Australian Nursing and Midwifery Federation

[2021] FWC 5424

[2021] FWC 5424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Australian Nursing and Midwifery Federation
(B2021/610)

COMMISSIONER SIMPSON BRISBANE, 1 SEPTEMBER 2021

Application for a majority support determination – No majority – application dismissed.

[1] On 30 July 2021 the Queensland Nursing and Midwives’ Union of Employees (QNMU/the Union) made an application under s.236 for a majority support determination. The Respondent to the application is NoosaCare Incorporated.

[2] The application stated that the coverage of the Proposed Agreement will be the same as the coverage of the NoosaCare Inc. Enterprise Agreement 2018 (the 2018 Agreement).

[3] The application stated that between 10 May 2021 and 27 July 2021 employees who will be covered by the Proposed Agreement have signed a petition.

[4] The application stated that while the QNMU was unaware of the Respondent’s current staffing levels, based on the staffing levels of the Respondent as described in a F17 Statutory Declaration filed with the Fair Work Commission (FWC) on 17 May 2018 it had 314 employees who would be covered by the 2018 Agreement.

[5] On 2 August 2021 the matter was listed for a conference to be held the following day of 3 August 2021 at 4pm. On 2 August the FWC received a Form 53 Notice that Mapien would be seeking leave to represent the Respondent for the purpose of the conference and any other proceedings. There was separate correspondence from Mapien which included a request for an adjournment of the conference on the basis that it had been advised that a person infected with COVID-19 had entered the building where Mapien was based and employees of Mapien were required to take time off work.

[6] The QNMU advised it did not object to the adjournment request and it was granted. The matter was relisted for 10am on 11 August 2021. In the course of the conference leave was granted for Mapien to represent the Respondent. The matter did not settle at the conference. Some discussion occurred toward the end of the conference regarding the need for the parties to respectively file the petition and employee lists and be given an opportunity to file any other evidence and submissions.

[7] On the afternoon of 11 August, the QNMU filed with the Commission an unredacted copy of the petition it relied upon. Whilst the QNMU said the petition contained 201 signatures the petition filed on that date contained 202 signatures. On the same date the QNMU sent to the Respondent a deidentified version of the same petition.

[8] At 1.59pm on 12 August the Respondent sent to the Commission a list of employees as at 11 August 2021, containing 385 names. The Respondent also sent a redacted list to the QNMU.

[9] At 2.03pm on 12 August directions were sent from my Chambers as follows:

“1.The Applicant is directed to produce to the Fair Work Commission (the Commission) in Brisbane the original unredacted version of the petitions from employees wanting a majority support determination referred to in its application, and to serve on the Respondent a redacted version of the same material by 5pm Friday 13 August 2021.

2.The Respondent is directed to produce to the Commission and the Applicant an extract from its payroll records that identify each of the employees within its employment who as at the date that the Application was filed being 30 July 2021 are currently covered by the NoosaCare Inc. Enterprise Agreement 2018 by 5pm Tuesday 17 August 2021.

3.The Applicant is directed to file and serve any witness statements, submissions or other material it intends to rely upon, (including evidence that it is a bargaining representative) in support of its application by 5pm Friday 20 August 2021.

4.The Respondent is to file with the Commission and serve any witness statements, submissions or other material on which it intends to rely by 5pm Wednesday 25 August 2021.

5.Parties must advise each other and the Commission in writing by 5pm Thursday 26 August 2021 which witnesses they require for cross examination.

6.The application for a majority support determination is listed for hearing at 10am on Friday 27 August 2021.”

[10] On 17 August at 2.20pm Chambers was copied into an email from Ms Trevascus of the QNMU to Mr Lentini of Mapien which read as follows:

“Dear Mr Lentini,

Thanks for your time on the phone earlier.

As discussed, I am concerned that the lists you provided to the QNMU and the FWC last week include employees who are not covered by the NoosaCare Inc. Enterprise Agreement 2018 (the EA).

There appears to be at least one administrative officer included in the list of employees. There are a further five staff on the list whose “home department” is listed as either “CARACFI Carramar ACFI” or “KABACFI Kabara ACFI”. Can you please advise the QNMU what employment classification these employees belong to?

In 2018, NoosaCare Inc. sought to exclude Administrative staff from the coverage of the EA. In the attached F17 statutory declaration, NoosaCare Inc. made the following statement in support of this (see part 2.2):

“Outside of Senior Management, the other category of employees who are not covered by the Agreement are NoosaCare’s administration staff. Historically, these employees have not been involved in bargaining and are employed on individual contracts and paid in accordance with the relevant modern award.”

I request that NoosaCare Inc. review its list and remove any staff who are not covered by the EA, and that the revised list be sent to the FWC and to the Union (deidentified) as soon as possible.

Please feel free to contact me via mobile [phone]) to discuss further.

Kind regards,..”

[11] On 17 August at 6.07pm Mr Lentini of Mapien sent an email to my Chambers that read as follows:

“Dear Commissioner Simpson,

I have sought instructions from my client. Please find attached a revised employee list as at 11 August 2021. There was one administration employee inadvertently included. This employee has now been removed leaving a total of 384 employees. In relation to the employees marked “CARACFI Carramar ACFI” or “KABACFI Kabara ACFI”, I am instructed that these employees are level 2 nurses and are therefore covered by the NoosaCare Inc. Enterprise Agreement 2018.

On a further note, we have noticed since receiving the Directions that the date of the employee list is to be ’30 July 2021’. My client will also provide an employee list as at ‘30 July 2021’ tomorrow morning.

Thanks,

…….”

[12] At 11.52am on 18 August Mapien sent a further email to chambers attaching two lists, one with employees employed as at 11 August 2021, and one with employees employed as at 30 July 2021. The email with the attached lists read as follows:

“Dear Commissioner Simpson,

Please find attached the employee list as at 30 July 2021. By my counting there are 363 employees.

Thanks,

……………”

[13] At 12.44pm on 18 August Ms Trevascus of the QNMF sent an email to chambers attaching a further petition signed by a further 8 employees. The email read as follows:

“Dear Associate,

I refer to the directions order issued by the FWC on 12 August 2021 regarding matter B2021/610.

I have been provided with another page of signatures this morning to add to the petition. I apologise for the delay in getting these to you.

I will send a de-identified copy of this petition to the respondent and their representative today. I again request that the attached (unredacted) version is not provided to the respondent.

One of the employees who signed this page of the petition did not list her last name. I have contacted her using the mobile number she listed and confirmed that her name is [name redacted].

Kind regards,”

[14] On 20 August 2021 the QNMF filed a witness statement from Ms Trevascus with six attachments and separate written submissions. On 25 August the Respondent filed a witness statement from Ms Emily Larkin the Corporate Services Manager of the Respondent with two attachments, along with separate written submissions.

[15] The QNMU submitted that on 11 August 2021, it provided the FWC with a copy of the petition referred to in the application filed on 30 July 2021. The QNMU submitted that it provided the Respondent with a de-identified copy of this petition at the same time. The de-identified petition is Attachment 6 to the statement of Ms Trevascus and 202 employees signed that petition.

[16] The QNMU stated that every signatory to the petition has stated their name, employment classification and the date upon which they signed the petition.

[17] The QNMU stated that on 18 August 2021, the Respondent provided the FWC with a list of employees that they claim were covered by the 2018 Agreementas at 30 July 2021. The Respondent provided the Applicant with a de-identified copy of this list at the same time. There are 363 employees named on that list.

[18] The QNMU stated that a majority of the employees who were employed by the Respondent as at 30 July 2021 and who will be covered by the proposed Agreement have signed the petition to indicate that they want to bargain.

[19] The Respondent submitted that it is evident from the Directions issued by the FWC that the date for determination of whether a majority of employees are covered by the proposed Agreement is 30 July 2021.

[20] The Respondent submitted that in response to the FWC Directions, it provided a confidential list to the FWC and a redacted list to the QNMU, of employees that were covered by the 2018 Agreement as at 30 July 2021. The redacted list of employees who were covered by the 2018 Agreement as at 30 July 2021 is annexed and marked 'Attachment 1'. This list shows there were 363 employees.

[21] The Respondent submitted however, that in response to the FWC Directions, the QNMU has provided 202 signatures that have been collected up until 14 August 2021 referred to in the Statement of Ms Trevascus. 1

[22] The Respondent submitted it is unfair to include petitions obtained after 30 July 2021 and compare this to the Respondent’s list of employees who were covered by the Agreement as at 30 July 2021, particularly as the Respondent has employed more employees since 30 July 2021 who are covered by the 2018 Agreement, and as at 11 August 2021, it had 384 employees that were covered by the 2018 Agreement.

[23] The Respondent submitted that its perusal of the petitions at Attachment 6 of the Statement of Ms Trevascus shows there are 25 signatures added to the petition that were given after 30 July 2021. The Respondent submitted that by subtracting these 25 petitions from the total 202 petitions leaves 177 valid petitions. The Respondent submitted that based on this revised figure, 177 valid petitions out of the 363 employees as at 30 July 2021 only provides a percentage of 48.8% (rounded up). This figure is clearly not a majority of employees.

[24] At 1.42pm on 26 August, the day before the scheduled hearing I directed my Associate to send an email to the parties as follows:

“Dear parties

The Commissioner wishes to advise the parties in advance of the hearing tomorrow that the point in time at which he intends to determine whether he is satisfied that a majority of employees want to bargain, is at the time of the hearing. 

The Commissioner directs that the parties be in a position to update the Commission of any further evidence relevant to this question at the hearing tomorrow, for example new employees having commenced employment, any resignations having taken effect or any further evidence of employees wanting to bargain.

…………..”

[25] At 5.54pm on 26 August Ms Trevascus copied my Chambers into email correspondence between Ms Trevascus and Mr Lentini of Mapien that was exchanged late on the afternoon of 26 August that indicated that neither party wished to cross examine the other party’s witness. This was confirmed in the course of the hearing the following day.

[26] At the commencement of the hearing the parties were invited to make submissions in response to the email from my Chambers sent to the parties the previous day.

[27] Mr Lentini advised that in response to the email from my Chambers Ms Larkin of the Respondent had undertaken an audit of the number of employees covered by the 2018 Agreement as at 27 August and it was 384 employees. This number had not changed since the number of employees sent to Chambers as at 11 August, over two weeks earlier.

[28] Ms Trevascus advised there were no further names to be added to the petition attached to her statement.

[29] I advised the parties that the based on 384 employees, a majority would require 193 signatures. I advised the parties that 21 names on the Union petition did not appear on the Respondent’s list of employees. Whilst it may not have been stated in the hearing, the reduction of 21 included deducting from the count a number of employees who had signed the petition twice so that their signature was only counted once. Deducting 21 from 210 names on the petition reduced the number to 189.

[30] I also advised the parties there were 7 other signatures that could not be matched to a name on the employer’s list. I advised that the Union appeared to fall short of a majority on the evidence before the Commission. I advised that 182 names on the petitions could be counted but 21 names do not appear, and there are 7 others where it is difficult to be confident of a match to a name on the employer list. I expressed a preliminary view, subject to hearing from the parties that the Union required more signatures.

[31] Ms Trevascus enquired as to whether the FWC would be prepared to contact by telephone the employees who had provided a telephone number on the petition, where they could not easily be identified on the Respondent’s list.

[32] I advised I may be prepared to adopt that approach if it could be determinative of the outcome however even if the seven who are doubtful are added to the 182 it arrives at a number of 189 which is still four less than the 193 required for a majority of 384.

[33] The QNMU submitted that at least 22 new employees had been hired since 30 July and the QNMU had been proceeding on the basis that the date the FWC would be using in the exercise of its discretion under s.237(2)(a)(i) would be 30 July 2021, and that was why the QNMU had not been trying to get any more signatures. The QNMU submitted that the FWC can determine a date for the purpose of determining who was employed at a point in time, however the date for determination of whether there is a majority is the date of the hearing.

[34] It seemed it was common ground that that the Respondent had 363 employees as at 30 July 2021, and the Union had 177 signatures as at 30 July 2021, however the QNMU submitted that the dates do not have to align and that the FWC has discretion to determine the time under s.237(2)(a)(i). The QNMU submitted however that the FWC does not have discretion as to when it is satisfied there is a majority which is the time of the determination itself.

[35] The QNMU submitted that as the FWC had advised it is satisfied there are 182 employees who have signed the petition, that are identifiable from the Respondent’s list of employees, that is a majority if going by the list of 363 employees as at 30 July 2021.

[36] The QNMU referred to two decisions in support of its submission that the FWC could assess majority by reference to the 30 July list of employees, against the petitions including the 25 employees who signed the petition after 30 July 2021.

[37] The QNMU made specific reference to paragraph [35] of the Full Bench decision in matter of Kantifield Pty Ltd v The Australian Workers’ Union 2 which reads as follows:

“[35] The power to apply a time-based limitation is confined to section 237(2)(a)(i) and not section 237(2)(a) more broadly. That is, the power to apply a point-in-time limitation in section 237(2)(a)(i) is directed to fixing the time at which the FWC is to determine who are the persons employed only. Therefore, it does not confer a broader power to “fix” historical or future points in time for other aspects of section 237.”

[38] The QNMU submitted that the Directions order of 12 August said the date for the list of employees was 30 July 2021, and that with this earlier list the QNMU could challenge that fact of an administrative employee being included in the Respondent’s list and could put its list into evidence and it relied on this, and after this point the QNMU had stopped collecting employee signatures for the petition. The QNMU said that it would be disadvantaged if the 30 July 2021 list was not the list relied upon. The QNMU submitted that a decision was made (by the Commission) that the relevant date would be 30 July 2021.

[39] The Respondent submitted that if the FWC determined that the point in time determined (for the purpose of s.237(2)(a)(i)) was 30 July then that is the date that the number of employees should be compared to the number of employees who had signed the petition and if it is to be 30 July, it would be unfair to include in the count employees who had signed the petition at a later date, as compared to an earlier date determined under s.237(2)(a)(i).

[40] The Respondent also referred to the statement of Ms Larkin where she said as at 11 August 2021 the Respondent had 384 employees. It was said that a further audit was conducted just prior to the hearing and the number at that time was also 384.

[41] The QNMU submitted that the legislation is clear and that it is intended to operate in a manner to protect against an employer manipulating the result by employing more employees.

[42] The Respondent submitted that the petition identified employees as Assistants in Nursing when it does not employ any Assistants in Nursing. It is well understood that it is common for the terms ‘Assistant in Nursing’ and ‘Personal Carer’ to be used interchangeably by employees in the industry and I am not satisfied this casts any doubt on whether employees who referred to themselves as an ‘Assistant In Nursing’ are employees of the Respondent on the particular facts of this case.

[43] The Respondent relied on a current dispute before the Commission concerning classification levels for a number of employees as a basis to argue it is not reasonable to make the order. The Respondent also referred to its financial situation, the COVID-19 pandemic and the Aged Care Inquiry as a basis to argue that it is not reasonable to make the order.

[44] The QNMU rejected the Respondent’s submissions as to why it would not be reasonable to make the order and made submissions that none of these issues provided a proper basis not to make the determination.

[45] The QNMU requested that in regard to the seven persons who signed the petition, and it was unclear whether they could be counted, that the Commission either call those persons in order to verify their identity or alternatively adjourn the matter to allow time to verify their position.

[46] The QNMU made a further closing submission to the effect that if an applicant filed an application at a time when it has a majority, and the Respondent subsequently employs more employees and as a result of that the applicant no longer has a majority, that is what the legislation is intended to prevent.

[47] The Respondent submitted in response that the determination of the date for the purposes of s.237(2)(a)(i) is at the discretion of the Commission, whether that be 30 July or the date of the hearing, however the process must be one comparing ‘apples with apples’.

CONCLUSION

[48] I am satisfied on the basis of the evidence that the QNMU is a bargaining representative for at least one employee who would be covered by the Agreement. I am also satisfied the Respondent has not yet agreed to bargain. I am also satisfied that the group of employees who will be covered by the Agreement is fairly chosen.

[49] The first instance decision overturned by the Full Bench in Kantifield occurred in circumstances where the Commissioner at first instance determined a time for the purposes of s.237(2)(a)(i) and also applied the same time for the purposes of s.237 more broadly.

[50] I agree with the QNMU’s submission to the extent that the Commission, as was found in Kantifield, has the power to fix a time for the purposes of s.237(2)(a)(i)and that time may be a different and earlier time to the time at which the Commission determines whether it is satisfied that a majority of employees want to bargain, which is the time of the hearing.

[51] The Full Bench determination in Kantifield also provides further guidance on the particular facts in this matter. The Full Bench went on to make the following findings:

[36] In Peko-Wallsend, Mason J stated:

“… there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.”

[37] Applying Peko-Wallsend, it follows that the decision as to whether a majority of employees want to bargain is to be made on the basis of the most current material available at the time of the decision. Having considered all of the submissions and authorities filed by the parties, we agree that it was not open to the Commissioner to determine a point in time other than the time of the decision as the time at which a majority of employees could be said to want to bargain. As such, we are not satisfied that it was open to the Commissioner to reach the determination that he reached.

[38] Therefore, we are of the view that the Commissioner did not take into account a material consideration in the House v The King sense, namely, the most current available information to him at the time in determining whether a majority of employees wanting to bargain existed. In light of this, and having considered the relevant principles of law, we are of the view that the Appellant has demonstrated a House v The King error in the Commissioner’s decision. We are not required to identify an appellable error in every ground of appeal for there to be a quashing of the decision; a quashing of the decision is warranted upon an appeal bench identifying error in accordance with House v The King. Having identified an error in accordance with House v The King, we are, therefore, satisfied that the appeal must be upheld and that the original Decision must be quashed.”

[52] It appears both the QNMU and the Respondent proceeded on the basis of an assumption that the Commission would adopt 30 July 2021 as the date for determining the cohort of employees for the purposes of s.237(2)(a)(i). However contrary to the submission of the QNMU, the directions order of the Commission issued on 12 August did not constitute a decision for the purposes of s.237(2)(a)(i). Further the directions order did not close down any further potential consideration of material being put before the Commission prior to the date of determination which was listed for a hearing on 27 August 2021.

[53] For example, the first direction in the directions order of 12 August was a direction for the QNMU to produce to the Commission the original unredacted version of the petitions from employees wanting a majority support determination referred to in its application, (my underlining added) and to serve on the Respondent a redacted version of the same material by 5pm Friday 13 August 2021.

[54] It could not have been possible for the petition referred to in the QNMU application filed on 30 July to have been intended to include reference to the further 25 employee signatures who signed the petition between the dates of 5 August and 14 August.

[55] The QNMU was fully entitled to continue to collect the further signatures as it did between the dates of 5 August and 14 August. However, the QNMU was also on notice that from as early as 12 August the Respondent was saying to both the Commission and the QNMU that it had 385 employees covered by the 2018 Agreement. This was later confirmed at paragraph 7 of the unchallenged witness statement of Ms Larkin filed on 25 August that stated that as of 11 August it had 384 employees covered by the Agreement.

[56] I raised with Ms Trevascus in closing submissions that the Respondent had served on both the Commission and the QNMU on 11 August a list of 384 employees. Ms Trevascus accepted that but submitted that the Respondent had subsequently realised its error, and that it had been directed by the Commission to provide a list of employees accurate as at 30 July. A review of the file indicates this list was filed with the Commission on 12 August so it is likely the redacted 11 August list was also served on the QNMU on 12 August and not 11 August.

[57] The QNMU submitted that if it is the case that the directions order was not a decision to adopt 30 July as the time (for the purposes of s.237(2)(a)(i)) then the QNMU has misinterpreted the directions and that it could have continued to collect more signatures.

[58] In accordance with the Full Bench decision in Kantifield applying Peko-Wallsend, the decision as to whether a majority of employees want to bargain is to be made on the basis of the most current material available at the time of the decision. The approach pressed for by the QNMU is to determine whether a majority of employees want to bargain by comparing the 30 July employer list, with the QNMU petition including signatures obtained up to 14 August.

[59] It is true that the Commission’s directions of 12 August required the filing of a list of employees at a date that corresponded with the time of the filing of the application being 30 July. This is consistent with what the Commission discussed in conference with the parties on 11 August. However, the parties were aware from 12 August that the most current information from the Respondent said it had 384 employees under the 2018 Agreement as of 11 August. The email from Ms Trevascus to Mr Lentini of 2.20pm on 17 August indicates that it was the 11 August list with 385 names at that time, that was the subject of the email from the QNMU contesting certain inclusions.

[60] Whilst it may have been of assistance to the parties for the Commission to have amended the directions discussed in conference on 11 August in light of the material filed by the Respondent on 12 August, as previously stated there was no basis to have taken the directions to be a final decision under s.237(2)(a)(i).

[61] To adopt the QNMU approach would necessitate the exclusion from consideration of the unchallenged evidence of Ms Larkin that as of 11 August the Respondent employed 384 employees under the 2018 Agreement. To adopt that approach would be inconsistent with the decision in Peko-Wallsend as it would result in a determination that is not made on the basis of the most current material available at the time of the decision.

[62] The QNMU also relied on the decision in National Union of Workers v Lovisa Pty Limited (Lovisa) 3. The facts in Lovisa are distinguishable from the facts here as in Lovisa a protracted dispute arose between the parties as to the cohort of employees who should be counted for the purpose of determining a majority given the highly casualised and seasonal nature of the workforce in that matter.

[63] Ultimately given the difficulties of establishing a cohort given the highly casualised environment, the Commission determined in that matter that it would be artificial and inappropriate, in the context of s 237(2)(a)(i), to determine as the relevant time a single date, and instead determined a period of time of four weeks. Neither party raised any such arguments of that nature in this case.

[64] It would however be artificial and inappropriate in this case for the Commission to ignore the most current material available to it in the form of the unchallenged evidence of Ms Larkin concerning the number of employees employed under the 2018 Agreement.

[65] Having considered the material now before the Commission I have determined that 11 August is the appropriate time for the purpose of determining a time as required by s.237(2)(a)(i) as that is the time of the most current employee list available to the Commission. I have taken into account all signatures that can be counted on the most recent petition of the QNMU including the last additional signatures added on 14 August 2021. Whilst I note the Respondent submitted it also had 384 employees as at 27 August there was no employee list provided as at 27 August.

[66] Since the hearing it has become apparent that one of the seven names that I advised the parties could not be matched was able to be identified. Therefore, I can confirm that a total of 183 names have been identified, with 21 names not appearing on the Respondent’s list, and six that are unable to be matched.

[67] As at the time of the hearing the QNMU petition had 210 names, however that number needs to be reduced by 27, because of names on the petition not appearing on the Respondent employee list, employees signing the petition twice, and the six names who could not be identified as a match with the 11 August Respondent employee list. Even if all six that were in doubt are counted it would still not be a majority as that would take the number back up to 189 when 193 would be a majority as at that date. On that basis I am not satisfied that a majority of the employees want to bargain, and the application is dismissed for that reason.

[68] I also make the further observation, having already determined the matter, that the difficulty with the approach proposed by the QNMU on the particular facts of this case is also highlighted by comparisons at different points in time. These comparisons tend to support the Respondent’s submission that the QNMU approach would not be a comparison on the basis of “apples with apples”. The QNMU submitted in closing that the legislation was designed to avoid an employer being able to manipulate the result by engaging more employees in response to an application.

[69] Had the whole of the application been determined on the basis of the facts as they existed at 30 July (the date the application was filed) the Respondent had 363 employees covered by the 2018 Agreement, making a majority as at that date 182. As at the same date the QNMU had 177 signatures on a petition. However, included in that 177 were names that did not appear on the Respondent’s 30 July employee list or persons who had signed the petition twice, indicating as at 30 July the QNMU was still someway short of a majority at that time. The petition as at 30 July also included 5 of the 6 names that were insufficiently clear for the Commission to be satisfied of a match. However even with the inclusion of those 5 it is evident that at the time of filing on 30 July the QNMU would not have had a majority on that date.

[70] Had the whole of the application been determined on the basis of the facts as they existed at 11 August, on the evidence of Ms Larkin the Respondent had 384 employees employed under the 2018 Agreement making a majority as at that date 193. As at 11 August the QNMU had 207 signatures (not counting the three signatures added on 14 August) however that number would have needed to be reduced by 21 employees who did not appear on the Respondent employee list or who had signed the petition twice as at that date, as well as the 6 employees who could not be identified on the employee list reducing the number to 179. Even if the 6 names on the petition that could not be matched as at 11 August are counted, it is evident that as at 11 August the QNMU did not have a majority as of that date either.

[71] If the time determined by the Commission for the purpose of s.237(2)(a)(i) was 27 August being the date of the hearing then the result would have remained the same. In response to the Commission’s email to the parties of 26 August, the Respondent advised the Commission in oral submissions at the hearing that a further audit had been done by Ms Larkin that day and the number of employees remained unchanged from 11 August being 384.

[72] The inclusion in the count of the three additional signatures added to the QNMU petition on 14 August would take the total on the petition to 210, and this was the number as at the date of the hearing. That number needs to be reduced by 27, because of the names on the petition not appearing on the Respondent employee list, employees signing the petition twice, and the six who could not be identified as a match. Even if all six that were in doubt are counted it would still not be a majority as that would take the number back up to 189 when 193 would be a majority as at that date.

[73] In regard to the QNMU request concerning the seven persons on the petition who the Commission advised that it was uncertain of being able to match against an employee on the Respondents employee list, the Commission did not take steps to attempt to independently verify their identity given I have concluded it would not have affected the outcome. However, as I alluded to in the hearing I can advise the QNMU that having placed a number from 1 to 210 against the names on the most current QNMU petition, the now six persons referred by the Commission, correspond to numbers 10, 19, 129, 146, 152, and 186 on the petition.

[74] I make the observation that subject to the QNMU identifying those six persons and providing further additional material to the Commission to clarify their identity, my preliminary impression is that I can see no reason why the same petitions could not be relied upon in a fresh application if made in the future.

[75] Given my findings above it is unnecessary to make a determination in relation to the Respondent’s arguments concerning s.237(2)(d) at this time.

COMMISSIONER

Appearances:

Ms C. Trevascus and Mr K. Crank for the Applicant.
Mr C. Lentini of Mapien for the Respondent.

Hearing details:

2021,
Brisbane:
August 27

Printed by authority of the Commonwealth Government Printer

<PR733409>

 1   Attachment 6.

 2   [2016] FWCFB 8372.

 3   [2019] FWC 2571.