The Australian Workers’ Union

[2016] FWC 7601

[2016] FWC 7601

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

The Australian Workers’ Union
(B2016/920)

COMMISSIONER SPENCER BRISBANE, 22 NOVEMBER 2016

Rj Beaumont & Co Pty Ltd T/A Beaumont Tiles - employees at Beaumont Tiles Warehouse, 55 Gardner Road Rochedale.

[1] This Decision relates to an application made by The Australian Workers’ Union (the Applicant/AWU) under s.236 of the Fair Work Act 2009 (the Act) for a majority support determination to undertake bargaining for an agreement to cover employees of Rj Beaumont & Co Pty Ltd T/A Beaumont Tiles (the Respondent) working at the Beaumont Tiles Warehouse, 55 Gardner Road, Rochedale, Queensland.

[2] Directions were set for the filing of written submissions and evidence. Materials were filed by both parties and the parties agreed for the matter to be 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.”

Summary of the Applicant’s submissions

[6] The AWU submitted that it is entitled to represent the industrial interests of some of the employees of the Respondent and has, and at all material times had, members employed by the Respondent, and therefore is a bargaining representative of some of the employees of the Respondent.

[7] The AWU submitted that the proposed enterprise agreement will cover employees engaged at 55 Gardner Road, Rochedale and who are engaged in the warehouse (the warehouse employees) who are responsible for the filling of orders.

[8] The AWU submitted that it had sent correspondence on 11 February 2016 to Beaumont Tiles for the purpose of formally initiating bargaining for an enterprise agreement consistent with the relevant provisions of the Act, and then compiled a log of claims and issued it to the Respondent. It was submitted by the AWU that the Respondent then advised that they had not agreed to bargain.

[9] The AWU submitted that it had considered that the Respondent’s actions consisted of all the hallmarks of bargaining, and on that basis filed an application for bargaining orders.

[10] The application was listed before the Commission as currently constituted. During those proceedings, the Respondent maintained that they had not formally agreed to bargain, and on that basis the AWU decided to withdraw and file an application for a majority support determination.

[11] The Employees’ terms and conditions of employment are currently contained in the Storage Services and Wholesale Award 2010 1.

[12] The AWU submitted that they had provided a petition signed by a majority of the employees proposed to be covered by the agreement. A redacted copy of the petition was provided with the application. An unredacted copy was provided to the Commission only.

[13] The AWU noted that s.237(3) allows the Commission to use any method it considers appropriate for the purposes of s 237(2)(a) and that a petition prepared by an employee organisation is a method that the Commission has previously found to be appropriate 2. It was submitted that the Commission can be satisfied for the purposes of s 237(2)(b) that Beaumont Tiles has not yet agreed to bargain or initiated bargaining for the agreement and that the AWU have made a number of attempts to bargain to no avail.

[14] For the purposes of s 237(2)(c), in respect of whether the group of employees was fairly chosen, s.237(3A) requires the Commission to take into account whether the group is geographically, operationally or organisationally distinct.

[15] The AWU submitted that the question of geographical, operational or organisational distinction is not alone decisive in relation to the fairly chosen question 3. It was submitted that the group of employees are operationally, geographically or organisationally distinct.

[16] It was submitted that the group was geographically distinct as all employees to be covered by the agreement work in the Warehouse at 55 Gardner Road, Rochedale. It was submitted that the group was operationally distinct as the proposed enterprise agreement will cover all employees within the warehouse and no other employee. It was noted that all employees that would otherwise come under the Storage Services and Wholesale Award 2010 are included in the group, and that the other groups of employees employed by Beaumont Tiles are administrative employees, who work in the offices on the site, and that the two groups of employees have little to no interaction with each other. The AWU submitted that the warehouse employees are an operationally distinct group of employees, who perform a different role and function to the administrative employees.

[17] Further, it was submitted that the group of employees are organisationally distinct. The employees engaged in the warehouse have a different reporting structure to the administrative employees.

[18] The AWU submitted that there was nothing unusual, extraordinary or unique about this matter that would make it unreasonable to make the determination.

[19] It was submitted that the Commission can be satisfied that a majority of employees who are employed by Beaumont Tiles and who will be covered by the agreement want to bargain (s.237(2)(a)), Beaumont Tiles has not yet agreed to bargain or initiated bargaining (s.237(2)(b)), the group of employees who will be covered by the agreement is fairly chosen (s.237(2)(c)); and that it is reasonable in all the circumstances to make the determination (s.237(2)(d)).

Summary of the Respondent’s Submissions

[20] The Respondent submitted that the AWU has attempted to commence bargaining for an enterprise agreement for certain employees of the Respondent located at the Rochedale Beaumont Tiles warehouse and that the Respondent has declined to commence bargaining.

[21] Beaumont Tiles’ view in relation to the log of claims provided by the AWU was that the matters raised in that log of claims were not appropriate for it to commence bargaining for an enterprise agreement.

[22] The Respondent submitted that employees that are located at the Rochedale Warehouse would ordinarily fall under one of three Awards:

• the Storage Services and Wholesale Award 2010 4;


• the General Retail Industry Award 2010 5; and
• the Clerks Private Sector Award 2010 6.

[23] The Respondent submitted that the employees each have an employment contract which sets out the terms of their employment with Beaumont Tiles and that the contracts incorporate a large portion of the terms of the relevant award, in addition to terms (including pay rate) more favourable to the employee than the relevant award.

[24] Beaumont Tiles agreed that it is not yet agreed to bargain for an enterprise agreement, pursuant to 237(2)(b).

[25] Beaumont Tiles opposed the application on the basis that the Commission should not be satisfied of the matters set out in sections 237(2)(a), (c) and (d) of the Act.

[26] The Respondent submitted that relevant employees have not been included in the AWU’s petition. The Respondent noted that, in accordance with the usual practice, it had not seen an unredacted copy of AWU’s petition filed with the Commission, and as a result Beaumont Tiles was unable to address whether the employees have been correctly identified.

[27] The Respondent submitted that they inferred that the AWU is seeking a majority support determination in respect of only those employees at the Rochedale Warehouse whose roles would ordinarily be covered by the Storage Services and Wholesale Award 2010 and prepared their submissions on that basis. The AWU confirmed that this was correct in their submissions in reply.

[28] Beaumont Tiles submitted that this is not a fairly chosen group of employees to be covered by an enterprise agreement and, as a result, the AWU has failed to show that a majority of employees who will be covered by the agreement want to bargain.

[29] The Respondent submitted that there are a total of 43 of employees at the Rochedale Warehouse and the Respondent provided a list of those employees to the Commission only, on a confidential basis.

[30] The Respondent submitted that each of the employees work in the Rochedale Warehouse either in a warehouse, retail or administrative role and that the work completed by each of the employees is not segregated from the other. It was submitted that there is significant interaction between each of the employees within the Rochedale Warehouse.

[31] The Respondent submitted that there is no good, logical, or fair reason to treat a particular type of employee within the Rochedale Warehouse differently and that this presents an impractical and unfair approach to the way in which Beaumont Tiles deals with its employees.

[32] It was submitted by the Respondent that a fairly chosen group of employees would be all of the employees at the Rochedale Warehouse (totalling 43 employees). It was submitted that, as the AWU’s petition lists only 18 names, this was not a majority.

[33] With respect to the AWU’s argument that the group of employees to be covered by the agreement are geographically distinct, the Respondent argued that it employs other employees (not to be covered by the proposed agreement) within the same warehouse. It was submitted by the Respondent that the proposed employees are not geographically distinct from the other employees within the Rochedale Warehouse.

[34] The Respondent submitted that the AWU’s submissions that the proposed enterprise agreement will cover all employees within the warehouse and no other employee was incorrect as the proposed enterprise agreement is proposed to cover only one department of the Rochedale Warehouse.

[35] The Respondent also submitted that the other employees within the Rochedale Warehouse are operationally and organisationally similar to those proposed to be covered by the agreement by the AWU. The Respondent submitted that they report to the same management and interact on a daily basis to perform their roles.

[36] It was submitted that the proposal to seek a majority support determination with a view to negotiating an enterprise agreement at the Rochedale Warehouse would therefore result in “prejudice to the productivity or efficiency of the business operations of the employer’s enterprise” 7and that the Commission is obliged to accord such prejudice due weight.8

[37] Further, the Respondent submitted it is entirely appropriate to have regard to the interests of the employer in enhancing productivity when considering such an application 9.

[38] On the basis outlined above, the Respondent submitted, the persons proposed by the AWU to be covered by the enterprise agreement were not fairly chosen and, as a result, the AWU has failed to meet the requirements of sections 237(2)(a) and (c) of theAct.

[39] The Respondent submitted that, pursuant to s 237(2)(d) of the Act,the Commission may take into account other circumstances to determine whether an order for a majority support determination is reasonable, even if it meets the requirements of section 237(2)(a)(i) of the Act. It was submitted that the order for a majority support determination is not reasonable in all the circumstances. The Respondent submitted as follows in relation to the reasonableness of the majority support determination:

“5.2 The log of claims that has been provided to Beaumont Tiles by AWU sets out matters that they wish to address in any bargaining process. The matters raised in those log of claims:

5.2.1 do not acknowledge that the term of the employees’ employment are set out by separate employment contracts, and not by an award;

5.2.2 do not recognise the conditions of employment are already more favourable to the employee than the terms set out in the relevant award;

5.2.3 are matters that are able to be dealt with directly between the employer and the employees (which discussion has occurred recently, and resulted in further benefits to the employees); or

5.2.4 are matters that are for the benefit of AWU, and do not serve to benefit the employees.

5.3 In circumstances where AWU has not presented any practical or reasonable reason to engage in a bargaining process, Beaumont Tiles submits that it is not reasonable for the Fair Work Commission to make such a determination.

5.4 AWU has not:

5.4.1 demonstrated that it has taken into account all relevant matters before it attempts to commence bargaining; and

5.4.2 raised any matters of importance that are required to be dealt with to provide adequate working conditions for the employees.”

[40] Beaumont Tiles submitted that the Commission should not make an order for a majority support determination.

[41] There are 43 names on the list of employees provided by the Respondent with their submissions. This list also details whether the employees are employed as retail employees, storeworkers, or clerks. According to the list, there are 35 employees employed as storeworkers (at various grades). Eight other employees are employed as retail employees, clerks and one is award free.

[42] Further Directions were issued in respect of the list of employees, given that the AWU confirmed that the employees to be covered by the proposed enterprise agreement are those employees whose roles would ordinarily be covered by the Storage Services and Wholesale Award 2010.

[43] Accordingly, the Respondent was directed to file (to the Commission only) a list of employees, containing only those employees who would be covered by the proposed agreement, that is, employees of the Respondent whose roles would ordinarily be covered by the Storage Services and Wholesale Award 2010.

[44] It was noted that the initial list provided with the submissions, includes references to labour hire. The Commission sought an explanation as to how these workers were eligible to be covered by the proposed agreement.

[45] The Respondent filed a second list of employees, under cover of an Affidavit of Mr van der Wijngaart, Human Resources Manager of the Respondent. Mr van der Wijngaart stated in his Affidavit that there were five labour hire employees described in the second list of employees and that one of those was expected to shortly be hired by the Respondent rather than as a labour hire employee.

Second list of employees

[46] Mr van der Wijngaart stated in his Affidavit that he had included the names of five labour hire employees on the second list of employees for the following reasons:

“7.1 The labour hire employees perform the same function as other warehouse employees and are paid at the same rate as those employees that would ordinarily be covered und the Wholesale Award.

7.2 The log of claims provided to the respondent by the AWU sets out, at claim 6, provisions specific to labour hire employees. The log of claims proposes that there be a requirement for consultation with the union representative in circumstances where labour hire employees will be used. It also proposes a requirement that labour hire employees receive wages, allowances and conditions not less favourable than those contained in any proposed enterprise agreement.

8. Accordingly, these labour hire employees are, in effect, covered by the Wholesale Award and will be directly affected by any proposed enterprise agreement.”

[47] Mr van der Wijngaart also stated in his Affidavit that he had included the names of two further employees for the following reasons:

“9. The Employee List contains the details of two employees that are paid at a rate which is equivalent to those employees covered by the General Retail Award 2070 ('the Retail Award'), rather than the rate of those employees who would ordinarily be paid under the Wholesale Award. These employees are (names omitted).

10. I have included these employees within the Employee List for the following reasons:

10.1 These employees perform, as part of their role, functions which are performed by the employees who would ordinarily be covered by the Wholesale Award. In addition, these employees also have 'customer-facing' roles. As a result of the mixed nature of their employment and their responsibilities, they are paid at rate equivalent to those employees covered by the Retail Award, which is marginally higher, to reflect the additional roles they perform.

10.2 Other than wages, these employees work under the same conditions as the warehouse employees.

11. Accordingly, these employees are, in effect, covered by conditions equivalent to the Wholesale Award, and will be directly affected by any proposed enterprise agreement.”

[48] Mr van der Wijngaart stated that there are 38 employees at the Beaumont Tiles Rochedale warehouse that would ordinarily fall under the conditions of the Storage Services and Wholesale Award 2010, and who would be covered by any proposed agreement.

Summary of the Applicant’s material in reply

[49] The AWU confirmed that the only employees to be covered by the proposed enterprise agreement are those employees whose roles would ordinarily be covered by the Storage Services and Wholesale Award 2010.

[50] The AWU did not dispute the assertion that there are 43 employees at the Rochedale Warehouse working in warehouse, retail, or administrative roles.

[51] The AWU submitted that the chosen group of employees for the proposed enterprise agreement are currently covered by the Storage Services and Wholesale Award 2010, while administrative employees are covered by the Clerks Private Sector Award 2010 and employees in retail classifications by the General Retail Industry Award 2010.

[52] With respect to the Respondent’s arguments that the work is not segregated and that there was interaction between each of the employees, the AWU submitted that the contention that there is no reason to treat a particular type of employee within the Rochedale Warehouse differently ignored the realities that particular types of employees are already treated differently by virtue of the fact that they are covered by different Awards.

[53] The AWU submitted that each Award has a coverage clause and contains classifications which indicate the employees that can be covered by the Award.

[54] The AWU submitted that there is nothing inherently unfair or impractical with the proposal to bargain for an enterprise agreement for employees covered by the Storage Services and Wholesale Award 2010. It was submitted that it will not create added business difficulties for the Respondent but merely means that one industrial instrument will be displaced, and another will start to apply. The AWU submitted that employees whose employment was formerly covered by the Storage Services and Wholesale Award 2010 would now derive their terms and conditions of employment from an enterprise agreement while other employees’ (retail and administrative employees) employment will continue to be covered by the appropriate Award.

[55] The AWU submitted that the Respondent has not provided any reasoning why the other employees are operationally and organisationally similar to the chosen group except that they interact with each other on a daily basis to perform their roles.

[56] The AWU confirmed its submission that the group of employees is geographically, operationally or organisationally distinct, and that the group of employees to be covered by the proposed agreement is fairly chosen.

[57] The AWU submitted that it is enough for a group of employees to be geographically, operationally or organisationally distinct to satisfy the test in s.237(3A) 10.

[58] The AWU submitted that the groups of employees covered by the different awards perform substantially different roles and that this can be ascertained from the different coverage clauses contained in the various awards.

[59] It was submitted that the interaction between the different groups of employees is minimal however, even if interaction between employees of different classes was determinative, it is to be expected at any workplace.

[60] The AWU referred to the Decision of Commissioner Roe’s in National Union of Workers v Cotton On Group Services Pty Ltd 11 and the following extract:

“A group of employees within an enterprise will rarely be operationally distinct in an absolute sense. It will often be a matter of degree.”

[61] It was submitted that while a retail employee might interact with a warehousing employee, this does not indicate operational similarity or that the roles are intrinsically linked.

[62] It was also submitted that it was relevant that the Respondent has decided to organise their workplace on the basis of Award coverage.

[63] The AWU maintained their submissions that the group of employees is geographically, operationally or organisationally distinct and was therefore fairly chosen.

[64] With respect to the Respondent’s argument that the proposed determination would “prejudice to the productivity or efficiency of the business operations of the employer’s enterprise”, the AWU submitted that the Respondent provided no evidence to support this contention and that AWU rejected the claim.

[65] The AWU submitted that through entering into an enterprise agreement, there would likely be productivity and efficiency gains, and argued that inflexibilities of the Award system can be overcome through enterprise bargaining, providing incentive for both employer and employee. Further, it was submitted that many employees covered by enterprise agreements enjoy wages superior to those contained in Awards, thus ensuring that employees are retained.

[66] The AWU noted that productivity and efficiency concerns raised by the Respondent were likely to stem from the fact that there are employees at Beaumont Tiles not included in the group to be covered by the proposed enterprise agreement. However, the AWU reiterated that there will no added business difficulties for the employer as the proposed enterprise agreement will displace the industrial instrument which currently applies to the chosen group of employees and there will remain to be three industrial instruments which apply at the Rochedale Warehouse.

[67] With respect to other considerations, the AWU has attempted to initiate bargaining with the Respondent for a period of almost six months and noted that in another proceeding, the Respondent asserted they had not agreed to commence bargaining, and that employees were happy with their terms and conditions. This view, the AWU submitted, has been reiterated in submissions for these proceedings.

[68] The AWU argued that the Respondent, in essence, was questioning whether the Union genuinely represents the members’ views in seeking to bargain for an enterprise agreement. The AWU submitted that employees to be covered by the enterprise agreement have definitively demonstrated that they wish to bargain for an enterprise agreement by way of signing the majority support petition.

[69] It was submitted by the AWU that, of the employees who would be covered by the agreement, a significant majority indicated they support commencing negotiations for an enterprise agreement.

[70] The AWU noted that the Respondent previously advised the Commission that they do not oppose the Union’s application for a Majority Support Determination and that their submissions evince a retreat from this position and that the Respondent is now seeking to deny the ability for a group of employees to collectively bargain for their terms of conditions of employment.

[71] The AWU submitted that the group of employees to be covered by the proposed enterprise agreement are a fairly chosen group of employees and a significant majority of the employees to be covered by the proposed agreement have signed the petition indicating they wish to bargain for an enterprise agreement.

[72] The AWU referred to a Decision of a Full Bench of the Commission in The Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd 12and the following extract:

“The right of employees to bargain collectively is a right recognised in ILO Convention 87 Freedom of Association and Protection of the Right to Organise (1948) and ILO Convention 98 Right to Organise and Collective Bargaining (1949) both of which have been ratified by Australia. It is a right that was foundational to the enterprise bargaining regime first introduced to the federal industrial legislation in 1993.”

[73] The AWU submitted that the Commission should grant the application for a majority support determination.

Applicant’s submissions with respect to the Affidavit of Mr van der Wijngaart

[74] The Applicant filed further submissions in response to submissions included in the Affidavit of Mr van der Wijngaart as to the composition of the second list of employees. A redacted copy of the Affidavit, removing the names of any employees, was provided to the AWU with the consent of the Respondent.

[75] The AWU submitted that labour hire employees are not directly employed by the Respondent, and therefore for the purposes of s 237(2)(a)(i) of the Act, they cannot be included in the group of employees to be covered by the proposed enterprise agreement, as “Employed by the employer” requires a direct employment relationship. The AWU submitted that this relationship does not exist between the Respondent and the labour hire employees.

[76] The AWU submitted that whether labour hire employees are performing work which is the same or similar to employees of the Respondent was not relevant. It was submitted that the labour hire employees cannot be covered by the proposed enterprise agreement by virtue of the fact that they are not employed by the Respondent.

[77] With respect to the AWU’s claim regarding consultation for use of labour hire, and a claim requiring the Respondent to ensure that labour hire employees receive wages, allowances and conditions no less favourable than those contained in the proposed enterprise agreement, the AWU submitted that the Respondent has put this point forward in an effort to make the case to include the labour hire employees in the group of employees to be covered by the proposed enterprise agreement but that this approach was flawed. The AWU submitted that the claims put forward are a matter for bargaining and may affect the terms and conditions of employment of labour hire employees, but the labour hire employees cannot be covered by the proposed enterprise agreement.

[78] The AWU submitted that the intent of the contractors clause the AWU is pursuing is to ensure that labour hire employees are paid at least the rates contained in the proposed enterprise agreement and noted it may be the case that the labour hire employees are covered by an industrial instrument which contains more favourable terms and conditions. In any case, the AWU submitted that a clause which requires an employer to consult about the use of labour hire, or to pay labour hire employees at the same rate as direct employees is a common feature in many enterprise agreements and that such clauses reduce the incentive (if one exists) for an employer to outsource jobs to contractors or labour hire firms.

[79] With respect to the two employees who are paid at a rate equivalent to employees covered by the General Retail Industry Award 2010, the AWU noted that Mr van der Wijngaart stated that these employees would ordinarily be covered by the Storage Services and Wholesale Award 2010, but that they are paid a higher rate of pay.

[80] The AWU submitted that, as the employees derive their terms and conditions from the Storage Services and Wholesale Award 2010, it was irrelevant that the rate paid to these employees is equivalent to the rate contained in the General Retail Industry Award 2010 and acknowledged that these employees would be covered by the proposed enterprise agreement.

[81] Accordingly, the AWU submitted that the 5 labour hire employees should not be included in the list, and therefore the number of employees contained in the (second) list of employees is 33.

[82] The AWU submitted that the petition contained 18 signatures and that this constituted a majority and the Commission could therefore be satisfied that a majority of employees who are employed by the Respondent and who will be covered by the agreement want to bargain, that all of the requirements contained within s.237(2) of the Act have been met and therefore that the Commission must make the majority support determination.

Consideration

[83] In respect of s.237(2)(b), I am satisfied that the Respondent has not yet agreed to bargain, or initiated bargaining, for the agreement.

[84] In respect of s.237(2)(c), I am satisfied that the group of employees who will be covered by the agreement was fairly chosen, and that, pursuant to s.237(3A), the group of employees to be covered by the agreement are geographically, operationally or organisationally distinct. I am also satisfied that the employees, while not geographically distinct, are operationally and organisationally distinct due to their distinct classification and coverage under the relevant Modern Awards. The group of employees to be covered by the agreement represent one distinct group of employees of the Employer, currently covered by the Storage Services and Wholesale Award 2010. I am satisfied that the group is fairly chosen, despite the lack of geographical separation and note that the consideration in s.237(3A) is whether the group is geographically, operationally or organisationally distinct.

[85] In respect of s.237(2)(d), taking into account the submissions made by both parties, I am satisfied that there are no relevant circumstances which would militate against making the determination.

[86] The Respondent did not make any submissions in relation to s.237(2)(a), that is, in relation to whether a majority of employees who are proposed to be covered want to bargain. The Respondent submitted that because the group was not fairly chosen, rather, a fairly chosen group would be all of the employees employed at the Warehouse, a majority of all employees employed at the Warehouse did not wish to bargain.

[87] There are 18 names on the petition filed by the AWU. 17 of the names on the petition appear in the second list of employees provided by the Respondent under the heading Storage Services and Wholesale Award 2010.

[88] In the Respondent’s second list of employees, 31 names are listed under the heading Storage Services and Wholesale Award 2010, 5 names are listed under the heading Labour Hire Employees, and 2 names are listed under the heading General Retail Award 2010.

[89] It is not accepted that the labour hire employees should form part of the list of employees for comparison against the petition. In relation to s.237(2)(a), the Commission must be satisfied that a majority of the employees who are employed by the employer or employers at a time determined by the Commission, and who will be covered by the agreement want to bargain. Labour hire employees are not employed by the Respondent and while it is acknowledged that one labour hire employee may become directly employed by the Respondent in the future, the current employees have been taken into account, at the time of the petition.

[90] The AWU has acknowledged and I am satisfied that the 2 employees included in the second list of employees under the hearing General Retail Award 2010 should be included as these employees derive their terms and conditions from the Storage Services and Wholesale Award 2010. Together with the 31 employees listed under the heading Storage Services and Wholesale Award 2010, this makes 33 employees who are employed by the employer and will be covered by the agreement.

[91] Accordingly, it is determined that 17 out of 33 relevant employees have signed the petition.

[92] Commissioner Cloghan in Penrhos College 13 considered an application for approval of an enterprise agreement in circumstances where there were 57 employees who cast a valid vote, and 29 voted to approve the agreement, while 28 did not. It was argued by the Union in that matter that a majority required 50% of employees plus 1 additional employee. Therefore, the Union argued that for a majority to exist, it was necessary for 30 employees to vote to approve the agreement. This number was calculated by the Union by taking 50 percent of the employees who voted (28.5), rounding this number up to 29 and adding an additional employee. Commissioner Cloghan observed as follows:

“[16] While the IEU have provided the grounds of their understanding as to the meaning of “majority”, in my view, it is necessary for the Tribunal to look at the ordinary meaning of the word “majority”.

[17] The Australian Concise Oxford Dictionary defines majority as the “greater number or part”. Included in the definition is the reference to “majority rule” and that is, the “principle that greater number should exercise greater power”. Further, “number by which votes cast for one party etc exceed those next in rank; party etc, receiving greater number of votes”.

[18] As a matter of numerical fact, 29 is greater than 28. Each vote has the same value. For 28 who voted “yes” to the Agreement, another 28 voted “no”. However, the final remaining voter, voted in favour of the Agreement. Consequently, by a majority of one, those employees who provided a valid vote have endorsed the Agreement. In the absence of any submission stating that the voting process was improper, I am satisfied that there is sufficient proof to demonstrate that there has been genuine support for the Agreement.

[19] While Parliament has not determined in the FW Act the meaning of majority, I am satisfied, for the reasons above, that it should be given its ordinary meaning and that in any ballot, the greater number (whether it be 1 or 100), should prevail in determining the outcome of a ballot.

[20] Should the FW Act have included a definition of majority which required the “rounding up” where there is an uneven number of valid votes to determine whether a majority of more than 50% has been achieved, I would be inclined to agree with the IEU’s submission. In the absence of any definition in the FW Act, a simple majority or the greater number of valid votes cast for the proposition should prevail over a lesser number.”

[93] Adopting the approach of Commissioner Cloghan, a greater number of signatures prevails over a lesser number. The greater number of 17 employees who signed the petition prevails over the 16 employees who did not.

[94] In relation to s.237(2)(a), on the evidence provided, I am satisfied that a majority of employees who were employed by the employer at the time of the petition and who will be covered by the proposed agreement, want to bargain.

Conclusion

[95] 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).

[96] 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 (at the time of the petition) of the employees employed by the employer at the determined time, who will be covered by the proposed agreement. 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 tests for a majority support determination in s.237 have been made out and the Determination will issue.

[97] The application for the majority support determination is therefore granted.

[98] A Majority Support Determination [PR586700] to this effect will be issued today.

COMMISSIONER

 1   [MA000084].

 2   National Union of Workers [2016] FWC 3910 at [19].

 3   Media, Entertainment and Arts Alliance [2014] FWC 8898 at [65].

 4   [MA000084].

 5   [MA000004].

 6   [MA000002].

 7   Construction, Forestry, Mining and Energy Union[2014] FWC 7123 at [64] per Lewin C, an approach approved by a Full Bench on appeal (Alcoa of Australia Limited v Construction, Forestry, Mining and Energy Union[2015] FWCFB 1832).

 8 Ibid at [65].

 9   Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Others[2012] FWAFB 2206 at [21], as referred to with approval by Sams DP in Jenkins [2014] FWC 6321, and also by Lewin C in CFMEU [2014] FWC 7123.

 10   National Union of Workers v Cotton On Group Services Pty Ltd[2014] FWC 6601 at [27].

 11   [2014] FWC 6601 at [14].

 12   [2014] FWCFB 1476 at [29].

 13   [2012] FWAA 210.

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