Shop, Distributive and Allied Employees Association v J. Blackwood & Son Pty Ltd T/A Blackwoods

[2021] FWC 6445

[2021] FWC 6445

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.236—Majority support determination

Shop, Distributive and Allied Employees Association
v
J. Blackwood & Son Pty Ltd T/A Blackwoods
(B2021/1072)

COMMISSIONER PLATT ADELAIDE, 29 NOVEMBER 2021

Application for a majority support determination.

[1] On 5 November 2021, the Shop, Distributive and Allied Employees Association (SDA) made an application for a majority support determination (the Application) under s.236 of the Fair Work Act 2009 (the Act) to cover employees of J. Blackwood & Son Pty Ltd T/A Blackwoods (Blackwoods or the Respondent) who work at the Blackwoods Regency Park site and who would otherwise be employed under the Storage Service and Wholesale Award 2020. 1

[2] The matter was allocated to my Chambers on 8 November 2021, and a Hearing conducted on 24 November 2021. At the conclusion of the Hearing, I advised the parties that I had determined to make a majority support determination, which was issued that day [PR736121]. I now provide my detailed reasons for this decision.

[3] In their Form F30 Application, the SDA indicated that they had conducted a petition of relevant employees who wanted to bargain for an agreement. On 8 November 2021, I directed the SDA to provide a copy of that petition to the Commission on a confidential basis. On the same day, the Respondent was directed to provide a list of all employees who were employed by the Respondent that were within the scope of the proposed agreement. Leave was also granted for the Respondent to provide this list to the Commission on a confidential basis. The SDA provided their petition to my Chambers on 9 November 2021. Blackwoods provided the list of employees to my Chambers on 14 November 2021.

[4] Upon review of the materials provided to the Commission, on 15 November 2021, my Associate corresponded with the parties to indicate that 30 of the 46 employee names provided by the Respondent had indicated through signing the Applicant’s petition that they wanted to begin bargaining for a new agreement, and as such, it appeared that there was a majority of 65.2%. The Respondent was directed to indicate, on this basis, whether they objected to a determination being made.

[5] On 16 November 2021, the Respondent’s representative indicated that the Respondent objected to a determination being made on the basis that the material filed by the SDA was incapable of satisfying the Commission that a majority of the employees who will be covered by the agreement want to bargain, as required by s.237(2)(a) of the Act.

[6] A conference was held on 17 November 2021. On the same day, Directions were issued for the filing of material so that the matter could be heard. A copy of the redacted petition was provided to the Respondent by my Chambers.

[7] A digital court book containing the material filed was distributed to the parties prior to the Hearing. The Hearing was conducted by teleconference on 24 November 2021.

[8] The SDA was represented by Ms Blythe Ormesher (SDA). Ms Rachel Lee represented the Respondent. Permission was granted to the Respondent to be represented pursuant to s.596(2)(a) on the grounds of complexity and efficiency.

[9] The parties were advised that I proposed to receive all of the material contained in the court book, noting that some material may not be admissible and appropriate weight would be attached to that material. Both parties consented to this approach. The witness statement of Mr Fabian Moore (SDA Industrial Officer) 2 was received without challenge.

[10] Mr Andrew Dul 3 (SDA Organiser) and Mr Doug Nuske4 (Blackwoods Storeperson) provided statements and gave evidence on behalf of the SDA, whilst Mr Nathan Baggott5 (State Sales Operations Manager) gave evidence on behalf of Blackwoods. No issues of credit arose.

[11] The parties reinforced their written submissions and related same to the oral evidence presented.

Relevant Law

[12] The relevant provisions of the Act are as follows.

“s. 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.

s.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.”

Matters in dispute

[13] There is no dispute that:

•  The SDA is a bargaining representative of an employee who would be covered by a proposed single enterprise agreement.

•  The application specifies the employer and employees who will be covered by the agreement.

•  That the group of employees who will be covered by the agreement was fairly chosen.

•  That the employer that will be covered by the agreement has not yet agreed to bargain, or initiated bargaining.

[14] There is a dispute over the time at which the majority should be determined, and whether it is reasonable in all the circumstances to make the determination.

What is the appropriate time at which the support is measured? [s.237(2)(a)(i)]

[15] The evidence reveals that in the period between 7 and 27 October 2021, Mr Dul and Mr Nuske obtained 33 signatures on a petition (the Petition). The form of the Petition is detailed below:

[16] Once completed, the Petition was provided to Mr Moore who secured it, and then unsuccessfully sought to persuade Blackwoods to agree to bargain. On 5 November 2021, the Application was lodged. There is no evidence to suggest that any integrity issues as to the Petition arise.

[17] The Blackwoods list of all employees who would be covered by the proposed Agreement was prepared on 14 November 2021.

[18] Between 17 and 19 November 2021, the Respondent arranged for an external provider to conduct what is best described as a ballot (as opposed to a petition). Employees were invited to vote electronically by logging onto a Blackwoods computer and completing a survey which had been emailed to them. Each survey link was unique. The result of this ballot (the Employer Ballot) was that 15 out of a possible 46 employees in the relevant cohort indicated that they wished to commence bargaining.

[19] The question posed by s.237(2)(a)(i) of the Act is when the appropriate time is to determine the number of employees who were employed by the employer, for the purpose of determining whether a majority of those employees want to bargain. The Respondent contends that the appropriate time is that when the Employer Ballot was conducted, whilst the SDA contends that I should rely on the time of the Petition. Section 237(2)(a)(i) provides that the relevant time is to be determined by the Commission. The factors below were taken into consideration in my determination of the appropriate time as per s.237(2)(a)(i).

[20] In this matter, the Petition was completed over a relatively short time, and the filing of the Petition was proximate to the lodgement of the Application (noting that some discussions between the parties were held). There is no suggestion that the composition of the workforce had changed since the Petition.

[21] Blackwoods contends that the time (and therefore result) of the Employer Ballot should be preferred as the Petition was tainted as a result of misrepresentation and/or error and did not accurately specify the cohort who could sign it.

[22] A review of the Petition reveals that it was targeted at “employees of Blackwoods Regency Park site who are covered by the Storage Service and Wholesale Award 2020”. Whilst the legal name of the Respondent was not used, in my view the employer subject is sufficiently described.

[23] Blackwoods also contends that it engages some contractors to perform work at Regency Park and that they may have signed the Petition. Whilst this may have been so, those persons were not employees (and thus not on the confidential list of employees provided by Blackwoods). Those persons who signed the petition and were not on the Blackwoods list were ignored for the purposes of determining a majority. In my view, the description of the cohort contained in the Petition was sufficient, and even if non-employees signed the Petition, it had no effect on the outcome.

[24] Blackwoods also contended that the Petition was misleading in that it stated:

“This petition and names listed will not and cannot be provided to the employer – but may be provided to the Fair Work Commission if the union seeks and order to bargain.”

[25] It was not in dispute that the SDA did not provide the completed Petition to Blackwoods. After the Application was made, the SDA provided a confidential copy of the Petition to the Commission. This is not unusual and is contemplated in the Petition.

[26] As a matter of procedural fairness, a redacted copy of the Petition was provided by my Chambers to the Respondent. I am not persuaded that the statement concerning the Petition was in error, and in any event, I am not persuaded that it had any material impact on the reliability of the Petition.

[27] Blackwoods final issue was the statement at the bottom right of the Petition (reproduced below):

[28] It was contended that the above statement was in error and/or a misrepresentation as the Applicant could not guarantee that employees would be successful in achieving better pay, improved conditions and safety at work.

[29] This contention appears to ignore the preceding words “What We Are Fighting For”. In my view, the suggestion that the agreement would achieve better pay, improved conditions or safety is aspirational and does not represent any guaranteed outcome of bargaining. There was no direct evidence presented that any of the Petition participants had a different interpretation.

[30] I am not persuaded that the Petition contained factual errors or any misrepresentation.

[31] Finally, Blackwoods contended that the recency of the Employer Ballot supported the determination of 19 November 2021 as the date upon which majority support should be determined.

[32] Having considered the evidence, my findings and the requirements of the Act, I have determined that the appropriate time for the purposes of s.237(a)(i) of the Act is 14 November 2021 (the date which the Respondent provided the list of relevant employees to the Commission).

Did a majority of employees who were employed as at 14 November 2021 and will be covered by the agreement, want to bargain? [s.237(2)(a)]

[33] As discussed above, I find no misrepresentation and/or error in the Petition, and no other reason to disregard the evidence put forward by the SDA that 30 of the 46 (62.5%) employees who were employed as at 14 November 2021 want to bargain for a new agreement. This number represents a clear majority.

Is it reasonable in all the circumstances to make the determination sought?

[34] I have found that the SDA’s processes in obtaining support for the Petition were not tainted.

[35] I have determined that the date for the determination of the majority support is the 14 November 2021.

[36] I am not persuaded that the outcome of the Employer Ballot undertaken by Blackwoods between 17 and 19 November 2021 is such that it renders the Petition unreliable or makes it unreasonable to make the determination sought.

[37] Having considered all of the evidence and submissions I find that it is reasonable to make the determination sought.

COMMISSIONER

Appearances:

B Ormesher for the Applicant

R Lee for the Respondent

Hearing details:

2021.

By Telephone, Adelaide:

November 24.

Printed by authority of the Commonwealth Government Printer

<PR736120>

 1   Form F30

 2   Exhibit A3

 3   Exhibit A1 and A2

 4   Exhibit A4

 5   Exhibit R1