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…

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 Casair Pty Ltd

Details

AGLC: Casair Pty Ltd [2018] FWC 5567
Case: [2018] FWC 5567
Decision Date: 4 SEPTEMBER 2018

CaseChat Overview and Summary

Casair Pty Ltd made an application to the Fair Work Commission for approval of the Aviation Services Pilots Enterprise Agreement 2018. The applicant, Casair, is a company that employs pilots, and the agreement in question is an enterprise agreement that seeks to regulate the terms and conditions of employment for those pilots. The matter was heard by Vice President Hatcher and a decision was handed down on 4 September 2018. The central issue before the Commission was whether Casair had complied with the pre-approval steps set out in section 180 of the Fair Work Act 2009 (the Act) in relation to the enterprise agreement.

The legal issue for the Commission to decide was whether Casair had taken all reasonable steps to notify its employees of the time, place and method of the vote to approve the enterprise agreement by the start of the access period, as required by section 180(3) of the Act. The access period is defined as the seven-day period ending immediately before the start of the voting process, and compliance with section 180(3) is a necessary element for an enterprise agreement to have been "genuinely agreed", which is in turn a pre-requisite for approval of an enterprise agreement under section 186(2)(a) of the Act.

Casair submitted that it had acted in reliance upon information produced by the Commission's enterprise agreement date calculator, which indicated that the access period would start on the day before the vote, and which did not clearly explain that notification to employees of the time, place and method of the vote had to be done by the start of the access period. Casair also submitted that the Full Bench decision in CBI Constructors Pty Ltd, which determined the interpretation of section 180(4) of the Act, should not be applied retrospectively to disallow its application for approval of the enterprise agreement. Casair further submitted that if its application was dismissed, it would suffer loss and damage through no fault of its own.

The Commission found that Casair did not take any step to inform relevant employees of the date, place and method of the vote by the start of the access period. The Commission rejected Casair's submissions, finding that the date calculator did not provide incorrect information and that even if it had, Casair was still required to take all reasonable steps in compliance with section 180(3). The Commission also found that the Full Bench decision in CBI Constructors Pty Ltd 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. The Commission further found that it did not have a discretion to approve an agreement where there had been non-compliance with section 180(3), even in circumstances where the failure to comply was technical in nature or accidental and every other approval requirement was satisfied.

The application for approval of the enterprise agreement was dismissed. Casair was open to simply undertake the pre-approval steps required in section 180 again and request relevant employees to vote again to approve the proposed agreement pursuant to section 181. If it takes this course, Casair can then make a fresh application for approval of the agreement.

Orders