Finance Sector Union of Australia

[2016] FWC 2925

[2016] FWC 2925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Finance Sector Union of Australia
(B2016/275)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 13 MAY 2016

Application for majority support determination in respect of employees of Bananacoast Community Credit Union – determination not issued – application dismissed.

[1] On 9 February 2016, the Finance Sector Union of Australia (FSU) applied under s.236 of the Fair Work Act 2009 (Cth) (the Act) for a majority support determination in respect of employees of Bananacoast Community Credit Union (BCU).

[2] Following a conference on 3 March 2016, I issued a recommendation 1 that a survey of all employees whom the proposed enterprise agreement would cover be held. The FSU and BCU agreed on the wording of the survey question, which was:

‘Do you want to renegotiate a new Enterprise Agreement (EA) – with that EA document governing the terms and conditions of your employment with BCU?

If yes – as to what the new EA will contain will be negotiated by a group of “representatives” which will include BCU staff, BCU management and the Finance Sector Union of Australia. All staff will then be able to vote as to whether they wish to support and implement the new EA. A majority either for or against is all that is required within the vote.

If no – staff will remain on the existing BCU Staff Enterprise Agreement 2012 and will still continue to have access to the benefits and favourable conditions contained with that agreement.

Yes [ ] No [ ]’

[3] On 18 April 2016, BCU’s legal representative advised my chambers via email that:

‘At the time the voting closed, 4pm on Tuesday, 173 eligible bcu employees were entitled to vote. Executive staff and Directors are not included in that number, as they were not entitled to vote due to the current Enterprise Agreement excluding them from coverage.

The results are:

74 votes “yes” to negotiate a new enterprise agreement
27 votes “no” to keep the status quo
72 did not vote
173 total bcu staff.

At this stage there is not a majority of staff who wish to renegotiate an enterprise agreement. Without sufficient staff support to do so, bcu does not propose to negotiate a new enterprise agreement at this time.’

[4] The FSU did not contest the accuracy of the results, but nonetheless requested that the matter proceed to hearing.

[5] On 10 May 2016, I held a hearing. Mr Morrison appeared with Ms Budai and Mr Singh for the FSU. Ms Hogg, solicitor, appeared with Ms Lantry for the BCU.

[6] At the hearing, the FSU explained that it pressed its application based primarily on a ‘Briefing Statement’ 2 distributed to relevant employees by BCU’s Chief Executive Officer. It submitted that part of the wording of that statement could have discouraged employees from participating in the survey. This is because the statement indicated (inaccurately – though I do not believe it was deliberately misleading) that the matter would be determined based on a majority of those who voted, not a majority of the employees who would be covered by the proposed enterprise agreement. It thus misrepresented the significance of employees who do not vote at all. Therefore, the FSU submitted, employees may have chosen not to vote because they did not think their abstention would make any difference, and so the results may not truly reflect the view of all employees.

[7] I gave my decision on transcript at the conclusion of the hearing. This is an edited version of that decision.

[8] Section 237 of the Act relevantly provides:

‘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.

[…]’

[9] It is clear from s.237(2) of the Act that before the Fair Work Commission (the Commission) can make a majority support determination, it must be satisfied of all four subsections (a), (b), (c) and (d) – not just one or some of them.  Therefore, the issue I must first consider is whether s.237(2)(a) has been satisfied.

[10] When this matter was last before the Commission, there was an agreement about the way in which the survey would be conducted.  That was supported by my recommendation. 

[11] As far as I can tell, the ballot was conducted in accordance with the recommendation and the results are uncontested. While the majority of those who voted did indeed vote in support of bargaining for a new agreement, it is simply not the case that the majority of those who are employed and who would be covered by a new agreement voted in favour of that prospect. I am satisfied that is the correct way of interpreting the results of the survey. On the material before me, I cannot find or assume that some of the people who did not vote really wanted to bargain for a new enterprise agreement.  They were given an opportunity to vote for it and they did not. 

[12] I am not satisfied that a majority of the employees who are employed by BCU at this time and will be covered by the agreement want to bargain. Section 237(2)(a) is therefore not satisfied, and I do not need to turn my mind to the other factors in s.237(2). 

[13] While I think it was technically inaccurate, I do not think that there was anything untoward intended by the briefing statement. Conversely, it seems clear that what it said about how the decision would be made was designed to encourage employees to vote.

[14] If there were some compelling evidence that the employer had deliberately tried to prevent or strongly discourage employees from voting, that would cast doubt on the validity of the ballot. But in this case, I am not satisfied that that is what has happened at all.  If anything, it seems that the employer actually seemed to encourage the employees to vote.  Those who did not presumably made a decision not to vote for reasons we can only speculate about.

[15] It is also clear that the ballot was anonymous, and the 86 cards from last year signed by employees who wanted to bargain for a new agreement 3 are now quite out of date. Therefore, I could not be satisfied of the requirement in s.237(2)(a) based on them.

[16] On that basis, I decline to make a majority support determination and dismiss the application.

SENIOR DEPUTY PRESIDENT

Appearances:

I Morrison with A Budai and N Singh for the Finance Sector Union of Australia

L Hogg, solicitor, with S Lantry for Bananacoast Community Credit Union.

Hearing details:

Sydney.

2016.

May 10.

 1   PR577648.

 2   Exhibit FSU3.

 3   Exhibit FSU1.

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