National Union of Workers v Coldunit Pty Ltd

[2016] FWC 9044

[2016] FWC 9044

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Coldunit Pty Ltd
(B2016/1300)

COMMISSIONER ROE MELBOURNE, 16 DECEMBER 2016

Application for a majority support determination.

[1] The National Union of Workers (NUW) has applied for a majority support determination. The parties agree, and I am satisfied, that the application has been properly made (Section 236 of the Fair Work Act 2009 (the Act)). The NUW is seeking a determination in respect to storage services employees who work at a site operated by Oxford Cold Storage (including at Hume Road, Laverton North; Pipe Road, Laverton North; and William Angliss Drive, Laverton North).

[2] This matter was listed for hearing on 15 December 2016. The employer elected not to attend the hearing and advised the Fair Work Commission of this fact prior to the hearing. Prior to the hearing I was therefore able to establish what matters were in dispute and what matters were able to be established on the basis of the written material provided by the NUW. Given the non-attendance of the employer I was able to advise the NUW at the commencement of the proceedings of my conclusions in respect to these matters.

[3] I am satisfied that the Application has been properly made pursuant to Section 236 and that the NUW is eligible under its rules to cover at least some of the storage workers who are employed by Coldunit and who the NUW seeks to be covered by the proposed agreement. Section 237 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.

[4] I am satisfied and it is not disputed that the group of employees who will be covered by the agreement is fairly chosen (Section 237(2)(c)). In reaching this conclusion I am satisfied that the employees are geographically and organisationally distinct from other Coldunit employees. They are the only storage workers engaged by Coldunit who work at the Oxford Cold Storage sites. Coldunit may supply labour to other storage companies but they are at different locations and require liaison with different management (Section 237(3A)). I am satisfied that there is nothing artificial about the selection of storage services workers at these locations. The scope of the proposed agreement is identical to the scope of the current agreement.

[5] In this case there is some dispute over whether or not the employer Coldunit Pty Ltd has not agreed to bargain (Section 237(2)(b) of the Act). There is also dispute over whether or not it is reasonable in the circumstances to make the determination.

[6] There are three issues in dispute. If these matters are resolved in favour of the NUW I must make the determination:

1. Should I be satisfied that the employer has not yet agreed to bargain, or initiated bargaining for the agreement?

2. Should I be satisfied that it is reasonable in all of the circumstances to make the determination given that the company argues that it would be premature to require the commencement of bargaining?

3. Should I be satisfied that a majority of the workers who are employed as storage service workers at the relevant sites wish to bargain for an agreement?

Conclusion in respect to whether or not the employer has agreed to bargain.

[7] The NUW has made repeated attempts to persuade the employer to commence bargaining for an agreement to replace the current agreement which has a nominal expiry date of 29 May 2017. The final position of the company was set out in writing on 13 December 2016. They advised that they did not agree to the NUW timetable for bargaining and advised that they will (emphasis added)agree to commence bargaining within 90 days of the current agreement expiring and that they propose to issue a Notice of Representational Rights in February 2017 and schedule bargaining meetings in March 2017. I am satisfied that the company have “not yet agreed to bargain” or “initiated bargaining” for the agreement proposed by the NUW. Bargaining has not been initiated and a Notice of Representational Rights has not been issued. A statement by the employer that they will agree to bargain at some time in the future is, in the circumstances of this case, a statement that they have not yet agreed to bargain. There is no suggestion that either party wishes to change the scope of the proposed agreement. The issue is that the company do not wish to bargain at this time and the NUW are seeking to bargain at this time. I am satisfied that the requirement of Section 237(2)(b) of the Act is met.

Conclusion in respect whether or not it is reasonable in all of the circumstances to make the determination given that the company argues that it would be premature to require the commencement of bargaining?

[8] I accept that the matter of the timing of commencement of bargaining is a relevant consideration in determining whether or not it is reasonable in all of the circumstances to make the determination. For example, if in the case of an agreement that had a nominal duration of three years a union sought a determination only three months after an agreement had been made, there would need to be exceptional circumstances to justify the making of a determination requiring the commencement of bargaining. Under the Act the new Agreement could not operate until the old agreement had passed its nominal expiry date unless the old agreement was terminated by a vote of employees.

[9] However, I do not accept the argument of the employer in this case that it is not reasonable to issue a majority support determination more than 90 days prior to the expiry of the agreement. The employer correctly points out that good faith bargaining orders and protected industrial action are not available prior to that time. I note that the absence of such a time line in the provisions for majority support determinations and their explicit presence in respect to good faith bargaining orders and protected industrial action strongly suggests that such a time limitation should not be read into the majority support determination provisions.

[10] It is in fact commonplace for bargaining to start six months prior to the nominal expiry date and agreements commonly contain requirements for this to occur. It is not uncommon for bargaining, especially where employees are represented by unions, to take up to six months to conclude. I have taken into account the uncontested witness statement of Ms Lewis from the NUW which explains why employees and the union are seeking to commence bargaining at the present time. I am satisfied that the statement supports a finding that it would be reasonable to commence bargaining at the present time and it details some of the particular circumstances which affect the NUW members who would be covered by the proposed agreement and are covered by the agreement it will replace.

[11] I also note that there is no evidence of any improper or unreasonable conduct by the NUW. The objects of the Act encourage bargaining where a majority of employees wish it to occur. I agree with Vice President Watson that: “It is not sufficient in my view for an employer to oppose bargaining on the grounds that it considers it to be undesirable when a majority of its employees want it to occur.” 1

[12] In these circumstances I consider that, provided I am satisfied that majority of the workers who will be covered by the Agreement wish to bargain, it is reasonable in all of the circumstances to make a determination in this particular case five months in advance of the nominal expiry date of the current agreement.

Do a majority of employees who will be covered by the proposed Agreement wish to bargain?

[13] Ms Lewis from the NUW gave evidence of her contact with the relevant employees. She believes that Coldunit employs approximately 50 cold storage employees at the sites. On 13 December 2016 the employer provided confidentially to the Fair Work Commission the names of 65 employees it says it currently has placed at AB Oxford sites. This was in response to a Fair Work Commission request of 12 December 2016 for a list of those undertaking cold storage and warehousing tasks on site. The NUW provided a petition with 30 signatures on it. I was able to match 27 of those names to the list provided by the employer. It is possible that the other three names are on the list but the handwriting is too hard to read or the name used in the signature is a nick name rather than the name which appears on the employee records. If one assumes that all of the persons on the employer list are in fact engaged in tasks within the scope of the agreement proposed by the NUW then there is not a majority demonstrated by the petition. However, the NUW does not believe that there are 65 employees engaged within the scope it proposes for the Agreement. I am satisfied that the process of resolving this matter would involve considerable effort examining the classification of the employees on the lists. I am also satisfied that although the NUW petition does not establish a majority it is close to a majority. In these circumstances I have decided that the best course of action is to hold a ballot to determine if there is a majority or not.

[14] At the conclusion of the proceedings I proposed the following for the conduct of a ballot to determine whether or not there is a majority:

● I will conduct a ballot at 1 Hume Road Laverton North around change of shift on Friday 13 January 2016. The ballot will be open from 1.30pm to 3.30pm. Both the NUW and the company will be present at the time of the ballot. The way in which a particular employee votes will be secret to both the company and the NUW.
● Coldunit is requested to provide a notice to all Coldunit storage service employees who work at the Oxford Cold Storage facility advising them of the ballot and that employees who are not rostered for work on that day may attend site and vote during the time that the ballot is open. The notice should be provided to employees twice, once before Christmas and a reminder should be provided one week prior to the ballot.
● The ballot paper will ask the employee to vote ‘yes’ or ‘no’ to the question: “Do you wish to bargain with your employer for a new Enterprise Agreement covering storage services employees who work at a site operated by Oxford Cold Storage in Victoria?”
● The roll I will use for the ballot will be the employee list provided by the employer on 13 December 2016. The NUW will not have access to the list, however, the NUW may challenge the participation of a particular employee in the ballot on the grounds that they do not fall within the proposed coverage of the Agreement and I will obtain the details of that employee and keep their ballot to one side and then resolve the issue at a later date after hearing from the employer and the NUW.
● If an employee has a compelling reason as to why they are unable to attend the site to vote and wish to exercise a vote they may contact me at [email protected]. The email must include the reason why the employee cannot vote at the site on 13 January 2016 and the full name and contact details of the employee and the answer ‘yes’ or ‘no’ to the question: “Do you wish to bargain with your employer for a new Enterprise Agreement covering storage services employees who work at a site operated by Oxford Cold Storage in Victoria?” If I consider that there are compelling reasons why the vote cannot be exercised on 13 January 2016 I may accept that vote. If I do not consider that there are compelling reasons I will advise the employee by return email.

[15] I will allow the employer an opportunity to provide any comments it wishes to make in respect to these arrangements. If the employer wishes to propose any amendments they should be provided to the FWC and the NUW by 21 December 2016. If no proposals are made the above process will be adopted. Following the conduct of the ballot I will issue a further decision and, if there is a majority, the determination.

COMMISSIONER

Appearances:

Ms M Segan and Ms C Lewis appeared for the NUW.

No appearance for the Respondent.

Hearing details:

2016

Melbourne

December 15

 1   Australian Licenced Aircraft Engineers Association, The [2013] FWC 4267 at [13].

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