[2019] FWC 2571
The attached document replaces the document previously issued with the above code on
16 April 2019.
Paragraph [61] has been amended to include footnote 27.
Marcus Topp
Associate to Deputy President Colman
Dated 17 April 2019
1
Fair Work Act 2009
s.236—Majority support determination
National Union of Workers
v
Lovisa Pty Limited
(B2018/698)
DEPUTY PRESIDENT COLMAN MELBOURNE, 16 APRIL 2019
Application for a majority support determination – whether majority wishes to bargain – time
determined by the Commission – which casuals are employed at this time – method of
establishing majority
[1] This decision concerns an application by the National Union of Workers (NUW) under
s 236 of the Fair Work Act 2009 (Act) for a majority support determination. The NUW
contends that a majority of employees who would be covered by a proposed agreement want
to bargain with their employer, Lovisa Pty Ltd (Lovisa). The employment of the employees in
question is covered by the Storage Services and Wholesale Award 2010 (Award). The
proposed agreement would apply to employees who perform picking, packing, receipt and
dispatch work covered by the Award at the Lovisa distribution centre at Alfred Street in
Blackburn, Victoria. The company disputes that a majority of employees want to bargain and
opposes the application.
[2] This matter has a lengthier history than many other applications for majority support
determinations. The application was filed on 9 August 2018, accompanied by redacted
petitions of employees on which the union sought to rely. On 4 September 2018, I conducted
a telephone mention and issued directions that the parties file materials in support of their
positions. As is common in matters of this kind, I directed the NUW to file in the Commission
un-redacted copies of its petitions, and directed the company to file a list of employees who
performed work that would be covered by the proposed agreement, indicating job titles, and
to serve on the union a redacted copy of this list. The matter was listed for hearing on 18
October 2018.
[3] The un-redacted petitions filed in the Commission comprised five pro forma sheets,
headed ‘Petition in support of bargaining for an enterprise agreement’ followed by a statement
that ‘the undersigned employees … want to bargain with the company for an enterprise
agreement’. Forty-seven handwritten names, signatures and dates appeared on the five sheets.
[4] The list of employees submitted by the company on 11 September 2018 set out
employees grouped by reference to permanent or casual employment status. The job title of
all of the employees was ‘warehouse picker packer’. There were 119 employees on the list.
[2019] FWC 2571
DECISION
E AUSTRALIA FairWork Commission
[2019] FWC 2571
2
[5] On 25 September 2018, the NUW filed in the Commission a further un-redacted
petition, on which appeared a further 14 names, signatures and dates. A redacted copy was
provided to the company. Submissions filed by the union on the same date stated that a total
of 61 employees had signed a petition, and that a further four employees had indicated their
support for bargaining through text messages sent to the union’s organiser. The NUW’s
submission stated that 65 employees had now expressed their support for bargaining, that the
other requirements for the making of a determination were satisfied, and that the Commission
should make the determination.
[6] The company’s submissions, filed on 9 October 2018, contended that the Commission
could not be satisfied that a majority of employees wished to bargain. The company submitted
that employees had been encouraged to sign the petitions and that it had not had an
opportunity to ‘check with those employees’ whether they did in fact wish to bargain.1 It
contended that the use of petitions to ascertain whether there was majority support for
bargaining was not appropriate in the present case. The company said that it should be
provided with the un-redacted petitions, or alternatively that a ballot should be conducted to
facilitate a neutral request to gauge employee support for bargaining.
[7] Shortly after the commencement of the hearing on 18 October 2018, the parties
adjourned into conference, following which they decided to discuss a possible agreed
mechanism to gauge employee support for bargaining. On 7 November 2018 the union
advised the Commission that the parties had agreed on a course of action, which they sought
to have reflected in consent orders. In accordance with the arrangement agreed by the parties,
I issued orders for a service provider, CIVS, to be provided with the mobile phone numbers of
all employees who would be covered by the proposed agreement. CIVS would send
employees a statement agreed by the parties concerning majority support determinations, and
an agreed question asking whether employees wished to bargain with the company for an
agreement. The ballot would remain open until 5.00pm on 22 November 2018.
[8] On the afternoon of 22 November 2018, the company’s solicitors wrote to my
chambers, stating that it believed an email message sent by the union to employees contained
misrepresentations, and requesting to be heard in the event the ballot showed a majority
support for bargaining. Shortly afterwards, the union wrote to my chambers, denying that it
had made misrepresentations to employees, and raising its own complaints about the
company’s representations to employees, and seeking to be heard.
[9] Later that day, CIVS declared the results of the ballot, which were that of the 140
employees to whom text ballots were sent, 62 responded, 56 voted ‘yes’ and 6 voted ‘no’. The
company then asked the Commission to dismiss the union’s application. However on 23
November 2018 the union wrote to the Commission, raising concerns about the ballot. The
union said that it believed some of the persons balloted were not employees within the
meaning the Act, that some employees were not balloted but ought to have been, and that
misrepresentations had been made by the company that affected the vote. The union sought
for its application to be relisted.
1 Respondent’s outline of submission, 9 October 2018, paragraph 20
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[10] Following a telephone mention on 30 November 2018, further directions were issued
for the filing of materials, including a direction that the company file a revised list of
employees engaged in warehouse duties, indicating their most recent day of work, as well as
their employment status. The hearing of the application took place before me 5 March 2019.
Submissions of the parties
[11] The NUW contends that the result of the CIVS text ballot is unreliable, and that the
Commission should be satisfied on the totality of the evidence adduced, including in
particular the petitions filed, that a majority of employees wish to bargain for an agreement.
[12] The union said that there was evidence that incorrect telephone numbers had been
supplied by the company to CIVS, that some employees did not receive text messages at all,
and that some of the persons balloted no longer work at Lovisa. The union also said that the
ballot process was not well understood by employees. It contended that employees who had
‘abstained’ from voting should not be regarded as not supporting bargaining.
[13] The union submitted that the Commission could and should rely on all of the evidence
collated since July 2018, when the first petitions were signed, up until the date of the hearing
in March 2019, to ground a satisfaction that a majority of employees wish to bargain. It said
that the various petitions, together with individual text messages of support for bargaining
from employees, shows that 81 employees, a majority, had indicated that they wish to
bargain. It relied on the following:
the first petitions collated between 23 July and 3 August 2018;
a second set of petitions collected from 6 September to 17 December 2018;
a third set of petitions gathered in February 2019;
texts from employees in July 2018, December 2018, January and February
2019;
an email from an employee in November 2018.2
[14] The union also submitted that many of the casual employees it suspected were on the
employer’s list had not actually worked for some time, and that any casuals who had not
worked recently should be excluded from the list.
[15] The company’s position was that the Commission should confine its examination of
whether there is majority support for bargaining to the result of the CIVS text ballot, the
process that had been agreed by the parties, which showed that a majority of employees did
not want to bargain. It said that the parties had undertaken to accept the outcome of the ballot,
and that if this had shown majority support for bargaining, the company would not have
opposed the making of a determination. The company said that the Commission should give
effect to the parties’ agreement, and that it would be unconscionable for the union to resile
from it.
2 Submission of NUW setting out its consolidated petitions and texts from employees expressing a wish to bargain, 8 March
2019, respectively at paragraphs 4-6; 8 and 10; 15; 7, 13 and 17; and 11
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[16] The company denied that the CIVS ballot was affected by any of the irregularities
raised by the union. It said that the parties corresponded about the contact details of a number
of employees prior to the ballot and certain problems were identified and rectified.3 The
company had accepted a union concern that three employees’ mobile phone numbers had not
been provided to the ballot agent, and that it would therefore consider the total number of
employees who voted to be 137, rather than 140.4 As to ‘abstentions’, the company said that
failure to vote showed an employee’s lack of interest in bargaining. It also said that there was
no basis for the Commission to exclude any casual employees from its list.
[17] The company contended that the petition documents were not reliable, and that this
was the reason for the parties agreeing to a service provider conducting a text vote in the first
place. It said that it has not seen the un-redacted petition material or had an opportunity to test
this evidence and speak to petitioners about their attitude to bargaining. The company
contends that it would be denied procedural fairness if the Commission were to rely on the
petitions without granting the company access to the un-redacted material.
Statutory framework
[18] Section 237 of the Act provides that the Commission must make a majority support
determination in relation to a proposed single enterprise agreement if an application has been
made under s 236, and the Commission is satisfied of the matters in s 237(2). That section
provides that the Commission 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.”
[19] In relation to s 237(2)(a), the Commission may work out whether a majority of
employees wants to bargain using any method it considers appropriate (s 237(3)).
[20] If the proposed agreement will not cover all of the employees of the employer or
employers covered by the agreement, the Commission must, in deciding whether the group of
employees who will be covered was fairly chosen, take into account whether the group is
‘geographically, operationally or organisationally distinct’ (s 237(3A)). No objection is made
3 Respondent’s final written submissions, paragraphs 15 -17
4 Ibid at 19
[2019] FWC 2571
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by the company in relation to this matter, or in respect of the reasonableness of making a
determination in all the circumstances. However before issuing a determination I would need
to be satisfied of these matters.
Consideration
[21] The NUW’s application for a majority support determination meets the requirements
of s 236. It is an application by a bargaining representative of employees who will be covered
by a proposed single enterprise agreement. There was no dispute that the union represents
members at the site, and that its registered rules entitle it to represent the industrial interests of
employees of the kind who would be covered by the proposed agreement. The first pre-
condition for the issuing of a majority support determination is therefore met.
[22] There was also no dispute that the Company has not yet agreed to bargain, or initiated
bargaining, and that the requirement in s 237(2)(b) has therefore been met.
[23] I also consider that the group of employees who will be covered by the proposed
agreement was fairly chosen. In this connection, I have taken into account that the group is in
my view operationally distinct, as it comprises employees performing particular warehouse
functions that are covered by the Award.
[24] In contest in these proceedings is the question of whether I should be satisfied that a
majority of employees who are employed by the employer at a time determined by the
Commission, and who will be covered by the proposed agreement, want to bargain. Several
dimensions are disputed: who is an employee for the purpose of s 237 of the Act, with
particular reference to the position of casuals; what time I should determine for the purpose of
237(2)(a)(i); what method the Commission should use to work out whether a majority of
employees wish to bargain; and whether in fact a majority of relevant employees want to
bargain.
A time determined by the Commission
[25] Section 237(2)(a) states that the Commission must be satisfied that ‘a majority of the
employees who are employed by the employer or employers at a time determined by the FWC
and who will be covered by the agreement want to bargain.’
[26] The union contended that the Commission should determine the date of its application
as the relevant date for the purposes of s 237(2)(a)(i), and that only employees immediately or
usually employed by Lovisa at that time should be included on the list.
[27] The union referred to the decision of the Full Bench of the Commission in Kantfield
Pty Ltd v AWU 5 which concluded that the Commission’s discretion to determine a particular
time concerns only the date on which employees of the employer are employed, and that, in
considering whether a majority of those employees wishes to bargain, the most up-to-date
information available must be used. As I discuss below, Kantfield does stand for this
proposition. However it is not clear to me how this decision supports the union’s contention
that I should determine the date of its application to be the date of the ‘employee list’ for the
purposes of s 237(2)(a)(i).
5 [2016] FWCFB 8372
[2019] FWC 2571
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[28] The union’s preference for the determination of an early date may be associated with
the fact that there was evidence in the proceeding that the company seasonally hired new
employees in the lead up to Christmas, potentially expanding the pool of in-scope employees
and thus the ‘denominator’ in any calculation of whether a majority of employees wished to
bargain.
[29] The company contended that the Commission should determine a date for the
‘employee list’ that takes into account that the company’s workforce has expanded since the
filing of the union’s application in August 2018. It contended that the Commission should
determine a time that aligns with the most up-to-date information available as to the number
of employees who would be covered by the proposed agreement, which it says is 137 (the 140
on the employer list, minus the three employees whose ballot texts were return
‘undeliverable’). Using the date of the union’s application for the fixing of the ‘employee list’
would, it said, ‘disenfranchise’ employees who have been hired since August 2018.
[30] In Kantfield the Full Bench said the following:
“[35] The power to apply a time-based limitation is confined to section 237(2)(a)(i) and
not section 237(2)(a) more broadly. That is, the power to apply a point-in-time
limitation in section 237(2)(a)(i) is directed to fixing the time at which the FWC is to
determine who are the persons employed only. Therefore, it does not confer a broader
power to “fix” historical or future points in time for other aspects of section 237.
[36] In Peko-Wallsend, Mason J stated:
“… there may be found in the subject matter, scope and purpose of nearly
every statute conferring power to make an administrative decision an
implication that the decision is to be made on the basis of the most current
material available to the decision-maker.”
[37] Applying Peko-Wallsend, it follows that the decision as to whether a majority of
employees want to bargain is to be made on the basis of the most current material
available at the time of the decision. Having considered all of the submissions and
authorities filed by the parties, we agree that it was not open to the Commissioner to
determine a point in time other than the time of the decision as the time at which a
majority of employees could be said to want to bargain. As such, we are not satisfied
that it was open to the Commissioner to reach the determination that he reached.”
[31] The point made here is that the Commission’s power to determine a time is confined
to the question of who are the persons employed by the employer at a particular time: that is,
to fix by reference to time the cohort of employees from which the question of majority is to
be determined. The Commission has a discretion to determine this date; but according to the
Full Bench, it does not have a discretion to determine the date on which a majority wishes to
bargain. Rather, it must assess this question as at the date of the decision, using the most
recently available information. Thus the Commission might exercise its discretion to
determine 1 January to be the time at which the cohort of employees is to be fixed, and on 1
February (the date of its decision) determine whether a majority of the persons employed at 1
January wishes to bargain. Evidence about employees’ wishes, such as petitions, produced
throughout January and up until 1 February could be taken into account in determining
[2019] FWC 2571
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whether a majority existed. The question for the Commission would be whether, as at 1
February, a majority of the employees who were employed as at 1 January wished to bargain.
[32] I note that this conclusion is concordant with the peculiar structure of s 237(2)(a),
which breaks down the components of a single sentence and employs Roman numerals in
such a way as to emphasise that the temporally-determinative role of the Commission is
confined to only one of those components: employees ‘who are employed by the employer or
employers at a time determined by the FWC’. It is also consistent with the Explanatory
Memorandum, which states that the Commission must be satisfied that ‘a majority of the
employees (employed at a time determined by FWA) who will be covered by the proposed
agreement want to bargain.’6
[33] I do not accept the union’s contention that I should determine the date of its
application, namely 9 August 2018, as the relevant date for ‘fixing the cohort’. I cannot see
any persuasive rationale for this course. Further, I have no information about who was
employed on this date.
[34] The company did not indicate specifically which time it considered the Commission
should determine for the purpose of s 237(2)(a)(i), but its contention that the relevant date
should accommodate all of the 140 employees on its November list indicates that it considers
9 November 2018 to be the appropriate date. This is the date on which it provided to CIVS a
list of all employees who would vote in the text ballot. I note that on 24 January 2019 the
company filed in the Commission a list of its relevant employees, indicating their most recent
day of work, but during the hearing the company confirmed that this was not an updated list
of current employees as at that date.7 Accordingly, the most recent list of employees
employed by the employer whose employment would be covered by the proposed agreement
is the list provided by the company to CIVS on 9 November 2018.
[35] In considering what ‘time’ I should determine for the purposes of s 237(2)(a)(i), it is
appropriate to take into account that the company’s workforce is comprised largely of casual
employees. Of the 140 persons identified on the November list, 107 are casuals and 33 are
permanent part-time employees. As I discuss further below, although the company contends
that all of its casual employees were employed as at the date of its November list, I have
concluded that this cannot be the case. Rather, based on the evidence before me, I consider
that each of these casual employees was employed only on days that they actually worked.
[36] In a highly casualised environment such as this, it seems to me artificial and
inappropriate, in the context of s 237(2)(a)(i), to determine as the relevant time a single date,
on which only some casual employees are likely to have been engaged and therefore
employed. Instead, I consider that the Commission should determine a ‘time’ that is a period
of time. In my view the meaning of ‘time’ in this section clearly accommodates periods. The
provision does not speak of a ‘date’.
[37] I consider that it is reasonable in the circumstances for the ‘determined time’ to be a
four week period ending on 9 November 2018, this being the date of the most recent employer
list of persons said to be employees. Any casual engaged even once during this period will be
an employee employed at the determined time. I do not consider it appropriate to determine a
6 Explanatory Memorandum to the Fair Work Bill, paragraph 978
7 Transcript dated 5 March 2019 at PN1096
[2019] FWC 2571
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time with any greater ambit. In particular, it would not be appropriate to fix a time so broad as
to cover all of the casual employees on the November list – namely any person employed
between 14 September 2017 (the date given by the company for the casual with the oldest
‘last date worked’) and 9 November 2018. This would artificially increase the ‘employee
denominator’ for the purposes of calculating whether a majority of employees wish to
bargain. I note that the November list identifies 38 casuals who last worked before 12 October
2018. In my view, it is appropriate for the Commission to determine a period of time that
covers casual employees who have been engaged to work relatively recently, and who are not
simply persons ‘on the books’.
[38] For completeness, I note that I do not consider there to be any statutory basis for me to
give effect to the company’s concession to the union that the total number of employees for
the purpose of calculating majority should be reduced by three in light of the fact that three
employees’ telephone details were not properly provided to CIVS. Section 237(2)(a)(i)
requires me to determine a particular time at which employees are employed. It does not
permit of discounting or adjusting this number in the manner contemplated by the concession.
Casual employees employed at the time
[39] As I have foreshadowed, there is then the question of who exactly was employed at the
determined time, and more particularly, whether all of the casual employees on the company’s
November list can be considered to have been employed at this time for the purposes of s 237.
[40] The NUW submitted that only casual employees who were engaged by the company
at or about the time determined by the Commission are employees for the purposes of s 237.
The company’s position was that all of the casual employees on its 9 November list should be
considered to be employees at that time.
[41] The meaning of ‘employee’ in Part 2-4 of the Act, of which s 237 forms part,
includes ‘an individual in so far as he or she is employed, or usually employed’.8 However the
union contends that these provisions should be read in the light of the decision of the Full
Federal Court in National Tertiary Education Union v Swinburne University of Technology.9
This case considered the question of which employees could be requested to approve (vote
on) an enterprise agreement under s 181(1). That provision, which is also found in Part 2-4 of
the Act, states that an employer may request the employees ‘employed at the time who will be
covered by the agreement’ to approve the agreement by voting for it. The Full Court held that
the section applied only to persons employed specifically at that time, and that seasonal
employees who had been employed the previous year, who had been allowed to vote on the
agreement because they were ‘usually employed’, did not fall within s 181(1).10 The union
contends that the meaning of ‘employee’ in s 237 is analogous to that in s 181, being confined
to those employed at a particular time, which excludes the concept of persons ‘usually
employed’. I agree.
8 See s 170 and s 13
9 [2015] FCAFC 98; (2015) 232 FCR 246
10 Ibid at [24], [27] and [38]
[2019] FWC 2571
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[42] In my opinion the reasoning of the majority in NTEU is relevant to the consideration of
who is an employee for the purposes of s 237(2)(a)(i). A majority support determination
relates to a ‘proposed enterprise agreement’ at the inception of the bargaining process,
whereas s 181 is concerned with employees voting on an agreement at the conclusion of that
process. The foundational definition of employee for the purposes of this Part includes a
person who is usually employed. However, Justice Jessup, with whom Justice White agreed,
considered that there was a legislative intention of ‘confining, from within a broad class which
includes individuals who are usually, but not immediately, so employed, the relevant group to
those who are employed at the time the agreement is made.’11 His Honour concluded that the
words ‘employed at the time’ in s 181(1) limited the word ‘employees’.
[43] Similarly, in my view the words ‘employees employed by the employer or employers
at a time determined by the FWC’ in s 237(2)(a)(i) limit the general meaning of the word
‘employees’. Although the general definition includes a person ‘usually employed’, that
meaning is relevantly modified by the determination that the Commission makes in exercise
of its discretion under s 237(2)(a)(i). I take note of Justice Jessup’s analysis of the context of s
181 in Part 2-4 and the scheme of bargaining it establishes, including its various stages and
who might be employed at those stages.12 The provisions of subdivision C of Division 8 of
Part 2-4 also contemplate several events or stages: an application being made under s 236; the
Commission determining a time at which in-scope employees are employed for the purposes
of s 237(2)(a)(i); and an assessment of the question of whether there is a majority among
those persons who wish to bargain. The fixing of the cohort and the assessment of whether
there is majority support for bargaining would ordinarily occur at different times, and in this
order, because the Commission can only assess whether there is majority support for
bargaining once the cohort has been established. The subdivision recognises the practical
reality that the Commission needs to fix a certain time to establish the cohort of employees
who would be covered by the proposed agreement, because otherwise the denominator for the
assessment of whether there is majority support for bargaining could be fluid and uncertain
due to the turnover of labour. This contextual consideration reinforces what to my mind is
already quite clear from the text of s 237(2)(a)(i), namely that this provision is, like s 181,
concerned with a narrower meaning of ‘employee’.
[44] In short, a person is either employed ‘at a time determined by the Commission’ or not;
the person does not become employed at that determined time on the basis that the person is
employed at other times (‘usually employed’).
[45] Accordingly, only those casual employees who were engaged by the company during
the four week period I have determined can be considered part of the ‘cohort’ of in-scope
employees for the purposes of s 237(2)(a)(i).
[46] The company contended that all of the casual employees on its list were, factually,
‘ongoing’ casual employees and should therefore be included in the cohort. It relied on the
decision of the Full Bench of the Commission in McDermott Australia Pty Ltd v AMWU13
which found that employees who were engaged as casuals on an ongoing basis were entitled
to vote to approve an enterprise agreement under section 181 of the Act, despite the fact that
11 At [17]
12 At [23] and [24]
13 [2016] FWCFB 2222
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they had not actually been rostered on or performed work during the period in which the vote
occurred. The Full Bench concluded:
“In our view it would be inappropriate and counter intuitive to disenfranchise casual
employees of a right to vote on an agreement that determines their wages and
conditions on the basis that they were not rostered on [at the relevant time] …”14
[47] The company said that the facts of the present case were similar to those in
McDermott. The Full Bench found that, as the employees had accepted offers of ongoing
casual employment, had been entered onto the payroll system, and had not been dismissed
or resigned, they were employees at the relevant time, and therefore able to vote under
section 181. The company said that similarly in the present case the evidence of Ms Martin
was that each of the relevant casual employees had accepted an offer of casual employment
which is ongoing. They had each signed contracts of employment as ‘casual team members’
for ‘permanent positions’.15 They had been entered into the payroll system. They received
regular communications requesting that they indicate whether they were available for work.
And none of them had been dismissed, had resigned or indicated that they were not prepared
to accept future casual engagements with the company.
[48] In CFMMEU v Noorten,16 another Full Bench expressed misgivings about the
correctness of McDermott, but found it unnecessary to form a concluded view on the matter,
noting that ‘the critical conclusion in McDermott was that the casual employees “accepted on-
going employment” with McDermott … and as such they were employed by McDermott at
the time the Agreement was made.’ The Full Bench in Noorten observed that the reasoning
adopted by the Full Bench in McDermott could be said to be more of a conclusion that the
relevant employees were not causal employees at all, but rather ongoing (permanent)
employees.17 I agree with this observation. But in any event, the present case is
distinguishable from McDermott.
[49] In support of its contention that, like in McDermott, its casuals were ‘ongoing casual
employees’, the company pointed to the contract that has been signed by its casuals, the
opening clauses of which read as follow:
“Lovisa Pty Ltd is pleased to present you with a contract of employment under the
relevant Storage and Wholesale Award 2010 MA000084 and Lovisa policies and
procedures, as amended from time to time.
1. Position
This offer is for the position of Casual Team Member. To cater for the changing needs
of the business or to improve your employment prospects you may be required, where
reasonable, to transfer to another area.
2. Commencement Date
This employment contact will commence on
14 At [35]
15 Witness statement of Fleur Martin, paragraphs 16; attachment FEM1, clauses 1 and 4(a).
16 [2018] FWCFB 7224
17 Ibid at [32]
[2019] FWC 2571
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3. Primary Work Location
Your primary work location will be the Lovisa Warehouse at Tenancy B, 15 – 33
Alfred Street Blackburn, Victoria.
4. Remuneration
Your base hourly rate will be $25.26 gross per hour
This is a permanent position and so remuneration is set to fully compensate you for all
hours worked and duties performed under this contract.”
[50] Under cross-examination Ms Martin was asked about the reference to a ‘permanent
position’ in clause 4.1(a):
So this is not in fact a contract for casuals, it’s a contract for permanents. Is that
correct? -It just means that there’s no end date but the term and the rate that they’re
paid is casual.18
[51] I accept this evidence. The ‘term’ is casual, that is, each engagement stands alone. The
pay is casual, as the persons concerned receive an hourly rate, as stated in clause 4(a). In my
view, clause 4(b) reads as though the word ‘not’ has been omitted; a statement that
remuneration is in full compensation for all hours worked makes some sense in connection
with casual work, but little sense in connection with permanent employment. It is also
significant that the contract makes no reference to hours of work, a minimum number of hours
or engagements, or any pattern, project, or regularity in the expected casual working
arrangements. This contrasts starkly with the facts in McDermott, where employees would,
pursuant to clause 8 of the enterprise agreement, work a cycle of 21 days on duty and 21 days
off duty.
[52] I would add that the contract as a whole appears to be an uncompleted adaptation of a
template for permanent employment. It goes on to state that the company ‘may terminate the
agreement immediately by providing four weeks’ pay in lieu of notice’ and that if the
employee does not provide notice of termination, ‘the wages equivalent to the length of the
notice will be forfeited in lieu of notice.’19 But the contract does not require the company to
offer work, or the casual to accept it.
[53] In my view, the company’s contract is simply an agreement to keep casual employees
on the books. It is difficult to see how this is different from the position of any other casual
who will be offered shifts from time to time, but has no right to expect any shifts, nor any
obligation to work them.
[54] The company submitted that a casual employee does not necessarily cease
employment between engagements, even if there is a substantial intervening period, and
points to the passage in Smith Snackfoods, cited in McDermott, which noted that the nature of
casual employment is such that it is common for a casual employee to ‘transition between a
period in which [casual workers’] engagements with a particular employer are intermittent
and a period in which their engagements are regular and systematic and vice versa …’ 20
However I read this passage as emphasising what the Full Bench said in the previous sentence,
18 Transcript dated 5 March 2019 at PN1378
19 See clause 11(a)
20 See Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709 at [10]
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namely that no casual employee has a continuous period of employment beyond any single
engagement, and that this is so even if there are periods during which a casual is regularly and
systematically engaged.
[55] In Workpac Pty Ltd v Skene21 the Full Federal Court held that the ‘essence of
casualness’ is the absence of a firm advance commitment as to the duration of the employee’s
employment or the days or hours the employee will work.22 It also distinguished casual
employment from ‘on-going employment’, stating that the latter is characterised by ‘a
commitment by the employer, subject to rights of termination, to provide the employee with
continuous and indefinite employment according to an agreed pattern of ordinary time (as
distinct from overtime) work,’ and that a ‘corresponding commitment to provide service is
given by the employee.’23 In contrast, a casual employee receives no such commitment from
the employer, and gives no reciprocal commitment.24 Applying this to the evidence about the
circumstances of the company’s casual employees in this case, it is clear that they are not ‘on-
going’ (permanent or part-time) employees. They are persons who from time to time are
casual employees of the company and are on the company’s books.
[56] I note that the Full Court in Workpac went on to state that in their ordinary concepts,
casual, full-time and part-time employment are mutually exclusive categories of employment,
and that a person could not be both casual and also full-time or part-time in the same
employment.25 In my view, if the conclusion were reached that all of the casuals on the
company’s November list were employed on a continuous basis, they would at law be
permanent part-time employees with variable hours, with the consequence that they would
accrue leave and enjoy the other incidents of permanent employment.
[57] It could perhaps be said that there is an employment relationship between the
company and its casual employees between the causals engagements. But there is no contract
of employment. And unlike Part 3-1 (unfair dismissal), which is concerned with the ending of
the employment relationship,26 s 237 is concerned with whether a majority of ‘employees
employed by an employer at a particular time’ wish to bargain.
[58] Accordingly, I reject the company’s contention that all of the persons identified in its
November list as casual employees are on-going employees and that they are to be considered
as persons employed at the time I have determined above under s 237(2)(a)(i).
[59] Based on the evidence before the Commission, I conclude that employees identified
on the company’s November list as casual employees are indeed casual employees and that
they are employed by the company only during such times as they are actually engaged. They
are not employed by the company between engagements.
21 [2018] FCAFC 131
22 At [169]
23 At [171]
24 At [172]
25 At [177]
26 See generally Khayam v Navitas English Pty Ltd [2017] FWCFB 5162
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The question of majority
[60] The employees employed at the time determined by the Commission and who will be
covered by the proposed agreement are employees appearing on the company’s November
list, and who are either permanent employees (the 33 part-time employees), or casuals who
were engaged to work (and during each such engagement, were employed) at that time,
namely in the period from 12 October to 9 November 2018.
[61] However, there is no information before the Commission about which of the casuals
on the company’s list worked in this period.27 The November list identifies which employees
last worked in the period from 12 October to 9 November 2018, but not all persons who did in
fact work in this period. The union’s preference might be for me now to seek this information
from the company. I do not consider that this would be the appropriate course.
[62] I recognise that applications for majority support determinations can to a degree
involve an iterative process where the parties may seek to lead additional evidence about the
employment status and wishes of various employees. And indeed in this case I have adopted a
flexible approach and allowed both parties to raise additional issues and lead further evidence.
However an application under s 236 does not simply remain on foot until a determination is
made. It must at some point be determined.
[63] The present application was lodged in early August 2018. Two rounds of submissions
and materials have been filed, as well as final written submissions following the hearing in
March 2019. In my view it is appropriate that I determine the application based on the
materials before the Commission. This is the basis on which the hearing before me concluded
on 5 March 2019, and on which the parties filed their final written submissions. The union is
of course able to make further applications for a majority support determination.
[64] Because I am unable to identify which casual employees were engaged by the
company at the time I have determined above, I am unable to be satisfied that a majority of
those employees wish to bargain.
[65] I note for completeness, in relation to Lovisa’s contention that it would be
unconscionable for the union to resile from an agreed position to accept the outcome of the
CIVS ballot, that the Commission must undertake its statutory function to decide whether it is
satisfied that a majority of employees employed at a time determined by the Commission
wish to bargain. An agreement by the parties to adopt a particular course of action in respect
of the determination of the question could not limit the Commission’s jurisdiction or fetter its
discretion. As explained above, the Full Bench in Kantfield concluded that the Commission
does not have a discretion to determine a date on which it will decide whether a majority
exists, but must assess the question as at the date of the decision, using the most recently
available information.
Other issues
[66] The company contended that the Commission should not rely on the employee
petitions as evidence of majority support without affording it an opportunity to examine the
27 Roster documents and a summary were submitted by the union regarding employees it says were scheduled to work from
week to week, but that is not evidence of which casual employees in fact worked
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un-redacted copies of these documents. In light of my conclusions, it is not necessary for me
to determine this question however I make the following observations.
[67] Generally, petitions can be an acceptable method for the Commission to determine the
question of majority for the purpose of s 237(3). And in the absence of some evidence raising
a prima facie concern about the reliability of petitions as evidence of employee support, I
would incline to the view that it is sufficient for the Commission to receive an un-redacted
copy of the petition documents and for the employer to receive a redacted copy. In some cases
a union will not object to providing the employer with the un-redacted petition but often, as
was the case in this matter, employees have expressed some concern to their union about the
disclosure to the employer of their signatures on a petition. In my view, an apprehensiveness
of this kind is understandable as employees who sign a petition to bargain are taking a
position that is in opposition to that of their employer, which obviously in such matters does
not wish to bargain.
[68] If evidence led by the employer raises concerns about the integrity of the petition
documents or the process, or the genuineness of the support expressed by one or more of the
employees, or if the petition and other materials are factually complex, it may be appropriate
to order production of the un-redacted materials. Otherwise, I would not readily favour
production of the petitioners’ names to the employer.
[69] In the present matter the union has filed numerous petition documents, to some extent
overlapping and containing repeated names. In quite a number of instances the names of the
petitioners are similar to, but not the same as, those appearing on the employer’s November
list. I intend no criticism of the union. It has endeavoured to present its material in an orderly
way, to identify unintended duplications of petitioner names, and to explain alternative
spellings, nick names or abbreviations that certain employees might have used. However, the
petition and other evidence in relation to the expression of employee support was complex
and required careful examination. Had I proposed to rely on the material in reaching
satisfaction that a majority wished to bargain, this may have been a case where production of
the un-redacted materials to the employer would have been required in the interests of natural
justice, so that the company could make its own assessment of this evidence and present
argument on the material if it wished to do so.
Conclusion
[70] Section 237(1) states that the Commission must make a determination if it is satisfied
of the matters in s 237(2). As I am not satisfied that a majority of the employees who are
employed by the employer at the determined time, and who will be covered by the agreement,
want to bargain, I cannot issue a determination under s 237(1).
[71] The application for a majority support determination is therefore dismissed.
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DEPUTY PRESIDENT
Appearances:
M. Toner for the NUW
D. Trindade for Lovisa Pty Limited
Hearing details:
2019.
Melbourne:
5 March.
Final written submissions:
Applicant: 22 March 2019
Respondent: 29 March 2019
Printed by authority of the Commonwealth Government Printer
PR707037
WORK COMMISSION THE SEAL OF THE
