Australasian Meat Industry Employees Union v Inghams Enterprises Pty Limited

[2017] FWC 3384

[2017] FWC 3384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australasian Meat Industry Employees Union

v

Inghams Enterprises Pty Limited

(B2017/467)

COMMISSIONER SAUNDERS NEWCASTLE, 23 JUNE 2017

Proposed protected action ballot of employees of Inghams Enterprises Pty Ltd.

1. The Australasian Meat Industry Employee’s Union (AMIEU) has made an application under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Inghams Enterprises Pty Ltd (respondent) who are employed in, or in connection with, meat processing operations at the respondent’s processing facility located at Lisarow, New South Wales.

1. In support of the application, the AMIEU filed a statutory declaration and a statement of Mr Grant Courtney, Branch Secretary of the AMIEU Newcastle & Northern Branch. The statutory declaration and statement describe the steps taken by the AMIEU in bargaining with the respondent. Mr Courtney was not required for cross examination at the hearing of this matter on 23 June 2017.

1. The respondent relies on evidence given by Mr David Story, Group Industrial Relations Manager.

1. For the purposes of s.443(1) of the Act, I am satisfied on the evidence, and there is no dispute between the parties, that:

(a)an application has been made under s.437 of the Act; and

(b)the AMIEU has been, and is, genuinely trying to reach agreement with the respondent.

1. Accordingly, a protected action ballot order must be made.

Respondent’s objections

1. Following a number of agreements and concessions made between the parties prior to, and during, the hearing of this matter, the only issue I need to determine is whether the ballot should take place as an attendance ballot, as contended for by the AMIEU, or by some other means, such as a postal or on-line ballot, as contended for by the respondent. There are about 160 employees to be balloted.

1. There is no dispute between the parties and I am satisfied on the evidence that RMK Investments Pty Ltd trading as Australian Election Company, and in particular Mr Wade Hadley, Elections Officer, should be appointed as the protected action ballot agent.

1. I am required to give the protected action ballot agent written directions in relation to a number of matters relating to the protected action ballot, including the voting method(s) to be used (which cannot involve a show of hands).[1] The note to s.450(2)(b) in the Act gives, as examples of voting methods, “attendance voting, electronic voting and postal voting”.

1. The respondent contends that an attendance ballot would cause a degree of disruption to the ordinary performance of work and operational requirements on the day or days upon which the ballot is conducted. The respondent did not adduce any evidence in support of this contention, or to explain the degree of such disruption or the consequences of it.

1. The respondent also contends that the canteen is the only place on the premises where an attendance ballot could be conducted and there would be a risk of employees who did not want to participate in such a ballot being intimidated. No evidence of any history of intimidation was adduced.

1. The respondent further submits that the protected action ballot agent would need to be inducted on to the site in order to conduct the protected action ballot.

1. The AMIEU says that an attendance ballot is the easiest, simplest and fairest method of voting. During the hearing the AMIEU agreed that any attendance ballot should take place during meal or other authorised breaks, so as to minimise the risk of any disruption to work at the respondent’s premises. The AMIEU also relies on the fact that, historically, important ballots such as ballots for approval of enterprise agreements and other industrial matters have been done by attendance at the respondent’s premises. Finally, the AMIEU submits that postal ballots can be ineffective in practical terms for the purposes of ascertaining employees’ views.

1. Having considered the submissions made by each party in relation to the voting method to be used, I am satisfied in the circumstances of this case that it is appropriate to exercise my discretion to give the protected action ballot agent a direction to use attendance voting as the method of voting on the ballot. My reasons for making such a direction may be summarised as follows:

• I am satisfied that it will not take each employee who participates in an attendance ballot very long to attend the place within the respondent’s premises where the voting is to take place, have their name marked off on the roll of eligible voters, and tick yes or no in answer to five straightforward questions. Such attendance voting will be a simple and easy process;

• conducting the ballot during meal or other authorised breaks will minimise the risk of disruption to work at the premises;

• in the absence of supporting evidence, I am not satisfied that postal ballots are, or can be, ineffective in practical terms for the purposes of ascertaining employees’ views. This factor does not support the AMIEU’s request for an attendance ballot;

• Mr Story gave evidence that he is aware of two votes for the approval of enterprise agreements which have been conducted in person at the respondent’s premises. Mr Story’s evidence in this regard supports the AMIEU’s contention that, historically, important ballots such as ballots for the approval of enterprise agreements and other industrial matters have been done by attendance at the respondent’s premises;

• I am not satisfied that the fact the protected action ballot agent must undergo an induction in order to enter the respondent’s premises will impose any significant burden on the respondent or provides a proper basis to reject the request for an attendance ballot; and

• in the absence of any evidence of intimidatory behaviour or the threat of such behaviour in the past, I am not satisfied that the risk of such conduct is a sufficient reason not to give directions for an attendance ballot. In the event that any such conduct does occur, the respondent will be well placed to act on it immediately.

Conclusion

1. For the reasons set out above, a protected action ballot order [PR594040] will be issued concurrently with this decision, together with directions to the protected action ballot agent pursuant to s.450 of the Act.

COMMISSIONER

Appearances:

Smith, G, Federal Secretary of the AMIEU, on behalf of the Applicant
Bowe, M, solicitor, on behalf of the Respondent

Hearing details:

2017
Newcastle
23 June

[1] Section 450(2)(b) of the Act

Printed by authority of the Commonwealth Government Printer

<Price code A, PR594037>