Snagfu Pty Ltd T/A DCE Electrical and as Leopard Controls

[2022] FWCA 1912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Snagfu Pty Ltd T/A DCE Electrical and as Leopard Controls

(AG2022/247)

DCE Electrical and Leopard Controls Enterprise Agreement 2021

Electrical contracting industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 10 JUNE 2022

Application for approval of an enterprise agreement – employees covered by agreement – genuine agreement – NERR – enterprise agreement approved.

Introduction and background

Snagfu Pty Ltd T/A DCE Electrical and Leopard Controls (Snagfu) has applied for approval of the DCE Electrical and Leopard Controls Enterprise Agreement 2021 (Enterprise Agreement).

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is a bargaining representative for the Enterprise Agreement. The CEPU opposes the application for approval of the Enterprise Agreement.

On 23 May 2022, I conducted a hearing in relation to the application by Snagfu for approval of the Enterprise Agreement. Mr Lindsay Dick, co-owner and Managing Director of Snagfu, Mr Russell Gardiner, Service/Maintenance Manager, Mr Andre Wilson, Electrical Draftsman/Switchboard Manufacturer, Mr Brenton Gittos, Works Manager, Mr Joel Crispin, Project Manager, Mr Daniel Cowan, Senior Controls Technician, Mr Jayden Paul Briotti, Electrical Supervisor, Mr Kimberley Raymond Sharpe, Fibre Optic Technician/Telecommunications Technician/SAT Operative/Data Base Specialist, Mr Lalin Dilanka Thishara Delgoda Delgoda Kankanamalage, Service Technician, Mr Liam Lance Southern, Service Technician, Mr Ryan Joshua Newbold, Fibre Optic Technician/Telecommunications Technician and Mr Wayne Raymond Dixon, Warehouse Supervisor/Trades Assistant gave evidence for Snagfu. The CEPU adduced evidence from Mr Ash Bamford, Organiser for the Western Australian branch of the CEPU.

Grounds of objection

The CEPU opposes the application for approval of the Enterprise Agreement on seven grounds.

The first ground is that the Fair Work Commission (Commission) cannot be satisfied that the Enterprise Agreement was made in accordance with s 182(1) of the Fair Work Act 2009 (Cth) (Act) because it cannot be satisfied that a majority of the employees covered by the Enterprise Agreement and who cast a valid vote approved the Enterprise Agreement.

The second ground is that the Commission cannot be satisfied that Snagfu complied with s 180(5) of the Act because at least one of the information sessions which Snagfu held to explain the terms of the Enterprise Agreement was held before making modifications to the Enterprise Agreement which was ultimately put to a vote.

The CEPU next contends that, pursuant to s 188(1)(c) of the Act, the Commission cannot be satisfied that there are not any other reasonable grounds for believing that the Enterprise Agreement has not been genuinely agreed to because of one or a combination of the following grounds:

(a) Even if a majority of eligible voters approved the Enterprise Agreement, the voting process was sufficiently corrupted by the inclusion of ineligible voters such as to render the whole vote invalid. This is ground three.

(b) Even if a majority of eligible voters approved the Enterprise Agreement, such approval was done in the presence of misleading conduct concerning coverage of the Enterprise Agreement. This is ground four.

(c) Snagfu failed to comply with its obligations under s 173(1) of the Act to take reasonable steps to give a copy of the notice of employee representational rights (NERR) to every employee who would be covered by the Enterprise Agreement and who was employed at the notification time. This is ground five.

(d) Snagfu failed to comply with its obligations under s 174(1A) of the Act because the NERR did not identify the proposed coverage of the Enterprise Agreement as required by regulation 2.05 of the Fair Work Regulations 2009 (Cth) (Regulations). This is ground six.

Ground seven is that the Commission cannot be satisfied pursuant to s 186(3) of the Act that the group of employees covered by the Enterprise Agreement was fairly chosen.

Ground 1 – was the Enterprise Agreement made?

There is no dispute that 35 employees of Snagfu were given an opportunity to vote on the Enterprise Agreement, 31 of whom cast a valid vote, and 19 of whom voted to approve the Enterprise Agreement.

The CEPU contends that the following eight employees of Snagfu, who were given the opportunity to vote on the Enterprise Agreement, should not have been permitted to vote because they were not, on the proper construction of the coverage clause in the Enterprise Agreement, covered by it:

(a) Mr Brenton Gittos;

(b) Mr Daniel Cowan;

(c) Mr Jayden Briotti;

(d) Mr Joel Crispin;

(e) Mr Russell Gardner;

(f) Mr Andre Wilson;

(g) Mr Wayne Dixon; and

(h) Mr Kim Sharpe.

Snagfu submits that Mr Crispin was potentially not covered by the Enterprise Agreement, but the other seven employees were so covered.

There is no dispute that if seven or more of the 35 employees who were given an opportunity to vote on the Enterprise Agreement should not have voted because they were not covered by the Enterprise Agreement, then the Commission could not be satisfied that there was a majority of employees who were entitled to, and did, cast a valid vote to approve the Enterprise Agreement. That is because, if there were seven employees who were given an opportunity to vote on the Enterprise Agreement but should not have voted because they were not covered by the Enterprise Agreement, then the number of employees entitled to vote on the Enterprise Agreement reduces from 35 to 28, the number of employees who cast a valid vote may have been as low as 24 (31 – 7 = 24), the number of employees who voted to approve the Enterprise Agreement may have been as low as 12 (19 – 7 = 12), and 12 votes out of 24 is not a majority of those employees who were entitled to cast a valid vote to approve the Enterprise Agreement.

Ground one turns on the proper construction of the coverage clause of the Enterprise Agreement, and the application of that construction to the eight disputed employees. Section 53(1) of the Act provides that “An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer”.

Clause 2 of the Enterprise Agreement describes its coverage as follows:

“2 PARTIES BOUND AND APPLICATION OF AGREEMENT

2.1      This Agreement shall apply to and be binding on:
2.1.1    Snagfu Pty Ltd (ABN 82 109 054 462), trading as DCE Electrical and as Leopard Controls of 159 Abernethy Road Belmont Western Australia 6104 (the ‘Company’ or ‘Employer’); and
2.2.2    the Employees of the Company employees in the classifications specified in clause 7 (‘Employee’ or ‘Employees’), provided that the Agreement shall not apply to the Company’s Mangers and Office based employees.”

Clause 7 of the Enterprise Agreement defines the classifications covered by the Enterprise Agreement. It provides:

“7 CLASSIFICATIONS

For the purposes of this Agreement:

7.1 Labourer means an Employee who:
7.1.1 performs labouring work and is employed as such; and/or
7.1.2 engages in electrical, electronic or communications work and is not classified as Tradesperson's assistant or higher classification and is not otherwise provided for in this Agreement

7. 2 Trades Assistant means an Employee who:
7 .2.1 is engaged in assisting a trades person, provided that such assistance shall not include the work of a tradesperson;
7.2.2 without limiting the scope of the work, may perform the following tasks to the level of his/her training:
a. unskilled tasks as directed;
b. cutting to specified lengths -ducting, Unistrut, conduit and other cable and support systems;
c. painting cable trays, ducts, and conduits;
d. directly assisting a tradesperson installing cable, conduit ducting and other cable enclosures or support systems;
e. chasing walls as marked by a tradesperson.

7.3 Communications Technician means an Employee who:
7.3.1 has worked for not less than one year in the industry or holds the equivalent experience and without limiting the scope of the work and to the level of his or her training is an employee who:
a. is directly in charge of an electrical store and responsible for materials, ordering and purchasing; or
b. has worked for not less than one year as an electrical worker or has the equivalent experience in the installation of electronics equipment and who, under the minimum supervision of a tradesperson or electronics serviceperson;
c. installs radio, communications and related equipment including antenna; or installs fire alarm or security alarm equipment; or
d. installs, terminates, and tests data and communication cabling; or
e. inspects and tests fire alarms or security alarm equipment.

7.3.2 This Employee shall not undertake tasks requiring the skills of an Electrical Tradesperson.

7.4 Electrical Tradesperson means an Employee who:
7.4.1 holds a trade certificate or tradesperson's rights certificate in an electrical trade and is licensed to perform works; or
7.4.2 has successfully completed an appropriate trade course or who has otherwise reached an equivalent standard of skills and knowledge in electronics; or
7.4.3 has successfully completed an appropriate instrumentation trade course and is licensed to perform those works; or
7.4.4 holds an appropriate electrical/refrigeration/air conditioning trade certificate and is licensed to perform works; or
7.4.5 has successfully completed an appropriate trade course in linework or cable jointing or who has otherwise reached an equivalent standard of skills and knowledge.
7.4.6 Included in this classification is the work of:
a. Electrical Tradesperson.
b. Electronic Serviceperson.
c, Instrument Tradesperson and is directed to perform those works
d. Dual Instrumentation and is directed to perform those works by the Company;
e. Refrigeration/ Air Conditioning Tradesperson; and
f. Linesperson/Cable Jointer.

7.5 Senior Electrical Tradesperson means an Employee who meets the criteria of 7.4 and:
7.5.1 is presently employed by the Company and has completed 2 years' service with the Company, excluding any years of service with the Company as an apprentice; or
7.5.2 has completed 2 years of service with another company, or companies, post completion of his or her apprenticeship and has demonstrated the relevant skills and experience to be considered 'senior'; or
7.5.3 has relevant experience to be considered senior taking Into account factors such as, but not limited to at least 2 years of relevant experience working on large scale commercial construction projects; or
7.5.4 completes his or her apprenticeship with the Company provided he or she was employed by the Company as a fourth-year apprentice immediately prior to the commencement date of this Agreement; or
7.5.5 is otherwise deemed by the Company to be senior.

7.6 An employee who holds a relevant dual trade and is directed by the Company to perform works as a dual tradesperson shall commence work at the level of a Senior Electrical Tradesperson.

7 .7 For the purposes of clause 7.5:
7.7.1 any time worked for the Company as a Trade Assistant, Communications Technician or Electrical Tradesperson on a casual or part-time basis will count as experience towards the two-year qualifying period; and
7.7.2 successive periods of employment will count as experience towards the two-year qualifying period, provided that the time between each period of employment was no more than 6 months.”

In AMWU v Berri Pty Ltd (Berri),[1] a Full Bench of the Commission summarised the principles which are relevant to the proper construction of an enterprise agreement as follows:

“1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from: (i) the text of the agreement viewed as a whole; (ii) the disputed provision’s place and arrangement in the agreement; (iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include: (i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement; (ii) notorious facts of which knowledge is to be presumed; and (iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

More recently, the Full Court of the Federal Court of Australia stated the principles applicable to the interpretation of an enterprise agreements in James Cook University v Ridd:[2]

“(i) The starting point is the ordinary meaning of the words, read as a whole and in context.

(ii) A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind”. The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose”.

(iii) Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to “... the entire document of which it is a part, or to other documents with which there is an association”.

(iv) Context may include “... ideas that gave rise to an expression in a document from which it has been taken”.

(v) Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form...”

(vi) A generous construction is preferred over a strictly literal approach, but “Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties”.

(vii) Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.” [references omitted]

Company’s Managers and Office based employees

Snagfu contends that, in order to fall within the exclusion described as “the Company’s Managers and Office based employees” in clause 2.1.2 of the Enterprise Agreement, an employee must be both one of the “Company’s Managers” and an “Office based employee”. Snagfu submits that the conjunctive “and” between “Company’s Managers and Office based employees” is, according to its ordinary meaning, inclusive, with the result that the exception should be interpreted to capture employees who are both the “Company’s Managers” and “Office based”. The CEPU contends that the exclusion covers employees who are either “Office based” or the “Company’s Managers”.

The ordinary meaning of the word “and” is conjunctive, but in appropriate circumstances it can be construed as having a dispersive or disjunctive meaning. This can occur when the context so requires or where the word is used as a link in a list of items or is necessary to avoid an absurd result.[3]

In the present case, clause 2.1.2 of the Enterprise Agreement describes its coverage as “the Employees of the Company employed in the classifications specified in clause 7”, but then excludes from coverage “the Company’s Managers and Office based employees”. In my view, the word “and” between “the Company’s Managers” and “Office based employees” is used as a link in a list of items which describes the employees who are excluded from coverage of the Enterprise Agreement. It is clear from the expressions “the Company’s Managers” and “Office based employees” that two separate groups of employees were objectively intended to fall within the class of employees who are excluded from coverage of the Enterprise Agreement. That is, an employee who is one of “the Company’s Managers” or “office based employees” fits within the class of employees who are excluded from coverage of the Enterprise Agreement.

Meaning of “the Company’s Managers”

Snagfu contends that in considering whether an employee is one of “the Company’s Managers” within the meaning of clause 2.1.2 of the Enterprise Agreement it is necessary to have regard to the following indicative responsibilities and work:

(a) the power to transact the whole affairs of Snagfu;

(b) responsibility for setting overall direction and objectives;

(c) responsibility for planning, directing and coordinating activities of organisations and departments; and

(d) the authority to direct and allocate assets and resources of Snagfu.

In support of these contentions, Snagfu relies on the following:

(a) Justice Reeves’ judgment in Pleash in the matter of Suncoast Restoration Pty Ltd (in liq),[4] in which his Honour observed, in relation to the term “manage or manager”, the “need for the person to have active control over the entirety of the entity concerned”;

(b) The ordinary meaning of “manager”: namely “a person with power to transact the whole affairs of the company; distinguished from an agent who is to do a particular thing and a servant who obeys orders”;[5] and

(c) The Australian Bureau of Statistics classification description of a “manager”:

“Managers plan, organise, direct, control, coordinate and review the operations of government, commercial, agricultural, industrial, non-profit and other organisations, and departments.

Indicative Skill Level:

Most occupations in this major group have a level of skill commensurate with the qualifications and experience outlined below.

In Australia:
· Bachelor’s degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or
· AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2)

In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

Tasks Include:
· setting the overall direction and objectives of organisations and departments within organisations
· formulating, administering and reviewing policy and legislation to ensure organisational and departmental objectives are met
· directing and coordinating the allocation of assets and resources
· directing, controlling and coordinating the activities of organisations and departments, either personally or through senior subordinate staff
· monitoring and evaluating overall organisational and departmental performance, and adjusting policies, rules and regulations to ensure objectives are met
· representing the organisation at official occasions, in negotiations, at conventions, seminars, public hearings and forums, and liaising between areas of responsibility.”

Snagfu submits that it has two “Company Managers” within the meaning of clause 2.1.2 of the Enterprise Agreement. One manages the business known as Leopard Controls and the other manages the business known as DCE Electrical. Neither employee voted on the Enterprise Agreement.

The CEPU contends that the expression “the Company’s Managers” includes any employee who manages or supervises the work of other employees.

Justice Reeves’ judgment in Pleash in the matter of Suncoast Restoration Pty Ltd (in liq) relevantly concerned the meaning of “trustee” as a “person who manages the fund, scheme or trust” in s 10 of the Superannuation Industry (Supervision) Act 1993 (Cth). I do not consider that decision to be of much assistance in construing the expression “the Company’s Managers” in the coverage clause of the Enterprise Agreement.

The ordinary meaning of “manager” includes “1. one who manages. 2. one charged with the management or direction of an institution, a business or the like. 3. one who manages resources and expenditures, as of a household.”[6] In the employment context, it is common for an employee to work in a position such as Sales Manager, Marketing Manager, Human Resources Manager, OH&S Manager, or General Manager. Although the General Manager is likely to have responsibility for the entirety of the business, the other examples to which I have referred would likely only have responsibility for the area designated in their title, such as sales, marketing, human resources, or occupational health and safety.

An objective background fact known to the parties at the time the Enterprise Agreement was negotiated and allegedly made is that Snagfu conducts two businesses. The first business is known as DCE Electrical. It is an electrical contracting business. It undertakes electrical installation and maintenance work. The second business is known as Leopard Controls. It provides services relating to heating, ventilation and air-conditioning (HVAC) design and installation, mainly on large commercial buildings.

The expression “Company’s Managers” must be construed in context. Part of that context includes the other provisions of the Enterprise Agreement. The following provisions are contextually relevant to the proper construction of the expression “Company’s Managers” in clause 2.1.2:

“6.10.2 Where an Employee is taking medication or suffering from any condition that may affect or limit their ability to carry out work, they are to advise their supervisor.”

“15 LEADING HAND ALLOWANCE (All-Purpose Allowance)

15.1 A Leading Hand allowance is an All-Purpose Allowance of $1.50 per hour paid in recognition of additional responsibility, as determined by the Company, where the Employee is appointed as a Leading Hand for a specified period on a Project of Project Works

15.2 For the purposes of this Agreement, a Leading Hand means any electrical worker (other than a supervisor or foreperson) who is deemed by the Company as a Leading Hand and is placed in charge of work on which 3 or more employees, in addition to the electrical worker, are engaged for a particular project or project work.”

“20.3 Normal wear and tear and replacement of item 35, 36, 37 and 39 may be arranged with the Project Manager.”

“23.4 After approval by the Employees Manager or Project Manager, all work done during the normal meal break and thereafter until a meal break is allowed must be paid at 150% of the Base Hourly Rate.”

“46.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the Employee or Employees and relevant supervisors and/or management.”

It is apparent from these provisions that an employee may be a “Manager” within the meaning of the Enterprise Agreement without having responsibility for the entirety of the business. For example, it could not be sensibly suggested from the terms of the Enterprise Agreement that a Project Manager, who can approve such things as an employee working through their meal break (clause 23.4) or “normal wear and tear replacement of particular tools” (clause 20.3), has responsibility for the entirety of the business. In addition, these provisions make clear that employees covered by the Enterprise Agreement may be appointed by Snagfu as a “Leading Hand” and “placed in charge of work on which 3 or more employees, in addition to the electrical worker, are engaged for a particular project or project work” (clause 15.2). The position of “Leading Hand” is distinguished from that of “supervisor”, “foreperson”, “Employee’s Manager”, and “Project Manager” under the Enterprise Agreement. It is clear from the classification structure in clause 7 of the Enterprise Agreement that an Electrical Tradesperson or Senior Electrical Tradesperson may supervise the work of a Communications Technician, Trades Assistant or Labourer.[7] Accordingly, these provisions of the Enterprise Agreement suggest that it covers employees working “on the tools”, including supervisors and leading hands, but does not cover “Managers”. It follows that a “Manager” under the Enterprise Agreement is something more than an employee who supervises the work of other employees.

Drawing all these threads together, I am of the opinion that the expression “the Company’s Managers” in clause 2.1.2 of the Enterprise Agreement means, on its proper construction, a person who has managerial responsibility for one or more parts of, functions within, or projects undertaken by, Snagfu’s DCE Electrical business or its Leopard Controls business. This would include a Project Manager.

Meaning of “Office based employees”

The CEPU contends that the word “Office” in clause 2.1.2 of the Enterprise Agreement means the whole of the building at 159 Abernethy Road, Belmont, Western Australia (Premises). Snagfu submits that it means the offices within the Premises, but does not include the workshop or depot (storage area) within the Premises.

The word “Office” is not defined in the Enterprise Agreement.

The ordinary meaning of “office”, as a noun, relevantly includes “1. a room or place for the transaction of business, the discharge of professional duties, or the like: the solicitor’s office. 2. the room or rooms in which the clerical work of an industrial or other establishment is done. 3. a room assigned to a specific person or group of persons in a commercial or industrial organisation.”[8] The ordinary meaning of “workshop”, as a noun, relevantly includes “1. a room or building in which work, especially mechanical work, is carried on (considered as smaller than a factory).”[9] The ordinary meaning of “depot” relevantly includes “1. a depository; storehouse.”[10]

The following provisions of the Enterprise Agreement are contextually relevant to this issue:

“2.1.1 Snagfu Pty Ltd (ABN 82 109 054 462), trading as DCE Electrical and as Leopard Controls of 159 Abernethy Road Belmont Western Australia 6104 (the 'Company' or 'Employer'); and”

“5.5 The Company Workshop and or Depot is located at 159 Abernethy Road Belmont Western Australia, 6104. Subject to 14 days' notice, the Company may notify and record a changed office, workshop, or depot if there are genuine operational requirements to do so but not for the purpose of avoiding obligations under this Agreement.”

“19 TRAVEL AND EXPENSES

19.1 Location of workshop or depot
19.1.1 The Company Workshop or Depot is the location specified in clause 5.5 subject to clause
19.1.2 Subject to 14 days' notice, the Company may notify and record a changed registered office, workshop or depot if there are genuine operational requirements to do so but not for the purpose of avoiding obligations under clause 19.

19.2 Commencing on job-an Employee required to work at a job away from their workshop or depot must, at the direction of their Company, present themself for work at such job at the usual time of starting work.

19.3 Motor vehicle allowance
19.3.l The Company must pay an Employee a motor vehicle allowance of $0.80 per kilometre as compensation for expenses where the Employee, by agreement with their Company, uses their own motor vehicle in the following cases:
a. for the distance of the Employee's journey which is in excess of the distance of the journey between the Employee's home and their workshop or depot where the Employee starts or finishes work at a job away from their workshop or depot; or
b. for the distance of the Employee's journey where the Employee is recalled to work overtime after leaving the Company's business; or
c. for the distance of the Employee's journey in travelling between their workshop or depot and a job or between jobs; or
d. for the distance of the Employee's journey in travelling to or from distant work.

19.4 Start and/or finish on job
19.4.1 Where an Employee commences and /or ceases work on a site or a project, as opposed to the company's office or workshop and is not provided with transport or a company transport allowance to the site or project by the company. The Employee shall receive a travel allowance in accordance with the provisions of this sub-clause on jobs measured by radius from the GPO, Perth:

Distance (radius) Amount

Up to 50 km $34.00 per day

50km-60km $36.50 per day

60km-75km $46.50 per day

75km-90km $63.30 per day

90km-100km $77.50 per day

19.5 When the Employee is required to start and finish work at the Company's registered office or depot the allowances in clause 19.3 and 19.4 do not apply.

19.6 Motor allowance for use of private vehicle for business purposes
19.6.1An Employee who in the service of the Company uses their own vehicle at the request of the Company will be paid $0.80 per kilometre.”

The CEPU contends that the whole of the Premises is an office under the ordinary meaning of that word because it is a specific building or place where the business of the company is conducted. Snagfu submits that the Premises contain a workshop, which demonstrates that the CEPU is incorrect in its contention that the whole of the Premises is an office.

The CEPU also contends that the words “office”, “workshop” and “depot” are used interchangeably in the Enterprise Agreement, with the result that they should be interpreted as one and the same thing. Snagfu contends that it is clear from the use of the disjunctive term “or” between the words “office”, “workshop” and “depot” in the Enterprise Agreement that they are not used interchangeably, and should not be given the same meaning. These arguments give rise to a constructional choice as to the proper meaning of the word “Office” in clause 2.1.2 of the Enterprise Agreement. In that sense, there is ambiguity in relation to the proper construction of clause 2.1.2.

The following relevant objective background facts were known to the parties at the time the Enterprise Agreement was negotiated and allegedly made:

(a) The Premises consist of one building with different parts. At the front of the Premises near the road is an area referred to by some of the witnesses as the “main office area”. It is comprised of a reception area, an open plan work area with several desks in it, a boardroom, about 5-6 glass-walled offices, a lunch room and toilets. Behind this “main office area” is a workshop. Between the “main office area” and the workshop is an open plan work area where about three employees work and a maintenance engineering area where no construction work is undertaken; some employees attend the maintenance engineering area to collect materials or prepare reports. It is necessary to go through two doors to get from the maintenance engineering area to the “main office area”. The workshop is under the same roof as the “main office area” but it is separate by a fire wall. It is necessary to walk down a corridor and through a number of doors to get from the “main office area” to the workshop. The workshop is used to make switch boards amongst other things. There are work benches in the workshop, together with a desk and a chair. Further behind the workshop are two storage areas where various supplies are delivered (through large roller doors), stored and then collected for use on job sites. There is an additional lunch area and toilets towards this rear part of the Premises. Employees who work in the workshop use the lunch and toilet facilities towards the rear part of the Premises. There is a driveway down one side of the Premises, down which trucks may travel to deliver goods to the storage areas at the rear of the Premises.

(b) Many of the tradespersons employed by Snagfu do not attend the Premises on a daily basis or very often. They travel directly from their homes to the particular work sites (usually commercial buildings) where DCE Electrical or Leopard Controls is undertaking a project.

The Enterprise Agreement is not drafted with the precision one might expect from an experienced commercial lawyer. Capitalised words such as “Office” are not defined. Other definitions such as “Company Workshop” and “Depot” use inconsistent terms. For example, clause 5.5 states that “The Company Workshop and or Depot is located at 159 Abernethy Road Belmont Western Australia”. The use of “and or” in this first sentence of clause 5.5 suggests that the terms “Workshop” and “Depot” may be used interchangeably. However, clause 5.5 goes on to state that “the Company may notify and record a changed office, workshop, or depot”. This sentence introduces the notion of an “office”, in addition to a “workshop” or “depot”. Further, the use of the word “or” suggests that there may be a change to the location of Snagfu’s “office, workshop, or depot”. That is, there may be a difference between the concepts of “office”, “workshop” and “depot”. The possibility of a change to the location of Snagfu’s workplace(s) is picked up again in clause 19.1 of the Enterprise Agreement. The heading to this provision is “Location of workshop or depot”, but clause 19.1.2 addresses the possibility of a change to Snagfu’s “registered office, workshop or depot”. This is the first reference to a “registered office” as opposed to an “office”. The use of the disjunctive word “or” in this sentence suggests, again, that there may be a change to the location of Snagfu’s “registered office, workshop or depot”.

Clauses 19.2 and 19.3 of the Enterprise Agreement govern rights and obligations which arise in circumstances where an employee works on a “job away from their workshop or depot”. There is no reference in these provisions to an employee commencing work away from their “office”. This is consistent with the fact that “Office based employees” are excluded from coverage of the Enterprise Agreement. However, it also suggests a difference in meaning between Snagfu’s “office” and its “workshop or depot”. In addition, the use of the word “or” again between “workshop” or “depot” suggests that the terms are not always used interchangeably under the Enterprise Agreement.

Clause 19.4 of the Enterprise Agreement concerns the payment of a travel allowance. Clause 19.4.1 refers to a circumstance where an employee “commences and/or ceases work on a site or a project, as opposed to the company’s office or workshop”. There is no mention of a “depot” in this provision, which suggests that “workshop” and “depot” may be used interchangeably. Clause 19.5 goes on to state that the allowances in clauses 19.3 and 19.4 do not apply when the employee is “required to start and finish at the Company’s registered office or depot”. There is no reference in clause 19.4.1 to a “depot” and no reference in clause 19.5 to a “workshop”, which suggests that “workshop” and “depot” may be used interchangeably. The concept of “registered office” is used in clause 19.5, whereas clause 19.4.1 only refers to the “company’s office”.

In my view, the repeated (albeit not universal) use of the disjunctive “or” between the terms “office”, “workshop” and “depot” in the Enterprise Agreement, together with the provisions of the Enterprise Agreement which deal with an employee working away from “their workshop or depot” but not their “office”, suggest that there is a difference between these areas of the Premises. Further, it is apparent from the terms of the Enterprise Agreement to which I have referred that Snagfu wanted to be able to change the location of any one or more of its “office, workshop or depot if there are genuine operational requirements to do so” (clauses 5.5 and 19.1.2). These features of the Enterprise Agreement, coupled with the different ordinary meanings of the words “office”, “workshop” and “depot”, would, in my opinion, lead a reasonable person to interpret those terms in the Enterprise Agreement as follows:

(a) the “workshop” is the specific area of the Premises where Snagfu makes switch boards amongst other things. It is the room in which there are located work benches, a desk and a chair. The “workshop” is shown in the photograph which is exhibit A6;

(b) the “depot” is comprised of the two storage areas at the rear of the Premises, where goods and material are stored for use by Snagfu’s employees;

(c) the “office” is that part of the Premises not comprised of the “depot” or “workshop”. It includes the “main office area”, together with the open plan work area where about three employees work and the maintenance engineering area; and

(d) an “Office based employee” within the meaning of clause 2.1.2 is an employee who has the “office”, as described in the previous subparagraph, as their primary location of work.

Relevance of negotiations to meaning of “Company’s Managers and Office based employees”

Both Snagfu and the CEPU seek to rely on what was said during bargaining negotiations as an aid to assist in the proper construction of the expression “the Company’s Managers and Office based employees” in clause 2.1.2 of the Enterprise Agreement.

Snagfu contends that bargaining for the Enterprise Agreement was based on a common understanding that it would cover some employees who had the word “manager” in their job title. In support of this contention, Snagfu relies on the following evidence:

(a) Mr Gardner gave evidence that on 3 November 2021 Mr Bamford attended a bargaining meeting at which Mr Gardner was introduced to Mr Bamford as the Maintenance Manager who undertook the service and maintenance of BMS systems for Snagfu. It was explained that Mr Gardner had nominated himself as a bargaining representative for the proposed enterprise agreement. Mr Gardner contended in his witness statement that Mr Bamford “did not appear to have any concerns about my role title or that the work I performed did not fall under the proposed agreement.”[11] In his oral evidence Mr Gardner said that Mr Bamford stated that he was “satisfied” with Mr Gardner’s response concerning his role. Mr Gardner also gave evidence in his witness statement that he was not “questioned or challenged by Ash Bamford or Ian Gill at the meeting held on 7 December 2021 on my eligibility to be covered under the proposed Agreement, or my eligibility to participate in the ballot.”[12]

(b) Mr Wilson gave evidence that he attended the first bargaining meeting on 3 November 2021, at which time Mr Bamford asked what type of work he did for Snagfu. Mr Wilson informed him that he was a qualified electrician and worked in the panel manufacturing section. Mr Wilson asserted in his witness statement that Mr Bamford “appeared satisfied with my response.”[13] In his oral evidence Mr Wilson said that on 3 November 2021 when he explained his role, Mr Bamford nodded his head and did not dispute Mr Wilson being in the bargaining meeting. Mr Wilson also gave evidence in his witness statement that he was not “questioned or challenged by Ash Bamford or Ian Gill at the meeting held on 7 December 2021 on my eligibility to be covered under the Agreement, or my eligibility to participate in the ballot.”[14]

(c) Mr Dick gave evidence that Mr Bamford attended the bargaining meeting on 3 November 2021, at which time he was introduced to Mr Wilson and Mr Gardner and given a brief description of their roles in the company. Mr Dick contends that “Mr Bamford was satisfied that the two employee bargaining representatives, Russell Gardner and Andre Wilson, were covered in the scope of the Agreement.”[15]

The CEPU submits that to the extent that there is an ambiguity in the coverage clause, Mr Bamford’s witness statement shows a common understanding between the parties as to who the Enterprise Agreement was to cover: namely, employees who work in the field and who are not primarily based at the Premises. By way of example, the CEPU submits that discussions of substantive claims rested on an assumption that employees worked out in the field and would only occasionally come into the office.

Mr Bamford says that during bargaining meetings on 3 and 12 November 2021, Mr Dick made it clear that the coverage of the proposed agreement would be the same as the previous agreement.[16] Mr Bamford understood this to mean that the Enterprise Agreement would cover blue-collar workers who worked out in the field, and would not cover staff who were primarily based at Snagfu’s head office.[17]

Mr Bamford also gave evidence that he was not satisfied with the descriptions given by Mr Gardner and Mr Wilson on 3 November 2021 in relation to their roles with Snagfu “because they directly contradicted the advice” he had been given by members of the CEPU.[18] Mr Bamford says that “despite this and for the sake of progressing the meeting, I did not argue any further”.[19] Mr Bamford also says that he discussed the matter with some CEPU members on 10 November 2021, who told him that he had “been fed misleading or false information about Mr Wilson’s and Mr Gardner’s roles.”[20]

In my view, what was said in particular bargaining meetings does not assist in the task of properly construing the coverage clause of the Enterprise Agreement. First, there is no evidence to establish or suggest that all employees covered by the Enterprise Agreement attended the relevant bargaining meetings or were informed what was said in those bargaining meetings about the scope of the proposed agreement.[21] Accordingly, I am not satisfied on the evidence before the Commission that these alleged background facts were known to all parties.[22] Secondly, it is apparent from the evidence to which I have referred above that there was not a common assumption or understanding between even the CEPU and Snagfu, let alone all of the employees covered by the Enterprise Agreement, as to the outer boundaries of the coverage of the Enterprise Agreement.[23] On that score, I prefer Mr Bamford’s evidence that he did not say or indicate at the bargaining meeting on 3 November 2021 that he was satisfied with the explanations given by Mr Wilson and Mr Gardner in relation to their roles with Snagfu. I consider it unlikely that Mr Bamford would have made any such comment or given any such indication without first speaking to members of the CEPU who had given him information to the contrary. It is far more likely, in my opinion, that Mr Bamford “did not argue any further … for the sake of progressing the meeting”.[24] To the extent that statements were made by individuals in the bargaining meetings about the coverage of the proposed agreement, I consider that they were statements of those individual’s subjective intentions or expectations concerning coverage of the proposed agreement.

Employed “in” the classifications

Clause 2.1.2 requires employees to be “employed in the classifications specified in clause 7” in order to be covered by the Enterprise Agreement [emphasis added]. The preposition “in” is important.[25] It is not enough for an employee to meet the qualifications or skills of a particular classification. The employee must be employed “in” that classification. That is, the employee must be employed by Snagfu to undertake work within the scope of the particular classification.

Mixture of duties

The ‘principal purpose test’ may be used to determine which of two competing classifications in two competing industrial instruments is the appropriate or applicable classification. The test was summarised in Carpenter v Corona Manufacturing[26] as follows:

“In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed. In this case, such an examination demonstrates that the principal purpose for which the appellant was employed was that of a manager. As such, he was not "employed in the process, trade, business or occupation of ... soliciting orders, obtaining sales leads or appointments or otherwise promoting sales for articles, wares, merchandise or materials" and was not, therefore, covered by the Award.”

A Full Bench of the Commission explained various features of the ‘principal purpose test’ in Broadspectrum Limited v United Voice:[27]

“… the required analysis of the principal purpose is to be conducted by reference to the work performed by the employee. The test enunciated is primarily of utility where an employee performs a mixture of duties some of which fall, prima facie, within the coverage of the award or classification under consideration and some of which do not. However the test cannot be used to bring an employee within the coverage of an award or classification where the employee does not perform any of the prescribed work duties.”

The ‘principal purpose test’ may also be applied in determining whether a particular classification in an award or enterprise agreement regulates employment of a particular character.[28] In Ombudsman v Complete Windscreens (SA) Pty Ltd,[29] Besanko J said (at [27]):

“… Where the particular issue is whether an employee is engaged in a particular classification or class of work, then the Court takes a practical approach and will consider the aspect of the employee’s employment which is the principal or major or substantial aspect.”

It must be remembered, however, that the ‘principal purpose test’ is “a rule of construction only and must give way to the clear language of an award”[30] or enterprise agreement.

Joel Crispin

Mr Crispin commenced employment with Snagfu about 23 years ago, straight after he finished his electrical apprenticeship. At the time the Enterprise Agreement was negotiated and allegedly made, Mr Crispin was employed in the position of Project Manager. In that role, which he occupied for about eight to ten years, Mr Crispin reported to the General Manager of Snagfu and spent about 75% of his work time in the open plan area of the “main office area”, as described in paragraph [37(a)] above, undertaking work such as designing procurement manuals and functional descriptors and managing projects. Mr Crispin did attend job sites as a Project Manager and spent time working “on the tools” when his expertise was required.

In my view, although Mr Crispin meets the criteria of a Senior Electrical Tradesperson, he was not employed “in” that classification at the time the Enterprise Agreement was allegedly made. As a Project Manager who was responsible for managing projects being undertaken by Snagfu, Mr Crispin’s role met the description of one of the “Company’s Managers” within the meaning of clause 2.1.2 of the Enterprise Agreement. He was therefore excluded from coverage of the Enterprise Agreement. He was also excluded from coverage by reason of meeting the description of an “Office based employee” within the meaning of clause 2.1.2. Accordingly, Mr Crispin was not covered by the Enterprise Agreement at the time it was allegedly made. He was not entitled to vote on it and should not have been permitted to vote.

Wayne Dixon

At all times since he commenced employment with Snagfu in 2018 Mr Dixon has been employed in the role of Warehouse Supervisor/Trades Assistant. In that role he is based in the “depot”, as described in paragraph [41(b)] above, where electrical tools and other equipment is stored. No employees report to Mr Dixon. He reports to a person who he describes in his witness statement as the “Company Manager”. Mr Dixon does not have any trade qualifications.

Mr Dixon spends about 60% of his time at work coordinating the supply of tools, equipment and stock which is required by tradesmen, who collect such materials at the warehouse or it is delivered by truck or smaller vehicles from the warehouse to the work site. Mr Dixon gave oral evidence, which I accept, that he is given a list of what is required by an electrician employed by Snagfu and he collects the items on the list from the warehouse and puts the items aside for the electrician to collect.

When Mr Dixon is working on site, he assists tradesmen in a “hands on manner”. He spends about 30% of his time restocking tools, equipment and stock which has been returned to the warehouse, testing and tagging equipment, collecting gear and machinery from sites where that gear and machinery is no longer needed at the site, and performing clean-ups of sites. About 10% of Mr Dixon’s time is spent with other duties, such as emails and repairing equipment.

The signature on Mr Dixon’s work email states that he is a “Warehouse Manager”. However, he does not manage any people or anything else, nor does he produce invoices or complete paperwork. Mr Dixon does not know where the title “Warehouse Manager” came from, but he believes it helps with obtaining priority of supply from suppliers.

I find that, at the time the Enterprise Agreement was allegedly made, Mr Dixon was employed in the classification of Communications Technician. At that time, he had worked in the industry for not less than one year and was directly in charge of an electrical store, being the “depot”, and was responsible for materials in the “depot”. Mr Dixon was not one of the “Company’s Managers” within the meaning of clause 2.1.2 of the Enterprise Agreement, for he did not manage people or any aspect of Snagfu’s business or operations. The use of the email signature title of “Warehouse Manager” does not accurately reflect the nature of Mr Dixon’s duties and responsibilities. Nor was Mr Dixon an “Office based employee” within the meaning of clause 2.1.2. He was primarily based in the “depot”. Accordingly, Mr Dixon was covered by the Enterprise Agreement at the time it was allegedly made. He was entitled to vote on it.

Daniel Cowan

Mr Cowan has been employed by Snagfu since 2012. He works in the Leopard Controls business. In the period from 2013 until 2020, Mr Cowan worked in the role of Controls Technician. He was promoted to the position of Senior Controls Technician in 2020 and held that position at the time the Enterprise Agreement was allegedly made.

Mr Cowan does not hold any qualifications. However, he has attended a number of training courses throughout his employment with Snagfu and has a number of certificates of competency in relation to the use of particular software programs.

Mr Cowan does not undertake any electrical work that would require a licence. His duties include implementing and field commissioning of building automation control systems (BACS) installations, breakdown servicing and routine maintenance of BACS, and providing technical support to other Control Technicians employed by Snagfu. Mr Cowan does not supervise these other Control Technicians; he is purely an adviser to help them if they need Mr Cowan’s expertise.

Mr Cowan spends most of his time at work on various work sites, where he often connects his laptop computer to a system to diagnose a problem or fault. He sometimes undertakes terminations or installations.

In my view, the principal purpose of Mr Cowan’s role of Senior Controls Technician is to implement, commission, install, service and maintain BACS. This matches up with the description of work contained in clause 7.3.1(c) of the Enterprise Agreement. Mr Cowan has worked in the industry for not less than one year. It follows, in my opinion, that Mr Cowan was employed in the classification of Communications Technician at the time the Enterprise Agreement was allegedly made. Mr Cowan is not one of the “Company’s Managers” within the meaning of clause 2.1.2 of the Enterprise Agreement. He does not manage any part of Snagfu’s business or operations. Mr Cowan is not an “Office based employee” within the meaning of clause 2.1.2. He is primarily based on site. Accordingly, Mr Cowan was covered by the Enterprise Agreement at the time it was allegedly made. He was entitled to vote on it.

Mr Jayden Briotti

Mr Briotti is employed by Snagfu in the position of Electrical Supervisor. He has held that position for about 12 months, prior to which he worked for Snagfu in the position of Electrician. Mr Briotti is a licensed electrician and holds a Western Australian Electrical Worker Licence.

Mr Briotti works on site about 95% of the time. His duties and responsibilities include attending call outs after business hours, installing cable support systems, installing power cables and control cables, testing and commissioning of power circuits and control cables.

Mr Briotti reports to Mr Darren Humphrey, who he describes in his witness statement as the “Company Manager”. Mr Briotti does not have any direct reports, but he does supervise electrical apprentices and, on particular projects, may supervise the work of up to three Electricians. If any of those Electricians are sick on a particular day, they sometimes call Mr Briotti but may also notify Snagfu’s Project Manager for the project on which they are working.

In my view, Mr Briotti was employed in the classification of Electrical Tradesperson at the time the Enterprise Agreement was allegedly made. He holds a trade certificate in an electrical trade and is both licensed to perform and actually performs the work of an electrical tradesperson.[31] In addition, Mr Briotti has successfully completed an appropriate trade course in linework or cable jointing or has otherwise reached the equivalent standard of skills and knowledge.[32] Mr Briotti is not one of the “Company’s Managers” within the meaning of clause 2.1.2 of the Enterprise Agreement. He does not manage any employees or any part of Snagfu’s business or operations. Nor is Mr Briotti an “Office based employee” within the meaning of clause 2.1.2. He is primarily based on site. Accordingly, Mr Briotti was covered by the Enterprise Agreement at the time it was allegedly made. He was entitled to vote on it.

Brenton Gittos

Mr Gittos commenced employment with Snagfu as an apprentice electrician. He then worked for Snagfu as an Electrician until about 2017, at which time he took up the role of Works Manager. Mr Gittos has worked in that role since 2017.

Mr Gittos is an A Class Senior Electrician and has a current electrical worker’s licence.

In the position of Works Manager, Mr Gittos is Snagfu’s primary electrical breakdown tradesperson. He spends about 75% of his time performing the following tasks for clients: supporting sites with temporary power; electrical fault finding; providing storm response; undertaking RCD replacements, cable upgrades and replacements; performing rectifier repair and replacements; and performing generator repairs and refills.

Mr Gittos is the first point of contact for out of hours calls from Snagfu’s clients. He receives telephone calls direct from clients on a callout telephone. Mr Gittos then attends the site and undertakes the callout or breakdown work. In that sense, Mr Gittos takes care of DCE Electrical’s callouts and emergency breakdown work.

Mr Gittos generally does the callout and breakdown work on his own. He sometimes asks for help from other Electricians if he is very busy. Mr Gittos does not have any direct reports, nor does he manage any employees. Mr Gittos does provide training to other Electricians in relation to the processes for particular breakdown works.

Sometimes Mr Gittos is required to prepare a quote when he finds an issue on site and needs to provide a price to the client to fix the problem, but mostly Mr Gittos just does the callout and breakdown work.

There are times when Mr Gittos is required to start or finish work at the office to perform particular tasks. Less than 25% of Mr Gittos’s time involves office-based work or paperwork.

In my view, Mr Gittos was employed in the classification of Senior Electrical Tradesperson at the time the Enterprise Agreement was allegedly made. He holds a trade certificate in an electrical trade and is both licensed to perform and actually performs the work of an electrical tradesperson.[33] Mr Gittos has completed two years of service with Snagfu and is considered by Snagfu to be a senior tradesperson. I do not consider that Mr Briotti is one of the “Company’s Managers” within the meaning of clause 2.1.2 of the Enterprise Agreement. He does not manage any employees. He receives callouts and breakdown calls directly from clients and then attends site to undertake the callout or breakdown work, but those responsibilities do not involve any management of any part of Snagfu’s business or operations. Mr Gittos is not an “Office based employee” within the meaning of clause 2.1.2. He is primarily based on site. Accordingly, Mr Briotti was covered by the Enterprise Agreement at the time it was allegedly made. He was entitled to vote on it.

Mr Russell Gardner

Mr Gardner is employed by Snagfu in the position of Service/Maintenance Manager. He has worked in that role for about three years. Previously Mr Gardner worked for Snagfu in the role of Service Technician.

The main difference between Mr Gardner’s role of Service/Maintenance Manager and that of a Service Technician is that Mr Gardner supervises three Service Technicians and provides technical assistance generally to Snagfu’s Electricians. Mr Gardner does not have any direct reports and does not manage any employees.

Mr Gardner holds a current electrical licence and a full refrigeration and air conditioning licence.

Mr Gardner spends about 80% of his time at work on site performing maintenance, service, installation and commissioning works. Those tasks include conducting the maintenance, service, installation and commissioning of building management systems, accessing the controllers and peripheral equipment connected to the controllers which are located on the switchboard or on the HVAC equipment. Laptop computers are connected to the controllers to conduct the maintenance, service and commissioning of the controllers and tools and electrical meters are required to be used to test and diagnose the peripheral equipment such as sensors and actuators. Mr Gardner sometimes uses gauges and other equipment to test air conditioning systems. Mr Gardner also performs some electrical maintenance and service work from a desk with a laptop computer. For example, Mr Gardiner may be required to access remote sites to carry out maintenance and service work where it may not be practical to attend the site due to distance or other factors. Mr Gardner may also be required to perform configuration of controllers. Mr Gardner is part of the on call 24/7 roster and he undertakes emergency breakdown work for Snagfu.

Less than 20% of Mr Gardner’s work time involves office-based work or paperwork such as creating, updating and closing out jobs and quoting jobs. Mr Gardner has a desk at Snagfu’s office where he undertakes this work.

Mr Gardner nominated himself to be a bargaining representative for the Enterprise Agreement and attended all bargaining meetings.

In my view, Mr Gardner was employed in the classification of Senior Electrical Tradesperson at the time the Enterprise Agreement was allegedly made. He holds a trade certificate in an electrical trade and is both licensed to perform and actually performs the work of an electrical tradesperson.[34] Mr Gardner has completed two years of service with Snagfu and is considered by Snagfu to be a senior tradesperson. Mr Gardner is not, in my opinion, one of the “Company’s Managers” within the meaning of clause 2.1.2 of the Enterprise Agreement. He does not manage any employees. He supervises three Service Technicians and provides technical guidance to other tradespersons, but he does not manage any part of Snagfu’s business or operations. He is primarily on “the tools” undertaking the work of an experience and well-qualified tradesperson. Mr Gardner is not an “Office based employee” within the meaning of clause 2.1.2. He is primarily based on site. Accordingly, Mr Gardner was covered by the Enterprise Agreement at the time it was allegedly made. He was entitled to vote on it.

Mr Andre Wilson

Mr Wilson is, and was at the time the Enterprise Agreement was negotiated and allegedly made, employed by Snagfu as an Electrical Draftsman/Switchboard Manufacturer. He has worked for Snagfu for about 10 years.

Mr Wilson is an A Class Senior Electrician and holds a current electrical workers’ licence.

Mr Wilson explained in his oral evidence that he effectively does two roles: Electrical Draftsman and Switchboard Manufacturer. Mr Wilson’s role of Switchboard Manufacturer involves him procuring materials to make switchboards and constructing them in the workshop at the Premises. On occasions he is required to bend sheet metal as part of the construction process. About 80% of Mr Wilson’s time at work is spent working on the tools in the workshop. As well as constructing the metal work for switch boards, his work on the tools includes: mounting electrical components such as main switches, circuit breakers, chassis, contactors, relays, terminals, controllers, transformers, lamps and switches; wiring internal components; and performing live factory testing of all switchboards and control panels before they are taken to site for installation. There is a desk and a computer in the workshop which Mr Wilson uses when he undertakes administrative tasks such as calling suppliers, filling out forms and invoices.

About 20% of Mr Wilson’s time is spent performing electrical drafting tasks in his role of Electrical Draftsman.

Mr Gardner nominated himself to be a bargaining representative for the Enterprise Agreement and attended all bargaining meetings.

In my view, Mr Wilson was employed in the classification of Senior Electrical Tradesperson at the time the Enterprise Agreement was allegedly made. He holds a trade certificate in an electrical trade and is both licensed to perform and actually performs the work of an electrical tradesperson.[35] Mr Wilson has completed two years of service with Snagfu. Mr Wilson is not one of the “Company’s Managers” within the meaning of clause 2.1.2 of the Enterprise Agreement. He does not manage any employees or any part of function of Snagfu’s business. The primary purpose of Mr Wilson’s role involves working “on the tools” in the workshop. In my opinion, Mr Wilson is not an “Office based employee” within the meaning of clause 2.1.2. He is based in the workshop, which, as I have explained above, is separate from and different to the “Office”. Accordingly, Mr Wilson was covered by the Enterprise Agreement at the time it was allegedly made. He was entitled to vote on it.

Mr Kim Sharpe

Mr Sharpe has been employed by Snagfu for about three and a half years. During that time he has worked in the position of Fibre Optic Technician/Telecommunications Technician/SAT Operative/Data Base Specialist. Mr Sharpe described his role as being similar to that of a Fibre Optic Technician, such as Mr Ryan Newbold.

Mr Dick described Mr Sharpe’s role as primarily one of a Site Assessment Technician who is required to attend site and perform optic fibre runs, designs and installation.

Mr Sharpe is a qualified BRCA Cabler. He also has cabling competencies in structured, optical fibre, coax, underground, aerial and testing/commissioning. Mr Sharpe has an Associate Diploma in Electronic Engineering.

About 75% of Mr Sharpe’s time at work is spent on site undertaking the following tasks: installing, testing and commissioning fibre optic links, including all splicing, hauling, and test/commissioning works involved with the links; carrying out works for optical fibre works; undertaking site assessments and technical works as required for fibre optic installations, e.g. rod, rope and proving existing local duct networks, optic fibre route determinations – street and customer premises, assessing network equipment installation locations and power requirements; isolating and reinstating fire/vesdas. When Mr Sharpe is working on site he generally does not use a laptop computer. On site he uses tools such as pit keys, splicers, and fibre optic testers.

About 25% of Mr Sharpe’s time is spent performing office-based work, including completing test result documents, uploading results and photos, completing project completion documentation, and preparing SAT report documents for new fibre optic services.

I find that Mr Sharpe was, at the time the Enterprise Agreement was allegedly made, employed in the classification of Communications Technician. At that time, he had worked in the industry for 30 years. The principal purpose of Mr Sharpe’s role is, and was at the relevant time, to install, test, and commission fibre optic installations. This matches up with the description of work contained in clauses 7.3.1(c) and (d) of the Enterprise Agreement. Mr Sharpe is not one of the “Company’s Managers” within the meaning of clause 2.1.2 of the Enterprise Agreement. He does not manage people or any aspect of Snagfu’s business or operations. Mr Sharpe is not an “Office based employee” within the meaning of clause 2.1.2. He is primarily based on the sites at which Snagfu has contracts to perform work. Accordingly, Mr Sharpe was covered by the Enterprise Agreement at the time it was allegedly made. He was entitled to vote on it.

Conclusion on whether the Enterprise Agreement was made

In assessing the position, duties and responsibilities of each of the eight contested employees, I have had regard to their letters of offer and position descriptions (where available), as well as the evidence from each of those employees. The position descriptions and letters of offer are general in nature. I have given those documents less weight than the direct evidence from each of the employees about their position, duties and responsibilities.

For the reasons given, I have concluded that seven of the eight contested employees are covered by the Enterprise Agreement and were entitled to vote on it. On the evidence before the Commission, Mr Crispin is the only employee who was not entitled to vote on the Enterprise Agreement but was given the chance to do so. I do not know whether Mr Crispin in fact voted or, if he did vote, whether he voted in favour of the Enterprise Agreement. In any event, even if Mr Crispin voted in favour of the Enterprise Agreement, that could not have impacted on whether or not a majority of those employees who case a valid vote approved the Enterprise Agreement. That is because 19 of the 31 employees who voted on the Enterprise Agreement cast a vote to approve it. Changing the outcome of the vote to 18 out of 30, assuming that Mr Crispin voted in favour of the Enterprise Agreement, would not have altered the result in terms of a majority of employees who cast a valid vote approving the Enterprise Agreement. Accordingly, I am satisfied that the Enterprise Agreement was made in accordance with s 182(1) of the Act. I reject ground one.

Ground 2 – explanation of terms of the Enterprise Agreement

The CEPU contends that the Commission cannot be satisfied that Snagfu complied with s 180(5) of the Act because at least one of the information sessions which Snagfu held to explain the terms of the Enterprise Agreement was conducted before making modifications to the Enterprise Agreement which was ultimately put to a vote. In particular, the CEPU submits that Mr Dick held three information sessions with employees to explain the Enterprise Agreement but at least one of these sessions was held on the morning of 17 January 2022, prior to amendments being made to the Enterprise Agreement in light of suggestions made by Mr Bamford. It is contended that at least one group of employees did not attend an information session after the final version of the Enterprise Agreement had been prepared. Furthermore, it is submitted that Snagfu has presented no evidence that it explained these changes to the terms of the Enterprise Agreement between the information sessions.

Section 180(5) of the Act requires an employer to take all reasonable steps to ensure that the terms of the enterprise agreement, and the effect of those terms, are explained to the relevant employees. Further, the explanation must be provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

The purpose of the requirement in s 180(5) is to ensure that employees are as fully informed as is practicable about the terms and effect of the terms of a proposed enterprise agreement before voting on it.[36]

The focus of the enquiry is on the steps actually taken to comply and to consider whether the steps taken were reasonable in the circumstances and whether these were all the reasonable steps that should have been taken in the circumstances.[37] This directs attention to the content of the explanation given to employees.[38]

Snagfu accepts that it held two information sessions with groups of employees on 17 January 2022, and another information session on 18 January 2022. The sessions on 17 January 2022 were held at about 10 or 11am and 2pm. At these information sessions Mr Dick explained the terms of the Enterprise Agreement, and their effect, to the employees covered by the Enterprise Agreement. Employees were also provided with a detailed document setting out the terms of the Enterprise Agreement and their effect.

At 11:16am on 17 January 2022, Mr Bamford sent an email to Mr Dick and suggested minor amendments to the draft proposed enterprise agreement. In his email Mr Bamford proposed that “if the above are just drafting errors there is still time to rectify these issues prior to the cutoff for the viewing window of 7 days prior to the vote.” At 3:50pm on 17 January 2022, Mr Dick sent an email to Mr Bamford stating “Thanks for picking that up. All sorted, see attached.” Mr Dick’s email to Mr Bamford attached a copy of the Enterprise Agreement, which contained amendments to the previous draft in accordance with Mr Bamford’s suggestions.

At 4:20pm on 17 January 2022, Ms Ramos, OHS & QA Manager, emailed a copy of the Enterprise Agreement, which contained amendments to the previous draft in accordance with Mr Bamford’s suggestions, to all employees covered by the Enterprise Agreement. The covering email sent to employees was in the following terms:

“Dear Employees

On Friday, 14 January 2022, Snagfu Pty Ltd T/As DCE and Leopard Controls sent an email requesting you vote for the proposed DCE Electrical and Leopard Controls Enterprise Agreement 2021 (Proposed Agreement) and attached the voting details and voting method.

We also send you links to the following documents:
· the National Employment Standards;
· the Electrical, Electronic and Communication Contracting Award 2020; and
· the 2007 Collective Agreement
· the DCE Electrical and Leopard Controls Enterprise Agreement 2021 (Proposed Agreement)

Please see attached a copy of the Proposed Agreement with the following minor amendments:
· Clause 5.8 – ‘Flat Allowance or Flat Rate’ should read payable for all hours worked by an employee, not just ‘ordinary hours.
· Clause 16.2 previously read “Where an employee is not ‘on call’ and now reads, “Where an employee is ‘on call’.
· Clause 19.4.1 the words ‘or a Company Transport Allowance’ after the words “Where an Employee commences and/or ceases work on a site of a project, as opposed to the company’s office or workshop and is not provided with transport, or a Company Transport Allowance’.
· Clause 20.3 now includes item 39 – Battery Drill as normal wear and tear replacement item.
· Clause 21.7 previously read “An employee working 12 ordinary hours on a day, will be entitled to a paid meal break” and now reads “An employee working 12 hours on a day, will be entitled to a paid meal break”
· Clause 29.2.1 previously read 187.5%% and now reads 187.5%
· Numbering changes only:
· The clause following clause 8.2 was incorrectly numbered ‘1.1’. This Clause is now ‘8.3’
· The previous clause ‘8.3’ is now clause ‘8.4’. The previous sub-clauses 8.3.1 and 8.3.2 are now clauses 8.4.1 and 8.4.2.

We also attach a copy of the Explanation Document comparing the Proposed Agreement to the EECC Award and the 2007 Agreement and the procedure for voting (resending only)

If you have any questions at all, please do not hesitate to contact”

I am satisfied that this email was sent to Snagfu’s employees after Mr Dick had held two information sessions with groups of employees earlier on 17 January 2022. It follows that Mr Dick did not orally explain these amendments, or their effect, to the employees who attended those two information sessions.

I consider that the written explanation contained in the email from Ms Ramos to the employees at 4:20pm on 17 January 2022 was a fair and accurate description of the changes which had been made to the final version of the Enterprise Agreement. The nature of those amendments, together with their effect, was plain from Ms Ramos’ email, read together with the copy of the Enterprise Agreement attached to it. Accordingly, even though this email was sent to the employees at 4:20pm on 17 January 2022, after he had conducted two information sessions with groups of employees that day, it was not necessary, in my view, for Mr Dick to have a further meeting with these employees to orally explain the amendments and their effect in order to comply with s 180(5) of the Act.

On the basis of the evidence before the Commission, I am satisfied that Snagfu took all reasonable steps to ensure that the terms of the Enterprise Agreement, and the effect of those terms, were explained to the employees covered by the Enterprise Agreement, and the explanation was provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

I reject ground two.

Grounds 3 and 4 – misleading conduct and corruption of the voting process by the inclusion of ineligible voters

The CEPU contends that, pursuant to s 188(1)(c) of the Act, the Commission cannot be satisfied that there are not any other reasonable grounds for believing that the Enterprise Agreement has not been genuinely agreed to because, even if a majority of eligible voters approved the Enterprise Agreement, the voting process was (a) sufficiently corrupted by the inclusion of ineligible voters such as to render the whole vote invalid and (b) undertaken in the presence of misleading conduct concerning coverage of the Enterprise Agreement.

The CEPU submits that there are many ways in which the inclusion of ineligible voters may illegitimately influence the votes of eligible voters. The following examples were given by the CEPU:

(a) Eligible voters who cast a valid vote may reasonably believe they are voting to approve an agreement of one coverage when they are in fact approving an agreement of an entirely different coverage.

(b) Voters may be swayed in their decision by the inclusion of a particular consistency. For example, employees may be less likely to vote or may be discouraged from voting if it appears that an agreement is certain to pass.

The CEPU also contends that by including ineligible employees in the information sessions and voting process Snagfu represented the coverage of the Enterprise Agreement as something other than what it was.

Snagfu relies on the decision of a Full Bench of the Commission in Commonwealth Bank Group Enterprise Agreement 2020.[39] In that case, the Full Bench dealt with an argument concerning the inclusion of ineligible voters in the vote for an enterprise agreement and went on to observe (at [11]) that:

“The Commission has consistently recognised that casting the voter-eligibility net too widely is not fatal to the approval of an agreement, if it can be demonstrated that, despite the error, the agreement was approved by a valid majority of those employees who were entitled to vote and did vote(see for example: Kmart Australia Ltd [2019] FWCFB 7599, [43]; and see the decision of the Full Federal Court in National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 at [10]). The inclusion in the vote of employees covered by AWAs and ITEAs was immaterial to the outcome. The Agreement was made by a majority of employees who cast a valid vote.”

It is important to understand that the Full Bench made these observations in the context of an argument initially run and later abandoned to the effect that the inclusion of ineligible voters in the vote resulted in the enterprise agreement not being made in accordance with s 182(1) of the Act. The Full Bench did not make these observations in the context of an argument that the Commission could not be satisfied that there were no other reasonable grounds for believing that the agreement had not been genuinely agreed to by the employees because the voting process was sufficiently corrupted by the inclusion of ineligible voters such as to render the whole vote invalid.

Whether or not there are reasonable grounds to believe that an enterprise agreement has not been genuinely agreed to by the employees depends on the facts of a particular case. I accept that there may be cases where the inclusion of ineligible voters in the vote for an agreement or the making of misleading representations may contribute to a finding that the agreement was not genuinely agreed to by the employees. This is not such a case. First, I am satisfied on the evidence that Snagfu did not deliberately include ineligible voters (Mr Crispin) in the vote, nor was it reckless in that regard. Snagfu does not have any in-house human resources or employee relations specialists or expertise. Neither the coverage clause nor the classifications provision of the Enterprise Agreement is drafted with precision. Mr Crispin has worked “on the tools” in Snagfu’s business for many years. He still does so when his expertise is required on site. He has the qualifications to fit within the Senior Electrical Tradesperson classification. The reason he is not covered by the Enterprise Agreement is because he is not employed “in” the classification of Senior Electrical Tradesperson and is, according to my interpretation of the expression “the Company’s Managers” in clause 2.1.2, such a manager. As I have already explained, there is ambiguity as to what is meant by the expression “the Company’s Managers”. In all the circumstances, Snagfu did not act in a deliberately dishonest manner, recklessly or unreasonably in believing that Mr Crispin was covered by the Enterprise Agreement and permitting him to vote on it.

Secondly, I heard evidence from ten employees of Snagfu.The evidence before the Commission does not persuade me that any of the employees who were given the chance to vote on the Enterprise Agreement were swayed or influenced, or were likely to be swayed or influenced, in any way in relation to their decision to vote or not vote, or vote in a particular way, by reason of Mr Crispin being permitted to vote or Snagfu’s representations that he was covered by the agreement and allowed to vote on it. Mr Crispin was one person out of 35 employees who were given the opportunity to vote. I accept that at least some, if not all, of the employees who were invited to vote on the Enterprise Agreement would have been aware by Snagfu’s representations that Mr Crispin was permitted to vote on it, and therefore would likely have believed, erroneously, that the Enterprise Agreement covered Mr Crispin. Their misunderstanding as to coverage in relation to one employee does not, having regard to all the circumstances of this case, satisfy me that there are reasonable grounds for believing that the Enterprise Agreement has not been genuinely agreed to by the employees.

I reject grounds three and four.

Ground 5 – provision of NERR to every employee

The CEPU contends that Snagfu failed to comply with its obligations under s 173(1) of the Act to take reasonable steps to give a copy of the NERR to every employee who would be covered by the Enterprise Agreement and who was employed at the notification time. In particular, the CEPU contends that Snagfu failed to provide a NERR to one employee and, given that the results of the vote were relatively close, this failure could have had a major impact.

Snagfu accepts that it failed to give a copy of the NERR to one employee, a Senior Electrician, who is covered by the Enterprise Agreement and who was employed at the notification time. It says that this mistake arose because the employee concerned commenced employment with Snagfu shortly after a list of employees to be covered by the proposed agreement was prepared but before the notification time. On 7 December 2021, Snagfu became aware of this error. The employee concerned was immediately sent an email in the following terms:

“Hello [Employee name]

SNAGFU Pty Ltd T/As DCE Electrical and as Leopard Controls has given notice that it wishes to negotiate a replacement agreement for the DCE Electrical and Leopard Controls Collective Agreement 2007 which has now passed its nominal expiry date and relevant employees have been provided with a copy of the Notice of Employee Representational Rights (NERR).

As per the NERR, for a person to be recognised as a bargaining representative for a proposed enterprise agreement, they must be appointed in writing (by an ‘instrument of appointment’), except in the case of a union that is a default bargaining representative.

If you wish to appoint a bargaining representative for the proposed enterprise agreement, you may, complete the instrument of appointment and return to Lindsay Dick or Aimee Ramos. Please be aware that the instrument of appointment and is completely optional and you are not required to do so.”

Attached to that email was an instrument of appointment form in the following terms:

“Appointment of Employee Bargaining Representative
I have received a Notice of Employee Representational Rights in relation to the negotiation of a new enterprise agreement with Snagfu Pty Ltd T/ A s DCE Electrical
I wish to [please tick the appropriate box]:

[ ] appoint a third party to act as my bargaining representative and have completed Part 1 of this Appointment Form;
OR
[ ] appoint myself to act as my own bargaining representative, and have completed Part 2 of this Appointment Form.

Please note that the same bargaining representative may be appointed for more than one employee.

I understand that, if I am a member of a union that union will be my bargaining representative unless I appoint a different bargaining representative.

It is not compulsory to represent yourself or to nominate a representative in which case you do not have to fill out this form. If you are appointing a third party to act as your bargaining representative you must give them a copy of the
Appointment Form.

PART 1 - appoint a third party

Name of Representative: ___________________________________
Postal address: ___________________________________
Phone number: ___________________________________
Email address: ___________________________________

I appoint the person named above as a bargaining representative in bargaining for a new Enterprise Agreement. This appointment will take effect from the date specified below.

Full name: _________________________________
Position: ___________________________________
Signature: ________________ Date: ___ / __ /2021

OR

PART 2 - appoint myself

I appoint myself to act as my own bargaining representative in bargaining for a new Enterprise Agreement. This appointment will take effect from the date specified below.

Full name: _________________________________
Position: ___________________________________
Signature: ________________ _ Date: ___ / __ /2021”

The email sent to the employee inadvertently did not attach a copy of the NERR.

The employee concerned did not return the instrument of appointment to Snagfu. However, from 7 December 2021 the employee was included in all updates concerning the Enterprise Agreement, including information concerning notification of the vote. The employee also attended one of the information sessions at which Mr Dick explained the Enterprise Agreement.

Snagfu contends that its failure to provide the single employee with a copy of the NERR was a minor procedural error and the employees covered by the Enterprise Agreement were not likely to have been disadvantaged by the error (s 188(2) of the Act).

The underlying purpose of the requirement to take all reasonable steps to give a NERR to each employee who will be covered by the agreement and is employed at the notification time for the agreement is to ensure that all employees are aware that their employer intends bargain for an enterprise agreement and that they are aware of their representational rights.[40] Failure to comply with this obligation may disadvantage employees because they may fail to understand and exercise their representational rights and effectively participate in the bargaining process.[41]

I am satisfied that the failure to provide a NERR to one employee constitutes a procedural error. It is procedural in nature because it constitutes a failure to comply with a procedural requirement. I am also satisfied that the error is minor and the employees covered by the Enterprise Agreement were not likely to have been disadvantaged by the error, for the following reasons:

(a) The employee concerned was informed, on 7 December 2021, of his right to appoint a bargaining representative. I accept that the email sent to the employee concerned on 7 December 2021 did not contain all the information required in the prescribed form of NERR. For example, it did not inform the employee what an enterprise agreement is or that an enterprise agreement must be approved by a majority of employees who cast a vote. However, the email, read together with the appointment form attached to it, did inform the employee that he could appoint himself or any third party to act as his bargaining representative. It also informed the employee that if he was a member of a union then his union would be his bargaining representative unless he appointed a different bargaining representative.

(b) The employee concerned was kept informed in relation to bargaining for the Enterprise Agreement and had an opportunity to participate in the bargaining process as well as the vote for the Enterprise Agreement.

(c) Only one employee was impacted by the error. Given the outcome of the vote (19 out of 31 votes in favour) and even having regard to the fact that Mr Crispin should not have been permitted to vote, this error could not have changed the fact that the Enterprise Agreement was approved by a valid majority of employees.

Ground five is rejected.

Ground 6 – identification of the proposed coverage in the NERR

The CEPU contends that Snagfu failed to comply with its obligations under s 174(1A) of the Act because the NERR did not identify the proposed coverage of the Enterprise Agreement as required by Regulation 2.05.

The NERR distributed by Snagfu on 23 September 2021 described the coverage of the proposed agreement as “employees that perform electrical and electronic contracting work across Australia in the classifications of Labourer, Trades Assistant, Communication Technician, Electrical Tradesperson and Senior Electrician”. The CEPU contends that the NERR did not comply with Regulation 2.05 because the coverage provisions of the Enterprise Agreement allegedly made on 25 January 2022 are different from the description of coverage provided in the NERR on 23 September 2021. In particular, the classification of “Senior Electrician” referred to in the NERR is not contained in the Enterprise Agreement. Instead clause 7 refers to the classification of “Senior Electrical Tradesperson”. Further, the CEPU contends that the Enterprise Agreement covers people who are employed “in” the classifications specified in clause 7, whereas the NERR states that the proposed agreement will cover “employees that perform electrical and electronic contracting work across Australia” in those classifications. Finally, the CEPU submits that the Enterprise Agreement explicitly excludes “Office-based employees” and “the Company’s Managers”, whereas the NERR does not.

Section 173(1)(a) of the Act relevantly requires an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement to “take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who … will be covered by the agreement …” Section 174(1A) of the Act provides that a NERR must contain the content prescribed by the regulations, not contain any other content, and be in the form prescribed by the Regulations. Regulation 2.05 provides that the “notice of employee representational rights in Schedule 2.1 is prescribed”. The prescribed form of NERR in Schedule 2.1 of the Regulations provides as follows in relation to the question of coverage:

“[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].”

The Full Bench of the Commission made the following useful observations in Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd; Maritime Union of Australia; Australian Institute of Marine and Power Engineers:[42]

“[29] The terms of the prescribed form necessitate the provision of information so that an employee is able to assess whether he or she is an employee who would be covered by the proposed agreement. The employee reading the notice must be able to understand who it is “who would be covered”by the proposed agreement. That is the purpose of the words in the first paragraph of the prescribed form “... which is proposed to cover employees that [proposed coverage]”.

[30] That the proposed coveragemay evolve as bargaining progresses does not matter. Contrary to the submission of HCF, that fact does not mean that when bargaining commences the employer is not obliged to identify what it is then intending to be the coverage of the proposed enterprise agreement.”

In the Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd,[43]another Full Bench considered whether the NERR was defective and reasoned as follows:

[40] The AMOU’s case was that any misdescription of the coverage of the proposed agreement constitutes a failure to comply with s.174(1A) and thereby renders the NERR invalid. We accept, on the basis of the Full Bench decision in Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd, that any non-trivial misdescription of coverage will render a NERR invalid with the consequence that any subsequent enterprise agreement will be incapable of approval. However we do not consider that there is any basis for the proposition that the NERR issued on 18 May 2015 in fact misdescribed who would be covered by the proposed agreement. The employees covered by the 2012 Agreement were described in clause 5.3 of that agreement in the following terms …

[42] The AMOU’s identification of the references to “General Purpose Hand-Team Leader” and “Intermediate General Purpose Hands” in clause 4.3 being absent from clause 5.3 of the 2012 Agreement, and “Probationary Masters” in clause 5.3 of the 2012 Agreement being absent from clause 4.3, is not demonstrative of any difference in coverage. The same cadre of employees in HCF’s business which were covered by the 2012 Agreement is covered by the 2015 Agreement. Both agreements covered all employees, including onshore employees, involved in the actual operation of the ferry services except for outer harbour engineers (as distinct from employees occupied in administration or maintenance). There was no suggestion in the evidence or submissions that any actual employee or job which was covered by the 2012 Agreement was not covered by the 2015 Agreement, or that any actual employee or job not covered by the 2012 Agreement became covered by the 2015 Agreement. The fact that some employees were given a different classification description for pay purposes by the 2015 Agreement compared to the 2012 Agreement is entirely beside the point. The coverage was the same. The Commissioner’s conclusion on this score was correct and no error has been demonstrated.”

Unlike the similar circumstances considered in AMOU v Harbour City Ferries, the present matter must now be considered both through the lens of compliance with sections 173 and 174 of the Act and the discretion conferred by section 188(2A) of the Act.

As is apparent from the decision of the Full Bench in Australian Maritime Officers' Union v Harbour City Ferries Pty Ltd; Maritime Union of Australia; Australian Institute of Marine and Power Engineers (at [30]), the question in the present case is whether the NERR distributed by Snagfu on 23 September 2021 accurately described what it was “then intending to be the coverage of the proposed enterprise agreement” [emphasis added]. I consider that it did. I am satisfied on the evidence that, at the time it issued the NERR, Snagfu intended the proposed agreement to cover “employees that perform electrical and electronic contracting work across Australia in the classifications of Labourer, Trades Assistant, Communication Technician, Electrical Tradesperson and Senior Electrician”. I accept Mr Dick’s unchallenged oral evidence that there is no substantive difference between the classification of “Senior Electrician” and that of “Senior Electrical Tradesperson”. Further, although the NERR did not expressly exclude from coverage of the proposed agreement “the Company’s Managers” and “Office-based employees”, the expression of coverage in the NERR had that effect. That is, “the Company’s Managers” and “Office-based employees” do not perform “electrical and electronic contracting work across Australia in the classifications of Labourer, Trades Assistant, Communication Technician, Electrical Tradesperson and Senior Electrician.” Accordingly, I am satisfied that the NERR issued by Snagfu complied with s 174(1A) of the Act and Regulation 2.05. I therefore do not need to deal with Snagfu’s alternative argument under s 188(2A) of the Act.

Ground six is rejected.

Ground 7 – fairly chosen

The CEPU contends that the Commission cannot be satisfied pursuant to s 186(3) of the Act that the group of employees covered by the Enterprise Agreement was fairly chosen.

The CEPU relies on the following observations from Lawler VP in Stadium Australia Operations Pty Ltd t/a ANZ Stadium re ANZ Stadium Casual Employees Enterprise Agreement 2009,[44] which were approved by the Full Bench in Cimeco Pty Ltd v CFMEU:[45]

“The group of employees to be covered by a proposed agreement is ‘chosen’ when the employer and the main employee bargaining representatives agree on a particular scope or the bargaining representatives commence bargaining on a shared assumption as to scope (as is often the case when bargaining proceeds by reference to the terms of an existing agreement that is to be replaced by a proposed new agreement) … The time of the choosing is a factual issue to be determined in the usual way. The group of employees to be covered by a proposed agreement – the scope of the agreement – will typically be chosen at or shortly after the commencement of bargaining.”

In reliance on these observations, the CEPU contends that, prior to determining whether the choice was ‘fair’, the Commission must first be satisfied that a group was actually ‘chosen’. This means, so the CEPU contends, that the Commission must be satisfied that there was either agreement on the scope, or at the very least a common assumption as to scope between the employer and the CEPU as the main employee bargaining representative. It is submitted that there was never any agreement or common assumption as to scope. Indeed, the CEPU submits that it laboured under the assumption that the agreement was to exclude office-based staff and only include those employed in the classifications of Labourer, Trades Assistant, Communications Technician, Electrical Tradesperson and Senior Electrical Tradesperson. It is submitted that Snagfu had a different assumption. As a result, so the CEPU contends, a group was never ‘chosen’, and consequentially could not have been ‘fairly chosen’.

The CEPU does not contend, in the alternative, that if the Commission finds that the group was ‘chosen’, it was not ‘fairly chosen’ for any other reason.

The observations made by Vice President Lawler in Stadium Australia Operations Pty Ltd in relation to the ‘choosing’ of a group of employees were made in circumstances where his Honour was concerned with the circumstances pertaining at the time the group was chosen.[46] It was therefore necessary for his Honour to determine when and how the group was ‘chosen’ in that case. I do not understand Vice President Lawler’s observations, as set out in paragraph [119] above, to constitute a comprehensive or complete analysis of all the various ways in which a group of employees may be ‘chosen’ in a particular case. As the Full Bench observed in Cimeco Pty Ltd v CFMEU,[47] the “word ‘chosen’ in the context of s 186(3) simply means selected to be covered by the relevant agreement”. The Full Bench went on to “note that s 186(3) requires FWA to be satisfied that the group of employees covered by the agreement ‘was fairly chosen’.” It was in that context that the Full Bench agreed with the observations of Vice President Lawler in Stadium Australia Operations Pty Ltd.

In the present case, on 2 August 2021 the CEPU wrote to Snagfu and requested that it “commence bargaining for an enterprise agreement to replace the DCE Agreement for employees working in Western Australia”. The “DCE Agreement” referred to in that correspondence is a collective agreement known as the DCE Electrical and Leopard Controls Collective Agreement 2007 (2007 Agreement). The coverage of the 2007 Agreement is “the employees of the Company employed in the classification specified in clause 5, provided that the agreement does not apply to managers or supervisors.” The classifications in clause 5 of the 2007 EA are Qualified Electrician and Trades Assistant.

Snagfu initially informed the CEPU that it was not in a position to commence bargaining, but later, on 23 September 2021, issued a NERR and commenced bargaining. The NERR described the coverage of the proposed agreement as “employees that perform electrical and electronic contracting work across Australia in the classifications of Labourer, Trades Assistant, Communication Technician, Electrical Tradesperson and Senior Electrician”. By drafting and distributing the NERR to relevant employees, Snagfu selected the employees to be covered by the proposed agreement. This selection was, of course, subject to the possibility that the scope of the proposed agreement could be an issue dealt with in bargaining and could result in a new group of employees being ‘chosen’.

A draft enterprise agreement was circulated by Snagfu to its employees in about early November 2022.

On 14 January 2022, Mr Dick emailed Mr Bamford a copy of a proposed enterprise agreement. It contained the same coverage clause as the Enterprise Agreement allegedly made by the employees when they voted on 25 January 2022. The final version of the Enterprise Agreement was distributed to employees on 17 January 2022.

I am satisfied that the group of employees covered[48] by the Enterprise Agreement was ‘chosen’, at the latest, in January 2022 when Snagfu distributed a draft enterprise agreement and then a final version of the Enterprise Agreement, both of which contained the same coverage provisions. It was at, or before, this time that the employees covered by the Enterprise Agreement were selected.[49]

I am also satisfied that the group of employees covered by the Enterprise Agreement was fairly chosen. In reaching this state of satisfaction I have taken into account whether the group is geographically, operationally or organisationally distinct.[50] It is necessary to have regard to these matters because the Enterprise Agreement does not cover all of the employees of Snagfu. The employees covered by the Enterprise Agreement are not geographically distinct from the employees of Snagfu who are not covered. All employees of Snagfu either work at the Premises or at various project sites, mostly around Perth. I am satisfied that the employees covered by the Enterprise Agreement are operationally and organisationally distinct from those not covered. The employees covered by the Enterprise Agreement undertake the physical tasks and duties required to enable the businesses of DCE Electrical and Leopard Controls to provide electrical and HVAC products and services to their clients. The employees who are not covered by the Enterprise Agreement are largely involved in the management or administration of those businesses. Such employees are paid an annual salary, whereas the employees covered by the Enterprise Agreement are paid on an hourly basis for the work they perform. Snagfu has organised its businesses in this way.

I reject ground seven.

Satisfaction of other requirements

I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval of the Enterprise Agreement have been met.

The CEPU, being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Enterprise Agreement is approved and, in accordance with s 54 of the Act, will operate from 17 June 2022. The nominal expiry date of the Enterprise Agreement is 9 June 2026.

DEPUTY PRESIDENT

Appearances:

Ms D Dyer, for the Applicant
Mr A Aghazarian, for the Respondent

Hearing details:

2022.
Newcastle (by video conference):
May 23.

[1] [2017] FWCFB 3005 at [114]

[2] [2020] FCAFC 123 at [65]

[3] Shepherds Producers Co-operative Limited v John Scott Lamont & Ors [2009] NSWSC 294 at [21]

[4] [2013] FCA 355

[5] Butterworths Concise Australian Legal Dictionary

[6] Macquarie Dictionary, Revised Third Edition

[7] See, in particular, clauses 7.1.2, 7.2.1, 7.2.2 (d) & (e), 7.3.1 (b)

[8] Macquarie Dictionary, Revised Third Edition

[9] Macquarie Dictionary, Revised Third Edition

[10] Macquarie Dictionary, Revised Third Edition

[11] Ex A5 at [15]

[12] Ex A5 at [16]

[13] Ex A1 at [14]

[14] Ex A1 at [15]

[15] Ex A2 at [7]

[16] Ex R1 at [19] & [24]

[17] Ex R1 at [24]-[25]

[18] Ex R1 at [18]

[19] Ex R1 at [18]

[20] Ex R1 at [21]

[21] Berri at [114(13)]

[22] Berri at [114(11) & (12)]

[23] Berri at [114(12)]

[24] Ex R1 at [18]

[25] Central West Group Apprentices Ltd v Coal Mines Insurance Ltd [2008] NSWCA 34 at [50]-[51]

[26] (2002) 122 IR 387 at [9]

[27] [2017] FWCFB 3202 at [31]

[28] Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 at [66]

[29] [2016] FCA 621

[30] Federated Engine Drivers and Firemen’s Association of Australasia v Maffra Co-operative Milk Products Co Ltd (1940) 42 CAR 836; applied in Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 at [66]

[31] Clause 7.4.1 of the Enterprise Agreement

[32] Clause 7.4.5 of the Enterprise Agreement

[33] Clause 7.4.1 of the Enterprise Agreement

[34] Clause 7.4.1 of the Enterprise Agreement

[35] Clause 7.4.1 of the Enterprise Agreement

[36] CFMMEU v LS Precast Pty Ltd[2019] FWCFB 1431 at [52]

[37] CFMMEU v LS Precast Pty Ltd[2019] FWCFB 1431 at [53]

[38] Ibid; One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [112]

[39] [2021] FWCFB 3635

[40] Huntsman Chemical Company [2019] FWCFB 318 at [74]

[41] Huntsman Chemical Company [2019] FWCFB 318 at [74]

[42] [2015] FWCFB 3337

[43] [2016] FWCFB 1151

[44] [2010] FWAA 3758 at [28]-[29]

[45] [2012] FWAFB 2206 at [14]

[46] [2010] FWAA 3758 at [28]

[47] at [12]

[48] Section 186(3) of the Act

[49] Cimeco Pty Ltd v CFMEU at [12]

[50] Section 186(3A) of the Act

Printed by authority of the Commonwealth Government Printer

Distance (radius)	Amount
Up to 50 km	$34.00 per day
50km-60km	$36.50 per day
60km-75km	$46.50 per day
75km-90km	$63.30 per day
90km-100km	$77.50 per day

[2022] FWCA 1912

10 JUNE 2022