Lack of meeting means collective agreement invalid: judge

Cases

Lack of meeting means collective agreement invalid: judge

The Federal Court has overturned a vote in favour of an employee collective agreement because the employer did not give the workers a reasonable opportunity to discuss it, and because the title page said it was for two years when it was for four.

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The Federal Court has overturned a vote in favour of an employee collective agreement because the employer did not give the workers a reasonable opportunity to discuss it, and because the title page said it was for two years when it was for four.
 
The matter was taken to court by the CEPU, which presented 13 witnesses who claimed to have voted ‘no’ when the count of the ballots by the company secretary had revealed only 10 ‘no’ votes.
 
‘No’ vote a ‘mistake’
 
However, the judge dismissed this element of the case, saying the discrepancy was either a mistake by the employees on how they had voted, or in thinking they had mailed the voting paper.
 
Evidence was given that Brisbane electrical contractor Blue Star Pacific was divided into two divisions: commercial construction and client service.
 
In February 2009, more than 40 workers were employed in the commercial construction division in various sites around Brisbane and 14 in client services. The CEPU had a total of 21 members among the workers, mainly in the commercial division.
 
On or about 12 February 2009, Blue Star sent to all its eligible employees a package of material which included the following:
  • a copy of the proposed employee collective agreement
  • an information statement
  • a waiver form
  • a ballot paper
  • an ordinary self-addressed envelope.
 
A Mr Brown, a leading hand electrician, gave evidence that, when he first received this package of materials he contacted a number of his fellow employees to discuss the proposed agreement.
 
He said they talked about arranging a meeting at the ICB Central site so they could get together and discuss the proposed agreement. At the time, there were four employees employed at the ICB Central site.
 
Meeting cancelled
 
However, at about the same time, the management of Blue Star sent a facsimile notice to all of its sites stating that a meeting of all its employees would be conducted at the Blue Star offices at Meadowbrook on Tuesday, 17 February 2009, to discuss the proposed agreement.
 
Brown said that upon receiving this notice of meeting, the proposed meeting at the ICB Central site was called off.
 
Not long after that, he said he was advised by his foreman that the Meadowbrook meeting had been cancelled. As a result, he said there was no opportunity for the employees at the ICB Central site to meet and discuss the proposed agreement.
 
However, the managing director of Blue Star did attend on site and explain the agreement to five employees. It was claimed he told the workers that if the economy picked up he would be happy to look at the agreement in the ‘next two years or so’ and maybe renegotiate a pay rise.
 
Erroneous
 
Justice Edward Reeves said it was common ground that the ballot paper that Blue Star sent to its employees was erroneously headed: 'Blue Star Pacific Pty Ltd Employee Collective Agreement 2009 — 2011'.
 
In fact, the proposed agreement was to extend for a period of four years. However, this did not appear from the front sheet of the proposed agreement, but from clause 7 in the body of the proposed agreement.
 
On 18 February 2009, after the CFEPU detected this error in the ballot paper, its solicitors wrote to Blue Star pointing it out. As a consequence, on 19 February 2009, representatives of the management of Blue Star went to its various sites and told those employees present that there was an error on the ballot paper and the proposed agreement was to operate for four years, not two years as stated.
 
Already voted
 
A Mr Wermizyari, an electrician employed on the ICB Central site, said he was given this information by Mr Davidson, a foreman on that site, on 19 February 2009. However, he said by that time he had already voted.
 
‘This is hardly surprising given that the votes had to be posted back to Blue Star in time for the count which was to be conducted at 1 pm on 20 February 2009,’ said Justice Reeves.
 
‘It appears that the vast majority of the employees were in a similar position to Mr Wermizyari because the evidence shows that only about 10 ballot papers were received on 19 and 20 February 2009.’
 
Votes ‘locked in filing cabinet’
 
Ms Linnegar, the company’s secretary, said that when the self-addressed envelopes were received by mail at Blue Star, they were placed in a locked filing cabinet.
 
On the morning of 20 February 2009, she said she removed the envelopes from that locked filing cabinet and placed them in a sealed ballot box. According to Linnegar, 59 ballot papers were issued by Blue Star and 47 were received back by mail.
 
In addition, on the morning of 20 February 2009, Linnegar received two ballot papers by facsimile transmission. The employees concerned had signed their names on these ballot papers.
 
At 1 pm on 20 February 2009, Linnegar along with two employees, Mr Brasher and Mr May, opened the self-addressed envelopes and counted the ballot papers enclosed. After the count was completed, May told Linnegar that there were 38 ‘yes’ votes, 10 ‘no’ votes and 1 invalid vote.
 
Recount shows duplicated votes
 
A short time later, Linnegar undertook a further count of the ballot papers herself. It appears that Brasher and May were not aware of this recount.
 
During this recount, Linnegar noticed that the two employees who had faxed ballot papers to her had also submitted ballots by post. Both of these ballots were for a ‘yes’ vote.
 
[Note: it was not explained how Linnegar could know the names of those who voted by post, and how they voted.]
 
‘Valid majority’
 
She therefore excluded those from the recount and reported the final result to Dave McInnes, the managing director of Blue Star, in words to the following effect:
‘Dave, 59 ballots were issued, 47 were received back, 36 votes were yes, 10 votes were no and 1 vote was invalid, around 12 employees have not voted at all. We have a valid majority.’
Justice Reeves said the first matter raised by the union was whether the workers had a ‘reasonable opportunity’ [as required by the Workplace Relations Act] to decide whether they wanted to approve the proposed agreement because it did not afford them the opportunity to meet and confer on the proposed agreement as a collective group.
 
He decided they did not. He said Blue Star was a small company and its workers were in a relatively confined geographical area and it was required to provide an opportunity for the workers to meet and discuss the agreement.
 
Lack of meeting enough to decide case
 
‘This conclusion would be enough to dispose of this matter in favour of the CEPU, but in case I am wrong in this conclusion, I will briefly consider the other two issues raised by the CEPU,’ he said.
 
He then ruled that the misleading indication that the agreement was for two years instead of four was likely to ‘adversely affect’ the employees when they were considering how to vote.
 
Justice Reeves then dealt with the CEPU’s main complaint, that the process used by Blue Star is that it did not allow it to check that the ballot papers returned to it by post were cast by eligible employees.
 
According to the CEPU, this was so because Blue Star did not require each employee returning a ballot paper to put his or her name, or other details, on the self-addressed envelope provided to them.
 
Voting system ‘effective’
 
‘Thus, it claimed, there was no means of checking each envelope against a list of eligible employees to ensure the person who cast the vote in each case was an eligible employee,’ he said.
 
‘In my view, Blue Star did use a system that effectively ensured that only eligible employees could cast a vote in the postal ballot. I consider this was achieved by the distinctive nature of the self addressed envelope that was sent to each eligible employee and in which they were to return their vote.’
 
He declared that that the Blue Star Pacific Employee agreement 2009 — 2013 had not been validly approved pursuant to s340 of the Workplace Relations Act 1996
 
 
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