Australian Municipal, Administrative, Clerical and Services Union v Equity Valet Parking Pty Ltd

[2011] FWA 2036

[2011] FWA 2036

FAIR WORK AUSTRALIA

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
Equity Valet Parking Pty Ltd
(B2011/24)

VICE PRESIDENT WATSON MELBOURNE, 4 APRIL 2011

Application for a majority support determination - whether tests for majority support determination satisfied - whether making determination reasonable in all the circumstances - small employer - Fair Work Act, s3, 236,237.

Introduction

[1] This decision relates to an application under s236 of the Fair Work Act 2009 (the Act) by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for a majority support determination with respect to non-managerial clerical and customer support employees of Equity Valet Parking Pty Ltd (Equity Valet) at Melbourne Airport.

[2] I initially listed the matter for mention and directions. The parties were directed to file outlines of submissions and witness statements and the matter was listed for hearing on 4 April 2011 in Melbourne. At the hearing Ms K McCutcheon represented the ASU. Mr S Woodbury and Ms T Ross, of counsel, appeared for Equity Valet.

[3] Evidence was given by Ms Joanna Katsoulas, an organiser with the ASU and Mr Ivan Guglak, a customer support officer with Equity Valet at Melbourne Airport.

Background

[4] Equity Valet has operated the Qantas valet services throughout Australia since 2008 when it secured the contract previously operated by Hertz. The ASU previously negotiated enterprise agreements with Hertz that covered the Melbourne Qantas valet clerical and customer service roles.

[5] There are currently ten Equity Valet employees in clerical and customer service roles at Melbourne airport. Two are employed on unexpired Australian Workplace Agreements. Two are casual employees. With the exception of the two employees on Australian Workplace Agreements the employees are covered by the Clerks - Private Sector Award 2010 and common law contracts of employment.

[6] On 13 December 2010 the ASU wrote to Equity Valet indicating its intention to negotiate a collective agreement with respect to Equity Valet’s Melbourne based customer service employees.

[7] On 21 December 2010 Equity Valet replied to this correspondence and said that it was not satisfied that entering into negotiations with the ASU is the best way for Equity Valet to engage with its staff. It sought information to support the contention that its employees desire a collective agreement.

[8] On 31 January 2011 the General Manager of Equity Valet issued a letter to its Melbourne employees which said that any communication from the ASU to the effect that negotiations for an enterprise agreement are going to commence is not correct. The letter said that Equity Valet has not agreed to bargain for an enterprise agreement with employees and its strong preference is to continue to engage directly with employees over issues regarding their employment.

Relevant Legislation

[9] Section 236 of the Act is 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 FWA 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.

[10] The approach that FWA must adopt in relation to majority support applications is governed by s237 of the Act which provides:

237 When FWA must make a majority support determination

Majority support determination

(1) FWA 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) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWA must be satisfied before making a majority support determination

(2) FWA must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by FWA; 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), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA 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.

[11] The task of FWA therefore is to determine whether, in the circumstances of this case, it is satisfied of the matters in s237(2) of the Act. I will consider these matters in turn.

Does a majority of Employees want to Bargain?

[12] The evidence led by the ASU includes a petition signed by six of the eight employees who are employed by Equity Valet at Melbourne airport and will be covered by any agreement made concerning clerical and customer support employees. The petition states :

“We the undersigned Equity Valet Parking employees at Melbourne Airport location engaged in customer service work, hereby confirm that we want to bargain with our employer for an enterprise agreement.”

[13] Equity Valet did not submit that this requirement was not met.

[14] On the basis of the petition signed by the six employees I am satisfied that a majority of the relevant employees want to bargain.

Has the employer agreed to bargain?

[15] Ms Katsoulas gave evidence of the correspondence summarized in paragraphs [5]-[7] above.

[16] Equity Valet did not make submissions in relation to this requirement.

[17] I am satisfied on the basis of the correspondence outlined above that the employer has not agreed to bargain for an agreement.

Was the group of employees to be covered fairly chosen?

[18] The ASU submitted that the employees concerned are geographically and organisationally distinct and employed in customer service roles. Drivers employed by the company are not covered as they are not eligible to belong to the ASU.

[19] Equity Valet did not make submissions in relation to this requirement.

[20] I am satisfied that the group of employees is fairly chosen for the reasons advanced by the ASU.

Is it reasonable in all the circumstances to make the determination?

[21] The ASU relies on the Object in s3(f) of the Act of achieving productivity and fairness through an emphasis on enterprise level collective bargaining. It submits that a number of employment issues have been raised and bargaining will enable employees to formulate claims to establish and clarify employee entitlements.

[22] Equity Valet submits that it is not reasonable to make the determination when the only issue between it and its employees has been resolved, no other issues have been raised by or on behalf of employees and it is reasonable that it be advised of the issues that might be subject to bargaining so that it can ascertain whether there is any need for bargaining to take place.

[23] Equity valet submits that it is a small employer, and it is relevant for FWA, in the exercise of its discretion to have regard to the Object of the legislation in s3(g) that the special circumstances of small and medium-sized companies be acknowledged.

[24] The scheme of the Fair Work Act is that terms and conditions of employment are determined at the enterprise level on the foundation of “fair, relevant and enforceable minimum terms and conditions.”

[25] Where employees wish to engage in bargaining the legislation gives them rights to engage bargaining agents and engage in bargaining processes. In circumstances where an employer has not agreed to bargain, bargaining orders under s230 of the Act are not available unless, among other things, a majority support determination is in operation.

[26] Both parties have rights in the bargaining process. They are free to discuss and agree on relevant matters and formulate any agreement in any available manner. They are equally free to disagree and exercise rights that may arise in such an eventuality.

[27] I do not consider that any of the grounds advanced by Equity Valet lead to the conclusion that it would be unreasonable to make the majority support determination. The size of the employee group and the size of the employer’s undertaking do not constitute grounds, in my view, that it would be unreasonable to permit bargaining. In my view it is entirely reasonable that the employees in question have the right to participate in bargaining and have access the relevant provisions of the Act that would be available if the employer had agreed to participate in bargaining.

Conclusions

[28] On the basis of the conclusions above I will make a majority support determination as sought in the application. The determination is issued with this decision.

VICE PRESIDENT WATSON

Appearances:

Ms. K. McCutcheon for the Applicant.

Mr. S. Woodbury and Ms. T. Ross, of counsel, for the Respondent.

Hearing details:

2011.

Melbourne

4 April

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