Application by Downer EDI Mining - Blasting Services Pty Ltd - [2018] FWCA 2888

1

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

Downer EDI Mining - Blasting Services Pty Ltd
(AG2018/625)

DOWNER EDI MINING - BLASTING SERVICES NSW COAL 

ENTERPRISE AGREEMENT 2018

Coal industry

COMMISSIONER JOHNS SYDNEY, 17 AUGUST 2018

Application for approval of the Downer EDI Mining - Blasting Services NSW Coal Enterprise 
Agreement 2018.

[1] On 22 February 2018 Downer EDI Mining - Blasting Services Pty Ltd (Downer 
Blasting/Applicant) made an application in the Fair Work Commission (Commission) for 
the approval of the Downer EDI Mining - Blasting Services NSW Coal Enterprise Agreement 
2018 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 
(Cth) (FW Act). It was lodged within 14 days after it was made.

[2] The Agreement is a single-enterprise agreement.  The parties to the Agreement 
Downer Blasting and, employees of Downer Blasting employed in the classifications 
prescribed in Clause 3.1 of the Agreement at coal mining operations in New South Wales who 
are involved blasting services.  The Agreement, if approved, will apply to the exclusion of all 
awards and other agreements pursuant to the operation of clause 1.3.2.  The nominal expiry 
date of the Agreement is expressed to be 4 years after the day on which the Agreement is 
approved by the Commission.

[3] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) objects 
to the approval of the Agreement on the basis that, it asserts, the Agreement does not meet the 
requirements for approval under the FW Act.  On 6 July 2018 the CFMMEU particularised its 
objections.  It contended that the Agreement should not be approved because:

a) the Applicant has not complied with the provisions of s 180 (2) of the FW Act 
and accordingly the Commission cannot be satisfied that the Agreement was 
genuinely agreed (s 186 (2) (a) and s 188 (a) (i));

b) the Commission cannot be satisfied that the Agreement passes the Better Off 
Overall Test (BOOT) (s 186 (2) (d));

c) the Agreement contravenes 55 of the FW Act;

[2018] FWCA 2888

DECISION


E AUSTRALIA FairWork Commission




 



[2018] FWCA 2888

2

d) the Agreement contains a term that is not a permitted matter (s 172).1

[4] On 13 July 2018 Downer Blasting wrote to the Commission rebutting the issues raised 
by the CFMMEU. In its written submissions Downer Blasting contended that all the 
requirements of s180 (2), 180 (5), 186 (2) (a), s55 as well as the requirements of the BOOT 
had been met.2

[5] On 18 July 2018 the CFMMEU responded to Downer Blastings’ submissions.  It 
maintained that the Agreement should not be approved on the basis of non-compliance with 
the above mentioned requirements set out in the FW Act (except that the CFMMEU conceded 
that there had been compliance with s180(2) (i.e. provision of Agreement and incorporated 
material).3

[6] Consequently the matter was programmed for a hearing on 26 July 2018. At the 
hearing:

a) Jarrett Goos appeared for the applicant.  He also gave evidence on its behalf 
and was cross-examined.  Mr Goos was honest in his testimony.  He was 
candid with the Commission and made appropriate concessions when they 
were required. Mr Goos also called Michael Morris to give evidence.  Mr 
Morris is employed by Downer Blasting as a Leading Hand.  He was also a 
witness of credit.

b) Alex Bukarica appeared for the CFMMEU.

[7] In advance of the hearing the parties filed materials.  In coming to this decision the 
Commission, as presently constituted, has had regard to all of the evidence received including 
submissions made at the hearing and the documents filed prior to the hearing (that were 
tendered as exhibits).  Consequently, in coming to this decision the Commission, as presently 
constituted, has had regard to the following:

Exhibit 
no.

Description

NA
Form F16 – Application for approval of an enterprise agreement submitted by 
the applicant dated 22 February 2018

NA
Form F17 – Employer’s statutory declaration in support of an application for 
approval of an enterprise agreement dated 22 February 2018

NA
Correspondence from CFMMEU to the Commission dated 6 March 2018 
indicating the request to be heard

NA Correspondence from Applicant to the Commission dated 6 March 2018

                                               
1 Submissions (CFMMEU) 6 July 2018, at 1-2
2 Submissions (Applicant) 13 July 2018 at 1
3 Submissions (CFMMEU) 6 July 2018, at 1-2








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NA CFMMEU Outline of Submissions dated 6 July 2018

A1 Applicant’s Outline of Submissions dated 13 July 2018

A2 Statement of Jarrett Goos dated 13 July 2018

A4 Statement of Michael Morris dated 13 July 2018

NA CFMMEU submissions in reply dated 19 July 2018

[8] For the reasons set out below I have decided not to approve the Agreement.  This is 
because, having considered all of the evidence, I am not satisfied that Downer Blasting took 
all reasonable steps to provide an explanation to the relevant employees about the effect of the 
Agreement (s.180(5)). That is to say, because s.180(5) was not satisfied, I am not satisfied 
about s.188(a)(i) and, consequently, I am not satisfied that the Agreement was genuinely 
agreed to as required by s.186(2)(a).  In deciding the same I make no statement of general 
principle.  My decision is based solely on the particular circumstances of this case.

Legislative scheme
[9] Section 186(2)(a) provides as follows:

“(2) The FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been 

genuinely agreed to by the employees covered by the agreement.”

[10] Section 188(a)(i) provides as follows:

“…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).”

[11] Section 180(5) provides as follow:

“(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.”








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The F17 Statutory Declaration

[12] It is worth setting out what, on behalf of Downer Blasting, Hilton Hurst declared in the 
F17 filed with the Application for approval.

a) Question 2.6: What steps were taken by the employer to explain the terms of the 
agreement, and the effect of those terms, to the relevant employees?

The proposed enterprise agreement was explained to employees during a meeting at 
site between on 8 February 2018. Employees were encouraged to ask questions during 
the meetings.

b) Question 2.7: When you explained the terms of the agreement to the employees, 
what did you do to take into account the particular circumstances and needs of the 
relevant employees?

There are no employees from non-English speaking backgrounds, young employees, 
or employees who weren't a bargaining representative covered by the proposed 
agreement.

c) Question 2.10: Please provide the following details about the vote on the 
agreement:

How many employees will be covered by the agreement? 4
How many employees cast a valid vote? 4
How many employees voted to approve the agreement? 4

d) Question 3.1: List the modern award(s), if any that currently cover the employer 
and any of the employees covered by this agreement.

Black Coal Mining Industry Award 2010

e) Question 3.4: Does the agreement contain any terms or conditions of employment 
that are more beneficial than equivalent terms and conditions in the reference 
instrument(s) listed in questions 3.1 and 3.2 and/or does the agreement confer any 
entitlements that are not conferred by those reference instruments?

Yes

f) Question 3.5: Does the agreement contain any terms or conditions of employment 
that are less beneficial than equivalent terms and conditions in the reference 
instrument(s) listed in questions 3.1 and 3.2 and/or does the agreement omit any 
entitlements that are conferred by those reference instruments?

No

s.180(5) & (6) – Did the employer take reasonable steps in explaining the Agreement to 
its employees

CFMMEU submissions








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[13] In its written submissions the CFMMEU submitted that the Commission cannot be 
satisfied that Downer Blasting took all reasonable steps to ensure that the terms of the 
agreement and the effect of those terms were explained to the relevant employees. The 
submissions detailed the following:

a) Based on the declaration made in the F17, the Applicant held one meeting with 
employees on 8 February 2018. This was 7 days after the agreement had been 
distributed and the day before the vote on the agreement occurred.

b) In the F17 Declaration and in response to the question about what the employer 
did to take into account the particular circumstances and needs of the relevant 
employees, the Applicant responded simply by informing the Commission that 
it does not have any employees in any of the categories in the examples given 
in the paragraph. This does not address the question being asked. The 
categories are indicative not exhaustive.

c) In the context of the issues going to the surrounding circumstances mentioned 
in Falcon Mining4, it is reiterated that the Applicant is well resourced and 
experienced in agreement making and there were no logistical barriers or 
impediments to access to the employees.

d) All that the Commission has before it from the material filed by the Applicant 
is that it "explained" the Agreement. There is no detail of how the Applicant 
went about such an explanation. In that regard:

i. There was no explanation of contemporary reference award terms.
ii. There was no evidence of any negotiations.

iii. The Agreement is a comprehensive document comprising 54 clauses 
and incorporated material.

iv. There is no evidence of explanatory material distributed to employees.
v. There is no evidence that it identified let alone addressed any particular 

circumstances or needs.

[14] CFMMEU referred to the Full Bench Decision CFMEU v One Key Workforce Pty 
Ltd5. In that decision, Flick J said the following with respect to the operation of s 180 (5): 

"The requirement imposed by s 180 (5) to 'take all reasonable steps to ensure that ... the 
terms of the agreement, and the effect of those terms are explained' is an important 
obligation imposed on an employer to ensure that employees are as fully informed as 
practicable. The requirement is not a mere formality. Whatever steps may be necessary 
will depend on the facts and circumstances of each particular case; but those steps are 
not satisfied by a person reading- without explanation -the terms of an agreement to an 
employee."

[15] The CFMMEU noted that this reasoning was adopted by a Full Bench in CFMEU v 
Shamrock Civil Pty Ltd.6

                                               
4 [2017] FWC 5315
5 [2018] FCAFC 77
6 [2018] FWCFB 1772








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[16] The CFMMEU also drew my attention to the decision in Falcon Mining Pty Ltd7, 
where Deputy President Asbury stated that, when addressing s 180 (5) consideration should 
take into account the context of the size of the employer, it resources, including available 
mechanisms and expertise, the role and qualifications of those who provide the explanation 
and the capacity and ability of the employees to receive such information.8

[17] The CFMMEU submitted that the number, extent and variation in the less beneficial 
terms, as identified in this submission, are such that the failure to identify any such less 
beneficial term in the F17 Declaration and give an explanation to employees, is a failure to 
comply with s 180 (5):

a) Firstly, in the F17 Declaration, the Applicant declares that there are no less 
beneficial terms in the Agreement by comparison with the reference award. 
The reference award is the Black Coal Mining Industry Award 2010 ('Award'). 
It is submitted that this is incorrect. This is evident from the analysis of the 
better off overall test in this submission.

b) In Waternish Engineering Pty Ltd, Roe C., after identifying a number of "less 
beneficial" terms of the agreement that were not mentioned in the F17 
Declaration filed by the employer stated: "It is reasonable to conclude that if 
the employer failed to identify these matters to FWC they also failed to 
identify the matters to the employees. This raises a question mark as to whether 
or not the requirement in section 180 (5) has been met ... "9 In Site Fleet 
Services Pty Ltd, Roe C., held that: "In circumstances where wage and 
conditions are in the main significantly better than the relevant Award it is not 
so important to understand in detail every disbenefit."10

c) In the recent decision in Shamrock Civil, the Full Bench stated that:" ... 
declaration that there are no less beneficial terms does give rise to concern as it 
is apparent as it is apparent that in fact there were a significant number of less 
beneficial terms. Aside from the obvious concern that the declarant has made a 
declaration that is untrue, it gives rise to a further concern as to the nature of 
the explanation given to employees as to terms of the Agreement and the effect 
of those terms. That is, it at least raises a real question as to the explanation to 
employees about the terms of the Agreement and in particular the effect of 
those terms, in circumstances where the employer is attesting that the 
agreement has no less beneficial terms."11 The Full Bench went on to note, 
consistent with Waternish that "Such an employer understanding presumably 
lead it to provide the same misleading explanation to employees ... "12

Downer Blasting Submissions

[18] In reply to these submissions made by the CFMMEU, Downer Blasting provided 
submissions rejecting the allegation that it did not comply with subsection 180 (5) of the FW 

                                               
7 [2017] FWC 5315
8 Ibid
9 Waternish Engineering Pty Ltd [2017] FWC 153
10 Site Fleet Services Pty Ltd [2017]
11 [2018] FWCFB 1772 at [37]
12 Waternish Engineering Pty Ltd [2017] FWC 153








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Act by failing to take all reasonable steps to explain the terms of the agreement, and the effect 
of those terms, in an appropriate manner taking into account the particular circumstances and 
needs of the relevant employees. The Applicant’s response in relation to the steps taken to 
explain the terms of the agreement was as follows:

a) Four bargaining meetings were held on 10 July 2017, 26 July 2017, 16 January 
2018 and 31 January 2018. All four (4) bargaining representatives, Jarrett Goos 
and Vanessa Willis, HR Advisor, attended each meeting.

b) Bargaining followed a standard process of claim and counterclaim.

c) During the bargaining meetings on 26 July 2017 and 16 January 2018 Jarrett 
Goos and Vanessa Willis took the four bargaining representatives through the 
entire proposed Agreement clause by clause. Employees had access to versions 
of the Agreement each meeting and any changes were explained to employees.

d) Additionally, Jarrett Goos explained the proposed Agreement to bargaining 
representatives again clause by clause during the access period. Michael 
Morris said at paragraph [33] that following the final explanation meeting on 8 
February 2018 that he was “…very clear on the Agreement. It was black and 
white to us. We had a chance to ask a lot more questions which Jarrett Goos 
answered.”

e) Further, Michael Morris states “I felt like I understood the Agreement. I was 
fully aware of what we were voting on. DBS (The Applicant) were trying to 
streamline their agreements and to win more work. This would benefit us as we 
were long term employees.”

f) Relevantly, employees had had the proposed Agreement explained to them 
twice during bargaining and again during the access period. All four employees 
attended the four bargaining meetings in which claims and counterclaims were 
made consistent with genuine bargaining. All four employees were 
experienced and had a minimum of four years employment with the Applicant 
and each had specifically nominated themselves as bargaining representatives.

g) Moreover, the bargaining representatives were fully informed of the 
Applicant’s industrial strategy and kept informed of relevant discussions with 
the CFMMEU.

h) Finally, the evidence from Jarrett Goos is that, in his opinion, there were no 
particular circumstances or needs of the relevant employees that needed to be 
taken into account. Specifically, Jarrett Goos stated at [44] of his statement 
that: “I did not believe that the bargaining representatives had any particular 
circumstances or needs which required me to take additional measures to 
explain the terms of the Agreement. I formed this view on the basis that:

i. The bargaining representatives each attended all of the four previous 
bargaining meetings during which I had go through the Agreement fully 
on three (3) separate occasions, including versions of the proposed 
agreement with ‘tracked changes’;








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ii. I was confident that the employees’ were not from employees from 
culturally and linguistically diverse backgrounds; and

iii. The employees are not ‘young’. They are experienced in the workforce 
and have been employed for upwards of 4 years by Downer Blasting.13

Compliance with the Better Off Overall Test

CFMMEU submissions

[19] The FW Act provides that the FWC must be satisfied that the Agreement passes the 
BOOT. The BOOT is defined in s 193 (1) as the FWC being satisfied that each award covered 
employee and each prospective award covered employee, for the agreement would be better 
off if the agreement applied to the employee than if the relevant modern award applied to the 
employee.

[20] In Armacell, a Full Bench stated: "The BOOT, as the name implies, requires an overall 
assessment to be made. This requires the identification of terms which are more beneficial for 
an employee, terms which are less beneficial and an overall assessment of whether an 
employee would be better off under the agreement."14

[21] The CFMMEU submits that the FWC cannot be satisfied that the Agreement passes 
the BOOT. In that respect we firstly identify a number of less beneficial terms. They are as 
follows.

Clause 2.6 - Casual Employment

[22] CFMMEU submitted in relation to Casual Employment, the following:

a) Clause 2.6 provides for employment on a casual basis with a minimum of 4 
hours per engagement, a loading of 25% on ordinary hours and termination on 
an hour's notice.

b) The Award does not provide for the employment on a casual basis for 
production and engineering employees. The F17 Declaration identifies that 
each classification in the Agreement has a comparable classification in the 
Award that is taken from Schedule A- Production and Engineering Employees.

c) It has been determined in some decisions that the inclusion of casual 
employment in an Agreement where the reference instrument is the Award and 
where the casual employment applies to production and engineering employees 
that as casual employment is a less secure from of employment and the casual 
loading of 25% is insufficient to compensate for the relevant detriments of 
casual employment it is a less beneficial term.

                                               
13 Submissions (Applicant) 13 July 2018
14 Armacell Australian Pty Ltd, [2010] FWAFB 9985








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d) It is noted that there are decisions where the Award was the reference 
document and where the FWC has found that the inclusion of casual 
employment was not a less beneficial term. It is also noted that a Full Bench 
has considered casual employment in this context. The Full Bench made 
reference to the Moolarben and SFS Services decisions and noted the 
detriments identified by the CFMMEU, namely the absence of job security and 
the inadequacy of the casual loading. Whilst the Full Bench was satisfied that 
the BOOT in that case had been satisfied, the issue of casual employment is 
one of applying the BOOT. It was also the subject of discussion in One Key15

where the Full Court summarised the contentions of the parties and whilst not 
accepting either, acknowledged that "whether the introduction of casual 
employment was a benefit or a detriment was a matter for the Commission."16

e) It is fair to say that there are differing views on the impact of casual 
employment. Of course, it may depend on the circumstances before the FWC.

f) The position of the CFMMEU remains that the introduction of casual 
employment into an agreement to cover production and engineering employees 
is a less beneficial term. As production and engineering employees cannot be 
employed on a casual basis under the Award and would have to be employed 
on a full time or part time basis, it is submitted that the absence of job security 
and the inadequacy of the loading means that casual employment is a less 
beneficial term for BOOT purposes.

Clause 2.8 - Part time Employment

[23] CFMMEU submitted in relation to Part Time Employment, the following:

a) Clause 2.8.1 of the Agreement provides that a part time employee "is one who 
is engaged by the week to work regular hours less than an average of 35 hours 
per week."

b) Clause 10.3 (a) (i) of the Award provides that a part time employee "works less 
than 35 hours per week".

c) The difference between the two provisions is the reference to the averaging of 
ordinary hours for part time employees in the Agreement. The effect of the 
averaging provision is that a part time employee may work more than 35 hours 
in any week as long as the average over the roster cycle is less than 35 hours 
per week. As the definition and purpose of part time employment in the Award 
is for employment of less than 35 hours per week, the provisions of the 
Agreement are less beneficial to a part time employee employed under the 
Award.

d) In support of this position we refer to the decision of Asbury DP in Link 
Mining Services Pty Ltd, where the Deputy President, in addressing a part time 

                                               
15 [2018] FCAFC 77
16 [2018) FCAFC 77 at PN [208] The Court's discussion on casual employment in the matter before it can be

found at PN [198]-[209]








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clause in a coal mining-based agreement stated: "The absence of such 
provisions in the Agreement is a detriment relevant to the BOOT as is the fact 
that part-time employees may be rostered to work more ordinary hours in a 
week than would be permitted under the Award"17

Clause 2.9 - Termination of Employment

[24] There are a number of less beneficial terms under this heading, as follows:

a) Firstly, clause 2.9.1 of the Agreement provides that an employee "must give a 
minimum of two (2) calendar weeks' notice to terminate employment or forfeit 
to the Company two (2) weeks' pay instead of giving notice". This contrast 
with clause of the Award, which provides for a notice period of one week. In 
that regard, an employee under the Agreement must either work for an extra 
week or forfeit an additional weeks' pay.

b) Secondly, clause 2.9.4 of the Agreement confines the period of notice for 
redundancy to redundancy caused by certain factors, whereas clause 13.4 of 
the Award has no such limitation.

c) It is acknowledged that it is most unlikely that a redundancy would not be the 
result of one of the named factors.

d) Thirdly, clause 13.5 (b) (i) of the Award provides that where employment is 
terminated by reason of retrenchment, retirement at or after age 60, by the 
employer due ill health or by death, an employee who has a personal leave 
accrual of 70 or more hours is to be paid out that leave at the base rate. There is 
no equivalent provision in the Agreement.

e) It considering this provision it should be noted that employees accrue 105 
hours personal leave upon employment and another 105 hours upon each 
anniversary of commencement. As such, an employee under the Agreement 
will be deprived of the benefit of that term as at commencement of 
employment and going forward it will depend upon the quantum of personal 
leave taken by the employee. An employee under the Award with a years' 
entitlement to leave would receive 3 weeks' pay (105/35 = 3} at the base rate, 
being $2575.80 (level 3 award rate of $858.60 x 3}.

f) Fourthly, clause 13.5 (b) (ii) provides that where an employment is terminated 
whilst an employee is absent on personal leave, the employee must be paid 
until his/her accumulation of leave has exhausted or the employee is fit for 
duty, whichever occurs first. The Agreement has no such provision. This has a 
monetary value depending upon the circumstances, which is denied to an 
employee under the Agreement

g) As clause 2.9 of the Agreement is less beneficial than the Award in a number 
of respects it is relevant to an assessment of the BOOT.

                                               
17 Link Mining Services Pty Ltd., [2016) FWC 8910 @ PN [12]








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Clause 2.12 - Stand Down

[25] In relation to Stand Down, the CFMMEU submitted the following:

a) Clause 1.12.1 d restricts the taking of annual leave during a stand down 
situation to two of the three circumstances in which a stand down can occur.

b) Under the Award, which in turn applies the stand down provisions in the FW 
Act, an employee can take annual leave in each of the three situations.

c) The restriction in the Agreement on the taking of annual leave during a stand 
down is a less beneficial term. Whilst stand downs are not common, the less 
beneficial term is there and should be given some weight. Presumably the 
Applicant sees it of sufficient value in order to have it in the Agreement.

Clause 2.14 - Shut Down of Operations

[26] CFMMEU submitted in relation to Shut Down of Operations, the following:

a) Clause 2.14 is less beneficial to an employee under the Award, to whom clause 
15.13 would apply, in a number of respects.

b) Firstly, unlike clause 2.14.1, where the employee has to elect to take either 
annual leave or leave without pay, there is no provision in the Award to 
compel an employee to take leave without pay (see clause 25.12 (d)).

c) Secondly, the Agreement, unlike the Award (clause 25.13 (c)), makes no 
provision for notice to be given to any employee who commenced employment 
after the initial period of notice was given.

d) Thirdly, where an employee under the Award does not have sufficient accrued 
annual leave and does not elect to take leave without pay, the employee is 
entitled to given work. In the event the Applicant proposes to use a stand 
down, any period of stand down would count for purposes of continuity of 
service as per s 22 (2) (b) (ii) of the FW Act. Under the Agreement the 
employee is required to take leave without pay that would not count as service 
(clause 2.14.3).

e) Fourthly, under the Award, if a public holiday falls during a shutdown period 
and would have been a working day, the day is treated as a public holiday 
regardless of the form of leave taken (if any) (see clause 25.12 (h)).

f) Whilst shut downs are not a common feature, to the extent they may occur, the 
provision in the Agreement is less beneficial to employees than the provision 
in the Award and should be taken into account for BOOT purposes.

Clause 3.2- Annual Wage Review

[27] CFMMEU submitted in relation to Annual Wage Review, the following:








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a) Clause 3.2.1 of the Agreement makes no provision for any wage increase 
during its 4-year term. The provision in the clause for wage increases to occur 
at the discretion of the Applicant provides no comfort, let alone any legal 
guarantee, for a wage increase.

b) In Hart v Coles Supermarkets, the Full Bench held that "The wage increases 
available under the Agreement during the period of the Agreement are also a 
relevant consideration."18 It went on to say that limited weight should be given 
because not all employees will remain during the period of the agreement and 
the level of future Award increases is unknown.19

c) Further, as Bromberg J. observed in Teys, "While the 'test time' is the time for 
application of the approval of the agreement (s 193 (6)), the Commission is 
clearly required to engage in a forward-looking analysis, in that the question is 
whether the relevant employees 'would be' better off if covered by the 
agreement rather than the modern award. That is a question that cannot be 
sensibly answered without assessing the likely position of agreement-covered 
employees over the course of the enterprise Agreement's term."20

d) The Award, on the other hand, is subject to the Annual Wage Review 
conducted by the Expert Panel.

e) In this matter part of the "unknown" mentioned by the Coles Full Bench can be 
removed given the recent Annual Wage Review. That decision resulted in a 
3.5% wage increase.21 To that extent, any gap in wages between the Award and 
the Agreement at the test time has already been diminished.

f) It is further submitted that it can be said with a reasonable degree of confidence 
that there will be increases in wages from future annual wage reviews, whilst 
the quantum cannot be realistically predicted. However, what is clear is that the 
Agreement provides no such comfort. Further, any increase in the Award 
becomes a legal entitlement, whereas any increase determined by the Applicant 
during the life of the Agreement does not comprise part of the Agreement.

g) The failure to provide for any wage increase during the term of the Agreement 
is a less beneficial term that should be taken into account in the consideration 
of the BOOT.

Clause 3.3 -Allowances and Penalties

[28] CFMMEU submitted that there are a number of less beneficial terms in the Agreement 
relative to the Award:

a) Firstly, whilst clause 3.3.2 of the Agreement makes provision for night shift 
penalties that are equivalent to the Award, it does not define a night shift or 

                                               
18 [2016] FWCFB 2887 at PN [18]
19 [2016] FWCFB 2887 at PN [18]
20 Teys Australia Beenleigh Pty Ltd v AM lEU (no 2) [2016] FCA 2 at PN [70]
21 [2018] FWCFB 3500








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permanent night shift. As such, an employee, by reading the Agreement, 
cannot know when an entitlement to night shift may arise. Under the Award 
the definition is clearly provided in clause 22.1 (b) and (c).

b) Secondly, unlike the Award, the Agreement does not make any provision for 
an afternoon shift. The Award, at clause 22.1 (a) defines afternoon shift as any 
shift, the ordinary hours of which finish after 6.00 pm and at or before 
midnight.

c) It follows that where an employee under the Agreement completes ordinary 
hours after 6.00 pm and it is not a night shift- whatever that is- the employee 
will be denied a 15% afternoon shift rate (clause 22.2 of the Award).

d) Thirdly, under the Award, where a 6 or 7-day shift worker works overtime 
during afternoon or night shift hours, the shift penalty is added to the overtime 
rate (clause 22.2). By way of example, a 6 or 7-day shift worker working 
overtime on during hours that fall within the definition of afternoon or night 
shift will be paid at a rate of 215%, whereas under the Agreement, a 7-day shift 
worker would be paid at a rate of 200% and a 6 day shift worker at 150% for 
the first 3 hours and 200% thereafter. This would disadvantage a Level 2, 7 day 
Blast Crew employee relative to the Award, who would be paid overtime at 
$52.00 per hour ($26.00 x 2), whereas the equivalent level 3 under the Award 
would be paid overtime at $52.7 4 per hour ( $24.53 x 215%).

e) Fourthly, under the Award, there is a provision of changing the shifts of 
permanent days workers to afternoon or night shift for periods of at least 3 
consecutive days where the employee will be paid at overtime rates for the first 
shift worked (see clause 22.3 (a)). Where the change is for less than 3 days, 
overtime rates apply for each of the shifts (clause 22.3 (b)). There is no 
equivalent or comparable clause in the Agreement.

f) Whilst contingent, these are less beneficial terms that are accountable as part of 
the BOOT.

Clause 3.5- Payment of Wages

[29] CFMMEU submitted in relation to Payment of Wages, the following:

a) Clause 3.5.2 provides that the Applicant can deduct from an employee's final
pay any agreed monies owing.

b) Clause 3.5.3 provides that where the quantum of monies owing are not agreed, 
the Applicant can still deduct the monies and hold it until the matter is
resolved.

c) Section 326 of the FW Act provides that a provision entitling an employer to 
deduct from an amount payable to an employee is of no effect where it is 
unreasonable in the circumstances.








[2018] FWCA 2888

14

d) In AKN Pty Ltd T/A Aitkin Crane Services, a Full Bench held that even though 
a deduction of wage clause may be of no effect pursuant to s 326, it can be 
included in an Agreement. It also held that where there is a financial detriment 
it is a BOOT issue.22

e) The provision in this Agreement does not provide any safeguard against a
financial detriment arising from the operation of clauses 3.5.2 and 3.5.3. For
example, there is no process for determining whether there has in fact been an
overpayment in the first place, or in the event it is agreed that such 
overpayment occurred, any system for repayment that is reasonable in the 
circumstances.

f) There is no equivalent or comparable provision in the Award. Under the
Award no such deduction is authorised. Accordingly, this provision is a less 
beneficial provision for employees and should be taken into account for BOOT 
purposes.

Clause 4.3- Change of Roster

[30] CFMMEU submitted in relation to Change of Roster, the following

a) Whilst clause 4.3.3 provides that the Applicant may move an employee to 
another place on the same roster by the giving of 7 days' notice or what it 
describes as "payment in lieu of overtime" or by agreement, the Award 
provides that where the 7 days is not given, the employee is to be paid at 
overtime rates for the time necessary to make up a weeks' notice (see clause 
23.5 (ii)).

b) The absence of the penalty rate payment from the Agreement is a less 
beneficial term relative to the Award and is a BOOT consideration.

Clause 4.4 -Shift Starting/Finishing Point

[31] CFMMEU submitted in relation to Shift Starting/Finishing Point, the following:

a) In clause 4.4.1, the Agreement provides that the starting and finishing point 
shall be determined by the Applicant. The Award, on the other hand provides 
that the starting and finishing place of a shift is to be agreed between the 
employer and the majority of affected employees (see clause 23.4).

b) The Applicant's control of the starting and finishing point through the 
Agreement is a less beneficial term relative to the Award. It can have a 
detrimental impact on the time taken by an employee to travel to/from work 
where the starting and finishing place is moved further from the employee's 
residential address.

Clause 4.5 - Breaks

                                               
22 [2015] FWCFB 1833 at PN [146]-(147]








[2018] FWCA 2888

15

[32] CFMMEU submitted in relation to Breaks, the following:

a) Clauses 4.5.1 to 4.5.4 are both internally inconsistent and less beneficial than 
the Award.

b) On the point of inconsistency, the Agreement provides that an employee 
cannot work more than 5 hours without a paid meal break. Yet it also provides 
that on a shift of up to 10.5 hours, an employee is only entitled to one paid 
meal break.

c) However, a shift of up to 10.5 hours comprises at least 2 blocks of 5 hours. 
Hence if an employee cannot work more than 5 hours without a meal break, 
then on a 10.5 hour shift the employee is entitled to 2 paid meal breaks. This is 
even more the case when it is observed that clause 4.5.1 states that the break is 
not to be taken before the third hour from the commencement of the shift. 
Thus, if an employee has a paid meal break at the commencement of the 4th 
hour, the next paid meal break, consistent with the no more than 5-hour rule, 
must be taken at the commencement of the 9th hour. The meal break forms part 
of the employee's rostered hours of work.

d) This inconsistency is also apparent when the Award provision is considered. 
Clause 24.1 of the Award provides that an employee is entitled to a meal break 
without deduction of pay for each 5-hour worked during rostered hours, whilst 
clause 24.2 provides that an employee will not be required to work more than 5 
hours without a meal break. Clause 24.3 further provides that where an 
employee agrees to work more than 5 hours then the employee will, unless 
otherwise agreed, be paid for any work beyond 5 hours at the applicable 
overtime rate until the meal break is taken.

e) Applying the Award to a 10.5-hour shift means that an employee is entitled to 
2 paid meal breaks or paid at overtime rates when the 5th hour is reached until 
the meal break is taken.

f) The meal break provision in the Agreement is a less beneficial term to 
employees than the meal break provision in the Award. This has been 
recognised by the Commission in other matters where the issue of a 10.5 hour 
shifts in coal mines has been addressed.23

g) As a less beneficial term, the meal payment provision is to be taken into 
account for purposes of the BOOT.

Clause 4.6 - Overtime

[33] CFMMEU submitted in relation to Overtime, the following:

a) It is noted from clause 4.2.1 that employees may be required to work either a 
5-day roster (Monday to Friday) or a 6 or 7-day roster.

                                               
23 Link Mining Services Pty Ltd., [2016] FWC 8910 at PN [37]-[38], Moolarben Coal Operations Pty Ltd., [2017]

FWCA 2010 at PN [26 (b) (iii)], [40]








[2018] FWCA 2888

16

b) Clause 4.6 provides for 2 types of overtime- overtime on a Monday to Friday 
roster and overtime on a continuous roster. A continuous roster is defined as a 
7-day roster or a roster which requires ordinary shifts on public holidays and 
not less than 272 hours per year on Sundays (clause 1.8). The Agreement also 
has a definition of non-continuous roster as meaning roster cycles in which 
day/night shifts are rostered to work over five or six days per week (clause 
1.8).

c) On the basis of the definitions a 6-day roster employee works to a non-
continuous shift roster. However, the Agreement does not contain a provision 
for an overtime entitlement for a 6-day roster employee. On that basis there 
appears to be no overtime entitlement for such employees who may be required 
by the Applicant to work overtime.

d) Alternatively, if a 6-day roster employee was to be deemed as equivalent to a 
Monday to Friday roster employee (as they are clearly differentiated from the 
continuous shift roster as defined), the overtime rate is less beneficial than the 
overtime rate under the Award (see clause 17.2 (b) (i)).

e) As pointed out at paragraph 99 above, a 6 or 7-day shift worker is entitled to a 
combination of double time and the relevant shift penalty where overtime is 
worked during afternoon or night shift hours (clause 22.2). This is a further 
less beneficial term of the Agreement.

f) A third less beneficial term regarding overtime is the provision for meal breaks 
and provision of a meal or meal allowance when working non-rostered 
overtime. Clause 17.8 of the Award provides that where an employee is 
required to work more than 1.5 hours past their rostered shift, the employee is 
entitled to a meal break of 30 minutes without deduction of pay prior to 
commencing the overtime. The employee is then entitled to a paid meal break 
of 30 minutes after every 5 hours of overtime. Further where the employee was 
not notified of the overtime on the previous day, the employee will be supplied 
with a meal or alternatively paid a meal allowance of $15.0156 The 
Agreement, on the other hand, has no such provision for meal breaks and 
meals for non-rostered overtime and consequently that is a less beneficial 
provision than the Award.

g) A fourth less beneficial term is the absence of a time off instead of overtime 
clause. This can be found at clause 17.9 of the Award. Whilst the scope of the 
benefit is contingent upon employee preference and the Applicant's agreement, 
it should be given some weight.

Clause 4.7 - Call Back

[34] CFMMEU submitted in relation to Call Back, the following:

a) Clause 4.7 provides for a minimum payment of 2 hours for a call back. This 
contrasts unfavourably with the Award, which provides for a minimum 
payment of 4 hours (clause 17.7).








[2018] FWCA 2888

17

b) The call back provision of the Agreement is a less beneficial provision for 
purposes of the BOOT.

Clause 5.1 -Annual Leave

[35] CFMMEU submitted in relation to Annual Leave, the following:

a) Clause 5.1.6 and 5.1.7 make provision for the taking of annual leave. They 
provide that an employee must give 28 days' written notice of the amount of 
leave to be taken and whether leave can be taken as requested is a matter for 
the Applicant's discretion. Further it provides that the Applicant can direct an 
employee who has in excess of 8 weeks of accrual annual leave to take annual 
leave. This provision stands in stark contrast to the provisions in the Award for 
the taking of leave (clause 25.4). Under the Award, the Applicant must adhere 
to a consultative process where it wants an employee with more than 10 or 12 
weeks' accrued leave (depending upon the entitlement to annual leave) to take 
some of that leave. The Applicant is also restricted in the amount of leave it 
can require an employee to take and the time the leave can be taken. Further, 
from 1 December 2018, an employee will have an entitlement to, following 
due process and subject to certain limits, to require the Applicant to grant 
him/her annual leave.

b) The Award provisions provide a number of protections to the employee that 
have been removed by the Agreement. Under the Award, the Applicant cannot 
direct an employee with an accrued leave of between 8 and 10 weeks or less to 
take leave and where the accrual is greater than 10 or 12 weeks the process and 
limitations apply.

c) With respect to the taking of annual leave the Agreement is less beneficial than 
the Award and should be taken into account as a BOOT consideration.

Clause 5.8 - Personal/Carers Leave

[36] CFMMEU submitted in relation to Personal/Carers Leave, the following:

a) Clause 26.4 of the Award provides that where an employee is absent for fewer 
than half the ordinary hours component of the shift, there is no deduction from 
personal leave and in all other cases the full ordinary hour's component is 
deducted.

b) There is no equivalent or counterpart provision in the Agreement.

c) In that regard it is not possible under the Agreement for an employee to take a 
few hours off work for a medical appointment without having the hours 
deducted from personal leave. It follows that the personal leave clause in the 
Agreement is less beneficial than the Award to that extent and should be taken 
into account as a BOOT consideration.

Public Holidays








[2018] FWCA 2888

18

[37] CFMMEU submitted in relation to Public Holidays, the following:

a) Clause 5.8.5 of the Agreement provides for payment at double time and a half 
when rostered to work on a public holiday.

b) Clause 27.4 (a) of the Award provides for payment when rostered to work to 
be paid at the rate of double time in addition to the payment prescribed i.e. 
treble time.

c) The Agreement is accordingly less beneficial to an employee than the Award 
when an employee is rostered to work on a public holiday.

d) Clause 27.4 (b) of the Award provides that hours in excess of ordinary hours 
i.e. overtime, worked on a public holiday is paid at treble time.

e) The Agreement does not make any special provision for working overtime on a 
public holiday, with the exception of rostered overtime as part of the rostered 
hours in clause 5.8.5. As such this means that rostered overtime would be paid 
at double time and a half and non-rostered overtime at double time for a 
continuous shift worker or time and a half for the first 3 hours and double time 
thereafter for non-continuous workers.

f) In circumstances where an employee works on a public holiday- either on 
ordinary hours or overtime, the Agreement contains a less beneficial provision 
than the Agreement and should be taken into account for BOOT purposes.

Other Less Beneficial Terms

[38] CMMEU submitted further that the Award contains a number of beneficial terms for 
employees that do not have an equivalent or counterpart provision in the Agreement, as 
follows:

a) Clause 16.2 of the Award provides for mixed functions; that where an 
employee performs mixed functions on any shift the employee must be paid for 
the whole shift at the rate applicable to the highest function. The Agreement 
contains no such entitlement.

b) Clause 16.7 provides that on termination of employment an employee must be 
paid his/her final pay on the day of termination or forwarded by post within 72 
hours. The Agreement contains no such entitlement.

c) Clause A.8.2 of Schedule A provides for various allowances. Of relevance to 
employees under this Agreement would be the water allowance (0.49% of the 
standard rate per shift i.e. $3.94 per shift), first aid attendant allowance (0.45% 
of the standard rate per shift i.e. $3.61 per shift), Dirty work (0.23% of the 
standard rate per shift i.e. $1.85 per shift) and the Open Cut Allowance (0.43% 
of the standard rate per afternoon shift i.e. $3.45 per afternoon shift and 0.85% 
of the standard rate per night shift i.e. $6.83 per night shift). The Award 
contains no such entitlement.








[2018] FWCA 2888

19

[39] It was submitted that the essential question on the BOOT assessment is whether the 
Commission can be satisfied that for each employee and each prospective employee, the wage 
rates in the Agreement are sufficient to more than counterbalance the less beneficial terms 
identified in this submission and as such meet the BOOT:

a) At the base rate and for a 35-hour week, the difference between the wage rates 
in the Agreement and the Award ranges from $51.45 (Level 2) per week to 
$86.45 (Level 4) per week. If all other payments in the Agreement and the 
Award were identical then, save for the non-monetary less beneficial terms, the 
BOOT would be satisfied. But the entitlement to certain penalty rates and 
overtime payments are not identical nor is the entitlement to certain other 
payments and those rates and payments in the Award are more beneficial than 
their counterpart provision in the Agreement. The extent to which such terms 
diminish or abolish the benefits of the higher wage rates in the Agreement 
depends on the hours of work arrangements and the classification in question.

b) The Agreement is open ended with respect to the hours of work arrangements. 
The FWC cannot discern from the Agreement what rosters the F17 
Declaration, paragraph 3.4 Applicant works and what rosters the Applicant 
may introduce in the future. This is evident from the terms of clause 4.2.

c) In assessing the BOOT, the FWC has to assess the Agreement on an objective 
basis of what the Agreement permits and not what Applicant says it does or 
may or may not do. In Lobethal, Asbury DP stated: The submission for 
Lobethal that the Company does not work night shifts is not to the point. The 
Agreement enables a night shift to be work and in circumstances where I am 
not satisfied that employees who may be required to work a night shift would 
not be better off than they would under the Award."241n Waternish Roe C 
stated: "Waternish had given evidence that it is not common for its employees 
to work overtime. I accept that evidence but there is nothing in the Agreement 
that prevents further overtime being worked and the BOOT should be 
conducted against what the Agreement provides."25

d) In the recent Loaded Rates Decision, the Full Bench, stated that, in the context 
of loaded rates, the BOOT required "an examination of the practices and 
arrangements concerning the working of ordinary and overtime hours by 
existing and prospective employees that flow from the terms of the 
agreement."26 Whilst this Agreement does not have loaded rates, the reference 
is helpful in determining how the FWC is to apply the BOOT.

e) Any gap between the Agreement and the Award in terms of the wage rates can 
be diminished or removed by a number of Award terms.

f) Firstly, whilst the Award provides for an Open Cut Allowance, the Agreement 
does not. Any employee working in an open cut mine is entitled to $3.45 per 

                                               
24 Lobethal Abattoirs Pty Ltd T/A Thomas Food International, [2017] FWC 151 at PN [79]
25 Waternish Engineering Pty Ltd., [2017) FWC 153 at PN [20] (dot point 2)
26 Loaded Rates Agreements, [2018] FWCFB 3610 at PN [115 (3)]








[2018] FWCA 2888

20

shift for each afternoon shift and to $6.83 per shift for each night shift. Over 5 
shifts the open cut allowance is $17.25 and $34.15 respectively. 

g) Secondly, whilst the Award provides for afternoon shift allowances, the 
Agreement does not. Thus, where an employee works a shift where the 
ordinary hours finish after 6.00 pm and at or before midnight, the employee is 
paid a shift allowance of 15%. 

h) Thirdly, whilst the Award provides for an employee on a 6-day roster to be 
paid overtime at double time, the Agreement does not. At best the Agreement 
provides for time and a half for the first 3 hours and double time thereafter. 
Where a roster provides for 10-hour shifts comprising 8 hours at ordinary time 
and 2 hours at overtime, the difference in the overtime entitlement is 0.5 hour 
per shift. The working of overtime, especially a period of rostered overtime, is 
a common feature at coal mines.

i) Fourthly, whilst the Award provides for 6 and 7-day roster employees who 
work overtime during afternoon or night hours to the relevant shift penalty in 
addition to the overtime rate, the Agreement does not. Under the Award the 
appropriate penalty rate is increased by either 15% or 25% depending on the 
shift.

j) Fifthly, under the Award an employee is entitled, in certain circumstances to a 
first aid allowance ($3.61 per shift), or a wet work allowance ($3.94 per shift} 
and a dirty work allowance ($1.95 per shift), whereas under the Agreement 
there is no such entitlement.

k) Sixthly, under the Award, the employee is entitled to overtime payments when 
he/she works more than 5 hours without a meal break. Under the Agreement an 
employee is entitled to only one meal break on a 10.5-hour shift. In this 
scenario, the employee under the Award would be entitled to a period of 
overtime depending on when the 5-hour barrier is breached.

l) Seventhly, under the Award, if an employee works ordinary hours on a public 
holiday, payment is made a triple time (including a shift allowance if 
applicable) as is payment if overtime is worked on a public holiday (including 
a shift allowance if applicable), whereas under the Agreement the payment is 
less regardless of the status of shift work.

m) The Agreement provides for a 5 day, Monday to Friday roster (see clause 
4.2.1}. Where any employee at Level 1 to 5 works a 5-day roster on what 
would, under the Award, be an afternoon shift, the employee would be worse 
off than if under the Award. For example, the effective hourly rate for a level 2 
under the Award would be $28.21 ($24.53 x 15%} compared to $26.00 under 
the Agreement, and for a level 4 the award rate would be $29.58 per hour 
compared to $28.50 per hour under the Agreement. Then we need to add the 
open cut allowance of $17.24

n) If the roster in paragraph 164 was changed to a 6-day roster (provided for in 
clause 4.2.1), say Monday to Friday in week 1 and Tuesday to Saturday in 








[2018] FWCA 2888

21

Week 2, and provided for rostered overtime of 2 hours per shift, the employees 
would become even worse off under the Agreement relative to the Award 
because of the lower overtime rate.

o) Account should also be taken of the fact that the Agreement does not provide 
for any set wage increases going forward, whereas the Award is subject to any 
increase from the Annual Wage Review decisions. Recently, the FWC handed 
down a 3.5% increase in the award minimum wages. For a Level 3 in the 
Award, the hourly rate increases from $25.43 to $25.39. By comparison with 
the Agreement, the advantage held by the Agreement in terms of the higher 
base rate falls from $1.57 per hour to $0.61 per hour. Further, to the extent that 
the Applicant may increase the wage rates for Agreement covered employees 
(and keeping in mind that any increase is not a consequence of an entitlement 
under the Agreement), it will not take place until after 1 July 2019 and in the 
meantime another Annual Wage Review will have occurred, and any outcome 
applied to the Award.

p) Whilst it is recognised that these are not the only rosters that the Applicant may 
work, the BOOT must be applied to what the Agreement permits. It permits 
these rosters and it is evident that under these rosters the BOOT cannot be met. 
It is evident that the Agreement covers a broad range of rosters for a purpose-
to be call on where required. And whilst the impact of the higher wage rates 
will change depending on the roster and the impact of the paragraphs 157 to 
163 above it is submitted that when assessed against the further impact of the 
additional identified less beneficial terms -being a combination of monetary 
and non-monetary terms the Commission cannot be satisfied that BOOT has 
been met in this matter.

q) The less beneficial terms that we have identified in addition to those in 
paragraphs 157 to 163 above can also have serious monetary outcomes. For 
example, the entitlement to be paid out personal leave upon termination, the 
reduction in the minimum call back payment, the payment of a meal 
allowance, the entitlement to mixed functions and the payment of overtime 
when insufficient notice is given of a roster change. Further, as can be seen in 
paragraph 144 it is not as though there are a small number of less beneficial 
terms that can be easily offset by a higher wage rate. When assessed overall, 
these less beneficial terms constitute a significant package.

r) Whilst the Applicant may well contend that certain of the less beneficial terms 
identified above are of a minor nature the fact is that they constitute 
entitlements under the Award and it was the Applicant that sought their 
absence in the Agreement. It must have done so for some reason and should 
certainly have been aware of the terms of the Award being removed or 
diminished.

s) Based on the above, it is submitted that the FWC cannot be satisfied that the 
Agreement meets the BOOT and the Agreement should not be approved.27

                                               
27 Submissions (CMFMMEU) 6 July 2018 at 1-35








[2018] FWCA 2888

22

Downer Blasting’s submissions

[40] In response to the CFMMEU objections made in relation to the assessment of the 
BOOT, Downer Blasting rejected the CFMMEU submissions that the Agreement does not 
pass the BOOT as required by subsection 186(2)(d) of the Act. Relevantly, the Commission in 
its initial review of the Agreement raised a small number of items of concern with respect to 
the BOOT assessment. The Commission forwarded this assessment to the parties on 27 June 
2018.

[41] The Applicant responded to the CFMMEU submissions in relation to the BOOT as 
follows (references relate to paragraph numbers in the CFMMEU’s submissions):

a) Term of Obligation not in the Award [51]-[56] - This is not an Award term and 
has no bearing on the BOOT. As set out above, the Agreement does not 
incorporate DBS’ policies, standards and procedures.

b) Casual Employment [57]-[64] - This is not an Award term and has no bearing 
on the BOOT. Flexibility in how and when an employee can work may be 
beneficial and desirable to an employee. Providing flexibility in how an 
operation can man a workforce may have positive impacts to the overall 
workforce. This is a neutral factor.

c) Part-time Employment – Averaging of Hours [65]-[69] – Rosters in the mining 
industry often run across several weeks. In circumstances where wages are 
paid weekly, it can result in wide fluctuations in the amount of take home pay. 
This is disruptive to employees and may make budgeting income more 
difficult. By averaging the hours, employees receive a benefit of receiving the 
same take home pay each week. This is beneficial to employees. 

d) Termination of Employment [70]-[81]

i. 2 Weeks’ Notice [70]-[72] – This is less beneficial than the Award, but 
is not significantly so. Clause 2.4.2 of the Agreement provides that 
employees in their probationary period (the first six (6) months of 
employment) need only give one (1) weeks’ notice. Accordingly, only 
those employees who have more than six (6) months’ service but less 
than one (1) year are affected compared to the Award.

ii. Constraints on Redundancy [73]-[74] – Clause 2.9.4 of the Agreement 
mirrors clause 14.4 of the Award. Clause 2.9.5 of the Agreement 
mirrors clause 13.4 of the Award.

iii. Payment of Personal/Carer’s Leave – Certain Factors [75]-[76] – The 
absence of the payment of personal/carer’s leave on termination is less 
beneficial however the Agreement provides for the payment of 
personal/carer’s leave during employment at the Aggregated 
Annualised Wage which is a far superior entitlement.

iv. Termination during Personal/Carer’s Leave [77] – The absence of the 
continuation of payment of personal/carer’s leave on termination is less 








[2018] FWCA 2888

23

beneficial however the Agreement provides for the payment of 
personal/carer’s leave during employment at the Aggregated 
Annualised Wage which is a far superior entitlement.

e) Stand Down [79]-[81] – The Award does not address Stand Down provisions. 
Employers are prohibited from paying employees during industrial action. If 
employees are already on annual leave during a period of industrial action, it 
stands to reason that they are also not stood down during that period and would 
remain on annual leave.

f) Shut Down of Operations [82]-[87] – The Award is silent on directing an 
employee with no accrued annual leave to take leave without pay; however, 
this would be the only option available to an employee in circumstances of a 
Shutdown in accordance with 25.12 of the Award where an employer did not 
agree to allow the employee to take leave they had not accrued. Given the 
contingent nature of this claim, the provision should be regarded as neutral.

g) The Agreement provides that an employee who is not required to work on a 
public holiday is entitled to payment for the ordinary hours (5.8.7).

h) Annual Wage Review [88]-[94] – The Award does not provide for an annual 
wage review. Section 206 of the Act requires:

Base rate of pay under an enterprise agreement must not be less than the 
modern award rate or the national minimum wage order rate etc.

If an employee is covered by a modern award that is in operation

(1) If:
(a) an enterprise agreement applies to an employee; and
(b) a modern award that is in operation covers the employee;

the base rate of pay payable to the employee under the agreement (the 
agreement rate) must not be less than the base rate of pay that would be 
payable to the employee under the modern award (the award rate) if the 
modern award applied to the employee.

(2) If the agreement rate is less than the award rate, the agreement has 
effect in relation to the employee as if the agreement rate were equal to 
the award rate.

Relevantly, the Agreement must continue to keep pace with the relevant 
base hourly rates set out in the Award. In this way, the Agreement 
operates in the same capacity as the Award.

i) Allowances and Penalties [95]-[101] –

i. Night Shift [96] – The Agreement does not define night shift. This is 
not necessarily less beneficial but clarity is desirable. Accordingly, this 
should be addressed in an Undertaking.








[2018] FWCA 2888

24

ii. Afternoon Shift [97]-[98] – The Agreement does not provide for an 
afternoon shift. While DBS does not operate an afternoon panel it is 
acknowledged that it could. Accordingly, this should be addressed in an 
Undertaking.

iii. 6-Day Employee Overtime [99] – The Agreement does not provide for 
an afternoon shift. While DBS does not operate an afternoon panel it is 
acknowledged that it could. Accordingly, this should be addressed in an 
Undertaking.

iv. Changing Shift Type – Penalty [100] – The Agreement requires 7 days’ 
notice to be given to employees of any change.

j) Payment of Wages [102]-[107] – The Award does not address this issue. A 
deduction from an employee’s wages where the deduction is authorised / 
reasonable is lawful under sections 324-326 of the Act. The safeguards are set 
out in section 236 of the Act. This is a neutral consideration. The Award does 
however authorise the employer to deduct amounts to cover any annual leave 
paid in advance (clause 25.11 (d)).

k) Change of Roster [108]-[109] – The Agreement requires employees to be 
given seven (7) days’ notice of a change in roster unless they otherwise agree.

l) Shift Starting / Finishing Point [110]-[111] – The Agreement requires the 
nominated area to be on site. The CFMMEU’s concerns are overstated.

m) Breaks [112]-[117] – There is no inconsistency with the Breaks clause (4.5) of 
the Agreement, although the clause can be applied differently depending on the 
circumstances. This is reasonable and sensible.

n) Clause 4.5.1 of the Agreement provides that “An Employee is not to work 
more than 5 hours without a paid break”. If an employee worked 5 hours, took 
a half hour break, and then worked an additional 5 hours (10.5 hours in total) 
the employee would receive only one break. However, if the employee worked 
a different configuration of hours such that following their first break they 
worked more than an additional 5 hours, the employee would be entitled to a 
second meal break.

o) Overtime [118]-[124] – The Agreement does not adequately define a 6-Day 
Roster employee for the purposes of overtime. This is not necessarily less 
beneficial but clarity is desirable. Accordingly, this should be addressed in an 
Undertaking.

p) Call Back [125] – The Agreement provision is less than the Award provisions; 
however, it is a contingent benefit and should be given little weight.

q) Annual Leave [127]-[130] – The Agreement provision is not significantly 
different than the Award provisions and should be given little weight.








[2018] FWCA 2888

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r) Personal / Carer’s Leave [131]-[133] – The difference in the deduction rules 
around the provision of personal/carer’s leave are different however the 
Agreement provides for the payment of personal/carer’s leave during 
employment at the Aggregated Annualised Wage which is a far superior 
entitlement.

s) Public Holiday [134]-[139] – The penalty rate for working a public holiday is 
less beneficial than the Award. Accordingly, this should be addressed in an 
Undertaking.

t) Mixed Function [141] – An employee must be paid in accordance with the 
work they are doing in accordance with 3.1.4. It follows that if the employee is 
working at a higher level than they must be paid at the higher level.

u) Allowances

i. Water Allowance – This Allowance is compensated for by the higher 
base rate of pay.

ii. First Aid Attendant Allowance – This Allowance is payable under the 
Award only where the employee is appointed by the Employer in that 
capacity. This is a contingent entitlement and should not be considered 
for the purposes of the BOOT.

iii. Dirty Work Allowance – This Allowance is compensated for by the 
higher base rate of pay.

iv. Open Cut Allowance – This Allowance is compensated for by the 
higher base rate of pay.

[42] On 13 July 2018, Mr Goos provided the Commission with a statement in relation to 
the steps that were taken to satisfy the pre-approval requirements under the FW Act. His 
statement was as follows:

a) Downer Blasting provides contract blasting services at Duralie Coal mine. 
Downer Blasting is engaged by Yancoal Australia Ltd, owner of the mine.

b) I was responsible for leading the negotiation of the Downer ED/ Mining –
Blasting Services NSW Coal Enterprise Agreement 2018 (the Agreement). I 
attended all negotiation meetings for the Agreement.

c) Since July 2017 Downer Blasting have been negotiating the Agreement with 
four (4) bargaining representatives:

 Michael Morris
 Dean Herbert
 Ryan Delarue
 Daniel Clarke








[2018] FWCA 2888

26

d) Each of the four employees nominated themselves as bargaining 
representatives. negotiated the Agreement directly with these employees.

e) These employees have been employed with Downer Blasting continuously at 
Duralie since at least September 2013 with Michael Morris having been
employed since September 2010. 

10 July 2017 - First Bargaining Meeting

a) I held the first bargaining meeting on site at Dura lie Mine on 10 July 2017. In 
attendance at the meeting was Dayne Somers, Operations Manager, Vanessa 
Willis, HR Advisor, and the four bargaining representatives.

b) During that meeting I outlined Downer Blasting's desire to reduce labour costs 
in New South Wales (NSW) in order to have more competitive rates.

c) I provided an overview of Downer Mining's contract end at Boggabri Mine. 
The end of Downer Mining's contract at Boggabri was significant for Downer 
Blasting, who employed approximately 30 employees at the site.

d) I explained that Downer Blasting's commercial tender to win an extension of 
work at Boggabri was still outstanding. I outlined Downer Blasting's broad 
industrial strategy for NSW, which essentially involved splitting the existing 
Downer ED/ Mining Blasting Services New South Wales Coal Enterprise 
Agreement 2013 (Existing Agreement) into three (3) separate enterprise 
agreements:

 A site-specific enterprise agreement at Boggabri Mine;
 A manufacturing-specific enterprise agreement for Downer Blasting's 

emulsion production facility at Mt Thorley; and
 A new NSW enterprise agreement made with the Duralie Mine 

employees which excluded coverage of Boggabri Mine and 
manufacturing activities.

e) I further explained that the success of our NSW strategy hinged on the 
employees engaged at Duralie Mine supporting a new NSW enterprise 
agreement.

f) I had previously outlined this strategy to Peter Jordan, CFMEU Northern 
Mining & NSW Energy District President, and Jeff Drayton, CFMEU Northern 
Mining & NSW Energy District President District Vice President, in an email 
on 12 May 2017 and then again at a meeting at their Cessnock office on 2 June 
2017. This email is attached as Appendix A.

g) At the first bargaining meeting on 10 July 2017, and on the basis that Downer 
Blasting were seeking to implement a new NSW enterprise agreement, 
Vanessa Willis provided each employee with a printed copy of the Agreement.

h) Using a version of the Agreement with tracked changes highlighting the 
differences between the Existing Agreement and the proposed Agreement, I 








[2018] FWCA 2888

27

took employees through the proposed Agreement and explained it clause by 
clause to ensure employees fully understood our full strategy, and the terms of 
the proposed Agreement and the impact and effect of the changes. The 
Agreement draft with tracked changes is attached as Appendix B.

i) Employees specifically asked questions regarding options to cash out personal 
I carer's leave, how employment terms may vary if employees were seconded 
to sites in the Hunter Valley where labour rates are much higher, the 
implementation of a rain allowance and the implementation of a production 
bonus.

j) I advised the bargaining representatives that we would consider their claims 
and respond at the next meeting.

26 July 2017 - Second Bargaining Meeting

a) I held the second meeting with Duralie employees on 26 July 2017. In 
attendance was Dayne Somers, Operations Manager, Vanessa Willis, HR 
Advisor, and the four bargaining representatives.

b) At this meeting, I provided an update on the meeting at Boggabri for a site-
specific Downer Blasting agreement which was held the day prior.

c) Michael Morris advised me that Downer Blasting employees from Boggabri 
had contacted him in relation to our strategy to split the enterprise agreement. 
Michael indicated that the Boggabri employee was against any change to the 
existing structure of one combined NSW enterprise agreement.

d) I further explained that our bargaining process may be slowed down due to 
some challenges presented by the union in NSW. It was advised they may be 
contacted by the CFMEU regarding the negotiations and representation.

e) I reiterated to the bargaining representatives that they had a right to 
representation from the union. I remember being particularly cautious on this 
point as Downer had received a Protected Action Ballot Order on 13 July from 
the CFMEU in relation to the expired Downer Mining enterprise agreement 
applicable at Boggabri. I suspected that the CFMEU would contact the 
employees at Duralie and I wanted to ensure that employees had been given 
correct advice regarding their right to representation.

f) In relation to the proposal and to claims discussed at the meeting on 10 July 
2017 I provided a counter-offer which included a:

 $1,500 sign-on bonus;
 2% pay increases in year 3 and 4 of the agreement;
 Rejection of the ability to cash out personal/carers leave

g) I concluded the meeting by asking bargaining representatives to consider our 
proposal in order to respond at a future meeting.








[2018] FWCA 2888

28

h) On 4 August 2017 I was informed by Paul Cassano, Downer Blasting 
Executive General Manager, by email that our commercial bid to retain the 
Downer Blasting Boggabri contract had been unsuccessful.

16 January 2018 - Third Bargaining Meeting

a) I held the third bargaining meeting at Duralie Mine on 16 January 2018. In 
attendance was Chris Vane, Operations Manager, Scott Bury, HR Manager, 
Vanessa Willis, HR Advisor, and the four bargaining representatives.

b) To commence the meeting I provided an update on the state of business, 
specifically as it related to the loss of the Boggabri Mine blasting contract and 
the demobilisation of employees from site.

c) I discussed Downer Blasting's preference to revise its approach and to expand 
the coverage of the proposed Agreement to cover all of NSW, except for the 
Mt Thorley emulsion facility.

d) Vanessa Willis provided employees with a copy of the proposed Agreement 
which contained 'tracked changes'. I explained the entire agreement again, 
clause by clause, specifically outlining the meaning and impact of the marked 
up terms.

e) The bargaining representatives were particularly interested in the redundancy 
provisions and asked specifically in relation to their own length of service what 
their entitlement to severance would be. We discussed the changes to the Black 
Coal Mining Industry Award 2010 which had capped the weeks' retrenchment 
pay an employee could receive to a maximum of 30.

f) I advised that the proposed Agreement did not cap retrenchment pay.

g) We also discussed options to salary sacrifice personal/carer's leave.

h) The bargaining representatives gave a counter proposal for the sign-on bonus 
of $2,500 and but I recall feeling that they otherwise supported the overall 
strategy. We agreed to return to site in the next week and continue bargaining.

31 January 2018- Fourth Bargaining Meeting

a) I held the fourth bargaining meeting at Duralie Mine on 31 January 2018. In 
attendance was Vanessa Willis, HR Advisor, and the four bargaining 
representatives.

b) The bargaining representatives reiterated their claim to a $2,500 sign-on bonus.

c) We discussed the ability for Downer Blasting to increase base rates depending 
on the applicable site and market conditions and agreed to 'grandfather' their 
conditions.

1 February 2018 - Ballot Notice I Agreement issued








[2018] FWCA 2888

29

a) I am aware that on 1 February 2018 Vanessa Willis, HR Advisor, emailed the 
four bargaining representatives individually and issued them with a copy of the 
Ballot Notice, specifying the time, place and method of the ballot, a copy of 
the proposed Agreement and a letter specifying the sign-on bonus and the 
grandfathering arrangements.

8 February 2018 - Access Period Explanation

a) I attended site on 8 February 2018 during the access period to explain the 
proposed Agreement to employees. In attendance was Vanessa Willis, HR 
Advisor, and the four bargaining representatives.

b) During this meeting I proceeded to explain the proposed Agreement clause by 
clause. I was careful to ensure that the requirements of the Fair Work Act 2009 
(Cth) were met during this meeting, in particular subsection 180 (5) which 
relate to the explanation of the terms.

c) I did not believe that the bargaining representatives had any particular 
circumstances or needs which required me to take additional measures to 
explain the terms of the Agreement. I formed this view on the basis that:

d) The bargaining representatives each attended all of the four previous 
bargaining meetings during which I had gone through the Agreement fully on 
three (3) separate occasions, including versions of the proposed agreement 
with 'tracked changes';

e) I was confident that the employees' were not from culturally and linguistically 
diverse backgrounds; and

f) The employees were experienced workers who had been employed for 
upwards of 4 years by Downer Blasting.

g) The employees unanimously approved the Agreement on 9 February 2018. As 
bargaining representatives, the employees were emailed a copy of the Form 16 
- Application and Form 17 - Statutory Declaration which accompanied the 
signed Agreement. No issues were ra1sed by employees regarding the 
accuracy of the declaration.28

[43] On 13 July 2018, Mr Michael Morris provided the Commission with his statement in 
relation to the steps Downer Blasting took to satisfy the pre-approval requirements under the 
FW Act. His statement was as follows:

26 June 2017

a) I attended a meeting with Dayne Somers, Operations Manager, Ryan Delarue 
and Daniel Clarke. Dean Herbert was away that day. Dayne Somers informed 

                                               
28 Statement of Mr J Goos, 13 July 2018








[2018] FWCA 2888

30

us that DBS wanted to start bargaining for a new enterprise agreement which 
would cover NSW but not Boggabri Mine or the Mt Thorley Emulsion facility.

b) During that meeting Dayne Somers gave us a copy of the Notice of Employee 
Representational Rights. A copy was left for Dean Herbert. I gave Dean 
Herbert his copy the next day.

c) Dayne Somers informed us that we could have a representative during the 
bargaining for a new enterprise agreement. Dayne Somers gave us copies of a 
form that we could use to appoint a representative.

d) I recall having a conversation with Ryan Delarue and Daniel Clarke were we 
discussed whether we would nominate ourselves. We completed the bargaining 
representative appointment forms on 26 June 2017. Dean Herbert signed his on 
27 June 2017. I emailed them all to Vanessa Willis on 28 June 2017. 

10 July 2017- First Bargaining Meeting 

a) I attended the first bargaining meeting on site at Duralie Mine on 10 July 2017. 
At that meeting was Jarrett Goos, Employee Relations Manager, Dayne 
Somers, Operations Manager, Vanessa Willis, HR Advisor, and the other three 
employee bargaining representatives.

b) During that meeting Jarrett Goos explained the agreement procedure and how 
the changes would be made to the draft Proposed Agreement. It was a long 
meeting.

c) Jarrett Goos read through the Proposed Agreement, paragraph by paragraph. 
We were left copies of the Proposed Agreement.

d) We had a number of ideas about things we wanted to include in the proposed
Agreement like cashing out sick leave. Jarrett Goos told us that management 
would respond in the next meeting.

26 July 2017- Second Bargaining Meeting

a) I attended the next meeting on 26 July 2017. At this meeting were Jarrett Goos, 
Dayne Somers, Vanessa Willis, and the other three employee bargaining 
representatives.

b) We received another copy of the Proposed Agreement.

c) At this meeting management told us there would be a delay in the bargaining 
because of the issues at Boggabri, including whether Downer Blasting would 
win an extension at Boggabri.

16 January 2018 -Third Bargaining Meeting

a) I attended the third bargaining meeting at Duralie Mine on 16 January 2018. In 
attendance was Jarrett Goos, Chris Vane, Operations Manager, Scott Bury, HR 








[2018] FWCA 2888

31

Manager, Vanessa Willis, HR Advisor, and the other three employee 
bargaining representatives.

b) It had been a few months since the last meeting. We were aware that DBS had 
lost the blasting contract at Boggabri Mine.

c) Jarrett Goos explained that the strategy would now involve a single NSW-wide 
agreement.

d) Vanessa Willis provided us with a copy of the proposed Agreement which 
contained 'tracked changes'. Jarrett Goos explained the entire agreement again.

e) We asked Jarrett Goos about the differences between redundancy and 
severance.

f) We were concerned about there being a cap on the payout of redundancy.

g) We also discussed a scheme to pay out personal/carer's leave or roll it into 
super.

h) Jarrett Goos said he would consider it and come back to us. We asked for a 
sign-on bonus of $2,500.

i) Management said they would consider our position and get back to us in the 
next few weeks.

31 January 2018 - Fourth Bargaining Meeting

a) I attended the fourth bargaining meeting at Duralie Mine on 31 January 2018. 
In attendance was Jarrett Goos, Vanessa Willis and the other three bargaining 
representatives.

b) During this meeting we repeated our demand for a $2,500 sign-on bonus. I 
recall that it was something we weren't going to budge on. Jarrett Goos made a 
phone call to Paul Cassano who eventually approved the payment.

c) At the end of that meeting we had reached an agreement.

1 February 2018 - Ballot Notice I Agreement issued

a) On 1 February 2018 Vanessa Willis emailed myself a copy of the Ballot 
Notice, a copy of the proposed Agreement and a letter detailing the sign-on 
bonus. I am aware that the other employees received the same email. 

8 February 2018 - Access Period Explanation

a) I attended a meeting on 8 February 2018. In attendance were Jarrett Goos, 
Vanessa Willis and the other bargaining representatives.

b) Jarrett Goos went through the Agreement in full again.








[2018] FWCA 2888

32

c) At this stage, I was very clear on the Agreement. It was black and white to us. 
We had a chance to ask a lot more questions which Jarrett Goos answered.

d) Vanessa Willis had emailed and phoned me to arrange for the ballot to be held 
on site. I ran the ballot the next day, 9 February 2018. It was 4 votes to zip. We 
all signed a copy of the ballot result form which I emailed to Vanessa Willis. 

e) I felt like I understood the Agreement. I was fully aware of what we were 
voting on. DBS were trying to streamline their agreements and to win more 
work. This would benefit us as we were long term employees.

f) Every meeting we received a copy of the Agreement and it was explained to 
us.29

[44] At the Hearing, Mr Jarrett Goos, Group Employee Relations Manager employed by 
Downer Blasting gave evidence and was cross examined by Mr Bukarica from the CFMMEU. 
Under cross examination, Mr Goos gave evidence to the following effect:

a) the Applicant has a sufficient human resources capacity.30

b) He explained the impact and meaning of the agreement provisions but did not 
contrast the less beneficial agreement terms to the award.31

c) For example, one of the less beneficial terms in the Agreement, the non-
payment of accrued personal leave in the event of termination due to 
redundancy, retirement or ill health, was not brought to the attention of 
employees by way of comparison to the award but to the previous agreement.32

d) There were instances in the explanation of the agreement where employees had 
an understanding of some elements of the award such as severance 
entitlements and changes to severance entitlements.  They are the issues that 
were focussed on; otherwise the agreement was compared with the prior. There 
was no contrast of the award provisions to the agreement provisions.33

e) Employees fully appreciated the conditions of employment that they held prior 
to the approval of the agreement.34

f) There is no obligation in the legislation which specifies a requirement to 
compare the agreement terms with the award terms when providing that 
explanation.35

                                               
29 Statement of Mr M Morris, 13 July 2018
30 Transcript PN 30
31 Transcript PN 231
32 Transcript PN 89
33 Transcript PN 88
34 Transcript PN 126
35 Transcript PN 229








[2018] FWCA 2888

33

g) This case relates to four reasonably long term employees who have an intimate 
working knowledge of the existing enterprise agreement and very little, if any, 
understanding or working knowledge of the award provisions.  The 
explanation in that instance must take into account the circumstances, and 
those circumstances are that the explanation of the terms of the agreement 
would be best served as a reference to their current terms and conditions of 
employment.  That is what they understood and that is what they worked 
under.36

h) Downer Blasting met the requirement to explain the impact of the terms of the 
proposed agreement by way of reference to their existing terms and conditions 
of employment. We reject an outright obligation on employers to take steps to 
compare and contrast enterprise agreements to underlying reference 
instruments.37  

[45] Mr Bukarica also adduced evidence from Mr Michael Morris, Leading Hand. During 
the proceedings, Mr Morris gave the following evidence:

a) His understanding of the BOOT assessment is a comparison between the 
current and previous Enterprise Agreement.38

b) He stated in relation to what Mr Goos explained to him in relation to the 
operation of the Award that “I don't believe we went into the award too much 
because to my recollection we go under the EA.”39

c) He believed that it was unnecessary for Mr Goos to explain the comparison 
between the Agreement and the Award because “we go under the EA not the 
award.”40

d) In the 8 years that he has been employed by the Applicant he has been 
employed in accordance with an Enterprise Agreement.41

Closing Submissions

[46] Mr Goos made the following closing statements:

PN229: “Commissioner, this matter relates to a question primarily as to whether or not 
the employer took all reasonable steps to explain the terms of the agreement and the 
impact of those terms.  There is no obligation in the legislation which specifies a 
requirement to compare the agreement terms with the award terms when providing 
that explanation.  We accept that in instances where there have been cases most 
notably recently regarding One Key42 and other such cases where they are dealing with 

                                               
36 Transcript PN 230
37 Transcript PN 231
38 Transcript PN 162
39 Transcript PN 168
40 Transcript PN 168
41 Transcript PN 199
42 [2018] FCAFC 77








[2018] FWCA 2888

34

new conditions of employment or new industries or new awards there must be some 
reference point for the explanation of those terms.  However this case is very 
different.”

PN230: “This case relates to four reasonably long term employees who have an 
intimate working knowledge of the existing enterprise agreement and very little, if 
any, understanding or working knowledge of the award provisions.  The explanation in 
that instance must take into account the circumstances, and those circumstances are 
that the explanation of the terms of the agreement would be best served as a reference 
to their current terms and conditions of employment.  That is what they understood 
and that is what they worked under.”

PN231: “We say we have met the requirement to explain the impact of the terms of the 
proposed agreement by way of reference to their existing terms and conditions of 
employment.  We reject an outright obligation on employers to take steps to compare 
and contrast enterprise agreements to underlying reference instruments.  That may be a 
consideration for the - it is a consideration for the Commission but not is what is called 
up for employers in 180(5).  We say that the explanation given to employees in this 
case exceeded our obligations in that all four employees had attended the bargaining 
meetings, all four employees had had three opportunities to hear from the company in 
relation to those terms and to have full appreciation for the need and reason and 
rationale for the changes to their enterprise agreement.”

PN232: “That is that the business was unable to secure new work and that those 
employees had accepted there ought to be changes to the current terms and conditions 
to make the business more competitive in order to win more work. Those employees 
had a mind to long term employment with the applicant and looking to grow in the 
business with that employer. In that context we say the explanation was reasonable.
We say also that the other steps required under the Fair Work Act have been met and 
that there is otherwise no reason why the agreement should not be approved in the 
circumstances.”

[47] Mr Bukarica made the following oral submissions:

PN235: We submit that the Commission cannot be satisfied that the proposed 
agreement meets the relevant statutory tests.  As the submissions articulate in some 
detail there are very significant problems with the applicant being able to satisfy the 
BOOT and these matters are summarised in particular at page 26 of our original 
submissions.

PN236: It might be said that some of these detriments could be satisfied by way of 
undertakings and that is a matter for the Commission to consider.  The fact remains 
however there are no undertakings being identified or proposed to the Commission at 
present and in our view there would be a need for multiple undertakings relating to 
multiple less beneficial terms that have been identified.

PN236: What we say is clear based on the evidence of Mr Goos and Mr Morris now, 
and even in terms of the concessions that are contained in the submissions filed by the 
company, it's clear that the company failed in a fairly basic obligation in terms of the 








[2018] FWCA 2888

35

requirements under section 180(5) and that is to identify the relevant less beneficial 
terms in the agreement relevant to the award.

PN238: Now true it is that that particular requirement is not spelt out in specific words 
in the Act but as the court, the Full Court of the Federal Court observed in the One 
Key appeal decision which is cited, the whole purpose of the relevant provision, 
section 180(5) and section 188, is concerned with giving employees an informed or a 
basis to make an informed decision about an enterprise agreement and it's simply not 
good enough to say "Well, you know, in this particular place the reference point is the 
previous enterprise agreement".43

PN239: The point we make simply is that a company with the resources of Downer 
should have been able to put together a comparative table or some sort of summary 
document, which I see routinely in many enterprise agreements as I'm sure the 
Commission would as well, simply setting out the relevant differences and in 
particular any significant diminutions in award benefits.  Now we say that's a 
reasonable step.  That's a reasonable step that should have been taken.  This is not a 12 
employee small operation.  It's a major operator in the coal mining industry.

PN240: We think that failure is fatal to the application, with respect.  It can't be said 
that employees made an informed decision or that the objectives or the purpose of 
section 180(5) was met in these proceedings and we ask the Commission, with respect, 
to not approve the agreement.

[48] In reply Mr Goos submitted that:

PN257: Thank you, Commissioner, and in my reply I reiterate that the Act as 
conceded by the respondent does not specify the requirement to have regard to the 
award in the explanation of the agreement.  That is not appropriate in the 
circumstances where employees have no - there was no bearing of the award to their 
employment.  I will also respond to the point made by the respondent that the 
employees were at all times informed of our strategy and at all times informed of the 
impact and meaning of the terms of the agreement that they were agreeing to by way 
of reference to the enterprise agreement which they are covered by.  That is the 
appropriate reference for these employees, not an exterior document which has no 
basis other than as a statutory stepping stone to implement the enterprise agreement.

PN258: We say that the agreement has some elements which could be improved by 
way of undertakings and we do not agree with the CFMMEU's position that 
undertakings would not be appropriate in this case.  We say that where there are small 
changes which can be improved through undertakings, we're willing to do so and 
we've identified a number of those areas in our submission, and we would work with 
the Commission and with the - or with the Commission in order to identify and 
provide those undertakings.

                                               
43 [2018] FCAFC 77








[2018] FWCA 2888

36

Consideration

s.180(5)(a) – Did the employer take “all reasonable steps to ensure that the terms of the 
Agreement and the effect of those terms [were] explained to the relevant employees”?

[49] In Falcon Mining Deputy President Asbury observed that the FW Act “does not 
stipulate the manner in which an explanation of the terms of an Agreement must be 
provided…”44  Her Honour continued,

“[157] As a Full Bench of the Commission observed in McDonalds, s.180(5) of the 
Act does not establish an absolute requirement that a particular outcome be achieved, 
but requires only that the employer take reasonable steps to ensure that the terms and 
conditions of the Agreement are explained to employees. The reasonableness of the 
steps taken must be considered in the context of:

 The size of the employer; 
 The resources of the employer including available mechanisms and available 

expertise to provide an explanation;
 The role and qualifications of the persons who provide the explanation; and
 Whether the capacity or the ability of employees to receive an explanation is 

impacted by issues such as language, literacy, access to electronic media, 
hours of work, rosters, the locations at which work is performed, travel to and 
from remote locations or the availability of employees to receive an 
explanation.

[158] In the present case, I am not satisfied that reasonable steps were taken to give 
employees an explanation of the terms of the Agreement and the effect of those terms. 
On the basis of the evidence of Mr Ryan, I am satisfied that there were employees 
working rosters that would likely have impacted on or prevented them from attending 
meetings at which the terms of the Agreement and their effect were explained. I am 
also satisfied that Ms Gayton did not take steps to address this lack of access, on the 
basis that she was not aware that employees were working such rosters at the relevant 
time.

[159] I am also of the view that the error in the Form F17 Employer declaration, 
where it is wrongly stated that there are no terms of the agreement less beneficial than 
those in the Award, makes it more probable than not that Ms Gayton made comments 
to this effect during her explanation about the terms of the Agreement. While I accept 
that the incorrect statement was unintentional, and that Ms Gayton did not set out to 
mislead the Commission or employees when she made that statement, the provision of 
incorrect information in a statutory declaration is a matter I can take into account in 
deciding whether the Agreement was genuinely agreed. I also note that while swearing 
an affidavit acknowledging the error, Ms Gayton has not provided any statement as to 
what terms of the Agreement are less beneficial when compared to the terms of the 
Award and there is insufficient evidence upon which I could reasonably be satisfied 
that an explanation addressing this matter was provided to employees.

[160] In my view the entirety of the failure to comply with requirements for approval 
of the Agreement – failure to correct typographical errors in the NERR (despite two 
attempts); failure to establish that reasonable steps were taken to give the NERR to 

                                               
44 [2016] FWC 5315 at [156]








[2018] FWCA 2888

37

employees (despite being given numerous opportunities to provide evidence to that 
effect); the incorrect statement about less beneficial terms of the Agreement in the 
Form F17 Employer Declaration; failure to properly correct that statement and to 
provide particulars; failure to provide particulars about the terms of the Agreement 
which are less beneficial than those in the Award; and Mr Ryan’s evidence about the 
inadequacy of the explanation of the terms of the Agreement – are reasonable grounds 
for believing that reasonable steps were not taken to explain the terms of the 
Agreement and their effect, and that the Agreement was not genuinely agreed.

[50] In Shamrock the Full Bench observed that,

[22] Satisfaction under s.186(2)(a) is a jurisdictional prerequisite for the approval of 
any enterprise agreement. If s.180(5) is not satisfied, then the Commission cannot be 
satisfied re: s.188 (a)(i) and consequently the Commission cannot be satisfied that the 
Agreement has been ‘genuinely agreed’ as required by s.186(2)(a).

[23] The meaning of s.180(5) and what is required, particularly in regards to 
s.180(5)(a) was subject to detailed consideration in the recent decision of his Honour 
Justice Flick in the One Key decision and reasoned as follows:

“[91]… A failure to comply with a “[p]re-approval requirement”, in this case 
the failure to “take all reasonable steps” for the purposes of s 180(5), 
precluded the proposed Agreement from being an agreement susceptible of 
subsequent approval by the Commission. And a failure to take the necessary 
steps to secure the agreement of those “employees covered by the agreement” 
(s 186(2)(a)) – be it genuine agreement or otherwise – again precluded the 
proposed Agreement from being an agreement in respect to which the 
Commission need reach any state of satisfaction.”
…
[97]… Section 180(5) is not a section which is expressed in terms of whether 
the Commission is “satisfied” that “all reasonable steps” have been taken. That 
subsection is expressed as a statement of objective fact as to that which must 
occur before approval is sought. If “all reasonable steps” have not in fact been 
taken, the Commission lacks power to “approve” the agreement.”
…
[103] The requirement imposed by s 180(5) to “take all reasonable steps to 
ensure that … the terms of the agreement, and the effect of those terms, are 
explained” is an important obligation imposed upon an employer to ensure that 
employees are as fully informed as practicable. The requirement is not a mere 
formality. Whatever steps may be necessary will depend upon the facts and 
circumstances of each particular case; but those steps are not satisfied by a 
person reading – without explanation – the terms of an agreement to an 
employee.”

[51] Like the Full Bench in Shamrock I agree with and, with respect, adopt his Honour’s 
reasoning in One Key (which was not disturbed on appeal).45

                                               
45 One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77








[2018] FWCA 2888

38

[52] Downer Blasting filed a Form F17 statutory declaration with its application for 
approval of the Agreement.  Question 3.5 of the Form F17 statutory declaration filed with the 
application for approval of the Agreement asks the employer the following question “does the 
agreement contain any terms that are less beneficial than equivalent terms and conditions in 
the reference instrument(s) listed in questions 3.1 and 3.2 and/or does the agreement confer 
any entitlements that are not conferred by those reference instruments?”.  Like in Shamrock, 
in the present matter, Downer Blasting answered “No”.

[53] In Shamrock the Full Bench held that,

“[32] In this matter, the Applicant answered “no” in respect to questions 3.5 and 3.6 
of the Form F17 stating that there were no more beneficial terms or less beneficial 
terms in the Agreement compared to the Award. It is patently clear that both answers 
do not accord with the factual situation. The reality is that there are some more 
beneficial terms in the Agreement, for example higher base rates of pay. It is also 
apparent that there are a significant number of less beneficial terms. In the Decision at 
first instance the Commissioner considered a number terms of the Agreement which 
the CFMEU considered to be less beneficial and other issues identified by the 
Commission in its initial assessment of the Agreement. The Commissioner did not 
consider a number of the terms identified by the CFMEU to be a detriment to 
employees. However, the Commissioner found that no requirement in the consultation 
term to provide written information, entitlements for shiftworkers, redundancy, meal 
breaks and rest periods, the absence of a minimum engagement on Saturdays and 
public holidays, reduced notice of annual shut down and averaging of hours over a 12 
month period were either detrimental to employees or may result in scenarios where 
employees may be worse off under the Agreement. A number of undertakings were 
sought to satisfy the Commissioners concerns in relation to the BOOT.
[33] It is important to note that the Form F17 is a statutory declaration as to what 
the Applicant declares that they have done to satisfy the various requirements of the 
legislation. While in some circumstances an Applicant will incorrectly answer 
question 3.4 and/or question 3.5 because they have omitted one or some items from 
the list, and because the omitted items are not particularly significant this may not 
necessarily be a cause for concern. However, in this case a declaration that there are 
no less beneficial terms does give rise to concern as it is apparent that in fact there 
were a significant number of less beneficial terms. Aside from the obvious concern 
that the declarant has made a declaration which is untrue, it gives rise to a further 
concern as to the nature of the explanation given to employees as to terms of the 
Agreement and the effect of those terms. That is, it at least raises a real question as to 
the explanation to employees about the terms of the Agreement and in particular the 
effect of those terms, in circumstances where the employer is attesting that the 
agreement has no less beneficial terms.

[34] We are of the view that where the answer to the question less beneficial terms’ 
was so clearly at odds with the factual situation, this should have led to the 
Commissioner to make further enquiries. While we understand the focus of the 
CFMEU during the proceedings was not on that aspect, this does not alter the fact that 
the Commissions statutory obligation is to properly assess all of the approval 
requirements, to the standard set by Justice Flick. We have sympathy for the fact that 
the decision in One Key was not handed down until after the approval of this 
Agreement.








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39

[35] As we have mentioned, the Respondent has made further submissions 
regarding the explanation provided to the relevant employees in this case. Those 
submissions are set out above. We note that the Respondent submits and we accept 
that the employees were aware that they were covered by the Building and 
Construction General On-Site Award 2010. We also accept that some Award clauses 
and Agreement clauses were compared. We also accept that the knowledge and 
experience of employees is relevant when determining whether the employer has taken 
‘reasonable steps’. However, importantly, the Respondent concedes that “The CSM 
[Corporate Services Manager] did mention that the Award and NES formed the 
baseline and that nothing in the Agreement would be less than what they were entitled 
to under the Award or NES. And at the time the CSM believed this to be the case”. 

[36] However, it is apparent that there are in fact a number of significant reductions 
in the Award entitlements. In light of the concession, it is apparent that the explanation 
to employees was quite simply, wrong. We accept that an explanation of the terms of 
the Agreement and the effect of those terms to employees may not be perfect and may, 
depending on the circumstances, still satisfy the requirement of s.180(5) of the Act. 
However, an explanation which is clearly misleading (as in this case) cannot possibly 
meet the requirement. We note that the Commissioner did not have the benefit of the 
additional submissions and the concession.

[37] Where the Commission is provided with a statutory declaration which is at 
odds with the real position in important respects, a number of practical difficulties can 
be raised in determining an application for approval. The applicant stated in its 
application that there were no reductions on the award when in fact there were, which 
gradually became apparent during the proceedings at first instance. Such an employer 
understanding would presumably lead it to provide the same misleading explanation to 
employees, and it is now conceded by the employer that this was the case. As in this 
present matter this may well have implications in many proceedings for the question 
of whether or not there was genuine agreement within s.186(2)(a), and therefore 
whether the agreement can be approved, which the Commission must endeavour to 
examine in greater detail as the real facts become apparent.

[38] In the circumstances we conclude that the Commissioner erred in concluding 
that the requirements of s.180(5) of the Act were met. Satisfaction of the requirements 
under s.186(2)(a) is a jurisdictional prerequisite for the approval of any enterprise 
agreement. If s.180(5) is not satisfied, then the Commission cannot be satisfied of the 
requirements of s.188(a)(i). Consequently the Commission cannot attain satisfaction of 
the requirement at s.186(2)(a). For these reasons we uphold this ground of appeal.

(footnotes omitted)

[54] I agree with and, with respect, adopt the reasoning of the Full Bench in Shamrock.

[55] Most recently in One Key Workforce Pty Ltd v Construction, Forestry, Mining and 
Energy Union46 a Full Court of the Federal Court Australia provided further instruction about 

                                               
46 [2018] FCAFC 77








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what the Commission is required to consider to reach the requisite state of satisfaction that 
s.180(5) has been complied with.  It held,

“112 … the Commission was required to consider the content of the explanation and 
the terms in which it was conveyed, having regard to all the circumstances and 
needs of the employees and the nature of the changes made by the Agreement. It is true
that the Act does not expressly say that. But the question of whether an administrative 
decision-maker is required to consider a matter is not determined only by the express 
words of the Act; it may also be determined by implication from the subject-matter, 
scope and purpose of the Act: Minister for Aboriginal Affairs v Peko-
Wallsend Ltd (1986) 162 CLR 24 at 39–44 (Mason J).

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

114    The following considerations point inexorably to that conclusion.

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

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

[56] I agree with and, with respect, adopt the reasoning of the Full Court in One Key.

[57] In the present matter the relevant context is that:








[2018] FWCA 2888

41

a) Downer Blasting is a very large company or group of companies;47

b) The resources of Downer Blasting (including available mechanisms and 
available expertise to provide an explanation) were sufficient;48

c) The explanation was provided by Jarrett Goos.  He has a senior role as Group 
Employee Relations Manager. He holds a Bachelor of Commerce (Labor and 
Industrial Relations) and Bachelor of Behavioral Science (Labor and Industrial 
Relations). He is an experienced industrial relations practitioner with the skills 
and ability to explain an agreement with reference to the Modern Award; and

d) the capacity or the ability of employees to receive an explanation was not 
impacted by issues such as language, literacy, access to electronic media, hours 
of work, rosters, the locations at which work is performed, travel to and from 
remote locations or the availability of employees to receive an explanation.49

[58] In the present matter the evidence establishes that:

a) There were a number of bargaining meetings. At those meetings those in 
attendance went through the Agreement.  No notes were taken of those 
discussions.  

b) As a result of those meetings the Agreement was amended.  It was last 
presented on 8 February 2018. That is to say, that is the only meeting that the 
Agreement (in its present form) was discussed or explained.  No notes were 
taken of the meeting.  It is not known exactly what was explained to 
employees.  Downer Blasting has had every opportunity to put on evidence 
about what was explained.

c) It seems that most of the explanation focussed on comparing the Agreement 
with the predecessor agreement.  However, the predecessor agreement is not 
the reference instrument.  It is not the instrument relevant for the BOOT.  It is 
not the instrument asked about in the F17.

d) What is known is that there was no explanation of the effect of the Agreement 
in relation to the Modern Award.  It is not mandatory that this be the case.  
However, it is to be assessed on a case by case basis.

e) Downer Blasting did not employ employees who might have special 
requirements (e.g. because they were from culturally or linguistically diverse 
backgrounds) to be considered when it came to explaining the Agreement. 
There were no impediments (e.g. rostering) to the employees/bargaining 
representatives attending the meetings.  They were not young people.

                                               
47 Transcript PN26
48 Transcript PN30
49 Transcript PN120








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42

f) Downer Blasting is a part of a group of companies.  It is part of a large group 
of employers.   It is an experienced industrial player with a long history of 
negotiating enterprise agreements. It is well resourced.

g) The Agreement contains terms that are less beneficial to employees when 
compared to the Modern Award.  I am satisfied that the following terms are 
less beneficial (or arguably so):

i. Clause 2.8 - Inclusion in the Agreement of a term that is not in the 
Award. Inclusion of casual employment.

ii. Clause 2.8 - Averaging hours for part time employment.

iii. Clause 2.9 - Requirement to give 2 weeks' notice of termination or 
forfeit 2 weeks' pay.  This is conceded by Downer Blasting.

iv. Clause 2.9 - Loss of entitlement to payment of personal leave on 
termination. This is conceded by Downer Blasting.

v. Clause 2.9 - Loss of entitlement to remain on personal leave upon 
termination. This is conceded by Downer Blasting.

vi. Clause 2.14 - Obligation to take annual leave or leave without pay 
during a shut down.

vii. Clause 2.14 - New employees not entitled to notice of a shut down.

viii. Clause 2.14 - Loss of continuity of service if stood down during a shut 
down.

ix. Clause 2.14 - Loss of entitlement to a public holiday that falls during a 
shut down.

x. Clause 3.3 - No definition of night shift for shift allowance purposes.  
Although this could have been addressed in an undertaking.

xi. Clause 3.3 - No entitlement to an afternoon shift allowance.  Although 
this could have been addressed in an undertaking.

xii. Clause 3.3 - No payment of shift penalty for 6 and 7-day shift workers 
performing overtime during an afternoon or night shift.  Although this 
could have been addressed in an undertaking.

xiii. Clause 3.3 - No penalty payment when a day worker is temporarily 
moved from day work to shift work.

xiv. Clause 3.6 - Loss of entitlement to penalties when an employee is 
moved from one place on the roster to another place.








[2018] FWCA 2888

43

xv. Clause 4.4 - Loss of entitlement to determining start and finishing 
point.

xvi. Clause 4.5 - Loss of entitlement to award based meal breaks. 

xvii. Clause 4.6 - No defined overtime for a 6-day shift worker or 
alternatively a lower overtime rate than in the Award.  Lack of clarity 
conceded by Downer Blasting.

xviii. Clause 4.6 - No entitlement of time off instead of overtime.

xix. Clause 4.7 - A reduction in the minimum payment for a call back. 
Conceded by Downer Blasting.

xx. Clause 5.1 - Loss of protections with respect to the taking of annual 
leave.  Almost conceded by Downer Blasting who say it is “not 
significantly different”.

xxi. Clause 5.8 - Loss of entitlement to no deduction of personal leave when 
absence is less than half a shift.

xxii. Clause 5.8 - Reduction in the penalty rate when working ordinary hours 
or overtime on a public holiday.  Conceded by Downer Blasting.

h) Downer Blasting failed to identify these less beneficial terms in the F17.

i) It can be concluded that Downer Blasting failed to explain these less beneficial 
terms to employees before they voted on the Agreement.

j) The wages provided for in the Agreement for new employees are only 
marginally higher than those in the Modern Award.  They constitute a 
reduction in the wages provided for in the predecessor agreement. Although 
existing employees (those who voted on the Agreement) had their wages 
“grand-fathered”. In this context, when the benefit of the Agreement might be 
said to only marginally better than the Modern Award it becomes more 
relevant that employees understand the terms that are less beneficial than the 
Modern Award.

k) Noting all of the above, and the fact that Downer Blasting is a sophisticated 
industrial player, it would have been reasonable for it to take steps to explain to 
employees the terms of the Agreement that were less beneficial than the 
Modern Award. It did not do so.

[59] It is important to note that in finding that the above terms were less beneficial I make 
no finding about whether, consequently, the Agreement would have failed to pass the BOOT.  
That is a different test.  I identify the less beneficial terms only in the context that they were 
not explained to employees.  That may not always be necessary were the wages are so 
significantly higher than the Modern Award that the wages “buy out” the less beneficial 
terms.  But that is not the case in the present matter.  The wages are not so significantly higher
for new employees.  Accordingly, it would have been reasonable for Downer Blasting to 








[2018] FWCA 2888

44

explain the less beneficial terms in order to ensure that the vote meant that the employees
were genuinely agreeing to the Agreement.  In the absence of such an explanation I am not 
satisfied the Agreement was genuinely agreed to.

[60] For the reasons above I have concluded that I am not satisfied that Downer Blasting 
took all reasonable steps to ensure that the terms of the Agreement and the effect of those 
terms [were] explained to the relevant employees. Consequently, Downer Blasting did not 
comply with the pre-approval step mandated by section 180(5)(a). For this reason the 
Agreement cannot be approved. The Application for approval is dismissed. An Order to that 
effect will be issued with this decision.

[61] Having decided that the Agreement cannot be approved because the mandatory pre-
approval steps were not complied with, it is not necessary for me to consider and determine 
the remainder of the objections raised by the CFMMEU.

COMMISSIONER

Appearances:

Mr J Goos for the Applicant

Mr A Bukarica for the CFMMEU

Hearing details:

26 July 2018

Printed by authority of the Commonwealth Government Printer

AE428453  PR607325


THE FAIR WORK SSION THE SEAL OF

Cases cited by this decision: