United Workers' Union v Ryans Management Pty. Ltd. T/A Ryans Group

[2020] FWC 3072

[2020] FWC 3072

FAIR WORK COMMISSION

DECISION

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

United Workers' Union
v
Ryans Management Pty. Ltd. T/A Ryans Group
(B2020/139)

COMMISSIONER HUNT BRISBANE, 15 JUNE 2020

Application for a majority support determination – application granted – determination issued.

[1] On 6 March 2020, the United Workers’ Union (the UWU) made an application for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act) with respect to certain employees of Ryans Management Pty. Ltd. T/A Ryans Group (Ryans Group) located at 224 Musgrave Road, Coopers Plains QLD 4108 and 42 Perrin Place, Salisbury QLD 4107 (a combined site). For clarity, the Respondent is referred to as “Ryans Transport” by the UWU.

[2] The UWU seeks a determination that a majority of these employees, being transport drivers want to bargain with Ryans Group for an enterprise agreement.

[3] On 9 March 2020, I issued the following directions:

“The Applicant is required to file in the Commission an unredacted copy of the petition by no later than close of business Wednesday 11 March 2020. This is not to be served on the Respondent and will not be provided to the Respondent.

The Respondent is required to file in the Commission a list of names of all employees that would be covered by the proposed agreement (that is, all non-managerial employees working at the site) by no later than close of business tomorrow 10 March 2020. This is not to be served on the Applicant.

The Commissioner will consider both lists and advise if it appears that there is a majority of employees in favour of commencing bargaining. Further directions will then be issued.”

[4] On 12 March 2020, correspondence was sent from my chambers to the UWU, seeking clarification of a number of names on the unredacted petition. Throughout March, April and May 2020, there was some delay in the matter progressing on account of the UWU being unable to speak with employees who had signed the petition. Further detail relevant to employees’ names was provided by the UWU to my chambers on 27 March 2020.

[5] On account of the delay from when the application was made, and the potential composition of the workforce since that time, on 3 June 2020 the following correspondence was sent from my chambers to the parties:

“Having collated the information from the Applicant and the Respondent, the Commissioner is of the view that certainly, 50% of employees have signed the petition.

There is the potential for this to be 50% plus one additional employee (therefore being a majority of employees) in the event that a person claimed by the Applicant to have signed the petition has not been properly included by the Respondent on the list of employees.

The Respondent is directed to file to chambers only a list of all employees who could be covered by a proposed agreement, including any employees on any form of leave.   The list of employees should be current as of today’s date.  The Commissioner is mindful of the length of time since the petition was signed, the application was made, and the potential for changes in the composition of the Respondent’s workforce during this time.

This list is to be provided by no later than 4:00pm Friday, 5 June 2020.”

[6] On 4 June 2020, Ryans Group provided to my chambers a list of employees. The following correspondence was then sent to the parties:

“Dear parties,

Reference is made to the recent materials filed by both parties respectively to chambers only.  Chambers confirms that the Commissioner has reviewed the materials received by both parties. 

The Commissioner has consolidated the list of employees received by the employer, and the list of employees who have signed the petition from the UWU.  The Commissioner advises that there appears to be 16 directly employed employees, excluding labour hire employees.  The Commissioner has identified 9 names on the petition which match the names of directly employed employees supplied by the employer.

The Commissioner’s preliminary view is that a majority has been reached and therefore the majority support determination application can succeed, and be made by the Commission.

If the employer requires a hearing for the Commission to formally decide the matter, the matter will be listed for hearing at 11:00am Thursday, 11 June 2020.

The employer is to advise whether a hearing is required, by no later than 10:00am Tuesday, 9 June 2020.”

[7] Communication was received from Ryans Group that it wished for a hearing to be convened. On 11 June 2020, Mr Isaac Avery, Industrial Officer – Allied Industries, appeared for the UWU. Ryans Group was represented by Mr Brett Sheldon-Collins, Group HR, Compliance & Risk Manager, Mr David Howell, General Manager, and Mr Paul Van Den Akker, Brisbane Manager.
Relevant Legislation

[8] The relevant provisions of the Act are contained in ss.236 and 237 of the Act:

“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.”

Consideration

[9] The petition provided by the UWU contained the following preamble:

“We, the below signed employees of Ryan’s Transport, want to bargain with the Company for an Enterprise Agreement covering drivers operating from 224 Musgrave Road, Cooper Plans QLD 4108 and 42 Perrin Place, Salisbury QLD 4107”

[10] The list of 16 employee names provided to the Commission by Ryans Group contains a match of nine employees who have signed the above petition.

[11] The application form stated the following relevant to the interest or otherwise of Ryans Group in bargaining for an agreement:

“The company was sent a formal request to bargain and indicating the Union had a majority of the employees who indicated they wanted to bargain for an enterprise agreement. The respondent did not respond to this email. The Union telephoned the respondent’s contact person on 6 March 2020 and they confirmed they had received the email and did not wish to bargain.”

[12] During the hearing it was stated by Mr Sheldon-Collins and Mr Howell that Ryans Group did not want to bargain with employees, as they considered that over-award payments and conditions are made to employees. Ryans Group would prefer to deal directly with employees, and they had not had contact with Mr Avery. Mr Avery explained that the premises are owned by a company called Vinidex, and Mr Avery regularly visits members and eligible members at the Vinidex premises where the employees of Ryans Group work. A lunchroom is shared, and he has spent time speaking with Ryans Group employees during the employees’ meal break.

[13] Mr Howell explained that Ryans Group also employs drivers who work from depots in Victoria and South Australia. The Queensland drivers the subject of this application distribute Vinidex products from the Vinidex premises. The employees at the other depots in the other states perform a variety of work, and not all of them perform work the like that is performed at the Queensland depot. Ryans Transport did not contest that the group of employees at this site is geographically, operationally or organisationally distinct.

[14] Ryans Group employees two managerial employees at the Queensland depot who would not be covered by the proposed agreement.

[15] I note that the proposed agreement will not cover all of the employees of Ryans Transport Australia-wide. On the material before me, and taking into account the specific work the employees at the Queensland depot perform for one client, Vinidex, and secondly, the two managerial employees at the same worksite, I find that the group of employees who would be covered by the proposed agreement have been fairly chosen when regard is had for the group being geographically and operationally distinct from other employees.

[16] On the material before me, I am satisfied that:

(a) the UWU is a bargaining representative for employees who will be covered by the proposed agreement and is capable of making the application for a majority support determination (s.236);

(b) a majority of the employees of Ryans Group who will be covered by the proposed agreement want to bargain (s.237(2)(a));

(c) Ryans Transport has not yet agreed to bargain for the proposed agreement (s.237(2)(b));

(d) the group of employees who will be covered by the proposed agreement was fairly chosen (s.237(2)(c)); and

(e) it is reasonable in all the circumstances to make the determination (s.237(2)(d)).

[17] In conclusion, I am satisfied that all requirements of ss.236 and 237 of the Act have been met. Accordingly, the Commission must make the majority support determination sought by the UWU. A Determination will issue with this decision.

COMMISSIONER

Appearances:

Avery I, for the Applicant.
Sheldon-Collins B, for the Respondent.

Hearing details:

11 June 2020, Brisbane (by Telephone).

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