[2012] FWAA 210 |
|
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Penrhos College
(AG2011/14372)
PENRHOS COLLEGE TEACHING STAFF ENTERPRISE BARGAINING AGREEMENT 2012
Educational services | |
COMMISSIONER CLOGHAN |
PERTH, 2 APRIL 2012 |
Application for approval of the Penrhos College Teaching Staff Enterprise Bargaining Agreement 2012.
[1] On 14 December 2011, Penrhos College made application for approval of a single enterprise agreement to be known as the Penrhos College Teaching Staff Enterprise Bargaining Agreement 2012 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).
[2] The Agreement was made following a ballot on 5 December 2011.
[3] Following the closure of the ballot on 5 December 2011, the Independent Education Union of Australia WA Branch (IEU) asserted on 16 December 2011 that it did not support approval of the Agreement by FWA on the basis that it was not approved by a valid majority of those employees who cast a valid vote.
[4] The relevant factual circumstances concerning the ballot are set out below:
● 57 employees who will be covered by the Agreement cast a valid vote; and
● Of those 57 employees who cast a valid vote, 29 voted to approve the Agreement.
[5] Following the vacation period and a conference of the Applicant and the IEU, I invited both parties and the three (3) bargaining representatives to provide written submissions to determine the question:
“Is 29 votes in support of the Agreement a majority when 57 employees cast a valid vote in a ballot to approve the Agreement?”
[6] Written submissions were received from all parties by 30 March 2012.
RELEVANT LEGISLATIVE FRAMEWORK
[7] Section 182(1) of the FW Act provides that:
“If the employees of the employer … have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”
[8] Section 186 of the FW Act provides that FWA must approve an enterprise agreement when the conditions specified in s. 186 and 187 of the FW Act are met.
[9] Relevantly, s.186(2) of the FW Act provides that:
“FWA must be satisfied that:
(a) … the agreement has been genuinely agreed to by the employees covered by the agreement; …”
[10] Section 188 of the FW Act states that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement if FWA is satisfied that:
“(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.”
CONSIDERATION
[11] The issue for determination can be reduced to the meaning of majority in subsection 182(1) of the FW Act.
[12] The FW Act does not contain a definition of “majority”.
[13] The Explanatory Memorandum, which is often of assistance to the Tribunal, also does not contain a definition of “majority”.
[14] The IEU contend that its understanding, custom and practice is, “that a majority is attained when 50% plus 1 of those casting a valid vote, vote in favour of an Agreement” 1.
[15] In support of its contention, the IEU submit:
“50% of the 57 that cast a valid vote is 28.5. Clearly you can’t have half a vote (or half a voter) so this would require rounding up to the next whole number, that is, 29. As 29 is recognised as 50% of the vote, to achieve a majority (50% plus 1), an additional vote in favour is required. That is, 30 votes in favour would represent 50% plus 1, in this ballot and a valid majority in favour of the Agreement” 2.
[16] While the IEU have provided the grounds of their understanding as to the meaning of “majority”, in my view, it is necessary for the Tribunal to look at the ordinary meaning of the word “majority”.
[17] The Australian Concise Oxford Dictionary defines majority as the “greater number or part”. Included in the definition is the reference to “majority rule” and that is, the “principle that greater number should exercise greater power”. Further, “number by which votes cast for one party etc exceed those next in rank; party etc, receiving greater number of votes”.
[18] As a matter of numerical fact, 29 is greater than 28. Each vote has the same value. For 28 who voted “yes” to the Agreement, another 28 voted “no”. However, the final remaining voter, voted in favour of the Agreement. Consequently, by a majority of one, those employees who provided a valid vote have endorsed the Agreement. In the absence of any submission stating that the voting process was improper, I am satisfied that there is sufficient proof to demonstrate that there has been genuine support for the Agreement.
[19] While Parliament has not determined in the FW Act the meaning of majority, I am satisfied, for the reasons above, that it should be given its ordinary meaning and that in any ballot, the greater number (whether it be 1 or 100), should prevail in determining the outcome of a ballot.
[20] Should the FW Act have included a definition of majority which required the “rounding up” where there is an uneven number of valid votes to determine whether a majority of more than 50% has been achieved, I would be inclined to agree with the IEU’s submission. In the absence of any definition in the FW Act, a simple majority or the greater number of valid votes cast for the proposition should prevail over a lesser number.
[21] Fair Work Australia (FWA) must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section, s.187 and s.188 are met.
[22] Accordingly, I am satisfied, pursuant to s.188 of the FW Act, that the Agreement has been genuinely agreed to by the employees because a majority by one valid vote has been cast in support of the Agreement.
[23] In conclusion, I am satisfied, from the material provided to the Tribunal and consistent with my determination above, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.
[24] The Independent Education Union of Australia (“IEU”) has declared that the IEU was a bargaining representative for the Agreement and is entitled to represent the industrial interests of those employees in accordance with paragraph 176(1)(b) of the FW Act. Further, the IEU has read and agrees with the Employer’s statutory declaration in support of the application, insofar as it is within the Union’s knowledge. Finally, the IEU has given notice that, pursuant to s.183 of the FW Act, it wants to be covered by the Agreement.
[25] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 9 April 2012.
[26] The nominal expiry date of this Agreement is 31 December 2014.
COMMISSIONER
1 Paragraph 8 of IEU submission.
2 Paragraph 10 of IEU submission.
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