City of Gosnells

[2021] FWCA 4895

[2021] FWCA 4895

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

City of Gosnells
(AG2021/6181)

CITY OF GOSNELLS WASTE COLLECTION ENTERPRISE AGREEMENT 2021

Local government administration
COMMISSIONER WILSON	MELBOURNE, 10 AUGUST 2021

Application for approval of the City of Gosnells Waste Collection Enterprise Agreement 2021; attendance ballot; whether genuinely agreed.

[1] The City of Gosnells Waste Collection Enterprise Agreement 2021 (the Agreement) was made on 30 June 2021 when voting for the Agreement concluded with a majority of those voting doing so in favour of making the Agreement. The Agreement covers employees of the City of Gosnells (the City or the Applicant), a Western Australian local government entity, engaged in waste collection services. At the time of the vote the Agreement covered 22 employees; 20 employees voted in an attendance ballot of whom 11 voted to approve the Agreement. 1

[2] This decision concerns an objection to the Fair Work Commission’s (the Commission) approval of the Agreement by the Transport Workers’ Union (TWU) on the ground it has not been genuinely agreed, with two of its members being unable to vote in the attendance ballot.

[3] For the reasons set out below I am satisfied the Agreement was genuinely agreed and that since the other statutory criteria for approval of an agreement have been met the Agreement may be and is approved.

BACKGROUND

[4] The Agreement was submitted by the City of Gosnells to the Commission for approval on 13 July 2021. There were two unions as bargaining representatives during bargaining; the Transport Workers’ Union and the Australian Municipal, Administrative, Clerical and Services Union (ASU), each filed a Form F18 declaration summarising their interests.

[5] After lodgement the application was the subject of initial consideration by the Commission in the usual way, with certain matters of concern being raised. In the course of this preliminary consideration, it was apparent that the TWU’s objection may require formal determination by the Commission and may not be able to be overcome through the provision of further explanatory information or submissions or remedial undertakings.

[6] The TWU objects to the approval of the Agreement on the basis that it had not been the subject of genuine agreement since two eligible employees were not able to participate in the ballot due to a COVID-19 lockdown imposed on metropolitan Western Australia covering the date of the vote.

[7] The ASU supports approval of the Agreement and does not raise any objections to the undertakings provided by the Applicant in response to the two matters identified as concerns by the Commission.

[8] Directions were issued for the matter to be heard, preceded by the filing of submissions and evidence from each party. A hearing of the matters in dispute was held on Friday, 6 August 2021. At the hearing Mr Ronan Boothman, solicitor, from Corrs Chambers Westgarth appeared with permission from me for the City of Gosnells. Mr Adam Dzieciol, Senior Legal/IR Officer appeared for the TWU, and Mr Paul Cecchini, Senior Industrial Organiser appeared for the ASU.

[9] Mr Thomas Hastings, Manager Organisational Performance gave oral evidence at the hearing on behalf of the City of Gosnells. Witness Statements of two other employees of the Applicant were received and have been taken into account by me, with the two employees not being required for cross-examination. The statements were from Ms Rebecca Padua, Human Resources Advisor, and Mr George Naylor, Coordinator Waste Management.

[10] Mr Bradley Marshall and Mr Brad Niblock, two employees covered by the Agreement and members of the TWU, gave evidence on behalf of the TWU.

THE COMMISSION’S PRE-HEARING CONCERNS

[11] In accord with the Commission’s usual process after an application for approval of the Agreement is made, the Agreement’s conformity with the Act’s approval obligation was considered after which two matters of concern were identified to the parties in correspondence dated 23 July 2021. Those matters together with the Applicant’s responses may be summarised as:

● The definition of a shiftworker in Clause 27.1.2 of the Agreement does not describe or define an employee as a shiftworker for the purposes of the National Employment Standards (NES), but the modern award that covers the employee does so;

● Clause 12.4.2 of the Agreement provides that:

“If Employees fail to give the required notice, or Employees give notice or are given notice but leave before the end of the notice period, such employees shall forfeit the amount that would equal payment in lieu of notice.”

This is inconsistent with Clause 32.1(d) of the Local Government Industry Award 2020 which provides that:

“If an employee who is at least 18 years old does not give the period of notice required, then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.”

[12] The Applicant provided undertakings to address both matters. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings resolve both concerns raised. Each bargaining representative has had an opportunity to express their view about the proposed undertakings.

MATTERS IN DISPUTE AT THE HEARING

[13] The TWU and ASU are the only union bargaining representatives and there were no employee bargaining representatives in the bargaining which preceded the making of the Agreement. The only matter in dispute is whether the Agreement is genuinely agreed.

CONSIDERATION

[14] Consideration of the Agreement for approval requires inquiry as to whether the City of Gosnells complied with the required pre-approval steps for whether the agreement has been validly made and genuinely agreed (ss.181-182 and s.188).

[15] Section 181 is in these terms:

“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.

(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.”

[16] Section 182 is in these terms:

“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.

Multi-enterprise agreement that is not a greenfields agreement

(2)  If:

(a)  a proposed enterprise agreement is a multi-enterprise agreement;

(b)  the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and

(c)  those employees have voted on whether or not to approve the agreement; and

(d)  a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement;

the agreement is made immediately after the end of the voting process referred to in subsection 181(1).”

[17] Section 188 is in these terms:

“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.”

[18] The Applicant disagrees with the TWU’s submission that two employees were not able to participate in the vote, arguing they each had the opportunity to attend the City’s premises and vote, however, chose not to.

[19] Bargaining for the Agreement commenced in January and the Agreement was made on 30 June 2021. Within that period the City’s work has been affected by “Stay at Home” Orders made by the Western Australian Government, including those made on 28 June 2021, after the ballot for the Agreement was notified, but before the ballot took place. The two employees who did not vote, Mr Bradley Marshall and Mr Brad Niblock, were each on annual leave on the day of the vote.

[20] After bargaining was initiated on 20 January 2021 agreement in principle for the Agreement was reached on 11 May 2021. About one month afterwards on 14 June 2021, Mr Niblock applied for and was granted annual leave in the period 28 June 2021 to 2 July 2021. On 15 June 2021, Mr Marshall applied for and was granted annual leave in the period 28 June 2021 to 9 July 2021.

[21] On 18 June 2021, the employees covered by the Agreement were notified of voting details for the Agreement and advised that the vote would be conducted through an attendance ballot to be conducted on 30 June 2021 at 2:15 PM. The notification was from Mr Thomas Hastings, the City’s Manager Organisational Performance.

[22] On 23 June 2021, the access period for making the agreement commenced with the period due to expire on 29 June 2021. On the same day, 23 June 2021, an information session on the proposed Agreement was held. Mr Marshall attended the meeting. Mr Niblock was not in attendance owing to a day of leave. During the meeting, Mr Marshall asked Mr Hastings if he could attend the vote since he was to be on annual leave that day. The Applicant submits, with it not being contradicted by anyone, that Mr Marshall was advised that he may attend the vote and be paid for his attendance.

[23] The following day, Mr Niblock asked his supervisor, Mr George Naylor, Coordinator Waste Management, if he could vote, presumably through an absentee vote. In response, Mr Naylor advised him he would need to be physically present on the day of the vote to submit his ballot. Mr Naylor’s witness statement gives evidence that Mr Niblock gave him a sealed envelope, but Mr Naylor told Mr Niblock that there was no guarantee that his vote would be accepted as it was a physical ballot. Mr Naylor told Mr Niblock, words to the effect, that even though he was on annual leave on 30 June 2021 he could still attend the approval ballot and the City would pay him as if he had worked. 2 That evidence is not contradicted by anyone.

[24] A few days later and before the ballot took place, on 28 June 2021 at 23:46 hours Stay at Home Orders were issued by the Western Australian Government.

[25] Shortly afterwards at the commencement of work on 29 June 2021 Mr Hastings wrote to the TWU bargaining representative, Glenn Barron, advising that Mr Hastings planned to proceed with the waste services ballot scheduled for the following day, noting that employees “will be in work as they are essential workers” and that appropriate health measures would be put in place to ensure the safety of the attendance ballot. In the correspondence Mr Hastings also advised he had spoken to the ASU who were comfortable with the ballot proceeding. Mr Barron was asked pointedly by Mr Hastings “Just checking with you to make sure you are ok as well?”. Within two minutes of the email having been sent by Mr Hastings, Mr Barron responded, “Not a problem at all Tom”. 3

[26] The vote then took place as previously notified, that is on Wednesday, 30 June 2021 at 2:15 PM. Mr Hastings records that the ballot was declared with 20 votes being counted of which 11 were in favour and 9 against and that accordingly the Agreement was made.

[27] Mr Hastings was provided with Mr Niblock’s sealed envelope soon after the conclusion of the vote. Mr Hastings informed Mr Naylor that the vote had not been validly made and would not be included in the vote count.

[28] Shortly after the vote took place, at 2:44 PM Mr Barron had a significant and unexplained change of heart sending an email to Mr Hastings and others complaining that not everyone who wished to vote had been given an opportunity to do so.

[29] The City contends that each of the affected employees could have attended the ballot if they wished. Even though they were on annual leave on the day in question, each was told they would be paid in ordinary time for their attendance. Further, it would not have been contrary to the Western Australian Government Stay at Home Orders for the men to attend the workplace. The City had the power under those Orders to certify particular work or workers to be essential and had already done so in February 2021. 4 It was also concerned that making provision for absentee ballots may mean employees were requested to vote during the access period for the agreement, during which information about the proposed agreement is provided and explanations given.

[30] The oral evidence given to the Commission about the circumstances of the ballot includes:

•  Mr Marshall was of the opinion that the Stay at Home Orders meant he could not attend the workplace to vote. He argues he would have attended the ballot had the lockdown not been ordered. His evidence though shows that he presumed the ballot would be suspended or rearranged after the Orders were made, but that he took no steps at all to ascertain if that was the case, or what other arrangements could be made. If nothing else, he was not inquisitive of these matters.

•  Mr Niblock was of the opinion that since he was on annual leave, he did not want to attend at all, which was why he attempted to provide an absentee vote to Mr Naylor. The reason he did not attend the ballot was because he was on annual leave and not the lock-down. While he understood that he would be paid if he attended his intentions were basically that he did not want to break his leave and come in for the ballot.

•  Mr Hasting’s evidence is that an attendance ballot for this agreement is consistent with two previous enterprise agreements covering the same group of employees. While online ballots were used for enterprise agreements applicable to other groups of employees employed by the City, an attendance ballot was also used for one other agreement. The City’s procedures for the attendance ballot provide for votes to be cast as secret ballots. An electronic or other form of voting was not considered appropriate since he believed some employees covered by the Agreement may have difficulty with such a format. Some employees at least covered by this Agreement may need assistance with casting a vote, including with logging on, which could be a potential problem given votes are to be secret.

No provision had been made in the ballot procedures for absentee ballots. Mr Hastings though conceded there were some circumstances in which an employee may be granted an absentee ballot. For example, an employee who was overseas and physically unable to attend may be allowed the opportunity to vote through an absentee ballot.

[31] It must be observed that the Fair Work Act 2009 (Cth) (the Act) is not prescriptive as to how a vote for an enterprise agreement takes place. The furthest that the Act goes in respect of there being any strictures around the nature of vote is to say within s.181(3) that without limiting the effect of s.181(1) “the employer may request that the employees vote by ballot or by an electronic method”. The vote may therefore be conducted through any means that is considered appropriate as long as the statutory requirement that “the employees employed at the time who will be covered by the agreement” are given the opportunity to participate in the vote.

[32] Naturally enough, in the absence of an electronic or surface mail voting procedure conducted over a week or more, it is foreseeable that if a vote is to be conducted through some form of attendance measure that not everyone may actually attend. The important issue is that they have the opportunity to vote. There will be situations in which employees are physically unable to attend, including because they may be in another city or even another country. There is no direct obligation within the Act that would require an employer to ensure that all employees are able to attend the workplace for an attendance ballot. Instead, the obligation is to ensure that they have the opportunity.

[33] In the circumstances presently before me I am satisfied that Mr Marshall was offered the opportunity to attend and be paid in ordinary time for his attendance. Had he directly expressed a view to the City that he believed the Western Australian Government’s Stay at Home Orders prevented him from attending that issue would have had to be directly dealt with by the City. In the context of the COVID-19 Pandemic and what is being asked of the community generally it would not be appropriate merely for the City to say – as it does in these proceedings – that it may declare the attendance of an employee solely to participate in an enterprise agreement ballot to be essential work. I seriously doubt that attendance to cast a vote for an enterprise agreement is what the draftsperson of the Orders had in mind when they carved out an exemption for essential work. Waste collection services are obviously essential work and the incidental activity of voting in an enterprise agreement would likely also be captured by the definition, however travel to and attendance at work merely for the purpose of voting in an agreement seems doubtfully so.

[34] Despite that reservation being held by me, it is the case that Mr Marshall did not communicate with anyone about his belief the ballot would be suspended and did not put the City to the task of having to consider making an amendment to its voting procedures given his desire to comply with his understanding of the Stay at Home Orders. Because he did not communicate with anyone about his assumption the ballot would be suspended, it follows he had an opportunity to cast a vote, and his failure to do so is not a matter to which s.188(1)(c) applies.

[35] Mr Niblock simply did not want to attend to vote. He was on leave and chose not to take up the offer made to him by the City to attend and be paid. He too had an opportunity to cast a vote, and his failure to do so is also not a matter to which s.188(1)(c) applies.

[36] Mr Marshall and Mr Niblock both had a reasonable opportunity to attend and vote but for reasons of their own did not do so. It was a reasonable measure on the part of the City of Gosnells to say to each that they could attend the ballot even though they were on leave and that they would be paid for the time taken. If either thought so strongly about the circumstance that they thought it imperative for them to vote they could either have withdrawn their application for leave or pressed the City to make alternative voting procedures given the Stay at Home Orders.

[37] I accept what Mr Hastings has to say about the reason why an attendance ballot was used, and in particular that if an online ballot format was used that some employees at least may have difficulty in using the format. Even so, it behoves the City, being a local government entity and presumably a model of democratic functioning to ensure this situation does not occur again. It needs to ensure its enterprise agreement voting procedures adequately deal with the foreseeability that some employees will be physically absent. It is insufficient and anomalous for the City to say that someone overseas on the day of the ballot may (but not automatically) be granted an absentee ballot, but a person observing what they understood to be the Commissioner of Police’s instructions to them is not.

[38] It must also be said that the TWU bargaining representative has to be held accountable to some degree for the situation which has developed for having said to the employer that he saw no problem with the ballot proceeding notwithstanding the State Government Stay at Home Orders. Patently he only saw a problem when his members complained within minutes of the vote having been declared. He should have thought more carefully of the situation and perhaps after having regard to the implications for his members before responding to Mr Hastings that the ballot could proceed. The City of Gosnells was entitled to rely upon what had been said to them by the TWU’s bargaining representative.

[39] For the reasons set out above, I find the Agreement was genuinely agreed, notwithstanding the TWU’s objection.

CONCLUSION

[40] For the reasons set out above the City of Gosnells Waste Collection Enterprise Agreement 2021 was genuinely agreed and may be approved.

[41] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[42] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[43] The Australian Municipal, Administrative, Clerical and Services Union and the Transport Workers' Union of Australia being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[44] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 August 2021. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE512677  PR732660>

 1   Form F17, Employer’s Declaration, 13 July 2021, items 25 & 26.

 2   Witness Statement of George Naylor, 3 August 2021, [9].

 3   Witness Statement of Tom Hastings, 3 August 2021, Attachment C.

 4   Applicant Outline of Submissions, 3 August 2021, [4].

Appearances:

Mr R. Boothman for the City of Gosnells

Mr A. Dzieciol for the TWU

Mr P. Cecchini for the ASU

Hearing details:

Melbourne (via video conference);

6 August;

2021.

Annexure A