12 August 2013
Mars Australia Pty Ltd T/A Mars Chocolate Australia v CEPU & AMWU  FWAA 4482
Kirryn West, ASSOCIATE
PCS recently represented one of its clients, Mars Australia Pty Ltd (“Mars”), before Fair Work Australia (“FWA”) in a significant case that concerned an area of the Fair Work Act 2009 (“FW Act”) which has remained largely untested.
The central issue in the case was whether Mars had satisfied the pre-approval steps required by the FW Act in relation to its proposed Enterprise Agreement.
The specific pre-approval step in issue required Mars to provide a 7-day access period ending immediately before the start of the voting process during which Associates have a copy of the Enterprise Agreement (Mars refers to its employees as Associates). A dispute arose between Mars and the Unions in relation to whether the access period provided was in fact a 7-day period.
Mars had engaged in negotiations with its Associates and the Unions in relation to the content of its Enterprise Agreement. Following a lengthy consultation period, Mars decided to put the proposed Enterprise Agreement to vote. Mars works a shift work pattern and provided all Associates with an access period equivalent to 7 x 24 hours.
The Unions argued that the access period provided by Mars was insuf cient on the basis that the day on which the voting process commenced could not be counted when calculating the 7-day access period. In practice, this would require an 8-day access period to be provided and the Unions relied upon a previous decision of FWA where this interpretation of the access period had been adopted.
Vice President Watson of FWA held that the 7-day period referred to in the FW Act does not exclude the day during which the voting process commenced. As such, providing Associates with a 7 x 24 hour period satisfied the definition of the access period under the FW Act.
Fair Work Australia specifically noted that:
“I have considered all of the submissions in the matter and the alternative submissions regarding previous decisions of this Tribunal and its predecessor and the application of the Acts Interpretation Act 1901. In my view in all of the circumstances, given the wording of s.180(4), the seven day period referred to therein does not exclude the day during which the voting process commenced. In other words, the seven day period operates from that point of time being, midday on 22 February 2012 and goes backwards to midday on 15 February 2012.”
Mars was found to have complied with all pre-approval steps required by the FW Act, and its Enterprise Agreement (of which a majority of Associates had voted in favour) was approved.
Key Learnings for Employers
This case shows that the 7-day access period does not include the day on which the voting process commences and, as such, the access period can be a period equivalent to 7 x 24 hours. This is particularly important for workplaces where the majority of workers are shift workers who work a continuous shiftwork roster.