Australasian Meat Industry Employees Union, The v Churchill Management Pty Ltd

[2014] FWC 1118

[2014] FWC 1118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Australasian Meat Industry Employees Union, The
v
Churchill Management Pty Ltd
(B2013/1585)

DEPUTY PRESIDENT ASBURY BRISBANE, 13 FEBRUARY 2014

Application for a majority support determination.

[1] On 19 December 2013, the Australasian Meat Industry Employees Union (AMIEU) applied under s.236 of the Fair Work Act 2009 (the Act) for a majority support determination with respect to employees of Churchill Management Pty Ltd employed at an abattoir at Berry Street, Churchill, Ipswich. The application is opposed by Churchill Management Pty Ltd. The background can be briefly stated.

[2] Directions were issued on 19 December 2013 requiring Churchill Management Pty Ltd to advise whether it objected to the application; the grounds of objection and whether Churchill Management Pty Ltd sought to be heard in relation to any objection. The matter was listed for Directions and/or Hearing on 7 January 2014. In response to the Directions, the Managing Director of Churchill Management Pty Ltd engaged in correspondence with the Commission making various assertions about the views of employees and the conduct of the AMIEU, and requesting that the AMIEU application be withdrawn and the hearing be cancelled.

[3] The correspondence from Mr Moule was forwarded to the AMIEU by my Associate. The AMIEU responded indicating that the application would not be withdrawn. Mr Moule was informed that the Commission could not act on the basis of email communication; that he should desist from communicating with the Commission unless the other party was provided with a copy of the communication; and that the matter would be listed for hearing in order to deal with his objection to the application.

The issues in dispute

[4] The AMIEU contends that a majority of employees of Churchill Management Pty Ltd have signed a petition calling upon management of the Company to recognise the AMIEU as the bargaining agent for employees and to commence negotiations for a new enterprise agreement. In an affidavit filed in support of the application, Mr Ronald Charles Weston, a recruitment officer employed by the AMIEU, states that he told employees that if more than 50% indicated their support, the Union could “take steps to force the company into negotiations for a certified agreement.”

[5] The AMIEU tendered a petition indicating that 57 employees had signed to indicate their support, and contended that this constituted the majority of employees on the basis that the total number of employees is approximately 80. The petition tendered by the AMIEU indicates that employees signed it between 5 and 9 December 2013.

[6] The objection of Churchill Management Pty Ltd is based on a number of assertions. For present purposes, the relevant assertion is that the majority of employees have entered into flexibility agreements under clause 7 of the Meat Industry Award 2010 and that as these agreements were entered into after the date on which employees signed the AMIEU petition, the Commission cannot be satisfied, as required by s.237(2)(a) of the Act, that a majority of employees genuinely want to bargain.

Directions/Hearing 7 January 2014

[7] At a hearing on 7 January 2014, Mr Moule cross-examined Mr Weston about his affidavit, and requested an opportunity to put copies of the individual flexibility agreements signed by employees before the Commission to establish how many employees had signed them and the terms of those agreements. Mr Moule submitted that these agreements evidence that subsequent to signing the petition, the employees “voted with their feet” and “moved onto another phase”. Mr Moule further submitted that 43 of the 57 employees who signed the AMIEU petition, had signed individual flexibility agreements.

[8] During the hearing I expressed the view to Mr Moule that the fact that employees had signed individual flexibility agreements may not present an impediment to the negotiation of an enterprise agreement and that the two forms of agreement are not mutually exclusive.

[9] However, Mr Moule was insistent that he wished to place evidence before the Commission in the form of the agreements that had been entered into by employees. The hearing was adjourned for seven days, to allow Mr Moule an opportunity to provide this material, and I indicated that it would not be relisted at a time that would be at least three days from the date upon which the Company provided its material, to allow the AMIEU an opportunity to put any material in response.

Further material

[10] Mr Moule filed an affidavit on 14 January 2014 making a number of assertions about the conduct of the AMIEU and the rights of the officers of the Union who promulgated the petition, to enter the Company’s premises. Mr Moule also tendered multiple documents in the same terms, which appear to be a form signed by 70 individual employees headed: “NOTIFICATION TO THE FAIR WORK COMMISSION” with spaces for the individual employee to fill in name, address, signature and date. The form contains the following statement:

“I hereby notify the Fair Work Commission that I do not want the AMIEU to negotiate on my behalf in respect to any a current Collective Enterprise Agreement proposal (the subject of an Application for Majority Support Determination B2013/1585).”

[11] Mr Moule states in his affidavit that there are 101 employees who would be affected by the AMIEU application and that this constitutes a majority of 69% who are opposed to the AMIEU application.

[12] In response to Mr Moule’s affidavit, the AMIEU filed a further affidavit sworn by Mr Weston and an affidavit sworn by Mr Earle. Relevantly, Mr Earle deposes that on or about 9 January 2014, he became aware that managers of Churchill Management Pty Ltd were circulating to the workforce a written document seeking signatures from employees indicating that they did not wish to negotiate an enterprise agreement with the Company. Mr Earle appended a copy of a document comprising a covering letter dated 9 January 2014 and a blank copy of the form tendered by Mr Moule.

[13] The covering letter under the signature of Mr Moule - which was not tendered by Mr Moule - states:

“I believe it is important that I brief you on current developments re the AMIEU attempts to unwind the general and majority consensus on wage negotiations for the next three years.

We have received 83% acceptance of our Individual Flexibility Agreement (IFA). 86 of 103 employees have signed off on the Agreement as I write.

The Union, via the Fair Work Commission, is trying to unwind this majority decision.

The Union is attempting to reopen negotiations, rather than allow you to negotiate directly with Churchill Abattoir on matters affecting your employment.

You may recall that on the 6th of December 2013, the Union requested that you sign a Petition giving the Union the right to negotiate on your behalf. The Union received 57 signatures, far less than the 86 who have agreed with the Individual Agreement we have put in place.

Should the Union prevail, and obtain the consent of the Commission to reopen negotiations, we will be effectively starting with a clean sheet of paper that may or may not result in a better outcome.

I firmly believe that our offer, as per the Individual Flexibility Agreement that you signed on or about 9 December 2013, is a fair and reasonable offer and that the current grandstanding by the AMIEU is likely to achieve nothing more than workplace disharmony.

For those of you who have been associated with Churchill for at least the past 13 years, you have been able to negotiate yourselves, extra attendance bonus, extra bonus, performance bonus, skills bonus, yearly wage increases and assistance with bills when things get tight.

I ask, what has the Union done for you?

I make no excuses for appealing to you, to ask you to question the current action by the Union as nothing more than an attempt to take control of the Abattoir that has been successfully and smoothly run without the Union for the past 13 years.

Should you agree, I would request that you sign the attached Notification confirming that you do not want the Union to negotiate an Enterprise Agreement on your behalf. By signing, you will be reinforcing the ongoing arrangement of direct Workplace representation that reflects current workplace issues and which complies with the Meat Industry Award 2010.

I believe it is very important that you continue to be represented by your fellow workmates rather than have people outside Churchill direct and dictate terms to you.

I encourage you to seriously consider the implications of handing over control to the AMIEU and request that you act to retain a direct voice in negotiations by signing the Notification below.”

[14] It is not in dispute that this letter was handed to employees together with the forms that Mr Moule has tendered to the Commission.

Legislation

[15] The provisions of the Act dealing with Majority support determinations are found in sections 236 and 237 as follows:

“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

(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

[16] The issue in dispute is whether the Commission can be satisfied that the majority of employees who will be covered by the proposed agreement want to bargain. After considering the material that has been provided to employees by both the AMIEU and Churchill Management Pty Ltd, I am unable to answer this question.

[17] In my view, the employees have been provided with incorrect information by both the AMIEU and Churchill Management Pty Ltd and in light of this it would not be appropriate for me to accept that the views expressed by employees in either the petition circulated by the Union or the form circulated by the Company, should be accepted as evidence that the majority do, or do not, want to bargain.

[18] According to the original affidavit sworn by Mr Weston, when circulating the petition tendered in these proceedings, Mr Weston told employees that if more than 50% of employees signed the petition, Churchill Management Pty Ltd could be forced to negotiate a certified agreement. That statement is not correct. The petition tendered by the AMIEU and signed by employees calls on Churchill Management Pty Ltd to recognise the AMIEU as “bargaining agent” for employees.

[19] A majority support determination is not a mechanism to force an employer to negotiate with a Union. As Senior Deputy President O’Callaghan observed in The Australian Workers’ Union v BlueScope Steel Limited T/A BlueScope Lysaght 1:

“A majority support determination is not an enforceable order. No penalties apply to a breach of it, but it does mark the commencement of the good faith bargaining process and other obligations flow from it. Significantly it does not require that either an employer or employees make bargaining concessions.

In this situation the [Union] becomes a bargaining representative for its members unless they nominate otherwise. The bargaining process is, however, directed at achieving an agreement between BlueScope and its employees rather than between BlueScope and the [Union].”

[20] Further, the terms “certified agreement” and “bargaining agent” are not correct. The Act provides for enterprise agreements and bargaining representatives.

[21] I have significant concerns on a number of levels, about the tone of the communication from Mr Moule to employees. Mr Moule has predicated his opposition to the application for a majority support determination on the assumption that an enterprise agreement involving the AMIEU as a bargaining representative of employees is inconsistent with, and cannot co-exist with, the flexibility agreements negotiated between the Company and individual employees pursuant to clause 7 of the Award.

[22] Notwithstanding the attempts I made during the hearing on 7 January 2014 to explain to Mr Moule that there was no practical or legal impediment to the co-existence of the flexibility agreements and an enterprise agreement, and that the two types of agreement are not mutually exclusive, it is apparent that Mr Moule’s misapprehension about this matter remains and has now resulted in a document being provided to employees that contains incorrect information.

[23] In particular, I am concerned that the fifth paragraph of the communication states that if the effect of the granting of the majority support determination would be that there would be a “clean sheet of paper”. In other words there is a strong inference that the granting of the majority support determination would result in the flexibility arrangements being rendered of no effect.

[24] The reality is that the flexibility agreements were made under clause 7 of the Meat Industry Award 2010,on or after 9 December 2013. By virtue of clause 7.8(a) and 7.9 of the Meat Industry Award 2010, a flexibility agreement made after 4 December 2013 can be terminated with 13 weeks’ notice. Quite simply a valid flexibility agreement made under clause 7 does not cease to operate upon the Commission making a majority support determination, or upon the commencement of bargaining between a Union as bargaining representative and an employer, or upon the making of an enterprise agreement if that is the outcome of bargaining. Any suggestion to the contrary is wrong.

[25] I am also concerned that Mr Moule sought and was granted an adjournment of the hearing on 7 January 2014, in order to place copies of the flexibility agreements between Churchill Management Pty Ltd and its employees before the Commission. Mr Moule proceeded to embark on an entirely different exercise and to provide employees with information that is at best incorrect, and at worst, misleading. I make no comment about other potential action that may arise against the company in relation to the c9ommunication as it is not relevant in the present case.

Conclusions

[26] The factual situation in the present case is analogous with that considered by Senior Deputy President O’Callaghan in BlueScope. In that case, BlueScope initially contended that the existence of a common law agreement between the Company and its employees precluded the making of a majority support determination, and there was a dispute about the accuracy of information provided to employees in advance of the circulation of a number of petitions with conflicting results.

[27] In those circumstances his Honour determined to issue a request to the Australian Electoral Commission to conduct a ballot of employees at the expense of the Commission. His Honour also issued an Order to the employer in that case requiring the employer to facilitate the ballot.

[28] The AMIEU and Churchill Management Pty Ltd were invited to advise of their position in relation to a similar proposal made by me at a further hearing on 4 February 2014. Both parties agreed to the proposal. Accordingly, I propose to issue a request to the Australian Electoral Commission to conduct a secret postal ballot of employees. I also propose to make an Order requiring Churchill Management Pty Ltd to facilitate the ballot and to provide a copy of a statement I have produced and appended to this decision to all relevant employees, to ensure that employees who cast a vote understand their rights and choices.

[29] Once the Australian Electoral Commission has concluded the ballot, I will be advised of the outcome. Churchill Management Pty Ltd has indicated that if the outcome of the ballot indicates majority employee support, that opposition to the present application will be withdrawn and the determination will be made. The AMIEU has indicated that if the outcome of the ballot is to the contrary, the application will be withdrawn.

[30] If there is any further dispute about information that is or should be provided to employees, the assistance of the Commission may be sought by either party through an appropriate application. The attention of the parties is drawn to my request that the ballot commence on or after 28 February 2014 and concluded by 19 March 2014.

DEPUTY PRESIDENT

Appearances:

Mr L. Norris, Mr R. Weston and Mr W. Earle on behalf of the Australasian Meat Industry Employees Union.

Mr B. Moule on behalf of Churchill Management Pty Ltd.

Hearing details:

2014.

Brisbane:

January 7;

February 4.

 1   [2011] FWA 7525

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