Australian Municipal, Administrative, Clerical and Services Union

Summary: majority support determination - coverage - eligibility - support for bargaining not obtained from the majority of employees - disclosure of list of employees - date from which employee numbers are counted - application dismissed.

[1] This is an application by the Australian Municipal, Administrative, Clerical and Services Union ("ASU"), made on 2 December 2009 for a majority support determination under s.236 of the Fair Work Act 2009 ("the FW Act"). The employer was Regent Taxis Limited trading as Gold Coast Cabs ("the Employer").

[2] The matter was heard in Brisbane on 9 December 2009.

[3] The application was made by the ASU because the Employer had not agreed to bargain, nor had it initiated bargaining in respect of a new enterprise agreement. Because the Employer had not agreed to bargain, the ASU sought to notify (by way of the majority support determination) the Employer that a majority of the employees to be covered by the proposed agreement sought to bargain for the agreement.

[4] Once a majority support determination is made an employer is susceptible to orders under s.229 of the FW Act.

[5] The relevant provisions of the FW Act are contained in section 236 and section 237 of the FW Act, and are set out below:

(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.

(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

(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

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

(4) The determination comes into operation on the day on which it is made."

[6] The coverage of the proposed agreement therefore extended to Radio Operators, Administration staff and Call Centre staff employed by the Employer ("the relevant employees"). These classes of employees fall within the eligibility rules of the ASU, and there appears to be no contest in this regard.

[7] The ASU, for purposes of satisfying the requirements of s.236(2)(a) of the FW Act provided 25 signed pledges from the relevant employees in support of the log of claims it had advanced and endorsing the representative role of the ASU in bargaining for the proposed agreement.

[8] Prior to the commencement of the hearing, I requested from the Employer those extracts from its payroll records that identified each of the employees within its employment who fell within the functional categories specified in the ASU's application (and which accorded with the ASU's eligibility rule).

[9] There were 57 employees who fell within the functional descriptions as provided by the ASU.

[10] The ASU did not dispute that the payroll information with which I had been presented was a faithful reflection of the Employer's payroll records (though I provided the ASU with an opportunity to contest that matter).

[11] It appears, therefore, that the ASU had not secured the necessary majority support (to bargain) from the employees to be covered by the proposed agreement. The ASU, therefore, had not satisfied the requirements of s.237(2)(a) of the FW Act.

[12] It further appears that the ASU's calculation of the total number of employees had been underestimated owing to seven administrative staff performing work under a roster having not been considered by the ASU and that various employees on forms of leave had also not been included in the ASU's head count. There may well have been other reasons.

[13] The ASU did suggest that the number of employees employed by the Employer might be taken from the date the pledges were signed, which was in September 2009.

[14] I am unsure whether this would have changed the head count to any meaningful degree and there was nothing specific put to me in this matter at the hearing. This was because in any event, as I informed the parties at the hearing, the number of employees employed by an employer must be taken from the time that Fair Work Australia makes the determination (and not from any prior point in time). This is clear from the plain words of s.237 ((2) (a) (i) of the FW Act, which reads:

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

(ii) Who will be covered by the agreement; […]" [my emphasis]

[15] I add that the FW Act provides for no arrangements for the disclosure of a list of employees to allow an applicant for a majority support determination to ascertain whether a majority of employees want to bargain, such that issues discussed above might be obviated at an earlier point.

[16] Another matter arises in relation to this application which is of relevance to the s.237 (2) (a) of the FW Act. I have been provided an email from an employee of the Employer who had signed a pledge in September 2009. That email states that the employee did not appreciate the implications of signing the pledge, and in any event now wishes to recant from the undertaking to support bargaining for the proposed agreement.

[17] An employee might reasonably withdraw their support to bargain before any determination is made under s.237 of the FW Act. There is no legislative stipulation to the contrary.

[18] I have brought this matter to the attention of the ASU.

[19] Because of its failure to demonstrate that it had the support of the majority of employees to be covered by the proposed agreement to bargain, as is required by s.237(2)(a) of the FW Act, I must dismiss the ASU's application.

[20] In my view, it is permissible for the ASU, in making a future application, to reply upon the signed pledges that it has acquired to date for purposes of this application. Presumably, the ASU will seek to supplement the existing signed pledges so that majority support is capable of demonstration.

[21] Of course, only employees who are employed by the Employer at the time of the determination and who are to be covered by the proposed agreement could be included in the calculation as to whether a majority of employees want to bargain. Any employees who have ceased to be an employee of the Employer since signing the pledges in September of 2009 would need to be excluded.

[22] Having said that, I repeat my observations made at the time of the hearing (and above) that I consider the wording of the pledge to be in plain terms, and most unlikely to create any doubt in the mind of a reasonable person as to its intention (which was to show the relevant employee wanted to bargain for an agreement). I say this in anticipation of any further agitation of this particular issue at a further hearing in relation to a fresh application.

Ms J Sheppard for the Australian Municipal, Administrative, Clerical and Services Union

Ms A Press for Regent Taxis Limited T/A Gold Coast Cabs

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