There are a number of timelines under the Fair Work Act 2009 (Cth) (FW Act) to be aware of when making and applying for approval of a single enterprise agreement. If these timelines are not complied with, it is likely that the agreement will not be approved by the Fair Work Commission (FWC). One such timeline relates to the access period. The access period is the 7-day period ending immediately before the start of the voting process for the proposed agreement.
The access period is important because there are obligations on the employer to take all reasonable steps to:
- ensure that it provides employees with access to the proposed agreement (and any other material incorporated by reference in the agreement) during the access period, or ensure that employees have access, throughout the access period, to a copy of those materials; and
- notify the employees by the start of the access period of the time, place and method of the vote.
In the recent decision of Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd [2018] FWCFB 2732 (CBI Appeal Decision) the Full Bench of the FWC held that the employer, CBI Constructors, had not notified its employees by the start of the access period of the time, place and method of vote.
The CBI Appeal Decision was an appeal by the CMFEU from an earlier decision of Deputy President Colman in CBI Constructors Pty Ltd [2017] FWCA 6837 (First CBI Decision) where it was held that the 7 day access period should be calculated as 7 x 24 hour periods, counted back from the time voting actually commenced. Under this interpretation, CBI Constructors had complied with the notification requirement by commencing the vote an hour after the 7 x 24 hours period had passed since it notified employees of the time, place and method of vote.
However, in the CBI Appeal Decision, it was held that the 7 day access period consists of 7 clear calendar days, ending at the end of the calendar day before the day on which the voting process commences.
The CBI Appeal Decision impacted many applications for approval of an enterprise agreement where employers had relied, not only on the authority in the First CBI Decision, but also on the FWC’s single enterprise agreement date calculator on its website.
In Civica BPO Pty Ltd [2018] FWC 4376 the employer, Civica BPO, had used the FWC’s date calculator to plan the notification and voting timetable for its enterprise agreement. At the time, the date calculator suggested that Civica BPO could, having notified employees of the time, place and method of vote on Thursday 8 March 2018, conduct its vote on Thursday 15 March 2018 (not a clear 7 day period).
However in deciding whether or not it could approve the agreement the FWC found itself without the discretion to overcome the procedural failure and bound to follow the CBI Appeal Decision:
…the source of incorrect advice is irrelevant. Incorrect advice obtained on the meaning of a provision of the Act, whether via legal opinion or where based on information obtained via an on-line tool on the Commission’s website, cannot displace or override the statutory requirements as determined by relevant decisions of the Commission or courts.
The FWC has since updated its single agreement date calculator but cautions that it is “not comprehensive, nor a substitute for reading the specific provisions of the Fair Work Act 2009.”
Any employer engaging in enterprise bargaining must be aware of the strict timelines prescribed by the FW Act and the FWC’s lack of discretion to approve an agreement despite any procedural defects. Not being so aware can lead to unwanted costs and delays.
