Transport Workers Union of Australia v GTS Freight Management Pty Ltd
[2012] FWA 6677
•9 AUGUST 2012
[2012] FWA 6677 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.236—Majority support determination
Transport Workers’ Union of Australia
v
GTS Freight Management Pty Ltd
(B2012/1422)
COMMISSIONER LEE | PERTH, 9 AUGUST 2012 |
Application for majority support determination - GTS Freight Management Pty Ltd - ballot of employees ordered.
[1] On 25 July 2012, the Transport Workers’ Union of Australia (TWU) made application to Fair Work Australia for a majority support determination. The Respondent is GTS Freight Management Pty Ltd (the Respondent). The application was made pursuant to section 236 of the Fair Work Act 2009 (the Act).
[2] The matter was heard before me on 1 August 2012. Mr D. Coghill appeared for the TWU and Ms C. Pollard of the Victorian Employers’ Chamber of Commerce and Industry appeared on behalf of the Respondent.
[3] After hearing submissions and evidence from both parties, I delivered an ex tempore decision in which I ordered that the Australian Electoral Commission (AEC) was to hold a ballot of affected employees to determine whether there is majority support to bargain. The following is an edited version of the decision given orally on 1 August 2012.
[4] This is a matter involving an application for a majority support determination that was made by the Transport Workers' Union to apply to GTS Freight Management Pty Ltd. The coverage of the proposed agreement is all non-salaried staff at the Respondent's operations that are currently covered by the expired GTS Freight Management Pty Ltd Enterprise Agreement 2002 as varied in 2009. The relevant provision of the Act is section 237.
[5] Section 237 of the Act provides as follows;
“237 When FWA must make a majority support determination
Majority support determination
(1) FWA 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) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which FWA must be satisfied before making a majority support determination
(2) FWA must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by FWA; 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), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA 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.”
[6] With respect to section 237(2)(a) of the Act, the Transport Workers' Union submitted with their application a petition of employees. That petition was tendered in the proceedings and was marked as exhibit V3. On that petition there were 39 signatures which the TWU asserted in their application represented 57 per cent of the employees that were to be covered by the proposed agreement. It was assumed by the TWU in their submissions that based on their observations of truck movements at the premises of the Respondent, that there were 60 employees to be covered by the proposed agreement and the petition was evidence that there was a majority of employees who wished to bargain.
[7] Ms Tina Smyth, Administration Manager, gave evidence for the Respondent. Ms Smyth gave evidence that having examined the names on the petition marked V3, that 10 of the 39 signatures were not relevant, those 10 being either employees who had left the Respondent business or were contractors. She claims that the number of valid signatures on the petition marked V3 was 29. There was no contest to that evidence and I am therefore satisfied that the petition is evidence as a desire for collective bargaining on behalf of 29 employees only.
[8] Ms Smyth gave evidence that the number of employees who would be covered by the agreement as proposed by the Transport Workers' Union would be 115. That evidence was not contested and I determine that at the date of the hearing the Respondent employed 115 employees who would be covered by the proposed agreement.
[9] I note the TWU submitted that they had sought information from the Respondent as to the total number of employees that would be covered by the proposed agreement on earlier occasions to no avail. It is unfortunate, if that was the case, that the information was not supplied.
[10] Ms Smyth also gave evidence that the long haul drivers working for the Respondent often do not visit the Respondent’s headquarter depot at Mildura for quite long periods of time, and that that may well have been a factor in terms of the view of the TWU about the number of employees that were actually engaged by the Respondent.
[11] It is clear then on the evidence presented in today's hearing that there is not a basis for me to be satisfied that a majority of employees that will be covered by the proposed agreement want to bargain, as required by section 237(2)(a).
[12] I am also satisfied that the nature of the Respondent’s enterprise, most notably that many employees essentially operate, as was put in the evidence by Ms Smyth, out of their prime movers as a workplace, makes it difficult to establish what the views of the majority of employees are in respect of their desire to bargain simply by virtue of the fact that it is difficult to contact them.
[13] Section 237(3) of the Act provides that FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.
[14] The Respondent has submitted that on the basis of the evidence presented, I should dismiss the application, or in the alternative, consider ordering that the AEC conduct a ballot. On that basis the Respondent has referred me to a number of decisions where Fair Work Australia has resolved to make an order that the AEC conduct a ballot of the relevant employees.
[15] I have examined those authorities, in particular the decision of Commissioner Roe in The Association of Professional Engineers, Scientists and Managers, Australia - Collieries Staff Division v Endeavour Coal Pty Ltd. 1 In that decision Commissioner Roe, having dealt with the particular circumstances and the facts in that matter, stated;
“...given the objects of the legislation, I think it is appropriate in the circumstances of this matter that the Tribunal should take further steps to identify whether or not a majority support determination should be made on the basis of the application.” 2
[16] On that basis he indicated he would make an order that the AEC "should conduct a ballot of the affected employees". I consider it appropriate in this matter to order that the AEC conduct a ballot in two weeks' time or as soon as practicable thereafter of the employees, in order that I can be satisfied or not as to whether a majority of the employees who will be covered by the proposed agreement want to bargain.
[17] The form of the order will be consistent with the draft that has been provided by the Respondent. The TWU indicated that they supported the wording in that draft order and they further indicated that they did not object to me making an order in those terms.
[18] The order [PR527502] was issued on 3 August 2012.
COMMISSIONER
Appearances:
D Coghill for the Transport Workers’ Union of Australia
C Pollard of Victorian Employers’ Chamber of Commerce and Industry for Respondent
Hearing details:
2012.
Melbourne
August 1
1 [2010] FWA 7497
2 The Association of Professional Engineers, Scientists and Managers, Australia - Collieries Staff Division v Endeavour Coal Pty Ltd [2010] FWA 7497, [9]
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