Adapt-A-Lift Group Pty Ltd

[2018] FWC 5907

[2018] FWC 5907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Adapt-A-Lift Group Pty Ltd
(AG2018/1768)

VICE PRESIDENT HATCHER SYDNEY, 24 SEPTEMBER 2018

Introduction and factual background

[1] An application has been made by Adapt-A-Lift Group Pty Ltd (AALG) for approval of the Adapt-A-Lift Hyster Collective Agreement (Queensland) 2018 (Agreement) pursuant to s 185 of the Fair Work Act 2009 (FW Act). This decision concerns whether AALG complied with s 180(3) of the FW Act such as to permit the Agreement to be approved.

[2] Section 180(3) of the FW Act provides:

(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.

[3] The “access period” referred to in the above provision is defined in s 180(4) as follows:

(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).

[4] The voting process referred to in s 181(1) is the process whereby an employer requests relevant employees to vote to approve a proposed enterprise agreement.

[5] Section 180(3) is a “pre-approval step”, compliance with which is a necessary element for an enterprise agreement to have been “genuinely agreed”: s 188(a)(i). Such genuine agreement is a pre-requisite for the approval of an enterprise agreement: s 186(2)(a). Therefore an enterprise agreement cannot be approved if s 180(3) has not been complied with.

[6] In Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd 1(CBI decision) a decision issued on 21 June 2018, the Full Bench said in relation to the determination of when, under s 180(4), the access period commences and ends:

“[42] The above considerations cause us to conclude that s 180(4) is to be construed on the basis that the access period consists of seven clear calendar days, and that by the application of s 36(1) of the AI Act 2 the access period ends at the end of the calendar day immediately preceding the day on which the voting process for a proposed agreement commences.”

[7] This Full Bench decision confirmed the longstanding position concerning the interpretation of s 180(4) established in McKechnie Iron Foundry (2010) 3 and Hydro Electric Corporation (2014).4 It did not represent the statement of any new legal proposition.

[8] The Form F17 statutory declaration made by Nerida Guerin on 2 May 2018 that was filed together with the application for approval of the Agreement states (at [2.8]) that voting for the agreement commenced on 19 April 2018. The access period therefore consisted of the seven clear calendar days of 12 to 18 April 2018. Compliance with s 180(3) required AALG to take all reasonable steps to inform relevant employees of the time, place and method of the vote by the start of the access period - that is, by the start of the calendar day 12 April 2018 (immediately after midnight on 11 April 2018). However, Ms Guerin’s statutory declaration, in response to the question (at [2.5)] “When did you notify the relevant employees of the date and place at which the vote was to occur and the voting method to be used?”, states the following:

Describe the steps taken	Date
All employees were advised during the initial tool box meeting that there would be an upcoming secret ballot vote to be held at the site locations at the end of the 21 days.	27 March, 2018
All employees were notified via company email addresses and personal where provided (or emails provided for pays slip purposes) that the Collective Agreement voting will take place at their Toolbox Agenda. They we[re] advised this would be by way of secret ballot method.	12 April, 2018
Employees based in Townsville were notified to attend the office on Thursday 19 April, 2018 to complete their vote and sign the register.	12 April, 2018
An employee based in Bundaberg was notified and agreed he would provide a verbal vote on Thursday 19 April, 2018 to his Supervisor.	12 April, 2018

[9] The written notification of the time, place and method of the vote referred to in [2.5] of Ms Guerin’s declaration, as well as the notifications to the employees in Townsville and Bundaberg, took place during 12 April 2018, which was after the start of the access period. However Ms Guerin’s declaration also refers to information being imparted to employees about the vote at an “initial toolbox meeting” on 27 March 2018, well before the commencement of the access period, without being specific about the content of this information.

[10] AALG was requested to provide further information concerning what was communicated to employees at the “initial toolbox meeting” on 27 March 2018. In response to this request, AALG provided a statement made by Ms Guerin dated 19 September 2018. Relevantly, Mr Guerin stated:

“2. … This statement is made in response to the inquiry from the Chambers of Vice President Hatcher of 4 September 2018. For the purpose of responding to that inquiry I made contact with the state manager for Queensland, Michael Cunial who was involved in the initial toolbox meetings to discuss the Proposed EA.

3. Based on those inquiries, I understand that the toolbox meeting held on 27 March was attended by all the employees who would be covered by the Proposed EA except for those who work remotely in Townsville and Bundaberg. At that meeting, Michael Cunial said words to the effect that:

a. the bargaining process was expected to take three weeks, following which there would be a vote by way of secret ballot;

b. employees would be able to vote at the toolbox meeting on 19 April 2018 at the branch and for any employees located remotely they would be able to vote by email ballot or by verbally informing their supervisor.

4. Employees who were not at the toolbox meeting because they work remotely in Townsville and Bundaberg were contacted separately by phone and provided with the same information about the overall process, timing and details of the vote.”

[11] I conclude from the above statement that the large majority of employees were verbally informed of the time of the vote (the toolbox meeting on 19 April 2018), the place of the vote (at the toolbox meeting location, or at a location to allow email or verbal voting for remote employees), and the method of the vote (secret ballot, or by email or verbal voting for remote employees) on 27 March 2018, before the start of the access period. The remaining employees were provided with the same information by telephone at, I infer, the same time or shortly after.

[12] I find that this constituted the taking of all reasonable steps to notify relevant employees of the time, place and method of the vote in compliance with s 180(3). Accordingly the Agreement will proceed to be assessed for approval in accordance with the Commission’s usual procedures.

VICE PRESIDENT

 1   [2018] FWCFB 2732

 2   Acts Interpretation Act 1901 (Cth)

 3   [2010] FWA 3171

 4   [2014] FWC 4169

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