Textile, Clothing and Footwear Union of Australia

[2014] FWC 7365

[2014] FWC 7365

FAIR WORK COMMISSION

DECISION

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

Textile, Clothing and Footwear Union of Australia
(B2014/851)

COMMISSIONER SPENCER BRISBANE, 22 OCTOBER 2014

Majority support determination for Sunfresh Linen.

[1] This decision relates to an application made by the Textile, Clothing and Footwear Union of Australia (the Applicant/TCFUA) under section 236 of the Fair Work Act 2009 (the Act) for a majority support determination to cover employees of Sunfresh Linen (the Respondent).

[2] Directions were set for the filing of written submissions and evidence. The parties agreed to the matter being determined on the papers.

[3] Whilst not all of the submissions and evidence are referred to in this determination, all of such have been considered.

Legislation

[4] Section 236 of the Act relates to applications for majority support determinations:

“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.”

[5] Section 237 of the Act sets out the legislative tests for a majority support determination:

“237 When FWC must make a majority support determination

Majority support determination

(1) 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) FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWC must be satisfied before making a majority support determination

(2) 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 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), FWC may work out whether a majority of employees want to bargain using any method FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, 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.”

Applicant’s submissions

[6] The Applicant submitted that it is an employee organisation in accordance with the Fair Work (Registered Organisations) Act 2009. It noted the Respondent operates a laundry service at 59 Ebbern Street, Darra, Queensland. The Applicant has members employed by the Respondent.

[7] The TCFUA submitted that a majority of employees who will be covered by a proposed agreement want to bargain with the Respondent. It bases this submission on a petition, that was provided to the Tribunal to allow comparison with a list of all employees (provided by the Respondent). It submitted that the Respondent has approximately 160 employees, all of whom will be covered by the proposed agreement. The Applicant obtained the signatures throughout April and May 2014. The petition requested employees to confirm by signing, that they “wished to collectively bargain with our employer for an enterprise agreement”.

[8] In relation to s.237(2)(b), the Applicant submitted that it has on a number of occasions, commencing in February 2014, made requests of the Respondent to commence bargaining. The Respondent has not agreed to these requests. The Applicant submitted that Mr Darren Trask, an Organiser employed by the Applicant, requested in February 2014 that the Respondent commence bargaining.

[9] It was submitted that on separate occasions in April 2014, Michele O’Neil, the TCFUA National Secretary and State Secretary TCFUA Vic-Qld Branch, and Jennifer Kruschel, TCFUA Assistant Secretary, requested that the Respondent commence bargaining .  It was further submitted that on 9 and 26 May 2014, Ms Kruschel emailed Mr Daniel George of the Respondent, to request that bargaining for an enterprise agreement commence. The TCFUA’s evidence was that on 12 and 28 May 2014, Mr George responded to Ms Kruschel’s emails indicating that the Respondent would not commence bargaining.

[10] Finally, the Applicant submitted that the group of employees that would be covered by a proposed agreement have been fairly chosen such as to satisfy FWC in accordance with s.237(2)(c). The proposed agreement will cover all employees at the premises on 59 Ebbern Street, Darra, Qld, except for management employees.

Respondent’s submissions

[11] The Respondent submitted that it operates from one worksite at the above address. It was submitted that there are currently 210 employees employed at the site that would be covered by the proposed agreement.

[12] The Respondent submitted that the Applicant approached the Respondent initially on 13 January 2014 to request that the Respondent initiate a bargaining process. The Respondent submitted that the Applicant made repeated approaches to the Respondent to request initiation of the bargaining process but that to date; no agreement had been met between the parties in respect to initiating a bargaining process.

[13] The Respondent submitted that it had not received any indication of dissatisfaction with the current Enterprise Agreement (the Sunfresh Linen Collective Agreement, which passed its nominal expiry date on 4 June 2014), nor received any feedback to date from employees that they wished to initiate a bargaining process.

[14] The Respondent submitted that the Applicant approached the Respondent on 28 May 2014 asserting that it had a majority support to bargaining a new enterprise agreement. The Respondent requested to see evidence of the majority support; however, it submitted that the Applicant has not supplied the Respondent of evidence to support the claim of majority support.

[15] The Respondent has submitted that if the evidence supplied to the Fair Work Commission by the Applicant satisfies the requirements of s.237(2), the Respondent will consent to bargain a new enterprise agreement.

[16] The Respondent submitted that if the Fair Work Commission is not satisfied by the evidence of the Applicant, it would not agree to bargain at this time.

[17] The Respondent did not make any submissions in relation to s.237(2)(c or (d).

Consideration

[18] The Applicant, in correspondence referring to the Respondent’s submissions, noted that it appeared the only area of contention was as to whether a majority of employees wished to bargain. The Applicant, to resolve this, by provided a copy of the original petition to the Commission only, by post and the Respondent provided a list of the names of employees who are currently employed and who will be covered by the proposed agreement, to allow for reconciliation. The Respondent requested that the Commission verify the number of signatures and the names of the employees on the petition and confirm that they are relevant and currently under the Collective Agreement in place at the worksite.

[19] The Respondent provided a list of employees and confirmed that the list contained the names of employees who are currently employed by the Respondent and who will be covered by the proposed agreement.

[20] The petition and the list of employees were assessed. The list of employees contained 222 names. Therefore, 112 employees are required to have signed the petition for there to be a majority in terms of the legislative test for a majority. I have reviewed the petition and reconciled such against the list of employees provided. The petition contains 114 names that match up to the 222 names on the list of employees. There was some disparity between the parties as to numbers of employees to be covered by the proposed agreement. However, on any of these numbers and the actual list of names, the petition as reconciled forms a majority support.

Conclusion

[21] In accordance with the legislation, a majority support determination application has been made pursuant to s.236 and the application complies with s.236(2). In accordance with s.237(2)(a) and s.237(3), the number of entries on the petition in support of bargaining is commensurate with a majority, that is, it represents more than half of the employees employed. The time for determining the majority has been taken at the time of the petition. In terms of s.237(2)(b), the evidence of both parties is that the Employer has not agreed to commence bargaining. In accordance with s.237(2)(c), the group is fairly chosen and in line with s.237(2)(d), it is reasonable in all the circumstances to make the determination. Accordingly, the Commission, as currently constituted, is satisfied on the material that the tests for a majority support determination in s.237 have been made out.

[22] The application for the majority support determination is therefore granted. I will issue a majority support determination for the employees concerned.

[23] A determination [PR556956] to this effect will be issued today.

COMMISSIONER

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