National Union of Workers v Cool Off Pty Ltd and Dried and True Pty Ltd
[2017] FWC 5578
•2 NOVEMBER 2017
| [2017] FWC 5578 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236—Majority support determination
National Union of Workers
v
Cool Off Pty Ltd and Dried and True Pty Ltd
(B2017/641)
| Commissioner Ryan | MELBOURNE, 2 NOVEMBER 2017 |
Application for a majority support determination in relation to employees of Cool Off Pty Ltd and Dried and True Pty Ltd at 2 Jude Road, Howlong NSW 2643.
On 27 July 2017 the National Union of Workers (NUW) applied pursuant to section 236 of the Fair Work Act 2009 (the Act) for a majority support determination to be made in relation to a group of employees employed as salaried Senior Operators and salaried Table Monitors employed by Cool Off Pty Ltd and Dried and True Pty Ltd located at 2 Jude Road, Howlong, New South Wales (the relevant employees).
The NUW in its Form F30 application identified that there is currently an enterprise agreement, Cool-Off Group Enterprise Agreement 2016 covering the non-salaried employees employed by the Respondents, but which excludes the relevant employees as they are paid a higher wage than allowable under the agreement.
In support of its application, the NUW filed in the Commission a petition signed by 8 employees. The petition stated that those employees “want to bargain for an enterprise agreement with the Employers that covers salaried Senior Operators and salaried Table Monitors”. The NUW submitted that on the basis of that petition the Commission could be satisfied that a majority of the relevant employees wanted to bargain for an enterprise agreement.
On 31 July 2017 I wrote to parties setting out the proposed conduct of this matter and directing the Respondents file in the Commission a list of the relevant employees by 4 August 2017. The Respondents filed a list of 16 relevant employees.
Following analysis of the petition against the list of employees provided by the Respondents, I wrote to the parties on 4 August 2017 informing them that I had formed the prima facie view that the petition failed to prove that a majority of employees wanted to bargain for an agreement.
The NUW challenged the number of employees which the Respondents assert are the relevant employees.
The Respondents filed submissions and a witness statement of Edward Staughton, the Managing Director. Mr Staughton’s statement attached 7 statements made by employees indicating that their preference to remain on a salaried arrangement.
Mr Staughton stated relevantly:
“7. The petition was clearly not conducted with the anonymity and guarantee of independence which goes with a secret ballot.
8. The companies have never had an enterprise agreement at the Howlong site
which cover senior salaried employees.9. I confirm that at this time, the companies do not see any benefit in pursuing an
enterprise agreement for its salaried employees at the Howlong site.”
And in its written submissions dated 15 August 2017 the Respondents submitted that:
“23. If the FWC is minded to further investigate whether a majority of employees of the Respondents want to bargain for an enterprise agreement, we submit that the most appropriate method to do so is a secret ballot conducted by the Australian Electoral Commission.”
The matter was subject to a telephone hearing on 14 August 2017.
It was agreed during those proceedings that the Commission would conduct a secret ballot of the relevant employees on site at Howlong on 15 September 2017.
The declaration of the ballot conducted by the Commission was conveyed to parties on 9 October 2017 and it is set out below:
“Following the conduct of the ballot on site on 15 September 2017 the Commission conducted a ballot of 3 employees not present on 15 August by mail. Of those 3 ballot papers issued, 2 have been returned.
The Commissioner has closed the ballot.
The result of the ballot conducted by the Fair Work Commission is as follows:
Total
| No of employees eligible to vote | 13 |
| Number of employees who voted | 12 |
| Number of valid votes | 12 |
| Number of informal votes | 0 |
| Number who voted Yes | 6 |
| Number who voted No | 6 |
Cool Off
| No of employees eligible to vote | 6 |
| Number of employees who voted | 5 |
| Number of valid votes | 5 |
| Number of informal votes | 0 |
| Number who voted Yes | 2 |
| Number who voted No | 3 |
Dried and True
| No of employees eligible to vote | 7 |
| Number of employees who voted | 7 |
| Number of valid votes | 7 |
| Number of informal votes | 0 |
| Number who voted Yes | 4 |
| Number who voted No | 3” |
The NUW submitted by email on 20 October 2017 that:
“The NUW submits that a clear majority of salaried senior operators/table monitors who are employees of Dried and True Pty Ltd have declared they wish to collectively bargain with their employer. Consequently, the FWC can and should issue a Majority Support Declaration to compel Dried and True Pty Ltd to begin bargaining with this group of employees for an enterprise agreement.
The fact that a multi-enterprise agreement covers the non-salaried employees at the relevant site cannot negate the result of this ballot, which achieved a majority support for bargaining among the Dried and True group. Dried and True is a distinct legal entity from Cool Off, and consequently is a distinct employer. The fact that a majority of employees employed by Cool Off do not want to bargain with Cool Off does not negate that a majority of Dried and True employees wish to bargain with that entity.
The respondent submitted by email on 25 October 2017:
“The Company refutes the NUW’s proposal that the FWC should issue a Majority Support Determination to compel Dried and True Pty Ltd to begin bargaining.
The Company would say that the NUW’s proposal to split the group of employees identified under the scope of the NUW’s majority support application, for the purpose of finding a majority support from a subset of employees proposed to be covered by the agreement, would:
· Be inconsistent with the original scope of the NUW’s majority support application which lists the Respondents who will be covered by the proposed enterprise agreement as both Cool Off Pty Ltd and Dried and True Pty Ltd.
· Seek to broaden the interpretation of ss 236(2)(a) and (b) of the Fair Work Act to introduce subsets of employees within each majority support application to pursue a particular outcome.
· Undermine the principle of a fairly chosen group of employees under s 237 (2)(c) of the Act and is not consistent with the company’s understanding of the processes conducted by the Commission in conducting the ballot from a chosen group of 13 employees.
Accordingly, the Company submits that the FWC should determine that it cannot be satisfied that a majority of employees who would be covered by the proposed agreement (that is, the salaried senior operators/table monitors employed by Cool Off Pty Ltd and Dried and True Pty Ltd) want to bargain and therefore the FWC cannot make the determination sought by the NUW.”
Relevant legislation
The relevant legislative provisions are as follows:
“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.”
The structure of s.236 makes it very clear that the bargaining representative who wants a majority support determination is the sole party who identifies both (a) the employer or the employers who will be covered by the agreement; and (b) the employees who will be covered by the agreement. In other words the NUW sets the agenda for a majority support determination.
In the present matter the NUW set that agenda. In its Form F30 application the NUW identified the two employers as Cool Off P/L and Dried and True P/L and the NUW identified the group of employees as being the salaried Senior Operators and salaried Table Monitors of those two employers. Attached to the NUW’s majority support determination application was a copy of the petition signed by employees. The petition read as follows:
“We, the undersigned, want to bargain for an enterprise agreement with Cool Off P/L and Dried and True P/L that covers salaried Senior Operators and salaried Table Monitors employed at 2 Jude Rd, Howlong NSW 2643.”
The petition contained the name of the employee signing the petition, the date the employee signed the petition and the employee’s signature. Importantly the petition did not separate or identify employees on the basis of which employer they were employed by.
It is not surprising that the NUW’s application and the NUW’s petition were worded as they were.
Section 236 only permits an application for a majority support determination to be made in relation to a single enterprise agreement. A single enterprise agreement may be made with two employers, as in the present matter, only when the two employers carry on a business, project or undertaking as a joint venture or common enterprise. (s.168A(4)) In the present matter the NUW application has identified that it wants a single enterprise agreement which will cover two employers who are currently carrying on a a business or undertaking as a common enterprise.
Whilst the NUW correctly identify that a majority of the relevant employees of Dried and True P/L want to bargain with for an enterprise agreement that is an insufficient basis upon which the Commission could proceed to make a majority support determination. The majority of the relevant employees of Dried and Tue P/L want to bargain for an enterprise agreement with Cool Off P/L and with Dried and True P/L. So much is clear from the wording of the petition. The contention of the NUW would only have some weight if the majority of the relevant employees of Dried and True P/L had indicated that they wanted to bargain only with Dried and True P/L for an enterprise agreement – and that is not the case in the present matter.
The Commission does not have before it an application for a majority support determination in relation to a proposed enterprise agreement that would only cover the relevant employees of Dried and True P/L. The Commission must determine the application which is before it.
The ballot of the relevant employees of both Dried and True P/L and Cool Off P/L show that less than a majority of the relevant employees want to bargain with the two employers for a single enterprise agreement.
The application in this matter fails at the first hurdle set by s.237(2)(a).
As there is no majority support amongst the relevant employees for bargaining with the single enterprise employers identified in the application then the Commission must dismiss the application.
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