Federal Court of Australia

Retail and Fast Food Workers’ Union Inc v Woolworths Group Ltd [2025] FCAFC 105

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    If any party seeks an order for costs, then they may do so by filing a submission not exceeding three pages, together with any supporting affidavit, by 4.00 pm on 21 August 2025.

3.    In the event that any party seeks an order for costs, then by 4.00 pm on 28 August 2025, the other parties may file submissions in response not exceeding three pages, together with any responding affidavit material.

4.    Subject to further order, any applications for costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    By a further amended originating application dated 14 March 2025, the applicant (“RAFFWU”) moves for declaratory and prerogative relief directed to a decision of the third respondent (the “Commission”). The decision in question concerned an application that the first respondent made on 24 June 2024 for the approval of an enterprise agreement (the “Approval Application”). That agreement—known as the Woolworths Australian Food Group Agreement 2024 (the “EA”)—had been made as between the first and second respondents (collectively, “Woolworths”), and a large number of their retail supermarket employees, for various of whom each of RAFFWU and the fourth respondent (the “SDA”) had acted in connection with its making.

2    The Approval Application came before a Full Bench of the Commission, which, on 22 July 2024, granted the approval: Woolworths Australian Food Group Agreement 2024 [2024] FWCFB 314 (Hatcher P, Colman DP and Commissioner Matheson; hereafter, the “Commission’s Decision”).

3    By this proceeding, RAFFWU maintains that the Commission’s Decision was a product of jurisdictional error that this court should correct by granting the relief for which it moves. For the reasons that follow, that contention should be rejected. The Commission did not misunderstand or misapply its jurisdiction in any of the ways that are alleged, and the application should and will be dismissed as a result.

The statutory framework

4    Part 2-4 of the Fair Work Act 2009 (Cth) (the “FW Act”) is entitled “enterprise agreements”. Amongst other things, it makes provision for the making and approval of collectively bargained agreements that regulate enterprise-level terms and conditions of employment.

5    That part of the FW Act was amended with effect from 6 June 2023 by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). By operation of the transitional provisions of that enactment, the Approval Application fell to be determined partly upon the provisions of pt 2-4 as they existed prior to its coming into effect and partly upon provisions in their amended form. What follows is a survey of the relevant provisions in the forms that assume relevance for present purposes.

6    Part 2-4 makes provision for various types of agreement but the type that is relevant for present purposes is the subject of s 172(2)(a) of the FW Act, which provides as follows:

172 Making an enterprise agreement

…

Single-enterprise agreements

(2)     An employer, or 2 or more employers that are related employers, may make an enterprise agreement (a single-enterprise agreement):

(a)     with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

…

7    Section 176 of the FW Act is concerned with “bargaining representatives”. As the term suggests, the FW Act recognises as bargaining representatives those who bargain in respect of an enterprise agreement that is proposed to be made by (relevantly for present purposes) two or more related employers and those of their employees whom it is proposed that the agreement should cover. It is not in dispute that the first and second respondents were related employers, nor that RAFFWU and the SDA were bargaining representatives in respect of the EA (including at times preceding its making, when it was a proposed enterprise agreement).

8    Division 4 of pt 2-4 of the FW Act is entitled “Approval of enterprise agreements”. It contains a suite of provisions that regulate the circumstances in which the Commission might proceed to approve an enterprise agreement that has been made.

9    Amongst others, ss 180, 181 and 182 of the FW Act are concerned with the making of enterprise agreements. They relevantly provided as follows:

180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre-approval requirements

(1)     Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given copy of the agreement etc.

(2)     The employer must take all reasonable steps to ensure that:

(a)     during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i)     the written text of the agreement;

(ii)     any other material incorporated by reference in the agreement; or

(b)     the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

(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.

(4)     The access period for a proposed enterprise agreement is the 7‑day period ending immediately before the start of the voting process referred to in subsection 181(1).

…

Terms of the agreement must be explained to employees etc.

(5)     The employer must take all reasonable steps to ensure that:

(a)     the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b)     the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

(6)     Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a)     employees from culturally and linguistically diverse backgrounds;

(b)     young employees;

(c)     employees who did not have a bargaining representative for the agreement.

181 Employers may request employees to approve a proposed enterprise agreement

(1)     An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2)     The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3)     Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

182 When an enterprise agreement is made

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.

…

10    An enterprise agreement, once made, must be brought to the Commission for approval: FW Act, s 185(1). Section 186 of the FW Act stipulates some requirements that must be met before the Commission approves an enterprise agreement. Relevantly, it provided as follows:

186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1)     If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note:     The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(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; and

(b)     if the agreement is a multi-enterprise agreement:

(i)     the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii)     no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c)     the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d)     the agreement passes the better off overall test.

Note 1:     For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2:     The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3:    The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).

…

Requirement that there be no unlawful terms

(4)     The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

…

11    The reference in s 186(2)(a) to an agreement having been “genuinely agreed to” is to be read together with s 188 of the FW Act, which provided as follows:

188 When employees have genuinely agreed to an enterprise agreement

Statement of principles

(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.

(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.

12    The reference in s 186(2)(d) of the FW Act to the “better off overall test” (conveniently known as the “BOOT”) was a reference to what was provided for by s 193, which relevantly provided:

193 Passing the better off overall test

When a non-greenfields agreement passes the better off overall test

(1)     An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

Note 1:     Reasonably foreseeable employee is defined in subsection (5).

Note 2:     Section 193A sets out rules for applying the better off overall test, including requiring the FWC to only have regard to patterns or kinds of work, or types of employment, that are reasonably foreseeable at the test time (see subsection 193A(6)).

…

Award covered employee

(4)     An award covered employee for an enterprise agreement is an employee who:

(a)     is covered by the agreement; and

(b)     at the test time, is covered by a modern award (the relevant modern award) that:

(i)     is in operation; and

(ii)     covers the employee in relation to the work that he or she is to perform under the agreement; and

(iii)     covers his or her employer.

Reasonably foreseeable employee

(5)     A reasonably foreseeable employee for an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

(a)     would be covered by the agreement; and

(b)     would be covered by a modern award (the relevant modern award) that:

(i)     is in operation; and

(ii)     would cover the person in relation to the work that he or she would perform under the agreement; and

(iii)     covers the employer.

Test time

(6)     The test time is the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185.

13    The task for the Commission in applying the BOOT is augmented by the requirements of s 193A, which relevantly provided:

193A Applying the better off overall test

(1)     This section applies for the purposes of determining whether an enterprise agreement passes the better off overall test under section 193.

(2)     To avoid doubt, the FWC must undertake a global assessment of whether each employee concerned would be better off having regard to:

(a)     the terms of the agreement which would be more beneficial to the employee if the agreement applied to the employee than if the relevant modern award applied to the employee; and

(b)     the terms of the agreement which would be less beneficial to the employee if the agreement applied to the employee than if the relevant modern award applied to the employee.

(3)     The FWC must give consideration to any views relating to whether the agreement passes the better off overall test that have been expressed by any of the following:

(a)     the employer or employers that are covered by the agreement;

(b)     if the agreement is not a greenfields agreement—the award covered employees for the agreement;

(c)     in any case—a bargaining representative for the agreement.

(4)     The FWC must give primary consideration to a common view (if any) relating to whether the agreement passes the better off overall test expressed by all of the following:

(a)     the bargaining representative or bargaining representatives of the employer or employers that are covered by the agreement;

(b)     the bargaining representative or bargaining representatives of award covered employees for the agreement (other than a bargaining representative that is not an employee organisation).

(5)     Subsection (4) does not apply if the agreement is a greenfields agreement.

(6)     The FWC may only have regard to patterns or kinds of work, or types of employment, if they are reasonably foreseeable at the test time. In considering what is reasonably foreseeable, the FWC must have regard to the nature of the enterprise or enterprises to which the agreement relates.

(6A)     The FWC must determine whether a particular pattern or kind of work, or type of employment, is reasonably foreseeable for the purposes of subsection (6) if a view is expressed by any of the following that it is, or is not, reasonably foreseeable:

(a)     the employer or employers that are covered by the agreement;

(b)     if the agreement is not a greenfields agreement—the award covered employees for the agreement;

(c)     in any case—a bargaining representative for the agreement.

(7)     If a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.

14    This court’s jurisdiction to grant prerogative and declaratory relief in respect of the Commission’s Decision is well established and not in doubt: Judiciary Act 1903 (Cth) s 39B(1); FW Act, s 562. Equally, there is no doubt or controversy concerning RAFFWU’s standing to move the court for the relief that it seeks.

The present application

15    The present application was commenced in September 2024. In its initial form, it named only Woolworths and the Commission as respondents. Thereafter, the SDA and a small number of other bargaining representatives were invited to indicate whether they wished to advance submissions in relation to the matter. Only the SDA accepted that invitation and it was, thereafter, joined as a respondent to the matter.

16    RAFFWU’s application is supported by an affidavit that its secretary, Mr Joshua James Cullinan, affirmed on 13 September 2024 (hereafter, the “Cullinan Affidavit”). As is customary in applications like this one, Mr Cullinan’s affidavit identifies the grounds upon which RAFFWU submits that the Commission’s Decision should attract relief as the product of jurisdictional error. It is convenient to replicate what is identified:

46.     The grounds of this application for relief are:

(a)     [The Commission’s Decision] is affected by jurisdictional error because, by reason that certain provisions affecting part time employees are less beneficial than those provided for under the [General Retail Industry Award 2020], the [Commission] could not have been satisfied that the [the EA] passes the better off overall test and [the EA] is therefore not an agreement that is capable of being approved under s 186 of the FW Act.

(b)     [The Commission’s Decision] is affected by jurisdictional error because, [the Commission] could not have been satisfied that [the EA] had been genuinely agreed to by the employees covered by [the EA] within the meaning of s 186(2)(a), and [the EA] is therefore not an agreement that is capable of being approved under s 186 of the FW Act by reason that ineligible casual employees were included in the request made under s 181 of the FW Act.

(c)    [The Commission’s Decision] is affected by jurisdictional error because, [the Commission] could not have been satisfied that [the EA] had been genuinely agreed to by the employees covered by [the EA] within the meaning of s 186(2)(a), and [the EA] is therefore not an agreement that is capable of being approved under s 186 of the FW Act by reason that Woolworths did not inform eligible employees that some employees would have substantial pay cuts imposed on them by [the EA] and by reason that Woolworths and SDA represented that all employees would receive better wages when, in fact, that was untrue.

(d)    [The Commission’s Decision] is affected by jurisdictional error because, [the Commission] could not have been satisfied that [the EA] had been genuinely agreed to by the employees covered by [the EA] within the meaning of s 186(2)(a), and [the EA] is therefore not an agreement that is capable of being approved under s 186 of the FW Act by reason that Woolworths did not explain, or adequately explain, to employees the effect of the Annual Wage Review decision.

(e)    [The Commission’s Decision] is affected by jurisdictional error because, [the Commission] could not have been satisfied that [the EA] had been genuinely agreed to by the employees covered by [the EA] within the meaning of s 186(2)(a), and [the EA] is therefore not an agreement that is capable of being approved under s 186 of the FW Act by reason that Woolworths did not adequately inform employees about the detriments in [the EA].

(f)    [The Commission’s Decision] is affected by jurisdictional error because, [the Commission] could not have been satisfied that [the EA] had been genuinely agreed to by the employees covered by [the EA] within the meaning of s 186(2)(a), and [the EA] is therefore not an agreement that is capable of being approved under s 186 of the FW Act by reason that Woolworths and SDA made, allowed and did not correct misrepresentations that only SDA members were entitled to vote.

(g)    [The Commission’s Decision] is affected by jurisdictional error because, [the Commission] could not have been satisfied that the approval requirement in s 186(4) of the FW Act was not [sic] met because the Commission could not be satisfied that [the EA] contained no ‘unlawful terms’, and specifically, no ‘objectionable terms’ (see s 186(4) and 194(b)).

17    By written submissions advanced ahead of the hearing of the application, RAFFWU pressed an additional ground of challenge, namely that the Commission’s Decision involved a denial of procedural fairness. That denial is said to inhere in what RAFFWU describes as the Commission’s failure to afford it a reasonable opportunity to present evidence in opposition to the Approval Application.

18    It is convenient to address each of the discrete grounds in turn; and, in doing so, to identify the related reasoning of the Commission to which each pertains.

Ground one: failure to pass the boot

19    By its first ground of challenge, RAFFWU submits that the Commission’s Decision is a product of jurisdictional error in that, when it considered whether the requirement set out in s 186(2)(d) of the FW Act was satisfied, the Commission wrongly concluded that the EA passed the “better off overall test”.

20    It is to be recalled that an enterprise agreement will pass the “better off overall test” if the Commission is satisfied that, as at the time that an application for its approval is made, each “award covered employee” (prospective or otherwise) would be better off under it than he or she would be under a relevant award. For present purposes, it is not controversial that at least some of the retail supermarket employees that the EA is expressed to cover were “award covered employee[s]” for the purposes of s 193(1) of the FW Act. The “modern award” in question was the General Retail Industry Award 2020 (the “Award”), an instrument that was made and had (and continues to have) force pursuant to pt 2-3 of the FW Act.

21    RAFFWU’s challenge focuses upon part-time employees. It submits that, under the Award, part-time employees are entitled to regular patterns of work in which the number of hours that they are to perform and the days of the week on which they are to perform them (which, together, the Award refers to as “guaranteed hours”) are fixed. Additionally, it submits that the Award stipulates for part-time employees the start and finish times within which they will work, and the timing and duration of meal breaks. By cl 10.5, the Award requires that a part-time employee must, at the time of engagement, reach with his or her employer a written accord that stipulates those matters. A part-time employee’s guaranteed hours can only be varied by agreement.

22    Subject to limitations, cl 9.1 of the EA reserves for Woolworths a right unilaterally to change employees’ standard rosters. It is unnecessary here to record the limitations that attach to that right under the EA. It is—and, before the Commission, was—common ground that the right that cl 9.1 confers upon Woolworths constitutes (and constituted) a detriment to part-time employees relative to the position that they would have enjoyed under the Award. It was, thus, a matter apt to be weighed when the Commission considered whether the EA passed the so-called “better off overall test” for the purposes of s 186(2)(d) of the FW Act.

23    RAFFWU advanced precisely that contention in its opposition to the Approval Application. Specifically, it submitted before the Commission that its “…evidence makes clear that the detriment to part-time employees is significant” because the Award reflected “…the importance of regular days off to engage with family, study and rest”.

24    The Commission considered what RAFFWU advanced but concluded that such detriment as cl 9.1 of the EA posed for part-time employees was, when judged alongside other benefits that the EA conferred, insufficient to warrant a finding that the EA did not pass the “better off overall test”. The Commission reasoned (Commission’s Decision, [23]-[24]):

[23]     [RAFFWU] objected to the approval of [the EA] on the grounds that the Commission could not be satisfied that it passed the BOOT. Like the [Australasian Meat Industry Employees Union (the “AMIEU”)], [RAFFWU] contended that part-time employees would not be better off overall under [the EA] because the rates of pay in [the EA] are only marginally in excess of those in the Award, and this small benefit was outweighed by the employer’s ability to alter their working arrangements. We agree with [RAFFWU] and the AMIEU, and Woolworths accepted, that [the EA] is somewhat less beneficial to part-time employees than the Award, in that it allows Woolworths to change a standard roster, whereas clause 10.10 of the Award does not permit a change to ‘guaranteed hours’. We also accept the submissions of [RAFFWU] to the effect that predictability of working arrangements is of particular importance to part-time employees. Nevertheless, the detriment is a relatively small one, particularly in light of the safeguards in clause 9.1 of [the EA] and the fact that the number of contracted weekly hours cannot be reduced. In our view [the EA], which provides for higher rates of pay, is overall more beneficial to part-time employees than the Award. [RAFFWU] contended that there was no specific, separately identifiable monetary benefit accruing only to part-time employees, but we do not see how this affects the BOOT analysis. It may mean that [the EA] passes the BOOT in relation to part-time employees by a margin that is smaller than for full-time employees but this is of no consequence. Nor does it matter that the margin is a small one. What matters is that the Commission be satisfied that for all award-covered employees and reasonably foreseeable employees, a margin exists.

[24]     It is also necessary to apply s 193A in our consideration of whether [the EA] passes the BOOT. Relevantly, s 193A(2) requires the Commission to undertake a global assessment of whether each employee concerned would be better off and s 193A(3) requires the Commission to give consideration to the views of the employer, award-covered employees and the bargaining representatives. In this last respect, we note that the F18 filed by the SDA refers to some 31 respects in which it considers [the EA] to be more beneficial to employees than the Award and expresses the view that [the EA] passes the BOOT. The SDA, together with [the Australian Workers’ Union], represents about 42 per cent of all employees covered by [the EA] (compared to less than 0.6 per cent represented by [RAFFWU]). We are satisfied that [the EA] passes the BOOT.

25    Presently, RAFFWU contends that that reasoning exposes jurisdictional error in two forms. First, it is said that, by “failing to engage with the legal test and to provide adequate reasons”, the Commission “constructively failed to exercise its jurisdiction”. Second, it is said that “…it was not open to the Commission on the available evidence to conclude that the part-time cohort was better off overall”.

26    Respectfully, neither contention can be accepted. We shall address them in reverse order.

27    The suggestion that it “was not open” to the Commission to conclude as it did about the magnitude of the detriment inherent in cl 9.1 of the EA translates to a charge of legal unreasonableness: that the conclusion was so at odds with the material that was before the Commission that no tribunal could reasonably have concluded as the Commission here did.

28    For the purposes of ss 186(2)(d) and 193 of the FW Act, the Commission’s state of satisfaction that the EA passes the BOOT must be formed in good faith, be capable of being formed by a reasonable decision maker, be formed in accordance with a correct understanding of the law under which the decision is made and be untainted by a material breach of any other express or implied conditions of the decision-making function: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (“Eshetu”), 651-4 [131]-[137] (Gummow J); Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, 35 [33] (Gageler and Keane JJ). Subject to these limitations, which are concerned with the legality of the Commission's decision, it is for the Commission and not the court to be satisfied that an enterprise agreement meets the BOOT.

29    RAFFWU challenges the Commission’s satisfaction that the EA met the BOOT on grounds including that the state of satisfaction was not reasonably formed. Hence, RAFFWU submits that it was “not open” to the Commission to reach its state of satisfaction on the evidence before it. This claim must engage with the “usually high” threshold that must be met in order to show that a decision of an administrative character is unreasonable: Minister for Home Affairs v DUA16 (2020) 271 CLR 550, 563 [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ). That high threshold is often expressed as being that a decision is so unreasonable that no reasonable decision maker could have arrived at it, although legal unreasonableness is not confined to such instances: Minister for Immigration v SZVFW (2018) 264 CLR 541, 573 [82] (Nettle and Gordon JJ). See also Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”), 647-8 [130] (Crennan and Bell JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”), 364 [68] (Hayne, Kiefel and Bell JJ). Where, as here, the state of satisfaction involves evaluation and the formation of an opinion by the Commission, it may be very difficult to show that the state of satisfaction could not reasonably have been reached: Buck v Bavone (1976) 135 CLR 110, 118-9 (Gibbs J); Eshetu, 654 [137] (Gummow J). Thus, in SZMDS, 648 [131], Crennan and Bell JJ observed:

If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

30    By its nature, the value that attaches to roster certainty cannot be expressed in monetary terms. Nonetheless, the Commission was obliged to recognise that value and to ask itself whether its loss was sufficiently offset by other gains. It could only do that by indulging in an inherently imprecise evaluative process that did not permit a definitively correct answer. That is precisely the course upon which it embarked. It accepted, as RAFFWU’s evidence made clear, that “…predictability of working arrangements is of particular importance to part-time employees”. It correctly assessed the impact of cl 9.1 of the EA by reference to the “safeguards” that are built into it. It made an assessment of the value that attaches to roster certainty that was informed by those realities.

31    It is, of course, the case that the Commission’s conclusion that “the detriment is a relatively small one” is, like any other evaluative decision, open to debate on its merits; but it cannot be stigmatised as one that lacked any “evident or intelligible justification”: Li, 367 [76]. On the contrary—and particularly given what the Commission recognised as the “safeguards” that are contained within cl 9.1 of the EA—it was within the bounds of what is reasonable for the Commission to assess the scale of the loss as it did.

32    We turn, then, to the other dimension inherent in RAFFWU’s first ground of challenge: namely, that the Commission failed “…to engage with the legal test and to provide adequate reasons”, which was said to reflect that the Commission had “constructively failed to exercise its jurisdiction”. Again, there are two components to that challenge, neither of which should be accepted.

33    In ALDI Foods Pty Ltd v Shop, Distributive & Allied Employees Association (2017) 262 CLR 593, 621 [99], the plurality (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ) explained (to the limited extent that it might be doubted) the nature of the Commission’s task when assessing whether an enterprise agreement passes the “better off overall test”:

[99]    Whether the Full Bench was satisfied that an employee was better off overall under the Agreement than under the award required an evaluative assessment after consideration of the provisions of the award and the Agreement that may have been more beneficial to employees and those that may have been less beneficial…

34    Here, it is plain from the reasons published in support of its decision that the Commission appreciated the task that ss 186(2)(d), 193 and 193A of the FW Act posed for it. The question that those provisions charged the Commission with answering was whether, when weighed against the benefits otherwise conferred, the impact of cl 9.1 of the EA was such that employees would not be better off overall under the EA than they would be if the Award applied. There is no doubt that that is the task to which the Commission directed itself; and, in doing so, there can be equally no doubt that it correctly appreciated what the exercise of its jurisdiction required.

35    Likewise, there is nothing inadequate—certainly not to a point that bespeaks jurisdictional error—about the reasons that the Commission gave for its conclusion that the EA was “…overall more beneficial to part-time employees than the Award”. Even assuming that any inadequacy of reasoning might sound as an instance of jurisdictional error—either directly or, as RAFFWU contends, as a manifestation of a constructive failure to conduct the evaluative assessment called for by the FW Act—the Commission’s reasoning was orthodox and apparent. The Commission considered that the loss of roster certainty was outweighed by other benefits in part because of its acceptance that there were limitations on the manner in which Woolworths could unilaterally impose changes and that the EA at least guaranteed contracted working hours.

36    All of that presupposes that the proper exercise of the Commission’s jurisdiction was conditioned by a requirement that it provide adequate reasons. RAFFWU’s submissions did not identify the source of any such requirement and Woolworths disclaimed its existence. The authorities appear to recognise that the Commission is subject to an implied duty to provide reasons for its decisions: Soliman v University of Technology Sydney (2012) 207 FCR 277, 292 [46] (Marshall, North and Flick JJ). Nonetheless, there is reason to doubt that a failure to discharge that obligation necessarily sounds as jurisdictional error sufficient to warrant prerogative relief: Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554, 562-3 [44]-[50] (Bennett, Flick and McKerracher JJ).

37    It is unnecessary that we should attempt to navigate those waters. There was no inadequacy as alleged. RAFFWU’s first ground of challenge is not made good.

Ground two: the ballot process

38    RAFFWU’s second, third, fourth, fifth and sixth grounds of challenge posit that the Commission erred by accepting that the EA had been genuinely agreed to by the employees whom it covered. Each of those grounds puts that proposition in a different way. Insofar as that proposition concerns ground two, RAFFWU submits that irregularities that attended the ballot process through which Woolworths’ employees were invited to vote for or against the making of the EA (hereafter, the “Employee Ballot”) were such that the Commission could not properly have concluded that it had been genuinely agreed to.

39    The irregularities to which RAFFWU points (and, before the Commission, pointed) focus upon the inclusion of certain casual employees in the Employee Ballot. There were 124,590 employees who, so Woolworths submitted before the Commission, were eligible to be included in the Employee Ballot. 94,754 (approximately 76%) employees accepted that invitation. Of that number, 58,757 (approximately 62%) indicated their assent to the making of the EA; and 35,997 (approximately 38%) registered their opposition.

40    The employees who were invited to participate in the Employee Ballot initially included casual employees, including some who did not work either during the period over which it played out (Wednesday, 12 June to Wednesday, 19 June 2024), or the previous seven-day “access period”. There was thereafter some manipulation of the relevant “roll”, the end result of which appears to be the total 124,590-employee figure. At the hearing of the Approval Application, RAFFWU queried how that roll had come to be; and whether or the extent to which the Employee Ballot—and the result that it generated—took account of employees who were not eligible to vote under s 182(1) of the FW Act.

41    Woolworths’ evidence at the hearing of the Approval Application was to the effect that some casual employees who should not have been eligible to participate in the ballot nonetheless did so; but that, at some later point, “the data was cleansed”. It is fair to say that the evidence concerning that “cleansing” process was not as clear as it could have been. The transcript of the Approval Hearing records the following exchange that took place during some oral evidence that was given by Ms Jannifer Kerr, Woolworths’ Head of Industrial Relations:

PN81
And did that class of casual worker, so a casual worker who did not work a shift in the access period or the vote period, was that class afforded a vote in the ballot?---Yes, they were, until the data was cleansed.

PN82
At what point did Woolworths identify a need to cleanse the data?---Woolworths identified - there were two lists - there was a number of lists given. The initial list was given to set up with the voting process. Then prior to the vote process commencing any team members who had joined and were eligible, or team members who had resigned and left were removed from that list before going into the vote period, and any casual team members - it's difficult to know whether - a casual team member often gets rostered in weeks and not in advance. So before declaring the final vote casual team members who were not eligible to vote, i.e. those who were not rostered to work in the access or vote period were - the (indistinct) sends those casuals from the data.

PN83
Do I understand from that, Ms Kerr, that the ballot agent was able to remove by reference to a person's name the specific vote attaching to that person?---They were able to remove by employee ID that person from - those persons from the roll.

PN84
And how many employees were removed as part of that vote cleansing process?---Not quite 10,000.

PN85
So that I'm clear, Ms Kerr, that 10,000 represents employees who in fact voted, but who were not eligible to vote?---At the assessment at that time, yes, because rostered data or payroll data had subsequently revealed that they had not worked or that they had worked.

PN86
The original list, Ms Kerr, which included employees who did not work a shift in the access period, how was that original list compiled, what was the criterion by which a casual employee was included on that list?---Sorry, I missed the first part of that question.

PN87
Yes, I'm sorry, I expressed it poorly. When the original list was compiled what criteria were applied to the process of selecting casual employees for inclusion on the list?---On the list that was provided and updated immediately before the vote was being employed, or roster data wasn't available.

PN88
So it was any casual employee who according to Woolworths' records was employed by it at that time?---Yes.

PN89
Do you know, Ms Kerr, how many - that some 10,000 were cleansed, being that part of that cohort who voted - do you know the number of employees who were included in that original list, but who were not eligible?---Sorry, that would be - that would be 10,000, about 10,000.

PN90
So the cleansing was of everybody from the list, not just people who had voted?---Yes, everybody from the list, not just people who had voted. There was no way for us to know who had or hadn't voted. That's confidential.

42    That evidence was later the subject of oral submissions. Later still, Woolworths submitted to the Commission (with leave) a further statutory declaration, which identified that there had been 4,701 casual employees who had worked during the week of the Employee Ballot but not in the seven-day “access period” that preceded it.

43    The Commission addressed RAFFWU’s contention about the integrity of the ballot process as follows (Commission’s Decision, [25]-[28]) (references omitted)

[25]     [RAFFWU] further contended that the Commission could not be satisfied that [the EA] was genuinely agreed to by the employees covered by [the EA]. It advanced 12 arguments. First, it submitted that the employees who participated in the vote to approve [the EA] included casual employees who were ineligible to vote because they were not persons employed ‘at the time’, as opposed to persons who were not so employed but were ‘usually employed’. It said that of the 124,590 eligible voters, 48,106 were said by Woolworths to have been casuals, and that it was aware that at least some casuals who were not employed at the time had been asked to vote. In his witness statement, Joshua Cullinan said that, when he learned that some 48,000 of the employees who voted on [the EA] were casuals, he contacted his organisation’s membership. One member, Xanthe Magree, told him that she had not worked a shift since 19 May 2024 but had nevertheless received a link to vote on [the EA]. A second worker, who was not identified, had told Mr Cullinan that he had not worked in the seven days prior to the start of the vote but had been permitted to cast a vote. Mr Cullinan also said that he was aware from his experience representing employees of Woolworths that there was a high ‘churn rate’ for casuals. [RAFFWU] submitted that Woolworths appeared to have allowed all casuals to vote, or had set impermissibly wide boundaries. It further contended that irrespective of the numbers, the vote lacked integrity because the large number of casuals employees were less likely to be present in the workplace at the time of the vote and were therefore less likely to have been exposed to information about [the EA] and more likely to have been influenced by ‘inducements’ such as gift cards.

[26]     At the hearing, Ms Kerr gave evidence that Woolworths had initially compiled a voter list that included all casual employees. It then refined this list to produce a list of casuals as at the end of the access period, immediately before the commencement of the vote. These casuals were allowed to participate in the vote. Afterwards, Woolworths undertook a ‘cleansing’ exercise through an electronic process based on employee identification number whereby it excluded casuals unless they fell into one of two categories: those who worked at least one shift during the seven day access period immediately before the start of the vote (category 1); and those who during the access period were rostered to work a shift the following week during the voting period (category 2). Woolworths said that it had adopted this approach being mindful of the difficulties that can arise in relation to ascertaining those casuals who are eligible to vote on an enterprise agreement. Woolworths counted the votes of all casuals in categories 1 and 2 and contended that it was correct to do so. Section 181(1) states that an employer may request the employees ‘employed at the time’ who will be covered by an agreement to approve it by voting for it. It was clear from the authorities that the relevant ‘time’ was the entire seven-day access period ending immediately before the vote. Casuals who worked a shift in this period were plainly so employed. But so were casuals who at that time were on a roster to work the following week. Woolworths contended that these were casuals who in reality were employed at the time of the access period even though they did not work a shift in that week.

[27]     In Appeal by Kmart Australia Limited [(2013) 291 IR 233] (Kmart), the Full Bench concluded that the ‘time’ at which employees covered by the agreement had to be employed in order to be requested to vote referred to in s 181(1) encompassed the whole of the access period in s 180(4) and was to be equated with the ‘time’ referred to in s 180(2)(a). The Full Bench in Kmart concluded that casual employees who had been engaged for the first time during the voting period had not been ‘employed at the time’ at which employees were requested to vote. The Full Bench did not say that existing casuals who did not work during the access period were ineligible to do so. In our view, Woolworths’ contention that category 2 casuals were eligible to vote has merit. These were not just casuals ‘on the books’ who might or might not have been given further shifts. The fact that these employees had been allocated shifts on the roster is evidence of the actuality and currency of their casual employment during the access period.

[28]     However, it is not necessary for us to reach a concluded view on this matter. If ineligible employees were allowed to participate in a vote on an enterprise agreement, it is necessary to consider whether their votes could have affected the outcome. In Kmart, it was clear that they could not have done so. And the same is the case here. Based on the evidence of Ms Kerr and the declaration of Lokesh Yadav lodged by Woolworths after the hearing, which we accept, there were 4,701 employees in category 2. Even if all of these employees were ineligible to vote, and all of them had cast votes to approve [the EA], this could not have affected the outcome, because the ‘yes’ vote of 58,757 exceeded the ‘no’ vote of 35,997 by a margin of 22,760. Mr Cullinan’s evidence refers to two casuals who may not have been eligible to vote but this is inconsequential. We note that there is no suggestion in this case that employees who were eligible to participate in the vote were excluded from it. We are satisfied that employees employed at the time who would be covered by [the EA] were asked to vote on it, as required by s 181(1). [The EA] was approved in accordance with s 182(1) because a majority of eligible voters who cast a valid vote approved [the EA]. We reject [RAFFWU’s] alternative contention that irrespective of the numbers who voted in favour of [the EA], the vote lacked integrity. This contention does not engage s 181. We understand it to pertain to s 188(1)(c). But we do not accept the premises of the argument. More generally we do not consider that there are ‘other reasonable grounds’ for believing that [the EA] was not genuinely agreed to by employees.

44    Presently, RAFFWU submits that, in light of concerns about the integrity of the Employee Ballot, the Commission “…could not have been satisfied that [the EA] had been genuinely agreed to within the meaning of s 186(2)(a) of [the FW Act]”. As with ground one, the complaint is pitched at the level of legal unreasonableness: it is accepted that the Commission in fact was so satisfied; but RAFFWU maintains that, on the evidence, that state of satisfaction was unreasonable, illogical or irrational to a point that it can only be understood to have been arrived at in a way not authorised by the FW Act.

45    Again, that submission cannot be accepted. The Commission’s reasoning cannot be said to have lacked any evident or intelligible justification. On the contrary, it reveals that the Commission engaged with the submission that RAFFWU advanced and concluded that, even assuming that there had been votes cast by a cohort of employees who did not fall within the class identified by s 182(1) of the FW Act, it was not big enough in number to have impacted upon the significant majority result that the Employee Ballot had generated. That being so, the Commission reasoned that it could be satisfied that a majority of Woolworths’ employees had approved the EA by voting for it.

46    Whether that reasoning was correct is not for this court to say. It suffices to observe that the evidence that was before the Commission was more than sufficient to sustain its conclusion, whatever might be said of it.

47    RAFFWU’s contention, however, is not limited to matters of mathematics. At the hearing of the application, counsel for RAFFWU acknowledged that:

the numbers identified some 10,000 who were cleansed and some 4,701 who were potentially not eligible. That’s roughly 15,000. The gap between the yes and the no vote is more – is higher than that. If we look at it purely on a numerical basis – if we took all 15,000 and put them in my client’s column, would the numerical gap be bridged? The answer is no.

48    No doubt in light of that proper concession, a supplementary attack was waged. In its written submissions before the court, RAFFWU maintained that:

the numerical gap between those voting ‘yes’ and those voting ‘no’ was not the only consideration. The evidence established a significant irregularity in the ballot. That impact is not measured only in the final vote. It is measured by what, if any, impact the irregularity had on the integrity of the process as a whole. The evidence before the Commission did not allow it to reach a conclusion about that matter.

49    Precisely what is meant there by the reference to “the integrity of the process as a whole” is not apparent. Ultimately, the question for the Commission was whether or not a majority of Woolworths’ employees cast valid votes to approve the EA. That is the question to which the Commission directed itself and the answer at which it arrived—correct or otherwise—was one that the evidence was capable of sustaining. That there might or might not have been reason to criticise “the integrity of the process as a whole” does not serve as a basis upon which the court might impugn the Commission’s conclusion as a product of jurisdictional error.

50    RAFFWU’s second ground of challenge is not made good.

Ground three: impact on JB&S employees

51    RAFFWU’s third ground of challenge posits that the Commission could not properly have concluded that the employees whom the (then-proposed) EA covered genuinely agreed to it because Woolworths did not properly explain to them the impact that the EA would visit upon a small number of employees.

52    Upon its approval by the Commission, the EA operated to replace two nominally-expired agreements: the Woolworths Supermarkets Agreement 2018 and the Jack Butler and Staff Pty Ltd Enterprise Agreement 2017 (hereafter, “JB&S EA”). The latter appears to have covered Woolworths in relation to certain employees previously employed by a related or subsidiary business that operated an online retail supermarket enterprise (“JB&S”). It is not in contest that the rates of pay receivable by employees who were covered by the JB&S EA (when it was operative) were higher than what is prescribed by the EA. RAFFWU submits that that effective reduction in pay for those employees was not adequately explained to the employees covered by the EA (including—indeed, specifically—those not previously covered by the JB&S EA), such that Woolworths could not be understood to have complied with the obligation conferred upon it by s 180(5) of the FW Act. That, so RAFFWU submits by ground three, meant that the Commission could not properly have been satisfied under ss 186(2)(a) and 188(1)(a)(i) of the FW Act that the EA had been “genuinely agreed to”.

53    That same contention was advanced before the Commission in opposition to the EA’s approval. The Commission addressed it as follows (Commission’s Decision, [14]-[15]):

[14]     The AMIEU submitted that a necessary condition for genuine agreement was absent, namely the employer’s compliance with its obligation in s 180(5) to explain to employees the terms of [the EA] and the effect of those terms. The concern here was essentially threefold. One was that employees were not informed that the wages of [JB&S] workers would be reduced under [the EA]. A second was that explanatory material provided to employees by Woolworths and the SDA was misleading in relation to the pay and benefits provided to employees under [the EA]. A third was that Woolworths’ ‘messaging’ in relation to the eligibility for employees to receive gift cards was confusing and wrongly suggested that employees would only receive a gift card if they voted ‘yes’.

[15]     We reject these contentions. First, it is clear that the explanatory materials provided by Woolworths to employees did address the terms of [the EA] that would affect JB&S employees. For one thing, explanatory materials explicitly identified, by red colour-coding, that the rates of pay for JB&S employees were ‘worse’ than those provided under [the JB&S EA] (see attachment U to the F17A declaration). Employees were also told that, although it was not a term of [the EA], Woolworths had agreed to make a payment to eligible JB&S employees to mitigate the impact of receiving a lower base rate of pay (see attachment R to the F17A declaration). In his witness statement, Mr [Anthony] Hicks [(a bargaining representative for the EA)] said that non-JB&S employees had not been told that their colleagues would receive a reduction in the base rate of pay, and that they had been denied an opportunity for altruism by voting against [the EA] out of concern for their JB&S colleagues. But this is not correct. Employees had access to the explanatory material addressing the pay arrangements for JB&S employees.

54    Later, the Commission observed (Commission’s Decision, [29]):

We accept in principle that employees’ vote on an agreement can be motivated by concern for others as well as self-interest, but the relevant explanations were reasonable ones. Contrary to the submission of the objectors, employees were not prevented from acting altruistically.

55    Later still, the Commission recorded its conclusion of present relevance (Commission’s Decision, [36]):

[36]     We consider that Woolworths complied with s 180(5) of the FW Act. It took all reasonable steps to ensure that the terms of [the EA], and the effect of those terms, were explained to employees employed at the time who would be covered by [the EA].

56    Again, RAFFWU’s contention that the Commission could not properly have been satisfied of Woolworths’ compliance with s 180(5) of the FW Act translates to a charge that the Commission’s conclusion to that effect was legally unreasonable to a point bespeaking jurisdictional error. The observations made above about that concept needn’t be repeated.

57    The obligation imposed by s 180(5) of the FW Act required that Woolworths take “all reasonable steps” to explain to its employees the effect of the EA’s terms. In Construction, Forestry, Maritime, Mining and Energy Union v Mechanical Maintenance Solutions Pty Ltd (2022) 289 FCR 508, O’Callaghan and Wheelahan JJ observed (at 552-3 [169], Rangiah J dissenting in the result):

[169]    For the purposes of s 180(5), the Commission must be satisfied that “all reasonable steps” were taken to ensure that the terms of the agreement and their effect were explained to the relevant employees. We do not consider that this requirement necessarily involves the identification of the universe of reasonable steps, and requires that the Commission be satisfied that every one of those steps was taken. Often, a requirement to take all reasonable steps to achieve a particular outcome may be met in different ways. The fact that one reasonable path is chosen over others need not result in a conclusion that all reasonable steps were not taken. For instance, it might be reasonable to explain the terms of an agreement by a written document, or by PowerPoint slides, or by face-to-face meetings as occurred here, or by a combination of those means. The choice of one form of words, or one reasonable medium of communication over others may be relevant to the evaluation that the Commission must make. But the legislation contemplates that there be flexibility. That flexibility arises particularly from s 180(5)(b) which requires that the employer take all reasonable steps to ensure that the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the employees. If an employer in a particular case pursues a path of explanation and mode of communication that is reasonable, the standard of reasonableness may not require that the employer pursue all parallel means of explanation and communication to achieve the same end.

58    Whether a step that an employer might take to explain the effect of a particular term qualifies as a “reasonable step” for the purposes of s 180(5) of the FW Act necessarily depends on circumstances peculiar to the occasion. Some terms are self-explanatory in their effect. Some might apply notoriously to a point that explanation is unnecessary. Some terms of secondary or marginal significance might inspire less interest than others and, therefore, require less by way of explanation. Some might visit consequences that are indirect or theoretical. In considering whether a particular term is proposed to operate with an effect that warrants explanation, there is no bright line that separates steps that an employer might reasonably take from steps that extend beyond what is reasonably required.

59    The effect of a term that entitles an employee to a particular rate of pay for each hour worked is that he or she will be entitled to receive that amount of money in respect of each hour of work that he or she performs. In that sense, the effect is obvious and might well not require much (or even any) explanation. So to observe is not to deny that wage clauses might visit other effects, including some that are specific to individual employees (and, no doubt, some that might not be known by an employer). But whether they require specific explanatory effort by force of s 180(5) of the FW Act is a question that calls for a broad evaluative exercise and that, by its nature, will often not lend itself to a single correct answer.

60    Here, the Commission embarked upon that process and reached the conclusion that it reached about Woolworths’ having complied with s 180(5) of the FW Act. In order that RAFFWU might impugn that conclusion as legally unreasonable, it would need to establish that it lacked any evident or intelligible justification.

61    That it cannot do.

62    The evidence that was before the Commission disclosed that Woolworths’ employees were provided with information in various forms about the then-proposed EA. One was a four-page table entitled “JB&S Agreement Short Form Summary”. It listed a series of employment entitlements and set out how they were addressed in both the proposed EA and the then-operative JB&S EA. As concerned “Base Rates of Pay”, that comparison noted:

63    That document was made available to all relevant employees, not just those to whom the JB&S EA then applied. A different “fact sheet”—headed “What do I get paid[?]” and also distributed to all relevant employees—contained the following:

•    JB&S team members: The team members who are covered by the [JB&S EA], rather than the Woolworths Supermarkets Agreement 2018, will also be paid the applicable rates of pay under the proposed EA. This means that their base rate of pay under the proposed EA may be lower than their current rate of pay. Although it is not a term of [the EA], Woolworths has agreed to make a payment to eligible team members to mitigate the impact of receiving a lower base rate of pay. JB&S team members should also review the JB&S specific information available on the EA Hub.

64    RAFFWU complains that the representations outlined above were buried deep within the large volume of information that Woolworths published by way of explanation of the EA. It maintains that it was not enough for Woolworths merely to make the information available to employees in the ways that it did; but, rather, that it was obliged by s 180(5) of the FW Act expressly to advert to the fact that some employees would be paid $2.33 less per hour than what they were then receiving. Having not done so, RAFFWU submits that the Commission was obliged not to be satisfied that Woolworths had complied with s 180(5) of the FW Act; and that the contrary conclusion was legally unreasonable in a sense recognised by authority.

65    The Commission’s conclusion that Woolworths took all reasonable steps to explain the effect of the EA’s terms is open to challenge on its merits in the same way that any evaluative conclusion of that kind might be. It is not, however, susceptible here to a charge of legal unreasonableness. It was open to the Commission to accept that, by providing to its employees the wealth of information that was provided (including as to wage rates and the position of employees who were then covered by the JB&S EA), Woolworths could be understood to have complied with s 180(5). It must be understood to have accepted that the provision of further explanation of the kind that RAFFWU identifies would have been superfluous or otherwise beyond what was reasonably necessary. In light of the information that was presented and what was likely to have been the limited (and perhaps marginal) significance of the issue in question (at least to employees not covered by the JB&S EA), that conclusion was one at which the Commission could reasonably have arrived. The most that might be said of the Commission’s state of satisfaction about Woolworths’ compliance with s 180(5) of the FW Act is that it could and ought to have formed a different view; but, even if it ought to have, it did not trespass beyond what it had jurisdiction under the FW Act to decide.

66    RAFFWU’s third ground of challenge is not made good.

Ground four: annual wage review

67    By its fourth ground, RAFFWU complains that Woolworths did not, prior to the EA’s making, explain to its employees the significance of the Commission’s annual wage review decision.

68    Some context is warranted. On 3 June 2024, the Commission decided to increase the rates payable under (amongst others) the Award. Those increases were expressed to take effect from July 2024, well in advance of 21 October 2024, when the EA was scheduled to commence operating (if made and approved). At the time that Woolworths’ employees were asked to make the (then-proposed) EA, however, the rates prescribed by the Award remained as they had been prior to the annual wage review decision.

69    Woolworths was alive to the impact that that decision would visit upon Award rates of pay. It published a document entitled “GRIA to AFG EA Comparison”, which purported to compare the terms of the Award with the terms of the then-proposed EA. “Part 1” of that document comprised of a table, the first substantive row of which compared the “Minimum rates of pay” payable under the Award and the then-proposed EA. That comparison itself comprised of a table, in which various employment classifications were listed alongside corresponding weekly and hourly rates that were or would be payable under the two instruments. The columns pertaining to the Award were headed, “Award*”. The asterisk referred to a footnote that appeared at the base of the page, which read:

* As a result of the 2024 Annual Wage Review decision, the Award rates will increase by 3.75% from 1 July 2024.

70    RAFFWU’s complaint is that Woolworths did not make sufficiently clear that, from the point that the EA would commence operation, the Award rates of pay would be higher than what was expressed in dollar terms in the comparison document referred to above. Of particular concern was the fact that Woolworths had, on RAFFWU’s account, seen fit to update in its comparison document the specific rates of pay that would be payable under the EA (which appear also to have been affected in some way by the annual wage review decision) but not the rates that would become payable under the Award.

71    The Commission addressed that contention as follows (Commission’s Decision, [33]):

[RAFFWU] contended that Woolworths had failed to take reasonable steps to explain [the EA] because it did not inform employees that the minimum hourly award rate would increase in July 2024 to $25.65, irrespective of the outcome of the vote. Further, prior to the access period, Woolworths had published wages tables comparing the Award and [the EA] rates. On the first day of the access period, these were updated to reflect the 3.75 per cent increase in the Award rate that would flow through to [the EA] rate, but the ‘Award rate’ side of the table was not updated, giving the impression that [the EA] rates would exceed the Award by a greater margin than was in fact the case. However, Woolworths explained, and we accept, that the document was prepared before the outcome of the [annual wage review] was known and within 24 hours of the decision being handed down the document was quickly updated to include an asterisk indicating the quantum of the increase. The concern raised by [RAFFWU] does not cause us to conclude that Woolworths failed to comply with s 180(5).

72    RAFFWU submits that Woolworths’ failure to explain the differences in rates payable under the Award and the EA by reference to calculated figures rather than an asterisked footnote “…had the likely consequence that employees did not have an informed and genuine understanding of what was being approved”. It maintains that, that being so, “…the Commission could not have been satisfied that Woolworths took the reasonable steps required by s 180(5)” of the FW Act.

73    Again, ground four distils to a charge of legal unreasonableness: that it was not reasonably open to the Commission to conclude, in light of the failure described above, that Woolworths had complied with the obligation to which s 180(5) of the FW Act gives voice.

74    The analysis that follows presupposes that an employer might be said not to have explained the effect of a wages clause in a proposed enterprise agreement unless and until it offers some comparison as against the equivalent provisions of an award. For reasons already identified (above, [60]), that is a proposition to which at least some doubt attaches.

75    Here, it cannot be said that the only conclusion to which the Commission could reasonably have been drawn on the material before it was that Woolworths had failed, for want of a dollar-for-dollar comparison, to discharge the obligation that s 180(5) of the FW Act conferred upon it. It might well be that Woolworths could have alerted its employees to the effect of the annual wage review decision by other means—and perhaps even better means—than the footnote that it employed. That reality might, in turn, suggest that it was open to the Commission to conclude that at least one of those other ways should qualify as a reasonable step that Woolworths was obliged by s 180(5) of the FW Act to take; and that its failure to take it meant that the Commission ought not to be satisfied that the EA was genuinely agreed to. But analyses of that kind necessarily involve qualitative assessments that are informed by circumstance and immune to binary conclusions.

76    That there were other ways in which Woolworths could have explained the effect of the EA’s wages clause relative to the equivalent provisions of the Award is of no moment presently. It was open to the Commission to favour the view that Woolworths’ footnoted reference to the effect of the annual wage review stood sufficiently as an explanation of the effect of the EA’s wages clause; and, more particularly, as an explanation that did not require elaboration in order that the Commission might be satisfied that the requirements of s 180(5) were met.

77    RAFFWU’s fourth ground is not made good.

Ground five: failure to explain detriments

78    RAFFWU’s fifth ground of challenge posits that the Commission ought not to have been satisfied that Woolworths had complied with the requirements of s 180(5) of the FW Act because insufficient effort was expended in explaining to employees the various detriments that the EA would visit upon them.

79    By its written submissions filed in advance of the hearing, RAFFWU articulated its fifth ground of challenge as follows:

The effects of [the EA], to the extent that they involved detriments that employees would suffer as a consequence of approving the proposed agreement, were not identified in the key changes document or the speaking notes for team leaders to use at team meetings. The detriments were also not identifiable in the dense ‘agreement summary’ documents, other than by reading each and every line in the tables. So too, the ‘fact sheets’ did not clearly state the detriments, and were accessible only by scrolling through a webpage.

The obligation to take all reasonable steps to ensure that the terms of [the EA] and the effects of those terms are explained to employees is not met merely by publishing information about the terms and their effects. As is recognised by s 180(5)(b) of the FW Act, the explanation must be provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees. In this case, the workforce comprised a diverse group of 124,590 retail workers, many of whom were young, and none of whom had access to computers for use in their day to day employment. Publishing information about the detriments in densely worded documents, accessible only online, did not constitute the taking of all reasonable steps as required by s 180(5) in light of s 180(5)(b).

80    RAFFWU submits that, in the absence of the kind of explanation described above, the Commission could not reasonably have been satisfied that Woolworths had complied with the requirements of s 180(5) of the FW Act. Again, the challenge is pitched at the level of legal unreasonableness.

81    No oral submissions were advanced specifically in support of that contention (leaving aside general submissions advanced about the composition of the workforce and significance of s 180(5) and, of course, the “detriments” that were the subject of other grounds). Woolworths sought to stigmatise the submission as “vague and ill-particularised”; although proceeded, nonetheless, to impress upon the court the steps that were taken to identify for its employees the respects in which the EA might be detrimental to them.

82    The extent to which the contention was advanced before the Commission could be clearer. It was the subject only of passing reference in the Commission’s Decision, in which it was observed (Commission’s Decision, [35]):

[RAFFWU] said that Woolworths and the SDA did not properly explain the detriments of [the EA] because relevant explanations were ‘disguised’ as a result of being ‘buried’ in online summaries, rather than presented clearly in all promotional materials. Even if it is accepted that the explanatory materials presented [the EA] in a positive light, we are satisfied that it was not misleading, either as to the terms of [the EA] or the effect of those terms.

83    The burden of establishing that the Commission’s Decision was a product of jurisdictional error falls to RAFFWU to discharge. Having not identified particular detriments that it says ought to have been but were not the subject of required explanation, that is a difficult burden for RAFFWU to discharge.

84    Whether there were reasonable steps that Woolworths ought to have taken but did not take in explaining the effect of the EA—and, in particular, the detriments inherent in it—turns in part upon what those effects or detriments are. That being so, RAFFWU’s submission that “…[p]ublishing information about the detriments in densely worded documents, accessible only online, did not constitute the taking of all reasonable steps as required by s 180(5) in light of s 180(5)(b)” is context-dependent. It may well be that publications of those kinds will reasonably suffice in some circumstances; whereas, in others, they might not.

85    Here, the Commission was content to accept that Woolworths had explained the effect of the EA in ways that discharged what s 180(5) of the FW Act required. That it might have had a basis for concluding otherwise is neither here nor there. In conducting the qualitative evaluation for which s 180(5) of the FW Act calls, the Commission was entitled to conclude on the material before it that the steps that Woolworths took to explain the effect of the EA sufficed as “all reasonable steps”. It is simply not the case that the material before the Commission only permitted the contrary conclusion.

86    RAFFWU’s fifth ground of challenge is not made good.

Ground six: eligibility to vote

87    RAFFWU’s sixth ground of challenge posits that the Commission’s conclusion that the EA had been genuinely agreed to was wrong because Woolworths did not correct representations that suggested that Woolworths employees who were not members of the SDA would be ineligible to vote on whether or not the EA should be made. The communications in question were not made on Woolworths’ behalf; but they were made (in one instance) on its electronic staff communications portal and (in another) during an information session that was conducted on Woolworths’ premises. RAFFWU contends that, in light of those communications (and Woolworths’ failure to correct them), it was not open to the Commission reasonably to reach a state of satisfaction that Woolworths had discharged its obligation to take all reasonable steps to explain the terms and effect of the EA.

88    It is not in dispute that the communications in question were made. The Commission addressed them as follows (Commission’s Decision, [34]):

[RAFFWU] said that Woolworths made, allowed and did not correct misrepresentations that only members of the SDA were permitted to vote. We disagree. The evidence does not support such a conclusion. Attached to a witness statement of Marie Gunner was a photograph of a ‘flyer’ referring to an SDA information session which stated that non-SDA members would not be allowed to vote on [the EA]. Plainly, this statement was false if it is to be understood as referring to the vote on [the EA]. Ms Gunner said that a post to a similar effect appeared on WorkJam and remained uncorrected during the voting period. However, as [RAFFWU] acknowledged, Woolworths had provided employees with explanatory material about how to vote which was accurate. The existence of an erroneous flyer and post that are not attributable to Woolworths does not speak to any failure on its part to comply with s 180(5).

89    Again, RAFFWU’s challenge proceeds upon the contention that, in light of what was communicated, it was not open to the Commission reasonably to conclude that the EA had been genuinely agreed to.

90    The Commission’s reference to s 180(5) (above, [89]) appears misplaced. It is apparent that RAFFWU’s contention is (and, presumably, was) not that the false communications of which it complained were such that the EA’s terms and effect had not been properly explained; but, rather, that they were apt to excite the application of s 188(1)(c) of the FW Act. In other words, it was (and, at the very least, now is) put that the Commission, taking proper account of those communications, was obliged to conclude that there were reasonable grounds for believing that the EA had not been genuinely agreed to.

91    That contention cannot be accepted. The material that was before the Commission afforded ample ground upon which to support the conclusion that the Commission reached. It is not in dispute that Woolworths invited all of the “relevant employees” (not merely those who were members of the SDA) to participate in the ballot that led to the making of the EA. Correct information concerning how the vote would be conducted was provided and the ballot that was undertaken was not limited in the way that the errant communications had suggested. Given that factual landscape, the Commission’s conclusion that the EA had been genuinely agreed to by Woolworths’ employees was open to be drawn, as was the constituent conclusion that the communications did not stand as reasonable grounds for believing to the contrary.

92    RAFFWU’s sixth ground of challenge is not made good.

Ground seven: objectionable terms

93    Before the Commission, it was submitted (albeit not by RAFFWU) that the EA contained “unlawful terms” that, pursuant to s 186(4) of the FW Act, precluded its approval. The Cullinan Affidavit foreshadows a challenge to the Commission’s Decision on the basis that the Commission “…could not have been satisfied that the approval requirement in s 186(4) was not [sic] met because the Commission could not be satisfied that [the EA] contained no ‘unlawful terms’…”

94    No submissions were advanced, either in writing or orally, in support of that ground. We take it to have been abandoned or otherwise not to feature in the challenge that RAFFWU prosecutes and nothing more need be said of it.

Ground eight: denial of procedural fairness

95    RAFFWU’s final ground of challenge rests upon an assertion that the Commission denied it a reasonable opportunity to present evidence in opposition to the EA’s approval. It is common ground that any such denial would, if material to the ultimate outcome, sound as jurisdictional error that should entitle RAFFWU to the prerogative relief that it seeks.

96    Again, some context is warranted. Woolworths’ application for approval of the EA was filed on Tuesday, 24 June 2024. For reasons neither known nor material, it was allocated to a Full Bench of the Commission (Hatcher P, Colman DP and Commissioner Matheson). On Monday, 1 July 2024, the Commission:

(1)    directed that bargaining representatives should, if they wished to, submit a “Form F18 (declaration of an employee organisation) or an F18A (declaration of an employee bargaining representative)” by no later than 5:00pm on Thursday, 4 July 2024;

(2)    directed that employee bargaining representatives (including RAFFWU) should file and serve “[a]ny response…to [Woolworths’] material” by no later than 5:00pm on Wednesday, 10 July 2025; and

(3)    listed the approval application for hearing to commence at 4:15pm on Friday, 12 July 2024.

97    A little before 2:00pm on Thursday, 4 July 2024, RAFFWU forwarded to the Commission a completed “Form F18A”, by which it outlined its opposition to the approval of the EA. That form was submitted under cover of an email in the following terms:

Dear Associate to the President

We refer to the directions below and subsequent listing.

We attach for filing the F18A of RAFFWU and a set of the bargaining representative appointments of RAFFWU (previously provided to [Woolworths]) redacted for personal information.

RAFFWU is preparing evidence for the hearing of the application and anticipates filing up to ten statements in support of its contentions.

We respectfully request a two week extension of the current time for filing (Wednesday next week at 5pm) in order to prepare that material.

We confirm the other parties and representatives are copied by way of service.

Kind regards

Josh Cullinan

98    Later that same afternoon, RAFFWU and the other parties to the Approval Application received from Colman’s DP associate an email in the following terms:

Dear Mr Cullinan,

The Deputy President advises as follows:

The Full Bench varies direction 3 of 1 July 2024 to permit [RAFFWU] to file any response by 5.00pm on (AEST) on Thursday 11 July 2024. An application may be made to adduce evidence orally.

The Full Bench does not grant leave to file redacted documents (such as the instruments of appointment attached to the F18A of [RAFFWU]) as they have no probative value. An application can be made for confidentiality orders.

Regards,

…

Associate to Deputy President Colman

99    On Thursday, 11 July 2024, RAFFWU filed with the Commission an outline of its submissions in opposition to the Approval Application, together with nine witness statements. In total, its material ran to more than 650 pages.

100    The approval hearing then transpired as scheduled in the afternoon of Friday, 12 July 2024. No application was made at its commencement (or at all) for any further time to prepare additional material; nor was any other objection made to the hearing’s proceeding. Instead, counsel for RAFFWU successfully persuaded the Commission that she should have an opportunity to cross-examine Ms Kerr, the deponent of the statutory declaration upon which Woolworths’ Approval Application proceeded. None of RAFFWU’s witnesses were required for cross-examination and all nine of its witness statements were received into evidence. The hearing lasted nearly three hours (inclusive of brief adjournments).

101    We pause at this juncture to note that it is not apparent on the material before the court why the Commission was minded to call the Approval Application on for hearing as quickly as it did. The EA was expressed to commence operation no earlier than October 2024. The Commission’s Decision was handed down only ten days after the hearing of 12 July 2024, well in advance of that commencement. Although there may well be matters unknown to the court that contextualise the speed with which the Commission moved, RAFFWU’s contention that there “…is no obvious explanation for the Commission’s decision to refuse to allow RAFFWU additional time to file its evidence, nor…for why the approval hearing was listed for 4:15pm on a Friday afternoon” is not without superficial attraction. Nothing more need be said in that regard.

102    It is common ground that the Commission was obliged to afford RAFFWU a reasonable opportunity to present its case. That is relevantly the limit of the obligation by which the proper exercise of the Commission’s jurisdiction in this case was conditioned. In Sullivan v Department of Transport (1978) 20 ALR 323 (“Sullivan”), 343 [25], Deane J described that duty as being:

to ensure that a party is given a reasonable opportunity to present his case. Neither [the statute there in focus] nor the common law imposes…the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.

103    What constitutes a “reasonable opportunity” in a particular case will always depend on the facts: Minister for Immigration, Citizenship and Multicultural Affairs v NDBR [2024] FCAFC 114, [39] (Katzmann, Snaden and Raper JJ, referring to what Deane J observed in Sullivan). In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 443 [38], the plurality (Bell, Gageler and Keane JJ) observed (references omitted):

For [a breach of procedural fairness] to constitute jurisdictional error … the breach must give rise to a “practical injustice”: the breach must result in a denial of an opportunity to make submissions and that denial must be material to [the decision].

104    “Practical injustice”, at least for present purposes, inheres in a lost opportunity to put information or argument to a decision maker: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 13-4 [36]-[37] (Gleeson CJ). In some circumstances, it might be established—and, importantly, an applicant might thereafter establish jurisdictional error—without evidence of what would or could have been said had the opportunity been afforded: Nathanson v Minister for Home Affairs (2022) 276 CLR 80, 103 [33] (Kiefel CJ, Keane and Gleeson JJ).

105    If there was a concern that RAFFWU could not properly present its opposition to the EA’s approval on 12 July 2024, the time for saying so was when the hearing commenced. It is to be borne in mind that RAFFWU had indicated to the Commission its intention to file “up to ten statements”. It in fact filed nine. In the absence of some voiced concern, the Commission had no obvious reason to think that the case that RAFFWU prosecuted was materially hampered by any want of opportunity to present it.

106    Moreover, it is not clear on the evidence before the court that RAFFWU would, in fact, have led further evidence before the Commission had it been given additional time to do so. Even assuming that RAFFWU was denied a reasonable opportunity to present its case, that denial would likely sound as jurisdictional error only to the extent that it might have been material to the Commission’s Decision: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, 135 [31] (Kiefel CJ, Gageler and Keane JJ). It is, as we have said, not always necessary for the purposes of establishing materiality that the victim of a denial of procedural fairness should prove what might have been said had the denial not occurred. Nonetheless, it is not clear to us how any “practical injustice” has arisen in this case. As Woolworths submitted, RAFFWU’s contention that it “intended” to obtain additional witness statements in opposition to the EA’s approval does not obviously progress beyond speculation.

107    Regardless, we do not accept that the circumstances of the present matter bespeak any denial of procedural fairness sufficient to sound as jurisdictional error.

108    RAFFWU’s eighth ground of challenge is not made good.

Disposition

109    None of RAFFWU’s challenges to the Commission’s Decision can succeed, with the result that the further amended originating application should be dismissed. The presumptive position under s 570 of the FW Act is that there should be no order as to costs, which the court’s orders will reflect. However, the court’s orders will provide the parties with an opportunity to seek costs by filing written submissions on costs together with any supporting affidavit within seven days. Subject to further order, the court will consider any application for costs on the papers.

Associate:

Dated:    14 August 2025

SCHEDULE OF PARTIES