Teys Australia Southern Pty Ltd

[2015] FWC 4865

[2015] FWC 4865

The attached document replaces the document previously issued with the above code on 16 July 2015 [2015] FWCA 4836 in its entirety.

Reference code has been corrected.

Wendy Burgess

Associate to Senior Deputy President Hamberger

Dated 16 July 2015

[2015] FWC 4865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Teys Australia Southern Pty Ltd
(AG2015/3153)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 16 JULY 2015

Application for approval of the Teys Australia Southern Pty Ltd Wagga Wagga Production Departments Enterprise Agreement 2015.

[1] An application has been made by Teys Australia Southern Pty Ltd (the employer) for approval of an enterprise agreement known as the Teys Australia Southern Pty Ltd Wagga Wagga Production Departments Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] The Australasian Meat Industry Employees Union (AMIEU) filed a declaration opposing approval of the Agreement by the Commission. It objected that no enterprise agreement had been made within the meaning of s.182 (1) of the Act; and the Agreement had not been genuinely agreed to by the employees covered by the Agreement within the meaning of s.188 of the Act.

[3] A hearing was conducted by video on 16 July 2015. A number of statements were filed by the employer and the AMIEU. No witnesses were required for cross-examination.

[4] The issues in dispute concern the conduct of the ballot to approve the Agreement. Based on the evidence presented to me at the hearing, I am satisfied of the following:

● The employer engaged Mr Errol Hodder as a returning officer for a ballot of relevant employees to approve the Agreement and gave him responsibility to manage the process.

● Before the voting period began, Mr Hodder clearly explained the process he would follow including how he would determine and classify informal votes.

● Employees were advised that there was to be an attendance ballot opening at 5:00am on 25 June 2015 and closing at 1:30pm on 19 June 2015.

● Mr Hodder provided assistance as required to employees from a non-English-speaking background.

● The votes cast in the ballot were counted after the conclusion of voting on Friday 19 June 2015. The result of the count was declared as 290 votes against the proposed agreement and 280 votes in favour of the proposed agreement. There were 33 informal votes.

● Employees who had been on approved leave were able to cast a postal vote.

● On 22 June the employer asked members of the joint consultative committee (that had been involved in the negotiation of the Agreement) to permit an additional 24 people to cast votes in the ballot. This was on the basis that these employees had been on unplanned leave during the period of the ballot, and had therefore been unable to cast a vote.

● A majority of members of the joint consultative committee agreed to extend the period for voting to enable the 24 employees to vote.

● 16 of these 24 employees subsequently voted. When their votes were added to the total the result was that the yes votes totalled 293 and the no votes 292, with 34 informal votes.

[5] The Act relevantly 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 copy of the agreement etc.

…

(2) 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.

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

…

181 Employers may request employees to approve a proposed enterprise agreement

(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

182 When an enterprise agreement is made

Single-enterprise agreement that is not a greenfields agreement

(1) If the employees of the employer, or each employer, that will be covered by a proposed single-enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.’

[6] A few points are immediately apparent from these provisions. First, for an agreement to be made, employees must have a vote. Secondly, it is (at least in a general sense) up to the employer to determine how the vote is to be conducted. Thirdly, at least seven days before the vote, the employer is to take all reasonable steps to notify the employees of the voting method to be used, and the time and place by which the vote is to occur. Fourthly for an agreement to be made, a majority of those employees who cast a valid vote must vote in favour of the agreement.

[7] In the circumstances of this case, at least two issues arise. First, is an employer who has notified the employees of the method of voting and the time and place at which the vote will occur subsequently bound by that process?

[8] At least in broad terms, the answer would have to be yes. The purpose of notifying the employees of the method and time and place for the vote is to give all the relevant employees a fair opportunity to have a vote on the proposed agreement. If employers were given carte blanche to change the date of the vote, for example, this could clearly mean that some employees might miss out on the opportunity to vote.

[9] The second issue that arises in the circumstances of this case is what constitutes a ‘valid’ vote. This issue was considered by Cartwright SDP in Endeavour Petroleum 1. While that case was concerned with s.170LK of the Workplace Relations Act 1996 it is in my view relevant to the circumstances of this case.

[10] In Endeavour Petroleum, Cartwright SDP referred to the ordinary meaning of the words used in the expression ‘valid vote’ and held (at paragraph [50]):

‘Applying the ordinary meaning of the term “valid vote”, means, in my view, that a vote cast by a person ineligible to vote cannot be a valid vote, where “valid” is defined by the New Shorter Oxford Dictionary to mean “possessing legal authority; executed with the proper formalities; legally acceptable or binding” and the Macquarie Dictionary to mean “legally sound, effective or binding; having legal force; sustainable in law”. Complying with both the eligibility condition to vote and the appointed balloting procedure is implicit in the notion of casting a valid vote.’

[11] While there is no issue that the employees who cast a vote after the initial ballot had closed were eligible to vote, I am satisfied that there has been a failure to comply with the ‘appointed balloting procedure’.

[12] An employer is entitled to determine (within reason) the voting process and time frame; that is they are able to ‘appoint the balloting procedure.’ For example, the employer has the right to exclude from the count ballot papers marked with a cross, rather than a tick (as happened in this case) if it has determined (and advised employees) that ballot papers must be marked with a tick. What it cannot do is then change the balloting procedure, especially after the ballot has closed, to get a better result.

[13] In this case, there was (as there had to be) a clearly established time frame set down for the ballot, and I am satisfied that this was communicated to the employees. That time frame was part of the ‘appointed balloting procedure’. The votes that were cast after the closing of the ballot did not comply with that procedure. Accordingly, I am not satisfied that the votes cast after the close of the ballot on 19 June 2015 were valid.

[14] Consistent with this finding, the result declared on 19 June 2015 must stand. This means that a majority of employees who cast a valid vote did not approve the Agreement. Accordingly, the Agreement has not been ‘made’ in accordance with s.182 of the Act.

[15] The application to approve the Agreement is dismissed.

SENIOR DEPUTY PRESIDENT

 1   Endeavour Petroleum Pty ltd Certified Agreement 2004 PR957131, 8 April 2005.

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