DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Monja Holdings Pty Ltd
(AG2018/2088)

VICE PRESIDENT HATCHER

SYDNEY, 4 SEPTEMBER 2018

Introduction and factual background

[1] An application has been made by Monja Pty Ltd (Monja) for approval of the Monja Holdings Pty Ltd Enterprise Agreement 2018 (Monja Agreement) pursuant to s 185 of the Fair Work Act 2009 (FW Act). This decision concerns whether Monja complied with s 180(3) of the FW Act such as to permit the Monja 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 Craig Brindson on 16 May 2018 that was filed together with the application for approval of the Monja Agreement states (at [2.8]) that voting for the agreement commenced on 15 May 2018. The access period therefore consisted of the seven clear calendar days of 8 to 14 May 2018. Compliance with s 180(3) required Monja to take all reasonable steps to inform relevant employees of the time, place and method of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Monja Holdings Pty Ltd [2018] FWC 5569
Case: [2018] FWC 5569
Decision Date: 4 SEPTEMBER 2018

CaseChat Overview and Summary

Monja Holdings Pty Ltd applied for the approval of an enterprise agreement under the Fair Work Act 2009. The application was made to the Fair Work Commission, which had to determine whether the employer had complied with the Act's requirement to notify employees of the time, place, and method of voting on the proposed agreement by the beginning of the access period. The access period is defined as the seven-day period ending immediately before the start of the voting process. The Commission had to decide whether Monja had taken all reasonable steps to comply with the notification requirement and, if not, whether there were any grounds to approve the agreement despite the non-compliance.

The legal issues before the court were whether Monja had taken all reasonable steps to comply with the notification requirement under s 180(3) of the Fair Work Act and, if not, whether the Commission had the discretion to approve the agreement under s 577 of the Act. Monja argued that it had taken reasonable steps based on the information available at the time, and that the Commission should exercise its discretion to approve the agreement. The Commission had to consider whether Monja's understanding of the law was reasonable and whether it could depart from the proper interpretation of the Act in the interests of natural justice.

The court found that Monja had not taken any steps to notify employees of the time, place, and method of the vote by the start of the access period. The court rejected Monja's argument that it had taken reasonable steps based on its understanding of the law, as there had been no step taken at all. The court also found that the Commission did not have the discretion to approve the agreement despite the non-compliance, as it would involve the Commission exceeding its jurisdiction. The court concluded that Monja had not complied with the notification requirement and, accordingly, could not be satisfied that the agreement was genuinely agreed by the employees. The application for approval of the agreement was dismissed.

The Fair Work Commission dismissed the application for approval of the Monja Holdings Pty Ltd Enterprise Agreement 2018. Monja was not satisfied that it had complied with the requirement to notify employees of the time, place, and method of voting on the proposed agreement by the beginning of the access period. The Commission found that Monja had not taken any steps to notify employees of the vote by the start of the access period, and that it could not depart from the proper interpretation of the Act in the interests of natural justice. The agreement could not be approved as it was not genuinely agreed by the employees. Monja was open to undertake again the pre-approval steps required in s 180 and request relevant employees to vote again to approve the proposed agreement pursuant to s 181. If it took this course, it could then make a fresh application for approval of the agreement.

Orders