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[2002] AIRC 1580
procedural. The Commission certified the Artcraft Pty Ltd (Queensland) Certified Agreement 2002 by separate certificate PR925252; it was declared to take effect on 5 December 2002 and expire on 5 December...
The Australian Industrial Relations Commission considered Artcraft's application to certify a workplace agreement. The Court identified an ambiguity about which part of Artcraft's operations and which employees were covered. Artcraft gave written undertakings limiting the agreement to the Summer Park site and clarifying its relationship to the parent award and pay schedule. The employer supplied a detailed but unsworn account of a secret ballot (55 of 59 voted, 28 for) endorsed by an employee representative and union delegate; the Commission, satisfied there was no evidence of coercion or procedural unfairness, accepted this as demonstrating genuine approval by a valid majority and certified the agreement effective 5 December 2002 to 5 December 2005.
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1,602 words · generated 01/09/2026
Artcraft Pty Ltd (trading as Aircraft Qld) applied to the Australian Industrial Relations Commission for certification of the "Artcraft Pty Ltd (Queensland) Certified Agreement 2002" under sections 170LK and 170LT of the Workplace Relations Act 1996. The application identified 59 employees as the proposed bargaining unit and pointed to the Metal, Engineering and Associated Industries Award 1998 as the parent award [1], [3]. The Commission heard the matter in Brisbane on 5 December 2002 [2].
1 cited instrument linked from this judgment.
Two core issues emerged at the hearing. First, the agreement's drafting contained an ambiguity about the employment to be covered: the application clause specified Artcraft's premises at 31 Boron Street, Summer Park, and employees "covered by the terms of" the parent award, while the Parties Bound clause used a different description involving those "engaged in any of the occupations industries or callings specified in" the award [3], [4]. That difference raised an ascertainability problem as to who exactly ought to be treated as eligible to vote and who the agreement would bind [5].
Second, the approval ballot had produced a narrow margin: the employer's material described a secret ballot on 12 November 2002 in which 55 of 59 eligible employees voted, yielding 28 for, 25 against, and 2 informal. The initial statutory declaration did not fully describe the ballot process, and the Commission required more detailed verificatory material [10], [11], [12]. The employer provided an unsworn submission detailing the ballot procedure, endorsed by the employee representative and union delegate, and the nominated employee representative (Mr Morrison) gave oral assurances at the hearing that the process had been fair and without coercion [12], [13].
Artcraft also provided undertakings under section 170LV of the Act to resolve the drafting ambiguities and clarify the relationship to the parent award and the pay schedule, specifically, limiting the agreement to the Summer Park site, confirming the parent award (and its variations) would apply subject to inconsistency rules, and providing a clarified pay schedule [15]. Accepting the undertakings and, on the whole of the evidence before it, the Commission was satisfied that a genuine majority approval by eligible employees had occurred and certified the agreement (certificate PR925252), effective 5 December 2002 until 5 December 2005 [14], [17].
The decision turned on two legal necessities for certification: (1) ascertainability of the employment covered so that the class of employees is identifiable (and those eligible to vote can be determined), and (2) genuine approval by a valid majority of that class.
On ascertainability, the Commission emphasised its fundamental importance: identification of the class of employees is essential for determining who may vote and the eventual operative effect of the agreement [5]. The ambiguous drafting raised the spectre of an uncertain voting constituency (for example, whether employees at another Artcraft site were within scope). The Court resolved the ambiguity by accepting the applicant's undertaking to read the agreement as confined to the part of the single business at 31 Boron Street, Summer Park. That undertaking narrowed the application clause and removed the uncertainty about who should have voted [6], [8], [15].
On genuine majority approval, the Court showed a cautious but pragmatic approach. Noting that it was 'entitled to inform itself in such manner as it may see fit' and that a narrow majority raises questions requiring closer scrutiny [11], the Commission required evidence about notice, constituency, voting process and outcome. The employer supplied a Notice of Intention, an unsworn but detailed submission about the secret ballot, and witness endorsements from the union delegate and employee representative; the nominated employee representative also vouched orally for the fairness of the process and the lack of coercion [10], [12], [13]. The Court acknowledged it would ordinarily prefer formal affidavits, but in the absence of contradictory evidence and given the corroboration, found the material sufficient to satisfy the statutory requirement that the agreement had been genuinely approved by a valid majority [14].
Finally, undertakings under s170LV were used to correct and clarify content issues (geographic scope, relationship to parent award, wage schedule) in a way that the Commission accepted as binding and sufficient for certification [15], [16].
Before this decision, the Workplace Relations Act and Commission practice demanded that a proposed certified agreement identify the employment it will cover and demonstrate majority employee approval. This decision reiterates and applies those precepts to the facts:
After this decision, the practical takeaway is that the Commission will scrutinise close ballots carefully and may require corroborating detail about the ballot. However, the Court also indicated flexibility: sworn affidavits are desirable but not invariably indispensable where there is credible corroboration and no contradictory material, and where undertakings clarify uncertainties. The decision demonstrates an applied, fact-sensitive exercise of the Commission's information-gathering and supervisory role in certification.
Paragraph [5]: "The ascertainability of the employment ... is a fundamental matter." Plain English: The agreement must clearly state which workers and which workplace it covers. That clarity is essential to know who should get a vote and who will be bound by the agreement.
Paragraph [11] (transcript summary): The Commission indicated it would "require some clarification" about the ballot, including affidavits and detail of who voted and how. Plain English: If the vote is tight, the Commission will ask for firm proof that the ballot was done properly and that the right people voted.
Paragraph [12]: The employer's submission described the ballot procedure and results (55 of 59 voted; 28 for, 25 against, 2 informal). Plain English: The employer provided a detailed report of the secret ballot showing a small majority in favour.
Paragraph [14]: "I am satisfied that a validly majority of employees genuinely approved the proposed certified agreement." Plain English: The Commission concluded that, on the material before it, the required employee approval had actually occurred.
Paragraph [15]: Undertakings were given to narrow the agreement to the Summer Park site and to clarify that the parent award (and its variations) applies, and pay rates were clarified. Plain English: The employer agreed formally to fix the drafting problems so the Commission could be sure about who is covered and how the agreement interacts with existing award entitlements.
Paragraph [17]: Certification ordered and effective dates specified. Plain English: The Commission certified the agreement, set its start and expiry dates, and issued the certificate number.
This decision is relevant when:
This deep dive is confined to the judgment text itself. The decision demonstrates Commission practice in 2002 concerning certification, ascertainability, and evidentiary thresholds for ballots. The judgment records the Commission's willingness to exercise its fact‑finding discretion, to demand verification in borderline cases, and to accept undertakings under s170LV to resolve ambiguities. Any later treatment by other courts or tribunals is not included in this source and would require examination of subsequent decisions and authorities beyond the text of this judgment.
This analysis is based only on the text of the Commission's decision in Artcraft Pty Ltd t/as Aircraft Qld v Employees re Artcraft Pty Ltd (Queensland) Certified Agreement 2002 PR926087 [2002] AIRC 1580 (20 December 2002). It explains what the judgment says and how the Commission applied the statutory framework. It is legal information, not legal advice. I can make mistakes. Before acting on this material, relying on it, or using any draft or strategy derived from it, get a qualified Australian lawyer to check it.
s.170LK certification of agreement
ARTCRAFT PTY LTD (QUEENSLAND) CERTIFIED AGREEMENT 2002
Certification of Division 2 agreement with employees; section 170LK; approval by valid majority; weight of evidence sufficient to establish such approval; section 170LV undertakings; agreement certified.
[1] This matter is an application for certification of an agreement under sections 170LK and 170LT of the Workplace Relations Act 1996 (the Act). The application was lodged on 27 November 2002 by Artcraft Pty Ltd t/as Aircraft Qld (Artcraft). The application seeks the certification of an agreement to be known as the Artcraft Pty Ltd (Queensland) Certified Agreement 2002 (the proposed certified agreement).
[2] I heard the application in Brisbane on 5 December 2002. Mr M. Belfield of the Australian Industry Group (the AIG) appeared on behalf of its member Artcraft, accompanied by Mr D. Young, the General Manager of Artcraft, and Mr A. Morrison, a nominated representative of the 59 employees whose employment is said to be covered by the proposed certified agreement.
[3] The employment to be covered by a proposed certified agreement is discoverable only by reference to the application clause of an agreement, or to whatever provision may serve sufficiently that function. In this instance, there is an application clause to the proposed certified agreement. It reads:
This Agreement shall apply to Artcraft Pty Ltd at 31 Boron Street Summer Park Qld 4074 and all employees who are covered by the terms of the Metal, Engineering and Associated Industries Award 1998."
[4] On the face of the proposed certified agreement, there is a minor variation of or conflict in the description of the employees subject to it. The Parties Bound clause refers to employees who are engaged in any of the occupations industries or callings specified in the Metal, Engineering and Associated Industries Award 1998. Employees covered by an award are not necessarily co-extensive with those who are engaged in any of the occupations or callings specified in the award.
[5] The ascertainability of the employment in an identifiable single business or part of a single business to which a proposed certified agreement applies is a fundamental matter. That is so for several reasons, one of which is that the identification of the class of employees subject to the proposed certified agreement is an essential condition for determining the class of employees who are eligible to vote for the purposes of approving the proposed certified agreement through a valid majority. The identification of the class is also critical to demarking the operative effect of an agreement once certified.
[6] The application clause of this proposed certified agreement is ambiguous. It might possibly be read to be expressed with sufficient width to apply to employment by Artcraft at 31 Boron Street Summer Park, and elsewhere. It is apparent, from an extant but now expired section 170LJ certified agreement, that another Artcraft operation is conducted at 29 Pilkington Street, Garbutt. However, Mr Belfield submitted that clause 3 should not be read that widely. He stated that the intention of the parties to the proposed certified agreement is not to include the Garbutt site. The latter site, included in the section 170LJ agreement superseded in part by the proposed certified agreement, will presumably remain subject to that expired agreement.
[7] Mr Belfield also submitted that no difference was intended by the distinction made in the description of the relevant employment in clauses 3 and 4 of the proposed certified agreement.
[8] In the circumstances, I am persuaded that that difference in the description of the parties bound and employment to which the agreement applies is of no consequence. I shall accept Mr Belfield's undertaking. Any ambiguity may be resolved by construing the proposed certified agreement as applying only to employment covered by the award at the part of Artcraft's business carried out at 31 Boron Street Summer Park.
[9] In the usual course, prior to the hearing of an application, I examine a proposed certified agreement and the associated statutory declaration in support. On this occasion, the desirability of making that examination with care was reinforced by assertions communicated to the Commission's Registry, forwarded to me upon allocation of the file. Mr Young's statutory declaration is on file. It appeared from the standard questions answered that one or more of the employees to be covered by the proposed certified agreement had requested a union to represent them in meeting and conferring with the employer about the agreement. Mr Young's statutory declaration stated that a reasonable opportunity to meet and confer with the employer about the agreement was provided because:
"The union held an on site meeting on 6 December 2002 and the employees decided not to request union representation until the outcome of the vote was known."
[10] Against that background and for other reasons, at the outset of the hearing, I indicated to Mr Belfield that I had informed myself as I saw fit about aspects of the application. I stated that I would require sufficiently detailed information, verified if necessary by affidavit, to satisfy me about certain matters. In particular, I required evidence of the notice of intention to make the agreement under subsection 170LK(2) and (3). In response to that requirement, Mr Belfield tendered a copy of a document entitled: "Notice of Intention to Make a Certified Agreement[1]". He indicated that that document and a copy of the proposed certified agreement had been made available to all employees on 28 October 2002. Among other necessary pieces of information, the Notice stated:
"A secret ballot of all employees covered by the agreement will be held on Tuesday 12th November 2002."
[11] From information received by me, only a small majority of employees had been recorded as approving the proposed certified agreement . The following section of edited transcript summarised the background to what follows:
"I note that it puts the number of employees covered by the agreement at 59. The Commission in these matters is, if not obliged, entitled to inform itself in such manner as it may see fit. I am under some obligation to examine the possibility, that the vote for approval was very fine. It is possible that some 28 people voted for the agreement, 24 voted against it, two were informal and four who might have been expected to vote, didn't get a vote.
I am going to require some clarification of that possibility from you. At least I am investigating it. I would require an affidavit declaration as to what the score was, who were the group polled, what was the method of polling. I would want that to be put on in a way that excludes the possibility that there was any pressure put on people to vote in a way that precluded the union coming back - I think your affidavit says or statutory declaration says the union appeared on 6 November, six days before the vote.
It didn't, on your approach, speak to management. Rather it said, "Well, we'll come back after the vote is taken", presumably meaning that "if everybody approves it, then we're out of here", but perhaps thinking, "Well, everybody is going to reject this agreement, we're not out of here". When they came back they were out of there, because the LK agreement had been approved. That's the possibility. I'm not acting on advice from the union. But I am obviously not utterly uninformed as to the background of the matter. This seems to me to be the best way. There's nobody appearing to oppose this agreement. I must be satisfied that it is genuinely approved by a valid majority of the employees whose employment is subject to the agreement. Your last agreement covered another factory or plant. That group might arguably have been covered by this, but by the sound of it, they didn't get a vote. This agreement, there is a slight difference between the wording of the application clause and the parties bound. That goes to who gets a vote. There is at least a question as to how the number who got a vote and how they voted lined up with those who were entitled to cast a vote.
That's the first matter. You're going to need to put to me material that satisfies me on behalf of a peak council of employers and I would think a significant and reputable employer that this was a clean vote and who was covered by it. ..."[2]
[12] In response to my request, on 10 December 2002, Mr Belfield advised that the statutory declaration made by Mr Young is to be supplemented by a submission from Mr Young which details the voting procedure and the outcome of the employees' ballot. I set that submission out in full:
"The following is an overview of the voting procedure adopted for the secret ballot conducted at 31 Boron Street, Summer Part Qld 4074 on Tuesday, 12th November 2002.
1.1 A "Notice of Intention to Make a Certified Agreement" together with a copy of the agreement was provided to employees on 28th October 2002. No amendments were made to the agreement distributed to the employees prior to voting. Small group meetings were held with all employees the day before the vote to explain the voting process and to allow employees to ask final questions about the content of the agreement. During the 14 days prior to the vote no request was made by employees or the union to meet with management to discuss the agreement.
1.2 Voting commenced on Tuesday morning 12th November 2002.
1.3 A list of employees entitled to vote was prepared prior to the commencement of voting. Voting took place in the meeting room on the first floor of the administration building. Two scrutineers, Mr Wayne Kuhr (Manager, Human Resources) and Ms Heather Tutin (process worker and Union delegate) received employees in the voting room. Employees were asked to signify receipt of a ballot paper by writing their signature beside their name on the list of eligible voters. After receiving their ballot paper employees moved to a private space to mark their ballot. They then placed the completed ballot paper in the sealed box provided.
1.4 Examination of the employee list revealed that of the 59 employees eligible, 55 voted. Of the four that were not available to vote on the day, two were on sick leave, one on a rostered day off and the other was on annual leave.
1.5 By agreement with the Union Delegate, the General Manager and the HR Manager a decision was taken to declare the vote complete as we had received no indication from those absent that they were intending to attend work to cast their vote. Following this decision, the ballot box was cut open and votes counted. All 55 votes cast were accounted for. The scrutineers witnessed the counting of votes in company with the General Manager. The results were as follows:
At the conclusion of the vote, the scrutineers and the General Manager signed off on the list of voters to acknowledge that they had witnessed the count and confirmed the results. The employees were then informed of the results of the vote. The list and original ballot papers are held on file at the Summer Park office.
A copy of this statement has been read by the employee representative Mr Anthony Morrison, the Union delegate Ms Heather Tutin and Mr Wayne Kuhr the Manager, Human Resources. All agree that this is an accurate account of the voting process that took place in relation to the agreement that is the subject of this submission."
[13] I note that the submission did not meet my request for an affidavit attesting to the truth of assertions about the procedure; the submission is not formally attested to. It cannot be added to a statutory declaration after the event. However, it appears that the contents of the submission are endorsed by both the employee representative and the union delegate. Moreover, in the course of the hearing, Mr Morrison, in his responses to questions gave assurances as to the propriety of the process and outcome:
"HIS HONOUR: ... Mr Morrison, are you content that this agreement is supported by a majority of the employees who are to be covered by it?
HIS HONOUR: And do you think you had a fair go in nominating - - -
MR MORRISON: - - - has complained about the way things were done and - - -
HIS HONOUR: Yes. You're not aware of any complaints?
MR MORRISON: No, I'm not aware of any complaints and there has been ample opportunity in the last - - -
HIS HONOUR: Are you aware of any complaints about the way in which the ballot was conducted as distinct from the outcome of it?
MR MORRISON: Well, four people changing their mind would have changed the outcome, yes, so - - -
HIS HONOUR: I see. So it was a relatively close vote as far you're aware - - -
HIS HONOUR: But you're satisfied that it was a fair vote?
HIS HONOUR: Yes. And you don't see any reason why the Commission shouldn't approve the agreement on the basis that it was generally approved by a majority of the employees - - -
MR MORRISON: - - - it was generally approved by a majority of the employees.
HIS HONOUR: You don't or do you consider that you were bullied into accepting it?
MR MORRISON: No, your Honour, we weren't bullied into accepting it.
MR MORRISON: Yes. I don't think that anyone was pushed around by any - - -
HIS HONOUR: I put that to you as a leading question but you're not discontent?
HIS HONOUR: And you don't think there is a substantial level of discontent?
MR MORRISON: No, your Honour, I don't think there is. I personally voted against the agreement and I am happy to accept - - -
MR MORRISON: - - - the majority decision. And I think although maybe one or two people aren't happy to accept the majority - - -
MR MORRISON: - - - a lot of people who voted - - -
MR MORRISON: - - - against the agreement are happy to accept the majority."[3]
[14] I have weighed carefully whether I should insist upon my requirement for verification of the procedure by affidavit. I accept the case put to me by the applicant. In all the circumstances I am satisfied that a validly majority of employees genuinely approved the proposed certified agreement. There is no evidentiary basis contradicting such an approval. Adequate notification of a secret ballot was given; no basis for complaint about the constituency voting in the ballot is established; the balloting process has been explained; the outcome has been verified and endorsed as fair.
[15] I also raised with Mr Belfield several aspects of the content of the proposed certified agreement. I shall not detail each question and response recorded on transcript. However, I note the following undertakings given by letter dated 10 December 2002 under section 170LV of the Act:
1. The Agreement is to apply to Artcraft and its employees who come within the classifications provided in the Metal, Engineering and Associated Industries Award 1998. The Agreement will be limited to the geographical part of the single business, located at 31 Boron Street, Summer Park 4074.
2. The curious wording of Clause 6, Relationship to Parent Award, is not intended to provide the parties the opportunity to vary the Metal, Engineering and Associated Industries Award 1998, during the life of the Agreement. The original purpose of the clause may have been to limit the implementation of parent award variations as and when they occurred, unless the parties agreed that the award variation should be recognised. The wording of the clause is not sufficient to provide that choice to the parties. In any case, the undertaking given here is that the parent award will apply, including any variations thereto, subject to the inconsistency rule.
3. Clause 8, Wages of the Agreement should be read in conjunction with the enclosed Schedule of Pay Rates, which identifies the relevant classification and wage rate inclusive of the first 4% adjustment.
[16] Having regard to the matters set out, and to the detail of the proposed certified agreement and the content of the statutory declaration made by Mr Young, I am satisfied that the requirements of the Act and Commission Rules for the certification of the agreement are satisfied. The basis of that satisfaction includes the responses to the checklist completed and signed by me following my perusal of the proposed certified agreement. A copy of that checklist has been signed by me and is retained on file as a component of my decision in this matter.
[17] I shall certify the agreement by a separate certificate issued as PR925252. It shall come into effect on 5 December 2002 and remain in force for a period expiring 5 December 2005.
M. Belfield of the Australian Industry Group with D. Young for Artcraft Pty Ltd.
A. Morrison, a nominated representative of the 59 employees.
Printed by authority of the Commonwealth Government Printer
Artcraft Pty Ltd trading as Aircraft Qld
Employees re Artcraft Pty Ltd
The Commission certified the Artcraft Pty Ltd (Queensland) Certified Agreement 2002 by separate certificate PR925252; it was declared to take effect on 5 December 2002 and expire on 5 December 2005, subject to the undertakings given under section 170LV [17], [15].