FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
THE COURT DECLARES THAT:
1. In or about April 2015, the respondent contravened s 50 of the Fair Work Act 2009 (Cth) (FWA) by contravening a term of an enterprise agreement, namely, cl 25.1(a) of the Walz Group Pty Ltd Rocklands Copper Processing Plant Project Union Greenfield Agreement (Walz Agreement) in that it failed to consult with the applicant about the proposed engagement of Brice Engineers Pty Limited (Brice) as a contractor.
2. In or about April 2015, the respondent contravened s 50 of the FWA by contravening a term of an enterprise agreement, namely, cl 25.1(b) of the Walz Agreement in that it failed to ensure that the employees of Brice received terms and conditions which were the same or no less favourable than those contained in the Walz Agreement.
THE COURT ORDERS THAT:
3. The proceedings be adjourned to a date to be fixed for the hearing and determination of questions as to the penalty, if any, to be imposed in respect of these contraventions of the FWA.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 The Rocklands Copper Mine is located about 17 kilometres west of Cloncurry in North-West Queensland. A related ore processing plant is also located there. Some, at least, of the work on the project related to the construction of that plant (Project) was governed by an enterprise agreement known as the Walz Group Pty Ltd Rocklands Copper Processing Plant Project Union Greenfield Agreement (Walz Agreement). As the term, “Greenfield” in the title of the Walz Agreement implies, the work on the Project was not hitherto the subject of industrial regulation.
2 The Walz Agreement was approved under the Fair Work Act 2009 (Cth) (FWA) by the Fair Work Commission (industrial commission) on 24 September 2013. Materially, the Walz Agreement “covers”, within the meaning of s 53 of the FWA, the applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Union) and the respondent, Walz Group Pty Ltd (Walz).
3 The Union and Walz Group are at odds about whether Walz contravened a consultation clause (cl 25.1) found in the Walz Agreement. The Union alleges that Walz contravened that clause. It has instituted a proceeding to which Walz is respondent seeking a pecuniary penalty, alleging that it contravened s 50 of the FWA. That section provides that a person must not contravene a term of an enterprise agreement. Section 50 is one of the provisions in the FWA termed a “civil remedy provision”. The Court has jurisdiction under s 546 of the FWA to make an order for the payment of a pecuniary in a sum not greater than that specified in s 539 of that Act.
4 The alleged absence of consultation, but not that it gave rise to any contravention of the Walz Agreement, and thus s 50 of the FWA, is admitted by Walz. Also admitted but again without admission of any contravention, is that Walz came to engage a contractor, Brice Engineers Pty Limited (Brice), whose employees were engaged on terms less favourable than those in the Walz Agreement.
5 The relevant facts are not in dispute. Commendably, the parties have prepared a statement of agreed facts and a related agreed tender bundle of documents, each of which has been filed in the proceeding. Whether or not Walz has contravened s 50 as alleged by the Union is wholly dependent on the true construction of the Walz Agreement and its application or otherwise, as so construed, to the agreed facts. That is the initial issue for determination in this proceeding. If that issue is determined adversely to Walz it will be necessary to hear from the parties in relation to, and then to determine, the appropriate penalty to impose in respect of the contraventions.
6 The following account of relevant facts is drawn from the agreed statement.
7 Clause 3 of the Walz Agreement provides:
This Agreement includes five (5) Appendices. The Agreement covers the Unions, the Employer and employees of the Employer who will perform on-Site construction work within the Employer’s scope of work on the Rocklands Copper Processing Plant (the Project), in any of the work classifications identified in subclause 12.3 of this Agreement.
(a) In the Agreement:
(1) Site means the Rocklands Copper Processing Plant Project Site located approximately 17 kilometres west of Cloncurry in North-West Queensland.
(2) Project means on-Site construction work, including installation of equipment, structural steel and piping works, within the Employer’s scope of work on the Rocklands Copper Processing Plant Project.
(3) Usual Place of Residence is the address declared by the employee in their Registration of Interest Form.
(4) Local Employee whose Usual Place of Residence is within the one hundred and twenty (120) kilometre radius line of the Project Site as established on the map at Appendix 5.
(5) Non-Local Employee is an employee whose Usual Place of Residence is outside of the one hundred and twenty (120) kilometre radius line of the Project Site as established on the map at Appendix 5.
(6) Immediate Family means a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee.
(b) The Agreement does not apply to:
(1) any commissioning activities beyond those detailed in subclause 3(b)(2):
(2) maintenance, upgrades, minor capital works, shut down and any associated work done outside of the scope of the Employer's contract for construction at the Project Site;
(3) delivery and transportation of materials and equipment to and from the Project Site;
(4) transport of personnel to and from the Project Site where the provider of the transport is not the Employer;
(5) off-Site manufacturing and fabrication, including delivery and transportation to the Project Site;
(6) the construction, maintenance or upgrades of off-site infrastructure (eg: roads, power and communications infrastructure which services the Project Site);
(7) the construction, alteration, upgrade and operation of any accommodation facilities, including any construction village, motel, caravan park, etc that may accommodate employees engaged on the construction of the Project;
(8) clerical, administrative, management, supervisory (other than leading hands), professional or salaried staff;
(9) security/site access contract personnel;
(10) service activities, office cleaning, office equipment installation and servicing; and
(11) engineers, surveyors and technicians including vendor representatives.
(c) The Agreement is stand alone and insular in nature, it has been developed by the Parties to both reflect and accommodate the specific circumstances of the Project.
(d) In drafting the Agreement the Parties have considered and allowed for all entitlements in relation to the employees who it will apply to and be binding upon.
(e) While the Agreement operates it will, to the extent allowed under the Act, apply to the exclusion of all other State or federal industrial awards, agreements, preserved State agreements, notional agreements preserving State awards or other Industrial instruments.
8 Clause 25 of the Walz Agreement provides:
25 Employment Security, Staffing Levels, Mode of Recruitment and Replacement Labour
The Employer recognises that in certain circumstances the use of contractors and labour hire may affect job security of employees covered by this Agreement.
25.1 Use of Contractors
(a) If the Employer wishes to engage independent contractors to perform work that might be performed by current or future employees under this Agreement, the Employer must first consult in good faith with potentially affected employees and the Unions.
(b) If, after consultation, the Employer decides to engage bone fide contractors, these contractors must be afforded the same terms and conditions of engagement (or terms no less favourable) as they would receive if they were engaged as employees under this Agreement performing the same work. The use of sham sub-contracting arrangements would constitute a breach of this Agreement.
25.2 Supplementary Labour Hire
Where there is a need for supplementary labour to meet temporary/peak work requirements, such labour may be accessed from bona fide labour hire companies following consultation with the workplace Union delegate. If labour hire is to be used, the Employer will ensure that any workers engaged through a supplementary/labour hire arrangement and who are under the direction and control of the Employer performing work that, had it been done by direct employees of the Employer would have been covered by this Agreement, will receive wages, allowances and conditions not less than those contained in this agreement.
Prior to mobilisation to Site, all Parties to the Agreement will meet to discuss the following:
(1) Induction timelines and processes;
(2) Right of entry protocols;
(3) Workplace health and safety;
(4) Consultation during the life of the Project; and
(5) The Employer’s approach to the management of labour on the Project.
25.4 Ongoing Consultation
Where requested, the Employer will provide to a Union party to this Agreement, a report of the number of direct-hire employees engaged under this Agreement and their classification breakdown. No identifying information about employees will be provided to a Union. The supply of this information will not breach privacy legislation.
9 On or about 17 May 2013, Walz entered into a contract (the First Contract) with Sinosteel Equipment and Engineering Co Limited (Sinosteel) to perform the following work at the Project:
unpacking, installation and no-load commissioning of the equipment;
structural steel work; and
10 The scope of works to be performed pursuant the First Contract by Walz at the Project is set out in Schedule 1 to that contract.
11 The Walz Agreement covered the work (which fell within the classifications set out in cl 12.3 of the Walz Agreement) performed by Walz pursuant to the First Contract at the Project.
12 On 10 April 2015, Walz entered into a further contract (the Second Contract) with Sinosteel to perform the following work at the Project:
• Unpacking, installation and combined no-load commissioning of the electrical and instrumental equipment and/or systems for the Project including but not limited to:
• wiring of equipment;
• connection of power plant and beneficiation process plant.
13 The scope of works to be performed by Walz pursuant to the Second Contract at the Project is set out in Schedule 1 to that contract.
14 Employees of Walz employed to perform work at the Project under the First Contract (Walz Employees) were covered by, and their terms and conditions were determined in accordance with, the Walz Agreement.
15 In approximately April 2015, Walz entered into a contract with Brice, for Brice to perform work for Walz at the Project. The scope of work to be performed by Brice was the work which was awarded to Walz pursuant to the Second Contract. The work that Brice was sub-contracted to perform for Walz at the Project was performed by Brice’s employees (the Brice Employees).
16 Walz did not consult with the Union prior to engaging Brice to perform work at the Project.
17 The Brice Employees did not receive the same terms and conditions, or terms and conditions no less favourable, than those provided for by the Walz Agreement.
18 The industrial instrument covering Brice Employees and underpinning their terms of employment, was the Brice Engineers Pty Limited Employee Collective Agreement 2007.
19 Walz took no steps, either prior to or after engaging Brice, to ensure that the Brice Employees received the same terms and conditions, or terms no less favourable, than they would have received if they were engaged as employees under the Walz Agreement.
20 The Union contends that the Walz Agreement applied (subject to presently immaterial exceptions) to all work performed by Walz at the Project pursuant to any contract, whereas Walz contends that it applied only to work pursuant to the First Contract.
21 Some general principles relevant to the construction of an industrial instrument such as the Walz Agreement should first be stated. In Transport Workers’ Union of Australia v Linfox Australia Pty Ltd (2014) 318 ALR 54, at  to  (TWU v Linfox), by reference to pertinent authority, Tracey J offered such a statement, with which I respectfully agree:
29. As is often the case with industrial awards and agreements which have been drafted by non-lawyers, the drafting of the instruments presently under consideration lack the precision and clarity which one would expect to find in a commercial contract. As a result it has been necessary for courts to develop principles to guide the construction of such instruments when, as happens all too often, their meaning and application are in dispute.
30. In dealing with the construction of awards in Kucks v CSR Limited (1996) 66 IR 182 at 184 Madgwick J observed that:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
31 This passage was quoted with approval by two members of the High Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 271 (Kirby J), 282-3 (Callinan J). Shortly afterwards these principles were restated by French J in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at 440 :
It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities – City of Wanneroo v Holmes (1989) 30 IR 362 at 378–379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned – see eg George A Bond & Co Ltd (in liq) v McKenzie  AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.
32 In Australasian Meat Industry Employees Union v Coles Supermarkets Australia Pty Ltd (1998) 80 IR 208 at 212 Northrop J expressly agreed with what had been said by Madgwick J in Kucks and held that Madgwick J’s observations had even stronger application to certified agreements than they did to awards.
22 To this summary of authority might be added, given the “greenfield” nature of the Walz Agreement, an observation which I made (with which, in this regard, Spender and Dowsett JJ agreed) in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 at  (CFMEU v John Holland) in approving a submission made on behalf of the Australian Workers’ Union in that case:
As the AWU correctly submitted, “it is in the very nature of a ‘greenfields agreement’, which of necessity must be concluded before any work has commenced, that the parties will be required to make some predictions as to the nature and scope of the works which are before them”.
The same is true of the Walz Agreement.
23 The predication which the parties have made as to the nature and scope of the works which were before them at the Project is to be found in the application clause, cl 3 of the Walz Agreement.
24 The Union sought to gain additional comfort as to the predicative quality in the agreement from the use of the verb, “might” in the conditional clause found in cl 25.1(a), “If the Employer wishes to engage independent contractors to perform work that might be performed by current or future employees under this Agreement” (emphasis added). It is true that, when used as a verb, “might” can carry the meaning, “Expressing present subjective possibility, i.e. the admissibility of a supposition … In relation to the future and in general predictions” (Oxford Dictionary, Online Edition, meaning 7a). Read in context, “might” is being used in this future predictive way in cl 25.1(a), which is consistent with the alternative “current or future employees” also found in that conditional clause. But also part of the context in that conditional clause is “under this Agreement”. That, in my view, takes one back to the application clause, cl 3. The best way of explaining why that is so is that “under this Agreement” emphasises that the consultation clause stream cannot, and was not intended by the parties, to rise higher than its application clause source. So it is first necessary to construe cl 3.
25 None of this is to say that the “greenfields” nature of the Walz Agreement is not relevant when it comes to construing that application clause source, cl 3. For it may be, as in CFMEU v John Holland 2010, at , that the very nature of the agreement means that it was unlikely that the purpose of the parties was that, subject to the express exclusions, it was to be other than comprehensive in relation to the Project.
26 The construction of the application clause promoted by the Union, first focuses upon its opening words, its “chapeau” or “umbrella”, in particular the expression, “on-Site construction work within the Employer’s scope of work on the Rocklands Copper Processing Plant (the Project)”. This is hardly an unconventional or idiosyncratic approach. The term “Project” is defined in cl 3(a)(2) a way which is consistent with the context in which this term appears in the opening words. Those opening words in cl 3, leave unanswered what falls within the “the Employer’s scope of work”. The definition is cast at a level of generality. The reader is told by the definition what the scope of that work includes, “installation of equipment, structural steel and piping works”. But the inclusory nature of this reference makes it plain that the particular types of works described is not intended to be an exhaustive statement of the scope of work.
27 Thus far, the breadth of language in the opening words, read with the definition, supports the Union’s contention that the application of the Walz Agreement is not limited to work performed by Walz under the First Contract.
28 Walz, though, points to the exception found in cl 3(b)(2)(b) “... work done outside of the scope of the Employer’s contract for construction at the Project Site”, which is part of the provision for what, “the Agreement does not apply to”. It submits that “it may be inferred that in specifically referring to the ‘contract for construction’ in the Agreement, [the Union] was aware of it when entering into the [Walz Agreement]”. It may certainly be inferred that each party was aware that Walz then had a “contract for construction” but it by no means follows that each party was aware of the detail of the provisions in that contract. In any event, in Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 91 ALJR 486, at , Kiefel, Bell and Gordon JJ observed in their joint judgement:
It is well established that the terms of a commercial contract are to be understood objectively, by what a reasonable businessperson would have understood them to mean, rather than by reference to the subjectively stated intentions of the parties to the contract. In a practical sense, this requires that the reasonable businessperson be placed in the position of the parties. It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it.
[Footnote references omitted]
Making due allowance for the further considerations stated in the passage from TWU v Linfox, set out above, there is no reason why this statement ought not to inform the construction of the Walz Agreement.
29 Walz contends that, on the true construction of the Walz Agreement, this can also only be a reference to the First Contract, whereas the Union disputes that. Obviously enough, when the Walz Agreement was entered into, the particular “contract for construction” was the First Contract. On any view, that could permissibly be consulted so as to ascertain with greater precision the then scope of works. On the construction promoted by the Union, evidence could be led so as precisely to identify the scope of works under the particular “contract for construction” for the Project to which Walz was a party in force from time to time during the life of the Walz Agreement.
30 It by no means follows that this particular, cl 3(b)(2) exception should restrict the generality of the language in the opening words of cl 3 and in the definition of “Project” or even that the reference to “contract for construction” must be read only as a reference to the First Contract.
31 In light of the then existence of the First Contract, it would have been a simple thing to have made exact reference to that contract alone, and Walz’s scope of works under it, in those opening words, in the definition of “Project” and in the cl 3(b)(2) exception. Remembering that this is a “greenfields” agreement, the objective, commercial purpose of the parties, or, if it is any different, industrial purpose, sits well with the generality of language employed in these provisions. Once this “greenfields” and predicative quality is recalled, and contrary to Walz’s submission, “within the “the Employer's scope of work” it makes eminent commercial and industrial sense to afford this an ambulatory quality. That also explains the inclusion found in the definition of “Project”, which gives as much precision as the parties were then able to the work that Walz may come to undertake on the Project. Further and consistent with this, the cl 3(b)(2) exception is cast in the present continuous tense. It continuously speaks to the present as to the contract to which Walz is then a party.
32 Of course, as Walz also submits, “scope of works” is a term frequently used in the building industry. But it does not follow that the opening words in cl 3, the definition of “Project” and the cl 3(b)(2) exception are referring only to the scope of works in the First Contract. The very use of a building industry term in relation to “on-Site construction work … on the Rocklands Copper Processing Plant” anticipates, and the future tense “will perform” underscores this anticipatory quality, that, over the life of the Walz Agreement, Walz may or may not come to undertake other work, which will be defined by a contractual scope of works. Subject to the exceptions it specifies, this is a project agreement for Walz, its employees as specified and, materially, the Union, not one necessarily limited to the scope of works under any one contract. It is relevant to recall that, in relation, materially, to the making of enterprise agreements under s 172 of the FWA, the word, “enterprise”, by definition (s 12), includes, “project”. It is unlikely to be a coincidence that the parties to the Walz Agreement have employed both the words “greenfields” and “project” in the title of their enterprise agreement
33 Once this is understood, Walz’s submission that, some two years later, it entered into the Second Contract to carry out work which was specifically excluded from the First Contract’s scope of works is nothing to the point. That further work is within the language employed in the opening words of cl 3 of the Walz Agreement, the definition of “Project” and in the cl 3(b)(2) exception. For its duration, it is the enterprise agreement, not the First Contract or the Second Contract, which is the primary touchstone, in accordance with its terms, for the industrial regulation of Walz, its employees and, materially, the Union in relation to on-Site construction work to be undertaken by Walz on the Project. The expressions “insular in nature” and “developed to accommodate the specific circumstances of the Project” in cl 3(c) are harmonious with this purpose. All that one does in relation, either to the First Contract or, as the case may be, the Second Contract, is to consult the same, as required by the Walz Agreement, so as to ascertain what is Walz’s contractual scope of works at a given time.
34 It is Walz’s construction, not that of the Union, which gives the generality of language in the opening words of cl 3 no work to do in a “greenfields” agreement. Objectively, the purpose of the parties can be seen to have been to provide, subject to the exceptions specified, for more than just a contractual scope of works existing at the commencement of the Walz Agreement. It is that which explains the nominal expiry date of 1 October 2016, well into the future.
35 This also explains the presence of, and gives harmonious operation to, the expression, “current or future employees” in cl 25.1 and to the use in the predictive way already discussed of the verb, “might”.
36 The Union alleges that Walz breached cl 25.1 in two ways:
(a) a failure to consult about the engagement of Brice, contrary to cl 25.1(a);
(b) a failure to ensure that the employees of Brice received terms and conditions no less favourable than would be provided under the Walz Agreement, contrary to cl 25.1(b).
37 As an alternative to its primary submission that the Walz Agreement was inapplicable at all to work performed under the Second Contract, Walz submitted that cl 25.1 was not engaged because that clause only applied to circumstances where there was an existing employee performing the specific work the subject of the contracting out. It further submitted that, to the extent that the clause provided that it was engaged in respect of future employees, the clause did not deal with a matter permitted by s 172 of the FWA and, hence, s 253 of that Act rendered it of no effect
38 The answer to each of these submissions is as given by the Union in its responsive submissions.
39 On the construction of the Walz Agreement which I favour, the work Brice was contracted to perform fell within that enterprise agreement.
40 The consultation obligation imposed by cl 25.1(a) of the Walz Agreement extended not only to potentially affected employees, but to the unions who are parties to that agreement, materially the applicant Union. Contrary to Walz’s submission, it would be nothing to the point that, at the time when Brice was engaged, Walz had no potentially affected employees. The obligation was also, materially, to consult with the Union. Such an obligation falls squarely within the “permitted matter” described in s 172(1)(b) of the FWA – “matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement” (emphasis added).
41 It is not an agreed fact, and there is no other evidence (given the way in which the parties chose to conduct the case) that there was an existing employee performing the specific work which Walz contracted out to Brice. There is evidence (para 18 of the Statement of Agreed Facts) that Walz employed persons to perform work pursuant to the First Contract that fell within the terms of the Walz Agreement. Some at least of the work which was contracted out and provided for in the Second Contract was of a similar type to the work awarded under the First Contract – the unpacking and installation of electrical equipment and instruments. It is just irrelevant that those employed to perform the work awarded under the First Contract did not ever perform any of the work undertaken under the Second Contract. The whole point of cl 25.1(a) of the Walz Agreement is that it is directed to a future potential, the prospect of a wish by Walz to engage independent contractors that “might” be performed by “current or future employees”. It is the potential, not the actuality, which is pertinent. In that potential lies the concern as to job security which lies at the heart of cl 25, as the express recognition by Walz in the opening words of that clause makes pellucid.
42 A number of observations made by Buchanan J (with whom in this regard both Besanko and Barker JJ agreed) in Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2015) 228 FCR 297 serve to explain the permissible provision in an enterprise agreement, particularly a “greenfields” agreement, on the coverage of potential, future employees:
In the case of a greenfields agreement it may be more readily accepted that any choice of the group to be covered by the agreement may involve an element of negotiation, having regard to the generally accepted representative character of unions.
… upon the view that the group to be considered under s 186(3) and (3A) reflects potential (not present) coverage it will often (perhaps usually) be impossible to state with much precision or certainty what that coverage might entail in a practical sense in the years to come, or how the group might at any particular point in time be composed. However, that seems to me to be the consequence of the legislative scheme.
It is not correct, with respect, to say (or suggest or infer) as the Full Bench did in , that there were in fact other employees who had been denied a chance to bargain. The “other employees” referred to were potential (and unknown) possible future employees who would never have a chance to bargain unless there was no agreement in place when they were engaged. Deprivation of that opportunity would arise in the case of any employee engaged during the term of an agreement. [Emphasis added]
43 For this reason, and apart from its requirement to consult with the Union in any event, that cl 25.1(a) mentions “current or future” employees does not mean that it is outside a permissible matter in s 172 of the FWA.
44 The requirement found in cl 25.1(b) is patently concerned with the job security of those employees, current or future, covered by the Walz Agreement. As the Union correctly submitted, “[It] prevents the employer from terminating the employment of all existing employees, then contracting the work out at a lesser and cheaper rate. In this case the job security of the Walz workers who performed the work of the First Contract was enhanced by the requirement that any contractors engaged to perform future work on the Project would have to receive terms and conditions no less favourable than the Walz workers”. What cl 25.1(b) does is to make the opportunity cost of engaging a contractor, as opposed to having employees, undertake particular tasks in relation to the Project at least neutral for Walz. That does not, and cannot, dictate that Walz must use employees but it does have a protective effect in terms of economic choice. That cl 25.1(b) can also be seen indirectly to regulate the terms and conditions of employees of a contractor of Walz does not mean that it is directed to a matter not permitted by s 172 of the FWA: Australian Industry Group v Fair Work Australia (2012) 205 FCR 339, at ,  and  (AIG v FWA).
45 For completeness, I should record that Walz relied upon a decision of the industrial commission, Construction, Forestry, Mining and Energy Union v Brookfield Multiplex Australasia Pty Ltd (2012) 221 IR 15 (CFMEU v Multiplex) in support of a submission that job security clauses may, in terms of s 172(1)(a) of the FWA be a matter “pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement” only if the clause directly concerns “the security of employment of the employees covered by the agreement. It was then put that, “[t]his cannot extend to prospective employees, as yet unidentified.” Although not binding, it is always helpful to be referred to considered decisions of the industrial commission given on a particular industrial law subject. That is, unless the course of later authority shows them to be wrongly decided. That is the case with CFMEU v Multiplex, which was decided before, and is not reconcilable with, the passages to which I have referred in the later Full Court judgments.
46 It follows that Walz has contravened cl 25.1(a) by failing to consult with the Union about the proposed engagement of Brice as a contractor. It has also contravened cl 25.1(b) by failing to ensure that the employees of Brice received terms and conditions which were the same or no less favourable than contained in the agreement.
47 It is in the public interest, given the importance of consultation and job security clauses of the present kind and in upholding the integrity of enterprise agreements lawfully approved by the industrial commission under the FWA, that there be declarations accordingly. It will then be necessary to hear from the parties in relation to penalty.