Health Services Union v Uniting Agewell Limited T/A Uniting Agewell
[2022] FWC 1090
•11 MAY 2022
| [2022] FWC 1090 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.217A - Application to resolve a dispute in relation to the variation of an agreement
Health Services Union
v
Uniting Agewell Limited T/A Uniting Agewell
(C2022/2843)
| COMMISSIONER WILSON | MELBOURNE, 11 MAY 2022 |
Application to resolve a dispute in relation to the variation of the The Uniting AgeWell Enterprise Agreement (Tasmania) 2018-2022
The following are my reasons for decision advised to the parties in a hearing on 5 May 2022. These reasons have been edited in minor respects to correct grammar or errors of fact.
The application before the Commission made by the Health Services Union (HACSU) sought various orders against Uniting Agewell Limited (Uniting Agewell) in respect of the Respondent’s cancellation of a ballot for an agreement variation.
What I have determined to do is to not grant the orders sought by HACSU, save for two consent orders for the production of documents.
In what I am about to say to the parties I express a concern to both about the lack of civility and maturity on the part of both parties in this process and the applications which have been made to the Commission. I am concerned that a significant part of the motivation for the application, as well as the response to the applications have been the product of those things and that the application could have been avoided, and indeed the response could have been avoided had there been some better demonstration of good faith, civility and maturity between both parties.
The application presently before the Commission is made under section 217A of the Fair Work Act 2009. It relates to a ballot for a variation to an enterprise agreement known as the Uniting Agewell Enterprise agreement (Tasmania) 2018-2022.[1] . The application by HACSU takes issue with the cancellation of a ballot following from an access period which commenced on 11 April 2022 and in which voting was to commence on 20 April 2022 and end on 2 May 2022 at 2 pm.
The ballot was cancelled during the period that voting was underway, on Friday, 29 April 2022 after business hours had closed and after, so I am informed by the parties, material had been distributed to potential voters over a considerable amount of time.
In addition, I take into account that there appears to have been numerous information sessions provided to employees about the proposed variation to the agreement. A schedule to Uniting Agewell’s memorandum to employees dated 11 April 2022 indicates a large number of meetings being held between 11 April and 14 April 2022.
The Respondent says that in the course of communicating with employees about the proposed variation, and after voting had commenced, it received feedback from a large number of employees that they did not have enough information to properly consider how they should vote, and in some cases it was indicated to the Respondent that they had not properly considered the material that had been provided prior to them casting a vote.
The Respondent says that the meetings were attended by over 150 employees out of a total pool of 897 employees potentially bound by the variation in which employees cited significant concerns about the variation, as well as concerns about the information which had been provided to them and which would otherwise inform their vote. Because of these concerns, Uniting Agewell notified employees and its ballot agent, Elections Australia, on the same day, Friday, 29 April 2022, that the ballot was to be cancelled and to be at an end.
Uniting Agewell did this by sending a notification to its employees after the close of business on Friday, 29 April 2022 by text message which, amongst other things said, “As a result of significant employee feedback Uniting Agewell have agreed to CANCEL the current vote to vary the TAS EBA effective immediately. Many staff have expressed that they did not have enough accurate information to make an informed decision on the proposed change and its impact on their employment conditions and voted prematurely. The new access period will commence on Monday 2nd May and voting will open on Tuesday 10th May. ALL EMPLOYEES WILL NEED TO VOTE AGAIN – PREVIOUS VOTES ARE NO LONGER VALID.”
At the same time and as I have indicated, Uniting Agewell instructed Elections Australia to end the vote, and consequent upon those instructions the ballot agent communicated to Uniting Agewell that they had put those instructions in place. Amongst other things, they communicated that they confirmed that “Once you requested me to discontinue your Tasmanian Agreement Variation ballot that I shut down the online access to that ballot and deleted all votes that had been submitted up until that time. Please note that it is my practice to delete votes of any aborted ballot without divulging any details thereof. I can also confirm that any information that I provided to you during the course of the ballot (now aborted) only related to the total number of votes submitted. I do not, as a matter of course, ever provide information such as the breakdown of yes/no/invalid votes prior to the closing of the ballot as this can compromise the probity of the process.”[2]
Uniting Agewell agrees that in the course of the balloting period Elections Australia notified it on more than one occasion of the number of employees who had by that time cast a vote. By the time the ballot was terminated, 430 of more than 879 employees had cast such a vote. Not long after employees were notified the first ballot was notified on 29 April 2022, they were notified of the commencement of the second access period late on 2 May 2022. The voting in the second ballot was scheduled to open on 10 May at 9 am, and close on 14 May at 5 pm. The submissions made to me this afternoon suggest that further material has been provided to employees about the proposed variation. However, that information is not presently before me.
HACSU object to these events, saying that the Fair Work Act gives no authority for the termination of the ballot and as such, undermines the scheme of the Act. In particular, it says that the employer's actions are contrary to what is permitted by section 208 of the Act.
HACSU seeks five orders from the Commission;
1. That the Respondent, Uniting Agewell, has no licence to cease, stop or cancel a ballot under section 208 of the Act;
2. That the vote to vary the agreement that commenced on 20 April 2022, shall be permitted to conclude with an additional three days voting period to 8 May 2022;
3. The new proposed access period and the proposed vote to vary the agreement be discontinued;
4. That there be the production of certain documents to the Commission in the form of correspondence and communication to employees relating to the vote to vary the agreement, the vote being the one that commenced on 20 April 2022; and
5. That there be an order in relation to the production of documents received from, and made to Elections Australia relating to the first ballot.
In considering the application by HACSU, I take into account a number of things. First of all, a variation to the enterprise agreement is opposed by HACSU but also is supported by Uniting Agewell. Second, I take into account that Uniting Agewell and its ballot agents say that the original ballots have been deleted, although I do accept that being an electronic ballot that does not necessarily mean that the deletion is completely irrecoverable.
I also take into account the scheme of Part 2 – 4, Division 7 of the Fair Work Act.
Section 208 provides amongst other things that employers may request employees to approve a proposed variation of an enterprise agreement. In particular, s.208(1) provides that an employer covered by an enterprise agreement may request the affected employees for a proposed variation of the agreement to approve the proposed variation by voting for it. Subsection 208(2) says that without limiting s.208(1), that the employer may request the affected employees vote by ballot or by an electronic method. Section 209 details when a variation of an enterprise agreement is made, and relevantly section 209(1) provides that the variation is made when the majority of the affected employees who cast a valid vote approve the variation.
Section 210 provides for the making of applications to the Commission once a variation has been made. Section 211 prescribes when the Commission must approve the variation of an enterprise agreement. In particular, s.211(1)(a), provides that the Commission must approve the variation if the Commission is satisfied that had an application been made under s.182(4) or s.185 for the approval of the agreement as proposed to be varied, the Commission would have been required to approve the agreement under s.186.
The relevance of that reference, of course, is that amongst other things, s.186, as well as s.187, detail the basis upon which the Commission comes to satisfaction about the approval of an agreement. Section 186(2)(a) specifies that for approval, the Commission must be satisfied that if the agreement is not a greenfields agreement, the agreement has been genuinely agreed to by the employees covered by the agreement.
That, in turn, is elaborated upon, of course, in s.188 which provides for when employees genuinely agree to an enterprise agreement, amongst other things. Section 188(1)(c) requires the Commission to turn its mind in forming its view about whether there was genuine agreement, to whether there are no other reasonable grounds to believing that the agreement has not been genuinely agreed to by the employees.
Finally, in terms of the legislative provisions, I take into account s.217A, which permits the Commission to deal with certain disputes about variations. The placement of section 217A within Part 2 – 4, Division 7, Subdivision B, has been remarked on as not necessarily being consistent with the particular subdivision.[3] Section 217, for example, refers to the variation of an enterprise agreement to remove an ambiguity or uncertainty.
However, the limited decisions which are available to the Commission under section 217A, would indicate the section is not restricted to variations for reason of ambiguity or uncertainty, and the view in the limited number of decisions which I can find, would indicate that s.217A relates to the variations which could be made within Division 7, Subdivision A. It must also be taken into account, of course, that section 217A(3) provides explicitly that the Fair Work Commission must not arbitrate, (however described) the dispute.
Consideration of these provisions lead me to two propositions. It is, I think, incorrect to say that the Commission is empowered to arbitrate the dispute now before the Commission, being an application brought under section 217A. This is a specific provision that makes it clear that the Commission must not arbitrate, however described, the dispute. The dispute, of course, is the one which arises within section 217A, and as set out within subsection 2, the dispute is about a proposed variation which the employer and the affected employees are unable to resolve.
It appears to me that that reference in s.217A(3) is capable of encompassing the dispute presently before this Commission, that is the section and its prohibition on arbitration can encompass the method by which a term is put to employees and they are asked to vote on it. The significance of that proposition is that if the dispute encompasses that aspect, that is the request to vote, then I think it follows that section 217A(3) prevents the Commission as presently enlivened, as arbitrating that dispute.
It is also said by the Applicant that s.739 might give an opportunity for arbitration of its dispute. However, I am not satisfied entirely that that is the case. There has been insufficient argument before me on that subject. But I do note the terms of the enterprise agreement’s Dispute Resolution Procedure set out in clause 61 which provides that dispute may be brought about a matter arising out of the, the National Employment Standards, or any other work related matter.
I am not presently satisfied that the dispute as currently characterised is about a “work-related matter”. It may be but I do not have sufficient material before me to form that view. In any event I do not consider, even if there were to be jurisdiction under s.739, for there to be any utility in issuing the orders which have been proposed by HACSU, at least in respect of proposed orders 1 to 3. The reason for such view is that it seems to me to be a matter of fact that the Respondent and its ballot agent have stopped the ballot. Instructions were given to the ballot agent to do that. The ballot agent appears to have acted upon those instructions and has confirmed that the ballots received to that date, all 430, had been deleted. Whether or not those ballots are recoverable is probably not the defining issue.
Instead, it would be a concern on my part that even if there were some means by which to recover the material it would then impose quite a significant, if not impossible, chaos on the entire ballot, just simply because the time period by which the ballot was due to finish has passed and one would then be faced with a circumstance in which employees would have to be told the ballot was to be recommenced for a certain period. I suggest that that would produce utter confusion on the part of those who had not balloted.
I also disagree with what the union has to say about the construction of s.208. It will be recalled that s.208(1) enables for variations to agreements to be “made” by employees being asked to approve the proposed variation by voting for it. Subsection (2) then enables that the affected employees may vote by ballot or by an electronic method.
The section is not prescriptive about the conduct of ballots, and I suggest deliberately so, and in this regard I consider the Explanatory Memorandum to the Fair Work Bill 2008. Clauses 891 and 892 deal with the subject of employees being asked to approve a proposed variation in an enterprise agreement. Clause 891 restates the present section 208(1), but paragraph 892 states that subclause 208(2), makes clear the possible methods of voting. The employer may request that the employee vote by ballot, secret or not, by an electronic method; the vote may also be conducted by a show of hands, or by any other method that demonstrates the employees' genuine agreement.
Several things flow from that statement within the Explanatory Memorandum. The first, of course, is that the voting method is not prescribed. And it may be taken from that that if the employer chose to have a vote in the form of an attendance vote at all of the meetings it established around the State, it can do that. Now, clearly that would not be a secret vote. It would well be seen within those meetings that certain people had voted in a certain way, and that the predominance of voting was in a certain way.
So those things, I am afraid, are quite clear from the Explanatory Memorandum. Section 208(2) does not limit the means by which the ballot or a vote can be conducted. It might be prudent to conduct a vote or ballot in a particular way, or in a way which indicates that there is as much secrecy as possible, but the Act does not say that.
The other thing to be said about these circumstances is that s.208, of course, also, as I have already remarked, fits within a scheme in which the Commission needs to consider the approval of a variation to the enterprise agreement, and that is the obligation which is set out in s211 of the Act. The Commission must approve the variation if satisfied that had an application been made under s.182(4), or s.185, it would have been required to approve the agreement under s.186.
As may be expected, the proposition that an agreement is genuinely agreed, becomes front and centre of the mind of the Member of the Commission who needs to approve it at such time as that request is made. If there are defective processes leading to the making of the agreement then clearly they can be articulated to the Commission when the application has been made.
The Commission Member would then have an obligation, of course, to inquire into and be satisfied that notwithstanding those concerns that the agreement was genuinely agreed. As a result of those observations I consider that the proper means of dealing with the situation presently before the Commission is to permit the second ballot to proceed.
In saying that I am of the opinion that, and will issue a direction to the parties that in the event that the ballot agent provides balloting numbers, or voting numbers to the employer, then it should also do that to all other bargaining representatives at the same time that it does that to the employer.
I will issue a direction to Uniting Agewell to the effect that there is to be no change to the access period or the voting period without leave of the Commission as presently constituted [6 May 2022]. The reason I say those two things is because of the observations that I made at the start of this decision that I am concerned about the lack of civility and maturity on the part of both parties.
I will also, as have indicated at the start of this Commission, issue by consent two orders in respect of the provision of documents from Uniting Agewell to HACSU [6 May 2022]. These orders will require:
· Uniting Agewell to produce to the Applicant and to the Commission all correspondences and communications with its employees relating to the vote to vary the agreement which commenced on 20 April 2022; and
· Uniting Agewell to produce to the Applicant and to the Commission all correspondences and communications received from and made to ‘Elections Australia’ (the electoral company engaged by the Respondent) relating to the vote to vary the Agreement which commenced on 20 April 2022 subject to those documents or their contents not being distributed to any party or person in any form.
COMMISSIONER
Appearances:
Mr J Milligan for the Applicant
Ms S Cook for the Respondent
Hearing details:
2022.
Melbourne via Microsoft Teams;
6 May 2022.
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[1] AE505975.
[2] Email to Uniting Agewell from Phil Willis, Elections Australia Pty Ltd.
[3] See for example Independent Education Union of Australia v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle T/A Diocese of Maitland-Newcastle Catholic Schools Office[2019] FWC 123, [29](50) – (54); .[30](20) – (25)
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