Australian Municipal, Administrative, Clerical and Services Union v Probe Operations Pty Ltd

[2020] FWC 2702

[2020] FWC 2702

FAIR WORK COMMISSION

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
Probe Operations Pty Ltd
(B2019/1154)

COMMISSIONER MCKINNON MELBOURNE, 22 MAY 2020

Application for a majority support determination – whether majority support – whether fairly chosen – whether reasonable in circumstances – determination made.

[1] Probe Operations Pty Ltd operates multi-channel contact and call centres at three sites in Caulfield and one in Richmond, Victoria. Its call centre employees are employed under the Contract Call Centres Award 2010.

[2] The Australian Municipal, Administrative, Clerical and Services Union (ASU) and the United Workers’ Union (UWU) are seeking to bargain with Probe for an enterprise agreement covering employees ordinarily based at the Richmond call centre. Probe does not want an enterprise agreement and has not agreed to bargain.

[3] I have decided to grant the application for a majority support determination. These are my reasons.

Is there majority support for bargaining?

[4] On 12 May 2020, I ordered a ballot to determine whether a majority of relevant employees want to bargain with Probe for an enterprise agreement. The question in the ballot was:

“Do you want to bargain for an enterprise agreement covering your employer, Probe Operations Pty Ltd, and call centre employees whose work location was ordinarily based at 12 Shelley St, Richmond?”

[5] On 20 May 2020, the ballot of 426 eligible employees concluded. A majority of 252 (or 59.15%) of eligible employees voted yes to the ballot question. I am satisfied that a majority of Richmond call centre employees want to bargain with Probe for an enterprise agreement.

Was the group of employees fairly chosen?

[6] The Richmond call centre employees are part of a broader group of call centre employees performing the same or similar work at the various premises of Probe. Their employment is governed by a single modern award. Their work is organised by client and in some cases, whether the service they are providing is mostly proactive (outbound calls) or reactive (inbound calls). Depending on the client for whom they work, they may be allocated to either Richmond or one of the Caulfield sites. Each ordinarily works at the premises or in the area of a building allocated to the performance of the particular client work. Operationally and organisationally, there is no material distinction drawn by Probe between its call centre employees at Richmond and those in Caulfield.

[7] The group of employees is, however, geographically distinct. The employees are all ordinarily based at the Richmond call centre, while other employees performing similar work are based at other premises of Probe. Distinctiveness of this kind can be indicative that a group of employees was fairly chosen as opposed to selected by some arbitrary or unfair measure.

[8] Probe does not favour the differentiation of terms and conditions of employment or mode of industrial regulation as between its Richmond and other call centre employees. It is strongly opposed to the creation of different terms and conditions of employment for separate groups of employees performing the same work where currently there is no distinction.

[9] Plainly, the Richmond employees have a different view and are focused on their own terms and conditions of employment as opposed to the broader alignment of conditions across the business. The call centre employees at Caulfield will be excluded from bargaining if this application is granted. However, this appears to align with their preference, having expressed only limited interest in bargaining for an enterprise agreement for the better part of 2019. There is nothing before me to suggest that their interests will be adversely affected if they are unable to participate in bargaining for an agreement covering only the Richmond employees.

[10] The argument that holds the most sway against a finding that the group of employees was fairly chosen is that the reason for the choice was industrial expedience. This application is the second application for a majority support determination covering call centre employees at Probe in the past twelve months. The first application covered both Caulfield and Richmond employees, but failed when the number of employees wanting to bargain was found to be in the minority. 1

[11] Campaign materials and in particular a UWU flyer published in or about July 2019 2, refer to the history of bargaining and advise employees that a choice has been made to narrow the scope of bargaining to Richmond “for now”. These last two words suggest a strategic shift to narrow the scope of the proposed agreement to Richmond employees only, so as to improve the prospects of obtaining majority support and bringing Probe to the bargaining table. The scope of the proposed agreement could later be expanded to include Caulfield employees.

[12] It is established that the intention of the unions in or about July 2019 was precisely that: to narrow the scope of bargaining to Richmond employees, with a view to expanding the agreement scope at some later point in time to including Caulfield employees. Campaign materials published since that time reflect this narrower focus and deal only with Probe’s Richmond employees. However, unlike the flyer in July 2019, they make no reference to any future plans to expand the scope of bargaining. The unions’ evidence is that they had heard what members wanted, and while there was “passionate” support for an enterprise agreement among Richmond members, those at the Caulfield sites were more indifferent to bargaining. As a result, they decided to concentrate their efforts on bargaining for the Richmond employees only. At the time of the hearing, the unions had no plans to expand bargaining to employees at Caulfield. The ASU has given an undertaking in these proceedings to that effect.

[13] On balance, the evidence does not provide a sufficient basis to warrant the drawing of an inference against the direct evidence of the unions on the matter. I find that the choice of employee group was made to give effect to the wishes of employees at Richmond site, and having regard to the wishes of employees at the Caulfield sites.

[14] I am satisfied that the group was fairly chosen.

Is it reasonable to make the determination?

[15] History of attempts to bargain: I have set out above the continuing effort of the unions to bargain with Probe over the past year on behalf of their members and Probe’s resistance to that course. The unions’ intention was originally to negotiate an enterprise agreement for a wider group of employees. It is likely that there would not be majority support for bargaining if the wider group were maintained, because of the lower level of interest in bargaining at sites other than Richmond. However, that must be weighed against the fact that a majority level of support exists among Richmond employees who want to bargain with Probe for an enterprise agreement.

[16] This will be the first enterprise agreement for Probe: The contract call centre industry operates in a ‘highly competitive’ market, with both overseas and Australian providers competing against each other for work commonly performed by employees on modern award conditions. Probe has never bargained for an enterprise agreement before. In part, it relies on having its labour costs fixed to the modern award to compete in the market. If an enterprise agreement is ultimately made between the parties, the likely result will be improved terms and conditions for employees as well as higher overall labour costs for the business.

[17] The likelihood of different industrial arrangements at each site: if Probe is compelled to bargain with Richmond employees, the prospect of there being different terms and conditions of employment at different sites performing similar work is real. An outcome of that kind is likely to increase the regulatory burden on Probe, including in relation to the level of complexity involved in managing its employment responsibilities. It may also have relational effects if different employee groups enjoy different terms and conditions of employment, including by imposing an artificial barrier between sites that makes transfer of employment between them more difficult. Where client contracts are tailored to existing terms and conditions of employment, these may need to be reset or relocated. This weighs against the making of a determination.

[18] Relationship between the parties: it is apparent that the relationship between Probe and the unions has not been a friendly one in recent times. There have been separate disputes in relation to right of entry as well as two strongly contested majority support applications. Their day to day interactions appear to be somewhat hostile, and the level of trust between them is low. Bargaining in this context is likely to be difficult, at least initially. However, bargaining is also an opportunity for parties to build goodwill and to develop agreed processes for the more effective management of difficult issues in the future.

[19] On balance, I am satisfied that it is reasonable in all the circumstances to make the determination.

Disposition

[20] As I am satisfied that each of the conditions that must be met before a majority support determination can be made have been met, the application is granted.

[21] A majority support determination will issue separately and will come into operation today.

COMMISSIONER

Appearances:

Y Bakri of Counsel for the applicant.
S Pill for the respondent.

Hearing details:

2020.
Melbourne:
18 February.

Final written submissions:

Applicant, 9 April 2020
Respondent, 9 April 2020

Printed by authority of the Commonwealth Government Printer

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 1   Exhibit 4.

 2   Exhibit 8.