Australian Workers' Union, The v Aco Pty Ltd T/A Aco

[2021] FWC 2526

[2021] FWC 2526

FAIR WORK COMMISSION

DECISION

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

Australian Workers' Union, The
v
ACO Pty Ltd T/A ACO
(B2021/253)

COMMISSIONER RIORDAN SYDNEY, 5 MAY 2021

Application for majority support determination.

Introduction

[1] On 12 April 2021, the Australian Workers’ Union – NSW Branch (Applicant) lodged an Application under s.236 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (Commission) to issue a Majority Support Determination (MSD). The Application is opposed by ACO Pty Ltd T/A ACO (Respondent).

[2] The Application contained a confidential attachment which contained a petition of employees providing their first name, surname, a contact number, a signature and the date on which the signature was provided. The top of the petition reads as follows:

“Majority support petition to commence bargaining for an enterprise agreement

We, the undersigned, are wage employees of ACO Pty Ltd working at 134-140 Old Bathurst Road, Emu Plains NSW 2750.

We, the ACO waged employees declare that we wish to commence bargaining immediately with ACO Pty Ltd in relation to a proposed enterprise agreement (agreement). We nominate The Australian Workers' Union to act as our bargaining representative in this matter.”

[3] Below the table on each page was a notice to employees which stated as follows:

“NOTE: The AWU will not provide this document to ACO Pty Ltd. The AWU may provide this form to the Fair Work Commission on a confidential basis.”

[4] Having received the petition of employees from the Applicant, I convened a conference on 21 April 2021. The Applicant was represented by Mr J Shaw, Industrial Officer whilst the Respondent was represented by Ms K Thomson, Solicitor, of Australian Business Lawyers and Advisors. It was agreed at this Conference that the Respondent would provide a list of relevant employees who would be covered by the proposed agreement to the Commission.

[5] Following the process of cross-referencing the list of names provided by the Respondent with the petition provided by the Applicant, the parties were advised that a majority of employees (57.5%) had signed the petition to commence bargaining for an enterprise agreement. The Respondent advised in response that it wished to press its objection to a MSD being issued by the Commission. A timetable for the filing and service of materials was proposed by consent of the parties, with the matter to be determined on the papers.

Relevant Legislation

[6] The legislation which is relevant in determining the matter is set out 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 the FWC 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.”

“237 When the FWC must make a majority support determination

Majority support determination

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

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

(2) The FWC must be satisfied that:

(a) a majority of the employees:

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

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

Respondent’s submissions

[7] The Respondent conceded that the Applicant had satisfied s.237(2)(b) and s237(2)(c) of the Act. However, the Respondent put that the Commission could not be satisfied with respect to s.237(2)(a) or s.237(2)(d) of the Act.

Whether a majority of employees wish to commence bargaining (s.237(2)(a))

[8] The Responded submitted that the Commission could not be satisfied that, in the present circumstances, a majority of employees wish to commence bargaining for an enterprise agreement. The Respondent claimed that:

“(a) Only a very small majority of the relevant employees signed the petition (57.5%);

(b) There was a delay of about a month between the overwhelming majority of the signatures being gathered by the Applicant and its subsequent request to the Respondent to commence bargaining;

(c) This was the first occasion on which the Applicant had requested the commencement of bargaining (i.e. the Applicant had gathered the signatures before even approaching the Respondent);

(d) The Respondent replied promptly (within a week) to decline the Applicant’s request;

(e) There was a delay of about a month before the Applicant proceeded to file its Form F30; and

(f) In the period since the signatures were obtained, the Respondent has advised the workforce they will be receiving a 2.5% pay increase (when previously this had appeared unlikely), which was met with a positive response.” 1

[9] The Respondent submitted that only a very small number of employees would need to hold a different view from the one they held at the time the petition was signed and that the delay and ‘intervening events’ may have had an impact on employee sentiment.

Is it reasonable in all the circumstances to make the determination? (s.237(2)(d))

[10] With regard to s.237(2)(d) of the Act, the Respondent submitted that:

“(a) Absent any cogent reason for the delay (such as “where employees are located in disparate geographical locations or where there are other substantive logistical issues”, which is not the case here), the application should have been lodged “promptly” with the Commission soon after the petitioning occurred, in order to ensure it has a sense of “contemporaneousness about it”;

(b) The delay has had the effect of “calling the petition into question”, which should militate against the making of the Determination, especially in circumstances where the majority was so small in the first place; and

(c) The commencement of bargaining will represent a significant imposition on the Respondent which the Commission should only impose in circumstances where it can be demonstrated a clear majority of employees genuinely wish to commence bargaining.” 2

[11] The Respondent relied on the decision of Commissioner McKenna in Australian Workers’ Union v Construction Sciences Staff Pty Ltd T/A Construction Sciences [2020] FWC 5428, where the Commissioner said:

“As to the final matter arising in s.237(2) of the Act, namely, whether it is reasonable in all the circumstances to make the determination ((s.237(2)(d)), I am bound to note I have certain reservations on the question of the applicant’s delay in lodging the application. That is, I considered as being persuasive the submissions advanced by the respondent concerning the applicant’s delay in lodging the application calling the petition into question and I am concerned also about what might be regarded as the buttressing of the application by the post lodgement provision of additional signatures. Absent any other relevant considerations (such as where employees are located in disparate geographical locations or where there are other substantive logistical issues), I would think that the petitioning might reasonably be expected to be conducted over a compressed period of time and that the application thereafter be lodged promptly with the Commission - so that the petition has contemporaneousness about it. However, in the end at the time of the hearing, both parties had corrected/finessed their respective lists such that those respective lists were a contemporaneous, using my earlier descriptor, “snapshot” as to majority support considered in the context of the-then relevant employee numbers. Were it not for the particular way matters unfolded in this case, I would have been inclined to conclude that the applicant’s delay militated against making the determination, when considered in terms of reasonableness in all the circumstances” 3

[12] The Respondent concluded that for these reasons, the Commission could not be satisfied of the matters set out in s.237(2) of the Act and is not required to make a determination pursuant to s.237(1). 4

Applicant’s submissions

[13] The Applicant filed written submissions and a statement from Ms Elizabeth McDonald, an Organiser of the Applicant.

[14] The Applicant submitted that the Application had been brought in circumstances when the Union sought to initiate bargaining despite resistance from the Respondent. The Applicant drew the Commission’s attention to the case of ResMed Limited v Automotive, Food, Metals, Engineering, Printing and Kindered Union known as the Australian Manufacturing Workers Union (AMWU)[2014] FWCFB 2418 where the Full Bench stated that:

“The primary purpose of sections.236 and 237 is therefore to provide a bargaining representative with a means by which an employer which refuses to bargain may be required to bargain (by opening the door to the operation of the good faith bargaining requirements in s.228 or by enabling bargaining orders to be applied for and made under ss.229- 232).

[15] Further, the Applicant relied on the statement of the Federal Court in JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 where the Full Court stated that the purpose of ss. 226 and 227 of the Act as:

“a means by which a party seeking to bring an employer to the bargaining table may achieve that result without taking industrial action.” 5

[16] The Applicant submitted that 57.5% was not “a very small majority of relevant employees” as stated by the Respondent. 6 The Applicant submitted that, in any event, the Application met the criteria in s.237(2) as there was a clear majority of employees who wished to bargain.

Delay in filing the Application.

[17] The Applicant submitted that the reliance of the Respondent on the decision of Commissioner McKenna in Australian Workers’ Union v Construction Sciences Staff Pty Ltd T/A Construction Sciences [2020] FWC 5428 should be seen in the context that the AWU was ultimately successful in obtaining an MSD in the matter. 7

[18] Further, the Applicant submitted that the Respondent had produced no evidence that any employee had changed their mind. The Applicant submitted that whilst the Respondent had responded to the Applicant’s request to bargain within a week, they denied that the response was an unequivocal refusal to bargain. The Applicant referred to the Statement of Ms McDonald, where she stated:

“I did receive a response from ACO on 22 March 2021, however it did not give an answer to our request. The letter stated that ACO was “not convinced ” about bargaining with us. Further the letter invited me to meet with them. I took this to mean that ACO were open to persuasion and may be convinced if we met with them.” 8

[19] The Applicant noted that a meeting occurred on 30 March 2021 and stated that the request to bargain was under consideration at that stage. The Applicant considered that a final response had been received on 7 April 2021. The Applicant stated that between 7 April 2021 and 12 April 2021, Ms McDonald was on leave due to the death of a family member. 9

[20] In any event, the Applicant submitted that there is a need for direct evidence to contradict petitions signed by a majority of relevant employees. To this end, the Applicant relied on the decision of Commissioner Gregory in Transport Workers Union v MWAV Pty Ltd TA Man With a Van[2018] FWC 6525 where the Commissioner said:

“[53] In summary, I have had particular regard to the following circumstances in coming to a decision in this matter. Firstly, I am satisfied that the petition that has been provided to the Commission provides, prima facie, a clear and unambiguous indication of the views at the time of the majority of the relevant employees at MWAV, based on the comparison carried out by the Commission with the full list of employees provided to it by MWAV.

[54] Secondly, despite the submissions made by MWAV about the possibility of coercion or duress being used to get employees to sign the petition there is absolutely no evidence before the Commission in these proceedings to suggest that this occurred. In addition, despite the submissions made about the possibility of the petition being signed by individuals who were not actually employees of MWAV when it was left for a period of time in Mr Halliburton’s unlocked car, there is again absolutely no evidence to suggest this occurred. This is not to imply any criticism of MWAV for raising these potential possibilities. However, I am not satisfied that in the absence of any evidence about such matters that the Commission is required to ‘chase every rabbit down every burrow’ in order to satisfy itself, and to disregard what otherwise appears from the petition to be an unambiguous indication of the views of a clear majority of the employees.”

[21] The Applicant stated that whilst no evidence regarding employees changing their mind had been provided by the Respondent, Ms McDonald provided evidence that the members were suspicious of the pay offer made on the day this Application was lodged and wished to press ahead with bargaining. 10

Financial position of the Respondent

[22] Ms McDonald confirmed that she was willing to consider the financial circumstances of the Company, based on the provision of appropriate financial documentation but the Applicant submitted that presently there is no financial impediment for the Respondent to commence bargaining.  11

[23] For these reasons, the Applicant submitted there were no reasons for the Commission to not make the MSD.

Consideration

[24] I have taken into account all of the submissions and the written evidence that has been provided by the parties.

[25] I have taken into account the Collins Dictionary’s definition of the term “majority”, which states:

“the majority of people or things in a group is more than half of them.”

Determination

[26] Having viewed the confidential petition supplied by the Applicant and conclusively compared it to the list of employees provided by the by the Respondent, I am satisfied at first that a majority of employees employed by the Respondent on 12 April 2021, who would be covered by a negotiated enterprise agreement, want to bargain.

[27] I note that the Act does not contain an adjective associated with the term “majority” in section 237 of the Act. There is no mention or consideration of a “small majority” or a “large majority”, just simply a majority. Adopting the definition of “majority” above, the Applicant simply needed the support of 50% of the relevant employees, plus one, to satisfy section 237(2)(a) of the Act.

[28] I am satisfied that the Respondent has not yet agreed to bargain.

[29] I am satisfied that the group of employees have been fairly chosen.

[30] I am satisfied that the timeframe, which the Application was made, following the signing of the petition by employees, was not sufficiently lodged in order to bring into doubt the intentions of the employees. I note that the Applicant has indicated its preparedness to take into account the financial position of the Respondent during the bargaining process. Such a preparedness provides the Respondent an opportunity to discuss this issue with the bargaining representatives.

Conclusion

[31] I am satisfied that it is reasonable, taking into account all of the circumstances, to make the majority support determination.

[32] I am satisfied that the requirements contained in section 237(2) of the Act have been met.

[33] Pursuant to section 237(4) of the Act, this majority support determination comes into operation on 5 May 2021. A Determination to the effect is contained in PR729250.

COMMISSIONER

Appearances:

Mr J Shaw of the Australian Workers’ Union on behalf of the Applicant

Ms K Thomson of Australian Business Lawyers and Advisors on behalf of the Respondent

Final written submissions:

Respondent: 23 April 2021

Applicant: 28 April 2021

Printed by authority of the Commonwealth Government Printer

<PR729249>

 1   Respondent’s written submissions dated 23 April 2021, at [2.3].

 2   Respondent’s written submissions dated 23 April 2021, at [2.3].

 3   Australian Workers’ Union v Construction Sciences Staff Pty Ltd T/A Construction Sciences [2020] FWC 5428, at [106].

 4   Respondent’s written submissions dated 23 April 2021, at [2.7].

 5   JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53, at [28].

 6   Applicant’s written submissions filed 28 April 2021, at [9]

 7   Applicant’s written submissions filed 28 April 2021, at [10]

 8 Statement of Elizabeth McDonald dated 28 April 2021, at [7].

 9 Applicant’s written submissions filed 28 April 2021, at [16]; Statement of Elizabeth McDonald dated 28 April 2021, at [13].

 10 Applicant’s written submissions filed 28 April 2021, at [19]-[20]; Statement of Elizabeth McDonald dated 28 April 2021, at [14].

 11 Applicant’s written submissions filed 28 April 2021, at [21]-[22]; Statement of Elizabeth McDonald dated 28 April 2021, at [15].