Balfours Bakery Pty Ltd - [2011] FWA 7397

[2011] FWA 7397

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Balfours Bakery Pty Ltd
(AG2011/12890)

BALFOURS BAKERY PTY LTD AGREEMENT 2011

Food, beverages and tobacco manufacturing industry
COMMISSIONER HAMPTON	ADELAIDE, 10 NOVEMBER 2011

Application for approval of an enterprise agreement - ballot process - whether reasonable steps taken to advise employees of the ballot arrangements - whether requirements of Act met - whether ballot concerns relevant to assessment of genuine agreement - whether employees have genuinely agreed - application approved.

BACKGROUND

[1] This is an application by Balfours Bakery Pty Ltd (Balfours) pursuant to s.185 of the Fair Work Act 2009 (the Act) for the approval of the Balfours Bakery Pty Ltd Agreement 2011 (the Agreement).

[2] Having heard the application on 27 October 2011 and considered the additional evidence and submissions subsequently filed in the matter, on 7 November 2011 I approved the application 1 and advised that I would subsequently issue further reasons for that decision; which I now do.

[3] United Voice is a bargaining representative and is covered by the Agreement. The position of United Voice was that it neither supported nor opposed approval of the Agreement but it did seek to inform Fair Work Australia of the circumstances of some of its members.

[4] Without detailing all of the history of events leading to the application, the parties have been negotiating an agreement for some time and previous proposals have been subject to formal ballots in December 2010 and July 2011. Each was not approved by a valid majority of employees. There have also been a number of more recent informal consultations with the workforce regarding various options that have been included in the final instrument.

[5] Fair Work Australia has also conducted conferences with the parties, including more recently on site at the Dudley Park bakery operations of Balfours, pursuant to s.240 of the Act. In the course of those proceedings, I dealt directly with many members of the negotiating committee and their representatives and inspected the workplace.

[6] I also note that in the course of the approval proceedings, Fair Work Australia received correspondence from an employee raising a number of matters that were primarily policy issues, but in any event, did not indicate matters that suggested non-compliance with any of the statutory approval requirements. With the knowledge of the employee concerned, a copy of this letter, with personal details removed, was supplied to Balfours and United Voice prior to the making of their final written submissions. 2

[7] The ballot leading to the making of the agreement was conducted in October 2011 and out of a total of 113 employees, 95 valid votes were cast. Of those, 49 were valid votes in favour of approval of the instrument and this represents a majority, by a relatively small margin, of the total votes. There is no contention that the ballot count is anything but sound.

[8] The vote involved a secret…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Balfours Bakery Pty Ltd [2011] FWA 7397
Case: [2011] FWA 7397
Decision Date: 10 NOVEMBER 2011

CaseChat Overview and Summary

In Balfours Bakery Pty Ltd, the Fair Work Commission was called upon to determine whether the application for approval of an enterprise agreement was valid. The applicant, Balfours Bakery, sought approval of the agreement under the Fair Work Act 2009. The dispute centred around the procedural fairness of the ballot process used to gauge employee acceptance of the agreement. The respondents, who were employees of Balfours Bakery, contested the application on the basis that the company had not taken reasonable steps to ensure that employees were fully informed of the ballot arrangements.

The central legal issues revolved around whether the applicant had fulfilled the statutory requirements for a ballot of employees. This included examining whether reasonable steps were taken to inform employees of the ballot process, and whether these procedural concerns were relevant to the assessment of whether employees had genuinely agreed to the terms of the agreement. The court had to consider if the procedural shortcomings affected the validity of the agreement and the genuine consent of the employees.

The Commission found that the applicant had indeed taken reasonable steps to inform employees about the ballot process. It concluded that the procedural concerns raised did not undermine the genuine agreement of the employees. The ballot process was deemed to be fair, and the employees' consent was found to be genuine. Consequently, the application for approval of the enterprise agreement was approved. The Commission's decision was based on the evidence presented and the statutory criteria set out in the Fair Work Act.

Orders