Transport Workers' Union of Australia v The Trustee for Rico Family Trust & the Trustee for J R Richards Family Trust T/A J R Richards & Sons Trade Waste Pty Ltd (ABN 76 048 050 419)

[2017] FWC 2868

[2017] FWC 2868

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
The Trustee for Rico Family Trust & the Trustee for J R Richards Family Trust T/A J R Richards & Sons Trade Waste Pty Ltd (ABN 76 048 050 419)
(B2017/412)

COMMISSIONER CAMBRIDGE SYDNEY, 7 JULY 2017

Application for a majority support determination.

[1] On 22 May 2017, the Transport Workers' Union of Australia (the TWU) made an application to the Fair Work Commission (the Commission) for a majority support determination. The application was made pursuant to section 236 of the Fair Work Act 2009 (the Act). The application sought a determination in respect to members of the TWU employed by JR Richards & Sons.

[2] The matter was listed for initial proceedings before the Commission on 26 May 2017. At these proceedings the TWU was represented by Mr H Lau together with Mr N Harper. The employer was represented by Ms K Tierney, General Counsel from J. J. Richards & Sons Pty Ltd who appeared via video link from Brisbane.

[3] At the proceedings held on 26 May, the employer was more accurately identified as The Trustee for Rico Family Trust & the Trustee for J R Richards Family Trust T/A J R Richards & Sons Trade Waste Pty Ltd (ABN 76 048 050 419) (the employer). Further, during the proceedings of 26 May, Ms Tierney advised that the employer opposed the application for various reasons including that: (a) the petition material allegedly signed by employees did not specifically indicate an intention or desire to engage in enterprise bargaining but rather, it only appointed the TWU as a bargaining agent; and (b) there was some confusion as to the group of employees who the TWU sought to be covered by any enterprise agreement.

[4] In view of the opposition to the application, the TWU was invited to communicate with the employer in order to potentially clarify the specifics of any petition of employees that it sought to rely upon, and to confirm the proposed coverage of any enterprise agreement that it sought to establish with the employer. The matter was listed for a Report Back on 14 June 2017.

[5] At the Report Back held on 14 June, Mr S Bridge appeared for the TWU with Mr Lau assisting, and Ms Tierney continued her appearance for the employer. Mr Bridge advised the Commission that he believed that he had provided the employer with material which addressed any concern regarding the specifics of the petition of employees, and further, that the TWU had confirmed that the proposed enterprise agreement would cover employees working at and from the employer’s depot located in Orange, New South Wales, and who were covered by the Waste Management Award 2010 (the relevant employees).

[6] Ms Tierney advised that the employer had not been provided with the wording used by the TWU in a revised petition of employees, and although the proposed coverage of any enterprise agreement had been clarified, the employer believed that the number of relevant employees was 45, and as the TWU had indicated that it had only 20 signatures on its revised petition there may not be sufficient numbers to represent a majority of the relevant employees.

[7] In the circumstances, the Commission made Directions, by consent, for the Parties to file all evidence and submissions upon which it was anticipated that a determination of the application would be made. The Commission also provided an opportunity for either Party to be further heard before any determination was made.

[8] Subsequently, the Parties have filed evidence and submissions upon which the determination of the matter has proceeded.

[9] In brief, the TWU provided evidence in the form of three witness statements together with a petition signed by numerous individuals who were asserted to be relevant employees and who had signed the petition indicating that they wanted to bargain for an enterprise agreement with the employer.

[10] The employer made submissions which maintained particular objections to the granting of the application. In addition, the employer provided the Commission with a list of names of all of the relevant employees. Further, the employer stated that if the revised petition was compared with its list of names of relevant employees and a majority was established, it did not have an “intention to lodge further submissions contesting majority”.

[11] The Commission has carefully examined the revised petition provided by the TWU and cross-checked the names and signatories against the list of relevant employees provided by the employer. Despite there being several names included on the revised petition which do not appear on the list of relevant employees provided by the employer, a clear majority of identified relevant employees who have signed the revised petition has been established.

[12] Consequently, I am satisfied that; (a), a majority of the relevant employees want to bargain, and (b), the employer has not yet agreed to bargain, and (c), the group that comprises the relevant employees has been fairly chosen taking into account the geographical, operational and organisational distinction of that group, and (d), that it is reasonable in all circumstances to make the majority support determination. Therefore the relevant requirements of ss. 236 and 237 of the Act have been met and the application must be granted.

[13] Consequently, the Commission has separately issued a majority support determination.

[14] This majority support determination operates on and from today, 7 July 2017.

COMMISSIONER

Appearances:

Mr S Bridge, and Mr H Lau with Mr N Harper for The Transport Workers' Union of Australia.

Ms K Tierney for the Trustee for Rico Family Trust & the Trustee for J R Richards Family Trust T/A J R Richards & Sons Trade Waste Pty Ltd (ABN 76 048 050 419).

Hearing details:

2017.

Sydney:

June, 14.

Final submissions: 28 June 2017.

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<Price code A, PR593196>