[2019] FWCFB 318
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.185—Enterprise agreement

Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others
(AG2018/3482 and others)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SAUNDERS

MELBOURNE, 18 JANUARY 2019

Applications for approval of single-enterprise agreements – Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 – proper construction of s.188(2).

Background

[1] The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (the Amending Act) amended, among other things, s.188 of the Fair Work Act 2009 (the Act) to provide a mechanism for the Fair Work Commission (the Commission) to conclude that an enterprise agreement has been ‘genuinely agreed’, within the meaning of s.186(2)(a), despite ‘minor procedural or technical errors’. The Amending Act received the Royal Assent on 11 December 2018 and the amendments to s.188 commenced on 12 December 2018.

[2] Staff of the Commission undertook a review of s.185 applications for approval of enterprise agreements that are presently before the Commission and identified a number of examples of apparent failures to satisfy s.188(1) of the Act, to which s.188(2) may apply. These matters reflect procedural or technical issues that are commonly identified in relation to s.185 applications. No Member of the Commission has yet considered whether the examples selected actually involve failures to satisfy s.188(1).

[3] In order to provide some early clarity around the operation of the new s.188(2), the President referred these matters to this Full Bench for hearing (the Matters). This decision only deals with this aspect of these s.185 applications; we will not determine whether the agreements concerned are otherwise capable of approval (such as considering whether or not the agreements pass the Better Off Overall Test). Where any of the Matters require further consideration as to whether or not the agreement concerned is capable of being approved, it will be referred to a single Member for decision.

[4] On 11 December 2018 we published a Statement 1 which set out the relevant terms of the Amending Act and some of the extrinsic material and grouped the Matters according to the issues they raised. The Minister for Jobs and Industrial Relations (the Minister), the Peak Councils including the Australian Chamber of Commerce and Industry (ACCI), the Australian Council of Trade Unions (ACTU) and the Australian Industry Group (Ai Group) and any other interested persons were invited to lodge written submissions on the proper construction of s.188(2) of the Act. The parties to each of the Matters were also invited to lodge submissions on the proper construction of s.188(2) and its application to their matter. A hearing subsequently took place on 21 December 2018.2

[5] ACCI, ACTU and Ai Group lodged written submissions and made oral submissions at the hearing. Meredith Roof Plumbing Pty Ltd filed written submissions in relation to matter AG2018/6664.

[6] The Minister forwarded correspondence but did not advance a substantive submission, nor was the Minister represented at the hearing. It is regrettable that the Minister chose not to participate in the proceedings as the Amending Act raises some contentious construction issues and we may have been assisted by the Minister’s submissions in respect of those issues.

[7] To assist the parties, the Statement identified some issues as to the proper construction of proposed s.188(2) that might be raised by one or more of the Matters, as follows:

1. What constitutes a ‘minor procedural or technical error’ within the meaning of proposed s.188(2)? Is it material whether the non-compliance with the relevant procedural or technical requirement was unintended or deliberate or reckless?

2. In what ways might employees be ‘disadvantaged’ by a ‘minor procedural or technical error’ for the purposes of proposed s.188(2)?

3. In what circumstances are employees ‘not likely’ to be disadvantaged by a ‘minor procedural or technical error’ for the purposes of proposed s.188(2)? In what circumstances are employees ‘likely’ to be disadvantaged by a ‘minor procedural or technical error’?

4. The EM at paragraph 48 suggests that in considering whether the employees were not likely to have been disadvantaged by a procedural or technical error, the Commission ‘could take into account, for example, the effect of the error and circumstances of the error.’ What sort of material might the Commission need to consider in assessing this?

5. Would considering the effect of an error and the circumstances of an error include taking into account the likely costs and inconvenience to the employer and the employees covered by the agreement, associated with further delaying the approval of the agreement?

[8] This decision deals with the application of s.188(2) to the Matters. We deal first with the proper construction of s.188(2) before turning to the Matters.

The proper construction of s.188(2)

[9] The starting point is to construe the words of a statute according to their ordinary meaning having regard to their context and legislative purpose. Context includes the existing state of the law and the mischief the legislative provisions was intended to remedy and the legislative history.3

[10] The plurality in SZTAL v Minister for Immigration and Border Protection 4 (SZTAL) succinctly described the contemporary approach to statutory construction:

‘The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.’ 5 (footnotes omitted)

[11] The observations of Gageler J in SZTAL are also important:

‘The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.

The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural” , in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.

Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, “the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation” “is in that respect a particular statutory reflection of a general systemic principle” .’ 6 (footnotes omitted)

[12] One of the matters which the plurality and Gagelar J highlighted in SZTAL is the importance of a purposive approach. Such an approach is also required by s.15AA of the Acts Interpretation Act 1901 (Cth) (AI Act). It requires that a construction that would promote the purpose or object of the Act is to be preferred to one that would not promote that purpose or object (noting that s.40A of the Act provides that the AI Act as in force on 25 June 2009, applies to the Act). The purpose or object of the Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the Act, and another does, the latter interpretation is to be preferred. Of course, s.15AA requires one to construe the Act in the light of its purpose, not to rewrite it. 7

[13] The object of the Act set out in s.3 is relevant:

‘3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia’s future economic prosperity and take into account Australia’s international labour obligations; and

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action; and

(g) acknowledging the special circumstances of small and medium-sized businesses.’

[14] Further, s.578 states:

‘In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

[15] As stated in s.578(a), in performing functions and exercising powers under a part of the Act (including the approval of agreements under Part 2-4 Enterprise Agreements) the Commission must take into account the objects of the Act and any particular objects of the relevant part. The objects of Part 2-4 are set out in s.171:

‘171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) making bargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.’

[16] Of course it must be borne in mind that the purpose or policy of the Act is to be gleaned from a consideration of all of the relevant provisions of the Act. 8 Section 577 is also relevant to context; it provides:

‘577 Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.’

[17] While the requirement to prefer an interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated) over any other interpretation is uncontroversial; difficulties can arise in identifying the relevant purpose or object. This is particularly so where legislation reflects Parliament’s balancing of competing and conflicting interests or where the legislation has more than one purpose. The Act is a case in point.

[18] The object provision in the Act (s.3, set out above at [13]) acknowledges that the legislation reflects ‘a balanced framework’ for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians’ (emphasis added) in the various ways specified in the section.

[19] There are multiple objects or purposes of the Act some of which are reflected in s.3. It is apparent that there is no single Parliamentary intention underlying the enactment of the Act; rather the underlying purposes and objects reflect a diverse range of intentions. In circumstances where there is more than a single legislative object or purpose it can be difficult to identify which is apposite to the construction of a particular provision. As Gleeson CJ observed in Carr v Western Australia: 9

‘Another general consideration relevant to statutory construction is one to which I referred in Nicholls v The Queen. It was also discussed, in relation to a similar legislative scheme, in Kelly v The Queen . It concerns the matter of purposive construction. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.’ 10 [Footnotes omitted]

[20] We now turn to the relevant statutory provisions.

[21] Section 186(1) requires the Commission to approve an enterprise agreement if the requirements in ss.186 and 187 are met. Relevantly for present purposes, the approval requirements include s.186(2)(a):

‘(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement …’

[22] Section 188(1) provides that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement, for the purpose of s.186(2)(a) if the Commission is satisfied of the matters set out in s.188(1)(a)–(c) as follows:

‘188 When employees have genuinely agreed to an enterprise agreement

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

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

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

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

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

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

[23] In summary, the matters in ss.188(1)(a)–(c) are respectively that:

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

•  s.180(2): the employer must take all reasonable steps to ensure that during the ‘access period’ 11 the ‘relevant employees’12 are given a copy of the text of the agreement and any material incorporated by reference into it, or have access throughout the access period to a copy of those materials;

•  s.180(3): the employer must take all reasonable steps to notify the relevant employees by the start of the access period of the time and place at which the vote will occur and of the voting method;

•  s.180(5): the employer must take all reasonable steps to ensure that the terms of the agreement and their effect are explained to the relevant employees in an appropriate manner taking into account the employees’ particular circumstances and needs; and

•  s.181(2): that the employer not request employees to approve the agreement by voting on it until at least 21 days after the day on which the last ‘notice of employee representational rights’ (NERR) under s.173(1) is given; and

(b) the agreement was made by an employee vote in accordance with ss.182(1) or (2); and

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

[24] The Full Bench majority in Ostwald Bros Pty Ltd v CFMEU 13 (Ostwald) described the operation of s.188(1) (then numbered s.188) in broad terms as follows:

‘[78] … “Genuinely agreed”, in s.188 is expressed in terms of satisfaction that particular bargaining provisions within the Act have been complied with (ss.188(a) and (b)) and satisfaction of a more general criterion in s.188(c), rather than in terms of a general consideration of whether in the circumstances of a particular agreement a member is satisfied that the agreement has been genuinely agreed to by the employees.

[79] As the Full Bench in Galintel noted “Section 188 establishes a set of requirements, each of which must be satisfied if the necessary finding is to be made under s186(2)(a)”.

[80] Section 188 of the Act does not provide a wide general discretion for determining whether employees have genuinely agreed to an enterprise agreement focussed at the point of approval. Rather it requires specific actions to have been undertaken (in ss.188(a) and (b) at specified times in advance of approval), with s.188(c) then requiring satisfaction that there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees. Section 188(c) of the Act, although itself a broad discretionary consideration, is an additional matter about which [the Commission] needs to be satisfied and relates to grounds other than those arising in relation to the ss.188(a) and (b) matters.

[81] Section 188 of the Act is different, in that respect, from some previous statutory provisions concerning genuine agreement or genuine approval of agreements which were cast in general terms. For example, s.170LT (Certifying an Agreement) of the Workplace Relations Act 1996’. 14 [Citations omitted]

[25] The Amending Act adds a new s.188(2) which provides a means for finding that an agreement has been genuinely agreed to despite minor procedural or technical errors as follows:

‘(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174.’

[26] Subsection 188(2) applies in relation to an application under s.185 for approval of an enterprise agreement, where the application is made:

(i) on or after 12 December 2018; or

(ii) before 12 December 2018 if any of the following circumstances apply:

•  the Commission had not decided the application on or before 12 December 2018; or

•  the Commission had decided the application before 12 December 2018 and an application to appeal had been made but the Commission had not made a final decision on the appeal before 12 December 2018; or

•  the Commission had decided the application within 21 days before 12 December 2018 and immediately before 12 December 2018 no application to appeal had been made, but an application to appeal was made within 21 days of the decision. 15

[27] We now turn to the background of the insertion of s.188(2) and other extrinsic materials including the explanatory memorandum, the revised explanatory memorandum and two supplementary explanatory memorandums. 16

[28] The enactment of s.188(2) had its genesis in Recommendation 20.1 of the Productivity Commission’s Workplace Relations Framework, Final Report which states:

‘The Australian Government should amend the Fair Work Act 2009 (Cth) to:

•  allow the Fair Work Commission wider discretion to overlook minor procedural or technical errors when approving an agreement, as long as it is satisfied that the employees were not likely to have been placed at a disadvantage because of an unmet procedural requirement.

•  extend the scope of this discretion to include minor errors or defects relating to the issuing or content of a notice of employee representational rights.’ 17

[29] The Productivity Commission made the following comments in relation to Recommendation 20.1:

‘In cases where an undertaking is not feasible or would cause undue inconvenience, the FWC should have the discretion to determine whether a procedural defect did not materially affect the bargaining or approval process and therefore does not require an undertaking to remedy it. The key test for exercising discretion could be that the FWC is satisfied that employees were not likely to have been placed at a disadvantage during bargaining or the pre-approval process because of the unmet procedural requirement. The FWC should also have regard to the likely costs to the parties — including the employees — associated with further delaying approval of the agreement. To help maintain consistency and transparency for all parties, the FWC could develop and publish guidelines about how members should exercise their discretion with respect to procedural defects.

The goal of this proposed change is to resolve procedural inflexibilities and prevent minor procedural errors or defects in the bargaining process derailing an otherwise fundamentally sound agreement at the approval stage. Numerous inquiry participants, primarily employers and employer groups, were supportive of such a change. The capacity for the FWC to overlook minor procedural defects is also not without precedent — s. 461 of the FW Act currently allows a protected action ballot order (chapter 27) to be valid even if where there is a ‘technical breach’ of the provisions.

Allowing the FWC the discretion to overlook a procedural defect without an undertaking should not be seen as an avenue to allow some employers to skirt procedural requirements in order to gain an edge during bargaining. Employers generally do not have an incentive to expose themselves to the FWC over procedural issues. It is also unlikely that a deliberate procedural error by an employer would both lead to a meaningful advantage in bargaining and yet also escape the scrutiny of the FWC.’ 18

[30] It is apparent from the extrinsic material that s.188(2) was enacted in response to the Productivity Commission’s Recommendation 20.1. The Revised Explanatory Memorandum states the following in its overview of the amendments to s.188:

‘The PC Report recommended that the FWC should be able to overlook minor procedural or technical errors when approving an enterprise agreement, if it is satisfied that employees were not likely to have been disadvantaged by those errors. The PC Report also recommended that this be extended to the requirements relating to the Notice given under subsection 173(1) (Recommendation 20.1). 19

[31] The Revised Explanatory Memorandum states that s.188(2) ‘responds to PC Report Recommendation 20.1. 20

[32] In the Bill initially introduced into Parliament, the wording of the proposed paragraph 188(2)(b) differed from its final form. Section 188(2) as originally drafted was as follows:

‘(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors.’

[33] The words in s.188(2)(b) after ‘the errors’ (namely: ‘in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174’) were introduced by Government amendment. We return to the significance of the additional words later.

[34] We now turn to the text of s.188.

[35] We note at the outset that ss.188(1) and (2) are to be approached sequentially, 21 that is to say the first question is whether the Commission is satisfied as to the matters at s.188(1)(a)–(c). If the Commission is so satisfied then the agreement has been genuinely agreed, and there is no need to consider s.188(2). The sequential nature of the approach to be taken is evident from the numbering of the subsections and the use of the expression ‘has also been’ in the prefatory words of s.188(2) and the expression ‘would have been … but for’ in s.188(2)(a), which make it clear that s.188(2) provides an alternate pathway to that in s.188(1).

[36] It follows that s.188(2) is confined in its terms to circumstances where the Commission is not satisfied that an agreement has been genuinely agreed to within the meaning of s.188(1), as a result of ‘errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights’. There is no express reference in s.188(1) to ss.173 and 174; rather, Commission authorities establish that strict compliance with the NERR timing and form and content requirements in ss.173 and 174 is necessary in order to meet the requirements ‘mentioned in paragraph (1)(a) and (b)’ of s.188(1). 22

[37] The important point for present purposes is that s.188(2) is engaged only where the Commission would have been satisfied that an agreement was ‘genuinely agreed’ to within the meaning of s.188(1) ‘but for’ errors made in relation to the ‘particular bargaining provisions’ mentioned in paragraphs (1)(a) or (b) (or ss.173 and 174). Section 188(2) does not extend to circumstances where the Commission is not satisfied that an agreement was genuinely agreed to in a more general sense, as might arise in considering s.188(1)(c).

[38] The reference to the ‘employees covered by the agreement’ in ss.188(1) and (2), is a reference to those employees employed and covered by the agreement at the time of the request to vote under s.181. 23

[39] We would also observe that ss.188(1) and (2) both provide that an enterprise agreement has been genuinely agreed to if the Commission is satisfied as to certain matters (i.e. those in ss.188(1)(a) to (c) and ss.188(2)(a) and (b) respectively).

[40] There was some debate before us as to whether s.188(2), and the use of the expression ‘if the Commission is satisfied’ (emphasis added) involves the exercise of a discretion. As the High Court observed in Coal and Allied Operations Pty Ltd v AIRC: 24

‘“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion.’ 25 [Footnotes omitted]

[41] It seems to us that the latitude as to the choice of the decision to be made under s.188(2) is quite narrow in that the decision maker is required to conclude that the agreement was genuinely agreed to if he or she forms a particular opinion or value judgment. Assessing the genuineness of agreement under ss.188(1) and (2) involves an evaluative assessment. As the Full Bench observed in The Maritime Union of Australia v MMA Offshore Logistics Pty Ltd t/a MMA Offshore Logistics: 26

‘Satisfaction as to the assessment of the genuineness of agreement under s.186(2)(a) and s.188 involves an evaluative assessment akin to the exercise of a discretion.’ 27

[42] We now turn to s.188(2)(a):

‘(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and’

[43] In order for an agreement to have been genuinely agreed to under s.188(2) the Commission must be satisfied as to the matters in paragraphs 188(2)(a) and (b). The matters in paragraphs 188(2)(a) and (b) are cumulative requirements (so much is clear from the use of the conjunctive ‘and’). The Commission must be satisfied as to both matters before it can be said that the agreement has been genuinely agreed.

[44] Two other aspects of s.188(2)(a) warrant comment, the first concerns the ‘scope’ of s.188(2).

[45] All of the parties before us accepted that s.188(2) does not apply to all procedural or technical requirements with which an employer must comply when bargaining for an enterprise agreement. The ‘minor procedural or technical errors’ referred to in s.188(2)(a) must be errors ‘made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights’ (emphasis added).

[46] The expression ‘in relation to’ is one ‘of broad import’. 28 As McHugh J said O’Grady v Northern Queensland Co Ltd, the phrase:

‘requires no more than a relationship, whether direct or indirect, between two subject matters’ 29

[47] Section 173 of the Act sets out the requirements for giving the NERR to employees:

‘173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(c) a scope order in relation to the agreement comes into operation; or

(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given

(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

Notice need not be given in certain circumstances

(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.

How notices are given

(5) The regulations may prescribe how notices under subsection (1) may be given.’

[48] Section 174 of the Act sets out the form and content requirements for the NERR:

‘174 Content and form of notice of employee representational rights

Application of this section

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

Notice requirements

(1A) The notice must:

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

(b) not contain any other content; and

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

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

Content of notice—employee may appoint a bargaining representative

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

(a) in bargaining for the agreement; and

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

Content of notice—default bargaining representative

(3) If subsection (4) does not apply, the notice must explain that:

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

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

the organisation will be the bargaining representative of the employee.

Content of notice—bargaining representative if a low-paid authorisation is in operation

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

Content of notice—copy of instrument of appointment to be given

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

[49] The prescribed NERR is at Schedule 2.1 to the Fair Work Regulations 2009. 30 A copy of the NERR is set out at Attachment A.

[50] The prescribed text of the NERR was amended with effect from 3 April 2017 by the Fair Work Amendment (Notice of Employee Representational Rights) Regulations 2017. These amendments corrected a reference to a section of the Act and replaced the final paragraph (headed ‘Questions’) with a new paragraph that omitted the Fair Work Ombudsman’s website address and avoided the employer having to insert the Commission’s Infoline phone number.

[51] It was intended that simplification of the final paragraph of the NERR would reduce the incidence of employer errors with the content of the NERR. 31 We return to this later when considering the application of s.188(2) to the Matters.

[52] The table below (extracted from ACCI’s written submissions at [53]) sets out the procedural or technical requirements to which s.188(2) applies. No party took issue with the contents of the table.

Table 1:

Scope of s.188(2)

[53] The second aspect of s.188(2)(a) to be considered is the meaning of the expression ‘minor procedural or technical errors’.

[54] As a matter of grammatical construction, and from the context, it is plain that the adjective ‘minor’ qualifies both ‘procedural’ errors and ‘technical’ errors, such that one reads the expression as ‘minor procedural errors or minor technical errors’. 32 There is certainly nothing in the extrinsic materials or in the context to suggest that the qualifying word ‘minor’ only applies to procedural errors, and does not qualify the expression ‘technical errors’. Nor does any logical basis for such a distinction present itself. Such a reading is also consistent with the context of s.188(2). It operates as an exception to requirements under s.188(1) that ‘have a protective purpose’33 and reflects the object of Part 2-4 of the Act ‘to provide a simple, flexible and fair’ collective bargaining framework.34

[55] We agree with ACCI’s submission that the word ‘minor’ is a limitation upon the type of errors contemplated by s.188(2)(a) and that what constitutes a ‘minor’ error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances.

[56] A failure to comply with a procedural requirement will constitute a ‘procedural error’ within the meaning of s.188(2)(a). A procedural requirement is one that requires an employer to follow a particular process or course of action e.g. providing employees with a NERR as soon as practicable, and not later than 14 days after the notification time (s.173(3)), or ensuring there are at least 7 clear days between notifying employees of the voting process and the commencement of that process (s.180(3)). 35

[57] A failure to comply with a technical requirement will constitute a ‘technical error’ within the meaning of s.188(2)(a). A technical requirement includes an obligation to comply strictly with the form and content of an instrument, such as the NERR.

[58] A single error may have both procedural and technical components.

[59] The ACTU submits that the Amending Act is ‘relatively confined’ and that ‘what constitutes an error which is ‘minor’ or ‘technical’ in nature (as referred to in s.188(2)(a)) is necessarily coloured by the law as it stands in relation to when an agreement has been ‘genuinely agreed to’. 36 The ACTU goes on to submit that ‘the current state of the law tends to suggest that non-compliance with section 174(1A) is not minor’ and refers to the Full Bench decision in Peabody Moorvale v CFMEU.37

[60] This submission is unpersuasive. The previous decisions relied on by the ACTU were made in the statutory context at that time; they remain relevant to the application of s.188(1), but do not inform the meaning of ‘minor procedural or technical errors’ in s.188(2). As Bathurst CJ said in R v Seller 38:

‘Where a statute is amended both the act which is amended and the amending act must be read together as a combined statement of the will of the legislature as a consequence of which the effect of the amending act may be to alter the meaning which the remaining provisions of the amended act bore before the making of the amendments.’

[61] The ACTU also advanced a submission which, in substance, would require an additional step to be taken in the decision-making process before s.188(2) could arise for consideration, namely a finding that the agreement has actually been ‘made’ in accordance with s.182. The ACTU’s submission was as follows:

‘23. Further, it is important to appreciate that an application for the approval of an agreement is incapable of being entertained by the Commission unless an enterprise agreement has been made - so much is evident from subsections (1), (3) and (4) of section 185. The recent Full Bench decision in AMWU v. Broadspectrum is authority for the proposition that a non-greenfields enterprise agreement cannot be “made” unless each employee who will be covered by the proposed agreement and who is employed at the notification time has been given the Notice within 14 days of the notification time. We do not raise this point in order to characterise errors in relation to the requirements about the giving of the Notice (e.g. requirements 4 and 6 in the table above), but rather to highlight that the occasion for applying the Amending Act to some such failures to comply with those requirements may never properly arise.’ (footnotes omitted)

[62] Section 182(1) and (2) provide, in relation to non-greenfields single enterprise agreements and multi-enterprise agreements respectively:

Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

Multi-enterprise agreement that is not a greenfields agreement

(2) If:

(a) a proposed enterprise agreement is a multi-enterprise agreement; and

(b) the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and

(c) those employees have voted on whether or not to approve the agreement; and

(d) a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;

the agreement is made immediately after the end of the voting process referred to in subsection 181(1).

[63] The requirement for an agreement to have been ‘made’ in accordance with s 182 arises at two subsequent steps in the enterprise agreement approval process. First, under s 185(1) and (3) with respect to non-greenfields agreements, an application for approval of such an agreement must be made by a bargaining representative within 14 days of it being ‘made’. Accordingly, the requirement for the agreement to have been ‘made’ in accordance with s 182 is a pre-requisite to the operation of the requirement to lodge an application for the agreement’s approval. Second, s.188(1)(b), which we have earlier set out, includes as an element of the ‘genuinely agreed’ requirement that the agreement was ‘made’ in accordance with whichever of s 182(1) or (2) applies. Thus an agreement which has not ‘made’ in accordance with the applicable provision has not been ‘genuinely agreed’.

[64] In the decision in AMWU v Broadspectrum (Australia) Pty Ltd 39 it was decided by majority that in order for an agreement to have been ‘made’ in accordance with s 182(1), the relevant employees must have been requested by the employer to approve the agreement in accordance with s 181(1). The capacity to make such a request, it was held, operated subject to s 181(2), which provides that such a request must not be made until at least 21 days after the day on which the last NERR under s 173(1) is given. Applying the earlier Full Bench decisions in Peabody Moorvale Pty Ltd v CFMEU,40 Uniline Australia Limited41and MUA v MMA Offshore Logistics42, this meant in turn, it was held, that where a NERR was issued which did not comply with the content and form requirements of s 174 and/or the temporal requirement in s 173(3), the condition precedent to a valid request for a vote under s 181(1) was not satisfied and, accordingly, an agreement could not have been ‘made’ in accordance with s 182(1).43

[65] We would also observe that under s.180(1), satisfaction with the requirements of s 180 is also stated to be a prerequisite to a request by an employer for relevant employees to approve an agreement under s 181(1). Applying the reasoning in Broadspectrum, it would follow that any non-compliance with s.180(2), (3) or (5) would have the result that an agreement was not ‘made’ under s 182(1) or (2) (as applicable).

[66] As was recognised by ACCI in its oral submissions, 44 this gives rise to a potential difficulty in the construction of the amended s.188. Section 188(2) directly addresses minor procedural and technical errors in respect of the pre-approval steps in s.180(2), (3) and (5) and the NERR requirements of ss.173 and 174, but arguably does not directly address the circumstance whereby any such error has the consequence that the agreement has not been ‘made’ and thus that the s.188(1)(b) element of the ‘genuinely agreed’ requirement cannot be satisfied. It would seem to be the logical consequence of the ACTU’s submission, although not expressly stated, that if it was determined as a preliminary step that an agreement was not ‘made’ in accordance with s.182, so that s.188(1)(b) was not satisfied, the application of s.188(2) would not arise for consideration notwithstanding that this was the result of the type of minor procedural or technical error to which s.188(2) is directed.

[67] This cannot be accepted as the correct approach. The purpose of s.188(2) which is plainly evident from its text is to allow for the approval in specified circumstances of agreements notwithstanding the occurrence of any minor procedural or technical defects of the identified type. The provision would be rendered nugatory if the provision was never utilised because of a prior determination that no agreement had been ‘made’ in accordance with s 182 as a result of the occurrence of such a defect. Such an outcome is avoided once attention is focused on two aspects of the drafting of s.188(2):

(1) Section 188(2) applies where the agreement would, but for the specified minor procedural or technical defects, have been genuinely agreed to ‘within the meaning of subsection (1)’ (italics added). Thus the new provision is concerned with ‘saving’, subject to the condition in s.188(2)(b), failures to satisfy any element of the ‘genuinely agreed’ requirement in s.188(1) caused by the specified types of minor procedural or technical defects. This necessarily includes the requirement in s.188(1)(b) that the agreement was ‘made’ in accordance with s.182(1) or (2), as applicable.

(2) As earlier observed, s.188(2) operates with respect to minor procedural or technical defects made ‘in relation to’ the requirements mentioned in s,188(1)(a) or (b) or the requirements of ss.173 and 174. The broad scope of this expression captures defects which have a direct or indirect relationship with these requirements. Thus, where an agreement has not been ‘made’ in accordance with s 182(1) or (2) because of a failure to comply with the requirements of ss.173 or 174 or s.180(2), (3) or (5), that may be a defect ‘in relation to’ those requirements which is capable of consideration under s.188(2).

[68] Accordingly it is not correct that a finding must first be made that the relevant agreement has been ‘made’ in accordance with s.182(1) or (2) before any consideration can be given to the application of s.188(2). That is because s.188(2), properly construed, contemplates that agreements which have not been ‘made’ may nonetheless be approved if the specified conditions in the new provision are satisfied.

[69] The ACTU also contended that in circumstances where the relevant requirement was that the employer ‘take all reasonable steps’ to ensure something is done (eg s.180(3)):

‘The only species of error which is capable of occurring in conjunction with the taking of reasonable steps is an unintentional error, such as an accident or mistake. A deliberate or reckless failure to take reasonable steps is not such an error … the Commission must be satisfied that the error was accidental or not intended.’ 45

[70] The Macquarie Dictionary online defines ‘error’ as follows:

1.  deviation from accuracy or correctness; a mistake, as in action, speech, etc.

2.  belief in something untrue, the holding of mistaken opinions.

3.  the condition of believing what is not true: in error about the date.

4.  a moral offence; wrongdoing.

[71] ACCI submits that ‘error’ in the context of s.188(2) should be given its ordinary grammatical meaning and that a person may commit an ‘error’ even if their actions were intentional:

‘An “error” can arise through a simple mistake of action or it can arise because the person committing the error believed something to be true that was not or otherwise did not know or understand something to be true.

In this sense a person could commit an error even if their actions were intentional.

For instance an employer could place a NERR on company letter head because they did not know otherwise or may have mistakenly believed that a NERR could be placed on company letter head without any defect arising.’ 46

[72] We agree with ACCI. An act may be intentional, in the sense that it was a deliberate act, but nevertheless constitutes an ‘error’ because the person was unaware of the legal consequences of their action. For example, the employer may have used an earlier version of the NERR. The earlier version was chosen by a deliberate act, but the employer was unaware that the consequence of that action was non-compliance with s.174(1A). This may be distinguished from the circumstances where the employer embarks on a course of deliberate non-compliance, as conceded by ACCI:

‘Obviously this extent of conscious action has its limits. It is difficult to characterise an error to include a situation where the party held true knowledge and consciously decided to adopt a course contrary to this; “I know a NERR cannot go on company letter head but I did it anyway” seems unlikely to qualify as an error adopting the ordinary grammatical meaning.

…

“I know a NERR cannot go on company letter head but I did it anyway” is unlikely to fall within the essential character of an error given the true knowledge held and the deliberate action not to adopt a course of action consistent with this true knowledge. Rather than an error this is a course of action best described as a conscious decision not to comply.’ 47

[73] Accordingly a proper distinction is to be made between an intentional act which unintentionally results in non-compliance with the procedural and/or technical requirements for the making of an enterprise agreement and which may depending on the circumstances be capable of characterisation as an error, and intentional non-compliance with those requirements, which will not constitute an error for the purpose of s.188(2). On the basis of the limited argument before us we do not propose to express a view on the question of whether a ‘reckless’ act may constitute an ‘error’ within the meaning of s.188(2). That issue is best determined in the context of a particular case in which the factual circumstances raise the issue for determination.

[74] As mentioned earlier, the determination of whether an error constitutes a ‘minor error’ within the meaning of s.188(2) calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which was not complied with and the relevant circumstances. Table 2 below (extracted from ACCI’s written submission at [61]) examines each of the procedural or technical requirements, considers the underlying purpose of these requirements and outlines some ways in which employees might be disadvantaged by a minor technical or procedural error.

Table 2:

Procedural or technical requirements covered by s. 188(2) and potential ways in which employees may be disadvantaged in relation to minor errors

[75] We would observe that Table 2 is not exhaustive of the circumstances in which a minor procedural or technical error might disadvantage the employees covered by the agreement.

[76] The Revised Explanatory Memorandum sets out the following examples of ‘minor procedural or technical errors’:

•  employees being informed of the time and place for voting on the proposed enterprise agreement or the voting method that will be used for the agreement just after the start of the access period rather than by the start of the access period (subsection 180(3));

•  employees being requested to approve a proposed enterprise agreement on the 21st day after the last [NERR] was given, rather than at least 21 days after the day on which the last [NERR] was given (subsection 181(2));

•  the inclusion of the employer’s company logo or letterhead on a [NERR];

•  the inclusion of additional materials that are stapled with a [NERR]; or

•  minor changes to the text of the [NERR] that had no relevant effect on the information that was being communicated in it (for example, the [NERR] may say to contact a particular person in the human resources department rather than ‘contact your employer’).’ 48

[77] In relation to the first example given the relevant procedural requirement is set out in s.180(3):

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

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

(b) the voting method that will be used.

[78] The ‘access period’ is ‘the 7-day period ending immediately before the start of the voting process’ (s.180(4)). It follows that the requirement to notify employees of the time and place at which the vote will occur and the voting method is to be met at least 7 clear days before the start of the voting process.

[79] Whether a failure to comply with s.180(3) constitutes a ‘minor error’ depends on the extent of the non-compliance and the circumstances. Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a ‘minor error’. So, informing the employees of the matters in s.180(3)(a) and (b) ‘just after the start of the access period’, say 6 days before the start of the voting process, is likely to be a ‘minor error’ in most cases; but in some circumstances it may not be. For example, if it is the first agreement at the enterprise, the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a ‘minor error’.

[80] It may also be the case that what appears to be a more significant instance of non-compliance may still be categorised as a ‘minor error’, depending on the particular circumstances. For example, only informing the employees of the ss.180(3)(a) and (b) matters 4 days before the voting process starts may be a ‘minor error’ where all of the relevant employees actually voted.

[81] It is also important to distinguish between the requirements in ss.180(3)(a) and (b). It seems to us that the need to inform employees of the time and place of the vote (i.e. s.180(3)(a)) is more significant than informing them of the ‘voting method’ (i.e. s.180(3)(b)). The first requirement may impact on the employees’ capacity to participate in the voting process, the second may not.

[82] The other examples given relate to various ‘errors’ concerning the NERR requirements. We deal with some of these issues later in the context of the particular matters before us. We note here that there is at least one species of ‘error’ which is unlikely to be classified as a ‘minor error’. The prescribed text of the NERR includes the following:

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

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

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

[83] If these paragraphs are omitted from the NERR provided to the employees then it is unlikely to be construed as a ‘minor error’. These paragraphs may be characterised as core requirements of the NERR, given the policy purpose associated with the provision of the NERR. As the majority observed in Ostwald:

‘[62] The inclusion by the Parliament within the Act of an express requirement upon employers to provide a notice (s.173) and the express requirements as to the content of a notice (s.174) is consistent with the importance of bargaining representation evident in the bargaining process established by the Act. It is also consistent with the objects of the Act and Part 2-4 of the Act in relation to fairness and representation at work, the right to freedom of association, the right to be represented, collective bargaining underpinned by simple good faith bargaining obligations, a simple, flexible and fair framework that enables collective bargaining in good faith and the facilitation of good faith bargaining…

[64] Second, s.174 evinces a clear intention that employees are fully informed as to their right of representation - default representation or to otherwise nominate a bargaining representative - and the means of affecting that right.

[65] Having legislated the default position in relation to bargaining representatives and the appointment of a non-default representative and the means of obtaining such representation (ss.176(1)(b) and (c)) and other matters in relation to bargaining representatives, including the requirement to notify the appointment of a non-default representative (s.178), the provisions in s.173 and s.174 of the Act were clearly intended to serve another purpose. The requirement to give a s.173 notice to relevant employees, in the terms required by s.174, serves a distinct and separate purpose from the giving of rights of representation through s.176. The requirement to give the notice in the required terms is directed to the additional purpose of advising employees of their rights of representation and the means of exercising them in order that they can effectively utilise their right of representation in bargaining and to enhance the process of fair bargaining under the Act.’ 49

[84] We also note that, in relation to the objects of representation in bargaining, the High Court in Aldi Foods Pty Limited v SDA 50 observed in discussing ss.173 and 176 of the Act:

‘38. These provisions serve to ensure that the employees referred to in s 172(2)(a) are able to call upon the negotiating skills and bargaining strength of employee organisations should they so choose in order to minimise the inequalities of bargaining power that might otherwise adversely affect the outcome of their negotiations with their employer.’ 51

[85] We would also observe that in the context of Matter AG2018/6614, ACCI conceded, appropriately, that the omission from the NERR of the paragraph relating to the union’s role in the bargaining process would be unlikely to constitute a minor error:

‘In this application the employer appears to have omitted from the NERR the paragraph relating to the union’s role in the bargaining process.

The purpose of this paragraph is to inform the employee that, if they are a member of a union, their union will be their bargaining representative unless they appoint another person or revoke the union’s status. This is a core requirement of the NERR, prescribed by section 174(3) of the Act.

The purpose of the paragraph is to inform employees that, if they are members of a union, their union will be their default bargaining representative unless they appoint someone else, or revoke the union’s appointment.

On the surface, it would seem unlikely that the failure to include this paragraph could ordinarily constitute a minor error.

Despite this, some further inquiry is warranted as the effect of this error may not have been manifest and the bargaining process may have continued as it would have had the NERR been in the correct form.

For instance it is not inconceivable that the employer had spoken with each of the eight employees and ascertained that none were members of a union. As the Full Bench confirmed in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU)52, the purpose of the section is to “set out the default position for union members” (emphasis added).’ 53

[86] We agree with the submission put.

[87] We now turn to s.188(2)(b):

‘(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

…

(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174.’ [Emphasis added]

[88] As mentioned earlier, the underlined words after the words ‘the errors’ were added during the parliamentary process.

[89] In relation to s.188(2) in its final form the Revised Explanatory Memorandum for the Bill states:

‘49. This item responds to PC Report recommendation 20.1 and to a submission made by Professor Andrew Stewart to the Senate Education and Employment Legislation Committee on the Bill. Professor Stewart, though supportive of the proposed reform, expressed concern that the term ‘disadvantaged’ in new subsection 188(2)(b) was not sufficiently connected to employees’ ability to genuinely agree to the terms of a proposed enterprise agreement (see paragraph 3.8 and paragraph 1.9 of the Labor Senators’ additional comments in the Senate Committee’s report, tabled in May 2017).’ [Emphasis added]

[90] Professor Stewart’s submission to the Senate Education and Employment Legislation Committee had related his concern that:

‘The purpose of the various procedural requirements in ss 173–174 and 180–182 is not to advantage the employees to be covered by a proposed agreement. It is to ensure that they genuinely agree to the terms proposed by their employer and that (in the case of the [NERR]) they are informed of their right to be represented by a trade union or other bargaining representative. The question of ‘advantage’ is dealt with by a separate requirement, the better off overall test in s 189.

Suppose, for instance that a ‘technical’ error results in a group of employees being denied the opportunity to vote on a proposed agreement. As the proposed new s 188(2) stands, the employer might argue that the employees have not been disadvantaged because the new agreement is, objectively, beneficial for them. If accepted, reasoning of that type could significantly dilute the procedural safeguards established by ss 173–174 and 180–182.’ 54

[91] The Revised Explanatory Memorandum also states that:

‘45. … It is intended that any disadvantage likely to have been suffered by employees, for the purpose of paragraph 188(2)(b), must relate to the employees’ ability to genuinely agree to the terms of the proposed agreement.

46. The effect of new subsection 188(2) is that an enterprise agreement will have been genuinely agreed to despite any minor procedural or technical error if the employees (as a whole) were not likely to have been disadvantaged by those errors.

48. When considering whether the employees were not likely to have been disadvantaged by an error, in relation to the relevant procedural requirements, the [Commission] could take into account, for example, the effect of the error and circumstances of the error.’ 55

[92] It will be recalled that one of the issues raised in our earlier Statement was:

‘5. Would considering the effect of an error and the circumstances of an error include taking into account the likely costs and inconvenience to the employer and the employees covered by the agreement, associated with further delaying the approval of the agreement?’

[93] Ai Group submitted that the answer to the question posed is ‘definitely yes’:

‘89. The answer to this question is definitely yes. These factors need to be central considerations when the Commission is considering exercising its discretion under the New Legislative Provision.

90. A requirement to repeat the pre-approval steps typically involves very substantial costs and risks for an employer, including:

(a) Management time;

(b) Employee time (e.g. in voting and participating in consultation processes) that would otherwise be spent on carrying out normal duties;

(c) The cost of obtaining professional advice;

(d) Travel costs;

(e) Postage, telecommunications and other costs; and

(f) The risk of additional claims being pursued, including the risk of workplace disharmony and protected industrial action.

91. A requirement to repeat the pre-approval steps also often results in significant costs for employees because wage increases are typically not passed on to employees until an enterprise agreement is approved. Further, often wage increases are operative from a date that relates to the timing of approval. For example, wording like the following is not uncommon in agreements:

(a) A two per cent wage increase is payable from the first pay period to commence on or after the approval of this agreement by the Fair Work Commission;

(b) A two per cent wage increase is payable 12 months after the date in paragraph (a).’ 56

[94] ACCI appears to take a different view, submitting that:

‘Section 188(2)(b) requires the Commission to determine whether the employees were not likely to be disadvantaged by the error, in relation to the specific Act requirements listed.

Section 188(2)(b) does not require the Commission to be satisfied that employees are not disadvantaged in other regards. Nor does it require the Commission to consider whether the employees are likely to be disadvantaged by its exercise, or non-exercise, of the discretion in section 188(2).

…

the Commission will need to be cautious considering matters that distract it from effectively satisfying itself as required by the Act.

Clearly the process of inquiry is for the Commission to satisfy itself that the defect:

(a) fits the relevant class; and

(b) is not likely to have disadvantaged the employees as it relates to the relevant sections of the Act.’57

[95] The test in s.188(2)(b) is whether the employees covered by the agreement were ‘not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174’(emphasis added). Those requirements were outlined at [23] above. The impact of the errors is to be assessed by reference to the objects of those requirements and not by reference to any more general sense of ‘genuine agreement’. This reading is consistent with the reading of s.188(1) by the majority of the Full Bench in Ostwald (see [24] above). It is also consistent with the amendments to the provision (related at [32]–[33] above) and the Revised Explanatory Memorandum at [45] (extracted at [91] above).

[96] Contrary to Ai Group’s submission the text of s.188(2)(b) and the extrinsic material make it clear that the term ‘disadvantaged’ must have a connection to the employees’ ability to genuinely agree to the terms of a proposed enterprise agreement. Consequently, the likely costs and inconvenience to the employer and employees covered by the agreement associated with a delay in the approval of the agreement is not relevant to the question of whether the employees covered by the agreement ‘were not likely to be disadvantaged by the errors’.

[97] We note that s.188(2)(b) refers to ‘the employees covered by the agreement’ (emphasis added). Ai Group advances the following submission in relation to this expression:

‘The assessment required by s.188(2)(b) is to be undertaken in relation to the relevant group of employees as a whole. Subsection 188(2) does not turn on whether an individual employee was (or individual employees were) likely to have been disadvantaged.’ 58

[98] In advancing this submission Ai Group relies on the following passage from the Revised Explanatory Memorandum.

46. The effect of new subsection 188(2) is that an enterprise agreement will have been genuinely agreed to despite any minor procedural or technical error if the employees (as a whole) were not likely to have been disadvantaged by those errors.

[99] ACCI advances the following submission in respect of this issue:

57. Section 188 uses the plural term 'employees' when determining disadvantage. Contextually this is distinct from the notion of a singular employee. This can be contrasted with the BOOT which requires that each individual employee be better off etc.

58. While this view may be said to sit uncomfortably with Section 23(b) of the Acts Interpretation Act 1901 the context does make available the adoption of the view that section 188 intends to refer only to the collective rather than singular. This approach is supported by the reference to employees "as a whole" in the Explanatory Memorandum: "The effect of new subsection 188(2) is that an enterprise agreement will have been genuinely agreed to despite any minor procedural or technical error if the employees (as a whole) were not likely to have been disadvantaged by those errors" (emphasis added).

59. For something to be "likely" it must be "probably or apparently going or destined to do, be etc." For something to be not likely it must be the opposite of this.

60. Obviously the inquiry of whether an " ... error" is not likely to lead to disadvantage in the context of an agreement approval process will be a retrospective enquiry in the circumstances presented.’

[100] As noted by ACCI, s.23(b) of the AI Act provides that in any Act:

‘Words in the singular number include the plural and words in the plural number include the singular.’

[101] We would note that extrinsic materials, such as the Revised Explanatory Memorandum, cannot displace the clear meaning of the legislative text. As the High Court observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Alcan): 59

‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.’

[102] Given the limited nature of the submissions dealing with this issue we do not propose to express a view on the question of whether the assessment required by s.188(2)(b) is to be undertaken in relation to the relevant group of employees as a whole.

[103] The Macquarie Dictionary online defines ‘disadvantage’ and ‘disadvantaged’ as follows:

‘disadvantage

noun

1. absence or deprivation of advantage; any unfavourable circumstance or condition.

2. injury to interest, reputation, credit, profit, etc.; loss.

–verb (t) (disadvantaged, disadvantaging)

3. to subject to disadvantage.’

[104] In the context of the Act, the word ‘disadvantaged’ in s.188(2)(b) suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the Act.

[105] The test posited by s.188(2)(b) involves more than simply focussing on the word ‘disadvantaged’, in essence the test is:

‘the employees covered by the agreement were not likely to have been disadvantaged by the errors’

[106] The meaning of the word ‘likely’ requires a consideration of the nature of the particular legislation and the circumstances which must be considered ‘likely’. As Bowen CJ (with whom Evatt J agreed) observed in Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union 60 (Tillmans):

‘The word ‘likely’ is one which has various shades of meaning. It may mean ‘probable’ in the sense of ‘more probable than not’ – ‘more than a fifty per cent chance’. It may mean ‘material risk’ as seen by a reasonable man ‘such as might happen’. It may mean ‘some possibility’ – more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.’ 61

[107] In Tillmans the Court was construing the meaning of ‘likely to have the effect of causing substantial loss’ in s.45D(1)(a) of the Trade Practices Act 1974. Bowen CJ found it unnecessary to reach a concluded view on the meaning of ‘likely’ in this context:

‘The circumstances to which s.45D may apply are so various, that I hesitate to place a gloss on the section by preferring one meaning of ‘likely’ rather than another for the determination of this particular case. It is unnecessary to do so because I have formed the view that whichever meaning is adopted the evidence leads me to the conclusion that the likelihood of substantial loss or damage has been established.’ 62

[108] In Australian Telecommunications Commission v Krieg Enterprises Pty Ltd  63 (Krieg), Bray CJ had to consider the meaning of the word ‘likely’ in s. 139 B of the Post and Telegraph Act 1901–1973 (Cth). After considering relevant authorities, his Honour expressed the view that the ordinary and natural meaning of the word ‘likely’ is synonymous with the ordinary and natural meaning of the word ‘probable’ and both words mean that there is an odds-on chance of the thing happening.

[109] The Macquarie Dictionary online defines ‘likely’ as follows:

‘adjective (likelier, likeliest)

1.  probably or apparently going or destined (to do, be, etc.): likely to happen.

2.  seeming like truth, fact, or certainty, or reasonably to be believed or expected; probable: a likely story.

3. 

a.  apparently suitable: a likely spot to build on.

b.  promising, as for the yielding of gold, oil, etc.: she thought it a likely area.

4.  promising: a fine likely boy.

–adverb 

5.  probably.

–phrase Colloquial 

6. a likely (looking) lad, a good-humoured and engaging young man, regarded as being full of promise.

7. not (bloody) likely, (an expression of vehement disagreement.)’

[110] In our view the word ‘likely’ in s.188(2)(b) means ‘probable’, in the sense that there is an odds-on chance of it happening. As Bray CJ observed in Krieg, such a meaning is consistent with the ordinary and natural meaning of the word.

[111] We see no good reason to construe ‘likely’ in the context of s.188(2)(b) to mean ‘some possibility’. We accept that the ‘protective purpose’ of the requirements in s.188(1) 64 may be said to favour such a construction, but regard must also be had to the objects of Part 2-4 (in particular s.171(b)(iii)) and the fact that s.188(2) is a two part test; s.188(2)(a) provides that the error in question must be ‘minor’.

[112] The application of the test in s.188(2)(b) involves a retrospective and counterfactual inquiry into the circumstances pertaining to the particular case. It necessarily involves an evaluative judgment. As ACCI submitted:

‘when the Commission is presented with this inquiry it actually has the benefit of retrospectively looking not at what was not likely, but also what actually happened.  It seems somewhat strange the legislator didn't simply say they were not disadvantaged or will not be disadvantaged in the future.  It must mean something more than, and I think we agree with the ACTU here, it must mean something more than they were not disadvantaged, because it doesn't say that.  So it's not actual disadvantage, that is they were or weren't.  There is something more to it than that, hence the proposition of not likely to have been disadvantaged because of.’ 65

[113] In assessing whether employees were not likely to have been disadvantaged by an error, it may be necessary to consider the particular circumstances of the employees concerned at the time the error occurred and the impact of the error on the subsequent course of bargaining (see also the Revised Explanatory Memorandum at [45], extracted at [[91]] above). This may include a consideration of what occurred following the error, such as considering any steps taken by the employer to address the adverse impact of the non-compliance.

[114] Consider, for example, circumstances where through error an employer failed to give any notice of rights to representation to a group of employees, in contravention of s.173. It is conceivable that this error could be found not to have been likely to have disadvantaged the employees covered by the agreement for the purposes of s.188(2)(b), if the evidence established that the employees who did not receive a NERR were throughout the negotiations represented by bargaining representatives of their choosing. However, there may remain a question as to whether such an error constitutes a ‘minor procedural or technical error’ within the meaning of s.188(2)(a).

[115] Assessing whether the employees were not likely to have been disadvantaged by the error may also involve considering the subsequent conduct of the relevant employees. For example, if the error relates to the notification of the relevant employee of the time, place and method of voting prior to the start of the access period it would be relevant to consider the number of eligible employees who actually voted on the proposed agreement compared to those employees who were eligible to vote (the voter turnout). The purpose of the requirement in s.180(3) is to ensure that relevant employees are able to attend and participate in the voting process. The voter turnout is directly relevant to the purpose of the statutory requirement in respect of which there was a minor procedural error.

[116] The extent of voter turnout will be apparent on the face of the application for approval without the need for further investigation. In other instances the application of s.188(2) may require further investigation.

[117] The following propositions emerge from the foregoing consideration of the proper construction of s.188(2):

1. Subsections 188(1) and (2) are to be approached sequentially. The first question is whether the Commission is satisfied as to the matters at s.188(1)(a)-(c). If it is so satisfied then the agreement has been genuinely agreed to and there is no need to consider s.188(2).

2. The reference to the ‘employees covered by the agreement’ in ss.188(1) and (2), is a reference to those employees employed and covered by the agreement at the time of the request to vote under s.181.

3. Subsections 188(1) and (2) both provide that an enterprise agreement has been genuinely agreed if the Commission is satisfied as to certain matters (ie those in s.188(1)(a) to (c) and ss.188(2)(a) and (b) respectively). The latitude as to the choice of the decision to be made by ss.188(1) or (2) is quite narrow in that the decision maker is required to conclude that the agreement was genuinely made if he or she forms a particular opinion or value judgment. Assessing the genuineness of agreement under ss.188(1) and (2) involves an evaluative assessment.

4. Section 188(2) is confined to circumstances where the Commission is not satisfied that an agreement has been genuinely agreed to within the meaning of s.188(1), as a result of ‘errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights’.

5. Section 188(2) does not extend to circumstances where the Commission is not satisfied that an agreement was genuinely agreed to in a more general sense, as might arise from a consideration of s.188(1)(c).

6. Section 188(2) does not apply to all procedural or technical requirements with which an employer must comply when bargaining for an enterprise agreement. The ‘minor procedural or technical errors’ referred to in s.188(2)(a) must be errors ‘made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights’ (emphasis added).

7. Table 1 at [52] above sets out the procedural or technical requirements to which s.188(2) applies.

Section 188(2)(a): ‘minor procedural or technical errors’

1. The adjective ‘minor’ qualifies both ‘procedural’ errors and ‘technical’ errors, such that the expression reads ‘minor procedural errors or minor technical errors’. The word ‘minor’ is a limitation upon the type of errors contemplated by s.188(2)(a).

2. A failure to comply with a procedural requirement will constitute a ‘procedural error’ within the meaning of s.188(2)(a). A procedural requirement is one which requires an employer to follow a particular process or course of action eg. providing employees with a NERR as soon as practicable, and not later than 14 days after the notification time (s.173(3)), or ensuring there are at least 7 clear days between notifying employees of the voting process and the commencement of that process (s.180(3)).

3. A failure to comply with a technical requirement will constitute a ‘technical error’ within the meaning of s.188(2)(b). A technical requirement includes an obligation to comply strictly with the form and content of an instrument, such as the NERR.

4. A single error may have both procedural and technical components.

5. The impact of the errors is to be assessed by reference to the objects of the requirements in ss.188(2)(a), 188(1)(b), 173 or 174.

6. What constitutes a ‘minor’ error calls for an evaluative judgment having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances. Table 2 at [74] above examines each of the procedural or technical requirements, considers the underlying purpose of these requirements and outlines some ways in which employees might be disadvantaged by a minor technical or procedural error.

7. Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a ‘minor error’. For example, informing the employees of the matters in ss.180(3)(a) and (b) just after the start of the 7 day access period (say 6 days before the start of the voting process) is likely to be a ‘minor error’ in most cases. But it will depend on the circumstances. If it is the first agreement at the enterprise; the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a ‘minor error’. Conversely, only informing the employees of the time and place at which the vote will occur some 4 days before the voting process starts may be a ‘minor error’ where there is a history of bargaining at the enterprise; the agreement is, in effect, a ‘roll over’ agreement; the employer takes further active steps to remind employees of the time and date of the vote; and a high proportion of employees actually vote.

8. Whether an incidence of non-compliance is characterised as a ‘minor error’ also depends on the nature of the requirement which has not been complied with. For example, the need to inform employees of the time and date of the vote (s.180(3)(a)) is more significant than informing them of the ‘voting method’ (s.180(3)(b)) – the first requirement may impact on the employees’ capacity to participate in the voting process, the second may not.

9. Some species of error are unlikely to be classified as ‘minor’, for example the deletion of the prescribed text of the NERR which deals with an employee’s right to appoint a bargaining representative and the role of the unions as the default bargaining representatives. But, again, it may depend on the circumstances (see paragraphs [77] - [78] above).

10. The test in s.188(2)(b) is whether the employees covered by the agreement were ‘not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174’(emphasis added). The impact of the errors is to be assessed by reference to the objects of those requirements and not by reference to any more general sense of ‘genuine agreement’.

11. Cost or inconvenience to the employer and employee covered by an agreement associated with a delay in the approval of the agreement is not relevant to the question of whether the employees covered by the agreement ‘were not likely to be disadvantaged by the errors’.

12. The test posited by s.188(2)(b) is whether ‘the employees covered by the agreement were not likely to have been disadvantaged by the errors’.

13. The word ‘likely’ in s.188(2(b) means ‘probable’ in the sense that there is an odds-on chance of it happening, rather than merely being some possibility of it happening. The word ‘disadvantaged’ suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime in Part 2-4 of the Act.

14. In assessing whether employees were not likely to have been disadvantaged by an error, it may be necessary to consider the particular circumstances of the employees concerned at the time the error occurred and the impact of the error on the subsequent course of bargaining. This may include considering any steps taken by the employer to address the adverse impact of the non-compliance.

[118] Before turning to consider the particular agreement approval applications before us we wish to comment on two aspects of Ai Group’s submission.

[119] The first is the proposition that the power in s.188(2) ‘needs to be exercised in a practical, common sense manner’. Ai Group advanced a similar proposition, in the context of the assessment of the Better Off Overall Test, in the Loaded Rates Agreements case. 66 The Full Bench in that matter rejected Ai Group’s submission:

‘The Ai Group, as set out above, did submit that in assessing whether agreements passed the BOOT, the Commission should not require the employer to produce indicative rosters of hours that employees will work under the agreement but should rely on the materials lodged with the application for approval (that is, the standard Form F17 statutory declaration). That submission, which would amount to the Commission adopting a “don’t ask, don’t tell” policy, is rejected. The Commission has a statutory duty, subject to ss 189 and 190, to satisfy itself that an enterprise agreement meets the approval requirements specified in ss 186 and 187 before approving it. In the case of an agreement with a loaded rate remuneration structure, the Commission will consider the possible outcomes for employees and prospective employees working or being required to work a variety of roster patterns which are permitted by the terms of the agreement in assessing the BOOT. Also, for the reasons already explained, the Commission may require information about the patterns of working hours of current and prospective employees in order to assess whether the agreement passes the BOOT. If such information is not provided in the Form F17 statutory declaration (noting that the prescribed form does not in terms require the inclusion of such information), it may be necessary for the Commission to request the production of such information - even if no party appears before the Commission in opposition to the approval of the agreement.’ 67

[120] In our view the proposition that the s.188(2) power ‘needs to be exercised in a practical, common sense manner’ is unhelpful. Such a proposition says nothing about the proper statutory construction of s.188(2). The Commission is obliged to apply the relevant statutory provisions and to give effect to their legislative purpose.

[121] The second proposition advanced by Ai Group is that:

‘The new discretion in s.188(2) needs to be exercised, from start to finish, by appointed Commission Members drawing upon the extensive experience that led to their appointment, and uninfluenced by views of the staff in the Member Assist Team. The discretion is a matter for the impression and judgement of Commission Members.’ 68

[122] In October 2014 the Commission piloted an ‘agreement triage process’ to promote greater consistency and improve timeliness in enterprise agreement approval decisions. The triage process involves a team of legally qualified staff conducting a comprehensive analysis of agreements lodged for approval. The analysis includes completion of a detailed checklist, developed by senior Commission Members. This analysis assists the Commission Member dealing with the application, in making their decision under the Act. At all times the decision as to whether to approve an agreement is made by a Member.

[123] In May 2015, the triage pilot was independently reviewed by Inca Consulting in association with Dr George Argyrous, Senior Lecture in Evidence-Based Decision Making, University of NSW. The review reported:

‘It was noted that the centralised triage approach provided for “a simpler, more consistent process for assessing agreements.” In particular, it was noted that greater consistency could be achieved through using a small and dedicated team rather than the work being performed in a more dispersed way through Members’ chambers. Importantly, the pilot approach has allowed for the detection of some trends in the lodgment of new enterprise agreements. For example, common errors made by applicants have been detected that delay the approval of agreements (or result in them being withdrawn). Observing these trends and identifying the types of employers or industries where ‘mistakes’ commonly occur has allowed FWC to embark on some ‘early intervention’ or ‘outreach’ work. For example, the Notice of Employee Representational Rights Guide has been developed to hopefully see fewer agreements withdrawn on a technicality.’ 69

[124] Following the review, the triage process was progressively expanded. By the end of November 2016, the triage process was applied to all applications for approval of agreements.

[125] Ai Group’s submission is predicated on a misconception. Contrary to the submission put, enterprise agreements are assessed by Commission Members and it is the Member who makes the relevant decisions in respect of such applications. At all times the judgment as to whether an agreement should be approved or not is made by Members, to be exercised in accordance with their oath of office and the requirements of the Act. In exercising this function Members may inform themselves in such manner as they consider appropriate (s.590), including taking into account the views expressed by the triage team. It would be entirely inappropriate for us to seek to constrain Members in the manner in which they inform themselves.

[126] Further, the triage process has assisted Members exercise their function in a consistent and rigorous way. A more detailed exposition of these matters is set out in the Commission’s submission to the Education and Employment References Senate Committee Inquiry – Penalty Rates.

The Matters

[127] The referred matters (the Matters) are grouped below by issue type (some Matters may be listed under more than one heading):

(i) An earlier version of the NERR appears to have been given to employees who will be covered by the agreement, not the current prescribed form (s.174(1A))

•  AG2018/6505 – Application by Core Toughened Pty Ltd (this application was withdrawn)

(ii) The content of the prescribed form of the NERR appears to have been altered (s.174(1A))

•  AG2018/6614 –Application by The Trustee for the Neish-King Family Trust T/A Kew Swimming Pools [Issue – whether prescribed content has been omitted from the NERR]

•  AG2018/6679 – Application by Royal Automobile Club of Victoria (RACV) Limited [Issue – it appears that the reference to ‘employer’ in the final paragraph of the prescribed NERR has been replaced with a reference to a particular person or position title]

•  AG2018/6550 – Application by Axis Plumbing Services WA Pty Ltd [Issue – it appears that the NERR was provided to employees as a memorandum on company letterhead]

(iii) Blank fields in the NERR may not have been properly completed (s.174(1A))

•  AG2018/4986 – N T Seaman T/A United Wolves [Issue – whether the legal name of the employer has been included in the NERR]

•  AG2018/5778 – Application by CMTP Pty Ltd [Issue – the fields in the first paragraph of the NERR appear to have been left blank] (this application was withdrawn)

•  AG2018/6679 – Application by Royal Automobile Club of Victoria (RACV) Limited [Issue – whether the legal name of the employer has been included in the NERR]

(iv) Material provided with the NERR

•  AG2018/5778 – Application by CMTP Pty Ltd [Issue – it appears additional material (a bargaining representative nomination form) has been provided to employees with the NERR] (this application was withdrawn)

(v) Pre-approval statutory timeframes may not have been met

•  AG2018/3482 – Application by Huntsman Chemical Company Australia Pty Limited [Issue – whether the vote commenced less than 7 clear days from the date on which employees were notified of the time, place and method of voting]

•  AG2018/6505 – Application by Core Toughened Pty Ltd [Issue – whether the vote commenced less than 7 clear days from the date on which employees were notified of the time, place and method of voting] (this application was withdrawn)

•  AG2018/6664 – Application by Meredith Roof Plumbing Pty Ltd [Issue – whether the vote commenced less than 7 clear days from the date on which employees were notified of the time, place and method of voting]

•  AG2018/4986 – N T Seaman T/A United Wolves [Issue – whether the vote commenced less than 21 clear days after the last NERR was given to an employee]

AG2018/6505 – Application by Core Toughened Pty Ltd

[128] The copy of the NERR lodged by the employer with its application for approval of the agreement was the NERR prescribed by Schedule 2.1 of the regulations immediately prior to 3 April 2017. The correct NERR for this agreement was the one prescribed by Schedule 2.1 of the regulations with effect from 3 April 2017.

[129] The employer contended that it actually provided the correct version of the NERR to its employees, but mistakenly lodged the prior version of the NERR with the Commission. However, the employer withdrew its application for other reasons. Because the application for approval of the agreement was withdrawn, we do not need to decide it, but in order to provide some guidance in respect of the issue raised we make the following observations in relation to the provision to employees of a pre 3 April 2017 version of the NERR.

[130] The provision of an earlier version of the NERR constitutes a technical error. By providing an earlier version of the NERR, an employer has failed to comply with the requirements of section 174(1A). This is an error as it represents a deviation from correctness. It is technical in nature, because it is the content of the notice that is deficient, as distinct from a failure to comply with a procedural requirement.

[131] Changes to the NERR took effect from 3 April 2017. These changes:

(a) reflected an amendment to the Act by changing a reference to subsection 174(6) to subsection 174(1A);

(b) replaced a reference to the Fair Work Ombudsman’s website as a source of assistance with a reference to the Fair Work Ombudsman generally; and

(c) replaced a reference to the Fair Work Commission’s Infoline as a source of assistance with a reference to the Fair Work Commission generally.

[132] The pre 3 April 2017 NERR is substantially the same as the post 3 April 2017 NERR. The core requirements of the NERR (as mandated by s 174(2) to (5) of the Act) are unchanged in both documents.

[133] Both NERRs specify that the employee may appoint a bargaining representative to represent the employee in bargaining and in FWC matters relating to bargaining. Both NERRs explain that a relevant employee organisation of which the employee is a member will represent their interests if the employee does not appoint another person (if there is no low-paid authorisation in operation). Both NERRs explain the effect of paragraph 176(1)(b) and subsection 176(2) (if a low-paid authorisation is in operation). Both NERRs explain the effect of paragraph 178(2)(a) of the Act.

[134] The purpose of the final paragraph of the NERR is to direct the employees to sources of assistance in the event that they have questions about the notice or enterprise bargaining.

[135] The pre 3 April 2017 NERR directed employees to:

(a) their employer;

(b) their bargaining representative;

(c) the Fair Work Ombudsman (via their website); and

(d) the Fair Work Commission (via their Infoline).

[136] The post 3 April 2017 NERR directed employees to:

(a) their employer;

(b) their bargaining representative;

(c) the Fair Work Ombudsman; and

(d) the Fair Work Commission.

[137] The purpose of the final paragraph of the NERR is not offended by an employer providing a pre 3 April 2017 NERR after this date. The employees are still directed to the same sources of advice.

[138] The pre 3 April 2017 NERR includes a reference to subsection 174(6), which originally permitted the regulations to prescribe the content and form of the NERR. The post 3 April 2017 NERR includes a reference to subsection 174(1A), which contained the relevant power from 1 January 2017.

[139] The outdated reference to s.174(6) of the Act in the NERR does not offend the purpose of the requirement to issue the NERR in the prescribed form. All relevant information is still communicated to the employees.

[140] We are satisfied that the mistaken provision of a pre 3 April 2017 NERR to employees would constitute a minor technical error in relation to the requirements of s.174 of the Act and the employees covered by such an agreement would not be likely to be disadvantaged by such an error.

AG2018/6614 –Application by The Trustee for the Neish-King Family Trust T/A Kew Swimming Pools

[141] The copy of the NERR lodged by the employer with its application for approval of the agreement omitted from the NERR the paragraph relating to the union’s role in the bargaining process.

[142] The purpose of this paragraph is to inform the employee that, if they are a member of a union, their union will be their bargaining representative unless they appoint another person or revoke the union’s status. This is a core requirement of the NERR, prescribed by section 174(3) of the Act. Subject to a consideration of relevant circumstances, such as those referred to in paragraph [77] above, it is unlikely that a failure to include this paragraph in a NERR could constitute a minor technical error.

[143] However, in its submissions to the Commission dated 14 December 2018, the employer contends that the version of the NERR it provided to its employees did include the relevant paragraph, and the copy of the NERR lodged with the Commission was not provided to employees at the relevant time; it was associated with a prior approval application to the Commission, which was withdrawn. In light of this submission, the application for the approval of this agreement will be referred back to a Member of the Commission for consideration.

AG2018/6679 – Application by Royal Automobile Club of Victoria (RACV) Limited

[144] The employer replaced the reference to ‘speak to your employer’ in the final paragraph of the NERR with the phrase ‘speak to your Manager: Brad or Damien’. This constitutes a deviation from the content of the prescribed NERR.

[145] Having regard to the decision of Jessup J in Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd,70 (ALDI) ACCI contends that such a deviation is permitted and therefore does not constitute an error.

[146] We note that the view expressed by Jessup J in ALDI was obiter, his Honour having declined to grant the relief sought on discretionary grounds. Further, Katzmann J expressed a contrary view,:

‘as a result of the omission of the word “employer” and the substitution of the word “leader”, the notice was not in the prescribed form and ALDI failed to comply with s 173(1) of the FW Act (read with s 174(1)–(1A)) by giving notice in the required form’. 71

[147] The other member of the Full Court in ALDI, White J, expressed the view that the reasons of Katzmann J on the question of whether a notice given pursuant to s 174 must conform strictly with the prescribed form, ‘do appear to have some force’, but preferred not to express a concluded view on the issue as it was not necessary to do so. 72

[148] We are satisfied that replacing ‘speak to your employer’ in the final paragraph of the NERR with ‘speak to your Manager: Brad or Damien’ is a minor technical error in relation to the requirements of s 174 of the Act. The question of whether the employees covered by the agreement were not likely to have been disadvantaged by the error will depend on a further examination of the circumstances. In the Full Bench decision in Aldi v SDAEA, 73 it was pointed out (in the context of a large business) that the identification of certain persons to whom inquiries are made in the NERR may not be a trivial matter if its effect is to restrict the avenues by which any question to the employer may be communicated. This decision is subject to judicial review.

AG2018/6550 – Application by Axis Plumbing Services WA Pty Ltd

[149] The NERR was provided by the employer to its employees as a memorandum on company letterhead. The content of the NERR was otherwise in the prescribed form.

[150] The revised explanatory memorandum to the Amendment Act contemplates “the inclusion of the employer’s company logo or letterhead on a NERR” as a potential minor procedural or technical error that may be cured by section 188(2).

[151] We note that there are conflicting first instance decisions on the question of whether the mere presence of a company logo or company letterhead on a document purporting to be a NERR invalidates the NERR. 74 It seems to us that the better view is that the mere presence of a company letterhead on a document containing a NERR does not invalidate the NERR. The presence of the company letterhead is a triviality and one with which s 174(1A) is not concerned.

[152] The issuing of the NERR on company letterhead and in the form of a memorandum in no way detracts from the prescribed content in the NERR, nor does it diminish the effect or purpose of the NERR for relevant employees.

[153] However as this issue was not the subject of detailed argument before us we think the appropriate course is to treat the issuing of the NERR on company letterhead as a technical error. We are satisfied that this constitutes a minor technical error in relation to the requirements of s 174 of the Act and the employees covered by the agreement were not likely to have been disadvantaged by the error.

[154] The first paragraph of the prescribed NERR sets out where an employer is required to enter:

(a) name of employer;

(b) name of the proposed enterprise agreement; and

(c) proposed coverage.

[155] The prescribed NERR refers only to the ‘name’ of employer and does not specify whether the ‘legal name’ or ‘trading name’ must be included. A trading name or business name is not a legal entity; it therefore cannot be an employer. The name of an employer of a particular employee is the legal entity which employs the employee. Accordingly, including the name of the legal entity which employs the employee in the first paragraph of the NERR will meet the statutory requirement.

AG2018/4986 – N T Seaman T/A United Wolves

[156] The employer in this case is Mr Trevor Seaman. ‘United Wolves’ is the trading name of Mr Seaman’s business which provides security and crowd control services. Mr Seaman has another business which trades under the name ‘Event Staff Personnel’. Employees in the ‘United Wolves’ business are covered by an enterprise agreement, whereas employees who work in the ‘Event Staff Personnel’ business are not.

[157] The first paragraph of the NERR provided to the employees in the ‘United Wolves’ business states: “United Wolves gives notice that it is bargaining ….” Because Mr Seaman has included in the first paragraph of the NERR the trading name of his business, rather than his name as the legal employer, it is technically not compliant with s.174 of the Act. However, we are satisfied that this is a minor technical error in relation to the requirements of s.174 of the Act. Further, in light of the distinction between the different businesses conducted by Mr Seaman and the fact that employees in the ‘Event Staff Personnel’ business are not covered by an enterprise agreement, we are satisfied that, absent any other information to the contrary, employees covered by the agreement were not likely to have been disadvantaged by this error.

AG2018/6679 – Application by Royal Automobile Club of Victoria (RACV) Limited

[158] The employer in relation to this application is the Royal Automobile Club of Victoria (RACV) Limited.

[159] The first paragraph of the NERR issued by the Royal Automobile Club of Victoria (RACV) Limited to its employees states: “RACV gives notice that it is bargaining …”

[160] It is likely that the inclusion of an acronym (such as RACV) or slightly shortened version of a full legal name would satisfy the requirement to enter the ‘name of the employer’ in the first paragraph of the prescribed NERR. However, to the extent that entering RACV rather than Royal Automobile Club of Victoria (RACV) Limited in the first paragraph of the NERR constitutes an error, we accept that it was a minor technical error in relation to the requirements of s.174 of the Act and, in the circumstances, employees covered by the agreement were not likely to have been disadvantaged by this error.

AG2018/5778 – Application by CMTP Pty Ltd

[161] This application has been withdrawn. It involved the provision of a NERR in which the first paragraph did not identify the name of the employer, the name of the proposed enterprise agreement, or the proposed coverage of the enterprise agreement. It is unlikely that such technical errors would be minor or not likely to have disadvantaged employees covered by the agreement. That is because the purpose of the paragraph of the NERR is to inform employees that the employer is bargaining and who is proposed to be covered by the enterprise agreement.

[162] However, in order to decide an application for approval of an enterprise agreement with such a defective NERR, it would be relevant to consider whether any other information was provided to the employees at about the same time as they received the NERR.

[163] In this instance the employer also provided a covering letter with the NERR, which provided (in part):

“As you are aware your current enterprise agreement is about to finish in July 2018 and we need to start negotiating terms for the new agreement. This proposed agreement will cover all employees that work under the Timber Industry Award 2010. Attached to this letter you will have a copy of the Notice of employee representational rights (Fairwork act 2009)…”

[164] This paragraph of the covering letter informed employees of who would be covered by the proposed enterprise agreement, albeit the name of the proposed agreement was not given, and the employer’s ‘need to start negotiating terms for the new agreement’. We observe that, subject to information to the contrary, it is likely that the technical errors in the NERR were largely overcome by this part of the covering letter such that the errors in relation to s.174 of the Act could be appropriately categorised as ‘minor’ and the employees covered by the agreement were not likely to have been disadvantaged by the errors.

AG2018/3482 – Application by Huntsman Chemical Company Australia Pty Limited

AG2018/6664 – Application by Meredith Roof Plumbing Pty Ltd

AG2018/6505 – Application by Core Toughened Pty Ltd

[165] All three of these applications potentially involved less than 7 clear days being given between notification of the time, place and method of voting and the commencement of the vote. In Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd,75 the Full Bench confirmed that, in order for an employer to comply with section 180(3) of the Act, it must take all reasonable steps to notify relevant employees of the time, place and method of voting at least seven clear days before the commencement of the voting process.

[166] In the application by Huntsman Chemical Company Australia Pty Limited (AG2018/3482), the employer’s statutory declaration in support of the application for approval of the enterprise agreement (F17) stated that the vote took place on 18 July 2018 and gave the following response to question 2.5:

“2.5 When did you notify the relevant employees of the date and place at which the vote was to occur and the voting method to be used?

The shop steward notified the relevant Union Organiser on the 11th July 2018 to come to the site on the 18th July 2018 to conduct a vote by a show of hands. The Shop Stewart notified all employees affected of the date and time of the vote.”

[167] In subsequent correspondence to the Commission dated 23 November 2018, the employer provided additional information in relation to its response to question 2.5 in the employer statutory declaration (F17):

“…After consultation with the Shop Steward, to further state the process that was undertaken, on 9 July 2018, the employees were provided with copies of the EBA and were advised by the Shop Steward that they will be voting on the agreement the following week. The voting method was explained and agreed that a show of hands facilitated by the union organiser would take place.

The employees were made aware that the Shop Steward was to liaise with the union organiser to confirm a specific date and will further advised [sic] of this date.

The Shop Steward advised the union on 11 July 2018, that the employees were provided a copy of the EBA and that a vote on the EBA was to occur on site. The union confirmed that the voting will occur on the 18 July 2018.

The Shop Steward confirmed with the employees of the voting date.

RMAX ensured that there was a minimum of 7 clear days to review the EBA and complete the vote. This process was fair and reasonable and conducted in good faith…”

[168] The ACTU, ACCI and Ai Group all submitted that the employer in this instance had taken ‘all reasonable steps’ to notify the relevant employees of the time and place at which the vote will occur and the voting method to be used. On this basis it was submitted that the employer had complied with s 180(3) (and hence the Commission could be satisfied that the agreement had been genuinely agreed to: ss 186(2)(a) and 188). 76

[169] However, on the basis of the information set out in the previous two paragraphs, there is some doubt as to whether we could be satisfied that the employer met its obligation under s.180(3) of the Act to take all reasonable steps to notify the relevant employees of the time, place and method of voting by the start of the access period. We think the appropriate course is to conclude that the employer has failed to meet the relevant statutory requirement and that this amounts to a procedural error.

[170] The information provided suggests that 6 clear days’ notice was given to employees of the time, place and method of voting. Also relevant is the fact that the employer statutory declaration (F17) states that 10 employees will be covered by the agreement and that 8 employees cast a valid vote. In light of this information, we are satisfied that the procedural error was minor and that the employees covered by the agreement were not likely to have been disadvantaged by the procedural error.

[171] As to the application by Meredith Roof Plumbing Pty Ltd (AG2018/6664), the employer notified the employees on 9 November 2018 that the vote would take place on 16 November 2018. On 16 November 2018, all 15 employees who voted on the agreement voted to approve it. 18 employees will be covered by the agreement.

[172] For essentially the same reasons as we have given in relation to the application by Huntsman Chemical Company Australia Pty Limited, we are satisfied that Meredith Roof Plumbing Pty Ltd failed to take all reasonable steps to notify relevant employees of the time, place and method of voting at least seven clear days before the commencement of the voting process; this error was a minor procedural error made in relation to the requirements of s.188(1)(a) of the Act; and the employees covered by the agreement were not likely to have been disadvantaged by the procedural error.

[173] Although the application by Core Toughened Pty Ltd (AG2018/6505) was withdrawn and we do not need to determine it, we make the following observations in relation to the application. The employees were notified on 7 November 2018 of the date and other details of the vote. At least some employees voted on the agreement on 13 November 2018. Those employees only received 5 clear days’ notice of the vote. The voting process concluded on 15 November 2018. The proposed agreement covered 39 employees, of whom 38 cast a valid vote. Given the voting turnout (38 out of 39 employees covered by the proposed agreement cast a valid vote) and that the voting process took place over a number of days we are satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the procedural error.

AG2018/4986 – N T Seaman T/A United Wolves

[174] The last NERR was issued in relation to this agreement on 8 August 2018 and the vote took place on 29 August 2018. Accordingly, the employer failed to meet the 21 day timeframe required by s.181(2) of the Act.

[175] The information provided by the employer demonstrates to our satisfaction that the error arose from a calculating mistake and was not intentional. The procedural error relates to the requirements mentioned in s.188(1)(a) of the Act and, in light of the failure to meet the timeframe by one day, we are satisfied the procedural error is minor. As to likely disadvantage arising from the procedural error, the Member of the Commission to whom this application is remitted will have the opportunity to seek information concerning the likelihood of this reduction in the 21 day timeframe preventing employees from effectively appointing bargaining representatives, participating in genuine good faith bargaining, or suffering some other disadvantage.

PRESIDENT

Appearances in Sydney:

N. Ward and R. Kingston appeared for ACCI

S. Smith and H. Harrington appeared for Ai Group

Appearances in Melbourne:

T. Clarke appeared for ACTU

B. Shaw appeared for Meredith Ruth Plumbing

Hearing details:

2018.

21 December.

Sydney

VC to Melbourne

ATTACHMENT A

Schedule 2.1—Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174(1A)

[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].

What is an enterprise agreement?

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

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

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

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

[If the agreement is not an agreement for which a low-paid authorisation applies—include:]

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

[If a low-paid authorisation applies to the agreement—include:]

Fair Work Commission has granted a low-paid bargaining authorisation in relation to this agreement. This means the union that applied for the authorisation will be your bargaining representative for the agreement unless you appoint another person as your representative, or you revoke the union’s status as your representative, or you are a member of another union that also applied for the authorisation.

[if the employee is covered by an individual agreement-based transitional instrument—include:]

If you are an employee covered by an individual agreement:

If you are currently covered by an Australian Workplace Agreement (AWA), individual transitional employment agreement (ITEA) or a preserved individual State agreement, you may appoint a bargaining representative for the enterprise agreement if:

● the nominal expiry date of your existing agreement has passed; or

● a conditional termination of your existing agreement has been made (this is an agreement made between you and your employer providing that if the enterprise agreement is approved, it will apply to you and your individual agreement will terminate).

Questions?

If you have any questions about this notice or about enterprise bargaining, please speak to your employer or bargaining representative, or contact the Fair Work Ombudsman or the Fair Work Commission.

 1   [2018] FWCFB 7528

 2   Transcript, 21 December 2018

3 See Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at [59]; Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FWCFB 2042 at [26]-[37]

 4   [2017] HCA 34 (Kiefel CJ, Nettle and Gordon JJ)

 5   Ibid at [14]; also see Australian Mines and Metals Association Inc v CFMMEU [2018] FCAFC 223 at [76] – [86]

 6   [2017] HCA 34 at [37]-[39]

 7   Mills v Meeking (1990) 169 CLR 214 at [235]

 8   See Municipal Officers’ Association of Australia v Lancaster (1981) 37 ALR 559 at [579]; Bowling v General Motors Holden’s Ltd (1980) 33 ALR 297 at [304]

 9   (2007) 232 CLR 138

 10   Ibid at [5]

 11   Defined in s.180(4) as the 7-day period ending immediately before the start of the voting process

 12   Defined in s.180(2) as: ‘during the access period … the employees … employed at the time who will be covered by the agreement’

 13   [2012] FWAFB 9512

 14   [2012] FWAFB 9512 [78]–[81]

 15   Amending Act Schedule 4 cl.28

 16   Supplementary explanatory memorandum and supplementary explanatory memorandum

 17   Productivity Commission, Workplace Relations Framework, Final Report, Inquiry Report No. 76, 30 November 2015, Volume 1, p.58

 18   Productivity Commission, Workplace Relations Framework, Final Report, Inquiry Report No. 76, 30 November 2015, Volume 2, pp. 665-666

 19   Revised Explanatory Memorandum at [40]

 20   Ibid at [49]

 21   See Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471 at 474-475 per Priestley JA

 22   See, for example, Peabody Moorvale Pty Ltd v CFMEU [2014] FWCFB 2042, Uniline Australia Limited [2016] FWCFB 4969 and AMWU v Broadspectrum (Australia) Pty Ltd [2018] FWCFB 6556. Also see National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98 at [22]-[24] per Jessup J

 23   Uniline Australia Limited [2016] FWCFB 4969 at [100]

 24   (2000) 174 ALR 585

 25  Ibid at [19] per Gleeson CJ, Gaudron and Hayne JJ

 26   [2017] FWCFB 660

 27   Ibid at [86]

 28   O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ

 29   Ibid at 376. Also see Nordland Papier AG v Anti-Dumping Authority [1999] FCA 10 at [25] per Lehane J

 30   Regulation 2.05 of the Fair Work Regulations 2009

 31   Explanatory Statement for the Fair Work Amendment (Notice of Employee Representational Rights) Regulations 2017, p.1

 32   See Richardson v Austin (1911) 12 CLR 463; RPA Properties Pty Ltd v Robina Syndicate Pty Ltd [2009] QSC 339

 33   One Key Workforce Pty Ltd v CFMEU [2018] FCAFC 77 at [154]

 34   Section 171(a) of the Act

 35   CFMMEU and Ors v CBI Constructors Pty Ltd [2018] FWCFB 2732 at [42]

 36   ACTU submissions at [3] and [5]

 37   ACTU submissions at [18]-[22]

 38   [2013] NSWCCA 42; (2013) 273 FLR 155 at [100]

 39   [2018] FWCFB 6556

 40   [2014] FWCFB 2042

 41   [2016] FWCFB 4969

 42   [2017] FWCFB 660

 43   [2018] FWCFB 6556 at [19]-[24]

 44   Transcript 21 December 2018, PNs 48-52

 45   ACTU submission at [16]

 46   ACCI submission at [27]-[29]

 47   ACCI submission at [31] and [34]

 48   Revised Explanatory Memorandum at [47]

 49   [2012] FWAFB 9512

 50   [2017] HCA 53

 51   Ibid at [38]

52 [2014] FWCFB 2042

 53   ACCI submissions at [101] – [106]

 54   Stewart A, submission to the Senate Education and Employment Legislation Committee inquiry into the Bill, p.2

 55   Revised Explanatory Memorandum at [45]–[46] and [48]

 56   Ai Group submission at [89]-[91]

57 ACCI submission at [72]-[75]

 58   Ai Group submission at [33](a)

 59   See (2009) 239 CLR 27 at [47]

 60   (1979) 27 ALR 367

 61   Ibid at 375. Also see Deane J at 380

 62   Ibid at 375-376

 63   (1976) 14 SASR 303 at 308-13

 64   One Key Workforce v CFMEU [2018] FCAFC 77 at [154]

 65   Transcript 21 December 2018 at [137]

 66   [2018] FWCFB 3610 at [76]

 67   [2018] FWCFB 3610 at [110]

 68   Ai Group submission, 20 December 2018, at para 5

 69   Inca Consulting, ‘Enterprise Agreements Triage – A Review of the Pilot’ (2015), p.8

70 [2016] FCAFC 161 at [49]

 71   Ibid at [69]

 72   Ibid at [176]. See generally The Maritime Union of Australia v MMA Offshore Logistics Pty Ltd t/a MMA Offshore Logistics [2017] FWCFB 660 at [98]

 73   [2018] FWCFB 2485 at [27]-[28]

 74   See for example, Re Woolworths Group Limited T/A Woolworths [2019] FWCA 7; Re CQ Industries Pty Ltd T/A CQ Field Mining Services [2017] FWC 5667; Re DP World Brisbane Pty Ltd [2016] FWC 385; and Re DP World Melbourne Limited [2016] FWC 386

75 [2018] FWCFB 2732

 76   Transcript 21 December 2018 at [231], [245]-[249] and [255]

Printed by authority of the Commonwealth Government Printer

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