George Weston Foods T/A Tip Top Bakeries
[2023] FWC 2298
•8 SEPTEMBER 2023
| [2023] FWC 2298 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
George Weston Foods T/A Tip Top Bakeries
(AG2023/757)
TIP TOP BAKERIES DRY CREEK, CONSOLIDATED ENTERPRISE AGREEMENT 2023
| Food, beverages and tobacco manufacturing industry | |
| COMMISSIONER HUNT | BRISBANE, 8 SEPTEMBER 2023 |
Application for approval of the Tip Top Bakeries Dry Creek, Consolidated Enterprise Agreement 2023
George Weston Foods T/A Tip Top Bakeries (the Employer) has applied for approval of an enterprise agreement known as the Tip Top Bakeries Dry Creek, Consolidated Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.
The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and noted the concerns raised by the United Workers’ Union (UWU). As a result, the Employer has provided written undertakings to the concerns raised by the Commission and the UWU. Pursuant to s.190(4) of the Act, I sought the views of the employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views.
The UWU wrote to my chambers on 18 April 2023, advising that it did not have any objections or issues in relation to the undertakings provided by the Employer. It did, however, continue to press its concerns raised in respect of the voting process.
It is noted that the Form F17 completed by Ms Kendyl Vickerman, People and Performance Manager declared that the access period commenced on 28 February 2023. The Employer continued to provide information, including details of the vote through until 7 March 2023. Voting commenced on 8 March 2023 and closed on 10 March 2023.
The concerns raised by the UWU
In its Form F18, the UWU took issue with a number of statements made by the Employer in its application in respect of the voting process. In particular, the UWU refuted the Employer’s declaration that the Notice of Representational Rights (the NERR) was sent by email to all employees. The UWU advised it is aware that several employees do not have email addresses or have not supplied an email address to the Employer.
The UWU further noted that in respect to the access period, that being the time period from when the employees were informed that a vote would be taking place until the commencement of the voting period:
· the Employer does not specify the date(s) upon which “Voting Packs” were sent by courier to employees on leave or not on site who do not have an email address or have not supplied the Employer with an email address;
· the Employer does not specify the exact date(s) upon which “Voting Packs” were distributed to employees on site;
· the Employer does not specify the exact date(s) upon which it conducted Toolbox Talks to discuss the voting process;
· the Employer does not provide information about whether it took steps to ensure that the documents placed on noticeboards and in employee lunchrooms remained present on noticeboards and in lunchrooms. The UWU stated that it is aware that some employees were unable to locate these documents in their lunchroom;
· the “Ballot Notification and Information from GoVote” referred to by the Employer does not indicate that employees can lodge a postal vote. However, the Employer advised the UWU by email dated 28 February 2023, at the commencement of the access period, that it had arranged for employees to be able to cast a postal vote. The UWU is aware that a number of employees believed that they could cast a postal vote, but then were unable to do so; and
· the Employer does not specify the steps it took to ensure that, during the access period for the agreement, employees were given a copy of material incorporated by reference in the agreement, and in particular the Policies and Procedures referred to at clause 1.10 of the proposed Agreement.
In relation to the Employer’s response in explaining the terms of the Agreement, the UWU submitted that:
· The Employer does not specify how it identified workers whose first language is not English who might have particular needs in relation to their understanding of the proposed Agreement, or how it invited such workers to have their particular needs addressed. The UWU is aware that a number of workers from non-English speaking backgrounds found it difficult to read the proposed Agreement. The Employer does not provide information at question 6 regarding the number of employees from non-English speaking backgrounds covered by the proposed agreement; and
· The Employer does not specify the steps it took to accommodate young employees or employees with disabilities in explaining the terms of the proposed agreement. The Employer does not provide information at question 6 regarding the number of employees with disabilities and indicates that six workers under the age of 21 are covered by the proposed agreement.
Attached to the Form F18 is an email sent by Ms Tahlia Holbrook, People & Performance Business Partner on 28 February 2023 to Ms Anne Purdy and Mr Benju Delal of the UWU:
“Hi Anne and Benju,
I understand why some members would prefer to vote via a Ballot box.
I have sought advice and looked for alternative options and unfortunately we cannot accommodate a secure system to introduce the Ballot box in conjunction with the online vote. It would be best to keep centralised with GoVote to ensure confidentiality and eliminate any potential scrutiny regarding a fair process.
To try and alleviate concerns we have organised GoVote to provide the following options for all employees to choose from. These include:
· SMS Vote
· Email Vote
· Telephone (details of 1800 number are provided with instructions) – landlines available onsite for use also if required.
We have also just paid an additional premium so that they can also cast vote via postal which will be managed directly through GoVote.
Hopefully all 4 options will suffice for majority.
Any concerns raised I will address and have further conversations during toolbox talks to try alleviate any further concerns one on one.
Thanks for letting me know.”
The UWU sought additional information from the Employer addressing the issues raised above.
As part of the Commission’s concerns, I invited the Employer to respond to the concerns raised by the UWU. As it eventuated, the postal vote option was not provided to employees.
Ms Vickerman completed a witness statement. Ms Vickerman stated that on 28 February 2023, an email was sent to all employees at the Dry Creek location who would be covered by the Agreement, and for whom the Employer knew had a GWF email accounts. The email is extracted in full below:
“From: Holbrook, Tahlia <redacted>
Sent: Tuesday, 28 February 2023 2:04 PM
To: TT Dry Creek Users
Subject: Summary of proposed changes to EA and voting informationAttachments: 2023.02.28_Memo_Proposed Changes to EA and Votes.pdf; FINAL_Tip Top Dry Creek Consolidated Enterprise Agreement 2023.pdf; Notification_Letter_1989.pdf; Ballot rules for Tip Top Bakeries Dry Creek Enterprise Agreement 2023.pdf; Notice of Intention to Conduct Ballot_TT DC EA 2023_SIGNED.pdf
Hi Everyone,
Please see the attached memo detailing the summary of our proposed offer for the Tip Top Bakeries Dry Creek Consolidated Enterprise Agreement 2023. We have also included:
· Updated copy of Agreement
· Notification Letter from GoVote to explain the voting process and options
· Ballot rules
· Notification of Intention to Conduct Ballot
We will be conducting toolbox talks with each department to further explain these changes and to discuss the voting process in detail. There will be hard copies of these documents in voting packs which can be collected from your Manager during these toolbox talks also.
If you have any queries please contact myself or your direct manager to discuss.
Tahlia Holbrook
People & Performance Business Partner
…”
Ms Vickerman stated that an email was also sent to the entire Sales (Merchandiser) workforce (with all merchandisers Bcc’d to protect their information). This email is extracted in full below:
“From: TT Field Sales PNP <redacted>
Sent: Tuesday, February 28, 2023 3:42 PM
Cc: [redacted]Subject:Tip Top Bakeries Dry Creek Agreement | Access Period and Voting Information
Dear All Respondents to the Tip Top Bakeries Dry Creek Agreement 2023—2026,
After further discussions with the negotiation team, the Access period and Voting timeline for the Tip Top Bakeries Dry Creek Enterprise Agreement have been revised as follows:
· Access period: Tuesday 28th February 2023 – Tuesday 7th February 2023
· Voting period: Open 8am Tuesday 8th March 2023 | Close 1pm Friday 11th March 2023
Please find attached or linked a copy of all documentation in relation to the proposed agreement:
1. Notice of Intention to conduct Ballot
2. Notification Letter – voting instructions
3. Ballot Rules
4. Tip Top Bakeries Dry Creek Agreement 2023 – 2026
5. Memo Proposed Changes to Agreement
6. National Employment Standards
7. Commercial Sales Award
A communication session will take place over the next on Friday 3rd March at 11am to explain the changes of the terms of the agreement. If you require further information to ensure that you understand the terms of the Agreement please advise your Manager or People and Performance, who will be able to assist with your enquiry.
Please note that we will be using electronic voting via external third party, Go Vote. Go Vote will send separate information to you via email with details on how to vote.
Should you require any further information in relation to the Enterprise Agreement, access period or voting period, please speak with your Manager, Union Representative, Kendyl Vickerman or a member of the People and Performance team at [redacted].Kind Regards,
Tip Top People & Performance Team”
The Employer confirmed that all sales employees have an email account as this is the common method of communication as they are a remote workforce. In addition, the sales team facilitated a communication session on Friday, 3 March 2023 to explain the proposed changes to the Agreement and the voting process. The presentation was distributed by blind copy email to all the sales workforce post the communication session. A copy of this email is extracted below:
“From: Mordant, Roel <redacted>
Sent: Wednesday, March 8, 2023 1:46 PM
Cc:TT Dry Creek Area Managers <redacted>; Vickerman, Kendyl <redacted>
Subject:SA EA Vote
Good morning SA Merch Team,
Our EA Voting Period has opened! By now you should of received a text message from “Go Vote” to be able to submit your vote. Its really important you have your say and we really encourage you to vote. Voting closes Friday 10th March 2023 @ 1pm.
We held a communication session last week during access period, however, if you weren’t able to attend please see attached the presentation and recap of the proposed offer. A really great outcome for our merchandising team.
Any questions please reach out to your ASM or our P&P Team directly. If you haven’t received your text message to cote please notify [redacted] asap so we can get this out to you.
We will communicate the result and next steps on Friday afternoon.
Thank you in advance!
Kind Regards,
Kendyl Vickerman
People & Performance Manager – Field Sales”
For operational employees based onsite, Ms Vickerman stated that the Employer distributed voting packs by hand during toolbox talks between 28 February 2023 and 3 March 2023.
The employees who were not in attendance at toolbox talks were approached by their leaders who handed to them a voting pack and recorded their details on a document, signed for by some of the employee receiving the voting pack. The Employer provided a copy of this record to my chambers. The date recorded is 2 March 2023. It is noted that some employees are recorded as having received a voting pack, but their signature is not provided. Some other employees are noted as being on leave. A small number of employees have N/A against their name.
For applicable employees who were not onsite nor had a GWF email account, the Employer sent an email on 2 March 2023 to their personal email address on file.
“From: Holbrook, Tahlia <redacted>
Sent: Tuesday, 2 March 2023 11:56 AM
Cc: [Redacted]
Subject: Summary of proposed changes to EA and voting informationAttachments: 2023.02.28_Memo_Proposed Changes to EA and Votes.pdf; FINAL_Tip Top Dry Creek Consolidated Enterprise Agreement 2023.pdf; Notification_Letter_1989.pdf; Ballot rules for Tip Top Bakeries Dry Creek Enterprise Agreement 2023.pdf; Notice of Intention to Conduct Ballot_TT DC EA 2023_SIGNED.pdf
Hi Everyone,
Please see the attached memo detailing the summary of our proposed offer for the Tip Top Bakeries Dry Creek Consolidated Enterprise Agreement 2023. We have also included;
· Updated copy of Agreement
· Notification Letter from GoVote to explain the voting process and options
· Ballot rules
· Notification of Intention to Conduct Ballot
We will be conducting toolbox talks with each department to further explain these changes and to discuss the voting process in detail. There will be hard copies of these documents in voting packs which can be collected from your Manager during these toolbox talks also.
If you have any queries please contact myself or your direct manager to discuss.
Tahlia Holbrook
People & Performance Business Partner
…”
For those who were not onsite, nor had an email address known to the Employer, the Employer advised that the voting pack was couriered to their home address on 3 March 2023. A spreadsheet attached to Ms Vickerman’s statement detailed that a courier was sent in respect of three employees on 3 March 2023.
Ms Vickerman stated that voting information was placed on noticeboards and above “clock in clocks” on 28 February 2023. On this date, hard copies of the Agreement were placed on tables of the lunch rooms with a Memorandum of Summary of Proposed Changes attached to the front of the Agreement. The Memorandum stipulated as follows:
“28th February 2023
Summary of Proposed Changes to Tip Top Bakeries Dry Creek Consolidated Enterprise Agreement 2023
After numerous negotiation meetings with UWU, delegates and employee representatives, the company would like to present the below offer without prejudice and for your consideration.
Current Offer
1. 5% Pay Increase per annum
2. 3 Year Agreement
3. 5% Increase on First Aid and Meal Allowances
4. Increase Team Leader Allowance to $100
5. Boot Allowance increase to $175 per occasion / when required
6. Merchandiser KM allowance increase to 92c
7. KM Allowance (all other employees) increase to 91c
8. Consolidate Merchandiser rates to Level 2 and additional 50c increase per hour.
9. Bread Industry L4 Production Classification description to include ‘Forklift Use (applicable only for those required to use forklift)’
10. Bread industry L5 Classification description to include “Involvement in and provision of on-the-job training for other employees.’
11. Union officials to attend new starter inductions and onsite mass meetings on 4 occasions per year.
12. Backpay paid upon approval of agreement.
Additional Changes and Amendments.
Clause 4.12 Superannuation; Updated clause in line with SCG reforms. No change in entitlements or process.
Clause 6.2.6 Cashing out paid personal / carers leave; remove “(d) Leave taken during the year will be deducted from current leave accrual” for greater clarify and to avoid confusion.
Clause 3.3 Disciplinary Procedure, Warnings; include additional wording regarding EAP support, representation, notification, and reoccurrence.
Clause 4.2 Classification Structure and Career Progression; additional wording to confirm process for career progression, requirements, and opportunities.
Voting Process
We will conduct toolbox talks from Tuesday 28th Wednesday and be issuing voting packs with the following information:
· Summary of proposed changes
· Notice of intention to conduct ballot
· GoVote Information Letter
· Copy of Draft EA
This will also be sent via email to all.
During these toolbox talks we discuss proposed changes and seek feedback and clarification. There will be an opportunity for those who require assistance because English is a second language we can provide a buddy or translator if needed.
The vote will be conducted online by a third party GoVote and details will be included for those who do not wish to case vote via SMS or email and can do so via Telephone.
The votes dates are as below;
Open 8am Wednesday 8th March 2023
Close 1pm Friday 10th March 2023If you have any questions, please ask your direct manager or any of the following:
· Juanita Alcantara, Operations Manager SA
· Tahlia Holdbrook, People and Performance Business Partner
You can also find additional detail relating to relevant legislation links below;
Food Beverage and Tobacco Manufacturing Award
[link]Commercial Sales Award
[link]National Employment Standards
[link]”
Ms Vickerman pointed out that the notification letter detailed three ways in which to vote in respect of the Agreement; being SMS, email or telephone hotline. She stated that the postal vote option was explored but not available. An explanation was not provided as to why the UWU was informed on 28 February 2023 that a postal vote had been paid for, but was not actually available to voting employees.
Ms Vickerman stated that for applicable employees who did not have a mobile number or an email address on file, they had the option to cast their vote via the telephone hotline. The process was explained to applicable employees during the toolbox talks and one-on-ones when distributing packs.
Ms Vickerman stated that applicable employees who required assistance were provided access to landline telephones within the production and warehouse offices with the guidelines for them to follow to cast a telephone vote. No issues or concerns were raised with the Employer.
Ms Vickerman stated that the Employer invited employees to come forward if they had any issues with the voting process. She stated that at no time during the access period or voting period did the UWU advise of any difficulties faced by employees to be covered by the Agreement. Ms Vickerman stated that if the UWU did have concerns or information at this time, she would expect the Employer to have been notified of the concerns or information.
The Employer asserted that all reasonable steps were taken to ensure applicable employees were provided with all relevant materials. The Employer explained that the Memorandum with Summary of Changes, which was distributed by email and included in all voting packs and discussed during toolbox talks, included links to the National Employment Standards and relevant Awards. All company policies are also available on the Employer intranet. All policies are also distributed and signed by all new starters during induction. There is online refresher training conducted regularly.
The Employer said it does not record applicable employees who identify as being from a non-English speaking background in their systems. The opportunity was verbally presented if any additional support was required during toolbox talks and one on ones. The Employer is not aware of any relevant employees coming forward with such a request.
There are no applicable employees under the age of 18. No employees raised issues in relation to their age or disability such that would cause concern. The Employer asserted the opportunity was verbally presented if any additional support was required during toolbox talks and one on ones. The Employer is not aware of any relevant employees coming forward with such request.
The Employer chose to make no further comment in respect to the UWU’s concerns regarding the NERR.
United Workers’ Union response
The UWU was invited to provide a response to the Employer’s response and undertakings. The UWU advised that it does not have any objections or issues in respect to the undertakings provided by the Employer.
In relation to the UWU’s further questions about the voting process, the UWU submitted that the Employer’s own evidence appears to be that:
1. The Employer did not take any steps to advise workers who were not merchandisers, who do not have a GWF email account, and who did not attend the worksite after the positing of voting information on noticeboards and above clock-in clocks on 28 February 2023, of the time, place, and method of the vote prior to the start of the access period. Such workers are likely to have included any operational staff (non-Merchandisers) who:
· Were on personal leave on Tuesday, 28 February 2023; or
· Were on annual leave on Tuesday, 28 February 2023; or
· Were on any other type of leave on Tuesday, 28 February; or
· Who completed their shift prior to the posting of voting information in these areas on 28 February 2023; or
· Are not generally rostered to work on Tuesdays; or
· Who do not work a regular shift pattern and who were not rostered to work on Tuesday, 28 February 2023.
2. The Employer has also not explained the inconsistency between the voting information provided to workers and the Commission, which indicates that voting by post was not an option, and the email at [8].
Based on the above, the UWU sought further information from the Employer as to the steps it took to advise the workers above of the time, place, and method of the vote prior to the start of the access period as well as to its communications around the availability of postal voting.
The UWU also sought my preliminary view in respect of the Employer’s responsibility to meet its obligations at s.180(3) of the Act. In correspondence dated 19 April 2023, the following preliminary view was shared with the parties:
“The UWU has asked for a preliminary view of the Commissioner in respect of the Applicant’s responsibility to meet obligations at s.180(3) of the Act. Given the voting cohort was 229 eligible voters, and the yes vote was only 85, the postal vote matter and whether it affected eligible employees’ abilities to vote is a live issue.”
I invited the Employer to provide further information by 21 April 2023. On 20 April 2023, Ai Group communicated that it was now acting for the Employer and requested until 28 April 2023 to provide its views. The extension sought was granted.
The Employer’s Response
On 28 April 2023, the Employer provided further submissions in respect to the UWU’s enquiries, together with a supplementary statement from Ms Vickerman.
Ms Vickerman’s supplementary statement is to the effect that:
· A spreadsheet was generated by GWF payroll on 27 February 2023 with 229 names of employees who would be eligible to participate in a vote for the Agreement;
· A notice of intention to conduct ballot was placed on notice boards next to or above clock in/clock outs on 28 February 2023;
· A document titled ‘Summary of Proposed Changes to Tip Top Bakeries Dry Creek Consolidated Enterprise Agreement 2023’ was placed in all lunchrooms on 28 February 2023;
· Voting packs were emailed to all merchandisers/sales employees, which account for 82 employees;
· 9 operational employees with GWF email addresses were emailed the voting pack on 28 February 2023;
· Between 28 February 2023 and 3 March 2023, employees in attendance at work were handed voting packs and attended toolbox talks;
· 9 employees were identified as not having any email account on their file;
· 104 voting packs were hand delivered on 2 March 2023; and
· 2 employees were sent voting packs by courier on 3 March 2023.
The following written submissions were provided.
Reliance upon the ‘yes’ vote
The Employer noted that the F17 filed by the Employer on 23 March 2023 identifies at question 26 that there were 229 employees eligible to vote and that 152 did vote. Of the 152 who voted, 85 voted to approve the Agreement. This equates to 66.37% of eligible employees casting a valid vote. The Employer noted that the number of eligible employees who did not cast a valid vote were 77.
The Employer submitted that there should be no reliance placed by the Commission upon the number of eligible employees who voted ‘yes’ to determine whether the Employer has met its obligations pursuant to s.180(3) of the Act.
If reliance is to be placed upon employee numbers, the Employer submitted that reliance should be that 152 eligible employees did cast a valid vote and only 9 employees did not receive, by email, the voting packs with the particulars required by s.180(3) of the Act on 28 February 2023.
Section 180(3) of the Act
The Employer submitted that the proper interpretation of the test in s.180(3) is whether the Employer took all reasonable steps. The Employer relied upon the decision of the Full Bench of the Fair Work Commission in Construction, Forestry, Mining and Energy Union v Australian Mining Supplies Company Pty Ltd [2017] FWCFB 2236 at [14]:
“Section 180(3) requires that the employer take ‘all reasonable steps’ to provide the required notification. The meaning usually assigned to that expression was discussed by the Full Bench in Maritime Union of Australia v Northern Stevedoring Services[1] (albeit in the different context of the use of the expression in a provision of an enterprise agreement):
‘[33] The expression “all reasonable steps”, and the case authorities concerning that and similar expressions were discussed at length in the decision of the Industrial Relations Commission of NSW in Court Session Bluescope Steel Ltd v The Australian Workers' Union, New South Wales ([2004] NSWIRComm 222; 137 IR 176 at [67]- [71]). The following propositions may be derived from the Court’s analysis:
· reasonable steps are what a reasonable man or woman would regard as being reasonable steps in the circumstances which apply;
· the obligation to take “reasonable steps” depends on the particular circumstances existing at the time the obligation arises; and
· a requirement to take all reasonable steps does not extend to all steps that are reasonably open in some narrow or theoretical sense (such as, for example, matters not directly within the particular knowledge or experience of a relevant party).
[34] Additionally in Parland Pty Ltd & Ors v Mariposa Pty Ltd ([1995] TASSC 91; (1995) 5 TASR 121 at 133) the Tasmanian Supreme Court said, in relation to a requirement for a party to use its best endeavours to achieve a particular object, that a failure to take a particular step had to be assessed by reference to its materiality to the failure to achieve the relevant object. The Court said:
“In any event quite apart from authority it would seem to me to be an untenable proposition that a party could be held to have failed to satisfy a condition requiring it to use its best endeavours in relation to an application because it failed to take some particular step if in fact the application would have been unsuccessful even had that step been taken.”’”
All reasonable steps taken by the Employer
The Employer submitted that it took all reasonable steps to notify eligible employees of the requisite information required by s.180(3) of the Act. The Employer further asserted that the evidence, as filed by the Employer, establishes that:
· the steps taken by the Employer to comply with s.180(3) should be accepted by the Commission as being steps that a reasonable person would regard as being reasonable in the circumstances which applied to the Employer;
· the Employer took reasonable steps in the particular circumstances which arose, in particular towards the 9 employees without email access; and
· the matters directly within the knowledge or experience of the Employer were such that the Employer acted in compliance with s.180(3) of the Act.
The Employer submitted the following key dates and steps taken by the Employer to comply with s.180(3):
· On 28 February 2023, the Employer placed on all lunchroom noticeboards a document titled ‘Notice of Intention to Conduct Ballot’ (the Notice). The Notice contains the particulars required by section 180(3). The lunchroom noticeboards were next to or above clock-in/clock-out clocks.
· Any employee who clocked in or out on 28 February 2023 would have seen the Notice.
· Any employee who passed a lunchroom noticeboard or clock-in clock on 28 February 2023 had access to the Notice.
· On 28 February 2023, the Employer placed a document titled ‘Summary of Proposed Changes to Tip Top Bakeries Dry Creek Consolidated Enterprise Agreement 2023’ (the Summary) on tables in all lunchrooms.
· The Summary contained the information required by section 180(3).
· Any employee who entered a lunchroom on 28 February 2023, had access to the Summary.
· On 28 February 2023, the Employer emailed voting packs to all merchandiser/sales employees. The voting packs contained the Notice. The number of employees who fell within this group was 82.
· On 28 February 2023, the Employer emailed voting packs to operations employees who had GWF email addresses. The voting packs contained the Notice. The employees who fell within this group was 9.
· Toolbox talks were conducted between 28 February 2023 and 3 March 2023 where voting packs were handed to operations employees. The dates of those toolbox talks were consistent with the Employer’s regular schedule based on shift patterns and hours of work. Examples of confirmation of those toolbox talks, and hand delivery of voting packs has been provided. 104 voting packs were hand delivered to employees during toolbox talks.
· Employees who were not present at toolbox talks were emailed voting packs. The voting packs contained the Notice.
· 9 employees were identified by the Employer as not having any email account on their file. The Employer hand delivered voting packs to 7 of those employees on 2 March 2023. The Employer couriered voting packs to 2 of those employees not onsite, on 2 March 2023. Those packs were collected by the courier on 3 March 2023.
The Employer submitted that it took all reasonable steps by the start of the access period to notify employees of the information required under section 180(3).
The Employer submitted that it took all reasonable steps by emailing and placing in prominent areas the required information. The Employer asserted that it was reasonable for the Employer to believe employees would have access to and read information provided in the workplace in prominent areas (lunchroom noticeboards, lunchroom tables and clock in/out clocks).
The Employer further submitted that it took all reasonable steps by providing voting packs to employees as per their regularly scheduled toolbox talks commencing 28 February 2023.
The Employer, after becoming aware that 9 employees did not have access to the information required by s.180(3), arranged for those employees to have that information provided to them personally on 2 March 2023 or arranged for that information to be couriered to those employees.
The Employer submitted that whilst not all 229 employees were provided with the information required by s.180(3) by the start of the access period on 28 February 2023, the Employer did take all reasonable steps to do so.
Further UWU Concerns – steps to advise workers
The Employer submitted that the UWU makes hypothetical assertions as to which employees are “likely” to fall into the category that were not sales/merchandiser employees, who did not have a GWF email account and who did not attend the worksite after 28 February 2023. To that hypothetical assertion, the Employer relies on the decision in Construction, Forestry, Mining and Energy Union v Australian Mining Supplies Company Pty Ltd[2017] FWCFB 2236 at [14] which cautions against undertaking such an approach in assessing compliance with s.180(3):
“• a requirement to take all reasonable steps does not extend to all steps that are reasonably open in some narrow or theoretical sense (such as, for example, matters not directly within the particular knowledge or experience of a relevant party).”
The Employer submitted that the requirement of s.180(3) is not absolute, in that notification must have occurred to all employees prior to the commencement of the access period on 28 February 2023. The requirement is that the Employer takes all reasonable steps to comply.
The Employer submitted that it did take all reasonable steps as required by s.180(3), and the concern of the UWU that the Employer “did not take any steps” cannot be substantiated.
The Employer submitted that for those employees who received voting packs on 2 March 2023 were provided with “ample” notice of the ability to participate in the vote.
Further UWU concerns – voting information inconsistency
The Employer acknowledged that Ms Holbrook at [8] informed the UWU on 28 February 2023 that postal voting would be available, and that this was not included in the voting materials provided to employees.
The Employer is not aware of it informing employees that postal voting was an option. The Employer submitted that the email at [8] was communication between Ms Holbrook and the UWU, however all voting information provided to eligible employees was entirely consistent as to the methods of voting.
The Employer submitted that the voting packs provided a range of means enabling eligible employees to effectively vote, given that all employees either had internet access (whether personal internet access) or the ability to access the Employer’s internet, or access to a mobile or landline telephone.
The Employer submitted that the ability to vote via post would have had to have been an election by an employee based on preferences, as opposed to one based on need. That is, there has been no evidence provided that during the access period, during the vote or after the vote that an eligible employee had no access to internet or phone services such that they could only vote by postal means.
The Employer confirmed it did not receive any postal votes from eligible employees.
The Employer submitted that by provision of the various aforesaid methods of voting options available to eligible employees, that it has met its obligations arising pursuant to s.180(3).
The Employer submitted that there could have been no confusion by eligible employees as to the methods by which they could vote.
Disposition
The Employer submitted that the Commission should be satisfied that the Employer has met its obligations pursuant to s.180(3) of the Act.
The Employer further argued that the only evidence before the Commission demonstrates that the Employer has met all its legislative obligations in relation to the application for approval of the Agreement and therefore the Commission should approve the Agreement.
Discussions between the Employer and the UWU
On 2 May 2023, Ms Purdy, Industrial Officer – Food and Beverage of the UWU corresponded with chambers to advise that discussions were being held with the Employer. Ms Purdy proposed to report back or file further material by 4 May 2023. I agreed with the request.
UWU’s submissions and witness statement
On 4 May 2023, the UWU filed a witness statement of Mr Benju Dulal, Organiser, together with submissions.
Witness Statement of Benju Dulal
Mr Dulal has been employed by the UWU for approximately two years and before that, worked for another union. He is an Organiser, and in this role, he has the responsibility for the UWU’s activities in the food and beverage industry in South Australia. He is the assigned Organiser for the Employer’s worksite located in Dry Creek, South Australia which would be covered by the proposed agreement which is the subject of the application.
In his role, Mr Dulal represents, acts for and regularly meets with the UWU worksite delegates, other UWU members and non-members employed by the Employer. He regularly visits the worksite and has a level of familiarity with the worksite’s various departments and shifts.
Mr Dulal understood, based on his discussions with members employed by the Employer at the worksite and his involvement in bargaining, that the following groups of workers were entitled to vote on the proposed agreement which is the subject of the application:
· Warehouse employees;
· Packaging employees;
· Baking employees; and
· Merchandising employees.
Warehouse workers, packaging workers, and baking employees perform their work at the worksite according to various rosters.
Mr Dulal stated he is also aware that there is a group of employees called “Weekend Warriors” comprised of packaging and baking employees. This group of workers is generally rostered to work only on Fridays to Mondays. They are not generally rostered to work Tuesdays to Thursdays. Mr Dulal believed that there are about five or six packaging employees who make up this Weekend Warrior group, as well as about five or six baking employees.
Mr Dulal stated he is also aware that there is a shift of packaging employees who undertake slicing work in the early mornings. He understood that there are about six to seven packaging employees who are rostered to perform slicing work, starting from around 1:00am to 2:00am and finishing about 8:00am to 10:00am on Sundays through to Thursdays.
Mr Dulal understood that the Employer employs a number of casual and part-time workers who may be rostered to work various days of the week on a regular or irregular basis.
UWU submissions
The UWU submitted that the Employer has not complied with certain pre-approval requirements by the start of the access period for the proposed Agreement. In particular, that it did not take all reasonable steps to notify relevant employees of the time and place at which the vote would occur, and the method of voting that would be used, by the start of the access period pursuant to s.180(3) of the Act.
In making this submission, the UWU relied on the statement of Mr Dulal.
Non-Compliance with requirements of s.180(3)
The UWU contended that the requirements of s.180(3) are important to ensure that employees who fall within the coverage of a proposed agreement have a fair opportunity to participate in a vote and are not disenfranchised. Compliance with the requirements of s.180(3) of the Act bear implications on whether or not an agreement meets the requirement of being genuinely agreed to pursuant to s.186(2)(a) of the Act.
Pursuant to s.180(3) of the Act, by the start of an access period, an employer must take all reasonable steps to notify relevant employees of the time and place at which the vote will occur, and the method of vote to be used. The UWU concurred with the Employer’s submissions that the test in s.180(3) of the Act is whether or not the Employer took all reasonable steps to notify employees of the matters referred to above. The test is not whether or not the Employer did notify the employees of the above matters in absolute terms.
Nonetheless, the UWU submitted that the Employer did not take all reasonable steps, or any steps whatsoever, to notify particular groups of relevant employees of the time, place and method of vote.
The groups of employees referred to are those operations employees known colloquially as “Weekend Warriors” as well as packaging employees engaged in slicing to undertake early morning work.
The UWU noted that the Employer’s evidence is that 229 employees were eligible to vote on the proposed Agreement and that 152 did vote. The Employer also provided evidence that 82 of the 229 employees who were eligible to vote were merchandiser / sales employees. The remaining 147 employees are referred to as “operations employees”.
The UWU further noted that it is the Employer’s evidence that it emailed voting packs to all merchandising/sales employees on 28 February 2023. According to the Employer, it also emailed voting packs to 9 operations employees who had GWF email addresses on 28 February 2023.
The UWU asserted that it can be deduced from the Employer’s evidence that it did not email voting packs to 138 operations employees, who did not have GWF email addresses, on 28 February 2023.
The Employer therefore placed reliance on placing information about the vote on lunchroom noticeboards in order to notify these 138 operations employees of the time, place, and method of the vote by the start of the access period on 28 February 2023. The Employer’s evidence is that it did also hand voting packs to employees throughout toolbox talks between 28 February 2023 and 3 March 2023. However, on the Employer’s own evidence, the UWU noted that only some of these talks were carried out on 28 February 2023, and not all employees attended such talks.
In summation of the Employer’s evidence, the UWU submitted that it placed sole reliance on steps to notify some 138 operations employee who did not have GWF email addresses of the time, place and method of vote which required such workers to be at the worksite located in Dry Creek on 28 February 2023 to either observe lunchroom noticeboards or attend a toolbox talk, if indeed any toolbox talk was conducted for their work group on 28 February 2023.
In reference to Mr Dulal’s statement, the UWU noted there is a group of about 10-12 operations workers who generally would not be present at the Dry Creek worksite on a Tuesday, being the “Weekend Warriors” who typically work Friday to Monday. This number of employees is not an insignificant proportion of the relevant employees.
A further group of around six to seven packaging workers finish their shift by 8:00am to 10:00am on Tuesdays.
Further, it could be expected that a certain number of employees would have been absent from the workplace on Tuesday, 28 February 2023, whether because they were not rostered to work that day as a part-time or casual employee or were on leave.
The UWU submitted that the Employer has failed to provide any evidence as to the number of workers on leave on Tuesday, 28 February 2023, or otherwise not present at the worksite that day, giving rise to an inference that such evidence would not be supportive of its case such as that made in Jones v Dunkel.[2]
In summary, the UWU submitted that the Employer did not take any steps whatsoever to notify the following groups of the time, place, and method of the vote by the start of the access period:
· Weekend Warriors;
· Packaging workers engaged on early morning shift in slicing;
· Workers otherwise absent from the workplace on 28 February 2023.
These groups, according to the UWU, are not “narrow” or “theoretical” and could be taken to be directly within the particular knowledge of the Employer.
In consequence of the above evidence, the UWU submitted that the Employer has not met the requirements of s.180(3) of the Act, and in such circumstances, the Agreement cannot be approved.
Conference
In mid-May 2023, my chambers liaised with the parties to find a suitable time for a conference to discuss the issues. On 18 May 2023, I convened a conference with the following attendees:
·Mr Lee Buntman, Ai Group for the Employer
·Ms Kendyl Vickerman, Employer
·Ms Laura Evans, Employer
·Ms Anne Purdy, UWU
·Mr Paul Brunning, Individual Employee Bargaining Representative
During the conference, I flagged with the parties that I may seek to obtain evidence and views of employees as to whether any of them were disenfranchised or otherwise affected by the conduct of the vote.
On 19 May 2023, Mr Buntman sent the following email:
“I refer to the conference conducted yesterday and can advise that the parties have held discussions about attempted resolution of this matter.
I am instructed by the Applicant, that at this juncture its’ preference is for the FWC to seek feedback from employees who state that they did not obtain the materials or did not have access to the materials detailing the particulars of s.180(3) FW Act and/or who otherwise felt disadvantaged by the process. The Applicant believes such information, as a minimum, if forthcoming, may provide valuable feedback for future votes.”
Ms Purdy responded by email as follows:
“I refer to the Applicant’s email below.
Our union is supportive of the Fair Work Commission making orders to the effect that it should solicit information direct from workers employed by the Applicant regarding their disenfranchisement resulting from the Applicant’s approach to disseminating information about the vote.
If the Commission is minded to make such orders we would ask that workers be offered the opportunity to provide information by both phone and email, given that we are aware that a number of our members do not use computers or email.”
After obtaining the parties’ views on the proposed wording, on 24 May 2023, I directed the Employer to send the below extracted correspondence to all employees to be covered by the Agreement by 1 June 2023:
“Dear Tip Top Bakeries Dry Creek employee,
Your employer, George Weston Foods trading as Tip Top Bakeries Dry Creek, has made an application to the Fair Work Commission (the Commission) for approval of the Tip Top Bakeries Dry Creek, Consolidated Enterprise Agreement 2023 (the Agreement).
My name is Commissioner Hunt and I am the Commissioner tasked with deciding if the Agreement can be approved.
Concerns have been raised by the United Workers Union about the voting process and I require further information to help me decide if I can approve the Agreement.
Your employer started informing employees on 28 February 2023 of the vote to take place 8-10 March 2023. Your employer informed employees of how the ballot would be held, by way of internet, telephone or SMS.
If you weren’t informed by your employer on 28 February 2023 of how the vote was going to be held, and this affected your ability to vote in the ballot, I need to understand if you were likely to have been disadvantaged. If you have any other concerns as to how the vote was conducted, you are welcome to contact me. It is important I know if you voted in the ballot, so please feel free to share this with me.
You are invited to email me at [email protected] or call my Associate on [redacted] to let me know how this affected you. My Associate will take your name and details and will make a file note of the information you advise. The telephone call will not be recorded.
Any employee who writes to me or calls my Associate will have to start their name, however this will not be shared with your employer and the United Workers Union. I will, however, cross-check your name against a list of employees provided to me by your employer, to ensure you are an employee who would be covered by the Agreement.
If you wish to make contact with me, please ensure you do so by no later than 4:00pm, Thursday, 8 June 2023.
Commissioner Hunt
Fair Work Commission”
On 29 May 2023, the UWU confirmed that the above correspondence was circulated to the employees, however it was circulated using a GWF letterhead. The UWU stated that some employees had raised concerns that my correspondence was actually sent by the Employer and not myself and therefore requested that the correspondence be issued to employees without the Employer’s letterhead.
On 30 May 2023, the following correspondence was sent to the parties from my chambers:
“Dear Parties,
Reference is made to the above matter and the below correspondence received from Ms Purdy.
The Commissioner requests (but does not direct) that the memo be issued by a person from the Applicant, and not from Commissioner Hunt. The Commissioner considers it appropriate that the memo has the letterhead and footer on the front page and announces that over the page there is a communication from Commissioner Hunt. The communication should be unmarked except for the Commissioner’s signature and Fair Work Commission logo.
Kind regards…”
My chambers received confirmation from the Employer that my above request was met on 30 May 2023.
On 22 June 2023, I sent correspondence to the parties providing an anonymised version of the views provided by the employees. This email is extracted in full below:
“Dear Parties
Reference is made to the above matter.
The Commissioner notes that the Employees of the applicant were provided an opportunity to notify the Fair Work Commission (the Commission) of their respective views of the voting process for the Tip Top Bakeries Dry Creek, Consolidated Enterprise Agreement 2023 (the Agreement).
The Commission is in receipt of a total of 10 responses from individual employees of the Applicant. The views are extracted in the table below:
Employee 1
(Voicemail)
Hello. Good day. My name’s [REDACTED] here. I’m Tip Top Dry Creek GW. Look, I tried to contact you yesterday and unfortunately I’ve got the same thing, the answering machine. But I’ve got very little time between the hours I go to work and the hours I leave home from work because this is all done in my own time, not work time. So if you can contact me just before 10:10 AM today that would be most grateful on [REDACTED]. Thank you. Employee 2
(Voicemail)
Yes, hello. It’s [REDACTED] here. I work at Tip Top Bakery and I’m ringing up in regards to the enterprise agreement that we’re currently going through. If you can call me back soon on [REDACTED]. Thank you. Employee 2
(Telephone call)
The Associate called Employee 2 back on 6 June 2023, in which Employee 2 advised the following:
· When due to put in the vote, Employee 2 was not at work. They provided Employee 2 a package via special delivery.
· Employee 2 is not really good with email and SMS, so Employee 2 tried to vote over the phone. Employee 2 was not sure if the vote went through.
· Employee 2 has always been of the opinion that the company should have a secret ballot – when they were trying to vote and wanted to go through the process, Renata stressed that they needed to get a secret ballot and only way to get the vote in.
· Employee 2 has worked at Tip Top for over [REDACTED] years, and gone through a lot of EBAs. The work is usually a good place to work for, but the EBA is not as great. Employee 2 hopes things works out better for them.
Employee 3
(Email)
Hi I am an employee of Tiptop dry creek. I was informed and did vote but voted no as so many of the other staff did also.
My question is if I'm allowed to know this, is,
What percentage of staff actually took part in the voting process?
What they offered us is an insult due to the rate of inflation and the fact we are the lowest paid out of all the tiptop factories.
So for the votes to be so close I wonder how many actually took part in the voting process compared to how many didn't.
I understand if I'm not allowed this information but we as a group we're not happy about the offer or accepted it. So how did it pass.
Thanks for your time
[REDACTED]Employee 4
(Email)
Hello, my name is [REDACTED] and have been employee for Tip Top Bakeries for over 20 years now. Just want to say that I feel like the voting system for this is agreement has been too complicated for a lot of people. Some people who I work with not only don’t have access to a computer, but don’t even own a mobile phone or even a phone new enough to access the internet. In the past, they have just kept it simple with an easy to read form in an envelope that you put into a ballot box which has worked successfully for years. Now as much as I think the vote would still be a majority yes for this agreement, I just think the right thing to do for everyone would be to keep it simple with pen and paper ballot box vote instead of hearing constant complaints on how other employees couldn’t vote. Employee 5
(Email)
Dear Commisioner Hunt,
I am emailing you in regards to the voting ballot that TipTop conducted and my concerns about it. To be clear, I was able to vote. However, I had to contact the support team of the voting site in order to get the PIN number details that I required to vote. While I was able to get the PIN after a little bit of back and forth, I am worried that other people had the same issue as me and did not receive their PINs.Employee 6
(Email)
Dear sir, I am writing about our voting system. It was the worst I have ever seen. We have multiple nationalist there that didn't understand anything and many people to scared to vote in case they lose there jobs. It took me a long time to vote . So I can understand why people gave up trying. No help from anyone person with authority at tip top. Absolutely disguised. Thanks Employee 7
(Voicemail)
Yeah, hello, my name's [REDACTED]. I'm one of the bikers from GWF at Tip Top Dry Creek and I was contacting you about my experience with the voting process. I was on holidays at the time and did not. I did receive a copy of the EB and their proposal. And basically that was it. I was kind of confused and decided not to vote, but I can talk to you at more length about it and if you want to. And my phone number is [REDACTED]. Thank you very much. Bye. Employee 7
(Email)
Hi Commissioner Hunt, thought I would follow up on my recent phone message. My name is [REDACTED] I am an employee of tip top dry Creek and a baker of [REDACTED] years. I was on holidays when the voting process started and received via phone msg a copy of the EB and Gwf’s proposal for the wage increase. I don’t recall exactly when I received these may be 5-7days before I flicked through the EB and looked at their wage increase proposal that seemed to lack detail. I was very uncertain as to what I was exactly voting for with the deadline to vote closing I received more messages regarding the need to hurry up and vote with comments implying that time was running out. I did feel pressured to vote at the time and was on holidays . I received no other clarification and received no other communication regarding the vote. As I was uncertain what I was exactly voting for regarding wages and conditions and was concerned it may not be favorable. So I decided to abstain from the voting process. Thank you for taking the time to read my experience on the matter. Kind regards [REDACTED] Employee 8
(Telephone call)
The Associate called Employee 8 back on 7 June 2023, in which Employee 8 advised the following:
· When it came to voting, Employee 8 could not vote as Employee 8 did not have one of those phones.
· Employee 8 isn’t good with computers either.
· Employee 8 wanted to vote yes because they thought it was a good deal. But Employee 8 could not vote at all.
· Employee 8 is one of the older ones and don’t care for technology.
· Only concern is in respect with the technology to vote.
Employee 9
(Email)
Dear Commissioner , regarding the voting system used for the 2023 Tip Top Dry Creek enterprise agreement , i was fine with it i understood it clearly and voted with no concern . Very happy with what the company offered
Yours sincerely [REDACTED] .
Employee 10
(Telephone Call)
The Associate returned Employee 10’s call on 14 June 2023, in which Employee 10 advised the following:
· Employee 10 was going to vote yes.
· Employee 10 spoke with Renata. Employee 10 received the pack on Monday, sat down with “Van Dana”, she said to take it home and ready.
· Employee 10 did not end up reading the pack and forgot about it.
· When Employee 10 returned to work on Friday, other people on the shift asked if Employee 10 voted, and Employee 10 replied no.
· Employee 10 said Van Dana offered to help to go through it to vote, but did not take up on Van Dana’s offer.
· Employee 10 didn’t vote because Employee 10 did not read the pack and forgot about it.
· Employee 10 did not have a mobile phone and didn’t know if the landline would’ve worked either.
· Employee 10 did think the process was fair and doesn’t know why people did not vote.
· Employee 10 thinks people had a good opportunity to vote on the phone and that it was a good easy way to do it.
· Employee 10 further stated that 98% people have mobile phones, so should not be a hard process. Employee 10 did not ask why not many people voted. One person wrote on the table that 229 people voted, and they worked out who voted yes, and didn’t vote etc.
To ensure that the above 10 employees would be covered by the Agreement, the Applicant is requested to provide an excel spreadsheet to Chambers only of all the names of employees who were engaged by the Applicant at the time of the vote. The Applicant is requested to provide the list by no later than 4:00pm (AEST) on Friday, 23 June 2023.
Upon receipt of the list of employees from the Applicant, the Commissioner will cross-check the 10 employees name against the list to ensure they are an employee who would be covered by the Agreement.
The Applicant, Union and employee bargaining representative are invited to provide any submissions in respect of the above views by no later than 4:00pm (AEST) Tuesday, 27 June 2023.
Kind regards…”
The Employer’s Submissions with respect to employee views
The Employer noted that the invitation for eligible employees to provide feedback to the Commissioner yielded 10 responses out of 229 eligible employees. The Employer submitted that this provides an evidentiary basis for the Commission to conclude that overwhelmingly, eligible employees did not have concerns with the process undertaken by the Employer leading to the successful vote to approve the Agreement.
The Employer noted that the Commission indicated concerns with the number of eligible employees who participated in the vote and who voted to approve the vote.
The Employer understood that the Commission was seeking to identify through the invitation to employees of their views, whether there could possibly have been a material differential in the vote, noting that 152 employees voted, with 85 voting to approve the agreement (and presumably 67 against), if the Commission could be satisfied that the Employer did not meet the requirements of s.180(3) of the Act. It was submitted that the Commission, in essence, posed three questions to eligible employees:
Question 1If you were not informed on 28 February 2023 of how the vote was going to be held and that affected your ability to vote in the ballot, how were you likely disadvantaged?
Question 2If you had any other concerns as to how the vote was conducted?
Question 3Did you vote in the ballot?
The Employer noted that the eligible employees were invited to respond by email or telephone. It was also noted that available methods for eligible employees to vote to approve the Agreement included email, SMS and telephone.
Employee 2
The Employer noted that Employee 2 was able to use a telephone to contact the Commission and be contacted by the Associate. Employee 2 was therefore able to effectively participate in the vote as voting was able to occur via telephone. Employee 2 evidences that despite being on leave, they were in receipt of the voting materials which included the time, date and method of voting.
Employee 2 also evidences that they voted over the phone but was unsure if the vote went through. They claimed to have received the voting instructions and was able to vote. The Employer further argued that Employee 2 evidences that their preference was a secret ballot which was the position pressed by the UWU. Employee 2 further evidences a preference for vote by secret ballot as opposed to an inability to vote using the methods adopted by the Employer or likely disadvantage due to the methods.
The Employer noted that Employee 2 did not indicate a response to question 1, particularly no indication that being on leave affected the employee’s ability to vote. Rather, the employee was able to vote and therefore there was no indication of there being any disadvantage. The only concerned raised, in response to question 2, was that the employee being unsure if their vote went through.
Employee 3
The Employer noted that Employee 3 emailed the Commission, which indicated they were able to effectively participate in the vote as voting was able to occur via internet. The Employer argued that Employee 3 evidences that they were informed of the vote and did vote. The Employer noted that Employee 3 makes statements about the offer in the Agreement and poses statistical questions.
The Employer further advised that Employee 3 makes assertions about employees not caring enough to vote. The Employer submitted this is hearsay.
Accordingly, the Employer summarised that Employee 3 provided no indication that they were not informed on 28 February 2023 or indicated any disadvantage. The employee indicated they were able to vote and did not raise any concerns.
Employee 4
The Employer noted that Employee 4 also emailed the Commission, indicating that they were able to effectively participate in the vote as voting was able to occur via internet.
Further to the above, the Employer noted the following:
· Employee 4 evidences that the voting system adopted by the Employer was too complicated for a lot of people. The Employer submitted this is hearsay.
· Employee 4 does not evidence that the voting system was too complicated for them.
· Employee 4 provides no indication of whether they voted.
· Employee 4 states that some employees did not have access to a computer. This is hearsay, submitted the Employer. The Employer submitted that the employees were able to utilise the Employer’s computers in order to vote.
· Employee 4 states that some employees do not own a mobile phone or a phone new enough to access the internet. The Employer claimed this to be hearsay and that the employees were able to use the Employer’s computers and phones to vote. The Employer further submitted that the mobile phones did not have internet access for voting purposes, voting could occur via telephone or SMS. In fact, voting could occur over a public telephone.
· Employee 4 indicates a preference for voting by ballot box.
· Employee 4 does not indicate whether they voted.
The Employer noted that Employee 4 does not indicate whether they were able to vote or whether they sustained any disadvantage.
Employee 5
Employee 5 also emailed the Commission, indicating that they were able to effectively participate in the vote as voting was able to occur via internet.
The Employer further noted that:
· Employee 5 advised they were able to vote in the ballot;
· Employee 5 required assistance with obtaining a PIN to vote;
· Employee 5 evidences they did obtain a PIN in order to vote; and
· Employee 5 states they were worried other employees may have had issues obtaining PINs. The Employer claimed this to be hearsay.
The Employer submitted that Employee 5 did not indicate of when they were informed of the vote or that they were disadvantaged. The employee was able to vote, and any concerns raised is hearsay.
Employee 6
The Employer noted that Employee 6 was able to use email to contact the Commission. Employee 6 was therefore able to effectively participate in the vote as voting was able to occur via internet.
The Employer also noted the following:
· Employee 6 evidences dissatisfaction with the voting process;
· Employee 6 evidences dissatisfaction in relation to other employees not understanding anything and being too scared to vote for fear of losing their job. The Employer argued this to be hearsay;
· Employee 6 evidences people gave up trying to vote. The Employer argued this to be hearsay;
· Employee 6 evidences they were able to vote; and
· Employee 6 does not state they were unable to vote or too scared to vote for fear of losing their job.
The Employer refuted any assertion that eligible employees did not vote because they were scared of losing their job. The Employer does not understand how voting would equate to the risk of losing one’s job. The Employer presumes that Employee 6 means ‘nationalities’ instead of ‘nationalists’. The Employer further submitted that it was not made aware of any employee who required assistance with voting due to their nationality.
The Employer argued that it was available at all times to assist employees who required assistance with the vote. The UWU was also available at all times to assist employees who required assistance with the vote.
The Employer asserted that the voting packs provided to all eligible employees (provided to the FWC in prior submissions) contained a cover letter from the Applicant which
expressly stated:
“During these toolbox talks we discuss proposed changes and seek feedback and clarification. There will be an opportunity for those who require assistance because English is a second language we can provide a buddy or translator if needed.”
The Employer noted that Employee 6 had not indicated of when they were informed about the vote and was not disadvantaged. The employee was able to vote, noting it took a long time.
Employee 7
In response to Employee 7, the Employer noted that the employee was able to use telephone and email to contact the Commission. Therefore, the Employer submitted that the employee was able to effectively participate in the vote as the voting was able to occur via telephone and internet.
The Employer also noted that:
· Employee 7 did not vote as they were on holiday, however they were able to vote but chose not to;
· Employee 7 had access to the voting pack 5 to 7 days before the vote and reminders to vote, prior to the closing of the vote;
· Employee 7 abstained from voting;
· Employee 7 does not indicate they were unable to vote or did not have the voting packs because they were on holiday; and
· Employee 7 expressed confusion and a lack of detail in the wages offer.
The Employer however submitted that the voting packs provided to employees provided clear details as to the terms and conditions of the proposed enterprise agreement and the voting process. The voting pack also contained clear instructions on how to access further information from the Employer.
The Employer submitted that Employee 7 could have contacted the Employer for further information. If Employee 7 was a UWU member, that employee also had access to the UWU for further information.
In conclusion, the Employer submitted that Employee 7 indicated they were informed of the vote 5 to 7 days prior to the vote, was able to vote but chose not to, and indicated confusing or uncertainty as to what was being voted for, not how to vote.
Employee 8
Similarly, the Employer noted that Employee 8 was able to use the telephone to contact the Commission. Therefore, this employee was able to effectively participate in the vote as voting was able to occur via telephone.
The Employer further noted that Employee 8 said they were unable to vote as they did not have “one of those phones”, however, the Employer argued that the employee was able to engage in a telephone conversation with the Commission. The Employer submitted that employees could vote by dialling a telephone number. This could be by mobile phone, landline or even one of the Employer’s phones.
Employee 8’s assertion as to being unable to vote due to the phone they owned cannot, it was submitted, be substantiated. Employee 8 indicated they are not good with computers, however, did not state they are unable to use a computer. The employee also had telephone voting options should they prefer not to use computers. Employee 8 however indicated that they do not care for technology and that they could not vote at all.
Given Employee 8 was able to use a telephone to contact the Commission, the Employer argued that Employee 8 was able to vote.
Employee 9
The Employer noted that Employee 9 was able to use email to contact the Commission and was therefore able to effectively participate in the vote as the voting was able to occur via telephone.
The Employer noted that Employee 9 demonstrated no issues with the voting process.
Employee 10
The Employer noted that Employee 10 was able to use the phone to contact chambers, and therefore was able to effectively participate in the vote as the voting was able to occur via telephone.
Employee 10 noted that they received the voting pack on ‘the Monday’. The Employer also noted that Employee 10 evidences they had access to the UWU.
The Employer noted that Employee 10 indicated they did not vote because they forgot about it, not because they were unable to vote. The employee also expressed that they did not own a mobile phone and did not know if a landline phone would enable them to vote. However, the Employer submitted that the voting materials clearly identified that voting could occur via telephone, had Employee 10 elected to participate in the vote.
The Employer submitted that of the 229 eligible employees entitled to vote to approve the Agreement:
· 2 employees indicated they received the voting materials;
· 3 employees indicated they did not vote in the ballot but all 3 had the ability to vote in the ballot;
· 1 employee indicated they were likely to be disadvantaged based on assertions of inability to use technology, however this was contradicted by the employee’s ability to use technology to contact the Commission;
· 1 employee indicated a concern with how the vote was conducted to the extent of whether their vote went through; and
· 4 employees made assertions about other employees which amounts to hearsay.
The Employer further submitted that there is not the requisite number of employees who have evidenced concerns that the process undertaken by the Employer did not meet the requirements of section 180(3) of the Act.
The Employer submitted that the Commission should be satisfied that the Employer has met its obligations pursuant to s.180(3) of the Act. The Employer further asserted that the only evidence before the Commission demonstrates that the Employer has met all its legislation obligations in relation to the application for the approval of the Agreement. Accordingly, the Commission should approve the Agreement.
Invitation to Bargaining Representatives
After receiving the Employer’s submissions, I invited the parties to file any further material if they wished by 18 July 2023. No further material was received.
On 13 July 2023, correspondence was sent to the parties to confirm that the 10 employees had been successfully cross-checked against the Employer’s list of employees. The parties were also informed that Employee 1 had contacted chambers advising that they did not seek to provide their views. Accordingly, Employee 1 will be excluded from my consideration.
Consideration
The vote for the Agreement opened on 8 March 2023, which would require the access period to have started on 28 February 2023, noting that a full 7-day period is required for Agreements made prior to 6 June 2023 pursuant to s.180(4) of the Act.
A consideration at s.188(2) for Agreements made prior to 6 June 2023 is available for the Commission to excuse an employer’s relevant failure to meet the requirements of s.180(3) if the Commission is satisfied that the Agreement would have been genuinely agreed to but for minor procedural or technical errors, and the employees covered by the Agreement were not likely to have been disadvantaged by the errors.
The Employer in this application provided no opportunity for a potential loss in time in distributing the voting material and other required material to employees. The material needed to be provided to employees on 28 February 2023 to comply with s.180(3) of the Act, however providing material to 229 employees across various shifts was, unsurprisingly, unable to be achieved on the one day.
As it eventuated, the Employer was still providing material to employees as late as 3 March 2023, some by courier.
Whilst I accept that the voting material was placed above clocks within the workplace, the actual method of voting is somewhat complicated when regard is had to the voting instructions provided by Go Vote. The voting instructions would, I consider, have been unlikely to have been properly and comprehensively understood by viewing the instructions above a clock in the workplace. There are three options, and one must obtain a 10-digit PIN in order to vote. The PIN, it seems, was sent to employees by text message.
One employee reported to the Commission that they had to contact the voting contractor’s support desk to assist with obtaining their 10-digit PIN. That’s a rather complicated process, and understandably, some employees may prefer to have had the opportunity to vote in-person at work.
It is, ultimately, an employer’s decision as to how a vote for an agreement will be conducted. Approximately two thirds of the employees eligible to be covered by the Agreement managed a way to successfully vote. My inquiry has been in respect of any employee who was not provided with appropriate notification of the time and method of voting.
I have had regard to the fact that employees could seek assistance to vote whilst at work, if they had any difficulty with technology.
I consider it to have been inappropriate for the Employer to have informed the UWU in writing on 28 February 2023, at the commencement of the access period that a postal vote had been paid for by the Employer, providing a fourth avenue of voting by employees. That statement was never retracted by the Employer and is bewildering.
There is, however, no evidence that the incorrect statement made by the Employer to the UWU was ever relied upon by voting employees, or that the UWU informed voting employees of the fourth option. Section 180(3) of the Act requires the Employer to take all reasonable steps to notify employees of the time and place at which the vote will occur and the voting method that will be used. If there had been evidence of the UWU innocently disseminating the incorrect statement to the union’s members, I consider that there would be further doubts in respect of the Employer’s compliance with s.180(3) on account of the indirect miscommunication, which may not be excused by the discretion afforded in s.188(2) of the Act.
The views expressed by the 10 employees who took the time to contact the Commission does not lead me to conclude that they faced any material disadvantage in having the opportunity to vote. I am not satisfied, for example, that 8 or more employees who would have liked to have voted no were denied the opportunity to do so on account of the manner in which they were informed by their Employer of the voting process and time of the vote.
The voting was open for a period of 53 hours across parts of a Wednesday, Thursday and Friday. If the voting period had been for a single day, for example, I would have grave hesitation in excusing the Employer’s failure to provide a full 7-days’ notice to some of the employees of the time and place at which the vote will occur on account of how late the material was provided to some employees. For those employees who received the voting information on 3 March 2023, they still had the opportunity to vote up until 1:00pm on 10 March 2023 which would cause me to exercise my discretion pursuant to s.188(2) of the Act.
Despite the Employer’s mishaps in the way in which it conducted the vote, and most importantly, its failure to allow any reasonable extra time in disseminating the material to 229 employees, not all of whom were at work on the day and many without email addresses, I would find that subject to what I have to say below in respect of a class of relevant employees, the Employer did not meet its requirements at s.180(3) of the Act, however I would exercise my discretion pursuant to s.188(2) of the Act to find that the Agreement has been genuinely agreed.
I am not satisfied, however, that sufficient evidence has been provided to the Commission in respect of the employees described by the UWU as ‘weekend warriors’, packing workers engaged on early morning shift in slicing, and workers otherwise absent from the workplace on 28 February 2023.
On 22 June 2023, the Employer provided to the Commission a list of all employees to be covered by the Agreement for the purposes of the Commission cross-checking the 10 employees who provided their views to the Commission.
The Commission must be satisfied that the Employer took all reasonable steps to notify relevant employees of the details of the vote. The UWU suggested that in respect of the employees known as the ‘weekend warriors’, they might not have been informed until as late as 3-6 March 2023.
The Employer is directed to provide evidence to the Commission (only) of the names of the employees who worked Friday, 3 March 2023 to Monday, 6 March 2023 and who are colloquially known as ‘weekend warriors’ and when each employee received notification of the voting period and voting method.
Further, the Employer is directed to provide evidence to the Commission (only) of the names of employees who performing slicing work as nominated by the UWU in respect of its concerns, and when each of those employees received notification of the voting period and voting method. The Employer is also required to provide evidence to the Commission of how employees who were on leave on any date between 28 February 2023 and 10 March 2023 received notification of the voting period and voting method.
The Employer is afforded until 4:00pm (AEST) on Wednesday, 13 September 2023 to provide the evidence to the Commission. The Commission will consider whether any of the material should be redacted before providing material to the UWU for its consideration.
The Commission commits to promptly considering the evidence on receipt of the material to determine if the application for approval of the Agreement is satisfied.
COMMISSIONER
[1] [2016] FWCFB 1929.
[2] (1959) 101 CLR 298.
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