Health Services Union v Diagnosticare Pty Ltd T/A Diagnosticare

[2022] FWC 2365

[2022] FWC 2365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Health Services Union
v

Diagnosticare Pty Ltd T/A Diagnosticare

(B2022/639)

COMMISSIONER O’NEILL MELBOURNE, 7 SEPTEMBER 2022

Application for a majority support determination

1. The Health Services Union (VAHPA) has applied for a majority support determination pursuant to section 236 of the Fair Work Act 2009 (Cth) (Act). It relates to a proposed enterprise agreement covering the Respondent’s health professional employees covered by the Health Professionals and Support Services Award 2020 (the Award) who are employed in the List of Common Health Professionals in Schedule B of the Award, namely Medical Imaging Technologists/Radiographers and Sonographers (the relevant employees).

1. The Respondent objects to the application on the basis that it does not believe that a majority of employees want to bargain, and secondly that the group of employees was not fairly chosen.

1. Pursuant to directions, the VAHPA provided the Commission on a confidential basis, the names of 13 employees who between March and May 2022 completed a petition indicating they wanted to bargain for an enterprise agreement. The Respondent provided the names of the relevant employees as of 11 July 2022. A comparison of the two lists revealed that 10 of the 13 petitioners were employed by the Respondent at that date, out of a total of 25 employees who would be covered by the proposed agreement.

1. Following a mention on 18 July 2022, the parties filed further submissions. In its submissions, the VAHPA acknowledges that the original petition does not evidence that a majority of employees wish to bargain as of 11 July. However, it submits that the Commission can and should undertake an alternative method to determine whether a majority of employees want to bargain. It wants the Commission to direct the holding of a further petition of relevant employees to be conducted by an independent third-party ballot agent paid for by the VAHPA. It proposes that the ballot agent provide the results to the Commission only, to determine whether a majority of employees want to bargain.

1. This decision deals with the question of whether the Commission should exercise the discretion in s.237(3) of the Act to make the order sought by the VAHPA. For the reasons set out below, I have decided not to make such an order.

Statutory Context

1. Division 8 of Part 2-4 of the Act is titled “FWC’s general role in facilitating bargaining.” The subject of Subdivision C is “Majority support determinations and scope orders.” Section 236(1) provides that a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the Commission for determination “that a majority of the employees who will be covered by the agreement want to bargain with the employer …”

1. Section 236(2)(a)-(b) sets out matters “[t]he application must specify,” being the employer, or employers, that will be covered by the agreement and the employees who will be covered by the agreement.

1. Section 237 provides:

“When the FWC must make a 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.”

VAHPA’s submissions

1. The VAHPA submits that it had understood the Respondent to have 17 relevant employees and that the 13 signatories to the petition it had circulated represented a majority.  However, following the Commission’s comparison of the names of the signatories against the list of employees provided by the Respondent, it acknowledged that some petitioners were likely no longer employed and that there are 25 relevant employees. It submits that, but for the turnover of employees, 13 signatories constituted a small majority (13/25) of relevant employees indicating that they want to bargain.

1. The VAHPA maintains that there is sufficient material to reasonably support a conclusion that there is, or may be, a majority of employees who want to bargain. Given there has been significant employee turnover, the Applicant submits that it is reasonable for the Commission to conclude that there may be a majority of employees who want to bargain, given that it appears a majority of employees wished to do so when the petition was circulated. It submits that in the circumstances, the material demonstrates that there is a reasonable hypothesis there is majority support for bargaining, and its request for a further petition is not a speculative investigation.

1. The VAHPA acknowledges that there must be a basis for the Commission to exercise powers under s.237(3), because “the ordering of the ballot is a substantive act that will impose obligations on the parties.”[1] However, it submits that as the VAHPA would bear the cost of the ballot, the obligations on the Respondent are minimal. Further, as the Respondent has already provided a list of the names of the relevant employees, all that would be required is for the Respondent to provide a valid email address for the 25 employees.

1. The VAHPA submitted that the present case can be distinguished from the application dealt with by Deputy President Millhouse in Independent Education Union of Australia v Bialik College Limited,[2] as this does not involve a ballot by the AEC and the ballot to be conducted at VAHPA’s expense would require very little effort and no expense to the Respondent.

1. In this matter, the Applicant submits that by the Commission making orders for an independent ballot to be conducted, the objects of Part 2-4 of the Act would most reasonably and fairly be met, as this would “provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits.”[3]

Respondent’s submissions

1. The Respondent objects to the Commission ordering a petition of relevant employees as requested by the VAHPA. In addition to written submissions, it provided a witness statement of Dr Stephen Fasulakis, the sole director of the Respondent. Dr Fasulakis’ statement included that whilst aware of the petition the VAHPA was circulating, the Respondent took no steps to discourage employees from discussing or participating in the petition, and that he does not consider that any employees would have trepidation in signing the petition if they wished to do so.

1. Whilst it acknowledges that the Commission may work out whether a majority of employees want to bargain using any method it considers appropriate, the Respondent contends that there must be a basis for doing so given the ordering of a revised petition is a substantive act that will impose obligations on the parties. It follows that there must be material that reasonably supports a conclusion that there is, or may be, a majority of employees who want to bargain.

1. The Respondent submits that the VAHPA has not prima facie established that there is, or may be, a majority of employees who wish to bargain, and that the request is purely a ‘fishing expedition’ or speculative investigation and not something for which the Commission’s power under s.237(3) was intended.

1. Further, the Respondent submits there is no proper basis to support the exercise of the Commission’s discretion because:

·   there is no uncertainty as to whether the majority of staff wish to bargain. The material shows that 10 out of 25 relevant employees wish to bargain, which is well short of a majority. There is no evidence that the petition was not simple or easy to understand or that the purpose was unclear. Further, staff could freely choose to sign the petition without any hinderance from the Respondent;

·   there is no procedural defect, informational inaccuracy or misleading or deceptive processes which have generally existed in the very limited cases such as Transport Workers’ Union of Australia v MWAV Pty Ltd T/A Man With A Van[4] in which the Commission has issued a ballot or petition of employees;

·   in this case, where the material demonstrates that the majority of staff do not wish to bargain, the Commission should not intervene in the manner sought; there is no cogent evidence that provides a reasonable basis for concluding that the majority of employees want to bargain;

·   there is no factual or legal basis to justify the Commission ordering a further petition or ballot be undertaken to determine whether the majority of employees wish to bargain, the VAHPA’s claim is purely speculative;

·   there is no barrier to the VAHPA conducting another petition by whatever means it wishes, and the Order sought is unnecessary; and

·   a ballot conducted by a third party in relation to the Respondent’s employees in these circumstances would be inappropriate, evasive and distracting in the workplace, and would involve the unnecessary disclosure of the identity and contact details of the Respondent’s employees to a third party to which they have not consented. This will likely have implications for the Respondent’s operations and general workplace environment, which can result in both practical and financial consequences. (I have presumed that evasive was intended to have read invasive).

Consideration

1. The parties acknowledge that the Commission has the power to order a ballot of the relevant employees of the Respondent to ascertain whether a majority want to bargain for an enterprise agreement. Further, I accept the VAHPA’s submission that the fact that the original petition did not identify a majority of employees wanting to bargain is not determinative of the matter.

1. As the Full Bench in Inpex Australia Pty Ltd v The Australian Workers’ Union[5] found, a mere application or bald assertion that majority support exists may not be sufficient to provide a jurisdictional basis to make orders to ascertain whether majority support for bargaining exists, and that the material before the Commission should bear out a reasonable foundation for such a hypothesis.  The Bench said:

“We agree that a mere application under s 236 of the FW Act, or a bald assertion in an application that majority support exists with no proffered justification, may not be sufficient to provide the Commission with a jurisdictional basis to make orders to ascertain whether majority support for bargaining exists. There is force in the proposition that an application under s 236 is for a determination that majority support exists, not a speculative investigation into whether it exists. The provision appears to us to operate upon a premise that the bargaining representative applying for a determination has a reasonable hypothesis that there is majority support for bargaining. The materials before the Commission should bear out a reasonable foundation for such a hypothesis.”[6]

1. In this case, at the time it lodged the application the VAHPA believed that the Respondent had 17 employees, of whom 13 had signed a petition indicating support for bargaining.  Accordingly, at that time the Union believed that a majority of relevant employees had, in fact, signalled that they wished to bargain.  Had the VAHPA applied for a majority support determination at that time, I would have been satisfied that majority support existed whether there were 17 or 25 relevant employees.

1. However, the situation as of 11 July is that 3 of the petition signatories are no longer employed by the Respondent, leaving 10 out of 25 relevant employees indicating support for bargaining.  There is no material that indicates even a belief based, for example, on discussions with employees that a majority of them support bargaining, or alternatively that there has been significant employee turnover (other than the 3 who are no longer employed) such that there are current employees who were not employed at the time the original petition was circulated and therefore did not have an opportunity to express a view.  Such material could well provide a sufficient foundation for a hypothesis that there may be a majority of relevant employees who want to bargain and may have justified the exercise of my discretion to make the order sought, especially as the impost on the Respondent would, in my view, be minimal.  I note that whilst the Respondent submitted that a ballot conducted by a third party would be inappropriate, invasive and distracting, and likely result in both practical and financial consequences, Dr Fasulakis did not identify any such potential consequences in his witness statement, and the submissions did not elaborate on these contentions.

1. Further, as the Full Bench in Inpex discussed at [28], whilst s.237(3) provides a broad discretion to use any method considered appropriate to ascertain whether a majority of employees want to bargain, in considering any particular method – in this case, a revised petition conducted by an independent third party – the alternatives must be considered. The VAHPA has provided no explanation for why it contends that the method it originally used, an online petition, was not appropriate in light of the outcome of the comparison.

1. In the circumstances, I am not satisfied that there is a jurisdictional foundation for the exercise of a discretion to order a ballot as sought by the VAHPA. It remains open for the VAHPA to conduct a further online ballot or undertake some other process to establish a basis for such an order.

1. On the material before the Commission, I am not satisfied that the requirements of s.237 have been satisfied, and I therefore decline to make a majority support determination.

COMMISSIONER

Final written submissions:

Applicant, 28 July 2022
Respondent, 4 August 2022

<PR745530>

[1] [2022] FWC 1755 at [36].

[2] Ibid.

[3] s.171(a) of the Act.

[4] [2018] FWC 6525.

[5] [2020] FWCFB 5321.

[6] Ibid at [11].

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