National Union of Workers v Early Settler Pty Ltd

[2017] FWC 2063

[2017] FWC 2063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

National Union of Workers
v
Early Settler Pty Ltd
(B2017/226)

COMMISSIONER ROE MELBOURNE, 12 APRIL 2017

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 (s.236 of the Fair Work Act 2009 (the Act)). The NUW is seeking a determination in respect to employees engaged in receiving, picking, packing and dispatch work at 164-168 Atlantic Drive, Keysborough, Victoria, 3173.

[2] The employer, Early Setter Pty Ltd (Early Settler) opposed the application.

[3] During final submissions Early Settler pointed to an inconsistency between the scope sought by the NUW on the petition and the scope sought in the application. The NUW sought to amend the scope in two ways to make it consistent or more consistent with the petition. The petition referred to “employees engaged in duties involving receiving, picking, packing and dispatch work” whilst the application referred to “employees engaged in receipting, picking, packing and dispatch work.” I advised the parties that I did not consider that there was any material difference between “receipting” and “receiving” in the context of stores and warehouse work. The company submitted that the use of the word “receipting” was more than a typing error but not did not make any submission that there was a material difference between these two words in the stores and warehouse context. I do not consider that the validity of the petition as an expression of employee views was affected by this difference and I would therefore exercise my discretion under s.586 to amend the application to alter “receipting” to “receiving”. However, I consider that the words “duties involving” may make the scope of the petition wider than the scope of the application and that it would be procedurally unfair to vary the application in that respect.

[4] Employees who signed the petition and who fall within the scope of the application and also within the scope of the petition clearly support the majority support determination. To the extent that there is a material difference between the scope of the petition and the scope of the application, it is only those who fall within the scope of the application which can be considered for the purpose of determining if there is majority support.

[5] The evidence established that:

● A petition was collected on 10 November 2016. The NUW organiser held about four meetings with employees to discuss union membership and enterprise bargaining prior to the petition being collected. A log of claims was developed and endorsed by a group of employees. The NUW delegate, Mr Davidson, collected the signatures on the petition. Mr Davidson and the organiser Mr Howie told employees that they were not obliged to sign the petition and the purpose of the petition. There was no evidence or submission that there was any coercion or misrepresentation. Thirteen employees signed the petition and all those employees fall within the scope of “engaged in receiving, picking, packing and dispatch work” at the site.

● The first petition was given to the company but Mr Howie lost the petition in his office and so decided to collect another petition. However, subsequently Mr Howie found the petition again and so it formed part of the evidence.

● The second petition was collected in the same manner as the first and it was signed between 6 and 9 March 2017. Sixteen employees signed that petition. The company disputes that three employees who signed the March petition and who did not sign the November petition are within the scope of “engaged in receiving, picking, packing and dispatch work” at the site. The three employees are engaged in clerical administrative duties within the warehouse area.

● The NUW made its majority support determination application on 20 March 2017. I wrote to the parties on 22 March 2017 advising that the matter would be listed for hearing on 5 April 2017 and that the company should advise by 24 March if it opposed the application. If the application was not opposed I indicated that the hearing would not be required and if it was opposed the NUW should provide material by 28 March 2017 and the company should provide material by 31 March 2017.

● The company responded that it opposed the NUW application for a majority support determination and sought that the hearing be delayed so that it could undertake its own ballot. I rejected that application.

● The company decided to conduct its own ballot. It issued a notice on 28 March 2017 which stated that “ERS is not aware of how this petition was conducted and whether employees were coerced into signing the petition”. They said that the petition had been “in support of the NUW negotiating an Enterprise Agreement” and that they would conduct a secret ballot to “ascertain whether there is a majority of warehouse employees who would be in favour of the NUW negotiating an Enterprise Agreement on their behalf.” The notice then went on to explain why the company believed that it was already providing terms and conditions of employment which met the claims which were being raised by the NUW and that “the company does not believe that there is a need to negotiate an Enterprise Agreement”. The notice sated that the NUW has “represented to employees that it can negotiate on behalf of all staff, including admin and clerical staff” and went on to say that “this is not true as it is only entitled to negotiate on behalf of storage staff”. It then stated that the purpose of the ballot “will be to determine if there is a genuine majority of warehouse employees who would like the NUW to negotiate an enterprise agreement on their behalf.”
● The secret ballot was held on 30 March 2017 but after five workers had voted the ballot was abandoned because Mr Davidson raised the issue that the question on the notice and the question on the ballot paper were different. Mr Cresswell for the company had a discussion with Mr Davidson about the reason for the question on the ballot paper being different. Mr Cresswell says that he had misunderstood what the ballot was about and thought that it was about whether the NUW should represent the workers. There was some discussion about clarification from the Fair Work Commission. In these circumstances Mr Davidson said that he would be encouraging people not to vote.

● A new notice was issued on 31 March where the question was corrected to be consistent with the ballot paper: “do you want to bargain with Early Settler for an enterprise agreement that covers employees performing store worker or wholesale duties?” The scope of this question is different from the scope set out in the NUW application. The company admitted that there had been some confusion amongst employees. Employees had to deal with two petitions, the two secret ballots and the two notices. The ballot was held on 3 April 2017. The union did not boycott the ballot but Mr Davidson and Mr Howie gave evidence that some employees were confused about the ballot. Five workers who signed the petition did not vote in the ballot. 14 workers voted and 9 voted in favour of bargaining. The three clerical/administration workers who had signed the petition were excluded from voting.

[6] I am satisfied that the Application has been properly made pursuant to s.236 and that the NUW is eligible under its rules to cover at least some of the storage workers who are employed by Early Settler 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.

[7] I am satisfied and it is not disputed that the group of employees who will be covered by the agreement is fairly chosen (s.237(2)(c) of the Act). In reaching this conclusion I am satisfied that the employees are geographically and organisationally distinct from other Early Settler employees. The warehouse of the one distinct facility is geographically distinct and the warehouse workers perform inherently different work that is specific to the warehouse and distribution aspects of the business and therefore are organisationally and operationally distinct. This conclusion is not affected by whether or not the clerical administrative workers in the warehouse are included or not. Excluding or including these workers might affect the degree of organisational and operational distinctiveness but not the extent that the group was not fairly chosen. I am satisfied that there is nothing artificial about the selection of storage services workers at this location.

[8] In this case there is no dispute that the employer has not agreed to bargain (s.237(2)(b) of the Act), There is dispute over whether or not it is reasonable in the circumstances to make the determination.

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

(a) Should I be satisfied that it is reasonable in all of the circumstances to make the determination given that the company argues that it is not satisfied that there is a majority and that there is no need for bargaining?

(b) Should I be satisfied that a majority of the workers (employed within the scope of the proposed agreement) wish to bargain for an agreement?

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 is not satisfied that there is a majority and that there is no need for bargaining?

[10] The submissions of the company in this respect must be rejected. There is no requirement for the company to agree that there is a majority. This is purely a matter for FWC to determine. There is also no requirement for FWC to determine or make a judgment on the desirability or necessity for bargaining. The fact that the employer believes that employees are in receipt of good wages and conditions does not make a majority support determination unreasonable. I am satisfied that in the circumstances of this case it is reasonable to make the determination if there is a majority. There are no other matters which were put to me which could lead me to conclude that it would not be reasonable to make the determination.

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

[11] There are 13 employees who signed both petitions and whom the company accept are stores or warehouse workers who fall within the scope of both the petition and the application for a majority support determination. I consider the fact that 13 persons signed both the petition in November and then the petition in March to be strong evidence that those 13 persons genuinely want to bargain with the company for an agreement.

[12] I found the evidence of Mr Davidson and Mr Howie concerning the integrity of the petitions and the process for obtaining the signatures to be convincing. They were straightforward and consistent. Mr Davidson made concessions where necessary even where they did not assist his case. I was satisfied that Mr Davidson had a good knowledge of his fellow workers in the warehouse and the nature of their duties.

[13] Mr Cresswell for the company was also a believable witness. Mr Cresswell as the Chief Financial Officer for the company accepted that he does not have responsibility for the work of those in the warehouse and they do not report to him. I am satisfied that his first-hand experience and knowledge of the duties of those who work in the warehouse was much less than that of Mr Davidson. Where there is conflict between the evidence of Mr Cresswell and that of Mr Davidson concerning the duties of those who work in the warehouse I therefore prefer the evidence of Mr Davidson.

[14] There were only two matters raised by Mr Cresswell and the company which could call into question the integrity of the petitions as an expression of the views of those who signed the petitions. The first of those matters relates to Mr Singh and the second of those matters relates to the secret ballot conducted by the company.

[15] Mr Singh signed both petitions. Mr Singh did not participate in the company secret ballot. Mr Cresswell gave evidence that on 30 March Mr Singh told him that he did not want deductions for union membership from his pay to continue and that he no longer wanted to be a member of the NUW. Mr Davidson gave evidence that this was because Mr Singh had financial pressures to deal with.

[16] I am not satisfied that Mr Singh’s advice to Mr Cresswell that he no longer wanted to be in the union has anything to do with his signature on the petition for a majority support determination. I have no idea how many of those who signed the petition are or were members of the NUW. The petition is about bargaining not about the union or its role. Any agreement which results from bargaining must by law apply equally to union members and non-union members. I do not accept the submission of the company that Mr Singh’s decision, taken after the application for a majority support determination was made, raises any doubts about the integrity of the petitions as an expression of his views.

[17] I am not satisfied that the secret ballot conducted by the company raises doubts about the integrity of the petitions as an expression of the views of those who signed the petition. Mr Cresswell accepted that he misinterpreted and misunderstood what the petition and the application was about. He accepted that there was confusion. The notice for the ballot incorrectly stated that the NUW could not negotiate on behalf of the clerical/administrative staff in the warehouse. It was clear during the proceedings that Mr Cresswell and the company also confused the question of the scope of the Award with the scope of the NUW’s rules coverage. I am satisfied that a fair reading of the message to employees conveyed by the company notices was that it was strongly opposed to bargaining with the NUW for an enterprise agreement and that it was running a secret ballot in the hope that it would enable it to defeat the NUW application for a majority support determination. This was in circumstances where FWC had not yet had a hearing in respect to the NUW application.

[18] The first ballot was not completed because of the confusion associated with the conflict between the ballot question and the information provided in the notice. The ballot question has a different scope than that contained in the NUW petition and from that contained in the NUW application. It is a matter for the NUW as the applicant not the company to determine the scope of the determination sought. Given the company had made the issue of whether or not clerical administrative workers in the warehouse were included or could be included in the scope of the application a matter of controversy the fact that the scope on the ballot paper was different to that on either the petition or the application was confusing.

[19] I accept the evidence of Mr Davidson that some workers were confused and therefore decided not to vote. Mr Davidson says that “I think that lots of people didn’t vote in the secret ballot because they were confused by the change of wording and about which staff members would be covered by the agreement.” Although we do not have direct evidence from employees who did not vote, I consider Mr Davidson to be a well-informed employee representative and his evidence is not contradicted by management’s witness Mr Cresswell. There is no evidence that any employee has changed their mind about their signature on the petition.

[20] In the particular circumstances of this case I do not believe that the management secret ballot undermines or calls into question the validity of the petitions as an expression of employee views. The circumstances surrounding the secret ballot lead me to disregard it as an expression of employee views.

[21] I now turn to the question of whether or not I can be satisfied that there is majority support based upon the petitions. It is necessary to establish how many employees are employed within the scope proposed by the NUW. The company says that there are 25 such employees. However, there was evidence concerning a number of disputed employees:

● I accept the evidence of Mr Davidson that Mr Visser has not worked for the company in the warehouse since 2016. Mr Cresswell could not definitively contradict Mr Davidson’s evidence and for the reasons discussed earlier I consider Mr Davidson to be a reliable witness in respect to the roles of his work colleagues.

● I am satisfied that Mr Haines is the Acting Manager of the Warehouse and prior to being the acting manager he was the second in charge of the warehouse and was not engaged in receiving, picking, packing and dispatch work. To the extent that there is conflict between the evidence of Mr Creswell and Mr Davidson on this point I prefer the evidence of Mr Davidson.

● I am satisfied that Mr Healy is a supervisor in the warehouse but he does do some receiving, picking and packing work. Although I accept the evidence of Mr Davidson and Mr Howie that it was not the intention of the NUW to include supervisors, I consider that he may fall within the scope of the petition and the application and therefore he should be counted.

● I am satisfied from the evidence of Mr Davidson that Mr Griffiths does work within the warehouse but he does computer work trouble shooting orders and other problems and he does not perform receiving, picking, packing and dispatch work in the warehouse itself.

● There are three employees who signed the March petition who are not included in the 25 employees identified by the company who perform clerical/administrative work particularly in ordering or receiving located within the warehouse but they do not physically pick, pack, dispatch or receive goods. Mr Davidson gave evidence which I accept that they make up the orders for the other warehouse workers to pick.

[22] If the clerical/administrative/computer functions fall within the scope then there are 16 employees who signed the petition and who fall within the scope of the application out of a total of 27 employees who fall within the scope of the application. If the clerical/administrative/computer functions are not within the scope then there are 13 employees who signed the petition who fall within the scope of the application out of a total of 22 employees who fall within the scope of the application. In either case there is a clear majority.

[23] The issue of whether or not the clerical/administrative/computer functions fall within the scope is uncertain. I reject the submission of the company which refers to the scope of the classifications in the Storage Services and Wholesale Award 2010. Neither the petition nor the application refer to the Award. Even if the submission of the company that these workers are covered by the Clerks Private Sector Award 2010 is correct that does not mean that they fall outside the scope of the NUW application. The coverage of the NUW is not confined to the scope of the Award. Furthermore, the scope of a majority support determination is not limited to the scope of a union applicant’s rules coverage. It is arguable that those engaged in the clerical/administrative/computer functions directly associated with the warehouse work are engaged in receiving, picking, packing and dispatch work. However, for the reasons discussed it is not necessary to determine this matter. The parties in the bargaining process are able to clarify and refine the scope of any final agreement.

[24] The period of time between the last petition and the making of the application and the hearing of this matter is less than one month. In the absence of evidence of significantly changed circumstances or that any employee has changed their views or is likely to have changed their views I consider that the petition is an adequate expression of employee views.

[25] Consequently, I am satisfied that a majority of the relevant employees who will be covered by the proposed agreement wish to bargain for an enterprise agreement as at 5 April 2017. I am also satisfied that each of paragraphs (b), (c) and (d) of s.237(2) of the Acthave been made out. As a result, pursuant to s.237(1) I must make a majority support determination which will operate from the date of this decision.

Determination

[26] A majority of storage services employees employed by Early Settler engaged in receiving, picking, packing and dispatch work at 164-168 Atlantic Drive, Keysborough, Victoria, 3173 (Eligible Employees) who will be covered by the Agreement wish to bargain with Early Settler.

COMMISSIONER

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