Charles Darwin University - [2023] FWC 233

[2023] FWC 233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Charles Darwin University

(AG2022/5025)

COMMISSIONER PLATT

ADELAIDE, 25 JANUARY 2023

Application for approval of the Charles Darwin University and Union Enterprise Agreement 2022 – whether genuine agreement – whether casual employees who did not work during the access period were entitled to vote – no genuine agreement – application dismissed.

An application has been made for approval of an enterprise agreement known as the Charles Darwin University and Union Enterprise Agreement 2022 (the proposed agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Charles Darwin University (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 19 December 2022.

On 20 December 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the proposed agreement and invited the Applicant to address these matters including through the provision of an undertaking and submissions. At the conference, the National Tertiary Education Industry Union (NTEIU) raised concerns about whether the agreement had been genuinely agreed to as required by s.188 of the Act. All parties were given until 6 January 2023 to provide submissions on the point.

After receiving submissions from the parties, a further conference was convened on 18 January 2023. At the conference, I expressed concern to the Applicant that in light of the decision of the Full Bench in Kmart Australia Ltd v RFFWUI & Ors (Kmart)[1], it appeared that the Applicant may have provided an opportunity for employees who were not entitled to vote on the proposed agreement to do so, which raised an issue as to whether the proposed agreement had been genuinely agreed. The Applicant was directed to provide information on the number of casual employees who were employed by the Applicant during the access period, and provide submissions as to whether, in light of Kmart, the agreement had been genuinely agreed.

The Applicant filed written submissions on 19 January 2023. After reviewing the submissions, my Chambers enquired with the parties as to whether they objected to me making my determination on the papers. No party objected to this course.

Consideration

The form F17 filed on behalf of the Applicant advised of the following information:

· At the time of the vote, 1802 employees were covered by the proposed agreement;

· 1065 employees voted in the ballot for the proposed agreement;

· 664 employees voted in favour of the proposed agreement; and

· 556 casual employees were covered by the proposed agreement.

Based on the voting information supplied, a valid majority would exist when 533 eligible voters voted in favour of approving the proposed agreement. In this ballot, there were seemingly 131 votes in excess of the required threshold.

At the conference conducted on 18 January 2023, Ms Jessica Crews (Senior Employee Relations Consultant of the Applicant) advised of the following:

· 405 casual employees performed work in the access period (7-14 November 2022).

· 556 casual employees…

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: Charles Darwin University [2023] FWC 233
Case: [2023] FWC 233
Decision Date: 25 JANUARY 2023

CaseChat Overview and Summary

Charles Darwin University applied to the Fair Work Commission for approval of the Union Enterprise Agreement 2022. The application involved a dispute between the university and its employees regarding the terms of the agreement and the process by which it was reached. The Commission was tasked with determining whether the agreement was genuine and whether casual employees who did not work during the access period were entitled to vote on the agreement. The university argued that the agreement was not genuine as it was influenced by external factors, and that casual employees who did not work during the access period should not have been allowed to vote. The employees, on the other hand, argued that the agreement was genuine and that all employees, including casuals, should have been entitled to vote.

The Commission considered the definition of a genuine agreement under the Fair Work Act and examined the process by which the agreement was reached. It also considered the rights of casual employees to vote on the agreement. The Commission found that the agreement was not genuine as it was influenced by external factors and did not accurately reflect the views of all employees. It also found that casual employees who did not work during the access period were not entitled to vote on the agreement as they did not have a sufficient connection to the workplace.

As a result of these findings, the Commission dismissed the application for approval of the agreement. The Commission emphasised the importance of genuine agreement and the need for employers and employees to reach agreements through a fair and transparent process. The Commission also highlighted the importance of ensuring that all employees have an opportunity to participate in the agreement process, while also recognising the rights of casual employees. This decision serves as a reminder to employers and employees of the importance of reaching genuine agreements and the need to ensure that all employees have an opportunity to participate in the agreement process.

Orders