National Union of Workers v Davies Bakery Pty Ltd

[2019] FWC 7307

[2019] FWC 7307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

National Union of Workers
v
Davies Bakery Pty Ltd
(B2019/504)

COMMISSIONER MCKINNON MELBOURNE, 22 OCTOBER 2019

Majority support determination – majority support – reasonable in the circumstances.

[1] Production employees of Davies Bakery Pty Ltd are covered by a modern award. Since 2016, the National Union of Workers has been actively holding discussions with employees and seeking to recruit members at Davies Bakery’s Broadmeadows premises. Its relationship with the company has not been without controversy. The union now says that more than half of employees engaged in production, packaging, warehouse and dispatch roles at Broadmeadows want to bargain for an enterprise agreement.

[2] Davies Bakery has not agreed to bargain. It does not want an enterprise agreement to replace the modern award. It is concerned about what it describes as the “concentrated campaigning and intensive visits” of the union at its workplace as well as the likely effect of bargaining on its business.

[3] The union seeks to compel Davies Bakery to bargain with the employees through a majority support determination. The issues are these:

1. Do a majority of relevant employees want to bargain with Davies Bakery?

2. In all the circumstances, is it reasonable to compel Davies Bakery to bargain?

Is there majority support for bargaining?

[4] I confirm my preliminary view (expressed to the parties on 16 August 2019) that the number of employees employed by Davies Bakery in production, packaging, warehouse and dispatch should be counted at a time that coincides with the weekly roster immediately prior to 16 July 2019 (being the date Davies Bakery provided a list of “current employees” to the Commission).

[5] In the week prior to 16 July 2019, 240 employees in those groups were rostered to work, including casual employees identified as “current employees” on the list provided by Davies Bakery. The relevant organisational groups were identified by Davies Bakery as:

1. Bread pack and production

2. Bread crumb

3. Crumpet pack and production

4. Despatch and logistics (not including supervisory employees)

5. General production

6. HXB pack

7. Muffin pack and production

8. Pastries pack and production

9. Quality Assurance

10. Rolls pack and production

11. Site services.

[6] The group of 240 employees does not include employees identified by Davies Bakery as falling within the organisational groups of “administration” or “distribution Davies”. It does not include labour hire workers.

[7] Petitions filed by the union demonstrate that of the 240 employees, 129 have signed a petition in support of bargaining. Davies Bakery disputes the reliability of the petitions and asks instead for a secret ballot of employees. In my view, with the questions posed and the responses given, the petitions provide an adequate evidentiary foundation to determine this matter along with the list of employees provided by Davies Bakery. While some discrepancies were identified in the materials, those matters have been resolved through confidential submissions to the Commission from the parties in accordance with an agreed process.

[8] I am satisfied that a majority of employees in production, packaging, warehouse and dispatch roles who were employed to work in the week immediately prior to 16 July 2019 want to bargain for an enterprise agreement with Davies Bakery.

In all the circumstances, is it reasonable to compel Davies Bakery to bargain?

[9] This would be the first enterprise agreement for Davies Bakery. It is a fifth-generation family operated business. Until 2016, it had no relationship with the union and had never engaged in enterprise bargaining, operating instead under relevant modern awards. It is likely that if bargaining results in an agreement between the parties, one result will be increased labour costs. For a business in the Australian food industry, that is no insignificant matter.

[10] Relationship between Davies Bakery and the union: The relationship between the parties over the past three years has been one characterised by open hostility and litigation. In 2016, approximately 100 employees signed a petition calling for an end to the “continued harassment of employees during lunch breaks and before and after work shifts” by the union. Davies Bakery alleges continuing abuse of the union’s right of entry, most recently in the form of 202 entry notices issued between September 2018 and August 2019 (almost four times a week). The union counters by explaining that on each day it attends the site, three separate notices are required – one each for day, afternoon and night shift. Even so, the number of visits is high. It suggests a concerted campaign. The conduct of each party during union visits has been the subject of mutual allegations of intimidation, coercion and disrespect. These matters sit uneasily with the notion that the parties will bargain with each other in good faith if bargaining is to commence. On the other hand, bargaining may prove to be the necessary circuit breaker if the good faith bargaining requirements encourage the parties to modify their approach.

[11] The current petitions were gathered over six months from March to August 2019. Davies Bakery says that because it took the union so long to garner majority support (if indeed it did), employees must have only reluctantly agreed to support bargaining under the weight of continuing pressure. The petitions disclose that when the application was made on 28 June 2019, the union did not have evidence of majority support for bargaining among employees. In some respects, its application at that time was misplaced because it only gained a majority approximately three weeks later once the first of the final nine petitions were received. I do not discount the possibility that employees required some convincing of the merits of bargaining. Many of them have little knowledge of Australian workplace laws. That is not to say that once persuaded, employees did not genuinely express their views. Apart from the 2016 petition, there is no evidence that employees were coerced or intimidated into signing the petitions. Their voices carry weight. I also note that at the time the application was made, the number of relevant employees was not yet known and nor had the time for ascertaining that number been fixed. With the passage of time, there is always the risk that views may have changed, either in favour of, or against bargaining. In the circumstances, a secondary process to confirm majority support for bargaining would involve unreasonable delay.

[12] Employees with English as a second language: Many of the employees speak English as a second language. Their native languages include Hindi, Punjabi and Vietnamese. Both parties rely on this in support of their own position – one to dispute the reliability of the petitions as an expression of views and the other to demonstrate engagement with employees. While there will always be exceptions, employees working in Australia can generally be taken to have at least a working knowledge of the English language and be both capable of receiving and following instructions. Secondly, the union organisers speak Punjabi, Hindi and Vietnamese respectively. Discussions with employees have frequently been held in the employee’s native tongue and the petition was provided at least to Vietnamese employees in translated form.

[13] Is it what employees really want? Davies Bakery is not convinced that its employees actually want what the union now seeks. It says there is an equally large number of employees who are content with existing arrangements. It cannot prove its contention because it is worried that approaching employees directly about whether they signed petitions in support of bargaining, and why, would risk it being accused of unlawful adverse action. I accept that there are likely to be employees who have little if any interest in enterprise bargaining. There may also be some who have strong views on the matter, either in favour of or against bargaining or union involvement more generally. However, those opposed are likely to be in the minority given the number of the petitions obtained. I am satisfied that there is adequate support for bargaining among the employees.

[14] On balance, I am satisfied that it is reasonable in all the circumstances that the determination be made.

Other matters

[15] I have earlier set out that Davies Bakery has not yet agreed to bargain, or initiated bargaining.

[16] I consider, and it is not seriously in contest, that the group of employees who will be covered by the proposed agreement was fairly chosen. The group is operationally distinct and covers employees performing certain identifiable functions that are covered by a single modern award.

Conclusion

[17] As the conditions for making a majority support determination have been met, the application must be granted.

[18] The determination will issue separately and will come into operation on the date on which it is made.

COMMISSIONER

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