National Union of Workers v Gap Logistics Pty Ltd

[2015] FWC 7048

[2015] FWC 7048

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
GAP Logistics Pty Ltd
(B2015/1353)

COMMISSIONER ROE MELBOURNE, 13 OCTOBER 2015

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)) and that the employer who will be covered by the proposed agreement, GAP Logistics Pty Ltd, has not agreed to bargain (Section 237(2)(b) of the Act).

[2] I am also 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 warehousing/distribution employees are in one distinct facility at Parkwest Drive Derrimut Victoria and are organisationally and operationally distinct from other managerial and/or administrative employees who are employed by GAP Logistics Pty Ltd (Section 237(3A)). I am satisfied that there is nothing artificial about the selection of warehousing/distribution workers.

[3] I am also satisfied that the petition provided by the NUW demonstrates that a majority of the employees who are employed as warehousing/distribution employees by GAP Logistics Pty Ltd want to bargain for an agreement. Seven employees who will be covered by the proposed agreement signed the petition on 12 August 2015. Ms Lewis of the NUW gave evidence that one further NUW member supports bargaining for the agreement but had not had the opportunity to sign the petition. About 10 workers would be covered by the proposed agreement. I consider that the petition in the circumstances of this case is an appropriate method to demonstrate majority support. The employer concedes that the requirement of Section 237(2)(a) has been met.

[4] Given that it is not disputed and I am satisfied that the requirements of Section 236 and the requirements of Section 237(a)-(c) have been met then I must make a majority support determination provided that Section 237(d) is met. Section 237(d) requires the Fair Work Commission to be satisfied that “it is reasonable in all the circumstances to make the determination”.

[5] GAP argues that I should not be satisfied that it is reasonable in all the circumstances to make the determination. They argue that:

● Employees were provided vague and insufficient information to secure the signatures on the petition.

● The petition was titled “Petition in support for bargaining for fair wages” and this wrongly implies that the wages paid currently are unfair. GAP submits that they pay 16% above the award on average. GAP therefore claims that the information provided by the NUW was misleading.

● The NUW did not discuss the significant difference between the base rate of the award and the current rates of pay with the employees when they spoke to employees.

● GAP argues that the NUW did not present the log of claims that they subsequently provided to GAP to the employees prior to asking them to sign the petition. The employees were therefore unaware of what the union would be seeking including changes to superannuation. The employees were therefore misled.

● GAP argues that employees were not advised that they could negotiate for wage increases without the need for an enterprise bargaining process.

● GAP argues that it is a small business and that there is no need for bargaining and that bargaining is unnecessary as it pays above the award.

[6] The NUW provided evidence of the process it undertook in obtaining the petition. Ms Lewis, an NUW organiser, gave evidence that she explained the nature of bargaining to the employees. The NUW also provided a copy of the information bulletin it circulated to the employees entitled “what is enterprise bargaining”, the petition which was signed on 12 August 2015, a survey which it circulated to employees asking them about what pay rise and other conditions they were seeking, and the log of claims it provided to GAP on 5 August 2015.

[7] Ms Lewis gave evidence that she had visited the site a number of times prior to employees signing the petition. During those visits Ms Lewis had joined a number of employees into the union and then circulated a survey in which members and some non-members had expressed their views about the wage increases they were seeking and other issues that they wanted addressed. Ms Lewis had then constructed a log of claims which included those matters and also some other matters which the NUW generally includes in these logs. Ms Lewis informed employees by text message that she was providing the employer with a log of claims. Ms Lewis did not seek the approval of the employees for the log of claims and she did not discuss the details of everything in the log of claims with employees. On 5 August 2015 Ms Lewis wrote to the employer asking them to agree to bargain and attaching both a log of claims and a notice of representational rights which they wanted the employer to issue.

[8] Ms Lewis said that on two occasions prior to asking employees to sign the petition in support of bargaining she explained to employees what the nature of enterprise bargaining was and the process. Following this she asked employees to sign a petition in support of bargaining. She said that the petition has the heading “petition in support for bargaining for fair wages” because employees had told her through the earlier survey that a fair wage increase was a priority for them. The employees signed the petition on 12 August 2015. Following the signing of the petition Ms Lewis provided employees with the circular “what is enterprise bargaining”. Ms Lewis says that she did this to reinforce the process she had earlier explained to them and also to ensure that employees understood the likely next steps.

[9] I am satisfied that there is nothing misleading or improper in the information bulletin or the log of claims. I am satisfied that the evidence of Ms Lewis is sufficient to demonstrate that employees were not misled or misinformed. Just as the legislation contemplates that an employer may express its view that it does not wish to bargain for an agreement, the legislation contemplates that unions may agitate for employees to express views in support of an agreement. There is nothing misleading or improper in the union seeking to persuade employees of the potential benefits of an agreement and of negotiating for an agreement. It is reasonable for the union to imply that the current wages are not fair even where the wages paid are above the award. It is not incumbent on the union in seeking support for a majority support determination to point out the current level of over award payment or to suggest that employees might negotiate for wage increases without the need for an enterprise bargaining process. This is particularly the case given that the legislation prevents employees from taking protected industrial action outside of the enterprise bargaining process.

[10] I am not satisfied that the circumstances surrounding the log of claims are unusual or provide a basis for a conclusion that employees were misled or misinformed when signing the petition. The petition is an expression of support for bargaining. It is not an expression of support for the achievement of any or all of the particular items in a log of claims. It is possible that employees and the union may determine to change the log of claims or to alter or withdraw particular claims in the log in the bargaining process. The actions and arguments of the employer in the bargaining process are likely to influence these matters. The fact that Ms Lewis did not have authorisation from the employees to put forward all of the items in the log of claims does not affect the conclusion the petition is a reasonable expression of employees that they want to bargain for an agreement.

[11] There is nothing in the legislation that suggests that employees’ right to bargain or take protected industrial action is affected by the size of the enterprise. Nor is there anything in the legislation which suggests that employees who receive over award payments should not have the right to bargain or take protected industrial action. I can see nothing in the particular circumstances of this company which would make it unreasonable for the employer to be required to bargain for an agreement.

[12] I am satisfied that it is reasonable in all the circumstances to make the determination.

[13] Consequently I am satisfied that a majority of the relevant employees wish to bargain for an enterprise agreement as at 12 August 2015. I am also satisfied that each of paragraphs (b), (c) and (d) of Section 237(2) of the Acthave been made out. As a result, pursuant to Section 237(1) I must make a majority support determination which will operate from the date of this decision.

Determination

[14] A majority of the warehouse employees and administration employees performing work which is ancillary to warehousing of the Employer who work at the warehouse at 50 Parkwest Drive Derrimut Victoria (Eligible Employees) who will be covered by the proposed Agreement want to bargain for an agreement with Gap Logistics Pty Ltd (the Employer). This majority support determination will apply from the date of this decision.

COMMISSIONER

Appearances:

Mr D Mujkic appeared for the NUW.

Mr E Sexton and Mr S Clark appeared for the Respondent.

Hearing details:

2015

Melbourne

October 12

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