Fair Work Commission|2022-10-28

The Applicant submits that on the evidence before you and in the absence of any countervailing evidence, IRIQ Pty Ltd is a suitable ballot agent to appoint.

Whether you decide to appoint IRIQ Pty Ltd or not, we submit, there is no basis not to make the order.

Finally, for clarity, paragraph 42(d) of the AMWU's outline of submissions filed 26 October 2022 was included in error and is not relied upon."

[15] Particularly in cases where PABO applications are not contested, the Commission relies heavily on accurate information being provided to it, both in the application itself and in the statutory declaration filed in support of such application. The Commission should be able to rely on applicant unions to provide accurate information.

[16] What has become clear through the evidence and submissions filed in this matter is that the Commission was misled in the previous applications relied on by the Union in making orders nominating a ballot agent that did not exist. The consequence that arguably flows from an invalid ballot (given the ballot agent does not exist), is that any industrial action subsequently taken by employees would not be protected, leaving such employees exposed to the consequences of taking unprotected industrial action.

[17] As the Respondent correctly submitted, it is not for the Respondent to dissuade the Commission that the requirements of section 444 have not been met. The onus lies solely with the Union to satisfy the Commission as to these matters.

[18] Here, the Respondent identified the deficiencies with the application immediately on being asked by the Commission to respond to the application, however it took four attempts by the Union (in the form of further evidence and submissions) to adequately respond to the matters raised.

[19] To the extent these matters have not already been dealt with this in this decision, I find the following:

I do not accept the Respondent's objections are "technical objections principally of form and not substance". The requirement for the Commission to be satisfied as to the requirements of s.444 and the Regulation are not trivial matters to be taken lightly.

While I agree that "IRIQ did not misidentify itself in a statutory declaration submitted to the Commission", in my view there remains an obligation on the proposed ballot agent, upon receipt of the Order issued by the Commission, to ensure that the entity the Commission has appointed as ballot agent is in fact the entity that undertakes the ballot in accordance with the requirements. This weighs against a finding that IRIQ is a fit and proper person to be appointed a ballot agent.

c. I am satisfied that if IRIQ is appointed the ballot agent, Mr Devjee will be the individual who will carry out the functions of the ballot agent on behalf of IRIQ, based on the evidence of Mr Dobson[1]. As the evidence confirms he will be "the individual", and so I am satisfied it will be Mr Devjeee alone who will carry out these functions.

I agree with the Unions submissions as to the application of the Privacy Act to Mr Devjee. For the reasons contended by the Union, I accept he is bound by it when performing the functions of the ballot agent taken on behalf of IRIQ. I agree with the Union that if the Respondent were correct in its interpretation, it would have the effect that no employee of a business could perform the functions of a ballot agent, which I accept is not the intention of the legislation.

On the basis of the material before me, including the declaration of Kegan Scherf of AMWU made on 14 October 2022 setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[20] While it has been a difficult decision given the persuasive arguments put by the Respondent, I am satisfied, having weighed all the evidence, that IRIQ is capable of being appointed as the ballot agent. This is primarily based on the uncontested evidence of Mr Dobson and Mr Devjee as to each of the matters required to be satisfied which are set out in the Regulation. The decision has been difficult because IRIQ have clearly undertaken ballots in relation to other PABO applications where IRIQ Law Pty Ltd was the nominated ballot agent, and when IRIQ must have been aware that that entity did not exist. Likewise, it is concerning that the Union continued to rely on PABOs made by the Commission in other applications where IRIQ Law Pty Ltd was appointed as a ballot agent, simply characterising it as a "regrettable error", to support the making of a PABO in this application.

[21] On balance, having weighed all the evidence, I am satisfied that IRIQ has demonstrated it is a fit and proper person to conduct the ballot.

[22] The final question then is whether the Commission should exercise its discretion to appoint IRIQ as the ballot agent. Based on the evidence of Mr Scherf, I am satisfied such discretion should be exercised. I accept an electronic ballot will be more convenient and accessible for employees than a paper ballot undertaken by the AEC, particularly where access to a paper ballot may be difficult given the geographic location of employees including where their rosters may require them to remain away from their homes for extended periods of time.

[23] The PABO is made in the terms set out in PR747145.

[1] See paragraph 23 of Statement of Dean Dobson.

Printed by authority of the Commonwealth Government Printer

Work Regulations 2009

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v OS ACPM Pty Ltd T/A BHP Operations Services [2022] FWC 2850 (28 October 2022)

In the Statement of Mr Devjee dated 25 October 2022 and the Statement of Mr Dobson dated 25 October 2022, they both assert that Mr Devjee 'is the only employee of IRIQ who will carry out the functions of the protected action ballot agent'. The reference to Mr Devjee being the only 'employee' is telling. What neither Mr Devjee or Mr Dobson say is that Mr Devjee is the only person who will carry out the functions of the protected action ballot agent. In those circumstances the Commission cannot be satisfied that Mr Devjee is the only 'individual' who will carry out the functions of the protected action ballot agent. The absence of satisfactory evidence that Mr Devjee is the only individual who will carry out the functions, and that each of the requirements in regulations 3.11(2) to (6) are satisfied in respect of Mr Devjee is a basis to refuse the application to appoint IRIQ as the ballot agent (see National Tertiary Education Industry Union v Curtin University [2022] FWC 2514 at [50] (NTEU)).

A review of those decisions make clear that it is Mr Devjee who is expressly referred to as the employee providing a statutory declaration on behalf of the ballot agent in those matters (see, for example, [2022] FWC 2617 and [2022] FWC 2729).

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v OS ACPM Pty Ltd T/A BHP Operations Services [2022] FWC 2850

At a glance

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Judgment (19 paragraphs)

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"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v OS ACPM Pty Ltd T/A BHP Operations Services [2022] FWC 2850 (28 October 2022)