Appeal by Charles Darwin University - [2023] FWCFB 65

[2023] FWCFB 65

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Appeal by Charles Darwin University

(C2023/800)

JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT MASSON

SYDNEY, 27 MARCH 2023

Appeal against decision [2023] FWC 233 of Commissioner Platt at Adelaide on 25 January 2023 in matter number AG2022/5025

Charles Darwin University (University) has lodged an appeal, for which permission is required, against a decision of Commissioner Platt issued on 25 January 2023[1] in which he dismissed the University’s application for approval of the Charles Darwin University and Union Enterprise Agreement 2022 (Agreement). The appeal was filed on 16 February 2023, one day beyond the time prescribed by r 56(2)(a) of the Fair Work Commission Rules 2013 (Cth) and, accordingly, an extension of time is required under r 56(2)(c).

After hearing the appeal on 24 March 2023, we determined the appeal ex tempore by making the following orders:

(1)Time to lodge the appeal is extended until 16 February 2023.

(2)Permission to appeal is granted.

(3)The appeal is upheld and the decision under appeal is quashed.

(4)Matter AG2022/5025 is remitted to Commissioner Platt for final determination.

The reasons for our decision are set out below.

Section 186(2)(a) of the Fair Work Act 2009 (Cth) (FW Act) provides that one of the criteria for the approval of an enterprise agreement that is not a greenfields agreement is that the agreement has been ‘genuinely agreed to’ by the employees covered by the agreement. Section 188(1)(b) of the FW Act provides that one of the requisite elements of genuine agreement is that the relevant enterprise agreement was made in accordance with s 182(1) or (2), as applicable. In the case of the Agreement here, s 182(1) is the applicable provision because the Agreement is a single-enterprise agreement that is not a greenfields agreement. Section 182(1) provides:
182 When an enterprise agreement is made

Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.

Section 181(1), which is referred to in the above provision, provides that an employer that will be covered by a proposed enterprise agreement may request the employees ‘employed at the time’ who will be covered by the agreement to approve the agreement by voting for it.

In paragraph [6] of his decision, the Commissioner set out the information in the University’s Form F17 declaration relevant to compliance with s 182(1). In summary, the declaration averred that, at the time of the vote on the Agreement, 1802 employees of the University were identified who were employed and would be covered by the Agreement, of which 1065 cast a vote in the ballot and 664 employees voted in favour of the Agreement. The Commissioner then…

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.

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Details

Case: [2023] FWCFB 65
Decision Date: 27 MARCH 2023

CaseChat Overview and Summary

Charles Darwin University appealed a decision made by Commissioner Platt on 25 January 2023, in which he dismissed the University's application for approval of the Charles Darwin University and Union Enterprise Agreement 2022. The appeal was heard by Justice Hatcher, Vice President Catanzariti, and Deputy President Masson on 24 March 2023, and they subsequently made orders extending the time to lodge the appeal, granting permission to appeal, upholding the appeal, and quashing the decision of the Commissioner. The matter was remitted to the Commissioner for final determination.

The legal issues in this case centred on the criteria for the approval of an enterprise agreement under the Fair Work Act 2009 and the interpretation of the term 'genuinely agreed to' by employees. Specifically, the appeal focused on whether casual employees who did not perform work during the access period were entitled to vote on the Agreement. The Commissioner had concluded that such employees were not entitled to vote, and that their votes, if included, would result in a failure to achieve a valid majority in favour of the Agreement.

The Full Bench found that the Commissioner had made a clear error in his calculation of the majority of eligible yes votes and in his conclusion that a valid majority did not approve the Agreement. They noted that even in the worst-case scenario for the University, where all 151 ineligible casual employees voted in favour of the Agreement, there would still be a clear majority in favour of approval. The Full Bench also observed that the Commissioner's interpretation of the Kmart decision was not in dispute and did not need to be addressed in this appeal.

Given the clear error made by the Commissioner, the Full Bench decided to grant an extension of time to lodge the appeal, grant permission to appeal, uphold the appeal, and quash the Commissioner's decision. They also accepted the submission that the matter should be remitted to the Commissioner for final determination, as there were other issues concerning approval of the Agreement that needed to be addressed.

Orders