DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Technicolor Pty Ltd
(AG2018/3156)

VICE PRESIDENT HATCHER

SYDNEY, 24 SEPTEMBER 2018

Introduction and factual background

[1] An application has been made by Technicolor Pty Ltd (Technicolor) for approval of the Technicolor (Alexandria, NSW) – AWU Enterprise Agreement 2018-2021 (Agreement) pursuant to s 185 of the Fair Work Act 2009 (FW Act). This decision concerns whether Technicolor complied with s 180(3) of the FW Act such as to permit the 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 Alastair Jacob on 29 June 2018 that was filed together with the application for approval of the Agreement states (at [2.8]) that voting for the agreement commenced on 27 June 2018. The access period therefore consisted of the seven clear calendar days of 20 to 26 June 2018. Compliance with s 180(3) required Technicolor to take all reasonable steps to inform relevant employees of the time, place and method of the vote by…

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: Technicolor Pty Ltd [2018] FWC 5963
Case: [2018] FWC 5963
Decision Date: 24 SEPTEMBER 2018

CaseChat Overview and Summary

The case of Technicolor Pty Ltd involved an application by Technicolor for approval of an enterprise agreement under section 185 of the Fair Work Act 2009. The application was made for the Technicolor (Alexandria, NSW) – AWU Enterprise Agreement 2018-2021. The primary legal issue before the court was whether Technicolor complied with section 180(3) of the Fair Work Act, which mandates that employers must take all reasonable steps to notify relevant employees of the time, place, and method of voting on an enterprise agreement by the start of the access period. The access period, as defined, is the seven-day period ending immediately before the start of the voting process.

The court considered whether Technicolor had indeed taken all reasonable steps to comply with section 180(3). Technicolor argued that it had acted in good faith and had taken reasonable steps based on advice from the Fair Work Commission’s website, despite the fact that the access period for the vote had already begun. The court found that Technicolor had not taken any steps to inform the employees about the vote details by the start of the access period. Furthermore, the court rejected Technicolor’s arguments that they were unaware of changes in the interpretation of the access period as outlined in the CBI decision and that the Commission’s website provided correct advice. The court concluded that Technicolor did not comply with the statutory requirement and dismissed the application for approval of the enterprise agreement. Technicolor was, however, invited to undertake the pre-approval steps again and make a fresh application.

Orders