Liquor, Hospitality and Miscellaneous Union v MSS Security Pty Ltd
[2010] FWA 314
•20 JANUARY 2010
[2010] FWA 314 |
|
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
v
MSS Security Pty Ltd
(B2009/11195)
COMMISSIONER CLOGHAN | PERTH, 20 JANUARY 2010 |
Application for a majority support determination
[1] On 10 December 2009, the Liquor, Hospital and Miscellaneous Union (“the LHMU”) made application for a majority support determination under s.236 of the Fair Work Act 2009 (“the Act”).
[2] The employer in the application is MSS Security Pty Ltd (“the Employer”).
[3] The LHMU requested that the matter be heard as soon as possible but not between 24 December 2009 and 4 January 2010.
[4] The application was heard in Perth on 13 January 2010.
[5] The application for a majority support determination was made to Fair Work Australia (FWA) following a series of exchanges between the LHMU and the Employer. For the purposes of this application, they are set out below in date order:
• 31 July 2009
LHMU advises the Employer that it has consulted with its employees and it is their opinion that they “favour a collective state-wide Agreement” 1. The LHMU propose meetings commencing on 13 August 2009.
• 3 August 2009
The Employer responds seeking clarification, “on how you have formed your opinion that employees favour a collective state-wide agreement. In addition, what evidence do you have to demonstrate consultation with employees has occurred?” 2.
The Employer goes on to say that they are currently reviewing “the legislation and the modern award provision” and it would be “premature to hold discussions” 3.
• 13 October 2009
The LHMU sends further correspondence to the Employer which essentially covers the same material as the 31 July 2009 correspondence and clarifies that the employees to be covered by the proposed agreement are those employed providing services by MSS Security to the Public Transport Authority and proposing a new schedule of meetings on 29 October and 12 November 2009.
• 26 October 2009
The Employer responds to the 13 October 2009 LHMU correspondence with a similar letter of 3 August 2009 seeking how the Union formed the opinion that the majority of employees “favour a collective agreement” 4 and again putting the view that it would be “premature to hold discussions”5.
• Late October – early November 2009
Sometime between 26 October and early November 2009, Mr Kevin Sneddon held a conversation with Ms Jody Weston, HR/IR Manager, MSS Security. Briefly put, he explained to Ms Weston that the LHMU have a high density of union members (94%) at that particular worksite and the Union had been advised, through delegates, that the “majority wanted to bargain” 6.
Mr Sneddon is no longer employed by the LHMU and this evidence was tendered by way of a Statutory Declaration signed on 8 January 2010 7.
Ms Weston did not contest or raise the content of the Statutory Declaration in her evidence, and accordingly, I accept that the exchange did take place in the manner described by Mr Sneddon.
• 2 November 2009
A discussion took place between Ms Weston and Ms Carolyn Smith, Assistant Secretary, LHMU concerning, what can only be described at this stage, as a “stalemate” between the parties: the LHMU asserting that the majority of employees wishing to bargain for a collective agreement and the Employer seeking “evidence” to confirm the Union’s assertion.
[6] I now turn to the relevant provisions of the Act which are as follows:
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.
[7] As at early November 2009, the state of affairs between the two parties necessitated the LHMU to demonstrate to the Employer the existence of facts, beyond an assertion, by Union delegates (following consultation with employees) that a majority of employees were seeking to bargain collectively.
[8] On 2 November 2009, the LHMU prepared, what has been referred to as “pledge cards”, for the purpose of demonstrating to the employer that a majority of employees wish to bargain collectively 8.
[9] For the purposes of this decision, the relevant aspect of the “pledge cards” is to demonstrate that employees are seeking a “Union Collective Agreement”.
[10] While the Employer challenges the process to gain signatures to the “pledge card”, it did not make comment or contest the content of the “pledge card”.
[11] On 20 November 2009, Ms Smith telephoned Ms Weston and advised that the LHMU had approximately 80 signed pledge cards, which she believed demonstrated majority support for a collective agreement.
[12] Ms Weston sought to see the “pledge cards”. Ms Smith resisted this request on the basis that the employees felt intimidated by the Employer, and had signed them on the basis that they would not be shown to “MSS Management” 9.
[13] As Ms Weston was proceeding on annual leave, Ms Weston suggested to Ms Smith that she write to Mr Ian Patrick, MSS Security General Manager; Ms Smith did so on 27 November 2009 outlining that the LHMU held 80 “pledge cards” and reiterating their belief that the majority of employees wanted a collective agreement. Ms Smith sought a meeting with Mr Patrick prior to 1 December 2009.
[14] While I have doubt as to its relevance, it was raised in evidence, and it is a fact, that LHMU application (B2009/11042) was received by FWA on 13 November 2009 in identical terms to this application (except the name of the contact person). Further, the LHMU lodged a Notice of Discontinuance to application B2009/11042 on 30 November 2009.
[15] From the information and evidence provided to me, the only subsequent engagement between the parties is the current application to FWA on 10 December 2009 and an email from Ms Sophie Holt, Industrial Officer, LHMU to Mr Patrick dated 21 December 2009 advising that the Union had “well over 100 pledge cards in support of bargaining” and preferring “to resolve this matter” rather than formal FWA proceedings 10.
ISSUES
[16] In making a determination, FWA must be satisfied of a number of elements, the first being that:
s.237(2) (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”.
[17] In the first instance, the LHMU asserted to the Employer that, “having consulted with the employees employed by you in providing services to the Public Transport Authority in Western Australia, it is our opinion that they favour a collective agreement” 11.
[18] Quite rightly, the Employer, in response to the correspondence, sought demonstrable “evidence” that consultation had occurred to ensure that the employees wanted collective bargaining.
[19] In response to the request for demonstrable “evidence”, the Applicant, as I have already stated, constructed a “pledge card”.
[20] Between 2 November and 7 December 2009, the Applicant, through meetings both collectively and individually with employees, obtained 114 “pledge cards” which, in the Applicant’s submission, represented between 70 and 80 per cent majority support for a collective agreement.
[21] The LHMU submitted that:
“… our sources indicate that there are approximately 140 employees who will be covered by the agreement and this would be an 81 per cent majority. At the very most, the applicant believes that the respondent employed no more than 160 employees at the time of obtaining the pledge cards, which would be a 71 per cent majority” 12.
[22] It is important to note, in the words of the Applicant, “we cannot provide Fair Work Australia with the exact number of employees in order to prove the majority” 13 (my emphasis).
[23] This is an important issue in my decision and in considering the request for a determination.
[24] At the conclusion of the hearing, I requested the Employer to provide the names of the employees covered by the proposed agreement on:
• 10 December 2009 (date application received by FWA); and
• 13 January 2010 (date of hearing of application by FWA).
[25] The names were provided by the Employer to FWA on 15 January 2010.
[26] The number of employees on each list is as follows:
• 10 December 2009 – 196
• 13 January 2010 – 185
[27] The Applicant did indeed provide FWA with 114 pledge cards 14 which can be categorised as follows:
- 84 names which appear on both the 10 December 2009 and 13 January 2010 lists;
- five (5) duplicated (x2) pledge cards in which the names appear on both the 10 December 2009 and 13 January 2010 lists;
- one (1) duplicated (x3) pledge cards in which the name appears on both the 10 December 2009 and 13 January 2010 lists;
- one (1) pledge card which, as far as I can understand, has the same name but different “other details”, whose name appears on both the 10 December 2009 and 13 January 2010 lists;
- three (3) pledge cards with no name but other details which, obviously cannot appear on either the list;
- four (4) pledge cards in which the names do not appear on the 10 December 2009 list but do appear on the 13 January 2010 list; and
- eight (8) names which do not appear on either list provided by the Employer.
[28] The Act requires the Tribunal to be satisfied that a majority of the employees want to bargain. To determine a majority requires, in the first instance, the number of employees presently employed pursuant to the proposed agreement.
[29] My decision has been made difficult because during the hearing, it was stated by the Employer’s representative, on instructions, that as of 12 January 2010, the total number of employees was approximately 177 and during the period from 2 November to 7 December 2009, there were approximately 187 employees; these numbers are at odds with those provided after the hearing concluded.
[30] For the Applicant, and for the Tribunal, to ensure that a “majority” is achieved, a threshold number has to be achieved. I have based that threshold figure on the number of employees provided to me by the Employer – I do so with some reservation, but it ensures the benchmark majority figures is at its maximum, and a greater figure cannot apply.
[31] The Employer, in cross-examination, stated that it would commence negotiations if there is evidence of majority support 15 and defined majority support as “50 plus one”16 -- reference to “50” is reference to 50 per cent of employees presently employed and to be covered by the proposed agreement.
[32] What then is 50 per cent plus one?
[33] For 10 December 2009, the threshold majority support number is 99 employees.
[34] For 13 January 2010, the threshold majority support number is 93 or 94.
[35] In submissions, the Applicant requested that “majority” be determined “between 2 November 2009 and the date of the application being filed, that is, 10 December 2009” 17 .
[36] In contrast, the Employer sought that the “majority” threshold should apply from the date of the hearing – 13 January 2010 18.
[37] Consequently, the majority support number is either 93, 94 or 99, depending on the date to be applied for determination purposes.
[38] If we apply the earlier date, the target number of employees who are required to support bargaining is 99. The most “generous” number of pledge cards attributable to 10 December 2009 can only be 91 (84) + (5) + (1) + (1).
[39] As can be seen, even if the Tribunal considers the three (3) pledge cards with details but no names, the threshold number required (50% plus one - 99) is not reached.
[40] However, in relation to the later date of 13 January 2010, if the three (3) pledge cards with details but no names are counted, then the threshold number required (50% plus one – 93 or 94) is reached.
[41] The Act requires that I must be satisfied that a majority of the employees employed by the Employer will be covered by the proposed agreement want to bargain. In the circumstances described above, the evidence provided by the Applicant falls short of meeting the first element s.237(2)(a) to enable the tribunal to exercise its power under the Act as sought by the Applicant on either date.
[42] A number of other issues were put to me by the parties in relation to s.237 of the Act, which I make the following comments.
[43] Quite clearly, the parties are not bargaining and the Employer has made a decision not to enter into discussions, until and unless, it is satisfied that a majority of the employees want to bargain. While this pre-condition is understandable, a more beneficial ongoing relationship would have been for the Employer to have engaged with the LHMU and exchange such basic information as the scope of employees to be covered by the proposed agreement and the number of employees currently employed in the proposed agreement. However, for the purposes of s.237(2)(b), I am satisfied that the Employer has not yet agreed to bargain or initiated bargaining for the proposed agreement.
[44] In relation to s.237(2)(c) of the Act, the Applicant has gained the views of employees at the sites where the employees work, on the various shifts, and at meetings where the employees were gathered for operational reasons. The Employer did not take issue with the submission that the employees were fairly chosen, and from the Tribunal’s perspective, this pre-requisite for the Tribunal to exercise its powers is satisfied.
[45] With the exception of the comments above in relation to the necessary pre-requisites of a “majority of employees”, and the process to determine that majority, the Employer did not submit that it was unreasonable to make the determination; in fact, the Employer stated that it would enter into negotiations if it was demonstrated that 50 per cent plus one of the employees covered by the proposed agreement, wanted to bargain. Accordingly, the Tribunal is satisfied, subject to my earlier comments, that it would be reasonable to make the determination pursuant to s.237(2)(d).
[46] I now turn to the method to “work out whether a majority of employees want to bargain” (s.237(3)).
[47] The LHMU’s method of determining whether a majority of employees to be covered by the proposed agreement can be described as follows:
• creation of a pledge card;
• information session for Union delegates to discuss and distribute pledge cards;
• allocation of certain categories of employees to certain delegates;
• discussion with employees either collectively or individually.
[48] In the words of Ms Marina Hardwick, as witness for the LHMU:
“All our delegates work on different lines. We have female delegates, we have people from Africa, India; all different variety of delegates. Each one of them were -- we had meetings with them and gave them heaps of pledge cards and their role was to talk to the workers and get them signed and explain to them” 19.
“We have an African delegate who will be able to communicate with the African community. We also have delegates in each area like Wellard … so that they’re covering the night shift. We also have delegates through the day. So we’ve actually picked the younger delegates to liaise with the youth, the Y generation” 20.
[49] As I understand, the Applicant’s strategy to determine whether a majority of employees wanted to bargain, it was to match union delegates to the profile of the workforce to avoid any criticism that it was paying “lip service” to the method adopted.
[50] In cross examination of Ms Hardwick, the Employer highlighted that “some of these nationalities are very quiet, very withdrawn and don’t like to be involved in public issues” 21 . The imputation from the question was that the employees would sign the pledge card “not to cause a fuss” (my description) but did not really understand the importance of signing the pledge card. This question was coupled with the view that, as evidence had not been given of a direct conversation between delegates and an employee, the Tribunal could not deduce that the employees understood what they were signing, and consequently, the process was inappropriate.
[51] This theme was again tested by the Employer in cross examination of Mr Watson.
[52] Mr Watson gave evidence that he had spoken to “possibly 130” and “…20, 30 per cent of the day shift…” 22 employees to be covered by the proposed agreement. Without hesitation or clarification, in cross examination, he answered that employees understood what was being asked of them. Mr Watson also answered honestly that he encountered queries on the pledge cards.
[53] Having arrived at a “dead-end” on this issue, the Employer pursued the matter of Mr Watson not being present at each of the conversations/discussions between delegates and employees. Again, he answered simply, and in my view honestly, by saying that he was present at some but not all meetings. However, he was present when delegates were briefed on what to say to employees.
[54] In a 24/7 industry with numerous work sites, I consider the method adopted by the LHMU and evidence on its implementation appropriate. The assertion by the Applicant that employees did not understand what they were signing is easy to make but was not substantiated in cross examination of the witnesses. Secondly, to suggest that evidence must be brought of each and every discussion between delegate and employees to substantiate understanding, is not a sustainable position when considering the provisions of s.237(3) of the Act.
[55] Finally, the Employer suggested that the Tribunal should follow the decision of Commissioner Harrison in what was referred to as the “Cochlear” decision [2009] FWA 67.
[56] The Employer’s representative suggested that the similarities in the “Cochlear” case make it appropriate that the Australian Electoral Commission (AEC) carry out a secret ballot to determine whether a majority of employees support bargaining. The similarities referred to by the Employer’s representative are the multicultural workforce and “controversy” 23 between the “company” and the “union representing that workforce”24.
[57] Although it may seem trite, I would be surprised if there is a workforce, in the length and breadth of Australia, that is not multicultural to a lesser or greater extent. Secondly, to infer that, as a result of it being a multicultural workforce, it is necessary to conduct an AEC ballot, “to determine the true feelings of the workforce as to bargaining”, 25 is demeaning to the intelligence and understanding of the workforce.
[58] Whatever led Harrison C to his decision, and I am sure there were good reasons, I do not think the process of an AEC ballot appropriate in these circumstances having heard all of the evidence.
[59] As for the second “arm” of the Employer’s argument for a secret ballot that “controversy” exists between the Employer and Union, I consider this unremarkable and exists, again to a greater or lesser extent, over the lifetime of any such relationship between unions and employers.
[60] To conclude this issue, I refer to paragraph 501 of the transcript of proceedings, where the Employer’s representative stated:
“Nobody - not even I [Mr David Jones] or Jody Weston [Employer’s HR/IR Manager) – can bring evidence that they [pledge cards] were obtained unfairly. Nobody was there” 26.
[61] There are two residual matters: the fact that the Applicant did not serve Application B2009/11195 on the Employer; and clarification of the scope of the employees to be covered by the proposed agreement. This latter matter, led to an application by the Applicant, pursuant to s586 of the Act, to amend Application B2009/11195.
[62] With respect to the application not being served on the Employer, this was disputed by the Applicant, but not convincingly. However, the matter was raised by the Respondent after the Applicant had concluded its case. In the circumstances, I indicated to the Applicant’s representative in the hearing that I may have been receptive to his submission had the matter been raised at the outset and not when it was. The Employer did not claim it had prejudiced its case.
[63] Consistent with the provisions of s577 of the Act, which requires FWA to perform its functions and exercise its powers in a manner that:
(a) ….; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) …; and
(d) …
leads to me the view that the lack of service of the application (if any) is noted but it has not impacted on the Employer’s objection to the application and I waive this irregularity (if it has occurred) under the provisions of s586(b) of the Act.
[64] The second issue for resolution relates to the scope of employees in the application. I agree to the Applicant’s request to correct and amend the application pursuant to s586(a) of the Act, to clarify and ensure that the proposed agreement is to cover:
- Revenue Protection Officers, including seniors and supervisors on wages; and
- Patrol Officers; and
- Aboriginal Liaison Officers.
[65] It would appear to me that had the parties engaged in some discussions, and I am not suggesting negotiations, following the LHMU letter of 31 July 2009, then the scope of the proposed agreement would have been clearer and avoided the exchanges which occurred in the hearing.
CONCLUSION
[66] The Tribunal, in performing its functions under the Act, must take into account the objects of the Act and equity, good conscience and merits of the matter.
[67] The LHMU made an assumption on the number of employees employed by the Employer to be covered by the proposed agreement. That assumption proved to be incorrect. Consequently, what was thought to be a 70 to 80 per cent support to bargain, is marginally less than 50 per cent plus one (1) required at as 13 January 2010.
[68] As a consequence of the Applicant not providing evidence to satisfy the Tribunal that a majority of employees to be covered by the proposed agreement want to bargain, I am unable to make a majority support determination as sought by the Applicant.
[69] The Tribunal is required under the Act to promote harmonious and cooperative workplace relations. The Employer is reluctant to accept the word of the Applicant Union indicating a majority of employees want to bargain 27. For the Employer, a majority support is 50 percent plus one (1).
[70] In the circumstances, with the exception of s.237(2)(a), I am satisfied that all other requirements of s.237(2) and s.237(3) of the Act have been met.
[71] In relation to s.237(2)(a), I have carefully considered a number of alternative courses of action. Among those courses of action, is for the Tribunal to seek to find out the names of those employees who have filled out pledge cards but not inserted their names. Having done this, it may satisfy the requirements of s.237(2)(a) in relation to the 13 January 2010 determination date as preferred by the Employer. However, as this stage, I do not propose to adopt this course of action.
[72] For reasons of transparency, it is my intention to make this interim decision and conduct a conference between the parties to seek their views on the most appropriate course of action to resolve this matter, and if necessary, reconvene the hearing to hear further evidence.
COMMISSIONER
Appearances:
Ms S Holt and Mr N Whitehead on behalf of the Liquor, Hospitality and Miscellaneous Union
Mr D Jones on behalf of the MSS Security Pty Ltd
Hearing details:
Perth:
2010
13 January
1 Exhibit A1
2 Exhibit A1
3 Exhibit A1
4 Exhibit A1
5 Exhibit A1
6 Exhibit A1
7 Exhibit A1
8 Exhibit A1
9 Exhibit A1
10 Exhibit A1
11 Exhibit A1
12 PN22
13 PN22
14 Exhibit A2
15 PN641
16 PN655
17 PN21
18 PN517
19 PN103
20 PN105
21 PN144
22 PN244
23 PN512
24 PN512
25 PN512
26 PN501
27 PN671
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