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…

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.

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Details

Case: [2018] FWC 5581
Decision Date: 5 SEPTEMBER 2018

CaseChat Overview and Summary

In this case, Fischer’s Cleaning Pty Ltd t/a Steamatic applied for approval of an enterprise agreement under section 185 of the Fair Work Act 2009. The application was considered by the Fair Work Commission, with Vice President Hatcher presiding. The primary issue was whether Steamatic had taken all reasonable steps to notify relevant employees of the time, place, and method of the vote to approve the agreement by the start of the access period, as required by section 180(3) of the Act. This requirement is crucial for the agreement to be considered genuinely agreed upon by employees, a prerequisite for its approval.

The court examined the statutory declaration provided by Sally Miller of Steamatic, which indicated that employees were informed about the vote on 6 June 2018, which was after the start of the access period. The access period, defined as the seven-day period before the voting process, began on 6 June 2018, and Steamatic's email notification to employees occurred on this date. This timing was contrary to the requirement set forth in section 180(3) that notification must occur by the start of the access period. The Commission's decision in Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd, which was referenced in the case, confirmed that the access period ends immediately before the start of the voting process.

The court found that Steamatic had not complied with section 180(3) by failing to take all reasonable steps to notify employees before the start of the access period. The reliance on the Commission’s date calculator, which correctly identified the start of the access period but did not specify the timing for notification, was not sufficient to excuse the non-compliance. Even though the voting process occurred before the CBI decision and spanned two days, the access period was still tied to the commencement of the voting process, which was on 13 June 2018. As a result, the application for approval of the agreement was dismissed, and it was noted that Steamatic could revisit the pre-approval steps and request another vote.

The final orders of the court were that the application for approval of the enterprise agreement was dismissed, and it was open to Steamatic to undertake the required pre-approval steps again and make a fresh application for approval of the agreement.

Orders