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[2013] FWC 3231
DECISION
Fair Work Act 2009
s.236 - Application for a majority support determination
Media, Entertainment and Arts Alliance
(B2013/616)
COMMISSIONER SPENCER BRISBANE, 5 SEPTEMBER 2013
Majority support determination for APN employees engaged in literacy.
[1] This decision relates to an application made by the Media, Entertainment and Arts
Alliance (the Applicant/MEAA) under section 236 of the Fair Work Act 2009 (the Act) for a
majority support determination to cover certain employees of the following Respondents:
APN Newspapers Pty Ltd;
Capricornia Newspapers Pty Ltd;
Gladstone Newspaper Company Pty Ltd;
The Mackay Printing and Publishing Company Pty Limited;
Sunshine Coast Newspaper Company Pty Ltd;
The Bundaberg Newspaper Company Pty Limited;
The Maryborough Hervey Bay Newspaper Company Pty Ltd;
The Warwick Newspaper Pty Limited;
The Queensland Times Pty Limited;
Gympie Times Pty Ltd;
Toowoomba Newspapers Pty Ltd;
Northern Star Ltd;
The Daily Examiner Pty Ltd;
North Coast News Pty Ltd;
The Tweed Newspaper Co Pty Ltd.
(collectively the Respondents/Companies)
[2] The employees, proposed to be covered, are employees of the Respondents “engaged
in journalism in its literary, artistic and photographic branches and/or the gathering, writing or
preparing of news matter or news commentaries”.
[3] Directions were set for the filing of written submissions and evidence. The parties both
filed materials in accordance with the Directions. The matter was heard, primarily, on 29
April 2013.
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 3231
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[4] The Applicant was represented at hearing by Mr Merrell, of Counsel. The Respondent
was represented by Mr Murray Procter, Partner of DLA Piper.
[5] Whilst not all of the submissions and evidence are referred to in this determination, all
of such have been considered.
Relevant legislation
[6] Section 236 of the Act provides as follows:
236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed
single enterprise agreement may apply to the FWC for a determination (a majority
support determination) that a majority of the employees who will be covered by the
agreement want to bargain with the employer, or employers, that will be covered by
the agreement.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
[7] The Fair Work Commission (the Commission) must make a majority support
determination in accordance with s.237 of the Act:
237 When the FWC must make a majority support determination
Majority support determination
(1) The FWC must make a majority support determination in relation to a
proposed single enterprise agreement if:
(a) an application for the determination has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2) in relation
to the agreement.
Matters of which the FWC must be satisfied before making a majority support
determination
(2) The FWC must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time
determined by the FWC; and
(ii) who will be covered by the agreement;
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want to bargain; and
(b) the employer, or employers, that will be covered by the agreement have
not yet agreed to bargain, or initiated bargaining, for the agreement;
and
(c) that the group of employees who will be covered by the agreement was
fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3) For the purposes of paragraph (2)(a), the FWC may work out whether a
majority of employees want to bargain using any method the FWC considers
appropriate.
(3A) If the agreement will not cover all of the employees of the employer or
employers covered by the agreement, the FWC must, in deciding for the purposes of
paragraph (2)(c) whether the group of employees who will be covered was fairly
chosen, take into account whether the group is geographically, operationally or
organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.
[8] Section 172 of the Act provides:
172 Making an enterprise agreement
Single interest employers
(5) Two or more employers are single interest employers if:
(a) the employers are engaged in a joint venture or common enterprise;
or
(b) the employers are related bodies corporate; or
(c) the employers are specified in a single interest employer
authorisation that is in operation in relation to the proposed enterprise
agreement concerned.
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Summary of Applicant’s submissions and evidence
[9] The Applicant submitted that each of the Respondents is a related body corporate of
each of the other Respondents and that each Respondent is an employer. The Applicant
submitted that the Respondents are single interest employers for the purposes of s.172(5) of
the Act.
[10] The Applicant submitted that the MEAA is a bargaining representative for one or
more employees who would be covered by the proposed agreement.
[11] The Applicant presented a petition of employees as evidence that a majority of
employees who would be covered by the proposed Agreement want to bargain with the
Respondents. Further discussion is set out below, about the reliance on the petition as a means
of being satisfied that a majority of employees, who will be covered by the agreement, want
to bargain.
[12] Ms Terri Butler, solicitor of Maurice Blackburn Lawyers, stated that the Respondents
had not yet agreed to bargain with the Applicant. To this end, Ms Butler attached
correspondence (to her affidavit in the proceedings) from the Applicant to Mr Mark Algie,
Human Resource Director of APN Australian Regional Media.i This correspondence
confirmed that MEAA had written to Mr Algie in 2011 seeking to initiate bargaining, a
request which was not agreed to. It was further outlined that the Applicant intended to apply
to the Commission for a majority support determination. This correspondence was responded
to by Mr Algie, who did not dispute, the assertion of the Applicant in relation to the 2011
offer to commence bargaining and again confirmed that the Respondents had not agreed to
bargain.
[13] The Applicant made submissions as regards to the fairly chosen test (s.237(3A) of the
Act). The Applicant submitted its proposal to negotiate an agreement that covers all editorial
staff, would ensure fairness, equality and consistency across editorial staff. The Applicant
submitted that in the context of s.237(2)(c), the selection of the group was “not arbitrary or
discriminatory”, and that the process of determining whether a group has been fairly chosen
involves comparing the group chosen with any remaining employees employed by the
employer.
[14] The Applicant submitted that the consideration of the ‘geographical, operational or
organisational’ distinctness of the group (a reference to s.237(3A) of the Act) was a
consideration, but was not determinative of the matter that the Commission was required to be
satisfied of, by virtue of s.237(2)(c). The Applicant submitted that the group of employees
sought to be covered was operationally and organisationally distinct from other employees
employed by the Respondents. The Applicant also argued that in the interests of fairness and
equity, the group of ‘editors’ should be captured by the same industrial instruments as other
editorial staff.
[15] In the alternative to the submission above, the Applicant submitted that the group was
fairly chosen as the proposed coverage is “materially the same” as under previous applicable
awards and collective agreements.ii
[16] The Applicant submitted a petition of employees, with 101 of the total 392 employees
signing the petition. During the course of Hearing these figures were amended and admitted
[2013] FWC 3231
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into evidence as Exhibit 10. The amended figures were 134 on the list of petitioners in
support out of 408 relevant employees.iii The Applicant submitted that the petition of
employees provided, demonstrated that a majority of the affected employees wanted to
bargain. However the Applicant acknowledged that there was a significant dispute between
the parties about whether the petition indicated majority support amongst the relevant
employees as per the test in the Act.
[17] The Respondents raised a series of issues with the reliability of the petition. Mr
Andrew Gage, Human Resources Manager, in his evidence stated:
“I have reviewed the document titled ‘Support for APN Enterprise Negotiations’,
provided by Mr Matthew Chesher of the Applicant on 27 February 2013, which I
understand the Applicant claims identifies Relevant Employees (List of Petitioners).
Based on my enquiries, I have concluded the List of Petitioners:
10.1 refers to several publications of employees entities that are not Respondents;
10.2 does not list any employees of the Sixth Respondent (the Bundaberg Newspaper
Company Pty Ltd);
10.3 lists several employees who are not employed by any Respondent; and
10.4 duplicates several names.
Further, I have calculated that at as (sic) 8 March 2013, the List of Petitions identifies
101 current employees of the 392 Relevant Employees of the Respondents. A table
setting out the number of employee identified in the List of Petitions and comparing it
to the total number of employees at each Respondent who would be covered by the
proposed agreement is Annexed and marked with ‘ASG2’.”iv
[18] Taking into account that the number of employees listed on the petition did not
represent a majority of the relevant employees, and the critique by the Respondents of those
recorded on the petition, I could not be satisfied that a majority of affected employees want to
bargain. Accordingly, a postal ballot (of affected employees), to be conducted by the AEC,
was ordered.
[19] In regards to whether a majority of employees who will be covered by the agreement
want to bargain, the Applicant submitted that the Commission could rely on the results of the
postal ballot, conducted by the Australian Electoral Commission (AEC), with the results
declared on 12 June 2013. The results indicated that of the 162 ballots admitted to scrutiny
that 91.98% were in favour of bargaining. The AEC’s determination of results are discussed
further below.
[20] The tallied ballots showed that of the 162 ballots admitted to scrutiny, 149 approved
the action for a majority support determination, 12 did not approve and there was 1 informal
ballot paper.
[21] The Applicant addressed the 41.75% of the employees returning a ballot by noting that
the figure does not necessarily represent indifference or opposition to bargaining and can be
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explained in terms of the circumstances of the employees’ location (throughout regional
Queensland) and in terms of the distribution of the ballot. The Applicant stated that a number
of employees had contacted the AEC, on the basis that they had not received a ballot paper;
that one employee’s ballot paper was sent to the wrong address; and, that at least one other
employee, was overseas, at the time the ballot was conducted. The Applicant provided
evidence in the form of three affidavits from Mr Kevin McDonald, sub-editor, Mr Trevor
Hockins, print editor and Mr Len Lester, night editor for the Respondents. These three
employees provided evidence as to some of the issues experienced with the ballot process.
[22] The Applicant made submissions, as to the appropriateness, of relying on the returned
ballot result, as a measure of whether a majority of employees want to bargain. The Applicant
submitted, that the test for assessing majority support determinations could be distinguished
from protected action ballots, for which the Act specifically provides that 50% of the
employees on the roll of voters must vote in order to determine whether protected industrial
action is authorised.
[23] The Applicant submitted in comparison that there is no express requirement in the Act,
for majority support determinations to meet the tests of those provisions. The Applicant
referred to the Explanatory Memorandum to the Fair Work Bill 2008 which states: “...FWA
will have the power to test the support amongst the employees to which the agreement will
apply in a manner it considers suitable...”. On this basis the Applicant submitted the
Commission has discretion in relation to determining an appropriate method for testing
support. In addition the Applicant submitted that, given that the Commission has the
discretion to further test the level of support, neither the case law nor the legislation require
that this testing by way of ballot must predate the application.
[24] In relation to how to ascertain the level of support, based on the outcome of the ballot,
the Applicant provided evidence from Professor Ian Gordon, Director of the Statistical
Consulting Centre at the University of Melbourne. Professor Gordon outlined that the ballot
itself provides a sound sample of the overall population. Accordingly, the Applicant
submitted, on the basis of the petition and the ballot outcome, that a majority of employees
want to bargain.
[25] The Applicant stated that the Commission could exercise a discretion to be satisfiedv
of majority support, taking into account the circumstances of the ballot and the statistical
outcome of the ballot results. The Applicant submitted that it was reasonable in the
circumstances to issue the determination.
Summary of Respondents’ submissions and evidence
[26] The Respondents submitted that the Commission does not have discretion as to
whether to issue a majority support determination.vi Further it was submitted that the power to
issue a determination only arises after the requisite satisfaction has been reached by the
Commission.vii
[27] The Respondents submitted that the industrial history of the Respondents’ operations
is that each “masthead” (ie each of the individual second to fifteenth Respondents) has each
had separate enterprise specific industrial instruments (the historical agreements). Further the
first Respondent has never been covered by a collective agreement as proposed in this matter.
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[28] The Respondents submitted that of the historical agreements referred to above each
have covered employees who fall within the Rules of the Applicant but have generally
excluded the position of Editor. It was submitted that this was in line with the coverage of the
pre-modern award. The Respondents identified that each of the historical agreements; had a
term that each historical agreement, is not to be used as a precedent for other employers.
[29] In regards to the fairly chosen aspect, the Respondents submitted that the group as put
forward, to be covered by the proposed Agreement, was not fairly chosen. The basis for this
was, the inclusion of Editors in the proposed coverage. The Respondents submitted that as
Editors have traditionally been excluded, from the coverage under the pre-modern award and
the historical agreements, and as the Applicant has not provided any notification or reasoning
for the inclusion of Editors the group is not fairly chosen.
[30] In this regard the Respondents relied upon the Full Bench decision of CBI
Constructors Pty Ltd v CFMEUviii (CBI). It was submitted that in CBI it was held that
“fairness”, as concerned in s.237(2)(c) of the Act (fairly chosen), is assessed in “a practical
way, not in some philosophical or abstract fashion”.ix
[31] The Respondents submitted that the practical matters that arose for consideration are
that Editors have not been covered previously by the historical agreements, and are expressly
excluded from the relevant modern award and pre-modern award. Further it was argued that
the historical, industrial context of the Respondents, is that each Respondent has had separate
industrial instrument coverage.
[32] As to the time that the Commission should assess majority support, the Respondents
submitted that the Applicant, has not identified the appropriate time. The Respondents
identified some first instance decisions, where Members of the Commission have held that the
appropriate time to determine majority support, is the time when the Commission makes the
determination.x The Respondents submitted that the Commission as presently constituted
should not follow this authority. The Respondents submitted that the time to assess majority
support should be the date on which the application is made. In this matter the Respondents
submitted that the relevant time was 8 March 2013.
[33] The Respondents’ submissions in relation to majority support were provided on the
basis of the submission above being correct. That is as at 8 March 2013, the Respondents
submitted that there were 392 employees who fell within the proposed coverage. The
Respondents submitted that the petition filed in support of the application identified 207
names. The Respondents identified several issues with the reliability and or accuracy of the
petition. The matter of the petition, as a basis for a finding of majority support is discussed
later in this decision.
[34] In regards to whether it is reasonable in the circumstances to make the determination,
the Respondents submitted, that this matter only becomes relevant if the Commission is
satisfied of the other matters. The Respondents submitted that the historical background
(discussed above) and some matters raised by the Explanatory Memorandum to the Act made
it unreasonable in the circumstances to issue a determination.
[2013] FWC 3231
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Consideration
[35] It was conceded by the Respondents that an application has been made and that the
application complies with s.236(2) of the Act.xi
s.237(2)(a) - Majority of employees
[36] In the material, the Applicant provided a petition, which it relied upon as supporting a
finding that a majority of employees wanted to bargain with the Respondents, for the
proposed agreement.
[37] In addition to the petition the Applicant filed, on an interlocutory basis, an application
for the Commission to issue an Order that the AEC conduct a ballot of employees for the
purpose of ascertaining whether a majority of employees want to bargain with the
Respondents. The Commission did not consider it appropriate to issue the Order at the time
and determined to consider the application at the time of the hearing in the substantive matter.
[38] During the hearing of the matter, and in the Respondents’ submissions, there were
several issues identified with the reliability and/or accuracy of the petition tendered by the
Applicant as evidence, whereby they questioned whether the results did confirm that a
majority of employees want to bargain.
[39] On the basis of numbers in the petition, and questions regarding the reliability of the
petition, the Commission determined, pursuant to s.236(3) of the Act, that in order to assess
(against the legislative tests) whether a majority of employees want to bargain it was
appropriate to order the AEC to conduct a ballot. The circumstances warranted this, given that
the Respondents’ operations are spread out across Queensland and that the Applicant raised
difficulties it had experienced in communicating with its members because of the nature of
the work and location of the work. The inherent reliability in AEC processes would minimise
any uncertainty with the results.
[40] Following further consideration of the parties’ submission, an Order for the AEC to
conduct a ballot was issued, with related information for employees.
[41] The Commission was notified by the AEC on 12 June 2013 that the ballot had
concluded. A formal declaration of results was issued. The Returning Officer of the AEC has
declared the followingxii:
Number of employees of the roll of voters 388
Declaration Envelopes returned by eligible voters 168
Declaration Envelopes rejected at preliminary scrutiny 6
Declaration Envelopes admitted to scrutiny 162
Declaration Envelopes admitted to scrutiny that did not contain
a ballot paper 0
Ballot papers admitted to scrutiny 162
Percentage of persons on the roll who voted in the ballot 41.75%
[42] As to the results of the question posed to the employees, the Returning Officer of the
AEC has declared the following results:
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“Results
Number of voters approving the action (Yes votes) 149
Number of voters not approving the action (No votes) 12
Number of informal ballot papers 1”
[43] Shorty after the AEC returned the results, the Applicant submitted to the Commission
that the Commission must be satisfied that a majority of employees want to bargain.
[44] The Respondents submitted however that the results cannot satisfy the Commission
that a majority of employees want to bargain. The Respondents submitted that, in order for
the Commission to be satisfied as to the majority (of relevant employees wanting to bargain,
as per the legislative test), 195 employees (being 50% of 388, the total number of employees,
plus one) needed to vote in favour of bargaining.
[45] The Commission has a discretion to assess majority support; the Commission has
taken into account the submissions of the parties as to matters that should be taken into
account in reaching satisfaction on whether majority support has been achieved. Some of the
circumstances presented to the Commission included the widespread geographical locations
of the Respondents’ operations, the difficulties that this presents to the Applicant in having
meaningful discussions with all members, in a short period of time and the matters that arose
during the hearing of the matter.
[46] Given the provision affords the Commission a discretion to test the majority support,
the appropriate time to determine majority support in this matter is not the restricted time at
which the application was lodged, but when satisfaction as to the test can be confirmed.
[47] While the Commission accepts the Respondents’ submission that the Commission
must be satisfied of majority support, before issuing a majority support determination, the
inclusion of s.237(3) of the Act weighs against the Respondents submission that the time of
the assessment is the time of the application being made. While an Applicant should have a
genuinely held belief that the elements of the action existed prior to lodging an application for
a majority support determination, the Act gives a discretion to the Commission to determine
majority support by “any method the FWC considers appropriate”. If the time for testing this
was at the time the application was made, that would hinder the discretion to test the majority
support and it ignores the consideration of the practicalities that often arise in large scale
negotiations such as these.
[48] The time, for assessing majority support is a time “determined by the FWC”xiii and
depends on the circumstances of the particular matter, that arise for consideration of the
Commission. In this matter the Commission determines that the appropriate time for majority
support assessment is the time at which the AEC declared the results of the ballot.
Accordingly the result of the AEC ballot must be examined (this issue is discussed further
below).
s.237(2)(b) - Have not yet agreed to bargain
[49] Mr Algie of the Respondents, by correspondence of 5 September 2012, to the
Applicant stated:
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“It is important to note that each of APN’s regional publishing businesses have not
initiated or agreed to initiate bargaining with the MEAA.”xiv
[50] The Commission is satisfied that the Respondents have not yet agreed to bargain.
s.237(2)(c) - Fairly chosen and s.237(3A) - geographically, operationally or
organisationally distinct
[51] During submissions before the Commission, the Applicant submitted that the
assessment as to “fairly chosen” is not a quasi scope order application. The final coverage to
the proposed Agreement may not reflect the proposed coverage now sought. This is a matter,
so it was submitted, for negotiation and agreement between the parties.
[52] The Commission agrees with the submission. The Respondents did not specifically
submit to the Commission that the proposed group was not operationally, geographically or
organisationally distinct. Indeed on the evidence it would appear that the group can be
identified on the basis of the operational undertaking and their organisational position in so
far as they are employed by one of the Respondents.
[53] An application for a majority support determination is not the appropriate vehicle for
final determinations regarding scope, except in so far as, such a determination would affect
satisfaction, that the group proposed to be covered, has been fairly chosen. While ‘fairly
chosen’ must be assessed in a practical way, the Respondents did not submit any convincing
practical limitation as to the inclusion of the disputed categories of employees beyond the
historical considerations.
[54] On the material before the Commission, in this matter, the Commission is satisfied
that the group of employees disclosed by the application, is fairly chosen. The Commission
has taken into account, whether the group is geographically, operationally or organisationally
distinct.
s.237(2)(d) - Reasonable in all the circumstances
[55] The Respondents relied upon the Explanatory Memorandum in relation to a reference
to a majority support determination being a mechanism for resolving “protracted” industrial
disputes. The Respondents compared the circumstances of this matter to the Boeing dispute.xv
The absence of industrial disputation at all, or protracted industrial disputation, was a relevant
consideration in the Respondents’ submission.
[56] The Commission acknowledges the terms of the Explanatory Memorandum and the
submissions of the Respondents in this regard. However the terms of the Act do not require
the Commission to specifically take into account industrial disputation on site, nor does it
require the Commission to make a finding as to “protracted” industrial disputation.
[57] The Respondents submitted that the conduct of the Applicant, was to be taken into
account in considering reasonableness. It is a matter which may be taken into account and
depends upon the circumstances before the Commission, at the time of considering a
determination. In this matter the Respondents submitted, (in reliance upon case authority of
the Commission),xvi that failure by the Applicant to outline the basis or facts, to the
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Respondents, for considering that a majority existed, in attempting to initiate bargaining,
weighed against the reasonableness in the circumstances.
[58] The decision of LHMU v MSS Security Pty Ltdxvii has been taken into account, in
assessing the limited evidence in this matter. Relevantly the Commission has before it two
pieces of correspondence which go to the discussions between the parties regarding
commencement of bargaining.xviii
[59] The evidence before the Commission is that the Applicant has been seeking to
commence negotiations since about 2011. The Applicant has sought to commence bargaining
with the Respondents and have been unsuccessful, however, there is no evidence before the
Commission of any improper conduct, of the Applicant or the Respondents.
[60] Regarding the question of the response of Mr Algie dated 5 September 2012 it is noted
where he stated:
“...if [MEAA’s] position arising out of this is that you consider there is a legal
compulsion for us to bargain, please let us know (including relevant references to the
Fair Work Act 2009) and if we agree, we would be happy to comply in that regard”
[61] There is no evidence of a response being provided to Mr Algie by the Applicant to this
matter. It is not a matter that, in the present circumstances, prevents a determination being
made. This employer declined to bargain and the Applicant relies on this in relation to the
legislative tests.
Conclusions
[62] The issue in contention between the parties is whether the tests in s.237(2)(a) and (b)
are satisfied. The Commission is satisfied that all of the other legislative requirements have
been met, as follows: the MEAA, as a bargaining representative, has made a valid application,
the agreement being sought is a single enterprise agreement, the Respondents have not agreed
to bargain, on the material the group of employees is fairly chosen and it would be reasonable,
if I could be satisfied on the basis of the ballot results that a majority of employees wish to
bargain, for a determination to be made.
[63] In this matter the initial material, provided in terms of the petition, fell short of
providing the required majority support results. Accordingly, given the mitigating
circumstances argued by the Applicant in terms of the distance in organising the petition and
for the Union, in being able to communicate with their members and all of the associated
issues, it was appropriate to order a ballot by the AEC.
[64] Professor Ian Gordon gave evidence in providing his opinion on the following
question regarding the ballot, stated as follows:
“Ought the Australian Electoral Commission’s declaration of result satisfy a
reasonable person that a majority of the persons eligible to vote in the ballot want to
bargain for an enterprise agreement?
The outcome of the ballot was provided in the declaration of results, and is as follows.
There were 388 eligible voters. There were 168 envelopes returned by eligible voters.
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Of those, 6 were “rejected at preliminary scrutiny”. Of the remaining 162, 149 voted
“yes” to the proposition: “Do you, as employee of one of the companies listed above,
want to bargain for an enterprise agreement with those companies?” 12 of the 162
respondents voted “no”, and one (1) vote was informal.
As a preliminary matter, it is not clear to me what causes an envelope to be “rejected
at preliminary scrutiny”, and how this differs, for example, from an informal vote. I
can understand that there may be rules governing such ballots which may classify
some responses in this way, but I do not know what they are. It seems that the
Commission regards such responses as essentially being in the same category as those
who did not respond at all. While this is not quite true, I am prepared to proceed on
this assumption; clearly, since there were only 6 such envelopes, this issue is not very
material.
Accepting this perspective, then, we are left with responses from 162 eligible votes,
which is 41.75% of the population of 388 eligible voters, as stated in the results.
In sample surveys, a response rate of 42% would be regarded as reasonable in many
circumstances. In fact, in many research disciplines, including marketing and business
research, it would be regarded as a good response rate; surveys in such areas often
struggle to achieve a response rate of 20%.
...
Of the 162 respondents, 149 votes “yes”; this is an estimated percentage of 92.0%
(=149/162). Using the theory mentioned, a 95% confidence interval for the number in
the population of eligible voters who want o bargain is found to be (340 to 369);
correspondingly, the 95% confidence interval for the population percentage for those
who want to bargain is found to be (87.6% to 95.1%).
The lower end of this interval, 87.6% is considerable greater than the threshold to
establish a simple majority (greater than 50%), and therefore the conclusion to be
drawn, on the premises stated, is that the population percentage for those [who] want
to bargain is clearly greater than 50%.”xix
[65] The results of the ballot (149 of 162 ballots returned, supported bargaining)
demonstrated that, whilst there was a high or “reasonable”xx return of ballots when compared
with “many circumstances”xxi and a significant proportion of those voted in favour of
negotiating an agreement, the ballot results do not meet the legislative tests of s.237(2) of the
Act regarding satisfaction that a majority of employees, who are employed by the employer,
who will be covered by the Agreement want to bargain.
[66] In pure statistical or mathematical terms (regarding an interpretation of the population
of those returning a ballot) the evidence of Professor Gordon is not challenged. However, the
Act requires that the Commission reach a level of satisfaction in the context of the wording of
the Act and the tests stipulated in relation to the population of the employees covered by the
Agreement. Professor Gordon’s evidence is instructive but not persuasive or determinative of
the matter. The Commission does not accept that the propositions put forward by the
Professor are applicable to concluding satisfaction of majority support, under the Act. If the
Act required the Commission to undertake assessments of the reliability of drawing majority
[2013] FWC 3231
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support from a lesser sample it would have stated that that is what should be undertaken. The
assessment of majority is a practical one, not one to be based upon complex mathematical
calculations. The submission of the Applicant in this regard was akin to asking the
Commission to infer majority support on the basis of the AEC results and subsequent
evidence.
[67] The Commission has considered the evidence of the employees submitted by the
Applicant in support of their submission that the AEC ballot (providing an amply number of
votes) could satisfy the Commission of majority.
[68] The Applicant considered the results represented a majority. Mr Chesher gave
evidence that a number of employees had contacted the AEC as they had not received ballot
papers. Even if these numbers are added a majority is still not achieved.
[69] Mr Hockins evidence was that his ballot was sent to an incorrect address but that he
was nevertheless able to retrieve that ballot and vote. Although it was submitted that it cannot,
from the AEC results, be verified whether Mr Hockins vote was actually counted this
evidence is not of real assistance to the Commission. In any ballot of a fair size, and fair
geographical spread, a certain margin of error would reasonably be expected.
[70] Mr McDonald’s evidence was that he was away at the time of the ballot. Again this
evidence is not entirely useful to the Commission. If it were given much weight, being
reflective of only one vote out of 388, it would set a bar that would be too high in these kinds
of matters and lead to circumstances where the Commission is asked to conduct ballots of this
nature after having verified that all employees are in the country or at their home etc. The
practicalities of this would be unacceptable. The Commission has nevertheless considered the
evidence of Mr McDonald in the wider context of the Applicant’s submission.
[71] And finally the evidence of Mr Lester, who was cross-examined, gave evidence about
his change of address and the possibility that that change of address was not actioned in time
by the Respondents. This evidence again, on its own, does not assist the Commission in any
substantial way.
[72] The Commission has approached the evidence of the three employees (discussed
above) in an overall or contextual sense when considering the submissions of the Applicant
and assessing majority support from the ballot. The Commission is not satisfied that this
evidence alters the basis upon which the ballot results should be utilised by the Commission.
[73] The Applicant quite rightly pointed out that, in reliance upon the often quoted Coal
and Allied v AIRCxxii, the inclusion of the word “satisfied” means that the exercise is an
assessment of the Commission of the specified circumstances that is the essential precondition
to the exercise of a power. The information before the Commission in this matter, in totality,
does not satisfy the Commission that majority support exists, in terms of the test in s.237(2).
[74] The AEC ballot result does not satisfy the Commission that a majority of the relevant
employees want to bargain. Therefore the application for a majority support determination, on
the material before the Commission, is refused. Therefore for the aforementioned reasons the
Application pursuant to s.236 of the Act, filed by MEAA in relation to the Respondents is
dismissed.
[2013] FWC 3231
14
[75] I Order accordingly.
COMMISSIONER
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i Exhibit 3, annexure TMB11.
ii Exhibit 1 at paragraph 17.
iii Exhibit 10.
iv Statement of Andrew Sampson Gage, at 9 to 11.
v Coal and Allied v AIRC [2000] HCA 47 at [76] per Kirby J.
vi Exhibit 11 at paragraph 8.1.
vii Ibid at paragraph 8.2.
viii [2011] FWAFB 7642, at [37].
ix Ibid.
x See ASU v Regent Taxis Ltd t/a Gold Coast Cabs [2009] FWA 1642 for example.
xi Exhibit 11 at paragraphs 18-20.
xii Australian Electoral Commission, Declaration of Results in regard to Majority Support Determination B2013/616, dated 12
June 2013.
xiii Fair Work Act 2009 (Cth) s.237(2)(a)(i)
xiv Exhibit 3, annexure TMB12.
xv Explanatory Memorandum 2008 at [R.136].
xviLHMU v MSS Security Pty Ltd [2010] FWA 314.
xvii Ibid.
xviii Exhibit 3 annexures TMB11 and TMB 12.
xix Report of Professor Ian Gordon at 3 to 7 and 10 to 11.
xx Report of Professor Ian Gordon at 7.
xxi Ibid.
xxii [2000] HCA 47.
FAIR WORK CO 1 SSION AUSTRALIA THE SEAS
