Application by Dof Subsea Australia Pty Ltd T/A Dof Subsea Australia Pty Ltd - [2025] FWC 749

[2025] FWC 749 

 

The attached document wholly replaces the document previously issued with the above code 

on 17 March 2025 

 

Typographical errors have been corrected and paragraphs renumbered accordingly.  

 

 

Associate to Deputy President Slevin 

 

Dated 18 March 2025  

 















 

1 

 

Fair Work Act 2009  

s.185 - Application for approval of a single-enterprise agreement 

Dof Subsea Australia Pty Ltd 
(AG2024/4001) 

DEPUTY PRESIDENT SLEVIN SYDNEY, 17 MARCH 2025 

Application for approval of the DOF Subsea Australia Pty Ltd Maintenance, Construction 
and Decommissioning Enterprise Agreement 2024 

 

[1] An application has been made by DOF Australia Pty Ltd1 (DOF) for approval of an 

enterprise agreement known as the DOF Subsea Australia Pty Ltd Maintenance, Construction 

and Decommissioning Enterprise Agreement 2024 (the Agreement). The Application is made 

pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise 

agreement. Under s. 185 an application for approval of an agreement must occur if an enterprise 

agreement is made. The Commission must approve the Agreement if the requirements in ss. 

186 and 187 of the Act are met 

 

[2] The Australian Workers’ Union (AWU) and the “Automotive, Food, Metals, 

Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing 

Workers’ Union (AMWU) oppose the application. The unions’ opposition is on four bases. 

They go to the requirements in s. 186(2) and (3). First, that a number of employees who voted 

for the Agreement were not employed at the time they voted. Second, the Commission cannot 

be satisfied the Agreement was genuinely agreed to as the employees who voted to approve it 

were not sufficiently representative of those who will be covered by the Agreement. Third, the 

Commission cannot be satisfied the Agreement was genuinely agreed to as DOF did not take 

all reasonable steps to explain its terms. Fourth that the group of workers to be covered by the 

Agreement was not fairly chosen. 

 

[3] The focus of this decision is the first objection. If the voting cohort did not meet the 

requirements of the Act, I cannot be satisfied for the purposes of the test in s. 186(2)(a) that it 

has been genuinely agreed to by the employees who are covered by it. The employees covered 

by the Agreement are all described as casual employees. This requires some consideration of 

who was employed at the time of the vote. Relevant to the union’s first objection I raised a 

further issue with the parties as to whether, if the view was taken that the employees who did 

vote were employed at the time the group who voted constituted all the employees eligible to 

vote.  

 

[4] In support of its application for approval the Applicant relies on its Form F17B 

Declaration of Kathryn Coletta, Human Resources Advisor, a witness statement of Claire Susan 

Louise Forrest, Human Resources Manager, and a witness statement of Steve Ginn, Diving 

[2025] FWC 749 

DECISION 


AUSTRALIA FairWork Commission




 



[2025] FWC 749 

 

2 

Manager. The AWU provided a witness statement of Ross Kumeroa, an organiser who 

represents the industrial interests of workers within the coverage of the AWU who are engaged 

in or in connection with the oil and gas industry in Western Australia, including in offshore 

construction.  Written submissions were provided by each party, and the parties were content 

for the matter to be determined on the papers. Further sub missions were requested on the 

additional point. Submissions were received for the applicant and the AWU on that question.  

 

Background 

 

[5] Mr Ginn provided an overview of DOF’s business. The DOF Group operates a fleet of 

sixty-five vessels, including thirty-three subsea vessels, twenty-five anchor handling tug supply 

vessels, and six platform supply Vessels. All of the thirty-three subsea vessels are equipped 

with a crane and remotely operated vehicles and can perform construction work. Of those, only 

twelve were specifically designed for construction: the Skandi Açu, the Skandi Africa, the 

Skandi Buzios, the Skandi Carla, the Skandi Implementer, the Maersk Installer, the Maersk 

Inventor, the Skandi Involver, the Skandi Olinda, the Skandi Recife, the Skandi Salvador, and 

the Skandi Skansen. The others are multi-purpose vessels.  

 

[6] Seven vessels are currently in Australian waters, three can, and do, perform construction 

activities: the Skandi Singapore (a purpose-built Dive Support Vessel), the Skandi Hercules (a 

large, multi-purpose construction support vessel), and the Skandi Darwin (a medium-sized 

multi-purpose subsea construction vessel). The Skandi Singapore and the Skandi Hercules 

predominantly perform inspection, maintenance, and repair work. The Skandi Hercules 

performs both decommissioning work (approximately 60% of the time), and inspection, 

maintenance, and repair work (about 40% of the time). 

 

[7] DOF employs rigging personnel who possess a high risk work licence, preferably a 

minimum Intermediate Rigging or Advanced Rigging, to perform the inspection, maintenance, 

and repair work. It also employs persons who are multi-skilled, and who, in addition to 

possessing a valid high risk work licence, are qualified as one of the following; boilermaker/ 

welder, rigging supervisor electrician, leading hand, mechanic, or scaffolder. These workers are 

known as the back deck crew. 
 

[8] DOF does not directly employ any other trades or skills because it does not perform 

work that requires them. If there was work that did require some other trade or skill, DOF 

subcontracts that work to a contractor with the requisite expertise and provides its vessel as 

support. 

 

[9] All work is performed under contractual arrangements that describe the employees as 

casual employees. A document entitled Short Term Engagement Agreement – (Offshore 

Australia) (STEA) is entered into by which each employee agrees to work on projects as they 

arise in accordance with a Project Engagement Confirmation (PEC). The PEC is a document 

signed by the parties which sets out the details of the vessel, time, place and specific terms and 

conditions of the employee’s engagement for a particular project.  A PEC includes information 

such as the duration of the project, the scope of work, the applicable pay rates, and other relevant 

details specific to the project.  

 

[10] There are other crew on board each vessel directly employed by DOF, most of whom 

are covered either by one of DOF’s “Marine Agreements” (of which there are more than one) 








[2025] FWC 749 

 

3 

or what was described as a “ROV Agreement”. One of the Marine Agreements covers crane 

operators, integrated ratings, cooks and chefs, and another Marine Agreement covers DOF’s 

officers and engineers. There are also supervisory and managerial employees who are not 

covered by any enterprise agreement. 

 

[11] In addition to decommissioning and inspection and maintenance and repair work, DOF 

also performs construction work on an ad-hoc basis. Mr Ginn described offshore construction 

work as involving tier 1 contractors and tier 2 contractors. The tier 1 contractors take on large 

long term projects which often take years to complete. A tier 1 contractor may subcontract some 

of the work on these projects to tier 2 contractors such as DOF. Under these arrangements DOF 

may perform construction support contracts to perform inspection, maintenance and repair 

work and the installation of mooring chains, subsea infrastructure, commissioning support, or 

other work in support of the tier 1 contractor. Tenders for this type of work are usually issued 

three to four months in advance. 

 

[12] On 11 March 2024, the AWU contacted DOF requesting that bargaining commence for 

an enterprise agreement to cover employees of DOF, including AWU members, who perform 

non-marine, blue collar roles on two vessels the Skandi Singapore and Skandi Hercules vessels. 

On 22 March 2024, DOF agreed to commence bargaining, and issued a Notice of Employee 

Representational Rights (NERR) that specified a broader scope than that requested by the 

AWU. The scope of the NERR was: 

 
DOF Subsea Australia Pty Ltd gives notice that it is bargaining in relation to a single-enterprise 

agreement (DOF Subsea Australia Pty Ltd Casual Back Deck Crew Offshore Agreement 2024) 

which is proposed to cover employees that are engaged to undertake work on or in connection 

with offshore energy projects for DOF Subsea Australia Pty Ltd, engaged in the following 

classifications: Rigger/Scaffolder, Rigger/Leading Hand, Rigging/Deck Supervisor, 

Rigger/Boiler Maker Welders, Rigger/Mechanic, Rigger/Electrician. 

 

[13] On 12 September 2024 DOF commenced an access period for the Agreement by 

emailing employees a proposed enterprise agreement and indicated that the proposal would be 

the subject of a vote seeking the employees approval. The email summarised the rates of pay in 

the proposed agreement and gave an overview its terms. Information sessions were conducted 

on 13 September 2024 at 11.00 am on the Skandi Singapore in-person and by video and at 12.30 

on the Skandi Singapore again in-person and by video. Further information sessions were held 

by video on 17 September 2024 at 11.00 am for Skandi Hercules employees and 12.30 am for 

Skandi Hercules employees. 

 

[14] During the information sessions concern was raised about rates of pay for construction 

work. The concern being that the rates in the proposed agreement undermined rates paid to 

offshore construction workers elsewhere in the industry. Mr Ginn responded to the concerns by 

sending employees an email stating that the company intended to pay a higher rate for 

construction work where that work extended beyond 28 days. The higher rate would be 

determined by reference to the prevailing rates in the area the work was to be performed. On 

18 September 2024 Mr Kumeroa for the AWU raised concerns about this email suggesting that 

it was misleading by suggesting to employees that they were entitled to higher rates than set out 

in the proposed agreement. 

 








[2025] FWC 749 

 

4 

[15] On 19 September 2024 Mr Ginn wrote to employees revoking the access period, telling 

them DOF would return to bargaining, and indicating it would amend the proposed agreement, 

so the rates did not undermine industry rates for offshore construction work. It proposed to do 

this by confining the definition of offshore construction to work that did not last more than 28 

days. This would have the effect of excluding large construction projects from the proposed 

agreement.  

 

[16] On 20 September 2024 Mr Ginn wrote to the employees again notifying them that DOF 

had opened a new access period and providing a copy of the Agreement. That email went on to 

provide an explanation of the terms of the Agreement, schedule two further information 

sessions, and  set the time for the vote for the amended proposal as 28 September 2024 to 1 

October 2024. 

 

[17] Further information sessions were held on 20 September 2024 and 24 September 2024. 

 

[18] The AWU wrote to Mr Ginn on 27 September 2024 proposing that instead of excluding 

large construction projects the Agreement be amended to cover all construction work without 

a 28-day limitation, include a Construction Allowance to align with industry standards with 

different rates for WA/NT and Bass Strait, and provide proposed pay rates for construction 

work in different regions. The email emphasised that the AWU's proposed amendments aimed 

to ensure that the rates for construction work were industry-standard. DOF did not accept the 

proposed changes. 

 

[19] On 27 September 2024, an email was sent to employees confirming the vote would 

commence on 28 September 2024. On 28 September 2024 voting on the agreement 

commenced. It concluded on 1 October 2024.  

 

[20] The employees who were asked to vote on the Agreement were engaged to work on the 

Skandi Singapore and the Skandi Hercules. Both vessels were located off the Northwest Shelf 

of Western Australia. The Skandi Singapore was engaged in offshore maintenance work and 

the Skandi Hercules was engaged in offshore decommissioning. There was no offshore 

construction work being performed. 

 

[21] Mr Ginn explained that there were thirty-four employees on the roll of voters. At the 

time of the vote each employee who voted was engaged under a STEA. Twenty-two were 

rostered to work during the access period and twelve were rostered to work before and after the 

access period.  

 

[22] Ms Forrest provided a copy of a template of the STEA used by DOF and stated that all 

employees are engaged under a contract which resembles the template. The only difference 

being the employee details. The STEA includes the following terms: 

 
The Casual Employee agrees to be engaged by the Company under a contract of services in the 

position, hours and location described in the Project Engagement Confirmation, on the terms 

and conditions in this Agreement. 

… 

2. Engagement of Casual Employee 

 








[2025] FWC 749 

 

5 

2.1 An authorised Project Engagement Confirmation (PEC) will be issued to the Casual 

Employee via  an email with the following details: 

(a) Basis, position, working hours, project details and location; and 

(b) Special conditions (if any) 

 

2.2 By issuing a PEC, the Company hereby engages the Casual Employee in the casual position  

specified for the period noted. The casual work will cease at the Estimated Scheduled 

Completion Date stated in the PEC. 

 

2.3 The Casual Employee understands that on each occasion that they are engaged by the 

Company, the terms of employment shall be governed by this Agreement plus any Applicable 

Industry  Agreement. 

 

2.4 Conversion of casual employment to permanent employment, will be in accordance with the 

National Employment Standards. A copy of the Fair Work Casual Employment Information 

Statement is attached to this Agreement. 

 

2.5 The parties agree that the relationship between them is one of independent personal service. 

No relationship of principal/agent or partnership is intended to arise or does in fact arise as a  

consequence of this Agreement or the performance of the obligations under it. 

… 

4. Period of Agreement 

 

4.1 This Agreement shall remain valid until the date specified in Part 2 / Schedule B – Casual 

Employee Details unless terminated earlier by either Party in accordance with Clause 11. 

 

4.2 This Agreement applies to Casual Employees in Australia. 

 

4.3 During the period of Agreement, the Company may issue any number of PEC to engage the 

Casual Employee to work for the Company. There is no guarantee on the number of PEC that 

may be issued under this Agreement. 

… 

5. Employment Duties 

… 

5.4 If nominated mobilisation / demobilisation dates in the PEC change, the dates actually 

worked and approved by Company’s authorised personnel, will override the dates of 

engagement in PEC. 

 

11 Termination of Employment 

 

11.1 Termination 

(a) Either Party may terminate this Agreement at their own election, by giving the required  

written notice, in accordance with the Casual Employee’s position, as referred to in the PEC. 

(b) If the Company terminates this Agreement, it must be in accordance with the provisions  

of the Fair Work Act 2009 (Cth). 

 

(c) If this Agreement is terminated by the Casual Employee and the Casual Employee fails to  

give the requisite notice, the Company reserves its right to recover repayment of any  

consideration provided to the Casual Employee for the notice period not served. 

… 

11.2 

… 

(c) If this Agreement is terminated by the Company in accordance with clause 11.1, then the  








[2025] FWC 749 

 

6 

Company may pay in lieu all or part of the notice period. 

 

[23] Each of the employees asked to vote also had a PEC for work on the Skandi Singapore 

or Singapore Hercules. I was initially provided with the PECs for the thirty-four employees 

who were asked to vote. Each PEC included the employee’s name, the date of their STEA 

commenced, the date of the PEC, the commencement date of the project, the scheduled 

completion date, the employee’s position, point of assembly, project name, the project client 

name, project reference number, vessel name, location of the project, supervisor or manager’s 

position, and the working hours.  It provided the termination notice required (being one day’s 

notice), remuneration, and a signature block. 

 

[24] Sixteen of the PECs provided initially were for employees working on the Skandi 

Singapore. The Skandi Singapore was engaged on a project for Chevron-IMR Vessel Services. 

The PECs recorded the effective dates of the employees’ STEAs. The dates varied. The earliest 

effective date was 13 July 2023 the latest was 8 February 2024. The PEC dates also varied. The 

earliest was 6 June 2024, the latest 16 September 2024. The estimated commencement dates 

also varied. The earliest was 11 June 2024, the latest was 23 September 2024. The project’s 

estimated completion date on each of the PECs was “as per project requirements”. The normal 

working hours were stated to be 12 hours, seven days per week.  

 

[25] Eighteen of the PECs initially provided were for employees working on the Skandi 

Hercules. The vessel was engaged on a project for Woodside-Enfield XT Retrieval and 

Offshore Support Services. The effective dates of the STEAs for the eighteen employees varied. 

The earliest effective date was 13 July 2023, the latest was 11 July 2024. The PEC dates also 

varied. The earliest was 7 August 2024 the latest 13 September 2024. The estimated 

commencement dates also varied. The earliest was 14 August 2024, the latest was one PEC 

which commenced on 23 September 2024. Two commenced on 22 September 2024. The 

project’s estimated completion date on each PEC was “as per project requirements”. The normal 

working hours were 12 hours, seven days per week.  

 

[26] I was provided with the roster for each vessel. DOF informed me that the rosters for 

vessels are prepared in advance, sometimes months in advance. The Skandi Singapore roster 

listed twenty-seven employees. The Skandi Hercules roster listed eighteen employees.  

  

[27] For the Skandi Hercules the roster covered the period 15 August 2024 to 4 October 

2024. Ms Forrest’s witness statement summarises the shifts worked by employees by reference 

to the rosters. That summary refers to shifts worked by three employees on the Skandi Hercules, 

Mr Fenning, Mr Shannon, and Mr Ahern after 4 October 2024, the date the ballot closed. The 

actual roster does not record shifts for those employees after that date. This is significant in the 

analysis set out later.  

 

[28] All eighteen employees on the Skandi Hercules roster were asked to vote. Of those 

eleven worked during the access period. Of the seven who did not, 3 (Mr Fenning, Mr Shannon, 

and Mr Ahern) only worked in the weeks prior to the access period, three worked prior to and 

after the access period (Mr Lenehan, Mr Seiffert and Mr Whittam), and one only worked after 

the access period (Mr English).  

 

[29] The Skandi Singapore roster was prepared 5 months in advance of the project. It covered 

the period 29 August 2024 to 21 March 2025. Twenty four employees appear on the roster. 








[2025] FWC 749 

 

7 

Seventeen were requested to vote on the Agreement. Of those requested to vote ten worked 

during the access period. Six did not work during the access period, two worked only in the 

weeks prior to the access period, five worked only after the access period, and  11 worked both 

before and after the access period. 

 

[30] I note Mr Lenehan, appears on both rosters. He worked on the Skandi Singapore before 

the access period and on the Skandi Hercules after the access period.  

 

[31] Seven employees who were included on the Skandi Singapore roster were not asked to 

vote on the Agreement. I invited DOF to provide further information about those employees. I 

was provided with the PECs for those employees and describe the facts pertaining to each in 

turn below:  

 

a) Mr Hardeman was issued a PEC on 29 October 2024 which commenced on 30 

October 2024. It referred to the effective date for an STEA as 26 September 2023. The 

PEC also recorded the estimated scheduled completion date as “as per project 

requirements”. I note that the roster shows Mr Hardeman was required to work from 31 

October 2024 to 11 November 2024. 

 

b) Mr Marsden was issued with two PECs. The first was dated 25 June 2024 and was 

estimated to commence on 8 July 2024. It referred to the effective date for his STEA as 

13 July 2023. The PEC recorded the estimated scheduled completion date as “Approx. 

4 weeks”. The second was dated 18 December 2024 and was estimated to commence 

on 27 December 2024. It also referred to the effective date for his STEA as 13 July 

2023. The PEC also recorded the estimated scheduled completion date as “as per project 

requirements”. I note that the roster shows Mr Marsden was only required to work 17 

December 2024 to 14 January 2025. 

 

c) Mr Bowles was issued a PEC on 20 August 2024 which commenced on 26 August 

2024 with a duration of “Approx 1 week”. It referred to the effective date for an STEA 

as 7 August 2023. I note that the roster shows Mr Bowles was required to work 29 

August 2024 to 3 September 2024 and the 27 November 2024 to 23 December 2024.  

 

d) Mr Hucherko was issued a PEC on 26 August 2024 which commenced on 26 August  

2024. It was for “Approx. 1 week”. It referred to the effective date for an STEA as 19 

January 2024. I note that the roster shows Mr Hardeman was required to work 29 August 

2024 to 2 September 2024. 

 

e) Mr McKinstry was issued a PEC on 20 August 2024 which commenced on 26 August  

2024 for “Approx. 1 week”. It referred to the effective date for an STEA as 26 June 

2024. I note that the roster required Mr McKinstry to work 29 August 2024 to 2 

September 2024 and 7 to 10 December 2024. 

 

f) Mr Lohmeyer was issued a PEC on 29 October 2024 which commenced on 30 

October 2024. It referred to the effective date for an STEA as 29 October 2024. The 

PEC also recorded the estimated scheduled completion date as “as per project 

requirements”. I note that the roster shows Mr Lohmeyer was required to work 1 to 6 

November 2024. 








[2025] FWC 749 

 

8 

 

g) Mr Schuurman was issued with two PECs. The first on 19 August 2024 commenced 

on 20 August 2024. It referred to the effective date for an STEA as 19 February 2024. 

The PEC also recorded the estimated scheduled completion date as “as per project 

requirements”. The second on 25 October 2024 which commenced on 28 October 2024. 

It referred to the effective date for an STEA as 28 October 2024. The PEC also recorded 

the estimated scheduled completion date as “as per project requirements”. I note that the 

roster shows Mr Schurmann was required to work 29 August 2024 to 2 September 2024, 

29 October 2024 to 19 November 2024, and 7 to 9 December 2024. DOF explains that 

Mr Schuurman was issued a new PEC on 25 October 2024 which commenced on 28 

October 2024. 

 

[32] The vote concluded on 1 October 2024. Of the thirty-four asked to vote, thirty-two voted 

and twenty voted to approve the Agreement. 

  

Consideration – The voting cohort 

 

[33] The unions contend that because the employees were casual employees only the twenty-

two employees who worked during the access period should have been asked to vote as they 

were the employees employed at the time who would be covered by the Agreement. DOF 

contended that a further twelve employees who worked before and after the access period were 

also employees who were employed at the time who would be covered by the Agreement and 

so were entitled to vote to approve it. Determination of this contest is relevant to the requirement 

in s. 186(2)(a) that the Agreement has been genuinely agreed to by the employees covered by 

it.  

  

[34] Section 181(1) of the Act provides: 

 
(1) An employer that will be covered by a proposed enterprise agreement may request 

the employees employed at the time who will be covered by the agreement to approve 

the agreement by voting for it. 

 

[35] Section 182(1) provides: 

 
(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.  

 

[36] The Full Court of the Federal Court of Australia considered these provisions in National 

Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 

(Swinburne). In that case Jessup J (White J agreeing) made the following observations about s. 

182(1): 

 
18. By s 182(1), the agreement is “made” when a majority of the employees who have been 

asked to approve the agreement under s 181(1), and who cast a “valid vote”, approve the 

agreement. This fixes the point in time at which the agreement is made for the purposes of s 

172(2). It is a point, however, which comes at the end of a process mandated by other provisions 

of Pt 2-4 of the FW Act, and it is necessary to take them into account also. 

 








[2025] FWC 749 

 

9 

19. By s 173(1), the employer “must take all reasonable steps to give notice of the right to be 

represented by a bargaining representative to each employee who … will be covered by the 

agreement; and … is employed at the notification time for the agreement.” As with s 172(2), 

there is here a preoccupation with the employment status of the individual at a particular time. 

What constitutes the “notification time” is the subject of detailed attention in s 173(2): it is when 

the employer agrees to bargain, or initiates bargaining. By s 173(3), the notice must be given as 

soon as practicable after the notification time, and in any case not more than 14 days after that 

time. The remaining provisions of Div 3 of Pt 2-4 are concerned with bargaining, and do not 

require further consideration here. 

 

20. By s 181(1), the employer may “request the employees employed at the time who will be 

covered by the agreement to approve the agreement by voting for it”. By s 181(3), the vote may 

be “by ballot or by an electronic method”. However, by s 181(2), this request may not be made 

until at least 21 days after the last notice under s 173(1) in relation to the agreement has been 

given. This shows that s 173(1) allows for representational rights notices to be given to 

employees at different times: they must, however, be given within the 14-day period referred to 

in s 173(3). 

 

21. Section 180 refers to an “access period for the agreement”, being “the 7-day period ending 

immediately before the start of the voting process referred to in subsection 181(1)”. This, 

presumably, is the point in time at which the employer makes the request there referred to. By 

s 180(2), the employer must take all reasonable steps to ensure that, during this “access period”, 

“the employees … employed at the time who will be covered by the agreement” are given a 

copy of the agreement and of the other materials referred to. These employees are, by way of 

shorthand, referred to as “the relevant employees”, and, by subs (3), the employer must also, by 

“the start of the access period”, take all reasonable steps to notify them of the time and place at 

which the vote will occur and of the voting method that will be used. 

 

22. Putting these provisions together in the chronological order which is implied by their terms, 

the following is the scheme contemplated. First, the employer agrees to bargain or initiates 

bargaining. Secondly, there is then a period of 14 days during which the employer gives the 

representational rights notices to the employees who were employed when the employer agreed 

to bargain. Thirdly, bargaining takes place. Although that process is not directly relevant to the 

subject here being considered, it should be noted that at least 21 days must pass after the giving 

of the last representational rights notification and the employer’s request under s 181(1). But 

there appears to be no outer limit to that period. Fourthly, the employer gives a copy of the 

agreement upon which it is proposed that the employees should vote, and other required 

materials, to the employees employed at that time. Fifthly, no more than seven days later, the 

employer requests the employees who are employed at that time to approve the agreement by 

voting for it. Sixthly, when a majority of those employees who cast a valid vote approve the 

agreement, the agreement is made. 

 

[37] In Swinburne, the Court was dealing with the question of whether an agreement was 

made where sessional and casual employees at a university were included in the cohort of 

voters. The question considered by the Court was whether such employees could be said to 

have been “employed at the time” as required by s181(1). A Full Bench of the Commission had 

determined that such employees could participate in a vote for the agreement if it could be said 

that they were “usually employed”. The Court found that it was a misreading of s. 181(1) to 

read it to include employees who were “usually employed” as “employees employed at the 

time”. Consideration of the correct cohort of employees for the purposes of the subsection by 

reference to “the high-level truism that an employee includes an individual who is usually 

employed by the employer concerned” was said to be a distraction. The correct question is 








[2025] FWC 749 

 

10 

whether a majority of those employed by the University at the time the request to approve the 

agreement was made, and who cast a valid vote, approved the agreement2. 

 

[38] The Court in Swinburne also made clear that sending voting papers to persons not 

entitled to vote under s 181(1) would not be fatal as regardless of who was asked to vote and, 

indeed, of who did vote, the question would always be whether a valid majority of those 

who were entitled to vote and did vote had approved the agreement3. 

 

[39] Since Swinburne Full Benches of this Commission have considered the question of 

when casual employees can be regarded as employees employed at the time of a request for a 

vote: McDermott Australia Pty Ltd v Australian Manufacturing Workers’ Union (McDermott) 

[2016] FWCFB 2222  and Construction, Forestry, Maritime, Mining and Energy Union v 

Noorton Pty Ltd [2018] FWCFB 7224 (Noorton),  Appeal by Kmart Australia Ltd & ors [2019] 

FWCFB 7599 (Kmart), Charles Darwin University v National Tertiary Education Industry 

Union and Others [2023] FWCFB 65 (CDU), Application by Woolworths Group Limited  

[2024] FWCFB 314 (Woolworths). 

 

[40] In McDermott the Full Bench considered the nature of casual employment in the 

offshore construction industry. McDermott was engaged to perform the construction work 

using various vessels and barges. It proposed to enter into an enterprise agreement with 

employees at a time when it was engaged on a project known as the Ichthys URF Project. The 

project involved work being performed over a number of distinct periods. McDermott had 

engaged casual employees to work on the entire project. At the time of the vote for a proposed 

agreement no work was being performed but further work was expected. The agreement was 

not approved at first instance because the Commission was concerned that the vote occurred 

while employees were not actually performing or being paid for performing work at the time 

of the vote. The Full Bench determined that that view was incorrect. The casual employees at 

the time of the vote had accepted on-going employment for the period of the project. 

 

[41] The Full Bench made reference to an Full Bench decision in Wayne Shortland v The 

Smiths Snackfood Co Ltd (Smiths Snackfood) [2010] FWAFB 5709 where it was said that as a 

matter of the common law of employment, and in the absence of an agreement to the contrary, 

each occasion that a casual employee works is viewed as a separate engagement pursuant to a 

separate contract of employment4. The Full Bench in McDermott observed that it would be 

inappropriate and counter intuitive to disenfranchise casual employees of a right to vote on an 

agreement that determines their wages and conditions on the basis that they were not rostered 

on to work on the day/s of the vote, or during the 7 day access period. 

   

[42] In CFMMEU v Noorton Pty Ltd [2018] FWCFB 7224 one of the matters determined by 

the Commission at first instance was that the relevant casual employees had been engaged on 

an ongoing basis with regular and systematic employment and were employed at the time they 

were requested to vote. This finding was challenged on appeal. The Full Bench considered that 

in the usual case a person who is a casual employee but who is not working on a particular day 

or during a particular period, is unlikely to be employed on that day or during that period.  In 

Noorton there was limited evidence before the Commission about the nature of the casual 

employees who were asked to vote and no evidence that they had terms assured tenure or other 

forms of assurances of ongoing engagement.  There was evidence that at least some of the 

casual employees who were asked to vote to approve the Agreement did not work on the day 






https://jade.io/article/219194/section/6043
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb2222.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb7224.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7599.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7599.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb65.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb314.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5709.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb7224.htm


[2025] FWC 749 

 

11 

of the vote or during the access period. The Full Bench expressed some misgivings about the 

correctness of McDermott but expressed no concluded view as the case could be distinguished 

on the facts. The Full Bench did observe that the critical conclusion in McDermott that the 

casual employees accepted on-going employment meant they were employed by McDermott at 

the time the Agreement was made. It said their employment comprehended work within 

McDermott’s scope of work for the project and unlike the facts in Swinburne, the casual 

employees were employed at the time and were not in a cohort of “likely to be engaged” or 

“usually employed.” The Full Bench in Noorton found that the evidence in that case did not 

support the first instance finding that the employees were employed on an ongoing basis. 

 

[43] In Kmart the Commission at first instance dismissed the application for approval 

because casual who had been engaged and worked on the last two days of a ten day voting 

period had not been requested to vote for the agreement. Kmart appealed. The Full Bench 

considered that the question to be determined on appeal was whether the expression “at the 

time” in s181(1) included the period in which the employees were requested to vote. In 

upholding the appeal, the Full Bench concluded that the request in s. 181(1) is a single act or 

event which occurs immediately prior to the commencement for voting. This was said to be the 

consistent with the observation in  Swinburne  that the end of the access period is the point in 

time of the request under s. 181. The Full Bench found that the time of the request encompassed 

the whole of the access period being the period in which the employer is required to take 

reasonable steps to ensure the employees have access to a copy of the agreement, have had it 

explained to them, and have been informed of the time, place and method of the vote5.   

 

[44] In CDU  the Full Bench allowed an appeal from a first instance decision which refused 

to approve an agreement because casual employees who did not work during the access period 

for the agreement were requested to vote. The first instance decision was based on an 

understanding that the effect of the Full Bench decision in Kmart was that, in order for a casual 

employee to be entitled to vote upon an enterprise agreement, the  casual  employee  must  have 

performed work for the employer during the access period. It was argued that the  

Commissioner misconstrued  the  Full Bench’s ratio Kmart. It was not necessary for the Full 

Bench to consider that argument, but it did observe that the issue dealt in Kmart was the 

identification of the ‘time’ referred to in the expression ‘employed at the time’ in s 181(1). The 

decision did not deal with question of the circumstances in which a casual employee may be 

said to have been employed during the access period. 

  

[45] A similar issue arose in Woolworths where the Full Bench was asked to consider 

whether casuals who were on a roster to work the week following the access period were 

employed at the time for the purposes of s. 181(1) on the basis that they were casuals who were 

employed at the time of the access period even though they did not work a shift during the 

access period. The Full Bench did not need to reach a concluded view on the matter but 

observed at [27]: 

  
[27] In Appeal  by  Kmart  Australia  Limited (Kmart), the  Full  Bench  concluded  that the 

‘time’ at  which  employees covered  by  the  agreement  had  to  be  employed  in  order  to  be 

requested to vote referred to in s181(1) encompassed the whole of the access period in s 180(4) 

and  was  to  be  equated  with  the ‘time’ referred  to  in  s180(2)(a). The  Full  Bench in Kmart 

concluded  that casual employees  who  had  been engaged for  the  first  time during  the  voting 

period had not been ‘employed at the time’ at which employees were requested to vote. The Full 

Bench did not say that existing casuals who did not work during the access period were ineligible 








[2025] FWC 749 

 

12 

to do so. In our view, Woolworths’ contention that category 2 casuals were eligible to vote has 

merit. These were not just casuals ‘on the books’ who might or might not have been given  

further  shifts. The fact  that  these  employees had  been  allocated  shifts on  the  roster is 

evidence of the actuality and currency of their casual employment during the access period. 

 

[46] It appears from the cases that casual employees can vote on a proposed enterprise 

agreement if they are employed at the time of the request to approve the agreement, as specified 

in section 181(1).  This includes casual employees who have accepted ongoing employment for 

a project, even if they are not working on the specific day of the vote or during the access period 

if they are considered employed during the access period.  Casual employees who are engaged 

on an ongoing basis or have been allocated shifts on a roster during the access period are eligible 

to vote.  However, casual employees who are merely "on the books" without current shifts or 

ongoing engagement are not considered employed at the time for voting purposes. 

 

[47] Since these cases were determined the FW Act has been amended to include a new 

definition of casual employee. The amendments took effect on 26 August 2024. Before the vote 

for the Agreement took place. The definition gives some assistance in determining the approach 

to be taken to the question of whether the employees were employed at the time. It relevantly 

reads: 

 
15A Meaning of casual employee 

 

General rule 

 

(1) An employee is a casual employee of an employer only if: 

 

(a) the employment relationship is characterised by an absence of a firm advance 

commitment to continuing and indefinite work; and 

 

(b) the employee would be entitled to a casual loading or a specific rate of pay for casual 

employees under the terms of a fair work instrument if the employee were a casual 

employee, or the employee is entitled to such a loading or rate of pay under the contract 

of employment. 

 

Note: An employee who commences employment as a casual employee remains a casual 

employee until the occurrence of a specified event (see subsection (5)). 

 

Indicia that apply for purposes of general rule 

 

(2) For the purposes of paragraph (1)(a), whether the employment relationship is characterised 

by an absence of a firm advance commitment to continuing and indefinite work is to be assessed: 

 

(a) on the basis of the real substance, practical reality, and true nature of the employment 

relationship; and 

 

(b) on the basis that a firm advance commitment can be in the form of the contract of 

employment or, in addition to the terms of that contract, in the form of a mutual 

understanding or expectation between the employer and employee not rising to the level 

of a term of that contract (or to a variation of any such term); and 

 








[2025] FWC 749 

 

13 

(c) having regard to, but not limited to, the following considerations (which may 

indicate the presence, rather than an absence, of such a commitment): 

 

(i) whether there is an inability of the employer to elect to offer, or not offer, 

work or an inability of the employee to elect to accept or reject work (and 

whether this occurs in practice); 

 

(ii) whether, having regard to the nature of the employer’s enterprise, it is 

reasonably likely that there will be future availability of continuing work in that 

enterprise of the kind usually performed by the employee; 

 

(iii) whether there are full‑time employees or part‑time employees performing 

the same kind of work in the employer’s enterprise that is usually performed by 

the employee; 

 

(iv) whether there is a regular pattern of work for the employee. 

 

Note: A regular pattern of work does not of itself indicate a firm advance commitment to 

continuing and indefinite work. An employee who has a regular pattern of work may still be a 

casual employee if there is no firm advance commitment to continuing and indefinite work. 

 

(3) To avoid doubt: 

 

(a) for the purposes of paragraph (2)(b), a mutual understanding or expectation may be 

inferred from conduct of the employer and employee after entering into the contract of 

employment or from how the contract is performed; and 

 

(b) the considerations referred to in paragraph (2)(c) must all be considered but no single 

consideration is determinative and not all considerations necessarily need to be satisfied 

for an employee to be considered as other than a casual employee; and 

 

(c) a pattern of work is regular for the purposes of subparagraph (2)(c)(iv) even if it is 

not absolutely uniform and includes some fluctuation or variation over time (including 

for reasonable absences such as for illness, injury or recreation). 

 

 

[48] There are other matters dealt with at subsections (4) and (5) of s. 15A that have no 

bearing on the current matter. 

 

[49] The definition assists in that it requires an approach in the assessment of the nature of 

these employees that considers the real substance, practical reality, and true nature of the 

employment relationship. Account can also be had to the form of the contract of employment 

or, in addition to the terms of that contract, any mutual understanding or expectation between 

the employer and employee. For that purpose, a mutual understanding or expectation may be 

inferred from conduct of the employer and employee after entering into the contract of 

employment or from how the contract is performed. 

  

[50] To be satisfied that there was genuine agreement to the Agreement I am required to 

consider whether all the employees who would be covered by the Agreement who were 

employed at the time were asked to vote to approve it. Applying the principles in the cases  and 

definition to the circumstances here is not straightforward. The employees are described as 








[2025] FWC 749 

 

14 

casual in the STEA. Using the expression used in the cases, the STEAs mean the employees 

are on DOFs books. For the definition, they are contracts of employment. There is another 

agreement covering each project, the PEC. The PEC is an indication of acceptance to work on 

a project. A roster is issued for the project, and it indicates when the employees are to perform 

work on the project. These documents evince a mutual understanding or expectation arising 

from the conduct of the parties after entering into the STEA and how the agreement to perform 

work in that contract was to be performed. For these reasons I consider that the STEAs, the 

PECs and the roster are documents that have bearing on the nature of the employment and the 

timing of the employment for the purpose of determining which employees were employed 

during the access period. 

   

[51] Delving deeper into these arrangements, the STEA describes the employees as a casual 

employee. The employee agrees by the STEA to be engaged under a contract for services in 

accordance the PEC. The terms and conditions of any such engagement is governed by the 

STEA. Those terms and conditions include provision that the company engages the employee 

in a casual position for a period specified in the PEC. The casual work is said to cease at the 

“Estimated Scheduled Completion Date” stated in the PEC. The STEA contemplates that any 

number of PECs may be issued to engage the employee. It states that on each occasion the terms 

of employment will be governed by the STEA and any applicable industry agreement. The 

STEA remains in place for a time specified in the STEA. The STEA can be terminated by 

written notice. I was not provided with the individual STEAs. I was provided with the PECs. 

 

[52] The PECs refer to the commencement dates of the STEAs. Those dates ranged from 13 

July 2023 to 11 July 2024. Each of them commenced prior to the access period. The 

commencement date for the PECs issued to the employees for the project the Skandi Singapore 

was working ranged from 11 June 2024 to 23 September 2024. The commencement dates for 

the PECs issued to the employees for the Skandi Hercules ranged from 14 August 2024 to 23 

September 2024. These were all prior to the end of the access period. The completion dates in 

the PEC are, unhelpfully, not specified. Most say, “As per project requirements”. Some give an 

approximate period to completion.  

 

[53] The project rosters provide a clearer picture of the times for which the employees were 

engaged. I understand from the rosters that the project being worked by the Skandi Singapore 

continued until at least 4 February 2025 and for the Skandi Hercules the project continued until 

4 October 2024. The rosters are prepared in advance of a project commencing. I was not told 

but I infer that the employees are d the roster soon after it is prepared. I infer this from the nature 

of the work performed, which involved going to sea for days at a time. The employees would 

need to be informed that they would be away to make appropriate arrangements. Business 

efficacy would also require advance notice of shifts so that arrangements could be made if an 

employee were unavailable to work rostered shifts.   

 

[54] Considering these documents, I find that the employment and the period of that 

employment for each employee arose as follows: 

  

(a) The STEAs amounted to an acceptance by the employees to be employed as casual 

employees on future engagements. The employment that arose was to perform work on 

projects. It was casual employment in the sense that it was characterised by an absence 

of a firm advance commitment to continuing and indefinite work; and the employees 








[2025] FWC 749 

 

15 

were entitled to a casual loading or a specific rate of pay for casual employees under the 

terms of the enterprise agreement that applied at the time the STEAs were entered into. 

  

(b) Under clause 2 of the STEA a PEC issued which engaged the employee to work on 

particular projects for the period noted in the PEC. The PEC was required to specify a 

commencement date and a completion date. The way the contracts in the current 

circumstances were performed however was that the PECs for the two vessels did not 

include a completion date.  

 

(c) The practical reality was that the commencement and completion date for the work to 

be performed during the casual engagements brought about by the PECs was set out in 

the rosters. The rosters recorded the mutual understanding or expectation between the 

employer and employee 

 

[55] Applying this to the facts here, those who had an STEA at the time of the access period, 

who were rostered to work during the access period and those who were rostered to work after 

the access period were employed at the time of the access period. Those who were rostered 

before the access period (but not during it or following it) were no longer required on the project 

and were no longer employed at the time of the access period. 

 

[56] Applying this conclusion to the employees, there were eighteen names on the Skandi 

Hercules roster and twenty-six names on the Skandi Singapore Roster. Mr Lenehan appeared 

on both rosters. Mr Hardeman appeared twice on the Skandi Singapore roster, once as a rigger 

and once as a leading hand. The total number of employees on the two rosters was forty-one. 

Only thirty-four employees were asked to vote on the Agreement.  

 

[57] All forty-one had an STEA which was dated prior to the end of the access except Mr 

Lohmeyer, whose STEA was dated 29 October 2024. Mr Lohmeyer was not employed at the 

time of the access period and was not asked to vote. 

 

[58] Most of the PECs recorded a start date and stated that the period of the engagement was 

“as per the project requirements”. The requirements for the employees to work on the project 

were set out on the rosters. 

 

[59] Mr Hucherko was rostered to work 29 August 2024 to 2 September 2024 and his PEC 

notes his engagement was for “Approx. 1 week”. Mr Hurcherko’s engagement ended in 

accordance with the last date he was required to work in the roster. He was not employed at the 

time of the vote. He was not asked to vote. 

 

[60] Other employees had PEC’s which stated that they were for short periods but were 

rostered outside those periods. Mr Marsden had an STEA dated 13 July 2023. He was required 

on the roster to work 17 December 2024 to 14 January 2025. He was issued two PECs. The first 

was dated 25 June 2024 and was estimated to commence on 8 July 2024. The first PEC recorded 

the estimated scheduled completion date as “Approx. 4 weeks”. He did not perform any work 

in the 4 week period from 25 June 2024. A second PEC dated 18 December 2024 and estimated 

to commence on 27 December 2024 gave effect to his roster. It listed the scheduled completion 

date as “as per project requirements”.  I consider that, despite the ineffective first PEC,  Mr 








[2025] FWC 749 

 

16 

Marsden was employed to work on the project. His employment was in accordance with the 

STE and so he was employed at the time of the access period. He was not asked to vote.  

 

[61] Mr Bowles had an STEA dated 7 August 2023. The roster required him to work 29 

August 2024 to 3 September 2024 and 27 November 2024 to 23 December 2024. He was issued 

a PEC on 20 August 2024 which commenced on 26 August 2024 with a duration of “Approx 1 

week” but worked again in accordance with the roster. I consider that as Mr Marsden  had been 

engaged in accordance with the STEA, was employed to work on the Chevron-IMR Vessel 

Services project when placed on the roster so was employed at the time of the access period. 

He was not asked to vote.  

 

[62] A further iteration of the arrangements was Mr McKinstry. He had an STEA dated 26 

June 2024. The roster required him to work 29 August 2024 to 2 September 2024 and 7 to 10 

December 2024. He was issued a PEC on 20 August 2024 which commenced on 26 August 

2024 and was said to be for “Approx. 1 week”. The roster had further work for him on 7 to 10 

December 2024 and so he was employed at the time of the access period. He was not asked to 

vote. 

 

[63] Mr Hardeman had an STEA dated 26 September 2023. His PEC also recorded the 

estimated scheduled completion date as “as per project requirements”. He was rostered to work 

31 October 2024 to 11 November 2024 and so he was also employed at the time of the access 

period. He was not asked to vote. 

 

[64] Mr Schurman was issued with two PECs. The first referred to the effective date for an 

STEA as 19 February 2024. It recorded the estimated scheduled completion date as “as per 

project requirements”. The second which commenced on 28 October 2024 referred to another 

STEA dated 28 October 2024. The roster shows Mr Schurmann as working 29 August 2024 to 

2 September 2024, 29 October 2024 to 19 November 2024, and 7 to 9 December 2024. I 

consider that Mr Schurman was also employed at the time of the access period. He was not 

asked to vote. 

 

[65] I consider that another group, employees who were not rostered to work after the access 

period, were not employed at the time of the access period. Their PEC’s indicated that they 

were engaged as per project requirements. The rosters indicate that their engagements were for 

the beginning of the project only. These employees were no longer required at the time of the 

access period. Consequently, they were not employed at the time of the access period. Those 

employees were Mr Fenning, Mr Shannon, and Mr Ahern on the Skandi Hercules and Mr 

Brewster and Mr Hurcherko on the Skandi Singapore. Mr Hurcherko was not asked to vote, the 

other four were asked to vote to approve the Agreement. 

 

[66] Consequently, the roll of voters did not reflect all of the employees whose employment 

would be covered by the Agreement and were employed at the time of the access period as five 

employees who were entitled to vote were not asked to vote and 4 who were not entitled to vote 

were asked to vote. Thirty four were asked. Five should have been but were not. A further four 

were asked but should not have been. The voting cohort should have been thirty-five. It is 

possible that the roster provided for the Skandi Hercules was incomplete given Ms Forrester’s 

evidence of shifts later than 4 October 2024. If this were the case the number entitled to vote 

would be thirty-eight.  








[2025] FWC 749 

 

17 

 

[67]  The request to vote on the Agreement was not in accordance with s. 181(1) and so the 

requirement in s. 182(1) that the Agreement was made by a majority of employees asked to 

vote to approve it under subsection 181(1) is not met. 

 

[68] Section 188(5)(c) provides that in determining whether it is satisfied that an enterprise 

agreement has been genuinely agreed to the Commission may disregard minor procedural or 

technical errors made in relation to the requirement in s. 182(1) if it is satisfied that the 

employees were not likely to have been disadvantaged by the errors. DOF argued that if the roll 

of voters did not reflect the cohort entitled to vote under s. 181(1), I could be satisfied that the 

Agreement was approved as any error was minor and due to the numbers, who approved the 

Agreement a majority would still have been achieved. Based on my findings above given the 

various permutations in such a small cohort the result achieved is called into question 

mathematically.  

 

[69] I have found that five voters who ought to have been included were not. I have found 

that 4 voters who ought to have been excluded were not. Upon that basis, the result is 

mathematically unsafe. The maximum variance of outcome arising from the combination of 

both the exclusion and inclusion discrepancies is 9 votes. In the ballot, of the 32 votes cast, 20 

voted in favour and 12 against. A simple majority was 17. Without speculating whether the 

discrepancy of 9 votes would have reversed the outcome, I find it was capable of doing so.   

  

[70] Even if I have erred in my findings with respect to the eligibility of individual voters 

(and, with that the mathematical soundness of the result) the inquiry is substantially wider than 

the mechanical comparison of the error and margin for error. A Full Bench in McColl's 

Operations Pty Ltd v Transport Workers' Union of Australia.9 dealt with an appeal from a 

decision to refuse to approve an agreement because employees covered by the agreement were 

excluded from the vote. The Full Bench affirmed the decision at first instance. In doing so it 

considered whether the failure to afford employees a right to vote might be considered a minor 

procedural or technical error for the purpose of s.188(2)(a). The Full Bench relevantly said:  

 
[49] We reject McColls’ submission that the exclusion of the former PST employees could be 

characterised as “minor” on the basis that their inclusion in the vote could not, mathematically 

speaking, have made a difference. First, we do not consider that the magnitude of an error can 

only be measured by reference to its consequences. Second, McColls’ approach is far too 

reductionist in nature. Participation in the voting process contemplated by the FW Act involves 

more than simply casting a vote. Under s 180, prior to employees being requested to vote under 

s 181(1), they must be provided with or given access to a copy of the proposed agreement and 

any relevant materials (s 180(2)) and the employer must take all reasonable steps to explain to 

employees the terms of the agreement and their effect (s 180(5)). The real possibility that 

employees may confer amongst themselves and influence each other’s views when this is done 

cannot be excluded. For that additional reason, we do not consider that the exclusion of 27 

employees from a voting cohort of 113, of which only 45 voted in favour of the McColls 

Agreement, could be assumed not to have made any difference to the outcome.  

 

[71]  Those observations are apt to describe the circumstances in this matter. I respectfully 

adopt them. I do not consider that the exclusion of 5 employees from a voting cohort of what 

should have been 35 (or 38) employees, can be characterised as “minor” simply on the basis 

that their inclusion in the vote could not, mathematically speaking, have made a difference.   

 








[2025] FWC 749 

 

18 

[72] I also consider the errors to have disadvantaged the employees. The disadvantage being 

that the errors meant that the vote progressed with an incorrect voting cohort. This effected the 

way the employees could meaningfully engage in the approval process. I consider this to be to 

the employees’ detriment.   

 

[73] Accordingly, I am not satisfied that the error was either a minor or technical error or 

that it did not disadvantage the employees. 

 

[74] I would reach the same conclusion if the approach urged by the unions, which is 

consistent with the observation in Noorton, that the correct cohort was those who worked during 

the access period was followed.  

 

[75] As I am not satisfied that the Agreement meets the requirement in s. 186(2)(a) that it 

has been genuinely agreed to by the employees covered by it, I cannot approve it. There is no 

need to address the other issues raised.  

  

[76] The application is dismissed.  

 

 
DEPUTY PRESIDENT 

 

Hearing:  

Determined on the papers  

 

Submissions:  

Applicant: 17 December 2024, 3 February 2025 and 14 February 2025 

AWU: 6 December 2024 and 20 February 2025 

AMWU: 6 December 2024 and 20 December 2025 

 

Printed by authority of the Commonwealth Government Printer 

 

PR785249 

 
1 The application lodged identified the employer as DOF Subsea Australia Pty Ltd. Application was made to 

amend the name of the applicant to DOF Australia Pty Ltd on the basis that the name of the company has 

changed. I grant the application.  

2 At [26] and [27] 

3 At [10] see also Kmart Australia Ltd [2019] FWCFB 7599 at [43] 

4 Wayne Shortland v The Smiths Snackfood Co Ltd (Smiths Snackfood) [2010] FWAFB 5709 at [10]  

5 At [33] 


FAIR RWORK OF THE FALIT MORA MMISSION THE SEAL OF TI




 

https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7599.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb5709.htm

Cases cited by this decision: