1
Fair Work Act 2009
s.185—Enterprise agreement
Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid
Cellular Plastics & Others
(AG2018/3482 and others)
JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAUNDERS MELBOURNE, 18 JANUARY 2019
Applications for approval of single-enterprise agreements – Fair Work Amendment (Repeal
of 4 Yearly Reviews and Other Measures) Act 2018 – proper construction of s.188(2).
Background
[1] The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act
2018 (the Amending Act) amended, among other things, s.188 of the Fair Work Act 2009 (the
Act) to provide a mechanism for the Fair Work Commission (the Commission) to conclude
that an enterprise agreement has been ‘genuinely agreed’, within the meaning of s.186(2)(a),
despite ‘minor procedural or technical errors’. The Amending Act received the Royal Assent
on 11 December 2018 and the amendments to s.188 commenced on 12 December 2018.
[2] Staff of the Commission undertook a review of s.185 applications for approval of
enterprise agreements that are presently before the Commission and identified a number of
examples of apparent failures to satisfy s.188(1) of the Act, to which s.188(2) may apply.
These matters reflect procedural or technical issues that are commonly identified in relation to
s.185 applications. No Member of the Commission has yet considered whether the examples
selected actually involve failures to satisfy s.188(1).
[3] In order to provide some early clarity around the operation of the new s.188(2), the
President referred these matters to this Full Bench for hearing (the Matters). This decision
only deals with this aspect of these s.185 applications; we will not determine whether the
agreements concerned are otherwise capable of approval (such as considering whether or not
the agreements pass the Better Off Overall Test). Where any of the Matters require further
consideration as to whether or not the agreement concerned is capable of being approved, it
will be referred to a single Member for decision.
[4] On 11 December 2018 we published a Statement1 which set out the relevant terms of
the Amending Act and some of the extrinsic material and grouped the Matters according to
1 [2018] FWCFB 7528
[2019] FWCFB 318
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb7528.htm
[2019] FWCFB 318
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the issues they raised. The Minister for Jobs and Industrial Relations (the Minister), the Peak
Councils including the Australian Chamber of Commerce and Industry (ACCI), the
Australian Council of Trade Unions (ACTU) and the Australian Industry Group (Ai Group)
and any other interested persons were invited to lodge written submissions on the proper
construction of s.188(2) of the Act. The parties to each of the Matters were also invited to
lodge submissions on the proper construction of s.188(2) and its application to their matter. A
hearing subsequently took place on 21 December 2018.2
[5] ACCI, ACTU and Ai Group lodged written submissions and made oral submissions at
the hearing. Meredith Roof Plumbing Pty Ltd filed written submissions in relation to matter
AG2018/6664.
[6] The Minister forwarded correspondence but did not advance a substantive submission,
nor was the Minister represented at the hearing. It is regrettable that the Minister chose not to
participate in the proceedings as the Amending Act raises some contentious construction
issues and we may have been assisted by the Minister’s submissions in respect of those issues.
[7] To assist the parties, the Statement identified some issues as to the proper construction
of proposed s.188(2) that might be raised by one or more of the Matters, as follows:
1. What constitutes a ‘minor procedural or technical error’ within the meaning of
proposed s.188(2)? Is it material whether the non-compliance with the relevant
procedural or technical requirement was unintended or deliberate or reckless?
2. In what ways might employees be ‘disadvantaged’ by a ‘minor procedural or
technical error’ for the purposes of proposed s.188(2)?
3. In what circumstances are employees ‘not likely’ to be disadvantaged by a
‘minor procedural or technical error’ for the purposes of proposed s.188(2)? In
what circumstances are employees ‘likely’ to be disadvantaged by a ‘minor
procedural or technical error’?
4. The EM at paragraph 48 suggests that in considering whether the employees
were not likely to have been disadvantaged by a procedural or technical error,
the Commission ‘could take into account, for example, the effect of the error
and circumstances of the error.’ What sort of material might the Commission
need to consider in assessing this?
5. Would considering the effect of an error and the circumstances of an error
include taking into account the likely costs and inconvenience to the employer
and the employees covered by the agreement, associated with further delaying
the approval of the agreement?
[8] This decision deals with the application of s.188(2) to the Matters. We deal first with
the proper construction of s.188(2) before turning to the Matters.
The proper construction of s.188(2)
2 Transcript, 21 December 2018
https://www.fwc.gov.au/sites/agreements-amending-act/listings-directions/211218_ag20183482andors.htm
https://www.fwc.gov.au/documents/sites/agreements-amending-act/submissions/ag2018-3482-ors-sub-mjir-211218.pdf
[2019] FWCFB 318
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[9] The starting point is to construe the words of a statute according to their ordinary
meaning having regard to their context and legislative purpose. Context includes the existing
state of the law and the mischief the legislative provisions was intended to remedy and the
legislative history.3
[10] The plurality in SZTAL v Minister for Immigration and Border Protection4 (SZTAL)
succinctly described the contemporary approach to statutory construction:
‘The starting point for the ascertainment of the meaning of a statutory provision is the text of the
statute whilst, at the same time, regard is had to its context and purpose. Context should be
regarded at this first stage and not at some later stage and it should be regarded in its widest
sense. This is not to deny the importance of the natural and ordinary meaning of a word,
namely how it is ordinarily understood in discourse, to the process of construction.
Considerations of context and purpose simply recognise that, understood in its statutory,
historical or other context, some other meaning of a word may be suggested, and so too, if its
ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.’5
(footnotes omitted)
[11] The observations of Gageler J in SZTAL are also important:
‘The task of construction begins, as it ends, with the statutory text. But the statutory text from
beginning to end is construed in context, and an understanding of context has utility “if, and in
so far as, it assists in fixing the meaning of the statutory text”.
The constructional choice presented by a statutory text read in context is sometimes between
one meaning which can be characterised as the ordinary or grammatical meaning and another
meaning which cannot be so characterised. More commonly, the choice is from “a range of
potential meanings, some of which may be less immediately obvious or more awkward than
others, but none of which is wholly ungrammatical or unnatural” , in which case the choice
“turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with
identified statutory objects or policies”.
Integral to making such a choice is discernment of statutory purpose. The unqualified
statutory instruction that, in interpreting a provision of a Commonwealth Act, “the
interpretation that would best achieve the purpose or object of the Act (whether or not that
purpose or object is expressly stated in the Act) is to be preferred to each other interpretation”
“is in that respect a particular statutory reflection of a general systemic principle” .’6 (footnotes
omitted)
[12] One of the matters which the plurality and Gagelar J highlighted in SZTAL is the
importance of a purposive approach. Such an approach is also required by s.15AA of the Acts
Interpretation Act 1901 (Cth) (AI Act). It requires that a construction that would promote the
purpose or object of the Act is to be preferred to one that would not promote that purpose or
object (noting that s.40A of the Act provides that the AI Act as in force on 25 June 2009,
applies to the Act). The purpose or object of the Act is to be taken into account even if the
meaning of a provision is clear. When the purpose or object is brought into account an
3 See Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at [59]; Peabody
Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042 at [26]-[37]
4 [2017] HCA 34 (Kiefel CJ, Nettle and Gordon JJ)
5 Ibid at [14]; also see Australian Mines and Metals Association Inc v CFMMEU [2018] FCAFC 223 at [76] – [86]
6 [2017] HCA 34 at [37]-[39]
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alternative interpretation may become apparent. If one interpretation does not promote the
object or purpose of the Act, and another does, the latter interpretation is to be preferred. Of
course, s.15AA requires one to construe the Act in the light of its purpose, not to rewrite it.7
[13] The object of the Act set out in s.3 is relevant:
‘3 Object of this Act
The object of this Act is to provide a balanced framework for cooperative and productive
workplace relations that promotes national economic prosperity and social inclusion for all
Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for
businesses, promote productivity and economic growth for Australia’s future economic
prosperity and take into account Australia’s international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and
conditions through the National Employment Standards, modern awards and national
minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages
and conditions can no longer be undermined by the making of statutory individual
employment agreements of any kind given that such agreements can never be part of a fair
workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for
flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by
recognising the right to freedom of association and the right to be represented, protecting
against unfair treatment and discrimination, providing accessible and effective procedures
to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise-level collective
bargaining underpinned by simple good faith bargaining obligations and clear rules
governing industrial action; and
(g) acknowledging the special circumstances of small and medium-sized businesses.’
[14] Further, s.578 states:
‘In performing functions or exercising powers, in relation to a matter, under a part of this Act
(including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and
eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or
7 Mills v Meeking (1990) 169 CLR 214 at [235]
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mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political
opinion, national extraction or social origin.’
[15] As stated in s.578(a), in performing functions and exercising powers under a part of
the Act (including the approval of agreements under Part 2-4 Enterprise Agreements) the
Commission must take into account the objects of the Act and any particular objects of the
relevant part. The objects of Part 2-4 are set out in s.171:
‘171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective
bargaining in good faith, particularly at the enterprise level, for enterprise
agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of
enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request
assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise
agreements are dealt with without delay.’
[16] Of course it must be borne in mind that the purpose or policy of the Act is to be
gleaned from a consideration of all of the relevant provisions of the Act.8 Section 577 is also
relevant to context; it provides:
‘577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.’
[17] While the requirement to prefer an interpretation that would best achieve the purpose
or object of the Act (whether or not that purpose or object is expressly stated) over any other
interpretation is uncontroversial; difficulties can arise in identifying the relevant purpose or
object. This is particularly so where legislation reflects Parliament’s balancing of competing
and conflicting interests or where the legislation has more than one purpose. The Act is a case
in point.
8 See Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at [579]; Bowling v General Motors
Holden’s Ltd (1980) 33 ALR 297 at [304]
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[18] The object provision in the Act (s.3, set out above at [13]) acknowledges that the
legislation reflects ‘a balanced framework’ for cooperative and productive workplace
relations that promotes national economic prosperity and social inclusion for all Australians’
(emphasis added) in the various ways specified in the section.
[19] There are multiple objects or purposes of the Act some of which are reflected in s.3. It
is apparent that there is no single Parliamentary intention underlying the enactment of the Act;
rather the underlying purposes and objects reflect a diverse range of intentions. In
circumstances where there is more than a single legislative object or purpose it can be difficult
to identify which is apposite to the construction of a particular provision. As Gleeson CJ
observed in Carr v Western Australia:9
‘Another general consideration relevant to statutory construction is one to which I referred in
Nicholls v The Queen. It was also discussed, in relation to a similar legislative scheme, in Kelly
v The Queen . It concerns the matter of purposive construction. In the interpretation of a
provision of an Act, a construction that would promote the purpose or object underlying the
Act is to be preferred to a construction that would not promote that purpose or object. As to
federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901
(Cth). It is also required by corresponding State legislation, including, so far as presently
relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation,
however, may be of little assistance where a statutory provision strikes a balance between
competing interests, and the problem of interpretation is that there is uncertainty as to how far
the provision goes in seeking to achieve the underlying purpose or object of the Act.
Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt
about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to
solve the problem. For a court to construe the legislation as though it pursued the purpose to
the fullest possible extent may be contrary to the manifest intention of the legislation and a
purported exercise of judicial power for a legislative purpose.’10 [Footnotes omitted]
[20] We now turn to the relevant statutory provisions.
[21] Section 186(1) requires the Commission to approve an enterprise agreement if the
requirements in ss.186 and 187 are met. Relevantly for present purposes, the approval
requirements include s.186(2)(a):
‘(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 …’
[22] Section 188(1) provides that an enterprise agreement has been genuinely agreed to by
the employees covered by the agreement, for the purpose of s.186(2)(a) if the Commission is
satisfied of the matters set out in s.188(1)(a)–(c) as follows:
‘188 When employees have genuinely agreed to an enterprise agreement
(1) An enterprise agreement has been genuinely agreed to by the employees covered by the
agreement if the FWC is satisfied that:
9 (2007) 232 CLR 138
10 Ibid at [5]
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(a) the employer, or each of the employers, covered by the agreement complied
with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to
approve an enterprise agreement until 21 days after the last notice of
employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1)
or (2) applies (those subsections deal with the making of different kinds of
enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not
been genuinely agreed to by the employees.’
[23] In summary, the matters in ss.188(1)(a)–(c) are respectively that:
(a) the employer, or each of the employers, covered by the agreement
complied with the following provisions in relation to the agreement:
s.180(2): the employer must take all reasonable steps to ensure that
during the ‘access period’11 the ‘relevant employees’12 are given a copy
of the text of the agreement and any material incorporated by reference
into it, or have access throughout the access period to a copy of those
materials;
s.180(3): the employer must take all reasonable steps to notify the
relevant employees by the start of the access period of the time and
place at which the vote will occur and of the voting method;
s.180(5): the employer must take all reasonable steps to ensure that the
terms of the agreement and their effect are explained to the relevant
employees in an appropriate manner taking into account the employees’
particular circumstances and needs; and
s.181(2): that the employer not request employees to approve the
agreement by voting on it until at least 21 days after the day on which
the last ‘notice of employee representational rights’ (NERR) under
s.173(1) is given; and
(b) the agreement was made by an employee vote in accordance with
ss.182(1) or (2); and
11 Defined in s.180(4) as the 7-day period ending immediately before the start of the voting process
12 Defined in s.180(2) as: ‘during the access period … the employees … employed at the time who will be covered by the
agreement’
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(c) there are no other reasonable grounds for believing that the agreement
has not been genuinely agreed to by the employees.
[24] The Full Bench majority in Ostwald Bros Pty Ltd v CFMEU13 (Ostwald) described the
operation of s.188(1) (then numbered s.188) in broad terms as follows:
‘[78] … “Genuinely agreed”, in s.188 is expressed in terms of satisfaction that particular
bargaining provisions within the Act have been complied with (ss.188(a) and (b)) and
satisfaction of a more general criterion in s.188(c), rather than in terms of a general
consideration of whether in the circumstances of a particular agreement a member is satisfied
that the agreement has been genuinely agreed to by the employees.
[79] As the Full Bench in Galintel noted “Section 188 establishes a set of requirements,
each of which must be satisfied if the necessary finding is to be made under s186(2)(a)”.
[80] Section 188 of the Act does not provide a wide general discretion for determining
whether employees have genuinely agreed to an enterprise agreement focussed at the point of
approval. Rather it requires specific actions to have been undertaken (in ss.188(a) and (b) at
specified times in advance of approval), with s.188(c) then requiring satisfaction that there are
no other reasonable grounds for believing that the agreement has not been genuinely agreed to
by the employees. Section 188(c) of the Act, although itself a broad discretionary
consideration, is an additional matter about which [the Commission] needs to be satisfied and
relates to grounds other than those arising in relation to the ss.188(a) and (b) matters.
[81] Section 188 of the Act is different, in that respect, from some previous statutory
provisions concerning genuine agreement or genuine approval of agreements which were cast
in general terms. For example, s.170LT (Certifying an Agreement) of the Workplace Relations
Act 1996’.14 [Citations omitted]
[25] The Amending Act adds a new s.188(2) which provides a means for finding that an
agreement has been genuinely agreed to despite minor procedural or technical errors as
follows:
‘(2) An enterprise agreement has also been genuinely agreed to by the employees covered by
the agreement if the FWC is satisfied that:
(a) the agreement would have been genuinely agreed to within the meaning of
subsection (1) but for minor procedural or technical errors made in relation to the
requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173
and 174 relating to a notice of employee representational rights; and
(b) the employees covered by the agreement were not likely to have been
disadvantaged by the errors, in relation to the requirements mentioned in paragraph
(1)(a) or (b), or the requirements of sections 173 and 174.’
[26] Subsection 188(2) applies in relation to an application under s.185 for approval of an
enterprise agreement, where the application is made:
13 [2012] FWAFB 9512
14 [2012] FWAFB 9512 [78]–[81]
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(i) on or after 12 December 2018; or
(ii) before 12 December 2018 if any of the following circumstances apply:
the Commission had not decided the application on or before 12 December 2018;
or
the Commission had decided the application before 12 December 2018 and an
application to appeal had been made but the Commission had not made a final
decision on the appeal before 12 December 2018; or
the Commission had decided the application within 21 days before 12 December
2018 and immediately before 12 December 2018 no application to appeal had
been made, but an application to appeal was made within 21 days of the
decision.15
[27] We now turn to the background of the insertion of s.188(2) and other extrinsic
materials including the explanatory memorandum, the revised explanatory memorandum and
two supplementary explanatory memorandums.16
[28] The enactment of s.188(2) had its genesis in Recommendation 20.1 of the Productivity
Commission’s Workplace Relations Framework, Final Report which states:
‘The Australian Government should amend the Fair Work Act 2009 (Cth) to:
allow the Fair Work Commission wider discretion to overlook minor procedural or
technical errors when approving an agreement, as long as it is satisfied that the employees
were not likely to have been placed at a disadvantage because of an unmet procedural
requirement.
extend the scope of this discretion to include minor errors or defects relating to the
issuing or content of a notice of employee representational rights.’17
[29] The Productivity Commission made the following comments in relation to
Recommendation 20.1:
‘In cases where an undertaking is not feasible or would cause undue inconvenience, the FWC
should have the discretion to determine whether a procedural defect did not materially affect
the bargaining or approval process and therefore does not require an undertaking to remedy it.
The key test for exercising discretion could be that the FWC is satisfied that employees were
not likely to have been placed at a disadvantage during bargaining or the pre-approval process
because of the unmet procedural requirement. The FWC should also have regard to the likely
costs to the parties — including the employees — associated with further delaying approval of
the agreement. To help maintain consistency and transparency for all parties, the FWC could
develop and publish guidelines about how members should exercise their discretion with
respect to procedural defects.
15 Amending Act Schedule 4 cl.28
16 Supplementary explanatory memorandum and supplementary explanatory memorandum
17 Productivity Commission, Workplace Relations Framework, Final Report, Inquiry Report No. 76, 30 November 2015,
Volume 1, p.58
https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22legislation/ems/r5822_ems_2004edfd-32f9-484c-9722-e679509dca77%22
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The goal of this proposed change is to resolve procedural inflexibilities and prevent minor
procedural errors or defects in the bargaining process derailing an otherwise fundamentally
sound agreement at the approval stage. Numerous inquiry participants, primarily employers
and employer groups, were supportive of such a change. The capacity for the FWC to
overlook minor procedural defects is also not without precedent — s. 461 of the FW Act
currently allows a protected action ballot order (chapter 27) to be valid even if where there is a
‘technical breach’ of the provisions.
Allowing the FWC the discretion to overlook a procedural defect without an undertaking
should not be seen as an avenue to allow some employers to skirt procedural requirements in
order to gain an edge during bargaining. Employers generally do not have an incentive to
expose themselves to the FWC over procedural issues. It is also unlikely that a deliberate
procedural error by an employer would both lead to a meaningful advantage in bargaining and
yet also escape the scrutiny of the FWC.’18
[30] It is apparent from the extrinsic material that s.188(2) was enacted in response to the
Productivity Commission’s Recommendation 20.1. The Revised Explanatory Memorandum
states the following in its overview of the amendments to s.188:
‘The PC Report recommended that the FWC should be able to overlook minor procedural or
technical errors when approving an enterprise agreement, if it is satisfied that employees were
not likely to have been disadvantaged by those errors. The PC Report also recommended that
this be extended to the requirements relating to the Notice given under subsection 173(1)
(Recommendation 20.1).19
[31] The Revised Explanatory Memorandum states that s.188(2) ‘responds to PC Report
Recommendation 20.1.20
[32] In the Bill initially introduced into Parliament, the wording of the proposed paragraph
188(2)(b) differed from its final form. Section 188(2) as originally drafted was as follows:
‘(2) An enterprise agreement has also been genuinely agreed to by the employees covered by
the agreement if the FWC is satisfied that:
(a) the agreement would have been genuinely agreed to within the meaning of
subsection (1) but for minor procedural or technical errors made in relation to the
requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173
and 174 relating to a notice of employee representational rights; and
(b) the employees covered by the agreement were not likely to have been disadvantaged
by the errors.’
[33] The words in s.188(2)(b) after ‘the errors’ (namely: ‘in relation to the requirements
mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174’) were
introduced by Government amendment. We return to the significance of the additional words
later.
18 Productivity Commission, Workplace Relations Framework, Final Report, Inquiry Report No. 76, 30 November 2015,
Volume 2, pp. 665-666
19 Revised Explanatory Memorandum at [40]
20 Ibid at [49]
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[34] We now turn to the text of s.188.
[35] We note at the outset that ss.188(1) and (2) are to be approached sequentially,21 that is
to say the first question is whether the Commission is satisfied as to the matters at
s.188(1)(a)–(c). If the Commission is so satisfied then the agreement has been genuinely
agreed, and there is no need to consider s.188(2). The sequential nature of the approach to be
taken is evident from the numbering of the subsections and the use of the expression ‘has also
been’ in the prefatory words of s.188(2) and the expression ‘would have been … but for’ in
s.188(2)(a), which make it clear that s.188(2) provides an alternate pathway to that in
s.188(1).
[36] It follows that s.188(2) is confined in its terms to circumstances where the
Commission is not satisfied that an agreement has been genuinely agreed to within the
meaning of s.188(1), as a result of ‘errors made in relation to the requirements mentioned in
paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of
employee representational rights’. There is no express reference in s.188(1) to ss.173 and 174;
rather, Commission authorities establish that strict compliance with the NERR timing and
form and content requirements in ss.173 and 174 is necessary in order to meet the
requirements ‘mentioned in paragraph (1)(a) and (b)’ of s.188(1).22
[37] The important point for present purposes is that s.188(2) is engaged only where the
Commission would have been satisfied that an agreement was ‘genuinely agreed’ to within
the meaning of s.188(1) ‘but for’ errors made in relation to the ‘particular bargaining
provisions’ mentioned in paragraphs (1)(a) or (b) (or ss.173 and 174). Section 188(2) does not
extend to circumstances where the Commission is not satisfied that an agreement was
genuinely agreed to in a more general sense, as might arise in considering s.188(1)(c).
[38] The reference to the ‘employees covered by the agreement’ in ss.188(1) and (2), is a
reference to those employees employed and covered by the agreement at the time of the
request to vote under s.181.23
[39] We would also observe that ss.188(1) and (2) both provide that an enterprise
agreement has been genuinely agreed to if the Commission is satisfied as to certain matters
(i.e. those in ss.188(1)(a) to (c) and ss.188(2)(a) and (b) respectively).
[40] There was some debate before us as to whether s.188(2), and the use of the expression
‘if the Commission is satisfied’ (emphasis added) involves the exercise of a discretion. As the
High Court observed in Coal and Allied Operations Pty Ltd v AIRC:24
‘“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms,
it refers to a decision-making process in which “no one [consideration] and no combination of
21 See Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471 at 474-475 per Priestley JA
22 See, for example, Peabody Moorvale Pty Ltd v CFMEU [2014] FWCFB 2042, Uniline Australia Limited [2016] FWCFB
4969 and AMWU v Broadspectrum (Australia) Pty Ltd [2018] FWCFB 6556. Also see National Tertiary Education
Industry Union v Swinburne University of Technology [2015] FCAFC 98 at [22]-[24] per Jessup J
23 Uniline Australia Limited [2016] FWCFB 4969 at [100]
24 (2000) 174 ALR 585
[2019] FWCFB 318
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[considerations] is necessarily determinative of the result”. Rather, the decision-maker is
allowed some latitude as to the choice of the decision to be made. The latitude may be
considerable as, for example, where the relevant considerations are confined only by the
subject matter and object of the legislation which confers the discretion.’25 [Footnotes omitted]
[41] It seems to us that the latitude as to the choice of the decision to be made under
s.188(2) is quite narrow in that the decision maker is required to conclude that the agreement
was genuinely agreed to if he or she forms a particular opinion or value judgment. Assessing
the genuineness of agreement under ss.188(1) and (2) involves an evaluative assessment. As
the Full Bench observed in The Maritime Union of Australia v MMA Offshore Logistics Pty
Ltd t/a MMA Offshore Logistics:26
‘Satisfaction as to the assessment of the genuineness of agreement under s.186(2)(a) and s.188
involves an evaluative assessment akin to the exercise of a discretion.’27
[42] We now turn to s.188(2)(a):
‘(2) An enterprise agreement has also been genuinely agreed to by the employees covered by
the agreement if the FWC is satisfied that:
(a) the agreement would have been genuinely agreed to within the meaning of subsection
(1) but for minor procedural or technical errors made in relation to the requirements
mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174
relating to a notice of employee representational rights; and’
[43] In order for an agreement to have been genuinely agreed to under s.188(2) the
Commission must be satisfied as to the matters in paragraphs 188(2)(a) and (b). The matters
in paragraphs 188(2)(a) and (b) are cumulative requirements (so much is clear from the use of
the conjunctive ‘and’). The Commission must be satisfied as to both matters before it can be
said that the agreement has been genuinely agreed.
[44] Two other aspects of s.188(2)(a) warrant comment, the first concerns the ‘scope’ of
s.188(2).
[45] All of the parties before us accepted that s.188(2) does not apply to all procedural or
technical requirements with which an employer must comply when bargaining for an
enterprise agreement. The ‘minor procedural or technical errors’ referred to in s.188(2)(a)
must be errors ‘made in relation to the requirements mentioned in paragraph (1)(a) or (b), or
the requirements of sections 173 and 174 relating to a notice of employee representational
rights’ (emphasis added).
[46] The expression ‘in relation to’ is one ‘of broad import’.28 As McHugh J said O’Grady
v Northern Queensland Co Ltd, the phrase:
‘requires no more than a relationship, whether direct or indirect, between two subject matters’29
25Ibid at [19] per Gleeson CJ, Gaudron and Hayne JJ
26 [2017] FWCFB 660
27 Ibid at [86]
28 O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ
[2019] FWCFB 318
13
[47] Section 173 of the Act sets out the requirements for giving the NERR to employees:
‘173 Notice of employee representational rights
Employer to notify each employee of representational rights
(1) An employer that will be covered by a proposed enterprise agreement that is not a
greenfields agreement must take all reasonable steps to give notice of the right to be
represented by a bargaining representative to each employee who:
(a) will be covered by the agreement; and
(b) is employed at the notification time for the agreement.
Note: For the content of the notice, see section 174.
Notification time
(2) The notification time for a proposed enterprise agreement is the time when:
(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or
(b) a majority support determination in relation to the agreement comes into
operation; or
(c) a scope order in relation to the agreement comes into operation; or
(d) a low-paid authorisation in relation to the agreement that specifies the
employer comes into operation.
Note: The employer cannot request employees to approve the agreement under section 181 until 21
days after the last notice is given (see subsection 181(2)).
When notice must be given
(3) The employer must give the notice as soon as practicable, and not later than 14 days,
after the notification time for the agreement.
Notice need not be given in certain circumstances
(4) An employer is not required to give a notice to an employee under subsection (1) in
relation to a proposed enterprise agreement if the employer has already given the
employee a notice under that subsection within a reasonable period before the
notification time for the agreement.
How notices are given
(5) The regulations may prescribe how notices under subsection (1) may be given.’
29 Ibid at 376. Also see Nordland Papier AG v Anti-Dumping Authority [1999] FCA 10 at [25] per Lehane J
[2019] FWCFB 318
14
[48] Section 174 of the Act sets out the form and content requirements for the NERR:
‘174 Content and form of notice of employee representational rights
Application of this section
(1) This section applies if an employer that will be covered by a proposed enterprise
agreement is required to give a notice under subsection 173(1) to an employee.
Notice requirements
(1A) The notice must:
(a) contain the content prescribed by the regulations; and
(b) not contain any other content; and
(c) be in the form prescribed by the regulations.
(1B) When prescribing the content of the notice for the purposes of paragraph (1A)(a), the
regulations must ensure that the notice complies with this section.
Content of notice—employee may appoint a bargaining representative
(2) The notice must specify that the employee may appoint a bargaining representative to
represent the employee:
(a) in bargaining for the agreement; and
(b) in a matter before the FWC that relates to bargaining for the agreement.
Content of notice—default bargaining representative
(3) If subsection (4) does not apply, the notice must explain that:
(a) if the employee is a member of an employee organisation that is entitled to
represent the industrial interests of the employee in relation to work that will
be performed under the agreement; and
(b) the employee does not appoint another person as his or her bargaining
representative for the agreement;
the organisation will be the bargaining representative of the employee.
Content of notice—bargaining representative if a low-paid authorisation is in operation
(4) If a low-paid authorisation in relation to the agreement that specifies the employer is
in operation, the notice must explain the effect of paragraph 176(1)(b) and
subsection 176(2) (which deal with bargaining representatives for such agreements).
Content of notice—copy of instrument of appointment to be given
[2019] FWCFB 318
15
(5) The notice must explain the effect of paragraph 178(2)(a) (which deals with giving a
copy of an instrument of appointment of a bargaining representative to an employee’s
employer).’
[49] The prescribed NERR is at Schedule 2.1 to the Fair Work Regulations 2009.30 A copy
of the NERR is set out at Attachment A.
[50] The prescribed text of the NERR was amended with effect from 3 April 2017 by the
Fair Work Amendment (Notice of Employee Representational Rights) Regulations 2017.
These amendments corrected a reference to a section of the Act and replaced the final
paragraph (headed ‘Questions’) with a new paragraph that omitted the Fair Work
Ombudsman’s website address and avoided the employer having to insert the Commission’s
Infoline phone number.
[51] It was intended that simplification of the final paragraph of the NERR would reduce
the incidence of employer errors with the content of the NERR.31 We return to this later when
considering the application of s.188(2) to the Matters.
[52] The table below (extracted from ACCI’s written submissions at [53]) sets out the
procedural or technical requirements to which s.188(2) applies. No party took issue with the
contents of the table.
Table 1:
Scope of s.188(2)
Section Procedural or Technical Requirement
188(1)(a)
Comply with subsection 180(2) - take all reasonable steps to ensure that relevant
employees are given the written text of the agreement and any materials incorporated
by reference during the access period or that the relevant employees are given access
to these materials throughout the access period
Comply with subsection 180(3) - take all reasonable steps to notify the relevant
employees of the time, place and method of vote, prior to the start of the access
period
Comply with subsection 180(5)(a) - take all reasonable steps to ensure the terms of
the agreement and their effects are explained to the relevant employees
Comply with subsection 180(5)(b) - take all reasonable steps to ensure the
explanation is provided in an appropriate manner taking into account the
particular circumstances and needs of the relevant employees
Comply with subsection 181 (2) - the employer must not request that the
employees approve a proposed agreement until at least 21 days after the day on
which the last NERR is given
188(1)(b) The agreement must be made in accordance with subsection 182(1) or (2)
173(1)
Take all reasonable steps to give a NERR to each employee who will be
covered by the agreement and is employed at the notification time for the
agreement
173(3)
Issue the NERR as soon as practicable, no later than 14 days after the
notification time
30 Regulation 2.05 of the Fair Work Regulations 2009
31 Explanatory Statement for the Fair Work Amendment (Notice of Employee Representational Rights) Regulations 2017, p.1
[2019] FWCFB 318
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Section Procedural or Technical Requirement
174(1A)(a) The NERR must contain the content prescribed by the regulations
174(1A)(b) The NERR must not contain any other content
174(1A)(c) The NERR must be in the form prescribed by the regulations
[53] The second aspect of s.188(2)(a) to be considered is the meaning of the expression
‘minor procedural or technical errors’.
[54] As a matter of grammatical construction, and from the context, it is plain that the
adjective ‘minor’ qualifies both ‘procedural’ errors and ‘technical’ errors, such that one reads
the expression as ‘minor procedural errors or minor technical errors’.32 There is certainly
nothing in the extrinsic materials or in the context to suggest that the qualifying word ‘minor’
only applies to procedural errors, and does not qualify the expression ‘technical errors’. Nor
does any logical basis for such a distinction present itself. Such a reading is also consistent
with the context of s.188(2). It operates as an exception to requirements under s.188(1) that
‘have a protective purpose’33 and reflects the object of Part 2-4 of the Act ‘to provide a
simple, flexible and fair’ collective bargaining framework.34
[55] We agree with ACCI’s submission that the word ‘minor’ is a limitation upon the type
of errors contemplated by s.188(2)(a) and that what constitutes a ‘minor’ error calls for an
evaluative judgment having regard to the underlying purpose of the relevant procedural or
technical requirement which has not been complied with and the relevant circumstances.
[56] A failure to comply with a procedural requirement will constitute a ‘procedural error’
within the meaning of s.188(2)(a). A procedural requirement is one that requires an employer
to follow a particular process or course of action e.g. providing employees with a NERR as
soon as practicable, and not later than 14 days after the notification time (s.173(3)), or
ensuring there are at least 7 clear days between notifying employees of the voting process and
the commencement of that process (s.180(3)).35
[57] A failure to comply with a technical requirement will constitute a ‘technical error’
within the meaning of s.188(2)(a). A technical requirement includes an obligation to comply
strictly with the form and content of an instrument, such as the NERR.
[58] A single error may have both procedural and technical components.
[59] The ACTU submits that the Amending Act is ‘relatively confined’ and that ‘what
constitutes an error which is ‘minor’ or ‘technical’ in nature (as referred to in s.188(2)(a)) is
necessarily coloured by the law as it stands in relation to when an agreement has been
‘genuinely agreed to’.36 The ACTU goes on to submit that ‘the current state of the law tends
to suggest that non-compliance with section 174(1A) is not minor’ and refers to the Full
Bench decision in Peabody Moorvale v CFMEU.37
32 See Richardson v Austin (1911) 12 CLR 463; RPA Properties Pty Ltd v Robina Syndicate Pty Ltd [2009] QSC 339
33 One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [154]
34 Section 171(a) of the Act
35 CFMMEU and Ors v CBI Constructors Pty Ltd [2018] FWCFB 2732 at [42]
36 ACTU submissions at [3] and [5]
37 ACTU submissions at [18]-[22]
[2019] FWCFB 318
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[60] This submission is unpersuasive. The previous decisions relied on by the ACTU were
made in the statutory context at that time; they remain relevant to the application of s.188(1),
but do not inform the meaning of ‘minor procedural or technical errors’ in s.188(2). As
Bathurst CJ said in R v Seller38:
‘Where a statute is amended both the act which is amended and the amending act must be read
together as a combined statement of the will of the legislature as a consequence of which the
effect of the amending act may be to alter the meaning which the remaining provisions of the
amended act bore before the making of the amendments.’
[61] The ACTU also advanced a submission which, in substance, would require an
additional step to be taken in the decision-making process before s.188(2) could arise for
consideration, namely a finding that the agreement has actually been ‘made’ in accordance
with s.182. The ACTU’s submission was as follows:
‘23. Further, it is important to appreciate that an application for the approval of an agreement is
incapable of being entertained by the Commission unless an enterprise agreement has been
made - so much is evident from subsections (1), (3) and (4) of section 185. The recent Full
Bench decision in AMWU v. Broadspectrum is authority for the proposition that a non-
greenfields enterprise agreement cannot be “made” unless each employee who will be covered
by the proposed agreement and who is employed at the notification time has been given the
Notice within 14 days of the notification time. We do not raise this point in order to
characterise errors in relation to the requirements about the giving of the Notice (e.g.
requirements 4 and 6 in the table above), but rather to highlight that the occasion for applying
the Amending Act to some such failures to comply with those requirements may never
properly arise.’ (footnotes omitted)
[62] Section 182(1) and (2) provide, in relation to non-greenfields single enterprise
agreements and multi-enterprise agreements respectively:
Single-enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each employer, that will be covered by a
proposed single-enterprise agreement that is not a greenfields agreement have been
asked to approve the agreement under subsection 181(1), the agreement is made when
a majority of those employees who cast a valid vote approve the agreement.
Multi-enterprise agreement that is not a greenfields agreement
(2) If:
(a) a proposed enterprise agreement is a multi-enterprise agreement; and
(b) the employees of each of the employers that will be covered by the agreement
have been asked to approve the agreement under subsection 181(1); and
(c) those employees have voted on whether or not to approve the agreement; and
38 [2013] NSWCCA 42; (2013) 273 FLR 155 at [100]
[2019] FWCFB 318
18
(d) a majority of the employees of at least one of those employers who cast a
valid vote have approved the agreement;
the agreement is made immediately after the end of the voting process referred to in
subsection 181(1).
[63] The requirement for an agreement to have been ‘made’ in accordance with s 182 arises
at two subsequent steps in the enterprise agreement approval process. First, under s 185(1)
and (3) with respect to non-greenfields agreements, an application for approval of such an
agreement must be made by a bargaining representative within 14 days of it being ‘made’.
Accordingly, the requirement for the agreement to have been ‘made’ in accordance with s 182
is a pre-requisite to the operation of the requirement to lodge an application for the
agreement’s approval. Second, s.188(1)(b), which we have earlier set out, includes as an
element of the ‘genuinely agreed’ requirement that the agreement was ‘made’ in accordance
with whichever of s 182(1) or (2) applies. Thus an agreement which has not ‘made’ in
accordance with the applicable provision has not been ‘genuinely agreed’.
[64] In the decision in AMWU v Broadspectrum (Australia) Pty Ltd39 it was decided by
majority that in order for an agreement to have been ‘made’ in accordance with s 182(1), the
relevant employees must have been requested by the employer to approve the agreement in
accordance with s 181(1). The capacity to make such a request, it was held, operated subject
to s 181(2), which provides that such a request must not be made until at least 21 days after
the day on which the last NERR under s 173(1) is given. Applying the earlier Full Bench
decisions in Peabody Moorvale Pty Ltd v CFMEU,40 Uniline Australia Limited41and MUA v
MMA Offshore Logistics42, this meant in turn, it was held, that where a NERR was issued
which did not comply with the content and form requirements of s 174 and/or the temporal
requirement in s 173(3), the condition precedent to a valid request for a vote under s 181(1)
was not satisfied and, accordingly, an agreement could not have been ‘made’ in accordance
with s 182(1).43
[65] We would also observe that under s.180(1), satisfaction with the requirements of s 180
is also stated to be a prerequisite to a request by an employer for relevant employees to
approve an agreement under s 181(1). Applying the reasoning in Broadspectrum, it would
follow that any non-compliance with s.180(2), (3) or (5) would have the result that an
agreement was not ‘made’ under s 182(1) or (2) (as applicable).
[66] As was recognised by ACCI in its oral submissions,44 this gives rise to a potential
difficulty in the construction of the amended s.188. Section 188(2) directly addresses minor
procedural and technical errors in respect of the pre-approval steps in s.180(2), (3) and (5) and
the NERR requirements of ss.173 and 174, but arguably does not directly address the
circumstance whereby any such error has the consequence that the agreement has not been
‘made’ and thus that the s.188(1)(b) element of the ‘genuinely agreed’ requirement cannot be
39 [2018] FWCFB 6556
40 [2014] FWCFB 2042
41 [2016] FWCFB 4969
42 [2017] FWCFB 660
43 [2018] FWCFB 6556 at [19]-[24]
44 Transcript 21 December 2018, PNs 48-52
[2019] FWCFB 318
19
satisfied. It would seem to be the logical consequence of the ACTU’s submission, although
not expressly stated, that if it was determined as a preliminary step that an agreement was not
‘made’ in accordance with s.182, so that s.188(1)(b) was not satisfied, the application of
s.188(2) would not arise for consideration notwithstanding that this was the result of the type
of minor procedural or technical error to which s.188(2) is directed.
[67] This cannot be accepted as the correct approach. The purpose of s.188(2) which is
plainly evident from its text is to allow for the approval in specified circumstances of
agreements notwithstanding the occurrence of any minor procedural or technical defects of
the identified type. The provision would be rendered nugatory if the provision was never
utilised because of a prior determination that no agreement had been ‘made’ in accordance
with s 182 as a result of the occurrence of such a defect. Such an outcome is avoided once
attention is focused on two aspects of the drafting of s.188(2):
(1) Section 188(2) applies where the agreement would, but for the specified minor
procedural or technical defects, have been genuinely agreed to ‘within the meaning of
subsection (1)’ (italics added). Thus the new provision is concerned with ‘saving’,
subject to the condition in s.188(2)(b), failures to satisfy any element of the ‘genuinely
agreed’ requirement in s.188(1) caused by the specified types of minor procedural or
technical defects. This necessarily includes the requirement in s.188(1)(b) that the
agreement was ‘made’ in accordance with s.182(1) or (2), as applicable.
(2) As earlier observed, s.188(2) operates with respect to minor procedural or technical
defects made ‘in relation to’ the requirements mentioned in s,188(1)(a) or (b) or the
requirements of ss.173 and 174. The broad scope of this expression captures defects
which have a direct or indirect relationship with these requirements. Thus, where an
agreement has not been ‘made’ in accordance with s 182(1) or (2) because of a failure
to comply with the requirements of ss.173 or 174 or s.180(2), (3) or (5), that may be a
defect ‘in relation to’ those requirements which is capable of consideration under
s.188(2).
[68] Accordingly it is not correct that a finding must first be made that the relevant
agreement has been ‘made’ in accordance with s.182(1) or (2) before any consideration can be
given to the application of s.188(2). That is because s.188(2), properly construed,
contemplates that agreements which have not been ‘made’ may nonetheless be approved if
the specified conditions in the new provision are satisfied.
[69] The ACTU also contended that in circumstances where the relevant requirement was
that the employer ‘take all reasonable steps’ to ensure something is done (eg s.180(3)):
‘The only species of error which is capable of occurring in conjunction with the taking of
reasonable steps is an unintentional error, such as an accident or mistake. A deliberate or
reckless failure to take reasonable steps is not such an error … the Commission must be
satisfied that the error was accidental or not intended.’45
[70] The Macquarie Dictionary online defines ‘error’ as follows:
1. deviation from accuracy or correctness; a mistake, as in action, speech, etc.
45 ACTU submission at [16]
[2019] FWCFB 318
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2. belief in something untrue, the holding of mistaken opinions.
3. the condition of believing what is not true: in error about the date.
4. a moral offence; wrongdoing.
[71] ACCI submits that ‘error’ in the context of s.188(2) should be given its ordinary
grammatical meaning and that a person may commit an ‘error’ even if their actions were
intentional:
‘An “error” can arise through a simple mistake of action or it can arise because the person
committing the error believed something to be true that was not or otherwise did not know or
understand something to be true.
In this sense a person could commit an error even if their actions were intentional.
For instance an employer could place a NERR on company letter head because they did not
know otherwise or may have mistakenly believed that a NERR could be placed on company
letter head without any defect arising.’46
[72] We agree with ACCI. An act may be intentional, in the sense that it was a deliberate
act, but nevertheless constitutes an ‘error’ because the person was unaware of the legal
consequences of their action. For example, the employer may have used an earlier version of
the NERR. The earlier version was chosen by a deliberate act, but the employer was unaware
that the consequence of that action was non-compliance with s.174(1A). This may be
distinguished from the circumstances where the employer embarks on a course of deliberate
non-compliance, as conceded by ACCI:
‘Obviously this extent of conscious action has its limits. It is difficult to characterise an error to
include a situation where the party held true knowledge and consciously decided to adopt a
course contrary to this; “I know a NERR cannot go on company letter head but I did it
anyway” seems unlikely to qualify as an error adopting the ordinary grammatical meaning.
…
“I know a NERR cannot go on company letter head but I did it anyway” is unlikely to fall
within the essential character of an error given the true knowledge held and the deliberate
action not to adopt a course of action consistent with this true knowledge. Rather than an error
this is a course of action best described as a conscious decision not to comply.’47
[73] Accordingly a proper distinction is to be made between an intentional act which
unintentionally results in non-compliance with the procedural and/or technical requirements
for the making of an enterprise agreement and which may depending on the circumstances be
capable of characterisation as an error, and intentional non-compliance with those
requirements, which will not constitute an error for the purpose of s.188(2). On the basis of
the limited argument before us we do not propose to express a view on the question of
whether a ‘reckless’ act may constitute an ‘error’ within the meaning of s.188(2). That issue is
46 ACCI submission at [27]-[29]
47 ACCI submission at [31] and [34]
[2019] FWCFB 318
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best determined in the context of a particular case in which the factual circumstances raise the
issue for determination.
[74] As mentioned earlier, the determination of whether an error constitutes a ‘minor error’
within the meaning of s.188(2) calls for an evaluative judgment having regard to the
underlying purpose of the relevant procedural or technical requirement which was not
complied with and the relevant circumstances. Table 2 below (extracted from ACCI’s written
submission at [61]) examines each of the procedural or technical requirements, considers the
underlying purpose of these requirements and outlines some ways in which employees might
be disadvantaged by a minor technical or procedural error.
Table 2:
Procedural or technical requirements covered by s. 188(2) and potential ways in which
employees may be disadvantaged in relation to minor errors
Section Procedural or Technical
Requirement
Underlying Purpose
of requirement
How might employees be
disadvantaged?
188(1)(a) Comply with subsection 180(2)
- take all reasonable steps to
ensure that relevant employees
are given the written text of the
agreement and any materials
incorporated by reference during
the access period OR that the
relevant employees are given
access to these materials
throughout the access period
To ensure employees
have a reasonable
chance to make an
informed decision when
voting
In the circumstances
employees may not have had
effective access to materials or
insufficient time to consider
them to make an informed
decision when voting
Comply with subsection 180(3)
- take all reasonable steps to
notify the relevant employees of
the time, place and method of
vote, prior to the start of the
access period
To ensure employees are
able to attend and
participate in the voting
process (should they
choose to do so)
In the circumstances
employees might be unaware
of the voting process occurring
thus preventing them from
effectively participating in the
voting process
Comply with subsection
180(5)(a) - take all reasonable
steps to the terms of the
agreement and their effects are
explained to the relevant
employees
Ensure that employees
understand the effect of
the agreement that is to
be voted on, enabling
them to make an
informed decision
In the circumstances the steps
may have been taken such that
the employees might not be in
a position to make an informed
decision about the terms of the
agreement upon which they
are eligible to vote
Comply with subsection
180(5)(b) - take all reasonable
steps to ensure the explanation is
provided in an appropriate
manner taking into account the
particular circumstances and
needs of the relevant employees
Ensure that particular
classes of employees are
able to understand the
agreement not
withstanding any
particular circumstances
or needs
In the circumstances the
employees may have received
the explanation in a language
they do not speak thus they
may not be in a position to
make an informed decision
when voting
[2019] FWCFB 318
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Section Procedural or Technical
Requirement
Underlying Purpose
of requirement
How might employees be
disadvantaged?
Comply with subsection
181(2) - the employer must
not request that the
employees approve a
proposed agreement until at
least 21 days after the day on
which the last NERR is given
To provide the
employees with a
minimum period of
time for the
bargaining process to
occur before voting on
an agreement
In the circumstances the
period is cut short
preventing the employees
from effectively appointing
bargaining representatives
and participating in genuine
good faith bargaining
188(1)(b) The agreement must be made in
accordance with subsection
182(1) or (2)
173(1) Take all reasonable steps to
give a NERR to each
employee who will be
covered by the agreement and
is employed at the
notification time for the
agreement
To ensure that all
employees are aware
that their employer
intends bargain for an
enterprise agreement
and that they are
aware of their
representational rights
In the circumstances the
NERR may be so altered
that employees fail to
understand and exercise
their representational rights
and effectively participate in
the bargaining process
173(3) Issue the NERR as soon as
practicable, no later than 14
days after the notification
time
To ensure that the
employees understand
their representational
rights within a
reasonable period
before bargaining
commences thus
allowing them to
exercise those rights
in a timely manner
In the circumstances the
employees may have
received the NERR later
than the 14 days thus period
preventing them from
attending initial bargaining
meetings and thus
effectively influencing the
bargaining process even
after they do participate
174(1A)(a) The NERR must contain the
content prescribed by the
regulations
Ensure that employees
understand the scope
of the proposed
agreement, who is the
employer and what
their representational
rights are prior to the
actual bargaining
commencing
In the circumstances the
employer may have been
incorrectly named within a
complex group of
companies thus creating real
confusion resulting in
employees failing to
effectively participate in the
bargaining
174(1A)(b) The NERR must not contain
any other content
174(1A)(c) The NERR must be in the
form
prescribed by the regulations
[75] We would observe that Table 2 is not exhaustive of the circumstances in which a
minor procedural or technical error might disadvantage the employees covered by the
agreement.
[76] The Revised Explanatory Memorandum sets out the following examples of ‘minor
procedural or technical errors’:
[2019] FWCFB 318
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employees being informed of the time and place for voting on the proposed enterprise
agreement or the voting method that will be used for the agreement just after the start of
the access period rather than by the start of the access period (subsection 180(3));
employees being requested to approve a proposed enterprise agreement on the 21st day
after the last [NERR] was given, rather than at least 21 days after the day on which the
last [NERR] was given (subsection 181(2));
the inclusion of the employer’s company logo or letterhead on a [NERR];
the inclusion of additional materials that are stapled with a [NERR]; or
minor changes to the text of the [NERR] that had no relevant effect on the information
that was being communicated in it (for example, the [NERR] may say to contact a
particular person in the human resources department rather than ‘contact your
employer’).’48
[77] In relation to the first example given the relevant procedural requirement is set out in
s.180(3):
(3)The employer must take all reasonable steps to notify the relevant employees of the following
by the start of the access period for the agreement:
(a) the time and place at which the vote will occur;
(b) the voting method that will be used.
[78] The ‘access period’ is ‘the 7-day period ending immediately before the start of the
voting process’ (s.180(4)). It follows that the requirement to notify employees of the time and
place at which the vote will occur and the voting method is to be met at least 7 clear days
before the start of the voting process.
[79] Whether a failure to comply with s.180(3) constitutes a ‘minor error’ depends on the
extent of the non-compliance and the circumstances. Generally speaking, the lower the level
of non-compliance the more likely it is to be characterised as a ‘minor error’. So, informing
the employees of the matters in s.180(3)(a) and (b) ‘just after the start of the access period’,
say 6 days before the start of the voting process, is likely to be a ‘minor error’ in most cases;
but in some circumstances it may not be. For example, if it is the first agreement at the
enterprise, the bargaining representatives are inexperienced and the employees are
predominantly from a non-English speaking background, then it may not be a ‘minor error’.
[80] It may also be the case that what appears to be a more significant instance of non-
compliance may still be categorised as a ‘minor error’, depending on the particular
circumstances. For example, only informing the employees of the ss.180(3)(a) and (b) matters
48 Revised Explanatory Memorandum at [47]
[2019] FWCFB 318
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4 days before the voting process starts may be a ‘minor error’ where all of the relevant
employees actually voted.
[81] It is also important to distinguish between the requirements in ss.180(3)(a) and (b). It
seems to us that the need to inform employees of the time and place of the vote (i.e.
s.180(3)(a)) is more significant than informing them of the ‘voting method’ (i.e. s.180(3)(b)).
The first requirement may impact on the employees’ capacity to participate in the voting
process, the second may not.
[82] The other examples given relate to various ‘errors’ concerning the NERR
requirements. We deal with some of these issues later in the context of the particular matters
before us. We note here that there is at least one species of ‘error’ which is unlikely to be
classified as a ‘minor error’. The prescribed text of the NERR includes the following:
You have the right to appoint a bargaining representative to represent you in bargaining for the
agreement or in a matter before Fair Work Commission about bargaining for the agreement.
You can do this by notifying the person in writing that you appoint that person as your
bargaining representative. You can also appoint yourself as a bargaining representative. In
either case you must give a copy of the appointment to your employer.
If you are a member of a union that is entitled to represent your industrial interests in relation
to the work to be performed under the agreement, your union will be your bargaining
representative for the agreement unless you appoint another person as your representative or
you revoke the union’s status as your representative.
[83] If these paragraphs are omitted from the NERR provided to the employees then it is
unlikely to be construed as a ‘minor error’. These paragraphs may be characterised as core
requirements of the NERR, given the policy purpose associated with the provision of the
NERR. As the majority observed in Ostwald:
‘[62] The inclusion by the Parliament within the Act of an express requirement upon employers
to provide a notice (s.173) and the express requirements as to the content of a notice (s.174) is
consistent with the importance of bargaining representation evident in the bargaining process
established by the Act. It is also consistent with the objects of the Act and Part 2-4 of the Act
in relation to fairness and representation at work, the right to freedom of association, the right
to be represented, collective bargaining underpinned by simple good faith bargaining
obligations, a simple, flexible and fair framework that enables collective bargaining in good
faith and the facilitation of good faith bargaining…
[64] Second, s.174 evinces a clear intention that employees are fully informed as to their right
of representation - default representation or to otherwise nominate a bargaining representative
- and the means of affecting that right.
[65] Having legislated the default position in relation to bargaining representatives and the
appointment of a non-default representative and the means of obtaining such representation
(ss.176(1)(b) and (c)) and other matters in relation to bargaining representatives, including the
requirement to notify the appointment of a non-default representative (s.178), the provisions in
s.173 and s.174 of the Act were clearly intended to serve another purpose. The requirement to
give a s.173 notice to relevant employees, in the terms required by s.174, serves a distinct and
separate purpose from the giving of rights of representation through s.176. The requirement to
give the notice in the required terms is directed to the additional purpose of advising
[2019] FWCFB 318
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employees of their rights of representation and the means of exercising them in order that they
can effectively utilise their right of representation in bargaining and to enhance the process of
fair bargaining under the Act.’49
[84] We also note that, in relation to the objects of representation in bargaining, the High
Court in Aldi Foods Pty Limited v SDA50 observed in discussing ss.173 and 176 of the Act:
‘38. These provisions serve to ensure that the employees referred to in s 172(2)(a) are able
to call upon the negotiating skills and bargaining strength of employee organisations should
they so choose in order to minimise the inequalities of bargaining power that might otherwise
adversely affect the outcome of their negotiations with their employer.’51
[85] We would also observe that in the context of Matter AG2018/6614, ACCI conceded,
appropriately, that the omission from the NERR of the paragraph relating to the union’s role
in the bargaining process would be unlikely to constitute a minor error:
‘In this application the employer appears to have omitted from the NERR the paragraph relating
to the union’s role in the bargaining process.
The purpose of this paragraph is to inform the employee that, if they are a member of a union,
their union will be their bargaining representative unless they appoint another person or
revoke the union’s status. This is a core requirement of the NERR, prescribed by section
174(3) of the Act.
The purpose of the paragraph is to inform employees that, if they are members of a union,
their union will be their default bargaining representative unless they appoint someone else, or
revoke the union’s appointment.
On the surface, it would seem unlikely that the failure to include this paragraph could
ordinarily constitute a minor error.
Despite this, some further inquiry is warranted as the effect of this error may not have been
manifest and the bargaining process may have continued as it would have had the NERR been
in the correct form.
For instance it is not inconceivable that the employer had spoken with each of the eight
employees and ascertained that none were members of a union. As the Full Bench confirmed
in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union
(CFMEU)52, the purpose of the section is to “set out the default position for union members”
(emphasis added).’53
[86] We agree with the submission put.
49 [2012] FWAFB 9512
50 [2017] HCA 53
51 Ibid at [38]
52 [2014] FWCFB 2042
53 ACCI submissions at [101] – [106]
[2019] FWCFB 318
26
[87] We now turn to s.188(2)(b):
‘(2) An enterprise agreement has also been genuinely agreed to by the employees
covered by the agreement if the FWC is satisfied that:
…
(b) the employees covered by the agreement were not likely to have been
disadvantaged by the errors, in relation to the requirements mentioned in paragraph
(1)(a) or (b), or the requirements of sections 173 and 174.’ [Emphasis added]
[88] As mentioned earlier, the underlined words after the words ‘the errors’ were added
during the parliamentary process.
[89] In relation to s.188(2) in its final form the Revised Explanatory Memorandum for the
Bill states:
‘49. This item responds to PC Report recommendation 20.1 and to a submission made by
Professor Andrew Stewart to the Senate Education and Employment Legislation Committee on
the Bill. Professor Stewart, though supportive of the proposed reform, expressed concern that
the term ‘disadvantaged’ in new subsection 188(2)(b) was not sufficiently connected to
employees’ ability to genuinely agree to the terms of a proposed enterprise agreement (see
paragraph 3.8 and paragraph 1.9 of the Labor Senators’ additional comments in the Senate
Committee’s report, tabled in May 2017).’ [Emphasis added]
[90] Professor Stewart’s submission to the Senate Education and Employment Legislation
Committee had related his concern that:
‘The purpose of the various procedural requirements in ss 173–174 and 180–182 is not to
advantage the employees to be covered by a proposed agreement. It is to ensure that they
genuinely agree to the terms proposed by their employer and that (in the case of the [NERR])
they are informed of their right to be represented by a trade union or other bargaining
representative. The question of ‘advantage’ is dealt with by a separate requirement, the better
off overall test in s 189.
Suppose, for instance that a ‘technical’ error results in a group of employees being denied the
opportunity to vote on a proposed agreement. As the proposed new s 188(2) stands, the
employer might argue that the employees have not been disadvantaged because the new
agreement is, objectively, beneficial for them. If accepted, reasoning of that type could
significantly dilute the procedural safeguards established by ss 173–174 and 180–182.’54
[91] The Revised Explanatory Memorandum also states that:
‘45. … It is intended that any disadvantage likely to have been suffered by employees, for
the purpose of paragraph 188(2)(b), must relate to the employees’ ability to genuinely agree to
the terms of the proposed agreement.
54 Stewart A, submission to the Senate Education and Employment Legislation Committee inquiry into the Bill, p.2
[2019] FWCFB 318
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46. The effect of new subsection 188(2) is that an enterprise agreement will have been
genuinely agreed to despite any minor procedural or technical error if the employees (as a
whole) were not likely to have been disadvantaged by those errors.
…
48. When considering whether the employees were not likely to have been disadvantaged
by an error, in relation to the relevant procedural requirements, the [Commission] could take
into account, for example, the effect of the error and circumstances of the error.’55
[92] It will be recalled that one of the issues raised in our earlier Statement was:
‘5. Would considering the effect of an error and the circumstances of an error include
taking into account the likely costs and inconvenience to the employer and the employees
covered by the agreement, associated with further delaying the approval of the agreement?’
[93] Ai Group submitted that the answer to the question posed is ‘definitely yes’:
‘89. The answer to this question is definitely yes. These factors need to be central
considerations when the Commission is considering exercising its discretion under the New
Legislative Provision.
90. A requirement to repeat the pre-approval steps typically involves very substantial
costs and risks for an employer, including:
(a) Management time;
(b) Employee time (e.g. in voting and participating in consultation processes) that
would otherwise be spent on carrying out normal duties;
(c) The cost of obtaining professional advice;
(d) Travel costs;
(e) Postage, telecommunications and other costs; and
(f) The risk of additional claims being pursued, including the risk of workplace
disharmony and protected industrial action.
91. A requirement to repeat the pre-approval steps also often results in significant costs
for employees because wage increases are typically not passed on to employees until an
enterprise agreement is approved. Further, often wage increases are operative from a date that
relates to the timing of approval. For example, wording like the following is not uncommon in
agreements:
(a) A two per cent wage increase is payable from the first pay period to
commence on or after the approval of this agreement by the Fair Work
Commission;
55 Revised Explanatory Memorandum at [45]–[46] and [48]
[2019] FWCFB 318
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(b) A two per cent wage increase is payable 12 months after the date in paragraph
(a).’56
[94] ACCI appears to take a different view, submitting that:
‘Section 188(2)(b) requires the Commission to determine whether the employees were not
likely to be disadvantaged by the error, in relation to the specific Act requirements listed.
Section 188(2)(b) does not require the Commission to be satisfied that employees are not
disadvantaged in other regards. Nor does it require the Commission to consider whether the
employees are likely to be disadvantaged by its exercise, or non-exercise, of the discretion in
section 188(2).
…
the Commission will need to be cautious considering matters that distract it from effectively
satisfying itself as required by the Act.
Clearly the process of inquiry is for the Commission to satisfy itself that the defect:
(a) fits the relevant class; and
(b) is not likely to have disadvantaged the employees as it relates to the relevant sections of
the Act.’57
[95] The test in s.188(2)(b) is whether the employees covered by the agreement were ‘not
likely to have been disadvantaged by the errors, in relation to the requirements mentioned in
paragraph (1)(a) or (b) or the requirements of sections 173 and 174’(emphasis added). Those
requirements were outlined at [23] above. The impact of the errors is to be assessed by
reference to the objects of those requirements and not by reference to any more general sense
of ‘genuine agreement’. This reading is consistent with the reading of s.188(1) by the majority
of the Full Bench in Ostwald (see [24] above). It is also consistent with the amendments to the
provision (related at [32]–[33] above) and the Revised Explanatory Memorandum at [45]
(extracted at [91] above).
[96] Contrary to Ai Group’s submission the text of s.188(2)(b) and the extrinsic material
make it clear that the term ‘disadvantaged’ must have a connection to the employees’ ability
to genuinely agree to the terms of a proposed enterprise agreement. Consequently, the likely
costs and inconvenience to the employer and employees covered by the agreement associated
with a delay in the approval of the agreement is not relevant to the question of whether the
employees covered by the agreement ‘were not likely to be disadvantaged by the errors’.
[97] We note that s.188(2)(b) refers to ‘the employees covered by the agreement’ (emphasis
added). Ai Group advances the following submission in relation to this expression:
‘The assessment required by s.188(2)(b) is to be undertaken in relation to the relevant group of
employees as a whole. Subsection 188(2) does not turn on whether an individual employee
was (or individual employees were) likely to have been disadvantaged.’58
56 Ai Group submission at [89]-[91]
57 ACCI submission at [72]-[75]
[2019] FWCFB 318
29
[98] In advancing this submission Ai Group relies on the following passage from the
Revised Explanatory Memorandum.
46. The effect of new subsection 188(2) is that an enterprise agreement will have been
genuinely agreed to despite any minor procedural or technical error if the employees (as a
whole) were not likely to have been disadvantaged by those errors.
[99] ACCI advances the following submission in respect of this issue:
57. Section 188 uses the plural term 'employees' when determining disadvantage. Contextually
this is distinct from the notion of a singular employee. This can be contrasted with the BOOT
which requires that each individual employee be better off etc.
58. While this view may be said to sit uncomfortably with Section 23(b) of the Acts
Interpretation Act 1901 the context does make available the adoption of the view that section
188 intends to refer only to the collective rather than singular. This approach is supported by
the reference to employees "as a whole" in the Explanatory Memorandum: "The effect of new
subsection 188(2) is that an enterprise agreement will have been genuinely agreed to despite
any minor procedural or technical error if the employees (as a whole) were not likely to have
been disadvantaged by those errors" (emphasis added).
59. For something to be "likely" it must be "probably or apparently going or destined to do, be
etc." For something to be not likely it must be the opposite of this.
60. Obviously the inquiry of whether an " ... error" is not likely to lead to disadvantage in the
context of an agreement approval process will be a retrospective enquiry in the circumstances
presented.’
[100] As noted by ACCI, s.23(b) of the AI Act provides that in any Act:
‘Words in the singular number include the plural and words in the plural number include the
singular.’
[101] We would note that extrinsic materials, such as the Revised Explanatory
Memorandum, cannot displace the clear meaning of the legislative text. As the High Court
observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Alcan):59
‘This Court has stated on many occasions that the task of statutory construction must begin with
a consideration of the text itself. Historical considerations and extrinsic materials cannot be
relied on to displace the clear meaning of the text. The language which has actually been
employed in the text of legislation is the surest guide to legislative intention. The meaning of
the text may require consideration of the context, which includes the general purpose and
policy of a provision, in particular the mischief it is seeking to remedy.’
[102] Given the limited nature of the submissions dealing with this issue we do not propose
to express a view on the question of whether the assessment required by s.188(2)(b) is to be
undertaken in relation to the relevant group of employees as a whole.
58 Ai Group submission at [33](a)
59 See (2009) 239 CLR 27 at [47]
[2019] FWCFB 318
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[103] The Macquarie Dictionary online defines ‘disadvantage’ and ‘disadvantaged’ as
follows:
‘disadvantage
noun
1. absence or deprivation of advantage; any unfavourable circumstance or condition.
2. injury to interest, reputation, credit, profit, etc.; loss.
–verb (t) (disadvantaged, disadvantaging)
3. to subject to disadvantage.’
[104] In the context of the Act, the word ‘disadvantaged’ in s.188(2)(b) suggests a
deprivation which manifests in the employees covered by the agreement being prevented from
substantively exercising their rights within the bargaining regime in Part 2-4 of the Act.
[105] The test posited by s.188(2)(b) involves more than simply focussing on the word
‘disadvantaged’, in essence the test is:
‘the employees covered by the agreement were not likely to have been disadvantaged by the
errors’
[106] The meaning of the word ‘likely’ requires a consideration of the nature of the
particular legislation and the circumstances which must be considered ‘likely’. As Bowen CJ
(with whom Evatt J agreed) observed in Tillmans Butcheries Pty Ltd v Australasian Meat
Industry Employees’ Union60 (Tillmans):
‘The word ‘likely’ is one which has various shades of meaning. It may mean ‘probable’ in the
sense of ‘more probable than not’ – ‘more than a fifty per cent chance’. It may mean ‘material
risk’ as seen by a reasonable man ‘such as might happen’. It may mean ‘some possibility’ –
more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently
of such a character that it would ordinarily cause the effect specified.’61
[107] In Tillmans the Court was construing the meaning of ‘likely to have the effect of
causing substantial loss’ in s.45D(1)(a) of the Trade Practices Act 1974. Bowen CJ found it
unnecessary to reach a concluded view on the meaning of ‘likely’ in this context:
‘The circumstances to which s.45D may apply are so various, that I hesitate to place a gloss on
the section by preferring one meaning of ‘likely’ rather than another for the determination of
this particular case. It is unnecessary to do so because I have formed the view that whichever
meaning is adopted the evidence leads me to the conclusion that the likelihood of substantial
loss or damage has been established.’62
60 (1979) 27 ALR 367
61 Ibid at 375. Also see Deane J at 380
62 Ibid at 375-376
[2019] FWCFB 318
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[108] In Australian Telecommunications Commission v Krieg Enterprises Pty Ltd 63 (Krieg),
Bray CJ had to consider the meaning of the word ‘likely’ in s. 139 B of the Post and
Telegraph Act 1901–1973 (Cth). After considering relevant authorities, his Honour expressed
the view that the ordinary and natural meaning of the word ‘likely’ is synonymous with the
ordinary and natural meaning of the word ‘probable’ and both words mean that there is an
odds-on chance of the thing happening.
[109] The Macquarie Dictionary online defines ‘likely’ as follows:
‘adjective (likelier, likeliest)
1. probably or apparently going or destined (to do, be, etc.): likely to happen.
2. seeming like truth, fact, or certainty, or reasonably to be believed or expected; probable: a
likely story.
3.
a. apparently suitable: a likely spot to build on.
b. promising, as for the yielding of gold, oil, etc.: she thought it a likely area.
4. promising: a fine likely boy.
–adverb
5. probably.
–phrase Colloquial
6. a likely (looking) lad, a good-humoured and engaging young man, regarded as being full of
promise.
7. not (bloody) likely, (an expression of vehement disagreement.)’
[110] In our view the word ‘likely’ in s.188(2)(b) means ‘probable’, in the sense that there is
an odds-on chance of it happening. As Bray CJ observed in Krieg, such a meaning is
consistent with the ordinary and natural meaning of the word.
[111] We see no good reason to construe ‘likely’ in the context of s.188(2)(b) to mean ‘some
possibility’. We accept that the ‘protective purpose’ of the requirements in s.188(1)64 may be
said to favour such a construction, but regard must also be had to the objects of Part 2-4 (in
particular s.171(b)(iii)) and the fact that s.188(2) is a two part test; s.188(2)(a) provides that
the error in question must be ‘minor’.
[112] The application of the test in s.188(2)(b) involves a retrospective and counterfactual
inquiry into the circumstances pertaining to the particular case. It necessarily involves an
evaluative judgment. As ACCI submitted:
‘when the Commission is presented with this inquiry it actually has the benefit of
retrospectively looking not at what was not likely, but also what actually happened. It seems
somewhat strange the legislator didn't simply say they were not disadvantaged or will not be
63 (1976) 14 SASR 303 at 308-13
64 One Key Workforce v CFMEU [2018] FCAFC 77 at [154]
[2019] FWCFB 318
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disadvantaged in the future. It must mean something more than, and I think we agree with the
ACTU here, it must mean something more than they were not disadvantaged, because it
doesn't say that. So it's not actual disadvantage, that is they were or weren't. There is
something more to it than that, hence the proposition of not likely to have been disadvantaged
because of.’65
[113] In assessing whether employees were not likely to have been disadvantaged by an
error, it may be necessary to consider the particular circumstances of the employees
concerned at the time the error occurred and the impact of the error on the subsequent course
of bargaining (see also the Revised Explanatory Memorandum at [45], extracted at [[91]]
above). This may include a consideration of what occurred following the error, such as
considering any steps taken by the employer to address the adverse impact of the non-
compliance.
[114] Consider, for example, circumstances where through error an employer failed to give
any notice of rights to representation to a group of employees, in contravention of s.173. It is
conceivable that this error could be found not to have been likely to have disadvantaged the
employees covered by the agreement for the purposes of s.188(2)(b), if the evidence
established that the employees who did not receive a NERR were throughout the negotiations
represented by bargaining representatives of their choosing. However, there may remain a
question as to whether such an error constitutes a ‘minor procedural or technical error’ within
the meaning of s.188(2)(a).
[115] Assessing whether the employees were not likely to have been disadvantaged by the
error may also involve considering the subsequent conduct of the relevant employees. For
example, if the error relates to the notification of the relevant employee of the time, place and
method of voting prior to the start of the access period it would be relevant to consider the
number of eligible employees who actually voted on the proposed agreement compared to
those employees who were eligible to vote (the voter turnout). The purpose of the requirement
in s.180(3) is to ensure that relevant employees are able to attend and participate in the voting
process. The voter turnout is directly relevant to the purpose of the statutory requirement in
respect of which there was a minor procedural error.
[116] The extent of voter turnout will be apparent on the face of the application for approval
without the need for further investigation. In other instances the application of s.188(2) may
require further investigation.
[117] The following propositions emerge from the foregoing consideration of the proper
construction of s.188(2):
1. Subsections 188(1) and (2) are to be approached sequentially. The first
question is whether the Commission is satisfied as to the matters at s.188(1)(a)-
(c). If it is so satisfied then the agreement has been genuinely agreed to and
there is no need to consider s.188(2).
65 Transcript 21 December 2018 at [137]
https://www.fwc.gov.au/documents/sites/agreements-amending-act/listings-directions/211218_ag20183482andors.htm
[2019] FWCFB 318
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2. The reference to the ‘employees covered by the agreement’ in ss.188(1) and
(2), is a reference to those employees employed and covered by the agreement
at the time of the request to vote under s.181.
3. Subsections 188(1) and (2) both provide that an enterprise agreement has been
genuinely agreed if the Commission is satisfied as to certain matters (ie those
in s.188(1)(a) to (c) and ss.188(2)(a) and (b) respectively). The latitude as to
the choice of the decision to be made by ss.188(1) or (2) is quite narrow in that
the decision maker is required to conclude that the agreement was genuinely
made if he or she forms a particular opinion or value judgment. Assessing the
genuineness of agreement under ss.188(1) and (2) involves an evaluative
assessment.
4. Section 188(2) is confined to circumstances where the Commission is not
satisfied that an agreement has been genuinely agreed to within the meaning of
s.188(1), as a result of ‘errors made in relation to the requirements mentioned
in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating
to a notice of employee representational rights’.
5. Section 188(2) does not extend to circumstances where the Commission is not
satisfied that an agreement was genuinely agreed to in a more general sense, as
might arise from a consideration of s.188(1)(c).
6. Section 188(2) does not apply to all procedural or technical requirements with
which an employer must comply when bargaining for an enterprise agreement.
The ‘minor procedural or technical errors’ referred to in s.188(2)(a) must be
errors ‘made in relation to the requirements mentioned in paragraph (1)(a) or
(b), or the requirements of sections 173 and 174 relating to a notice of
employee representational rights’ (emphasis added).
7. Table 1 at [52] above sets out the procedural or technical requirements to
which s.188(2) applies.
Section 188(2)(a): ‘minor procedural or technical errors’
1. The adjective ‘minor’ qualifies both ‘procedural’ errors and ‘technical’ errors,
such that the expression reads ‘minor procedural errors or minor technical
errors’. The word ‘minor’ is a limitation upon the type of errors contemplated
by s.188(2)(a).
2. A failure to comply with a procedural requirement will constitute a ‘procedural
error’ within the meaning of s.188(2)(a). A procedural requirement is one
which requires an employer to follow a particular process or course of action
eg. providing employees with a NERR as soon as practicable, and not later
than 14 days after the notification time (s.173(3)), or ensuring there are at least
7 clear days between notifying employees of the voting process and the
commencement of that process (s.180(3)).
3. A failure to comply with a technical requirement will constitute a ‘technical
error’ within the meaning of s.188(2)(b). A technical requirement includes an
[2019] FWCFB 318
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obligation to comply strictly with the form and content of an instrument, such
as the NERR.
4. A single error may have both procedural and technical components.
5. The impact of the errors is to be assessed by reference to the objects of the
requirements in ss.188(2)(a), 188(1)(b), 173 or 174.
6. What constitutes a ‘minor’ error calls for an evaluative judgment having regard
to the underlying purpose of the relevant procedural or technical requirement
which has not been complied with and the relevant circumstances. Table 2 at
[74] above examines each of the procedural or technical requirements,
considers the underlying purpose of these requirements and outlines some ways
in which employees might be disadvantaged by a minor technical or procedural
error.
7. Generally speaking, the lower the level of non-compliance the more likely it is
to be characterised as a ‘minor error’. For example, informing the employees of
the matters in ss.180(3)(a) and (b) just after the start of the 7 day access period
(say 6 days before the start of the voting process) is likely to be a ‘minor error’
in most cases. But it will depend on the circumstances. If it is the first
agreement at the enterprise; the bargaining representatives are inexperienced
and the employees are predominantly from a non-English speaking
background, then it may not be a ‘minor error’. Conversely, only informing the
employees of the time and place at which the vote will occur some 4 days
before the voting process starts may be a ‘minor error’ where there is a history
of bargaining at the enterprise; the agreement is, in effect, a ‘roll over’
agreement; the employer takes further active steps to remind employees of the
time and date of the vote; and a high proportion of employees actually vote.
8. Whether an incidence of non-compliance is characterised as a ‘minor error’
also depends on the nature of the requirement which has not been complied
with. For example, the need to inform employees of the time and date of the
vote (s.180(3)(a)) is more significant than informing them of the ‘voting
method’ (s.180(3)(b)) – the first requirement may impact on the employees’
capacity to participate in the voting process, the second may not.
9. Some species of error are unlikely to be classified as ‘minor’, for example the
deletion of the prescribed text of the NERR which deals with an employee’s
right to appoint a bargaining representative and the role of the unions as the
default bargaining representatives. But, again, it may depend on the
circumstances (see paragraphs [77] - [78] above).
10. The test in s.188(2)(b) is whether the employees covered by the agreement
were ‘not likely to have been disadvantaged by the errors, in relation to the
requirements mentioned in paragraph (1)(a) or (b) or the requirements of
sections 173 and 174’(emphasis added). The impact of the errors is to be
assessed by reference to the objects of those requirements and not by reference
to any more general sense of ‘genuine agreement’.
[2019] FWCFB 318
35
11. Cost or inconvenience to the employer and employee covered by an agreement
associated with a delay in the approval of the agreement is not relevant to the
question of whether the employees covered by the agreement ‘were not likely
to be disadvantaged by the errors’.
12. The test posited by s.188(2)(b) is whether ‘the employees covered by the
agreement were not likely to have been disadvantaged by the errors’.
13. The word ‘likely’ in s.188(2(b) means ‘probable’ in the sense that there is an
odds-on chance of it happening, rather than merely being some possibility of it
happening. The word ‘disadvantaged’ suggests a deprivation which manifests
in the employees covered by the agreement being prevented from substantively
exercising their rights within the bargaining regime in Part 2-4 of the Act.
14. In assessing whether employees were not likely to have been disadvantaged by
an error, it may be necessary to consider the particular circumstances of the
employees concerned at the time the error occurred and the impact of the error
on the subsequent course of bargaining. This may include considering any
steps taken by the employer to address the adverse impact of the non-
compliance.
[118] Before turning to consider the particular agreement approval applications before us we
wish to comment on two aspects of Ai Group’s submission.
[119] The first is the proposition that the power in s.188(2) ‘needs to be exercised in a
practical, common sense manner’. Ai Group advanced a similar proposition, in the context of
the assessment of the Better Off Overall Test, in the Loaded Rates Agreements case.66 The
Full Bench in that matter rejected Ai Group’s submission:
‘The Ai Group, as set out above, did submit that in assessing whether agreements passed the
BOOT, the Commission should not require the employer to produce indicative rosters of hours
that employees will work under the agreement but should rely on the materials lodged with the
application for approval (that is, the standard Form F17 statutory declaration). That
submission, which would amount to the Commission adopting a “don’t ask, don’t tell” policy,
is rejected. The Commission has a statutory duty, subject to ss 189 and 190, to satisfy itself
that an enterprise agreement meets the approval requirements specified in ss 186 and 187
before approving it. In the case of an agreement with a loaded rate remuneration structure, the
Commission will consider the possible outcomes for employees and prospective employees
working or being required to work a variety of roster patterns which are permitted by the terms
of the agreement in assessing the BOOT. Also, for the reasons already explained, the
Commission may require information about the patterns of working hours of current and
prospective employees in order to assess whether the agreement passes the BOOT. If such
information is not provided in the Form F17 statutory declaration (noting that the prescribed
form does not in terms require the inclusion of such information), it may be necessary for the
Commission to request the production of such information - even if no party appears before the
Commission in opposition to the approval of the agreement.’67
66 [2018] FWCFB 3610 at [76]
67 [2018] FWCFB 3610 at [110]
[2019] FWCFB 318
36
[120] In our view the proposition that the s.188(2) power ‘needs to be exercised in a
practical, common sense manner’ is unhelpful. Such a proposition says nothing about the
proper statutory construction of s.188(2). The Commission is obliged to apply the relevant
statutory provisions and to give effect to their legislative purpose.
[121] The second proposition advanced by Ai Group is that:
‘The new discretion in s.188(2) needs to be exercised, from start to finish, by appointed
Commission Members drawing upon the extensive experience that led to their appointment,
and uninfluenced by views of the staff in the Member Assist Team. The discretion is a matter
for the impression and judgement of Commission Members.’68
[122] In October 2014 the Commission piloted an ‘agreement triage process’ to promote
greater consistency and improve timeliness in enterprise agreement approval decisions. The
triage process involves a team of legally qualified staff conducting a comprehensive analysis
of agreements lodged for approval. The analysis includes completion of a detailed checklist,
developed by senior Commission Members. This analysis assists the Commission Member
dealing with the application, in making their decision under the Act. At all times the decision
as to whether to approve an agreement is made by a Member.
[123] In May 2015, the triage pilot was independently reviewed by Inca Consulting in
association with Dr George Argyrous, Senior Lecture in Evidence-Based Decision Making,
University of NSW. The review reported:
‘It was noted that the centralised triage approach provided for “a simpler, more consistent
process for assessing agreements.” In particular, it was noted that greater consistency could be
achieved through using a small and dedicated team rather than the work being performed in a
more dispersed way through Members’ chambers. Importantly, the pilot approach has allowed
for the detection of some trends in the lodgment of new enterprise agreements. For example,
common errors made by applicants have been detected that delay the approval of agreements
(or result in them being withdrawn). Observing these trends and identifying the types of
employers or industries where ‘mistakes’ commonly occur has allowed FWC to embark on
some ‘early intervention’ or ‘outreach’ work. For example, the Notice of Employee
Representational Rights Guide has been developed to hopefully see fewer agreements
withdrawn on a technicality.’69
[124] Following the review, the triage process was progressively expanded. By the end of
November 2016, the triage process was applied to all applications for approval of agreements.
[125] Ai Group’s submission is predicated on a misconception. Contrary to the submission
put, enterprise agreements are assessed by Commission Members and it is the Member who
makes the relevant decisions in respect of such applications. At all times the judgment as to
whether an agreement should be approved or not is made by Members, to be exercised in
accordance with their oath of office and the requirements of the Act. In exercising this
function Members may inform themselves in such manner as they consider appropriate
(s.590), including taking into account the views expressed by the triage team. It would be
68 Ai Group submission, 20 December 2018, at para 5
69 Inca Consulting, ‘Enterprise Agreements Triage – A Review of the Pilot’ (2015), p.8
[2019] FWCFB 318
37
entirely inappropriate for us to seek to constrain Members in the manner in which they inform
themselves.
[126] Further, the triage process has assisted Members exercise their function in a consistent
and rigorous way. A more detailed exposition of these matters is set out in the Commission’s
submission to the Education and Employment References Senate Committee Inquiry –
Penalty Rates.
The Matters
[127] The referred matters (the Matters) are grouped below by issue type (some Matters may
be listed under more than one heading):
(i) An earlier version of the NERR appears to have been given to employees who
will be covered by the agreement, not the current prescribed form (s.174(1A))
AG2018/6505 – Application by Core Toughened Pty Ltd (this application
was withdrawn)
(ii) The content of the prescribed form of the NERR appears to have been altered
(s.174(1A))
AG2018/6614 –Application by The Trustee for the Neish-King Family Trust
T/A Kew Swimming Pools [Issue – whether prescribed content has been
omitted from the NERR]
AG2018/6679 – Application by Royal Automobile Club of Victoria (RACV)
Limited [Issue – it appears that the reference to ‘employer’ in the final
paragraph of the prescribed NERR has been replaced with a reference to a
particular person or position title]
AG2018/6550 – Application by Axis Plumbing Services WA Pty Ltd [Issue –
it appears that the NERR was provided to employees as a memorandum on
company letterhead]
(iii) Blank fields in the NERR may not have been properly completed (s.174(1A))
AG2018/4986 – N T Seaman T/A United Wolves [Issue – whether the legal
name of the employer has been included in the NERR]
AG2018/5778 – Application by CMTP Pty Ltd [Issue – the fields in the first
paragraph of the NERR appear to have been left blank] (this application was
withdrawn)
AG2018/6679 – Application by Royal Automobile Club of Victoria (RACV)
Limited [Issue – whether the legal name of the employer has been included
in the NERR]
(iv) Material provided with the NERR
https://www.aph.gov.au/DocumentStore.ashx?id=8a634165-c7a0-4e18-aa54-89aa3c8dd35f&subId=514657
[2019] FWCFB 318
38
AG2018/5778 – Application by CMTP Pty Ltd [Issue – it appears additional
material (a bargaining representative nomination form) has been provided to
employees with the NERR] (this application was withdrawn)
(v) Pre-approval statutory timeframes may not have been met
AG2018/3482 – Application by Huntsman Chemical Company Australia Pty
Limited [Issue – whether the vote commenced less than 7 clear days from
the date on which employees were notified of the time, place and method of
voting]
AG2018/6505 – Application by Core Toughened Pty Ltd [Issue – whether
the vote commenced less than 7 clear days from the date on which
employees were notified of the time, place and method of voting] (this
application was withdrawn)
AG2018/6664 – Application by Meredith Roof Plumbing Pty Ltd [Issue –
whether the vote commenced less than 7 clear days from the date on which
employees were notified of the time, place and method of voting]
AG2018/4986 – N T Seaman T/A United Wolves [Issue – whether the vote
commenced less than 21 clear days after the last NERR was given to an
employee]
AG2018/6505 – Application by Core Toughened Pty Ltd
[128] The copy of the NERR lodged by the employer with its application for approval of the
agreement was the NERR prescribed by Schedule 2.1 of the regulations immediately prior to
3 April 2017. The correct NERR for this agreement was the one prescribed by Schedule 2.1 of
the regulations with effect from 3 April 2017.
[129] The employer contended that it actually provided the correct version of the NERR to
its employees, but mistakenly lodged the prior version of the NERR with the Commission.
However, the employer withdrew its application for other reasons. Because the application for
approval of the agreement was withdrawn, we do not need to decide it, but in order to provide
some guidance in respect of the issue raised we make the following observations in relation to
the provision to employees of a pre 3 April 2017 version of the NERR.
[130] The provision of an earlier version of the NERR constitutes a technical error. By
providing an earlier version of the NERR, an employer has failed to comply with the
requirements of section 174(1A). This is an error as it represents a deviation from correctness.
It is technical in nature, because it is the content of the notice that is deficient, as distinct from
a failure to comply with a procedural requirement.
[131] Changes to the NERR took effect from 3 April 2017. These changes:
(a) reflected an amendment to the Act by changing a reference to subsection
174(6) to subsection 174(1A);
[2019] FWCFB 318
39
(b) replaced a reference to the Fair Work Ombudsman’s website as a source of
assistance with a reference to the Fair Work Ombudsman generally; and
(c) replaced a reference to the Fair Work Commission’s Infoline as a source of
assistance with a reference to the Fair Work Commission generally.
[132] The pre 3 April 2017 NERR is substantially the same as the post 3 April 2017 NERR.
The core requirements of the NERR (as mandated by s 174(2) to (5) of the Act) are
unchanged in both documents.
[133] Both NERRs specify that the employee may appoint a bargaining representative to
represent the employee in bargaining and in FWC matters relating to bargaining. Both NERRs
explain that a relevant employee organisation of which the employee is a member will
represent their interests if the employee does not appoint another person (if there is no low-
paid authorisation in operation). Both NERRs explain the effect of paragraph 176(1)(b) and
subsection 176(2) (if a low-paid authorisation is in operation). Both NERRs explain the effect
of paragraph 178(2)(a) of the Act.
[134] The purpose of the final paragraph of the NERR is to direct the employees to sources
of assistance in the event that they have questions about the notice or enterprise bargaining.
[135] The pre 3 April 2017 NERR directed employees to:
(a) their employer;
(b) their bargaining representative;
(c) the Fair Work Ombudsman (via their website); and
(d) the Fair Work Commission (via their Infoline).
[136] The post 3 April 2017 NERR directed employees to:
(a) their employer;
(b) their bargaining representative;
(c) the Fair Work Ombudsman; and
(d) the Fair Work Commission.
[137] The purpose of the final paragraph of the NERR is not offended by an employer
providing a pre 3 April 2017 NERR after this date. The employees are still directed to the
same sources of advice.
[138] The pre 3 April 2017 NERR includes a reference to subsection 174(6), which
originally permitted the regulations to prescribe the content and form of the NERR. The post
3 April 2017 NERR includes a reference to subsection 174(1A), which contained the relevant
power from 1 January 2017.
[139] The outdated reference to s.174(6) of the Act in the NERR does not offend the purpose
of the requirement to issue the NERR in the prescribed form. All relevant information is still
communicated to the employees.
[2019] FWCFB 318
40
[140] We are satisfied that the mistaken provision of a pre 3 April 2017 NERR to employees
would constitute a minor technical error in relation to the requirements of s.174 of the Act and
the employees covered by such an agreement would not be likely to be disadvantaged by such
an error.
AG2018/6614 –Application by The Trustee for the Neish-King Family Trust T/A Kew
Swimming Pools
[141] The copy of the NERR lodged by the employer with its application for approval of the
agreement omitted from the NERR the paragraph relating to the union’s role in the bargaining
process.
[142] The purpose of this paragraph is to inform the employee that, if they are a member of a
union, their union will be their bargaining representative unless they appoint another person
or revoke the union’s status. This is a core requirement of the NERR, prescribed by section
174(3) of the Act. Subject to a consideration of relevant circumstances, such as those referred
to in paragraph [77] above, it is unlikely that a failure to include this paragraph in a NERR
could constitute a minor technical error.
[143] However, in its submissions to the Commission dated 14 December 2018, the
employer contends that the version of the NERR it provided to its employees did include the
relevant paragraph, and the copy of the NERR lodged with the Commission was not provided
to employees at the relevant time; it was associated with a prior approval application to the
Commission, which was withdrawn. In light of this submission, the application for the
approval of this agreement will be referred back to a Member of the Commission for
consideration.
AG2018/6679 – Application by Royal Automobile Club of Victoria (RACV) Limited
[144] The employer replaced the reference to ‘speak to your employer’ in the final
paragraph of the NERR with the phrase ‘speak to your Manager: Brad or Damien’. This
constitutes a deviation from the content of the prescribed NERR.
[145] Having regard to the decision of Jessup J in Shop, Distributive & Allied Employees
Association v ALDI Foods Pty Ltd,70 (ALDI) ACCI contends that such a deviation is permitted
and therefore does not constitute an error.
[146] We note that the view expressed by Jessup J in ALDI was obiter, his Honour having
declined to grant the relief sought on discretionary grounds. Further, Katzmann J expressed a
contrary view,:
‘as a result of the omission of the word “employer” and the substitution of the word “leader”,
the notice was not in the prescribed form and ALDI failed to comply with s 173(1) of the
FW Act (read with s 174(1)–(1A)) by giving notice in the required form’.71
70 [2016] FCAFC 161 at [49]
71 Ibid at [69]
[2019] FWCFB 318
41
[147] The other member of the Full Court in ALDI, White J, expressed the view that the
reasons of Katzmann J on the question of whether a notice given pursuant to s 174 must
conform strictly with the prescribed form, ‘do appear to have some force’, but preferred not to
express a concluded view on the issue as it was not necessary to do so.72
[148] We are satisfied that replacing ‘speak to your employer’ in the final paragraph of the
NERR with ‘speak to your Manager: Brad or Damien’ is a minor technical error in relation to
the requirements of s 174 of the Act. The question of whether the employees covered by the
agreement were not likely to have been disadvantaged by the error will depend on a further
examination of the circumstances. In the Full Bench decision in Aldi v SDAEA,73 it was
pointed out (in the context of a large business) that the identification of certain persons to
whom inquiries are made in the NERR may not be a trivial matter if its effect is to restrict the
avenues by which any question to the employer may be communicated. This decision is
subject to judicial review.
AG2018/6550 – Application by Axis Plumbing Services WA Pty Ltd
[149] The NERR was provided by the employer to its employees as a memorandum on
company letterhead. The content of the NERR was otherwise in the prescribed form.
[150] The revised explanatory memorandum to the Amendment Act contemplates “the
inclusion of the employer’s company logo or letterhead on a NERR” as a potential minor
procedural or technical error that may be cured by section 188(2).
[151] We note that there are conflicting first instance decisions on the question of whether
the mere presence of a company logo or company letterhead on a document purporting to be a
NERR invalidates the NERR.74 It seems to us that the better view is that the mere presence of
a company letterhead on a document containing a NERR does not invalidate the NERR. The
presence of the company letterhead is a triviality and one with which s 174(1A) is not
concerned.
[152] The issuing of the NERR on company letterhead and in the form of a memorandum in
no way detracts from the prescribed content in the NERR, nor does it diminish the effect or
purpose of the NERR for relevant employees.
[153] However as this issue was not the subject of detailed argument before us we think the
appropriate course is to treat the issuing of the NERR on company letterhead as a technical
error. We are satisfied that this constitutes a minor technical error in relation to the
requirements of s 174 of the Act and the employees covered by the agreement were not likely
to have been disadvantaged by the error.
72 Ibid at [176]. See generally The Maritime Union of Australia v MMA Offshore Logistics Pty Ltd t/a MMA Offshore
Logistics [2017] FWCFB 660 at [98]
73 [2018] FWCFB 2485 at [27]-[28]
74 See for example, Re Woolworths Group Limited T/A Woolworths [2019] FWCA 7; Re CQ Industries Pty Ltd T/A CQ Field
Mining Services [2017] FWC 5667; Re DP World Brisbane Pty Ltd [2016] FWC 385; and Re DP World Melbourne
Limited [2016] FWC 386
[2019] FWCFB 318
42
[154] The first paragraph of the prescribed NERR sets out where an employer is required to
enter:
(a) name of employer;
(b) name of the proposed enterprise agreement; and
(c) proposed coverage.
[155] The prescribed NERR refers only to the ‘name’ of employer and does not specify
whether the ‘legal name’ or ‘trading name’ must be included. A trading name or business
name is not a legal entity; it therefore cannot be an employer. The name of an employer of a
particular employee is the legal entity which employs the employee. Accordingly, including
the name of the legal entity which employs the employee in the first paragraph of the NERR
will meet the statutory requirement.
AG2018/4986 – N T Seaman T/A United Wolves
[156] The employer in this case is Mr Trevor Seaman. ‘United Wolves’ is the trading name
of Mr Seaman’s business which provides security and crowd control services. Mr Seaman has
another business which trades under the name ‘Event Staff Personnel’. Employees in the
‘United Wolves’ business are covered by an enterprise agreement, whereas employees who
work in the ‘Event Staff Personnel’ business are not.
[157] The first paragraph of the NERR provided to the employees in the ‘United Wolves’
business states: “United Wolves gives notice that it is bargaining ….” Because Mr Seaman
has included in the first paragraph of the NERR the trading name of his business, rather than
his name as the legal employer, it is technically not compliant with s.174 of the Act.
However, we are satisfied that this is a minor technical error in relation to the requirements of
s.174 of the Act. Further, in light of the distinction between the different businesses
conducted by Mr Seaman and the fact that employees in the ‘Event Staff Personnel’ business
are not covered by an enterprise agreement, we are satisfied that, absent any other information
to the contrary, employees covered by the agreement were not likely to have been
disadvantaged by this error.
AG2018/6679 – Application by Royal Automobile Club of Victoria (RACV) Limited
[158] The employer in relation to this application is the Royal Automobile Club of Victoria
(RACV) Limited.
[159] The first paragraph of the NERR issued by the Royal Automobile Club of Victoria
(RACV) Limited to its employees states: “RACV gives notice that it is bargaining …”
[160] It is likely that the inclusion of an acronym (such as RACV) or slightly shortened
version of a full legal name would satisfy the requirement to enter the ‘name of the employer’
in the first paragraph of the prescribed NERR. However, to the extent that entering RACV
rather than Royal Automobile Club of Victoria (RACV) Limited in the first paragraph of the
NERR constitutes an error, we accept that it was a minor technical error in relation to the
requirements of s.174 of the Act and, in the circumstances, employees covered by the
agreement were not likely to have been disadvantaged by this error.
[2019] FWCFB 318
43
AG2018/5778 – Application by CMTP Pty Ltd
[161] This application has been withdrawn. It involved the provision of a NERR in which
the first paragraph did not identify the name of the employer, the name of the proposed
enterprise agreement, or the proposed coverage of the enterprise agreement. It is unlikely that
such technical errors would be minor or not likely to have disadvantaged employees covered
by the agreement. That is because the purpose of the paragraph of the NERR is to inform
employees that the employer is bargaining and who is proposed to be covered by the
enterprise agreement.
[162] However, in order to decide an application for approval of an enterprise agreement
with such a defective NERR, it would be relevant to consider whether any other information
was provided to the employees at about the same time as they received the NERR.
[163] In this instance the employer also provided a covering letter with the NERR, which
provided (in part):
“As you are aware your current enterprise agreement is about to finish in July 2018 and
we need to start negotiating terms for the new agreement. This proposed agreement
will cover all employees that work under the Timber Industry Award 2010. Attached
to this letter you will have a copy of the Notice of employee representational rights
(Fairwork act 2009)…”
[164] This paragraph of the covering letter informed employees of who would be covered by
the proposed enterprise agreement, albeit the name of the proposed agreement was not given,
and the employer’s ‘need to start negotiating terms for the new agreement’. We observe that,
subject to information to the contrary, it is likely that the technical errors in the NERR were
largely overcome by this part of the covering letter such that the errors in relation to s.174 of
the Act could be appropriately categorised as ‘minor’ and the employees covered by the
agreement were not likely to have been disadvantaged by the errors.
AG2018/3482 – Application by Huntsman Chemical Company Australia Pty Limited
AG2018/6664 – Application by Meredith Roof Plumbing Pty Ltd
AG2018/6505 – Application by Core Toughened Pty Ltd
[165] All three of these applications potentially involved less than 7 clear days being given
between notification of the time, place and method of voting and the commencement of the
vote. In Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI
Constructors Pty Ltd,75 the Full Bench confirmed that, in order for an employer to comply
with section 180(3) of the Act, it must take all reasonable steps to notify relevant employees
of the time, place and method of voting at least seven clear days before the commencement of
the voting process.
[166] In the application by Huntsman Chemical Company Australia Pty Limited
(AG2018/3482), the employer’s statutory declaration in support of the application for
75 [2018] FWCFB 2732
[2019] FWCFB 318
44
approval of the enterprise agreement (F17) stated that the vote took place on 18 July 2018 and
gave the following response to question 2.5:
“2.5 When did you notify the relevant employees of the date and place at which the
vote was to occur and the voting method to be used?
The shop steward notified the relevant Union Organiser on the 11th July 2018 to come
to the site on the 18th July 2018 to conduct a vote by a show of hands. The Shop
Stewart notified all employees affected of the date and time of the vote.”
[167] In subsequent correspondence to the Commission dated 23 November 2018, the
employer provided additional information in relation to its response to question 2.5 in the
employer statutory declaration (F17):
“…After consultation with the Shop Steward, to further state the process that was
undertaken, on 9 July 2018, the employees were provided with copies of the EBA and
were advised by the Shop Steward that they will be voting on the agreement the
following week. The voting method was explained and agreed that a show of hands
facilitated by the union organiser would take place.
The employees were made aware that the Shop Steward was to liaise with the union
organiser to confirm a specific date and will further advised [sic] of this date.
The Shop Steward advised the union on 11 July 2018, that the employees were
provided a copy of the EBA and that a vote on the EBA was to occur on site. The
union confirmed that the voting will occur on the 18 July 2018.
The Shop Steward confirmed with the employees of the voting date.
RMAX ensured that there was a minimum of 7 clear days to review the EBA and
complete the vote. This process was fair and reasonable and conducted in good
faith…”
[168] The ACTU, ACCI and Ai Group all submitted that the employer in this instance had
taken ‘all reasonable steps’ to notify the relevant employees of the time and place at which the
vote will occur and the voting method to be used. On this basis it was submitted that the
employer had complied with s 180(3) (and hence the Commission could be satisfied that the
agreement had been genuinely agreed to: ss 186(2)(a) and 188).76
[169] However, on the basis of the information set out in the previous two paragraphs, there
is some doubt as to whether we could be satisfied that the employer met its obligation under
s.180(3) of the Act to take all reasonable steps to notify the relevant employees of the time,
place and method of voting by the start of the access period. We think the appropriate course
is to conclude that the employer has failed to meet the relevant statutory requirement and that
this amounts to a procedural error.
76 Transcript 21 December 2018 at [231], [245]-[249] and [255]
https://www.fwc.gov.au/documents/sites/agreements-amending-act/listings-directions/211218_ag20183482andors.htm
[2019] FWCFB 318
45
[170] The information provided suggests that 6 clear days’ notice was given to employees of
the time, place and method of voting. Also relevant is the fact that the employer statutory
declaration (F17) states that 10 employees will be covered by the agreement and that 8
employees cast a valid vote. In light of this information, we are satisfied that the procedural
error was minor and that the employees covered by the agreement were not likely to have
been disadvantaged by the procedural error.
[171] As to the application by Meredith Roof Plumbing Pty Ltd (AG2018/6664), the
employer notified the employees on 9 November 2018 that the vote would take place on 16
November 2018. On 16 November 2018, all 15 employees who voted on the agreement voted
to approve it. 18 employees will be covered by the agreement.
[172] For essentially the same reasons as we have given in relation to the application by
Huntsman Chemical Company Australia Pty Limited, we are satisfied that Meredith Roof
Plumbing Pty Ltd failed to take all reasonable steps to notify relevant employees of the time,
place and method of voting at least seven clear days before the commencement of the voting
process; this error was a minor procedural error made in relation to the requirements of
s.188(1)(a) of the Act; and the employees covered by the agreement were not likely to have
been disadvantaged by the procedural error.
[173] Although the application by Core Toughened Pty Ltd (AG2018/6505) was withdrawn
and we do not need to determine it, we make the following observations in relation to the
application. The employees were notified on 7 November 2018 of the date and other details of
the vote. At least some employees voted on the agreement on 13 November 2018. Those
employees only received 5 clear days’ notice of the vote. The voting process concluded on 15
November 2018. The proposed agreement covered 39 employees, of whom 38 cast a valid
vote. Given the voting turnout (38 out of 39 employees covered by the proposed agreement
cast a valid vote) and that the voting process took place over a number of days we are
satisfied that the employees covered by the agreement were not likely to have been
disadvantaged by the procedural error.
AG2018/4986 – N T Seaman T/A United Wolves
[174] The last NERR was issued in relation to this agreement on 8 August 2018 and the vote
took place on 29 August 2018. Accordingly, the employer failed to meet the 21 day timeframe
required by s.181(2) of the Act.
[2019] FWCFB 318
46
[175] The information provided by the employer demonstrates to our satisfaction that the
error arose from a calculating mistake and was not intentional. The procedural error relates to
the requirements mentioned in s.188(1)(a) of the Act and, in light of the failure to meet the
timeframe by one day, we are satisfied the procedural error is minor. As to likely
disadvantage arising from the procedural error, the Member of the Commission to whom this
application is remitted will have the opportunity to seek information concerning the likelihood
of this reduction in the 21 day timeframe preventing employees from effectively appointing
bargaining representatives, participating in genuine good faith bargaining, or suffering some
other disadvantage.
PRESIDENT
Appearances in Sydney:
N. Ward and R. Kingston appeared for ACCI
S. Smith and H. Harrington appeared for Ai Group
Appearances in Melbourne:
T. Clarke appeared for ACTU
B. Shaw appeared for Meredith Ruth Plumbing
Hearing details:
2018.
21 December.
Sydney
VC to Melbourne
Printed by authority of the Commonwealth Government Printer
PR703983
[2019] FWCFB 318
47
ATTACHMENT A
Schedule 2.1—Notice of employee representational rights
(regulation 2.05)
Fair Work Act 2009, subsection 174(1A)
[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement
([name of the proposed enterprise agreement]) which is proposed to cover employees that
[proposed coverage].
What is an enterprise agreement?
An enterprise agreement is an agreement between an employer and its employees that will be
covered by the agreement that sets the wages and conditions of those employees for a period
of up to 4 years. To come into operation, the agreement must be supported by a majority of
the employees who cast a vote to approve the agreement and it must be approved by an
independent authority, Fair Work Commission.
If you are an employee who would be covered by the proposed agreement:
You have the right to appoint a bargaining representative to represent you in bargaining for
the agreement or in a matter before Fair Work Commission about bargaining for the
agreement.
You can do this by notifying the person in writing that you appoint that person as your
bargaining representative. You can also appoint yourself as a bargaining representative. In
either case you must give a copy of the appointment to your employer.
[If the agreement is not an agreement for which a low-paid authorisation applies—include:]
If you are a member of a union that is entitled to represent your industrial interests in relation
to the work to be performed under the agreement, your union will be your bargaining
representative for the agreement unless you appoint another person as your representative or
you revoke the union’s status as your representative.
[If a low-paid authorisation applies to the agreement—include:]
Fair Work Commission has granted a low-paid bargaining authorisation in relation to this
agreement. This means the union that applied for the authorisation will be your bargaining
representative for the agreement unless you appoint another person as your representative, or
you revoke the union’s status as your representative, or you are a member of another union
that also applied for the authorisation.
[2019] FWCFB 318
48
[if the employee is covered by an individual agreement-based transitional instrument—
include:]
If you are an employee covered by an individual agreement:
If you are currently covered by an Australian Workplace Agreement (AWA), individual
transitional employment agreement (ITEA) or a preserved individual State agreement, you
may appoint a bargaining representative for the enterprise agreement if:
the nominal expiry date of your existing agreement has passed; or
a conditional termination of your existing agreement has been made (this is an agreement
made between you and your employer providing that if the enterprise agreement is
approved, it will apply to you and your individual agreement will terminate).
Questions?
If you have any questions about this notice or about enterprise bargaining, please speak to
your employer or bargaining representative, or contact the Fair Work Ombudsman or the Fair
Work Commission.
