Compile-Ryobi Australia Pty Ltd v Construction, Forestry, Mining and Energy Union

[2013] FWC 8279

[2013] FWC 8279 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Compile-Ryobi Australia Pty Ltd
v
Construction, Forestry, Mining and Energy Union
(AG2013/1759)

DEPUTY PRESIDENT MCCARTHY PERTH, 23 OCTOBER 2013

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

[1] An application for approval of the Compile-Ryobi Australia Pty Ltd Enterprise Agreement 2013-2017 (the Agreement) was lodged by Compile-Ryobi Australia Pty Ltd (the Company).

[2] The Construction, Forestry, Mining and Energy Union (the CFMEU) requested an opportunity to make submissions to the Fair Work Commission (the FWC) regarding the meeting of the requirements under the Fair Work Act 2009 (the FW Act) for the Agreement to be able to be approved.

[3] I conducted a conference in respect of the application where the CFMEU asserted that there was a discrepancy in the voting process. I requested the CFMEU provide me with information in respect of the discrepancy that they asserted and any evidence in support of the contentions. I also requested the Company provide me with information regarding the processes leading up to the making of the Agreement.

[4] The CFMEU provided statutory declarations from 12 employees, although a summary provided by the CFMEU indicated 13 employees, however, one employee was counted twice. The statutory declarations showed that 10 employees declared that they were approached by Company representatives whilst working on 27 June 2013 and asked to fill in the ballot and place it in an envelope. Each of those 10 employees declared that they voted against the Agreement. Two of the declarations state that those two employees were not given the opportunity to vote on the Agreement and did not vote on it.

[5] A Statutory Declaration was made by Mr Anthony Hurley after the conference I held. Mr Hurley is an Industrial Relations Adviser to the Company. He asserts that there were four employees absent when the ballot papers were collected. One employee had reported in sick and was absent for the whole of the week of the ballot and another left site on the day of the ballot and terminated his employment. The third employee was on an approved rostered day off. The fourth employee, who was not at work on that day, came into the work site and handed in a sealed envelope with his ballot paper enclosed.

[6] It is therefore common ground that the two employees that the CFMEU provided statutory declarations for did not vote. What is contested is whether the Company complied with the obligations of the FW Act that the Agreement has been genuinely agreed to by the employees who will be covered by the Agreement. If I am not satisfied that, amongst other things, the employer covered by the Agreement did not comply with s.180(3), then the Agreement cannot have been genuinely agreed. To comply with s.180(3), the employer must take all reasonable steps to notify the relevant employees by the start of the access period for the Agreement of:

(a) the time and place at which the vote will occur; and

(b) the voting method that will be used.

[7] Two employees state that they were not given the opportunity to vote on the Agreement and by inference the Agreement was not genuinely agreed.

[8] The Employer’s Declaration in Support of the Application (the Employer’s Declaration) specified the steps taken to notify all relevant employees of the time and place in which the vote was to occur and the voting method to be used. It stated that:

“The Company sought assistance from Strategic Human Resources,

independent IR Consultants; to advice (sic) all employees of the voting process,

date of the vote and the Ballot Form to be used.

On 24 June 2013, Strategic Human Resources issued a Notice via the

Company and Ballot Form to each of the relevant employees.

Please refer to ATTACHMENT 2 for a copy of the Notice and ballot form sent

to each of the relevant employees.”

[9] The attachment referred to in the Employer’s Declaration is attached to this decision. The Employer’s Declaration was also signed by Mr Hurley.

[10] The Company later provided a copy of the notification that was issued to employees that would be covered by the Agreement that formally gave those employees a copy of the Agreement. That notification also clearly states when the “employee vote” is to take place. A copy of that notice is also attached to this decision.

[11] The contention of the CFMEU is therefore that two employees did not have the opportunity to vote. There is no mention in the declarations of the two employees of any lack of notification of the time and place at which the vote will occur or the voting method that will be used. There is also no mention that there was a notification that the Company did not take reasonable steps to notify. There is also no mention that the employees took up the invitation in the Notice of the Ballot to raise any questions with Mr Hurley relating to the process.

[12] I am satisfied that the Company did comply with the requirements of s.180(3) in that it took all reasonable steps to notify the employees to be covered by the Agreement of the time and place of the vote and the voting method. The evidence provided by the Company is convincing and the evidence of the CFMEU is insufficient for me to find that the Company did not meet its obligations.

[13] There were no other grounds that the CFMEU put forward regarding any other requirements of ss.185 and 186 of the FW Act not being met. If there are any other grounds why the Agreement should not be approved, the CFMEU should identify those grounds and provide submissions or evidence in support of them by 5pm on Friday, 26 October 2013.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR543608>

ATTACHMENT 2

COMPILE RYOBI AUSTRALIA PTY LTD

TO: _ DATE: 24 June 2013

SUBJECT: Employee Vote

“Compile Ryobi Australia Pty Ltd Enterprise Agreement 2013-

2017”

Following correspondence from Compile Ryobi Australia Ply Ltd (the Company) on 19 June 2013, regarding the enterprise agreement negotiation process for the proposed Compile Ryobi Australia Ply Ltd Enterprise Agreement 2013-2017, an employee vote on the proposed Agreement is now required.

Attached is the Ballot Form that:

1. you need to complete confidentially on Thursday 27 June 2013,

2. place your completed ballot form in the envelope provided, and

3. return the envelope to your Supervisor during that day.

Your supervisor will record the receipt of your envelope, collect them all and hand the envelopes into the Company’s office at the end of the day. Please note that your completed ballot form needs to be received by your Supervisor no later than 4:00pm on Thursday 27 June 2013 to be considered an eligible vote. This allows you time to complete your vote during that day.

The envelopes with the completed ballot form and the lists confirming which employees handed in their ballot form will be collected from the Company’s offices by
Tony Hurley, Strategic Human Resources, on the 28th of June and the vote count will be completed that day.

All employees and the Company will be notified of the outcome of the vote count soon after the vote count has been completed.

Should you have any questions relating to this process, please don’t hesitate to call Tony Hurley on (numbers deleted by the FWC).

STRATEGIC HUMAN RESOURCES

ATTACHMENT: Ballot Form and envelope

BALLOT FORM

COMPILE RYOBI AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2013-2017

Once you have had a reasonable opportunity to decide whether you want to approve the making of this Enterprise Agreement, please indicate your decision below.

¨ YES, I am in favour of this Agreement.

¨ NO, I am not in favour of this Agreement.

When you have completed this ballot form please place it in the envelope attached and seal the envelope to ensure confidentiality and hand it to your Supervisor on Thursday 27 June 2013.

The vote count will be conducted by Strategic Human Resources on 28 June

2013.