Deploy Subsea Pty Ltd T/A Deploy Subsea Pty Ltd

[2024] FWCA 3244

[2024] FWCA 3244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Deploy Subsea Pty Ltd T/A Deploy Subsea Pty Ltd

(AG2024/3109)

Diving services
DEPUTY PRESIDENT BEAUMONT	PERTH, 11 SEPTEMBER 2024

Application for approval of the Deploy Subsea & MUA WA Inshore Diving Enterprise Agreement 2023

1. Deploy Subsea Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Deploy Subsea & MUA WA Inshore Diving Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The notification time for the Agreement under s 173(2) was 6 April 2024 and the Agreement was made on 13 July 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. Five out of six employees covered by the Agreement were engaged on a casual basis. The issue that therefore arose was whether the employees who will be covered by the Agreement and who were requested to vote on the proposed Agreement to approve it were ‘employed at the time.’[1]

1. Subsection 181(1) of the Act provides that an employer that will be covered by a proposed enterprise agreement may request the employees ‘employed at the time’ who will be covered by the agreement to approve the agreement by voting for it. Section 181 is set out in full below:

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) If the employer is required by subsection 173(1) (which deals with giving notice of employee representational rights) to take all reasonable steps to give notice in relation to the agreement, the request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method. (bold my emphasis)

1. Under s 188(4) of the Act, the Commission cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with the following provisions in relation to the agreement:

(a)sections 173 and 174 (which deal with giving notice of employee representational rights)

(b)subsection 181(2) (which requires that employees not be requested to approve certain enterprise agreements until 21 days after the last notice of employee representational rights is given).

1. Presumedly, the request as referred to in s 181(2) of the Act, refers to a request to approve certain enterprise agreements being provided to ‘employees employed at the time’.

1. It is uncontroversial that enterprise agreements were intended by the legislature to be capable of covering casual employees. However, a difficulty that has arisen is ascertaining when a casual employee ought to be regarded as an employee ‘employed at the time’ within the meaning of s 181(1). In relation to permanent employees, it is of course a relatively straightforward exercise.

1. As observed, the Applicant’s Form F17B[2] indicated that at the time of the vote six employees were covered by the Agreement, with six casting a valid vote and six voting in favour to approve the Agreement.[3] Of the six employees, five were employed on a casual basis.[4] The inclusion of the casual employees in the voting cohort gave rise to a concern that the Agreement may not have been made by a majority of ‘employees employed at the time’ who cast a valid vote.[5]

1. In the decision of St John of God Health Care Inc (St John),[6] I traversed the authorities that have considered the phrase ‘employed at the time’. I do not intend to repeat what was said in St John. I simply add that in Woolworths Group Limited[7] the Full Bench expressed the following at paragraphs [27] and [28]:

[27] In Appeal by Kmart Australia Limited (Kmart), the Full Bench concluded that the ‘time’ at which employees covered by the agreement had to be employed in order to be requested to vote referred to in s 181(1) encompassed the whole of the access period in s 180(4) and was to be equated with the ‘time’ referred to in s 180(2)(a). The Full Bench in Kmart concluded that casual employees who had been engaged for the first time during the voting period had not been ‘employed at the time’ at which employees were requested to vote. The Full Bench did not say that existing casuals who did not work during the access period were ineligible to do so. In our view, Woolworths’ contention that category 2 casuals were eligible to vote has merit. These were not just casuals ‘on the books’ who might or might not have been given further shifts. The fact that these employees had been allocated shifts on the roster is evidence of the actuality and currency of their casual employment during the access period.

[28] However, it is not necessary for us to reach a concluded view on this matter. If ineligible employees were allowed to participate in a vote on an enterprise agreement, it is necessary to consider whether their votes could have affected the outcome. In Kmart, it was clear that they could not have done so…(footnotes omitted).

1. Voting on the Agreement commenced on 22 June 2024 and concluded on 13 July 2024. The Applicant was directed to file evidence in support of its contention that all employees included in the vote were ‘employed at the time’. The Applicant filed payslips for its six employees for two pay periods that included the access period. Having reviewed the payslips it appears that at least five of the six employees were employed during the access period.

1. It follows that I am satisfied that the Agreement was made in accordance with s 182(1). Although it transpired that one voting casual may not have been engaged to work during the access period and were not therefore an employee ‘employed at the time who will be covered by the agreement’ (see s 181(1) and Noorton[8]), this did not affect the outcome of the vote (see Kmart[9] at [43]). Even if the one casual employee voted to approve the Agreement, such that the ‘yes’ vote should be reduced by one, the Agreement was still approved by a majority of employees who cast a valid vote.

1. An issue arose regarding the notice of employee representational rights (NERR) that was provided to the Commission. The title clause in the Agreement provided that the Agreement title will be known as the ‘Deploy Subsea & MUA WA Inshore Diving Enterprise Agreement 2023’ however, the NERR stated that the title is ‘Deploy Subsea Inshore Diving Agreement 2022’. The Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division (the organisation), being a bargaining representative for the Agreement, explained, with no objection from the Applicant, that the Applicant and organisation had agreed to change the title of the Agreement as negotiations had extended for some time since the NERR had issued. Presumedly, the Agreement title better reflected the date of 2023. To the extent that this issue with the NERR constituted non-compliance with a procedural requirement as contemplated by s 188(5)(a) of the Act, I am satisfied that such non-compliance was a minor procedural or technical error in light of that which has been observed. The relevant employees were unlikely to have been disadvantaged by the error, and I do not consider it to be an error that stands in the way of the approval of the Agreement.

1. Section 185(3)(a) of the Act provides that an application for approval of an agreement must be made no later than 14 days after the agreement being made. The Agreement was made on 13 July 2024 and lodged on 15 August 2024, some 33 days after the Agreement was made and therefore 18 days late. I have considered the explanation provided for the late lodgement and am satisfied in all the circumstances that it is fair to extend the period to the date on which the application was lodged.

1. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. The organisation has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 11 September 2024 and, in accordance with s 54, will operate from 18 September 2024. The nominal expiry date of the Agreement is 18 April 2027.

DEPUTY PRESIDENT

[1] Fair Work Act 2009 (Cth) s 181(1).

[2] Form F17B – Employer’s declaration in support of an application for approval of a single enterprise agreement (other than a greenfields agreement) – notification time on or after 6 June 2023, question 6.

[3] Form F17B – Employer’s declaration in support of an application for approval of a single enterprise agreement (other than a greenfields agreement) – notification time on or after 6 June 2023, question 29.

[4] Form F17B – Employer’s declaration in support of an application for approval of a single enterprise agreement (other than a greenfields agreement) – notification time on or after 6 June 2023, question 6.

[5] Fair Work Act 2009 (Cth) s 182(1).

[6] [2023] FWCA 87.

[7] [2024] FWCFB 314.

[8] CFMMEU v Noorton Pty Ltd[2018] FWCFB 7224.

[9] Appeal by Kmart Australia Limited [2019] FWCFB 7599.

Printed by authority of the Commonwealth Government Printer

<AE526053  PR779163>