Compile-Ryobi Australia Pty Ltd

[2013] FWC 8733

[2013] FWC 8733

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Compile-Ryobi Australia Pty Ltd
(AG2013/1759)

DEPUTY PRESIDENT MCCARTHY PERTH, 6 NOVEMBER 2013

Application for approval of the Compile-Ryobi Australia Pty Ltd Enterprise Agreement 2013-2017.

[1] On 23 October 2013 I issued a decision in respect of this agreement that dealt with the meeting of the requirements of s.180(3) Fair Work Act 2009 (FW Act) by Compile-Ryobi Australia Pty Ltd (the Company), I found that the Company had satisfied those requirements. I indicated in that decision if the Construction, Forestry, Mining and Energy Union (CFMEU) had any other objections why the agreement should not be approved they should identify those grounds and provide submissions and evidence in support of those grounds.

[2] The CFMEU responded to that opportunity by submitting that the Employer's Declaration stated that there were 24 valid votes cast with 17 voting to approve the agreement and 7 that must have voted against the agreement. The CFMEU provided statutory declarations from 10 employees who stated that they voted against the agreement.

[3] The CFMEU therefore submitted that there was a disparity as to the information provided by the Company and the information provided by the CFMEU. They argued that if that disparity cannot be explained it suggests that there is an regularity in the voting process and therefore the agreement would not have been genuinely agreed as required by s.186(2)(a) of the FW Act.

[4] The issues in respect of the CFMEU’s objections to the agreement being approved is whether the agreement was genuinely agreed as there are 10 statutory declarations provided by the CFMEU from employees who state that they voted in the ballot against the agreement being made.

[5] I provided the Company with the opportunity to respond to the submissions of the CFMEU and they indicated that they have nothing further to add and relied on their earlier submissions and information provided.

[6] The statutory declaration provided by Mr Tony Hurley (Mr Hurley) outlined in detail the procedures used in the conduct of the ballot for the making of the agreement. Attached to that statutory declaration was the names of the 28 employees to be covered by the agreement at the time of the vote. Also attached was the ballot distribution list used to ensure the ballot papers had been provided to the employees concerned.

[7] A statutory declaration stated in detail how the ballot had been conducted, who collected the ballot papers and how they were collected, and who counted the votes and how they were counted. A copy of each of the completed ballot forms was consistent with the record of the ballot count.

[8] There is then clearly a discrepancy between the vote count and the submitted ballot papers and the statutory declarations provided by the CFMEU. The obvious possibilities to explain that difference is that: (i) the completed ballot forms, or some of them, provided by the Company are either not forms that were completed by the employees who participated in the ballot or (ii) additional yes vote forms have been added and completed no vote forms have been omitted. Alternatively, the statutory declarations provided by the employees who made them do not accurately reflect the completed ballot forms that were returned by those employees at the time of the ballot.

[9] In my view it is much more likely that the true accuracy of the ballot is reflected in the information provided by the Company, the statutory declaration declared by Mr Hurley, and the actual completed ballot papers provided by the Company. It is also more likely that any discrepancy is caused by the statutory declarations provided by the CFMEU of the employees’ recollection of how they voted rather than how they did in fact vote.

[10] I therefore prefer the evidence and information provided by the Company and am satisfied as a consequence that the employees to be covered by the agreement genuinely agreed to the agreement.

[11] I had some concerns regarding Clauses 6.2 and 6.5 in the agreement. The Company provided the attached undertakings (Attachment A). Any views of the bargaining representatives regarding the undertakings should be conveyed to my office by 5:00pm Friday, 8 November 2013.

[12] The CFMEU should also lodge an F18 (in full) by 5:00pm Friday, 8 November 2013 if they wish the agreement to cover the CFMEU.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR544218>

ATTACHMENT A

The Company respectfully provides the following undertakings for your consideration:

1. In order to address the concern regarding the second statement in clause 6.2; “or such other classifications as may be deemed appropriate by the Company from time to time”, Compile-Ryobi Australia Pty Ltd undertakes not to exercise said statement during the term of the Agreement and apply the Agreement only to the classifications listed in Clause 22 and 24 of the Agreement.

2. In order to address the concern regarding the Company's intent in clause 6.5 Compile-Ryobi Australia Pty Ltd undertakes to do the following if and when this clause in the Agreement is applied:

2.1 Where the Company requires an employee engaged under this Agreement to work at a place where the Company is required to engage that employee under different terms and conditions of employment to those contained in this Agreement, and the employee seeks from the Company a comparison between both sets of terms and conditions, the Company agrees to present that employee with a written comparison of what he or she is being paid under each arrangement.

2.2 The Company will ensure that those changed terms and conditions of employment will be, on balance, no less favourable than those contained in this

Agreement.