Reserve Support Services Pty Limited T/A Reserve Support Services

[2018] FWC 7287

[2018] FWC 7287

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Reserve Support Services Pty Limited T/A Reserve Support Services
(AG2018/3244)

COMMISSIONER LEE MELBOURNE, 29 NOVEMBER 2018

Application for approval of the Reserve Support Services Pty Ltd Enterprise Agreement 2018.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 20 November 2018. An application has been made for approval of an enterprise agreement known as the Reserve Support Services Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Reserve Support Services Pty Limited T/A Reserve Support Services (the Applicant). The Agreement is a single enterprise agreement. The application was dismissed at the hearing for the reasons below.

[2] I am not satisfied that the Agreement has been genuinely agreed to within the meaning of section 188 of the Act by the employees covered by the Agreement for the purposes of section 186(2) of the Act, and that is because the Applicant has not complied with section 180(3) of the Act.  The Applicant has not complied with section 180(3) of the Act because, according to the Form F17 statutory declaration filed, employees were notified on Thursday, 31 May 2018 by email correspondence advising the vote was to occur on, Thursday 7 June 2018 by reply email, and that is not a seven clear day period.  The decision in Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd 1 (CBI)made it clear that the requirement is for seven clear days, and that did not occur in this case.

[3] I have considered the submissions that have been made by the Applicant’s representatives.  Those were, firstly (not necessarily in this order) that the Explanatory Memorandum to the Fair Work Bill 2018 (the Explanatory Memorandum) makes clear that the purpose of section 180(3) of the Act is to ensure relevant employees were informed at least seven days prior to the vote for the Agreement about how and when the vote will occur.  On the basis, I have been invited to conclude that the Full Bench in CBI was wrong and not follow it.  I decline to do so.  The Full Bench in CBI reached their determination as to what the meaning of section 180(3) was, based on a clear construction, applying what I consider to be a standard approach to statutory construction, including a close consideration of what the actual words in the legislation are.  The Explanatory Memorandum is not the legislation, and I see no basis to depart from the decision of the Full Bench in CBI.

[4] As to the argument put during the hearing and in paragraph 17(b) of the Applicant’s submissions that the employees had knowledge of the voting methods prior to the commencement of the access period on 31 May 2018, it appears this submission is based on the fact that there was a previous agreement lodged, which was not approved, and that the employees therefore had some prior knowledge.  I reject that argument.  It is clear, and it was confirmed, that the answer to question 2.5 in the Form F17 statutory declaration made clear that employees were not notified until Thursday, 31 May 2018 about the voting for this particular agreement, and that is the relevant consideration.  They may well have been told about a voting method and other matters about a previous agreement, but that was about a previous agreement, not about this agreement, and further, they certainly were not told prior to 31 May 2018, on the evidence that I have before me, about the time, place and method of the vote on this occasion.

[5] As to the application of the date calculator that was operated by the Fair Work Commission and at the time generated a time period that was required of seven days, but not seven clear days, I have considerable sympathy for the Applicant in terms of using that resource.  However, I agree with the decision of Deputy President Masson in Civica BPO Pty Ltd, 2 where he found in analogous circumstances that:

“[40]… Incorrect advice obtained on the meaning of a provision of the Act, whether via legal opinion or where based on information obtained via an on-line tool on the Commission’s website, cannot displace or override the statutory requirements as determined by relevant decisions of the Commission or courts.”

…

[42] The statutory requirement is clear. Civica BPO [the Applicant] is required to have taken all reasonable steps to provide notice to employees to be covered by the Agreement pursuant to s 180(3) of the Act prior to the commencement of the “access period”…” 3

[6] CBI has made clear that the access period is to be construed as seven clear calendar days, and for that reason, in that case, the Deputy President found he was unable to approve the Agreement, and I agree with his approach and reasoning in that decision and apply it here.

[7] The Applicant’s representatives are right to suggest that there should be some consideration of whether or not an undertaking could satisfy my concern pursuant to section 190.  The undertaking proffered is to provide statutory declarations from employees as to their state of knowledge of matters so as to satisfy me there was genuine agreement.  That is not so much an undertaking as opposed to an indication that further evidence might be provided that, essentially, employees understood the Agreement.  There is no utility in that because firstly it is an action, not an undertaking and secondly I cannot think of any undertaking, and nor has been one suggested, that would overcome what is a mandatory requirement that the Applicant must undertake in order to satisfy section 180(3), and so it is not an undertaking that is acceptable to the Fair Work Commission.  There is no basis upon which I can see a means by which this Agreement can be approved for those reasons.

[8] In conclusion, for the above reasons, I am not satisfied the Agreement was genuinely agreed to within the meaning of section 188 of the Act by the employees covered by the Agreement for the purposes of section 186(2) of the Act, because the Applicant has not complied with section 180(3) of the Act.  For those reasons, I cannot approve the Agreement, and the application to approve the Agreement is dismissed. 

COMMISSIONER

Appearances:

S Lock and D Chen on behalf of the Applicant

Hearing details:

2018

Melbourne (by Telephone):

20 November.

Final written submissions:

2 November 2018

Printed by authority of the Commonwealth Government Printer

<PR702723>

 1   Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd [2018] FWCFB 2732

 2   Civica BPO Pty Ltd [2018] FWC 4376

 3   Civica BPO Pty Ltd [2018] FWC 4376 at [40] and [42]