Health Services Union v Life Without Barriers
[2012] FWA 6244
•23 JULY 2012
[2012] FWA 6244 |
|
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Health Services Union
v
Life Without Barriers
(B2012/447)
DEPUTY PRESIDENT LEARY | HOBART, 23 JULY 2012 |
Application for a majority support determination.
[1] This is an application pursuant to s.236 of the Fair Work Act, 2009 (the Act) by the Health Services Union, Tasmania No. 1 Branch (HSU) seeking a Majority Support Determination.
[2] The HSU argued that Life Without Barriers (the respondent) has not agreed to bargain with it in respect to an agreement to cover employees in Tasmania.
The Proposed Agreement:
[3] The relevant award has been the Tasmanian Disability Service Providers Award (the Tasmanian Award), now the Social, Community, Home Care and Disability Services Industry Award 2010 (the Modern Award).
[4] The HSU provided a copy of a proposed agreement which it said was in similar terms to the Tasmanian Disability Services Industry Multi-Employer Enterprise Agreement 2011 (the Multi-Employer Agreement) with classifications which are ‘essentially and basically transcribed’ from the Tasmanian Award. The HSU noted that the proposed agreement and the Multi-Employer agreement include an additional classification level of 4A.
The Legislation:
“S.236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA 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.
S.237 When FWA must make a majority support determination
Majority support determination
(1) FWA 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) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which FWA must be satisfied before making a majority support determination
(2) FWA must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by FWA; 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), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA 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.”
Majority of Employees want to bargain:
[5] The HSU presented a petition which had been signed by employees of the respondent engaged in disability services in Tasmania. The question asked on the petition was:
“We the undersigned employed by Life Without Barriers wish to bargain through our representative with our employer to have our wages and conditions contained in an enterprise agreement.”
[6] The respondent said that when determining whether employees wished to bargain or not the process should be by secret ballot run by the Australian Electoral Commission (AEC). The respondent provided no evidence nor did it allege that the petition process undertaken by the HSU was flawed in any way. It submitted only that a secret ballot was its preferred method.
[7] The respondent submitted that there had been much change in the sector and that the parties were not yet clear as to how the recent pay rises awarded by the Equal Remuneration Order will apply. It was agreed however that discussion about that issue would be subject to the bargaining process.
[8] Decisions considering whether a petition was an appropriate method of determination were referred to by the HSU. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Kinkaid Pty Ltd T/A Cadillac Printing [2009] FWA 1123 (Kincaid) 1 Senior Deputy President O’Callaghan said:
[9] “It is conceivable that there may be circumstances where a petition could not be relied upon as an appropriate device to determine majority support for bargaining. If, for instance, there was some evidence that the petition had been falsely derived or that the signatures had been achieved by duress, an alternative means of establishing employee views would need to be considered.”
[10] In The Australian Workers’ Union v Bluescope Steel Limited T/A Bluescope Lysaght [2010] FWA 874 2 Commissioner Harrison accepted an employee petition as being “an appropriate method to establish that a majority of employees wish to bargain....” He also said: “I have considered the decisions of the single members so referred. As I stated during these proceedings, each application for a determination stands on its own. There can be circumstances where for a variety of reasons a secret ballot is the appropriate course to ascertain the views of the employees or where a petition or other method could be found to be an appropriate method to gauge the employees’ wishes.”
[11] In another decision by Commissioner Harrison in Transport Workers’ Union of Australia v M.J.Rowles Pty Ltd [2012 FWA 955] 3, referred to by the respondent, he said: “...I expressed my reservations about the petition process and suggested a secret ballot would provide a clear expression of the employees’ wishes.”
[12] As noted by Commissioner Harrison each matter is considered on its own particular circumstances. As such it is inevitable that there will be a variety of outcomes.
[13] I am satisfied that the petition put to the employees in respect to the circumstances of this application was an appropriate method to establish that a majority of those employees wish to bargain with the respondent. The respondent provided a list of Tasmanian employees in the Disability Program which showed in total some 117 employees. FWA cross referenced the names on the petition with the respondent’s document and noted there were three names on the petition which did not show on the respondent’s document. Nonetheless some 71 disability support workers signed the petition.
[14] Accordingly I am of the view that the requirements of s.237(2)(a)(i) and (ii) have been met.
Employer has not agreed to bargain or initiate bargaining:
[15] The HSU submitted that the respondent had not agreed to bargain. The respondent had advised the HSU on a number of occasions that it did not wish to bargain and provided reasons for not doing so. The HSU submitted that correspondence, such as emails and verbal communication, made it clear that the respondent has not yet agreed to bargain.
[16] The HSU said that a Log of Claims had been served on the respondent on 6 October, 2011 and correspondence attached had sought the respondent to “disseminate representational notices to employees.”
[17] By letter dated 8 November, 2011 the respondent advised that “as we have not agreed to bargain, or initiated bargaining, we have no obligation to provide our employees with a Notice at this time…”
[18] In an email to the HSU dated 15 November, 2011 the respondent advised that “Life Without Barriers remains convinced that now is not the time to commence bargaining, despite wishing to do so in the future.”
[19] I am satisfied that the requirements of s.237(2)(b) have been satisfied and the respondent has not yet agreed to bargain.
Employees to be covered are fairly chosen:
[20] The HSU submitted that the employees it seeks to be covered by the proposed agreement were fairly chosen as they are the employees employed in the classifications which are ‘essentially and basically transcribed’ from the relevant Tasmanian award. The classifications reflect the classifications in the current Tasmanian award and the Multi-Employer Agreement including the additional level 4A classification. The application does not seek to extend employee coverage beyond those already covered by the Tasmanian Award and excludes the upper levels of management. Further the HSU said the employees are geographically and operationally distinct. The application does not seek to cover co-ordinators and care co-ordinators who are not party to the Tasmanian award.
[21] The respondent argued that the employees were not fairly chosen as Out of Home care services employees and support workers are not subject to the application and the current application is not broad enough to cover all of its employees. In some cases, the respondent argued, the HSU is not eligible to cover some of those employees, further it was the submission of the respondent that it wished to bargain nationally rather than just with the HSU on behalf of Tasmanian disability support employees.
[22] There was no submission by the respondent that the employees who signed the petition and wish to enter into bargaining were not fairly chosen. They are all disability support workers employed in Tasmania. The respondent argued as to the scope of any agreement and submitted that it wished to negotiate nationally with a broader range of employees, this does not mean that for the purpose of this application the employees have not been fairly chosen. The respondent agreed that the scope of the employees to eventually be covered by any agreement and whether it be a national or state based agreements are all matters that would form part of the bargaining process.
[23] In Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd [2009] FWAFB 668 4 the Full Bench said: “Where the bargaining raises a dispute about the scope of the agreement or agreements to be made and the classes or groups of employees to be covered by the proposed enterprise agreement or agreements, Fair Work Australia has power to make scope orders to determine which classes or groups of employees are to be covered. The scheme of the Act does not envisage a role for a majority support determination in determining the scope of bargaining or the scope of an agreement.”
[24] The Explanatory Memorandum notes that: “If bargaining has commenced in relation to a proposed agreement, the appropriate tool to resolve issues surrounding coverage are scope orders (or bargaining orders) and not majority support determinations.”
[25] S.238 of the Act provides for the making of scope orders where disagreement exists as to which employees will be covered by any proposed agreement.
[26] In MSS Security v Liquor Hospitality and Miscellaneous Union [2010] FWAFB 6519 5 the Full Bench said: “In Stuartholme School v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (Stuartholme) a Full Bench of Fair Work Australia held that the scope of a proposed agreement is a matter than can itself be the subject of bargaining for the agreement. We respectfully endorse the reasoning and conclusion of the Full Bench in that regard.”
[27] I am satisfied that the employees who wish to bargain with the respondent for an agreement and be represented by the HSU have been fairly chosen; accordingly s.236(c) has been satisfied.
Reasonable in all the circumstances to make a determination:
[28] The HSU submitted that it is reasonable to make the determination notwithstanding the argument by the employer in relation to the application or impact of the pay rises granted by the equal remuneration order and issues about funding for any pay rises. These are matters for discussion during bargaining.
[29] It was argued by the HSU that it is not the purpose of a majority support determination to transgress into areas which are effectively the role of bargaining. Reference was made to a decision of Deputy President McCarthy in Construction, Forestry, Mining and Energy Union of Workers v CBI Constructors Pty Ltd [2010] FWA 2164 6 where he said: ”It is not for FWA to make any judgements at all about the appropriateness or otherwise of the terms and conditions applying or of any sought particularly at this juncture. FWA’s role is limited to ascertaining whether a majority wanted to bargain for an enterprise agreement that would cover them.”
[30] The HSU also referred to the decision in Kincaid where it was said: “The majority support determination does not guarantee an agreed outcome, but it does indicate that a logical next step in the process involves the issuing of notices of representational rights and the engagement in the good faith bargaining process.”
[31] I am satisfied that in all the circumstances it is appropriate to make the determination sought.
[32] The parties to the determination will be the Health Services Union Tasmania Number 1 Branch on behalf of disability support workers in Tasmania and Life Without Barriers.
DEPUTY PRESIDENT
1 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Kinkaid Pty Ltd T/A Cadillac printing [2009] FWA 1123
2 Australian Workers’ Union v Bluescope Steel Limited T/A Bluescope Lysaght [2010] FWA 874
3 Transport Workers’ Union of Australia v M.J.Rowles Pty Ltd [2012 FWA 955
4 Liquor, Hospitality and Miscellaneous Union v Coca-Cola (Aust) Pty Ltd [2009] FWAFB 668
5 MSS Security v Liquor Hospitality and Miscellaneous Union [2010] FWAFB 6519
6 Construction, Forestry, Mining and Energy Union of Workers v CBI Constructors Pty Ltd [2010] FWA 2164
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