Exel Seal Concrete Sealing and Waterproofing Pty Ltd

[2018] FWC 5844

[2018] FWC 5844

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Exel Seal Concrete Sealing and Waterproofing Pty Ltd
(AG2018/1566)

VICE PRESIDENT HATCHER SYDNEY, 24 SEPTEMBER 2018

Introduction and factual background

[1] An application has been made by Exel Seal Concrete Sealing and Waterproofing Pty Ltd (Exel Seal) for approval of the Exel Seal Concrete Sealing and Waterproofing Pty Ltd Enterprise Agreement 2018 (Agreement) pursuant to s 185 of the Fair Work Act 2009 (FW Act). This decision concerns whether Exel Seal complied with s 180(3) of the FW Act such as to permit the Agreement to be approved.

[2] 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.

[3] 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).

[4] 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.

[5] 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.

[6] 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.”

[7] 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.

[8] The Form F17 statutory declaration made by Alexander William Dempsey on 19 April 2018 that was filed together with the application for approval of the Agreement states (at [2.8]) that voting for the agreement commenced on 9 April 2018. The access period therefore consisted of the seven clear calendar days of 2 to 8 April 2018. Compliance with s 180(3) required Exel Seal 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 2 April 2018 (immediately after midnight on 1 April 2018). However, Mr Dempsey’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?”, states the following: “Employees were notified in person on the 2/4/2018 that a vote would occur at 9/61 Frankston Gardens Drive, Carrum Downs on the 9/4/2018 and would be by show of hands.” This would appear to mean that employees were not advised of the time, place and method of the vote until after the access period had begun.

[9] This apparent difficulty was identified in email correspondence from the Commission to Exel Seal dated 19 July 2018, and Exel Seal was invited to consider whether it wished to proceed with its application. In its correspondence in response dated 2 August 2018 Exel Seal relevantly stated “We would like to proceed with the application”. The Commission sent further email correspondence on 8 August 2018 to Exel Seal which stated (omitting formal parts):

“You have previously been advised in an email sent to you by the Commission on 19 July 2018 that there is an apparent difficulty in respect of compliance with the requirement in section 180(3) of the Fair Work Act 2009 that employees be notified of the time, place and method of the vote by the start of the 7 day access period (access period issue).

We note that you have provided an initial response to the above mentioned email. Can you please advise whether you would like to provide any further response, make any further submission or call any evidence in relation to the access period issue. If so, could you please advise whether you would like to provide your response, submission or evidence in writing or at a hearing. If you do not wish to provide any further response, make any further submission or call any evidence, the Vice President will determine whether the application should be dismissed in relation to the access period issue based upon the material already before him.”

[10] No substantive response was received to this email correspondence. On 30 August 2018 further email correspondence was sent to Exel Seal which relevantly stated:

“…With reference to the below correspondence sent on 8 August 2018, we confirm that we do require a response by 5.00pm on Wednesday 5 September 2018. If no response is received, the Vice President will proceed on the basis that you do not wish to make any further submissions or provide any further evidence in this matter, and the application will be determined on the basis of the material previously provided to the Commission.”

[11] Having received no response, on 10 September 2018 the Commission sent a further email to Exel Seal stating:

“We note that we have not received a response to the below correspondence dated 30 August 2018.

In the absence of any further communication we confirm that the Vice President will determine the matter on the material before him.”

[12] Accordingly I will proceed to determine the matter based upon the relevant material in the statutory declaration of Mr Dempsey, which has earlier been set out.

Consideration

[13] There is no evidence that Exel Seal took any step at all to inform relevant employees of the time, place and method of the vote to approve the Agreement by the start of the access period, which commenced at the beginning of the calendar day 2 April 2018. It is not open in that circumstance to find that Exel Seal took the reasonable steps required by s 180(3).

[14] I find that Exel Seal did not comply with s 180(3), and accordingly I cannot be satisfied under s 186(2)(a) that the Agreement was genuinely agreed by the employees covered by it having regard to s 188(a)(i). The application for approval of the Agreement must therefore be dismissed. I note that it would be open to Exel Seal to undertake again the pre-approval steps required in s 180 and request relevant employees to vote again to approve the proposed agreement pursuant to s 181. If it takes this course, Exel Seal can then make a fresh application for approval of the agreement.

VICE PRESIDENT

 1   [2018] FWCFB 2732

 2   Acts Interpretation Act 1901 (Cth)

 3   [2010] FWA 3171

 4   [2014] FWC 4169

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