Eptec Pty Ltd - [2018] FWC 5576

[2018] FWC 5576

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Eptec Pty Ltd

(AG2018/2142)

Vice President Hatcher

SYDNEY, 24 AUGUST 2018

Application for approval of the Eptec Pty Ltd Submarine/Surface Ships South Australia Enterprise Agreement 2018 – Pre-approval steps – Non-compliance with s 180(3) – Agreement does not pass ‘genuine agreement’ test – Application for approval of agreement

Introduction and factual background

An application has been made by Eptec Pty Ltd (Eptec) for approval of the Eptec Pty Ltd Submarine/Surface Ships South Australia Enterprise Agreement 2018 (Eptec Agreement) pursuant to s 185 of the Fair Work Act 2009 (FW Act). This decision concerns whether Eptec complied with section 180(3) of the FW Act such as to permit the Eptec 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 position.

The Form F17 statutory declaration made by Lawrence Ronald Rob on 21 May 2018 that was filed together with the application for approval of the Eptec Agreement states (at [2.8]) that voting for the agreement commenced on 18 May 2018. 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 Eptec Pty Ltd

Details

AGLC: Eptec Pty Ltd [2018] FWC 5576
Case: [2018] FWC 5576
Decision Date: 24 AUGUST 2018

CaseChat Overview and Summary

In the Fair Work Commission, Eptec Pty Ltd sought approval of a proposed enterprise agreement with its employees. The company, a provider of engineering and maintenance services, was concerned with the workforce’s operations in South Australia. The matter was brought before the Commission to determine whether the agreement met the necessary legal requirements for pre-approval, specifically whether it complied with section 180(3) of the Fair Work Act 2009. The central issue was whether the proposed agreement passed the 'genuine agreement' test.

The Commission examined whether the agreement was genuinely negotiated, not only in form but also in substance. This involved assessing whether there was a meaningful process of give-and-take between the parties, leading to an agreement that reflected the interests of both employers and employees. The Commission found that there were significant procedural shortcomings in the negotiation process, including limited employee representation and inadequate engagement by the employer. Consequently, the agreement did not satisfy the statutory requirement for a genuine negotiation process. The Commission concluded that the application for approval should be dismissed as the agreement did not meet the legislative criteria for genuine agreement.

The Fair Work Commission held that the proposed enterprise agreement did not pass the 'genuine agreement' test. The failure to comply with section 180(3) of the Fair Work Act 2009, which mandates a genuine negotiation process, led to the rejection of the application. The Commission emphasised that meaningful negotiation and representation were essential for any enterprise agreement to be considered legitimate under the Act. The decision underscores the importance of adhering to procedural requirements to ensure that agreements reflect the true interests of all parties involved.

The Fair Work Commission dismissed the application for approval of the proposed enterprise agreement. This decision highlights the necessity for genuine and substantive negotiation processes in the formation of enterprise agreements. Employers must ensure compliance with statutory requirements to avoid similar outcomes in future negotiations.

Orders