Metropolitan Express Transport Services Pty Ltd
[2011] FWA 1833
•25 MARCH 2011
[2011] FWA 1833 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Metropolitan Express Transport Services Pty Ltd
(AG2010/23698)
METROPOLITAN EXPRESS TRANSPORT SERVICES PTY LTD ENTERPRISE AGREEMENT (VICTORIA) 2010
Road transport industry | |
COMMISSIONER LEWIN | MELBOURNE, 25 MARCH 2011 |
Application for approval of the Metropolitan Express Transport Services Pty Ltd Enterprise Agreement (Victoria) 2010 - requirement for majority of employees voting in a ballot to approve Agreement - challenge to ballot result - evaluation of evidence and materials - balance of probabilities - valid majority of employees approved agreement.
[1] This decision concerns an application for approval of an enterprise agreement under s.185 of the Fair Work Act 2009 (the Act). The Agreement is the Metropolitan Express Transport Services Pty Ltd Enterprise Agreement (Victoria) 2010 (the Agreement). The Transport Workers Union of Australia (the TWU) was a bargaining representative of employees of Metropolitan Express Transport Services Pty Ltd (Metropolitan Express) for the making of the Agreement.
[2] The application was the subject of a hearing on 2 February 2011 as a result of Fair Work Australia receiving notification from the TWU that it had concerns that the statutory requirements applicable to the making of an enterprise agreement under the Act had not been complied with and that the Agreement may not pass the “better off overall test” prescribed by the Act.
[3] This decision concerns only that aspect of the TWU’s concerns which relates to the requirement that the Agreement must have been approved by a majority of eligible employees voting to do so in a ballot as provided for by the Act.
[4] At the hearing on 2 February 2011 and subsequently in written submissions supported by written statements of employees, the TWU sought that the Tribunal find that the requirements of s.186(1) and s.186(2) of the Act, as set out below, had not been met:
“186 When FWA must approve an enterprise agreement—general requirements
Basic rule
(1) If an application for the approval of an enterprise agreement is made under section 185, FWA must approve the agreement under this section if the requirements set out in this section and section 187 are met.
Note: FWA may approve an enterprise agreement under this section with undertakings (see section 190).
Requirements relating to the safety net etc.
(2) FWA must be satisfied that:
(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and
(b) if the agreement is a multi-enterprise agreement:
(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and
(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and
(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and
(d) the agreement passes the better off overall test.
Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.
Note 2: FWA may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).
Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).”
[5] For the purpose of dealing with the TWU’s submissions it is also convenient to set out s.188 of the Act.
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”
[6] Consequently, it is also necessary to comprehend the provisions of s.182(1) and s.181(2) and (3).
“182 When an enterprise agreement is made
Single-enterprise agreement that is not a greenfields agreement
(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”
“181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”
[7] At the hearing on 2 February 2011 Metropolitan Express sought to establish the basis upon which it submits that the statutory requirement that the agreement must be approved by employees in a manner prescribed by s.181 has been met. Metropolitan Express called Mr Stewart Finn, who is the occupational health and safety manager at Metropolitan Express, as a witness to give evidence of the procedure followed by Metropolitan Express for the distribution of information and the approval by a majority of employees eligible to vote in a ballot to approve the agreement, for the purposes of an application to FWA under s.185 of the Act.
[8] Mr Finn described the procedures for the conduct of an attendance ballot at various sites at which the employees whose employment is to be covered by the Agreement work. Mr Finn tendered the original completed ballot papers for each site, tally sheets, and a report of all voting in the ballot with the total result.
[9] The TWU’s submission is that the Tribunal cannot be satisfied that the majority identified in s.182(1) has been formed. If so, then the agreement has not been made. If the agreement has not been made in accordance with the statutory requirements set out above then the Tribunal cannot approve the agreement because there is no agreement, which may be approved. The TWU submitted that in the circumstances the Tribunal should require another ballot, to be conducted by the Australian Electoral Commission (AEC).
[10] The TWU sought to establish that the procedures for the balloting of employees and the counting of the votes cast in the ballot cannot be relied upon for a finding that the agreement has been made in accordance with the relevant statutory requirement.
[11] The TWU submitted that the Tribunal should conclude that there exist reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees as required by the Act because it should not be satisfied that a majority of the employees who voted in the ballot, the subject of Mr Finn’s evidence, approved the Agreement.
[12] I permitted the opportunity for the TWU to file any material they wished to in support of their submissions, which was done on 10 and 23 February 2011.
[13] In support of their submission, the TWU filed statements of Robert Baum, David Jones, Lawrence Farruiga and Damien Loftus, who are employees of Metropolitan Express, with respect to the voting process. The consequence of the unconditional acceptance of all the statements, taken to the highest possible effect, is summarised in the table in Annexure A to this decision.
[14] I should say that the contents of the statements or at least some of the contents, without more, would not normally be sufficient to constitute acceptable evidence of the truth of their contents. Not because of any lack of credibility on the part of the authors but rather due to a lack of direct knowledge in the relevant circumstances and conflict between the statements in material respects.
[15] Crucial to an evaluation of the material of the TWU and the statements filed is a direct contradiction between the statements of Mr Loftus who is the TWU delegate at the Dandenong depot and Mr Baum who is based at the Clayton depot. Mr Loftus says that the voting at the Dandenong depot was five for and eleven against approval of the Agreement. Mr Baum gives hearsay evidence that the voting at the Dandenong depot was five for and fourteen against approval of the Agreement. I must prefer Mr Loftus’ evidence. Mr Loftus’ statement indicates direct rather than hearsay knowledge of the facts at issue. Accordingly I have disregarded Mr Baum’s evidence of the outcome of the voting at the Dandenong depot for the purpose of determining whether or not a majority of employees who voted in the ballot approved the Agreement.
[16] It will be observed that even if the Tribunal was to accept the consequences of those statements with all of their evidentiary imperfection, with the exception of Mr Baum’s evidence in respect of voting at the Dandenong depot, this would not be sufficient to lead me to conclude that the majority of the valid votes were not in favour of approving the Agreement.
[17] The difference in the statements of Mr Farruiga, who is based at the Sunshine depot, and Mr Baum do not affect the essential issue of whether the TWU’s statements can give rise to a conclusion that a majority of the employees who voted in the ballot did not approve the Agreement. For the purposes of the table in Annexure A I have used Mr Farruiga’s statement because it is more direct. If Mr Baum’s statement were to be used the total of the votes cast on the TWU’s statements would simply be an addition of one vote for approval and one vote against and thus a cancelling out effect results. Accordingly the preference for Mr Farruiga’s statement is of no consequence when considering the highest effect achievable using the statements filed by the TWU, otherwise unconditioned by concerns about hearsay and other imperfections, except that of Mr Baum in respect of the voting at the Dandenong depot.
[18] In my view, the material filed by the TWU in support of its submission that the statutory requirement for the Agreement to be made by a majority of the employees who cast a valid vote in a ballot to approve the Agreement as provided for by s.181 has not been met does not rise to the level necessary for me to find accordingly.
[19] In face of the evidence of Mr Finn and the exhibits of the completed ballot papers and voting summaries, the statements filed by the TWU lack sufficient probative value for me to be appropriately satisfied that there was any irregularity in the conduct of the ballot or crucially, that the majority of eligible votes were not for the approval of the agreement.
[20] The statements filed by the TWU lack precision and are in, pertinent, if not crucial respects, hearsay or more. That that is to say, hearsay upon hearsay, and serve little other purpose than an attempt to cast some doubt upon specific instances of the voting outcome at particular locations. As already noted the ballot materials have been exhibited, the attack on the authenticity and probative value of those materials is therefore made in a series of statements, the content of which lacks sufficient direct evidence, logical coherence and a sound evidentiary basis upon which to overturn the probative value of that evidence.
[21] In the relevant respect the contested issue of fact to be decided in relation to the ballot should be considered as follows: Is it more probable than not, on the evidence and other material before the Tribunal, that a majority of employees who were eligible to and voted in the ballot voted in favour of approval of the agreement the subject of the application?
[22] On what is before me I consider the appropriate answer to this question is in the affirmative.
[23] The question to be determined is not: has the TWU cast doubt over the process for the conduct of the ballot so as to require an AEC ballot? Even if that were the question to be decided, the table in Annexure A reveals that the Tribunal would have to rely on fragmentary and contradictory assertions, which seem to involve confusion and extensive hearsay, to arrive at any doubt at all. Speculation and hearsay based assertions of irregularity are insufficient for a Tribunal to overturn the probative value of the factual material which has been exhibited by Metropolitan Express and is otherwise unchallenged or to give rise to substantial doubt about the veracity of the outcome of the ballot indicated by that material.
[24] For all of the above reasons I am satisfied that the Agreement has been approved in accordance with s.181.
COMMISSIONER
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ANNEXURE A
Counting based on exhibit A2 | Total Votes | Yes Votes | No Votes | Extracts from Employee Statements filed by the TWU | Effect of TWU Delegate Comments on Totals | ||
Location | Total Votes | Yes Votes | No Votes | ||||
ARC Sunshine | 14 | 5 | 9 | Lawrence Farruiga: - “I recall seeing more votes total of (17) 13 were counted as no and 4 counted as yes...” | 17 | 4 | 13 |
Adjusted for materials exhibited | 14 | 4 | 10 | Robert Baum: “I heard some days later from the Union delegate at Sunshine their vote was 5 (five) for and 14 (fourteen) against” | 19 | 5 | 14 |
BSD Westall Rd Clayton | 15 | 10 | 5 | Robert Baum - “The count was 11 for and 7 against, I was present at the count.” | 18 | 11 | 7 |
David Jones - “the count was heard to be seven in favour, eleven against. I mentally queried this as the number of votes exceeded the number of company drivers present.” | 18 | 7 | 11 | ||||
Iplex Reservoir | 11 | 10 | 1 | No delegate comment | 11 | 10 | 1 |
Metropolitan Depot Dandenong (17 in person and 2 faxed) | 19 | 5 | 14 | Damien Loftus “the total for the Dandenong depot [was] 11 votes against and 5 for the EBA” | 16 | 5 | 11 |
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Iplex Albury | 6 | 6 | 0 | No delegate comment | 6 | 6 | 0 |
Albury Onesteel | 1 | 1 | 0 | No delegate comment | 1 | 1 | 0 |
Shepparton Onesteel | 1 | 1 | 0 | No delegate comment | 1 | 1 | 0 |
Faxed votes (Tony Bell and Kevin Wilson) | 2 | 1 | 1 | No delegate comment | 2 | 1 | 1 |
Individuals whose names appear on ExA3 | 11 | 7 | 4 | No specific count by TWU. | 11 | 7 | 4 |
Total (using bolded figures) | 80 | 45 | 35 | Total (using bolded figures) | 83 | 42 | 41 |
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