Watco WA Transportation Services Pty Ltd

[2023] FWCA 1958

[2023] FWCA 1958

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Watco WA Transportation Services Pty Ltd

(AG2023/1827)

WATCO WA TRANSPORTATION SERVICES PTY LTD ENTERPRISE AGREEMENT 2023

Rail industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 29 JUNE 2023

Application for approval of the Watco WA Transportation Services Pty Ltd Enterprise Agreement 2023

1. Watco WA Transportation Services Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Watco WA Transportation Services Pty Ltd Enterprise Agreement 2023 (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.

1. There were a number of casuals who were included in the voting cohort. This raised the concern that the Agreement may not have been made by a majority of employees who cast a valid vote (see ss 182(1) and 188(1)(b) of the Act). At the time of the vote there were 81 employees covered by the proposed Agreement with 70 casting a ‘valid vote’ and 37 employees voting to approve the Agreement.

1. Out of the 81 employees notified of the vote,[1] 6 employees were casual employees.[2]  However, one of the casual employees did not work during the access period for the Agreement as he was unfit for duties, another was working for their other employer, and the remaining four casual employees worked a shift during the access period.[3] 

1. 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.  

1. It appears that two employees who did not attend for work during the access period were not ‘employed’ during the access period, hence making it possible that the Applicant had cast too wide a net when making the request for ‘employees employed at the time’ to vote to approve the Agreement.

1. However, this is not fatal to the application, in circumstances where the inclusion of the two casual employees who did not work during the access period ultimately had no bearing on the outcome of the vote.  The Applicant explained that there remained a valid majority of those who were definitely entitled to vote and did actually vote to approve the Agreement.  In this respect, the Applicant observed that 70 employees voted on the Agreement, of which 37 voted in support of the Agreement and 33 did not.  Therefore, the inclusion of two arguably ineligible voters could not have affected the overall result.

1. In the decision of St John of God Health Care Inc (St John),[4] I traversed the authorities that have considered the phrase ‘employed at that time’.  I do not intend to repeat what was said in St John because based on the evidence submitted, I am satisfied that the Agreement was made in accordance with s 182(1).

1. Although it appears that two of the voting casuals were not engaged to work during the access period and were not therefore employees ‘employed at the time who will be covered by the agreement’ (in this respect see ss 180(2) and 191(1) and Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd),[5] this did not affect the outcome of the vote.[6]  

1. Whilst there was an issue in respect to the signatory page of the Agreement, I allowed an amendment to the same under s 586, hence resolving the issue. Issues concerning clause 39.2.4 of the Agreement, regarding a team member not refusing to work a public holiday and clause 11.5 in respect of severance pay not being payable where suitable alternative employment is sourced (absent an application made under s 120 of the Act), have been addressed by reliance on clause 3 of the Agreement.

1. On the basis of the material contained in the application and accompanying declarations, 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.

1. The Australian Rail, Tram and Bus Industry 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.

1. The Agreement was approved on 29 June 2023 and, in accordance with s 54, will operate from 6 July 2023.  The nominal expiry date of the Agreement is 29 June 2026.

DEPUTY PRESIDENT

[1] Form F17A – Employer’s declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) – notification time before 6 June 2023, question 26.

[2] Ibid question 6.

[3] Witness Statement of Melissa Mansfield, [4]–[6].

[4] [2023] FWCA 87.

[5] [2018] FWCFB 7224.

[6] Re Shop, Distributive and Allied Employees Association (2019) 291 IR 233, 248 [43].

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