DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Teys Australia Southern Pty Ltd
(AG2015/3153)

TEYS AUSTRALIA SOUTHERN PTY LTD WAGGA WAGGA PRODUCTION DEPARTMENTS ENTERPRISE AGREEMENT 2015

Meat Industry
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…

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] FWCA 4836
Decision Date: 16 JULY 2015

CaseChat Overview and Summary

The case involved an application by Teys Australia Southern Pty Ltd for the approval of the Wagga Wagga Production Departments Enterprise Agreement 2015. The application was made to the Fair Work Commission (FWC), which was required to determine whether the agreement met the necessary legal criteria for approval. The dispute centred on whether the agreement complied with the provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009.

The legal issues before the FWC included whether the agreement had been made in good faith and whether it contained the minimum terms and conditions required by law. Additionally, the FWC had to consider whether the agreement appropriately balanced the rights and interests of both the employer and the employees. Another key issue was whether the agreement had been made following proper consultation processes and whether the employees had been adequately informed about the agreement.

The FWC found that the agreement was made in good faith and contained all the necessary minimum terms and conditions. The Commission was satisfied that the agreement appropriately balanced the rights and interests of both parties and that it had been made following proper consultation processes. The employer had taken steps to ensure that the employees were adequately informed about the agreement, and the FWC was satisfied that these steps were appropriate. Consequently, the FWC approved the Wagga Wagga Production Departments Enterprise Agreement 2015.

The FWC ordered the approval of the Wagga Wagga Production Departments Enterprise Agreement 2015, effective from the date of the decision. This approval was subject to the agreement being registered with the Fair Work Commission Registry, and the employer was required to take all necessary steps to ensure compliance with the terms of the approved agreement.

Orders