Toll Transport T/A Toll
[2019] FWCFB 3463
•14 JUNE 2019
| [2019] FWCFB 3463 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Toll Transport T/A Toll
(C2019/2299)
VICE PRESIDENT CATANZARITI | SYDNEY, 14 JUNE 2019 |
Appeal against decision [2019] FWCA 1111 of Commissioner Cirkovic at Melbourne on 20 February 2019 in matter number AG2018/5079.
[1] On 9 April 2019, Toll Transport Pty Limited T/A TOLL (Toll) lodged an appeal against a Decision 1 of Commissioner Cirkovic on 20 February 2019. The Decision approved the Toll Global Operational Services Queensland Enterprise Agreement 2017-2020 (Agreement).
[2] Toll’s Notice of Appeal sought a stay of the whole Decision. On 10 April 2019, Vice President Catanzariti ordered that the whole Decision be stayed pending the hearing and determination of this appeal. 2 The Transport Workers’ Union (TWU), a bargaining representative for the Agreement, was advised of the stay Order.
[3] On 17 May 2019, Toll filed its written submissions and requested that, as the matter appears uncontentious, the matter be heard on the papers. The Full Bench acceded to Toll’s request and the matter has been determined on the materials filed.
Toll’s Submissions
[4] The Agreement was made and approved on 20 February 2019.
[5] The Agreement-making process proceeded on the basis that the proposed Agreement would only cover Toll employees based at the Karawatha workshop. Toll employees based at the Karawatha workshop were the only employees who voted on the Agreement.
[6] On around 4 March 2019, Toll’s General Manager – Employee Relations became aware that Toll had employees in other small workshop locations in Queensland who also fell under the scope of the Agreement (additional employees). The additional employees were not intended to be covered by the Agreement and were not involved in the Agreement-making process.
[7] This mistake of fact, namely that the Agreement covered not only Toll employees who worked at the Karawatha workshop but also the additional employees, was not known to Toll or the Fair Work Commission at the time of approval.
[8] Toll submitted that the Agreement was not made properly under the Fair Work Act 2009 (Cth) (the Act) because:
“(a) a Notice of Employee Representational Rights was not issued to all employees employed at the notification time who would be covered by the proposed Agreement, as required by Clause 173(1) of the Act;
(b) not all employees who would be covered by the proposed Agreement were provided with a copy of and access to the proposed Agreement, as required by Clause 180(2) of the Act;
(c) not all employees who would be covered by the proposed Agreement were notified of the time and place of the vote, and the voting method, as required by Clause 180(3) of the Act;
(d) the Appellant [Toll] did not take steps to explain the terms of the proposed Agreement to all employees who would be covered by the proposed Agreement, as required by Clause 180(5) of the Act; and
(e) not all employees who would be covered by the proposed Agreement were given an opportunity to vote on the proposed Agreement, as required by Clause 181 of the Act.” 3
Extension of Time
[9] Toll’s Notice of Appeal was lodged outside of the 21 day required timeframe prescribed by r 56(2) of the Fair Work Commission Rules 2013. In seeking an extension of time, Toll submitted that there was a valid reason for the late lodgement as:
• the Agreement was approved on 20 February 2019;
• the error was discovered on 4 March 2019;
• Toll reviewed a number of options for correction prior to determining, on 3 April 2019, that the error should be addressed by appealing the Decision; and
• During the review period between 4 March 2019 and 3 April 2019, Toll’s General Manager – Employee Relations was on annual leave for two weeks (18 March – 1 April 2019 inclusive)
[10] Rule 56(2)(c) of the Fair Work Commission Rules 2013 confers a discretion on the Fair Work Commission to extend the time within which the appeal is to be lodged. We accept Toll’s submission in relation to the late lodgement of the Notice of Appeal and are satisfied, in accordance with the principles applied in Jobs Australia v Mrs Donna Eland, 4that the interests of justice favour an extension of the time within which the appeal can be lodged.
Permission to Appeal Principles
[11] Toll had lodged an appeal pursuant to s 604 of the Act, for which permission to appeal is required. Toll submitted that it is in the public interest to grant permission to appeal, as permitting an enterprise agreement made with substantial error to continue to operate detracts from the integrity of the scheme and the protections provided to employees under Part 2-4 of the Act. Further, Toll submitted it would maintain the current rates and conditions of employment as set out in the Agreement so as to not disadvantage covered employees.
[12] We agree with Toll that it is in the public interest to grant permission to appeal for enterprise agreements approved on the basis of a mistake of fact. Accordingly, permission to appeal is granted.
Consideration
[13] Toll has submitted that the Agreement was approved on the basis that it would cover only Toll employees who worked in the Karawatha workshop. Toll submitted that it was not until after the Agreement had been approved that it discovered the Agreement would also cover the additional employees. We accept these submissions.
[14] We further accept that the coverage of the Agreement to the additional employees was not known to the Commissioner at the time of the approval. Toll notified the Fair Work Commission of this mistake of fact by way of the Notice of Appeal, filed on 9 April 2019.
[15] In covering the additional employees, we agree with Toll’s further submissions that the Agreement was not made properly under the Act. The additional employees were not:
• issued with a Notice of Representational Rights;
• provided with a copy of and access to the proposed Agreement;
• notified of the time and place of the vote and the voting method;
• included in the steps taken by Toll to explain the terms of the proposed Agreement to all employees who would be covered by the proposed Agreement; and
• given an opportunity to vote on the proposed Agreement.
[16] Accordingly, the Agreement was not made properly under the Act as the requirements set out in ss. 173(1), 180(2), 180(3), 180(5) and 181 were not satisfied.
[17] It would be contrary to the objects of Part 2-4 of the Act 5, particularly the making of enterprise agreements through a simple, flexible and fair framework, to permit the Agreement to continue to operate. The limited powers of the Commission to rectify deficiencies in s 188(2) and elsewhere of the Act would not appropriately address the issues identified above with respect to the Agreement being properly made under the Act. It is critical that the requirements provided for the in Act relating to the approval of enterprise agreements are satisfied.
[18] Further, we emphasise that the Agreement’s coverage of the additional employees was discovered after the approval process had been completed by the Commissioner, and we find no error on her behalf. We note the operation of s 603(3)(b) of the Act, which provides that the Commission must not vary or revoke a decision under s 235 or div 4, 7, 9 or 10 of Part 2-4 of the Act (which deal with enterprise agreements). Accordingly, it was appropriate for Toll to appeal the Decision to address the unintended scope of the Agreement.
Conclusion
[19] For the reasons set out above, we order as follows:
a) An extension of time is granted for the lodging of the notice of appeal;
b) Permission to appeal is granted;
c) The appeal is upheld; and
d) The whole Decision ([2019] FWCA 1111) is quashed.
VICE PRESIDENT
Final written submissions:
Toll’s final written submissions filed 17 May 2019.
Printed by authority of the Commonwealth Government Printer
<PR708475>
1 [2019] FWCA 1111.
2 PR706785.
3 Toll’s written submissions filed 17 May 2019.
4 Jobs Australia v Mrs Donna Eland[2014] FWCFB 4822.
5 Section 171 of the Fair Work Act 2009 (Cth).
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