“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Top Cut Food Industries Pty Ltd T/A Top Cut Food Industries

[2016] FWC 8509

[2016] FWC 8509

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.236—Majority support determination

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Top Cut Food Industries Pty Ltd T/A Top Cut Food Industries; Caterfare Pty Ltd
(B2016/1098)

The Australasian Meat Industry Employees Union
v
Top Cut Food Industries Pty Ltd T/A Top Cut Food Industries; Caterfare Pty Ltd
(B2016/1100)

COMMISSIONER RYAN MELBOURNE, 28 NOVEMBER 2016

Top Cut Foods Pty Ltd - 20 Gilbertson Rd Laverton North Victoria Top Cut Food Industries Pty Ltd and Caterfare Pty Ltd at 20 Gilbertson Road, Laverton North, Victoria.

[1] The applications in these matters represent the second attempt by the unions to obtain a majority support determination. The first was discontinued as a result of errors occurring in the process.

[2] The Australian Industry Group (Ai Group) as representative of the employers in these matters as part of a discussion between the parties and the Commission on programming these applications advised the Commission on 25 October 2016 as follows:

“In respect of the new MSD Application (B2016/1098) the parties are apart on the method by which a ballot should be conducted for the purpose of determining whether there is majority support for an enterprise agreement. The AMWU have indicated that they prefer an attendance ballot whilst the Company would seek for a postal ballot to be conducted.

It is proposed for the purpose of resolving this issue that the parties be provided with a period of seven days to submit a document (of no more than 1 page each) to the Commission outlining the basis for each of the respective ballot processes which are sought. The Commission could then make a decision on the papers in relation to that issue.”

[3] The AMWU, on behalf of both unions, confirmed the position outlined by Ai Group and filed its written submissions on 26 October 2016 and the Ai Group filed its written submissions on 3 November 2016. The AMWU contended that an attendance ballot should be conducted and that the attendance ballot should be a compulsory attendance ballot. The Ai Group contended that a postal ballot should be conducted.

[4] On 7 November 2016 the Commission wrote to the parties and advised them that “the Commissioner is considering conducting a compulsory attendance ballot of the relevant employees”. In order to further progress the conduct of the ballot the matter was listed for further telephone conference on 11 November 2016. Following that conference Ai Group, whilst maintaining its position that a postal ballot was the more appropriate method of ballot, made detailed submissions on 21 November 2016 as to how and when an attendance ballot of the relevant employees should be conducted. In that submission the Ai Group, for the first time, raised a jurisdictional objection to the Commission making any order that an attendance ballot be a compulsory attendance ballot.

[5] Ai Group contended that the Commission does not have the power to order employees to vote in a ballot to determine whether a majority of employees want to bargain with their employer and its arguments are set out in its written submissions dated 21 November 2017 as follows:

“PART B – Compulsory voting

12. The FWC’s Draft Orders propose at Point 4:

‘4. Compulsory Vote

All Eligible Employees are required to vote in the ballot.’

13. Ai Group submits that such an Order is beyond the power conferred upon the Commission under the FW Act and specifically that section 237(3) is limited to the “method” of determining the views of employees (i.e. petitions, attendance ballot, show of hands etc.) as distinct from the manner in which the voting may be undertaken (namely making the voting process compulsory).

14. The operation of section 237(3) is relevantly described in the Explanatory Memorandum to the Fair Work Bill 2009 (the EM) where it states:

‘979. It is at the discretion of FWA what method it uses to work out whether a majority of the employees want to bargain (subclause 237(3)). Methods might include a secret ballot, survey, written statements or a petition. A majority support determination comes into operation on the day on which it is made (subclause 237(4)).
(Emphasis Added)

15. Ai Group submits that the EM makes clear the legislatures intention as it relates to the interpretation of the term “method” and that this does not include a compulsory voting process.

16. The same language is also used in other sections of the FW Act, relevantly:

“FAIR WORK ACT 2009 - SECT 450

Directions for conduct of protected action ballot

(1) This section applies if the protected action ballot agent is not the Australian Electoral Commission.

(2) The FWC must give the protected action ballot agent written directions in relation to the following matters relating to the protected action ballot:

(a) the development of a timetable;

(b) the voting method, or methods, to be used (which cannot be a method involving a show of hands);

(c) the compilation of the roll of voters;

(d) the addition of names to, or removal of names from, the roll of voters;

(e) any other matter in relation to the conduct of the ballot that the FWC considers appropriate.

Note 1: For the purposes of paragraph (2)(b), examples of voting methods are attendance voting, electronic voting and postal voting. “
(Emphasis Added)

17. The text of s450(2)(b) together with the legislative Note provide further support that “method” is a limited term, attached to a process by which a vote may be cast, as opposed to a requirement to cast a vote.

18. Such an interpretation is also consistent with the broader scheme of the FW Act and in particular the bargaining provisions of Part 2-4. Throughout Part 2-4 there are multiple mechanisms under which views of employees will be sought for the purpose of bargaining, these include:

a. Section 181 and 182 which identifies that an enterprise agreement is made by a majority of employees who cast a valid vote approving the agreement;
b. Section 208 and 209 which identifies that a variation to an enterprise agreement is made by a majority of employees who cast a valid vote approving the agreement;
c. Section 220 and 221 which identifies that the termination of an enterprise agreement is made by a majority of employees who cast a valid vote approving the agreement; and
d. Section 459(a) and (b) which identifiers the process for determining whether the vote related to protected action ballot has the effect of authorising the protected industrial action;

in all of these voting mechanisms provided for in relation to bargaining, significantly none make participation in the voting process compulsory for relevant employees. It would be incongruous and inconsistent for the FWC to order a compulsory vote for the purpose of determining even if employees want to bargain – and there is no legislative indication of an intention to depart from the broader scheme of this section of the FW Act for the powers which are exercised under s.237.”

[6] On 25 November 2016 the AMWU, on behalf of both unions, made brief reply submissions to the Ai Group submissions but the AMWU did not deal with the jurisdictional challenge raised by the Ai Group.

[7] The starting point for any consideration of the meaning of s.237(3) must be the plain words of s.273.

“237 When the FWC must make a majority support determination

Majority support determination

(1) The FWC must make a majority support determination in relation to a proposed single enterprise agreement if:

(a) an application for the determination has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which the FWC must be satisfied before making a majority support determination

(2) The FWC must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by the FWC; and

(ii) who will be covered by the agreement;

want to bargain; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c) that the group of employees who will be covered by the agreement was fairly chosen; and

(d) it is reasonable in all the circumstances to make the determination.

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Operation of determination

(4) The determination comes into operation on the day on which it is made.”

[8] Subsection 237(3) only has work to do only in relation to the specific requirement under subsection 237(2)(a) that the Commission must be satisfied that a majority of the employees who are employed by the employers at a time determined by the FWC and who will be covered by the agreement want to bargain with their employers.

[9] Not only is the plain language of s.237(3) clear, but the Explanatory Memorandum reinforces the message, that s.237(3) permits the Commission to use any method that the Commission considers appropriate to work out whether a majority of employees want to bargain with their employers.

[10] The methods available under s.237(3) are not limited to methods of voting. A vote is not a requirement of 237(3).

[11] To consider the proper application of s.237(3) by comparing it with s.450 or sections 181, 182, 208, 209 220, 221 and 459 (as does the AI Group) which all require a vote to be undertaken, is not a case of comparing like with like but is an exercise in comparing like with unlike.

[12] The word “method” as used in s.237(3) should be given its ordinary meaning , which according to the Macquarie Online Dictionary is:

method
noun 1. a mode of procedure, especially an orderly or systematic mode: a method of instruction.
2. a way of doing something, especially in accordance with a definite plan.
3. order or system in doing anything: to work with method.
4. orderly or systematic arrangement.

[13] The difficulty with dictionary definitions is that the words used in a dictionary are not the words used in the legislation and it is wrong to replace the words used in the Act with other words. However, dictionaries are a useful tool in interpreting words used in legislation.

[14] The most that can be said of the dictionary definition is that it defines “method” as including the ‘mode’ or manner of doing something. At the very least the dictionary definition suggests that the contention of AIG, that “method” as used in s.237(3) does not include the manner of doing something, is not correct.

[15] The purpose of s.237(3) is to enable the Commission to choose a “method” which provides a sound basis for the Commission to reach the requisite level of satisfaction required by s.237(2)(a). The requirement in s.237(2)(a) is that the Commission be satisfied that a majority of the relevant employees want to bargain with their employers. The section does not permit the Commission to merely be satisfied that a majority of employees who express a view want to bargain with their employers.

[16] Specifying that the method for the Commission to reach the requisite level of satisfaction required by s.237(2)(a) will be a compulsory attendance vote of relevant employees conducted by the Commission at the employees workplace, is an orderly or systematic arrangement which provides a way of ascertaining the views of the relevant employees in accordance with a definite plan.

[17] It would appear to be implausible that the “method” chosen by the Commission would not be comprehended by section 237(3) of the Act.

[18] The order to be issued by the Commission will specify as the method for determining whether a majority of employees want to bargain with their employers that the there be a compulsory attendance ballot of the relevant employees to be conducted by the Commission at the employees’ place of work. The order that will be issued will adopt the timetable proposed by Ai Group.

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