ALS Water Resources Group Enterprise Agreement 2012 - Objections regarding genuine agreement - Envelopes containing ballots discovered after close of ballot - Requirement for certain ballots to be considered for...
[2012] FWA 7108
•21 AUGUST 2012
[2012] FWA 7108 |
|
INTERIM DECISION |
Fair Work Act 2009
s.185—Enterprise agreementEcowise Australia Pty Ltd
(AG2012/7403)
COMMISSIONER SIMPSON | BRISBANE, 21 AUGUST 2012 |
ALS Water Resources Group Enterprise Agreement 2012 - Objections regarding genuine agreement - Envelopes containing ballots discovered after close of ballot - Requirement for certain ballots to be considered for the purposes of section 186(2)(a).
[1] An application for approval of the ALS Water Resources Group Enterprise Agreement 2012 (the Agreement) was filed on 26 July 2012 by Ecowise Australia Pty Ltd (the Applicant). A Form F18 Declaration of Employee Organisation in relation to an Application for Approval of Enterprise Agreement (Form F18 Declaration) was filed by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) dated 31 July 2012, stating that the AMWU did not support the approval of the Agreement and setting out a range of objections. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) filed a Form F18 Declaration supporting the approval of the Agreement.
[2] The objections raised fall into two broad categories, the first being that because of flaws in the balloting process the agreement had not been genuinely agreed to as required in section 186(2)(a), and the second being objections related to matters concerning the Better Off Overall Test in section 193.
[3] I listed the matter for hearing on 20 August 2012. On 13 August the AMWU filed with Fair Work Australia two statements from Neil Young, a scrutineer for the ballot at the Scoresby site in Victoria along with correspondence requesting that the Applicant provide to Fair Work Australia 31 unopened envelopes which according to Neil Young were reply paid envelopes containing votes that all arrived simultaneously at the Scoresby site on Thursday 2 August 2012, some three weeks after the ballot had closed.
[4] On 17 August 2012 the Applicant filed a statutory declaration from Melinda Newton, who is employed by the Applicant as the Human Resources Team Leader and who also acted as the Returning Officer for the ballot. The statutory declaration included with it a number of attached documents concerning the manner in which the ballot was conducted. The Applicant also filed correspondence in the form of a brief submission responding to the objections raised by the AMWU. Finally the Applicant provided FWA with a copy of an email from Melinda Newton that had been sent on 17 August to Doug Van de Hoef (Corporate Employee Relations Manager) who represented the Applicant at the hearing, and Gary Van Der Geest (Corporate Human Resource Manager) advising that an employee of the Applicant had received advice from Australia Post that the reason for the delay in receiving the 31 reply paid envelopes was due to a failure at an Australia Post Delivery Centre and that Australia Post had admitted that the delay in the mail was their fault. The email said as follows;
“..Liz Officer has heard back today at 12.08pm from Australia Post with their explanation as to why 31 reply paid envelopes were not delivered in a timely manner.
The Delivery Centre received the envelopes and they are meant to complete an Assessment Form (to record the mail). The Centre had run out of Forms so they did not action the mail.
The correct procedure is for the mail to arrive at the Delivery Centre, the form is completed the same day and then the mail despatched the same day or the next day at the latest.
Australia Post has admitted that the delay in the mail was their fault and they have apologised. They have taken corrective action with the Delivery Centre (they have sent them the template of the form for them to print if they run out again).
Please let me know if you require any further information.
Kind Regards
Melinda Newton
Human Resource Team Leader ...........”
[5] On the morning of the hearing on 20 August the Association of Professional Engineers, Scientists and Managers Australia (APESMA) filed a Form F18 opposing the approval of the agreement on similar grounds to those made by the AMWU.
[6] As a preliminary issue at the hearing it was agreed by the parties to deal with the objections going to section 186(2)(a) before dealing with objections concerning the BOOT. Oral submissions were made during the hearing further to the written material already provided. Issues included within the broader objection that the agreement had not been genuinely agreed were as follows;
(a) Uncertainty about where votes cast as postal votes (as compared to employees who voted on site or by email) had been received from. For example a concern was raised that employee who elected to vote by email, (which as I understand from oral submissions was done by scanning and sending to the Returning Officers email address a completed ballot paper that an employee had received by post) could also post the ballot paper to the Returning Officer and there was no mechanism to prevent that vote being counted in addition to the vote by email. Therefore it was argued it was possible to vote twice.
(b) The Returning Officer had counted ballots cast on a daily basis and kept a daily tally rather than waiting until the last day when all votes had been cast.
(c) Votes were received at the Scoresby site on 16 July 2012.
(d) 31 envelopes containing votes were received by mail at the Scoresby site on 2 August 2012, 20 days after the ballot had closed and been declared.
[7] Correspondence to FWA from the Applicant of 17 August advised that the 31 envelopes were not opened and were sealed in a large envelope by the returning officer in the presence of the scrutineers at the Applicant’s Scoresby site. This was confirmed again by the Applicant during the hearing on 20 August. At the conclusion of the hearing I sought and was given an undertaking from the Applicant that it would continue to keep sealed, and in a secure place the 31 unopened envelopes and I advised the parties I would shortly issue a decision concerning the objections that the agreement had not been genuinely agreed.
[8] Section 181 of the Fair Work Act 2009 reads 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. (my emphasis added)
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
[9] Section 182(1) of the Fair Work Act 2009 sets out that voting as described in section 181(1) is the means by which an agreement is made. That section reads 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. (my emphasis added)
…………………………………….
[10] The relevant part of Section 186 for the purpose of this matter reads as follows;
186 When FWA must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) FWA 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 (my emphasis added)
……………………………………
[11] Section 188 defines when employees have genuinely agreed to an enterprise agreement as follows;
188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA 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. (my emphasis added)
[12] The Applicant advised 73% of those eligible to vote exercised a vote. Of the 223 votes cast, 116 were in favour and 107 against.
[13] The Applicant argued the procedural steps followed by it complied with the requirements in the legislation and the administrative failure on the part of Australia Post was beyond its control. In those circumstances the Applicant argued that none of the 31 envelopes should be opened and the Applicant and its employees are entitled to rely upon the voting process and timelines that were communicated at the time.
[14] The Applicant relied on the decision of Commissioner Hampton in Balfour Bakery Pty Ltd Agreement 2011 1and specifically paragraphs 39 and 40 of that decision. That case concerned a circumstance where certain employees did not exercise a vote for a range a reasons including illness and jury duty. The Commissioner found that in the particular circumstances of that case the relevant employees who wanted to vote had an adequate opportunity to obtain a ballot paper and participate in the ballot and as a result it should be accepted there was genuine agreement.2
[15] The circumstances in Balfour are distinguishable from the circumstances in this case where it was stated in the supplementary statement provided by Neil Young and accepted by the Applicant 3that some of the envelopes that arrived at Scoresby on 2 August 2012 were post-marked with dates from the week of 9 July 2012, prior to the close of the ballot on 13 July 2012. Although it is not clear at this stage how many, at least some employees have complied with the voting process in attempting to cast their vote and yet their vote has not been counted. Unlike the circumstances in Balfour where it was found employees who wanted to vote had an adequate opportunity to do so, in this case it appears reasonably clear at least some employees who wanted to vote have, to this point, been denied an opportunity to do so for reasons beyond both their and their employer’s control.
[16] The Applicant also relied on a decision of Deputy President McCarthy in Western Australian Fire Service Certified Agreement 2004 4 and referred specifically to paragraphs 19 and 20 of that decision. That part of Deputy President McCarthy’s decision was in reference to an argument concerning whether the employer in that case had met the requirements of section 170LR(2) of the Workplace Relations Act 1996 which in general terms concerned access to and explanation of an agreement rather than the vote to approve the agreement as dealt with in section 170LR(1) and 170LT(5). On that basis the circumstances in that matter are again distinguishable from this matter.
[17] As already stated it appears accepted that the reason the 31 envelopes were not delivered until 2 August was due to an administrative error on the part of Australia Post. The applicant has advised FWA that Australia Post had admitted as much. There is no evidence to suggest otherwise.
[18] Beyond satisfaction regarding the procedural steps set out in section 188(a), Fair Work Australia must also be satisfied with regard to the test in section 188(b) as described in section 182(1) that a majority of those who cast a valid vote approve the agreement, and also of the wider question in section 188(c) that it is satisfied there are no other reasonable grounds for believing that the agreement has not been genuinely agreed.
[19] I am not yet able to be satisfied with regard to the requirements of either section 188(b) or section 188(c) as the administrative error has caused some votes that have been attempted to be cast in accordance with the established voting process to as yet not be counted. Therefore I am unable to be satisfied at this stage whether or not the agreement has been genuinely agreed to by employees covered by it as required by section 186(2)(a). The matter cannot be settled one way or the other until proper consideration is given to the ballots that have not yet been considered. Putting aside the other objections raised which are set out in paragraph 6(a), (b) and (c) above (which I do not intend to address at this stage) the number of votes so far counted in favour of the agreement is nine more than those against, however there is more than nine envelopes containing votes that employees have attempted to cast in the large sealed envelope. It appears at least some of those votes were cast in compliance with the ballot process.
[20] From the evidence available the envelopes which contain the ballots not yet counted are likely to fall into three categories, those post-marked before the close of the ballot on 13 August, those post-marked after that date and those with no post-mark. The proper course is for the Returning Officer and scrutinisers to now treat those 31 envelopes on the basis that the ballots post-marked before the close of the ballot should be added to the existing count and those post-marked after that date should be excluded. The reason I have decided that envelopes post-marked after the close of the ballot be excluded is that it is clear the votes were cast outside the timelines established for voting and the material provided to FWA satisfies me the Applicant had met the requirements of section 180(3).
[21] There is no evidence before me regarding any explanation as to why some of the envelopes received from Australia Post might have no post-mark as has been suggested. Unless there is some evidence to suggest the envelopes were posted after the ballot closed then my preliminary view is that they should also be counted. The issue concerning the treatment of non post-marked envelopes becomes more critical to the question of whether there can be satisfaction of genuine agreement if their number is sufficient to be determinative of the outcome. If that is the case then it raises a question as to how the positive requirement to be satisfied of genuine agreement as required in section 186(2)(a) can be reached without their inclusion in the vote. The parties should confer on this issue, however if agreement cannot be reached I will allow a further opportunity for parties to be heard on the matter if any further evidence becomes available to indicate any envelopes without a post-mark were posted outside the ballot timelines. If that proves necessary then it will require the Returning Officer and scrutineers to separately record the result of votes cast in the different categories identified above.
[22] Upon the completion of the steps determined here and subject to the outcome I will proceed to determine the balance of objections raised on the papers or by hearing taking into consideration the views of the parties.
COMMISSIONER
Appearances:
D Van de Hoef on behalf Ecowise Australia Pty Ltd
A Donnellan on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Association of Professional Engineers, Scientists and Managers, Australia (APESMA)
Hearing details:
Brisbane
20 August 2012
1 [2011] FWA 7397 PR516148 Balfours Bakery Pty Ltd
2 [2011] FWA 7397 PR516148 Balfours Bakery Pty Ltd Paragraph 48
3 Transcript Paragraph 141 to 144
4 PR949030 Western Australian Fire Service Certified Agreement 2004
Printed by authority of the Commonwealth Government Printer
<Price code A, PR528108>
0