United Voice; Union of Christmas Island Workers

[2018] FWC 2434

[2018] FWC 2434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Voice; Union of Christmas Island Workers
(B2018/299)

COMMISSIONER SIMPSON BRISBANE, 3 MAY 2018

Proposed protected action ballot of employees of Serco Australia Pty Ltd t/as Serco Immigration Services.

[1] On the afternoon of 2 May 2018 I conducted a hearing of a Protected Action Ballot Order (PABO) application with the parties participating by telephone. At the conclusion of the hearing I issued a brief oral decision indicating my intention to grant the application for an order however also stating more detailed written reasons would follow. I did not indicate a specific timeframe in which I would issue the order.

[2] United Voice (UV) indicated for reasons that I will elaborate on below that immediately following the hearing it intended to seek to communicate with its site delegates. United Voice believed some confusion existed about the effect of some employees who were members of UV appointing their UV site delegates as their bargaining representative and if not withdrawn, may exclude them from eligibility to be on the roll for the protected action ballot. I expressed no view on the matter. The parties’ submissions were to the effect that there had been some 20 employees appointed as bargaining representatives, variously appointed by in the order of 300 employees.

[3] Subsequent to the conclusion of the hearing I became aware that the recording device used in chambers to record the hearing had failed to record the proceedings on 2 May. There is a record of the earlier proceeding on 27 April. In the circumstances I have attempted to include the details of the brief submissions made as I recall them from the hearing, in the body of my decision below.

[4] On 24 April 2018 a joint application was filed by UV and the Union of Christmas Island Workers (UCIW) (“The Applicants”) for a PABO. The application defined the group of employees to be balloted as:

“…those who will be covered by the proposed enterprise agreement to replace the Serco Immigration Services Agreement 2015 and are represented by the bargaining representatives who are the applicants for this protected action ballot order.”

[5] The Applicants filed a draft order with their application.

[6] The Respondent to the application Serco Australia Pty Ltd (“Serco”) indicated to the Fair Work Commission (“FWC”) that it wished to be heard on the application. The matter was listed for hearing on 27 April 2018.

[7] Prior to the scheduled hearing, Serco provided to the FWC a copy of a decision and order of Commissioner Williams of 22 January 2018, wherein the Commissioner determined to issue a scope order that:

“..the scope of the proposed Serco Christmas Island Ancillary Services Agreement 2017, identified in the Commission’s decision as the proposed Christmas Island Agreement, include the cleaners employed by Serco Australia Pty Ltd on Christmas Island.”

BACKGROUND

[8] From the submissions of the parties and with reference to the decision of Commissioner Williams [2018] FWC 288, the background to the application is that two different sets of bargaining are occurring concurrently.

[9] One set of bargaining involves Serco having agreed to bargain for a national agreement that would cover employees working within various immigration detention facilities to replace the Serco Immigration Services Agreement 2015 (“2015 National Agreement”). The 2015 National Agreement includes positions such as:

(a) Detention service officer;

(b) Detention support worker;

(c) Detention service manager;

(d) Catering assistant;

(e) Chef and head Chef.

[10] The 2015 National Agreement expressly excludes cleaners on Christmas Island. The Notice of Employee Representational Rights (“NERR”) issued for the proposed new National Agreement extended the scope from the 2015 National Agreement to include coverage of all cleaners nationally including on Christmas Island.

[11] In the other set of bargaining, following the filing of a majority support determination by the UCIW in November 2016, Serco agreed to bargain for a proposed enterprise agreement which would cover a number of classifications of their employees who are employed on Christmas Island including;

● Warehouse employees;

● Gardeners/ground persons;

● Bus drivers;

● Canteen employees;

● Administrative support officers;

● Tradespersons.

[12] Serco issued a NERR on 19 May 2017 for the proposed Christmas Island Agreement. UCIW is a bargaining representative in both sets of bargaining and sought from Serco agreement to exclude the cleaners on Christmas Island from the National Agreement bargaining and to be included in the Christmas Island bargaining. The parties could not reach an agreement on that point and on 7 September 2017 the UCIW filed an application for a scope order that the proposed Christmas Island Agreement include the Christmas Island cleaners. Commissioner Williams issued a decision on 22 January 2018 granting the application.

27 APRIL HEARING

[13] At the initial hearing for the PABO Mr Bull of UV spoke on behalf of the joint Applicants, however Mr Thompson from the UCIW participated in the hearing. Mr Brown of Baker & McKenzie Lawyers was granted permission to appear on behalf of Serco and Mr Graham, National Industrial Relations Manager, Justice and Immigration at Serco also attended. Mr Brown indicated no issue that bargaining was occurring or with the proposed questions. Mr Brown raised a number of issues including the following;

(a) An issue was raised regarding s.437(3)(a). Despite the existence of the scope order issued for the Christmas Island Agreement bargaining, it believed the group of approximately 25 cleaners on Christmas Island also remained within the scope of the National Agreement bargaining as they fell within the NERR issued by the employer and should be included within the scope of the PABO sought by UV and UCIW for the National Agreement. It is unclear to Serco from the application whether the cleaners were in or out of the proposed PABO.

(b) The manner in which the Applicants described the group of employees to be balloted was problematic given a large number of employees who would be covered by the proposed agreement had nominated bargaining representatives other than UV or UCIW.

(c) The fact a ballot agent other than the Australian Electoral Commission was conducting the ballot as proposed by the Applicants, given the sensitive nature of the work it performed and that the FWC needed to be satisfied of the requirements of Fair Work Regulation 3.11.

[14] Mr Brown also advised he understood the UCIW had made a separate application for a PABO for the proposed Christmas Island Agreement including the cleaners. I indicated to the Applicants some evidence should be provided from the proposed Protected Action Ballot Agent. Serco rejected a request from the Applicants for copies of written letters of appointment of bargaining representatives but undertook to provide to the Applicants a list of employees who had appointed bargaining representatives other than UV or UCIW. Some discussion occurred wherein the parties sought to achieve a resolution about whether the cleaners on Christmas Island should be included within the group of employees to be balloted. Mr Brown pressed for their inclusion. I understood his position to be that it would be open for the cleaners to be engaged in two separate sets of bargaining and to exercise rights under both. Mr Bull indicated that view may be correct however Mr Thompson ultimately expressed reservations about that proposition.

[15] In the course of the hearing on 27 April 2018 it was agreed to adjourn into conference. After a time in conference the hearing was resumed. The matter was listed for a further hearing on Wednesday 2 May 2018.

AMENDED APPLICATION

[16] On 1 May 2018 the Applicants filed an amended application, amended draft orders and a statutory declaration made by Mr Richard Kidd the Principal of the Australian Election Company. The amendments to the originating application were to exclude the cleaners on Christmas Island from the group of employees to be balloted, and an amendment to one of the ballot questions. The Applicants also amended the draft order at clause 7 to exclude cleaners on Christmas Island from the list of its employees to be provided by the employer to the Protected Action Ballot Agent, and to amend clause 8 such that rather than providing the Protected Action Ballot Agent with a list of their members employed by the employer, they proposed to amend the words such that it was to provide a list of their members “..who the Union represents..”.

[17] The background to the change the Applicants proposed on this point was as I understand to address their concern arising from there being a large number of independent bargaining representatives with written appointments from about 300 employees, and their concern about those persons being included in the list they provide to the Ballot Agent.

[18] UV expressed a concern in email correspondence to the FWC that supplying a list of their members may not be an accurate way to settle the roll because of the likely event that some of their members may have made written appointments to non-union bargaining representatives, and those persons should not be on the roll for the PABO.

HEARING 2 MAY 2018

[19] The second hearing proceeded on the afternoon of 2 May 2018. The appearances were unchanged, although before the conclusion of the hearing Mr Brown requested that he be permitted to leave the telephone hearing as he was involved in another matter at 3pm with Mr Graham remaining for Serco and I granted this request. Mr Brown indicated that Serco had received the Statutory Declaration completed by Mr Richard Kidd and on the basis of that Statutory Declaration did not press any issue regarding the Australian Election Company being the Ballot Agent.

[20] I granted the application to amend in accordance with s.586 of the Fair Work Act 2009 (the Act).

[21] Mr Brown maintained that the proposed amendment to clause 8 of the draft order did not resolve potential difficulties about compilation of the roll and proposed that the Applicants provide their lists of members to the ballot agent, the employer provides its list of employees (including the cleaners on Christmas Island), and that the employer provides the lists of names of persons that have been appointed as bargaining representatives in order for the Ballot Agent to settle the role.

[22] I indicated to the parties my preliminary view adopted some of what Mr Brown proposed (in that I agreed the process proposed by the Applicants of seeking to determine for themselves who should be excluded from the list provided to the Ballot Agent was problematic).

[23] I indicated a better and more conventional course was for the unions to provide their lists of membership to the Ballot Agent and for Serco to provide its list of employees to the Ballot Agent, however I added a further proposed requirement that Serco would provide to both the FWC and the Ballot Agent copies of any letters of appointment made by employees under s 176(1)(c) and given to Serco in accordance with s 178(2)(a), and any revocation of appointment of a bargaining representative in accordance with s 178A(1) or (2) given to Serco in accordance with s 178A(3).

[24] I proposed this additional element because there were questions being raised about the veracity of appointments (on 30 April 2018 UV filed a separate s.229 Bargaining Order application in connection with Serco not agreeing to provide it with all written letters of appointment of bargaining representatives). Mr Brown indicated this was an acceptable course to Serco on the proviso that the Ballot Agent did not disclose any of this information provided to UV or UCIW. I have concluded that was a reasonable request at this stage and have addressed that issue by including a further amendment to the draft order.

[25] The remaining outstanding matter was the inclusion or exclusion of the cleaners on Christmas Island within the group to be balloted. Mr Brown submitted that the bargaining had proceeded on the basis of the NERR issued by Serco for the National Agreement and the Christmas Island cleaners should be included within the scope of the ballot order. He also indicated that he would like a further opportunity to put on a brief written submission in the next few days on the issue, including by having reference to the record of proceedings in the scope order matter before Commissioner Williams.

[26] I indicated that this element of the matter turned on whether I could be satisfied that the joint Applicants had been and are genuinely trying to reach an agreement, and that the existence of a dispute over scope was not an impediment to a PABO being issued if I could be satisfied on the genuine agreement question.

[27] I indicated to Mr Brown that while I was prepared to consider an additional day or two to file a further submission, the legislation intended for PABO applications to be determined within 2 days, and the matter (of genuinely trying to reach an agreement) could be addressed by evidence at the hearing now. Both Mr Bull and Mr Thompson provided signed statements accompanying the original application providing that both the UV and the UCIW had been genuinely trying to reach an agreement. Mr Bull and Mr Thompson both indicated they were prepared to give evidence in support of this. Mr Brown indicated he did not wish to cross examine either Mr Bull or Mr Thompson and was now prepared to rely on a brief oral submission if they were both prepared to accept neither Union had made an application for a scope order with regard to bargaining for the National Agreement. Both Mr Bull and Mr Thompson accepted that was the case.

[28] Mr Brown proceeded to make a brief oral submission that repeated his earlier contention that the NERR issued for the proposed National Agreement included the Christmas Island cleaners and that was the basis bargaining had been proceeding. Further he submitted in the absence of any other evidence, including no scope order application, the Christmas Island cleaners should be included within the scope of the PABO. Mr Brown indicated Serco was prepared to undertake not to seek to exclude cleaners from Christmas Island participating in a potential future PABO in connection with the Christmas Island Agreement negotiations if UV and UCIW accepted the inclusion of the cleaners on Christmas Island in the National Agreement PABO.

[29] On the basis that Mr Brown indicated he did not wish to cross examine either Mr Bull or Mr Thompson about their assertion that their respective unions were genuinely trying to reach an agreement with Serco for the employees who were proposed to be balloted, I did not require either Mr Bull or Mr Thompson to swear to their evidence and invited them to make any further submission on the issue if they wished.

[30] Mr Bull submitted that UV had been ambivalent about the matter of whether the Christmas Island cleaners were included or not included within the scope of bargaining for the National Agreement given the focus of UV on the National Agreement. He made a reference to a letter of support UV had provided to Serco for the purposes of the scope order matter, however indicated that given the determination of the scope order application by Commissioner Williams, UV was supportive of the UCIW position of the cleaners on Christmas Island being covered by a proposed Christmas Island Agreement.

[31] It is obvious to me from the history of the matter that the UCIW is seeking to bargain in the two separate bargaining processes, on the basis that the cleaners on Christmas Island will be under a Christmas Island agreement and not the proposed national Agreement. Mr Thompson confirmed this to be case in submissions. It is also consistent with UCIW having applied for a separate PABO for the Christmas Island Agreement including the cleaners.

[32] I indicated to the parties in the course of the hearing it is not sufficient that the parties reach some understanding between them about who should be included or excluded from the PABO. The test is whether the FWC is satisfied that each Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[33] I also have difficulty with the proposition that it would be open to the FWC to make an order applying to the UCIW as a joint Applicant, and also to the cleaners on Christmas Island who are members of the UCIW, when those same members of the UCIW have sought and obtained another order of the FWC completely at odds with the order Serco has indicated to the FWC it would consent to being made in this matter. It would seem to me the UCIW would need to succeed in having Commissioner Williams revoke his scope order, as a precondition to the UCIW being able to satisfy the requirements of s.443(1)(b) for the purposes of obtaining a PABO including the cleaners at Christmas Island for the purposes of bargaining for the National Agreement, something it has made completely clear it has no interest in doing.

[34] On the basis of the information before me I am satisfied that the joint Applicants have been, and are genuinely trying to reach an agreement with the employer of the employees who are to be balloted as proposed in the amended application. I am satisfied all other requirements of the Act have been met and on that basis have decided to issue the order. I have made a number of amendments to the draft order to reflect my decision, including the manner in which information is to be provided to the Protected Action Ballot Agent and the additional requirement that copies of letters of appointment of bargaining representatives and revocation of such appointments be provided to both the FWC and the Protected Ballot Agent. The order will be issued separately with this decision.

COMMISSIONER

Appearances:

Mr S Bull of United Voice on behalf of the Applicants

Mr P Brown of Baker & McKenzie on behalf of the Respondent

Hearing details:

2018,

Brisbane:

April 27 and May 2

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