The Australian Workers' Union

[2016] FWC 1876

[2016] FWC 1876

FAIR WORK COMMISSION

DECISION

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

The Australian Workers' Union
(B2015/1765)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 24 MARCH 2016

Application for a majority support determination – Retail Ready Operations Pty Ltd.

Introduction

[1] On 23 December 2015 the Australian Workers’ Union (AWU) filed an application pursuant to s.236 of the Fair Work Act 2009 (the Act) for a majority support determination.

[2] The employer is Retail Ready Operations Australia Pty Ltd (Retail Ready) which is part of the Wesfarmers/Coles group of companies.

[3] The application relates to “production technicians” within the Engineering Department of the production facility at Erskine Park in western Sydney. It is said these employees, who are currently covered by the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] are a distinct and discrete group of employees. A new venue at Eastern Creek is planned.

[4] It appears that the employees, which number approximately 17 (see below), were previously employed by a company called “Prime Link” who had more favourable over-award arrangements than Retail Ready proposes.

[5] In December 2015, the AWU raised with Retail Ready a range of issues with respect to the proposed over-award agreement. In its letter of 16 December, the AWU informed Retail Ready that a majority of these employees, members of the AWU, wished to enter into bargaining for an enterprise agreement with the AWU as their bargaining representative.

[6] In its response on 23 December 2015, Retail Ready said that was “comfortable with our current arrangements”. It further stated “We do not propose to enter into negotiations for an enterprise agreement”.

[7] I note that the factory in question is a large food processing establishment which produces packaged meat and poultry products for sale in Coles supermarkets. Production employees are employed under the Retail Ready Operations Australia Pty Ltd Agreement 2015 [AE415352]. The Australasian Meat Industry Employees Union (AMIEU) is the union covered by the agreement.

Commission Proceedings

[8] The application was dealt with in conference on 1 February 2016.

[9] No agreement was reached and directions were issued prior to the hearing on 7 March 2016.

[10] The AWU was represented by Mr Vern Falconer. Retail Ready was represented by Adam Lambert of Herbert Smith Freehills. Mr Lambert was granted permission to appear pursuant to s.596 of the Act.

Relevant Legislative Provisions

[11] Under the scheme of the Act a Majority Support Determination is a mechanism a union can use to try to get an employer to bargain even if they have not agreed to do so, as is the case here. Of course, this does not mean that the employer must agree. However, the other provisions of the Act are then available to the union as a bargaining agent. For example, in the absence of the employer’s agreement to bargain, a majority support determination is the principal requirement to obtain a bargaining order pursuant to s.230.

[12] Section 236 and s.237 provide:

“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.”

[13] The Commission must be satisfied that the majority of employees to be covered by the proposed agreement want to bargain. The Commission must be satisfied that the group has been “fairly chosen” based on the “geographically, operationally or organisationally distinct” criteria in s.236(3A). The relevant time is to be determined by the Commission.

[14] Finally, the Commission has a discretion to decide on the method for determining whether there is a majority of employees who want to bargain.

Consideration

[15] The AWU submits that it has undoubted constitutional coverage to represent these technicians. It relies on Section 2 Part B of Rule 5, its eligibility rule which provides coverage of various types of tradespersons and technicians. This is not contested by Retail Ready.

[16] Mr Ackerman, the responsible AWU organiser, gave evidence. Meetings between AWU organisers and Retail Ready employees had taken place just outside the factory premises on 14 and 16 December 2015. Most of the employees who signed the petition relied upon by the AWU did so on 16 December. Some joined the AWU then but some had already done so on-line, or were existing members.

[17] The petition dated 15 December 2015 stated:

“We the undersigned technician employees of Retail Ready Operations, Erskine Park NSW, wish to enter into meaningful negotiations with the Company for an Enterprise Agreement, which covers all employees, eligible to be members of the Australian Workers’ Union. The agreement should cover wages, hours of work, allowances, statutory entitlements and be measured against the minimum standards contained in the Manufacturing and Associated Industries Award 2010 [sic], as amended, for the purposes of meeting the ‘better off overall test’.

This petition will remain strictly confidential between the employees and the Australia Workers’ Union.”

There then followed a list of signatures together with the relevant printed name.

[18] It is clear from Mr Ackerman’s evidence that of the 19 employees who signed the petition, 17 did so on 16 December 2015 and two did so at a further meeting on 2 January 2016.

[19] Retail Ready challenged the AWU’s standing to make the application under s.236 on the ground it had not provided evidence that it was a bargaining representative. Section 176(1) of the Act requires an employee organisation which purports to be a bargaining representative under the Act to have a member at the relevant time. Retail Ready submitted that the AWU needed to show that this was the case at the time the application was lodged, i.e. 23 December 2015.

[20] Retail Ready did not dispute that the group of employees was fairly chosen, pursuant to s.237(2)(c).

[21] Retail Ready submits that the petition is not an appropriate method to judge whether there is majority support. Criticism was made about the way signatures were collected, the time delay between the signing and the hearing, changes in workplace numbers and so on.

[22] Retail Ready submits that the Commission should order a ballot to be conducted by the Australian Electoral Commission to work out whether there is majority support.

[23] At the hearing, the AWU tendered a confidential print-out from its membership system (Confidential Exhibit F5). It also tendered a copy of the completed petition (Confidential Exhibit F4). Retail Ready also provided to the Commission a confidential list of the relevant employees as at the date of the hearing.

[24] I have considered this material and I am satisfied that:

● At the time of making the application the AWU had at least five members amongst the relevant group of employees. They are still employed by Retail Ready. I am satisfied therefore that the AWU was and is a bargaining representative able to make this application.

● Retail Ready’s confidential employee list reveals that there were 16 employees at the time of the hearing. 19 employees signed the petition. The difference is explained by staff turnover. The crucial point however, is that 14 of the employees who signed the petition were still employees at the time of the hearing – an overwhelming majority.

[25] On the basis of Mr Ackerman’s evidence I am satisfied that the employees completed the petition freely and without coercion. Although some of the petitions were filled in away from his sight, they were promptly returned to him and effectively remained within his supervision. The following exchange reveals the process:

“THE DEPUTY PRESIDENT:  Just before Mr Lambert has a go, I am just a little bit confused about the signature process.  So on the 16th, you had a meeting where there were half a dozen people approximately in attendance, is that right?---That's correct.

Those people then signed the petition at that meeting?---Yes.

Then, what, someone took it away and got other people to sign it, is that what happened?---Yes, they were working inside a secure facility so I had absolutely no right of entry and I also did not wish to cause any disruption to their operation.

When did you receive those signatures then?---On that same day.  On each occasion that I attended the site to collect signatures for the petition, they were taken inside, signed, and then returned to me.

So, what, you just stayed around whilst the signatures were happening, did you?---Yes, correct.

Then you were given the document back?---That's correct.

That happened both on the 16th and on 2 January, did it?---That's correct.

Again, not identifying individuals, would I be right in assuming that on this petition that I have, there is two pages and there is two people who are on the second page, would I be right in assuming that they are the people that signed on 2 January?---That is correct.” Transcript (PN124 – 131)

[26] In all the circumstances, I am satisfied that the petition represents the views of the relevant group of employees freely obtained. In my view, the petition represents an appropriate method of working out whether a majority wants to bargain. The group was fairly chosen. I accept that the AWU wants to negotiate an agreement for this group of employees only. There will be no demarcation difficulties for Retail Ready. The intention of the petition is, in my view quite clear.

[27] Unlike in AMWU v Veolia Water Operations Pty Ltd (2015) FWC 2561, relied on by Retail Ready, the petition remained under the custody and control of Mr Ackerman, the responsible AWU organiser.

[28] There was a gap of some 2½ months between the signing of the petition and the hearing. However, the majority in support of employees, current at that date, was so overwhelming that I am persuaded to accept that it is still valid. There is no specific evidence of employees changing their minds.

[29] It seems to me that the appropriate time to determine whether there is majority support, in accordance with s.237(2)(a)(i), is the date of the hearing. This was not objected to by the parties.

[30] Accordingly, I am satisfied that the requirements of s.237(2) have been met. I am also satisfied that the petition tendered by the AWU, as a bargaining representative, is a bona-fide and appropriate method of determining whether a majority of employees want to bargain, in accordance with s.237(3). I am satisfied that this is in fact the case.

[31] A majority support determination will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

V. Falconer for the AWU;

A. Lambert for Retail Ready.

Hearings:

2016

Sydney:

February 1 (Conference);

March 7.

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