MSF Sugar Pty Ltd Trading AS Maryborough Sugar Factory
[2025] FWCA 2416
•9 SEPTEMBER 2025
| [2025] FWCA 2416 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
MSF Sugar Pty Ltd Trading AS Maryborough Sugar Factory
(AG2025/2100)
THE MULGRAVE CENTRAL MILL CO. LTD ENTERPRISE AGREEMENT NUMBER 13 2025
| Sugar industry | |
| COMMISSIONER SIMPSON | BRISBANE, 9 SEPTEMBER 2025 |
Application for approval of the The Mulgrave Central Mill Co. Ltd Enterprise Agreement Number 13 2025
An application has been made for approval of an enterprise agreement known as The Mulgrave Central Mill Co. Ltd Enterprise Agreement Number 13 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MSF Sugar Pty Ltd Trading AS Maryborough Sugar Factory (the Applicant). The Agreement is a single enterprise agreement.
The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and the Australian Workers' Union (AWU) are bargaining representatives and opposed approval of the Agreement.
The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) was also a bargaining representative but did not seek to make any submissions opposing the approval of the Agreement.
The application was initially listed for a short hearing to hear any contested evidence; however, the parties agreed after further submissions that it could be determined on the papers.
Issues raised
On 15 July 2025, my Chambers issued correspondence to the parties noting matters for response by the Applicant, including the concerns raised by the AMWU and AWU in their Form F18s. The relevant concern was noted as:
“Notice to Vote and Voting: it appears that the notice to vote was distributed on 12 June 2025, and the vote was conducted on 19 June 2025. This appears to only be 6 clear days as opposed to the required 7 clear days (8 days) as required by paragraphs 15 and 16 of the SoP. This raises several concerns in relation to Genuine Agreement;
The employees were not provided with a reasonable opportunity to consider the Agreement as provided by paragraphs 4 to 6 of the Statement of Principles We note that both the AMWU and AWU have raised this concern in the Form 18s lodged with the Commission.
Furthermore, it appears that of the 200 employees engaged at the time of the vote 181 employees voted with only 97 voting for the Agreement to pass. We note that both the AMWU and AWU have raised this concern in the Form 18s lodged with the Commission noting that given the close margin of 13 votes, and 19 employees not voting, the ballot may have had a different outcome, if the full 7 day access period was given to employees.”
Submissions
The Applicant set out that the issues were twofold:
· firstly, whether the employer’s failure to provide 7 full calendar days (it provided 6) during the access period preceding the vote on 19 June 2025 constitutes a minor procedural error, and
· secondly, whether employees were disadvantaged by the error.
The Applicant submitted in summary that the 6-day notice that was provided was attributable to an inadvertent administrative oversight on the part of the employer, but did not materially impact on employees’ ability to make an informed decision.
The AMWU defined the issues as:
· Employees not being provided with a reasonable opportunity to consider the Agreement before voting on it (Paragraphs 4 to 6 of the Statement of Principles); and
· Employees not being given a reasonable opportunity to vote on the Agreement in a free and informed manner (Paragraphs 15 to 16 of the Statement of Principles).
Level of error
The Applicant submitted that the Statement of Principles outlines the Commission's approach to genuine agreement in enterprise bargaining. While compliance with the principles supports a finding of genuine agreement, non-compliance with an individual principle (particularly if it constitutes a minor procedural error) does not, of itself, preclude approval under the Act.
The AMWU referred to the case of SDA v Allen Family Pty Ltd t/a Subway Findon, Subway Broken Hill, Subway Kadina, Subway Port Adelaide, Subway Port Pirie[2024] FWCFB 48 at [76] to support the assertion that while the Statement of Principles does not operate as a mandatory set of rules that must be complied with by an employer, compliance with the Statement of Principles will weigh more heavily in favour of a conclusion that the agreement has genuinely been agreed, and non-compliance will weigh against such a conclusion.
The Applicant referred to the Full Bench in Huntsman Chemical Company Australia Pty Limited (t/as RMAX Rigid Cellular Plastics (Huntsman)[1] at [79] which found that generally speaking, the lower the level of non-compliance the more likely it is to be characterised as a ‘minor error’ and that informing the employees of the commencement of voting, say, 6 days before the start of the voting process (instead of 7) “is likely to be a ‘minor error’ in most cases”. The Applicant submitted that this is one of those cases.
In Huntsman, the Full Bench of the Commission held:
“…only informing the employees of the time and place at which the vote will occur some 4 days before the voting process starts may be a ‘minor error’ where there is a history of bargaining at the enterprise; the agreement is, in effect, a ‘roll over’ agreement; the employer takes further active steps to remind employees of the time and date of the vote; and a high proportion of employees actually vote.”[2]
The Applicant submitted factors in support of lower levels of non-compliance being considered minor are:
(a) There has been no evidence filed by the Unions to assist the Commission to determine that the 6 days’ notice is not a minor error.
(b) There had been two previous access periods, commencing on 11 April 2025 and 28 May 2025 respectively (each comprising 7 days). On both of these occasions, as well as during the 3rd access period that commenced on 12 June 2025, the following documents were emailed to employees and were also displayed prominently at 6 locations throughout Mulgrave Central Mill:(i) Notice to employees for voting;
(ii) Marked-up version of proposed EBA (with changes marked in red);
(iii) ‘Clean’ copy of proposed EBA;
(iv) Information sheet with all changes listed.
The AMWU submitted s.188(5) of the Act retains the discretion formerly in s.188(2) that minor procedural or technical errors relating to some requirements concerning the making of Agreements could be disregarded if the employees covered by the Agreement were not likely to have been disadvantaged by the error. In Huntsman, a Full Bench found that what constitutes a ‘minor’ error “calls for an evaluative judgement having regard to the underlying purpose of the relevant procedural or technical requirement which has not been complied with and the relevant circumstances.”[3]
The Unions submitted that this matter can be distinguished from previous decisions where a shortfall in the access period was disregarded as a minor error and weight was given by the Commission to the views of Union bargaining representatives who had agreed to a shorter period and / or otherwise held no genuine agreement concerns.[4]
In response, the Applicant submitted that it is an incorporated Australian company whose HR team services a peak workforce of over 600 employees (in three separate geographical regions in Far North Queensland) and comprises only three personnel, one of whom has less than six months’ service with the company, so to the extent that the Unions appear to be suggesting that the employer ought to be held to a higher standard than other companies should be ignored.
Whether employees were disadvantaged
The Applicant referred to the case of Huntsman where the Commission found, “The word ‘disadvantaged’ suggests a deprivation which manifests in the employees covered by the agreement being prevented from substantively exercising their rights within the bargaining regime … of the Act.”[5]
It submitted that in the present case, it has not been established factually that any employees were prevented from substantially exercising their rights or that they had been disadvantaged. In contrast, the employer has led evidence that it undertook multiple steps to ensure that all employees would be able to participate in the vote, with the high voter participation rate of 91.5% tending to indicate that these measures were successful and that there had been no disadvantage to employees.
The Unions noted that while there was a high participation in the vote, it submitted this matter can also be distinguished from previous decisions where there was not only high participation but also high rates of approval for the Agreement.[6]
Mr Pius Donovan, HR Generalist of the Applicant gave evidence that leading up to and during the access period for the vote, there was never any suggestion on the part of any employee, or union representative that any employees had been provided with insufficient opportunity to consider the Agreement before voting on it. During the access period, no one asked for more time, or indicated that they had any difficulty understanding the terms of the Agreement. His evidence was of the 200 employees who were entitled to vote on the Agreement, he estimated that for 99% of them, English is their first language.
Prior access periods
The AMWU submitted that the decision of Deputy President Slevin in Geocon Constructors (ACT) Pty Ltd t/as Geocon [2023] FWC 2676 confirms that prior access periods cannot be relied upon to satisfy the access period requirements for a subsequent vote.
The Applicant submitted that the prior access periods are not being relied upon by the employer to satisfy the access period requirements for the final vote, as the 6-day access period for the final vote is independently capable of being characterised as a minor error. Rather, the two preceding access periods can be taken into consideration by the Commission as providing context when considering the question of the adequacy of the final access period. It submitted that it cannot be suggested that employees who voted for the Agreement had anything other than an informed and genuine understanding of what was being approved.[7]
The AMWU submitted that it is irrelevant that the Applicant did not intend to mislead / disadvantage employees, the correct test is whether the error itself was likely to do so. The AMWU also agrees with the AWU’s submissions that the Applicant is a large and sophisticated employer with significant HR / IR resources, which had implemented two prior access periods in compliance with the Statement of Principles, including seven full days for the employees to consider the Agreement.
Number of employees eligible to vote
The Unions submitted that there were increased numbers of eligible employees who participated in voting across the three rounds of voting, particularly as more seasonal employees were engaged over time. Its understanding was that in:
· Vote 1: 119 employees voted;
· Vote 2: 185 employees were eligible to vote; and
· Vote 3: 200 employees were eligible to vote.
The Unions submitted as such, it is more than likely that there were employees who only participated in Vote 3 and had no prior exposure to the Agreement, and these matters take on particular significance in light of the slim majority of votes in favour.
The Applicant submitted that the Unions’ contention regarding an increase in eligible employees is factually incorrect. The number of employees who were eligible to vote remained consistent between the second and third ballots (approximately 200).
The Applicant submitted variations in reporting were due to payroll system processing in arrears. Employees who had completed onboarding were included in the voting process regardless of payroll visibility at the time. The number of eligible voters between ballots two and three remained effectively the same. Due to payroll processing in arrears, some seasonal employees did not appear in the pay cycle report for ballot two but were eligible and permitted to vote upon being verified by the employer’s HR team. All employees who had signed contracts and completed paid onboarding, including inductions and training, were permitted to vote, and therefore the Applicant submitted the Unions’ suggestion that it is more than likely that there were employees who only participated in vote 3 and who had no prior exposure to the Agreement is incorrect.
The AMWU submitted that the Applicant has failed to file evidence regarding the actual numbers of eligible voters between the two, which the AMWU submitted may nevertheless be material in the context of the slim majority upon which the Agreement was voted up. It otherwise does not appear in dispute that there were more employees who participated in the second and third ballots than the first ballot.
The AMWU further submitted it was not an insubstantial number of employees who were absent on the day of voting, in the context of the slim majority in favour of the Agreement.
The AMWU submitted the Applicant otherwise does not address the other 10 employees who it concedes in its email response of 21 July 2025 were reasonably unable to participate in the vote due to their absence from the workplace. The AMWU submitted that these employees were not given a reasonable opportunity to vote. This was due to the manner in which voting was conducted by physical attendance at the workplace, or by absentee voting which also required physical attendance to obtain the absentee voting documentation from the Administration Office and subsequent attendance upon an Electoral Officer, seemingly unpaid. The AMWU said this was distinct from the decision of Application by City of Gosnells.[8] The AMWU submitted that these 10 employees were not given a reasonable opportunity to vote, but if they had, it would have likely had a material impact on the overall outcome.
The Applicant contended the AMWU’s suggestion that the vote could have yielded a different result had all absentees voted against the Agreement is speculative, but in any event:
(a) the 7 employees who did not vote (but who were available) represent just 3.5% of the eligible cohort. If all had voted against the Agreement, the result would remain a majority in favour of the Agreement (97 to 91).
(b) regarding the 10 employees described as reasonably unable to vote:i. 3 were on extended worker’s compensation leave;
ii. 1 was on extended sick leave;
iii. 1 was a casual on extended unpaid leave;
iv. 1 apprentice was on sick leave;
v. 2 were apprentices who were on block release TAFE training in Townsville;
vi. 1 was on a FIFO roster;
vii. 1 apprentice had resigned in the prior year, but remained on unpaid leave with the option to return.
The Applicant submitted that these circumstances would not have changed had the access period extended by one day. These employees were not reasonably capable of voting, which would have remained the case irrespective of whether the access period had been extended by a day. The Applicant noted that if the 7 employees who did not vote but may have been available had voted against the Agreement, this still would’ve left a majority of 6 votes in favour of approval.
Method of vote
The Applicant submitted that during the access period, some employees indicated that they would not be able to vote in person, so special arrangements were made for these employees to enable them to vote absentee via the process described in the Notice of Employee Ballot. The Applicant submitted that the method was consistent with past Commission-approved practices. Clear instructions were issued to all employees via email and absentee vote options were made available during the access period.
While the AMWU notes that s.181(3) of the Act provides that the employer may request that employees vote by ballot or by an electronic method, it is the AMWU’s submission that the method of voting (including absentee voting) chosen by the Applicant, in conjunction with the shortened access period, had the pragmatic effect of preventing those 10 from being reasonably unable to attend the workplace to vote or appoint a proxy. Furthermore, the Applicant admits that coordinating employees who were not working to attend on the day of voting on 19 June 2025 would have been impractical and required these employees to make a separate unpaid trip to the Mill solely to vote. The AMWU noted this in circumstances where there have long been in place more efficient methods available of conducting the vote, including electronically, which would have provided absent employees with a more reasonable opportunity to participate in voting.
Unions did not raise concerns during the voting access period
The Applicant submitted that the bargaining representatives, all of whom are experienced, were aware of the 6-day notice period and did not object prior to the vote (but waited until after the vote had been counted). The ETU signed the Agreement on 26 June, which was after the AMWU emailed the employer on 24 June (copying the ETU) advising of the AMWU’s objection.
The AWU submitted it was not made aware of the ballot access period until approximately 3pm on 12 June 2025 prior to the access period opening the next day and that there was no consultation regarding the access period prior to this email being sent out.
The Applicant contended this is incorrect. It said during the final enterprise bargaining consultation meeting on 11 June 2025, the employer announced its intention to issue the notice of employee ballot on 12 June 2025, with voting to occur on 19 June 2025. No objection was raised at the time by the AWU, AMWU, ETU or any individual bargaining representative.
The AMWU submitted it should not have been necessary for the Unions to raise their concerns prior to the results being known. It submitted silence does not constitute agreement on the part of the Unions to any other reasonable time period as contemplated by the Statement of Principles (particularly in the context of the ‘vote no’ campaigns run by the Unions), and in any event this is irrelevant to the Act’s requirement that the Commission nevertheless be satisfied that there has been genuine agreement.
The AMWU submitted that it was not the error of the bargaining representatives in failing to provide an access period in compliance with the Statement of Principles, and neither should it be held accountable for not raising the Applicant’s own error during the access period with the Applicant, in circumstances where it is a relatively large and sophisticated company with dedicated HR resources that was able to conduct two prior access periods in compliance with the Statement of Principles.
Consideration
I have weighed the submissions of the Applicant, the AWU and the AMWU and I am satisfied that the particular circumstances of this case, being a 6 day access period rather than a 7 day period, falls into the category of being at the lower level of non-compliance as described in Huntsman, and can be characterised as a ‘minor error’.
Firstly, I am satisfied that the Applicant emailed the notice of voting to employees, provided a marked-up version of the proposed Agreement as well as a clean copy and an information sheet in relation to all changes and displayed these documents prominently in work locations.
Second, whilst I accept the access periods for the two previous ballots do not count for the purpose of the third ballot, it is logical to consider that in recent months there had been two previous access periods and voting that followed the same procedures. Albeit the earlier access periods were for 7 days and not 6. This favours the Applicant’s contention that despite the access period being 6 days, employees had a level of familiarity with the process such that they were given a reasonable opportunity to consider the proposed Agreement before voting.
Third, as the title of the Agreement alludes to, the parties have a very long history of enterprise bargaining as opposed to circumstances where participation in bargaining is novel.
Fourth, the voter turnout was very high at 91.5% which favours the conclusion that for those employees who wished to vote, they had a reasonable opportunity to do so.
Fifth, the Unions have raised the prospect of a potentially different ballot result had the access period been 7 days instead of 6. I have considered that hypothetical scenario. The ballot result produced a majority ‘yes’ vote of 97 employees, from the 91.5% of employees that did vote from a workforce of 200. For enough of the 19 employees who did not vote to have voted ‘no’, such that it would have changed the result, it would have taken 16 of that group of 19 to have voted ‘no’. Or put another way, a ‘no’ vote percentage at 84% of that specific group. That ‘no’ vote percentage figure only increases if less than 19 of those employees who did not vote, voted. If only 13 of the group of 19 voted, it would have taken a 100% ‘no’ vote. Given the likelihood of that hypothetical eventuality being so remote, in the context of the voting pattern of the 91.5% who did vote, I am not prepared to give it significant weight.
Finally, no evidence was called by the two Unions opposing approval to support the submission that employees were disadvantaged by the 6-day access period.
Conclusion
The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
Noting the undertaking provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.
The AMWU, AWU and CEPU lodged Form F18 statutory declarations giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the AMWU, AWU and CEPU.
The Agreement is approved and will operate in accordance with s.54 of the Act.
COMMISSIONER
[1] [2019] FWCFB 318.
[2] [117] point 7.
[3] [2019] FWCFB 318, [117].
[4] See for example: Application by Wolf Power Pty Ltd & CEPU (128V) [2024] FWCA 123 at [6], [7]; Application by Healius Pathology Pty Ltd T/A Western Diagnostic Pathology [2024] FWCA 3951 at [5]; Application by CFMEU [2025] FWCA 24 at [4];
[5] [2019] FWCFB 318, [117]
[6] See for example: Application by Healius Pathology Pty Ltd T/A Western Diagnostic Pathology [2024] FWCA 3951 at [5]; Application by Rintoul Pty Ltd [2025] FWCA 1144 at [7].
[7] One Key Workforce Pty Ltd v CFMMEU [2018] FCAFC 77 (2018) 262 FCR 527.
[8] [2021] FWCA 4895 at [32], [36].
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