1
Fair Work Act 2009
s.185—Enterprise agreement
Charles Darwin University
(AG2022/5025)
COMMISSIONER PLATT ADELAIDE, 25 JANUARY 2023
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.
Consideration
[6] The form F17 filed on behalf of the Applicant advised of the following information:
[2023] FWC 233[Note: An appeal pursuant to s.604 (C2023/800) was
lodged against this decision.]
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 233
2
• 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:
556
Number of casuals with a casual contract end
date greater than 14/11/2022:
531
Number of casuals with a casual contract end
date less than 14/11/2022:
3
Number of casuals with a casual contract end
date within 1 week of 17/11/2022:
18
Number of casuals with a casual contract end
date within the voting period:
3
Number of duplicate entries of casual
employees:
2
Number of casuals who also had a fixed-term
contract:
3
Total number of eligible casuals on the voting
roll (including those with an end date within
1 week of 17/11/2022):
549
Total number of ineligible casuals on the
voting roll (including those with an end date
within 1 week of 17/11/2022:
11
[2023] FWC 233
3
Total number of eligible casuals on the voting
roll (excluding those with an end date within
1 week of 17/11/2022):
531
Total number of ineligible casuals on the
voting roll (excluding those with an end date
within 1 week of 17/11/2022):
29
Total number of casual employees who
worked during the Access and Voting
Periods
405
[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.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
OF THE FAIR WORK COMMISSION THE
[2023] FWC 233
4
PR749999
1 [2019] FWCFB 7599.
2 [2016] FWCFB 2222.
3
[2018] FWCFB 7224.
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb7599.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb2222.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb7224.htm
