BCS Infrastructure Support Pty Ltd

[2014] FWC 2710

[2014] FWC 2710

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BCS Infrastructure Support Pty Ltd
(AG2014/752)

COMMISSIONER RYAN MELBOURNE, 24 APRIL 2014

Application for approval of the BCS Infrastructure Support Pty. Ltd. Melbourne Airport Enterprise Agreement 2013.

[1] Application was made by BCS Infrastructure Support Pty Ltd for approval of an enterprise agreement known as BCS Infrastructure Support Pty Ltd Melbourne Airport Enterprise Agreement 2013. The application was accompanied by a Form F17 Statutory Declaration from Mr Andrew Mauger, General Manager of BCS Infrastructure Support Pty Ltd.

[2] The Statutory Declaration identifies that on 12 March 2014 employees were sent an email notifying them of the voting process and the timing of the vote. On the same day a voting form was attached to each employee’s pay slip for them to complete and place in a secure box.

[3] Ballot papers were able to be put into the ballot box on 20 March 2014.

[4] I drew to the attention of the Applicant and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), which was the bargaining representative involved in the agreement making process, that the F17 appeared to disclose non compliance with the requirements of the Fair Work Act 2009 (the Act) in that voting papers were issued to employees at the commencement of the access period and not at the end of the access period.

[5] Section 180 of the Act provides relevantly as follows:

“180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre-approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

...

(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.

(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).

[6] A joint submission made by the Applicant and the CEPU contended that the employer had complied with s.180(3) of the Act. The joint submission included the following:

“We consider that the term ‘voting process’ in subparagraph 180(4) refers to the period in which an employee can cast a vote. This interpretation is consistent with paragraph 736 of the Explanatory Memorandum which states that (s)ubclause 180(4) defines the access period as the period of seven days ending immediately before the start of the voting for the proposed agreement (see subclause 181(1)).

The start of the voting for the proposed agreement was 6am, Thursday 20 March 2014. Employees were not able to submit their vote earlier than this and, even if they filled out their form prior to this date/time, they could make changes to it at any time before submitting their vote between Thursday 20 March and Friday 21 March.

Australian Char Pty Ltd [2011] FWA 1627

Thank you to referring us to the abovementioned decision.

We consider that the facts in this case can be distinguished from the present circumstances as in this case the Employer provided the employees with a ballot paper and a reply paid envelope. This enabled employees, despite their instructions, to complete and submit their form, without any opportunity to amend it, during the access period. We understand that in this case, of the 12 people that voted, 6 votes were invalid because they were dated outside of the voting period.

Although BCS employees were provided with the voting form during the access period, the form remained in their possession throughout the access period and could be filled out or changed at any time prior to casting a vote. The voting process, in our opinion, commenced on Thursday 20 March, from which time the employees were able to cast a vote.

For the reasons set out above, we consider that the FW Act has been complied with.”

[7] I had drawn the parties’ attention to the decision in Australian Char Pty Ltd but there are other relevant decisions dealing with the same issue. (Chelgrave Contracting Australia Pty Ltd [2013] FWC 10232 and Porter Plant Wet Hire Pty Ltd [2011] FWA 3349 )

[8] I don’t accept the contention of the Applicant and the CEPU that the distribution of the voting papers to employees is not part of the voting process. The joint submission of the Applicant and the CEPU focuses on the placing of the ballot paper in the ballot box on 20 March 2014 which constituted the casting of the employee’s vote. However the vote could not have been cast without the ballot paper first being given to the employee and then the employee marks the ballot paper before casting the vote. Seen in this light it is clear that the voting process does not start with the casting of the vote but starts with the distribution of the ballot papers to employees.

[9] I find that the employer has not complied with s.180(3) in that the employer did not take all reasonable steps to notify the relevant employees of the time and place at which the vote will occur and the voting method that will be used, by the start of the access period for the agreement.

[10] As compliance with s.180(3) is one of the mandatory preconditions for making an enterprise agreement, non compliance with s.180(3) means that the Applicant cannot make the application in this matter. The application is therefore dismissed.

COMMISSIONER

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