National Union of Workers

[2016] FWC 8124

[2016] FWC 8124

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
(B2016/1012)

DEPUTY PRESIDENT ASBURY BRISBANE, 11 NOVEMBER 2016

Application for majority support determination - whether FWC satisfied that a majority of relevant employees want to bargain - confidential petition and exhibit - discrepancies between employee lists - satisfied of majority -- majority support determination must be made..

[1] On 16 September 2016, the National Union of Workers (the NUW) filed an application pursuant to s.236 of the Fair Work Act 2009 (the Act), seeking that the Commission make a determination that a majority of the employees who will be covered by a proposed single-enterprise agreement (the Agreement) want to bargain with the employer that will be covered by the Agreement. The application stated that the Agreement was proposed to cover:

“Employee who work in warehousing and logistics at the Lytton site.”

[2] The employer of these employees and who will be covered by the Agreement is Silk Contract Logistics (Silk). Silk resists the application on the basis that the Commission cannot be satisfied that a majority of employees who will be covered by the Agreement (the relevant employees) want to bargain.

[3] A Conference of the NUW and Silk was convened with Direction subsequently issued. By agreement between the parties it was agreed that each party would provide to the Commission a confidential exhibit. In respect of the NUW that confidential exhibit was a complete copy (not redacted) of the petition relied upon by the NUW in support of the proposition that a majority of relevant employees want to bargain. In respect of Silk, the confidential exhibit was a complete list of employees that Silk contended fell within the proposed coverage of the Agreement (referred to above). The parties were also directed to file any submissions and witness statements in support of their respective positions.

[4] On 29 September 2016, the NUW filed in the Commission an outline of submissions in support of the application for a majority support determination and an affidavit of Mr Benjamin Parker, Organiser of the NUW. Attached to Mr Parker’s statement was a complete copy of a petition of employees, titled “We want a collective agreement”. This material was also served upon Silk, with the exception of the complete petition of employees.

[5] On 6 October 2016, Silk filed a document, styled an affidavit, of Mr Stephen Hanna, General Manager – Warehouse Operations, for Silk. Mr Hannah included a list of employees said to be covered by the Storage Services and Wholesale Award 2010 at the “Lytton site”. All of the people on that list have the “Role Classification” of “Forklift Op/Storeperson QLD”. I accept that this is a list of employees that Silk considers fall within the proposed coverage of the Agreement as identified in the NUW’s application.

[6] On 7 October 2016, I caused correspondence to be sent by my Associate to the parties confirming that both parties had now filed their material; that the Respondent advised the Commission that it did not intend to file material in reply to the NUW’s material; and requesting the parties to advise whether they require a Hearing.

[7] On 10 October 2016, the NUW sought that I express my preliminary view as to whether the Commission was able to determine that a majority of relevant employees want to bargain and that in the event that the Commission was not able to do so then a Hearing was sought. In the event that the Commission was able to determine a relevant majority, the NUW did not seek a Hearing.

[8] On 11 October 2016, I caused my Associate to correspond with the parties in the following terms:

“The Commission understands that the only matter in dispute between the parties is whether a majority of the employees who are employed by the employer at the time of the parties filing their material, and who will be covered by the proposed agreement, want to bargain.

The Commission now has before it two confidential lists of employees from the Applicant Union and the Respondent Employer. On the basis of those lists there are 26 employees who will be covered by the proposed agreement and 14 employees who want to bargain.

However, when the names of employees on the Union list of employees is reviewed against the names of the employees on the employer list, there are two names on the Union list of employees that are not on the employer list. If this is accepted this would mean that 12 employees want to bargain out of a total of 26. For the sake of argument, if the two names on the Union list are included on the employer list, this means that 14 employees out of a total of 28 employees want to bargain.

It is the Deputy President’s preliminary view that on either scenario the Commission cannot be satisfied that a majority of employees want to bargain.

Given that the lists of employees have been provided to the Commission on a confidential basis, the Deputy President seeks the parties’ views about how this matter is to be dealt with. If the Union requests that the Commission list the matter for Hearing, it is requested that the Union advise the purpose of the Hearing and how the Union intends to deal with the evidence given the confidential nature of the evidence. The parties are to respond by 5pm tomorrow.”

[9] The NUW responded to the correspondence as follows:

“The relevant Organiser advised employees via phone who will be covered by the proposed agreement of the Deputy President’s findings based on the Employer’s list this morning.

Feedback from employees suggests that this larger number of employees is based in a merger of workers from the Hemmant site (as foreshadowed in the Applicant’s outline of submissions) which occurred after the Applicant lodged its application. Another five (5) employees signed the petition today.

We now wish to submit the updated petition as evidence. I currently only have a photo of the petition (attached), however, I am likely to have a copy of the original prior to 5pm this afternoon, which I will also file.

If the additional employees who have indicated that they wish to bargain are on the Employer’s list, based on the Deputy President’s preliminary findings it is likely that a majority can be determined.

I will provide a copy of this email without the petition attached to the Respondent.”

[10] A further petition was provided by the NUW.

[11] Silk replied to my email of 11 October 2016 as follows:

“Given the facts as outlined in your email, we would like to confirm that SCL are comfortable with the current arrangement and do not seek a further hearing.

It appears that the majority of our employees are of the same view.”

[12] Following this, I requested that Silk confirm the accuracy of the list of employees previously provided. Silk has confirmed that the list of employees provided on 6 October 2016 was “complete and accurate”.

[13] Having considered the correspondence of the parties, and the only matter in dispute, I have determined to consider the matter on the papers. Both the NUW and Silk have been aware that the only matter in dispute is whether the Commission is satisfied, on the basis of the confidential exhibits filed by the parties, that a majority of employees who will be covered by the Agreement want to bargain.

Consideration

[14] Section 237 of the Act provides as follows:

“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.”

[15] The Commission must make a majority support determination if an application for the determination has been made and if the Commission is satisfied of those matters set out in s.237(2) of the Act.

[16] An application for a determination is made pursuant to s.236 of the Act. Section 236 provides:

“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.”

[17] It is not in dispute that the NUW is a bargaining representative of an employee who will be covered by the proposed single enterprise agreement. It is also not in dispute that the application for a determination specifies the employer that will be covered (Silk) and the employee who will be covered by the agreement. I am satisfied that an application for a determination has been made.

[18] I turn to consider whether I am satisfied of those matters set out in s.237(2) of the Act. The matters in ss.273(2)(b), (c) and (d) are not in dispute. It is not disputed by Silk that it has not yet agreed to bargain or initiated bargaining in respect of the proposed Agreement. Its conduct of this matter makes clear that it has not done so. It is also not in dispute that the group of employees proposed to be covered by the agreement have been fairly chosen. I have taken into account that the group of employees proposed to be covered by the agreement is geographically and operationally distinct. No circumstances have been identified that would otherwise make it not reasonable to make the determination sought, subject to my satisfaction regarding majority.

[19] I am therefore satisfied that:

● the employer that will be covered by the agreement has not yet agreed to bargain, or initiated bargaining, for the agreement;

● that the group of employees who will be covered by the agreement was fairly chosen; and

● it is reasonable in all the circumstances to make the determination.

[20] I now turn to consider whether I am satisfied that a majority of the employees who are employed by Silk (at a time determined by the Commission) who will be covered by the agreement want to bargain.

[21] I have before me three confidential lists of employees. Silk has provided a list of 26 employees, all said to fall within the coverage of the Storage Services and Wholesale Award 2010 and employed a Silk’s Lytton site. The original petition filed by the NUW contained 14 employee names and signatures. The second petition filed by the NUW contains 19 employees. Ms Beynon, on behalf of the NUW indicated that a copy of the second petition would be provided to Silk.

[22] I have determined to accept the second petition filed by the NUW. The NUW has explained that additional employees signed the petition following the merger of workers from another Silk site that occurred after the filing of the NUW application for a majority support determination. I further accept the second petition on the basis that each of the additional employees appears on the list provided by Silk.

[23] As a result I am satisfied that there are 26 employees in total who will be covered by the proposed Agreement. I am satisfied that at least 15 employees of those 26 employees have indicated that they wish to bargain. I note that I have not included in that count four employees that appear on the NUW list. Two of the employees on the NUW list are not on the Silk list at all. A further two employees are not on the Silk list but employees with the same surname are on the list with anglicised first names. It is not necessary that I determine the status of these 4 employees because I can otherwise determine a majority on the basis of other evidence before me. Therefore, I am a satisfied that a majority of the employees who are employed by Silk, who will be covered by the agreement, want to bargain.

Conclusion

[24] Having formed the requisite satisfaction that an application for a majority support determination has been made and of the matters set out in s.273(2) of the Act, a majority support determination must be made. A determination will issue concurrently with this Decision.

DEPUTY PRESIDENT

Appearances:

Ms I Bailey for the National Union of Workers.

Mr E Cavalin for Silk Contract Logistics.

Hearing details:

On the papers.

Final written submissions:

21 October 2016.

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