United Workers' Union v Quality Bakers Australia Pty Ltd T/A Goodman Fielder

[2020] FWC 6066

[2020] FWC 6066

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.447—Protected action

United Workers’ Union
v
Quality Bakers Australia Pty Ltd T/A Goodman Fielder
(B2020/688)

COMMISSIONER WILSON MELBOURNE, 13 NOVEMBER 2020

Application for a variation of a Protected Action Ballot Order in B2020/599.

[1] Following are my reasons for decision advised to the parties at the conclusion of a hearing on 12 November 2020 relating to an application by the United Workers’ Union (the UWU) to vary a protected action ballot order made by Deputy President Gostencnik on 7 October 2020 in matter number B2020/599 1 (the Ballot Order). At the conclusion of the hearing, after my decision had been disclosed, the parties were directed to confer with the Australian Electoral Commission (AEC) in certain respects. Those discussions have led to agreement between the parties for a consent variation to the Ballot Order. Even though there is agreement on the path forward, it is appropriate for me to publish reasons for decision regarding the determinations made by me.

[2] On 4 November 2020, the UWU lodged an application (the Variation Application) in the Fair Work Commission (the Commission) pertaining to Quality Bakers Australia Pty Ltd t/as Goodman Fielder (Goodman Fielder) for a variation of the original Ballot Order.

[3] The Variation Application was made pursuant to s.447 of the Fair Work Act 2009 (the Act) which is in the following terms:

“447 VARIATION OF PROTECTED ACTION BALLOT ORDER

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action
ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents-
after that time.

(4)  If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.”

[4] The UWU stated in its application form that it sought a seven working day extension to the original closing date for the ballot. Later submissions made by the union indicated it sought additional orders as well, relating to the union’s concerns about whether the roll of voters had been properly compiled.

[5] The UWU was the applicant in the original matter that led to the issuing of the Ballot Order, which therefore satisfies the requirement of s.447(1). Because of that, the requirement in s.447(2) does not require consideration. It will be seen from the application date and the ballot closing date as timetabled by the AEC, 10AM AEDT, Thursday, 12 November 2020, that the application conforms with the requirement in s.447(3)(a) that the application is made at a time “before the date by which voting in the protected action ballot closes”.

[6] The UWU’s application form advised that the variation to the Ballot Order was sought due to unexpectedly long delivery times by Australia Post for the delivery of postal ballots to its members. The UWU stated in its application that:

“•  The variation is sought due to the disruptive effect of COVID-19 on postal ballots.

2. A number of employees capable of voting in the protected action ballot have not or have only recently received their ballots at the time this application is made.

3. In order to allow the ballot to be procedurally fair the Applicant submits the variation sought, being 7 additional working days for ballot to close, is reasonable in the circumstances” 2

[7] The Ballot Order provided that “the date by which voting in the protected action ballot order is to close is no later than 30 working days from the date of this order”. In accordance with usual procedure shortly after the Ballot Order was issued the AEC, the appointed balloting agent, communicated with the parties about a number of administrative matters, including the timetable for the conduct of the ballot. Its timetable included that a protected action ballot notice would be issued to employees on 12 October 2020 and that the roll of voters would be finalised at 5PM AEDT on 14 October 2020. The ballot would open on 15 October 2020 with the AEC sending postal vote packs to voters and close at 10AM AEDT on 12 November 2020.

[8] The Variation Application was initially dealt with in Deputy President Gostencnik’s Chambers and referred to me for determination after Goodman Fielder advised it objected to the application. Short written submissions were received from each party about the application, and a hearing was convened by me on Thursday, 12 November 2020 for the purposes of receiving final submissions and any evidence the parties wished the Commission to take into account in making its decision. Oral submissions were made by Mr Martin de Rooy, Industrial Officer for the UWU and Mr Damien Mines, HR Manager, Victoria/Tasmania for Goodman Fielder. Oral evidence was taken from Ms Pareen Minhas, as UWU Organiser, and Mr Mines.

[9] The Applicant’s case shifted from the time it made its application and when its written submissions were made, on 10 November 2020. Instead of this being a case about the need for further time because of pandemic related postal delays, the orders sought through the UWU’s submissions and reiterated in the hearing were largely concerned with remedying what it perceived as non-compliance by Goodman Fielder with the Ballot Order, at least as it dealt with requirements for the compilation of the roll of voters, as well as endeavouring to remedy what it perceived as a defective roll. In this regard the UWU submitted through its written submissions:

“13. The result of the ballot and timeline should not be prejudiced by the Respondent’s failure to comply with the Order.

14. The Applicant requests the following orders be made:

a. The application to vary the Order be granted;

b. The Respondent provide a full list of employees to the AEC;

c. Any existing ballots be disregarded; and

d. An in person ballot be run by the AEC on a date to be fixed.” 3

[10] The parties’ positions as indicated through their submissions and the hearing include the following:

•  For the UWU it was submitted:

•  In its application, that the application was made because of the disruptive effect of COVID-19 on postal ballots.

•  In correspondence to Goodman Fielder, dated 9 November 2020, after the current application was made, the UWU asserted to the Respondent that it had “come to the Union's attention that a full and accurate list of employees may not have been provided to the AEC per s 452(3) of the Fair Work Act. The Union is concerned that the list provided only included employees who have union fees deducted from their pay”. 4 In this regard the UWU sought confirmation from Goodman Fielder that a full and accurate list had been provided.

•  The non-compliance contention referred to above was elaborated upon in the UWU’s submissions to the Commission as being the provision by Goodman Fielder to the AEC of a list of employees only of those for whom it made payroll union fee deductions.

•  One employee, Nalin Rupasinghe, contacted the UWU and advised they had not received a ballot in the mail, and had contacted the AEC about the subject. The AEC advised the employee at some time before 6 November 2020 that their name was not included on the list of voters received by the AEC.

•  The UWU submitted this was a breach of the Ballot Order since Goodman Fielder knew they were a union member, with them having emailed a person at Goodman Fielder stating they had participated in bargaining meetings on behalf of the union and was known to the company as a union representative. The UWU also submitted this was a breach of s.452 of the Act, which deals with the responsibilities of parties in compilation of the roll of voters.

•  The union had provided a complete list of its members to the AEC as directed.

•  For Goodman Fielder it was submitted that:

•  The UWU had provided only one example of a person who has been unable to vote, with that person’s inability not being connected with delays in the mail.

•  The protected action ballot notice was issued to employees on 12 October 2020 and the balloting agent, the AEC, sent postal vote packs to voters on 15 October 2020.

•  In response to the UWU’s concerns that a complete list of employees may not have been provided to the AEC, Goodman Fielder confirmed that it had provided a complete list, being a list of those employees for whom it made payroll deductions for union membership fees and that Nalin Rupasinghe’s details were not provided to the AEC since their details “were not showing on the Payroll report as having union fee deductions. We are not allowed to edit this list and must provide the list inline with AEC guidelines”.

•  It noted it was not in a position to provide the details of employees to the AEC who did not have the union membership fees through payroll deduction and reminded the UWU that compilation of the list of voters was a joint responsibility:

“The applicant and the employer must provide the names of all employees specified in the Order. The employer has provided a list directly from our payroll system. The applicant has also provided a list”. 5

And further:

“The Respondent provided an unedited list of employees paying membership fees via payroll deduction. A full and accurate list was provided noting that the Respondent does not have access to information on memberships paid directly to the union.

The employees to be balloted are those who will be covered by the proposed enterprise agreement and are members of the bargaining representative who is the applicant for the protected action ballot order.

The AEC process involves referencing the two employee lists provided by the employer and the applicant. They then collate the final list for the protected action ballot excluding any people that do not appear on both of the lists without contacting the employer or applicant about any discrepancies. Nalin Rupasinghe has therefore not been able to vote.” 6

[11] As argued through its written submissions and in the hearing before me on 12 November 2020, it is apparent that the UWU’s motive in pursuing the application was substantially associated with its concerns that an incomplete list of voters has been provided by Goodman Fielder to the AEC.

[12] As set out above, the UWU contended that Goodman Fielder has not complied with the Ballot Order or s.452 of the Act. It argued that since Goodman Fielder had provided a list to the AEC of employees for whom it made union fee payroll deductions that was not consistent with AEC’s direction that it be provided with the names of employees included in the group of employees specified in the Ballot Order .

[13] A letter was sent by the AEC to the parties in this matter after the Ballot Order was made. The letter was dated 9 October 2020 and was addressed to Pareen Minhas, United Workers’ Union and Damien Mines, Quality Bakers Australia Pty Ltd T/A Goodman Fielder. The letter included the following directions after a statement that “There are a number of items on the following pages that require your action”. So far as is relevant to the matter of compilation of the roll of voters is the following:

“Attachment B

In accordance with section 452(3) of the Fair Work Act 2009, please provide the names of the employees included in the group(s) of employees specified in the protected action ballot Order. It is useful to note that employers, in particular, sometimes make errors when providing this list.

Some common errors are:

•  Incorrectly omitting the names of employees who have provided formal advice that they are representing themselves in the enterprise bargaining negotiations

•  Where multiple unions represent employees, incorrectly filtering the list based on an assumption that a person is a member of one union over another

•  Only including names of employees that the employer assumes are members of a union

The applicant and the employer must provide the names of all employees specified in the Order. If there are any questions at all about this requirement, please contact the AEC as soon as possible and one of our staff will be pleased to assist.” (emphasis in original)

[14] The evidence showed that both the UWU and Goodman Fielder had provided lists of employees to the AEC. In the case of the UWU their list included the details of all current members. Goodman Fielder provided a list of names of people for whom it made payroll deductions of union membership fees; while it checked the list before providing it to the AEC, it thought its responsibilities were discharged by providing the list it did, which was inevitably not a complete list of all employees whether or not they were union members.

[15] Mr Mines evidence included that when he learned Nalin Rupasinghe had not received a voting pack he contacted the AEC and spoke with them about situation. He said that amongst other things he asked the person with whom he spoke whether the process he had followed of providing only names of people for whom the company made payroll deductions was correct. Mr Mines recollection was that the AEC representative told him he had provided a correct list.

[16] What seems to have occurred when the AEC compiled the roll of voters is that it used the Goodman Fielder list as the master list checking that each name on the Goodman Fielder list was also on the UWU list. If a person’s names was on both lists, they were then sent a voting pack.

[17] In contrast, Goodman Fielder assumed that the AEC would prepare the roll of voters on the basis that all of the people on the Goodman Fielder list would be automatically included on the roll of voters and that the names of people who were not on the Goodman Fielder list but were on the UWU list would have their names added to the roll, with everyone then being sent a voting pack.

[18] In light of these two different understandings about compilation of the roll of voters, it can be seen how errors were made about the preparation of the roll of voters.

[19] It is also obvious from the above that the roll of voters was not comprehensive. As a result, I was satisfied that there was an appropriate basis to vary the Ballot Order and that it would be to the UWU’s significant disadvantage if a variation was not made.

[20] The AEC directions are set out above. While the direction to “provide the names of the employees included in the group(s) of employees specified in the protected action ballot Order” is clear enough on its face, particularly through the use of the definite article seeking “the names of the employees” it is possible to read the direction differently; although the probability would be that most people would read it as being an obligation to provide all names whether or not they were members of the union. Nonetheless, the fact that the direction is followed by a recognition that common errors arise would suggest that it is not just Goodman Fielder who had difficulty understanding the precise nature of the direction.

[21] For that reason, it would benefit all concerned for the AEC to review the content of its directions and ensure it is beyond doubt as to what is required.

[22] Having concluded that it was proper to make a variation to the Ballot Order the parties were directed to immediately confer with the AEC about what could be done in the circumstance which included the fact that the ballot stemming from the original ballot order had closed at around the same time as the hearing took place, at 10AM Thursday, 12 November 2020.

[23] As set out above, the UWU sought several orders in relation to the Variation Application:

1. The closing date for the ballot should be extended by seven working days;

2. The application to vary the Order be granted;

3. The Respondent provide a full list of employees to the AEC;

4. Any existing ballots be disregarded; and

5. An in-person ballot be run by the AEC on a date to be fixed.

[24] For the reasons set out above I was satisfied it is appropriate to grant the UWU application at least in part:

•  It is appropriate to grant in some form proposed orders 1 and 2. The roll of voters was obviously incomplete, and it was not desirable for that situation to persist. As a result, a process needed to be put in place to ensure a comprehensive roll of voters was compiled and then further time would be needed for voters to cast their vote. The precise process, and form of Variation Order from the Commission would be dependent on the results of discussions between the parties and the AEC. An appropriate Variation Order would be issued by me following a report-back from the parties.

•  It was appropriate to grant proposed order 3 and require Goodman Fielder to provide a full list of employees to the AEC. A direction to Goodman Fielder was issued by me in the hearing to this effect.

•  Subject to the result of discussions between the parties and the AEC I did not consider it appropriate to issue proposed order 4, that any existing ballots be disregarded. Hopefully a process could be agreed between all concerned whereby existing ballots could be considered without a compromise to the integrity of the ballot. I was prepared to reconsider my position on this matter had the AEC advised a process could not be put in place that preserved the integrity of the ballots cast to date.

•  In relation to proposed order 5, I was not disposed to require that an in-person ballot be conducted. I held concerns about the feasibility of conducting an in-person ballot, without hearing from the AEC on the subject or considering the effect the Respondent’s rostering arrangements on the potential participation rate in the ballot. I would also require hearing from the AEC about its preparedness to conduct an in-person ballot, given the current COVID-19 pandemic; even though the Victorian restrictions have eased, it is foreseeable the AEC may still be restricting the activities of its workforce.

[25] Since the hearing I have been advised that the UWU and Goodman Fielder have conferred with the AEC about what can be done to ensure that a comprehensive roll of voters is compiled and that all eligible voters are provided with the opportunity to participate in the ballot. I have been advised that there has been agreement reached between the three parties whereby those who have not previously been given an opportunity to vote will be issued with a voter pack with those ballots which have already been cast still being eligible to be counted in the overall voting tally.

[26] Advice provided to my Chambers from the UWU after the hearing included that there were approximately 16 employees whose names were not included in the original roll of voters for the reasons which are set out above. Included within the advice was also an indication that the AEC had confidence that the ballot could be concluded in accordance with the original ballot order if there were to be a variation to the closing date to 30 November 2020. I am advised that not only has the AEC considered the matters associated with the roll of voters but has also communicated with Australia Post on the subject and that the confidence expressed by them in relation to the closing date of 30 November 2020 has taken into account what may be required with potential delays to the mail in both directions.

[27] In addition to providing the foregoing advice the UWU has also provided the following proposed Variation Order:

“Pursuant to s.447 of the Fair Work Act 2009 (the Act) the Fair Work Commission orders:

1. The Protected Action Ballot Order made 7 October 2020 be varied such that:

4. DATE BY WHICH BALLOT CLOSES

The date by which voting in the protected action ballot is to close is 10am 30 November 2020.

2. The Applicant provide a full, certified list of members to the AEC on the date this Order is made.

3. The Respondent provide a full, certified list of all employees to the AEC on the date this Order is made.

4. The AEC is to include additional names on the roll of eligible voters to certify accurate roll data and conduct the ballot.”

[28] I am satisfied that it is appropriate to make a Variation Order consistent with the above and will do so separately to these reasons for decision. A minor alteration will be made to item 1 of the above so that it reads “The Protected Action Ballot Order made by the Fair Work Commission on 7 October 2020 (PR723363) is varied by deleting item 4 and replacing it with the following: …”.

[29] In finality I wish to congratulate all concerned and especially the staff of the AEC for having found a way through the obvious problem which emerged in relation to this ballot. The fact that there has been an agreed mechanism put in place to ensure those ballots received to date can be counted together with those received from employees who have not previously been given an opportunity to vote stands to the credit of all concerned.

COMMISSIONER

Appearances:

Mr M. De Rooy for the Applicant
Mr D. Mines for the Respondent

Hearing details:

Melbourne (via video conference);
12 November;
2020.

Printed by authority of the Commonwealth Government Printer

<PR724477>

 1   PR723363.

 2   Form F35 – Application for variation of a protected action ballot order, 4 November 2020, item 2.6.

 3   Applicant Outline of Submissions in Reply, 10 November 2020,

 4   UWU email to Damien Mines, 9 November 2020.

 5   Email from Respondent, 10 November 2020.

 6   Email from Respondent, 11 November 2020.