National Union of Workers v Stay in Bed Milk and Bread Pty Ltd T/A Aussie Farmers Direct
[2013] FWC 4541
•9 JULY 2013
[2013] FWC 4541 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.236—Majority support determination
National Union of Workers
v
Stay in Bed Milk and Bread Pty Ltd T/A Aussie Farmers Direct
(B2013/971)
COMMISSIONER GREGORY | MELBOURNE, 9 JULY 2013 |
Bargaining - majority support determination.
[1] This matter concerns an application by the National Union of Workers (the Applicant) pursuant to s.236 of the Fair Work Act 2009 (the Act) for a majority support determination. It concerns employees of Stay in Bed Milk and Bread Pty Ltd T/A Aussie Farmers Direct (the Respondent) employed in its warehouse operation at Clayton in Victoria. The matter was previously before the Commission on 21 June 2013 but adjourned at that time because of concerns about whether the requirements of the Act were able to be satisfied. Mr A. Portelli appeared on behalf of the Applicant. Mr D. Proietto was granted leave to appear on behalf of the Respondent, pursuant to s.596(2)(a) of the Act, on the basis the matter involved a degree of complexity and his involvement would enable it to be dealt with more effectively.
[2] The application seeks a majority support determination confirming that a majority of the employees intended to be covered by a proposed agreement want to bargain with the Respondent. The application is opposed by the Respondent. Its objection particularly concerns whether the evidence relied upon by the Applicant establishes at the relevant time that a majority of the employees want to bargain with the Respondent. The Respondent does not take issue with the other matters the Commission must be satisfied about before making a determination pursuant to s.236 of the Act. Therefore, the issue that requires determination is whether the evidence relied upon by the Applicant establishes that a majority of employees want to bargain.
[3] The relevant legislative provisions are contained in ss.236 and 237 of the Act. Section 236 details what must be contained in any application for a majority support determination and states as follows:
“(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.” 1
[4] Section 237 concerns, in particular, what the Commission must be satisfied about before a declaration is made. It states as follows:
“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.” 2
The Submissions and Evidence
[5] The Applicant tendered a copy of a petition signed by eleven employees who are employed by the Respondent in its warehouse at Clayton. It submits there are fourteen employees in total employed in the warehouse and, therefore, the Commission can be satisfied that a majority of the employees who are employed by the employer, and who will be covered by the proposed agreement, want to bargain. The petition is headed:
“Petition in support of Bargaining for Fair Wages, Conditions and Classifications.” 3
It continues to indicate:
“We, the below signed employees of Aussie Farmers Direct want to bargain with the Company for an Enterprise Agreement covering warehouse employees at 50–54 Clayton Road, Clayton, Victoria.
We want to make sure we have a fair say in how our workplace is run, and how our classification structure is decided.” 4
[6] Ms Imogen Beynon is an Industrial Officer employed by the Applicant. She indicated she convened meetings with the employees at a location away from the Respondent’s premises on 12 and 19 April and 3 May 2013 to discuss a range of issues, including what support the National Union of Workers might be able to provide to the employees. She stated that at the meeting on 12 April a number of the employees completed a bargaining survey indicating which matters they wanted to pursue in discussions with their employer. The National Union of Workers subsequently developed a log of claims based on what the employees had indicated in those surveys, although this had not yet been presented to the Respondent.
[7] Mr Garren Smith has been employed by the Respondent for seven years and currently works in the Respondent’s warehouse at the Clayton site. He indicated he was particularly concerned about issues to do with shift loadings and the rates of pay received by the employees in the warehouse. He said that after the meetings with the National Union of Workers the petition tendered by the Applicant had been circulated to the employees and was subsequently signed by those indicated.
[8] Mr Smith said he was not an official union delegate, but the other employees in the warehouse would generally follow what he suggested in regard to dealings with their employer. He said that on the evening of 2 July he was approached and had a discussion with Mr Ross Davies, the Respondent’s Victorian Operations Manager, about the discussions that were taking place with the Union and the concerns that had been raised by the employees, including an issue raised by Mr Smith in December last year about the payment of shift allowances.
[9] Mr Smith said that at approximately 10:30pm on the same evening Ms Marnie Homewood, who was employed as an Human Resources Advisor with the Respondent, had also visited the warehouse and had a discussion with him. He indicated in the course of those discussions Ms Homewood suggested the possibility of direct discussions between the employer and the employees about their claims could be an option that might be considered. He said she suggested that a period of three months could be allowed to enable those discussions to occur and to see whether the issues of concern to the employees could be resolved in that time, before any further involvement with the National Union of Workers was considered. Mr Smith said Ms Homewood also indicated a similar process was being pursued by employees at another of the Respondent’s worksites at Camperdown.
[10] After further consideration Mr Smith said he subsequently suggested to the three other employees that remained in the warehouse at that time that they should withdraw their support for the petition, based on his discussions with Ms Homewood, and pursue the option of entering into direct discussions with the Respondent. He subsequently received a phone message from Ms Homewood the following morning and returned her call. He indicated to her that he had spoken to three other employees and suggested they would be prepared to enter into discussions with the employer, before proceeding further with any involvement with the National Union of Workers. However, Mr Smith stated that after further consideration, and further discussions with the Union, he had now decided it remained appropriate to continue to support the petition he had previously signed. He also indicated that at this point he had not had further discussions with the other three employees to advise them of his position, but believed they would be prepared to support whatever view he had come to in regard to how their claims should be pursued.
[11] The Applicant submitted it had concerns about Mr Smith having been approached by the Respondent’s representatives, Mr Davies and Ms Homewood, on the evening prior to the matter being dealt with in the Commission. However, regardless of what had transpired in those discussions it submitted Mr Smith’s evidence was clear and emphatic, and he now continued to support the intent of the petition he had signed and the desire to bargain with the employer for an agreement.
[12] It also submitted there was presently no direct evidence before the Commission that any of the employees who had signed the petition now wanted to withdraw their support for it. In any case it was acknowledged by both parties that Mr Smith was an influential figure in the workplace and the employees would continue to follow what he suggested was an appropriate approach. The Applicant also rejected the suggestion that because of any uncertainty regarding the employees’ support for the petition an appropriate course would be to enable the Australian Electoral Commission to carry out a secret ballot to determine whether there was, in fact, majority support for the desire to bargain. In its submission the evidence from the petition signed by the employees was clearly sufficient to satisfy the requirements of s.237(2)(a) of the Act.
[13] The Respondent submits the evidence before the Commission is now sufficient to cast doubt over the Commission’s ability to be satisfied that a majority of employees want a bargain. It submitted, firstly, that one employee who had signed the petition has now resigned with effect from 5 July 2013. It also submitted that the evidence indicates other employees, including Mr Smith, are now reconsidering their support for the petition, hence the doubt about whether a majority now want a bargain.
[14] Ms Marnie Homewood has been employed by the Respondent in the position of People and Organisational Capability Advisor since October 2012. She also described her position as Human Resources Adviser. She stated that on the evening of 2 July she received a telephone call from Mr Davies, the Respondent’s Victorian Operations Manager. He told her he had been speaking to the employees in the warehouse about the petition and indicated that whilst they were free to speak to the National Union of Workers he was also available at any time to discuss any concerns or issues they had in relation to their employment. He also told her that Mr Smith had expressed concern about the fact that an issue he had raised in December last year about the payment of shift allowances had not been dealt with and resolved, and Mr Davies was concerned about this situation. Ms Homewood indicated in response that as Mr Smith was working on the night shift that evening she would go to the warehouse and speak to him about the issue. She said she arrived at the warehouse at approximately 10:30pm and met with Mr Smith. She told him she was not aware he still had concerns about the shift allowance issue he had raised previously. Mr Smith told her it remained an issue and the National Union of Workers had indicated to him the only option in order to get anything done in response was to sign the petition for an EBA, and he had signed the document on this basis.
[15] She stated:
“In response to this, I told Mr Smith that he was of course entitled to sign the petition, but that it was important that he was also aware that if he did have further questions or issues that I would be more than happy to engage in discussions with him about how Aussie Farmers Direct could resolve these. Mr Smith said that he did not know he had other options, and asked if it would be possible to have more time to discuss these issues with Aussie Farmers Direct, before proceeding with the option of an EBA. I explained that this was an option, and suggested that one possibility would be for him to have a further three months to see how Aussie Farmers Direct could help to resolve his issues. Mr Smith’s response was that the only issue he had was in relation to shift allowance, and that there was nothing else he wished to raise. He was happy in his employment aside from this. He said that he respected and trusted Mr Davies as a manager.” 5
[16] Ms Homewood said Mr Smith then told her that if he had known there were other options available he would not have signed the petition and, as he had also suggested to other employees that they sign the petition, they might now prefer to have some time to consider their position. She then told Mr Smith she would give him some time to think about how he would like to proceed. The following morning she rang Mr Smith on his mobile phone and left a message. He subsequently returned her call and said he had spoken to three other employees, who had told him they would also like more time before proceeding with the EBA. She said she now believed that several employees who had signed the petition no longer wished to proceed with that course of action at this time.
[17] Ms Homewood indicated she had not sought to place any pressure on Mr Smith in her discussions with him, but simply wanted to provide some options for him to consider. She was not intending to try and influence him in regard to the outcome of the proceedings before the Commission. She acknowledged it was unusual to visit the warehouse so late in the evening, but said she had not been directed by anyone to canvass the option of proposing a period of three months to enable direct discussions to take place between the Respondent and the employees in the warehouse, as an alternative to negotiations involving the National Union of Workers.
[18] The Respondent also made reference to the decision of Senior Deputy President O’Callaghan in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Kinkaid Pty Ltd T/A Cadillac Printing 6 (Cadillac Printing) handed down in November 2009, noting in that decision the employer had raised concerns about the employees having been pressured to sign a petition relied upon by the Applicant in support of its application pursuant to s.236 of the Act. It referred to the following statement by the Senior Deputy President in the decision:
“It is conceivable that there may be circumstances where a petition could not be relied upon as an appropriate device to determine majority support for bargaining. If, for instance, there was some evidence that the petition had been falsely derived or that the signatures had been achieved by duress, an alternative means of establishing employee views would need to be considered.” 7
[19] The Respondent also noted the statement by Senior Deputy President O’Callaghan had been adopted by Commissioner Spencer in the matter of The Australasian Meat Industry Employees Union v Hans Continental Smallgoods Pty Ltd 8, although acknowledging that in both matters the Commission had eventually concluded there was no evidence in each case to discredit the petitions relied upon pursuant to s.237(2)(a).
[20] The Respondent also made reference to the decision of Deputy President McCarthy in Construction, Forestry, Mining and Energy Union v Mammoet Pty Ltd 9. It noted that the Respondent in that matter submitted that a petition should not be relied upon on grounds that included:
“ The handing around of the petition to be signed in the presence of colleagues and the union delegate was not a method that should be relied upon as truly reflecting the views of employees;
[21] The Respondent noted that Deputy President McCarthy continued to indicate:
“Whilst I regard many of the submissions by Mammoet as having substance and merit I am on this occasion prepared to accept the evidence for Mr Hopkins about the obtaining of the petition and the petition itself as establishing to my satisfaction that a majority of employees employed by Mammoet at the Project do wish to bargain for an agreement.
I do not accept the proposition that the CFMEU appeared to assert that petitions of the nature procured in the manner here should ordinarily be sufficient to satisfy the requirements of s.237(2)(a).” 11
[22] The Respondent finally proposed in its submissions that given the uncertainty that now existed about support for the petition by at least some of the employees the appropriate course, at the very least, was for the Commission to determine that a secret ballot be conducted by the Australian Electoral Commission to settle the matter definitively.
Consideration
[23] As indicated, s.237 of the Act requires that the Commission must be satisfied in regard to various matters before a majority support determination can be made. I am satisfied, firstly, that the employer proposed to be covered by the agreement has not yet agreed to bargain, at least not with the Applicant as the employees’ bargaining representative. That is clear from the Respondent’s opposition to the present application. However, it can be noted that the Respondent’s submissions and evidence appear to suggest it is not opposed to bargaining per se; it is only opposed to bargaining involving the National Union of Workers.
[24] Secondly, I am satisfied the group of employees who will be covered by the agreement are fairly chosen. They are a discrete group of employees employed in the warehouse at the Respondent’s Clayton based worksite. There is no dispute between the parties as to this requirement.
[25] The only issue in contention concerns the standing of the petition signed by the employees as evidence to support the requirement that a majority want to be covered by the proposed agreement and want to bargain and, in particular, whether a majority of the employees that signed that document on 23 and 24 June still continue to support the course of action it proposes. In this context I have noted the decisions relied upon by the Respondent concerning whether petitions, signed by employees, are “...an appropriate device to determine majority support for bargaining” 12 as Senior Deputy President O’Callaghan stated in Cadillac Printing. I accept that those decisions make clear that a petition signed by a majority of employees in a particular workplace might not be sufficient to satisfy s.237(2)(a) of the Act. In Senior Deputy President O’Callaghan’s view this might be the case if the evidence suggested a petition had been “falsely derived” or “signatures had been achieved by duress.”13 In the case decided by Deputy President McCarthy, he appeared to consider that deficiencies concerned with reliance on a petition handed around openly to a group of employees and signed in those circumstances could be overcome because the employees involved were familiar with the processes of making agreements.
[26] Nevertheless, in each of the matters referred to by the Respondent the signed petitions were still considered sufficient to satisfy the requirements of s.237(2). A number of other decisions of this Tribunal and its predecessors have also determined that signed petitions are sufficient to satisfy the evidentiary requirements. In this context I refer to the decision of Commissioner Bissett in National Union of Workers v Corporate Express Pty Ltd 14 when she stated:
“Absent any evidence to the contrary, I accept the petition as a true indication of the wishes of the employees. There is no basis for me to conclude that employees did not know what they were seeking in signing the petition. It is a legitimate tool in establishing the wishes of the employees.” 15
[27] I also note the decision of Commissioner Lee in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Edlyn Foods Pty Ltd 16 when he stated:
“Circumstances may arise where a petition cannot be relied upon as a means for Fair Work Australia to determine whether or not there is majority support for bargaining. One example may be duress or coercion of employees. Another example of a circumstance where it would not be proper for Fair Work Australia to accept a petition may be where the proposition that was put to employees was in some way confusing or not clear. I have found that those circumstances did not arise in this case.” 17
[28] The Commissioner continued to indicate that the signed petition represented an appropriate means of establishing a majority employee position.
[29] The evidence in the present matter is that the employees, or at least a majority of them, participated in a series of meetings and discussions during April and May with the Applicant to discuss concerns in regard to their current employment arrangements, and the possible future involvement of the Union as their bargaining representative. I have no doubt the National Union of Workers may well have sought to influence their thinking and approach during the course of those discussions, although I do not imply any criticism in making that statement. As these proceedings have indicated it is not uncommon for there to be a battle for the “hearts and minds” of the employees in a particular workplace. On 23 and 24 June a total of eleven employees decided to sign the petition when it was presented to them. It does not appear to have been signed in haste, or as a consequence of any pressure or duress, but rather completed after a protracted process of discussion and consideration amongst the employees and with the Union during the preceding eight to ten weeks. There are fourteen employees employed in the warehouse in total. Based on the authorities I have referred to I am satisfied the petition can, at least at the time it was signed, be considered sufficient evidence to support a finding that s.236(2) has been satisfied.
[30] However, the Respondent now seeks to rely on what transpired in the 24 hours prior to this matter being dealt with by the Commission to submit those circumstances now evince an intention that the views of at least some of the employees who signed the petition have changed, and they now have a different view about the appropriate approach to address the concerns they have about their working conditions. I have some concerns about how this situation arose. Whilst I have already acknowledged that it is not uncommon for an employer or a trade union to seek to influence a group of employees the Respondent in this case does appear at the “eleventh hour” to have sought at the very least to provide some “options” to the employees that might influence them, or at least some of them, to reconsider their support for the petition, and by implication, their involvement with the Applicant.
[31] Whilst some of the decisions referred to by the Respondent raise issues about how Unions were able to gain the support of employees to sign a petition, in this case, the issue is more about how some employees might have been persuaded to withdraw their support for a petition previously signed and endorsed. Regardless of this situation, as indicated, I am satisfied the requirements of s.236(2) were satisfied on the 24 June when the last of the eleven employees to sign the petition did so. I also accept that the discussions Mr Smith had with the company representatives on the evening prior to the hearing caused him to reconsider his support for his decision to sign the petition. If his evidence or the evidence of other employees was that they now remained in a position where they had shifted from their support for the petition signed previously, that would likely raise questions about whether s.237 had been satisfied. But that is not the case at present. Clearly, the discussions Mr Smith had with Mr Davies and Ms Homewood, in particular, did cause him to reconsider how the issues of concern to him might be pursued and resolved. However, he then had further opportunity to test and reflect upon his thinking. His evidence in the proceedings was clear and emphatic that he now remained supportive of his decision to sign the petition and the intended course of action it proposed. No other employees provided evidence directly to confirm they had, in fact, recanted from their position of support for signing the petition and entering instead into a process of a bargaining directly with their employer. Indeed, their desire to bargain with the employer is not at issue. The only issue is whether that bargaining takes place with the involvement of the National Union of Workers.
[32] Notwithstanding the circumstances of the one employee who signed the petition, but has since resigned his employment, I am satisfied based on the submissions and the evidence in the proceedings, and the authorities I have referred to, that the petition signed by the employees and tendered in the proceedings is an appropriate means, in all the circumstances, to establish that a majority of the employees wish to bargain for a proposed agreement. A number of decisions of this Tribunal and its predecessors have dealt with the appropriateness of a signed employee petition as a method of satisfying the requirement that a majority of employees intended to be covered by an agreement want to bargain. In the present matter I am satisfied that the employees signed the petition after a considered process of meetings and discussion to consider how to progress the concerns they have in regard to their employment conditions. I am not satisfied that the events that occurred in the 24 hours prior to the matter being dealt with by the Commission have changed that situation.
[33] I am also satisfied the remaining requirements of s.237 of the Act have been met, including the requirement that it is reasonable in all the circumstances to make the determination. A determination (PR538757) will accordingly be made and issued in conjunction with this decision.
COMMISSIONER
Appearances:
Mr A Portelli appeared on behalf of the Applicant.
Mr D Proietto of Lander and Rodgers appeared on behalf of the Respondent.
Hearing details:
2013.
Melbourne:
3 July.
1 Fair Work Act 2009 (Cth) s.236.
2 Ibid at s.237.
3 Exhibit NUW3.
4 Ibid.
5 Exhibit P2 at para 13.
6 [2009] FWA 1123.
7 Ibid at [13].
8 [2010] FWA 2673
9 [2009] FWA 1945
10 Ibid at [5]
11 Ibid at [7]-[8].
12 [2009] FWA 1123 at [13].
13 Ibid.
14 [2012] FWA 1811.
15 Ibid at para 22.
16 [2011] FWA 7928.
17 Ibid at para 7.
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