Transport Workers' Union of Australia v Jr & EG Richards Administration Pty Ltd T/A Jr Richards & Sons

[2016] FWC 3012

[2016] FWC 3012

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
JR & EG Richards Administration Pty Ltd T/A JR Richards & Sons
(B2016/494)

DEPUTY PRESIDENT BULL SYDNEY, 13 MAY 2016

s.236 Majority Support Determination - AEC to conduct Ballot of employees.

[1] On 28 April 2016, the Transport Workers’ Union of Australia (TWU) pursuant to s.236 of the Fair Work Act 2009, applied for a majority support determination and named JR & EG Richards (NSW) Pty Ltd (JR Richards) as the employer. The TWU application stated it was seeking to enter into enterprise agreement negotiations with the employer to cover commercial waste drivers/operators at the employer’s Rutherford depot. The majority support determination was sought on the basis that the employer had declined to enter into negotiations concerning an enterprise agreement despite a number of requests made by the TWU.

[2] The TWU relied upon a petition which it stated indicated that the majority of employees who would be covered by a proposed enterprise agreement had indicated their support to commence bargaining. Employees chosen by the TWU to be covered by a proposed agreement were said to be geographically and operationally distinct from other employees engaged by the respondent. The TWU stated that there were 12 employees of whom 10 had indicated they wish to commence the bargaining process.

[3] The employer responded by indicating that the correct employer is JR & EG Richards Administration Pty Ltd and opposed the majority support determination on the basis that a majority of employees supporting enterprise bargaining did not exist and that the employees chosen to be covered by the proposed agreement were not fairly chosen in the sense that they were not operationally distinct. The employer produced to the Commission signatures of seven employees who it said were no longer desirous of entering into enterprise agreement negotiations despite having earlier signed the TWU petition. The names of those employees at this stage remain confidential.

[4] In respect of whether the proposed agreement coverage was fairly chosen, the employer submitted that two additional employees who work out of the Rutherford depot should be included in the coverage of any proposed agreement.

[5] A conference was held before the Commission on 12 May 2016 to ascertain the actual differences between the parties. The TWU stated that they believed they still had majority support from employees to enter into enterprise agreement negotiations on the basis that the change of position of some employees as submitted by the employer had only occurred as a result of misleading and coercive comments made by JR Richards’ management at one-on-one face-to-face meetings held with employees. This allegation was strongly denied by JR Richards.

[6] On the basis there was a dispute about the genuineness of the current position of employees in respect to whether they wished to commence enterprise agreement negotiations, it was agreed by the parties that a separate exercise to ascertain the views of employees should be carried out independently and on a basis which did not identify the views of individual employees. The parties agreed that the Australian Electoral Commission (AEC) would be the most appropriate body to conduct this exercise.

[7] It was further agreed that the question to be put to employees should be in the following terms:

“Do you support entering into enterprise bargaining for the 14 employees engaged as drivers at the JR Richards depot at Rutherford?

[ ] Yes    [ ] No

[8] An order [PR580309] reflecting the above is issued by the Commission concurrently with this decision. The TWU has consented to amending the name of the employer to reflect the legal entity as disclosed by the employer. The name of the respondent employer is amended pursuant to s.586 of the Act to the extent that the true legal employer is correctly identified.

DEPUTY PRESIDENT

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