An ‘access period’ Case Study – S & D Logistics Pty Ltd

In a recent and notable case, the Fair Work Commission scrutinised the Enterprise Agreement process between S & D Logistics Pty Ltd and its employees, represented by the Australian Meat Industry Employees Union (AMIEU). This case highlights the complexities and at times nuances in negotiating workplace agreements under the Fair Work Act 2009 (the Act), especially where transitional provisions apply.

The dispute centred on the company’s actions in moving to a vote for its proposed Enterprise Agreement by providing employees with only one day’s notice.

This action raised questions about whether the Commission could be satisfied that the Agreement was genuinely agreed to by the employees, as is required for approval of the Agreement by s186(2)(a) of the Act.

Not surprisingly the Commission found that the giving of only one day’s notice did not comply with the (pre SJBP) requirement of 7 days’ notice under section 180 (3) FWA.[1]

Notably, the failure was not considered a minor procedural or technical error. Rather the Commission determined that  it was a significant error, which deprived them of a full opportunity to participate in the bargaining process.

This is just one of a number of recent FWC decisions which stress the importance of the access period.  In this case, the commission said that genuine participation involves more than the act of voting. It involves ample time for employees to confer, debate, and influence one another’s views, ensuring a more democratic and representative outcome.

As businesses navigate the evolving landscape of workplace relations, this case serves as a critical reminder of the legal and procedural safeguards designed to protect the integrity of the bargaining process, and how rushing to a vote could undermine the hard work involved to get to that point.

[1] The genuine agreement test is outlined at s188 of the Act, however, the previous version of the test applied in this case due to a transitional provision in the recent “Secure Jobs, Better Pay” amendment. The implication of the test being applied in its previous form was that the Commission had to be satisfied that the company had taken the previously required pre-approval steps for the purposes of s188(1)(a).