1
Fair Work Act 2009
s.236—Majority support determination
Australian Workers’ Union, The
v
Kantfield Pty Ltd T/A Martogg & Company
(B2016/604)
COMMISSIONER RYAN MELBOURNE, 9 SEPTEMBER 2016
Kantfield Pty Ltd and at site 185-195 Frankston-Dandenong Road, Dandenong South,
Victoria.
[1] The Australian Workers’ Union (AWU) made an application for a majority support
determination in relation to a group of employees of Kantfield Pty Ltd T/A Martogg &
Company (Martogg) who are engaged in the performance of work covered by the
Manufacturing and Associated Industries and Occupations Award 2010 and the Storage
Services and Wholesale Award 2010 at Martogg’s operations at 185-195 Frankston –
Dandenong Road, Dandenong South in Victoria.
[2] The AWU relied on a petition signed by employees to establish a prima facie case that
a majority of employees who would be covered by the enterprise agreement proposed by the
AWU wanted to bargain with their employer. Martogg strenuously opposed the application.
[3] The hearing of the application took place over two days: 9 August and 29 August 2016
with both parties being represented by Counsel. Mr Harding represented the AWU and Mr
Forbes represented Martogg. Evidence was given by Mr Brian Rodrigues, organiser for the
AWU, Mr Noel Neu, AWU workplace delegate at Martogg in support of the application. A
witness statement of Mr Frank Glover an employee of Martogg was admitted without
Mr Glover being required to give evidence as Martogg did not require Mr Glover to be cross
examined. Evidence was given on behalf of Martogg by Mr Anthony Hayes, production
leading hand at Martogg, Mr Wayne Speirs, Group Finance Manager for Martogg, Mr Craig
Johnson, forklift and production line operator at Martogg, Mr Cameron Boucher, masterbatch
room supervisor at Martogg, Mr Bryan Clancy warehouse supervisor at Martogg, Mr Phillip
Harrison LCM supervisor at Martogg, Mr Rohan Kleesh, day shift supervisor at Martogg and
Mr Greg Kerslake, Group Manufacturing Manager at Martogg. Mr Kerslake’s evidence
introduced signed witness statements from three employees: Mr Martin Boschker, Mr The
Nguyen and Mr Tung Nguyen. These latter three employees were not called to give evidence
and were not made available for the AWU to cross examine them.
[2016] FWC 6473 [Note: This decision has been quashed - refer to Full
Bench decision dated 7 December 2016 [2016] FWCFB 8372]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB8372.htm
[2016] FWC 6473
2
The history of matters between the AWU and Martogg
[4] The Application in this matter is one of three applications filed with the Commission
in 2016 concerning the relationship between the AWU and Martogg.
[5] The first application was filed by Martogg on 19 May 2016 seeking orders under s.505
restricting the frequency of Right of Entry visits by the AWU. The present matter was the
second application and was filed on 3 June 2016.
[6] The first matter was discontinued by Martogg on 8 June 2016 after a conciliation
conference had been held by Gostencnik DP on 7 June 2016 and some form of agreement had
been reached between the AWU and Martogg. Whatever was agreed failed to settle the matter
and the third application was filed by Martogg on 10 June 2016 again seeking orders under
s.505 restricting the frequency of Right of Entry visits by the AWU. That third application
was subject to a telephone mentions/directions hearing before me on 22 June 2016 and was
listed for hearing and determination on 16 August 2016 but that hearing did not proceed as the
parties agreed to go into conciliation and the parties came to an agreement and further
proceedings were adjourned by consent. At the telephone mentions/directions hearing on 22
June 2016 the AWU offered, to both the Commission and Martogg, an undertaking that Mr
Rodrigues, the AWU organiser responsible for the site, would not exercise any right of entry
visits at the Martogg site until after the AWU’s majority support application had been
determined.
[7] The AWU commenced visiting the Martogg site on 8 April 2016 when Mr Rodrigues
exercised a right of entry visit (notice had been given to Martogg on 4 April 2016). The
pattern of right of entry visits by Mr Rodrigues was as follows:
8 April 2016 – three visits at 10.20 am, 4.45pm and 10.30pm
13 April 2016 – one visit at 2.40pm
20 April 2016 – three visits at 12.30pm, 2.30pm and 10.30pm
3 May 2016 – three visits at 12.45pm, 5.30pm and 10.30pm
11 May 2016 – three visits at 12.00pm, 7.30pm and 10.30pm
[8] On 19 May 2016 Mr Rodrigues gave notice to Martogg that he intended to exercise a
right of entry to conduct two visits on 20 May 2016. Martogg filed its first s.505 application
on 19 May 2016. Whilst the filing of a s.505 application does not impact on Mr Rodrigues’s
entitlement to exercise his right of entry on 20 May 2016 it is clear that he refrained from
exercising his right of entry on 20 May 2016.
[9] Mr Rodrigues collected signatures on the petition prepared by the AWU on 3 May
2016 and 11 May 2016 whilst he was exercising his right of entry to hold discussions with
employees.1 The petition was in the following form:
“Majority Support Petition
We, the undersigned, employees of Martogg & Company, Dandenong, in the State of
Victoria, hereby signify that we wish to bargain collectively with our employer in
relation to a proposed enterprise agreement to cover employees engaged under both the
Manufacturing and Associated Industries Award 2010& Storage Services and
Wholesale Award 2010.
[2016] FWC 6473
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NAME ADDRESS WORK
AREA
DATE CONTACT
NO
SIGNATURE
[10] Mr Rodrigues also collected some signatures of employees outside of Martogg’s
premises. Mr Rodrigues visited some members of the AWU at their homes on 5 May 2016
and met with other employees outside of the workplace.2 Mr Rodrigues was assisted by Mr
Neu in collecting signatures.3 Mr Neu’s evidence was that he collected signatures between 3
May 2016 and 25 May 2016. Mr Glover also “collected signatures for the AWU petition on
night shift around 3 May 2016”.4
[11] On 20 May 2016 the AWU wrote to Martogg advising Martogg that the AWU wanted
to commence bargaining for an enterprise agreement. Notwithstanding the AWU activity on
site, the evidence of Martogg was that they were not aware of the petition until the application
in the present matter was filed on 3 June 2016.5
[12] On 1 June 2016 Martogg had a notice posted in its establishment directing all
employees to attend toolbox meetings on Friday 3 June 2016 commencing at 6am for one
group of employees. Martogg prepared a list of discussion points which were to be covered at
the toolbox meetings including identifying the relevant management person who would
deliver the several parts of the discussion.
[13] Once Martogg became aware of the present application having been filed by the
AWU, Martogg determined a course of conduct whereby it would hold a compulsory ballot of
all employees on Wednesday 8 June 2016. The form of the ballot paper was decided by
Martogg acting on advice from its legal representatives. The ballot paper required the
employees to vote for one of three options:
I do not wish to bargain with Martogg for a new enterprise agreement.
I wish to bargain with Martogg for a new enterprise agreement.
I abstain from voting.
[14] The ballot was conducted over both 8 June 2016 and 9 June 2016. Most employees
were required to vote on 8 June 2016 and the twelve employees who did not attend work on 8
June 2016 were required to vote on 9 June 2016. The results of that vote were 30 votes
against bargaining, 31 votes abstaining and 38 votes in favour of bargaining.
[15] In July over a two week period Mr Rodrigues started collecting employee signatures
on a new petition in support of enterprise bargaining. Mr Rodrigues only collected 22
signatures and Mr Rodrigues only collected signatures outside of the workplace as Mr
Rodrigues did not have access to the worksite. I note that the reason given by Mr Rodrigues
for not having access to the worksite was “because we had stopped almost – it’s been about
two –and – half, three months now – two months – it’s about three months”.6 In other words
the AWU voluntarily decided not to exercise its right of entry entitlements under the Act. The
time frame of 2½ or 3 months appears to relate to the timing of the applications made by
Martogg for orders under s.505 of the Act. Whilst I have no knowledge of what transpired in
the conciliation before Gostencnik DP, I am aware of the undertaking offered by the AWU to
the Commission and to Martogg on 22 June 2016 that the AWU would not exercise its right
of entry whilst the present matter was being considered.
[2016] FWC 6473
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The relevant legislation
[16] The relevant provisions of the Fair Work Act 2009 (the Act) for the purposes of the
present matter are s.236 and 237.
“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.”
“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;
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
[2016] FWC 6473
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(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.”
Consideration
The Application
[17] The application in this matter met the requirements of s.236(2). The application
specified that the employees that will be covered by the agreement were those employees of
Martogg who are engaged in the performance of work covered by the Manufacturing and
Associated Industries and Occupations Award 2010 and the Storage Services and Wholesale
Award 2010 at Martogg’s operations at 185-195 Frankston – Dandenong Road, Dandenong
South in Victoria. The application also specified that the employer to be covered by the
agreement was Martogg.
The AWU petition
[18] During the hearing counsel for both parties had the opportunity of comparing the
names on the petition with the list of names provided by Martogg. Given the sensitivity of the
information on both the petition and the list of employees neither counsel were able to discuss
the matter with their instructors. However the exercise proved quite useful as it was agreed by
both counsel that 5 names on the petition were not to be counted as two were employees of
labour hire contractors and were not employees of Martogg and two names were not on the
list of employees provided by Martogg. Counsel for both parties identified 4 names on the
petition where counsel could not agree that the named persons were employees. The position
agreed to by counsel for both parties was that there were 48 names on the petition who were
employees of Martogg and 4 names on the petition where it was unclear if they were
employees of Martogg.
[19] Counsel for both parties left it to the Commission to determine whether the 4 names in
dispute were employees of Martogg. On 2 September 2016 I requested that Martogg provide
to the Commission the same list of employees that it had previously supplied but with
additional information which identified the address and contact telephone numbers of the
employees. That list was provided to the Commission on the same day. Once the details for
[2016] FWC 6473
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the four names on the petition were cross checked with the details on the list provided by
Martogg it was clear that each of the four names on the petition were employees of Martogg.
[20] The final position in relation to the petition was that it showed that 52 employees of
Martogg had signed the petition. Given that there were 101 employees on the list provided by
Martogg then the petition showed that at the time the petition was completed a majority of the
employees of Martogg wanted to bargain with Martogg for an enterprise agreement.
[21] Both Mr Rodrigues and Mr Neu gave evidence in relation to the gathering of names on
the petition. Evidence was led by Martogg to show that some employees who signed the
petition subsequently decided that they did not want to bargain with their employer. It is clear
that some employees have changed their mind since they signed the petition.
[22] Martogg has not sought to challenge the petition on the basis that any employee was
forced to sign the petition. Even Martogg’s own witnesses never suggested that any pressure
had been placed on them to sign the petition. The evidence of Martogg’s witnesses is
consistent with each exercising a free choice to sign the petition. The highest that Martogg
puts its challenge to the petition is to contend that the wrong question was asked on the
petition and that some employees may have signed the petition without the petition being
explained to them before they signed.
[23] Whilst the question on the petition may be a bit wordy it is nevertheless clear in its
message. The question appears to be an appropriate question to put to employees to ascertain
whether any employee wants to bargain with Martogg for an enterprise agreement. I note that
the petition was signed by employees over a period of time. An examination of the petition
reveals the following:
Date Number of Employees signing petition
3 May 19 *
4 May 4
5 May 6
6 May 10
9 May 4
11 May 2
13 May 3
17 May 1
18 May 1
20 May 1
25 May 1
*One signatory to the petition did not enter a date but it is reasonably obvious that the
employee signed the petition on 3 May 2016
The Martogg Ballot on 8 and 9 June 2016
[24] Martogg placed much reliance on their ballot as it was a more recent expression of the
views of the employees than was the petition of the AWU.
[25] Mr Kerslake gave evidence on behalf of Martogg that he considered that an employee
who voted to abstain was voting against bargaining with Martogg.7
[2016] FWC 6473
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[26] The difficulty with that proposition is that Martogg conceded that it was never
explained to any employee that if they voted to abstain that Martogg would consider that they
had voted against bargaining with Martogg.
[27] The word abstain must be given its ordinary meaning which is:
Abstain verb (i) 1. to refrain deliberately from casting one’s vote.8
[28] Thus if any employee chose the third option on the ballot paper: “I abstain from
voting” they must be taken to have refrained deliberately from casting a vote for one of the
two other options. It is wrong to attribute a No vote to all those who voted to abstain. It would
be equally wrong to attribute a Yes vote to all those who voted to abstain.
[29] The matter raised by s.237(2)(a) is that the Commission must be satisfied that a
majority of the relevant employees want to bargain with their employer for an enterprise
agreement that will cover them.
[30] Conducting a vote in which employees can abstain from voting will obviously make it
more difficult for the Commission to be satisfied that a majority of the relevant employees
want to bargain with their employer for an enterprise agreement that will cover them, but it
does not make it impossible for the Commission to have the requite satisfaction.
[31] Any consideration of the value of the ballot conducted by Martogg on 8 June 2013
must have regard to the conduct of Martogg in conducting the compulsory attendance tool
box meetings of employees on 3 June 2016. Mr Kerslake introduced into evidence9 the notes
prepared within Martogg and to be used by the respective managers who were to address
employees at the toolbox meetings on 3 June 2016. The tool box meetings were designed to
ensure that Martogg got its message across to every employee in relation to union right of
entry, the award, the AWU’s request to bargain and the strong desire of Martogg to continue
to use the award. There was no attempt by Martogg to present a balanced message to
employees nor was Martogg under any obligation to do so. They were Martogg employees
attending the toolbox meetings and the sole purpose of the tool box meetings was to deliver to
Martogg employees the Martogg view of things.
[32] Martogg also prepared notes to be used by management representatives to introduce
the ballot process being conducted on 8 June 2016.10 The explanation given to employees for
the reason that a ballot was being conducted was described in the notes as follows:
“We decided to carry out our vote since we knew that you guys were now fully
informed of the facts after Friday’s toolboxes.”
It has all the hallmarks of gilding the lily to suggest that the one-sided presentation at the tool
box meetings on Friday 3 June 2016 constituted fully informing employees of the facts!
Employees changing their mind
[33] There is very clear evidence that some employees who signed the petition relied on by
the AWU have changed their minds and now do not support bargaining for an enterprise
agreement. Whilst an obvious conclusion that could be drawn is that there are now less than a
[2016] FWC 6473
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majority of employees who want to bargain with their employer for an enterprise agreement,
to do so would be wrong. To draw such a conclusion requires an assumption to be made that
other employees have not changed the position they adopted at the time the petition was
available.
[34] The very real difficulty in trying to gauge the effect of employees changing their mind
in relation to wanting or not wanting to bargain with Martogg, was best reflected by the
evidence of Mr Craig Johnson who signed the original AWU petition, then in the ballot
conducted by Martogg he voted against bargaining with Martogg, he then signed the second
AWU petition in favour of bargaining with Martogg and finally gave evidence on 29 August
2016 that he did not want to bargain with Martogg for an enterprise agreement. All that this
evidence shows is that employees can and do change their minds on issues such as wanting to
bargain with their employer for an enterprise agreement and that they may change their mind
more than once.
[35] A practical problem which is associated with employees changing their mind and
having the ability to change their mind is that no single expression of view by an employee
can be taken as being the employee’s definitive view as to whether the employee wants to
bargain with their employer. Any view expressed by an employee whether through a petition
or a ballot only represents the employee’s view at that point of time.
Any method the FWC considers appropriate
[36] Each of the parties have urged the Commission to adopt the method used by each
party to support its position. The AWU contends that the petition it had employees sign
represents a fair method for determining whether a majority of employees want to bargain
with Martogg. Martogg contended that their ballot of employees is an appropriate method to
determine that a majority of employees do not want to bargain for an enterprise agreement.
[37] Each party contended that if the Commission did not consider the party’s preferred
method to be appropriate then an appropriate method was to have the AEC conduct a ballot of
employees.
[38] In other majority support determination applications the Commission has ordered the
conduct of a ballot of employees using the AEC. At first blush there appears to be some
attraction to using the AEC to conduct a ballot of employees. But, and it is a very big “but”, it
does not appear that using the AEC to conduct a ballot will necessarily assist the Commission
to determine whether or not a majority of employees want to bargain with their employer for
an enterprise agreement. Four examples make the point.
[39] In AWU v F. Laucke P/L t/as Laucke Mills,11 Hampton C ordered that the AEC
conduct a postal ballot of employees to resolve the question of whether a majority of
employees of Laucke Mills wanted to commence bargaining. The AEC ballot was ordered
after an earlier employee ballot had failed to resolve the issue. In his decision Hampton C
said:
“[13] On 28 June 2013, the AEC declared the results of the ballot and these included
that of the 39 employees within the employee group, 25 had voted, 19 had supported
the question, 5 had voted against, and there was 1 vote declared informal.
[2016] FWC 6473
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[14] Accordingly, whilst a majority of those who had voted were in support of the
proposition, the 19 votes in support did not represent a majority of the employee
group, by a margin of one vote.”
[40] Hampton C concluded that he could not be satisfied that a majority of the employees
wanted to bargain. In commenting on the two ballots Hampton C said:
“[27] It is evident that the employee group is split on the issue. The apparent desire
of almost half of the employees to commence bargaining is a significant consideration
particularly given the objects of the Act. However, two relatively recent ballot
processes have failed to produce the requisite majority. The second of these was an
agreed process.” [citation removed]
[41] In AMWU v Veolia Water Operations P/L,12 Booth C ordered that the AEC conduct a
postal ballot of employees. Veolia had offered to pay for the costs of the ballot.
[42] The postal ballot involved 43 employees who were entitled to vote and each received a
postal vote. 26 employees returned their votes. 21 votes were in favour of bargaining and 5
votes were against bargaining. 17 employees did not return their votes.
[43] Very clearly the AEC conducted postal ballot failed to establish that a majority of
employees wanted to bargain with Veolia.
[44] In AWU v BlueScope Steel Limited t/as BlueScope Lysaght,13 O’Callaghan SDP
ordered the AEC to conduct a postal ballot of employees to determine whether a majority of
employees wanted to bargain with their employer.
The details of the ballot were as follows:
46 employees were entitled to vote and received a ballot paper. 36 ballots were
returned. 1 ballot was rejected by the Returning Officer. Of the 35 valid ballots, 2
voted in support of bargaining with their employer and 32 voted against bargaining
and 1 vote was informal.
[45] O’Callaghan, SDP subsequently dismissed this application on 1 December 2011.14
[46] In NUW v Nichols Poultry, (B2015/1545) Kovacic DP ordered that the AEC conduct
an attendance ballot of employees of Nichols Poultry to determine whether a majority of
employees wanted to bargain with their employer.
[47] Nichols Poultry identified 100 employees as being eligible to vote and this constituted
the roll of voters used by the AEC. 37 employees voted, with 36 voting in favour of
bargaining and 1 voting against bargaining. 63 employees did not vote.
[48] The matter never proceeded to decision as the NUW discontinued the application.
[49] The fundamental issue that arises from each of the above cases is that in every case
voting was optional and in every case a significant number of employees did not vote. In
Nichols Poultry nearly two thirds of the employees did not vote even though the vote was
conducted at the workplace.
[2016] FWC 6473
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[50] What is strikingly obvious from these four cases is that any optional vote, whether a
postal vote or an attendance vote, will have a significant portion of the employees not vote.
Even in the AWU v BlueScope Steel matter where there was a very high return of votes of
76.09% there was still a non-return of nearly 24% of votes issued.
[51] Where the Commission uses the AEC or any other person to conduct an optional vote,
then the Commission must deal with the obvious fact that there will be employees who do not
vote and it is likely that the number who do not vote will be significant.
[52] Employees who do not vote in an optional vote cannot be considered to have
expressed a definitive view either for or against bargaining with their employer. However, it
might be reasonable for the Commission to distribute the non-votes amongst the Yes and No
votes in the same proportion as the Yes and No votes. For example, out of 100 voters on the
roll 60 vote and the vote is 40 Yes and 20 No. The Commission could split the 40 non votes
amongst the Yes and No on the basis of 60% being allocated to the Yes vote and 40% being
allocated to the No vote. The final result would then be 64 Yes votes and 56 No votes. The
practical difficulty in allocating non votes to either side is that it would invariably attract an
appeal.
[53] At the present time it almost appears that if the Commission, pursuant to s.237(3),
chooses an optional vote (whether attendance or postal) it is most likely going to lead to a
failure of the s.236 application. Merely having the AEC conduct an optional vote doesn’t cure
the fundamental weakness inherent in using optional voting as means of determining whether
a majority of employees want to bargain with their employer.
[54] The objects of the Act in relation to enterprise agreements is set out in s.171 as
follows:
“171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective
bargaining in good faith, particularly at the enterprise level, for enterprise
agreements that deliver productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of
enterprise agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives
request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise
agreements are dealt with without delay.”
[55] It would appear to be inconsistent with these objects for the Commission, under
s.237(3), to adopt a method of determining whether a majority of employees want to bargain
[2016] FWC 6473
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with their employer which has a strong tendency to produce an outcome that a majority of
employees have not voted in favour of bargaining with their employer.
[56] In the present matter the approach adopted by Martogg, a compulsory attendance
ballot, represents the soundest method of determining whether a majority of employees want
to bargain with their employer. If every employee has to vote there is no room for doubt as to
the outcome.
[57] The Commission, as presently constituted has conducted compulsory attendance
ballots to determine whether a majority of employees want to bargain with their employer.
[58] In CFMEU v Oz Linemarking P/L,15 the Commission conducted two attendance
ballots of the employees at the employer’s workplace. In that matter there were 21 employees.
At the first ballot 2 employees did not attend and the result of the ballot was 10 votes in
favour of bargaining and 9 votes against bargaining. The closeness of the vote and the
potential impact of the 2 missing employees led the Commission to conduct a second
attendance ballot 3 days later. All 21 employees attended the second ballot and voted and the
result was 7 votes in favour of bargaining and 14 votes against.
[59] In NUW v BPL (Adelaide) P/L t/as Adelaide Poultry, and NUW v Chandler Macleod
Group Limited, and NUW v Australia Personnel Global P/L,16 the Commission conducted
compulsory attendance ballots amongst the employees of three employers operating at the
Adelaide Poultry chicken processing sites in Wingfield, South Australia. In that matter the
vote was conducted over two days and nights and involved the Commission in producing
ballot papers and explanatory material for voters in English, Dari, Lao, Vietnamese,
Simplified Chinese, Khmer, Hindi, Burmese and Arabic. In summary,17 across the three
employers there were 483 voters and the Commission issued 474 ballot papers and had 451
ballot papers returned and the combined ballot results were 210 votes in favour of bargaining,
239 votes against bargaining and 2 informal votes. As the results in that matter show, even
with a compulsory attendance ballot, 9 employees avoided voting and 23 employees who
attended the vote and were issued with a ballot paper failed to return the ballot paper. Even
with these shortcomings a return of 451 ballot papers out of an electorate of 483 voters leaves
little room for doubt as to the outcome. In each of the three ballots there was not a majority of
employees wanting to bargain with their employer.
[60] The Commission indicated to the parties that the Commission could conduct an
attendance ballot of employees. The AWU accepted that if the Commission was minded to do
so then the AWU would be happy for that method to be used. Martogg strongly urged the
Commission not to conduct a ballot of employees. Mr Forbes put Martogg’s position as
follows:
“PN104. …..In my respectful submission, the conducting of a ballot is not something
that the Commission should involve itself in. I well understand and sympathise with
the comments you make regarding the cost. I don’t know what the AEC charges but no
doubt they charge, but cost should not be the consideration. Commissioner, in my
respectful submission, for the Commission to engage itself in the conducting of a
ballot may well put the Commission in an invidious position. One would not like to see
a circumstance where the Commission becomes a witness in a case that if ever if
anyone were to raise an issue about the way in which the ballot were conducted by the
Commission, anything that the Commission may have said or done - I’m not
[2016] FWC 6473
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suggesting for a moment that, Commissioner, you wouldn’t do the right thing, but it
puts - - -
PN106. ……if you were there and actively participating in the ballot, you become a
witness, and there is every risk that if things were not to go well, if an employee or the
employer or the union raised an issue about how things might have gone on the day or
been conducted on the day, it would put you, Commissioner, in an invidious position.
PN108. ……I respectfully submit that it’s best that the institution itself stand away.
There’s no reason why the Australian Electoral Commission, which if orders were to
be made, would not be the most appropriate body that I think on any view would be
regarded as one well experienced, impartial, it’s conducted ballots of this kind many
times - many, many times. There would be the capacity for the Electoral Commission
to conduct the ballot through a postal mechanism where people are able to vote within
their own time, and it’s a well-trusted process in relation not only to ballots of this
kind but ballots in relation to industrial action and so forth. I’m speculating somewhat,
Commissioner, as to what might go wrong, but in my respect submission the
Commission to involve itself in the task brings with it real risk and that ought be
avoided.”
[61] The possibility that a member of the Commission who conducted an attendance ballot
of employees to determine whether a majority of employees want to bargain with their
employer could be ordered to give evidence in proceedings either before the Commission or
before a Court is not something that should ever dissuade the Commission from conducting
such a ballot.
[62] There is an enormous difference between the possibility of a member of the
Commission being required to give evidence and the likelihood of such a possibility ever
eventuating. Where a member of the Commission conducted an attendance ballot of
employees pursuant to s.237(3) of the Act it is possible that any decision made by the
Commission in reliance on such a ballot could be subject to appeal proceedings before a Full
Bench of the Commission or be subject to jurisdictional challenge before the courts. It is
difficult to imagine any circumstance where a member of the Commission who conducted an
attendance ballot of employees pursuant to s.237(3) would ever be required by a Full Bench
of the Commission to give evidence in relation to the conduct of the ballot. Equally whilst it is
clear that a member of the Commission can be compelled to give evidence before the Federal
Circuit Court or the Federal Court it is again difficult to envisage any situation involving a
majority support determination application which would give rise to a Court compelling a
member of the Commission to give evidence about a ballot conducted by the Commission.18
[63] If the Commission needs to undertake a ballot of employees to determine whether a
majority of employees want to bargain with their employer then a compulsory attendance
ballot appears to be the most appropriate method and such a ballot can be undertaken by a
member of the Commission.
At a time determined by the FWC
[64] The AWU contended that the appropriate point of time to consider whether a majority
of employees wanted to bargain with Martogg was the time at which the petition was taken.
Martogg contended that the appropriate point of time to consider whether a majority of
[2016] FWC 6473
13
employees wanted to bargain with Martogg was the time at which Martogg conducted the
ballot of employees. Both the AWU and Martogg contended in the alternative that an
appropriate time would be when a new ballot was conducted.
[65] In the present matter there are three possible points of time that could be appropriate
points of time to determine whether a majority of employees want to bargain with their
employer. Two of the possible points in time are in the past and the third possible point of
time is in the future.
[66] The Commission should determine a time at which the Commission can reach the
requisite level of satisfaction as to whether or not a majority of employees want to bargain
with their employer.
[67] The time proposed by Martogg is inappropriate. The ballot conducted by Martogg
does not permit the Commission to determine whether a majority of employees want to
bargain with their employer. Even without the very one sided message communicated by
Martogg to its employees at the toolbox meetings on 3 June 2016 the questions put to
employees in the ballot render the ballot useless in permitting the Commission to determine
the views of a majority of Martogg’s employees. Given the proximity between the very one
sided message communicated to employees on 3 June 2016 and the ballot on 8 June 2016 the
Commission would have real doubt about the outcome of any ballot conducted by Martogg on
8 June 2016 (even if only two options, Yes or No had been available on the ballot paper).
[68] If the Commission was to order a new ballot of employees there appears little or
nothing that the Commission could do which would ensure that employees received a
balanced message about the award system and the enterprise bargaining system before the
employees were asked to express their view as to whether they wanted to bargain with their
employer.
[69] Whilst employees received a one sided message from the Mr Rodrigues and Mr Neu
when they were collecting signatures on the petition, the message appears to have been rather
benign and employees clearly had a choice as to whether or not they chose to sign the
petition.
[70] In all of the circumstances of this case the time at which the petition was taken
represents the most appropriate time for the determination of whether a majority of employees
want to bargain with their employer.
Conclusion
[71] For the purposes of s.237(2)(a)(i) of the Act the Commission determines that the time
at which the Commission will determine whether a majority of employees of Martogg want to
bargain with their employer is at 25 May 2016.
[72] The Commission is satisfied that as at 25 May 2016 a majority of employees of
Martogg wanted to bargain with their employer for an enterprise agreement and that a
majority of employees of Martogg indicated that they wanted to bargain with Martogg by
signing a petition.
[2016] FWC 6473
14
[73] Martogg has at all times throughout these proceedings made clear that it has not yet
agreed to bargain with its employees for an enterprise agreement and that it has not yet
initiated bargaining for an enterprise agreement. The Commission is satisfied in relation to the
matter in s.237(2)(b).
[74] The Commission is satisfied that the group of employees who will be covered by the
proposed enterprise agreement has been fairly chosen (s.237(2)(c)).
[75] Having considered all of the circumstances of this matter the Commission is satisfied
that it is reasonable to make the determination sought by the AWU. I note that Martogg has
given evidence that if required to commence bargaining that they will comply with the good
faith bargaining requirements of the Act. Whilst at one level this is nothing more than stating
what is required by the Act at the very practical level it shows that Martogg understand the
processes for bargaining and are prepared to commit to the bargaining process if required to
do so.
[76] The determination in this matter will be issued separately.
COMMISSIONER
Appearances:
M. Harding of counsel for The Australian Workers’ Union.
J. Forbes of counsel for Kantfield Pty Ltd.
Hearing details:
2016.
Melbourne:
August 9, 19.
THE FAIR WORK COMMISSION HE SEALO
[2016] FWC 6473
15
Printed by authority of the Commonwealth Government Printer
Price code C, PR585233
1 Exhibit A1 para12 and 13.
2 Exhibit A1, para 20.
3 Exhibit A1, paras 23 – 26.
4 Exhibit A3 para 3.
5 Transcript at PN781.
6 Ibid at PN381.
7 Ibid at PN1582.
8 Macquarie Dictionary Online.
9 Exhibit R11, attachments GK1 and GK2.
10 Ibid, attachment GK3.
11 [2013] FWC 4632.
12 [2015] FWC 2561.
13 [2011] FWA 7525.
14 [2011] FWA 8333.
15 [2010] FWA 8485.
16 [2015] FWC 1968.
17 The details of each ballot are attached to the decision in [2015] FWC 1968.
18 see s.16(2) of the Evidence Act 1958 (Cwth)
