Australian Turf Club Limited
[2024] FWC 42
•8 JANUARY 2024
| [2024] FWC 42 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Australian Turf Club Limited
(AG2023/4076)
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 8 JANUARY 2024 |
Application for Approval of the ATC Events Enterprise Agreement 2023
The Australian Turf Club Pty Ltd (ATC) has applied for approval of an enterprise agreement known as the ATC Events Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The notification time pursuant to s.173(1) of the Act was 17 April 2023. Consequently, the provisions of the Act concerning the approval of enterprise agreements as they were prior to 6 June 2023 are applicable to the determination of this application. References in this decision to the provisions of the Act relevant to the approval process are references to those provisions as they applied prior to 6 June 2023.
An issue arises going to whether, for the purposes of s.186(2)(a), I can be satisfied that the agreement has been genuinely agreed to by the employees. This issue along with concerns I had about the better off overall test, and an issue associated with the bargaining representatives, were raised with the ATC.
In response the ATC provided further information and undertakings. The ATC relied upon the information in the form F17 statutory declaration of its Senior Manager, Human Resources Mohish Narayan, filed in accordance with the procedural rules, and two further witness statements of Mr Narayan dated 22 November 2023 and 19 December 2023.
Genuine Agreement
The ATC ostensibly employ casual staff to work on race days and at functions at racecourses between race days. On some race days, during Autumn and Spring carnival seasons, the ATC may employ over 1,000 staff. Work by hospitality and customer service staff on race days can start early, but typically ends by 7.00pm. The only time work is expected to continue past 7.00pm is evening racing at Canterbury Park racecourse, which takes place on some Fridays in December to February each year. On those evenings, hospitality and customer service staff typically finish work and clock off between 9.00pm and 9.30pm. There are no race day events where the ATC needs to roster hospitality staff to work past 10.00pm.
Some staff are required to work on the days immediately prior to and following race days, when work is required to set up and take down temporary service areas, and move stock, tables, chairs, and other equipment. Apart from those limited activities, there is no work on a non-race day for customer service or hospitality staff associated with race day events.
The ATC also operates hospitality venues as function centres at each racecourse on non-race days. Some events are large and require more than 100 hospitality staff. Other events are small and may occupy only one meeting room at a racecourse for around 2 hours, which may involve 1 – 2 staff only. These functions and events are varied and not predictable as they rely on outside bookings which may be booked, cancelled, or changed months in advance, or at short notice of around a week or less. A function can be booked to finish after 7.00pm, and if the ATC is providing the hospitality staff, work can continue after that time.
The ATC has casual employees engaged in the hospitality and customer service roles covered by the Agreement. At the time the Agreement was voted on the ATC’s information technology system for ‘current’ casual employees who may be offered work on a race day or other event at any of the Racecourses in a hospitality or customer service role, was 1,139. The ATC’s practice for offering work to these ‘current’ casual employees is as follows:
(a) prior to a race day or event, the ATC alerts the employees by email and text of work at a nominated start and end time on race days, or other events, at a racecourse,
(b) if an employee wants to respond and accept an offer of work, they access the rostering and time and attendance application called ‘Humanforce’ from a link in the email or text message to confirm they accept, and this results in the casual employee being rostered to work on the race day, or event, at the nominated racecourse, and
(c) changes can be made to the roster right up to the day of the event.
The ATC reviews the list of ‘current’ casual employees every 6 months and removes casual employees who have not accepted a shift or worked at a racecourse in the last 6 months.
When the application for approval was filed Mr Narayan asserted in his declaration that at the time of the vote 653 employees were covered by the Agreement, of which 327 cast a valid vote, and the relevant majority for the purpose of the approval of the Agreement was 243 votes in favour of approval.
The ATC was asked to provide further material concerning the vote. That request arose from the discrepancy between the identification in the statutory declaration of 1,139 casual employees and the statement that 653 were covered at the time of the vote. The ATC’s attention was drawn to the Full Bench decision in Kmart Australia Ltd v RFFWUI & Ors (Kmart).[1] Further material was provided in the first statement of Mr Narayan. Submissions were also provided. Arising from that material the following matters are relevant to the vote for the Agreement.
(a) On 29 September 2023 all current casual employees (which I take to be the 1,139) received an email including links to the proposed agreement, an information statement, a video explaining the Agreement and voting process, a questions and answers document, and written material about the approval and voting process including the time of the vote and method of voting.
(b) The voting period was 9 October to 22 October 2023. The access period was 30 September to 8 October 2023.
(c) The vote was conducted by an independent firm, CiVS.
(d) The ATC proceeded on the basis that only employees who had accepted shifts to work during the voting period were entitled to vote. It took the view that “employed” meant a casual employee who had accepted a shift, or shifts, to work between 9 October and 22 October 2023.
(e) On 5 October 2023, the ATC provided a file to CiVS with the name, employee ID, mobile phone number, and email address of 641 casual employee who had accepted an offer of work and been rostered to work in the voting period.
(f) On 16 October 2023, the ATC provided CiVS with details of a further 12 casual employees who were to be included in the voting list on the basis that they were eligible to vote as they were rostered to work during the voting period - taking the total to 653 employees.
(g) CiVS provided information about the vote including information on the voting period and how to vote to the 653 employees by email. It also sent an SMS message with a username, PIN, the vote URL, and confirmation of the vote opening date and time. A further SMS message was sent when the vote opened. That message allowed the employee to vote by simply replying yes or no to the SMS message.
(h) On 23 October 2023 CiVS provided a declaration of result indicating:
·653 employees were eligible to vote,
·327 of the 653 employees voted, and
·243 voted to approve the Agreement.
(i) In submissions, after considering the Full Bench decision in Kmart, ATC took a different view of who was eligible to vote. Relying on Kmart and the decision of the Full Federal Court in NTEU v Swinburne University of Technology,[2] the ATC submitted that the relevant cohort for the vote should have been those employed between 30 September and 8 October 2023, which was the access period. A larger group of 637 of ATC’s casual employees were eligible to vote to approve the Agreement on the basis that they were employed during the access period.
(j) A review of the ATC’s rostering and time attendance programs revealed that only 534 of the 653 employees who voted worked during the access period. In this scenario 119 of the 653 who worked during the voting period but not during the access period were not eligible to vote. A further 103 employees who worked in the access period but not the voting period were eligible to vote but were not asked to vote.
(k) CiVS were able to identify the 534 employees who worked during the access period. It provided a breakdown of those 534 employees. That breakdown gave the following result:
·283 of the 534 employees voted, and
·212 voted to approve the Agreement.
The ATC acknowledges that the effect of this material is that 119 employees worked during the voting period and were asked to vote. These employees did not work during the access period and should not have had the opportunity to vote. Another 103 employees worked during the access period but not the voting period. They were not on CiVS list of eligible voters. They should have been and were denied the opportunity to vote.
Consideration – Genuine Agreement
Section 186(2)(a) of the Act provides the Commission must be satisfied that an enterprise agreement has been ‘genuinely agreed to’ by the employees covered by the agreement. Section 188 provides that an enterprise agreement has been genuinely agreed if the Commission is satisfied of a number of matters, including at s.188(1)(a) that the agreement was made in accordance with ss.182(1) or 182(2). Section 188(2) provides that an agreement may still be genuinely agreed where a minor procedural or technical error made in relation to the requirements mentioned in paragraph (1) occurs. That error must not disadvantage employees.
For the purposes of s.182(1) a single-enterprise agreement is made if the employees that will be covered by the agreement have been asked to approve the agreement under s.181(1) and a majority of those who cast a valid vote approve the agreement. Section 181(1) permits an employer to request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
The treatment of casual employees for the purpose of the request that employees employed at the time vote to approve the agreement in s.181(1) is a difficult issue. A recent Full Bench in NTEU v Southern Cross University[3] described the current state of authority on the issue as discordant.[4] The Full Bench found that it was not necessary to resolve that issue in that matter.[5]
The Full Bench in Kmart Australia Ltd v RFFWUI & Ors[6] dealt with the identification of the ‘time’ referred to in the expression ‘employed at the time’ in s.181(1). The Full Bench determined that the ‘time’ referred to was the whole of the access period, so that the ‘roll’ of voters must effectively close at the end of the access period. Another Full Bench in Re Charles Darwin University[7] pointed out that in Kmart the Full Bench did not deal with question of the circumstances in which a casual employee may be said to have been employed during the access period. Ultimately, the approach taken by the ATC was that casual employees who worked a shift during the access period were entitled to vote. I will proceed on the basis that this approach is correct.
As outlined above, the ATC used the voting period instead of the access period to compile its roll of voters and 653 employees were requested to vote by CiVS sending them emails and SMS messages. Of those, only 534 worked during the access period. This meant 119 employees were sent voting papers who were not entitled to vote. The sending of voting papers to persons not entitled to vote under s 181(1) does not necessarily vitiate the process, as the question is whether a valid majority of those who were entitled to vote, and voted, approved the agreement.[8] If this were the only issue, it would follow, on the submissions made, that the Agreement was made because of the 534 who were eligible to vote, 283 voted and 212, a clear majority, voted to approve the Agreement.
Significantly, however, a further 103 employees who worked during the access period, were, on the ATC’s revised view, entitled to vote, were not on the list of eligible voters, and were not requested to vote to approve the Agreement.
The ATC submitted that, having regard to the votes that were cast, even if all 103 employees who were excluded had voted against approval, the result of the vote would still be that a majority voted to approve. This submission is made on the basis that the total number of eligible voters, including those who did not vote, was 637, 283 of whom did vote, and 212 of whom voted to approve. Had an additional 103 voted the number of votes would rise to 386. Even if the 103 votes were in against approving, there would still be 212 out of 386 votes in favour of approving the Agreement which is not as clear a majority, but a majority nonetheless.
The problem with that submission is that s.182(1) provides that the employees asked to approve the agreement must be asked to do so under s.181. Section 181 provides that the employer requests the employees employed at the time who will be covered by the agreement to approve the agreement by voting on it. If 103 employees employed at the time who would have been covered by the agreement and are not requested to approve the agreement, then section 181(1) has not been met. If section 181(1) is not met, the agreement is not made under s.182(1). Consequently, for the purposes of s.188(1)(b) I cannot be satisfied that the ATC has complied with for subsection 182(1). That being the case, I cannot be satisfied that the agreement was genuinely agreed to by employees for the purpose of s.186(2)(a).
A further issue arises under s.188(2) as to whether the error in failing to request all of the employees to be covered by the agreement to vote was a minor procedural or technical errors. If I am satisfied that it was, and no disadvantage arose to employees, then the agreement has been genuinely made.
Similar circumstances to the current matter were dealt with by a Full Bench in McColl’s Operations Pty Ltd v Transport Workers’ Union of Australia.[9] The Full Bench there was dealing with an appeal from a decision to refuse to approve an agreement because employees covered by the agreement were excluded from the vote. The Full Bench affirmed the decision at first instance. In doing so it considered whether the failure to afford employees a right to vote might be considered a minor procedural or technical error for the purpose of s.188(2)(a). The Full Bench relevantly said:
[49] We reject McColls’ submission that the exclusion of the former PST employees could be characterised as “minor” on the basis that their inclusion in the vote could not, mathematically speaking, have made a difference. First, we do not consider that the magnitude of an error can only be measured by reference to its consequences. Second, McColls’ approach is far too reductionist in nature. Participation in the voting process contemplated by the FW Act involves more than simply casting a vote. Under s 180, prior to employees being requested to vote under s 181(1), they must be provided with or given access to a copy of the proposed agreement and any relevant materials (s 180(2)) and the employer must take all reasonable steps to explain to employees the terms of the agreement and their effect (s 180(5)). The real possibility that employees may confer amongst themselves and influence each other’s views when this is done cannot be excluded. For that additional reason, we do not consider that the exclusion of 27 employees from a voting cohort of 113, of which only 45 voted in favour of the McColls Agreement, could be assumed not to have made any difference to the outcome.
Those observations are apt to describe the circumstances in this matter. I respectfully adopt them. I do not consider that the exclusion of 103 employees from a voting cohort of 637, can be characterised as “minor” simply on the basis that their inclusion in the vote could not, mathematically speaking, have made a difference.
I note that on 29 September 2023 all 1,139 current casual employees were provided with links to the proposed agreement and supporting material. This is in contrast to the circumstances dealt with in McColl. However, the information sheet provided with the email stated that casual employees who were not working between 9 October and 22 October 2023 would be unable to cast a vote. The uncertainty created by this approach meant that the employees in receipt of the 29 September 2023 did not know if they would be asked to approve the Agreement. This was to the employees’ disadvantage. The access period was about to commence. Information was provided to 1,139 employees. However, those employees were unaware of who the ultimate voting cohort would be. At best they knew that they were to get a vote once they accepted the offer of a shift and were placed on a roster.
The ATC points to the fact that it received no complaints or inquiries from employees about the approval process. This is beside the point. The employees were told that they were only entitled to vote if they were working during the voting period. Apart from the fact that the information was incorrect because as it turned out it was those who worked in the access period who were entitled to vote, participation in the voting process either by way of conferring with colleagues, voting itself, or otherwise, was undermined by the uncertainty associated with the ultimate vote. The uncertainty created was such that I would not consider the error minor for the purpose of s.188(2)(a).
For the same reasons I would consider the errors to have disadvantaged the employees under s.188(2)(b). The disadvantage being that the errors meant that the vote progressed in what was an unpredictable fashion with the voting cohort ill-defined from the outset. This effected the way the employees could meaningfully engage in the approval process. I consider this to be to the employees’ detriment.
Accordingly, I am not satisfied that the error in failing to afford the 103 employees engaged during the access period was either a minor or technical error or that it did not disadvantage the employees.
I also note that my conclusion assumes that only those who worked during the access period met the description of employees employed at the time who will be covered by the agreement. It may be that, given the nature of the employment at the ATC, the correct voting cohort was all 1,139 current casual employees. If that were the case, I would make the same finding that the agreement had not been genuinely agreed. I did not raise this with the ATC, and it is not necessary to make a finding on the issue given my finding that even on the assumption that the smaller group were the relevant group, the ATC did not request all employees to approve the Agreement and so failed to establish genuine agreement for the under s.188.
As I am not satisfied that the Agreement has been genuinely agreed, I cannot approve it. There is no need to address the other issues raised.
The application is dismissed.
DEPUTY PRESIDENT
[1] [2019] FWCFB 7599; 291 IR 233.
[2] [2015] FCAFC 98.
[3] [2023] FWCFB 200.
[4] at [19]
[5] At [43] to [45]
[6] [2019] FWCFB 7599
[7] [2023] FWCFB 65
[8] See, National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98at [10]; Re Charles Darwin University[2023] FWCFB 65; Re Commonwealth Bank of Australia[2021] FWCFB 3635 at [11].
[9] [2022] FWCFB 212
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