Ssjg Ministries Inc.
[2024] FWCA 3233
•11 SEPTEMBER 2024
| [2024] FWCA 3233 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Ssjg Ministries Inc.
(AG2024/3005)
SSJG MINISTRIES INC. REGISTERED NURSES ENTERPRISE AGREEMENT 2024
| Aged care industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 11 SEPTEMBER 2024 |
Application for approval of the SSJG Ministries Inc. Registered Nurses Enterprise Agreement 2024
SSJG Ministries Inc (the Applicant) has made an application for the approval of an enterprise agreement known as the SSJG Ministries Inc. Registered Nurses Enterprise Agreement 2024 (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.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The notification time for the Agreement under s 173(2) was 14 March 2024 and the Agreement was made on 1 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
The Applicant’s Form F17B[1] indicated that at the time of the vote 18 employees were covered by the Agreement, with 15 casting a valid vote and 15 voting in favour to approve the Agreement.[2] Of the 18 employees, eight were employed on a casual basis.[3] The inclusion of the casual employees in the voting cohort gave rise to a concern that the Agreement may not have been made by a majority of ‘employees employed at the time’ who cast a valid vote.[4]
It is uncontroversial that enterprise agreements were intended by the legislature to be capable of covering casual employees. However, a difficulty that has arisen is ascertaining when a casual employee ought to be regarded as an employee ‘employed at the time’ within the meaning of ss 181(1) and 180(2). In relation to permanent employees, it is of course a relatively straightforward exercise.
In the decision of St John of God Health Care Inc (St John),[5] I traversed the authorities that have considered the phrase ‘employed at the time’. I do not intend to repeat what was said in St John. I simply add that in Woolworths Group Limited[6] (Woolworths) the Full Bench expressed the following at paragraphs [27] and [28]:
[27] In Appeal by Kmart Australia Limited (Kmart), the Full Bench concluded that the ‘time’ at which employees covered by the agreement had to be employed in order to be requested to vote referred to in s 181(1) encompassed the whole of the access period in s 180(4) and was to be equated with the ‘time’ referred to in s 180(2)(a). The Full Bench in Kmart concluded that casual employees who had been engaged for the first time during the voting period had not been ‘employed at the time’ at which employees were requested to vote. The Full Bench did not say that existing casuals who did not work during the access period were ineligible to do so. In our view, Woolworths’ contention that category 2 casuals were eligible to vote has merit. These were not just casuals ‘on the books’ who might or might not have been given further shifts. The fact that these employees had been allocated shifts on the roster is evidence of the actuality and currency of their casual employment during the access period.
[28] However, it is not necessary for us to reach a concluded view on this matter. If ineligible
employees were allowed to participate in a vote on an enterprise agreement, it is necessary to
consider whether their votes could have affected the outcome. In Kmart, it was clear that they
could not have done so…(footnotes omitted).
Voting on the proposed Agreement commenced on Thursday, 25 July 2024, and concluded on Thursday, 1 August 2024. The Applicant was directed to file evidence in support of its contention that all employees included in the vote were ‘employed at the time’. The Applicant filed an excel spreadsheet detailing the employees who had been included in the pay runs for pay periods in the access period. Having reviewed the excel spreadsheet, it appears that at least five of the eight casual employees were employed during the access period.
It follows that I am satisfied that the Agreement was made in accordance with s 182(1). Although it transpired that three voting casuals may not have been engaged to work during the access period and were not therefore employees ‘employed at the time who will be covered by the agreement’ (see ss 180(2) and 181(1) and Noorton[7]), this did not affect the outcome of the vote (see Kmart[8] at [43]). Even if the three casuals voted to approve the Agreement, such that the ‘yes’ vote should be reduced by three, the Agreement was still approved by a majority of employees who cast a valid vote.
A further issue that surfaced concerned the notification of the vote. Recent amendments to Part 2-4 of the Act and the new Fair Work Statement of Principles on Genuine Agreement Instrument 2023 (SoP) allow the Commission some latitude in assessing whether an agreement was genuinely agreed to by employees. The Commission must ‘take into account’ the SoP; however, the principles themselves are generally not categorical in nature. This latitude is to be understood in the context of s 188(5) which allows the Commission, in determining whether it is satisfied that an agreement has been genuinely agreed, to disregard only ‘minor’ procedural or technical errors that are not likely to have disadvantaged employees.
Paragraph 15 of the SoP states that employees should be given a reasonable opportunity to vote on a proposed enterprise agreement in a free and informed manner. This should include:
a)a voting process that ensures the vote of each employee is not disclosed to or ascertainable by the employer, and
b)a method and period of voting that provides all employees entitled to vote with a fair and reasonable opportunity to cast a vote.
Paragraph 16 of the SoP sets out that employees should be informed of the time, place and method for the vote:
a)at least 7 full calendar days before the day on which voting starts (for example, if the voting is to start on 9 May, employees should be informed on or before 1 May), or
b)by such other reasonable time before the day on which voting starts as is agreed with one or more employee organisation(s) acting as bargaining representative(s) for a significant proportion of the employees to be covered by the agreement.
It is uncontroversial that the Applicant did not notify employees of the time, place and method of voting seven full calendar days before the commencement of the voting process.
The Applicant submits that on 16 July 2024 employees were informed that they would be further advised on Thursday, 25 July 2024 as to the ballot process. Subsequently at 8:00AM on Thursday, 25 July 2024, all employees were provided further notice of the voting process and issued with a ballot paper. As noted, the ballot period closed at 10:00AM on Thursday, 1 August 2024. The Applicant submits that while this may not constitute seven full calendar days before the day on which voting starts, the period allowed for the ballot covered a complete week of work for all employees therefore providing ample time for employees to consider their position on the Agreement. The Applicant points out that the 80% vote return rate reinforces its view that all employees wishing to vote had adequate time to do so.
In the circumstances, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the provision of less than seven full calendar days, given the period of the vote and the voter turn-out.
Issues arose that warranted proffering the Applicant the opportunity to address by way of undertakings. The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.
In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.
Pursuant to s 205A(2) of the Act, the workplace delegates’ rights term prescribed by the Nurses Award 2020[9] is taken to be a term of the Agreement.
The Australian Nursing and Midwifery Federation WA Branch (the organisation), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.
The Agreement was approved on 11 September 2024 and, in accordance with s 54, will operate from 18 September 2024. The nominal expiry date of the Agreement is 30 June 2027.
DEPUTY PRESIDENT
Attachment A
[1] Form F17B – Employer’s declaration in support of an application for approval of a single enterprise agreement (other than a greenfields agreement) – notification time on or after 6 June 2023, question 6.
[2] Form F17B – Employer’s declaration in support of an application for approval of a single enterprise agreement (other than a greenfields agreement) – notification time on or after 6 June 2023, question 29.
[3] Form F17B – Employer’s declaration in support of an application for approval of a single enterprise agreement (other than a greenfields agreement) – notification time on or after 6 June 2023, question 6.
[4] (see s 182(1) of the Act).
[5] [2023] FWCA 87.
[6] [2024] FWCFB 314
[7] CFMMEU v Noorton Pty Ltd[2018] FWCFB 7224.
[8] Appeal by Kmart Australia Limited [2019] FWCFB 7599.
[9] MA000034.
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