[2011] FWA 4331

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FAIR WORK AUSTRALIA

DECISION

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

The Broken Hill Town Employees' Union
(B2011/109)

COMMISSIONER RAFFAELLI

SYDNEY, 11 JULY 2011

Majority support determination.

[1] The Broken Hill Town Employees’ Union (the Union) has made application to Fair Work Australia (FWA) for a majority support determination pursuant to section 236 of the Fair Work Act 2009 (the Act). It seeks a determination that a majority of the employees who will be covered by an enterprise agreement to be made with Medirest (Australia) Pty Ltd (Medirest) wish to bargain with Medirest.

[2] Sections 236 and 237 of the Act set out the requirements for the making of a majority support determination. They read:

“236 Majority support determinations:

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA 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 FWA must make a majority support determination

Majority support determination

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

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

(2) FWA must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by FWA; 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), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.

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

[3] It is clear from the material provided by the Union on 22 June 2011 that 32 employees of Medirest have nominated the Union to be their bargaining representative.

[4] It is also not disputed by Medirest that the 32 persons who have signed the nomination of the Union as the bargaining representative are employees of Medirest.

[5] Ms Joanne Purcell and Ms Tara Bird describe themselves as authorised delegates of the Union. They are among the 32 employees who have nominated the Union as their bargaining agents.

[6] In terms of section 236(1) and on the basis of their description as authorised delegates, I am satisfied find that the Union is the bargaining representative of at least these two employees who are its members and who seek to be covered by a proposed agreement.

[7] As to section 236(2), the Union’s application has specified that Compass Group (Australia) Pty Ltd (Compass), the parent company of Medirest, is to be covered by the proposed agreement and that the employees of Compass that are to be covered by the agreement are those employees of Compass’s Medirest division employed in Broken Hill, New South Wales, providing catering and related services at the aged care facilities at Southern Cross Care (Broken Hill) Limited sites.

[8] Turning to section 237. It is clear that FWA must make a majority support determination if, firstly, an application has been made. It has so been made, thus complying with section 237(1)(a).

[9] Section 237(1)(b) requires that the matters provided in section 237(2) need to be satisfied.

[10] In that regard, section 237(2)(a) requires FWA to be satisfied that a majority of the employees who will be covered by the agreement, want to bargain.

[11] Compass raises a number of concerns about the requirements of section 237(2)(a).

[12] Firstly, it put that the words “at a time” (section 237(2)(a)(i)) necessitates the views of employees being ascertained at a single point in time. It can not be collected over a period of time. In this case, Compass put that it seems that some employees expressed their views (by signature) on or about 4 May 2011 and others on or about 19 May 2011 and 20 May 2011. FWA cannot be satisfied that “at a time” a majority of employees wished to bargain.

[13] I am not sure that the material from the Union necessarily suggests that employees signed on different days and not all on 4 May 2011.

[14] In any case, I am not prepared to restrict “at a time” to a particular day or time of day. Many industries and workplaces do not allow for employees to be present at any one time of day or on a day. I am satisfied that over a period of time extending from 4 to 20 May 2011 employees expressed their view. I also note that there is no evidence that anyone of the employees changed their mind.

[15] Secondly, Compass put that the words found in section 237(3) provides that for the purposes of section 237(2)(a) and the method of ascertainment of whether a majority want to bargain, the words “using any method FWA considers appropriate” contemplates a future event. It requires FWA to formulate the method to be used and this is to be then applied prospectively.

[16] I disagree. The method FWA considers appropriate can include a method used in the past and which satisfies FWA that it is an appropriate method for working out whether a majority of employees want to bargain.

[17] Thirdly, it was put that there was no information as to the circumstances which applied when employees signed the document. A method used to ascertain majority support could not be one where the views or consent of employees is not informed.

[18] The written submissions of Mr Blyth, who represented Compass included that:

18.1 There was no information as to what employees were told at the time they signed the document.

18.2 There was no evidence that employees were informed of the possible consequences of their request to bargain.

18.3 The statement of Ms Zoe Tonkin, a manager of Medirest, includes that employees were not efficiently informed about the matters in the employee letter or its purpose or implications.

18.4 The employee letter seeking bargaining (to which the 32 signatures were attached) includes words that the “proposed Enterprise Agreement will replace the existing Southern Cross Care (Broken Hill) Ltd Non-Nursing Enterprise Agreement 2009, under which we are currently employed . . ..” It is clear that nine employees of Medirest are not employed under the Southern Cross Care (Broken Hill) Ltd Non-Nursing Enterprise Agreement (the SCCBH Agreement). Five of these nine signed the letter. Those employees signed the letter on a false premise.

18.5 The employee letter also nominates the Union as the bargaining representative. However, there is no evidence that all 32 signatories are members of the Union. Section 176 of the Act provides that a union can be a bargaining agent only of persons who are its members. If some of the 32 signatories are not members of the Union, the Union cannot be their bargaining representative. This implies that they have signed the letter on a false premise.

18.6 There is no evidence that the 32 employees were informed that the letter (and their signature) would be used in seeking a majority support determination. There is no basis that signatories of the letter have given authority to the Union to seek the determination.

[19] All those shortcomings mean that the method used by the Union is not an appropriate method to work out majority support.

[20] Compass says it is clear that many of the employees who signed the letter did not understand what they were signing. It is therefore unsafe for FWA to find that all of the employees who signed the employee letter want to bargain.

[21] The employee letter of 4 May 2011 provides:

“We, the undersigned, hereby request that Medirest (Australia) Pty Ltd commence negotiation for an Enterprise Agreement for employees at Broken Hill.”

[22] I need to determine whether a majority of relevant employees want to bargain. It is not relevant what employees think about what instrument currently applies to them or whether or not the Union is their representative.

[23] The employee letter makes it clear that they want to bargain.

[24] There is no evidence that employees were forced into signing.

[25] What the employees were informed about, including the consequences of their request to bargain, is not relevant to the application in the circumstances at hand.

[26] Ms Tonkin witnessed some incidents. Her statement does not purport to suggest that nothing else happened as to communication or discussion among employees or union delegates.

[27] The Union’s pursuit of a majority support determination does not need to be authorised by employees, or even that they need to be made aware of such application.

[28] I find that the method used by way of a letter which states that the undersigned wish to bargain and it is then signed by relevant employees is an appropriate method for ascertaining views.

[29] As to whether a majority of employees support bargaining, Compass via the statement of its manager Mr Alan Boyd says that it had 39 employees performing work at Southern Cross Care Broken Hill. The employee letter is signed by 32 persons. It was not Compass’s position that any of those were not its employees at Broken Hill locations.

[30] I find that a majority (32) out of 39 employees of Medirest employed at the Southern Cross Care facilities in Broken Hill want to bargain with Medirest.

[31] It is not disputed that Compass has not yet agreed to bargain (section 237(2)(b)).

[32] As to whether the group of employees who will be covered by an agreement have been fairly chosen (section 237(2)(c)), not all of Medirest’s employees are to be covered by the Agreement. It seems that section 237(3A) then has application.

[33] Compass relied on that part of the letter which described the proposed agreement as replacing the SCCBH Agreement. It put that employees under that agreement can not be geographically, operationally or organisationally distinct.

[34] That is true. But the employee letter seeks an enterprise agreement for employees at Broken Hill (see [21] above). It then sets out the signatories of persons which are not all currently covered by the SCCBH Agreement. But the signatories are all employees of Medirest in Broken Hill and they are all engaged in catering and ancillary services.

[35] I find that the employees are geographically and operationally distinct being catering and ancillary services employees engaged by Medirest in Broken Hill at Southern Cross Care Broken Hill aged care facilities.

[36] I observe in passing that it was not the case that such catering and ancillary staff of Compass, employed by it to service its contract with Southern Cross Care Broken Hill at its aged care facilities, are not geographically and operationally distinct from its other employees elsewhere in Australia who work under a range of other contracts with third parties.

[37] I find that the group of employees who will be covered by the agreement were fairly chosen.

[38] As to whether it is reasonable in all of the circumstances to make a majority support determination (section 237(2)), Mr Blyth referred to the good faith bargaining obligations that would then fall on Medirest.

[39] At this stage, Medirest or the Compass Group is not ready to bargain. A determination will serve no useful purpose.

[40] Compass’s complaint seems to be based on what the Act provides and the consequences for it.

[41] I need to balance this against the desire of the Union and the majority of employees for an enterprise agreement.

[42] On balance, I find that it is reasonable in all the circumstances to make the determination.

[43] Given my findings, I must make a majority support determination.

[44] It is issued separately.

COMMISSIONER

Appearances:

G. Blyth for Compass Group (Australia) Pty Ltd

R. Ferry for The Broken Hill Town Employees’ Union

Hearing details:

2011

Telephone Hearing:

June 21.

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