STATEMENT

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, 12 MAY 2020

[1] For approximately twelve months, the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the United Workers’ Union (UWU) have been seeking to bargain with Probe Operations Pty Ltd for an enterprise agreement covering call centre employees. Probe does not want an enterprise agreement and has not agreed to bargain.

[2] The ASU has applied for a majority support determination in relation to employees of Probe employed in positions covered by the Contract Call Centre Award 2010 and who are ordinarily based at Probe’s call centre at 12 Shelley Street Richmond.

[3] A majority support determination is an order of the Commission which effectively commences bargaining between an employer and its employees for an enterprise agreement. An order can only be made if, among other things, I am satisfied that a majority of relevant employees want to bargain with their employer.

[4] An electronic ballot will be conducted to establish whether a majority of relevant employees want to bargain for an enterprise agreement. The ballot will be conducted by TrueVote Pty Ltd, an independent ballot agent.

[5] You are receiving this Statement because you have been identified as a person who is entitled to vote in the ballot. Eligible employees are:

a. permanent employees of Probe Operations Pty Ltd who were employed during the fortnight ending on Thursday 30 April 2020 as well as casual employees rostered to work one or more shifts during that fortnight; and

b. who are covered by the Contract Call Centre Award 2010; and

c. whose work location during the fortnight was ordinarily based at 12 Shelley Street Richmond, Victoria.

[6] You will shortly be contacted by TrueVote with information about how and when you can vote. Voting will open at 9.00am on Monday 18 May 2020 and will close at 9.00am on Wednesday 20 May 2020. If you are rostered to work during this time, you can vote during working hours.

[7] The question in the ballot will be:

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

[8] The only valid responses to the ballot will be "Yes" or "No". Voting is voluntary.

[9] The overall result of the ballot will be disclosed to the ASU and Probe but your individual vote will be confidential and will not be disclosed except to the Commission.

[10] Once the result of the ballot is known, I will decide whether to make a majority support determination.

[11] If you have any questions about this Statement or the ballot, please carefully read the information provided by TrueVote. If you still have questions that cannot be resolved by calling TrueVote’s voter help desk, you can contact the Chambers of Commissioner McKinnon by email at chambers.mckinnon.c@fwc.gov.au.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the United Workers’ Union (UWU) versus Probe Operations Pty Ltd, the Fair Work Commission was tasked with determining whether a majority of call centre employees of Probe Operations wanted to bargain for an enterprise agreement. This was a request initiated by the ASU under section 236 of the Fair Work Act 2009, where a majority support determination was sought to compel the employer to engage in bargaining for an enterprise agreement. Probe Operations had been resistant to such negotiations, and the unions were seeking to initiate formal bargaining on behalf of the employees.

The central legal issue before the Commission was whether the majority of relevant employees of Probe Operations, who were ordinarily based at the call centre in Richmond, expressed a desire to bargain for an enterprise agreement. This required an assessment of the specific criteria set forth in the Fair Work Act, including ensuring that a majority of the eligible employees wanted to engage in such bargaining. The Commission needed to conduct an electronic ballot to ascertain the employees' preferences, as stipulated by the Act.

Commissioner McKinnon determined that a majority support determination could be made based on the outcome of the ballot to be conducted by TrueVote. The ballot was to include only eligible employees: those who were permanent or casual employees of Probe Operations during the specified fortnight and who were covered by the Contract Call Centre Award 2010 and worked ordinarily at the Richmond location. The ballot would ask a straightforward question about the employees' desire to bargain for an enterprise agreement, and the voting period was set from 18 May 2020 to 20 May 2020. The result of the ballot would then inform the Commissioner's decision on whether to issue the majority support determination.

Following the ballot, Commissioner McKinnon would decide whether to grant the majority support determination based on the ballot results. This decision was to be made while ensuring that the employees' votes remained confidential. This case underscores the process and legal considerations involved in determining employee support for enterprise agreements under the Fair Work Act.

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

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established