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

[2020] FWC 2285

[2020] FWC 2285

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

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

COMMISSIONER MCKINNON MELBOURNE, 1 MAY 2020

Application for a majority support determination – time at which relevant employees are employed.

[1] Probe Operations Pty Ltd operates multi-channel contact and call centres at three sites in Caulfield and one in Richmond, Victoria. The Richmond site has approximately 450 call centre employees employed under the Contract Call Centres Award 2010.

[2] 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 for an enterprise agreement. Probe does not want an enterprise agreement and has not agreed to bargain.

[3] The ASU seeks a majority support determination to bring Probe to the bargaining table. One of the matters I must be satisfied about is whether a majority of relevant employees want to bargain. The group of employees whose views are to be assessed are those who will be covered by the proposed agreement and who are employed at a time determined by the Commission. This decision determines the point in time for the purpose of identifying the employee group.

Has the date already been determined?

[4] According to the ASU, the time has already been determined as 11 October 2019. It relies in that regard on the following email to parties sent from my chambers on 4 October 2019:

“Dear Parties

B2019/1154 - Application by Australian Municipal, Administrative, Clerical and Services Union (052V)

The Commissioner requires the parties to provide the following information to the Commission on a confidential basis:

1. The union is to provide an unredacted version of the petition showing the names of signatories who are currently employed by Probe Operations Pty Ltd who would be covered by the proposed agreement.

2. The employer is to provide a list of all current employees who would be covered by the proposed agreement.

If there is a dispute over the proposed scope of the agreement, two separate lists are to be provided by the employer so that it is clear which employees fall within which proposed enterprise agreement scope (that is, the scope proposed by the union or the scope preferred by the company).

The information provided will remain confidential to the Commission and will be used to assist in determining whether there is majority support for bargaining with Probe Operations Pty Ltd for the purposes of section 236 of the Fair Work Act 2009 (Cth).

Please ensure a response to the above is provided by no later than close of business on Friday 11 October 2019.”

[5] I do not agree that by requiring the parties to provide information in the terms above, the time for identifying the relevant group of employees was fixed. The reason is simply that the point in time so ‘fixed’ relied on a date chosen by Probe when preparing its materials in response, assuming it did so at all. It permitted Probe to decide which employees were in the group of “current employees” independently of the Commission, at any point of time between 4 and 11 October 2019. In that sense, the time at which an employee must have been employed was inherently uncertain, and it was not a time determined by the Commission.

[6] So what should the point in time be? There is no particular science to the fixing of an appropriate time, which depends on the relevant facts and circumstances in each case. One approach is to fix the time as the date the application was made on 2 October 2019. Another is to fix the date on which employee lists were provided to the Commission. Lists were provided in this matter both on 11 October 2019 and 12 February 2020. The earlier date is more likely to bear a closer relationship to the ASU petition which indicated majority support for bargaining as at the end of September 2019, although the evolution of these proceedings has meant that the date is now almost seven months ago. In a business with relatively high turnover, it may not be an appropriate reference point.

[7] The later date of 12 February 2020 is closer to the present time but is still almost three months ago. According to Probe, in the two month period from October to December 2019, 60 employees in the Richmond call centre resigned and 100 new employees were employed. If a similar rate of turnover can be assumed each two months, there is a real prospect that the group of employees affected by the application is materially different to the group whose views were expressed in the period to September 2019.

[8] In the circumstances, I consider that it is appropriate to fix the fortnight ending on 30 April 2020 as the time at which employees must have been employed so that there is more recent evidence of the views of employees. All permanent employees as well as casual employees rostered to work in that period will be counted. As the unions’ petition covers an earlier point in time, a further process to seek the views of employees will be necessary. I accept that this will result in additional delay but it is required in this case to ensure that I can be satisfied as to the will of the majority.

[9] For the benefit of the parties, my preliminary view about such a process is as follows:

1. An electronic ballot should be conducted both to avoid logistical challenges related to the COVID-19 pandemic and so that the process can be undertaken quickly and with a measure of certainty as to the identity of participating employees; and

2. The question for employees should be as follows:

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

[10] The matter will now be listed for directions to deal with next steps.

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

<PR718743>