[2019] FWC 2289

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Shop, Distributive and Allied Employees Association
v
Metcash Food and Grocery Pty Ltd
(B2019/272)

DEPUTY PRESIDENT BINET

PERTH, 5 APRIL 2019

Proposed protected action ballot of employees of Metcash Food and Grocery Pty Ltd.

[1] At 11:11 am on Wednesday 3 April 2019 the Shop Distributive and Allied Employees Association (SDA) filed an application (Application) for a protected action ballot order pursuant to section 437 of the Fair Work Act 2009 (Cwth) (FW Act).

[2] The Application sought an order for the conduct a ballot of employees of Metcash Food and Grocery Pty Ltd (Metcash) employed at the Metcash facility at 218 Bannister Road Canning Vale Western Australia to ascertain whether those employees support the taking of protected industrial action in relation to the negotiations for a replacement enterprise agreement (Proposed Enterprise Agreement).

[3] The employees proposed to be balloted are those employees who are members of, or are represented by, the SDA.

[4] Section 441 of the FW Act provides that an application for a protected action ballot order must, as far as practicable, be determined within two working days after the application is made.

[5] At 1:13pm on Wednesday 3 April 2019 the Chambers of Deputy President Anderson emailed Metcash to confirm whether Metcash opposed the granting of the order. The email advised the parties that the Fair Work Commission (FWC) is obliged to deal with protected action ballot orders, as far as practicable, within 48 hours of lodgement. The email warned the parties that if the Application was opposed then the Application would be listed for a hearing at short notice.

[6] In the absence of confirmation from Metcash that the Application would not be opposed the Application was allocated to my Chambers at 8:15am on Thursday 4 April 2019. In order to discharge the statutory obligation to, as far as practicable, determine the Application within two working days the parties were informed by email at 8:40am on Thursday 4 April 2019 that the Application would be listed for a conference and if necessary subsequently a hearing at 1pm the same day (Hearing).

[7] A series of correspondence by the parties with Chambers revealed that two aspects of the proposed order sought by the SDA were opposed by Metcash. These were that the order contains a requirement that the ballot be conducted by an attendance ballot and secondly that the date by which the ballot close be 16 April 2019.

[8] Metcash informed Chambers that none of its officers were available to attend the conference or hearing in person or by video link from any of the offices of the FWC elsewhere in the country. Consequently, a telephone link was arranged to permit Ms Kristen Barrett (Ms Barrett) Head of Employee Relations and Policy to participate in the hearing by telephone from Sydney.

[9] At the Hearing the SDA were represented by Mr David Scaife of Eureka Lawyers. Ms Barrett is a legal practitioner on secondment and not employed by Metcash. Leave to be represented was granted to Mr Scaife, and to the extent it was necessary to Ms Barrett, pursuant to section 596(2)(a) of the FW Act to enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

[10] During the course of the Hearing Ms Barrett variously submitted that Metcash had been denied procedural fairness because Metcash had not had sufficient time to prepare for the Hearing, that she did not have the opportunity to cross examine Mr Benjamin Harris (Mr Harris) in relation to his statutory declaration filed in support of the Application and that she did not have an opportunity to call any witness evidence on behalf of Metcash.

[11] Metcash had not until 2:50pm indicated that it required Mr Harris for cross examination. The proceedings were adjourned part heard to locate Mr Harris and make him available for cross examination by telephone. It was the evidence of Mr Harris when he was located was that he had alerted Metcash on Tuesday 2 April 2018 that the Application would be filed imminently.

[12] The proceedings were also separately adjourned for Ms Barrett to get instructions as to whether Metcash wished to call any witnesses to give evidence by telephone. After the adjournment Ms Barrett confirmed that Metcash took the view that any witness evidence would have little determinative value because it was Metcash’s submission that the FW Act did not permit me to require the AEC to conduct an attendance ballot nor to set a date for the close of the ballot such that the voting method would necessarily have to be by attendance ballot rather than postal ballot.

[13] Metcash is a ASX listed wholesale distribution and marketing company with sales of over $14 billion in the 2018 financial year and over 6,000 employees nationally. 1 Not unsurprisingly for an organisation of that size, correspondence with Chambers by various officers of Metcash indicates that it has internal industrial relations and legal expertise available to it. This should have ensured that Metcash was aware of the statutory obligation imposed on the FWC to hear and determine the Application within two days and therefore the likelihood that the hearing would be listed quickly. In any event Metcash were warned on Wednesday by Deputy President Anderson’s Chambers of an imminent hearing. Given the steps taken to accommodate Ms Barrett’s appearance, the arrangements made to make Mr Harris available for cross examination and the decision of Metcash not to seek to call any witnesses the hearing proceeded. I have reached my conclusion based on the submissions and evidence before me.

[14] The FWC is obliged to issue a protected ballot order in the following circumstances:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3)A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[15] Section 437 relevantly provides as follows:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order ) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(c) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time , see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.”

[16] The Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement. The Application specifies the group of employees who are to be balloted. The Application also specifies the questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action. The SDA have proposed that the Australian Electoral Commission (AEC) conduct the ballot. The Application was accompanied by the documents and other information prescribed by the Fair Work Regulations 2009 (Cwth). I am therefore satisfied that the Application has been made in accordance with section 437 of the FW Act.

[17] The SDA has provided details of the steps taken by them to bargain and of the progress of bargaining to date. I am satisfied that the SDA has been, and is, genuinely trying to reach an agreement with Metcash.

[18] Metcash oppose the order containing a requirement that the ballot be conducted by an attendance ballot. Metcash also oppose that the date by which the ballot close be 16 April 2019 on the grounds that the effect of such an order would be that the AEC would be compelled to conduct an attendance ballot rather than a postal vote because a postal vote could not be completed within that time frame.

[19] The question of whether the FWC has the power under the FW Act to specify the voting method for the ballot when the protected action ballot agent for the ballot is the AEC was considered by Commissioner Thatcher in National Union of Workers – New South Wales Branch v ACCO Australia Pty Ltd[2009] FWA 226. In that matter Commissioner Thatcher declined a request from the employer that the protected action ballot order to be issued by Commissioner Thatcher directing the AEC to use a postal ballot as the voting method. In his reasons Commissioner Thatcher set out a detailed analysis of sections 449, 450 and 451 of the FW Act as follows (footnotes omitted):

“[53] The issue of whether FWA has power to direct the AEC on the voting method requires me to construe paragraph 449(2)(d) in relation to s.451(2), which each appear in Subdivision C (Conduct of protected action ballot) of Division 8, within the context of that subdivision taken as a whole.

[54] Section 449 (Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent), which is at the commencement of Subdivision C, includes:

“(2) The protected action ballot agent must conduct the protected action ballot in accordance with the following:

(a) the protected action ballot order;

(b) the timetable for the ballot;

(c) this Subdivision;

(d) any directions given by FWA;

(e) any procedures prescribed by the regulations.” (emphasis added)

[55] Section 450 (Directions for conduct of protected action ballot) applies if the agent is not the AEC. Subsection (2) requires FWA to give the agent written directions in relation to certain prescribed matters, including;

“(a) the development of a timetable;

(b) the voting method, or methods, to be used;

(c) …” (emphasis added)

[56] Therefore, although s.450 is not directly relevant to these proceedings it does assist with the proper construction of paragraph 449(2)(d). For the following reasons the proper application of Subdivision C is that if the agent is not the AEC, (and s.451 - which I will come to - does not apply) the jurisdiction for FWA to direct the agent on the voting method is not paragraph 449(2)(d): rather it is paragraph 450(2)(b):

(a) Paragraph 450(2)(d) mandates FWA to give such directions in writing, whereas the ‘any’ in paragraph 449(2)(d) indicates that the power to give the direction is discretionary;

(b) Paragraph 450(2)(d) is expressed in specific terms; paragraph 449(2)(d) is general in nature;

(c) Paragraph 450(2)(d) has to be read in conjunction with paragraph 450(2)(c), which includes s.451.

[57] The next section in Subdivision C is s.451 (Timetable for protected action ballot) which states:

“(1) This section applies if:

(a) the protected action ballot agent is the Australian Electoral Commission; or

(b) FWA has directed the protected action ballot agent to comply with this section.

Note: If this section does not apply, the protected action ballot agent must comply with directions given by FWA in relation to the matters dealt with by this section (see section 450).

(2) As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must, in consultation with each applicant for the order and the employer of the employees who are to be balloted:

(a) develop a timetable for the conduct of the protected action ballot; and

(b) determine the voting method, or methods, to be used for the ballot.” (emphasis added)

[58] Therefore, under s.451, FWA has no discretion to direct the AEC in relation to the method of voting. Rather the AEC is required, in consultation with the applicant and the employer, to determine the voting method to be used for the ballot.

[59] This analysis supports a construction of Subdivision C that the Parliament intended that it is for the AEC to determine the voting method to be used for the ballot and that whatever directions FWA may issue to the AEC under paragraph 449(2)(d) they cannot override s.451(2).

[60] That construction is supported by reference to the clause of the Explanatory Memorandum to the Fair Work Bill 2008 in relation to that was to become s.451, which makes no reference to the FWA and states:

“1800. Clause 451 requires the AEC … to comply with this clause – to develop a time table and determine the voting method, or methods, to be used for the protected action ballot.”

[61] In any event there is no requirement in the Act that FWA determine the voting method to be used by the AEC and there is no reason why the method cannot be determined by the AEC pursuant to paragraph 451(2)(b) after consulting with the NUW and ACCO and giving due consideration to their competing views. Therefore even if FWA has such discretionary powers under paragraph 449(1)(d), I would refrain from making such a direction on the basis that it is unnecessary.”

[20] The approach of Commissioner Thatcher was adopted by Commissioner Bissett in United Voice v Wilson Security Pty Ltd [2011] FWA 5828 at [32] to [41] and Commissioner Booth in Independent Education Union of Australia v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane t/a Brisbane Catholic Education Office[2015] FWC 6484.

[21] The SDA submitted that I should depart from the reasoning of Commissioner Thatcher in National Union of Workers – New South Wales Branch v ACCO Australia Pty Ltd[2009] FWA 226 subsequently adopted by Commissioners Booth and Bissett because of the 2012 amendments to the FW Act contained in the Fair Work Amendment Act 2012 (No.174 of 2012). These amendments inserted sub section (3A) in section 443 of the FW Act and inserted the word “expeditiously” into sub section 449(2) of the FW Act (2012 Amendments).

[22] Sub section 443(3A) provides that:

“(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.”

[23] The amended section 449 of the FW Act (which is set out in full earlier in this decision) provides that (highlighting added):

(2) The protected action ballot agent must conduct the protected action ballot expeditiously and in accordance with the following:

(a) the protected action ballot order;

(b) the timetable for the ballot;

(c) this Subdivision;

(d) any directions given by the FWC;

(e) any procedures prescribed by the regulations.

[24] According to the Explanatory Memorandum, the 2012 Amendments were intended to give effect to the recommendations of the Fair Work Review Panel set out in its report - Towards more productive and equitable workplaces: An evaluation of the fair work legislation (Report).

“Part 3 – Conducting protected action ballots

Fair Work Act 2009

200. Item 15 inserts a new subsection (3A) in section 443 of the FW Act to require the FWC, when specifying a date on which voting in a protected action ballot closes, to ensure that this date will enable the ballot to be conducted as expeditiously as practicable. Item 16 amends subsection 449(2) of the FW Act to require a ballot agent to conduct a protected action ballot as expeditiously as practicable. This amendment responds to Panel recommendation 32(d).” 2

[25] Recommendation 32(d) of the Report provided as follows: 3

“Recommendation 32: The Panel recommends that Division 8 of Part 3-3 be amended to:

(a) allow protected action ballots to be conducted by electronic voting

(b) allow an employee who becomes a union member after a protected action ballot order is obtained by that union to be included on the roll of voters for the ballot, and to vote on and take protected industrial action

(c) allow an employee bargaining representative who is a union member to be included in the group of employees to be balloted pursuant to a ballot order obtained by the employee’s union, and to vote on and take protected industrial action

(d) require FWA to ensure that ballot agents conduct ballots expeditiously

(e) if the group of employees to be covered by a proposed agreement includes employees covered by an agreement that has not passed its nominal expiry date, allow the remaining employees to be the subject of a ballot order, and to vote on and take protected industrial action.”

[26] The Report explained the basis for the recommendation in the following manner:

“Method of voting

We received a number of submissions from unions to the effect that the method of voting employed was inappropriate. We are concerned, as submitted by some, that this may contribute to low voter turnout in some cases. The reliance on paper, as opposed to electronic, ballots was a significant frustration for unions. Evidence provided suggested that this creates particular inconvenience, difficulty and delay for workers in remote localities and for employees of large, national employers. The NUW submitted that the AEC tends to prefer postal over attendance ballots which has at times resulted in less appropriate voting methods being employed for the relevant employees. The ACTU proposed that the FW Act could require the AEC to give greater weight to the applicant’s preference or require FWA’s order to specify the method of voting.

We are persuaded that greater flexibility should be afforded in the method of voting in protected action ballots. In particular, we consider that allowing electronic voting in appropriate circumstances has the potential to increase voter turnout and potentially reduce delays. We note the ACTU submitted that FWA adopts a ‘one size fits all’ approach in relation to when a ballot must close, routinely issuing orders that specify 20 days. In light of our concerns about the delay associated with the ballot process, we are also persuaded that FWA should be required to ensure a ballot is conducted expeditiously.” 4

[27] The authors of the Report clearly contemplated the possibility that the FWC be given the power to direct the AEC as to the method of voting to be utilised in a protected action ballot. The authors of the Report elected not to recommend such an amendment. Having had this possibility expressly ventilated in the Report, if the legislature had believed it was appropriate to grant such a power to the FWC, it presumably would have done so along with the other amendments made in 2012 or in amendments made subsequently.

[28] Instead what the authors of the Report suggested, and what the parliament subsequently implemented with the 2012 Amendments, was an amendment to section 449(2) which reinforced to the AEC its obligation to conduct ballots using the most expeditious voting method rather than defaulting to the use of postal voting.

[29] Even taking into account the 2012 amendments I still concur with the reasoning adopted by Commission Thatcher set out above, and endorsed by Commissioner Booth since the amendments were made, that an analysis of the relevant provisions supports a construction of Subdivision C (Conduct of protected action ballot) of Division 8of the FW Act that the Parliament intended that it is for the AEC to determine the voting method to be used for the ballot in consultation with the parties.

[30] Even if the FWC does have a discretionary power to order that the AEC adopt a particular voting method I would refrain from making such an order or direction on the basis that it is unnecessary. Section 449(2) compels the AEC to conduct the protected action ballot expeditiously. If an attendance ballot is the voting method which will enable the protected action ballot to be conducted as expeditiously as practicable then the AEC is duty bound to adopt that voting method.

[31] The SDA submitted that even if I should find that I did not have the power to direct the AEC that the voting method for the ballot should be by way of attendance ballot that the order which I issue should prescribe the earliest closing date which the evidence indicated the ballot could be conducted.

[32] SDA submitted that the location and nature of work was well suited to an attendance ballot. In fact Mr Harris gave evidence that an attendance ballot had previously been conducted at the same workplace without difficulty. According to Mr Harris employees participated in the ballot during their unpaid break times and therefore the ballot did not unduly interrupt productivity.

[33] Mr Harris says that the parties have been bargaining pursuant to the current Notice of Employee Representational Rights and previous NERR since March 2018. During this period three proposed agreements have been unsuccessfully put to ballot with increasing proportion of no votes. The SDA submit that its members have patiently tried to reach agreement with their employer but have become frustrated and are entitled to exercise their right to take protected action expeditiously through an attendance ballot rather than a more lengthy postal ballot process. 5

[34] According to the SDA the AEC had informally indicated to the SDA that if the ballot was conducted by attendance vote the ballot could close as early as 16 April 2019.

[35] The SDA submitted that, given the evidence before me, the 2012 amendments inserting sub section (3A) into section 443 of the FW Act compel me to order that the date the ballot must close should be 16 April 2019 to enable the protected action ballot to be conducted as expeditiously as possible.

[36] In order to fully inform myself I required an officer of the AEC to attend the hearing pursuant to my powers in section 590(2) of the FW Act.

[37] On very short notice Mr Paul Davis of the AEC gave evidence by telephone from Sydney. The evidence of Mr Davis whose position is Assistant National Director of Industrial and Commercial Elections was that:

Mr Scaife - What is the earliest day on which the Australian Electoral Commission could conduct a protected action ballot by attendance at a single worksite in the Perth metropolitan area.

Mr Davis - The earliest would be in the week … I’ve spoken to our people in Perth and the earliest they would be able to undertake that would be in the week commencing the 15^th of April.

Mr Scaife - And what is the earliest that a postal ballot could be completed by?

Mr Davis - Based upon and on the assumption that the ballot order is issued it would be in the week of the 6^th of May? That’s assuming all the people are in the metropolitan area.

Mr Davis - The earliest that postal vote could be completed by on the assumption that the ballot order is issued it would in the week of the 6^th of May.

Mr Davis - That’s assuming – assuming all the people are in the Perth metropolitan area are they?

Mr Scaife - Yes it’s a single work site in the metropolitan area that’s the assumption… Could I just ask a further question …. when you said that the earliest date for an attendance ballot would be in the week commencing the 15^th of April. Could the ballot … an attendance ballot … be concluded in fact by on the 15^th of April.

Mr Davis- No as I say it would be again dependent upon when the ballot order is issued.

Mr Scaife-Yeah for the sake of assuming that the order would be issued this afternoon

Mr Davis-Ok well if it this afternoon we would need to undertake a number of preliminary processes and confirm in terms of the capacity and appropriateness of a place to conduct the ballot out there. As I say it would be in that week of the 15^th I couldn’t at this stage unfortunately be any more any more precise that.

Mr Scaife – Ok could the 15^th and 16^th of April be possible … are they practicable dates?

Mr Davis-That would be part of the discussion we would have with the 2 parties to come to an appropriate date for that…

Mr Scaife - Yes … But so far as the Australian Electoral Commission is concerned the 15^th or 16^thof April are practicable dates for the holding of an attendance ballot is that right

Mr Davis-They’re within in the range … yes certainly

Mr Scaife - Thank you not further questions Deputy President

Deputy President Binet-That presumes a decision is issued and the decision gets accompanied with an order

Mr Scaife – that was the assumption yes.

Deputy President Binet- So let’s presume a decision was issued perhaps tomorrow does that change your evidence Mr Davis?

Mr Davis-No … it would still be in the week commencing that week of the 15^th it just might not be the earlier part of that week being conscious that good Friday is the Friday it would need to be within those 4 days that are available in that week.”

[38] Metcash opposed a ballot closing date of 16 April 2019 on the grounds that such an order would circumvent the statutory regime set out in section 451 of the FW Act which requires the AEC to consult with the parties to determine what voting method should be utilised. Other than the submission from the bar table that Metcash anticipated being busy in the lead up to Easter and the implication that an attendance ballot would adversely impact on productivity Metcash did not make any submissions or lead any evidence with respect to how a 16 April 2019 ballot close date might be impracticable.

[39] I agree that to order a ballot closing date which prevents a postal ballot occurring effectively dictates to the AEC and the parties the voting method which must be utilised. For the reasons set out above I do not believe that the Parliament intended the FWC to have such a power and if it did for the reasons above I am not inclined to exercise the discretion to use it.

[40] However, the 2012 Amendment inserting section (3A) into section 443 of the FW Act, must have some work to do. A review of the Report suggests that its authors sought to address a perception that the FWC adopted a ‘one size fits all’ or standardised period for a ballot to be conducted. It would appear therefore the intention of the recommendation, and subsequent amendment, was to require the FWC to actively consider the date for the closure of the ballot based on the individual circumstances of each application.

[41] For example if a ballot were to be conducted during a federal election, evidence of a lack of available resources on the part of the AEC to conduct a ballot, combined with evidence that an attendance ballot was not practicable (for example because the employees in question work remotely from one another) then a closing date of more than 20 days might be necessary to enable the ballot to be conducted practicable.

[42] Or for example if the submissions and evidence were that, after consultation with the parties, the AEC had determined that an attendance ballot could practicably be conducted within two weeks then a 20 or 25 day closing date would not be consistent with the requirement that the FWC specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

[43] In this case the evidence of Mr Davis on behalf of the AEC was that while hypothetically an attendance ballot could be conducted in a single metro location within the week commencing 15 April 2019 he was unable to confirm if this was possible without assessing the capacity and appropriateness of the Metcash workplace to conduct an attendance ballot and obtaining further relevant information from the parties.

[44] Mr Davis indicated that if the order was issued on Friday 5 April 2019 it would push his estimation of the hypothetical practicable ballot closing date till late in the week of 15 April 2019. Given that this decision and accompanying order is to be issued late in the afternoon on Friday 5 April 2019 the AEC are unlikely to practicably be able to action it until Monday 8 April 2019. Given that Easter Friday falls in the week of 15 April 2019 it may well be the case that working as expeditiously as possible it is not practicable for the AEC to conduct an attendance ballot until the week commencing 22 April 2019. The week commencing 22 April 2019 contains two public holidays and falls in the midst of Western Australian school holidays. This may well impact on the capacity of the AEC to provide staff to conduct an attendance ballot at this time. In light of the public and school holidays during this period it is also questionable whether an attendance ballot conducted during this week would accurately reflect the views of a majority of those eligible to vote. I am therefore not satisfied on the evidence currently available to me that, if conducted as expeditiously as practicable, that the ballot could be conducted before the week commencing 27 April 2019.

[45] The last attendance ballot at this Metcash facility was conducted more than 6 years ago. The suitability of the work environment for an attendance ballot may well have changed in this time. The inquiries to be conducted by the AEC pursuant to section 451 of the FW Act will determine whether or not this is the case.

[46] The evidence of Mr Davis was that a postal ballot if expeditiously conducted could be practicably completed by the week commencing 6 May 2019.

[47] Given the limited submissions and absence of evidence before me that an attendance ballot would not be the most practicably expeditious method by which to conduct the ballot I am satisfied that it is more probable than not that the ballot will be conducted by 6 May 2019 by attendance ballot rather than postal vote. If the AEC determines that an attendance ballot is not practicable and a postal ballot will enable the ballot to be conducted as expeditiously as practicable or the AEC is unable to conduct the attendance ballot until after Easter a 6 May 2109 date for the closure of the ballot will accommodate these eventualities if they occur.

[48] I have therefore determined that, on the evidence before me of the particular circumstances of this Application, the ballot closing date should be no later than 6 May 2019.

[49] This does not mean the ballot cannot or should not be conducted and concluded prior to this date. Based on the evidence before me specifying the date of 6 May 2019 will enable the protected ballot to be conducted as expeditiously as practicable. To provide for an earlier date would interfere with the responsibility that the legislature has given the AEC to determine the voting method in consultation with the parties within the parameter that the ballot must be conducted expeditiously. A task that the AEC will be able to conduct with the benefit of more fulsome information about the workplace, the capacity of the AEC to conduct the ballot and the views of the parties than I currently have available to me.

[50] Section 449(2) compels the AEC to conduct the protected action ballot expeditiously. If after conducting the appropriate consultations the AEC determine that an attendance ballot is the voting method which will enable the protected action ballot to be conducted as expeditiously as practicable then the AEC is duty bound to adopt that voting method. In which case the ballot will most likely occur sometime between 15 April and the week commencing 27 April 2019.

[51] If having consulted the parties, and conducted the other inquires that it usually makes, the AEC determine that the ballot cannot be completed by 6 May 2019 then section 447(2) of the FW Act provides a mechanism by which the AEC can apply to have the date by which voting in the ballot closes changed.

[52] For completeness, I note that I do not think that it is the intention of the Parliament that, the capacity contained in section 447(2) for the AEC to apply to vary a ballot closing date, is intended to be used by the AEC as a mechanism to assert its right to determine the voting method in circumstances where but for the terms of the order issued by the FWC the AEC would have chosen a different voting method.

[53] Having being satisfied that the requirements of subsections 443(1)(a) and (b) of the FW Act have been complied with, the SDA application is granted and a protected action ballot order shall be issued.

DEPUTY PRESIDENT

Appearances:

Mr David Scaife for the Applicant.

Ms Kristen Barrett for the Respondent.

Hearing details:

2019.

Perth.

4 April 2019.

Printed by authority of the Commonwealth Government Printer

1 Metcash, About Us Explanatory Memorandum, Fair Work Amendment Act 2012) 11.

3 Fair Work Review, Parliament of Australia, Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation (2012) 183.

4 Ibid.

5 Exhibit A2.

Shop, Distributive and Allied Employees Association v Metcash Food and Grocery Pty Ltd

[2019] FWC 2289

5 APRIL 2019

DECISION