Moonee Valley Racing Club Inc T/A Moonee Valley Racing Club

[2014] FWCA 9318

[2014] FWCA 9318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Moonee Valley Racing Club Inc T/A Moonee Valley Racing Club
(AG2014/9347)

MOONEE VALLEY RACING CLUB (CASUAL EVENTS STAFF) AGREEMENT 2014 - 2017

Racing industry
COMMISSIONER JOHNS	MELBOURNE, 19 DECEMBER 2014

Application for approval of the Moonee Valley Racing Club (Casual Events Staff) Agreement 2014 - 2017.

[1] On 13 October 2014 Moonee Valley Racing Club (MVRC) made an application for approval of the Moonee Valley Racing Club (Casual Events Staff) Agreement 2014-2017 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act). The Agreement is a single-enterprise agreement.
[2] The Agreement was lodged within 14 days after it was made.
[3] On 17 October 2014 the Media, Entertainment & Arts Alliance (MEAA) filed a Form F18 Statutory Declaration in relation to the application for approval of the Agreement. In answer to the question “Does the Union support the approval of the Agreement by the Fair Work Commission?”, the MEAA answered “No”.
[4] The MEAA opposed the approval of the Agreement on the basis that:

a) The Agreement was not genuinely agreed to by the employees covered by the Agreement: s.186(2) of the FW Act; and

b) There were reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees: s.188(c) of the FW Act.

[5] On 23 October 2014 the Commission issued directions for the filing and service of submissions, witness statements and documents by the parties and listed the matter for hearing on 21 November 2014.
[6] On 31 October 2014 the MEAA filed:

a) an Outline of Submissions (Exhibit MEAA1); and

b) a witness statement by Eleisha Mullane, an organiser with the MEAA (Exhibit MEAA2).

[7] The MEAA submissions expanded upon the Form F18 objection to approval of the Agreement. The MEAA submitted that it opposed the approval of the Agreement on the grounds that:

a) the Agreement was not genuinely agreed to by the employees covered by the Agreement: s.186(2)(a) of the FW Act;

b) MVRC did not comply with the pre-approval steps in relation to the Agreement: s.188(a)(i) of the FW Act; and

c) there were reasonable grounds for believing that the Agreement had not been genuinely agreed to by the employees: s.188(c) of the FW Act.

[8] On 7 November 2014 MVRC filed:

a) a Response to the MEAA’s Outline of Submissions (Exhibit MVR1);

b) a witness statement by Leigh Saville, MVRC Human Resources Manager (Exhibit MVR2);

c) a witness statement by Lori Campagnolo, MVRC Human Resources Advisor (Exhibit MVR3)

[9] On 14 November 2014 the MEAA filed:

c) a Reply Submission (Exhibit MEAA3); and

d) a supplementary witness statement by Ms Mullane (Exhibit MEAA4).

[10] In addition to the material filed by the MEAA, an employee of MVRC, Steve Palamara, wrote to the Commission and filed various documents in opposition to the approval of the Agreement. The Commission, as presently constituted, drew Mr Palamara’s attention to the recent Full Bench decision in John Holland Pty Ltd t/a John Holland Aviation Services Pty Ltd v Slazar 1 and explained to him that, unless he elected to give evidence and make himself available for cross-examination, the Commission would not have regard to any of the material that he had filed.2 Mr Palamara elected not to give evidence.3 Having been invited to do so, the MEAA also elected not to call Mr Palamara to give evidence.4

[11] The matter was listed for hearing on 27 November 2014 and 5 December 2014. At the hearing:

a) the MEAA was represented by Ms Carolyn Dunbar who called Ms Mullane to give evidence; and

b) MVRC was represented by Messrs Mark Ritchie and Tom Page who called Mr Saville and Ms Campagnolo to give evidence.

[12] At the conclusion of the hearing the Commission, as presently constituted approved the Agreement and delivered the following decision in transcript:

[H]aving considered all that’s been put in the matter, the Commission is now in a position to announce its decision. In coming to this decision I have only considered the sworn evidence before me. Because of the authority to be found in John Holland v Salazar [2014] FWCFB 7813 I have not had regard to the materials, emails, submissions, of Steve Palamara who chose not to give evidence or make himself available for cross-examination and who was not called to give evidence, as he could have been, by the Media, Entertainment and Arts Alliance.

On 13 October 2014 Moonee Valley Racing Club made an application for approval of the Moonee Valley Racing Club (Casual Event Staff) Agreement 2014. The application was made pursuant to section 185 of the Fair Work Act 2009.

The Agreement is a single enterprise agreement.

The Agreement was lodged within 14 days after it was made.

Having considered all of the evidence before me and the submissions which have been made today, for the reasons which will be set out in more detailed reasons for decision later I am satisfied that each of the requirements of section 186, 187 and 188 of the Fair Work Act as are relevant to this application for approval have been met.

In particular, I am satisfied that the employees who bothered to turn up to the ballot genuinely agreed to the agreement. Those who did not turn up and are now aggrieved cannot now complain. I think it was President Bartlett in, if I am right, Episode 22 of Season 1 of the West Wing who said, “Decisions are made by those who show up.” Yes, the voting method in this particular matter could have been different. It could have facilitated greater participation, but the Fair Work Act does not prescribe any particular method of voting or process.

There is no evidence of probative value before me that establishes that the method employed by the applicant disenfranchised employees. The poor participation rate in the ballot seems to be indicative of the history of this employer having regard to the even poorer attendance rate in the ballot for [the] 2010 [Agreement].

The Media, Entertainment and Arts Alliance, being a bargaining representative for the agreement, has given notice under section 183 of the Fair Work Act that it wants the agreement to cover it.

In accordance with section 201 subparagraph 2, the Commission notes that the Agreement covers this organisation.

The Agreement is approved. In accordance with section 54 of the Fair Work Act, the agreement will commence operation on 12 December 2014. The nominal expiry date of the Agreement is 1 August 2017. 5

[13] These are the further reasons for decision.

Background

[14] The following matters were common ground between the parties or otherwise not contested:

a) Before the approval of the Agreement, terms and conditions of employment of casual employees were governed by the Moonee Valley Racing Club Casual Events Staff Agreement 2010 (2010 Agreement). Approximately 42/500 staff voted on the 2010 Agreement.

b) The Agreement is a single enterprise agreement.

c) The major changes, as between the 2010 Agreement and the Agreement, include the wage rates and a lowering of the minimum shift length from 5 hours to 4 hours. The change in the minimum shift length mainly affected casual employees working on a Friday night.

d) There were no employee bargaining representatives.

e) The MEAA was an employee organisation involved in the agreement making process as a bargaining representative. The MEAA opposed the lowering of the minimum shift length.

f) In around May 2014 negotiations between the MEAA and MVRC reached an impasse.

g) The Agreement only covers MVRC employees who are employed on a casual basis in the position of Race Day Supervisor, Ticket Seller, Programme Seller, Jockey Room Attendant, Turnstile Attendant and or Other/General Attendant.

h) The above group of casual employees are operationally distinct.

i) There are approximately 350 casual employees who will be covered by the Agreement.

j) Most (60%) of the casuals are engaged for and work only on MVRC’s premier race meeting, the Cox Plate (held on 25 October 2014).

k) That leaves a balance of around 150 casuals who are engaged throughout the year at the 28 regular race meetings (16 of which are on Friday nights).

l) During regular race meetings, between 110 - 130 casual employees are engaged.

m) All casual staff are employed and offered employment through MVRC’s online rostering system.

n) In June 2013, the Notice of Employee Representational Rights was emailed to employees.

o) On 12 September 2014, MVRC sent an invitation to casual staff to attend a pre-Cox Plate Briefing session on 1 October 2014. The agenda indicated there would be an “update ... from HR...” (Exhibit MVR4).

p) On 25 September 2014 (Exhibit “LS-1”) an email was sent to all casual staff. It had attached to it correspondence (Exhibit “LS-3”) about bargaining and the proposed voting process. The attachment indicated that the vote would be:

i. by private attendance ballot;

ii. conducted on 3 October 2014 (i.e. 8 days later (not counting the day the email was sent)); and

iii. between 2 pm - 6 pm.

q) Exhibit “LS-1” also contained a link to the Agreement, the Racing Clubs Events Award 2010 and the National Employment Standards.

r) On Friday, 26 September 2014 MVRC conducted a race meeting. 170 staff were rostered to work that night. Mr Saville and Ms Campagnolo positioned themselves in the casual staff office before the scheduled race meeting. They made themselves available to answer questions about the Agreement. They had copies of the Agreement available. Approximately 30-40 copies of the Agreement were taken away by employees. Mr Saville also made himself available during break periods.

s) On Monday, 29 September 2014 Ms Mullane called Mr Saville to express her concerns about the voting process.

t) At 2.00 pm on Wednesday, 1 October 2014 Ms Mullane formalised her concerns in correspondence to Mr Saville (Exhibit ELM-1). The MEAA encouraged MVRC “to make available alternative arrangements for ... people (who can’t attend for the vote)” (Exhibit ELM-7).

u) MVRC did not accede to the MEAA’s request.

v) Also, on 1 October 2014 Mr Saville was made aware of two requests (one to the MVRC Staffing Coordinator and one to MVRC’s Payroll Officer) from employees who wanted to cast a postal vote. Both were informed that the ballot required an attendance at MVRC.

w) At 6.00 pm on 1 October 2014 MVRC conducted a staff briefing in the lead up to the Cox Plate on 25 October 2014. 150 MVRC staff attended the briefing. 100 of these employees were casual employees. Mr Saville presented for over 30 minutes about the content of the Agreement, changes since the 2010 Agreement and MVRC’s desire to lower the minimum shift length.

x) On 2 October 2014 Ms Campagnolo received a call from one employee asking if there was an opportunity to vote online. They were advised that the ballot required an attendance at MVRC.

y) On Friday, 3 October 2014:

i. MVRC conducted a regular race meeting. Approximately 130 staff were rostered to work that night. Because it was a Friday night, it is likely that the staff in attendance were staff who might be affected by the change in the minimum shift length.

ii. 23 of those rostered to work were new starters.

iii. the ballot opened at 2 pm;

iv. the usual shift that night commenced between 5.00 pm - 5.30 pm; and

v. the ballot closed at 6 pm.

z) Approximately 15 employees attended MVRC specifically for the purpose of participating in the vote. The remainder who voted (113 employees) where employees who were rostered to work that night.

aa) MVRC casual events staff employee, Mary Hill, was engaged to act as a scrutineer of the ballot. Ms Hill is a member of the MEAA and a casual employee with the Australian Electoral Commission. The vote was also counted in front of MEAA delegate Geoff Hanlon.

bb) The outcome of the ballot was:

i. 138 voted;

ii. 128 cast a valid vote (i.e. approximately 35% of those to be covered by the Agreement); and

iii. 90 employees voted to approve the Agreement (i.e. 70% approved) which included the change in the minimum shift length.

Did MVRC not comply with the pre-approval steps in relation to the Agreement: s.188(a)(i) of the FW Act?
[15] Section 188 requires the FWC to consider whether MRVC complied with ss 180(2), (3) and (5) of the FW Act.
[16] Section 180 provides:

180 Employees must be given a copy of a proposed enterprise agreement etc.

Pre-approval requirements

(1) Before an employer requests under subsection 181(1) that employees approve a proposed enterprise agreement by voting for the agreement, the employer must comply with the requirements set out in this section.

Employees must be given a copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.

(3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement;

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

(b) the voting method that will be used.

(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to ibn subsection `181(1).

Terms of agreement explained to employees etc.

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the relevant employees

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

(6) Without limiting paragraph 5(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

(a) employees from culturally and linguistically diverse backgrounds;

(b) young employees;

(c) employees who did not have a bargaining representative for the agreement.

[17] The MEAA submitted that MVRC did not comply with the pre-approval steps required by s 180(2), (3) and (5). That is to say the MEAA say MVRC:

a) did not take all reasonable steps to ensure that during the access period for the agreement, employees were given a copy of or had access to:

i. the written text of the agreement;
ii. any other material incorporated by reference in the agreement

b) did not take all reasonable steps to notify the relevant employees of:

i. the time and place at which the vote will occur;
ii. the voting method that will be used.

c) did not take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, were explained to employees.

[18] The MVRC submitted that it did comply with section 180. In doing so it drew the Commission’s attention to the decision in McDonald’s Australia Pty Ltd and Shop, Distributive and Allied Employee’s Association 6 in which the Full Bench found that the FW Act does not require the employer to establish in a definitive way that all employees were in fact informed of the matters in relation to s.180(3) of the FW Act. The Commission, as presently constituted, had regard to that decision in coming to its conclusion.

Consideration re section 180

[19] In the present matter the facts establish that:

a) On 25 September 2014 an email was sent to all casual staff. It had attached to it correspondence about bargaining and an explanation about the Agreement, in particular, the wage increases, superannuation issues and the change to minimum engagement.

b) The attachment to the 25 September 2014 email also contained information about the proposed voting process. The attachment indicated that the vote would be:

i. by private attendance ballot;

ii. conducted on 3 October 2014; and

iii. between 2 pm - 6 pm.

c) The 25 September 2014 email also contained a link to the Agreement, the Racing Clubs Events Award 2010 and the National Employment Standards.

d) On Friday, 26 September 2014 MVRC conducted a race meeting. 170 staff were rostered to work that night. Mr Saville and Ms Campagnolo positioned themselves in the casual staff office before the scheduled race meeting. They made themselves available to answer questions. They had copies of the Agreement available. Approximately 30-40 copies of the Agreement were taken away by employees. Mr Saville also made himself available during break periods.

e) On 1 October 2014 MVRC conducted a staff briefing in the lead up to the Cox Plate on 25 October 2014. 150 MVRC staff attended the briefing. 100 of these employees were casual employees. Mr Saville presented for over 30 minutes about the content of the Agreement, changes since the 2010 Agreement and MVRC’s desire to lowering of the minimum shift length.

[20] On the face of the evidence it seems likely that MVRC complied with section 180 of the FW Act.
[21] However, the MEAA maintains its objection; primary on the basis that the notification on 25 September 2014 was done by email and the continuing access to the Agreement and materials was primarily online.
[22] The MEAA also complain about:

a) the access provided on 26 September 2014 (because it was limited to those employees who worked that night); and
b) the meeting on 1 October 2014 (primarily because the Notice of Meeting did not expressly advise that the Agreement would be on the agenda).

[23] Noting that MEAA’s witness, Ms Mullane:

a) was not on course on 26 September 2014; and
b) did not attend the meeting on 1 October 2014,

her evidence about what occurred on those dates is of little probative value. It was based on belief (the foundation of which was not properly explained) or on the alleged feedback from MEAA members (who were not identified and not called to give evidence).
[24] In this regard Ms Mullane’s evidence is not to be preferred over the evidence of Mr Saville and Ms Campagnolo, both of whom were present on each occasion. Mr Saville and Ms Campagnolo presented as honest witnesses and I accept their evidence about:

a) what occurred on 26 September 2014 and 1 October 2014;
b) their genuine efforts to:

i. provide opportunities for employees to raised questions about the Agreement;
ii. make the Agreement available to employees; and
iii. explain the Agreement.

[25] In relation to the MEAA complaint about the use of email, in her witness statement Ms Mullane stated:

“While I do not have specific information about the actual demographics of the casual workforce, my experience at MVRC and other race clubs is that the majority of casual event staff are older workers and have, from time to time, had difficulty regularly accessing email and as such may not have had access to information about voting process within the period between 25 September and 3 October.” 7

[26] In cross-examination Ms Mullane was asked if she had any evidence regarding the number of employees who had difficulty accessing information through the links provided by MVRC. Ms Mullane responded “I don’t have numbers generally but I have anecdotal information provide to me from members saying that they had difficulties accessing the site.” 8

[27] The problem with evidence in Ms Mullane’s witness statement is obvious from the opening seven words, “While I do not have specific information...” The evidence is then couched in terms of:

a) her experience, without evidence of actual demographics;

b) what occurs at other race clubs;

c) “older workers” (defined by Ms Mullane to be 55 – 60 years old) 9;

d) difficulty in accessing email “from time to time”,

leading to a conclusion that employees “may not have had access” (my emphasis). While such a conclusion might be open to Ms Mullane to find, it is not one that the Commission can so easily find.

[28] The problem with Ms Mullane’s oral evidence is that (with two exceptions) it was largely based on anecdotes. Although she was not called to give evidence, it does appear to be common ground between the parties that one employee, Patricia Shaw, could not access information or attend the vote because of illness. 10 Ms Mullane also gave evidence that a MEAA delegate, Ron Betts, does not have email access. He too was not called to give evidence. The two people that Ms Mullane named constituted the high-watermark of the MEAA’s evidence (such that it was).

[29] While the Commission is not bound by the rules of evidence, it is required to act in a judicial manner and cannot just jump to conclusions without the evidence to back it up. That is essentially what the MEAA invited the Commission to do. I must reject the invitation.

[30] In its Form F17 MVRC stated that:

a) 40 employees who voted on the Agreement were under 21 years of age; and
b) 50 employees who voted on the Agreement were over 45 years of age.

[31] That leaves 38 employees who vote on the Agreement being between 21 and 45 years.
[32] There was no evidence before the Commission about how many of the 50 employees over 45 years of age were “older workers” (defined by the MEAA as 55 – 60 years old) and no evidence about their access to email and online resources.
[33] The only evidence on the subject came from Mr Saville. He stated,

“I considered emailing employees was the best method of communication because, with a large casual pool of employees email is the easiest, safest, fastest and most cost effective way of communicating with our employees. All casual staff are employed and offered employment through our online rostering system. MVRC direct all casual employees to check their emails on a regular basis for shifts being offered, time changes for shifts or last minute shifts being offered for availability.... MVRC also has online training that all casual employees need to complete as part of their employment.” 11

[34] The FW Act does not mandate how access to the agreement, notice about voting and the provision of information is to be undertaken. It only requires that “all reasonable steps” be taken.
[35] In circumstances such as the present where MVRC employees are used to being engaged and communicated with electronically, the Commission, as presently constituted, accepts that it was a reasonable step by MVRC to send the notice that it did on 25 September 2014 by email. It was further reasonable to provide links to the Agreement and relevant documents online. The Commission, as presently constituted, rejects the MEAA submission that the 25 September 2014 email with an attachment and hyper-text links was “complex and convoluted” 12.

[36] For all the reasons set out above the Commission, as presently constituted, was satisfied that MVRC complied with section 180 of the FW Act.

Was the Agreement genuinely agreed to by the employees covered by the Agreement: s.186(2)(a) of the FW Act or are there reasonable grounds for believing that the Agreement was not been genuinely agreed to by the employees: s.188(c) of the FW Act?
[37] The application is governed by ss 186 and 188 of the FW Act. Relevantly those sections provide:

186 When the FWC must approve an enterprise agreement-general requirements

Basic rule

(1) If an application for approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Requirements relating to the safety net etc.

(2) The FWC 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

....

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 the FWC 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);

....

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

[38] The MEAA submitted that the Commission cannot be satisfied that:

a) the Agreement has been genuinely agreed to (s.186(2)(a)); and
b) there are no other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the employees (s.188(c)).

[39] The primary submission from the MEAA is that the requirement for an attendance vote and the timing of the vote disenfranchised a majority of the employees (who, presumably, the MEAA say would have voted not to approve the Agreement).
[40] In support of its submission, the MEAA drew the Commission attention to the decision of Commissioner Hampton in Balfours Bakery Pty Ltd, 13 where he observed that,

The consideration as to whether there is genuine agreement also requires Fair Work Australia to contemplate whether there are other reasonable grounds for believing that the instrument was not genuinely agreed (s.188(c)). Although ultimately it has not been decisive in this case, I have adopted the view that this provides scope to consider the veracity of the ballot result, where warranted, for the following reasons.

If all ballot results had to be accepted on face value, provided on that the procedural requirements leading to that point had been met, this could lead to perverse outcomes. The requirements of s.180 and s.181 require that reasonable steps be taken to advise the employees of certain matter and to provide access to the proposed agreement and other material. There is no express obligation that the ballot or other method of employee approval be conducted in a manner that provides the employees with a genuine opportunity to actually participate and express a view. An extreme example might include where the notice is issued fully in accordance with s.180(3) but advises of a ballot process and timing where only a limited number of the relevant employees could in reality participate. In that light, unless s.188(c) of the Act is applied as I speculate above, the evidence purpose of the employee approval obligations of the legislation may be undermined.

This approach would not however mean that there is an absolute obligation to demonstrate that each employee did actually have the same opportunity to vote. Where the integrity and results of the ballot are seriously in doubt, Fair Work Australia may, pursuant to s.188 of the Act, examine those circumstances and consider whether there are other reasonable grounds for believing that the agreement has not been genuinely agreed by the employees. [emphasis added]

[41] The MEAA also drew the Commissions attention to the decisions in United Rail Group 14 and Philmac Pty Ltd.15 The Commission, as presently constituted, had regard to those decisions and the decision in Balfours Bakery.

[42] The MVRC submitted there was genuine agreement.

Consideration

[43] The FW Act does not mandate the manner in which the ballot is to be conducted. Online votes, postal votes, attendance votes (whether by anonymous votes deposited in a ballot box or a show of hands at a mass meeting), voting by SMS are just some of the methods used. None can be said to be better than the other. However, a method that disenfranchises employees would mean that the agreement was not genuinely agreed to.
[44] In the present matter the MEAA calls into question the integrity of the ballot process. Consequently, the Commission is entitled to examine the circumstances of the ballot to determine whether, in reality, it can be said there was genuine agreement by the employees.
[45] Ms Mullane’s evidence was that,

“In my view, employees who were not initially rostered 3 to 4 weeks in advance (of 3 October 2014) would not have been readily available to attend the workplace attendance ballot on 3 October.” 16

[46] It is possible to conceive that:

a) where the workforce is made up of casual employees,

b) the majority of the casual employees are not rostered at the time of the vote,

c) the window period in which the vote is to be conducted is narrow,

d) the location of the employer is not particularly convenient or easy to get to,

e) attendance at the vote (if not rostered) would mean:

i. forfeiting other casual work; or

ii. having to make alternate arrangements for the care of children etc,

an exclusive attendance vote would disenfranchise a majority of the employees to be covered by the agreement and it could not be said that there was genuine agreement.

[47] That is the conclusion that the MEAA invited the Commission to reach. The MEAA submitted that “... it is clear that this is an extreme case where the vote was held in circumstances where only a limited number of employees could in reality participate.” 17

[48] However, again, it was a conclusion that the Commission was supposed to reach without evidence. Consequently, I reject that “it is clear that this is an extreme case.” 18

[49] First, the evidence is that approximately 15 employees (not otherwise rostered) attended MVRC specifically for the purpose of participating in the vote. Obviously they did not feel disenfranchised and were motivated to vote.

[50] Secondly, noting that approximately 222 employees did not vote, the MEAA did not lead evidence from 1 employee who claimed to be disenfranchised (let alone a majority of them).
[51] There was no evidence about how many casual employees (not rostered to work on 3 October 2014) could not attend the ballot because they had:

a) other work commitments;

b) family or carer responsibilities; or

c) other reason that prevented them from attending.

[52] Without such evidence the Commission cannot be satisfied that casual employees (not rostered to work on 3 October 2014):

a) were prevented from attending the ballot; as opposed to,
b) decided not to attend.

[53] No doubt the circumstances of the ballot made it inconvenient for employees (not rostered to work on 3 October 2014) to attend the ballot, but that does not lead to an obvious conclusion that they were prevented from attending and were disenfranchised.
[54] For all the reasons set out above the Commission, as presently constituted, was satisfied that:

a) the Agreement was genuinely agreed to; and

b) there were no other reasonable grounds for believing that the Agreement was not genuinely agreed to by the employees.

Conclusion

[55] For all the reasons set out above the Commission, as presently constituted, was satisfied that each of the requirements of section 186, 187 and 188 of the FW Act (as were relevant to the application for approval) were met.
[56] Consequently, on 5 December 2014 the Agreement was approved.

COMMISSIONER

 1   [2014] FWCFB 7813.

 2   PN198-206, PN226-230, PN464-469.

 3   PN472.

 4   PN475-480.

 5   PN 581-584.

 6   [2010] FWAFB 4602.

 7   Exhibit MEAA2, para 30.

 8   PN303.

 9   PN331.

 10   PN305.

 11   Exhibit MVR2, para 21.

 12   Exhibit MEAA3, para 10a.

 13   [2011] FWA 7397, [21] - [23].

 14   [2009] FWA 452.

 15   [2011] FWAFB 2668.

 16   Exhibit MEAA2, para 37.

 17   Exhibit MEAA1, para 31.

 18   Ibid.

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