DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Stramit Corporation Pty Limited T/A Stramit Building Products
(AG2016/6632)

Application for approval of the Stramit Building Products Maddington Enterprise Agreement 2016. Section 188 genuine agreement. Employees advised of secret ballot but ballot was not conducted in accordance with notice. Agreement not approved.

[1] An application has been made for approval of an enterprise agreement known as the Stramit Building Products Maddington Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Stramit Corporation Pty Limited T/A Stramit Building Products (Stramit). The Agreement is a single enterprise agreement.

[2] FWC received correspondence from one of the two employee bargaining representatives on 26 October 2016 as follows:

“The company Stramit building products has just lodged an enterprise agreement with you. On Friday 21^st October we had a secret ballot at the company there were 3 employees who did not vote. So after the deadline for the ballot management rang the 3 employees who did not vote to ask them which way they were going to vote. This is the second ballot we have had on this issue but the management did not ring those employees who did not vote on the first ballot. Please could you tell me if management has the right to ring those 3 employee’s when it was supposed to be a secret ballot.”

[3] The F17 Statutory Declaration of Mr Yanko, Human Resources Manager for Stramit, states that: employees were notified in writing on 12 and 13 October 2016 of the date, time place and method of voting; that 33 employees will be covered by the agreement, 33 employees cast a valid vote and that 18 employee voted to approve the agreement.

[4] In response to my request Stramit provided a copy of the notice concerning the ballot provided to employees which relevantly states:

“Date and Time of voting:

Day Shift 1.45pm Friday 21^st October 2016

Afternoon Shift 2.00pm Friday 21^st October 2016

Night Shift 8pm Thursday 20^th October 2016

Place of Voting: Factory Staff Room, Stramit Maddington Site

Method of Voting: The voting method will be by a secret ballot”

[5] On 15 December 2016, in response to my request, Mr Yanko for Stramit provided a submission concerning the issue. That submission included the following description of the events concerning the three votes which were not in accordance with the notice for the ballot.

“Although the memo specified that a secret ballot was to be held (which proceeded at the time and dates specified), there were three employees who were unable to cast a vote due to their absence.

On 21 October in the presence, and with the approval, of an employee Bargaining Representative, Stramit contacted the three employees by telephone to provide them with an opportunity to cast a vote if they so wished. One of the employees was on leave during the voting times and two of the employees advised that they had forgotten to vote. All three employees stated to the parties that they were comfortable to vote and to advise their voting intention over the phone.”

[6] Stramit submit that although the votes “were not in accordance with the voting instruction”, “they were fairly obtained and did not compromise the validity of the agreement so made”.

[7] Stramit provided a statutory declaration from one of the affected employees which states that “I received phone calls to inquire on what my vote was, I responded by text and I was not persuaded, pressured and or coerced into making my decision.” This statement confirms that the employee was asked to tell the company representative which way they were voting over the phone. That is to exercise their vote at a time and place and in a manner different to that advised in the notice.

[8] Section 186 requires that I must be satisfied that “the agreement has been genuinely agreed to by the employees covered by the agreement”. Section 182 provides that the agreement is made “when a majority of those employees (that will be covered by the proposed agreement) who cast a valid vote approve the agreement.” Section 181 provides that the ballot cannot be until at least 21 days after the day on which the last notice of employee representational rights was given but does not restrict the ballot method. However, Section 180(3) provides that “the employer must take all reasonable steps to notify the relevant employees” of the time and place at which the vote will occur and the voting method which will be used. That notice must be given 7 days prior to the start of the voting process.

[9] Section 188 provides a follows:

188.  When employees have genuinely agreed to an enterprise agreement
                   An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:
                     (a)  the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
                              (i)  subsections 180(2), (3) and (5) (which deal with pre-approval steps);
                             (ii)  subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
                     (b)  the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
                     (c)  there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

[10] If an assumption is made that the three votes were in favour of the agreement being made then if those votes were excluded the result would have been 15 votes in favour out of a total of 30 votes. This is not a majority. A majority is more than half of the votes cast. I am therefore satisfied that the three votes may well have affected the outcome of the ballot.

[11] The term “valid vote” in Section 182 must be read in context. That context includes the requirement for advanced written notice of the time and place at which the vote will occur and the voting method which will be used and the requirement for genuine agreement. Read in this context I consider it unlikely that a vote which is exercised contrary to the notice of the time and place at which the vote will occur and the voting method which will be used can be regarded as a valid vote. There may be exceptional circumstances where a vote may be valid when exercised contrary to the notice provided. For example where notice is given of an extension to the voting times due to a late change in work requirements or where the number of votes exercised contrary to the notice could not have made any difference to the ballot outcome. However, in the circumstances of this case the votes exercised were directly contrary to the secret ballot method notified, the time limits notified and the locations notified. The votes exercised contrary to the notice could have influenced the outcome. The nature and degree of contravention of the requirements in the notice is so significant as to support a conclusion that the three votes in question were not valid votes.

[12] In this circumstance I cannot be satisfied that Section 182(1) is met, that is that the agreement was made when a majority of those employees (i.e. the employees who will be covered by the agreement) who cast a valid vote approve the agreement. Consequently there has not been a genuine agreement because Section 188(b) has not been met.

[13] It is not necessary to consider whether or not Section 188(c) is applicable in this case. If it was necessary to consider Section 188(c) it would be relevant to consider whether or not there was inappropriate direct or indirect pressure on employees to vote in a certain manner. There is no evidence in this case to support a conclusion that there was inappropriate pressure on the employees concerned. However, a manager asking an individual employee to tell them how they want to vote could, depending upon the circumstances, be a situation where the employee would feel some pressure to cast a vote consistent with management’s wishes.

[14] As I am not satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement I cannot approve the Agreement. The application is therefore dismissed.

COMMISSIONER

Appearances:

Mr Michael Yanko for the applicant

Hearing details:

2017.

Melbourne (VC to):

9 January 2017

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