Fair Work Act 2009

s.185 - Enterprise agreement

Application for approval of the Charles Darwin University and Union Enterprise Agreement 2022 - whether genuine agreement - whether casual employees who did not work during the access period were entitled to vote - no genuine agreement - application dismissed.

[1] An application has been made for approval of an enterprise agreement known as the Charles Darwin University and Union Enterprise Agreement 2022 (the proposed agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Charles Darwin University (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 19 December 2022.

[3] On 20 December 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the proposed agreement and invited the Applicant to address these matters including through the provision of an undertaking and submissions. At the conference, the National Tertiary Education Industry Union (NTEIU) raised concerns about whether the agreement had been genuinely agreed to as required by s.188 of the Act. All parties were given until 6 January 2023 to provide submissions on the point.

• [4] After receiving submissions from the parties, a further conference was convened on 18 January 2023. At the conference, I expressed concern to the Applicant that in light of the decision of the Full Bench in Kmart Australia Ltd v RFFWUI & Ors (Kmart)[1], it appeared that the Applicant may have provided an opportunity for employees who were not entitled to vote on the proposed agreement to do so, which raised an issue as to whether the proposed agreement had been genuinely agreed. The Applicant was directed to provide information on the number of casual employees who were employed by the Applicant during the access period, and provide submissions as to whether, in light of Kmart, the agreement had been genuinely agreed.

[5] The Applicant filed written submissions on 19 January 2023. After reviewing the submissions, my Chambers enquired with the parties as to whether they objected to me making my determination on the papers. No party objected to this course.

[6] The form F17 filed on behalf of the Applicant advised of the following information:

• At the time of the vote, 1802 employees were covered by the proposed agreement;

• 1065 employees voted in the ballot for the proposed agreement;

• 664 employees voted in favour of the proposed agreement; and

• 556 casual employees were covered by the proposed agreement.

[7] Based on the voting information supplied, a valid majority would exist when 533 eligible voters voted in favour of approving the proposed agreement. In this ballot, there were seemingly 131 votes in excess of the required threshold.

[8] At the conference conducted on 18 January 2023, Ms Jessica Crews (Senior Employee Relations Consultant of the Applicant) advised of the following:

• 405 casual employees performed work in the access period (7-14 November 2022).

• 556 casual employees were given access to the ballot (15-17 November 2022).

[9] From this information, it appeared that 151 casual employees who were ineligible to vote (as a result of the decision in Kmart) were provided with access to the ballot.

[10] The Applicant sought and was provided with an opportunity to review that information.

[11] The Applicant provided an additional written submission on 20 January 2023. The Applicant provided the following breakdown of the 556 casual employees on the voting roll:

Table 1: Breakdown of Casual Employees on the CDU Voting Roll

Total number of casual employees on the voting roll:

Number of casuals with a casual contract end date greater than 14/11/2022:

Number of casuals with a casual contract end date less than 14/11/2022:

Number of casuals with a casual contract end date within 1 week of 17/11/2022:

Number of casuals with a casual contract end date within the voting period:

Number of casuals who also had a fixed-term contract:

Total number of eligible casuals on the voting roll (including those with an end date within 1 week of 17/11/2022):

Total number of ineligible casuals on the voting roll (including those with an end date within 1 week of 17/11/2022:

Total number of eligible casuals on the voting roll (excluding those with an end date within 1 week of 17/11/2022):

Total number of ineligible casuals on the voting roll (excluding those with an end date within 1 week of 17/11/2022):

Total number of casual employees who worked during the Access and Voting Periods

[12] The Applicant submits that the existence of what appears to be a fixed-term casual contract changes the impact of the decision in Kmart. I disagree. It appears that the Applicant engages casual employees on fixed-term contracts. In my view, this approach does not change the nature of the casual engagement. It does not offer any guarantee of employment. Despite the reference to a fixed term, casual employees continue to be engaged by the hour subject to a minimum engagement with no guarantee of future employment. For this reason, I consider casual employees with a 'fixed term' to be no different to the casual employees described in Kmart.

[13] I accept that the three employees who had a traditional fixed-term contract in addition to their casual contract may be eligible to vote, but this does not change the overall outcome. Nor does the inclusion of two duplicate entries in the voter roll.

• [14] The Applicant referred me to the decisions in in McDermott Australia Pty Ltd v AMWU [2] and CFMMEU v Noorton Pty Ltd.[3] As these decisions pre-date the Kmart decision, they are of little assistance.

[15] On the information provided, it is possible that the ballot included 151 votes (or 146 if the duplicate and fixed term votes are accepted) in support of the proposed agreement that could have been cast by persons ineligible to vote. The removal of those votes would result in a valid majority not being achieved. On that basis, I do not believe that the proposed agreement has been genuinely agreed to within the meaning of s.188(1) of the Act. Whilst it was not raised by the Applicant, in my view this deficiency is not able to be remedied by the application of s.188(2).

[16] As a result of this conclusion, I have not considered the remaining issues with the proposed agreement.

[17] The application for approval of the proposed agreement is dismissed.

[1] [2019] FWCFB 7599.

[2] [2016] FWCFB 2222.

[3] [2018] FWCFB 7224.

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