Fair Work Act 2009_

s.236 - Majority support determination

New South Wales Nurses and Midwives Association/Australian Nursing and Midwifery Federation NSW Branch

Mark Moran at Little Bay Pty Ltd T/A Moran Little Bay

[1] On 29 February 2016, an application was made pursuant to s.236 of the Fair Work Act 2009 ("the Act") for a majority support determination ("determination"). The initiating process identified the applicant as the New South Wales Nurses and Midwives' Association/Australian Nursing and Midwifery Federation NSW Branch ("the applicant"). The application for a determination is opposed by the employer in question, namely, Mark Moran at Little Bay Pty Ltd T/A Moran Little Bay ("the respondent").

[2] The applicant seeks to bargain for an enterprise agreement with the respondent in respect of employees of the respondent whose work is covered by the Nurses Award 2010 ("the Award"). The applicant contends that in email correspondence of 6 November 2015 and 3 February 2016, it wrote to Mark Moran, the respondent's Executive Chairman, about the matter of its "INVITATION TO BARGAIN - MARK MORAN AT LITTLE BAY". By email correspondence of 17 February 2016, the applicant noted that no response had been received from the respondent to its two invitations to bargain. Further, an email from the applicant to the respondent on 17 February 2016 with the subject heading "Invitation to bargain - Without Prejudice" was electronically-recorded as having been "deleted without having been read", albeit it appears from the evidence the correspondence of 17 February 2016 was also separately hand-delivered by the applicant to the respondent. The applicant's correspondence of 17 February 2016 foreshadowed that an application would be made for a determination based on an employee petition.

[3] In support of its application before the Commission for a determination, the applicant relied on a petition and, in large measure, effectively rested its case on that petition. The respondent's opposition to the application for a determination was advanced on various bases, including issues about the petition itself.

[4] Before turning to consider the application, I note the proceedings concerning an otherwise seemingly routine (albeit contested) application for a determination - which ordinarily might reasonably have been expected to take a more typical procedural course - were, unfortunately, affected by a number of difficulties which, I would have thought, reasonably ought to have been averted by the parties' representatives.

[5] In any event, it is unnecessary to traverse those matters in this decision and I turn to a consideration of the application itself.

The statutory framework - Majority support determinations

[6] Section 236(1) of the Act provides that a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the Commission for a determination that a majority of the employees who will be covered by the enterprise agreement want to bargain with the employer, or employers, that will be covered by the agreement.

[7] Section 236(2) of the Act provides that the application must specify: (a) the employer, or employers, that will be covered by the enterprise agreement; and (b) the employees who will be covered by the agreement.

[8] Section 237 of the Act sets out the circumstances when the Commission must make a determination. In that regard, s.237(1) provides that the Commission must make a determination in relation to a proposed single-enterprise agreement if: (a) an application for the determination has been made; and (b) the Commission is satisfied of the matters set out in s.237(2) in relation to the agreement. The cumulative matters as to which the Commission must be satisfied are:

(i) who are employed by the employer or employers at a time determined by the Commission; and

(ii) who will be covered by the enterprise agreement;

(b) that the employer, or employers, that will be covered by the enterprise 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 enterprise agreement was fairly chosen; and

(d) that it is reasonable in all the circumstances to make the determination.

[9] In the proceedings, the evidence included that of:

• James Figallo - Organising Coordinator in the Strategic and Bargaining Team of the applicant;

• Cameron Kirby - Chief Financial Officer of the respondent; and

• John Batac - Nursing Assistant, employed by the respondent.

[10] I declined to accede to an application that the applicant should be permitted to re-open its evidentiary case to call a further witness following the conclusion of Mr Batac's evidence.

[11] Certain evidence was received under seal, as it were, comprising:

• in the applicant's evidence, a petition (i.e the original document) and a distillation concerning names of certain employees including with identifying marks; and

• in the respondent's evidence, a list of employees considered by the respondent to be covered by the Award; a list of employees who are personal carers and, hence, considered by the respondent not to be covered by the Award, albeit there are some overlapping duties; and a list of relevant employees who had resigned their employment with the respondent since 18 November 2015.

[12] Each page of the petition relied upon by the applicant contains identical text in large typeface as its heading, which reads:

[13] Each page of the petition contains identical text in smaller typeface as a preamble, which reads:

We the undersigned nurses' [sic] of Moran at Little Bay ask our employer to immediately commence negotiating an enterprise agreement under the provisions of the Fair Work Act 2009."

[14] Below the preamble, each page of the petition has an identical table for employees to insert the following: "First name"; "Surname"; "Signature"; and "Classification".

[15] Beneath the table on each page of the petition, at the foot of each page, is text which reads:

For more information please call James Figallo on [telephone number]"

[16] The applicant relied on the matters outlined in the initiating process and its evidence and submissions, and contended a determination should be made. While the applicant conceded that some of the employee signatories in the petition upon which it placed principal reliance as to majority support came from employees who are not (or are no longer) relevantly eligible to sign it, the applicant contended it was confident that the documentation before the Commission as to the employee signatories nonetheless would establish majority support by eligible employees.

[17] In opposing the making of a determination, the respondent submitted the Commission should not accept the petition relied on by the applicant at face value as indicating a majority of employees of the respondent covered by the Award want to bargain, for the reasons that there has been no evidence by the applicant of:

• what was said to the employees about the petition, majority support determinations or enterprise agreements;

• what was said about the effect of signing the petition;

• who had custody of petition between 18 November and 16 December 2015;

• whether the petition was signed by the employees of their own free will;

• the dates on which the petition was signed by the relevant employees, which (it was submitted) could have been before 18 November 2015.

[18] The respondent submitted that the applicant's only witness (Mr Figallo) said he:

• had not seen any resolution (from the local workplace branch of the applicant union) that members wanted an enterprise agreement;

• cannot be aware of whether the signatures on the petition were genuinely of the employees to be covered by the agreement;

• acknowledged the petition contained names of some employees not covered by the Award;

• was not aware of what was said to the employees before they signed the petition;

• left the petition in the custody of an unidentified member, who did not give evidence in these proceedings and thereby not cross-examined;

• did not personally witness anyone signing the petition.

[19] The respondent raised onus of proof-type considerations, and referred to Coal and Allied Operations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and others (1997) 73 IR 311 at 317. The respondent referred also to "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Veolia Water Operations Pty Ltd [2015] FWC 2561 at [38] and [44]-[45], as to matters including establishing how a petition came into existence; and as to the mere lack of evidence of coercion or undue influence not being sufficient to found the requisite satisfaction when considered in the context of custody and control of a petition.

[20] The evidence of an employee signatory to the petition (Mr Batac) was that:

• he was not given any information about the nature of the document he signed (i.e. the petition), except that he should sign it if he wanted a pay rise;

• he was not told that his signature meant he was supporting the making of an enterprise agreement or a determination;

• he had not attended any meetings to discuss an enterprise agreement;

• he did not know what he was signing when he signed the petition, and is now concerned he signed;

• he had no previous experience in working for an organisation where an enterprise agreement applied, and does not really understand what an enterprise agreement is;

• the applicant did not provide him with other documentary information about an enterprise agreement.

[21] The respondent submitted that although employees do not need to be fully informed and educated about enterprise agreements, and it is inevitable that employees will have different levels of understanding, this is different from the employees not being at all informed (or even misinformed) about what they are signing (and the reason for signing). Not only was there was no accurate information provided at the time of signing the petition, the respondent submitted, but there was no follow-up, which could have explained the nature of the document being signed, the nature of an enterprise agreement or the next steps.

[22] The respondent referred to a number of cases. For instance, in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Kinkaid Pty Ltd T/A Cadillac Printing [2009] FWA 1123 at [13], Fair Work Australia (as the Commission was then named) concluded it was conceivable there may be circumstances where a petition could not be relied upon if, for example, there was evidence the petition had been "falsely derived" or where signatures were achieved "by duress". To similar effect, in "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Edlyn Foods Pty Ltd [2011] FWA 7928 at [7], Fair Work Australia opined about circumstances where it would not be proper to accept a petition, including where "duress or coercion of employees" existed, or if the proposition put to employees was in some way confusing or not clear. Likewise, in The Australian Workers' Union v The Austral Brick Co Pty Ltd T/A Austral Bricks [2010] FWA 5819 at [31] the "lack of a full understanding of the context for the petition" was held to be a relevant consideration.

[23] Here, the respondent submitted, a representation was made to Mr Batac that the only reason for him signing the petition was because the applicant "just wants to get a pay rise" and nothing else was said to Mr Batac at any stage. In these circumstances, the respondent submitted, the failure to provide any further information effectively amounted to a misrepresentation - that is, the petition was falsely derived. The respondent submitted that the example of Mr Batac demonstrates that other employees similarly may not be aware of what an enterprise agreement is, if they have not been provided with any relevant information - and, it was submitted, there was no evidence from the applicant to counter any such matters.

[24] The respondent's submissions referred also to the evidence of Mr Kirby, and highlighted matters arising, including that the applicant's correspondence dated 6 November 2015 and 3 February 2016 seeking bargaining had not been received by him (or, Mr Kirby understood, by Mr Moran).

[25] The respondent submitted there are at least 43 employees who may have signed the petition who are not eligible to be covered by an enterprise agreement intended to cover employees of the respondent who are covered by the Award, given:

• Mr Kirby's evidence indicated that 10 employees covered by the Award have left the employment of the respondent in the time since Mr Figallo provided the petition to the relevant delegate to obtain signatures;

• Mr Kirby's evidence indicated the respondent employs 33 employees as personal carers, being employees who are not covered by the Award; and

• Mr Figallo admitted that some of these employees signed the petition.

[26] The respondent referred to National Union of Workers [v National Tiles Pty Ltd] [2015] FWC 3473, where the Commission found that while it may have been possible the majority of employees wanted to bargain, the evidence failed to satisfy this requirement. The respondent submitted the relevant evidence in that case included a number of personnel changes in the affected areas in the time after the petition was signed. Here, the applicant conceded there are discrepancies between the names on the petition and the list of employees under the Award; and also conceded that some relevant employees had resigned since the petition was signed.

[27] In these circumstances, the respondent submitted the Commission cannot be positively satisfied that the majority of employees employed at a time determined by the Commission who will be covered by the proposed enterprise agreement want to bargain on the bases that:

• the relevant time for the purposes of making that determination cannot be known by the Commission as the dates on which the employees signed the petition are unknown;

• whether the majority of employees who will be covered want to bargain cannot be known by the Commission as:

- some employees who signed the petition cannot be covered by the enterprise agreement because they have left the employment or are not covered by the Award; and

- Mr Batac's evidence indicated that not only were employees not told they were signing the petition in support of an enterprise agreement, but that false representations were made that they should sign the petition to get a pay rise. The test the Commission needs to satisfy itself about, based on the evidence before it, is whether the majority of employees employed at a time determined by the Commission who will be covered by the proposed agreement want to bargain, not whether they want a pay rise. The only evidence given by a signatory on the petition was that he did not sign because he wanted to bargain; he signed because he wanted a pay rise.

[28] The applicant, as a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement, has applied to the Commission for a determination that a majority of the (relevant) employees who will be covered by the agreement want to bargain with the respondent, which is employer that will be covered by the agreement.

[29] The application specified the employer who will be covered by the agreement, albeit the name of the respondent was incorrectly identified in the initiating process as "Mark Moran at Little Bay T/A Moran Little Bay" (and was also incorrectly identified in the Notice of representative commencing to act lodged by the respondent's solicitors, albeit an ABN was provided in that notice). Pursuant to s.586 of the Act, I corrected/amended the name of the respondent at the initial listing to what I was advised was its correct name, that is, Mark Moran at Little Bay Pty Ltd T/A Moran Little Bay.

[30] The employees who will be covered by the agreement were specified in the initiating process as being those whose work with the respondent in New South Wales "falls under the terms of the Nurses Award 2010".

[31] As the application made on 29 February 2016 for a determination in relation to a proposed single-enterprise agreement addresses the requirements of s.236 of the Act, I turn now to consider the matters in s.237(2).

Section 237(2)(a)

[32] I am satisfied that a majority of the employees who are employed by the respondent and who will be covered by the agreement want to bargain.

[33] In reaching satisfaction as to the matters in s.237(2)(a) of the Act, I determined, within the meaning of s.237(3) of the Act, to "work out" whether a majority of (relevant) employees want to bargain using a method I consider appropriate - namely, by cross-referencing of information in documentation respectively tendered by the applicant and respondent. That cross-referencing involved checking employees' names in the petition in tandem with a consideration of employees' names within other lists tendered by the applicant and the respondent (e.g. as to employees whom the respondent considers not to be covered by the Award and those who are no longer in the employ of the respondent). The outcome of my consideration of the relevant documents in evidence in relation to this application is that there is majority support, and by a clear margin.

Section 237(2)(b)

[34] I am satisfied the respondent has not yet agreed to bargain, or initiated bargaining, for the agreement. I do not understand this to be in contention, in any event.

Section 237(2)(c)

[35] The agreement will not cover all the employees of the respondent covered by the agreement, and, as such, the Commission must, in deciding for the purposes of s.237(2)(c) of the Act whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

[36] While I, again, do not understand there to have been any contention about this, I am satisfied that the group of employees who will be covered by the agreement was fairly chosen. The group is geographically distinct, comprising the employees of the respondent working at a facility in Little Bay in New South Wales; and the terms and conditions of employment of the particular group of employees is the subject of regulation of the Award to the exclusion of industrial regulation under other awards of other employees of the respondent, such that the group of employees is also operationally distinct or organisationally distinct, or both. So much seems clear from the respondent's own delineation of employees as indicated in the evidence of Mr Kirby, albeit the personal carer employees perform some of the duties that are ordinarily performed by nursing employees the subject of employment by the respondent under the Award.

Section 237(2)(d)

[37] While I have considered matters raised by the respondent in its opposition to the application, I am satisfied it is reasonable in all the circumstances to make the determination. In particular:

• The respondent's cross-examination of Mr Figallo, while it elicited answers which were not always quite on all fours with what was in his statement of evidence-in-chief, does not lead me to conclude that the statutory criteria have not been met.

• The evidence led by the respondent from Mr Kirby (which was not the subject of cross-examination) does not lead me to conclude that any of the statutory criteria have not been met.

• The evidence of Mr Batac as to his signing of the petition does not disclose duress. Moreover, the text of the petition speaks for itself as to what is set out: in the header, as to the petition describing it as being a majority support petition to commence bargaining for an enterprise agreement; in the preamble, as to the petitioners asking the respondent to immediately commence negotiating an enterprise agreement under the provisions of the Act; and, in the footer, as to the invitation to telephone Mr Figallo for more information.

[38] There was evidence concerning notices having been given concerning branch meetings, with one relevantly before the commencement of the signing of the petition. The notice concerning the meeting scheduled for 9 November 2015 advised of the importance of the meeting and requested that employees should please make an effort to attend; it further advised: "All care staff are welcome to come along"; that is, the meeting was not just for members of the local branch of the applicant union. To the extent it may be relevant (because the date of another meeting post-dated the return of the petition to the applicant), an information-type meeting was arranged by the applicant for 12 February 2016 concerning enterprise agreement-related matters. That notice advised, among other matters "All Staff Welcome!" (bold in original). For his own part, Mr Batac did not attend either meeting.

[39] I do not accept the respondent's contention that, on the basis of Mr Batac's evidence, the petition could be characterised as, for example, "falsely derived". Nor is there a basis to impute what Mr Batac described as his own experiences as being common to any or all the other petitioners. In any event, Mr Batac's evidence was that he was informed the purpose of the petition was to obtain a pay rise. Absent any other considerations, obtaining a pay increase would be one potential outcome of processes to commence bargaining in negotiating an enterprise agreement - given that employees employed under award-specified minima might reasonably be expected to be better off overall were an enterprise agreement resulting from bargaining and negotiations approved by the Commission.

[40] The evidence appears to suggest an unremarkable and quite informal process of passing a petition through an aged care facility by staff as between themselves - without particular formality being involved or being perceived to be needed to be involved. While this approach may not be appropriate in every workplace, here there was no suggestion whatsoever arising from the evidence of, for example, any manipulation of the petition or forgery, such as to raise a concern that there was anything at all untoward about custody and control of the petition.

[41] As I am satisfied the statutory criteria have been met and I am satisfied it is reasonable in all the circumstances to make the determination, the determination must be made. In accordance with s.237(4) of the Act, the determination comes into operation on the day on which it is made, namely, today's date. The determination [PR578260] issues in conjunction with these reasons.

C. Montgomery for the New South Wales Nurses and Midwives' Association/Australian Nursing and Midwifery Federation NSW Branch

R. Kelleher, solicitor - Johnson Winter & Slattery - for Mark Moran at Little Bay Pty Ltd T/A Moran Little Bay.

Printed by authority of the Commonwealth Government Printer

var _gaq = _gaq || []; _gaq.push(['_setAccount', 'UA-9592794-1']); _gaq.push(['_trackPageview']); (function() { var ga = document.createElement('script'); ga.type = 'text/javascript'; ga.async = true; ga.src = ('https:' == document.location.protocol ? 'https://ssl' : 'http://www') + '.google-analytics.com/ga.js'; var s = document.getElementsByTagName('script')[0]; s.parentNode.insertBefore(ga, s); })();