Technicolor Pty Ltd

[2018] FWC 5963

[2018] FWC 5963

FAIR WORK COMMISSION

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 the start of the access period - that is, by the start of the calendar day 20 June 2018 (immediately after midnight on 19 June 2018). However, Mr Jacob’s statutory declaration, in response to the question (at [2.5)] “When did you notify the relevant employees of the date and place at which the vote was to occur and the voting method to be used?”, states the following: “Employees were advised on the 20/6/2018 that the Agreement vote would take place on 27/6/2018 at 11.45am in the staff lunchroom by way of secret ballot vote.” This would appear to mean that employees were not advised of the time, place and method of the vote until after the access period had begun.

[9] This apparent difficulty was identified in email correspondence from the Commission to Technicolor dated 6 August 2018, and Technicolor was invited to consider whether it wished to proceed with its application. In its correspondence in response dated 7 August 2018, Technicolor relevantly stated:

“Technicolor was unaware of such changes from the CBI decision at the time of the access period and vote. Technicolor checked the FWC website before communicating a vote date, to which read 7 days. When checking the FWC website now, it still states 7 days and is not clear on the current changes from the 21st June. As Technicolor started their 7 day access period a day before the ruling for CBI decision, we feel that our application meets the “genuinely agreed” requirements in ss. 186(2)(a) and 188(a)(i) and would like to proceed with this application.”

[10] On 23 August 2018, in response to correspondence from the Commission seeking further information as to whether Technicolor wished to be heard in relation to the application, Technicolor stated:

“On further review, we wish to be heard in relation to this application. We believe as does the AWU that the agreement was reached in good faith and reasonable steps were taken.”

[11] However, notwithstanding a written invitation to do so in email correspondence from the Commission dated 3 September 2018, Technicolor did not subsequently provide any further submissions or evidence to the Commission. Accordingly I will decide the matter based upon the information contained in Mr Jacob’s statutory declaration, earlier set out, and Technicolor’s submission of 7 August 2018.

Consideration

[12] It is clear that Technicolor took no step at all to inform relevant employees of the time, place and method of the vote to approve the Agreement by the start of the access period, which commenced at the beginning of the calendar day 20 June 2018. I do not consider it is open therefore to find that Technicolor took the reasonable steps required by s 180(3) of the FW Act. Technicolor’s submission that it took all reasonable steps having regard to, first, the fact that its approval process for the Agreement occurred before the CBI decision was issued and, second, advice on the Commission’s website cannot be accepted for the following reasons:

(1) As earlier explained, the CBI decision confirmed rather than altered the longstanding position concerning the interpretation of s 180(4) which had been adopted in decisions of the Commission/FWA dating back to 2010.

(2) As explained in detail in the recent decision in Monja Holdings Pty Ltd, 5 the advice contained on the Commission’s website at all relevant times prior to the CBI decision was in fact correct, or at least not inconsistent with the legal position stated in the CBI decision.

(3) In any event, the Commission does not have a discretion to depart from the proper interpretation of s 180(3) and (4), since to do so would involve the Commission exceeding its jurisdiction.

[13] I find that Technicolor did not comply with s 180(3), and accordingly I cannot be satisfied under s 186(2)(a) that the Agreement was genuinely agreed by the employees covered by it having regard to s 188(a)(i). The application for approval of the Agreement must therefore be dismissed. I note that it would be open to Technicolor 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 takes this course, Technicolor can then make a fresh application for approval of the agreement.

VICE PRESIDENT

 1   [2018] FWCFB 2732

 2   Acts Interpretation Act 1901 (Cth)

 3   [2010] FWA 3171

 4   [2014] FWC 4169

 5   [2018] FWC 5569 at [12]

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