Marrickville Legal Centre

[2018] FWC 6874

[2018] FWC 6874

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Marrickville Legal Centre
(AG2018/2085)

COMMISSIONER LEE MELBOURNE, 28 NOVEMBER 2018

Application for approval of the Marrickville Legal Centre Enterprise Agreement 2017 - not approved.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 19 October 2018. An application has been made for approval of an enterprise agreement known as the Marrickville Legal Centre Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Marrickville Legal Centre (the Applicant). The Agreement is a single enterprise agreement. The application was dismissed at the hearing for the reasons below.

[2] During a hearing on 19 October 2018 I considered submissions in respect of this particular application and concluded that I was unable to approve the Agreement.  The issue is that I have to be satisfied that the requirements of s.180 of the Act, in particular, in respect to this matter, whether section 180(3) is complied with.

[3] It is apparent on the uncontested submissions that the Applicant sought to have the Agreement approved by employees and notified staff on 1 May 2018 of an intent to have a vote on the proposed enterprise agreement, at a staff meeting on Wednesday, 9 May 2018 at 9.30am.  The meeting would take place in the centre’s meeting room in Marrickville and the voting method would be by secret ballot.  In that context, it had clearly complied with section 180(3) of the Act, in that it advised the time and place at which the vote would occur, and the voting method that would be used.

[4] Although, the rather unique circumstances in this matter are that on Wednesday, 9 May 2018, there was a decision made to not proceed with the vote on that day.  It is apparent on the facts that there was, in that context, not a day on which employees were able to cast a vote.  It was certainly intent to provide them with that opportunity, however, that opportunity was not realised.  I do not cavil with the submissions of the Applicant as to the reasons that this decision was made, but the reality is that there was no opportunity for employees to cast a vote.

[5] On 9 May 2018, aside from telling those staff who did attend the meeting, which was judged to be an insufficient number of staff, the staff who did attend were told that there would be another ballot on 16 May 2018. There were also two emails sent out on 9 May 2018, one of which replicated the email of 1 May 2018. However, one email stated that the next staff meeting would be on Wednesday, 16 May 2018 at 4:00pm. This email was sent at 2:22pm.  There was a further email which referred to the earlier email which was sent at 2:28pm, only six minutes later, stating employees would have been sent another notice of voting asking employees to attend a vote next Wednesday, 16 May at 4:00pm.  The email included the text “please make sure that you are in attendance for the vote. If you are unable to attend, please reply to my email appointing a proxy”.

[6] At the hearing, it was made clear in submissions that the proxy process was one where employees were able to advise by email the appointment of another person to vote on their behalf in the way that appointing a proxy would normally operate. However, the reality was that no employee could cast a vote until 16 May 2018.  It is apparent in all of the circumstances that the time at which an employee was first able to cast a valid vote to approve the Agreement was 16 May 2018, consistent with the construction of the “voting process” referred to in subsection 181(1) in Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc. 1 referred to in paragraph 6 of the Applicant’s (very well crafted) submissions. That means that was when the voting process began.  Accordingly, there was a requirement under s.180(3) of the Act for the Applicant to take all reasonable steps to notify the relevant employees of the time and place at which the vote would occur and the voting method that would be used, by the start of the access period for the Agreement.  The access period is the seven day period ending immediately before the start of the voting process and the decision in Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd,2 (CBI Decision) which was referred to during the hearing, makes clear that in the circumstances of this case, that this would have been on 8 May 2018.

[7] Therefore, it is apparent that the steps that were taken to notify employees of the time and place at which the vote would occur and the voting method that would be used, which are quite clearly reasonable steps, were not reasonable steps that were taken within the mandated period in ss.180(3) and (4) of the Act.  For that reason, as s.180(3) of the Act has not been complied with I cannot be satisfied pursuant to s.186(2)(a) that the Agreement has been genuinely agreed to by the employees covered by it, within the meaning of the Act. Therefore, the Agreement cannot be approved.

[8] The central submission of the Applicant is that because of the unique circumstances in this matter that the employees were able to cast a valid vote on 9 May 2018 and in that context the notification, being the reasonable steps that were taken on 1 May 2018 to notify employees was consistent with the CBI Decision.  Even if I am wrong and if as the Applicant submits, the employees were able to cast a valid vote on 9 May 2018, and the access period commenced seven days before that, I am then left to rely on the 1 May 2018 notice, sent 11.56am, as evidence of the reasonable steps to notify the relevant employees of the time and place at which the vote would occur and the voting method that would be used.  The difficulty arises then that the notice on 1 May 2018 said that the vote would take place on 9 May 2018.  The vote did not take place on 9 May 2018, so it is wrong.

[9] The second problem is the notice does not refer to a proxy system of voting which was part of the process that occurred on 16 May 2018, and so in that sense it is wrong, or at least deficient, and in any case it is notifying employees about a vote to occur on a specific date.  It did not occur on that specific date, it did in fact occur on another date.  For all those reasons, even accepting the arguments put by the Applicant I could not accept that the Applicant has taken reasonable steps to notify, even if there was an ability to cast a vote on 9 May 2018.

[10] Regrettably in these matters, there is at the present time no flexibility for the Fair Work Commission to consider some of the broader contextual considerations that the Applicant has raised around the negotiations for the Agreement.  The statutory provisions must be met.  If they are not met, the Agreement cannot be approved and that is the situation in this matter.  Of course, subject to satisfying the other pre-approval requirements, the Applicant is in a position to be able to recommence the voting process, having regard to the observations I have made about being sure to have satisfied the requirements in s.180(5) of the Act, having regard to the One Key decisions.  3

COMMISSIONER

Appearances:

A van Gent for the Applicant

Hearing details:

2018

Melbourne (by Video-Link):

19 October.

Final written submissions:

18 October 2018

Printed by authority of the Commonwealth Government Printer

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 1   Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc[2015] FWCFB 3545

 2   Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd [2018] FWCFB 5843

 3   Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 and One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77