National Union of Workers v BPL Adelaide Pty Ltd T/A Adelaide Poultry

[2015] FWC 1968

[2015] FWC 1968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

National Union of Workers
v
BPL Adelaide Pty Ltd T/A Adelaide Poultry
(B2014/1440)

National Union of Workers
v
Chandler Macleod Group Limited T/A Chandler Macleod

(B2014/1441)

National Union of Workers
v
Australia Personnel Global Pty Ltd

(B2014/1442)

COMMISSIONER RYAN MELBOURNE, 23 MARCH 2015

Applications by the National Union of Workers for majority support determinations in relation to employees of Baiada Poultry, Wingfield, SA - conduct of ballot of employee by FWC.

[1] Applications were made by the NUW on 7 October 2014 for Majority Support Determinations in relation to three employers, BPL Adelaide Pty Ltd T/A Adelaide Poultry (BPL), Chandler Macleod Group Limited (CM) and Australia Personnel Global Pty Ltd (APG) in relation to employees employed at the poultry processing plant of BPL at 20-22 Moss Rd Wingfield, South Australia. The application in each matter sought to have the issue of majority support determined through use of a petition signed by employees.

[2] On 8 October 2014, BPL through its legal representative, Mr Jarrad Parker of Minter Ellison Lawyers, wrote to the FWC opposing the application on the basis that the group of employees chosen by the NUW had not been fairly chosen and opposing the use of a petition to gauge majority support.

[3] The three applications were listed for mention/programming before the FWC on 10 October 2014. The Commission advised the parties that the Commission intended to consider the applications on the basis of the petitions that the NUW had obtained from the employees. The three employers were advised to provide to the Commission lists of their employees.

[4] On 14 October the Commission issued a Statement in the following terms:

“[1] The Commission has received copies of the petitions relied on by the National Union of Workers (NUW) in relation to each of its applications for a majority support determination against the three respondents in these matters. The Commission has received a list of employees from each of the three respondent employers.

[2] The Commission has checked the names on the petitions against the names on the employee lists and the picture that emerges is far from clear.

[3] In the case of each matter the number of names on the NUW petition is greater than half the number of names on the list of employees supplied by the employer. However, in none of the three matters is it possible to conclude that there is a majority of employees who have signed the NUW petition.

[4] There are names on the petitions which directly match names on the employee lists. There are also names on the petitions which do not match the name on the employee list but where it is highly probable that the names refer to the same person. There are also names on the petitions which do not match the name on the employee list but where it is possible that the different names refer to the same person. There are also names on the petitions which do not match any name on the employee list and where it is probable that the person who signed the petition is not an employee of the respective employer.

[5] The applications in each of the three matters cannot be determined based upon the
petitions relied upon by the NUW or the list of employee names supplied by each of the employers.

[6] The Commission will convene a telephone conference of the parties to further program these applications.”

[5] On 16 October the Commission held a further mention/programming teleconference with the parties and on 17 October the Commission issued directions to the parties in relation to the contested issue as to whether the group of employees was fairly chosen, with a hearing date of 6 November 2014 to deal with that aspect of the applications. The hearing date was later changed to 7 November 2014. The hearing and determination of the fairly chosen question did not occur as the parties reached agreement that the group of employees who would be subject to the majority support application would be the employees employed by the three employers of BPL’s site at 20-22 Moss Road, Wingfield and BPL’s site at Hakkinen Road, Wingfield. The hearing on 7 November 2014 was converted into a further programming conference.

[6] At the conference the Commission advised the parties that it was the intention of the Commission to conduct a ballot of the relevant employees of each of the three employers and that information for the ballot would be prepared in different languages and that the ballot would be conducted by the AEC.

[7] In December 2014 the Commission decided that the ballot would not be conducted by the AEC but rather would be conducted as an attendance ballot by the Commission and would most likely occur in late January 2015. After various correspondences had been exchanged between the parties and the Commission in late January 2015 a further conference was convened by the Commission on 2 February 2015 to finalise the ballot process.

[8] The Commission determined that the most effective means of working out whether a majority of employees wanted to bargain with their respective employer for an enterprise agreement was to have a compulsory attendance ballot held at the workplace during work hours. The Commission also determined to produce an information sheet which the employers were required to distribute to employees prior to the vote. The information sheet and the ballot papers were translated into the key languages used by the employees.

[9] The Ballot Paper was constructed having regard to both the requirements of s.236 and 237 of the Act and the fact that a high proportion of voters did not English as their first language and that the level of knowledge about the Fair Work Act was low. The language of s.236 and 237 focuses on whether or not the employee wants to bargain with their employer. If a ballot paper in a majority support determination ballot limited itself only to the question: Do you want to bargain with your employer about a proposed enterprise agreement? it might very well lead to a higher No vote as the question implies that the employee will have to do the bargaining. As the scheme of the Act permits an employee to appoint a bargaining representative for the purpose of bargaining with their employer for a proposed enterprise agreement then the appropriate question to put on the ballot paper is:

DO YOU (INCLUDING BY USING A BARGAINING REPRESENTATIVE) WANT TO BARGAIN WITH YOUR EMPLOYER FOR AN ENTERPRISE AGREEMENT?

[10] Whether in English or in any other language the question posed on the ballot paper is cumbersome. However in the context of the present matter where the Commission had prepared an Information Statement in the several languages and where both the NUW and the employers had the opportunity of engaging in electioneering tactics in the lead up to the vote the Commission had a high degree of confidence that employees would have been exposed to a range of views about the matter to be voted on before they cast their vote.

[11] On 11February 2015 the Commission issued an order in each matter. The order was to both the relevant employees and to the employer. The relevant employees were ordered to attend the Commission at the worksite during certain hours for the purpose of the ballot. The employer was ordered to place a copy of the Order in places where it would be drawn to the attention of the relevant employees and the employer was also ordered to provide to each relevant employee a copy of Information Sheet produced by the Commission. The Order and Information Sheet is attached to this decision.

[12] The decision to hold a compulsory attendance ballot was not made lightly. The size of the electorate and the multiple languages involved necessitated a high level of direct involvement by the Commission.

[13] The total number of employees who were eligible to vote was 483 as at 13 February 2015 split amongst the three employers as follows: BPL 162, CM 93 and APG 228. The following languages were identified as being the key languages to be used in the Information Sheet and on the Ballot Papers: English, Lao, Simplified Chinese, Vietnamese, Dari, Hindi, Khmer, Arabic and Burmese.

[14] The operations at the poultry processing plant of BPL at Moss Rd Wingfield have very complex rostering arrangements necessitated by the nature of the business. As live poultry arrive at the site the first workers needed to start work are in the Kill and Evisceration section. As the poultry carcase moves through the production process different groups of workers have different start times from those at the beginning of the process. Both rest breaks and meal breaks are staggered in each section of the production process.

[15] In order to provide the least disruption to the workplace the Commission in consultation with BPL agreed to be physically present at the workplace over the following periods:

[16] Monday 10.30pm to 1.30am, Tuesday 9.00am to 7.00pm and Wednesday 4.00am to 4.00pm and to conduct the ballot from a small office located next to the main reception area of the Moss Rd site and in the upstairs meeting room at the Hakkinen Rd site. Both sites were only a few minutes driving time apart.

[17] Each of the three employers co-operated with the organising of employees to attend the Commission during the agreed times and as a result the Commission was not required to be at the sites for the whole of the periods set aside. The Monday night balloting commenced at 10.30pm and finished at 12.45am, Tuesday balloting concluded by 4.30pm and Wednesday balloting concluded after 3.00pm in order to ensure that some persons who had not been at work were able to attend the workplace to vote.

[18] A standard ballot paper was produced and translated into each of the relevant languages. The Commission had an ample supply of ballot papers in each language. As employees attended the voting place they identified themselves and had their names marked off the roll. The Commission initialled the ballot paper and marked the ballot paper with an identifier of the employer; ie BPL, CM or APG. Completed ballot papers were placed by the voter in a locked ballot box.

[19] At the conclusion of the attendance ballot it was clear that some employees had not voted. This was to be expected given the size of the voting cohort. Some employees were on various forms of leave during the attendance ballot period and in the case of one of the employers a small number of employees had been left off the roll of voters due to a misunderstanding about the Commission’s order.

[20] The Commission then undertook a postal vote of these remaining employees.

[21] At the conclusion of the voting process (being both the attendance ballot and the postal vote) the results in each of the three matters were that a majority of employees of each employer did not want to bargain with their employer for a proposed enterprise agreement.

[22] The details of each vote are attached.

[23] In each of the three applications the Commission is satisfied that a majority of the employees of each employer do not want to bargain with their employer and therefore the applications in each matter are dismissed.

COMMISSIONER

Details of Vote conducted by the Fair Work Commission for BPL Adelaide Pty Ltd

Number of Voters: 162	Total	English	Dari	Lao	Vietnamese	Simplified Chinese	Khmer	Hindi	Burmese	Arabic
Number of Votes Issued	157	111	1	1	10	20	10	2	1	1
Number of Votes Returned	151	108	1	2	10	18	9	1	1	1
Number of Formal Votes	149
Number of Informal Votes	2
Number of Votes in Favour	63	45	0	1	7	0	8	1	1	1
Number of Votes Against	86	63	1	1	3	18	1	0	0	0

Details of Vote conducted by the Fair Work Commission for Chandler Macleod

Number of Voters: 93	Total	English	Dari	Lao	Vietnamese	Simplified Chinese	Khmer	Hindi	Burmese	Arabic
Number of Votes Issued	93	76	5	1	2	1	2	0	5	1
Number of Votes Returned	83	68	5	1	2	1	0	0	5	1
Number of Formal Votes	83	68
Number of Informal Votes	0	0
Number of Votes in Favour	38	30	1	1	1	1	0	0	4	0
Number of Votes Against	45	38	4	0	1	0	0	0	1	1

Details of Vote conducted by the Fair Work Commission for Australia Personnel Global Pty Ltd

Number of Voters: 228	Total	English	Dari	Lao	Vietnamese	Simplified Chinese	Khmer	Hindi	Burmese	Arabic
Number of Votes Issued	224	111	2	1	2	107	0	1	0	0
Number of Votes Returned	217	104	2	1	2	107	0	1	0	0
Number of Formal Votes	217
Number of Informal Votes	0
Number of Votes in Favour	109	54	1	1	0	52	0	1	0	0
Number of Votes Against	108	50	1	0	2	55	0	0	0	0

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562288>