Fischer’s Cleaning Pty Ltd t/a Steamatic

[2018] FWC 5581

[2018] FWC 5581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fischer’s Cleaning Pty Ltd t/a Steamatic
(AG2018/2660)

VICE PRESIDENT HATCHER SYDNEY, 5 SEPTEMBER 2018

Introduction and factual background

[1] An application has been made by Fischer’s Cleaning Pty Ltd t/a Steamatic (Steamatic) for approval of an enterprise agreement known as the Fischer’s Cleaning Pty Ltd Enterprise Agreement 2018 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). This decision specifically concerns the issue of compliance with s 180(3) of the Act in order to permit the Agreement to be approved.

[2] 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.

[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 Sally Miller on 14 June 2018 that accompanied the application for approval of the Agreement stated (at [2.8]) that voting for the agreement commenced on 13 June 2018. The access period therefore consisted of the seven clear calendar days from 6 June 2018 to 12 June 2018 inclusive. Compliance with s 180(3) required Steamatic 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 6 June 2018 (immediately after midnight on 5 June 2018). Ms Miller’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: “An email was sent to all employees work and personal emails on 06/06/18 to advise them of the date and the voting method. All were advised to contact their representative, manager or myself if they were not going to be present for the vote as an anonymous electronic vote could be done”. If correct, this would 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 Steamatic sent on 19 July 2018, and Steamatic was invited to consider whether it wished to proceed with its application.

On 20 July 2018 Steamatic provided a response to the above email which stated (omitting formal parts):

“Please find attached the calculation that we performed on the FW website which stated that we were within the required dates for voting. Voting, the calculator and the lodgement of our agreement was prior to the decision.

On this premise, we would like to proceed with our application and as the voting was performed over two days, starting on the 13/6/18 and finishing on the 14/6/18 whereby the 14/6/18 would be within the new timeframes.”

[10] Attached to Steamatic’s email was a printout from the “Single enterprise date calculator” on the Commission’s website with the relevant dates for the pre-approval steps for the Agreement entered. It shows that, once 13 June 2018 had been entered as the date when voting would commence, the calculator stated: “The access period must start on 06/06/2018”. The calculator does not identify the date by which compliance with s 180(3) is necessary.

[11] Steamatic subsequently declined the opportunity to call further evidence or make further submission at a formal hearing of its application, and indicated that it was content to rely upon the submissions contained in its email of 20 July 2018.

Consideration

[12] The material before me makes it plain that Steamatic did not take any step 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 6 June 2018.

[13] Steamatic’s email of 20 July 2018 makes three points, with which I will deal in turn. First it refers to the date calculator on the Commission’s website which it accessed prior to the vote upon the Agreement and which it says “…stated that we were within the required dates for voting”. However the date calculator did in fact correctly identify the date upon which the access period began, which was as earlier stated 6 June 2018. The date calculator did not state that the notification of the time, place and method of the vote could occur on that day. It should perhaps have made clear that this notification had to have been made by the start of the calendar day of 6 June 2018 (that is, in practical terms, on or before 5 June 2018). Other information on the Commission’s website at the relevant time and before the CBI decision, namely the “Enterprise Bargaining Benchbook” and the “Making a Single Enterprise Agreement - Step by step guide to making a Single Enterprise Agreement that is not a greenfields agreement” document, did explain the correct position. Accordingly it cannot be accepted that Steamatic arrived at an incorrect understanding of the legal requirement in s 180(3) because of the Commission’s date calculator. But even if it did, this does not take the matter any further. As earlier explained, compliance with s 180(3) is a pre-requisite for approval of an enterprise agreement. I do not consider that it is open to find, where there has been a failure to take any step at all to notify employees of the time, place and method of the vote by the start of the access period because of an incorrect understanding of the law, that this constitutes the taking of all reasonable steps in compliance with s 180(3). The Commission simply does not have a discretion under the FW Act to approve an agreement where there has been non-compliance with s 180(3), even where the failure to comply is technical in nature or accidental and every other approval requirement is satisfied.

[14] Second, the fact that the voting process occurred before the CBI decision was issued is not relevant. As earlier stated, the CBI decision confirmed the longstanding position established in earlier decisions of the Commission/FWA since 2010, and that position was explained in documents appearing on the Commission’s website at the relevant time. In any event, even if the CBI decision did determine that s 180(4) had not previously been interpreted and applied correctly, that would not provide a legal basis to now ignore what is and always has been the proper interpretation of s 180(4).

[15] Third, Steamatic places some reliance on the fact that its voting process ran over two days, 13 and 14 June 2018. That does not resolve the difficulty, because the access period is referable to the commencement of the voting process. There is no doubt that in this case the voting process commenced on 13 June 2018.

[16] I find that Steamatic 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 Steamatic 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, Steamatic 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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