Hedland Launch Service Pty Ltd
[2023] FWCA 1843
•17 JULY 2023
| [2023] FWCA 1843 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Hedland Launch Service Pty Ltd
(AG2023/1650)
HEDLAND LAUNCH AND MUA WA NORTH WEST INSHORE AGREEMENT 2023
| Maritime industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 17 JULY 2023 |
Application for approval of the Hedland Launch and MUA WA North West Inshore Agreement 2023
Hedland Launch Service Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Hedland Launch and MUA WA North West Inshore 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.
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, that commenced operation on 6 June 2023.
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 genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. I note that I allowed an amendment to the Applicant’s Form F17 under s 586 of the Act to reflect that the notification time for the Agreement was 12 May 2020.[1]
There were a number of casuals who were included in the voting cohort. This raised the concern that the Agreement may not have been made by a majority of employees who cast a valid vote (see ss 182(1) and 188(1)(b) of the Act, as it was immediately prior to 6 June 2023). At the time of the vote there were 13 employees covered by the proposed Agreement with 8 casting a ‘valid vote’ and 7 employees voting to approve the Agreement.
Out of the 13 employees notified of the vote,[2] 6 employees were casual employees.[3] The employees covered by the Agreement worked two rotating swings of three weeks on and three weeks off.[4] A Swing A rotation commenced on 17 April 2023 and ran until 8 May 2023 and a Swing B rotation commenced on 8 May 2023 and ran until 28 May 2023.[5] The access period for the Agreement was between 11 May 2023 and 17 May 2023.
All casual employees who participated in those swings were given the opportunity to vote on the Agreement. These casual employees had been employed consistently over the 6 months period before May 2023.[6]
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.
It appears that two casual employees who did not attend for work during the access period were not ‘employed’ during the access period, hence making it possible that the Applicant had cast too wide a net when making the request for ‘employees employed at the time’ to vote to approve the Agreement.
However, this is not fatal to the application in circumstances where the inclusion of the two casual employees who did not work during the access period ultimately had no bearing on the outcome of the vote. The Applicant explained that of the total of eight employees how voted, seven employees voted ‘yes’, in favour of the Agreement, and one employee voted ‘no’, not in favour of the Agreement.[7] Of the eight votes, there were three casual employees, all of whom voted ‘yes’.[8] Of the three casual employees, two casual employees were rostered during Swing A and one casual employee was rostered during Swing B.[9] Employees rostered on Swing B were working during the access period and around the time of the vote. However, if the votes of the casual employees from Swing A who were not rostered during the access period were removed from the tally of ‘yes’ votes, there would be a total of five ‘yes’ votes in favour of the Agreement and one ‘no’ vote. It followed that there remained a valid majority of those who were definitely entitled to vote and did actually vote to approve the Agreement. Therefore, the inclusion of two arguably ineligible voters could not have affected the overall result.
In the decision of St John of God Health Care Inc (St John),[10] I traversed the authorities that have considered the phrase ‘employed at that time’. I do not intend to repeat what was said in St John because based on the evidence submitted, I am satisfied that the Agreement was made in accordance with s 182(1).
Although it appears that two of the voting casuals were not engaged to work during the access period and were not therefore employees ‘employed at the time who will be covered by the agreement’ (in this respect see ss 180(2) and 181(1) of the Act, as it was immediately prior to 6 June 2023, and Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd),[11] this did not affect the outcome of the vote.[12]
The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.
In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. It was provided with the opportunity to raise and address any objections it had to the undertakings proffered by the Applicant. No objection was raised.
Subject to the undertakings referred to above, and 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, 188, and 190 of the Act as are relevant to this application for approval have been met.
The Construction, Forestry, Maritime, Mining and Energy Union (the organisation), being a bargaining representative for the Agreement, 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.
The Agreement was approved on 17 July 2023 and, in accordance with s 54, will operate from 24 July 2023. The nominal expiry date of the Agreement is 1 June 2026.
DEPUTY PRESIDENT
Annexure A
[1] Applicant’s submissions dated 21 June 2023, [3.1], [3.5].
[2] Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) question 26.
[3] Ibid question 6.
[4] Witness Statement of Gabby Casey, [6].
[5] Ibid [6].
[6] Ibid [8].
[7] Supplementary Witness Statement of Gabby Casey, [7].
[8] Ibid.
[9] Ibid [9].
[10] [2023] FWCA 87.
[11] [2018] FWCFB 7224.
[12] Re Shop, Distributive and Allied Employees Association (2019) 291 IR 233, 248 [43].
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