Fair Work Commission|2024-05-22

Shop, Distributive and Allied Employees Association v Eudunda Farmers Ltd and Others [2024] FWC 1340 (22 May 2024)

s.236 - Application for a majority support determination

Shop, Distributive and Allied Employees Association

Application by the Shop Distributive and Allied Employees Association for a majority support determination - retail industry - multiple employers - method of establishing majority - reliance on physical, on-line and text petitions - whether majority exists - whether reasonable to make determination - slender majority found - reasonable to make determination - determination issued

[1] This decision concerns an application filed on 17 November 2023 by the Shop, Distributive and Allied Employees' Association (SDA) under s 236 of the Fair Work Act 2009 (the FW Act) for a majority support determination. The SDA contend that a majority of employees who would be covered by a proposed agreement want to bargain with their employers, all of whom are wholly owned subsidiaries of Eudunda Farmers Limited (Eudunda Group).

[2] The application concerns seven separately named employers. Each employ and operate businesses through different legal entities. Collectively, these employers operate supermarkets in twenty locations in regional South Australia and trade as Foodland or IGA.

[3] The persons to be covered by the proposed agreement are those the SDA describe as "covered by a modern award, the General Retail Award 2020".

[4] The SDA relies on three petition formats (physical, text and on-line) collected between September and December 2023 to establish that a majority of employees want to bargain. In total, the SDA gathered 441 petition names and submit that this represents a majority of persons employed in the relevant group.

[5] The Eudunda Group oppose the application on multiple grounds including that the petitions themselves, once reconciled to the employers list, do not establish that a majority wish to bargain, that (for different reasons) reliance cannot be placed on the SDA petitions and that, even if a majority exists, it is not reasonable to make the determination because (amongst other considerations) some petition names were gathered coercively or were the product of confusion.

[6] It is noted that this application was made in the shadow of a contested underpayment dispute between the parties currently before the Federal Court. Whilst the Eudunda Group did not directly submit that the SDA's application was made for a collateral purpose, it submitted that the SDA's evidence should be carefully scrutinised on account of an industrial relationship under strain by virtue of that separate litigation.

[7] That said, the Eudunda Group did not oppose the application on the ground that the group to be covered by the proposed agreement was not "fairly chosen" or that the SDA was not a valid bargaining representative. Nor did the Eudunda Group dispute that it had not agreed to bargain.

[8] Given the three petition formats relied upon, the multiple employers subject to the application, the disparate geographic location of the supermarkets and their employees, the large number of persons in the group to be covered, the large number of petitioners, the desire of the SDA to maintain confidentiality of the identity of petitioners, the desire of the Eudunda Group to maintain confidentiality of the list of persons employed in the relevant group, and the multiple grounds of objection, the procedural background to the application has been extensive.

[9] Proceedings involved numerous directions hearings,[1] and my chambers undertaking multiple reconciliations of data, a process rendered complex not merely for the aforementioned but also because the data itself revealed multiple entries by some petitioners, name discrepancies of petitioners, duplicates in the employers list, and updates and clarifying information from both parties.

[10] At the outset I express appreciation to the SDA and the Eudunda Group, and their representatives, for their follow-up and responsiveness to the requests for clarification of data by my chambers and general compliance with my directions. I acknowledge the effort of my associate Liam Butterworth, who in the early days of his engagement in chambers encountered this complex s 236 matter and navigated the necessary administrative and analytical work.

[11] I issued directions on 7 December 2023, 13 February 2024, 6 March 2024, 21 March 2024 and 17 April 2024.

[12] Eight reconciliation reports were produced by chambers, the final being immediately prior to the hearing.

[13] On efficiency grounds, permission was granted to the SDA and the Eudunda Group to be represented.

[14] I observe that whilst there are seven named employers the subject of this application, it was agreed that at least for the purpose of the reconciliations by chambers and for the purpose of evidence and submissions, the data and interests of the employer respondents would be assessed collectively.

[15] It was also not contested that these businesses are single interest employers as they are related body corporates for the purposes of s 172 of the FW Act and s 50 of the Corporations Act 2001 (Cth).

[16] A separate question, discussed below, is whether it is open or reasonable to disaggregate the data and make separate findings or determinations specific to a particular respondent employer (the severance issue).

[17] Both the SDA and the Eudunda Group filed evidence and materials in support of their respective positions.

[18] I heard the matter in person on 22 April 2024 with allowance for filing final materials in reply.

[19] I heard evidence from three persons:

• Ali Amin, Industrial Officer, SDA (three statements)[2];

• Christopher Matonti, Organiser, SDA (one statement)[3]; and

• Alistair Schuller, Managing Director, Eudunda Farmers Limited (four statements)[4].

[20] Mr Amin, Mr Matonti and Mr Schuller were required for cross examination.

[21] I received by way of final reply, and admitted into the evidentiary record by consent and without the need for examination, two further statements:

• Jason Lintvelt, Enforcement and Compliance Officer, SDA[5]; and

• Alistair Schuller, Managing Director, Eudunda Farmers Limited (fifth statement)[6].

[22] In the course of proceedings I indicated that certain paragraphs[7] of Mr Schuller's second and fourth statements (11 and 19 April 2024) which were objected to by the SDA would not be given weight because they were hearsay, of a prejudicial nature and unable to be tested. Other parts of Mr Schuller's evidence objected to were admitted on the basis that appropriate weight would be given noting the objections raised.

[23] It is necessary to make some further observations concerning confidentiality and procedural fairness. Both the SDA and the Eudunda Group sought that part of the evidence relied upon be kept confidential; specifically that the identity of petitioners and the names on the employers list not be disclosed to the other party or published. I considered these requests reasonable and consistent with the manner in which the Commission commonly considers evidence of employee petitions and employer lists in applications under s 236.[8]

[24] My directions accommodated these confidentiality requests and were not objected to. However, in order to ensure that procedural fairness was afforded:

at the directions hearing on 12 April 2024, I explored the option of providing the legal representative of each party an opportunity to audit, prior to the hearing, the then final reconciliation report prepared by chambers by viewing the unredacted material (subject to undertakings to not further publish) in order to assess the administrative correctness of the reconciliation. Neither party took up this option;

I directed that copies of confidential material (petitions and employers list) be provided to the other side with identifying details redacted, so that non-confidential aspects of the material could be viewed and responded to; and

my chambers communicated with parties in a manner that copied the other party into email exchanges except insofar as communication to or from chambers contained confidential material.

[25] I am satisfied that these steps resulted in the application being managed in a procedurally fair manner, given the constraints inherent in the confidentiality requests by both parties.

[26] The published version of this decision redacts two footnoted names of employees. The parties have received the decision in unredacted form.

[28] The Eudunda Group operate supermarkets across twenty locations in regional South Australia. The supermarkets trade as Foodland or IGA. The twenty supermarkets are operated by seven corporate entities, all of which are wholly owned subsidiaries of Eudunda Farmers Limited.

[29] Persons employed by the seven entities include retail employees covered by the General Retail Award 2020. None of the employers are covered by an enterprise agreement or are currently bargaining for an agreement.

[30] The SDA has membership amongst persons employed by the seven employers. It is entitled to represent the industrial interests of those persons.

[31] In September 2023 the SDA commenced a campaign to secure the support of a majority of employees working across the twenty supermarkets for the purpose of exercising collective bargaining rights under the FW Act in pursuit of a single enterprise agreement covering the seven employers.

[32] Anticipating that the employers would resist collective bargaining, the SDA did not seek agreement to bargain in advance of seeking majority support.

[33] The union campaign was conducted in three phases; phase 1 an initial one week in-person attendance by SDA organisers in the supermarkets seeking signatures to physical petitions; phase 2 additional targeted visitations and an on-line petition; and phase 3 follow-up where required and a text petition.

[34] Phase 1 commenced on 3 September 2023 when the SDA advised members working for the Eudunda Group that SDA organisers would be attending the supermarkets to gauge employee views on bargaining.

[35] Seven SDA organisers, including some from metropolitan Adelaide, attended the supermarkets between 4 and 8 September 2023. The organisers did so by exercising rights of entry after being briefed by the SDA State Office. The organisers were required to complete a store visit summary for each store, upload this onto an on-line portal, and progressively upload details of petitions secured to enable the State Office to monitor progress.

[36] Phase 2 occurred between 21 and 28 September 2023 after the SDA assessed the number of petitioners obtained during phase 1. The union concluded that a larger number was required and was capable of being secured because some employees were not rostered during the week of phase 1 store visits. Phase 2 also included the SDA making an on-line petition available to members.

[37] Mr Amin, who centrally co-ordinated the campaign, considered that by the end of phase 2 the SDA had a solid majority but final follow-up should be undertaken before making a formal request for bargaining and filing an application in the Commission.

[38] Phase 3 occurred between 10 October and 15 December 2023 and involved two elements: follow-up with those employees the SDA believed would sign the petition but had not yet done so, and making a text petition available (from 30 October) by sending this directly to SDA members.

[39] On 24 October 2023 the SDA formally wrote to the Eudunda Group (naming the seven employers) requesting they commence bargaining for an enterprise agreement.[9] No reply was received.

[40] On 17 November 2023 the SDA filed these proceedings claiming that it had secured 335 physical petition names from an estimated number of 650 persons in the group. The application indicated that the SDA was continuing to petition employees and "expects to get additional petition signatures with six visitations planned for the week commencing 20 November".[10]

[41] At the first directions hearing on 7 December 2023 I directed that the "time" (s 237(2)(a)(i)) for the purpose of determining the number of persons employed in the relevant group be "all persons (including casuals) who are regular and systematic employees including all those who have worked at the relevant stores in the month prior to 15 December 2023". I directed that the Eudunda Group file a response and provide the Commission a confidential list of names of persons in the group. I further directed that the SDA provide the Eudunda Group with redacted petition pages.

[42] Upon the SDA submitting supplementary physical petition pages, the on-line petition and the text petition, by 15 December 2023 the SDA claimed it had 441 petitioners. This number was subsequently reduced following the receipt by chambers of information from the SDA concerning name discrepancies and multiple entries. In the final Commission reconciliation the SDA relied on 384 petition names.

[43] The Eudunda Group filed a confidential list of 704 names on 10 January 2024 and a response dated 31 January 2024 opposing the application. This number was subsequently revised. In the final Commission reconciliation the Eudunda Group relied on 711 names.

[44] The final reconciliation by chambers of 22 April 2024 indicated that 355 of the 711 names reconciled, which was one short of a majority.

[45] At the hearing and in reply both the SDA and the Eudunda Group sought to make further adjustments to these numbers, resulting in the SDA contending that a majority existed and the Eudunda Group contending that a majority did not exist (discussed below).

[46] The SDA submit that all three petition formats should be relied upon.

[47] The SDA submit that no names were obtained under coercion or improper pressure.

[48] The SDA submit that it was not irregular or improper for store members or delegates in three supermarkets to be asked to collect further petition names, rather than organisers.

[49] The SDA submit that delays which existed between an organiser securing petition names and entering them into the on-line portal are of no consequence given that the on-line portal was simply an additional tool used internally by the SDA to track progress. What matters is the total number of petition names secured.

[50] The SDA submit that the evidence supports an additional name being added to the employers list of names and the reconciled list, taking the number of reconciled petitioners to 356.

[51] The SDA submit that the total number of names relied upon by the employer:

should not include persons who did not work between 15 November and 15 December 2023 inclusive.

[52] With these deductions, the SDA submit that the employers list should be reduced by between ten and twenty names.

[53] Accordingly, the SDA submit that a majority exists.

[54] The SDA submit that it is reasonable in all the circumstances to make the determination in respect of the Eudunda Group's seven employers as a whole.

[55] In the alternative, the SDA submit that based on the reconciliation report and the evidence, an uncontroverted majority of names exists with respect to at least five of the seven employers, and that it is open and reasonable to make a determination in respect of those employers severally.

[56] The Eudunda Group submit that the physical petitions should not be relied upon because the chain of custody was broken as a result of the SDA leaving physical petition pages with employees, rather than being securely retained by the relevant organiser.

[57] The Eudunda Group submit that the physical petitions should not be relied upon because the evidence establishes that delays occurred between an organiser obtaining signatures and uploading data onto the SDA portal. This raises legitimate questions about whether organisers retained custody of the petition pages or left them with other employees or in staff rooms, beyond what was conceded by the SDA. The Eudunda Group refer to the fact that only one SDA organiser from amongst a larger group of organisers gave evidence in proceedings.

[58] The Eudunda Group submit that the phase 1 physical petitions should not be relied upon because they were obtained in the first week of September 2023 and are now stale.

[59] The Eudunda Group submit that the evidence supports a finding that some petitioners, particularly young after school casuals, were likely pressured or confused when signing the petition. That confusion arose from the SDA having also sought registrations for the class action proceedings in the Federal Court.

[60] The Eudunda Group submit that reliance on the on-line and text petitions carries inherent risk as to reliability.

[61] The Eudunda Group submit that even if all petition formats relied upon by the SDA are used, the final reconciliation of 22 April 2024 establishes that the SDA falls short of a majority.

[62] The Eudunda Group submit that no deduction from its final list of names of 711 should be made. It submits that inclusion of seasonal casuals is appropriate.

[63] The Eudunda Group submit that the evidence does not support adding an additional name to the SDA number of reconciled petitioners.

[64] On the severance issue, the Eudunda Group submit that it is not open to, or reasonable for, the Commission to make a determination with respect to some of the seven employers individually because the petition and all relevant communication to employees informed them that the SDA was seeking a single agreement covering all employers collectively. Severance is inappropriate.

[65] The Eudunda Group submit that even if a majority exists:

any majority is so fine and attended with doubt that it is not reasonable to make the determination;

that it is not reasonable to make the determination given the pressure or confusion likely to have existed amongst young employees; and

it is not reasonable to make the determination given that a more reliable method of ascertaining whether a majority exists is available (a ballot) and the SDA thwarted employer attempts to conduct a ballot.

[66] The Eudunda Group submit that the application should be dismissed.

(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.

(1A) Despite subsection (1), a bargaining representative may not apply to the FWC for a determination if a supported bargaining authorisation that specifies the employee is in operation.

Note: While a supported bargaining authorisation that specifies an employee is in operation, an employer cannot bargain with that employee for any kind of agreement other than a supported bargaining agreement (see subsection 172(7)).

(1B) Despite subsection (1), a bargaining representative of an employee may not apply to the FWC for a determination if:

(a) a single interest employer agreement or a supported bargaining agreement applies to the employee; and

(b) the agreement has not passed its nominal expiry date.

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

[68] Section 237 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). Sub-section (2) provides that the Commission must be satisfied that:

(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."

[69] The SDA's application meets the formal requirements of s 236.

[70] It is made by a bargaining representative of employees who will be covered by a proposed single enterprise agreement (s 236(1)). There is no dispute that the SDA represents members employed by the respondent employers, and that the union's registered rules entitle it to represent the industrial interests of employees who would be covered by the proposed agreement. There is no dispute that the application specifies the parties to be covered (s 236(2)).

[71] The application does not concern employees covered by a supported bargaining authorisation (s 236(1A), a single interest employer agreement or a supported bargaining agreement (s 236(2)(a)).

[72] It is also agreed that the employer has not yet agreed to bargain, or initiated bargaining. This much is readily apparent from the correspondence attached to the application and the evidence of Mr Amin[11]. The requirement in s 237(2)(b) has been met.

[73] There is also no contest that the group of employees who will be covered by the proposed agreement was fairly chosen (s 237(2)(c)). The evidence clearly discloses a commonality of interest. The employees all work in supermarkets in regional South Australia, are covered by the General Retail Award 2020 and each of their employers are related within the Eudunda Group and regarded by the FW Act and the Corporations Law as such.

whether a majority of the employees wish to bargain (s 237(2)(a)); and

whether it is reasonable in all the circumstances to make the determination (s 237(2)(d)).

[76] Whether a majority exists is a question of fact.

[77] At the outset, it is relevant to observe that s 237(2)(a)(i) requires a majority to exist from amongst persons employed "at a time determined by the Commission".

[78] The "time" means the time for determining the number of persons employed in the relevant group, which in turn informs the employers list and becomes the denominator for assessing whether a majority exists.[12]

[79] Section 237(2)(a)(i) permits a time period to be determined as distinct from a specific day, if appropriate to do so.[13]

[80] In this matter, the time determined is that specified in my directions of 7 December 2023. This was expressed as:

"all persons (including casuals) who are regular and systematic employees including all those who have worked at the relevant stores in the month prior to 15 December 2023."

[81] It was in this period that the application was made, that the final phase of the campaign was concluded and during which all petition signatories gathered during phases 1, 2 and 3 were finalised. That it operates for a month from 15 November 2023 to 15 December 2023 has regard to the nature of the industry and the fact that not all employees working in the twenty supermarkets were rostered to work each trading day.

[82] The period specified was not contested. I consider it to be the appropriate time for the purpose of s 237(2)(a)(i).

[83] It is inappropriate in this matter to include irregular casuals in the count. No party seriously advanced that this should be so. Doing so would materially risk artificially inflating the employers list with persons who may be no more than casuals 'on the books' but not regularly called upon to work according to a system of rostering. The notion of a casual being "regularly and systematically employed" is one familiar to the FW Act and commonly applied by the Commission.

[84] At the hearing, the SDA agreed that one casual who worked for two weeks in the relevant period but did not work for one of the named employers before or after that fortnight should not be included in the count. I agree. That person was not regularly and systematically employed. However, no adjustment is required to the employers list on that account because Mr Schuller's evidence was that this person "was removed" from the employer's final list.[14] Not being on the employers final list, this person was not a reconciled name.

[85] The final employers list is that submitted to the Commission on 18 April 2024. According to Mr Schuller's fourth statement[15] this list was produced following a direction I issued on 17 April 2024 that the Eudunda Group re-audit its then list (which had been increased by 33 from 697 to 730) to exclude persons who had not worked in the relevant period and to exclude casuals who were not regular casuals. As Mr Schuller's oral evidence indicates,[16] the employer complied with my direction and filed a revised list (of 711 names) on 18 April 2024.

[86] At the hearing, the Eudunda Group submitted that the "time" for the purpose of s 237(2)(a)(i) should include all regular casuals irrespective of whether they worked in the relevant period. The employer submits that those who worked in the relevant period are simply a subset of the broader category of regular casuals. I deal later with the treatment of regular casuals who did not work in the relevant period.

[87] Subject to my findings below (concerning Employee X, regional managers, seasonal casuals and persons who had not worked in the relevant period), I consider the revised employers list of 18 April 2024 (which is before the parties in redacted form) to be the appropriate denominator in this matter. That is a list of 711 names.

[88] The SDA assert that a majority exists by reference to the three petition formats gathered by the union: physical, on-line and text. Those petitions are in evidence.[17]

[89] I deal later with the Eudunda Group's contention that, for varying reasons, the petitions should not be relied upon.

[90] No party submitted that the Commission should adopt of its own motion another method of determining whether a majority of employees wish to bargain, notwithstanding the power of the Commission to do so (s 237(3)).

[91] However, the employer submitted that its attempt to conduct a ballot, and action it alleges the SDA took to thwart that ballot, are discretionary reasons not to make the determination. I deal later with this submission.

[92] I now turn to the reconciliation conducted by chambers.

[93] The reconciliation report most current as at the date of hearing, and which is in evidence, is the report of 22 April 2024. I attach to this decision[18] the entirety of that report as it is comprehensive in not just conducting an arithmetical reconciliation of materials submitted and relied upon by the parties but also highlights the store location of petitioners and the discounts made by chambers to the number of petitioners on account of multiple entries and name discrepancies.

[94] The report indicates that the reconciliation was an administrative exercise by chambers but not a finding of the Commission save that the final report (as did its immediate predecessor of 10 April) represented my provisional view of the correctness of the calculations and of the inclusions and exclusions of particular multiple entries and name discrepancies.[19]

[95] The reconciliation report of 22 April 2024 concluded:

"Of the 384 names in the SDA petition(s), 355 of those names appear in the employers list of 711 names (this includes all name discrepancies that reconcile).

Accordingly, there are 29 names in the SDA petition(s) which, on the face of the materials, do not appear in the employers list.

There may be multiple reasons for this discrepancy. For example, it could be because the date by which the employers list was compiled or referenced may not equate to the date(s) persons who signed the petition were or remained employed, or it could be because the employer and the SDA have differently applied what is a "regular and systematic casual" within the meaning of the directions. Or there may be other reasons.

Given that 29 names in the SDA petition do not appear on the employers list and the fact of the name discrepancies, it is not possible, without further inquiry into the construction of the petition names and the employers list, to report a definitive reconciliation result.

If the employers list is complete and accurate as at the given date (for example, includes only those persons that were employed in positions which would be covered by the proposed agreement, and not in other positions), then a majority would require 356 names (711 divided by 2 plus 1);

355 petition names (if the SDA names are accurate and all reconciled name discrepancies are included) of 711 represents 49.92%, which is 1 name below a majority; and

384 petition names (if the SDA names are accurate and if all names reconciled) of 711 represents 54.08% which is 28 names beyond a majority."

[96] Subject to matters concerning Employee X[20] (below), I find no reason, and none was advanced at the hearing, to call these administrative conclusions into question. I adopt them as findings of the Commission noting however the assumptions underpinning the reconciliation and the caveats expressed therein. These include that the reconciliation does not deal with objections to the petition numbers (by Eudunda) and to the employers list (by the SDA). Those matters are considered below.

[97] It is necessary to deal with one further issue arising from the 22 April 2024 reconciliation report.

[98] The SDA contend that Employee X (whose identity, by consent, was disclosed to the Eudunda Group to permit its response) should have been a reconciled name and included in the employers list. This name had been excluded by the Eudunda Group from the final employers list submitted to chambers on 18 April 2024 and thus was removed as a reconciled name in the 22 April 2024 reconciliation report.

[99] The Eudunda Group excluded this name because Employee X had resigned from employment in November 2023 and was not working or employed on 15 December 2023, and only resumed employment in February 2024.[21]

[100] However, a roster attached to the statement of Mr Lintvelt[22] and timesheets attached to the fifth statement of Mr Schuller[23] indicate that Employee X worked on 15 and 16 November 2023. Whilst it appears that Employee X, who was a regular casual, resigned during November 2023 and was not re-employed until 2024 the employee worked two days in the relevant period.

[101] In light of this evidence, Employee X should not have been removed from the employers list and should not have been treated as a non-reconciled name in the 22 April 2024 reconciliation report. The report is accordingly adjusted by the addition of one name on both counts.

[102] As a consequence, the number of names in the employers list is 712. The number of reconciled names is 356. The reconciled number represents an exact fifty percent of the denominator.

[103] It is apparent from the reconciliation report of 22 April 2024 as adjusted (above), that the SDA falls one name short of a majority if the number of reconciled petitioners remains at 356 and the employers list remains at 712. This is because fifty per cent represents an exact half, not a majority.

[104] However, the number of petitioners (384 of which 356 reconcile) is contested by the Eudunda Group and the number in the employers list (712) is contested by the SDA.

[105] I deal firstly with the Eudunda Group's challenge to the SDA petitions.

[106] Staleness of physical petitions. Aside from the issue of 'staleness' (below), no challenge is advanced by the Eudunda Group to the use of physical petitions per se to determine whether a majority exists. I have earlier observed that petitions are commonly used to support applications under s 236. They can provide a sound evidentiary basis for the Commission to assess whether majority support exists for bargaining.[24] In this matter, the petitions and the evidence led by the SDA fulfil that purpose. I am satisfied that the description set out in the physical petitions adequately specified the group of employees to be covered by the proposed agreement and that employees were informed of the significance of adding their names to the petition.

[107] However, the Eudunda Group submit that phase 1 petitions should not be relied upon because they were obtained in the first week of September 2023 and are now stale.

[109] The time for the purpose of determining whether a majority exists is the time of the Commission's decision, taking into account all relevant evidence including the most recently available information up to and including that time.[25] Accordingly, evidence relevant to whether a majority exists is not limited to evidence collected solely in the period determined by the Commission under s 237(2)(a)(i). As Deputy President Colman observed in Lovisa (No 1), applications for a majority support determination involve an iterative process where parties may seek to lead additional evidence about the employment status and wishes of various employees.[26]

[110] It is reasonable that petition signatories collected by the SDA in September 2023 be included in the body of evidence used to assess whether a majority exists. The application was filed on 17 November 2023. On 6 March 2024 the SDA sought arbitration. The claim was arbitrated on 22 April 2024. That timeline is not excessive given the complex nature of this matter. Petitions collected during phase 1 are not, in a temporal sense, too remote to the filing of the application, the time determined by the Commission nor the date of arbitration to not be treated as relevant evidence.

[111] I also take into account that the campaign conducted by the SDA was a continuum conducted in three phases. No challenge was made on the ground that persons who signed petitions in the first week of September 2023 were not capable of being continuing employees between 15 November and 15 December 2023. The evidence of Mr Schuller was that casuals employed by the supermarkets are their core employees; indeed Mr Schuller's evidence was that the stores engage up to 90% of their labour needs via these casuals.[27]

[112] Nor is the integrity of the reconciliation compromised by including petitioners from September 2023. The reconciliation report of 22 April 2024 does not include in the reconciled number those persons who signed the petition in September 2023 but were not in employment at the time determined by the Commission (15 November 2023 to 15 December 2023).[28] Thus, it cannot be said that reliance on signatures collected in September 2023 distorts the reconciliation. This is because the reconciled number reconciles petition names only against the employers list and (subject to matters considered below) the employers list only includes persons employed between 15 November and 15 December 2023. As is apparent from the reconciliation report, the names of 29 (now 28) petitioners did not reconcile with the employers list and are not included in the reconciled number (355, now 356). Persons who signed the petition in September 2023 but were no longer employed between 15 November and 15 December 2023 are amongst those 28 persons.

[113] Chain of custody of physical petitions. There are two elements to this submission.

[114] Firstly, the Eudunda Group submit that the physical petitions should not be relied upon because the chain of custody was broken as a result of the SDA leaving physical petition pages with some employees, rather than being securely retained by relevant organisers.

[115] The evidence of the SDA[29] is that in three of the twenty stores a visiting SDA organiser left physical petition pages with three employees (all of whom were SDA members including one delegate) to secure further names in the days that followed the organiser's store visit because the organiser believed that employees who were not rostered on the day the organiser visited might sign the petition.

[116] Whilst the SDA did not call these members or delegates to give evidence of their custody of the petition pages in these periods, I do not consider that reliance on names gathered by SDA members or delegates should be excluded. No rule exists that names need be gathered by an organiser rather than a delegate or member. The evidence of Mr Amin and Mr Matonti was that it was not unusual for the SDA to ask a delegate or member to assist in gathering petition names.[30] Further, given the geographical distance between regional supermarkets and the variety of rostered days and hours worked by casuals, I accept Mr Amin's evidence[31] that it is understandable that an organiser would have only limited time at one regional location and need to travel to another to speak to employees and obtain other signatures. It is also apparent from the evidence of Mr Amin that petition pages left with the three members were subsequently returned to the organiser and uploaded to the SDA portal.

[117] Secondly, the Eudunda Group submit that the physical petitions should not be relied upon because delays occurred between an organiser obtaining signatures and then uploading that data onto the portal, raising questions about whether organisers retained custody of petition pages or, alternatively, left them unsupervised in stores or staff rooms.

[118] Through its cross examination of Mr Amin and analysis of SDA materials[32], the Eudunda Group established that delays occurred in some (but not all) of the petition numbers being uploaded onto the SDA's on-line portal. In some instances those delays were small (one day) whilst other delays were significant (up to eighteen days).

[119] I do not consider that these delays render reliance on those petitions unreliable. Firstly, uploading to the on-line portal was an internal campaign tool used by the SDA to monitor progress. The union's requirement for immediate uploading, and any failure to upload immediately did not mean that petition names had not in fact been obtained. Secondly, whilst I accept the Eudunda Group's submission that late uploading raises a question whether the petition pages remained securely in the possession of an organiser during the delay period, it is conjecture to speculate that petition pages were left unsupervised in stores or staff rooms. It is not safe to draw that inference and I do not make that finding.

[120] I take into account that the SDA could have but did not lead evidence from each organiser, delegate or member with custody or control of the physical petitions. Only one (of the seven) organisers gave evidence and no delegate or member did. I agree with the Eudunda Group that a lacuna exists in the evidence concerning the chain of custody of some of the SDA petitions. However, this gap must be assessed in the context of the SDA evidence as a whole including the geographical breadth and dimension of the SDA campaign and the fact that a large number of physical petition pages were gathered. I also take into account that Mr Matonti and two officers from the SDA's State Office gave evidence including the officer co-ordinating the campaign (Mr Amin). I found the evidence of Mr Amin and Mr Matonti, including with respect to their dealings with other organisers and SDA members, to be measured and plausible.

[121] Considered overall, whilst the evidence establishes some gaps in the chain of custody of the physical petitions, in circumstances where there were 88 separate petition pages in evidence (79 in phase 1, 1 in phase 2 and 8 in phase 3[33]) and these were necessarily collected from twenty disparate regional locations across the state of South Australia over a three month period, and from amongst persons who worked casual hours on a variety of rosters, I am not satisfied that such gaps warrant exclusion of the physical petitions or parts of them from the body of evidence.

[122] Coercion and confusion. The Eudunda Group submit that the evidence supports a finding that some petitioners, particularly young after school casuals, were likely pressured or confused when signing the petition. That confusion was capable of arising, it is said, from the SDA having also sought their registration for the class action proceedings in the Federal Court.

[123] I reject this submission for two reasons. Firstly, there is no reliable evidence before me of coercive conduct or conduct that approaches that description. The material led to this effect from Mr Schuller's second and fourth statements was untested hearsay. I have ruled that reliance on such material, given its prejudicial nature, is inappropriate. Secondly, even if the material led was taken into account, I agree with the SDA submission that what is alleged may simply be an SDA organiser or delegate doing what was expected of them; putting to employees the case for signing a petition in order to trigger collective bargaining rights.

[124] I also reject the submission that somehow employees were confused or capable of being confused by the fact that Federal Court proceedings existed and involved employees being invited to register for the class action. Firstly, I have only limited material before me as to the nature of the Federal Court proceedings or timeframes set by the Court for securing participation in that litigation. Secondly, no evidence was led of confusion on this basis. Thirdly, whilst possible, it is not necessarily the case that employees, even young employees, would be unable to distinguish between a Federal Court class action and a petition for collective bargaining; particularly where they have access to an organiser or delegate to seek advice from.

[125] Unreliability of on-line and text petitions. The Eudunda Group submit that reliance on on-line and text petitions carries inherent risk as to reliability. I note that union petitions used in industrial campaigns have historically been physical documents. However, technology now permits petitions to be created and populated electronically. That this is so does not mean that on-line or text petitions are inherently unreliable or necessarily more unreliable than physical petitions. Each carries integrity risk. It is the management of those risks that is relevant. The use of electronic means (text, on-line or email) to establish an evidentiary base for s 236 applications including (as is the case here) to supplement a physical petition, has been accepted by the Commission in proceedings under s 236.[34]

[126] In the current matter, the evidence of Mr Amin[35] is that the on-line and text petitions were sent to the known details (email and text) of SDA members who had not, by the time of phases 2 and 3, signed the physical petition.

[127] Whilst I accept that, in the abstract, a third party may access the email account of an on-line petitioner and fraudulently register their name, and equally possible for a third party to access the mobile phone of a text petitioner and do likewise, there is no evidence before me that this in fact occurred or was likely to have occurred. Nor is it open, based solely on the inherent nature of those petition formats, to draw such an inference absent some probative evidence to this effect.

[128] Whilst it is possible for electronic petition formats to be manipulated, the evidence does not support a finding that this occurred in the conduct of the SDA campaign. Further, I am comfortably satisfied that the wording of the on-line and text petitions to which employees have answered 'yes' clearly convey that the individuals concerned want to bargain. I consider it appropriate to include the on-line and text petition entries in the total number of petitioners.

[129] Accordingly, I conclude that the number of petition names to be used for the purpose of making a finding as to whether a majority exists is 384. Of these, 356 reconcile to the employers list of 712.

[130] I now deal with the SDA's challenge to the employers list of 711 (now 712) names in the group. The SDA submit that the number of names in the employers list should be reduced for the following reasons.

[131] Regional managers. The SDA submit that the Eudunda Group have impermissibly included regional managers in its list of names. The SDA submit that regional managers, as distinct from store managers, are not covered by the General Retail Award 2020 and thus not in the cohort subject to the proposed enterprise agreement.

[132] The evidence of Mr Schuller[36] was that four persons employed by the Eudunda Group are regional managers.They have responsibility for assisting store managers in a geographic area (especially more inexperienced ones) and report to head office.

[133] I agree that regional managers undertaking such responsibilities as the primary purpose of their employment are likely to be beyond the coverage of the General Retail Award 2020. The Award covers persons classified in Schedule A 'Classification Definitions'.[37] Those classifications extend to Retail Employee Level 8 which includes a "shop manager of a shop with departments or sections". No provision is made in Schedule A for regional managers. It was not seriously disputed by the Eudunda Group that this is so. However, the evidence of Mr Schuller[38] was that each of these four regional managers are also store managers, that store managerial responsibilities are their primary function and that their regional managerial duties (estimated at between one and three days per week) arose out of their experience and competency as continuing store managers. I accept Mr Schuller's evidence.

[134] Applying the well-established principal purpose test to determine award coverage,[39] it follows that each of the four regional managers are likely covered by the Award because store management remains the principal purpose of their employment. It is proper that those four remain included on the employers list. I reject the SDA submission.

[135] Accordingly, no reduction is made to the adjusted employers list (712) on this account.

[136] Seasonal employees. The SDA submit that the Eudunda Group have impermissibly included in its list of names seasonal casuals who did not work in the period 15 November to 15 December 2023. It submits that these persons were simply 'on the books' for the next summer season (January 2024) and Easter season (March 2024).

[137] The evidence of Mr Schuller[40] leads me to find that between ten and twenty seasonal employees in this category are included in the employers list (all from the Kingston and Robe stores). The Eudunda Group submit that they should be included because, whilst they did not work in the relevant period, they had worked at least two seasons, were not persons capable of working in the relevant period given their seasonal availability, and excluding them would be unfair given that, when employed, they are employed under the General Retail Award 2020 and would be covered by the proposed enterprise agreement.

[138] There is some force in the employer submission. However, I do not consider it appropriate to apply a general rule that seasonal employees should be included or excluded in applications under s 236. Whilst no general rule has been established by past decisions of the Commission, it suffices to observe that the Commission has in at least two arbitrated matters excluded seasonal casuals from employer lists.[41]

[139] In the circumstances of this matter and for the following reasons I consider it inappropriate to include seasonal employees in the employers list.

[140] I accept Mr Schuller's evidence that these seasonal employees are on the books because they worked two previous peak seasons and their employer has a reasonable expectation that they would again be offered work at future peak times (around January and Easter each year). As such, they could reasonably be said to be regular and systematic employees within the meaning of the Commission's direction of 7 December 2023. However, they would (if rostered) be rostered for only a limited number of future days or weeks in a year, with their future availability being unknown and totally dependent on the individual. Additionally, it can be safely concluded that each of these persons did not work in the period determined by the Commission for the purposes of this application, were not offered work in that period and were not on the books for the purposes of being offered or accepting work in that period. In short, they were not relevantly "employed" in the period determined by the Commission under s 237(2)(a)(i).

[141] Further, even if it is said that these seasonal casuals were so employed (by virtue of being on the books), it would be inappropriate to include them in the denominator in circumstances where they were not working in the stores during any period of the SDA campaign (phases 1, 2 or 3). By not working in the relevant period, none were present during phases 1, 2 or 3 store visits and thus none were presented with the opportunity to sign physical petitions or speak to the organisers or delegates about doing so. That text and on-line petition formats were available in phases 2 and 3 does not alter this conclusion. Text and on-line petitions were sent electronically to SDA members whereas organisers making store visits were available to speak to employees generally about the campaign.

[142] Given this, it cannot be safely concluded that none of the seasonal casuals would not have, had they been working in the stores at the relevant time, signed the petition. Hence, including those persons in the employers list creates a distorted equilibrium between the denominator used for the purpose of calculating if a majority exists, and the number of persons capable of being petitioners. It inflates the employers list by between ten to twenty names none of which could have become reconciled names unless the seasonal casual happened to come across and sign the petition in their own time.

[143] For these reasons, I consider it appropriate to remove the seasonal employees from the employers list of names. I will reduce the employers list by ten persons on this account, which is the conservative figure, having regard to the evidence of Mr Schuller that the number of seasonal employees included in the employers list was between ten and twenty.

[144] All of these seasonal casuals are unreconciled names. This is because, upon an examination of the unredacted petitions and the evidence, no seasonal employees are (subject to matters below) amongst the petition names to be used as all reconciled petition names are persons who were employed and worked shifts in the supermarkets between 15 November and 15 December 2023. The seasonal employees did not work in this period. They were not expected to be offered work until January 2024 (summer season) or March 2024 (Easter season).

[145] It follows that the the number of reconciled petitioners remains at 356 and the employers list is reduced to 702.

[146] Persons not working in the period. The SDA submit that the employers list includes four persons (other than seasonal casuals) who did not work in the relevant period because they were absent due to authorised absences such as leave without pay, parental leave, workers compensation or long service leave.

[147] The position of regularly employed persons who, but for authorised absences, would have worked in the relevant period poses some difficulty. Further, the state of the evidence on that question is somewhat imprecise. Mr Schuller's evidence[42] was that approximately four regular casuals fell into that category and were included in the employers list; one who was absent due to injury, one who was absent on parental leave, one who was on long service leave and one who had been granted extended leave without pay. The employer included those persons on the employers list because the persons were otherwise regular and systematic casuals and would have worked in the relevant period but for those circumstances.

[148] However, of these four, one (the casual who was absent due to injury[43]) did in fact work in the relevant period. She also signed the text petition. She was included in the reconciliation reports as a reconciled name because she had been absent between July 2023 and November 2023 due to injury but returned in December 2023 and worked a shift on 10 December 2023.[44] Hence, she worked in the relevant period. I make no adjustment to the reconciliation of 22 April 2024 on this account.

[149] Three casuals on the employer's list did not work in the relevant period. Of these, the casual on parental leave signed the petition but was an unreconciled name in the reconciliation report of 22 April 2024 because she had not worked in the relevant period.[45]

[150] Whilst I accept that these three casuals were regular and systematic casuals, each did not work in the relevant period. In accordance with my determination of the "time" for the purposes of s 237(2)(a)(i), and for consistency reasons, I consider it appropriate that all three be removed from the employers list because each did not work in the relevant period. If the employee on parental leave was, contrary to this conclusion, to remain on the employers list doing so would increase the number of reconciled names by one.

[151] It follows that the number of reconciled petitioners remains at 356 and the employers list is reduced by three to 699.

[152] Conclusion as to majority. I make the following findings:

the number of names to be used in the group for the purpose of making a finding as to whether a majority exists is 699 (712 on the adjusted employers list less ten seasonal employees and less three employees who did not otherwise work in the relevant period); and

[153] Accordingly, I find that a majority exists. This is because 356 petitioners from amongst 699 names represents 50.93% of employees in the group. This is seven names beyond a majority.

[154] I note that if, contrary to my conclusion, the ten seasonal employees were included in the employers list (as the Eudunda Group contend) but the three who did not work remain excluded the majority would be two (709 divided by 2 being 354.5, with the number of petitioners remaining at 356).

[155] I further note that if, contrary to my conclusion, the three who did not work and the ten seasonal employees were included in the employers list (as the Eudunda Group contend) there would be a majority of one (712 divided by 2 being 356, with the number of petitioners increasing by one from 356 to 357 because one of the three signed the petition and would become a reconciled name).

[157] The Commission is required to be satisfied that it is reasonable in all the circumstances to make the determination.

[158] Relevant to the issue of reasonableness are the overall circumstances considered in the statutory context.

[159] Further, it matters not in making a majority support determination whether a bargaining agreement will or will not be made, or the level of bargaining ambition on either side.

[160] In this matter, that a majority exists, that the group is fairly chosen and that the employers have refused to bargain are relevant considerations and point in favour of a conclusion of reasonableness. This is particularly so having regard to the objects of Part 2-3 of the FW Act which are to "enable collective bargaining in good faith".[46] One method by which the statutory scheme requires collective bargaining to occur is for the Commission, on application, to make majority support determinations if the statutory prerequisites are met.

[161] However, the Eudunda Group submit that, despite these considerations, it is not reasonable to make a determination.

[162] It is submitted that any majority is so fine and attended with doubt that it is not reasonable to make the determination. I reject this submission. That a majority is fine does not mean no majority exists. A slender majority, as in this matter, is nonetheless a majority for the purpose of s 237. That fact alone does not make a determination unreasonable. I have dealt with the employer submission that doubt exists with respect to the petition numbers. The number of petitioners I have found to exist for the purpose of this matter has been made on that basis. That number is not, having applied the appropriate standard of proof, in doubt.

[163] It is submitted that it is not reasonable to make the determination given the pressure or confusion likely to have existed amongst younger employees. I have dealt with this submission in making a finding about the number of petition names to be used in assessing whether a majority exists. I have rejected this submission.

[164] Finally, it is submitted that it is not reasonable to make the determination because a more reliable method of ascertaining if a majority exists is available (a ballot) and that the SDA thwarted employer attempts to conduct a ballot.

[165] The evidence of Mr Schuller indicates that the Eudunda Group, at a late stage of these proceedings, sought to conduct a ballot of employees as an alternate method of testing whether a majority existed. The proposed ballot was met with objection by the SDA at both a workplace level and in the Commission. It would appear from the evidence that the balloting process commenced by the Eudunda Group was aborted or at least incomplete.

[166] I do not consider the events surrounding the incomplete employer ballot to be a ground for not making the determination.

Shop, Distributive and Allied Employees Association v Eudunda Farmers Ltd and Others [2024] FWC 1340

At a glance

Court

Decision date

Source

Judgment (258 paragraphs)

Shop, Distributive and Allied Employees Association v Eudunda Farmers Ltd and Others [2024] FWC 1340 (22 May 2024)

Parties

Legislation Cited (3)