Federal Court of Australia

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Endeavour Energy Network Management Pty Ltd [2025] FCA 1202

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

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

REASONS FOR JUDGMENT

KENNETT J:

1    The applicant (the Union) seeks declaratory relief, compensation on behalf of two named employees (Mr Jareth Woolsey and Mr Adam Walton) and the imposition of pecuniary penalties on the respondent (Endeavour) in relation to an alleged failure to comply with terms of the Endeavour Energy Enterprise Agreement 2017 (the 2017 EA) and the Endeavour Energy Enterprise Agreement 2021 (the 2021 EA). Contravention of a term of either instrument is a breach of s 50 of the Fair Work Act 2009 (Cth) (the FW Act). Contravention of a term of an enterprise agreement is a breach of s 50 of the FW Act, for which relief (including compensation) may be obtained in this Court under s 545 of the Act and pecuniary penalties ordered under s 546. Endeavour did not take any point concerning the fact that Mr Woolsey and Mr Walton have not been joined as applicants in the proceeding.

2    The hearing proceeded before me on 23 July 2025 on the understanding that, if a contravention were found, the parties would seek to reach agreement on issues of quantum. Submissions were therefore made only on the issue of construction of the 2017 EA and the 2021 EA that divides the parties.

3    That issue concerns the proper calculation of overtime pursuant to cl 14.2.1 of the 2021 EA, upon which the parties’ submissions focused, and cl 13.2.1 of the 2017 EA which is in similar terms.

Relevant terms of the 2021 and 2017 EAs

4    The 2021 EA was approved by the Fair Work Commission (the Commission) on 19 October 2021, with effect from 26 October 2021 and with a nominal end date of 31 December 2023. The 2017 EA, which it replaced, had been in operation from 13 June 2018 (having been approved on 6 June 2018). Each was expressed to apply to the exclusion of the applicable award (the Electrical Power Industry Award 2010 in 2017 and the Electrical Power Industry Award 2020 in 2021). Each was also expressed to cover Endeavour, the Union and the employees engaged in classifications referred to in Appendix A. Those employees (who at all relevant times have included Mr Woolsey and Mr Walton) are referred to in some contexts as “field staff”.

2021 EA

5    The 2021 EA defines ordinary hours of work in cl 13.1.1, as follows.

13.1.1 The arrangements relating to the ordinary hours of work of day workers shall be as follows:

6    Clause 13.2, termed a “Facilitative Provision”, provides that ordinary hours can be worked outside the “ordinary span of hours” by agreement. There is also provision for starting and finishing times to be varied or changed by agreement under cl 13.4. Clause 13.5 provides as follows.

13.5 Rostering of Ordinary Working Hours

13.5.1     The basic rostering arrangement of ordinary hours of work for full time 35 and 36 hour per week employees shall be the nine-day fortnight. Employee’s hours of work are averaged over a 2 week period but paid on a weekly basis.

13.5.2     The basic rostering arrangement may be varied to provide for a different pattern of work by agreement between Endeavour Energy and the volunteers concerned through the facilitative provision in clause 10.

7    Clause 13 thus envisages employees working:

(a)    according to a roster with defined starting and finishing times;

(b)    within the span of hours from 6.00am to 6.00pm on Monday to Friday;

(c)    on a nine-day fortnight (ie five days in one week and four days the next); and

(d)    an average of 35 or 36 hours (depending on designation) per week.

8    Clause 14 of the 2021 EA is headed “Overtime”. Clause 14.1.1 requires employees to work “reasonable overtime as directed” to meet the needs of Endeavour. Clause 14.1.2 requires employees to be given reasonable notice, where possible, of overtime they are required to work.

9    Clause 14.2 is as follows.

14.2 Work Outside Ordinary Hours

14.2.1 The following overtime penalties shall apply:

2017 EA

10    Clause 12 of the 2017 EA included provisions in materially identical terms to those of cl 13 of the 2021 EA set out above.

11    Clause 13.1 of the 2017 EA was materially identical to cl 14.1 of the 2021 EA, referred to above. Clause 13.2.1 of the 2017 EA was as follows.

13.2.1    The following overtime penalties shall apply:

The positions of the parties

12    Throughout the operation of the 2017 EA and the 2021 EA, Endeavour has paid employees on the understanding that the “first 2 hours” referred to in lines (a) and (b) of the table in cll 13.2.1 (2017) and 14.2.1 (2021) means the first two hours of overtime worked on each day. So, for example, an employee who works two hours of overtime on every day of a five day week (ten hours in total), with none of that overtime occurring on a weekend, is to be paid for all of that overtime at time and one half. Evidence of the pay records of Mr Woolsey and Mr Walton shows that this is how the calculation of their pay has been approached and it does not appear to be in contest that this is Endeavour’s general approach. Endeavour submits that this represents the correct construction of the 2021 EA and was also the correct construction of the 2017 EA.

13    The Union submits that Endeavour’s approach is wrong. It submits that the “first 2 hours” in line (b) of the table should be understood to mean the first two hours of overtime in each week. So, in the example given in the previous paragraph, the employee would be entitled to be paid for two hours at time and one half and eight hours at double time.

14    These respective positions emerged, in connection with the 2021 EA, in a long chain of emails exchanged between March 2022 and May 2024. The correspondence began with an email from Ellen McNally (a workplace delegate) to Emma Murison (who is Endeavour’s Head of People and Culture) on 8 March 2022 and gradually expanded to include other officials on both sides. In August 2023 Ms Murison suggested that the matter might be resolved in the framework of enterprise bargaining negotiations for a later EA, but it is not clear whether that suggestion has led anywhere (and it is outside the issues in this case).

Interpretation of industrial instruments

15    Countless judgments of this Court and other Australian courts have set out principles applicable to the construction of provisions in industrial instruments. Unsurprisingly, these decisions usually emphasise the importance of the words of the instrument. Often they call for a practical rather than a narrow or pedantic construction, and for proper regard to the industrial purpose of a provision. Reference is sometimes made to an appreciation that the drafters of industrial instruments are likely to be people of a practical rather than a legal turn of mind, although this may now represent an anachronistic view of the extent to which professional assistance is relied on by employers and unions. Settled principles were usefully set out, with careful reference to relevant authorities, in James Cook University v Ridd [2020] FCAFC 123; 278 FCR 566 at [65] (Griffiths and SC Derrington JJ) (Ridd):

The relevant principles applicable to the interpretation of an enterprise agreement may be stated as follows:

(i)    The starting point is the ordinary meaning of the words, read as a whole and in context (City of Wanneroo v Holmes [1989] FCA 553; 30 IR 362 [at] 378 [(City of Wanneroo v Holmes)]; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426 [at] [53] [(City of Wanneroo v AMACSU)]; WorkPac Pty Ltd v Skene [2018] FCAFC 131; 264 FCR 536 [at] [197] [(WorkPac v Skene)]).

(ii)    A purposive approach is preferred to a narrow or pedantic approach — the framers of such documents were likely to be of a “practical bent of mind” (Kucks v CSR Limited [1996] 66 IR 182 [at] 184 [(Kucks v CSR)]; Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [at] [16]; [WorkPac v Skene at] [197]). The interpretation “turns upon the language of the particular agreement, understood in the light of its industrial context and purpose” (Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 [at] [2]).

(iii)     Context is not confined to the words of the instrument surrounding the expression to be construed ([City of Wanneroo v AMACSU at] [53]). It may extend to “ … the entire document of which it is a part, or to other documents with which there is an association” (Short v FW Hercus Pty Ltd [1993] FCA 51; 40 FCR 511 [at] 518 [(Short v FW Hercus)]; Australian Municipal, Administrative, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; 82 FCR 175 [at] 178).

(iv)    Context may include “… ideas that gave rise to an expression in a document from which it has been taken” [(Short v FW Hercus at 518)].

(v)    Recourse may be had to the history of a particular clause “Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form …” [(Short v FW Hercus at 518)].

(vi)    A generous construction is preferred over a strictly literal approach (Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 [at] 503-504; [City of Wanneroo v AMACSU at] [57]), but “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” [(City of Wanneroo v Holmes at 380)].

(vii)    Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry [(City of Wanneroo v Holmes at 378-379; WorkPac v Skene at [197])].

16    Although these principles are not in doubt, the parties differ to some extent as to what should be regarded as part of the “context” in which the particular words of a provision are to be read. In short, the issue is what use can properly be made, in construing an EA registered under the current provisions of the FW Act, of any history of negotiations between the relevant employer and its workforce and on predecessor agreements. I will consider this issue below.

The text of the EAs

17    The statement of principles in Ridd serves to emphasise that reading the words of the EA “as a whole and in context” is part of “the starting point”. It follows that, as in the case of statutory construction, there is no threshold of ambiguity that must be surmounted before context becomes relevant. Because every utterance has a context, and has meaning only by reference to that context (see eg Harvey v Minister for Primary Industry and Resources [2024] HCA 1; 278 CLR 116 at [106] (Edelman J) (Harvey)), it is somewhat artificial to begin with the “words” and proceed as if their “ordinary meaning” can be determined in vacuo. Such an approach would risk outright error if, after divining the “ordinary meaning”, the next step was to put aside the context and declare the process of construction complete.

18    In the present case, such an approach would not work in any event. The particular text upon which the controversy turns does not yield up a single clear meaning capable of resolving the controversy. In what follows I will refer to the relevant terms of the 2021 EA, noting that equivalent provisions of the 2017 EA are materially similar and raise the same difficulties.

19    The important language here is lines (a) and (b) of the table in cl 14.2.1 of the 2021 EA. Each is clearly referring to a part or parts of a week, but each in itself is quite ambiguous as to whether the “first two hours” to which it refers is the first two hours on each day (or on each occasion overtime is worked) or the first two hours of overtime in a week. It is necessary to consider these provisions at least within the context of the table as a whole.

20    It will be noted that the table in cl 14.2.1 of the 2021 EA divides up the provisions in relation to overtime by reference to a series of “overtime situations”. It is useful to note what these are.

21    Rows (c) and (d) define rates of pay for overtime worked during particular parts of the week, ie:

(a)    Saturday afternoon and Sunday (all hours at double time) (row (c)); and

(b)    public holidays where the employee is not on standby (all hours at double time within what would otherwise be ordinary hours; all hours at double time and one half outside that time) (row (d)).

22    Rows (e) and (f) provide minimum periods for which an employee is to be paid in defined circumstances, ie:

(a)    four hours (at the relevant rate(s)) for pre-arranged overtime on a weekend or public holiday (row (e)); and

(b)    four hours (at the applicable rate(s)) for a “call out” (which is not defined, but which I take to mean being asked to come into work other than for a rostered shift or a pre-arranged period of overtime) (row (f)).

23    Row (g) is expressed to apply when overtime is worked both before and after “the normal days’ (sic) work”. In that circumstance, overtime hours are to be added together “to determine when double time is payable”.

24    Row (h) specifies a payment in respect of travelling time when it is connected with working outside ordinary working hours. (It is not necessary for present purposes to determine whether this applies to all instances of overtime or only some.)

25    Row (i) deals with entitlement to a minimum break (ie circumstances in which overtime can be required) rather than rates of pay. It can be put to one side for present purposes.

26    Rows (a) and (b) must be construed in a way that harmonises with these other provisions. When this is done, it becomes clear that Endeavour’s construction is the more natural one. The following points are to be noted.

27    First, lines (c) to (g) clearly deal with overtime worked on a particular day. This provides some indication that (a) and (b) are also directed at particular days rather than entire weeks. However, it does not demand that conclusion.

(a)    Line (a) could, for example, be sensibly read as denoting the entire span from 6.00am Monday to noon on Saturday without colliding with (c) to (g).

(b)    As to line (b), “ordinary weekly hours” is not a defined expression and its meaning in this context is somewhat obscure. It can be understood to refer to the employee’s ordinary hours for the relevant week (in the sense of the “ordinary hours of work” (as defined in cl 13.1.1) for which the employee has been rostered on in the particular week in accordance with cl 13.5). If given that meaning, it would seem to cover all overtime worked in a week and give rise to a moderate degree of complexity in its interaction with the other provisions in the table. For example, an employee who worked one hour’s overtime each day from Monday to Saturday would be entitled to four hours at double time pursuant to line (b); but one of those hours could already be double time by reason of line (c). However, none of these potential interactions would seem to give rise to genuine incongruity: the specific provisions in relation to weekend and public holiday work (including the four hour minimum) can fairly readily be understood to prevail over any more general rule that might on its face apply to payment for such work.

28    Secondly, however, if line (b) is understood to apply by reference to a span of days rather than overtime worked on a single day, it would seem to render line (g) redundant. This is because arriving at a weekly total of overtime worked would, in itself, involve adding together any overtime worked before and after each normal day’s work. Preferring a construction that avoids surplusage is a well recognised rule in the construction of statutes (see eg Northern Land Council v Quall [2020] HCA 33; 271 CLR 394 at [61] (Kiefel CJ, Gageler and Keane JJ)) and private documents (see eg LCA Marrickville Pty Ltd v Swiss Re International SE [2022] FCAFC 17; 290 FCR 435 at [331] (Derrington and Colvin JJ, Moshinsky J agreeing)). It is a normal corollary of construing words in the context of the document in which they appear, and there is no reason why the principles applicable to construing enterprise agreements should not be understood to encompass the same approach.

29    What I have said in the previous paragraph assumes that the apostrophe in line (g) of the table is misplaced and it was intended to refer to the “normal day’s work”. If it was actually intended to refer to “normal days’ work” (ie, speaking of plural “days”), this might provide support for the view that aggregation of overtime worked over multiple days was intended as part of working out applicable penalty rates under (b). However, the reference to “continuous overtime” indicates that line (g) deals with a particular situation and was not included as an aid to the construction of (a) and (b). A basis for aggregating time worked over multiple days must therefore be found in one or both of those lines; and it remains the case that, if (b) has that effect, line (g) is redundant (because periods of overtime will be added together in any event).

30    Thirdly, if “ordinary weekly hours” in line (b) is understood to refer to the employee’s rostered “ordinary hours” for the entire week (so that all such hours are to be brought to account in determining whether the “first 2 hours” have been exceeded), it tends to render line (a) irrelevant. It is hard to see how a situation could arise in which line (a) has any independent work to do, if all of the employee’s overtime hours for the week are aggregated pursuant to line (b).

31    Fourthly, there is some difficulty in reading “ordinary weekly hours” in line (b) as referring to the employee’s ordinary working hours for a particular week because of the nine day fortnight provided for in cl 13.5.1: to the extent that an employee has “ordinary weekly hours”, such hours are an average rather than something fixed in every week by the 2021 EA. I have suggested above that the expression could be taken to mean the “ordinary hours of work” that the employee has been rostered to perform in the particular week: this is a workable approach, but it has the unsatisfying result that the calculation of applicable penalty rates may depend on rostering decisions. Another approach, suggested by counsel for the Union, would involve calculation of overtime rates being done fortnightly and by reference to the “ordinary weekly hours” for two weeks combined. That approach, however, tends to acknowledge that the meaning of “ordinary weekly hours” is not as clear as the Union’s submissions assert.

32    Taking these matters into account, the more natural reading of cl 14.2.1 as a whole is that lines (a) and (b) refer to particular occasions of overtime (subject, pursuant to (g), to overtime before and after normal work on the same day being added together). The result is that, as Endeavour submits, the two hour threshold in (a) and/or (b) needs to be crossed on a particular day (not by reference to the week as a whole or Monday to Saturday as a whole) for the double time rate to apply.

33    The text only allows this conclusion to be stated with a modest degree of confidence, however, because it leaves the intended effect of line (b) as something of a mystery. If “in excess of ordinary weekly hours” does not mean over and above the employer’s normal hours for the week, what does it mean? A clue may possibly be found in a sequence of “Overtime and Allowance Guides” issued by Endeavour between 2011 and 2016 (discussed further below), which referred to “non-continuous planned/unplanned overtime on Monday to Friday (outside ‘ordinary’ hours)” as a distinct phenomenon from “continuous overtime both before and after their rostered or ordinary shift”. However, where this takes the matter (if anywhere) is not clear. The point was not developed in submissions. It may have to be accepted that there is some degree of redundancy in cl 14.2.1, including a substantial overlap between lines (a) and (b).

The broader context

34    Endeavour sought to support its construction of the relevant clauses of the 2017 and 2021 EAs by reference to a significant body of evidence concerning the background to these documents. The Union did not present an alternative version of the history, but sought to exclude this entire body of evidence as irrelevant. The basis for that objection is connected with the controversy concerning the proper scope of “context” in the construction of enterprise agreements, referred to above. I admitted this material, subject to hearing submissions on the use to which it could properly be put, on the basis that a definitive ruling on relevance could only be made after resolving the issue of principle discussed in what follows. (On further reflection, the preferable understanding may be that the 2017 and 2021 EAs are instruments made under and given effect by statute, and any facts arguably relevant to their proper construction are therefore “legislative facts” whose proof is not subject to the ordinary rules of evidence: see eg Allianz Australia Insurance Ltd v Estate of the Late Summer Abawi [2025] NSWCA 85 at [56] (Kirk JA, Adamson and Stern JJA agreeing). If that is right, the relevance or otherwise of the background material is a substantive question of law rather than an issue for a preliminary evidentiary ruling.)

35    There are in effect two elements to the background matters sought to be relied on by Endeavour. I will seek to summarise these relatively briefly before turning to the question of principle concerning their relevance.

The underlying awards

36    Pursuant to s 186(2)(d) of the FW Act, an enterprise agreement cannot be approved by the Fair Work Commission (the Commission) unless the Commission is satisfied that the agreement passes the “better off overall test” (the BOOT). The terms of that test are set out in s 193 of the Act and require, for an employee covered by an award, that the employee would be better off under the terms of the agreement than if the relevant modern award applied.

37    Documents submitted to the Commission by Endeavour in support of approval of the 2017 and 2021 EAs included analysis seeking to establish that in each case the proposed EA satisfied the BOOT. The Union also submitted a document supporting the registration of each of the EAs, although these did not canvass the BOOT. The analysis that was undertaken for the purposes of the BOOT took as the relevant award the Electrical Power Industry Award 2010 (the 2010 Award) (for the 2017 EA) and the Electrical Power Industry Award 2020 (the 2020 Award) (for the purposes of the 2021 EA). Each of the EAs also included an express provision to the effect that it applied to the exclusion of the relevant award (2017 EA cl 2.2.1; 2021 EA cl 2.2.1).

38    The 2010 Award (as in force at the time the 2017 EA was approved) contained the following provision in relation to overtime.

26.1     Overtime

(a)     Overtime is payable at the following rates:

(b)     Day workers who work overtime on a Saturday, a Sunday or a public holiday will receive a minimum payment of three hours on each such occasion.

39    The 2020 Award (as in force at the time the 2021 EA was approved) contained the following provisions.

19.    Overtime

[Varied by PR723895]

19.1 Overtime is payable at the following rates:

19.2 Day workers who work overtime on a Saturday, a Sunday or a public holiday will receive a minimum payment of 3 hours on each occasion.

19.3 Part-time employees may be entitled to overtime in accordance with clause 10.4.

[19.4 varied by PR723895 ppc 20Nov20]

19.4 Casual employees may be entitled to overtime in accordance with clause 11.5. The casual loading prescribed by clause 11.2(b) will not be paid for overtime hours worked.

19.5 For the purposes of calculating overtime each day stands alone.

40    These were the base line provisions which needed to be (and were asserted to be) improved upon by the provisions of the 2017 and 2021 EAs set out above. The existence of common ancestors can be glimpsed in the way the respective provisions deal with overtime on Monday to Saturday and then on Sundays and public holidays. The 2020 Award, it will be noted, provided expressly that for the purposes of calculating overtime “each day stands alone”. Minds may differ as to whether this was a provision deliberately excluded from the 2021 EA, or a part of the underlying award structure that was taken as read in the negotiations for that EA. What is clear, at least, is that the Union’s construction of the 2021 EA does not need to be adopted in order for the BOOT to be satisfied.

Previous awards and enterprise agreements and how they were administered

41    On 14 June 2017, Endeavour became the employing entity for employees in what was termed the Endeavour Energy Network Asset Partnership following a decision by the New South Wales Government to lease the State’s electrical network to a consortium of superannuation funds and investment firms. The former employing entity, known as Endeavour Energy, had been established in 2011 due to the division of what was formerly Integral Energy and the sale of its retail division to private interests. From then, Endeavour Energy built, maintained and operated the electrical distribution network across parts of New South Wales. These historical changes in corporate structure do not need to be explored for present purposes. It is sufficient to refer to Endeavour as the employer from June 2017 and to its predecessor entities in relation to earlier periods.

42    Endeavour placed before the Court the industrial instruments that have governed it and its predecessor entities, and their field staff, since 1997. The overtime provisions outlined above have remained in substantially the same form in each successive instrument.

(a)    Clause 6.1.1 of the Integral Energy Conditions of Employment Award 1997 (the 1997 Award) dealt with “Overtime Penalties”. It contained provisions in materially identical terms to lines (a) to (g) of cl 14.2.1 of the 2021 EA, although they were not set out in exactly the same order (and there was no apostrophe in the equivalent of line (g)). It also contained provisions dealing with minimum breaks before resuming work and payments for travelling time.

(b)    Substantially identical provisions were contained in cl 6.1.1 of each of the Integral Energy Conditions of Employment Awards 2001, 2003, 2005 and 2007 and cl 7.1.1 of the Integral Energy Award 2008.

(c)    The same, or essentially the same, provisions appeared in cl 9.1.1 of each of the Endeavour Energy Enterprise Agreement 2010 and the Endeavour Energy Enterprise Agreement 2012 before being included, as noted above, in the 2017 EA.

43    This repetition is not particularly meaningful in itself. However, it becomes meaningful in the light of:

(a)    the evidence of Ms Murison that the provisions governing penalty rates for overtime have been administered by Endeavour in a manner consistent with its interpretation of the current provisions since she commenced her employment in May 2016;

(b)    “Overtime and Allowance Guides” produced by Endeavour in October 2011, January 2014 and February 2016, which also reflect an understanding to the effect that an employee became entitled to payment at double time only after completing two hours of overtime on a particular day (which is consistent with the evidence of Mr Woolsey and Mr Walton, both long standing employees of Endeavour and its predecessors, concerning overtime paid to them); and

(c)    the lack of overt disagreement with this understanding of the provisions on the part of the Union or employees until after the commencement of the 2021 EA.

44    As to the last of these points, it appears that a proposal for all overtime to be paid at double time was included in a combined log of claims submitted by the Union and other relevant organisations around November 2020, as part of the bargaining process that led to the 2021 EA. The proposal was discussed in bargaining meetings but was rejected by Endeavour and did not find its way into the 2021 EA. During the cross-examination of Mr Woolsey it also emerged that a former organiser, Mr Currie, had put to him outside a bargaining meeting in 2017 that Endeavour’s interpretation was wrong and it should be paying at double time when more than two hours of overtime had been worked in a week, but this point was not raised in the bargaining process. The interpretation of the relevant provisions now being advanced by the Union may therefore have been in its contemplation for a considerable time; however, it does not appear to have been advanced overtly as the proper construction of any of the Award or EA provisions that preceded the 2021 EA.

45    What emerges from this history is that the 2017 EA, and subsequently the 2021 EA, came into being in an environment where:

(a)    materially identical provisions had been included in a series of industrial instruments covering Endeavour (and its predecessor entities) and its field staff;

(b)    Endeavour (and its predecessor entities) had been paying its field staff on the understanding that, relevantly here, overtime on weekdays and Saturday mornings was payable at double time only after two hours of overtime had been worked on a particular day; and

(c)    the correctness of that understanding had not been called into question.

Relevance of the background

46    The Union submits that these matters of background and history are irrelevant to the construction of the 2017 and 2021 EAs. It submits that an EA does not have “parties” in any contractual sense and the importation of concepts relevant to the interpretation of contracts (including reference to objective facts known to the parties as an aid to the construction of a contractual text) is therefore misplaced. Reliance is placed on the following authorities.

47    In Sheehan v Thiess Pty Ltd [2019] FCA 1762 (Sheehan), Colvin J said the following at [18]-[20] and [22].

Industrial agreements are not be (sic) approached in the same manner as commercial agreements. They are not the result of negotiations between parties who will be bound by their terms. Rather, they take effect as instruments given statutory force under applicable industrial laws. In the case of enterprise agreements, they operate only after an approval by the Fair Work Commission under s 54 of the Fair Work Act 2009 (Cth). In the present case, the agreement is a greenfields agreement. It was negotiated before work on the Wheatstone Project was undertaken. It was made to apply only to future employees of Thiess performing 'on-site construction work for the Wheatstone Project': see cl 3(1) of the Agreement. An enterprise agreement may be made with a registered Union for a greenfields site where the Union is entitled to represent one or more of the employees to be covered: s 177 of the Fair Work Act. That is what occurred in this case.

By reason of the requirement for approval, the Agreement only took effect on the basis of views as to the manner in which it would operate that were formed by the Commission. Those views were themselves informed by an understanding of the industry in which the Agreement would apply and the broader industrial context known to a specialist tribunal such as the Commission.

Further, enterprise agreements are to be construed as practical instruments that will apply to the working conditions known to employers and employees who work in the circumstances to which the instrument will apply. Otherwise, words in an enterprise agreement are to be given their ordinary meaning, read within the instrument as a whole and in context, including the legislative context: [WorkPac v Skene at [197]] followed in Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182 at [8] (Reeves, Bromberg and O'Callaghan JJ).

…

Therefore, peculiar contextual matters that may have been commonly known to representatives of Thiess and the Union when negotiating the terms of the Agreement are not matters to be brought to account. The Agreement is within the category of instruments where it is intended to apply to parties who were not participants in the process by which the terms of the instrument were formulated. In such cases, it may not be appropriate for surrounding circumstances to be brought to account unless they rise to the level of matters that would be notorious or known to those intended to be bound by the instrument who did not participate in the negotiations or dealings by which the terms were formulated: see, for example, Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103 (a case concerned with planning consents); Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144; (2006) 156 FCR 1 at [57]-[66], [73] (Weinberg J), [225]-[226] (Lander J), cp [123]-[124] (Kenny J) (a case concerned with company constitutions) and Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA 45; (2007) 233 CLR 528 at [36]-[39] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) (a case concerned with easements).

48    An appeal from his Honour’s judgment was dismissed: Thiess Pty Ltd v Sheehan [2020] FCAFC 198. Nothing in the reasons of the Full Court casts any doubt on these observations.

49    Earlier, in Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84; 222 FCR 152 at [88]-[90] (Marmara), the Full Court (Jessup, Tracey and Perram JJ) said the following.

… Under the FW Act, an enterprise agreement is an agreement in name only. Those who, by s 172(2), are empowered to “make” an enterprise agreement are the employer and “the employees who are employed at the time the agreement is made and who will be covered by the agreement”. A contract lawyer would assume that those persons would be parties to the agreement, and that the assent of all of them would be necessary for the agreement to be “made”. But the lawyer would be wrong on both counts. The FW Act does not identify the employer, or any employee, as a “party” to an enterprise agreement. Further, notwithstanding the specific empowering terms of s 172, it is not necessary for all the employees who are employed at the time an agreement is made and who will be covered by the agreement to assent to the terms of the agreement. Once a majority of those employees have agreed by voting, the agreement must be sent to the Commission for approval and, if approved, thenceforth applies to all the employees in the relevant group, even those who did not agree, and even those, subsequently taken into employment, who were not part of the relevant group at the time the vote was taken under s 182.

In his reasons, the primary Judge said that “Toyota contended and it was not disputed, that an enterprise agreement made under the FW Act is a form of delegated legislation”. It appears that that contention was made in the context of Toyota’s submission based on s 46 of the AI Act to which we have referred. However, although the FW Act provides that an enterprise agreement is “made” otherwise than by the Commission, the Act does more than merely impose conditions upon, and give additional legal effect to, an agreement made between private parties. The effect of the legislation is to empower the employer and the relevant majority of its employees to specify terms which will apply to the employment of all employees in the area of work concerned. The legal efficacy of those terms will arise under statute, not contract, and, as mentioned above, will be felt also by those who did not agree to them. Someone, such as an employee subsequently taken on, who had nothing to do with the choice of the terms or the making of the agreement, will be exposed to penal consequences under s 50 if he or she should happen to contravene one of the terms. When viewed in this way, it is not difficult to share in the perception that an enterprise agreement approved under the FW Act has a legislative character.

An enterprise agreement is a statutory artefact made by persons specifically empowered in that regard, and under conditions specifically set down, by the FW Act. It is enforceable under that Act, and not otherwise. There is, in the circumstances, no reason to approach the question of legislative intent with a predisposition informed by notions of freedom of contract.

50    Part of this passage was quoted by a later Full Court in Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCAFC 50; 275 FCR 385 at [60] (Flick, White and Perry JJ) (Bianco Walling), in support of an observation that:

… enterprise agreements made under Pt 2-4 of the FW Act are sui generis. In particular they are not simply one form of a commercial contract in the conventional sense.

51    Marmara and Bianco Walling were, as I read them, not cases that turned on the construction of particular enterprise agreements. The observation that an enterprise agreement is not a contract—and should not be approached on the assumption that it derives legal force from the agreement of two or more “parties” to be bound by particular terms—is, with respect, obviously correct. However, I do not think it follows that the process by which an enterprise agreement acquires legal force and the background against which that process occurs have no relevance to the construction of the agreement; nor do I understand Colvin J to have gone that far in Sheehan. It is useful to note some aspects of the statutory process.

52    Pursuant to s 54(1) of the FW Act, an enterprise agreement comes into operation (so that a contravention of the agreement is a contravention of s 50) at a specified time after it is approved by the Commission. Section 186(1) requires the Commission to approve an enterprise agreement if an application for approval has been made under s 182(4) or 185 and the conditions set out in ss 186 and 187 are met. Among those conditions is a requirement that, if (as here) the agreement is not a “greenfields” agreement, it “has been genuinely agreed to by the employees covered by the agreement” (s 186(2)(a)).

53    Section 188 provides for the determination by the Commission of whether an agreement has been “genuinely agreed to by the employees covered by the agreement”. At the time the 2021 EA was approved, it provided as follows.

188    When employees have genuinely agreed to an enterprise agreement

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

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

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

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

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

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

 (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.

54    Section 180 provided for steps required to be taken by an employer before requesting employees to approve an enterprise agreement. They included giving employees who would be covered by the agreement a copy of its text and associated materials (s 180(2)), notifying employees of the time and place at which a vote would occur (and the voting method) (s 180(3)) and taking all reasonable steps to ensure that the terms of the agreement and their effect were explained to employees (s 180(5)). Section 181 provided for employees employed at the time who would be covered by an agreement to be asked to approve it (with a requirement in s 181(2) that the request not be made until 21 days after the last notice in relation to representational rights under s 173). An agreement was (relevantly to this case) “made”, under s 182(1), “when a majority of those employees who cast a valid vote approve[d] the agreement”. Once an enterprise agreement was “made”, a “bargaining representative” (which might be the employer or a relevant employee organisation: ss 176-177) was required to apply to the Commission for approval of the agreement within a specified period (s 185).

55    The requirement in s 181(2) that a request for approval not be made until 21 days after a notice under s 173 had the effect that there would necessarily be a period of “bargaining”. Notice of “the right to be represented by a bargaining representative” was required to be given to each employee who was employed at the notification time and would be covered by the (proposed) agreement (s 173(1)). Such notice was required to tell the employee that they were entitled to appoint a bargaining representative (s 174(2)). For any employee who was a member of an employee organisation entitled to represent their interests, the default bargaining representative was that organisation (s 174(3)).

56    These provisions were materially the same at the time the 2017 EA was approved, save that s 188(2) was not included. (Section 188 has since been amended, and further provisions added, but the process required in order to meet the requirement of genuine agreement is in essence the same.)

57    What appears from this summary is that an enterprise agreement is capable of being approved by the Commission—and thereby given legal effect—only if the Commission is satisfied that it is the outcome of a process involving:

(a)    the proposing of the agreement by the employer to all of the employees who are currently employed and will be covered by the agreement;

(b)    those employees having an entitlement to be represented in a process referred to as “bargaining”; and

(c)    those employees, being properly informed about the terms of the proposed agreement, approving it by a majority vote.

58    Integral to that process is the drafting and consideration (and potentially the refinement during bargaining) of a text which is put to employees and voted on by them. The process is very different from a contractual negotiation or the passage of legislation; however, like those processes, it involves people drafting, discussing and adopting a text. The factual matrix in which these steps occur, at least to the extent that it is known or reasonably knowable by the persons to whom the FW Act affords a role in the process, is logically capable of shedding light on the meaning of words that appear in the text. The fact that an enterprise agreement will bind future employees, who have played no part in its development and approval, does not gainsay this point: the same is obviously true of legislation, and does not dissuade the courts from searching (albeit in a highly structured and constrained way) for the intention of the legislature.

59    To hold otherwise would undermine the third, fourth and fifth of the principles set out in Ridd (above), which were identified by the Court in that case as “applicable to the interpretation of an enterprise agreement”. Denying relevance to the circumstances in which an enterprise agreement came into being would also require the document to be treated as if it conveyed meaning independently from its context, which is inconsistent with current understandings of how language works (see Harvey, above, and Leeming M, Common Law, Equity and Statute (Federation Press, 2023) at 90).

60    The evidence led by Endeavour and discussed in this part of the reasons is therefore relevant to the construction of the clauses of the 2017 and 2021 EAs presently in issue. The evidence as to how materially identical provisions in earlier instruments have been applied by Endeavour in paying its employees for overtime, and the lack of overt resistance to Endeavour acting in that way, is indicative of a shared understanding, among those who brought into being the text submitted to and approved by the Commission, concerning the meaning of those earlier provisions and thus the meaning that the provisions of the 2017 and 2021 EAs would bear. The Commission, in its brief reasons for approving the EAs, did not express views of its own about their effect (and there is no reason why it should have done so).

61    The understanding emerging from these aspects of the background supports Endeavour’s construction of the controversial aspects of the text (which, I have concluded above, is the preferable understanding of the EAs read as a whole). Such a shared understanding could not, of course, replace the text of the 2017 or 2021 EA or be given effect in preference to that text. However, it can properly provide assistance in identifying the true meaning of parts of the text whose signification is unclear.

Disposition

62    The originating application must therefore be dismissed.

63    Endeavour has not sought costs, presumably in the light of s 570 of the FW Act. I am not aware of any reason to consider that circumstances justifying an order for costs under s 570(2) might exist. There will therefore be no order as to costs.

Associate:

Dated:    2 October 2025