 2021. The mail out was actioned on 7 September 2021;

(d) on 7 September 2021, leaders of Employees were asked to ring their reports and request that they each phone each of their direct reports to talk about the Agreement and answer any questions; and

(e) between 7 and 14 September 2021, the Agreement, the 2016 Agreement, the Electrical Power Industry Award 2020 and the Explanation Document were accessible on the Wire.”

(Footnotes omitted)

[76] Regarding the employees who did not have the ability to access work emails or the Intranet outside of work, the Applicant submitted that there were only 21 employees who did not have access to a TransGrid phone, laptop or iPad.

[77] As to employees on leave, the Applicant noted that it arranged for Alpha Mail to send, as an additional measure, a copy of the email on 6 September 2021 to the residential addresses of employees it believed were on leave between 2 September and 17 September 2021. The Applicant further submitted:

“TransGrid subsequently became aware, on 14 September 2021, that there were 47 employees who were not sent a copy of the email dated 6 September 2021 due to an error in the leave reports generated.30 In respect of these employees, TransGrid contends that it took reasonable steps to provide access to the Agreement to these employees. Whether the steps failed, due to a systems error, to actually notify the employees is not the relevant question for the purposes of s 180(3). The focus is on the reasonable steps taken and not whether, the employees were actually advised and informed of the relevant information. That a systems error resulted in a very small proportion of the workforce, 47 out of 961, not receiving an additional, and arguably superfluous, communication whilst on leave does not offend the obligation to take ‘all reasonable steps’”.

(Footnotes omitted)

[78] As to Mr Fry in particular, the Applicant submitted that in the circumstances, it was not reasonable to require it to proactively identify the physical location of all employees on leave during the access period, or to seek to contact those persons and obtain alternative personal contact details, such as personal email addresses or social media accounts.

(b) S.180(3) – Notification of Vote and Method

[79] The CEPU (supported by the Professionals and the ASU) and the Applicant both relied on the detail of their submissions regarding s.180(2) to support their submissions regarding whether notification of the vote, and method of voting, had occurred.

(c) S.188(1)(c) – Genuine Agreement

[80] The CEPU (supported by the Professionals and the ASU) submitted that the electronic voting system deployed by the Applicant was inadequate and inappropriate, particularly in circumstances where 50 employees were absent from work and potentially without access to work email or any capacity to participate in the ballot. Two employees had given evidence they were unable to participate in the ballot. Those employees and potentially others were disenfranchised. Had those two employees have been able to vote, they would have voted “no” and the Agreement would not have been approved by a majority.

[81] Further, a number of employees were absent during the voting period and from 6 September 2021, appear not to have been alerted to the vote as a result of the deficient means employed by the Applicant to tell employees who were on leave or away from work the information required under s.180(3).

[82] The CEPU (supported by the Professionals and the ASU) submitted the Agreement is bereft of moral authority and authenticity, as some 50 employees may have been disenfranchised. Had those employees been able to participate in the vote, the Agreement may have been voted down. In the circumstances, there are reasonable grounds for believing that the Agreement was not “genuinely agreed” and the Agreement cannot be approved for this further reason.

[83] The Applicant submitted that at the time of the vote, 921 employees were covered by the Agreement. Of those employees, 820 employees cast a valid vote with 411 of those being to approve the Agreement. Accordingly, the Agreement was made when the voting closed on 17 September 2021.

[84] The Applicant submitted the effect of the CEPU’s submission was to elevate the pre-approval obligations in ss 180(2) and (3), and to require an employer to definitively establish that employees had actually received the relevant information. It submitted such a construction was inconsistent with the express terms of ss 180(2) and (3), and the established authority, which requires that the employer need only satisfy the Commission that it took “all reasonable steps.”

[85] In respect of the concerns raised about the two employees who stated they were unable to participate in the vote, the circumstances relating to Mr Fry are as addressed above. In respect of Mr Thornton, who did not cast a valid vote as he was on an unplanned absence due to sick leave, the Applicant noted Mr Thornton was not on leave when the emails on 1 and 6 September 2021 were sent informing him of the ability to access the Agreement and in respect of the vote, and that a vote could have been conducted by telephone. Mr Thornton had also been provided with contact details for the enterprise agreement mailbox should he need to raise any queries, however he did not direct any queries to that inbox.

[86] The Applicant submitted that there was nothing on the face of the evidence which provided a reasonable basis for believing that the Agreement has not been genuinely agreed.

(d) Individual Employment Agreements

[87] The CEPU, not supported by the Professionals, submitted that Clause 43.1 in Schedule C to the Agreement requires an employee to whom the Schedule applies to enter into an IEA. An employee who enters into such an IEA is then not able to cancel or otherwise opt out of such IEA. Where such an employee commences a new job, they are offered a new IEA and, presumably, are required to enter into that IEA. These provisions apply to employees employed in Salary Points between 35-40 inclusive.

[88] Clause 42.1 in Schedule B applies to employees employed in roles between Salary Points 30-34 inclusive. Clause 42.1 provides that an employee to whom Schedule B applies who commences employment with TransGrid or accepts a new role with it after the Agreement comes into force may be required to agree to enter into an IEA. Clause 42.1 purports to confer power on TransGrid to require an employee in Salary Points 30-34 to enter into an IEA.

[89] The CEPU submitted that the effect of entering into an IEA, as a matter of substance, is that the provisions of the Agreement will no longer apply to such employees. As such the provisions are fundamentally inconsistent with and counter to s.202 of the Act as they purport to require employees to enter into IEA’s which cannot be done and otherwise those employees cannot cancel or terminate them.

[90] The Professionals submitted:

(a) The CEPU’s contention was previously addressed and dealt with by Commissioner McKinnon in NSW Electricity Networks Operations Pty Limited T/A TransGrid [2018] FWC 2324 (the TransGrid 2018 Decision);

(b) The Professionals maintain that the Commission does not need to consider whether the terms of an agreement comply with s.202 of the Act in order to determine the matters that arise pursuant to ss 186 and 187; and

(c) In the alternative, if the Commission considers it does need to determine the validity of Schedule B and C of the Proposed Agreement, those Schedules are valid and, to the extent they are viewed as flexibility terms, are not inconsistent with sections 202 and 203 of the Act.

[91] The Applicant supported the Professional’s submission that the Commission’s statutory task in respect of the approval of the Agreement does not extend to determining whether Schedules B and C comply with ss 202 and 203 of the FW Act. Further, the Applicant submitted the CEPU’s submission ought be rejected because the terms of Schedules B and C do not constitute a “flexibility term” within the meaning of that term in s.202 of the Act, and even if Schedules B and C amounted to a “flexibility term” and were found to be invalid, it does not follow that TransGrid did not comply with ss.180(5) or that there was no genuine agreement by reason of s.188(1)(c).

Consideration

(a) Section 180(2) and (3)

[92] The issues regarding genuine agreement and compliance with sub-sections (2) and (3) of s.180 of the Act, turn on the Applicant’s treatment of employees who were on leave at the start of, and during the access period for, the Agreement, and employees who were not able to access their emails and the Wire through TransGrid laptops, tablets or mobile phones.

[93] Both the Applicant and the CEPU relied on the decision of Deputy President Gostencnik in BGC Contracting Pty Ltd, 1 an analysis also adopted by the Full Bench in AWU v Rigforce Pty Ltd,2 where the Deputy Presidentconsidered what constitutes the “taking of all reasonable steps,” and observed:

“A requirement or obligation to take “all reasonable steps” seems to me to require the identification of the steps a reasonable person would regard as reasonable in the circumstances that apply. Whether particular steps are reasonable will depend on the particular circumstances existing at the time the obligation arises. A requirement to take all reasonable steps does not extend to all steps that are reasonably open in some literal or theoretical sense. The assessment of whether an available step was reasonable must also be judged against the objective that is sought to be achieved by the imposition of the obligation to take “all reasonable steps”. In the case of s.180(2), the objective of the reasonable steps is directed to ensuring that all relevant employees are given, or have access to, an enterprise agreement and any incorporated material, during or throughout the identified period. That is, that the employees have the opportunity to review the material before being asked to approve the agreement in order that employees make an informed choice. In some cases, only one step will be required to achieve this objective, for example by the employer giving each relevant employee a copy of an enterprise agreement and any incorporated material during the access period. But absent such a step, and depending on the circumstances, several steps may be required to be taken by the employer in order that the objective is achieved and the obligation is discharged.”

(Emphasis added. Footnote omitted)

[94] The obligations of the Applicant arose from sub-sections (2) and (3) of s.180 of the Act, during the access period (7 to 14 September 2021), and at the start of the access period respectively.

[95] The circumstance of employees being on leave was addressed in BGC Contracting Pty Ltd, 3 where Deputy President Gostencnik observed:

“In some circumstances it may be necessary for an employer to take reasonable steps directed to both s.180(2)(a) and (b). Thus, some employees might be given a copy of the relevant material (for example, employees on extended leave or those who were not at work for the entire access period). Others might have access to a copy or copies of those materials which by the start of the access period are left in readily accessible locations at the workplace(s).”

[96] It is abundantly clear that the Applicant considered that the circumstance of employees being on leave was relevant, at least for attendance at the Second Vote, because on 2 September 2021, prior to the access period, the Applicant generated the First Leave Report showing employees who had entered leave into the system as at 2 September 2021, for the period 15 September to 17 September 2021.

[97] The employer apparently then considered that the relevance of employees on leave was then attached to the issue of the provision of the Agreement and incorporated material to employees on leave because on 6 September 2021, the Applicant arranged for Alpha Mail to send a letter to the residential addresses of each of the employees identified in the First Leave Report, which included the content of the email to all employees dated 6 September 2021, along with the document summarising the terms of TransGrid’s offer.

[98] By generating the First Leave Report the Applicant became aware that approximately 5% of the Applicant’s workforce were on leave for the period 15 September to 17 September 2021. By generating the Second Leave Report on 14 September 2021, the day before the second vote commenced, the Applicant became aware that a larger number of employees were on leave than identified in the First Leave Report for the period 15 September to 17 September 2021, and that 47 employees had not been sent a copy of the email dated 6 September 2021. 4

[99] Attached to the CEPU’s Outline of Submissions were confidential lists of employees absent at the commencement of the access period for the Agreement, and employees absent during the voting period for the Agreement (the Confidential Employee Lists). Those lists were accepted as correct summaries by the Applicant. Those lists recorded many employees absent for periods of multiple months, ordinarily on parental leave or long service leave. Further to the Confidential Employee lists, and arising from communication between the parties, it seemed agreed that from:

(a) 1 to 17 September, there were 30 employees who were on extended leave; 5

(b) 1 to 14 September, there were 39 employees who were on leave; 6 and

(c) 6 to 17 September there were 33 employees on leave. 7

[100] Regarding employees who were not able to access their emails and the Wire through TransGrid laptops, tablets or mobile phones, there were 21 such administrative and office based employees. 8 While they could access their emails and the Wire from their desktop computers, they must be actually at work to do so.

[101] In relation to employees on leave, the Applicant submitted as follows: 9

“TransGrid subsequently became aware, on 14 September 2021, that there were 47 employees who were not sent a copy of the email dated 6 September 2021 due to an error in the leave reports generated. In respect of these employees, TransGrid contends that it took reasonable steps to provide access to the Agreement to these employees. Whether the steps failed, due to a systems error, to actually notify the employees is not the relevant question for the purposes of s 180(3). The focus is on the reasonable steps taken and not whether, the employees were actually advised and informed of the relevant information. That a systems error resulted in a very small proportion of the workforce, 47 out of 961, not receiving an additional, and arguably superfluous, communication whilst on leave does not offend the obligation to take “all reasonable steps.”

[102] While the reference to only s.180(3) in the above submission seems to be partially erroneous, with the email dated 6 September 2021 also addressing s.180(2) by noting the availability on the Wire of the Agreement, a comparison of the Agreement against the TransGrid Enterprise Agreement 2016, the TransGrid Enterprise Agreement 2016, the Electrical Power Industry Award 2020, and a detailed explanation of the terms of the 2020 Agreement, I find that submission unacceptable. On the last day of the access period to Applicant became aware of a material failure to provide key information regarding the Agreement and the vote to 47 employees. The remedial steps taken by the Applicant thereafter, principally involving CorpVote undertaking a test run of the voter roll, and contacting the managers of those employees to ask them to reach out to those employees for alternative contact details, did not remedy the failures. The Applicant did not provide access to the Agreement and other materials “throughout the access period” (s.180(2)(b)).

[103] I also do not consider that 47 out of 961 employees to be a “very small proportion of the workforce,” particularly where the majority achieved in the second vote was a mere two votes. I agree with the conclusion of Commissioner Gregory in Australian Comfort Group Pty Ltd T/A Sleepmaker, 10 (Australian Comfort), where the Commissioner found:

“I am satisfied that in a situation where, for example, a significant proportion of the workforce were absent from the workplace, for whatever reason, during an access/voting period it could be expected that the requirement to “take reasonable steps” might require those employees to be contacted to ensure that appropriate information was divided (sic) to them or, alternatively, for the process to be deferred until they were again present in the workplace.”

[104] In Australian Comfort, two out of 100 employees were affected. The proportion affected in the matter at hand was significantly higher, and the possibility of an effect on the result of the vote, it transpired, was significantly greater. In the circumstances I consider it would have been reasonable, and so constitute a reasonable step that should have been taken, for the Applicant to have:

(a) Ascertained from affected employees who were on leave or away on 6-7 September 2021, what was the best means for them to receive a copy of or otherwise access the Agreement and provide them with a copy or access to a copy by those means; and

(b) Ensure that a copy of the Agreement was delivered to the residential addresses of employees by 7 September 2021.

[105] In the circumstances, the Applicant failed to discharge its obligation to take all reasonable steps to ensure that employees had access throughout the access period to a copy of the Agreement, and so failed to comply with s.180(2) of the Act. That failure also resulted in the Applicant failing to take all reasonable steps to advise of the time, place and method of the vote, and so failing to comply with s.180(3) of the Act.

[106] The practical effect of the Applicant’s failures can best be exhibited in the evidence of Mr Fry. He was denied an opportunity to vote, and would have voted “no”. Similarly Mr Thornton, who was on unplanned sick leave on 17 September 2021, was unable to lodge his “no” vote.

(b) Section 188(1)(c)

[107] Section 188(1)(c) involves the finding that there are no other reasonable grounds for believing that an agreement has not been genuinely agreed, and informs the requisite conclusion in s.186(2)(a) that an agreement “… has been genuinely agreed to by the employees covered by the agreement.”

[108] In Re KCL Industries Pty Ltd, 11 the Full Bench adopted the detailed analysis of decided cases relevant to the proper interpretation and application of s.188(c) of the Act (as s.188(1)(c) then was) of Deputy President Asbury in Re Central Queensland Services Pty Ltd (t/as BHP Billiton Mitsubishi Alliance).12 Of particular relevance to the matter at hand was the Deputy President’s reference to her decision in Re MSS Security Pty Ltd Enterprise Agreement 2012,13 which was summarised as:

“In Re MSS Security Pty Ltd Enterprise Agreement 2012 the matters that were held to constitute reasonable grounds for the Commission to believe that the agreement was not genuinely agreed to were that employees were incorrectly advised of the date upon which the approval ballot would close and as the percentage of employees who cast a vote was small, it was more probable than not that a significant number of employees did not vote because of incorrect information about the closing date of the ballot. The version of the Agreement that was voted on by the employees in that case was also missing pages.”

[109] The actual factual detail of Re MSS Security Pty Ltd Enterprise Agreement 2012, was outlined in that decision as follows: 14

“In relation to s.188(c) I am of the view that there are other reasonable grounds for believing that the Agreement has not been genuinely approved by employees. The outcome of the ballot was extremely close with 87 employees voting in favour of the Agreement and 82 voting against it. Although the 6 informal votes were not determinative, when they are added to the “yes” and “no” votes, the result is that only 175 employees of a total of 394 (according to the Employer Declaration in Support of Approval of the Agreement) cast a vote. While this is not in itself a barrier to approval of an agreement, it is in my view significant in the context of the circumstances in this case, where employees were not properly informed of the date on which votes were to be counted. It is more probable than not that employees, other than Mr McLeod and Mr Parker, did not have an opportunity to vote for or against the Agreement because they mistakenly believed that the ballot was not closing until 30 January 2010, when it closed on 30 December 2009.”

[110] I consider there are reasonable grounds for believing that the Agreement has not been genuinely approved by employees. The result of the Second Vote was extremely close, with a majority, 15 of only two votes, while there is evidence that at least two employees were denied the opportunity to vote “no”. In addition to those two employees it is clear that a number of employees on leave were unaware of the manner of voting or the vote itself.

[111] The Agreement is not capable of approval as it was not “genuinely agreed” as required by s.186(2)(a) of the Act, having regard to s.188(1)(c). This is because there were reasonable grounds to believe the Agreement was not genuinely agreed to by the employees.

(c) Individual Employment Agreements

[112] Having determined that the Agreement is not capable of approval as it was not “genuinely agreed” to by the employees, and that the Applicant failed to comply with s.180(2) and (3) of the Act, it is unnecessary to consider whether Clause 43.1 in Schedule C and Clause 42.1 in Schedule B of the Agreement are inconsistent with s.202 of the Act.

[113] I further consider that it would be inappropriate for me to consider the submissions of the CEPU as:

(a) Similar submissions were made, albeit by the CPSU, and determined by Commissioner McKinnon in the TransGrid 2018 Decision; 16

(b) The TransGrid 2018 Decision was not the subject of any appeal; and

(c) The TransGrid 2018 Decision concluded with directions for the filing of final submissions and/or undertakings, primarily relating to IEA’s. I have not been provided with whatever submissions and/or undertakings that may have been filed, upon which the decision to finally approve the 2016 Agreement was made.

Conclusion

[114] The Agreement is not capable of approval as it was not genuinely agreed to by the employees (ss. 186(2)(a) and 188(1)(c), and that the Applicant failed to comply with s.180(2) and (3) of the Act. The Application is dismissed.

DEPUTY PRESIDENT

Appearances

Ms F Leoncio, for the Applicant.
Mr P Boncardo, for the CEPU.
Ms N Falvey, for Professionals.
Mr S Szabo, for the ASU.

Hearing Details

2021.
November 25 and 26.
Sydney (via videoconference)

Final Submissions

2021.
December 3.

Printed by authority of the Commonwealth Government Printer

<PR736633>

 1   [2018] FWC 1466, at [43].

 2   [2019] FWCFB 6960, at [36].

 3   [2018] FWC 1466, at [41].

 4 Applicant’s Outline of Submissions at [20].

 5   Transcript PN 754.

 6   Transcript PN 770.

 7   Transcript PN 755.

 8 Applicant’s Outline of Submissions at [18].

 9 Applicant’s Outline of Submissions at [20].

 10   [2016] FWC 2430,at [34].

 11 (2016) 257 IR 266, at [29].

 12   [2015] FWC 1554.

 13   [2010] FWA 3687.

 14   [2010] FWA 3687, at [33].

 15   As the undefined term “majority” is understood, see Penrhos College Teaching Staff Enterprise Bargaining Agreement 2012, at[19].

 16   TransGrid 2018 Decision at [30] and [31]