National Union of Workers v Laverton Cold Storage Pty Ltd

[2017] FWC 6182

[2017] FWC 6182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236 - Application for a majority support determination

National Union of Workers

v

Laverton Cold Storage Pty Ltd

(B2017/1054)

DEPUTY PRESIDENT COLMAN MELBOURNE, 27 November 2017

Application by National Union of Workers for a majority support determination.

1. This decision concerns an application filed by the National Union of Workers (NUW) under s.236 of the Fair Work Act 2009 (Act) for a majority support determination. The NUW contends that a majority of employees who would be covered by a proposed enterprise agreement want to bargain with their employer, Laverton Cold Storage Pty Ltd (Company).

1. The employees who would be covered by the proposed agreement are described in the application as ‘employees engaged in duties including the loading and unloading of trucks and the storage and retrieval of refrigerated or frozen goods at the Company’s two cold storage warehouses’, at Foundation Road Truganina and Cherry Lane Laverton North in Victoria.

1. The application referred to an employee petition which was said to demonstrate majority support for bargaining. The petition comprised 29 individual sheets entitled ‘Petition in Support of Bargaining for an Enterprise Agreement’. Each sheet referred to a (redacted) name and position of an employee, and showed a ticked box that indicated that the employee wished for the NUW to commence bargaining with the Company for an enterprise agreement covering ‘warehousing and cold storage workers’ at the two sites.

1. The application stated that the Company had not yet agreed to bargain, and this was not disputed by the Company.

1. On 10 November 2017, I issued directions by consent. They required the NUW to provide the Company with a redacted copy of the employee petition, and the Commission with an un-redacted copy. The Company was directed to provide the NUW with a redacted copy of a list of relevant employees showing job classifications, and to provide the Commission with an un-redacted copy.

1. The directions further noted that in the event of either party disputing the other’s materials, the Commission would hear submissions on the matter and make a determination; and that once any disputes were resolved, the parties would accept the determination of the Commission as to the presence of majority support for bargaining on the materials provided.

1. The parties filed materials in accordance with the directions. The NUW’s un-redacted petition sent to the Commission comprised 29 petition sheets as described above, showing employees’ names and positions. The Company provided a list of employees who perform warehouse and cold storage duties as at 13 November 2017, indicating that there are 46 employees across the two sites.

1. On 15 November 2017, the NUW advised the Commission that it objected to the inclusion on the employer’s list of three employees listed as ‘customer relations’ employees. It contended that these employees were not predominantly employed to perform cold storage or warehousing duties under the Storage Services and Wholesale Award 2000. In this regard, the union’s application contained the following exclusion:

‘The proposed agreement will not apply to any employees who are operationally and organisationally distinct, and engaged in the following duties:

-Clerical, administrative and payroll functions;

-Sales and customer service functions;

-Managers who are responsible for managing any person employed as a supervisor or leading hand; and

-Any other employee whose role would fall outside the scope of the Storage Services and Wholesale Award 2010.’  

1. On 16 November 2017, the Company advised the Commission that it objected to the removal from the list of the three employees in the ‘customer relations’ category. It submitted that the three employees in question perform the following duties: setting up loads to be picked; checking stocks; photographing cartons if required; and driving material handling equipment. In the last mentioned connection, two of the three employees concerned have ‘licences’, the other does not but ‘deals with truck drivers’. The Company submitted that the employees in question are referred to as ‘customer relations’ because they are the link to its customers’ staff who book orders. The three employees receive and set up orders, and attend to customer requests, but according to the Company they are warehousing employees.

1. Later on 16 November 2017, the Company and the union confirmed that they wished the Commission to determine whether to include the customer relations employees based on the materials before it.

1. Section 237 provides that the Commission must make a majority support determination in relation to a proposed single enterprise agreement if an application has been made under s.236, and the Commission is satisfied of the matters in s.237(2), namely 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.”

1. In relation to the matter in s.237(2)(a), the Commission may work out whether a majority of employees want to bargain using any method it considers appropriate (s.237(3)).

1. In respect of s.237(2)(c), if the proposed agreement will not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct (s.237(3A)).

Consideration

1. The NUW’s application for a majority support determination meets the requirements of s.236. It is an application by a bargaining representative of employees who will be covered by a proposed single enterprise agreement. There was no dispute that the union represents members at the site, and that its registered rules entitle it to represent the industrial interests of employees of the kind who would be covered by the proposed agreement.[1]

1. In relation to s.237(2)(a), the Commission must consider whether a majority of the relevant employees employed by the Company at a particular time, and who will be covered by the agreement, want to bargain. The time that I have determined for the purposes of the analysis in s.237(a) is 13 November 2017, being the date of the Company’s un-redacted list of relevant employees, and three days after the union submitted its un-redacted petition to the Commission.

1. In relation to the question of the method that should be used in establishing whether a majority of employees want to bargain, I am satisfied that the use of a petition is appropriate in the present case (s.237(3)).[2] The application addressed the circumstances in which the petition was compiled. It stated that in June 2017 a number of employees had signed a petition in support of enterprise bargaining, but that there were not sufficient signatures to demonstrate that a majority wished to bargain. In September 2017, more employees contacted the NUW to indicate their wish to commence bargaining with the Company. Between 12 October 2017 and 30 October 2017 employees signed the petition indicating that they wanted to commence bargaining. The employer did not challenge the accuracy of the above account. I note that the employee signatures are all dated between 12 and 30 October 2017.

1. This brings me to the question of whether a majority of relevant employees employed by the Company as at 13 November 2017, and who would be covered by the agreement, want to bargain.

1. The position titles of the employees on the employer’s list are as follows: forklift operator, labourer, checking officer, cleaner (warehouse), maintenance (non-trade), maintenance, export documentation, customer relations, and supervisor. The only category objected to by the NUW was ‘customer relations’.

1. Whether customer relations employees fall within the scope of the proposed agreement requires consideration of the ‘exclusion’ in the union’s application cited above, and in particular whether such employees are engaged in ‘sales and customer service functions’, or otherwise fall outside the scope of the Storage Services and Wholesale Award 2010.  Based on the information provided by the Company, I consider that the work performed by these employees falls within the scope of the Award. I agree with the Company’s submission that these employees should be included in the list of in-scope employees.

1. I have also considered whether the classification of ‘supervisor’ might not be covered by the application. However, the terms of the application exclude ‘managers who are responsible for managing any person employed as a supervisor or leading hand.’ By implication, supervisors are included. They are also covered by the Award.

1. As to the union’s petition, the names of 26 of the 29 employees who have signed petition sheets appear on the Company’s list of relevant employees. Accordingly, I am satisfied that a majority of employees (26 out of 46) employed by the Company on 13 November 2017, and who will be covered by the proposed agreement, wish to bargain.

1. I am also satisfied of the matters set out in s.237(2)(b), (c) and (d).

1. First, it is not in dispute that the company has not yet agreed to bargain.

1. Second, I am satisfied that the group of employees who will be covered by the agreement was fairly chosen. In reaching this conclusion, I have taken into account whether the group is geographically, operationally or organisationally distinct, as required by s.237(3A). In my view the group in question is at least operationally distinct, which is a factor telling in favour of a finding that the group was fairly chosen.[3]

1. Thirdly, I am satisfied that it is reasonable in all the circumstances to make the determination. No contention to the contrary was raised by the Company, nor can I identify any basis for such a contention in the materials before me.

1. As I am satisfied of the matters set out in s.237, I must make a majority support determination in accordance with s.237(1).

1. A determination will be issued separately. As provided by s.237(4), the determination will come into operation on the date on which it is made.

DEPUTY PRESIDENT

[1] It is not necessary that the union be eligible to represent all relevant employees. See ResMed Limited v AMWU, [2014] FWCFB 2418

[2] NUW v Cotton On Group Services Pty Ltd, [2014] FWC 6601

[3] See QGC Pty Ltd v AWU, [2017] FWCFB 1165 at [42]

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