Casair Pty Ltd - [2018] FWCA 5567

[2018] FWCA 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

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.

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.

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).

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.

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.

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.”

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.

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…

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

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

CaseChat Overview and Summary

Casair Pty Ltd applied for approval of the complete Aviation Services Pilots Enterprise Agreement 2018 (Agreement) under s 185 of the Fair Work Act 2009 (FW Act). The matter was before Vice President Hatcher of the Fair Work Commission, who considered whether Casair complied with s 180(3) of the FW Act, which is a prerequisite for approval of an enterprise agreement. The primary legal issue was whether Casair took all reasonable steps to notify relevant employees of the time, place, and method of the vote by the start of the access period. The access period, as defined by s 180(4) of the FW Act, is the 7-day period ending immediately before the start of the voting process.

The Court found that Casair did not take any steps to inform employees of the date, place, and method of the vote by the start of the access period, which was 7 June 2018. Casair argued that it relied on the Fair Work Commission's enterprise agreement date calculator, which did not clearly explain the requirement to notify employees before the start of the access period. However, the Court held that the calculator's omission did not excuse Casair's failure to comply with s 180(3). Additionally, Casair's argument that its application should not be retrospectively disallowed due to the Commission's new interpretation of the legislative framework was rejected. The Court held that the Commission does not 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.

The Court found that Casair did not comply with s 180(3) and could not be satisfied that the Agreement was genuinely agreed by the employees covered by it. Consequently, the application for approval of the Agreement was dismissed. However, if Casair wished to proceed with the Agreement, it could 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. Casair could then make a fresh application for approval of the agreement.

Orders