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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adapt-A-Lift Group Pty Ltd

Details

AGLC: Adapt-A-Lift Group Pty Ltd [2018] FWC 5907
Case: [2018] FWC 5907
Decision Date: 24 SEPTEMBER 2018

CaseChat Overview and Summary

Adapt-A-Lift Group Pty Ltd applied to the Fair Work Commission for approval of the Adapt-A-Lift Hyster Collective Agreement (Queensland) 2018. The company argued that it had complied with the Fair Work Act 2009 in relation to notifying employees of the terms of the agreement and the voting process. The Commission needed to decide whether the company had complied with s 180(3) of the Act, which requires employers to take all reasonable steps to notify employees of the time, place, and method of voting before the start of the access period. The case hinged on the interpretation of the access period and the timing of the notifications to employees.

The Commission concluded that the majority of employees were informed of the vote details before the start of the access period, even though the formal written notification occurred after the access period began. This verbal notification, which was corroborated by a written statement from the company’s representative, was deemed sufficient to meet the requirements of s 180(3). The Commission further noted that the Full Bench had previously established that the access period consists of seven clear calendar days, which ends the day before the voting process begins. In this instance, the access period ended on 11 April 2018, and the voting process commenced on 19 April 2018.

In light of the findings, the Commission determined that the company had taken all reasonable steps to comply with the notification requirements. Consequently, the collective agreement would proceed to be assessed for approval under the Commission’s usual procedures. The decision underscored the importance of timely and reasonable communication with employees regarding the terms of an enterprise agreement and the voting process.

Orders