ACM Processing Pty Ltd
[2022] FWC 2609
•28 SEPTEMBER 2022
| [2022] FWC 2609 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
ACM Processing Pty Ltd
(AG2022/2100)
| COMMISSIONER P RYAN | SYDNEY, 28 SEPTEMBER 2022 |
Application for approval of the ACM Processing Pty Ltd (Girgarre Site) Enterprise Agreement 2022
Introduction
ACM Processing Pty Ltd (Employer) made an application for approval of an enterprise agreement known as the ACM Processing Pty Ltd (Girgarre Site) Enterprise Agreement 2022 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act).
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was a bargaining representative for the Agreement and has filed a Form F18.
In the Form F18, the AMWU does not oppose the approval of the Agreement but raised a number of issues.
One of the issues raised by the AMWU was that employees were permitted to vote during the access period prior to the time of voting set out in the vote notification.
As part of the initial issues and concerns identified by the Commission, the Employer was invited to provide a response to the issues raised by the AMWU.
In response to the issue that employees may have voted prior to the start of the voting process, the Employer stated in a written response, which was also confirmed in a conference before the Commission, that employees who would be absent or on leave during the voting process were provided with a ballot paper and envelope. Those employees were permitted to complete the voting paper and return it in a sealed envelope. Those votes were subsequently counted following the conclusion of the voting process.
Following the conference, I issued a Statement and Directions[1], which provided a brief summary of the background to the issue, referred to the decision of a Full Bench of the Commission in Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc.[2] (TAB Agents), and directed the parties to file materials relevant to the issue.
In response to the directions, the Employer filed:
·A statutory declaration of Mr Jason Limbrick, the Employer’s chief executive officer (Limbrick Declaration);
·A witness statement of Mr Christopher Boylan, a dairy operative employed by the Employer and employee bargaining representative for the Agreement (Boylan Statement);
·A witness statement of Mr Steven Hall, a dairy operative employed by the Employer and employee bargaining representative for the Agreement (Hall Statement); and
·An outline of submissions.
The AMWU filed correspondence confirming that it would not be filing any evidence or submissions and would not be participating further in the matter other than to observe the proceedings.
There were no other witness statements or materials filed by any other employees or bargaining representatives.
The parties requested that the Commission determine the matter on the papers. I consider it appropriate to do so.
Factual Background
The application for approval was accompanied by the Form F17 – Employer’s declaration in support of an application for approval of an enterprise agreement (Form F17 Declaration).
The notification time for the Agreement – being the time when the Employer agreed to bargain, or initiated bargaining[3], was 1 September 2021.[4]
On 10 September 2021, the Employer issued the Notice of Employee Representational Rights (NERR) to all employees.
The NERR describes the coverage of the Agreement as applying to employees for work being performed within the scope of the “Food Beverage and Tobacco Manufacturing Award 2020 and the Manufacturing and Associated Industries and Occupations Award 2020 C11 to C6 classifications.”
At 4:12pm on 7 June 2022, the Employer sent correspondence by email to the relevant employees advising that the access period will be the next seven days and attaching a document setting out the time, place and method of voting for the Agreement.[5] Relevantly, the voting notification stated:
ACM PROCESSING PTY LTD (GIRGARRE SITE)
ENTERPRISE AGREEMENT 2022
How and When EA Voting June 2022
Notified 7th June 2022
The replacement Enterprise Agreement has reached the point where the employees covered by the terms (of the Agreement) will be asked to vote on their acceptance of the Agreement.
A valid majority of employees who cast a valid vote is required before the Agreement can come into effect.
The method of voting will be by secret ballot.
Ballot forms will be handed to Employees and your name marked off the list.
A locked ballot box will be located in the Male and Female Changerooms.
Voting will open at 6.00am on the Wednesday 15th of June 2022.
Voting will close at 12.00pm on the Thursday 16th of June 2022.
Employees who will be absent due to annual leave or not on shift may opt to complete a ballot slip and place it in a sealed envelope which can then be placed in the locked ballot box.
(emphasis in original)
At 9.27pm on 7 June 2022, the Employer sent correspondence by email to the relevant employees providing a copy of the Agreement, explanatory material, the relevant modern awards, and information relating to the National Employment Standards.[6]
Over the period from 8 June 2022 to 14 June 2022, Mr Hall was tasked with distributing the voting papers to employees in the following work areas: Warehouse; Butter; Coolroom; Cheese; Quality; General Hand; Services; and Maintenance.[7] Mr Boylan was tasked with distributing the voting papers to employees working in the evaporator control room.[8]
Mr Hall stated that of the voting papers he distributed to employees, approximately 13 employees completed the voting paper, placed it in a sealed envelope, and returned it to him as follows:
· 11 employees provided their sealed envelope on 8 June 2022;
· 1 employee provided their sealed envelope on 9 June 2022; and
· 1 employee provided their sealed envelope on 13 June 2022.[9]
Mr Hall stated that at the end of each day during the access period, he placed any sealed envelopes received in the locked suggestions box to ensure they were not misplaced.[10]
Mr Boylan stated that of the voting papers he distributed to employees, approximately 5 employees completed the voting paper, placed it in a sealed envelope, and returned it to him.[11] Mr Boylan does not recall which employees he received these from, or the day/s upon which those envelopes were returned to him.[12]
Mr Boylan stated that he stored any sealed envelopes received in his locker. On 14 June 2022, Mr Boylan became ill and went home early. Prior to leaving the work site, Mr Boylan placed the sealed envelopes he had received, along with a sealed envelope containing his own completed voting paper, in the locked suggestions box.[13]
On each day of the access period, Ms Joanne Saunders, the Employer’s site administrator, collected any sealed envelopes from the locked suggestions box and placed them in a locked storage locker.[14]
On 16 June 2022 and prior to the close of voting, Ms Saunders placed the sealed envelopes in the ballot box.[15]
At approximately 12:15pm on 16 June 2022, the ballot box was unlocked for the counting of the votes.[16]
At approximately 12:25pm on 16 June 2022, the counting of the votes was completed with the result recorded in the Form F17 Declaration as follows:
26.1 At the time of the vote, how many employees were covered by the agreement?
67
26.2 How many of these employees cast a valid vote?
53
26.3 How many of these employees voted to approve the agreement?
32.[17]
In preparing his statement, Mr Hall asked 7 employees (6 of whom returned their voting paper on 8 June and 1 who returned their voting paper on 9 June) whether they would have voted differently if they voted in person between 15 and 16 June 2022, and each of those employees stated that they would not have changed their vote.[18]
Employer’s Submissions
The Employer submitted that it complied with all of the statutory pre-approval steps prescribed in ss.180 and 181 of the FW Act and that the Agreement was genuinely agreed for the purposes of s.188(1).[19]
The Employer made the following submissions[20] with respect to its compliance with each of the procedural or technical requirements:
s.180(2) – provision of written text of the Agreement and any materials incorporated
· All relevant employees were provided with a copy of the proposed agreement and the incorporated materials via email on 7 June 2022. A copy of the documents was also left in the communal breakroom between 7 June 2022 and 15 June 2022.
s.180(3) – notification of time, place and method of vote by the start of access period
· All relevant employees were provided with a copy of the document titled ‘ACM Processing Pty Ltd (Girgarre Site) Enterprise Agreement 2022 How and When EA Voting June 2022’ via email on 7 June 2022, which contained the time, place and method of voting.
· Following the commencement of the access period on 7 June 2022, employees were not able to cast a valid vote until 6:00am on 15 June 2022. However, employees were permitted to complete an absentee vote earlier than the commencement of the voting process but were not able to cast that vote for counting until the voting process commenced.
· Absentee votes that were placed in the lock suggestions box prior to 6:00am on 15 June 2022 were not ‘cast’ until Ms Saunders placed them in the ballot box once the voting period commenced.
s.180 (5)(a) – take all reasonable steps to ensure the terms of the agreement and the effect of those terms are explained
· All relevant employees were provided with copies of the existing enterprise agreement with track changes comparing the terms to the proposed agreement, and a table breaking down the changes to certain terms and their effect on 7 June 2022. A copy of the documents was also left in the communal breakroom between 7 June 2022 and 15 June 2022.
· The Employer also provided a link to an informational video presentation to all employees on 8 June 2022 and held information/Q&A sessions on 10 June 2022.
s.180 (5)(b) – take all reasonable steps to ensure the explanation is provided in an appropriate manner
· The explanation provided was in an appropriate manner taking into account the needs of the relevant employees.
s.181 (2) – the employer must not request that the employees approve the agreement until at least 21 days after the NERR is issued
· The NERR was issued to all relevant employees on 10 September 2021.
s.188 (1)(b) – the agreement must be made in accordance with subsection 182(2) or (2)
· The Agreement was made within the meaning of s.182(1) on 16 June 2022.
In the alternative, the Employer submitted that if the Commission is not satisfied that the Agreement was genuinely agreed to for the purpose of s.188 (1), it will be satisfied that the Agreement was genuinely agreed to for the purpose of s.188(2), taking into consideration decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[21] (Huntsman).
In this respect, the Employer submitted that if it is established that its compliance with any of the statutory pre-approval steps was affected by error, that such error would amount to a minor procedural or technical error having regard to:
· The underlying purpose of s.180(2) is to ensure employees have a reasonable chance to make an informed decision when voting, and employees were kept well informed of the changes to the Agreement and had access to the relevant materials throughout the voting period;[22] and
· The underlying purpose of s.180(3) is to ensure employees able to attend and participate in the voting process (should they choose to do so), that approximately 80% of employees covered by the Agreement voted, and that any non-compliance with s.180(3) was unintentional - that is, the intentional act of permitting employer to provide an absentee vote in advance of the prescribed voting period caused the unintentional act of the voting process commencing early.[23]
The Employer submitted that the relevant employees were not disadvantaged by any error as they had sufficient time and access to materials to make an informed decision when voting and there was a high voter turnout.[24]
Relevant Legislative Provisions
Section 185(1) of the FW Act provides as follows:
185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement
Application for approval
(1)If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.
Sections 186(1) and (2) of the FW Act provides as follows:
186 When the FWC must approve an enterprise agreement—general requirements
Basic rule
(1)If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Requirements relating to the safety net etc.
(2)The FWC must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi‑enterprise agreement:
(i)the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii)no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.
Section 188 of the FW Act provides as follows:
188 When employees have genuinely agreed to an enterprise agreement
(1)An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i)subsections 180(2), (3) and (5) (which deal with pre‑approval steps);
(ii)subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.
(2)An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and
(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.
Section 180 of the FW Act provides as follows:
180 Employees must be given a copy of a proposed enterprise agreement etc.
Pre‑approval requirements
(1)Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.
Employees must be given copy of the agreement etc.
(2)The employer must take all reasonable steps to ensure that:
(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:
(i)the written text of the agreement;
(ii)any other material incorporated by reference in the agreement; or
(b) the relevant employees have access, throughout the access period for
(c) the agreement, to a copy of those materials.
(3)The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:
(a) the time and place at which the vote will occur;
(b) the voting method that will be used.
(4)The access period for a proposed enterprise agreement is the 7‑day period ending immediately before the start of the voting process referred to in subsection 181(1).
Employees must be given copy of disclosure documents etc.
(4A) If an organisation gives the employer a document under section 179 by the end of the fourth day of the access period for the agreement, the employer must take all reasonable steps to ensure that the relevant employees:
(a) are given a copy of the document as soon as practicable after it was given to the employer; or
(b) are given access to a copy of the document as soon as practicable after it was given to the employer and have access to that copy throughout the remainder of the access period for the agreement.
(4B) If the employer is required to prepare a document under section 179A, the employer must take all reasonable steps to ensure that the relevant employees:
(a) are given a copy of the document by the end of the fourth day of the access period for the agreement; or
(b) are given access to a copy of the document by the end of that fourth day and have access to that copy throughout the remainder of the access period for the agreement.
(4C) The employer must not knowingly or recklessly make a false or misleading representation in the document that the relevant employees are given a copy of or access to under subsection (4B).
Terms of the agreement must be explained to employees etc.
(5)The employer must take all reasonable steps to ensure that:
(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and
(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.
(6)Without limiting paragraph (5)(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:
(a) employees from culturally and linguistically diverse backgrounds;
(b) young employees;
(c) employees who did not have a bargaining representative for the agreement.
Section 181(1) of the FW Act provides as follows:
181 Employers may request employees to approve a proposed enterprise agreement
(1)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.
Section 182(1) of the FW Act provides as follows:
182 When an enterprise agreement is made
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.
Consideration
The issue in this matter is whether the absentee votes were ‘cast’ at the time they were given to a bargaining representative in the sealed envelope (or otherwise at a time prior to Ms Saunders depositing them in the ballot box), or whether they were ‘cast’ at the time they were deposited in the ballot box by Ms Saunders during the voting process on 16 June 2022.
If it is the former, it raises the issue as to whether the statutory pre-approval steps were complied with, and if not, whether that non-compliance constituted a minor procedural or technical error.
As set out above, it is the Employer’s submission that the absentee votes were not ‘cast’ until they were deposited in the ballot box on 16 June 2022.
The FW Act requires employees who will be covered by an enterprise agreement to approve the agreement by voting for it by way of a ballot or an electronic method.[25] The agreement is ‘made’ when a majority of those employees who cast a valid vote approve the agreement.[26]
It does not appear that the phrase ‘cast a valid vote’ in the context of the approval of an enterprise agreement under the FW Act has been the subject of arbitral or judicial consideration, and the Employer did not refer to any authorities in support of its submission as to when a vote is ‘cast’.
However, in Evans v Crichton-Browne[27] (Evans), the High Court considered the meaning of “in or in relation to the casting of his vote”, in the context of a parliamentary election. In Evans, the issue before the High Court was whether certain statements published in the media were intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of a vote in contravention of s.161(e) of the Commonwealth Electoral Act 1918.
The High Court concluded that the meaning of the words “casting of his vote” in s.161(e):
“refer to the act of recording or expressing the political judgment which the elector has made rather than to the formation of that judgment. It would no doubt be too narrow to regard the casting of the vote as the mere act of putting the paper in the ballot box – the words would appear to refer to the whole process of obtaining and marking the paper and depositing it in the ballot box.”[28]
(emphasis added)
In R v Gray; Ex Parte Marsh[29], a matter which considered whether there were irregularities in the conduct of an election for office bearers in the Amalgamated Metal Workers Union, the High Court referred to the meaning of the phrase “cast a vote” in Evans and held:
“The definition of “irregularity” in s.4(1) of the Act expressly refers to the “recording of votes”. Those words are no different in meaning from “casting of votes” - they describe the act of obtaining and marking a ballot paper and depositing it with or forwarding it to the officer of the union whose function it is to receive ballot papers. They do not refer to the process of deciding for whom to vote.”[30]
(emphasis added)
In my view, the High Court’s reasoning as to the meaning of ‘cast a vote’ in the context of parliamentary and industrial elections is apposite to my consideration of the meaning of ‘cast a valid vote’ in the context of a vote to approve an enterprise agreement under Part 2-4 of the FW Act and I adopt it.
Applying that reasoning to the matter before me, I find that the marking of the voting paper, placing it in a sealed envelope and returning it to one of the employee bargaining representatives, or directly placing it in the locked suggestions box during the access period, constituted casting a valid vote for the purposes of s.182(1).
To accept the Employer’s submission that the votes were not ‘cast’ until they were deposited in the ballot box on 16 June 2022, would be too narrow and undermines the purpose of the access period, which I deal with further below. Accordingly, the Employer’s submission must be rejected.
This means there were 19 employees who cast a valid vote prior to the start of the voting process set out in the notification distributed to employees on 7 June 2022.
Effect of employees voting prior to the start of the voting process
In TAB Agents, the Full Bench set out an analysis of the legislative provisions relating to the voting process and the consequential effect on the access period where employees cast a vote earlier than the start of the voting process. The Full Bench stated:
[16] Although we accept that in some circumstances the distribution of the voting material to employees before the date on which votes are to be cast might result in the access period ending at some stage other than the day before the publicised date on which voting to approve an agreement begins, we do not accept that this will be the result in every case. Much will depend on the circumstances. Thus, for example, if an employer distributes voting material before the date on which voting is to take place or begin, accepts a vote or votes from employees which have been cast before voting for the agreement is to begin and counts the vote or votes as valid, then it might be said that the voting process began on the day the first of those employees cast a vote. Consequently, the access period will have ended on the day before that date. However, if the employer has advised the employees who will be covered by an agreement of the date, method and place of voting and without more merely distributes ballot papers to employees before the date on which the voting is to commence or take place, in our view it cannot be said that the “voting process” commenced at the time the employer distributed the ballot papers.
[17] This conclusion is consistent with both the text of s.180(4) of the Act and the legislative context in which that section appears. To begin with, an object of Part 2 – 4 of the Act is “to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements to deliver productivity benefits”. [Our underlining]
[18] For the purposes of s. 180(4) of the Act, the “voting process” is the process referred to in s.181(1). The “voting process” described in s.181(1) of the Act is the process that is characterised by an employer that will be covered by a proposed enterprise agreement requesting “the employees employed at that time who will be covered by the agreement to approve the agreement by voting for it”. The request made by the employer is to approve the agreement by voting for it.
[19] Section 182(1) of the Act provides that if employees have been asked to approve an agreement under s.181(1) of the Act, the agreement is made when a majority of those employees who cast a valid vote approve the agreement. Section 181(2) of the Act provides that a request to approve an agreement by voting on it must not be made until at least 21 days after the day on which the last notice of employee representational rights in relation to the agreement was given.
[20] It seems to us, therefore, that an agreement may only be approved through a vote of employees employed at the time of the vote who will be covered by the agreement. The request to approve the agreement and the vote are not separate stages of the voting process. Thus, we consider that the voting process starts when an employee is first able to cast a valid vote to approve the agreement and not at some earlier time when an employer may provide to employees the ballot paper.
(emphasis added).
Applying the above analysis to the circumstances before me, I am satisfied that the voting process starts when an employee is first able to cast a valid vote to approve an agreement. In the circumstances of this case, the voting process started on 8 June 2022 when an employee was able to cast a valid vote to approve the Agreement.
As a consequence, the access period was the period of seven clear days commencing on 1 June 2022.[31] At that time, the relevant employees were not advised of the time, place and method of voting as required by s.180(3). Furthermore, the requirement in s.180(2) was not met in that the relevant employees did not have access, throughout the access period to a copy of the Agreement or any of the incorporated materials.
It follows that I cannot be satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(1) of the FW Act.
Notwithstanding my conclusion in relation to s.188(1), s.188(2) of the FW Act provides a mechanism for the Commission to conclude that an enterprise agreement has been ‘genuinely agreed’ despite ‘minor procedural or technical errors’ made in relation to the requirements of s.188(1)(a) or (b)[32], and where the employees covered by the agreement were not likely to have been disadvantaged by the errors.[33]
I now consider whether the Employer’s non-compliance with s.180(2) and s.180(3) were minor procedural or technical errors, and whether the Agreement was genuinely agreed to by the employees within the meaning of s.188(2).
Minor procedural or technical errors
As set out above, the Employer submits that if it is established that its compliance with any of the statutory pre-approval steps was affected by error, that such error would amount to a minor procedural or technical error having regard to the underlying purpose of the relevant provisions.
In Huntsman, the Full Bench held that the determination of whether an error constitutes a minor error within the meaning of s.188(2) calls for an evaluative judgement having regard to the underlying purpose of the relevant procedural or technical requirement which was not complied with and the relevant circumstances.[34]
The Full Bench accepted that the underlying purpose of the requirement in s.180(2) is to ensure employees have a reasonable chance to make an informed decision when voting and that employees might be disadvantaged in circumstances where they have not had effective access to materials or insufficient time to consider them to make an informed decision when voting.[35]
In the matter before me, the Employer provided a copy of the Agreement and the incorporated materials to the employees on the evening prior to the day the employees were first able to cast a vote to approve the Agreement. It is important to note that on the first day of the voting process and having had access to those materials for 24 hours or less, at least 11 employees cast their vote by returning their sealed envelope to one of the employee bargaining representatives.
While the absentee voting process established by the Employer was well intentioned in that it was attempting provide every employee with the opportunity of participating in the voting process, the practical effect of it was to deprive the employees of the underlying purpose of the access period, that being a sufficient period of time to have access to and consider the Agreement and the incorporated materials, so that they can make an informed decision when voting.
Accordingly, I am not satisfied that the Employer’s failure to comply with the requirement in s.180(2) was a ‘minor’ procedural or technical error.
Even if I found the error was minor, I would not have been satisfied that the employees were not likely to have been disadvantaged. The result of the vote was 32-21 in favour of the Agreement. While I do not place much weight on Mr Hall’s evidence regarding the discussions he had with 7 employees when preparing his statement, taking that evidence at its highest, there remains at least 5 employees who cast their vote on 8 June, and another 7 employees who cast their vote sometime between 8 June and 14 June. The effect of the Employer’s actions was to reduce the time the employees had to access the Agreement and the incorporated materials by such an extent, that some employees would have had very little or no opportunity to read and consider the materials prior to casting their vote. Therefore, I cannot be satisfied that the employees were not likely to have been disadvantaged by the error.[36]
Turning to Employer’s failure to comply with the requirement under s.180(3), I am not satisfied that was a ‘minor’ procedural or technical error.
In Huntsman, the Full Bench accepted that the underlying purpose of s.180(3) is to ensure employees are able to attend and participate in the voting process (should they choose to do so) and that employees might be disadvantaged in circumstances where they are unaware of the voting process occurring, thus preventing them from effectively participating in the voting process.[37]
Whether a particular error is ‘minor’ will depend on the level of the non-compliance and the circumstances. In the context of the requirement in s.180(3), the Full Bench stated:
…Generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a ‘minor error’. So, informing the employees of the matters in s.180(3)(a) and (b) ‘just after the start of the access period’, say 6 days before the start of the voting process, is likely to be a ‘minor error’ in most cases; but in some circumstances it may not be. For example, if it is the first agreement at the enterprise, the bargaining representatives are inexperienced and the employees are predominantly from a non-English speaking background, then it may not be a ‘minor error’.
[80] It may also be the case that what appears to be a more significant instance of non-compliance may still be categorised as a ‘minor error’, depending on the particular circumstances. For example, only informing the employees of the ss.180(3)(a) and (b) matters 4 days before the voting process starts may be a ‘minor error’ where all of the relevant employees actually voted.[38]
The Full Bench went on to determine three matters involving non-compliance with s.180(3) where the employer provided less than seven clear days between the notification of the time, place and method of voting, and the commencement of the vote. In two of the matters, the employer provided 6 clear days’ notice. In the third matter, the employer provided 5 clear days’ notice.
In each matter, the Full Bench accepted the error was minor and that the employees were not likely to have been disadvantaged by the error, taking into account the high voter turnout.[39]
In the matter before me, the consequence of the employees being able to cast their vote from 8 June 2022, was that the employees were given less than 24 hours’ notice between the vote notification and voting commencing. Despite the voting period remaining open until midday on 16 June, and the relatively high voter turnout – approximately 80% of the relevant employees – I am not satisfied the Employer’s failure to comply with the requirement in s.180(3) was a ‘minor error’, nor am I satisfied that the employees were not likely to have been disadvantaged by the error.
Conclusion
For the reasons set out above, I am not satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement.
The application for approval of the Agreement is dismissed.
COMMISSIONER
[1] [2022] FWC 1969.
[2] [2015] FWCFB 3545.
[3] Section 173(2) of the FW Act.
[4] Form F17 Declaration at q.17.
[5] Limbrick Declaration at [4(b)].
[6] Ibid at [4(c)].
[7] Hall Statement at [15]-[17].
[8] Boylan Statement at [16]-[17].
[9] Hall Statement at [17(b)]-[18]; Limbrick Declaration at [12(a)].
[10] Hall Statement at [19].
[11] Boylan Statement at [24]; Limbrick Declaration at [12(b)].
[12] Ibid.
[13] Boylan Statement at [25]-[26].
[14] Limbrick Declaration at [14].
[15] Ibid.
[16] Ibid at [9].
[17] Form F17 Declaration at q.26; See also Limbrick Declaration at [10].
[18] Hall Statement at [18], [25]-[27], and Annexure C.
[19] Employer’s Submissions at [13].
[20] Ibid at [10].
[21] [2019] FWCFB 318.
[22] Employer’s Submissions at [12].
[23] Ibid.
[24] Ibid.
[25] Section 181 of the FW Act.
[26] Section 182(1) of the FW Act.
[27] [1981] HCA 14.
[28] Ibid at [13].
[29] [1985] HCA 67.
[30] Ibid at [21] (per Gibbs CJ).
[31] Huntsman at [78].
[32] Ibid at [1].
[33] S.188(2).
[34] Huntsman at [51] and [74].
[35] Ibid at [74], Table 2.
[36] Ibid at [95].
[37] Ibid.
[38] Ibid at [79]-[80].
[39] Ibid at [165]-[173].
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