National Union of Workers

[2015] FWC 3473

[2015] FWC 3473

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.236—Majority support determination

National Union of Workers
(B2015/463)

COMMISSIONER LEE MELBOURNE, 16 JUNE 2015

Application by National Union of Workers for a majority support determination - National Tiles Pty Ltd - group of employees fairly chosen - ability of National Union of Workers to represent employees chosen - not yet satisfied applicant is a bargaining representative of an employee who will be covered by the agreement - AEC ballot to be ordered if satisfied - if not satisfied applicant is a bargaining representative of an employee to be covered, application will be dismissed.

[1] On 20 April 2015, the National Union of Workers (the Applicant) made application for a majority support determination in relation to warehousing and trades function employees of National Tiles Pty Ltd (the Respondent) located at what is known as a “super site” 1 at 525 and 541 Graham Street, Port Melbourne, Victoria.

[2] The application asserts that the Applicant has requested that enterprise bargaining commence and that the Respondent has not agreed to bargain. The application asserts that the Applicant has met with employees, “whereupon a majority formally indicated they wish to bargain” with the Respondent for an enterprise agreement.

[3] Upon receiving the application, I set directions for the filing of submissions and evidence and listed the matter for hearing before me in Melbourne on 30 April 2015.

[4] The Applicant filed an outline of submissions, one witness statement of Mr Jeremy Breen (organiser) and two pages of non-redacted petition signed by employees. Two further witnesses gave evidence on behalf of the Applicant on the day of the hearing. No prior notice was given by the Applicant’s advocate that these witnesses would appear. This complicated the proceedings and contributed to the delay in having this matter determined.

[5] The Respondent filed submissions and a witness statement of Kerry-Anne Konstantinou (HR Manager).

[6] Ms A Grogan of the NUW represented the Applicant at hearing. Mr N Tindley sought and was granted permission to appear for the Respondent.

Law to be applied

[7] Sections 236 and 237 of the Fair Work Act 2009 deal with the requirements which must be met in order to grant a majority support determination;

“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.


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.”

Issues in dispute

[8] The Respondent objects to the application on four grounds.

[9] Firstly, the Respondent argues that the Applicant is not a bargaining representative for trades function employees, and that there is “a live question” as to whether they should be able to make an application that relates to employees who are not eligible to be their members.

[10] Secondly, the Respondent argues that the employees are not fairly chosen.

[11] Thirdly, the Respondent asserts that the Fair Work Commission (the Commission) cannot be satisfied that a majority of employees wish to bargain.

[12] Fourthly, the Respondent asserts that it is not reasonable in the circumstances to make the determination.

Background

[13] The Respondent’s premises at 525 and 541 Graham Street Port Melbourne is known as a “super site”.

[14] The premises consist of a warehouse, a retail sales store and a trade sales store. Ms Konstantinou in her statement summarised the business as follows;

“National Tiles operates out of multiple sites in Graham Street in Port Melbourne, including a warehouse at 541 Graham Street which services a retail sales store, a trades sales store and a support office at 525 Graham Street.

The warehouse is located at 541 Graham Street in Port Melbourne. This site services National Tiles retail and trades locations across Victoria and Distribution Centres located in Queensland and Adelaide. The warehouse interacts with the Trade Sales store at 525 Graham Street Port Melbourne in that it provides stock to the Trade Sales store as required.” 2

[15] At the hearing, this was further elaborated on by Ms Konstantinou, who confirmed the trade sales store includes a liquidator’s centre. 3

[16] The application made by the Applicant seeks an enterprise agreement to cover employees engaged in warehousing and trades functions at this site. The Applicant does not seek to include the retail sales store employees in a proposed enterprise agreement.

Whether the application is validly made

[17] The Respondent, in their initial submissions, stated that “[t]here is a live question as to how [the Applicant] can purport to represent the industrial interests of employees in the trade sales area who effectively perform retail sales tasks”. The initial submissions did not set out what the Respondent said would arise should I find that the Applicant is not entitled to represent trade sales employees.

[18] This issue was raised at the hearing of this matter, however neither side offered further oral submissions relating to the Applicant’s ability to cover the trade sales employees or what arose from such a finding.

[19] The Respondent’s closing submissions expanded the Respondent’s argument relating to this objection. I note that the Applicant’s closing submissions did not deal with the issue at all other than to note the objection.

[20] The Respondent referred to the Applicant’s rules, in particular section 5 which sets out the eligibility for membership of the organisation. By reference to the eligibility rules, the Respondent asserted that if the Applicant’s rule “...coverage was deemed to include the trades employees this would leave open the likelihood of absurd outcomes, and create a significant issue in relation to the distinction between the coverage of the [Applicant] and the coverage of the Shop, Distributive and Allied Employees Association.” 4

[21] The Respondent concluded on this point that “...[w]hile it is accepted that the [Applicant] is entitled to make the application as it relates to warehouse employees, there is a live question as to whether they should be able to make an application that relates to employees who are not eligible to be their members. In determining this question the appropriate approach for the FWC is to consider each group of employees separately, and to then determine if the NUW has standing to bring the Application as it relates to each group. In our submission the only outcome available on the evidence is that the [Applicant] does not have standing to make the Application as it relates to trades employees, and that this means they do not have standing to make the Application at all. On that basis the Application must fail”. 5

[22] I do not accept this submission. In ResMed Limited v The Australian Manufacturing Workers’ Union 6, the Full Bench of the Commission rejected the employer’s argument that an application under section 236 of the Act could only be validly made by an employee organisation if it had the capacity to enrol as members under its eligibility rules (and therefore represent) all the employees specified in the application who would be covered by the proposed agreement.

[23] The Full Bench considered that such an argument requires “s.236 to be read as if it contained words which are not there. On the ordinary meaning of the language used in the Act, the AMWU was entitled to make an application for a majority support determination under s.236 if it was a “bargaining representative of an employee who will be covered by a proposed single-enterprise agreement””. 7

[24] The Full Bench then considered whether the ordinary meaning of the words was displaced in some way, and rejected that they were. The Full Bench stated;

“We would add that the construction of s.236 advanced by ResMed would have a number of discordant results that could not have been intended by the legislature. Firstly, the limitation posited in respect of employee organisations would, on ResMed's submissions, have no application or relevance to other bargaining representatives. Therefore, on ResMed's approach, if an employee nominated himself or herself as his or her own bargaining representative but represented no other employee, that employee could apply for a majority support determination applicable to all employees to be covered by an enterprise agreement, but if the employee was represented by an employee organisation, the organisation could not make the same application if its eligibility rule did not cover all such employees. No logical or policy reason for this discriminatory result is apparent. Secondly, ResMed's approach lends itself to an outcome in which the scope of operation of enterprise agreements would be shaped by the often archaic, confusing and/or arbitrary eligibility rules of relevant employee organisations. That outcome is difficult to reconcile with Part 2-4's object, as stated in s.171(a), to "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". Thirdly, it would be likely to be difficult to satisfy the "fairly chosen" requirement in s.237(2)(c), as elaborated by s.237(3A), if the scope of proposed enterprise agreements had to be drawn by reference to the eligibility rules of employee organisations.” 8

[25] I note Justice Perry upheld the decision of the Full Bench in ResMed Limited v Australian Manufacturing Workers’ Union. 9

[26] As noted above, the Applicant failed to address the contentions of the Respondent that they did not have any eligibility to cover trades employees. In light of the decision in ResMed Limited v The Australian Manufacturing Workers’ Union 10, I have not made any determination as to the eligibility of the Applicant to represent the trade sales employees.

[27] However, the Respondent quite properly concedes that the Applicant is entitled to make the application in relation to warehouse employees. 11 Having regard to the decision in ResMed Limited v The Australian Manufacturing Workers’ Union12, it is not necessary for me to make a determination as to the eligibility of the Applicant to represent the trades employees.

[28] In ResMed Limited v The Australian Manufacturing Workers’ Union 13, there was a group of employees that the employer accepted the AMWU had eligibility to cover. It was also found in that case that it was an “unchallenged fact” that the AMWU had at least one member in the category of employees to be covered meaning it was a bargaining representative for that member under section 176 of the Act and therefore a bargaining representative of an “employee” who will be covered by the proposed agreement.

[29] In this matter, while the Applicant led evidence from Mr. Butler who works in the warehouse, there was no evidence given from Mr. Butler as to whether he was a member of the Applicant nor that he nominated the Applicant as his bargaining representative. Nor did the Applicant provide any evidence that they had other members in the warehouse.

[30] In the absence of any evidence that the Applicant has at least one member in the warehouse or has otherwise been nominated as a bargaining representative, the Applicant has failed to satisfy me that it was a bargaining representative of “an employee” who will be covered by a proposed single enterprise agreement. I will return to this issue at the conclusion of the decision.

Requirements of s.237 of the Act

[31] Section 237 of the Act has been set out above.

[32] It is accepted by the Respondent that is has not agreed to bargain (s.237(2)(b)). 14

[33] As outlined above, the Respondent asserts that the Commission cannot be satisfied with respect to the requirements of subsections 237(2)(a), 237(2)(c) and 237(2)(d).

Fairly chosen (s.237(2)(c))

[34] The Applicant in their submissions acknowledges that the Respondent has a number of employees across Australia. The Application has been made with respect to “employees who are engaged in warehousing and trades functions in the [Respondent’s] warehouses located at 525 and 541 Graham Street, Port Melbourne”. As such, it is clear that the employees chosen in the application do not encompass the entirety of the Respondent’s workforce.

[35] The Applicant asserts that the group of employees is fairly chosen. The Applicant asserts that “the employees that would be covered by the agreement perform warehouse and trades functions...”. The Applicant asserts that the “...group of employees is geographically distinct because they are engaged at a single site of the [Respondent]”. The Applicant asserts that the group is “organisationally and operationally distinct from managerial, administrative employees and/or retail employees who are employed by the Respondent at the Port Melbourne site: they perform inherently different work and they are supervised by supervisors who are engaged to manage the warehouse functions of the business”.

[36] The Applicant set out in their submissions the following with respect to the two groups of employees;

“The warehouse workers perform primarily physical tasks including: receiving goods, unloading, unpacking, driving forklifts, validation of good on delivery and/or dispatch.

The trades workers perform similarly physical tasks including: operating forklifts, picking and preparing orders and unloading trucks. Whilst there is some interaction with customers, the Trades employees do not process sales.”

[37] The Respondent asserts that the group of employee chosen by the Applicant is not fairly chosen.

[38] In her witness statement, Ms Konstantinou asserts that the warehouse employees undertake typical warehouse duties and attached a job description for a warehouse employee. She stated that warehouse employees are remunerated for the hours they work and are not entitled to commissions or performance based incentives. Ms Konstantinou further states that warehouse employees are managed by a Warehouse Manager.

[39] Ms Konstantinou states that trade sales employees sell products to customers who are generally builders or tilers and that they are required to perform duties similar to retail sales employees. She states that trade sales employees are remunerated for the hours they work as well as earning commissions. Her statement asserts that trade sale employees are required to meet sales targets similar to retail sales employees and that trade sales employees are managed by the Retail Superstore Manager. The Respondent disputes the claims of the Applicant that trade sales employees do not process sales.

[40] The Respondent asserts that whilst warehouse employees may be geographically, organisationally and operationally distinct from other roles within the Respondent’s business, trades sales employees are not. The Respondent asserts that trade sales employees perform substantially the same tasks as the Respondent’s retail sales employees.

[41] The Respondent submits that;

“a. both trades and retail sales employees are required to provide customer service;

b. both trades and retail sales employees are required to process sales;

c. both trades and retail sales employees are required to access stock for customers using a mixture of equipment;

d. both trades and retail sales employees are subject to performance targets based on sales and are remunerated in part on their sales;

e. both trades and retail employees are considered by the business to be within the same functional area and are under the supervision of the same manager; and

f. both trades and retail sales employees are required to engage in heavy lifting.” 15

[42] Under cross examination, Ms Konstantinou conceded that there are tasks which are undertaken by warehouse and trade sales employees which are the same, stating that;

“...there are some tasks that both do, such as forklift driving, such as delivery - getting the stock. When they do it at the warehouse they’re doing it with jobs that are over 25 metres. When they are doing it at the trade centre it is simply to deliver those items to the customer, so they have to pick the stock for the customer to get it into the car. And they both use forklifts to do it.”

[43] Ms Konstantinou under cross examination also conceded differences in the roles of trade sales employees and retail sales employees as follows;

“MS GROGAN: Do the retail employees conduct similar tasks as picking stock, driving forklifts?---Some do. Some do, but it’s not a big part of their job, no.

MS GROGAN: So when you say some do, do some drive forklifts?---YES. Both the manager and the 2IC, they both drive a forklift.

MS GROGAN: So you would say that it was limited to the people of a supervisory role?---They’re the ones that hold the licence. So they would support the customer in delivery if necessary.” 16

[44] Mr Rosignoli gave evidence that he is employed in “tile liquidators” a trade sales position. Mr Rosignoli gave evidence as follows:

“...there is some selling involved. Once you sell a product to a customer you then pick it and pack it and give it to the customer, be it with a trolley or a forklift and loading it into their car or putting it on a truck. Then I’m also just in charge of keeping that area neat and tidy, keeping it up to scratch, receiving in goods from other stores which once again, with the forklift, you get from either outside or they’ve been placed in racks.” 17

[45] Upon further questioning from me, Mr Rosignoli explained the premises and his role as follows;

“COMMISSIONER: So when you’ve sold something to a customer where do you go to physically pick up the product that you have sold? Is it always in the same place? --- In particular the tile liquidator centre, it’s structured that the tiles are - you have a small office and the tiles are around the perimeter and you have smaller quantities in the middle. So if they need a big quantity, you need to get it by forklift.

COMMISSIONER: Yes? --- Smaller quantities in a trolley.

COMMISSIONER: Yes? --- And then if you have sold them glue, grout, you - you know, some people if they can get into the driveway, we ask them to pull up into the driveway. If they can get into that, that’s fine. If not, we have to get a forklift to drive out into the car park sort of thing.

COMMISSIONER: I understand --- And that’s where we load them up. So there’s a lot of toing and froing.

COMMISSIONER: But all those materials that you give to the customer are all in that building that you work in? --- Yes, yes. It’s in the trade shop and yes specifically tile liquidators.” 18

[46] Mr Rosignoli gave evidence that he works to a roster which includes employees of the trade sales area and the retail sales area. 19 Mr Rosignoli gave evidence that warehouse employees were not included in his roster.20

[47] Mr Rosignoli gave evidence that he understood that all employees in the trades area have a sales target 21, and confirmed he received a monthly bonus, applicable if employees meet criteria on an audit.22

[48] Ms Rosignoli gave evidence that when he was recently off work, a retail sales employee came in and filled his position. 23

[49] Mr Rosignoli gave evidence which was of a vague nature about duties as “back up for the trade shop if they require extra help”.

[50] Mr Butler gave evidence that he was employed in the warehouse. Mr Butler gave evidence that he;

“pick[s] and pack[s] the large orders and supply all the tiles to the other franchise stores of National Tiles and site jobs as well, the bigger site jobs.” 24

[51] Mr Butler gave evidence that he is not required to work with customers. 25

[52] In the Full Bench decision in Cimeco Pty Ltd v CFMEU and Ors 26(Cimeco) the requirements in respect to fairly chosen were considered, albeit in the context of an agreement approval. However, the considerations are equally relevant to a consideration of majority support determinations.

[53] Cimeco set out the requirements for the Fair Work Commission in determining the question of fairly chosen. Commissioner Roe in National Union of Workers v Cotton On Group Services Pty Ltd 27set out the requirements as follows;

“[17] Both parties refer to the decision of the Full Bench in Cimeco Pty Ltd v CFMEU and Ors. That decision related to an agreement approval however the requirements in respect to fairly chosen are essentially the same for agreement approval and majority support determinations. Cimeco requires that the Fair Work Commission in determining the question of fairly chosen:

• Evaluate and have regard to all the relevant factors.



• Focus on objective as opposed to arbitrary or subjective factors in concluding that a group is fairly chosen. If the selection was on arbitrary or discriminatory grounds or based on criteria which undermined legislative objectives, for example, if it undermined collective bargaining, then it would be unlikely to be fair.



• Consider that, where the group chosen is not the whole enterprise, if the group is geographically, operationally or organisationally distinct, this is a factor in favour of finding that the group was fairly chosen, however, it is not a decisive matter as all other relevant considerations must be evaluated.



• Consider that if the group is not geographically, operationally or organisationally distinct, (and is not the whole enterprise) this is a factor against a finding that the group is fairly chosen, however, it is not a decisive matter as all other relevant considerations must be evaluated.



• Consider that the interests of the employer and productivity and the interests of employees who are excluded from coverage may be relevant. That is the consequences of the choice of the group may be considered.” 28

[54] I agree with and adopt that approach.

[55] There was no evidence that the selection of the combined group of the trades employees and warehouse employees was based on an arbitrary basis or on criteria which undermined legislative objectives such as collective bargaining.

[56] Having considered the evidence, I am not satisfied that the group selected is geographically or organisationally distinct. While the Respondent concedes that the warehouse employees are organisationally distinct, the same cannot be said of the trades employees who clearly, among other things, report to the same manager as the retail workers and are on the same roster as the retail workers.

[57] However, there appeared on the evidence to be an operational distinction between the trade sales employees and the retail employees. Operationally, the trade employees work out of the trade/liquidation shop. The evidence of Ms. Konstantinou is that the retail workers are located in a different area. 29 The areas are very close to each other within the “super site” but appear to be separate operations. While the retail sales employees and the trade workers perform similar roles for different customer segments, there are also similarities between the work that the warehouse and trade employees do.

[58] The fact that there are similarities between what the retail sales employees do and the trade sales employees, does not mean that they are not operationally distinct. While they are on the same super site, there is clearly a separate and distinct role for trades employees as opposed to retail employees. While they may fill in for each other, it was apparent that in doing so they were moving from one part of the operation to another. I am satisfied that there is an operational distinction between the trade sales area and the retail sales area.

[59] Considering the interests of the employer and productivity there was no suggestion from the Respondent that excluding the retail employees would impact on the productivity of the organisation.

[60] As to the interests of the retail employees excluded, there was no evidence that they wanted to bargain or didn’t want to bargain. In his decision in National Union of Workers v Cotton On Group Services Pty Ltd 30, Commissioner Roe determined that if there was evidence that the employees excluded from the bargaining had in fact wanted to be included in the bargaining then this would weigh in favour of a finding that the group was not fairly chosen. Conversely, if a particular group did not want to be included, this would weigh in favour of a conclusion the group was fairly chosen. However, in the circumstances of this case, as there is no evidence either way, this is a neutral consideration.

[61] Having considered all of the evidence in this matter, I am satisfied that the group of employees selected, the trades sales and warehouse employees, to be fairly chosen.

Majority of employees want to bargain (s.237(2)(a))

[62] The Respondent submits that within the trade sales and warehouse areas, there are 24 employees, including one warehouse manager, a second in command warehouse manager, a retail manager and a second in command trade sales manager. The Respondent submits that there are 15 employees in the warehouse and nine in the trades area. The Respondent concedes that the four managers referred to above are not the subject of the application. 31

[63] Considering the evidence provided (including exhibit T2) I am satisfied that there were 24 employees at the time of the hearing in the two areas. When the four management employees are excluded, that leaves 20 employees.

[64] The Applicant submits that there are approximately 19 employees employed in the warehousing and trades sections. It is presumed, though it was not clearly ascertained from the submissions of the Applicant, that the 19 employees excluded the management employees.

[65] The Applicant seeks to rely on two petitions signed by employees. The Applicant asserts that the petitions have been signed by 15 employees in the trade sales and warehouse areas. A copy of the complete petitions was provided to the Commission and a redacted copy of the petition with names removed was provided to the Respondent.

[66] Mr Jeremy Breen gave evidence about attending the workplace on or about 23 March 2015 to collect signatures for a ‘majority support petition’. Mr Breen stated that approximately 9 employees attended a meeting with him at that time. Mr Breen gave evidence that approximately 9 employees signed the petition at that meeting.

[67] Mr Breen gave evidence that at the meeting, it was discussed how people who had not attended the meeting could have an opportunity to sign the petition. Mr Breen gave evidence that two employees were nominated by each relevant group to coordinate the taking of the petition to the employees who had not attended the meeting. Mr Breen gave evidence that he provided the petitions to these employees. Mr Breen gave evidence that he briefed these employees on the “petition process and the bargaining process”. Mr Breen gave evidence that to ensure the employees were comfortable with the process he got them to ‘role play’ a conversation with their colleagues.

[68] Mr Breen gave evidence that he returned to the work site on 2 April and collected the petitions. He gave evidence that a further 6 persons had signed the petitions between 21 and 27 April 2015.

[69] The Respondent objects to the petitions on a number of grounds.

[70] Firstly, the Respondent objects to the petitions on the basis that there is insufficient evidence before me as to the collection of additional signatures by the employees after the meeting attended by Mr Breen. The Respondent submits that while Mr Breen gave evidence about what he told the two employees in relation to speaking to other employees, he could provide no direct evidence as to what those employees said to other employees when collecting signatures. The Respondent submits that there was no evidence adduced by the Applicant from any other witnesses who may have been able to attest to what was said to employees when collecting the additional signatures. The Respondent submits that the Commission cannot be satisfied that the additional signatures gathered by employees were obtained without coercion or undue influence. However, there is no evidence that there was coercion or undue influence used in obtaining the signatures. That there may have been is pure speculation on the part of the Respondent. The two employees that collected the additional signatures were identified by Mr. Breen as Mr Rosignoli and Mr Butler. 32 Both of those men gave evidence in the matter. No allegations of coercion or influence were put to them.

[71] The Respondent in submissions referred me to a decision of Commission Booth in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Veolia Water Operations Pty Ltd 33 which the Respondent submitted was support for a determination that a petition without sufficient evidence as to the manner in which the signatures came to appear on it, will be declined. I note that Commissioner Booth in that decision was dealing with the particular circumstances in that case. It is a matter for the Commission to determine whether a majority of employees want to bargain using any method the Commission considers appropriate. In this matter, there is a total absence of evidence that there was the improper obtaining of signatures.

[72] Secondly the Respondent relies on a secret ballot which was held by the Respondent after this application was served on them. The secret ballot was held on Tuesday 28 April 2015 at 8:00am for warehouse employees and 8:30am for trade sales employees. Ms Konstantinou gave evidence that seven employees participated in the secret ballot, and all seven voted no to bargaining for an agreement.

[73] The Respondent asserts that the NUW sought to disrupt the secret ballot process, through the sending of a text message. At the hearing, under cross examination, Mr Breen gave evidence that;

“The company put this ballot on without discussing it with the union, without discussing it with the employees. It announced it to the employees. I had phone calls from members saying, “What is this? Are we required to participate?” And I gave advice to those members. Members asked me to communicate to the rest of the members and we sent two text messages to people, giving them advice about whether they were or were not required to participate.” 34

[74] After further cross examination, Mr Breen clarified that one broad message had been sent to members regarding the secret ballot. That message was, “National Tile members, NT aren’t respecting the umpire and want to run their own ballot. If they try to make you vote, our advice is to leave the paper blank. NUW.”

[75] It is unclear how the Respondent was not respecting the umpire, the Commission, when no determination had been made by the Commission on the application. In fact the application had not yet been to hearing when the message was sent. In any case, there is no doubt that the message sent by Mr. Breen was designed to impact on the vote taken at the Respondent’s secret ballot.

[76] Prior to the employers secret ballot, Ms. Konstantinou circulated a message to staff. 35 This document stated that the company had no issue with the Applicant and respects the rights of employees to choose whether they became members of the union or not.

[77] However, the document also set out the Respondent’s position on bargaining for an enterprise agreement with the Applicant. This position included various concerns such as:

• An EBA would restrict the Respondent’s ability to offer warehouse employees discretionary benefits such as bonuses; birthday paid day off work and bbq’s and events.



• That negotiating with the Applicant would create an “us verses them” adversarial culture and that employees and the Respondent have a lot to lose from starting EBA negotiations with the Applicant.



• That bargaining with the NUW would be long and drawn out.



• That the cost of meeting union demands in bargaining for additional conditions may lead to savings having to be found including reduced hours of work or a reduction in other conditions.

[78] The message to staff is clear that the Respondent does not want to negotiate with the Applicant. It’s message about the possible outcomes from bargaining is almost entirely negative and was also clearly designed, in my view, to influence how employees voted in the ballot.

[79] The fact that unions and employers message staff and members to take a particular position in bargaining is not of itself remarkable. The only point worth remarking on in this case is that both the Applicant and the Employer were doing what they could to secure the outcome that they sought. Suggestions to the contrary by both the Applicant and the Respondent are clearly contradicted by the evidence.

[80] At the hearing, Ms Konstantinou confirmed that she checked off names of employees who attended to participate in the secret ballot, and that she knew which areas of the business those employees who had voted No came from;

“...because I had to tick off that the employees had participated in the ballot. Given that the NUW had told people that they did not have to vote, and so they’d walked away, the ones that really wanted to voice their opinion finally did, but unfortunately it identified those persons that had said no.” 36

[81] The evidence of Ms Konstantinou was that four trades sales employees voted no in the employers secret ballot. 37

[82] The Respondent asserts that the signatures on the petition range from 21-27 March 2015, and that since that time, there has been a number of personnel changes in the affected areas. Given the alleged changes in personnel and the discrepancy between the number of persons who signed the petition and the number of persons who voted no in the employer ballot, the Respondent submits that the Commission cannot be satisfied that a majority of employees seek to bargain.

[83] The Respondent submitted a document, marked as exhibit T2, which listed the names of all the employees (including the four senior employees to be excluded from coverage) who work in the trade sales and warehouse areas. I have considered the names on this list against the petitions that were submitted by the Applicant. Having done so, it is clear that 10 of the 20 non-management employees listed on exhibit T2 have signed the petition.

[84] A number of employees who have signed the petition are not on the list of T2 and it is not clear what area they work in. Finally, one of the names is not legible, other than the first name.

[85] Having considered all of the evidence in this matter, my determination is that the Applicant has failed to satisfy me to this point that there is a majority of employees who want to bargain. However, it is possible that a majority of employees do want to bargain, but the lack of legibility of one of the signatures may be the difference between there being a majority or not.

[86] The Commission may work out whether a majority of employees want to bargain using any method the Commission considers appropriate. I have determined in the circumstances to, subject to being satisfied that the Applicant is a bargaining representative of an employee who will be covered by the proposed agreement, to order that the Australian Electoral Commission to conduct a secret ballot of the trades and warehouse employees, excluding the four managerial employees. I note that this was the course that the Respondent, should it fail in its other objections to the determination being made, urged me to take in their submission.

Conclusion

[87] The Applicant is directed to provide any evidence they have to satisfy me that they are a bargaining representative of at least one employee who will be covered by the agreement.

[88] They are to provide that evidence, and serve a copy on the Respondent, by 5:00pm Tuesday 23 June 2015.

[89] Should the Respondent seek to be heard on the evidence provided, they are to notify my chambers and the Applicant by no later than 5:00pm Friday 26 June 2015.

COMMISSIONER

Appearances:

A Grogan for the Applicant

N Tindley sought and was granted permission to appear for the Respondent.

Hearing details:

2015.

Melbourne:

April 30

Final written submissions:

Applicant, 8 May 2015

Respondent, 15 May 2015

 1   PN533

 2 Witness statement of Ms Kerry-Anne Konstantinou, filed 29 April 2015, [4] - [5].

 3   PN507

 4   Closing Submissions of the Respondent, filed 15 May 2015, [44]

 5   Closing Submissions of the Respondent, filed 15 May 2015, [45]

 6   [2014] FWCFB 2418

 7   ResMed Limited v The Australian Manufacturing Workers’ Union, [2014] FWCFB 2418, [9]

 8   ResMed Limited v The Australian Manufacturing Workers’ Union, [2014] FWCFB 2418, [28]

 9 [2015] FCA 360

 10   [2014] FWCFB 2418

 11   Closing Submissions of the Respondent, filed 15 May 2015, [45]

 12   [2014] FWCFB 2418

 13   [2014] FWCFB 2418

 14   Submissions of the Respondent, filed 29 April 2015, [3]

 15   Submissions of the Respondent, filed 29 April 2015, [19]

 16   PN528-530

 17   PN362

 18   PN415-419

 19   PN389-391

 20   PN392-393

 21   PN398

 22   PN399-401

 23   PN375

 24   PN444

 25   PN456

 26   [2012] FWAFB 2206

 27   [2014] FWC 6601

 28   National Union of Workers v Cotton On Group Services Pty Ltd[2014] FWC 6601, [17]

 29   PN548

 30   [2014] FWC 6601

 31   Closing Submissions of the Respondent, filed 15 May 2015, [5]

 32   PN141

 33   [2015] FWC 2561

 34   PN235

 35   Exhibit KK4

 36   PN587

 37   PN589

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