Application by Aurizon Operations Limited & Aurizon Network Pty Ltd - [2015] FWCA 550

1

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

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

AURIZON STAFF ENTERPRISE AGREEMENT 2014

Rail industry

DEPUTY PRESIDENT SAMS BRISBANE, 21 JANUARY 2015

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

[1] On 16 October 2014, Aurizon Operations Limited (Aurizon Operations) and Aurizon 

Network Pty Ltd (Aurizon Network) (collectively, ‘Aurizon’ or the ‘applicants’), filed an 

application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), for the approval of the 

Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as 

the Aurizon Staff Enterprise Agreement 2014 (the ‘Agreement’).

[2] Aurizon Operations Limited is a wholly owned subsidiary of Aurizon Holdings 

Limited. Aurizon is the largest rail freight operator in Australia and is a top 50 listed company 

on the Australian Securities Exchange. It offers rail and road based freight transport and 

associated infrastructure throughout Queensland, New South Wales, South Australia, Victoria 

and Western Australia. Aurizon Operations is responsible for rail service delivery in 

Queensland. Aurizon Network operates a rail network of approximately 2,670km of heavy 

rail infrastructure in central Queensland. It maintains the track, bridges, structures, overheads 

and other associated facilities, including the planning, scheduling and control of the running 

of the trains on the network. 

[2015] FWCA 550

DECISION


AUSTRALIA FairWork Commission




 



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[3] Aurizon was formerly known as QR National Ltd until it was privatised in 2010. 

Together, both Aurizon Operations and Aurizon Network have around 5,167 employees who 

are members of the following Unions:

 Rail Tram and Bus Union (RTBU);

 Queensland Services, Industrial Union of Employees (QSU);

 Professionals Australia (APESMA);

 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and 

Allied Services Union of Australia (CEPU);

 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; 

known as the Australian Manufacturing Workers’ Union (AMWU); and

 Australian Federated Union of Locomotive Employees (AFULE).

[4] The employees of Aurizon are presently covered by thirteen enterprise agreements; all 

of which passed their nominal expiry date on 31 December 2013. Since 2013, Aurizon has 

been negotiating with the Unions for three new enterprise agreements to cover the train crews, 

construction/manufacturing employees and staff personnel. In or about September/October 

2014, Aurizon put the three proposed agreements to a vote of the employees. The Staff 

Agreement was the only one approved, by a narrow margin of 463 to 433, in a ballot 

conducted between 7 and 13 October 2014. The other two were voted down by their 

respectively covered employees.

[5] At this point, I note that in the Employer’s declaration in support of the application 

(Form F17), it was conceded by Aurizon that originally the number of eligible voters was 

896, which had included 50 employees ineligible to vote. On the second day of voting, 

Aurizon sought to remove the ineligible voters from the roll, but thirteen of them had already 

voted. It was assumed by Aurizon that even if all ineligible employees who voted were 

invalid ‘yes’ votes, this still left a comfortable majority for approval of 446-433.

[6] The application for approval of the Agreement was listed for hearing on 24 October 

2014. Mr Michael Heenan, Manager Employee Relations appeared with Mr D Hooper, 

Employee Relations Leader. Mr M Jaye appeared for the QSU, Mr P Allen for the RTBU, Ms 

K Allen for the AMWU and Mr J Young for the CEPU. The QSU, AMWU, RTBU, CEPU 

and APESMA had each filed a Form F18 Declaration in which the Unions alleged that certain 

voting irregularities and anomalies had occurred which would satisfy the Commission that the 








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employees had not genuinely entered into the Agreement and/or the ballot outcome was, in 

fact, invalid and the Agreement could therefore not be approved by the Commission.

[7] It was also alleged that there were irregularities in, and confusion about, the Notices of 

Employee Representational Rights (NoERR or ‘Notice’) issued to the employees, such as to 

also render the Agreement unable to be approved by the Commission.

[8] Given the Union’s objections to the approval of the Agreement and despite Mr 

Heenan pressing me to approve the Agreement , I decided that the Agreement could not be 

approved that day and that the Unions’ objections would need to be tested by the bringing of

evidence to that effect and for Aurizon to respond by its own evidence. Directions were 

issued, in short compass, for the filing and service of any evidence and submissions on the 

issues in dispute between the parties. At a further hearing of the matter, Mr S Meehan of 

Counsel appeared for Aurizon and Mr G Sivaraman, Solicitor appeared for the RTBU and 

QSU, with permission granted to both of them to appear, pursuant to s 596 of the Act. The 

AMWU and CEPU corresponded with my chambers to indicate that they supported the 

position of the RTBU and QSU. 

[9] At this juncture, I note that Aurizon has also sought to terminate all the existing 

enterprise agreements covering their employees, pursuant to s 225 of the Act. Those matters 

were listed before a Full Bench of the Commission in late November 2014 and a decision of 

the Commission is reserved.

THE EVIDENCE

For the applicants

[10] Mr Hooper is employed by Aurizon Operations Limited as Employee Relations 

Leader. He has responsibility for advising on employee discipline and termination, the 

preparation and execution of bargaining activity and the provision of advice on compliance 

with industrial instruments, legislation and HR policy.

[11] In written evidence, Mr Hooper explained that prior to its privatisation, Aurizon (or 

QR National Ltd, as it then was) had operated under a business unit structure with each 

business unit having its own support staff. After privatisation, it divided its business along 

function lines, as follows:








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 Operations (including coal, freight, rollingstock maintenance, program delivery, 

operations planning and safety);

 Network operations;

 Human Resources;

 Commercial and Marketing;

 Strategy and Business Development; 

 Finance; and

 Enterprise Services.

[12] Mr Hooper deposed that this Agreement is to cover employees of Aurizon Operations 

and Aurizon Network involved in the performance of administrative, finance, technical (non-

trade qualification), professional and/or similar work, the performance of work associated 

with network control and employees engaged in engineering trade work and civil construction 

work, in any role for which a classification appears in the Agreement and for which a trade 

qualification is not mandatory. It also covered a small number of supervisors who did not 

have trade qualifications and who are covered by one of the currently applicable enterprise 

agreements.

[13] Mr Hooper stated that there were two streams of employee classifications under the 

Agreement, being the broadly ‘white collar’ Staff Stream and the broadly ‘blue collar’ 

Network Control Stream. The levels in the Staff Stream were derived from the broad 

classification streams in five of the older enterprise agreements by using job evaluation 

methodologies and position descriptions to determine an employee’s placement, based on a 

points system. All employees’ positions had position descriptions and Aurizon’s

Remuneration Team was responsible for the evaluation of each position. It was intended that 

the classifications under cl 39 of the Agreement and the transitional wage provisions at cl 49, 

would correlate with staff classifications under the existing enterprise agreements.

[14] Mr Hooper explained that Aurizon’s Trainees were engaged on a Vocational 

Education Training Contract, which was intended to provide them with the necessary skills to 

be employed in a role which would be covered by the Agreement. They were included in the 

Agreement’s coverage as their work was similar to other roles, albeit at a trainee level. 








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[15] Mr Hooper said that the Network Control stream in the Agreement covered a distinct 

operational group of employees whose work involved controlling the running of trains on the 

network and who were currently covered by the QR National Network Enterprise Agreement 

2010 [AE880766]. Specifically, Network Controllers, through their ‘Control Boards’ were 

responsible for the control of planned rail traffic movements, the development of movement 

and rail corridor access plans, the review and revision of procedures in relation to unplanned 

events and reporting on day to day events. ‘Control Boards’ were ranged in levels of 2 to 5 - a 

score which was arrived at by taking into account workload, complexity and the nature of 

traffic on the Board. The relevant employees were trained to the standard of TLI42211 

Certificate IV in Rail Network Control or higher and then on specific Control Boards. 

[16] Mr Hooper listed 16 locations at which the employees worked throughout Queensland. 

The Agreement did not cover employees working outside Queensland. The Agreement did not 

cover persons employed on a temporary basis as part of a cadetship or graduate program, 

which typically ran for two years. He described the graduate engineer programs, noting that 

these graduates reported to operational line managers and undertake operational tasks. By 

contrast, graduates in non-engineering capacities report to line managers in the corporate

support functions and perform corporate support work. Most graduates were employed by 

Aurizon on a fixed term basis. All of the employees employed by Aurizon Network, who 

worked outside of Queensland, were graduates.

[17] Mr Hooper said that cadets were sometimes employed in areas such as drafting and 

surveying. These cadets would generally work full time for Aurizon while completing their 

qualifications. There were no cadets employed on a temporary basis. 

[18] Mr Hooper annexed a document to his statement which purported to set out the 

personnel numbers of those employees in graduate positions and cadetships who were 

included on the roll of voters for the approval of the Agreement; all of these, apart from a Ms 

Catherine Hornby, were Engineers. He described the source of each employee’s contractual 

terms and conditions, which was by way of a template ‘Letter of Offer’ (before 2013) or by 

way of a document marked ‘Enhanced Remuneration Package’. All of these employees who 

were in graduate engineering positions were permanent employees. Mr Hooper also drew 

attention to documents which set out ‘Letters of Offer’ or ‘Offers of Enhanced Remuneration 








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Package’, the employees’ current position description, a confirmation of successful 

completion of probation (if relevant) and a Transfer of Employment agreement (if relevant). 

[19] Mr Hooper put that while the ‘Offer of Enhanced Remuneration Package’ referred at 

cl 17.2 to ‘when this agreement ceases at the end of the fixed term period’, there were no 

fixed term periods for graduate engineers. There was another error in that it referred to 

participation in the graduate program for two years, which did not include the third year of 

rotational placements. He believed that these errors had arisen because the same template 

letter was used for Graduate Engineers, as well as other graduates on a fixed term basis. The 

template highlighted the phrase to ‘when this agreement ceases at the end of the fixed term 

period’, but there was no explicit direction to delete it for permanent employees.

[20] Mr Hooper believed that the vast majority of employees to be covered by the 

Agreement used desktop computers with access to the Aurizon intranet in their day to day 

work. 27 graduates included on the voters roll had been issued with smartphones with 

Aurizon email access. A dedicated bargaining intranet and internet site had been created in or 

about April 2013. This had been notified on the Aurizon intranet homepage. 

[21] Mr Hooper referred to a notice distributed by email from Mr John Stephens, Aurizon’s 

Executive Vice President on 19 September 2014 which indicated Aurizon’s intention to put 

the three enterprise agreements to a vote of employees between 7 and 13 October 2014. While 

the specific enterprise agreements were not identified, it was made clear that employees could 

only vote in relation to the enterprise agreement which would cover them. It was also advised 

that further information was to be provided via information sessions. A draft of the 

Agreement was uploaded to the intranet on 23 September 2014 and onto the internet 

bargaining website. This was notified on the same day by way of a further email from Mr 

Stephens. This email offered information and assistance from supervisors to employees if 

they were a young person, from a culturally diverse background, from a non-English speaking 

background or did not have an employee bargaining representative.

[22] Mr Hooper reported that between 23 and 30 September 2014, 53 information sessions 

were held with employees at 21 locations across Queensland. He had personally presented a 

total of seven information sessions at Rockhampton, Mackay, Jilalan and Collinsville. 

Annexed to his statement was a copy of a Powerpoint presentation he had given at these 








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sessions. This included information about the voting process and how to vote by phone and 

over the internet. During his presentation he had advised employees on who was and who was 

not to be covered by the Agreement; the proposed classifications, band levels and wage 

increases; changes to hours of work, including changes to shift allowances; and the overtime, 

annual leave, public holiday and shift loading entitlements under the Agreement. After 

presenting each slide, he had asked whether employees had any questions.

[23] Mr Hooper said that the notification as to the time and place for these information 

sessions had been by way of pre-start briefings, notices on notice boards and emails to distinct 

employee groups. He provided a bundle of emails confirming the notification to employees of 

information sessions in Brisbane, Townsville, Acacia Bridge, Rockhampton and Mackay. 

[24] Mr Hooper referred to a transcript of a webcast uploaded to the intranet on 24 

September 2014, in which Mr Heenan had said the following:

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

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

by the Agreement.

[25] Mr Hooper deposed that further documents setting out information on the voting 

process and the Agreement itself were posted on the intranet on 26 September 2014. An email 

was sent by Mr Heenan to a bulk email recipient group for managers with responsibility for 

communicating enterprise bargaining information, which set out what information had been 

provided to employees. A hard copy letter with details about the decision to put the 

Agreement to a vote was sent to each employee’s home address on 29 September and separate 

documents with instructions on the balloting process were sent on 30 September.








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[26] Mr Hooper noted that the Australian Electoral Company (the AEC), which Aurizon 

had retained to administer the ballot, had provided a free 1800 helpline and a help desk 

facility contactable on help@austelect.com. These facilities were monitored between 8:30am 

and 5:00pm AEST on business days during the ballot. They were able to deal with employees 

who did not have access to the login details for the ballot. Guidance as to what to do in this 

instance had been provided to employees in a document marked ‘Employee Ballot -

Frequently Asked Questions’, which was posted on the intranet on 26 September 2014.

[27] Mr Hooper acknowledged his involvement in the compilation of the roll of eligible 

voters. He had provided a spreadsheet containing the voter roll to the AEC. He understood 

that on 3 October 2014, Mr Heenan had become aware that the voter roll included all graduate 

employees. He had emailed the graduate team the same day in the following terms:

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

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

We apologise for any inconvenience caused.’

[28] Mr Hooper believed that Mr Hadley at the AEC had been contacted and directed to 

disable the voting for graduates. He understood that this contact had been prior to the opening 

of the ballot. However, on 7 October 2014, Mr Hooper realised that voting had been 

incorrectly disabled for all permanent graduates. He had found a list of permanent graduates 

and directed Mr Andrew Webster, Payroll Systems Coordinator, to bring this to the attention 

of the AEC so that they could be restored to the roll. Mr Hooper then sent a corrective email 

to these employees in the following terms:

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

My apologies for the mix up.’

[29] Mr Hooper stated that he had not received a reply or follow up message from any of 

these employees, but stressed that he had not received an ‘out of office auto-reply’ either. On 

21 November 2014, Mr Hooper had discovered that three graduate employees based in Perth 








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had been incorrectly reinstated to the roll, being Cathryn Hornby, Kellan Morrow and 

Nicholas Keogh. Nevertheless, the marked roll of voters suggested that they had not voted. 

However, Mr Frederik Averesch, who was not working in Queensland had been inadvertently 

put on the roll. Mr Averesch had voted in the ballot. 

[30] Mr Hooper referred to correspondence sent from Aurizon to the RTBU and the QSU 

on 20 October 2014, which was in the following terms:

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

Aurizon does not share your concerns that:
 the validity of the ballot is in question; and/or
 the result of the ballot is dubious; and/or
 the result of the ballot should not be relied on.

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

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

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

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








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

[31] Mr Hooper referred to a subsequent letter sent to Mr Doogan of the RTBU and Mr 

Henderson of the QSU, in which Aurizon accepted that the Agreement did not cover Business 

Managers, Legal Counsel or Senior Management Accountants. He acknowledged that the 

marked-up voter roll disclosed that two Senior Management Accountants and one Business 

Manager had voted in the ballot.

[32] Mr Hooper referred to the written statement of Mr Dwyer and claimed that there was 

no person with the surname of Bryans who was employed as a Contract Manager by Aurizon. 

While there was a Mr Allan Bryans, employed as Townsville Operations Manager, he was 

covered by the Agreement. Mr Hooper denied that Mr Swaminathan was required to apply for 

a permanent job at the end of his graduate program. As an Engineering Graduate, he was a 

permanent employee.

[33] In cross examination, Mr Hooper was shown a document titled the AEC’s Returning 

Officer’s Report for the Agreement (the ‘Report’), dated 14 October 2014. He had accepted it 

as accurate at the time it had been given to him. He conceded that 1,486 employees had been 

mailed an instruction sheet and password advice, meaning that 79 more employees than on the 

roll of voters had been mailed this material. Mr Hooper agreed that 83 employees were 

deleted from the list of eligible voters, but it was possible for those 83 employees to have 

voted in the interim. 68 employees had also been added to the roll. He could not say whether 

those employees had received the voting material. 

[34] Mr Hooper agreed that the Report also set out that two sets of instruction sheets and

password advice notices were returned to the AEC, although they may have received the 

material from the Helpline. He was shown copies of returned letters from Mr Erwin 

Grosskopf and Ms Nicole Newell. He acknowledged that the marked up roll of voters set out 

that those two employees did not vote in the ballot. The Report also set out that there were ten 

employees who had contacted the AEC Helpdesk to say that they were not on the roll. These 

employees were then directed to contact Aurizon. If eligible, Aurizon would have directed the 








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AEC to add them to the voter list. However, Mr Hooper did not accept that it would have 

been necessary to send these employees the voting material, as they could have received the 

voting instructions and password information by quoting their service number and date of 

birth to the AEC Helpline. He could not say how many of these ten employees would have 

been eligible to vote.

[35] Mr Hooper accepted that 64 employees on the voter roll at the commencement of the 

vote should not have been on the roll. Their names were then included on the roll for the 

construction and maintenance enterprise agreement after that ballot opened. 

[36] Mr Hooper was shown a call log maintained by the AEC which indicated that Mr 

Oliver Rogers had contacted the AEC on 10 October 2014 at 2:29pm, to advise that he had 

been ‘Left off data base’. Mr Rogers would have been directed to Aurizon. It appeared that 

Mr Rogers’ name had then been added to the voter roll, although he was not eligible as he was 

a Senior Management Accountant. This was also the case in relation to Mr Raymond Syratt, 

who had contacted the AEC’s Helpdesk on 13 October 2014. 

[37] Mr Hooper agreed that 66 employees had voted in the last two hours of the ballot. He 

acknowledged that there would be ‘a bit of a rush’ in the closing hours of the time for voting, 

although he did not see this number as significant. He conceded that he did not have definitive 

advice from the AEC as to how many people attempted to access the ballot in the period 

during which it was temporarily shutdown. 

[38] Mr Hooper admitted that while he had been satisfied that the voter roll provided to the 

AEC on 24 September 2014 was accurate, this had not been the case. Aurizon was also wrong 

to believe that the voter roll amended with 83 deletions and 68 additions was accurate. It was 

not accurate after the further removal of 64 employees from the roll. He said:

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








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[39] Mr Hooper agreed that when the application for approval of the Agreement had been 

filed with the Commission, Aurizon had been satisfied that the voter roll, as amended, was 

accurate. He now conceded that this was wrong. Nor had the roll been accurate on 23 October 

2014, when Aurizon wrote to the RTBU to say that five further positions had been removed. 

He believed it was unfair to suggest that he could not now be certain that the roll was 

accurate. In any event, whether the vote was affected would depend on the nature and scope 

of the inaccuracies in the voter roll.

[40] Mr Hooper acknowledged that graduates who were entitled to vote had been told they 

were not to vote. They would have been entitled to rely on the advice of Aurizon’s Senior HR 

Manager. He could not rule out some confusion may have been caused. These employees had 

not been forwarded their voting material again and they had not been given a further seven 

days to vote.

[41] Mr Hooper rejected the proposition that the NoERR distributed to employees must 

disclose who was to be covered by the Agreement - this was not the purpose of the notice. It 

was still open to conclude an enterprise agreement which does or does not cover the 

employees mentioned in the NoERR. He conceded that employees would be entitled to rely 

on the NoERR as indicative of their rights in a bargaining period. However, it would have 

been unwise to rely on this as setting out the coverage of the Agreement, rather than the 

Agreement’s ultimate coverage clause.

[42] Mr Hooper noted that all current employees proposed to be covered by the Agreement, 

were currently covered by existing enterprise agreements. A senior employee who is not 

currently covered by an enterprise agreement, would not be covered by the Agreement. Mr 

Hooper was shown a letter of appointment and an employment agreement, which he accepted 

related to two employees of Aurizon included in the coverage of the Agreement. He agreed 

that neither of these documents made reference to an enterprise agreement, but the 

classification of the employees as defined in the contractual documents (AS6 and AS2 

respectively) would necessarily be covered by an enterprise agreement.

[43] In brief oral reply evidence, Mr Hooper clarified that there were currently no 

employees employed at the classification of AS8. It was a defunct classification that had been 

included at the QSU’s request during the creation of classifications in the last round of 








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bargaining in 2010. However, no employees had ever been ‘scored’ by Aurizon at the AS8 

level. It was Mr Hooper’s evidence that no employee had been employed at this level in over 

a decade.

For the Unions

Mr Arjun Swaminathan

[44] Mr Swaminathan worked as a student employee at Aurizon when studying for a 

Bachelor of Engineering at the University of Queensland. He graduated in July 2013 and he 

commenced employment as a rotational engineer (electrical) in January 2014. This was part 

of a graduate program. He is a member of APESMA.

[45] In written evidence, Mr Swaminathan claimed he had had a conversation with the 

Technical Director at the beginning of 2014, in which he was told that the graduate program 

lasted for three years and that he would have to apply for a permanent job at the end of this 

time. He was not aware that he was covered by an enterprise agreement.

[46] Mr Swaminathan had become aware, through his participation in graduate 

development programs throughout 2014, that seventeen graduates had been employed by 

Aurizon in 2014. Approximately ten of these were engineering graduates and the remainder 

were accounting graduates. He was also aware of 70 graduates having been employed by 

Aurizon in 2013, in the areas of Human Resources, Accounting and Engineering. Senior 

graduates had told him that the enterprise agreement did not cover the 2014 graduates and that 

both the 2013 and 2014 graduates were on fixed term contracts.

[47] Mr Swaminathan claimed that he had been confused as to whether he was eligible to 

vote for the approval of the Agreement. He had received an email notification on 22 

September 2014 notifying of information sessions to be held on 23 September in relation to 

the Agreement. He had not attended, because he believed he would not be covered by the 

Agreement. He had also received an email on 24 September 2014 from his Senior Manager 

notifying him of the voting process and that the three enterprise agreements were available for 

inspection on the intranet. Upon review of the Agreement, cl 3.2 confirmed his view that he 

was not covered by the Agreement and therefore not eligible to vote. 








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[48] Mr Swaminathan said he had sent an email to his manager setting out the text of cl 3.2 

and asking: ‘Am I eligible to vote on the proposed EA when I am not covered by it? Please let 

me know.’ He understood that this manager had followed up his query with Mr Hooper, who 

sent an email on 25 September 2014. The email clarified that graduate employees were not 

covered by the Agreement. However, on 9 October 2014, a further email was sent, which 

stated: 

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

My apologies for the mix up.’

It was Mr Swaminathan’s evidence that this email did not resolve his confusion as to whether 

he was covered by the Agreement. 

Mr David Dwyer

[49] Mr Dwyer is employed as an Administrative Assistant. He has been employed by 

Aurizon since 1981. In written evidence, he stated that he had been aware of the negotiations 

for the three proposed enterprise agreements. He claimed that he had had a discussion with 

Mr Jim Bryans, Contract Manager in or about October 2014 in which Mr Bryans had said he 

was confused, as he had received voting material and instructions in relation to the 

Agreement, although he believed he was not covered by it. Mr Dwyer could not say whether 

Mr Bryans had voted. This information had caused him to become concerned about the voting 

process and he had reported this example to the RTBU.

Donald Skerman

[50] Mr Skerman has been employed by Aurizon/Queensland Government Railways since 

1974. He is employed as a Principal Engineer, Vehicle and Track and is a delegate for 

APESMA.

[51] In a written statement, Mr Skerman said that there were eight Mechanical or Electrical 

Engineering graduates. He supervised them on one of their various rotations. Mr Roger 

Buckley, Chief Engineer supervised two graduates in other sections of Aurizon. Mr Skerman 

claimed that graduates had told him in conversations between 3 and 9 October 2014 that they 








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had received voting material for the Agreement, but they had also received an email from the 

‘EA Bargaining Team’ dated 3 October 2014, which was as follows:

‘Hi All,

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

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

[52] Mr Skerman understood that these graduates had raised their confusion with Mr 

Buckley on 3 October 2014 and been told by Mr Buckley on 8 or 9 October 2014 that they 

were permitted to vote and an email to this effect was sent to them from Mr Hooper on 9 

October (see para [27]). One of the employees had told Mr Skerman that he had already 

thrown away his ballot material by this time. 

Mr Peter Allen

[53] Mr Allen is the Principal Industrial Officer for the RTBU and has been involved in 

bargaining with Aurizon, on behalf of his members, since April 2013. In written evidence, Mr 

Allen stated that the RTBU’s position in bargaining throughout this period was that there 

should be two enterprise agreements covering the employees who were proposed to be 

covered by the Agreement. Mr Heenan and Mr David Pullen of APESMA had debated 

whether the coverage of graduates and cadets should be covered by the Agreement. Mr 

Heenan had opposed the coverage of graduates and cadets and had advised the Union that 

they would not be covered.

[54] Mr Allen explained that after the contents of the proposed three enterprise agreements 

were circulated and posted on the intranet on or about 20 September 2014, the RTBU had 

raised issues of concern with the agreements in correspondence to its members.

[55] Mr Allen said that after the ballot had commenced, Mr Jason Young of the CEPU had 

told him that some of his members had complained that they had received voting material, but 

as they had trade qualifications, were therefore ineligible to vote. Some time in early October 

2014, Mr Dwyer had raised his concerns about the ballot in a conversation with him, noting 








[2015] FWCA 550

16

specifically that a Contract Manager had received the voting material. Mr Allen had since 

confirmed that this position was not covered by the Agreement.

[56] Mr Allen claimed that after the close of the ballot, a number of RTBU members had 

complained to the Union that other managers had received the voting material, despite not 

being covered by the Agreement. Mr Craig Allen, an Organiser, had mentioned that one

employee, who had been working at a different location, had not received his mail until after 

the vote had closed. Another employee had received the voting material at home a day after 

the ballot was closed. 

[57] Mr Allen said that he was surprised when Mr Pullen had told him that graduates had 

not had clear information about the vote, as he had not been aware that they were able to vote. 

He understood that they were on fixed term arrangements, which excluded them from 

coverage under the Agreement. He recalled, from his own time studying at University of 

Queensland, that the graduate program, advertised by Aurizon, was said to be for two years, 

with an opportunity to apply for a permanent position after graduation. He noted that the 

Frequently Asked Questions section relating to graduate recruitment on Aurizon’s website, 

identified employment as being for a fixed term of two or three years.

[58] Mr Allen said that after discussions with Mr Pullen and Mr Mattner from the QSU in 

mid-October, they had decided to write to Aurizon to raise their concerns with the voting 

process. However, the application for approval of the Agreement had been lodged on 16 

October 2014. The RTBU wrote to Aurizon on 17 October 2014 raising its concerns and 

seeking a meeting. Aurizon agreed to meet on 23 October 2014 (Mr Allen contacted my 

chambers on 17 October 2014, indicating that the RTBU opposed the approval of the 

Agreement. He followed this up with an email on 20 October 2014). 

[59] Mr Allen referred to correspondence from Aurizon to the QSU on 20 October 2014 

(see para [30]). In this correspondence, Aurizon had conceded that 64 employees, who were 

not entitled to vote for the Agreement, had been sent the voting material. The correspondence 

included a list of positions which were supposedly covered by the Agreement. He and Mr 

Mattner had reviewed this list. They were surprised to find that it included 26 graduates. Mr 

Mattner had believed that 30-40 of these positions were too senior to be covered by the 

Agreement. They had met with Mr Heenan and Mr Hooper on 23 October 2014 to raise these 








[2015] FWCA 550

17

issues. Mr Heenan was not overly concerned and had said he would get back to them. Mr 

Mattner had asked for the position descriptions for all the positions included in the vote and 

Mr Heenan had agreed to provide this information. In further correspondence, Aurizon had 

conceded that five more ineligible employees had been provided with the voting material.

[60] Mr Allen complained that the position descriptions provided by Aurizon on 24 

October 2014 did not set out the relevant dates of their creation, amendment or effect and did 

not identify coverage by any industrial instrument or individual contract. 

[61] In oral evidence, Mr Allen clarified that a small number of supervisors, proposed to 

be covered by the Agreement, are currently covered by the QR National Rollingstock and 

Component Services Enterprise Agreement 2010 [AE880774]. He stressed that the Unions 

had always sought a separate enterprise agreement for Network Controllers. 

[62] In cross examination, Mr Allen agreed that the Unions had believed the Network 

Controllers were a distinct category of employees. Mr Allen could not say whether there were 

any employees currently employed by Aurizon at Level AS8, although he would have thought 

that if they did exist, they would have been covered by the Agreement. His view was that 

Level AS8 had been removed, as the Agreement had seven levels, while the existing 

enterprise agreement referred to eight. He understood that there were employees of Aurizon 

presently covered by enterprise agreements at level AS8 who would not be covered by the 

Agreement and specifically the classification structure, under the heading of Staff Employee 

Stream.

SUBMISSIONS

For the applicant

[63] In written submissions, Mr Meehan described the operations of the applicants, the 

proposed coverage of the Agreement and the arrangements made by the AEC for the vote to 

be conducted by telephone and internet, with the provision of a helpdesk for employees. Mr 

Meehan said that from a total of 1,407 employees listed on the roll as eligible to participate in 

the vote, 896 employees had voted, with 463 voting for the approval of the Agreement and 

433 voting against approval.








[2015] FWCA 550

18

[64] Mr Meehan submitted that the applicants had complied with s 180(2)(b) of the Act 

through its provision of electronic access to the written text of the Agreement on its intranet 

from 23 September 2014. That same day, Mr Stephens also sent an email (see para [21]) to all 

Aurizon employees in Queensland who were covered by the existing enterprise agreements. 

His email set out that the text of the proposed enterprise agreements was available on the 

intranet. He advised of the dates for the ballots and that information sessions would be 

conducted across Queensland. It advised that if an employee required additional assistance 

with the explanation of the enterprise agreement, he/she should contact their supervisor or 

manager.

[65] Mr Meehan said that the applicant had complied with s 180(3) of the Act by way of 

the various information sessions, conducted across Queensland between 23 and 30 September 

2014, a ‘webcast’ on 24 September 2014 and the placing of a document titled ‘Voting on your 

proposed agreement’, on the applicants’ intranet on 26 September 2014.

[66] Mr Meehan submitted the applicants had complied with s 180(5) of the Act by way of 

the information sessions conducted by the applicant before and during the access period. The 

applicants had complied with s 181(2) and s 173(1) of the Act through its provision of the 

NoERR of 12 September 2014, with the employees being asked to approve the Agreement by 

voting on it. 

[67] Mr Meehan put that the Agreement did not contravene the National Employment 

Standards (NES) (s 55) and that it passed the Better Off Overall Test (BOOT) (s 193). The 

Commission could be satisfied that the employees covered by the Agreement were fairly 

chosen in that they were organisationally and operationally distinct from the other employees 

(s 186(3)); See: Construction, Forestry, Mining and Energy Union v Queensland Bulk 

Handling Pty Ltd [2012] FWAFB 7551. He explained the differences between the Staff 

stream employees, who are involved in administration, customer service, human resource 

management, operational support development, policy implementation and advisory services 

and the Network Control stream employees who are involved in the planning, scheduling and

control the running of trains on the network. He described the work and duties of Network 

Controllers and the ‘Control Boards’, being an area placed under the direct control of a 

Network Controller. Network Controllers are required to have a TLI42211 Certificate IV in 

Rail Network Control of the Australian Qualifications Framework. 








[2015] FWCA 550

19

[68] Mr Meehan explained that graduates and cadets employed on a temporary basis, had 

been excluded from coverage of the Agreement. However, Graduate Engineers, unlike other 

graduates are employed permanently and are organisationally distinct from the other 

graduates, in that they report to the operational engineering management, while the other 

graduates report through the operational support division. All Cadets were employed on a

permanent basis. 

[69] Mr Meehan highlighted and conceded a number of errors in the voter roll identified by 

Aurizon over a period of time. On 8 October 2014, the applicant had become aware that 64 

employees had been incorrectly included on the voter roll. They were removed from the roll, 

but not before 13 of the employees had voted. Five Senior Managers had been identified as 

having been included on the voter roll and three of them had cast a vote. Three permanent 

graduate employees based in Western Australia were incorrectly added to the Roll when 

permanent graduates were reinstated to the voter roll, but did not vote. One further employee, 

not based in Queensland, was incorrectly included on the voter roll and had voted. Mr 

Meehan emphasised that even if the 17 invalid votes were counted as invalid ‘yes’ votes, the 

result would be 446 in favour and 433 against.

[70] Mr Meehan conceded that permanently employed graduates had been mistakenly told 

that they were not to be covered by the Agreement. When this error was corrected on 9 

October 2014, the relevant employees had been given a further four days to vote. The Union’s 

submission that the ballot had miscarried due to these issues was unsustainable. Additionally, 

the Unions had made reference to ‘certain managers’ having incorrectly received voting 

material and being permitted to vote in the ballot. However, the Union had not provided clear 

and cogent evidence as to their identity. 

[71] Mr Meehan submitted that the applicants had taken ‘all reasonable steps’ to notify the 

relevant employees of the date, time, place and method of the vote. Taking ‘all reasonable 

steps’ did not require that each of the relevant employees were personally notified - this was 

practically impossible for a large employer; See: National Tertiary Education Industry Union 

v University of New South Wales [2011] FWAFB 5163 (‘NTEU v UNSW’).








[2015] FWCA 550

20

[72] Mr Meehan argued that the reference to coverage in a NoERR was not required to 

accurately reflect the coverage of an enterprise agreement at the time it is subsequently made. 

There was no authority for a submission that the coverage set out in the NoERR must define 

the final coverage of an enterprise agreement that was proposed to be the subject of 

bargaining. There was authority for a proposition that ‘proposed enterprise agreement’ is a 

generic term allowing for a variety of possibilities and outcomes in relation to a negotiated 

agreement; See: Wesfarmers Premier Coal Limited v The Automotive, Food, Metals, 

Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737. 

[73] Mr Meehan stressed that there was no evidence to support the Unions’ submission that 

the provision of confusing and/or misleading information was likely to have altered the ballot 

result. This was merely speculation. The Commission should find that the ballot did not 

miscarry and that a majority of eligible voters who cast a valid vote, voted to approve the 

Agreement. As all of the pre-requisites for approval of the Agreement in ss 186-187 of the 

Act had been met, the Agreement must be approved by the Commission.

[74] In oral submissions, Mr Meehan put that there was no intention by the applicants to 

expand upon the historical coverage of the existing enterprise agreements. Rather, the 

applicants were seeking to consolidate numerous enterprise agreements into three. The QR 

National Network Enterprise Agreement 2010 currently covers supervisory, administrative 

and clerical employees, including the Network Controllers. Mr Allen’s evidence demonstrated 

that the RTBU agreed with the applicants that Network Controllers are considered as a group 

distinct from the operational employees. 

[75] Mr Meehan noted that the employees engaged on a temporary basis as part of a 

graduate development or cadetship program were not covered by the Agreement. The 

evidence disclosed that some of the applicants’ graduates were employed on a fixed term 

basis, but engineering graduates were employed on a permanent basis. The uncontested 

evidence of Mr Hooper demonstrated that none of the Graduate Engineers on the voters roll 

were temporary employees. 

[76] Mr Meehan highlighted the sample documents marked ‘Offer of Employment’ and 

‘Enhanced Remuneration Package’, which both referred to employment as a Graduate 

Engineer on a permanent basis. The Enhanced Remuneration Package was an individual 








[2015] FWCA 550

21

flexibility arrangement as permitted under cl 2 of the QR National Network Enterprise 

Agreement 2010. Another document, setting out a transfer of employment, confirmed that 

these employees were employed on a permanent basis. Mr Hooper had also given evidence 

that there were no fixed term cadets employed by the applicants. Mr Hooper’s unchallenged 

evidence was that a reference to the ‘end of the fixed term’ was the result of an error in a 

template document. The assertions made by Mr Allen, Mr Skerman and Mr Swaminathan as 

to the basis on which graduate employees were employed, were without foundation.

[77] Mr Meehan addressed the issue of ‘confusion’ raised by the Unions. He conceded that 

the applicants had informed the workforce that the new enterprise agreement would not cover 

graduates and cadets and that they were therefore ineligible to vote. However, this was 

clarified by the email of 9 October 2014 (see para [28]). At this time, the permanent graduates 

still had four days to vote. He agreed they would not have been able to vote until this time. Mr 

Meehan acknowledged that the permanent graduate employees lost the benefit of some days 

in the voting period. However, any confusion was sufficiently rectified by Mr Hooper’s email 

of 9 October 2014 when he told them to rely on the voting information which had already had 

been sent. There was no direct evidence adduced that any of these employees had thrown 

away their voting information. In any event, they could have asked for further information if 

they had done so, or contacted the Helpdesk.

[78] Mr Meehan said that the challenge to the voters roll on the basis that it incorrectly 

included Managerial and other Senior employees was not made out by the evidence. Contracts 

provided to some of these employees contemplated the possibility of an industrial instrument 

applying to them. The Unions had simply contested 90 positions on the voters roll on the 

basis that they had ‘Manager’, ‘Senior Engineer’ or ‘Civil Engineer’ in their titles. There was 

no evidence that these employees would not be covered by the Agreement.

[79] Mr Meehan submitted that Mr Hooper’s evidence, as to references to coverage in a 

NoERR, represented the correct approach. Such a reference was not binding and conclusive as 

to coverage of a proposed enterprise agreement that is yet to be subject to bargaining. There 

was no evidence that employees had not received the Notice and, in any event, the applicants 

were only required to take ‘reasonable steps’ to ensure that every employee received the 

Notice, rather than ensure that every employee did in fact receive the Notice; See: NTEU v 

UNSW.








[2015] FWCA 550

22

[80] Mr Meehan put that the applicants had been transparent in relation to errors and 

irregularities in the voting roll. Even taking into account the 17 invalid votes, the Commission 

should come to a conclusion, on the balance of probabilities, that there was still a requisite 

majority in favour of approving the Agreement. This was so regardless of any submission 

made by the Unions as to the applicants’ lack of certainty as to the correctness of the voting 

roll at different times in the process.

[81] Mr Meehan provided the Commission with a document detailing the benefits under the 

Rail Industry Award 2010 [MA000015] compared to the Agreement. He submitted that the 

Agreement met the BOOT. 

[82] Mr Meehan said that in the event that the Commission approved the Agreement, it 

would replace two enterprise agreements which the applicants have asked a Full Bench of the 

Commission to terminate, pursuant to s 225 of the Act. There were separate enterprise 

agreements which would still cover other employees. 

For the Unions

[83] In written submissions, the Unions put that the Commission could not be satisfied that 

the Agreement had been made in accordance with s 182 of the Act in that it had not been 

‘genuinely agreed to’ by the employees to be covered by it. Nor could the Commission be 

satisfied that all of the employees to be covered by the Agreement and only the employees to 

be covered by the Agreement, were asked to approve the Agreement. Accordingly, the 

approval of the Agreement should be refused. 

[84] In supporting these submissions, the Unions noted the concession by the applicants 

that ‘approximately’ 50 employees had also been wrongfully included in the ballot and its 

subsequent acceptance that 64 employees had been wrongfully included in the ballot. On 23 

October 2014, the applicants had further conceded that a further five employees had been 

wrongfully included in the ballot. This demonstrated that the applicant was unsure as to what 

employees had been included in the ballot. This was particularly pertinent where the margin 

for approval of the ballot was so small. 








[2015] FWCA 550

23

[85] The Unions put that the evidence disclosed that graduates engaged on a temporary 

basis, who were excluded by the Agreement’s coverage clause, had been included in the 

ballot. Similarly, Senior Managers had been provided with voting material and permitted to 

vote, including Business Managers, Legal Counsel and Senior Management Accountants 

referred to by the applicants in correspondence to the Unions. Mr Dwyer had given evidence 

that a Contract Manager had voted in the ballot. It could be that if these numbers were taken 

into account, only 427 of the 860 employees who had validly cast a vote, had voted to 

approve the Agreement.

[86] The Unions examined the meaning of the expression ‘genuinely agreed’ in s 188 of 

the Act and submitted that the applicants had not complied with the Agreement’s pre-approval 

steps. Voting for approval of the Agreement had taken place on 7 October 2014, meaning that 

the access period was between 30 September and 6 October 2014. The applicants were 

therefore required to take ‘all reasonable steps’ to notify the relevant employees of the time, 

place and method of the vote by 30 September 2014. The applicants had first proposed that 

the Agreement cover graduates and cadets not engaged on a temporary basis. However, the 

graduate employees had been confused by the conflicting communications from the 

applicants. The Unions had understood that graduate employees were all temporary 

employees and should not have voted. If the Commission found that the graduate employees

were permanent employees, it could not be said that ‘all reasonable steps’ had been taken to 

notify them. 

[87] The Unions further argued that the text of the NoERR did not comply with the Sch 2.1 

of the Fair Work Regulations 2009 (the ‘Regulations’) as the coverage of the Agreement as 

set out in the NoERR, did not accord with the coverage clause in the Agreement. The 

coverage of the Agreement was broader than that identified in the NoERR. This discrepancy 

invalidated the Notice. The Commission could not approve an enterprise agreement in these 

circumstances; See: Peabody Moorvale Pty Ltd [2014] FWCFB 2042 (‘Peabody Moorvale’).

[88] The Unions submitted that the evidence, particularly in relation to graduate 

employees, demonstrated that the employees to be covered by the Agreement had been 

provided with information by the applicants which was confusing and/or misleading. The 

evidence also demonstrated that even the applicants were confused as to the coverage of the 








[2015] FWCA 550

24

Agreement. These were reasonable grounds for believing that the Agreement had not been 

‘genuinely agreed to’ by the employees to be covered by it. 

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

following propositions:

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

process;

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

employees;

(c) 79 employees were given access to the vote when they should not have been;

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

to vote;

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

received voting material;

(f) 10 employees contacted the AEC because they were not on the voting roll and 

it was unclear what happened in relation to these employees;

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

(h) two employees, Mr Syratt and Mr Rogers were reinstated to the voting roll 

when they should not have been; and

(i) the final two hours of the voting period were a ‘rush’ and the ballot was closed 

for an unknown period during the final two hours, although this may have been 

for a few minutes only. 

[90] Mr Sivaraman emphasised that at different times, the applicants had been convinced 

that the voting roll was accurate, only to be later proven incorrect. Indeed, the applicants 

thought the voting roll to be accurate up to the point it filed this application. Again, this was 

proven to be incorrect. 

[91] Mr Sivaraman submitted that where there was a distinct possibility that the vote may 

have been substantially affected by the variations of the voting roll and there were issues with 

mailing out of voting information and passwords, the Commission could not be satisfied that 

the Agreement had been ‘genuinely agreed to’. Given the evidence, Mr Meehan’s calculations 

could not be relied upon to show that the Agreement was validly approved by a majority of 

the employees to be covered by it.








[2015] FWCA 550

25

[92] In reply, Mr Meehan put that the evidence of Mr Allen suggested that the ballot had 

been closed for only six minutes in the final two hours of voting. Mr Meehan emphasised that 

the Commission had prima facie evidence of a comfortable margin of employees having 

approved the Agreement and there was no direct, probative evidence to undermine this 

finding. 

CONSIDERATION

Relevant statutory provisions

[93] S 186(2) of the Act provides that the Commission must approve an enterprise 

agreement if, inter alia, the enterprise agreement has been ‘genuinely agreed by the 

employees covered by the agreement’. S 188 deals with the circumstances when employees 

have ‘genuinely agreed’ to an enterprise agreement. This section states:

‘188 When employees have genuinely agreed to an enterprise agreement

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

(a) the employer, or each of the employers, covered by the agreement complied 
with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested 
to approve an enterprise agreement until 21 days after the last notice of 
employee representational rights is given); and

(b) the agreement was made in accordance with whichever of 
subsection 182(1) or (2) applies (those subsections deal with the making of 
different kinds of enterprise agreements by employee vote); and

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

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

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

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








[2015] FWCA 550

26

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

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

(i) the written text of the agreement;

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

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

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

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

(b) the voting method that will be used.

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

Terms of the agreement must be explained to employees etc.
(5) The employer must take all reasonable steps to ensure that:

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

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

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

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

(c) employees who did not have a bargaining representative for the agreement.’

[95] S 53(1) provides that an enterprise agreement covers an employee if ‘the agreement is 

expressed to cover (however described')’ the employee. Relevantly, s 256A deals with how 

employees are to be described as follows:

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








[2015] FWCA 550

27

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

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

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

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

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

(b) a particular kind of work;

(c) a particular type of employment;

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

[96] At this point, I note that in Australian Meat Industry Employees Union v Teys 

Australia Beenleigh Pty Ltd [2014] FWCFB 5643, the Full Bench considered the phrase ‘will 

be covered by the agreement’ in s 181(1) of the Act. At para [21], the Full Bench said:

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

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

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

[50] Counsel for the appellant contended that the task of identifying who will 
be covered by the agreement is ‘in a sense a factual exercise’. The four Cimeco 
employees employed on the Marandoo Project were included in the vote 
because at that time they had been ‘mobilised’ to go to the De Grussa Copper 








[2015] FWCA 550

28

Plant. It was put to counsel that the expression ‘will be covered’ means those 
actually falling within the coverage clause at the time of the vote as opposed to 
those it was anticipated would be covered by the agreement on the basis that 
they had been ‘mobilised’ to perform work in the region covered by the 
agreement. Counsel responded to this suggestion in the following terms:

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

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

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

[97] Put another way, an agreement can only be made with employees who are expressly 

named, or whose classification is described in the agreement and whom the agreement 

purports to cover.

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

employees as follows:

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








[2015] FWCA 550

29

[99] It is self-evident that for an enterprise agreement to be validly made, the Act does not 

require a majority of the employees to approve it; only that a majority of employees who cast 

a valid vote in the ballot for approval do so. However, it must be stressed that at the time of 

the ballot, only employees covered by the Agreement can vote for its approval. These 

considerations lead me to now set out the relevant terms of the Agreement.

Relevant terms of the Agreement

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

‘3. COVERAGE

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

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

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

[101] Mr Hooper’s evidence, which did not appear to be seriously challenged, was that the 

Agreement would cover employees of Aurizon Operations and Aurizon Networks who:

(a) Perform administration, finance, technical (other than a technical role for 

which a trade qualification is mandatory), professional and/or similar work 

(including developing and/or administering Aurizon’s health and/or safety 

policies and programmes; and/or

(b) Perform work associated with network control;

(c) Are engaged in an engineering trade work and civil construction work in any 

role for which a classification that appears in the Staff EA and for which a 

trade qualification is not mandatory.

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

(a) Employees working outside of Queensland; and

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

graduate program.








[2015] FWCA 550

30

There are only a small number of employees working outside of Queensland and, in the case 

of Aurizon Network, the only employees who work outside of Queensland are graduates.

[103] At cl 8, four categories of employment are identified - full time, part time, casual and 

temporary. The definition of temporary employment is set out at ccl 8.1-8.11 as follows:

‘Temporary employment

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

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

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

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

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

[104] Over a three year period, the Agreement seeks to transition the existing 76 level AS 

and PT classification structure under the current agreements into a seven level staff 

classification structure.

Irregularities in the ballot

[105] At the outset, it must be accepted that the coverage clause of the Agreement does not 

extend to any employee engaged on a temporary basis as part of a graduate development or 

cadetship programme. This exclusion is to distinguish from other employees (who may 

include graduates who have completed their training) who are actually employed by Aurizon 

on a full time or part time basis and/or for a specified period or project. This distinction was 

not fully appreciated at the relevant time and resulted in the error which was subsequently 

rectified by Mr Hooper’s email of 9 October 2014.

[106] The Unions’ case relied heavily on the employees’ confusion and it followed, so the 

argument went, that the affected employees were so confused that the Commission could not 








[2015] FWCA 550

31

be confident that the Agreement was ‘genuinely agreed to’ by them. I reject this submission 

for the following reasons. 

[107] Accepting the Unions’ best case scenario, it seems an inescapable conclusion that even 

if all those employees who remained on the voters roll but were ineligible to vote, the result 

would not have been reversed. Put another way, if all those employees who were ineligible to 

be covered by the Agreement and assuming all of them were counted as invalid ‘yes’ votes, 

the vote for approval would still be carried by a ‘majority of employees’ eligible to vote for 

the Agreement’s approval (446-433, a majority of 13).

[108] This is not a case where there is a sound evidentiary foundation that the number of the 

employees ineligible to vote could have possibly affected a different outcome. So much so 

seems to have been accepted by Mr Sivaraman on behalf of the Unions. The Unions’ 

submission was not that there were sufficient ineligible voters who had voted, such as to call 

into question the validity of the majority, rather, as I understand the Unions’ argument, there 

was sufficient confusion surrounding those who were told they could not vote, but then told 

they could vote, that the Commission could not be satisfied the Agreement was ‘genuinely 

agreed to by the employees.’

[109] Given Aurizon’s acknowledged errors in the voter roll, there is an obvious attraction to 

the submission that the employees, most notably the graduates, may have been confused as to, 

firstly, their non-eligibility to vote in the approval vote and then being advised that they were 

eligible to vote. However, there was no cogent evidence that this alleged confusion resulted in 

any eligible voter not doing so. Moreover, I note that all of the graduates who were first told 

they were ineligible to vote were then emailed on 9 October 2014 to indicate they could vote. 

There was still four days before the close of the ballot. My view may have been different if 

the employees only had a small ‘window’ in which to vote once having been told they could  

do so.

[110] Mr Swaminathan, an engineering graduate, gave evidence that he was confused as to 

being covered by the Agreement, but he acknowledged he was told in the email of 9 October  

that he was covered and eligible to vote and that he could utilise the voting instructions and 

password previously issued to him. Mr Swaminathan said he did not vote, but knew of 

another graduate who had.








[2015] FWCA 550

32

[111] Mr David Dwyer, an administrative assistant, gave evidence that he was told by a 

Contract Manager, Mr Jim Bryans that he (Mr Bryans) was confused when he received the 

voting material. He did not know if Mr Bryans had voted. A person named Allan Bryans had 

voted. Mr Dwyer himself had also voted.

[112] Mr Donald Skerman, a graduate engineer who did vote, said he had discussed the issue 

with other graduates who had claimed to be confused. However, he did not say that he was 

confused. He also knew of another graduate who had voted in the ballot.

[113] From this limited evidence, much of it hearsay, and which indicated that at least three 

graduates had voted in the ballot, I cannot be satisfied that the Unions have established a 

sound evidentiary foundation for a conclusion that sufficient employees were so confused that 

they did not vote. I am fortified to this conclusion by the unlikelihood that such employees 

were confused in circumstances where:

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

been four days;

(b) all employees were made aware of the employee helpline for any assistance or 

advice on the Agreement and the voting process;

(c) the very public, controversial and long running negotiations around the terms 

of the proposed agreement would have been well known and understood by the 

employees;

(d) the Unions had mounted a vigorous and intense ‘No’ campaign against the  

approval of the three enterprise agreements; and

(e) it might be reasonably assumed that there would be a high level of 

understanding and participation in the approval vote by employees covered by 

the Staff Agreement.

[114] In any event, the statutory provisions governing the voting process for an enterprise 

agreement, do not envisage the Commission conducting a rather difficult conceptual test of 

speculating whether a particular employee or group of employees were so confused that they 

decided not to vote. This must be particularly so, in the absence of any direct evidence that 

some employees were so confused that they did not vote.








[2015] FWCA 550

33

[115] The Commission regularly reviews enterprise agreements where the number of validly 

cast votes do not go anywhere near the number of employees who are to be covered by the 

proposed agreement. I sometimes ask the parties to speculate why there is such a low voter 

turnout and the answers are just that - speculation. In the absence of asking each employee 

why they did not vote (which would hardly be useful), the only statutory test which matters is 

whether there was a majority of those who cast a valid vote for the approval of the 

Agreement.

[116] As to the six minute ‘gap’ where the voting system went down, I accept the possibility 

that some employees may have tried to vote, but could not do so. However, there was simply 

no direct evidence that any employee had sought to vote, but was unable to do so. On the 

other hand, nor was there any evidence that any employees who could not vote, due to the six 

minute shutdown and had subsequently done so. In any event, given there was a seven day 

voting period, a single six minute shutdown was such as to not even to be within the ‘margin 

of error’. It is implausible that such a short shutdown period could have invalidated the vote.

[117] For completeness, I am satisfied, pursuant to s 186(3) of the Act, that the employees 

proposed to be covered by the Agreement, were ‘fairly chosen’.

Invalidity of the NoERR

[118] As earlier mentioned, Aurizon is seeking to reduce its existing 13 enterprise 

agreements covering all of its employees, into three. There have been simultaneous 

negotiations with the Unions since 2013 in which Aurizon has proposed a number of 

consistent and contested conditions. The vote for all three proposed enterprise agreements 

were set for the week of 7-13 October 2014. To me, it is unsurprising that Aurizon sent the 

three NoERRs to all its employees at the same time with the title and coverage of each 

reflecting each of the three distinct groups. The NoERR relevant to this application was 

expressed as follows:

‘Notice of employee representational rights 

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








[2015] FWCA 550

34

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

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

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

 performs work associated with Network Control including Safe Work Supervisors 

What is an enterprise agreement? 

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

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

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

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

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

Questions? 

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

[119] Section 173(1) of the Act requires an employer who will be covered by a proposed 

enterprise agreement to take all reasonable steps to give notice of the right to be represented 

by a bargaining representative, to each employee who will be covered by the Agreement and 








[2015] FWCA 550

35

who is employed at the notification time. The notice must be given as soon as practicable, but 

not later than 14 days after the notification for the agreement.

[120] Section 181(1) of the Act provides that an employer who will be covered by an 

enterprise agreement may request employees employed at the time who will be covered, to 

approve an agreement by voting for it. Section 181(2) provides that such a request must not 

be made until at least 21 days after the day on which the last NoERR under s 173(1) is given. 

A failure to do so will render the Agreement invalidly made.

[121] As I comprehend the Unions’ case, there is no argument with the various time 

requirements for the giving of the Notice and advice as to the voting process. The central 

argument concerns the content of the NoERR, being the three Notices sent to all employees. 

The content of a Notice is prescribed by s 174 of the Act and, by virtue of s 176(6). The Fair 

Work Regulations 2009 (the ‘Regulations’) may prescribe other matters relating to the content 

or form of the Notice and the manner in which it may be given. Section 174 is expressed as 

follows:

‘174 Content and form of notice of employee representational rights

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

Notice requirements
(1A) The notice must:

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

(b) not contain any other content; and

(c) be in the form prescribed by the regulations.

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

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

(a) in bargaining for the agreement; and

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








[2015] FWCA 550

36

Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:

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

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

the organisation will be the bargaining representative of the employee.

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

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

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

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

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

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

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

(a) the employee’s residential address; or

(b) a postal address nominated by the employee.

(4) The employer may send the notice to:

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

(b) another email address nominated by the employee.








[2015] FWCA 550

37

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

(6) The employer may fax the notice to:

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

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

(c) another fax number nominated by the employee.

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

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

2.05 Notice of employee representational rights—prescribed form

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

[123] As I understand the Unions’ submissions, given that the three Notices were sent to all 

employees, the employees were uncertain or confused as to which Notice applied to them. It 

therefore followed that the NoERRs were invalid due to the mandatory prerequisite of the Act 

and the Regulations as to the requirements of the Notice’s content, the Agreement could not 

be approved. In my view, this submission is misconceived for the following reasons.

[124] Firstly, the statutory purpose of the Notice is to ensure that employees are informed 

about their right to representation in bargaining and to ensure that their consent to an 

agreement is genuine in that such representational rights have been understood and 

appropriately exercised by them. The NoERR is not intended to be definitive about the 

enterprise agreement’s title or coverage at such an early stage, especially before negotiations 

have even commenced. 

[125] I cannot be satisfied that the issuance of the three different notices to all employees 

created uncertainty or was confusing, given its clear statutory purpose has to do with 

bargaining representation and not the content of the proposed agreement. There was no 

evidence that employees (or any of them) were confused or uncertain as to their bargaining 

rights.








[2015] FWCA 550

38

[126] In Sommerville Maintenance Enterprise Agreement 2011 [2011] FWAA 2606 

(‘Sommerville’), a Full Bench of Fair Work Australia (FWA, the Commission’s predecessor 

body), said at paras [49]-[54]:

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

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

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

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

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








[2015] FWCA 550

39

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

[127] In Melian Transport Pty Ltd [2012] FWA 8975, Asbury C (as she then was), after 

citing the above decision, and other Full Bench authorities, referred to the primary purpose of 

the NoERR as follows:

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

See also: Bland v CEVA Logistics (Australia) Pty Ltd [2011] FWAFB 7453; Racing 

Queensland Limited [2012] FWA 6290; Ostwald Bros Pty Ltd v Construction, Forestry, 

Mining and Energy Union [2012] FWAFB 9512; Galintel Rolling Mills Pty Ltd t/a The 

Graham Group [2011] FWAFB 6772 (‘Galintel’).

[128] In my view, Aurizon’s decision to issue all three NoERRs to all employees meets the 

test of taking ‘all reasonable steps’ to give the Notice to the employees to be covered by it.

[129] Secondly, there was no evidence adduced by the Unions that identified any employees 

who had been confused about the NoERR, its information or its intent. There have been long-

running concurrent negotiations with a number of Unions for three separate enterprise 

agreements which have not been hampered by, or confused by Aurizon’s preapproval process.

[130] Thirdly, if a failure to identify to each employee the precise name of the enterprise 

agreement proposed to cover him or her or fails to precisely identify the coverage of the 

proposed agreement, even before the bargaining commences, renders the NoERR invalid and 

the Agreement unable to be approved, then many Agreements approved by the Commission 

under the current legislative regime, would be similarly found to be invalidly made. This 








[2015] FWCA 550

40

would be inconsistent with the objects of the Act (See: Sommerville) and, to my mind, just 

plain illogical. It would be permitting form to triumph over substance.

[131] Fourthly, the misconception of the Union’s argument is no better demonstrated than

by the plain and unequivocal words used in the preamble to the template NoERR in the 

Regulations. It uses the expression [name of the proposed enterprise agreement] and 

[proposed coverage]. By the use of the word ‘proposed’, it must be acknowledged that there 

is no definite name or definite coverage required to be outlined at this starting point in the 

process. In one sense it is a guide only. This accords with the plain, commonsense 

understanding that both the name and coverage of an agreement, ultimately to be voted on by 

the employees, may well be the subject of discussion, negotiation and alteration by the parties.

[132] Fifthly, in my opinion, the issuance of three Notices to all employees is no different 

than if Aurizon had displayed the three Notices ‘in a conspicuous location at the workplace 

that is known by and readily accessible to the employees’ in satisfaction of the requirement of 

para 7 of regulation 2.04; See: para [122]. In these circumstances, employees would still have 

to distinguish which Notice applied to them.

[133] Sixthly, in my opinion, Mr Sivaraman’s reliance on the Full Bench decision in 

Peabody Moorvale does not assist his argument. The gravamen of Peabody Moorvale is to be 

found at paras [44]-[46] and [67] as follows:

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

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

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








[2015] FWCA 550

41

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

...

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

[134] Whatever might be said about the confusion issue, the fact was that Aurizon had 

provided the Notice for this Agreement precisely in accordance with the Notice template and 

did not depart from the form and content of the Notice template. The fact that it provided 

additional information to the employees about the other proposed agreements, can be seen in 

the same light as providing additional information material to employees at the same time as 

the Notice, which is expressly not precluded by the decisions in Peabody Moorvale and 

Galintel. 

[135] Seventhly, given the hyper industrial activity, publicity and campaigning associated 

with the negotiation of new enterprise agreements between Aurizon and its employees, it is 

difficult to accept that any employee would be unaware of, or confused as to where they stood 

in the enterprise bargaining framework concerning their representational rights.

[136] I am satisfied that there was no invalidity in the issuance of, and content of the 

NoERR issued to the employees to be covered by the Agreement.

CONCLUSION

[137] As I have found that there was a valid majority of employees who voted to approve the 

Agreement, I am further satisfied that the employees genuinely agreed to the approval of the 

Agreement. Given these findings and that there are no other grounds to warrant the 








[2015] FWCA 550

42

Commission refusing to approve the Agreement, the Commission must do so, in accordance 

with s 186(2) of the Act.

[138] Having heard the parties’ submissions and upon reviewing the terms of the pre-

approval process documentation and the Agreement itself, I am satisfied that the Agreement 

meets the BOOT and that all of the requirements of the Act, in particular, ss 180, 186, 187 

and 188, in so far as relevant to this application, have been met. Pursuant to s 201(2) of the 

Act, and the Form F18 Declarations filed in these proceedings, the Unions referred to in para 

[3] shall be covered by this Agreement. Pursuant to s 54 of the Act, the Aurizon Staff 

Enterprise Agreement 2014 shall have a commencement date of 28 January 2015 and have a 

nominal expiry date of 28 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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

Hearing details:
2014:
Brisbane
1 December.

Price code J, AE412346  PR560316


ORK WORK COMMISSION FAIR THE SEAL OF

Cases cited by this decision: