The Australian Workers' Union v Normark Landscapes Pty Ltd
[2018] FWC 3494
•14 JUNE 2018
| [2018] FWC 3494 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
The Australian Workers' Union
v
Normark Landscapes Pty Ltd
(B2018/174)
| Deputy President Colman | MELBOURNE, 14 JUNE 2018 |
Application by The Australian Workers’ Union for a majority support determination
This decision concerns an application by the Australian Workers’ Union (AWU) under s.236 of the Fair Work Act 2009 (Act) for a majority support determination. The AWU contends that a majority of employees who would be covered by a proposed enterprise agreement want to bargain with their employer, Normark Landscapes Pty Ltd (Company). The employment of the employees in question is covered by the Gardening and Landscaping Services Award 2010 (Award).
On 12 April 2018 I conducted a telephone mention, during which the Company advised that it opposed the making of a majority support determination. On the same day, I issued directions that the parties file outlines of submissions and any witness statement or other documents they sought to rely on. I directed the AWU to provide the Company with a redacted copy of the petition referred to in its application, and the Company to provide the Commission with a list of employees who perform work that would be covered by the proposed agreement. In this regard, the union’s application under s.236 had identified that the employees to be covered by the agreement were ‘employees of the company who are currently covered by the Award.’ However, in the course of the telephone mention, the union clarified that the proposed agreement would apply only to employees undertaking ‘garden and landscape maintenance work’ covered by the Award. My directions reflected this position.
The parties filed their respective materials in accordance with the timetable set by my directions. The AWU submitted to the Commission a copy of a petition document, which stated that the nine undersigned individuals wanted to bargain with the Company for an enterprise agreement, and that they supported the AWU making application to the Commission for a majority support determination in the event the Company did not agree to bargain. The petition document set out the names, positions and ‘work area’ of employees (in each case, ‘maintenance’), together with their signatures, contact numbers and the date of signature. In addition to written submissions, the union filed witness statements of Mr Fez Riches, AWU organiser, and Mr Mark Jones, a team leader employed by the Company.
The Company submitted a list of its employees, grouped by reference to its maintenance, domestic and commercial divisions. The total number of employees across all divisions was 28. Employees working in the ‘maintenance’ division numbered eight. The Company filed a written submission but no statements of evidence.
The matter was listed for hearing before me on 7 June 2018. Mr Riches and Mr Jones gave evidence for the union. No evidence was adduced by the Company. The parties’ representatives spoke to their written submissions.
Statutory framework
Section 237 of the Act provides that the Commission must make a majority support determination in relation to a proposed single enterprise agreement if an application has been made under s.236, and the Commission is satisfied of the matters in s.237(2). That section provides that the Commission 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.”
In relation to s.237(2)(a), the Commission may work out whether a majority of employees wants to bargain using any method it considers appropriate (s.237(3)).
In respect of s.237(2)(c), if the proposed agreement will not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is ‘geographically, operationally or organisationally distinct’ (s.237(3A)).
Consideration
The AWU’s application for a majority support determination meets the requirements of s.236. It is an application by a bargaining representative of employees who will be covered by a proposed single enterprise agreement. There was no dispute that the union represents members at the site, and that its registered rules entitle it to represent the industrial interests of employees of the kind who would be covered by the proposed agreement. The first pre-condition for the issuing of a majority support determination is therefore met.
There was also no dispute that the Company has not yet agreed to bargain, or initiated bargaining, and that the requirement in s.237(b) has therefore been met.
Majority support
In relation to s.237(2)(a), the Commission must consider whether a majority of the relevant employees employed by the Company at a particular time, and who will be covered by the proposed agreement, want to bargain. The time that I have determined for the purposes of s.237(a) is 19 April 2018, being the date the Company submitted its list of relevant employees to the Commission.
As to the method that should be used to establish whether a majority of employees wants to bargain, the AWU submitted that the petition process was appropriate and was a method that the Commission has previously accepted as suitable. Mr Riches gave evidence about the circumstances in which the AWU petition was compiled. He stated that in February 2018 he collected signatures of employees working within the maintenance division of the Company in support of a majority support determination. He stated that he met with employees at the Pascoe Vale Hotel after work on 16 and 19 February 2018, and explained to them the purpose of the petition and the significance of obtaining a majority support determination. I note that the employee signatures appearing on the petition are all dated either 16 or 19 February 2018.
The outline of submissions filed by the Company contended that the use of a petition as the method to demonstrate majority support was not appropriate, because the petition was not directed at all employees who perform maintenance work for the Company.[1] However, in my view this submission does not call into question the use of a petition as an appropriate method to gauge whether there is majority support for bargaining, but goes rather to the question of whether the relevant group of employees was fairly chosen, and whether it is reasonable in all the circumstances to make a determination. I return to these matters below.
Having regard to all the circumstances, and in particular the evidence of Mr Riches, I am satisfied that the use of a petition, and the AWU’s petition in the present case, is an appropriate method for working out whether a majority of employees wants to bargain (s.237(3)).
This brings me to the question of whether a majority of relevant employees employed by the Company on 19 April 2018, and who would be covered by the Agreement, does in fact want to bargain with the Company for an enterprise agreement. The consideration of this question intersects with that of the coverage of the proposed agreement.
As noted above, the union’s application stated that the proposed agreement would apply to employees of the Company who were covered by the Award. This proposed coverage was narrowed during the telephone mention such that it related only to employees engaged in garden and landscape maintenance work. The submissions filed by the union further narrowed or particularised the scope of the proposed agreement, explaining that the proposed agreement would in fact cover employees who work in the Company’s ‘maintenance division’.[2] This is an important distinction as employees in the Company’s other two divisions also perform certain ‘maintenance’ work, in addition to other tasks. I note that ‘maintenance’ in the present setting relates to the maintenance of gardens (such as weeding, planting, mulching etc.), not mechanical maintenance. The Company did not contend, nor was there anything to suggest, that it was taken by surprise by this further clarification. It was very clear at the hearing before me that the proposed agreement was to cover employees in the maintenance division, and that the Company understood this. Based on Mr Riches’ evidence, I am also satisfied that the employees who signed the petition understood this to be the case. This is the group with whom Mr Riches met to discuss the petition at the Pascoe Vale Hotel, and the nine employees appearing on the petition all list their work area as ‘maintenance’.[3]
The evidence of Mr Jones was that the Company has three distinct divisions: the maintenance division, the domestic division and ‘commercial’ (also called construction). Mr Jones works in the maintenance division. Although the Company did not lead evidence, it acknowledged at the hearing that its business contains these three areas, although they are not necessarily referred to by the Company as ‘divisions’. This three-part organisational structure was further reflected in the Company’s list of employees, which set out employees by reference to these areas. Under ‘maintenance’ the Company listed eight employees, under ‘domestic’ it listed six, and in ‘commercial’ there were fourteen.
It is evident that of the eight employees in the ‘maintenance’ division appearing on the Company’s list of employees, seven appear also on the union’s petition. The union noted that two of the nine employees identified in its petition had since resigned from their employment.
In its written submissions, the Company stated that it had concerns that some of the employees in question were not fully in support of bargaining and that they may have been subjected to coercion or misinformation. However, no evidence was produced to support this contention. I accept the evidence of Mr Riches in relation to his discussions with employees and the compilation of the signatures on the petition. I do not see any basis to apprehend coercion, misinformation, or any other concern as to the genuineness of the petitioners’ wish to bargain with the Company.
Accordingly, I am satisfied that a majority of employees (seven out of eight) employed by the Company on 19 April 2019, and who will be covered by the proposed agreement – employees in the maintenance division and covered by the Award – want to bargain.
Fairly chosen
In considering whether the group of employees who will be covered by the agreement was fairly chosen, I have taken into account whether the group is geographically, operationally or organisationally distinct, as required by s.237(3A).
I accept the evidence of Mr Jones that the maintenance division in which he works has its own managers and supervisors. A pro forma contract was tendered in respect of a position of ‘Gardener – Maintenance’, indicating that employees are hired to work specifically, or predominantly, in a particular division of the business.[4] It was not contested that the three ‘divisions’ have distinct operational focuses; maintenance maintains gardens on an ongoing basis, domestic is concerned with houses and residential premises, and commercial is concerned with construction.
The expression ‘organisationally distinct’ in s.186(3A) contemplates the manner in which the employer has organised its enterprise in order to conduct its operations.[5] In this case, the employer’s own list of employees bears out the organisational distinctions that are present in its business. The evidence establishes that each ‘division’ performs a particular business function. In my view the group in question is both organisationally and operationally distinct. This is a factor telling in favour of a finding that the group was fairly chosen,[6] although it is not determinative.
In considering whether the group of employees was fairly chosen, it is appropriate to have regard to the interests of the employer, such as productivity, and the interests of the employees included in the agreement’s coverage, as well as those who are excluded.[7] The Company contended, in substance if not in terms, that the group of employees was not fairly chosen because employees in the domestic division were not included. However, it is not clear to me why this would be unfair. The domestic division is a distinct group which undertakes both maintenance and paving work. There was no evidence that employees in the domestic division wanted to be included in the group to be covered by the proposed agreement. The union indicated in the hearing that it would have no objection to employees in ‘domestic’ ultimately being covered by an agreement. In any event, there is nothing before me that indicates that the group of employees to be covered by the proposed agreement is unfair because the ‘domestic’ employees are not included in it.
The Company also contended that an enterprise agreement covering only employees in the maintenance area would create difficulties because employees across the three divisions are all required to do maintenance work. I accept that all employees perform maintenance work. In this regard, the document that contains the Company’s list of employees commences with three numbered points, describing the tasks performed by employees in each of the maintenance, domestic and commercial divisions. It says that ‘maintenance employees perform (the) following tasks – mowing, weeding, trimming, rubbish removals, planting, mulching, soiling, turfing and watering’. It then says that ‘domestic also does paving in addition to maintenance work listed above’. Lastly, it says that ‘commercial does not generally do mowing or rubbish removal … however is expected to perform the (other) maintenance work’. In addition, however, commercial undertakes tasks such as excavation, and concreting and machine work.
Accordingly, all employees of the Company undertake ‘maintenance’ work. But employees in the three divisions do not undertake the same duties as one another. In each division, the totality of the work undertaken by employees is distinct from the other divisions. Domestic undertakes paving, and commercial performs construction-related work. Each division is deployed on different types of projects. It would also not be correct to say that employees in domestic and commercial do all of the types of maintenance work performed by employees in the maintenance division. Employees in commercial do not generally do mowing or rubbish removal. And based on the individual duties of each employee on the employer list, it does not appear that employees in ‘domestic’ undertake mowing.
Clearly there is overlap between the substantive tasks performed by employees in the three groups, and a question arises as to what difficulties might arise if there were to be an enterprise agreement covering employees in the maintenance division only. During the hearing, I asked the Company to identify the difficulties that they had referred to generally in their submissions and how these difficulties would in practice arise. It was submitted that, although the Company has the three-part organisational structure referred to above, employees from one area are sometimes asked to work in another. Thus, an employee who works in the domestic area might be asked to work in the maintenance area if there is a backlog of work.
It would be relevant to take into account any adverse business implications that might arise from the choice of a particular group to be covered by an enterprise agreement. I can appreciate some inconvenience arising from a situation where an employee from ‘domestic’ is assigned to ‘maintenance’ for a period, during which his employment would be covered by the proposed enterprise agreement. But it is not unusual, and not a matter associated with unfairness, for an employee to be transferred temporarily to perform work that is covered by a different industrial instrument, or for an ‘award’-free’ employee to be deployed on work covered by an enterprise agreement. I do not consider this difficulty to be significant.
I note that employees in the commercial division are already covered by an enterprise agreement, the Normark Gardening Unit Trust (the Trustee for) T/As Normark Landscaping Pty Ltd and the CFMEU (Victorian Construction and General Division) Enterprise Agreement 2016–2018). I appreciate that the work undertaken in the ‘domestic’ and maintenance divisions is more similar to one another than to the work undertaken in ‘commercial’. If an enterprise agreement covered maintenance, domestic would be the only area without an enterprise agreement. On the other hand, there would be nothing to prevent a different agreement being made in respect of that division. And of course, the fact that a majority support determination might be issued in respect of a particular group does not preclude the bargaining representatives from extending the coverage of the proposed agreement at a later time.
I am satisfied that the group of employees was fairly chosen.
Reasonableness
Finally, I must consider whether it is reasonable in all the circumstances to make a majority support determination. I have considered the fact that employees in each division are deployed to work in another division from time to time. However, as noted above, the employees in the commercial area are already covered by an enterprise agreement. The Company already has a situation where an employee might move between an area that is covered by an instrument and one that is not so covered.
I cannot identify any considerations that would tell against a conclusion that it is reasonable to make the determination. I am satisfied, taking into account the contentions of the parties and the evidence before the Commission, that it is reasonable in all the circumstances to make a majority support determination.
Conclusion
As I am satisfied of the matters set out in s.237, I am required by the Act to make a majority support determination in accordance with s.237(1). There is no residual discretion.
A determination will be issued separately. As provided by s.237(4), the determination will come into operation on the date on which it is made.
DEPUTY PRESIDENT
Appearances:
C. Winter for the AWU
N. Smith for Normark Landscapes Pty Ltd
Hearing details:
2018
Melbourne
7 June
<PR608124>
[1] Respondent’s outline of submission, paragraph 7
[2] Applicant’s outline of submission, paragraph 2
[3] See also the witness statement of Fez Riches at paragraphs 7, 15, 16 and 17
[4] Exhibit A2
[5] Aerocare Flight Support Pty Ltd v ASU and TWU [2017] FWCFB 5826 at [27]
[6] See QGC Pty Ltd v AWU, [2017] FWCFB 1165 at [42]
[7] Ibid at [27]; and CFMEU v Resco Labour & Training Pty Ltd [2012] FWAFB 8461, 228 IR 5 at [34]
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