Provisions restricting or qualifying an employer's right to use independent contractors are not matters pertaining to the employment relationship, but provisions requiring that where contractors are engaged they receive terms and conditions no less favourable than the agreement are permitted matters.

An enterprise agreement has been 'genuinely agreed to' when consent of higher quality than mere agreement is required. The word 'genuinely' indicates that fraud, coercion or duress alone do not exhaust the meaning; it must be given additional work to do. Paragraph 188(c) is broad and picks up anything not caught by paras (a) and (b), including circumstances bearing on whether agreement of relevant employees was genuine, such as provision of misleading information or absence of full disclosure.

Where employees working in few occupational classifications consent to an agreement covering numerous other occupations in many industries beyond their own, an explanation of the terms and their effect may fall short of providing an adequate basis for genuine consent. Employees may be indifferent to impact on other employees in classifications outside their training or experience, creating concerns about fairness of enterprise-level collective bargaining.

Ordinarily, non-greenfields agreements are made with participation of employees representative of the range of classifications covered. While the Fair Work Act does not require the group voting to be representatives of the wider group, the fact that the group does not broadly reflect occupational scope restricts the terms and conditions in the agreement for which the group can genuinely speak.

The Commission cannot be satisfied that an agreement has been genuinely agreed unless it knows the content of the employer's explanation to employees, including what was actually told to them and how the employer took account of their particular circumstances and needs; absence of such evidence is a jurisdictional error.

The requirement in s.180(5) that the terms of the agreement and their effect be explained is an important obligation and is not a mere formality; it is not satisfied by merely reading the terms to employees without explanation; what steps are necessary depends on the facts and circumstances of each case.

Section 188(c), being cast in broad terms, is intended to pick up anything not caught by s.188(a) and (b); any circumstance that could logically bear on whether the relevant employees' agreement was genuine would be relevant, including their understanding of the operation of the various awards affected by the agreement.

The group of employees to be covered by a proposed agreement is 'chosen' when the employer and the main employee bargaining representatives agree on a particular scope or the bargaining representatives commence bargaining on a shared assumption as to scope. The time of the choosing is a factual issue to be determined in the usual way and will typically be at or shortly after the commencement of bargaining.

Section 186(3A) imposes an obligation to 'take into account' whether the group is geographically, operationally or organisationally distinct, which means the matter must be treated as a relevant consideration that the decision maker is bound to take into account and must evaluate and give due weight to, having regard to all other relevant factors.

Whether a group of employees is geographically, operationally or organisationally distinct is not decisive but is given due weight having regard to all other relevant considerations. The selection must not be arbitrary or discriminatory, and the interests of both included and excluded employees must be considered.

An enterprise agreement is a 'statutory artefact' and not an agreement in the ordinary sense; its legal efficacy arises from the FW Act and not from contract; the FW Act does not identify the employer or any employee as a 'party' to an enterprise agreement.

An agreement proposed for certification under Div 2 of Pt VIB must, when characterised as a whole, be about matters pertaining to the requisite employment relationship. An agreement that contains discrete and substantive matters not pertaining to that relationship cannot be certified, even if it also contains matters that do pertain to the relationship.