National Union of Workers v Como Glasshouse No.2 Pty Ltd T/A D'vineRipe

[2016] FWC 7732

[2016] FWC 7732

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

National Union of Workers
v
Como Glasshouse No.2 Pty Ltd T/A D’vineRipe
(B2016/689)

COMMISSIONER RYAN MELBOURNE, 27 OCTOBER 2016

Como Glasshouse No.2 Pty Ltd T/A Divine Ripe - 687 Germantown Road, Two Wells SA 5501.

[1] On 18 October 2016 the Fair Work Commission issued a Determination 1 in his matter as follows:

“A majority of glasshouse and pack house employees, excluding supervisory, administrative and salaried employees, engaged by Como Glasshouse No.2 Pty Ltd T/A D’vineRipe (D’vineRipe) at its facility located at 687 Germantown Road, Two Wells SA 5501 want to bargain with D’vineRipe for an enterprise agreement.”

[2] I now issue my decision and reasons in support of that Determination.

Background

[3] On 7 July 2016 the NUW applied for a majority support determination (MSD) pursuant to s.236 of the Fair Work Act 2009 (the Act) in relation to employees of Como Glasshouse No.2 Pty Ltd T/A D’vineRipe (D’vineRipe). The application identified that the NUW sought to establish by petition that a majority of employees wanted to bargain with D’vineRipe.

[4] The application identified the group of employees to be covered by an enterprise agreement as “glasshouse and pack house employees at the Employer’s facilities located at 687 Germanstown Road, Two Wells, SA” but excluding “supervisory, administrative and salaried employees” (the relevant employees).

[5] The Commission wrote to the NUW on 8 July asking if the NUW had a petition signed by relevant employees. The NUW replied on the same day advising that a petition had been signed by 247 out of a total of 310 relevant employees. On the same day the Australian Industry Group (AIG) as representative of D’vineRipe wrote to the Commission advising that it opposed the application on the basis that D’vineRipe did not believe that a majority of the relevant employees wanted to bargain with D’vineRipe. Directions were issued to the parties on 11 July 2016 requiring the filing of the NUW petition and the D’vineRipe list of employees as at 5 July 2016.The NUW filed a list of 247 names of those employees who signed the NUW petition. D’vineRipe filed a list of 573 employees who it said were employed as at 5 July 2016.

[6] On 19 July 2016 the Commission issued a further direction to D’vineRipe to provide another list of employees who performed work during period 13 June 2016 to 5 July 2016. This period coincided with the period in which the NUW petition had been signed. D’vineRipe filed the requested list which contained 383 names.

[7] On 27 July 2016 the NUW requested that the Commission delay for at least 2 weeks taking any action in relation to the matter so as to allow discussions to proceed between the parties. Those discussions did not resolve the matter and on 15 August 2016 the Commission advised the parties of the Commissions initial views on the reconciliation of the NUW petition with the lists of employees provided by D’vineRipe as follows:

“The Commission’s file contains the following documents:

A petition of employees filed by the NUW signed by 232 employees;
A list of employees filed by the Respondent as at 5 July 2016 which contains 575 names;
A list of employees filed by the Respondent  who performed work for D’vine Ripe during the period 13 June to 5 July 2016, which contains 383 names.

A comparison between the NUW’s petition and the first list of employees reveals that the NUW does not have a majority.

A comparison between NUW’s petition and the second list of employees reveals that the NUW does have a majority.

The Commissioner asks that parties now advise how the matter should proceed from here.”

The above email incorrectly identified the number of employees as 575.

[8] The application was listed for a telephone conference of the parties on 19 August 2016 to enable further programming of proceedings to determine the application. As a result of that teleconference further directions were issued to parties and the matter was listed for hearing on 18 October 2016.

The nature of D’vineRipe’s business

[9] Before considering the respective cases of the parties it is essential to describe the nature of the business of D’vine Ripe at Two Wells. D’vine Ripe occupies some 35 hectares of land at Two Wells, north of Adelaide in South Australia, for the purpose of growing, sorting, packing and distributing tomatoes. The business has grown significantly since 2007 and now comprises 4 glasshouses in which the tomatoes are grown and packaging and distribution facilities. In 2012 8 hectares were added to the business and in 2015 a further 16 hectares were added to the business. 2

[10] As at September 2016 across the whole of the business at Two Wells D’vine Ripe had a total of 649 people on the books. This number includes management, administrative and supervisory staff as well as the crop workers, line operators, etc including those actually engaged on the day and those on the payroll but not actually engaged. 3 In 2015 D’vineRipe opened a new glasshouse in which to grow a different variety of tomato and which required an additional 160 employees.4

[11] The work at D’vineRipe is seasonal in nature. 5 In winter the tomato plants are pulled out and new plants are planted.6 The plants grow and in the summer months the ripe tomatoes are picked and packed. The smallest number of workers are required in the winter months and the highest number of workers are required in the summer months when picking and packing occurs. The actual number of relevant employees employed in the week ending 19 July 2016 was 3577 and the number of relevant employees expected to be employed in December is 712.8

Legislative framework

[12] The relevant sections of the Act in relation to this application are sections 236 and 237. They set out the matters about which the Fair Work Commission (FWC, the Commission) must be satisfied before making a majority support determination, in the following terms:

“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.

Operation of determination

(4) The determination comes into operation on the day on which it is made.”

[13] I will deal with each of the legislative requirements in turn.

Section 237(1)(a)

[14] It was not disputed that the NUW has made an application for a MSD. In relation to the requirement under section 236(1), that the application is to be made by a bargaining representative of an employee who will be covered by a proposed single enterprise agreement, the statement of Mr Whenan, 9 evidenced that the NUW had members who were relevant employees on D’vineRipe. This evidence was not challenged by D’vineRipe. I am satisfied that the NUW has met the requirement of section 176(1)(b), in that it is an employee organisation who is a bargaining representative of an employee who is a member of the NUW.

[15] I find that an application has been made by a bargaining representative of an employee who will be covered by the proposed agreement, namely, the NUW.

Section 237(2)(a) - a majority of employees want to bargain

[16] The petition relied on by the NUW had been signed by relevant employees between 13 June 2016 and 5 July 2016 and the application in this matter was filed with the Commission on 7 July 2016. For the purposes of s.237(2)(a)(i) of the Act the Commission has determined that the time at which the Commission will determine whether a majority of the relevant employees of D’vineRipe want to bargain with their employer is at 5 July 2016.

[17] An issue of real significance was raised by both parties, namely which employees were to be considered as being employed at the time determined by the Commission. The NUW contended that only those employees actually working should be included and D’vineRipe contended that any employee who had worked since October 2015 should be included. Both parties referred to a number of authorities to support their respective positions.

[18] The key words used in s.237(2)(a)(i) “employees who are employed by the employer at a time determined by the FWC” is similar to the language used in s.180(2)(a) and s.181(1) “employees employed at the time”. For the purposes of s.180(2)(a) and 181(1) “the time” that was relevant was specified within the section. In the case of s.237(2)(a)(i) the time that was relevant had to be determined by the Commission. Once this temporal distinction is set aside it is clear that the phrase “employed at the time” as used in ss.180(2)(a) and 181(1) conveys the same meaning as the phrase “employed at a time determined by the FWC” as used in s.237(2)(a)(i).

[19] The phrase “employed at the time” as used in ss.180(2)(a) and 181(1) has been the subject of careful consideration by the Court and the Commission. In National Tertiary Education Industry Union v Swinburne University of Technology 10 (Swinburne) Jessup J (with whom White J agreed) considered the scheme of the Act in dealing with enterprise agreement as part of his consideration of the meaning to be given to the phrase “employed at the time”:

“17. The foundational provision is s 172(2), which authorises an employer to make a single-enterprise agreement “with the employees who are employed at the time the agreement is made ....” An “employee” is “an individual so far as he or she is employed, or usually employed” by a national system employer (s 13). Reading this definition into s 172(2), the employer may make the agreement with the individuals who are employed, or usually employed, by the employer, but only to the extent that they are actually employed at the time the agreement is made. So to read s 172(2) does not have the effect of ignoring so much of the definition of “national system employee” as refers to an individual who is usually, but not immediately, employed by the employer. Rather, it recognises the legislative intention of confining, from within a broad class which include individuals who are usually, but not immediately, so employed, the relevant group to those who are employed at the time the agreement is made.

23. It will be seen that, broadly, this scheme of things is divided into three stages: pre-bargaining steps, bargaining, and the making of the agreement. As noted above, although there are specific time limits for the taking of some of the required, or permitted, steps, there is no time limit on bargaining. There is no reason why bargaining may not take many months, and we may, I consider, take judicial notice of the fact that it sometimes does. The legislature must have contemplated that employees would, in the normal course of labour turnover, come and go during an extended bargaining period. There should, therefore, be no assumption that the employees employed at the notification time for the agreement under s 173 would be the same employees as those employed “at the time” of the provision of a copy of the agreement under s 180, or as those employed “at the time” of the employer’s request under s 181.

24. Indeed, in my view, the legislature must be taken to have made the contrary assumption. The architecture of these provisions inescapably involves the perception that those who are provided with a copy of the agreement and are requested to vote, on the one hand, need not be the same as those who were, at some previous point, notified of their representational rights, on the other hand. Those to whom a request under s 181(1) should be addressed are confined, in my view, to those who are employed at that time. No other conclusion makes sense of the statutory scheme.

25. It is not necessary to consider whether employees to whom a copy of the proposed agreement was given under s 180 should, or may, be included within the requested group under s 181. The present case does not depend on such fine distinctions. However, and although the question was not argued, I would be disposed to the view that the “time” referred to in s 180(2)(a) is the whole of the “access period”. Since that period is, at its later boundary, contiguous with the time of the request under s 181, the better view may be that such employees should be so included.

26. The provisions to which I have referred bespeak the giving of such detailed attention to the rights and obligations of the parties concerned, and to the means by which an agreement is approved and thus made, that it would be, in my view, a distraction to decide issues such as that arising in the present case by reference to the high-level truism that an employee includes an individual who is usually employed by the employer concerned. If a purely grammatical justification is needed for that view, it may be found by treating the words “employed at the time” in s 181(1) as limiting apropos “employees”. Not only is that a satisfying grammatical reading of the whole phrase, it accords strongly with the purpose of this provision, and those associated with it.”

[20] The rationale expounded by Jessup J can be equally applied to the interpretation of s.237(2)(a)(i). Given that s.237 relates to the pre-bargaining part of the overall bargaining and approval process for an enterprise agreement it would require a reasonably explicit legislative provision to support an argument that the phrase “employed by the employer at a time” in s.237(2)(a)(i) is to be given a significantly different meaning to the phrase “employed at the time” as used in s.180(2)(a) and 181(1). As there is nothing in s.237 which would require, let alone even suggest, that this is the case, then the phrase used in s.237(2)(a)(i) should be given a meaning consistent with the approach adopted by Jessup J in interpreting s.180(2)(a) and 181(1). For the purposes of applying s.237(2)(a)(i) employees to be counted as being “employed at a time determined by FWC” must be those immediately employed and persons who are usually employed but not immediately employed should not be included.

[21] The task of determining whether a person is immediately employed was considered by a Full Bench in McDermott Australia P/L v AWU 11(McDermott). In that matter which concerned the approval of an enterprise agreement which was to cover employees of McDermott engaged to work offshore on the Inpex Ichthy Project (the Project), the Full Bench described the situation as follows:

“[23].…..The offshore construction work for the Project commenced in the second quarter of 2014 and was on-going at the time of the Agreement approval application. The first offshore campaign undertaken by McDermott commenced in September 2014, with the laying of sleepers over a period of approximately one month, followed by a number of additional campaigns of various durations before the vote for the Agreement was undertaken. No work was being conducted at the time of the vote.

[24] Several vessels and barges are used by McDermott to complete its scope of work. McDermott directly hires its own construction workers and the number of employees’ allocated work at any one time depends on the tasks being undertaken including what vessel/barge is being used and it’s manning capacity.

[25] Mr McMahon’s evidence was that in total 39 casual employees had been engaged by McDermott for the Project. Most employees had worked on earlier campaigns for the Project and all 39 employees had been paid wages to undertake the HSCS training essential for the Project. Prior to the voting process the number of casual employees available to work on the Project had been reduced to 36 active employees due to two resignations and one termination. It was the 36 ‘active’ employees who were asked to vote on the Agreement.

[26] At the time of the vote, none of the 36 casual employees were working offshore as there was no current campaign being undertaken by McDermott.”

[22] In considering whether the 36 casual employees were “employed at the time” the Full Bench noted the nature of casual employment and then considered the immediacy of the employment of those casuals. The Full Bench said:

“[27] The employment status of a casual employee was succinctly put in the Full Bench decision of Wayne Shortland v The Smiths Snackfood Co Ltd (Smiths Snackfood) decision at paragraph [10]:

‘As a matter of the common law of employment, and in the absence of an agreement to the contrary, each occasion that a casual employee works is viewed as a separate engagement pursuant to a separate contract of employment. Casual employees may be engaged from week to week, day to day, shift to shift, hour to hour or for any other agreed short period. In this sense no casual employee has a continuous period of employment beyond any single engagement. Moreover, it is common for a casual employee to transition between a period in which their engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa….’

[33] Generally a casual employee is employed for the duration of each engagement; that is, their employment commences and finishes with the commencement and finish of each engagement. Employees engaged by McDermott for the Ichthys Project received an offer of on-going casual employment on the Project. The employees who accepted the offer were placed on the employer’s payroll records and permitted to vote for the Agreement.

[35] The Commissioner was of the view that there was something wrong with the vote occurring while employees were not actually performing or being paid for performing work at the time of the vote. This in our view was incorrect; the status of the 36 casual employees at the time of the vote is a natural and expected phenomenon of being employed on a casual contract as per the Full Bench decision in Smiths Snackfood. In our view it would be inappropriate and counter intuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on to work on the day/s of the vote, or during the 7 day access period.  There are obvious implications for voting manipulation adopting this approach. Swinburne is not authority for the proposition that a casual employee is only “employed at the time” they are rostered to work and are being paid. Swinburne eschewed the proposition that employed at the time included “usually employed”.

[37] The casual employees accepted on-going employment with McDermott as evidenced by the employer’s payroll records and the evidence of Mr McMahon; as such they were employed by McDermott at the time the Agreement was made. Their employment comprehended work within McDermott’s scope of work for the Project. It matters not that the next campaign had not commenced or that the casual employees who would be engaged on the next campaign would be dependent on the specific campaign and the vessel/barge used and its manning capacity (POB).

[38] The Commissioner at paragraph [26] of his decision accepted that the persons asked to approve the Agreement by voting for it were casual employees of McDermott. As stated in evidence by Mr McMahon all employees that were hired to work on the Project, had completed paid training for the Project and none had resigned or had been terminated by McDermott or indicated they were not available for future work. The Project had commenced, the employees had been engaged specifically for the Project. Unlike the facts in Swinburne, the casual employees were employed at the time, they were not in a cohort of “likely to be engaged” or “usually employed.” It was legitimate and necessary for them to be included in the group of employees asked to approve the Agreement. “

[23] A further decision relied on by both parties was the decision of Simpson C in approving the Aircraft Maintenance Services Australia – Enterprise Agreement 12. In that matter Simpson C held that a group of casually employed LAME’s and AME’s who were not actually working at the time the agreement was made were employed at the time and entitled to vote in relation to the making of the Agreement. Simpson C described the nature of the work and his conclusions as follows:

“[17] The Applicant submitted it engages licensed aircraft engineers (LAME’s) as well as aircraft maintenance engineers (AME’s) to carry out work on its various aircraft around Australia for its various clients such as Singapore Airlines, Malaysian Airlines, Jetstar and Air New Zealand. It was said the nature of the work is largely based on an airline schedule, which includes aircraft turnaround times, and line maintenance which is planned for scheduled turnaround times. However, the nature of aviation is that scheduled arrivals occur regularly, as do ‘aircraft on ground’, which requires a dedication of resources in a short period to enable the airlines to meet scheduled departure times.

[18] The Applicant submits that some LAME’s and AMEs are employed as casuals, normally in accordance with a roster, which is usually posted several weeks in advance. It was said the nature of engagements will vary based on maintenance requirements, including license requirements for LAME’s as well as employee availability, and as a general rule the Applicant removes casual employees that have not been employed for a three month period from the contact list.

[19] The Applicant submits that the casual employees that voted had worked during the period of three months before the ballot, and during the three months after the ballot were engaged on a regular and systematic basis such that they were employed at the time.

[23] ….I am satisfied by the further material provided by the Applicant, given the regular and systematic employment of each of the casual employees included in the ballot, before during and after the ballot that each casual employee was employed ‘at the time’ as intended by the expression as it appears in section 181(1) of the Fair Work Act 2009 (Cth) (‘the Act’).”

[24] Both Swinburne and McDermott provide appropriate guidance to the Commission to determine the present application.

[25] In the present matter the evidence is clear that D’vineRipe maintain a list of persons who have worked at Two Wells. The list includes those who are currently performing work at Two Wells and those who have performed work at Two Wells. In the case of both groups, D’vineRipe expect to offer the persons further work at Two Wells. Persons who are on the list but not currently performing work are considered by D’vineRipe to constitute a pool of persons who can be called upon to perform work at Two Wells when needed by D’vineRipe.

[26] D’vineRipe’s contention is very clear and very simple. In its written submission it contended that:

“26. …all of the employees identified in Exhibit JT-1 of Mr Tamm's Statement are properly to be regarded as employees employed at any time throughout the year, provided they are on that list. That is to say, no distinction can properly be drawn in this case between employees who are actually working at site and those who are "in waiting" ready to be called up as and when the season warms up and the Respondent needs to ramp up its workforce.

27. The Respondent also says that it is inequitable for a substantial number of employees and it is the Respondent's submission that the expression at s.237 be given a broader interpretation and that employees should include employees who are plainly on the payroll, available for and scheduled to be hired for the purpose of the business during the course of a season or "project' as was the case in McDermott.”

And in its oral submission to the Commission the same point was made as follows:

“PN634. ….The prospect is that at some point during the course of the summer there will be a lot of sun and Mr Tamm's evidence was that once that happens productivity will surge and there will be a very quick and very rapid increase in the numbers required. So it is an all year cycle, it is an all year event, and in our respectful submission it is not appropriate to pick one period which by everyone's agreement is the lowest point of the cycle in terms of employee numbers and say "This is an appropriate time and this is an appropriate group of whom we can say 'Let's get a majority and let's go and bargain'.

PN635. It would be much more reasonable and understandable and more honest, in my respectful submission, to say "Well let's have a look at the yearly cycle". It's not something that just happens this year or last year, it happens all the time. It's a regular sequence. Now in my submission therefore there is nothing fundamentally different in the underlying facts of this case than appear in McDermott and appear in Aircraft Systems. That the principal that if one can see a cycle of employment, if one can see a need for a specific number of employees which will grow over a period of time for reasons which are entirely predictable, notwithstanding the uncertainty of the weather, then it is not unreasonable to identify as a group that is fairly chosen the larger part of that, the larger part of the cycle, and it is also reasonable in all the circumstances to go back to section 237 to identify that as a time when you should choose who it is that you seek to get a consensus in relation to enterprise bargaining.

PN636. So in our respectful submission the cases of McDermott and Aircraft Systems are authority of the fact that in the circumstances we find ourselves it is reasonable to regard those who are not working at the time because of entirely predictable and understandable circumstances nevertheless to be regarded as part of the workforce.”

[27] Whilst the oral submissions of D’vineRipe referred to above talk in terms of a fairly chosen group I understood the submissions to have been put in the context of determining which persons were properly included as being employed at a time determined by FWC for the purpose of s.237(2)(a)(i).

[28] There is a very clear difference between the facts in both McDermott and Aircraft Maintenance Services and the present matter. D’vineRipe very clearly acknowledges that employment is affected by seasonal changes in the work required to be performed. Employment for a large number of the persons on the list of 573 names are seasonal employees engaged to cover the needs of D’vineRipe for a large number of seasonal workers over the summer months when the tomatoes are ready to be picked and packed. The seasonal nature of the work at D’vineRipe is very different from the project work discussed in McDermott or the regular and systematic work of the LAME’s as discussed in Aircraft Maintenance Services.

[29] In the context of the decision in Smiths Snackfood many of the casual employees on the books of D’vineRipe and forming part of the pool of labour are engaged for the tomato picking season. Whilst some employees will be engaged over a number of years the very nature of their engagement is for a specific season each year. The engagement of such employees is for a short period of time which is limited to the picking season. The very nature of fruit picking (and tomatoes are fruit) does not require that all of the seasonal workers start and finish at the same time. Seasonal workers are engaged on the basis of the needs of D’vineRipe and as the evidence of D’vineRipe shows the numbers needed over the picking season ramps up to a peak and then ramps done again.

[30] Seasonal workers, such as fruit pickers, are recognised as having engagements based upon a season. This is particularly clear in relation to the unfair dismissal provisions of the Act. Section 386 prescribes when a person has or has not been dismissed for the purposes of accessing the unfair dismissal protections of Part 3-2 of the Act. A specific exclusion from the meaning of “dismissed” in s.386 is in relation to seasonal employees. Section 386(2)(a) provides as follows:

“386(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season;

[31] The Explanatory Memorandum to the Act explained this provision in relation to seasonal workers as follows:

“1531. Subclause 386(2) sets out circumstances in which a person is taken not to have been dismissed. These are where:

the person was employed for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, task or season;

1532. Paragraph 386(2)(a) reflects the common law position that termination in these circumstances would not be a dismissal. The fact that an employment contract may allow for earlier termination would not alter the application of this provision as the employment has terminated at the end of the period, task or season. However, if a person engaged on this sort of contract is terminated prior to the end time specified in the contract, they may seek an unfair dismissal remedy if they satisfy the other requirements.

1534. Season has its ordinary meaning and covers a range of things, for example:

the part of a year when a product is best or available;

the part of a year characterised by particular conditions of weather or temperature; or

the part of a year marked by certain conditions, festivities or other activities.

1535. The provision that a person is not dismissed when she or he is terminated at the end of a specified season is intended to apply in situations where employees are gradually reduced in number towards the end of a season. For instance, it will capture a situation where an employee is dismissed when the season is winding down and consequently the employer only requires half the number of employees they did at the start of the season.”

[32] In many respects the provisions of s.386(2)(a) of the Act in relation to seasonal workers are a legislative reflection of the common law definition of casual employment as explained in Smiths Snackfood. Persons employed by D’vineRipe as casual pickers over the summer fruit picking season may very well be usually employed by D’vineRipe each and every fruit picking season but they do not remain employed by D’vineRipe for the whole of the year. The very seasonal nature of the employment means that for that part of the year which is not the fruit picking season it is most likely that the seasonal workers will not be employed by D’vineRipe.

[33] In the present matter the practical issue is for the Commission to determine the number of persons who were employed at the time determined by the Commission. Considerable attention was given during the proceedings to examining the list of the 573 persons which D’vineRipe claimed were employed at the time determined by the Commission. The petition relied on by the NUW contains the names of 247 relevant employees. When the Commission reconciled the names on the petition with the list of employees provided by D’vineRipe 15 names on the petition could not be confirmed as being employees of D’vineRipe. The Commission accepts that 232 employees of D’vineRipe signed the petition during the period 13 June 2016 to 5 July 2016. The petition will be prima facie proof that a majority of the relevant employees want to bargain with D’vineRipe if the total number of employees employed at the time determined by the Commission is less than 464. The list of 573 names provided by D’vineRipe as Attachment JT-1 to Exhibit R3 has persons listed in order of the last day they worked at D’vineRipe. Having regard only to the persons identified as casual employees the following is revealed by Attachment JT-1:

One casual employee last worked in August 2015

One casual employee last worked in October 2015

Thirty three casual employees last worked in November 2015

Twenty four casual employees last worked in December 2015

Twenty four casual employees last worked in January 2016

Nineteen casual employees last worked in February 2016

Thirteen casual employees last worked in March 2016

Twenty casual employees last worked in April 2016
Nineteen casual employees last worked in May 2016

[34] If the Commission only has regard to the number of casuals listed on Attachment JT-1 who have not worked at D’vineRipe since March 2016 the total is 115. Deducting only this number from the list of 573 employees leaves a remaining 458 named persons. On this basis the NUW petition prima facie establishes that a majority of the relevant employee want to bargain with D’vineRipe.

[35] Whilst there is clearly a sense of arbitrariness in only taking into account the casuals listed on Attachment JT-1 who have not worked for D’vineRipe since before 1 April 2016, the Commission is satisfied that this cohort of casuals are persons who were not employed by D’vineRipe as at 5 July 2016, the date determined by the Commission for the purpose of s.237(2)(a)(i). This cohort of casuals would properly be described as seasonal workers whose employment ended when they finished their last day of work. It is likely, as evidence from D’vineRipe suggests, that his cohort or at least a significant number of them will be re-employed by D’vine Ripe in the coming summer picking season. Removing this cohort from the list of 573 names on Attachment JT-1 is sufficient for the purposes of considering the requirement of s.237(2)(a) of the Act. It is likely, but need not be determined, that the number of employees employed at the time determined by the Commission is less than 458. It is sufficient for the determination of this application that the Commission can be satisfied as required by s.237(2)(a). A requisite level of satisfaction can be reached without the need to determine the exact number of employees employed at the time determined by the Commission. In the present matter the Commission can be certain that no more than 458 employees were employed at the time determined by the Commission and this number is sufficient for the purpose of testing whether or not the NUW petition establishes that a majority of the relevant employees want to bargain with D’vineRipe.

[36] Having regard to the evidence of Mr Azra and Mr Whenan for the NUW and having regard to the material issued by the NUW to employees of D’vineRipe the Commission is satisfied that employees understood the nature and purpose of the NUW petition and that those employees who signed the petition did so freely and knowingly.

[37] The Commission is satisfied that a majority of the employees who are employed by D’vineRipe at the time determined by the Commission and who will be covered by the proposed enterprise agreement want to bargain with D’vineRipe.

Section 237(2)(b) – employer has not agreed to bargain nor initiated bargaining

[38] The NUW wrote to D’vineRipe on 4 July 2016 advising that “a strong majority of the relevant employees have signed a petition indicating that they wish to commence enterprise bargaining” and requesting that D’vineRipe confirm “its commitment to engage in negotiations for an enterprise agreement”. D’vineRipe responded on 6 July 2016 with: “I will respond formally in due course. At this stage we will challenge your majority via fairwork.” 13 The Commission is satisfied that D’vineRipe has not yet agreed to bargain with its employees or their bargaining representatives including the NUW nor has D’vineRipe initiated bargaining with its employees.

[39] The Commission is satisfied in relation to s.237(2)(b).

Section 237(2)(c) – fairly chosen

[40] The application in this matter described the group of employees to be covered by the Agreement as follows:

“The employees to be covered by the proposed enterprise agreement are glasshouse and pack house workers at the employer's facilities located at 687 Germantown Road, Two Wells, SA, 5501.
Supervisory, administrative and salaried employees will not be covered by the proposed enterprise agreement.”

[41] D’vineRipe conceded that the group of employees as identified by the application was a fairly chosen group. 14

[42] The Commission is satisfied that the group of employees who will be covered by the proposed enterprise agreement has been fairly chosen (s.237(2)(c)).

Section 237(2)(d) - reasonable in all the circumstances

[43] Having considered all of the circumstances of this matter the Commission is satisfied that it is reasonable to make the determination sought by the AMWU.

COMMISSIONER

Appearances:

A. Portelli for the National Union of Workers.

D. Miller of the AI Groupfor Como Glasshouse No.2 Pty Ltd T/A D’vineRipe

Hearing details:

 1   PR586598.

 2   Transcript at PN453.

 3   Exhibit R3 at Para 3.

 4   Transcript at PN524.

 5   Ibid at PN339.

 6   Ibid at PN429.

 7   Ibid at para 6.

 8   Transcript at PN513 – PN515.

 9   Exhibit A1.

 10 [2015] FCAFC 98.

 11   [2016] FWCFB 2222.

 12   [2016] FWC 3068.

 13   Exhibit A1 Attachment MW3.

 14   Transcript at PN698 – PN702.

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<Price code C, PR586869>