Monadelphous Engineering Pty Ltd
[2023] FWCA 586
•24 FEBRUARY 2023
| [2023] FWCA 586 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Monadelphous Engineering Pty Ltd
(AG2023/169)
MONADELPHOUS ENGINEERING PTY LTD CENTRAL QUEENSLAND OPERATIONS ENTERPRISE AGREEMENT 2023
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 24 FEBRUARY 2023 |
Application for approval of the Monadelphous Engineering Pty Ltd Central Queensland Operations Enterprise Agreement 2023
Monadelphous Engineering Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Monadelphous Engineering Pty Ltd Central Queensland Operations 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.
It was observed that the Form F17 Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17) that 189 employees were covered by the Agreement, 172 of those cast a valid vote, 90 voted to approve the Agreement and 82 voted against. Within the cohort were 40 employees who were employed on a casual basis. It therefore proved necessary to ascertain whether those same employees were ‘employed at the time’.
An enterprise agreement requires approval by the Commission in order to have legal effect under the Act. Section 186(1) of the Act establishes that where an application for approval of an enterprise agreement has been made, the Commission must approve the agreement if the requirements set out in ss 186 and 187 are met. One of those approval requirements, set out in s 186(2)(a) and applicable only to non-greenfields agreements, is that the Commission must be satisfied that the agreement has been ‘genuinely agreed to’ by the employees covered by the agreement.
What constitutes genuine agreement by the employees covered by an agreement, as required by s 186(2)(a), is the subject of s 188 which reads, in part:
(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
Section 188(1)(a)(i) establishes as an element of the genuine agreement requirement, the necessity of compliance (subject to s 188(2)) with the ‘pre-approval steps specified in s 180(2), (3) and (5)’.
Section 181, which is referred to in s 180(1) and (4), provides:
181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
(bold my emphasis)
Section 182(1), which is referenced in s 188(1)(b), provides:
182 When an enterprise agreement is made
Single-enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement….
It is accepted the ‘time’ of the request referred to in s 181(1) encompasses the whole of the access period and is to be equated to the ‘time’ referred to in s 180(2)(a).[1]
The phrase ‘employed at the time’ has received consideration by the Federal Court of Australia in National Tertiary Education Industry Union v Swinburne University of Technology (Swinburne)[2] and a limited number of subsequent cases before this Commission.[3] In Swinburne, those words, as used in s 180(2)(a) and s 181(1), were examined in detail.
In St John of God Health Care Inc.[4] and Western Desert Nganampa Walytja Palyantjaku Tjutaku Aboriginal Corporation,[5] I traversed the law in this area at some length. Shortly stated, in Swinburne, Jessup J, with whom White J concurred, observed that the foundational provision is s 172(2), which authorises an employer to make a single enterprise agreement ‘with the employees who are employed at the time the agreement is made…’.[6] Justice Jessup acknowledged that an ‘employee’ is ‘an individual so far as she or he is employed, or usually employed’ by a national system employer (s 13).[7] Justice Jessup stated that reading this definition into s 172(2), the employer may make the agreement with the individuals who are employed, or usually employed, by the employer, but only to the extent that they are actually employed at the time the agreement is made. It was explained that this construction recognises the legislative intention of confining, from within a broad class which include individuals who are usually, but not immediately, so employed, the relevant group to those who are employed at the time the agreement is made.[8]
In McDermott Australia Pty Ltd v Australian Manufacturing Workers’ Union (McDermott),[9] the Full Bench directly addressed the misperception that the legitimate inclusion of a causal employee in a vote required them to be rostered on, or performing or being paid for performing work, at the time of the vote (or during the access period). Instead, the Full Bench considered the totality of the factual matrix against what it referred to as the natural and expected phenomenon of being employed on a casual contract.[10] However, there are misgivings about the correctness of McDermott in light of the decisions of Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd,[11] National Union of Workers v Lovisa Pty Ltd,[12] MTCT Services Pty Ltd (MTCT),[13] and Charles Darwin University.[14]
Having had the opportunity to respond to the issue raised, Mr Tyler Clews, Industrial Relations Manager for the Applicant, gave evidence that the results of the vote were confirmed in a Declaration of Result provided by CiVS (Democratic Outcomes Pty Ltd) on 25 January 2023.[15] Mr Clews stated that he had erroneously informed the Commission on the Form F17 that 40 of the 189 employees provided with the opportunity to vote on the Agreement were casual employees.[16] However, in preparing his witness statement, Mr Clews gave evidence that he could confirm that 38 casual employees were provided with an opportunity to vote on the Agreement[17] and of those 38 casual employees, only five did not work during the access period between 16 January 2023 and 24 January 2023. Direct evidence was provided supporting Mr Clews’ statement that 33 casual employees did work during the access period.[18]
Referring to the decision of MTCT, the Applicant observed that in that case Cirkovic C was asked to determine whether there was a valid majority of votes in favour to approve an enterprise agreement.[19] All of the employees who voted on the proposed enterprise agreement in the MTCT were employed as casual employees. The Commissioner found that whilst some of the employees did not work during the access period, there remained a majority of valid votes.[20]
I am of the view that it is unnecessary for me to determine the validity of the votes of the five casual employees that did not work during the access period. If it were assumed that those same five casual employee invalidly voted in favour of the Agreement, such that their votes should be discounted from both the total votes and the votes in favour of approval, there would nevertheless remain a majority of votes in favour of the approval.
It is evident that 172 employees voted of which 90 voted yes. The inclusion of the five casuals who did not work during the access period could not have affected the overall result. In all of the circumstances, I have found the Agreement was made in accordance with s 182(1).
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 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union and the Australian Workers’ Union (together, the organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement.
The Agreement was approved on 24 February 2023 and, in accordance with s 54, will operate from 3 March 2023. The nominal expiry date of the Agreement is 1 December 2024.
DEPUTY PRESIDENT
[1] Re Shop, Distributive and Allied Employees Association (2019) 291 IR 233, 246 [33].
[2] (2015) 232 FCR 246 (Swinburne).
[3] See, eg, MTCT Services Pty Ltd [2019] FWCA 4634 (MTCT).
[4] [2023] FWCA 87.
[5] [2023] FWCA 284.
[6] Swinburne (n 2) 252 [17].
[7] Ibid.
[8] Ibid.
[9] (2016) 255 IR 146.
[10] Ibid 155 [35].
[11] [2018] FWCFB 7224, [32] – [33].
[12] [2019] FWC 2885, [19].
[13] MTCT (n 3).
[14] [2023] FWC 233.
[15] Witness Statement of Tyler Clews, [10].
[16] Ibid [12].
[17] Ibid [14].
[18] Ibid [15], annexure TC-4.
[19] MTCT (n 3).
[20] Ibid [42].
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