Marubeni-Itochu Tubulars Oceania Pty Ltd
[2018] FWC 5566
•4 SEPTEMBER 2018
| [2018] FWC 5566 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Marubeni-Itochu Tubulars Oceania Pty Ltd
(AG2018/1617)
VICE PRESIDENT HATCHER | SYDNEY, 4 SEPTEMBER 2018 |
Introduction and factual background
[1] An application has been made by Marubeni-Itochu Tubulars Oceania Pty Ltd (MITO) for approval of the marubeni-Itochu Tubulars Oceania Pty Ltd Employee Collective Agreement 2014 (Agreement) pursuant to s 185 of the Fair Work Act 2009 (FW Act). This decision concerns whether MITO complied with section 180(3) of the FW Act such as to permit the Agreement to be approved.
[2] Section 180(3) of the FW 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 Hakim Messoussa on 23 April 2018 that was filed together with the application for approval of the Agreement states (at [2.8]) that voting for the agreement commenced on 16 April 2018. The access period therefore consisted of the seven clear calendar days of 9 to 15 April 2018. Compliance with s 180(3) required MITO 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 9 April 2018 (immediately after midnight on 8 April 2018). However Mr Messoussa’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?”, states the following: “Notified employees by email on the 9th of April 2018 that the vote would commence via email from the morning of the 16th of April 2018 to close of business on the 18th of April”. This would appear to 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 MITO dated 19 July 2018, MITO was invited to consider whether it wished to proceed with its application. In its correspondence in response dated 19 July 2018, MITO relevantly stated (omitting formal parts):
“We would like to continue with the application please.
I have attached a printout of the Collective Agreement timeline which calculator from the FWC website which clearly states the dates for the process.
Enter the date that your Access Period will start: Access Period must start on 9/4/18
We opened the access period on 9/4/18 (7:39am)
Enter the date when voting will conclude: This date must be on or after 16/4/18
We commenced the vote on 16/4/18 (8:40am) as per the FWC calculator and vote was concluded 5:00pm WST on 18/4/18”.
[10] Attached to MITO’s correspondence 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 confirms the information stated in MITO’s correspondence.
[11] On 3 August an email was sent to MITO from the Commission which invited MITO to make any further response or submissions, or to call any evidence in relation to the access period issue. In response to this email, MITO provide further written submissions on 6 August 2018, which relevantly stated:
“As mentioned in my previous email I made use of the Fair Work Calculator and entered in the 9th of April, 2018 when the access period would start and input the 18th of April that voting would conclude (the advice it stated was that the date must be on or after the 16th of April). Using that date we commenced the vote on the 16th and concluded it on the 18th of April, and of the 38 eligible voters we had 27 employees vote in favour of the new Enterprise Agreement, no votes against the Agreement.
We believe that the reason we had no votes against the agreement is because first and foremost the Agreement is better than our current Agreement. We also travelled around the country and spoke to all staff about the changes to the current agreement and the implications of that to them, as well as addressing any questions they may have. Finally we had been working on this document since mid-2017 and then making amendments when we went through the consultation with employee representatives so are confident that the final document we submitted to Fair Work Australia would be confidently passed.
I feel that, although the access period was unintentionally breached, it would be harsh to deny the approval of the Enterprise Agreement due to that fact that all staff were in agreeance to it, and it will bring more benefits to them.
I ask that, in light of the above, you make a fair and reasonable decision in regards to our application.
For your consideration I have attached our presentation, an email I sent out on the 4th of April with the attached Collective Agreement for staff, and minutes from our fortnightly forum…”
[12] The attached email dated 4 April 2018 distributed a copy of the proposed agreement to employees, and relevantly stated:
“On Monday I will send out a notice regarding the vote which will be from the 16th to the 18th of April.”
Consideration
[13] It is clear that MITO took no step at all to inform relevant employees of the date, 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 9 April 2018. MITO’s submissions of 6 August 2018 concede that “…the access period was unintentionally breached…”, which I take to be a concession that MITO did not comply with s 180(3). For the reasons earlier explained, in that circumstance the Agreement cannot be approved. 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. The fact that this may have harsh consequences, as submitted by MITO, is not a relevant consideration.
[14] I note the submission by MITO concerning the reliance on the Commission’s date calculator. The date calculator was in fact correct in identifying the date for the start of the access period as being 9 April 2018 where the voting process was to commence on 16 April 2018. MITO appears to have assumed, incorrectly, that this meant that it could notify employees of the time, place and method of the vote during the course of 9 April 2018. The correct position was explained in two other documents on the Commission’s website at the time, 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. These documents reflected the legal position which, as earlier explained, has been set out in Commission decisions since 2010.
[15] 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).
[16] I find that MITO 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 MITO to undertake the pre-approval steps required in s 180 again and request relevant employees to vote again to approve the proposed agreement pursuant to s 181. If MITO takes this course, it can then make a fresh application for approval of the agreement.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR700084>
1 [2018] FWCFB 2732
2 Acts Interpretation Act 1901 (Cth)
3 [2010] FWA 3171
4 [2014] FWC 4169
0
3
0