[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 4865
Decision Date: 16 JULY 2015

CaseChat Overview and Summary

In the case of Teys Australia Southern Pty Ltd, the applicant sought approval for the Wagga Wagga Production Departments Enterprise Agreement 2015 under the Fair Work Act 2009. The dispute was between the applicant company and the Australian Council of Trade Unions, who contested the application. The matter was heard by the Fair Work Commission, which has jurisdiction over such applications under section 232 of the Act.

The central legal issues for determination were whether the agreement complied with the good faith bargaining requirement of section 228 of the Act and whether it met the other statutory criteria for approval, including provisions for minimum rates of pay and conditions. The Commission examined the process of negotiations, the content of the agreement, and whether it was made in good faith. The applicant needed to demonstrate that it had genuinely attempted to negotiate with the unions and that the agreement reflected a fair outcome of those negotiations.

The Fair Work Commission found that the applicant had engaged in good faith bargaining and that the agreement met all statutory requirements for approval. The Commission took into account the extensive negotiations, the inclusion of essential terms and conditions, and the overall fairness of the agreement. The Commission was satisfied that the applicant had met its burden of proving that the agreement was made in good faith and that it provided for fair and reasonable terms and conditions. Consequently, the application for approval was successful.

The Fair Work Commission approved the Teys Australia Southern Pty Ltd Wagga Wagga Production Departments Enterprise Agreement 2015, subject to the terms and conditions set out in the agreement. The approval is effective from the date of the decision and binds the parties in accordance with the provisions of the Fair Work Act.

Orders