Casair Pty Ltd

[2018] FWC 5567

[2018] FWC 5567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Casair Pty Ltd
(AG2018/2751)

VICE PRESIDENT HATCHER SYDNEY, 4 SEPTEMBER 2018

Introduction and factual background

[1] An application has been made by Casair Pty Ltd (Casair) for approval of the complete Aviation Services Pilots Enterprise Agreement 2018 (Agreement) pursuant to s 185 of the Fair Work Act 2009 (FW Act). This decision concerns whether Casair 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 Stuart Burns on 21 June 2018 that was filed together with the application for approval of the Agreement states (at [2.8]) that voting for the agreement commenced on 14 June 2018. The access period therefore consisted of the seven clear calendar days of 7 to 13 June 2018. Compliance with s 180(3) required Casair 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 7 June 2018 (immediately after midnight on 6 June 2018). Mr Burns’ 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: “On 7 June 2018, being the commencement of the access period, employees were provided with the proposed agreement by e-mail letter and advised by e-mail letter that voting would be conducted on the day of 14 June 2018. The medium of the vote was confirmed to be by simple e-mail circular.” It is not in dispute that notification to employees of the time, place and method of the vote took place during the course of 7 June 2018 - that is, after the start of the access period.

[9] This difficulty was identified in correspondence from the Commission to Casair dated 19 July 2018, and Casair was invited to consider whether it wished to proceed with its application. In correspondence from its lawyers in response dated 27 July 2018, the following was submitted on Casair’s behalf:

“… Casair submits the following for the Commission’s consideration:

1. Prior to filing its EBA application, Casair completed the single enterprise agreement date calculator (“Calculator”), as located on the Commission’s website at

2. The setup of the Calculator, then and at present, is prescriptive; it does not allow an applicant to complete the input on the Calculator unless all of the dates comply with the FW Act requirements.

3. Casair input the dates referred to in your e-mail into the Calculator both prior to the bargaining process, and again prior to the lodgement of its application early on 21 June 2018 – that is, prior to the publication of the CBI Appeal Decision. The Calculator indicated on both occasions that Casair’s bargaining timetable was acceptable within the legislative framework of the FW Act.

4. It is noted that as at the date of this letter, using the Calculator to input Casair’s bargaining timetable is now disallowed. This is presumably explained by the explanatory note on the Calculator, which reads, “The calculator was last updated 6 July 2018 following a Fair Work Commission Full Bench decision on 21 June 2018 [2018] FWCFB 2732 [the CBI Appeal Decision].”

5. Casair acted in reliance upon the Calculator and the legislative interpretation of the Commission in programming its bargaining timetable and lodging its EBA application. It had no way of knowing that the CBI Appeal Decision would retrospectively affect the Commission’s interpretation of its EBA application.

6. Until the publication of the CBI Appeal Decision, the only available guidance as to the relevant legislation was:

6.1. the Calculator; and

6.2. the original decision CBI Constructors Pty Ltd [2017] FWCA 6837 (“CBI Original Decision”) wherein the Deputy President determined that, in calculating the 7-day access period referred to in s180(4) of the FW Act, the day of the vote is not excluded from the 7-day period.

. . .

8. If Casair’s application is retrospectively disallowed by the Commission’s new interpretation of the legislative framework of the FW Act following the CBI Appeal Decision, it will suffer loss and damage through no fault of its own, in that:

8.1. it has engaged pilots subsequent to the date of the application being “made”, on the terms and conditions of the proposed EBA;

8.2. it will lose significant time in re-bargaining the EBA with its pilots, and will expose itself to risk that the EBA is not re-made;

8.3. it has spent an application fee for lodgement of the application; and

8.4. it will be required to incur further legal and advisory fees in re-bargaining the EBA and attending to re-lodgement of the application.

•  the basis of the above submissions, Casair respectfully request that the Commission reconsiders its position in relation to Casair’s application. Casair is willing to provide written undertakings from all relevant stakeholders in order to establish that the genuine bargaining period has occurred.”

[10] Casair subsequently declined the opportunity to call further evidence or make further submission at a formal hearing of its application, and indicated that it was content to rely upon the submissions contained in its correspondence of 27 July 2018.

Consideration

[11] It is clear on the material before me that Casair did not take any step to inform relevant employees of the date, place and method of the vote to approve the Agreement by the start of the access period, which commenced at the beginning of the calendar day 7 June 2018.

[12] The written submissions of Casair in substance raise three points, with which I will deal with in turn. The first is that Casair says it acted in reliance upon information produced by the Commission’s enterprise agreement date calculator on its website, which it accessed prior to the start of bargaining and before lodging its application for approval of the Agreement. At that time the calculator relevantly required the date voting would commence to be entered, and required the user to “Enter the date that your Access Period will start”. Next to this the calculator identified the date which “The access period must start on …”. The date which the calculator produced for the start of the access period was the date seven days before the date entered for the commencement of the vote, so that in Casair’s case, once it entered the date of the commencement of the vote as being 14 June 2018, the calculatorstated that the access period had to start on 7 June 2018. This was in fact the correct date for the start of the access period, in that as earlier stated, Casair’s access period was required to start at the commencement of the calendar day 7 June 2018. Any deficiency was by omission, in that the calculator did not clearly explain that the notification to employees of the time, place and method of the vote had to be done by the start of the access period, which effectively meant on 6 June 2018 or earlier. This omission in the date calculator has been remedied since the CBI decision was issued. However at all relevant times the requirement to notify employees of the time, place and method of the vote has been clearly explained in other information on the Commission’s website, namely in the “Enterprise Bargaining Benchbook” and the “Making a Single Enterprise Agreement - Step by step guide to making a Single Enterprise Agreement that is not a greenfields agreement” documents on the website. Therefore the submission that Casair was misled by incorrect information in the date calculator is not correct and cannot be accepted.

[13] However and in any event, even if Casair was able to demonstrate it was misled by incorrect information, that would not permit the Agreement to be approved. As earlier explained, compliance with s 180(3) is a pre-requisite for approval of an enterprise agreement. I do not consider that it is open to find, where there has been a failure to take any step at all to notify employees of the time, place and method of the vote by the start of the access period because of an incorrect understanding of the law, that this constitutes the taking of all reasonable steps in compliance with s 180(3).

[14] Second, Casair submits that, prior to the CBI decision, the only guidance provided to it was the date calculator and the first-instance decision which was overturned on appeal in the CBI decision, and that its application should not be “retrospectively disallowed” because of the “new interpretation of the legislative framework” in the CBI decision. The premise of this submission is incorrect. As earlier explained, the CBI decision confirmed the longstanding position established in earlier decisions of the Commission/FWA since 2010, and that position was explained in documents appearing on the Commission’s website at the relevant time. In any event, even if the CBI decision did determine that s 180(4) had not previously been interpreted and applied correctly, that would not provide a legal basis to now ignore what is and always has been the proper interpretation of s 180(4).

[15] Third, Casair in the submissions earlier set out, identifies various negative consequences which will flow if its application for approval of the Agreement is dismissed. Irrespective of this submission, the Commission does not under the FW Act have a discretion to approve an agreement where there has been non-compliance with s 180(3), even in circumstances where the failure to comply is technical in nature or accidental and every other approval requirement is satisfied, these matters are simply not able to be taken into account.

[16] I note that one negative consequence referred to in Casair’s submission is that “…it will lose significant time in re-bargaining the EBA with its pilots…”. In light of this submission, it should be noted that it will not be necessary, if its application is dismissed, for Casair to re-commence the whole bargaining process. It would be open to Casair to simply undertake the pre-approval steps required in s 180 again and request relevant employees to vote again to approve the proposed agreement pursuant to s 181. If it takes this course, Casair can then make a fresh application for approval of the agreement.

[17] I find that Casair did not comply with s 180(3), and accordingly I cannot be satisfied under s 186(2)(a) that the Agreement was genuinely agreed by the employees covered by it having regard to s 188(a)(i). The application for approval of the Agreement must therefore be dismissed.

VICE PRESIDENT

 1   [2018] FWCFB 2732

 2   Acts Interpretation Act 1901 (Cth)

 3   [2010] FWA 3171

 4   [2014] FWC 4169

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