Construction, Forestry, Maritime, Mining and Energy Union v Fusion Labour Pty Ltd
[2018] FWCFB 5843
•18 SEPTEMBER 2018
| [2018] FWCFB 5843 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604––Appeal of decisions
Construction, Forestry, Maritime, Mining and Energy Union
v
Fusion Labour Pty Ltd
(C2018/3896)
VICE PRESIDENT HATCHER |
|
Appeal against decision [2018] FWCA 3774 of Deputy President Masson at Melbourne on 26 June 2018 in matter number AG2018/467
[1] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) has lodged an appeal under s 604 of the Fair Work Act 2009 (FW Act), for which permission to appeal is required, against a decision issued by Deputy President Masson on 26 June 2018 1 (Decision) in which he approved, subject to the acceptance of undertakings, the Fusion Precast Enterprise Agreement 2017 (Agreement)2. The CFMMEU contends that the Deputy President erred in approving the Agreement because, first, the requirement in s 180(3) of the FW Act concerning the notification to employees of the time, place and method of the vote upon the Agreement was not complied with; second, the Agreement did not pass the better off overall test as required by s 186(2)(d) of the FW Act; third, the Deputy President erred in being satisfied that the terms of the Agreement and the effect of those terms were explained to employees as required by s 180(5) of the FW Act; and, fourth, that there were reasonable grounds for believing that the Agreement was not genuinely agreed to by the employees covered by it pursuant to s 188(c) of the FW Act.
[2] The respondent to the appeal, Fusion Labour Pty Ltd (Fusion Labour), initially contended that the CFMMEU’s appeal was incompetent because the Agreement did not cover any employees within the scope of the CFMMEU’s eligibility rule. However Fusion Labour later advised that it did not press this submission. The parties consented to the appeal being dealt with without holding a hearing, and we considered that the appeal may adequately be determined without oral submissions pursuant to s 607(1).
[3] In the circumstances it is only necessary for us to deal with the first of the CFMMEU’s contentions.
[4] Section 180(3) of the 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.
[5] 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).
[6] 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.
[7] 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.
[8] In Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd 3(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 4 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.”
[9] This Full Bench decision confirmed the longstanding position concerning the interpretation of s 180(4) established in McKechnie Iron Foundry (2010) 5 and Hydro Electric Corporation (2014).6
[10] The Form F17 statutory declaration that accompanied the application for approval of the Agreement made on 13 February 2018 by Glen Sedgman, the Director of Fusion Labour, stated (at [2.8]) that voting for the agreement commenced on 30 January 2018. The access period therefore consisted of the seven clear calendar days from 23 January 2018 to 29 January 2018 inclusive. Compliance with s 180(3) required Fusion Labour 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 23 January 2018 (immediately after midnight on 22 January 2018). Mr Sedgman’s 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?”relevantly stated the following: “All relevant employees were notified of the date, time, place and method of voting via email on 23 Jan 2018”. This means that employees were not advised of the time, place and method of the vote until after the access period had begun. We do not consider that there was any proper basis upon which it could be found that Fusion Labour had taken all reasonable steps as required by s 180(3).
[11] Fusion Labour accepted that it had not complied with s 180(3). In email correspondence to the Commission on 17 August 2018, it stated (omitting formal parts):
“The Respondent has had the opportunity to review the Grounds for appeal set out in the Notice of Appeal. It is evident that the Respondent has not complied with the timing requirements set out in s180(3) of the Fair Work Act 2009 (FW Act). Accordingly, without any admissions as to Grounds 2 to 6 of the Notice of Appeal, the Respondent concedes that Ground 1 of the Notice of Appeal is made out.”
[12] It is clear therefore that the Agreement was approved in circumstances where the Commission had no power to do so. This constituted jurisdictional error. In the circumstances, we consider that permission to appeal should be granted, and the appeal upheld. The Decision as a consequence must be quashed and the application for the approval of the Agreement dismissed.
[13] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision ([2018] FWCA 3774) is quashed.
(4) The application for the approval of the Agreement (AG2018/467) is dismissed.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR700484>
1 [2018] FWCA 3774
2 AE428977
3 [2018] FWCFB 2732
4 Acts Interpretation Act 1901 (Cth)
5 [2010] FWA 3171
6 [2014] FWC 4169
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