[2015] FWC 8338

The attached Decision dated 1 December 2015 ( [2015] FWC 8338) replaces the document with the reference [2015] FWCA 8211 previously issued in its entirety."

This is to correct a referencing error."

Andrea Kerley

Relief Associate to Deputy President Gostencnik

Dated 2 December 2015

Fair Work Act 2009
s.185—Enterprise agreement

Mirait Technologies Australia Pty Ltd
(AG2015/2356)

Application for approval of the Mirait Technologies Australia (MTA) Enterprise Agreement 2015-2019.

Application for approval of the Mirait Technologies Australia (MTA) Enterprise Agreement 2015-2019; whether all reasonable steps taken to notify employees of the time and place of voting and method to be used (s.180(3); whether other reasonable grounds for believing that employees did not genuinely agree to the agreement (s.188(c);not satisfied the employees genuinely agree to the agreement (s.186(2)(a));opportunity to provide undertakings

Introduction

[1] Mirait Technologies Australia Pty Ltd (Applicant) applied under s.185 of the Fair Work Act 2009 (Act) for the approval of a single enterprise agreement titled ‘Mirait Technologies Australia (MTA) Enterprise Agreement 2015–2019’ (Agreement) . The Agreement was approved by Deputy President Lawrence on 4 May 2015 (Decision). 1

[2] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), sought permission to appeal the Decision by notice of appeal given on 22 May 2015.

[3] By a decision published on 27 July 2015 2 a Full Bench of the Fair Work Commission (Commission) determined to grant permission to appeal, upheld the appeal and quashed the Decision.3 In the course of determining the appeal, the Full Bench made the following observations:

‘[21] The material before the Deputy President needs to be considered in its totality and when that is done, it discloses more questions than answers, which in our view required further enquiry. The totality of the material before the Deputy President provided an insufficient basis to enable satisfaction that particular preapproval steps had been complied with as required by s.188(a)(i) of the Act. Reference to a few examples is sufficient to make good this point.

[22] As we have earlier indicated, in support of the application for the approval of the Agreement the Respondent lodged a statutory declaration made by Andrew Fenech made on 25 March 2015 (First Fenech Declaration). Attached to the Respondent’s submission in response to the Appellant’s objection to the approval of the Agreement is a document said to be the ‘Original F17 Statutory Declaration of Andrew Fenech’ (Second Fenech Declaration). A review of these two documents discloses the following. First, the signature page to each declaration appears to be identical. Both declarations were made on 25 March 2015. Secondly, the information contained in each declaration is different and inconsistent. There is inconsistency both as between the First and Second Fenech Declarations and internal inconsistency in the First Fenech Declaration. In particular, critical questions directed to assessing whether the pre-approval requirements had been met are materially different. For example:

S. 180(3) requirement

○ Question 2.5 of the employer’s statutory declaration in support of an application for the approval of an enterprise agreement (Form F17) requires a description of the action taken to notify all relevant employees of the date and place at which the vote will occur and the method of voting to be used. In answer to question 2.5, the First Fenech Declaration provides inter alia that the ‘date, place and time at which the vote was notified in writing via email’ and ‘voting forms and method had previously been explained to all employees’.

○ The Second Fenech Declaration does not provide any response to question 2.5. The only email in the material which makes reference to the vote to approve the Agreement is an email from Andrew Fenech dated 13 March 2015. That email advises that ‘another vote will be conducted at 7am Monday, 23 March 2015’. That email contains no information about the ‘place’ at which the vote will occur or of ‘the voting method to be used’. The answer given in the First Fenech Declaration to question 2.5 does not contain any information about when the details of the vote said to have been communicated to all employees was in fact communicated.

○ There is no other information in the First Fenech Declaration from which a date or dates on which relevant employees were notified of the date and place at which the vote would occur and the voting method to be used as required by s. 180(3) of the Act might be discerned. The statutory declarations of Greg Egan and Ian Richter do not address this issue.

○ The absence of such a date or dates means that the Deputy President could not have been satisfied that the Respondent took all reasonable steps to notify relevant employees of these matters ‘by the start of the access period for the agreement’. Consequently, the Deputy President could not have been satisfied on the material of the matters set out in s. 188(a)(i) of the Act and therefore of s. 186(2)(a) of the Act.

S. 180 (2) requirement

○ Question 2.4 of Form F17 requires a description of the steps that were taken by the employer and the date on which the steps were taken to ensure that relevant employees were given, or had access to, the text of the agreement and any material incorporated by reference into the agreement during the access period. The First and Second Fenech Declarations provide that the ‘final draft of enterprise agreement finalised and distributed to all employees’ on 13 March 2015. The same information is contained in the statutory declaration of Greg Egan.

○ The Appellant produced a series of emails passing between several of the Respondent’s managers, which on their face suggest that a variation to the Agreement was being contemplated as late as 24 March 2015. Indeed, an agreement attached to one of the emails contains additional classification and an additional rate of pay.

○ The Respondent’s submission to the Deputy President made in response to the Appellant’s concerns contained the following: ‘The WA staff raised the concern as part of discussions, and it was agreed that an additional classification would be added for them. As this addition effected (sic) no other staff member within the group, all parties felt comfortable that the Undertakings submitted in addition to the EA document or appropriate in the situation’.

○ It seems clear that the Respondent was asserting that it had agreed to vary the Agreement to include a new classification to cover employees in Western Australia who would be covered by the Agreement. The method by which this would be effected was to proffer an unsolicited undertaking to the Commission.

○ There was no material before the Deputy President which would indicate that the proposed variation to the Agreement was discussed with any employee covered by the Agreement outside of Western Australia. The material suggests that an agreement was reached by the Respondent with some employees who will be covered by the Agreement but not with others, and that this was done after voting for the Agreement had commenced. That which was sought to be approved on 23 March 2014 was different to the Agreement that was proposed on 24 March 2014. That there was no material change which affected employees in New South Wales is beside the point. Employees are not asked to approve only those parts of an agreement that affect them. Employees are asked to approve the whole of an agreement, whether particular parts effect particular employees or not.

○ In any event, it seems clear on the material that employees in Western Australia were led to believe, whether through the provision of an undertaking or otherwise, that the additional classification proposed would form part of the Agreement and would be legally binding if approval of the Agreement was given by the Commission.

○ Section 190 of the Act makes clear that the provisions concerning the giving of an undertaking only apply, relevantly, if the Commission ‘has a concern that the agreement does not meet the requirements set out in s.s 186 and 187’. There is no material which would suggest that the Deputy President raised any concerns about whether the requirements in ss. 186 and 187 of the Act have been met. The Respondent accepted that no such concern was raised by the Deputy President.

○ Whatever else might be said of the undertaking, it is not an undertaking that could have been accepted. Consequently, the undertaking given by the Respondent cannot, contrary to [8] of the Decision, be taken to be a term of the Agreement.

○ As the terms of the undertaking were intended by the Respondent to operate as terms of the Agreement, and as the material before the Deputy President does not disclose whether employees, other than Western Australian employees were aware of this, it seems to us that the Deputy President could not be satisfied on the material that either:

n during the access period the relevant employees were given a copy of the ‘written text of the agreement’ for which approval was sought; or

n that the relevant employees had access to the written text of the agreement throughout the access period,

as required by s.180(2) of the Act. Consequently the Deputy President could not have been satisfied on the material of the matters set out in s. 188 (a) (i) and therefore of s. 186 (2) (a) of the Act.

○ Moreover, in the circumstances it seems to us that there were reasonable grounds for believing that the Agreement may not have been genuinely agreed to by the employees as the content of the Agreement had in effect been altered after the voting for the approval of the Agreement had commenced. It is not within the scheme of the Act that a party can seek to alter the terms of an agreement by proffering an undertaking which is not responsive to a concern raised by the Commission as set out in s. 190(1) of the Act. Any suggestion to employees who will be covered by a proposed agreement that such an unsolicited undertaking will be effective as a term of the agreement is likely to mislead.

S. 180(4) requirement

○ The First Fenech Declaration sets out in tabular form some steps said to have been taken by the Respondent to explain the terms of the Agreement, and the effect of those terms to the relevant employees. The information provided asserts that ‘all employees met to review Enterprise Agreement’ on 27 January 2015. The information also asserts that various meetings were conducted in February and March 2015 with all employees and the Negotiating Committee.

○ No information is provided about the explanation provided during these meetings, and, self-evidently, ‘all employees’ could not have attended the same meeting or meetings since the bulk of employees were in New South Wales and three of the employees were located in Western Australia.

○ Moreover, the First and Second Fenech Declarations contain a conflict in the account of the steps taken to explain the terms of the Agreement to the employees in Western Australia. The Second Fenech Declaration provides the following explanation:

‘We had no employees from a non-English speaking background nor did we have any junior workers. Thus the process included various meetings with the terms and conditions were explained to all relevant employees. Normal plain English was used to explain the terms and conditions of the enterprise agreement. All employees were encouraged to ask questions and to speak to be a supervisor of (sic) workplace representative if they had any questions or concerns. All employees either had a copy of the agreement or had access to the enterprise agreement.’

○ The First Fenech Declaration provides the following explanation:

‘To the Applicant (sic) knowledge, all employees are fluent in English. An interpreter service was offered to three (3) employees in W.A. who are from a non-English-speaking background, however those employees declined and preferred instead to hold discussions regarding the enterprise agreement prepare project manager. The Applicant does not employ junior workers at this time. Thus the process included various meetings with the terms and conditions were explained to all relevant employees. The Applicant presented an explanation of the terms and conditions of the enterprise agreement in plain language. All employees were encouraged to ask questions and to speak to their supervisor of (sic) workplace representative if they have any queries or concerns. All employees either had a copy of the agreement or had access to the enterprise agreement.’

○ This inconsistency required further examination. When combined with the attempted last-minute alterations to the Agreement, it seems to us that the Deputy President could not have been satisfied on the material that the Respondent took all reasonable steps to ensure that the terms of the Agreement and the effect of those terms were explained to relevant employees as required by s. 180(5) of the Act. Consequently, the Deputy President could not have been satisfied on the material of the matters set out in s. 188(a)(i) of the Act and therefore of s. 186(2)(a) of the Act.

[23] The examples given above are by no means an exhaustive dissertation of the inconsistency in the material before the Deputy President, but as we indicate above, it is sufficient for our purposes to establish that on the state of the material before the Deputy President there was not a proper basis upon which the Deputy President could have been satisfied that the Respondent had complied with the pre-approval steps set out in s. 180 of the Act.’ 4 [Endnotes omitted]

[4] The application for the approval of the Agreement was remitted to me for determination. 5

Consideration

[5] In light of the Full Bench’s observation I made directions for the filing of additional evidentiary materials and submissions, and I conducted further hearings in order to assist me to determine whether the Agreement could be approved.

[6] I am not satisfied that the statutory requirements which would enable the Agreement to be approved have been met and subject to what is said at the conclusion of these reasons, I cannot approve the Agreement. My reasons for that conclusion follow below.

[7] It is first necessary to set out some relevant factual matters. Voting by employees to approve the Agreement commenced on 23 March 2015 and the Agreement was said to have been made on 24 March 2015, 6 although it seems clear on the evidence that the Agreement was not made until 25 March 2015.7 Employees who were to be covered by the Agreement and entitled to vote to approve the Agreement numbered 48, and they were located in New South Wales (44); Queensland (1); and Western Australia (3). The three employees in Western Australia were employed by the Applicant pursuant to s.457 Visa arrangements.8 Forty seven employees cast a valid vote and 25 of these employees voted to approve the Agreement.9 The access period for the Agreement10 ended on 22 March 2015 and began on 15 March 2015. This was the third attempt by the Applicant to have an enterprise agreement approved by the employees.

[8] The CEPU raised a number of objections to the approval of the Agreement, most of which were not made out and I do not propose to repeat them here. It is sufficient to observe that I am otherwise satisfied that the Agreement and the circumstances of its making, meets the statutory requirements for approval except in two respects.

Subsections 180(3), 186(2)(a) and 188(a)(i)

[9] The first concerns the requirement in s.180(3) of the Act. Before an enterprise agreement can be approved, the Commission must be satisfied (in relation to a non-greenfields agreement), inter alia that the agreement has been genuinely agreed to by the employees covered by the agreement. 11 Section 188 of the Act explains when employees have genuinely agreed to an enterprise agreement as follows:

‘188 When employees have genuinely agreed to an enterprise agreement


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

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

(i) subs.s 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subs. 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 subs. 182(1) or (2) applies (those subs.s 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.’

[10] It seems clear from the structure of s.188 that the Commission must be satisfied of each of the matters identified therein before it can be said that an enterprise agreement has been genuinely agreed to by employees covered by the agreement. Relevantly, for present purposes, the Commission must be satisfied that each employer covered by the Agreement complied with s.180(3) of the Act. Section 180(3) of the Act provides:

‘(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.’

[11] The access period referred to in s.180(3) for a proposed enterprise agreement is the seven day period ending immediately before the start of the voting process referred to in s.181(1) of the Act. 12 

[12] Before turning to explain why I am not satisfied that the Applicant complied with the above mentioned pre-approval step, I make the observation that s.180(3) of the Act does not require an employer to do, in absolute terms, the things set out in that subsection. That which is required by the subsection is for the employer to ‘take all reasonable steps’ to do the things required. Thus it may be, in a particular case, that an employer has notified some or all of the employees of the date, place and method of voting after the start of the access period, but on the facts of the particular case, the Commission might nevertheless be satisfied that the employer took all reasonable steps to do so by the start of the access period.

[13] Question 2.5 of the Employer’s Statutory Declaration in support of an Application for the approval of an enterprise agreement (Form F17) requires a description of the action taken to notify all relevant employees of the date and place at which the vote will occur and the method of voting to be used. In answer to question 2.5, the declaration made by Mr Andrew Fenech on behalf of the Applicant provides inter alia that the ‘date, place and time at which the vote was notified in writing via email and also advised verbal (sic) to employees by the bargaining committee, supervisors, project managers and the state managers’ and ‘voting forms and method had previously been explained to all employees’.

[14] The email to which reference is made is dated 13 March 2015. 13 The email is not addressed to, nor was it sent to all of the employees who will be covered by the Agreement, and relevantly provides the following:

“Sorry people please disregard the previous email.

Please find attached the proposed AA and letter of offer template. Can you please ensure all EA covered employees have a copy or at least access to a copy.

Be aware another vote will be conducted at 7 am Monday, 23 March 2015.”

[15] It is evident that the email only contains information about the time at which the vote will occur but there is no information about the place at which the vote will occur or the method of voting.

[16] Mr Fenech gave the following further relevant evidence:

‘In part 2.5 of the Form F17 that I tiled in the Fair Work Commission, being my statutory declaration included as an attachment to my email application to the Commission on 2 April 2015, I gave a brief description of how all relevant employees were notified of the date and place of the vote, and the voting method to be used in deciding whether to approve of the new Mirait Technologies Australia (MTA) Enterprise Agreement 2015- 2019 (Agreement).

The vote process held over 23 and 24 March 2015 was the third time all employees in NSW and Western Australia had been asked to vote on the Agreement. There were previous voting processes in January and February 2015, which did not result in a successful vote to approve the Agreement.

The first time I explained the voting process to employees was on 24 November 2014, during the meeting to kick-off the negotiations process. During the meeting with NSW employees on this date, I explained to all employees at this meeting that when Mirait was ready to hold a vote there would be an anonymous on-site voting process, where employees would have a one page form and would be asked to tick one box ‘yes’ to approve the Agreement, or another box ‘no’ if they did not want to approve the Agreement, the votes would be collected collected (sic) together and then counted, and no one would be able to identify how any particular employee voted. I repeated this information during a telephone call with the three WA employees, some time after I sent an email to Mr Adam Kudray, WA Supervisor on 24 November 2014 (at AF-3 to my Statement of 12 June 2015).

The Mirait workforce in NSW work in teams of around 4 - 6 people with a Supervisor for each team. The teams work is geographically dispersed due to the nature of their work. For this reason, the team Supervisor was the person who would usually give information out to the team and bring information and questions about the Agreement from the team back to me.

In January 2015, Mira it conducted the first vote process on the Agreement, which resulted in the Agreement not being approved by a valid majority of employees who voted. Prior to this vote, I sent copies of the one page vote form to all Team Leaders/Supervisors in NSW and WA, with enough copies so that each team member could vote, and also asked them to explain to their team that the vote would occur at 7am, during Mirait’s usual Monday morning pre-start work meeting at the Lisarow workshop in NSW. I also had copies of the vote form at the workshop in case anyone needed one. The form contained one question, which asked employees to tick one box to indicate whether they approved of the Agreement or did not approve. To indicate approval, the employee would tick the ‘yes’ box, and to indicate the employee did not approve, the employee would tick the ‘no’ box. On the day the vote was held, the votes were collected at Lisarow and counted by myself and other bargaining committee members counted.

After I sent out the ballot papers to the Supervisors, I spoke to all of the Supervisors in person or by telephone to check that they had the ballot papers or had handed them out to their teams, and that they had informed their team of the time and place that the vote would take place. To the best of my recollection, no Supervisor told me they had not done so.

A similar voting process took place in February 2015, which also resulted in in the Agreement not being approved by a valid majority of employees who voted. I followed the same process of distributing an identical ballot paper to the Supervisors and encouraging them to hand out the ballot papers and give the same message to their teams about the time and place of the voting process, which took place at 7am on a Monday morning at the Lisarow workshop.

In my email of 13 March 2014 (at AF-3 to my Statement of 12 June 2015), I advised all supervisors that there would be another vote conducted at 7am on Monday, 23 March 2015. From the time I sent that email and until the vote, I spoke with all of Mirait’s supervisors in NSW either in person or by telephone and encouraged them to pass on the email and talk to their teams and explain that there would be another vote on site, using the same vote process as before. That is, the NSW Supervisors were to hand out a copy of the ballot paper to each team member (the blank ballot paper was in the same form as the first two votes), and explain to their team that the vote process would take place at 7am at the usual Monday morning pre-start meeting at the Lisarow workshop on 23 March 2015. I asked Mr Kudray to hand out the ballot papers to his team in WA and explain to his team that they would be asked to vote on 24 March 2015.’ 14

[17] Mr Kudray was not available to give evidence and I do not draw any inference from his absence. His absence was satisfactorily explained.

[18] However, it is to me clear from the above that no step seems to have been taken to check whether the information that Mr Fenech says he asked the relevant supervisors and managers to convey was actually conveyed to the employees or that this was done by the start of the access period. Moreover, it seems to me that the Applicant adopted a very convoluted and indirect method of communicating fairly simple information to relevant employees about the time and place of voting and the method of voting by passing on information to supervisors who, in turn, were encouraged or asked to pass on that information to relevant employees.

[19] It seems to me in the circumstances that it would have been reasonable to simply communicate this information to the employees directly. This communication could have been undertaken through an email sent to the relevant employees or by a notice posted on notice boards accessible by the relevant employees, or handed out to the relevant employees at tool box meetings. These steps all seem to me to be reasonable steps that were available to the Applicant but none was taken up.

[20] Furthermore, none of the supervisors or managers to whom the email was sent gave evidence to verify that they had undertaken the task of communicating relevant information to employees by the start of the access period. Thus all that I have before me is Mr Fenech’s evidence that he communicated with the supervisors and managers and that he ‘encouraged’ (not instructed) those supervisors and managers to communicate the requisite information to employees. I do not have even the barest of hearsay evidence which might have been to the effect that Mr Fenech has spoken to each of the relevant supervisors and managers, that he was informed by them and that he believes that those supervisors and managers relevantly communicated with each relevant employee and conveyed the requisite information.

[21] The only written evidence is the email that Mr Fenech sent to various supervisors and managers on 13 March 2015. The information that he therein communicated does not contain all of the requisite information as required by s.180(3) of the Act. Moreover, that email advises that there would be a vote on 23 March 2015, when it is apparent that at least the Western Australian employees did not vote until 25 March 2015. 15 Thus even if I accepted Mr Fenech’s evidence that he had asked Mr Kudray to hand out ballot papers to his team in Western Australia and to explain to those employees that they would be asked vote on 24 March 2015, and I accepted that Mr Kudray did so, given that Western Australian employees were not asked to vote until 25 March 2015, that information, if conveyed, was wrong.

[22] In all of these circumstances, I am not satisfied that the Applicant took all reasonable steps to notify the relevant employees by the start of the access period for the agreement of the time and place at which the vote will occur and the voting method that will be used. It follows that I cannot be satisfied that the relevant employees genuinely agreed to the Agreement within the meaning of s.188 of the Act and in consequence I am not satisfied as required by s.186(2) of the Act the Agreement has been genuinely agreed to by the employees covered by the Agreement.

Other reasonable grounds for believing agreement may not have been genuinely agreed to

[23] When the application for approval of the Agreement was before Deputy President Lawrence, the Applicant proffered an unsolicited undertaking. Undertakings are only able to be accepted by the Commission which have given in response to concerns that the Commission has expressed that the agreement the subject of the application does not meet the requirements set out in ss.186 and 187 of the Act. 16 Before me, the Applicant did not rely on the undertaking proffered to Deputy President Lawrence.17 But that is not the end of the matter.

[24] It is apparent from the material that at some point prior to the vote to approve the Agreement, the three Western Australian employees raised some questions about whether the Agreement contained classifications which covered their employment and the rate of pay under the Agreement which would apply to their employment. As a consequence of the concerns that were raised, Mr Fenech and others held a meeting with the three employees on 24 March 2015. This was the day after employees in New South Wales and Queensland had already voted. The three employees in Western Australia ultimately each voted to approve the Agreement. 18 In the result, 25 employees, or a majority of the 47 that cast a valid vote, voted to approve the Agreement.

[25] However, as things stood on 24 March 2015, when Mr French and others met with the three Western Australian employees, only 22 employees of the 44 employees that had cast a vote had voted to approve the Agreement. Self-evidently this was not a majority.

[26] Mr Fenech’s evidence about the meeting on 24 March 2015 was as follows:

‘On 24 March 2015, I participated in a telephone conference call with Mr Kudray, and the three WA based employees in relation to the Agreement. To the best of my recollection, in the week before the vote was held Mr Kudray had advised me the WA employees were asking what their classification would be under the Agreement. The three WA employees were working as Radio Linesmen, and they were not sure where that fitted under the classification structure in the Agreement. I was then involved with some discussions with Mr Kudray and other managers on how to answer this query, which involved telephone calls and email correspondence over a few days before the vote process. The outcome of these discussions was that the three WA employees would be classified in the Civil Worker Grade 3 classification. During these discussions, we considered how this would be communicated to the three WA employees, and one option discussed was to amend the terms of the Agreement to include an express classification for ‘Radio Linesman Technician’. However, this did not occur for the reason I have given in paragraph 9 of my Statement of 12 June 2015. The WA employees were not ever shown or given an amended form of the Agreement to include this extra classification. Instead, I explained to the three employees during the teleconference on 24 March 20’15 that they would be classified at the Civil Work Grade 3 level.

I did not draft the document headed ‘Undertakings’ until around 26 March 2015. I decided to write the Undertakings as a way of being able to confirm in writing what I had said to the WA employees on 24 March 2015, as well as deal with two other matters that come up in the days before the vote took place.’

[27] During his oral evidence Mr Fenech was asked a number of questions about the meeting with the Western Australian employees on 24 March 2015 and relevantly said:

‘Mr Fenech, I’m backtracking a bit, a minute or two ago you said, it was your evidence that you received an indication that the three employees would look favourably on the agreement. I apologise if I have got that wrong. You said something to that effect, is that right?  -Yes, that’s correct. Towards the end of that meeting we spoke with each of the three West Australian employees and they indicated that they were looking at the agreement favourably.

How did they indicate that?  -They said words to the effect, you know, we don’t - I don’t have any problems with the agreement, words to that effect.

. . .

Did this issue of a different classification come up at all in this telephone conversation, Mr Fenech?  -Yes, it did.

How was that dealt with?  -I explained in an enormous amount of detail that the appropriate and best - the appropriate legal way to deal with it was through the undertakings, which as I said I explained and then we later put those undertakings together in writing.’ 19

[28] It seems clear to me that the Western Australian employees were given particular information about the way in which their concerns would be dealt with. They were told that ‘the appropriate legal way to deal with it was through the undertakings’ 20 As the Full Bench dealing with the appeal in this matter observed in the extract passages above, the undertaking was legally ineffective. However, it seems to me that the employees were led to believe that this was an efficacious way to deal with the concerns. Employees were asked to vote to approve the Agreement after this explanation had been given to them. The information was wrong or at least, misleading. In the circumstances I cannot be satisfied the information provided to the employees was not a significant contributing factor to those employees’ decisions to vote to approve the Agreement. Therefore, in the circumstances where their votes to approve the Agreement were critical in securing a majority, I am not satisfied that there are no other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees. Consequently, I am not satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement.

Undertakings

[29] As I foreshadowed at the conclusion of the hearing of this matter, 21 whilst undertakings are usually proffered for the purposes of satisfying concerns about the better off overall test, s.190 of the Act makes clear that undertakings may be proffered if the Commission has concerns that the agreement does not meet the requirements set out in ss.186 and 187 of the Act. For the reasons given above, I am not satisfied on the material before me that the Agreement has been genuinely agreed to by the employees covered by the agreement as required by s.186(2)(a) of the Act.

[30] Whilst I doubt that an appropriate undertaking could be formulated to overcome the issues that I have identified, I nevertheless give the Applicant an opportunity to proffer any undertaking which might meet my concerns within seven days of the date of this decision. If an undertaking is not proffered, or if one is proffered but is not satisfactory to address my concerns, I propose to dismiss the application.

Conclusion

[31] For the reasons given I am not satisfied that the employees covered by the Agreement genuinely agreed to the Agreement. Unless a satisfactory undertaking is received by my chambers within seven days of the date of this decision I will dismiss the application.

DEPUTY PRESIDENT

Appearances:

B. Gee, solicitor, for the Applicant.

D. Dwyer for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)

Hearing details:

2015.

Sydney.

October 14.

November 6.

Final written submissions:

Outline of Final Submissions of Applicant, 30 October 2015.

Outline of Final Submissions of CEPU, 5 November 2015.

 1   [2015] FWCA 3047; see also correction dated 9 June 2015 to [6] of the Decision.

 2   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Mirait Technologies Australia Pty Ltd [2015] FWCFB 5078.

 3   Ibid at [27].

 4   Ibid at [22]-[23].

 5   Ibid at [27].

 6   See Employer's Statutory Declaration in support of application for approval of an enterprise agreement at p 5 (Q2.8).

 7   Transcript PN 322 – PN 324.

 8   Exhibit 6 at [7].

 9   See Employer's Statutory Declaration in support of application for approval of an enterprise agreement at p 5 (Q2.10).

 10   See s.180(4) of the Act.

 11   See ss.186 (1) and (2) (a).

 12   See s.180(4).

 13   Exhibit 6, Annexure AF-3.

 14   Exhibit 7 at [2]-[9].

 15   Transcript PN 322 – PN 324.

 16   see s.190(1) of the Act.

 17   Transcript PN 23-PN 24 and PN 144.

 18   Exhibit 11.

 19   Transcript PN 329-PN 337.

 20   Transcript PN 337.

 21   Transcript PN 1613-PN 1622.

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