United Voice

[2015] FWC 1282

[2015] FWC 1282

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

United Voice
(B2015/266)

COMMISSIONER SPENCER BRISBANE, 6 MARCH 2015

Spotless Services Limited T/A Ensign Services (Aust) Pty Ltd

[1] This decision relates to an application made by United Voice (the Applicant/United Voice) under section 236 of the Fair Work Act 2009 (the Act) for a majority support determination to undertake bargaining for an agreement to cover employees of Spotless Services Limited (the Respondent) working at the Darra site.

[2] Directions were set for the filing of written submissions and evidence. Additional materials were filed and the parties subsequently agreed for the matters to be determined on the papers.

[3] Whilst not all of the submissions and evidence are referred to in this determination, all of such have been considered.

Legislation

[4] Section 236 of the Act relates to applications for majority support determinations:

“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.”

[5] Section 237 of the Act sets out the legislative tests for a majority support determination:

“237 When FWC must make a majority support determination

Majority support determination

(1) 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) FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWC must be satisfied before making a majority support determination

(2) 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 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), FWC may work out whether a majority of employees want to bargain using any method FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, 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.”

Applicant’s submissions

[6] The Applicant submits that United Voice is a bargaining representative for one or more employees who would be covered by the proposed agreement.

[7] The Applicant submitted that the coverage of the proposed Agreement should be derived from the nominally expired Ensign Services (Aust) Pty Ltd (Kelvin Grove) Certified Agreement 2005 (as varied 2008) (the Expired Agreement).

[8] The Applicant further submitted that due to operational change, the Kelvin Grove site has now been closed and all employees to be covered by the proposed Agreement are based at the Employer’s Darra site. Further, the Applicant submits that the coverage of the proposed agreement would only include employees engaged as “Laundry Workers” and associated classifications.

[9] United Voice further submitted that it does not seek to have the determination apply to employees employed by the employer outside of these classifications, who are principally in administrative or maintenance roles. It is therefore submitted that the group of employees is operationally or organisationally distinct and can be considered fairly chosen on that basis.

[10] The Applicant contends that at various times since 2013, the Applicant has formally sought to commence bargaining with the Employer for an enterprise agreement. The Applicant provided to the Commission correspondence sent by the Applicant, dated 11 November 2013, addressed to Mr Rob Watts, General Manager of Ensign Group, seeking to initiate bargaining.

[11] It is submitted by the Applicant that no formal response was received to this correspondence, and the Employer did not commence bargaining. The Applicant submitted that in November 2014, a representative of the Employer confirmed verbally to a representative of the Applicant that they did not intend to commence bargaining.

[12] The Applicant presented a petition of employees, conducted during November and early December 2014, as evidence that a majority of employees who would be covered by the proposed Agreement want to bargain with the Respondents. The petition was prepared by United Voice, and United Voice Organiser Tyson Johnston who visited the site on various occasions for the purpose of discussing the petition and gathering signatures.

[13] In relation to whether it is reasonable in all circumstances to make the determination, the Applicant submits that there are no relevant circumstances which would militate against making the determination.

Respondent’s Submissions

[14] The Commission received an email from Lou Dimovski, Queensland Operations Manager for Ensign Services. The letter states:

“In response to the Directions - Matter B2015/266 I would like to formally confirm the following:

1. Ensign Service have no objection to 236 Majority support determination
2. Ensign Service have not yet agreed to bargain or initiated bargaining for the agreement.”

Consideration

[15] The Respondent did not make any submissions in relation to s.237(2)(a), (c) or (d), in relation to whether a majority of employees want to bargain, whether the group is fairly chosen or whether it is reasonable in all the circumstances to make the determination. In relation to s.237(2)(a), on the evidence provided, I am satisfied that a majority of employees who were employed by the employer at the time of the petition and who will be covered by the proposed agreement, want to bargain.

[16] In respect of s.237(2)(b) and (c), I am satisfied that the Respondent has not yet agreed to bargain, or initiated bargaining, for the agreement and that the group of employees who will be covered by the agreement was fairly chosen, as, on the uncontested evidence of the Applicant, the group of employees to be covered by the agreement are geographically, operationally and organisationally distinct.

[17] In respect of s.237(2)(d), I accept the Applicant’s uncontested evidence that there are no relevant circumstances which would militate against making the determination. I am satisfied that it is reasonable in all circumstances to make the determination.

Conclusion

[18] In accordance with the legislation, a majority support determination application has been made pursuant to s.236 and the application complies with s.236(2).

[19] In accordance with s.237(2)(a) and s.237(3), the number of entries on the petition in support of bargaining is commensurate with a majority (at the time of the petition), that is, it represents more than half of the employees employed at the determined time, who will be covered by the proposed agreement. The Respondent has been able to proof this document and did not provide contrary submissions on this criterion at the time nor did they provide a subsequent objection. In terms of s.237(2)(b), the evidence of both parties is that the Employer has not agreed to commence bargaining. In accordance with s.237(2)(c), the group is fairly chosen and in line with s.237(2)(d), it is reasonable in all the circumstances to make the determination. Accordingly, the tests for a majority support determination in s.237 have been made out and the Determination will issue.

[20] The application for the majority support determination is therefore granted.

[21] A Majority Support Determination [PR561332] to this effect will be issued today.

COMMISSIONER

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<Price code C, PR561330>