United Workers' Union v MSS Security Services T/A MSS Security Pty Ltd
[2022] FWC 2782
•17 OCTOBER 2022
| [2022] FWC 2782 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236—Majority support determination
United Workers’ Union
v
MSS Security Services T/A MSS Security Pty Ltd
(B2022/1333)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 17 OCTOBER 2022 |
Application for a majority support determination – determination made.
On 5 September 2022, the United Workers’ Union (UWU) made an application pursuant to s.236 of the Fair Work Act 2009 (Cth) (the Act) for a majority support determination.
The UWU seeks a determination that a majority of MSS Security Services T/A MSS Security Pty Ltd (MSS Security) employees who are covered by the Security Services Industry Award 2020 (Security Services Award) and are performing work under contracts to supply security services to aviation sites in Tasmania, want to bargain with their employer. In its application, the UWU outlined that the employees spoke to Mr Ashely Wilton, Organiser, and indicated a wish to bargain for an enterprise agreement. Further, it outlined that Mr Wilton and Mr Bishwoksen Adhikari, Organiser, then obtained petition signatures of employees, a majority of whom signed the petition indicating support for the UWU to be their bargaining representative and bargain for an enterprise agreement. The UWU attached an unredacted copy of the petition conducted to the originating application.
On 11 August 2022, Mr Wilton had sent an email to Ms Edwards, HR/IR Manager of MSS Security, attaching a formal request to begin bargaining with its members performing work under contracts to supply security services to aviation sites in Tasmania. On 16 August 2022, Ms Bhoomika Bharti, HR/IR Manager of MSS Security, replied to Mr Wilson with an email that stated:
“Hi Ashley,
We acknowledge your Request to Commence Bargaining for Tasmanian Aviation sites.
We refer to our agreed terms as outlined in our letter dated 17 November 2021, where it states that once the contract is officially signed, MSS will undertake the exercise to establish majority support across the relevant sites by engaging in an independent online ballot within 5 weeks of the contract execution.
At this stage, the contract is going through the due diligence process and remains unsigned.
MSS proposes to keep you and our employees updated of the progress and next steps thereafter.”
On 6 September 2022, my Associate sent an email to MSS Security in which MSS Security was asked to provide a list of employees who are covered by the Security Services Award and are performing work under contracts to supply security services to aviation sites in Tasmania and advice as to whether or not it agreed to bargain for the Agreement sought by the UWU.
On 13 September 2022, my Chambers received a reply email from MSS Security providing a list of the employees covered by the Security Services Award who are performing work under contracts to supply security services to aviation sites in Tasmania. The email also referred to the letter to Mr Wilton dated 17 November 2021 signed by Ms Edwards. MSS Security relied on the 17 November 2021 letter in submitting that it had reached an agreement with the UWU to undertake an independent ballot within 5 weeks of the client contract document being executed. The 17 November 2021 letter provided as follows:
“…1. Independent evidence demonstrating a majority support of all employees.
Having considered the options contained within your letter, I can confirm our requirement for demonstrating majority support of all employees is for:
a) An independent online ballot;
b) The online ballot to be established and issued by MSS Security;
c) All staff assigned to Hobart International Airport and/or Devonport Airport at the time of voting invited to participate in the ballot by MSS Security.
2. Proposed timeframe
With regards to the timeframes outlined in your letter, our primary concern relates to the timeframes being based on the tender outcome announcement from Hobart International Airport. The announcement from Hobart International Airport of the preferred provider is not legally binding and therefore subject to change. As such, we proposed the following based on the assumption the MSS Security is the preferred tenderer:
a) MSS Security notify the UWU when the new contract with Hobart International Airport has been signed;
b) Within 7 days of signing the new contract with Hobart International Airport, a timeline is agreed for a voting process to determine whether there is majority support;
c) Within 5 weeks of MSS Security signing the contract the voting process commences;
d) If the majority of employees indicate they wish to commence bargaining, the NERR will be issued within 14 days of the voting ending.”
In its 13 September 2022 email to my Chambers, MSS Security also advised that the contract had not yet been signed because there were are some due diligence matters in process but it indicated that it anticipated to having the contract executed by 16 September 2022.
On 19 September 2022 at 4.02pm, my Associate sent an email to MSS Security seeking an update on whether the contract had been signed. At 5.17pm, Ms Bharti sent an email to my Chambers in reply advising the contract was still under due diligence.
On 26 September 2022 at 12.28pm, Ms Bharti from MSS Security sent correspondence to my Chambers confirming the contract had been executed. At 2.23pm, an email was sent to the UWU from my Chambers enquiring as to whether the UWU wished to proceed with the application.
My Chambers received an email from Mr James Katarzynski, Industrial Officer – Strategic Power, on 27 September 2022 in which he confirmed the UWU intended to press its application. The UWU submitted that the employee petition evidence is sufficient to show that a majority of employees to be covered by the proposed agreement wish to bargain and the other requirements in s.237 of the Act are met. The UWU argued that the requirement for a ballot to be held within 5 weeks had been rendered unnecessary.
On 28 September 2022, I invited the parties to file any further and final material for my consideration by no later than 4.00pm on 5 October 2022.
Legislation
The Act relevantly provides as follows:
“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.
237 When the FWC must make a majority support determination
Majority support determination
(1) The 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) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which the FWC must be satisfied before making a majority support determination
(2) The 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 the 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), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the 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.”
Section 236 of the Act
I am satisfied that the UWU is a bargaining representative for the employees who will be covered by the proposed single-enterprise agreement and is, therefore, capable of making this application for a majority support determination. I am also satisfied that the employer, MSS Security, and the employees that will be covered by the proposed single-enterprise agreement, have been specified.
Section 237(2)(a) of the Act
I am satisfied that a majority of employees employed by MSS Security and who will be covered by the proposed single-enterprise agreement want to bargain. The list of employees provided by MSS Security suggests that 52 employees are covered by the Security Services Award and perform work at the Hobart International Airport aviation site, while 11 employees perform work at the Devonport Airport site. The unredacted copies of the petitions provided by the UWU suggest that 36 of the 63 employees want to bargain. In addition, the UWU outlined in its submission dated 29 September 2022 that it had obtained two further signatures in support of bargaining and provided a copy of an unredacted petition with the two additional signatures.[1]
On these figures, it would appear that 38 of the 63 relevant employees, or 60.3%, want to bargain.
However, the UWU also submits that four employees on the list of the Hobart International Airport site should not be counted in the determination of majority support based on:
· Two employees not working in August or September 2022 as a result of being on long term leave without pay;
· One employee being a casual who did not work in August or September 2022; and
· One employee apparently having returned to their home country in September 2022.
Accordingly, the UWU submits that 38 of 59 (or 64.4%) of the relevant employees wish to bargain.
Ultimately, whether or not the four employees are included is of no moment because my review of the information provided in relation to the petitions and the form of the petitions themselves satisfies me that the requirement in s.237(2)(a) of the Act has been met either way.
Section 237(2)(b) of the Act
The material before me satisfies me that at the time of writing, MSS Security has not yet agreed to bargain.
Section 237(2)(c) of the Act
In Cimeco Pty Ltd v CFMEU & Ors (Cimeco),[2] the concept of “fairly chosen” was discussed by the Full Bench in the context of s.186(3) of the Act, as follows:
“[19] Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen.
[20] It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations.
[21] It is not appropriate to seek to exhaustively identify what might be the other relevant considerations. They will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal. The word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. It is also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant…”[3]
More recently, the reasoning in Cimeco was adopted by the Full Bench of the Commission in QGC Pty Ltd v The Australian Workers’ Union(QGC)[4] in the context of s.237(2)(c) of the Act:
“[42] For the Commission to reach a state of satisfaction necessary to make a majority support determination, it must be satisfied that the group was fairly chosen and in considering whether the group was fairly chosen, it must take into account, by virtue of s. 237(3A), whether the group is geographically, operationally or organisationally distinct. Distinctiveness is not absolute and can be a matter of degree. Distinctiveness on one of those bases is a factor telling in favour of a finding that the group is fairly chosen. Conversely if the group of employees is not geographically, operationally or organisationally distinct, then that is a factor telling against a finding that the group is fairly chosen. Whether or not a group is organisationally, operationally or geographically distinct is not decisive but rather is a matter to be given due weight having regard to all of the other circumstances.”[5]
Therefore, having regard to these authorities, whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations. Further, the consideration of whether the relevant employees were fairly chosen, taking into account whether they are geographically, operationally or organisationally distinct, is to be undertaken bearing in mind that the concept of distinctness in s.237(3A) of the Act is not absolute, but rather may be a matter of degree.
In its application, the UWU asserts that the group of employees are geographically distinct in the sense that the proposed agreement exclusively covers those employees that are engaged to perform work in aviation sites in Tasmania, namely Hobart International Airport and Devonport Airport. MSS Security does not dispute this, and I am satisfied that the Hobart International Airport and Devonport Airport aviation sites are geographically distinct.
I am satisfied that the group of employees are operationally distinct in the sense they work exclusively on aviation sites and are distinct from those employees who carry out work under non-aviation contracts. Further, I am satisfied the relevant employees are organisationally distinct from those employees who do not perform security work.
It follows that MSS Security’s employees who perform work under contracts to supply security services to aviation sites in Tasmania are geographically, operationally and organisationally distinct from other workers employed by MSS Security. Having regard to this and all of the other circumstances, I am satisfied that the group of employees has been fairly chosen.
Section 237(2)(d) of the Act
While MSS Security has suggested that a ballot can now be conducted, the UWU, as bargaining representative, remains entitled to make and press the application and I am satisfied that the statutory requirements outlined in ss 237(2)(a)-(c) of the Act have been met. I am satisfied that it is reasonable in all the circumstances to make the determination on the basis of the material before me.
Conclusion
As all of the requirements of s.237(2) of the Act have been met, I am obliged, pursuant to s.237(1) of the Act, to make the determination. A determination will issue with this decision and will operate from the date of this decision.[6]
DEPUTY PRESIDENT
[1] Applicant’s Short Supporting Submissions dated 29 September 2022, Annexure A.
[2] [2012] FWAFB 2206.
[3] Ibid at [19]-[21].
[4] [2017] FWCFB 1165.
[5] Ibid at [42].
[6] Section 237(4) of the Fair Work Act 2009.
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