Burles Consulting Pty Ltd

[2020] FWC 5741

[2020] FWC 5741

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Burles Consulting Pty Ltd
(AG2020/2231)

DEPUTY PRESIDENT CLANCY MELBOURNE, 28 OCTOBER 2020

Application for approval of the Nichols Poultry Processing Enterprise Agreement 2020.

[1] An application has been made for approval of the Nichols Poultry Processing Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Burles Consulting Pty Ltd (the Applicant), who acted as the employer bargaining representative for Nichols Poultry Pty Ltd. The Agreement is a single enterprise agreement.

[2] Two Form F17 – Employer’s declarations have been submitted in support of the Application. They have both been declared by Mr Nicholas Kerkham, WHS & HR Manager of Nichols Poultry Pty Ltd (the Company). The first Form F17 was declared by Mr Kerkham on 28 July 2020 (the first F17). The second Form F17 was declared by him on 14 September 2020 (the second F17).

[3] Both Form F17s outline that a Notice of Employee Representational Rights (NERR) was issued to all employees to be covered by the Agreement on 12 and 13 May 2020 and that it was provided to them by means of the Company’s Employment Hero employee database system, as well as mailed to employees on leave.

[4] Bargaining for the Agreement involved the United Workers Union (UWU) as a union bargaining representative and various employee bargaining representatives. There were some bargaining meetings and correspondence passed between the Applicant and the UWU. On 10 July 2020, it appears the Applicant conveyed to the UWU that the Company’s final position was outlined in the form of the Agreement and it intended to put the Agreement to its employees for a vote.

[5] On 15 July 2020, the Company held meetings with each of its seven production areas and flagged the commencement of the 7-day access period, ahead of a vote for the Agreement to take place on 23 July 2020 and 24 July 2020.

[6] In a letter to the Company dated 22 July 2020, the UWU outlined its concerns in the following manner:

“Failure to comply with good faith bargaining requirements

We write in relation to the negotiations between the United Workers Union (UWU) and Nichols Poultry Pty Ltd (Nichols) for a new enterprise agreement. The UWU is an employee bargaining representative in these negotiations, and we write to give you notice of our concerns of your failure to comply with your good faith bargaining obligations.

For context, we refer to my emails dated 10 July 2020 (the correspondence).

We are concerned that:

•  Nichols has met with the UWU on only one occasion;

•  Nichols intends to put an Enterprise Agreement out to vote which has not been negotiated in good faith;

•  Nichols has not provided a reasonable opportunity to discuss this proposal; and

•  The correspondence refers to ‘...decision makers at Nichols and they do not believe another meeting is warranted’.

Nichols has an obligation under s 228 of the Fair Work Act 2009 (Cth) to meet good faith bargaining requirements when negotiating an enterprise agreement. The UWU maintains that Nichols’ conduct has breached a number of good faith bargaining requirements, including:

•  disclosing relevant information in a timely manner (s 228(1)(b));

•  responding to proposals made by other bargaining representatives for the agreement in a timely manner (s 228(1)(c));

•  giving genuine consideration to the proposals of other bargaining representatives for the agreement (s 228(1)(d));

•  refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining (s 228(1)(e)); and

•  recognising and bargaining with bargaining representatives (s 228(1)(f)).

As such, please confirm by noon on Thursday 23 July 2020 that:

•  Nichols will withdraw any Agreement from the access period, and defer the vote for at least 21 days;

•  Nichols will meet with the UWU on at least 2 occasions over the next 14 days, at an agreed time and place; and

•  Nichols will refrain from presenting its position directly to employees until it has provided the UWU with the above proposal, as well as its explanation for it; and

•  Any position that Nichols subsequently presents directly to employees will be the same as what Nichols has already put to the UWU during the enterprise bargaining negotiations.

Please note if Nichols does not respond appropriately to our concerns by 12 noon tomorrow 23 July 2020, the UWU intends to apply to the Fair Work Commission for orders that it complies with its obligations.”

[7] Notwithstanding this letter, voting for the Agreement proceeded on 23 and 24 July 2020. Mr Kerkham has twice declared that the majority of those who voted approved the Agreement as follows:

1) In the first F17:

•  At the time of the vote, how many employees were covered by the agreement? 98;

•  How many of these employees cast a valid vote? 84; and

•  How many of these employees voted to approve the agreement? 50. 1

2) In the second F17:

•  At the time of the vote, how many employees were covered by the agreement? 110;

•  How many of these employees cast a valid vote? 74; and

•  How many of these employees voted to approve the agreement? 40. 2

[8] The application for approval of the Agreement was made on 29 July 2020.

[9] The UWU filed a Form F18 statutory declaration on 3 August 2020 in which it opposes the approval of the Agreement, and its opposition being based on the following concerns:

•  Whether the employer took reasonable steps in the circumstances to explain the proposed Agreement to employees;

•  Whether employees who voted in the ballot were employees eligible to be covered by the proposed Agreement;

•  Location of the employee vote;

•  Conduct of managers with regard to voting instruction; and

•  Whether the employer took all reasonable steps to ensure the explanation provided to culturally diverse employees was appropriate

[10] The Application was allocated to me on 12 August 2020. Having conducted an initial review of the Application and noting the opposition of the UWU, I issued Directions on 19 August 2020 that required the UWU to file an Outline of Submissions, Witness Statements and any documents upon which it relies in relation to the abovementioned concerns by 24 August 2020.

[11] The Applicant was directed to respond to the UWU’s position and include submissions on how the Commission was to assess the qualifications of Catcher Employee Level 5a, Feed Mill Employee Level 5b, Team Leader Level 7a and Senior Team Leader Level 7b for the application of the Better Off Overall Test (BOOT), by 26 August 2020.

[12] Materials were received from the parties as per the Directions and having regard to the stated availability of the parties, a hearing was conducted on 11 September 2020 via Microsoft Teams.

[13] Some of the evidence that emerged during the course of the hearing, directed at the question of whether employees who voted in the ballot were employees eligible to be covered by the Agreement, differed from the details Mr Kerkham had outlined in the first F17. As a result, I sought confirmation regarding the employees covered by the Agreement at the time of the vote. Having noted that Mr Kerkham declared in the first F17 that there were 33 casual employees covered by the Agreement, I directed the Company to produce payroll records to cover the period from 15 July 2020 to 24 July 2020 and to delineate between permanent and casual employees.

[14] On 15 September 2020, the Applicant filed and served the following in response:

•  An excel spreadsheet generated from the Company’s Employment Hero database system purporting to identify all employees covered by the Agreement for the period of 15 July to 24 July 2020 (the spreadsheet); and

•  The second F17, referred to above at [7], which was said to reflect the correct number of employees and included an adjusted record of the number of votes cast, so as to ensure votes cast by labour hire employees were not counted as “valid votes”.

[15] The Applicant submitted that this material indicates that the Company had 110 employees covered by the Agreement (not 98 as indicated in the first F17).  In relation to this difference, it was said that Mr Kerkham was unsure exactly how the erroneous figure of 98 had been generated but that he thinks it may have been the result of him accidentally leaving a particular filter on in the report function he was using when he completed the first F17, which in turn led to an error in the total number of employees recorded. The Applicant nonetheless submits these errors do not affect the outcome of the vote and should not prevent the approval of the proposed Enterprise Agreement.

[16] In reply submissions dated 17 September 2020, the UWU noted that the second F17 confirms that with 74 employees covered by the Agreement recorded as having cast a vote and 40 employees voting to approve it, that the Agreement was approved by a margin of three votes. The UWU observed that the Applicant has not provided unsigned pages of the roll of voters that Mr Kerkham had referred to in his evidence at the hearing 3 and that the spreadsheet lists 99 employees, not the 110 referred to in the second F17. The UWU submitted the register of voters in the Applicant’s material remains unclear.

[17] This decision deals with the concern raised by the UWU as to whether employees who voted in the ballot were employees eligible to be covered by the Agreement.

Legislation

[18] Section 181(1) of the Act provides that 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.

[19] It is useful to outline s.182(1) of the Act, which establishes when a single-enterprise agreement is made:

“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)

[20] Section 186 sets out, amongst other things, that in order for an Agreement that is not a greenfields agreement to be approved, the Commission must be satisfied that employees have genuinely agreed to it. Section 186(2) relevantly provides as follows:

“186 When the FWC must approve an enterprise agreement—general requirements

…

Requirements relating to the safety net etc.

(2) The FWC 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…”

[21] Section 188 of the Act sets out the matters of which the Commission must be satisfied in establishing whether employees have genuinely agreed to an enterprise agreement and relevantly states as follows:

“188 When employees have genuinely agreed to an enterprise agreement

(1) An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC 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.

(2) An enterprise agreement has also been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the agreement would have been genuinely agreed to within the meaning of subsection (1) but for minor procedural or technical errors made in relation to the requirements mentioned in paragraph (1)(a) or (b), or the requirements of sections 173 and 174 relating to a notice of employee representational rights; and

(b) the employees covered by the agreement were not likely to have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174.”

(my emphasis)

[22] As set out in s.188(1)(b), I must be satisfied, amongst other things, that a majority of those employees of the Company who cast a valid vote on 23 July 2020 and 24 July 2020 approved the Agreement.

[23] I have had regard to the first F17, the second F17, the evidence of Mr Kerkham at the hearing and the spreadsheet. Despite the submission that this material indicates that the Company had 110 employees covered by the Agreement and the declaration to this effect in the second F17, a count of the employees actually listed in the spreadsheet produces a total of 99 employees.

[24] This spreadsheet total of 99 employees is to be compared to the six-page roll of voters placed into evidence at the hearing, which the parties agreed listed 89 individuals. 4 However, even though the six-page roll of voters document is specifically marked as totalling six pages only, Mr Kerkham gave evidence that there was an additional page that listed 10 additional voters and further, that none of them voted.5 This additional page has not been produced.

[25] The six-page roll of voters appears to divide the employees according to the following work groups:

•  Cold end;

•  Tray pack;

•  VA;

•  Hot end; and

•  Dispatch and Stores.

[26] It is not a document of satisfactory detail or precision. With only a few exceptions, the names listed in the six-page roll of voters are first names only. Some names listed appear to be “nicknames” or at least modified in some way from the names of employees that are listed in the spreadsheet. A degree of assumed knowledge is required to verify some of the votes. While on the whole the names are typed, there are at least nine additional names handwritten onto the document. These nine names are in addition to the names of ten handwritten names of labour hire employees who were erroneously added to the roll and whose votes were both initially counted by the Company and included in the numbers outlined in the first F17.

[27] Even if I accept the voting roll did indeed comprise 99 employees (by adding the 89 individuals on the six-page document with the 10 voters on the “additional page” Mr Kerkham has attested to, but has not produced), some discrepancies between their names and the 99 employees named in the spreadsheet exist, despite the two totals being the same. It was agreed at the hearing that the six-page roll of voters records 76 individuals as having voted. 6 However, when the six-page roll of voters is compared with the spreadsheet, only 71 employees listed in the spreadsheet voted. It therefore appears as though there are 5 individuals listed in the six-page roll of voters as having voted who are not listed amongst the names of employees in the spreadsheet.7 It is not apparent why there is this discrepancy but instead of the circumstances declared in the second F17, the more accurate position appears to be:

•  Employees were covered by the agreement at the time of the vote: 99; and

•  Number of these employees who cast a valid vote: 71.

[28] Mr Kerkham has also declared in the second F17 that 40 employees voted to approve the Agreement. That total is unsafe to the extent it includes votes cast by any or all of the abovementioned 5 individuals. If none of these 5 individuals were on the Company’s list of employees covered by the Agreement at the time of the vote, the votes they cast should not be counted. It follows that if, for example, all 5 of the votes they cast happened to be in favour of approving the Agreement and were therefore counted amongst the 40, the declaration that 40 employees voted to approve the agreement would not be accurate and the true position would instead be:

•  At the time of the vote, how many employees were covered by the agreement? 99;

•  How many of these employees cast a valid vote? 71; and

•  How many of these employees voted to approve the agreement? 35.

[29] The difficulty that emerges is that there is no way of knowing which way these 5 individuals in fact voted. In the absence of this knowledge and with the numbers being as they are, I am unable to be satisfied that the agreement was approved by a majority of those employees who cast a valid vote.

[30] It therefore follows that notwithstanding the multiple opportunities the Applicant has had to present material and explain the position, I am not satisfied that the Agreement has been genuinely agreed to by the employees covered by it, as is required by ss.186 and 188 of the Act. Further, I am not of the view that the circumstances in this matter are such that s.188(2) of the Act can assist the Applicant. This being the case, the application cannot succeed. It is therefore not necessary to deal further with the other concerns the UWU has raised.

[31] The application for approval of the Nichols Poultry Processing Enterprise Agreement 2020 is dismissed because I am not satisfied it has been genuinely agreed to by the employees covered by it. Should the Applicant wish to make a future application for the approval of an agreement, it is recommended a roll of voters with greater accuracy is compiled and a more precise system for recording whether or not employees on the roll subsequently vote is adopted.

DEPUTY PRESIDENT

Final written submissions:

Burles Consulting Pty Ltd, 15 September 2020.
United Workers’ Union, 17 September 2020.

Printed by authority of the Commonwealth Government Printer

<PR724016>

 1   Form F17 declared on 28 July 2020 at Q.26

 2   Form F17 declared on 14 September 2020 at Q.26.

 3   Transcript PN 290.

 4   Attachment NK3 to Exhibit A1 and Transcript PN 256-280.

 5   Transcript PN 283-289.

 6   Transcript PN 280.

 7   The five individuals are Bill Le, Khai Le, Daniel Russell, Petter and Jack – see Attachment NK3 to Exhibit A1.