St John of God Health Care Inc. T/A St John of God Health Care
[2023] FWCA 87
•1 FEBRUARY 2023
| [2023] FWCA 87 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
St John of God Health Care Inc. T/A St John of God Health Care
(AG2022/5437)
ST JOHN OF GOD HEALTH CARE – HSU – HEALTH PROFESSIONALS, ADMINISTRATIVE, CLERICAL AND TECHNICAL ENTERPRISE AGREEMENT 2022
| Health and welfare services | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 1 FEBRUARY 2023 |
Application for approval of the St John of God Health Care – HSU – Health Professionals, Administrative, Clerical and Technical Enterprise Agreement 2022 – ‘employed at the time’ – McDermott - Swinburne
St John of God Health Care Inc. T/A St John of God Health Care (the Applicant) has made an application for the approval of an enterprise agreement known as the St John of God Health Care – HSU – Health Professionals, Administrative, Clerical and Technical Enterprise Agreement 2022 (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 Agreement covered 1806 employees at the time of the vote. Of that cohort, 580 employees are said to have cast a valid vote and 509 employees voted to approve the Agreement.[1] Within the cohort were 336 casual employees. All employees fell within classifications which, in general terms, were those you would be likely to find in hospital settings (excluding nurses). Those covered included, but were not limited to, psychologists, pharmacist technicians, sleep technologists, food service advisors, administrative employees, clinical coders, marketing officers, bookings officers and pastoral practitioners. Schedule B of the Agreement provides comprehensive detail of the position titles and accompanying classification levels.
Because 336 casual employees were included in the cohort, the Applicant was directed to file submissions and any evidence it wished to rely upon in support of its assertion that the cohort of casual employees consisted of employees ‘employed at the time’.
For reasons which follow, 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. My reasons follow.
The casual employees and ‘employed at the time’
The Applicant submits that the casual employees who were requested to approve the Agreement were employed at the time and entitled to vote.
The Applicant explained that it conducts a quarterly audit of its casual workforce to identify casual employees who have not worked in the prior three months.[2] These casuals are then removed from its payroll system in accordance with an explicit term included in the casual contract of employment, which reads:[3]
If you do not work as a casual for more than three months your name may be removed from the register and consequently your employment will cease. If you will be unavailable for a period of time, less than three months, you must advise your Manager to ensure your name is retained on the register.[4]
As noted, the proforma casual employment contracts state that if a casual employee does not work for a period of three months, they will be removed from the employee system.[5] The Applicant submitted that it extended the vote to those casual employees who were active in its employee system, would have expected to have been so and would foreseeably be covered by the Agreement.[6]
Before providing the ballot list to the external ballot provider, the Applicant stated that on 4 December 2022, it conducted a further review and assessed whether casual employees had worked in the prior three months and if they had not worked, they were removed from the ballot list.[7]
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 s 181(1). In relation to permanent employees, it is of course a relatively straightforward exercise.
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)
Sections 182(1) and (2), which are referenced in s 188(1)(b), provide:
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).[8] The Full Bench in Re Shop, Distributive and Allied Employees Association (Kmart) explained why it had preferred this interpretation:
… s 180(1) obliges the employer to comply with the requirements set out in the section, and the evident policy purpose of that obligation and the specific requirements in s 180(2), (3) and (5) is to ensure that before a vote upon a proposed agreement commences, the employer has taken all reasonable steps to ensure that employees have access to a copy of the agreement, have had it explained to them, and have been informed of the time, place and method of the vote. These steps may broadly be characterised as directed at endeavouring to ensure that there is an “informed electorate” which is capable of genuinely agreeing to a proposed enterprise agreement. That statutory purpose would obviously be best achieved if those employees to whom a request may be directed under s 181(1) constitute the same group of employees in relation to whom the requirements of s 180(2), (3) and (5) apply. Conversely, the achievement of that purpose would be undermined if employees to whom these requirements did not apply because they were not employed at the time referred to in s 180(2)(a) could nonetheless be requested to vote to approve a proposed agreement pursuant to s 181(1).[9]
While the Full Bench in Kmart examined at length what was meant by the ‘time’ of the request, as referred to in s 181(1), it did not necessarily address what was meant by the phrase ‘employees employed at the time’. That is, what constitutes being ‘employed’.
The phrase ‘employed at the time’ has received some consideration by the Federal Court of Australia in National Tertiary Education Industry Union v Swinburne University of Technology (Swinburne)[10] and a limited number of subsequent cases before this Commission.[11] In Swinburne, those words, as used in s 180(2)(a) and s 181(1), were examined in detail.
Swinburne concerned an appeal to the Full Court of the Federal Court regarding the decision of the Full Bench of the Commission to approve an enterprise agreement which covered academic, general, and executive staff of the Swinburne University of Technology.
In Swinburne, a large number of sessional or casual employees were included in the voting ballot. This raised the question as to whether those employees were ‘employed at the time’. The National Tertiary Education Industry Union contended that their inclusion would necessarily have included a number of persons who were not ‘employed at the time’. The University’s cohort included all sessional academic staff who had been employed at any time, over a period of 12 months before the s 181 request was made. The Full Bench held the view that s 181(1) both permitted and required the University to address its request to all individuals who were then ‘usually employed’ by it.
However, 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 …’.[12] 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).[13] 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.[14]
Having traced through provisions such as ss 180, 182(1), 181(1), (2) and (3), 172(2), 173(2) and (3), Jessup J stated:
The provisions to which I have referred bespeak the giving of such detailed attention to the rights and obligations of the parties concerned, and to the means by which an agreement is approved and thus made, that it would be, in my view, a distraction to decide issues such as that arising in the present case by reference to the high-level truism that an employee includes an individual who is usually employed by the employer concerned. If a purely grammatical justification is needed for that view, it may be found by treating the words “employed at the time” in s 181(1) as limiting apropos “employees”. Not only is that a satisfying grammatical reading of the whole phrase, it accords strongly with the purpose of this provision, and those associated with it.[15]
Having confirmed that those to whom a request under s 181(1) should be addressed is confined to those who are employed at the time, his Honour observed that the University included in those to whom requests were addressed ostensibly under s 181(1), everyone who had been employed, to any extent, in 2013. His Honour expressed that at the general level, the Commission endorsed that approach because it read the provision as including those who were ‘usually employed’ as being within the expression ‘employees employed at the time’, which, his Honour explained, was a misreading of s 181(1).
Since the judgment in Swinburne, the Full Bench of this Commission has handed down the decision in McDermott Australia Pty Ltd v Australian Manufacturing Workers’ Union (McDermott)[16].
McDermott concerned an appeal of a decision where the application for the approval of an enterprise agreement that covered employees engaged to work offshore on a gas project was dismissed. The agreement in question was said to cover daily hire and casual employees. At first instance, it was found that the request to employees to approve the agreement by voting for it was made to employees who were not ‘employed at the time’.[17] The Commissioner explained:
They were casual employees in the ordinary sense of being daily hire employees. They were not actually engaged in work or being paid at that time. Accordingly, it is apparent on the evidence that the employees who voted for the Agreement were not employed at the time.[18]
On appeal, the Full Bench provided a description of the work on the gas project, noting that the offshore construction work for the project commenced in the second quarter of 2014 and was on-going at the time of the agreement approval application. The Full Bench observed that the first offshore campaign undertaken by the company commenced in September 2014 and spanned over a period of approximately one month.[19] It was followed by a number of additional campaigns of various durations before the vote for the agreement was undertaken.[20] However, no work was being conducted at the time of the vote.[21]
In respect of the voting cohort, 39 casual employees had been engaged by the company for the gas project.[22] Most employees were said to have worked on earlier campaigns for the gas project and all 39 employees had been paid wages to undertake the HSCS training essential for the gas project.[23] The Full Bench noted that prior to the voting process, the number of casual employees available to work on the gas project had been reduced to 36 active employees due to two resignations and one termination.[24] It was the 36 ‘active’ employees who were asked to vote on the agreement.[25]
In reaching its decision to uphold the appeal, the Full Bench observed that all 36 employees who voted for the agreement were on the company’s payroll for the gas project before the vote occurred.[26] The Full Bench observed at paragraph [35]:
The Commissioner was of the view that there was something wrong with the vote occurring while employees were not actually performing or being paid for performing work at the time of the vote. This in our view was incorrect; the status of the 36 casual employees at the time of the vote is a natural and expected phenomenon of being employed on a casual contract as per the Full Bench decision in Smiths Snackfood. In our view it would be inappropriate and counter intuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on to work on the day/s of the vote, or during the 7 day access period. There are obvious implications for voting manipulation adopting this approach. Swinburne is not authority for the proposition that a casual employee is only “employed at the time” they are rostered to work and are being paid. Swinburne eschewed the proposition that employed at the time included “usually employed”. (citations omitted).
In determining whether it was legitimate and necessary for the casual employees to be included in the group of employees asked to approve the agreement, the Full Bench considered payroll records and the evidence of the company’s witness which showed the casuals had accepted on-going employment with the company.[27]
The Full Bench considered other factors including the work cycle of the casual employees, which was 21 days on duty and 21 days off duty,[28] the completion of paid training for the gas project,[29] and the absence of dismissals, resignations or indication that a casual was not available for future work.[30] The Full Bench further considered that the gas project had commenced, and the casual employees had been engaged specifically for the gas project.
Having considered this factual matrix, the Full Bench in McDermott remarked that the facts were unlike those in Swinburne, as the casual employees were employed at the time, and were not in a cohort of ‘likely to be engaged’ or ‘usually employed’.[31]
In Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd (Noorton), the Full Bench considered McDermott and made the following observations:
[32] During the appeal, Noorton referred to the decision in McDermott Pty Ltd v the Australian Workers’ Union and Anor in aid of the Deputy President’s conclusion that the cohort of casual employees who were asked to vote were employed at the time. Whilst we may have some misgivings about the correctness of McDermott, it is unnecessary for us to express a concluded view. The decision is plainly distinguishable on the facts. The critical conclusion in McDermott was that the casual employees “accepted on-going employment” with McDermott as evidenced by the employer’s payroll records and the evidence of Mr McMahon, and as such they were employed by McDermott at the time the Agreement was made. Their employment comprehended work within McDermott’s scope of work for the Project. Unlike the facts in Swinburne, the casual employees were employed at the time, they were not in a cohort of “likely to be engaged” or “usually employed.” The reasoning adopted by the Full Bench in McDermott might be said to be more akin to a conclusion that the relevant employees were not “casual employees” at all but rather were “ongoing employees” who had accepted “ongoing employment”.
[33] There was no evidence before the Deputy President that the casual employees who were asked to vote to approve the Agreement accepted ongoing employment with Noorton. As we have already observed, there was no evidence about the nature of the casual employment of the employees or the terms under which these employees were engaged. The decision in McDermott therefore provides no assistance.[32]
In National Union of Workers v Lovisa Pty Ltd (Lovisa), in dealing with a majority support determination, Deputy President Colman made the following comments with respect to McDermott and the observations above in Noorton:
As I said in the first decision, in CFMMEU v Noorten (sic), another Full Bench expressed misgivings about the correctness of McDermott, but found it unnecessary to form a concluded view on the matter, noting that ‘the critical conclusion in McDermott was that the casual employees “accepted on-going employment” with McDermott…and as such they were employed by McDermott at the time the Agreement was made.’ The Full Bench in Noorten (sic) observed that the reasoning adopted by the Full Bench in McDermott could be said to be more of a conclusion that the relevant employees were not casual employees at all, but rather ongoing (permanent) employees. I agree with this observation. But in any event, the present case is distinguishable from McDermott. The circumstances of this case contrast starkly with those in McDermott, as in that case employees would, pursuant to clause 8 of the enterprise agreement, work a cycle of 21 days on duty and 21 days off duty. In this matter there is no evidence of any guarantee of work.[33]
In MTCT Services Pty Ltd (MTCT), consideration was given to whether the voting cohort of casual employees was ‘employed at the time’.[34] The Commissioner outlined the evidence presented in the following terms:
a)there are a cohort of onshore employees who work on a regular 9 day shift structure at the onshore sites (Onshore Employees) and a cohort of employees who work a “2 weeks on/2 weeks off” roster at the offshore locations (Offshore Employees);
b)for both the Onshore Employees and Offshore Employees, payments were made during the period in respect of their employment of all of the 265 employees (including for example the payment of income protection, redundancy fund and long service leave contributions for the off-duty Offshore Employees, even though those employees were not physically “at work”); and
c)to the extent that a number of offshore employees were on their “off-duty swing” or other employees were absent during the voting period or on secondment to ESSO, they nevertheless remained employed at the time, even though they were not necessarily performing work, by way of the totality of the employment relationship having regard to considerations like the nature of the expectation of employment, continuing existence of employees on the Applicant’s books, roster pattern and work cycles as detailed in the Elliott Statement: see the factually analogous circumstances of those employees considered by the Full Bench in McDermott. [35]
The Commissioner in MTCT determined that the facts were not sufficiently analogous to those in McDermott such that the company’s employees should be characterised as ‘ongoing’.[36] Further, the Commissioner considered a series of sample employee contracts. Those employee contracts included a clause which the Commissioner concluded was incongruous with a finding that the casual employees were engaged as ‘ongoing’ because the clause did not guarantee an offer of any pattern or number of casual shifts:
Your first casual engagement under this Contract will commence on the date set out in item 8 of the Schedule (Effective Date). However, as a casual employee, each casual shift that you work is a separate period of employment. There is no guarantee under this Contract that you will be offered any pattern or number of casual shifts, or that you will be offered any casual shifts at all.[37]
The Commissioner found that the employees were not ‘employed at the time’ unless they were engaged on a work shift ‘at the time’.[38]
Turning to the application before me. The voting period for the Agreement commenced on 7 December 2022 and concluded on 14 December 2022, with the access period commencing on 30 November 2022 and concluding on 6 December 2022.
The Applicant provided a spreadsheet identifying those casual employees who were included in the ballot list provided to the voting agent. The Applicant advised that the list had been extracted from its HR Management System (Ascender) on 4 December 2022 and provided to the ballot agent on that same day. According to the Applicant, the ballot list was reviewed prior to providing it to the ballot agent to remove any employee who was a casual and had not worked with the Applicant in the prior three months. As noted, the Applicant explained that casual employees were removed from the casual list in line with its standard casual employment contracts.
The Applicant explained that given the size of its operation, it had two pay cycles. Pay Group One included employees who worked within Geraldton, Subiaco and Midland Hospitals and Pay Group Two included employees working at Bunbury, Mount Lawley and Murdoch Hospitals.[39]
During the period of 29 November to 6 December 2022, the following pay periods were in place:
Pay Group 1 (which covers employees employed at Geraldton, Midland and Subiaco Hospital)
| Start Date of Pay Period | End Date of Pay Period | Pay Day | Last Paid Date/Pay period ending |
| Monday 28/11/22 | Sunday 11/12/22 | Thursday 15/12/22 | 11/12/22 |
Pay Group 2 (which covers employees employed at Bunbury, Group Services, Mount Lawley and Murdoch)
Start Date of Pay Period End Date of Pay Period Pay Day Last Paid Date/Pay period ending Monday 21/11/22 Sunday 4/12/22 Thursday 8/12/22 4/12/22 Monday 5/12/22 Sunday 18/12/22 Thursday 22/12/22 18/12/22
In McDermott, the Full Bench directly addressed the Commissioner’s 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. 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. Clearly, there are misgivings about the correctness of McDermott in light of the decisions of Noorton, Lovisa, MTCT and Charles Darwin University.[40]
The Applicant has established within its operations a structure that maintains a ‘current’ employee list or register of casual employees. The word ‘current’ in this context means that the same employee list is refreshed every three months to ensure that ‘active’ casual employees remain on the register and those that have not worked within the period are removed. The structure is supported by the inclusion in casual employment contracts of a term that informs the employee that their inactivity will see them removed from the register and their employment ceased.
Before embarking on the vote, the Applicant scrutinised the register of casual employees to remove those that had been inactive in the prior three months. It might be suggested that a casual employee was not ‘employed at the time’ because, for example, their last shift or day worked was 10 weeks prior to the access period and vote, notwithstanding having been on the employee register. The question one might ask is whether having one’s name on an employee register within the three months prior to the access period or up to 4 December 2022, notwithstanding having not worked, is sufficient to arrive at a finding that the casual employee was ‘employed at the time’ for the purpose of s 181(1). In the circumstances of this case, I am not persuaded that it is, for the following reasons.
It is true that by the terms of the proforma casual employment contract, all casual employees were provided with access to the ‘St John of God Health Care account’ which provided access to all the Applicant’s major systems and applications. Further, the proforma casual employment contract required the casual employee to set up ‘NetIQ multi-factor authentication’ to access the Applicant’s ‘applications’. Casual employees were required to completed mandatory education via the Applicant’s online ‘Leaning Management System’ and undertake an onsite orientation and induction. The employment contract also provided for the provision of uniforms.
Of course, and as emphasised by the Applicant, the proforma casual employment contracts also provided that if the employee did not work as a casual for more than three months, their name could be removed from the register and their employment ceased, unless the unavailability was already foreshadowed to their manager.
However, included in the pro-forma casual contracts were the following clauses:
Rate of Pay:$27.22 per hour plus 20% casual loading in lieu of paid leave entitlements such as annual leave, personal leave, paid parental leave, with the exception of long service leave where deemed eligible.
Hours:You will be employed on an hourly basis based on operational requirements with no guarantee of continual or additional employment.
It is unsurprising and altogether characteristic of the legal relationship of employment on a casual basis that the casual employee was employed on an hourly basis with no guarantee of continual or additional employment under the proforma contracts. The employment status of a casual employee was succinctly explained in the Full Bench decision of Wayne Shortland v The Smiths Snackfood Co Ltd at paragraph [10]:
As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa…[41]
The proforma casual employment contracts clearly provide that the employee is ‘employed’ on an hourly basis with no guarantee of continual or additional employment.
In WorkPac Pty Ltd v Rossato (Rossato), the High Court stated:
62. To insist upon binding contractual promises as reliable indicators of the true character of the employment relationship is to recognise that it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences. That it is no part of the judicial function to reshape or recast a contractual relationship in order to reflect a quasi‑legislative judgment as to the just settlement of an industrial dispute has been emphatically the case in Australia at the federal level since the Boilermakers Case.
63. To insist that nothing less than binding contractual terms are apt to characterise the legal relationship between employer and employee is also necessary in order to avoid the descent into the obscurantism that would accompany acceptance of an invitation to enforce "something more than an expectation" but less than a contractual obligation. It is no part of the judicial function in relation to the construction of contracts to strain language and legal concepts in order to moderate a perceived unfairness resulting from a disparity in bargaining power between the parties so as to adjust their bargain. It has rightly been said that it is not a legitimate role for a court to force upon the words of the parties' bargain "a meaning which they cannot fairly bear [to] substitute for the bargain actually made one which the court believes could better have been made". Even the recognised doctrines of unconscionability or undue influence do not support such a course; and in any event, neither Mr Rossato, nor any of the interveners, sought to suggest that the doctrines of unconscionability or undue influence had any part to play in the resolution of the present dispute.[42]
The evidence shows that the contractual promise was employment on an hourly basis premised upon operational requirements with no guarantee of continual or additional employment. However, the proforma casual employee contract also reads that if the employee does not work as a causal for more than three months, their name is removed from the register and ‘consequently [their] employment will cease’. Implicit in this latter clause is that whilst on the employee register, the employment remains on foot.
The High Court in Rossato stated that to insist upon binding contractual promises as reliable indicators of the true character of the employment relationship is to recognise that it is the function of the courts to enforce legal obligations. As observed, encountered is a scenario where on the one hand, the proforma casual employee contract speaks to the cessation of employment if the employee has not worked as a casual for more than three months (such that maintenance of an employee’s name on the register indicates employment), on the other it provides for employment on an hourly basis with no guarantee of continual employment. In my view, it is this latter clause that is the binding contractual promise that indicates the true character of the employment relationship. The latter clause sits squarely with the proposition that each occasion that a casual employee works under the contract is viewed as a separate engagement pursuant to a separate contract of employment and as such no casual employee has a continuous period of employment beyond any single engagement.
It was said in Swinburne that those to whom a request under s 181(1) should be addressed are confined to those who are employed at that time. I have found that the casual employees were not ‘employed at the time’ unless they were working a shift ‘at the time’,[43] the ‘time’ being the access period. This approach inevitably disenfranchises those casual employees who did not work a shift in the access period, notwithstanding that those same employees might otherwise have their terms and conditions of employment set by the Agreement. However, in light of the preceding decisions of this Commission and the judgment in Swinburne, such approach appears mandatory.
Of the 336 casuals listed, 282 casual employees, as evinced by the spreadsheets provided by the Applicant, worked in the pay periods ending 4 December 2022, 11 December 2022 or 18 December 2022, which encompassed the access period. This in turn means that 54 casual employees may have worked in the pay periods ending 20 November 2022 or 27 November 2022 or subsequent to the access period but did not work shifts between and including 29 November 2022 and 6 December 2022.
However, given 580 employees voted of which 509 voted yes and 71 voted no, the inclusion of the above 54 casuals 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).
Conclusion
Having already expressed that 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, it is further noted that the model consultation term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.
The Health Services Union (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 1 February 2023 and, in accordance with s 54, will operate from 8 February 2023. The nominal expiry date of the Agreement is 30 March 2024.
DEPUTY PRESIDENT
[1] Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement).
[2] Applicant’s Outline of Submissions dated 10 January 2023, [2] (Applicant’s Submissions).
[3] Ibid [3].
[4] Applicant’s Outline of Submissions dated 19 January 2023, [5] (Applicant’s Further Submissions).
[5] Applicant’s Submissions (n 2) [3].
[6] Ibid [5].
[7] Ibid [4].
[8] (2019) 291 IR 233, 246 [33].
[9] Ibid.
[10] (2015) 232 FCR 246 (Swinburne).
[11] See, eg, MTCT Services Pty Ltd [2019] FWCA 4634 (MTCT).
[12] Swinburne (n 10) 252 [17].
[13] Ibid.
[14] Ibid.
[15] Ibid 254 [26].
[16] (2016) 255 IR 146 (McDermott).
[17] Ibid 153 [21].
[18] McDermott Australia Pty Ltd [2016] FWC 1113, [26].
[19] McDermott (n 16) [23].
[20] Ibid.
[21] Ibid.
[22] Ibid [25].
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Ibid [28].
[27] Ibid [37].
[28] Ibid [35].
[29] Ibid [38].
[30] Ibid.
[31] Ibid.
[32] [2018] FWCFB 7224, [32] – [33].
[33] [2019] FWC 2885, [19].
[34] MTCT (n 11).
[35] Ibid [35].
[36] Ibid [37].
[37] Ibid.
[38] Ibid [39].
[39] Applicant’s Further Submissions (n 4) [6].
[40] [2023] FWC 233.
[41] (2010) 198 IR 237, 240 [10].
[42] (2021) 271 CLR 456, 478–9 [62] – [63].
[43] MTCT (n 11) [39].
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