ACM Processing Pty Ltd
[2022] FWC 1969
•26 JULY 2022
| [2022] FWC 1969 |
| FAIR WORK COMMISSION |
| STATEMENT & DIRECTIONS |
Fair Work Act 2009
s.185—Enterprise agreement
ACM Processing Pty Ltd
(AG2022/2100)
ACM PROCESSING PTY LTD (GIRGARRE SITE) ENTERPRISE AGREEMENT 2022
| Food, beverages and tobacco manufacturing industry | |
| COMMISSIONER P RYAN | SYDNEY, 26 JULY 2022 |
Application for approval of the ACM Processing Pty Ltd (Girgarre Site) Enterprise Agreement 2022
ACM Processing Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the ACM Processing Pty Ltd (Girgarre Site) Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
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 raises some 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 set out by the AMWU in the Form F18.
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 confirmed in a conference before the Commission, that employees who would be absent or on leave during the voting period were provided with a ballot paper and envelope. Those employees were able to cast their vote, place it in a sealed envelope and those votes were subsequently counted following the conclusion of the voting period.
It is unclear how many employees cast a vote in this manner and how far in advance of the commencement of the voting process.
The voting process starts immediately following the ending of the 7-day period known as the access period.[1]
In Australian Municipal, Administrative, Clerical and Services Union v TAB Agents Association (SA Branch) Inc.[2], 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).
As stated above it is unclear how many employees voted prior to the start of the voting process, and when they cast their vote.
Therefore, it is unclear whether the Employer has complied with the statutory pre-approval steps, and to the extent that one or more employees voted prior to the start of the voting process, whether that constitutes a minor procedural or technical error.[3]
Directions
The parties are directed as follows:
1. By 4:00pm on Monday 1 August 2022, the Employer is to file in the Commission and serve on all bargaining representatives, a statutory declaration setting out the number of persons, if any, that voted prior to the start of the voting process by completing a ballot paper and providing it to the Employer in a sealed envelope, and the date/s those employees were permitted to cast that vote.
2. By 4:00pm on Monday 1 August 2022, the Employer is to file in the Commission, and serve on all bargaining representatives, any witness statements, submissions, or other documentary material that it relies on in relation to whether the access period and voting process were compliant with the Act.
3. By 4:00pm on Monday 8 August 2022, any bargaining representative that wishes to respond is to file in the Commission and serve on the Employer and all other bargaining representatives any witness statements, submissions, or other documentary material in response.
4. By 4:00pm on Monday 15 August 2022, the Employer is to file in the Commission and serve on the Employer and all other bargaining representatives any witness statements, submissions, or other documentary material in reply.
5. The matter will be listed for hearing at 10:00am on Wednesday 17 August 2022 by Microsoft Teams Video.
COMMISSIONER
[1] See s.180 of the Act.
[2] [2015] FWCFB 3545.
[3] See s.188(2) of the Act and Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.
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