Innovative Asset Solutions Pty Ltd
[2023] FWCA 2308
•25 JULY 2023
| [2023] FWCA 2308 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Innovative Asset Solutions Pty Ltd
(AG2023/2312)
UGL BP KWINANA MAINTENANCE ENTERPRISE AGREEMENT 2023
| Mining industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 25 JULY 2023 |
Application for approval of the UGL BP Kwinana Maintenance Enterprise Agreement 2023
Innovative Asset Solutions Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the UGL BP Kwinana Maintenance Enterprise 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 – the date on which bargaining was initiated by the Applicant by its distribution of the Notice of Employee Representational Rights to employees – was 17 October 2022.[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 39 employees covered by the proposed Agreement with 37 casting a ‘valid vote’ and 28 employees voting to approve the Agreement.[2]
Although the Applicant’s Form F17 declaration stated that 29 of the 39 employees covered by the Agreement at the time of the vote were casual employees, the Applicant submitted that this was a typographical error, and that all 39 employees notified of the vote were casual employees.[3] I allowed an amendment to the Applicant’s Form F17 under s 586 of the Act to correct this error. Twenty-four of the employees were engaged on ongoing project work across the client site working 48 hours each week, Monday to Friday.[4] The other 15 employees were engaged in routine maintenance work and worked 40 hours each week, Monday to Friday.[5] All 39 employees worked during the access period, which was between 28 June 2023 and 5 July 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.
In the decision of St John of God Health Care Inc (St John),[7] 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), with all 39 employees invited to vote on the Agreement having been ‘employed at the time’.
Clause 30.3 of the Agreement appears to require employees to work on public holidays. However, the clause does not provide that the request must be reasonable, as required by s 114(2) of the Act. Clause 30.4 states ‘[t]he Company and an Employee(s) may agree to substitute the nominated public holiday for another day…’. However, s 115(3) of the Act provides for agreement with a singular employee. Whilst these clauses may operate inconsistently with the National Employment Standards in Part 2-2 of the Act, I am satisfied that the issues are resolved by the inclusion of clause 2.3 of the Agreement.
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 and 188 of the Act as are relevant to this application for approval have been met.
The Agreement was approved on 25 July 2023 and, in accordance with s 54, will operate from 1 August 2023. The nominal expiry date of the Agreement is 1 August 2026.
DEPUTY PRESIDENT
[1] Email from Geoff Weaver to Chambers, dated 21 July 2023 (Weaver Email).
[2] Witness Statement of Bryce Holden, [12] (Holden Statement); Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement), question 26 (Form F17).
[3] Form F17 (n 2) question 6.
[4] Holden Statement (n 2) [14].
[5] Ibid.
[6] Weaver Email (n 1).
[7] [2023] FWCA 87.
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