National Union of Workers v Nichols Poultry Pty Ltd

[2016] FWC 6242

[2016] FWC 6242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

National Union of Workers
v
Nichols Poultry Pty Ltd
(B2016/692)

COMMISSIONER RYAN MELBOURNE, 14 SEPTEMBER 2016

Application for a majority support determination for employees of Nichols Poultry Pty Ltd.

[1] The National Union of Workers (NUW) has applied for a majority support determination (MSD) pursuant to s.236 of the Fair Work Act 2009 (the Act) in relation to employees of Nichols Poultry Pty Ltd (Nichols Poultry).

[2] The application identified the group of employees as those engaged by Nichols Poultry in duties involving the processing and distribution of poultry products at 380 Chapel Street, Sassafras, Tasmania.

[3] The NUW obtained the signatures of 77 employees of Nichols at the Sassafras site between the dates of 8 June and 20 July 2016 on a petition, who state they want to bargain for an enterprise agreement. A confidential copy of the petition has been filed in the Commission.

[4] Nichols Poultry was directed to file, in confidence, a list of the relevant employees.

[5] On 19 July 2016 Doolan and Brothers, on behalf of Nichols Poultry, filed a list of its employees, containing 86 names, together with the objections to the application and a request to be heard.

[6] During a mention in this matter I advised the parties that, based on the petition and the list of employees, it appeared that a majority of processing and distribution employees of Nichols Poultry want to bargain for an agreement.

[7] However, due to the objections raised by Nichols Poultry, this matter was programmed for hearing.

[8] At the hearing on 31 August 2016 Mr A. Snowball represented the NUW and
Mr J. Zeeman, of Counsel, represented Nichols Poultry by permission. Ms J. Batt gave evidence for the NUW and Ms R. Nichols gave evidence for Nichols Poultry.

Objections to the Application

[9] The objections to the application are summarised by Nichols Poultry as follows:

“Ground 1:

For the purposes of s237(2)(a) of the Fair Work Act 2009 ("FW Act") the Fair Work Commission ("the Commission") cannot be satisfied that a majority of the employees who will be covered by the proposed agreement want to bargain.

Ground 2:

For the purposes of s237(2)(d) of the FW Act it is not reasonable in all the circumstances to make the determination.”

[10] In support of ground 1 of its objections Nichols Poultry relied on the outcome of a previous majority support application made by the NUW on 6 November 2015 (the First Application) which it alleges was unsuccessful and further that there was no evidence produced by the NUW that circumstances had changed from the date of that ballot being declared by the Australian Electoral Commission (AEC) in January 2016 and the date of lodgement of this application. The First Application was dealt with by Kovacic DP in matter B2015/1545.

[11] That part of the written objections state:

“16. The Respondent is not aware of any change in circumstances from the date of the secret attendance ballot and the date that the Application was made.

17. Whilst the Respondent sought details of any change in circumstances in its email to the Applicant on 5 July 2016, the Applicant has not provided such details other than providing a general statement that "an even greater majority of workers have indicated a willingness to bargain". Given the result of the secret attendance ballot that statement on its own does not support a conclusion that a majority of the identified group of employees want to bargain. In the absence therefore of details of the changed circumstances the Respondent was, and remains, unable to determine whether a majority of the identified group want to bargain.

18. The Application relies upon a petition as the proposed method for determining majority support. This is the same method proposed in the First Application however the result of the secret attendance ballot confirmed that there was not majority support. Based on what occurred in the First Application, and in the absence of the Applicant providing any specific details of changed circumstances, the Respondent has no basis for concluding that there is now majority support to bargain.”

[12] I give little weight to those objections. The Commission has before it an application for an MSD made by the NUW on 7 July 2016. It does not have the First Application before it. There is nothing in the Act which prevents a subsequent MSD application being made following an unsuccessful MSD application.

[13] In AWU v F. Laucke P/L t/as Laucke Mills, 1 Hampton C ordered that the AEC conduct a postal ballot of employees to resolve the question of whether a majority of employees of Laucke Mills wanted to commence bargaining. The AEC ballot was ordered after an earlier employee ballot had failed to resolve the issue. Notably, in his decision Hampton C said:

“[28] The dismissal of the application would also not prevent a fresh application being made at some point in the future when/if the necessary majority support of the employee group can be demonstrated.”

[14] Kovacic DP did not determine the First Application as the NUW withdrew the application after the result of the secret attendance ballot of employees which Kovacic DP ordered be conducted by the AEC. Nichols Poultry contended that the result of the secret attendance ballot confirmed that there was not majority support.

[15] I am aware that the NUW before withdrawing the First Application raised concerns with the Commission as to the process of the ballot conducted by the AEC, including querying the number of employees on the roll of voters.

[16] I observe that had the NUW pressed the First Application a real issue would have arisen as to how the Commission would have determined that application given the results of the AEC attendance ballot disclosed that only 37% of employees on the roll cast a vote.

[17] In a decision in AWU v Kantfield Pty Ltd T/A Martogg & Company 2 the Commission as currently constituted in a MSD application found that:

“[51] Where the Commission uses the AEC or any other person to conduct an optional vote, then the Commission must deal with the obvious fact that there will be employees who do not vote and it is likely that the number who do not vote will be significant.

[52] Employees who do not vote in an optional vote cannot be considered to have expressed a definitive view either for or against bargaining with their employer. However, it might be reasonable for the Commission to distribute the non-votes amongst the Yes and No votes in the same proportion as the Yes and No votes. For example, out of 100 voters on the roll 60 vote and the vote is 40 Yes and 20 No. The Commission could split the 40 non votes amongst the Yes and No on the basis of 60% being allocated to the Yes vote and 40% being allocated to the No vote. The final result would then be 64 Yes votes and 56 No votes. The practical difficulty in allocating non votes to either side is that it would invariably attract an appeal.

[53] At the present time it almost appears that if the Commission, pursuant to s.237(3), chooses an optional vote (whether attendance or postal) it is most likely going to lead to a failure of the s.236 application. Merely having the AEC conduct an optional vote doesn’t cure the fundamental weakness inherent in using optional voting as means of determining whether a majority of employees want to bargain with their employer.”

[18] That part of the written objections which go to ground 2 - reasonable in all of the circumstances – state:

“19. The conduct of the Applicant is to be taken into account in considering reasonableness (Media, Entertainment and Arts Alliance [2013] FWC 3231 at [57).) In particular, the Applicant has acted unreasonably by:

a) Failing to provide a sufficiently detailed response to the Respondent's email dated 5 July 2016 that allowed the Respondent to properly consider whether a majority existed; and

b) By imposing unreasonably short timeframes on the Respondent to respond to the Applicant's emails, before lodging the Application.

20. Further, this matter raises the issue of subsequent applications under s236 of the FW Act, in circumstances where an initial application is unsuccessful. It is inconsistent with the objects of Part 2-4 of the FW Act, in particular providing a simple, flexible and fair framework for collective bargaining in good faith, if an applicant, when unsuccessful on a s236 application, is able to make subsequent applications in the hope of getting a different result, at least when there is no satisfactory evidence that circumstances have changed since the initial application was determined.

21. The unreasonableness of such conduct is apparent when consideration is given to the time, resources and cost that a respondent invariably spends in responding to a s236 application. Accordingly, before making the Application, it would have only been fair, and therefore reasonable, for the Applicant to provide the Respondent with sufficient detail of changed circumstances, as the Respondent requested in its email dated 5 July 2016.

22. For these reasons the Respondent respectfully submits that it is not reasonable in all the circumstances to make the determination sought by the Application.”

[19] The NUW submissions in response to that part of the objections are:

“31. In any event, the Applicant has not acted unreasonably in this matter. An initial application (matter number B2015/1545) was made in late 2015. This led to an order being made by Kovacic DP requiring a ballot of processing and distribution employees in January 2016. The matter was then discontinued by the Applicant.

32. In the months after the initial application was discontinued a significant number of processing and distribution employees reiterated their support for bargaining to Ms Batt. As a result, Ms Batt distributed a petition to employees that a majority of processing and distribution employees signed.

33. On 1 July 2016 Ms Batt sent an email to Ms Nichols requesting that the employer agree to bargain. Ms Nichols responded on 5 July 2016 requesting more information. Ms Batt responded indicating that an even greater majority of workers had indicated their support for bargaining.

34. The Applicant provided sufficient information to the Company when it requested clarification on what circumstances had changed since the ballot in January. Ms Batt clearly explained that a majority of processing and distribution employees wished to bargain and, on this basis, requested that the Company commit to bargaining.

35. There is no evidence of any improper or unreasonable conduct on behalf of the Applicant.

36. On this basis the Commission should find that it is reasonable in all the circumstances to make the determination.”

[20] The NUW submissions provide an appropriate response to the contentions of Nichols Poultry. I do not consider the conduct of the NUW as outlined in Nichols Poultry’s written objections constitutes improper conduct and therefore the submission does not weigh against a finding of reasonableness in the circumstances.

Legislative framework

[21] The relevant sections of the Act in relation to this application are sections 236 and 237. They set out the matters about which the Fair Work Commission (FWC, the Commission) must be satisfied before making a majority support determination, in the following terms:

“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.”

[22] I will deal with each of the legislative requirements in turn.

Section 237(1)(a)

[23] It was not disputed that the NUW has made an application for a MSD. In relation to the requirement under section 236(1), that the application is to be made by a bargaining representative of an employee who will be covered by a proposed single enterprise agreement, the NUW stated that, by virtue of section 176(1)(b), it is an employee organisation who is a bargaining representative of an employee who is a member of the NUW.

[24] I find that an application has been made by a bargaining representative of an employee who will be covered by the proposed agreement, namely, the NUW.
Section 237(2)(a) - a majority of employees want to bargain

[25] Ms J. Batt gave evidence on behalf of the NUW in relation to how the signatures on the NUW petition were gathered, the explanation she gave at the time she asked employees to sign the petition and as to the custody of that petition.

[26] For the purposes of s.237(2)(a)(i) of the Act the Commission has determined that the time at which the Commission will determine whether a majority of employees of Nichols Poultry want to bargain with their employer is at 8 July 2016.

[27] The Commission is satisfied that as at 8 July 2016 a majority of employees of Nichols Poultry wanted to bargain with their employer for an enterprise agreement and that a majority of employees of Nichols Poultry indicated that they wanted to bargain with Nichols Poultry by signing a petition.

Section 237(2)(b) – employer has not agreed to bargain nor initiated bargaining

[28] Nichols Poultry has at all times throughout these proceedings made clear that it has not yet agreed to bargain with its employees for an enterprise agreement and that it has not yet initiated bargaining for an enterprise agreement.

[29] Nichols Poultry submitted that it was not in a position to enter into bargaining with the NUW as it was not satisfied that the NUW had proven there was a majority of employees who wanted to bargain prior to the NUW lodging this application.

[30] If this then was the only bar to Nichols Poultry agreeing to bargain, then it appears to me that Nichols Poultry could have agreed to bargain when the Commission gave its preliminary views in relation to its examination of the respective documents filed by the parties (see [6] above).

[31] The Commission is satisfied in relation to s.237(2)(b).

Section 237(2)(c) – fairly chosen

[32] The Commission is satisfied that the group of employees who will be covered by the proposed enterprise agreement has been fairly chosen (s.237(2)(c)).

Section 237(2)(d) - reasonable in all the circumstances

[33] I have addressed the objections of Nichols Poultry which go to reasonable in all the circumstances in [20] above.

[34] Having considered all of the circumstances of this matter the Commission is satisfied that it is reasonable to make the determination sought by the NUW.

[35] The determination in this matter will be issued separately.

COMMISSIONER

Appearances:

A. Snowball for the National Union of Workers.

J. Zeeman of counsel for Nichols Poultry Pty Ltd.

Hearing details:

2016.

Melbourne, Launceston

August 31.

 1   [2013] FWC 4632.

 2   [2016] FWC 6473.

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<Price code C, PR584922>