1
Fair Work Act 2009
s.604 - Appeal of decisions
Appeal by Charles Darwin University
(C2023/800)
JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT MASSON
SYDNEY, 27 MARCH 2023
Appeal against decision [2023] FWC 233 of Commissioner Platt at Adelaide on 25 January
2023 in matter number AG2022/5025
[1] Charles Darwin University (University) has lodged an appeal, for which permission is
required, against a decision of Commissioner Platt issued on 25 January 20231 in which he
dismissed the University’s application for approval of the Charles Darwin University and
Union Enterprise Agreement 2022 (Agreement). The appeal was filed on 16 February 2023,
one day beyond the time prescribed by r 56(2)(a) of the Fair Work Commission Rules 2013
(Cth) and, accordingly, an extension of time is required under r 56(2)(c).
[2] After hearing the appeal on 24 March 2023, we determined the appeal ex tempore by
making the following orders:
(1) Time to lodge the appeal is extended until 16 February 2023.
(2) Permission to appeal is granted.
(3) The appeal is upheld and the decision under appeal is quashed.
(4) Matter AG2022/5025 is remitted to Commissioner Platt for final determination.
[3] The reasons for our decision are set out below.
[4] Section 186(2)(a) of the Fair Work Act 2009 (Cth) (FW Act) provides that one of the
criteria for the approval of an enterprise agreement that is not a greenfields agreement is that
the agreement has been ‘genuinely agreed to’ by the employees covered by the agreement.
Section 188(1)(b) of the FW Act provides that one of the requisite elements of genuine
agreement is that the relevant enterprise agreement was made in accordance with s 182(1) or
(2), as applicable. In the case of the Agreement here, s 182(1) is the applicable provision
because the Agreement is a single-enterprise agreement that is not a greenfields agreement.
Section 182(1) provides:
182 When an enterprise agreement is made
[2023] FWCFB 65
REASONS FOR DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc233.pdf
[2023] FWCFB 65
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Single-enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each employer, that will be covered by a
proposed single-enterprise agreement that is not a greenfields agreement have been
asked to approve the agreement under subsection 181(1), the agreement is made when
a majority of those employees who cast a valid vote approve the agreement.
[5] Section 181(1), which is referred to in the above provision, provides that an employer
that will be covered by a proposed enterprise agreement may request the employees ‘employed
at the time’ who will be covered by the agreement to approve the agreement by voting for it.
[6] In paragraph [6] of his decision, the Commissioner set out the information in the
University’s Form F17 declaration relevant to compliance with s 182(1). In summary, the
declaration averred that, at the time of the vote on the Agreement, 1802 employees of the
University were identified who were employed and would be covered by the Agreement, of
which 1065 cast a vote in the ballot and 664 employees voted in favour of the Agreement. The
Commissioner then said:
[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.
[7] The Commissioner’s conclusion in [9] above was apparently based on an understanding
that the effect of the Full Bench decision in Kmart Australia Ltd v RFFWUI & Ors2 (Kmart)
was that, in order for a casual employee to be entitled to vote upon an enterprise agreement,
the casual employee must have performed work for the employer during the ‘access period’
(defined in s 180(4) to mean the 7-day period ending immediately before the start of the voting
process referred to in s 181(1)).3
[8] The Commissioner next recorded that he had received further submissions for the
University concerning the breakdown of the 556 casual employees on the ‘voting roll’.4 The
Commissioner rejected a submission advanced by the University that casual employees
engaged on ‘fixed-term contracts’ were entitled to vote notwithstanding they had not performed
work during the access period.5 The Commissioner accepted that the three employees who had
a ‘traditional fixed-term contract in addition to their casual contract’ might be eligible to vote,
but this did not change the overall outcome, nor did the inclusion of two duplicate entries in the
voter roll.6 The Commissioner then concluded:
[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
[2023] FWCFB 65
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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).
[9] The Commissioner dismissed the application for approval of the Agreement on this
basis.
[10] The University’s notice of appeal, as amended, contained three appeal grounds. Ground
2 was not pressed. Ground 3 of the appeal is as follows:
3. At [15] of the Decision Below, the Commissioner erroneously calculated the majority
of eligible yes votes, and erroneously concluded that a majority of eligible voters did
not approve the agreement.
Particulars
A. At [9] and [15] of the Decision Below, the Commissioner concluded that there
were 151 casual employees who were provided access to the ballot but were
ineligible to vote.
B. On making that finding, the Commissioner should have (but did not) discount
those 151 casual employees from the pool of eligible participants (1065 – see
[6] of the Decision Below). This makes 914 eligible participants.
C. On making that finding, the Commissioner should have (but did not) discount
those 151 casual employees from the pool of yes votes (664 – see [6] of the
Decision Below). This makes 513 yes votes.
D. 513 yes votes from 914 eligible participants constitutes a majority (exceeded
by 56 eligible voters).
[11] We consider that appeal ground 3 is self-evidently correct. Assuming for present
purposes that the Commissioner was correct in determining that those casual employees who
did not perform work during the access period were not entitled to vote, the theoretical worst-
case scenario against the University’s position is that 151 casual employees were allowed to
vote who were not entitled to vote and that all 151 cast a vote in favour of approval of the
Agreement. If this occurred, there would still be a clear majority in favour of approval of the
Agreement as a matter of mathematics, as particularised in appeal ground 3 above. Neither the
Community and Public Sector Union (CPSU) nor the National Tertiary Education Industry
Union (NTEU), which opposed the University’s appeal, contested the validity of this
proposition.
[12] The Commissioner therefore erred when he concluded in paragraph [15] of his decision
that ‘[t]he removal of those votes would result in a valid majority not being achieved.’ Because
this clear error constituted the sole basis for the dismissal of the University’s application for
approval of the Agreement, we consider it is appropriate to grant an extension of time to lodge
the appeal, grant permission to appeal, uphold the appeal and quash the Commissioner’s
decision.
[2023] FWCFB 65
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[13] That conclusion makes it unnecessary for us to determine Ground 1 of the University’s
appeal, which contends that the Commissioner ‘erroneously misconstrued the Full Bench’s
ratio’ in the Kmart decision. We simply observe that the issue dealt with by the Full Bench in
Kmart was the identification of the ‘time’ referred to in the expression ‘employed at the time’
in s 181(1). The Full Bench determined that the ‘time’ referred to was the whole of the access
period, so that the ‘roll’ of voters must effectively close at the end of the access period.7 The
decision did not deal with question of the circumstances in which a casual employee may be
said to have been employed during the access period.
[14] The CPSU and the NTEU submitted that, should the appeal be upheld, the matter should
be remitted to the Commissioner for final determination since there were other issues
concerning approval of the Agreement which needed to be dealt with. We accept that
submission, which was not contested by the University. Accordingly, the matter is remitted to
the Commissioner for final determination.
PRESIDENT
Appearances:
J Bourke KC with L Howard, of counsel, for the appellant.
K Barlow, for the Community and Public Sector Union.
K McAlpine, for the National Tertiary Education Industry Union.
Hearing details:
2023.
Sydney, in person:
24 March.
Printed by authority of the Commonwealth Government Printer
PR760612
1 [2023] FWC 233
2 [2019] FWCFB 7599, 291 IR 233
3 See [2023] FWC 233 at [4], [9], [12] and [15]
4 Ibid at [10]-[11]
THE FAIR WORK FAI COMMISSION THE
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc233.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7599.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc233.pdf
[2023] FWCFB 65
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5 Ibid at [12]
6 Ibid at [13]
7 [2019] FWCFB 7599, 291 IR 233 at [22]-[37]
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7599.htm
