Fair Work Act 2009

s.604 - Appeal of decisions

Construction, Forestry, Mining and Energy Union

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) has lodged an appeal, for which permission to appeal is required, against a decision issued by Commissioner Gregory on 17 January 2017[1] (Decision) to approve the Australian Mining Supplies Pty Ltd Enterprise Agreement 2016 (Agreement). The Commissioner's reasons in the Decision for approving the Agreement were brief. Relevantly, he found as follows:

"[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met."

[2] The CFMEU's notice of appeal contained ten grounds of appeal. For reasons which will become apparent it is only necessary for us to deal with appeal ground 5, which in substance contended that the Commissioner erred in being satisfied that the employer to which the Agreement applied, Australian Mining Supplies Company Pty Ltd (AMSC), had taken the pre-approval steps set out in s.180(3) of the Fair Work Act 2009 (FW Act).

[3] Sections 186 and 187 of the FW Act set out the requirements for approval of an enterprise agreement by the Commission. One of those requirements is that in s.186(2)(a), which provides:

(a) if the agreement is not a greenfields agreement-the agreement has been genuinely agreed to by the employees covered by the agreement; ...

[4] It is not in issue that the Agreement is not a greenfields agreement, so that the s.186(2)(a) approval requirements were applicable. Section 188 sets out when an enterprise agreement has been "genuinely agreed" for the purpose of s.186(2)(a). It provides:

188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);

(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

[5] The effect of s.188(a)(i) is to make compliance with the "pre-approval steps" in the identified subsections an element of the requirement in s.186(2)(a) that the agreement be genuinely agreed to by employees. Section 180(3) 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;

[6] The "relevant employees" are defined in s.180(2)(a) to be the employees employed at the time who will be covered by the agreement. The "access period" referred to is defined in s.180(4):

(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).

[7] The voting process referred to in s.181(1) is the vote of the employees employed at the time who will be covered by the agreement to approve the agreement.

[8] In summary, the effect of these provisions is that, in order for an enterprise agreement to be capable of approval by the Commission, the employer must take "all reasonable steps" to notify the employees employed at the time who will be covered by the agreement of the time and place at which the vote to approve the agreement will occur and the voting method which will be used by the start of the period of seven days before the voting process commences.

[9] The CFMEU contended that the Commissioner could not have been satisfied that this requirement had been complied with, because the only relevant material before him positively demonstrated that it had not been complied with. In this respect it pointed to the statutory declaration made by Mr Shayne Finn on 10 November 2016 which was lodged by AMSC in support of its application for approval of the Agreement. That declaration stated (at [2.8]) that voting for the Agreement commenced on 27 October 2016, and (at [2.5]) that employees were notified of the date and place at which the vote was to occur and the voting method to be used on "October 25th by email copy of email attached". The email was not in fact attached. The CFMEU submitted that the statutory declaration demonstrated that the advice required by s.180(3) was not provided to employees until five days after the start of the access period, and there was nothing else before the Commissioner to contradict this.

[10] In its appeal submissions, AMSC explained that:

• the three relevant employees had originally been advised, by way of a telephone hookup that occurred at 2.30 pm on 11 October 2016, that "a vote by show of hands will be carried out on Friday 21st October", as demonstrated by the minutes of that discussion (a copy of which was supplied to us);

• a difficulty arose in terms of the three employees being unable to attend to vote on 21 October 2016;

• on 25 October 2016 at 9.09am, an email was sent to the three employees stating, among other things, that "The meeting to vote on this agreement will now take place on Thursday 27th October on site" and "If you are unable to attend please send me an email at around 2pm on 27th letting me know if you are voting For or Against the motion that the EA is accepted"; and

• on 27 October 2016 two of the relevant employees attended the worksite and voted by show of hands to approve the Agreement, and one employee sent an email indicating approval of the Agreement.

[11] AMSC submitted, on the basis of the above facts, that it had originally given the advice required by s.180(3) on 11 October 2016, which was more than seven days prior to the commencement of the voting process on 27 October 2016 and that, having changed the voting date because of the unavailability of employees on the original date, it was not required to start a new access period.

[12] To the extent that the factual and documentary elements of AMSC's submissions involved an application to adduce new evidence or information in the appeal, we admit that evidence pursuant to s.607(2). However that material does not alter the position demonstrated by Mr Finn's statutory declaration. It is clear that the relevant employees were not advised of the time (2.00pm on 27 October), the place ("on site") or the method (show of hands or voting by email if unable to attend) of the actual vote which approved the Agreement at least seven days in advance as required by s.180(3). The notification was only two days in advance. AMSC cannot rely on the notice that was given on 11 October 2016 because that did not constitute advice of the time at which the vote to approve the Agreement actually occurred. Additionally, that notice did not in any event advise of the place of the vote.

[13] It is not a case, as AMSC submitted, of it having to commence a new access period. The effect of s.180(4) is that the seven-day access period is automatically calculated backwards from the commencement of the voting process. The vote having actually occurred on 27 October 2016, s.180(4) imposes the unavoidable result that the access period commenced on 20 October 2016. The notification required by s.180(3) was not given until five days afterward.

[14] Section 180(3) requires that the employer take "all reasonable steps" to provide the required notification. The meaning usually assigned to that expression was discussed by the Full Bench in Maritime Union of Australia v Northern Stevedoring Services[2] (albeit in the different context of the use of the expression in a provision of an enterprise agreement):

"[33] The expression "all reasonable steps", and the case authorities concerning that and similar expressions were discussed at length in the decision of the Industrial Relations Commission of NSW in Court Session Bluescope Steel Ltd v The Australian Workers' Union, New South Wales ([2004] NSWIRComm 222; 137 IR 176 at [67]- [71]). The following propositions may be derived from the Court's analysis:

• reasonable steps are what a reasonable man or woman would regard as being reasonable steps in the circumstances which apply;

• the obligation to take "reasonable steps" depends on the particular circumstances existing at the time the obligation arises; and

• a requirement to take all reasonable steps does not extend to all steps that are reasonably open in some narrow or theoretical sense (such as, for example, matters not directly within the particular knowledge or experience of a relevant party).

[34] Additionally in Parland Pty Ltd & Ors v Mariposa Pty Ltd ([1995] TASSC 91; [1995] TASSC 91; (1995) 5 TASR 121 at 133) the Tasmanian Supreme Court said, in relation to a requirement for a party to use its best endeavours to achieve a particular object, that a failure to take a particular step had to be assessed by reference to its materiality to the failure to achieve the relevant object. The Court said:

'In any event quite apart from authority it would seem to me to be an untenable proposition that a party could be held to have failed to satisfy a condition requiring it to use its best endeavours in relation to an application because it failed to take some particular step if in fact the application would have been unsuccessful even had that step been taken.' "

[15] In this case, there is no evidence that AMSC took any steps at all to notify the relevant employees of the time, place and method of the vote which actually occurred prior to the commencement of the access period. It was not submitted by AMSC that what was reasonable in this case was for it to take no steps whatsoever, and there was nothing in the evidence before the Commissioner, or before us, which suggested that there was no reasonable step which AMSC could have taken to provide the requisite notification to employees by the start of the access period.

[16] The unavoidable conclusion is that the pre-approval step in s.180(3) was not complied with, and there was no basis upon which the Commissioner could have been satisfied that the requirement for the genuine agreement of employees in s.186(2)(a) had been met. In those circumstances the Commissioner had no power to approve the Agreement (there being no residual discretion to approve an agreement which did not comply with s.186(2)(a), and no power to waive non-compliance with s.180(3)), and erred in doing so.

[17] There was no issue, and we accept, that the CFMEU had standing to bring this appeal (it being a "person who is aggrieved by a decision" for the purposes of s.604(1)). The appealable error we have identified involved the Commissioner exceeding his jurisdiction. We therefore consider it appropriate to grant permission to appeal. Having done so, there is no alternative but for us to uphold the appeal and quash the Decision. It is also necessary for us to dismiss AMSC's application for approval of the Agreement, there being no undertaking which we could accept under s.190 which would be capable of addressing the concern we have identified about the failure to comply with s.180(3) and thereby satisfy the approval requirement in s.186(2)(a).

[18] We therefore order as follows:

(3) The Decision ( [2017] FWCA 322) is quashed.

(4) The application for approval of the Australian Mining Supplies Pty Ltd Enterprise Agreement 2016 (AG2016/6936) is dismissed.

A. Thomas for the Construction, Forestry, Mining and Energy Union

S. Finn for Australian Mining Supplies Company Pty Ltd

[1] [2017] FWCA 322

[2] [2016] FWCFB 1926

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