Fair Work Act 2009

s.236 - Majority support determination

Application for a majority support determination - whether evidence sufficient to demonstrate that a majority of eligible employees want to bargain with the employer - application dismissed.

[1] The Independent Education Union of Australia (IEU) have made an application for the Fair Work Commission (Commission) to make a majority support determination pursuant to s.236 of the Fair Work Act 2009 (FW Act).

[2] Sections 236 and 237 of the FW Act states:

(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.

(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

(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

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

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

[3] It is apparent from this that there are a number of mandatory considerations required of the Commission before a majority support determination can be made. These are that a majority of employees want to bargain, bargaining has not commenced, the group of employees was fairly chosen and it is reasonable in all of the circumstances to make such a determination.

[4] I have considered each of these issues as necessary below.

[5] The IEU made its application on 13 November 2018. The application relates to Sirius College Ltd T/A Sirius College (College) in Victoria.

[6] The IEU wishes to make an enterprise agreement with the College to cover teachers who come within the scope of the Educational Services (Teachers) Award 2010 (Teachers Award) and support staff who fall within the scope of the Educational Services (Schools) General Staff Award 2010 (General Staff Award).

[7] The IEU says it is a bargaining representative for the employees who will be covered by the proposed enterprise agreement such that it can make the application pursuant to s.236(1) of the FW Act.

[8] The IEU has provided to the Commission on a confidential basis a list of its members employed by the College. I am satisfied that the IEU does have members employed by the College, that it is a bargaining representative for the proposed enterprise agreement and therefore has the right to make the application for a majority support determination currently before the Commission.

[9] In its submissions in relation to the application the IEU put two alternatives to its primary position as to the scope of the proposed enterprise agreement. The first alternative was that support staff employed as bus drivers by the College should be excluded from the coverage of the proposed enterprise agreement. The second alternative is that the coverage of the proposed agreement be limited to those employees of the College who are covered by the Teachers Award_._

[10] In a further alternative the IEU proposed that, if the Commission is not satisfied that the IEU petition in support of its application is reliable, the Commission should conduct a secret ballot of all teaching and support staff to determine if a majority of staff wish to be covered by an enterprise agreement.

[11] I am satisfied (and there is no dispute) that the College has not agreed to bargain with the IEU for a proposed enterprise agreement.

[12] In Kantfield Pty Ltd t/a Martogg & Company v The Australian Workers' Union[1] the Full Bench of the Commission found that:

[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.

"... 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.

[13] On this basis it is apparent that the point in time at which I must determine if the majority of employees wish to bargain is now. To this end the most up to date material I have before me is that produced by each party, marked as confidential, as to those employees of the College who have signed a petition and a list of employees who would be covered by the proposed enterprise agreement provided by the employer.

[14] The IEU has gathered support for its proposition by petition and by emails sent directly to the IEU. It has confirmed with many of the petition signatories that they maintain their wish to bargain.

[15] The evidence of Mr Simon Schmidt, an IEU Organiser, is that in early 2018 he circulated a petition to teachers and support staff of the College seeking their support as follows:

We, the undersigned Employees of Sirius College wish to commence bargaining in good faith with our employer for an Enterprise Bargaining Agreement. We believe that an EBA is the most efficient way to codify, clarify and protect our conditions of employment and will provide certainty and security for all parties.

[16] The petition asked employees to complete their name, occupation, to sign and add their email address. The petition was circulated at all six campuses of the College. At the time the application was made to the Commission 179 employees had indicated their support for bargaining either by completing the application or otherwise emailing the IEU to indicate support.

[17] Mr Schmidt said that, between April and November 2018 he and his colleagues made approximately 15 different visits to the various campuses of the College for the purpose of gathering signatures of the petition. He said that during such visits the petition was in the custody and control of the relevant IEU official. Mr Schmidt said that no employees were coerced or pressured into signing the petition or otherwise indicating support for bargaining.

[18] Mr Schmidt said that, since making the application and to the point of making his further statement on 30 November 2018 more employees had indicated their support for bargaining such that at 30 November 2018 182 employees had indicated their support for bargaining to commence.

[19] Mr Schmidt said he believed the College had 316 employees who would be covered by the proposed agreement and therefore considered that the majority of employees wished to bargain. Mr Schmidt reached this view on the basis of the data on the My School website and information from the most recent annual report of the College.

[20] Mr David Brear, Assistant State Secretary for the IEU, also gave evidence. He said that he had visited the Keysborough campus of the College for the purpose of gathering signatures for the petition. He reported that he spoke to a group of employees in staff room C during the lunch break. He said the conversation was pleasant, low-key and friendly. He said one person signed the petition and then one other. These were Mr Dylan Sakkas and Mr Nertil Osmani. He said there was no pressure exerted to make them sign the petition.

[21] Mr Halid Takimoglu is the Executive Principal of the College.

[22] Mr Takimoglu said that, as at 23 November 2018 the College had 423 employees of whom 8 would not be covered by the proposed enterprise agreement as they were outside the scope of the Teachers Award. He said that this list included casual employees and employees on leave who it is assumed will return to the College following the expiration of their leave including those (20) on parental leave.

[23] Mr Takimoglu said that the staffing figure includes casual employees who are directly employed by the College (but excludes any casual staff not directly employed by the College). He said that since 28 September 2018 the average number of casual employees per pay period has been 30.

[24] Mr Takimoglu said that the pay run prior to hearing the application paid 382 staff and this excluded some casual employees who might not have worked in that pay period and would have excluded some staff on leave who were not in receipt of any pay for that period.

[25] Mr Takimoglu gave evidence that he had received reports of instances when he thought the IEU conduct in visiting the campuses was inappropriate. These instances were raised with the IEU. He also gave evidence that he had received emails from Mr Sakkas and Mr Osmani, both of whom complained that they felt pressured into signing the petition and wished to have their names removed from the petition. Mr Takimoglu said one other person had told him they wanted their name removed from the petition but was not prepared to have their name publicly stated.

[26] On 30 November 2018 the College provided me with a list of employees. That list shows a total of 423 staff.

[27] I am satisfied that this is the correct staff count at that point in time. I therefore reject the assertions of the IEU that the College only has 316 employees based on the evidence of Mr Schmidt. I do not know and have no evidence as to how information makes it onto the My School website or the accuracy of that information in 2017. I am satisfied that the College is best placed to provide an accurate list of employees to the Commission. The information provided by the IEU in relation to the 2017 annual report is not enough such that I could draw any reliable conclusion from that as to the number of staff employed by the College at the time of making this decision. Further, the information relied on by the IEU is 2017 information at its best. It is now the end of 2018 such that the 2017 information cannot be relied on for the purpose of deciding the application before me now.

[28] I am satisfied that the best evidence before me is that, as at 30 November 2018, the College had a total of 423 staff. This must be reduced by 8, being the total number of persons classified as a principal or deputy principal (these are excluded from coverage of the Teachers Award) leaving a total of 415 staff who would be covered by the proposed agreement.

[29] I am satisfied that casual employees engaged and included in the staff list provided by the College should be counted in the total staff numbers. Casual employees will be covered by the proposed enterprise agreement and hence are relevant in my determination of the matter. I am also satisfied that employees on long term leave, including parental leave, should be included in the count of employees as they too will be covered by the proposed enterprise agreement. That any such employee might decide in the future not to return to work is not relevant.

[30] Even if I am to accept the total number of employees paid by the College on its most recent payroll run of 382 staff, less the 8 employees excluded from coverage of the Teachers Award this still leaves 374 staff to be covered by the proposed enterprise agreement. This figure underestimates the total number of staff who would be covered by the proposed agreement as it excludes employees currently on some form of leave who were not paid in that pay cycle.

[31] I accept that the total number of employees who signed the petition or otherwise indicated they wished to bargain as at 30 November 2018 is 182 and that this excludes Mr Sakkas and Mr Osmani (although why they would advise the College Executive Principal they did not wish to be covered by the proposed enterprise agreement and not the IEU is puzzling). Even if the two excluded employees were included this would not indicate that a majority of employees wished to bargain.

[32] On this basis I cannot be satisfied that the majority of staff want to bargain.

[33] The first alternative proposition put by the IEU is to exclude the bus drivers from the group of employees to be covered by the proposed enterprise agreement.

[34] There are 10 bus drivers employed by the College. A comparison of the list of employees who signed the petition to the list of employees provided by the College indicates that no bus drivers signed the petition.

[35] At best, an exclusion of the bus drivers would mean that there were at least 364 employees of the College who would be covered by the proposed enterprise agreement. For the reasons outlined above this is an underestimation of the total number of employees of the College as it excludes employees on leave and not in receipt of pay. Even if it was accurate the IEU has 182 employees who have indicated that they want to bargain, this is not a majority of 364.

[36] The IEU's second alternative is to exclude from the group of employees who wish to bargain those employees who fall within the coverage of the General Staff Award_._

[37] The College objects to such a narrowing of the scope of the proposed enterprise agreement for these purposes. It submits that the IEU approached staff on the basis that it wished to bargain for all employees covered by the Teachers Award and the General Staff Award_._ It says that to now change the scope so drastically will result in the Commission making a decision not based on the petition that employees thought they were signing. In this respect it submits the Commission could not be satisfied that the group of employees to be covered by the proposed enterprise agreement has been fairly chosen.

[38] I do not intend to consider this alternative position put by the IEU. The IEU approached employees of the College on the basis that it wished to bargain for an agreement covering teaching and non-teaching staff. To now seek to narrow the scope to teaching staff only may well mean that employees have signed the petition for a proposed enterprise agreement that is no longer being sought.

[39] Further, it cannot be that the intention of s.236 of the FW Act is that a bargaining representative should canvass for an agreement with a broad scope and then be able to narrow that scope on application for a majority support determination until such time as it has a majority of employees who have indicated they wish to bargain and have the Commission make such a determination (all other requirements having been met). It seems to me that there needs to be confidence in the method by which employees are canvassed to determine if they wish to bargain. To consider this alternative position of the IEU leaves the system of seeking majority support for bargaining open to manipulation that I am not satisfied was intended. Should the IEU wish to seek a majority support determination for a proposed enterprise agreement covering only those employees of the College covered by the Teachers Award then it is proper that they do so in a transparent manner. Even if I was to accept this submission and find that a majority of employees covered by the Teachers Award wished to bargain I could not, for these reasons, be satisfied that it would be reasonable in the circumstances to make the determination within the meaning of s.237(2)(d).

[40] The IEU's third alternative proposition is that if the Commission is not satisfied that a majority of employees want to bargain because the petition cannot be relied on, the Commission should use its discretion and order a secret ballot of employees (teaching and support staff).

[41] I am not satisfied the petition cannot be relied upon. In this respect I reject the submissions of the College that it is not reliable. The evidence before me does not allow me to conclude that the employees of the union who had control of the petition did not keep the petition in such a manner that it could not be relied upon. As such there is no basis to consider this alternative as it is predicated on a rejection of the reliability of the petition.

[42] I would however add a note of caution about gathering signatures for such a petition over an extended period of time as has occurred in this case. The length of time such a petition is in the field will inevitably raise issues as to its reliability.

[43] For the reasons outlined above I am not satisfied that the requirements of s.237(2)(a) have been met. Consequently I cannot make a majority support determination as sought by the IEU.

[44] The application is therefore dismissed.

[1] [2016] FWCFB 8372.

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