Fair Work Act 2009

s.236 - Majority support determination

[1] The Transport Workers' Union of Australia ("the TWU") has made application under s.236 of the Fair Work Act 2009 (Cth) ("the Act") for a majority support determination. It concerns the employees of MWAV Pty Ltd T/A Man With A Van ("MWAV") who are employed as drivers/removalists at its premises in Abbotsford in Victoria.

[2] The application seeks a majority support determination confirming that a majority of the employees intended to be covered by a proposed enterprise agreement want to bargain with the Employer. The application is opposed by MWAV. The matter was initially dealt with in conference to determine whether an agreed resolution could be achieved. However, this was not successful and the application proceeded to be dealt with by way of arbitration.

[3] The proceedings commenced on 10 October 2018, but were then adjourned until 16 October to enable MWAV to respond. Mr J. Cooney appeared on behalf of the TWU. Mr M. Ritchie and Mr N. Ganeson from Workplace Wizards were granted leave to appear on behalf of MWAV under s.596(2)(a) of the Act as the matter involved a degree of complexity and their involvement might enable it to be dealt with more efficiently.

[4] It is also noted at the outset that the TWU had a petition it wished to submit to the Fair Work Commission ("the Commission") on a confidential basis in support of its submission that a majority of the relevant employees wanted to have the TWU enter into negotiations on their behalf with MWAV regarding the making of an enterprise agreement. MWAV indicated in response that it was prepared to provide the Commission with a full list of its employees so that the Commission could compare the two lists. It was agreed that this would be done and the Commission would then provide advice to the parties about the outcome of that comparison.

[5] The petition was on the letterhead of the Victorian/Tasmanian Branch of the TWU. It stated at the outset, "Petition to Man With A Van for Enterprise Agreement." This was followed by two boxes which stated:

• "Overview - The majority of Workers at Man With A Van desire to have a workplace Enterprise Agreement in place with the company.

• What we want - We the undersigned call on Man with A Van to engage with the Workers at Man With A Van as well as the Transport Workers' Union as our bargaining representative to negotiate an Enterprise Agreement."[1]

[6] After completing the comparison between the names on the petition and the names on the full list of employees provided by MWAV the Commission provided an email to both parties after the conclusion of the proceedings on 10 October stating:

"The Commission has completed a comparison of the names contained in the petition handed up by the TWU in the proceedings this morning, and the full list of employees handed up on behalf of Man with a Van.

That review indicates that 88 of the employees who signed the petition also appear on the names included on the list provided by the business. This would appear to indicate, prima facie, that a majority of the relevant employees employed by the business support the petition

By way of clarification we also indicate that 17 of the names in the petition, out of the total number of 88, are not expressed in identical terms to the names contained in the list provided by Man with a Van. (For example, the employee's Christian name might have been abbreviated on one list and not on the other.) However, the Commission is satisfied that despite these minor discrepancies it is reasonable to assume that they refer to the same person in each case.

I hope this clarifies the situation in regard to the respective lists handed up in the proceedings this morning. Please advise if either of you require any further clarification in advance of the proceedings next week."[2]

[7] The relevant legislative provisions are contained in ss. 236 and 237 of the Act. Section 236 sets out what must be contained in any application for a majority support determination. It 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."[3]

[8] Section 237 deals what the Commission must be satisfied about before a Determination is made. It states:

"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."[4]

[9] Mr Goddard is employed by the TWU as an Organiser and has been assigned by the Union to organise members employed by MWAV. On 23 July 2018 he met with some of the employees of MWAV to discuss various issues, including the possibility of bargaining for an enterprise agreement with MWAV. He then met with MWAV management on the same day to discuss the possibility of the TWU acting as a bargaining representative for its members at the site in regard to a new enterprise agreement.

[10] He subsequently received a letter from one of the Directors, Mr Tim Bishop, dated 27 August, which indicated in part that MWAV ".... have decided not to agree to bargain for a new Enterprise Bargaining Agreement and remain on current arrangements."[5] Mr Goddard responded by email on 3 September indicating that the TWU believed that a majority of the employees at MWAV wanted to bargain for an enterprise agreement and the Union would now file an application for a majority support determination with the Commission.[6]

[11] Mr Goddard continued to indicate that he then helped to organise a petition of employees that was intended to demonstrate support for the establishment of an enterprise agreement with MWAV. The wording of the petition stated at the outset, "We the undersigned call on Man With A Van to engage with the Workers at Man With A Van as well as the Transport Workers' Union as our bargaining representative to negotiate an Enterprise Agreement."[7] Ninety-four signatures were subsequently obtained in support of the petition.

[12] Mr Goddard indicated in conclusion that he believed that a majority of the relevant employees wanted to bargain for an enterprise agreement with MWAV, with the TWU representing them as their bargaining representative. He also understood that MWAV continued to be opposed in being involved in this process.

[13] Mr Halliburton has been employed by MWAV for 4 years and has been elected as a TWU delegate at the worksite by other employees. He indicated that employees have been concerned that a number of issues of concern remain unresolved, despite assurances from MWAV that these issues would be addressed. It had accordingly been decided, in conjunction with the TWU, that an approach would be made to the MWAV management to negotiate an enterprise agreement with the TWU acting as a bargaining representative. However, the business had refused to get involved in this process.

[14] Mr Halliburton was then involved in getting employees to sign the petition in support of negotiations for an enterprise agreement. As part of this process he left a copy of the petition in his unlocked vehicle in the carpark at MWAV and advised employees who might want to sign the petition where it could be located. He rejected any suggestion in cross examination that this process meant the petition could have been signed by employees who were not actually employed by MWAV, and it was instead a process designed to enable employees to elect whether to sign the petition without being pressured to do so.

[15] He also indicated in cross examination that a meeting of around 50 employees had previously taken place at his home to discuss the option of enterprise bargaining, and had considered some other enterprise agreements negotiated in the transport industry during the course of those discussions. He also indicated that three other employees had been involved in encouraging other employees to sign the petition.

[16] He also indicated in re-examination that he believed the lack of engagement by many employees in a subsequent poll carried out by MWAV was a deliberate act in circumstances where they believed the earlier employee petition had already provided an indication of the employees' views.

[17] The TWU indicated in its submission that the Commission must be satisfied that a majority of employees want to bargain for an enterprise agreement with their employer before it can make a majority support determination. In addition, the Commission has a broad discretion in determining how it comes to this view.

[18] It continues to submit that it is well established that a petition of employees can be a valid means for this purpose, and there is no evidence in the present matter that the employees were coerced or acted under duress when they made the decision to sign the petition. The evidence also indicates that there is only one employee who subsequently sent an email to the business indicating they had changed their view, and no longer supported the petition.

[19] The TWU submits that its members at MWAV are frustrated by the delays that have occurred to date in commencing negotiations for an enterprise agreement, and both the petition and the employer poll confirm majority support for the TWU acting as a bargaining representative in such negotiations. There was accordingly no requirement for the additional process now being proposed by MWAV in order to confirm the views of employees. The Commission should instead make the determination contained in the draft provided by the Union.

[20] Mr Bishop is the founder of MWAV and a Co-Director of the business. After hearing that employees had compiled a petition in regard to bargaining for an enterprise agreement MWAV decided to conduct its own staff poll to ascertain whether a genuine majority supported the negotiation of an enterprise agreement with the TWU acting as their bargaining representative.

[21] An email was subsequently sent to all relevant employees setting out the details of the poll. The results that were received indicated that 81 employees out of a total number of 148 voted, with 42 employees, or 51.9% of those that participated, voting in favour of "I would like an Enterprise Bargaining Agreement, negotiated by the Transport Worker's Union on my behalf and Man With A Van."[8] 29 employees, or 35.8% of those that participated, voted in favour of "I would like a formal cooperative agreement between Man With A Van staff and management, without third party involvement."[9] 10 employees, or 12.3% of those that participated, voted in favour of "I don't know, and/or would like more information prior to engaging in any formal process."[10]

[22] 67 employees, or 45.2% of the total number, chose not to participate in the poll and Mr Bishop indicated that management accordingly considered that they "... did not agree with any of the above provided options and would like either further information or are happy with the current arrangements."[11] However, he also indicated in cross examination that this was the view of management, rather than the actual views of those employees who had not participated in the poll, and he was not actually aware of the motivation of those who decided not to take part.

[23] He also indicated in his witness statement that in his discussions with employees since 27 September he believed that support for the earlier employee petition was dropping each week, although he also indicated in cross examination that only two employees had talked to him about this.

[24] He indicated in conclusion that he believed that certainty was required from a majority of the employees about the involvement of the TWU in the bargaining process prior to it commencing, and he believed that at this time many employees did not fully understand the process and were unsure about what was involved and what it represented.

[25] Mr Windsor is the General Manager of MWAV and has been in this role since 2010. He acknowledged in his witness statement that the TWU is able to be a bargaining representative on behalf of the employees, but at this time management was not convinced that a true majority of the employees actually wanted an enterprise agreement negotiated by the TWU on their behalf. He was also not convinced that the TWU delegates had properly explained the process involved to employees, or that they understood and were aware of what it constituted.

[26] He continued to state, "I have concerns around the unsatisfactory nature of the pressure inherent in an 'open' petition where employees are encouraged to 'join the herd' and sign a petition alongside other workmates' names, rather than a closed poll where staff are able to vote the way they wish, in anonymity."[12] He also indicated that in recent staff meetings employees have indicated that they are unclear about the impact of an enterprise agreement, and what other options might be open to them.

[27] He was also provided with a copy in his examination in chief of an email dated 20 September 2018, which he confirmed had been sent to him by one of the employees at MWAV. It was referred to on the basis that the employee's name be kept confidential. It stated:

Something came up for me the other day that I needed to share with you.

When you asked me if I filled out the poll I was inauthentic with you because I was scared it would damage the friendship and I was scared to say the truth and that was that I hadn't filled it out as we (union members) had agreed not to.

I lied to you and I couldn't be straight with you, destroying the friendly workplace I think we all are aiming for.

I would like to create that place through honesty and promise to uphold integrity and be straight with you.

[28] He stated in conclusion, "We submit that this demonstrates that the majority obtained by TWU, after having gained further information about an EBA as well as other potential options, have simply changed their minds on the process when allowed to vote anonymously."[14] However, he also indicated in cross examination that only one complaint had been made to him by an employee about the petition. That person had indicated that they had signed the petition but were no longer supportive of what was being advocated.

[29] MWAV acknowledged in its submissions that a petition can, in some circumstances, be considered to be a reasonable method of ascertaining the views of employees. However, it submits that the present circumstances involve a shifting sands landscape, and there is not sufficient evidence available to enable the Commission to conclude that the signatures on the petition were not obtained by means involving coercion and/or duress and/or intimidation, or that the outcome continued to represent the current views of the majority of employees.

[30] It also submits that the process involving Mr Halliburton leaving a copy of the petition unsupervised in his unlocked car in the car park at MWAV meant that it was possible for the process to have been subverted by individuals who were not employees of MWAV.

[31] MWAV also relies on the decision of Commissioner Booth in "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Veolia Water Operations Pty Ltd ("Veolia Water".)[15] It notes in that matter that an application for a majority support determination by the AMWU was opposed by Veolia Water on the basis that the Commission could not be satisfied, on the basis of the material before it, that a majority of the employees wish to bargain for an enterprise agreement. It continued to make reference to extracts from Veolia Water's submissions and evidence at paragraphs [25] to [29] of the decision.

[32] In summary, Veolia Water acknowledged in its submissions that a petition may be accepted as an appropriate means of establishing whether a majority view exists, however, the Commission must also be positively satisfied that the majority of employees wish to bargain for an enterprise agreement. It continued to submit that to establish this degree of satisfaction the Commission cannot simply accept a petition at face value, but must also consider the evidence about how it was administered and came to be signed. Veolia Water continued to submit that there was no positive evidence as to whether the persons named in the petition actually signed the document, and no evidence of who actually had custody of the petition between a period from 10 December 2014 and 8 January 2015. There was also no evidence of whether it was signed of the employees' own free will. MWAV submits that similar circumstances exist in the present matter. It concluded by referring to the following extract from the decision of Commissioner Booth at [44]:

"In my view, to establish the requisite satisfaction it is necessary to establish, on the evidence before the Commission, in this case that the petitions were at all times under the custody and control of responsible persons whether they be organisers or delegates. That has not been shown on the evidence."[16]

[33] MWAV submits, in conclusion, that the process proposed in its draft determination would enable a platform to be put in place that provided certainty about the views of a majority of its employees. The process would provide for the Commission to sign off on a document prepared by each party outlining their respective positions, with an independent ballot of all employees then being held over a 7 day a period. The outcome of that ballot would then be made known to the Commission, with it then being in a position to make any further determinations or other orders considered necessary.

[34] In terms of the present application the TWU clearly wants to be able to have the ability to represent its members in negotiations for a new enterprise agreement. It can be presumed in response that MWAV would prefer to continue to be able to deal directly with its employees, without the involvement of a third party. However, it indicated during the course of the proceedings that it is prepared to be involved in negotiations with the TWU for an enterprise agreement providing it is satisfied that this is what a majority of its employees want.

[35] It is also noted that the making of a majority support determination does not of itself require an employer to bargain, or determine the nature and scope of any agreement that might subsequently be concluded. However, it does create the potential for further applications to be made in regard to bargaining orders if, for example, the good faith bargaining requirements in the Act are not being complied with.

[36] However, at this point the Commission is simply required to deal with the application in the context of the requirements contained in s.237 of the Act, which have been set out at an earlier point in this decision. It is also clear from previous authorities that s.237 gives a broad discretion to the Commission to determine whether majority support exists in the workforce in deciding whether to make a determination. It is also clear from those authorities that a petition signed by employees can be an appropriate means of evaluating and establishing the intention of employees. This is not in contest.

[37] However, it is also clear that there may be circumstances in which the Commission concludes that a petition cannot be relied upon, and an alternate means of establishing the views of the employees needs to be found. In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Kinkaid Pty Ltd T/A Cadillac Printing[17] SDP O'Callaghan concluded at [13]:

"It is conceivable that there may be circumstances where a petition could not be relied upon as an appropriate device to determine majority support for bargaining. If, for instance, there was some evidence that the petition had been falsely derived or that the signatures had been achieved by duress, an alternative means of establishing employee views would need to be considered."[18]

[38] However, in that matter SDP O'Callaghan also continued to note at [14]:

"In this case, despite the Cadillac concerns, there is no evidence which discredits the standing of the petition."[19]

[39] In Veolia Water, being the decision referred to and relied upon by MWAV, Commissioner Booth was not prepared to accept the evidence of a petition of employees because of her concerns about whether "...the petitions were at all times under the custody and control of responsible persons whether they be organisers or delegates. That has not been shown on the evidence."[20]

[40] In The Australian Workers' Union v Bluescope Steel Limited T/A Bluescope Lysaght[21] Commissioner Harrison concluded at [12]:

"I have considered the decisions of the single members so referred. As I stated during these proceedings, each application for a determination stands on its own. There can be circumstances where for a variety of reasons a secret ballot is the appropriate course to ascertain the views of the employees or where a petition or other method could be found to be an appropriate method to gauge the employees' wishes."[22]

[41] It is also noted that in The Australian Workers' Union[23] Deputy President Sams was prepared to accept a petition in circumstances where he found that:

"The petition signed by a majority of the employees ([7] above) is clear and unambiguous. There is no evidence that the petition is anything but a genuine reflection of the employees' wishes. There is no evidence that the employees were pressured or under duress to sign the petition."[24]

[42] It is evident, in summary, that the Commission is able to accept a signed employee petition as evidence of the views of the relevant employees. However, this will depend upon all the circumstances involved in any particular matter. I turn to deal with the circumstances involved in this matter.

[43] The evidence of Mr Halliburton indicates that the signatures on the petition appear to have been obtained in two different ways, and that these efforts were coordinated by three employees who were acknowledged by other employees to be TWU delegates, or were at least acting as representatives of the Union in the workplace. Mr Halliburton, firstly, made it known to employees that a copy of the petition had been left in his unlocked car in the carpark at MWAV's Abbotsford worksite, and was available to be signed by any employee who wished to support the petition. It is understood that Mr Halliburton adopted this rather unusual course on the basis that it gave employees the opportunity to sign the petition without appearing to have been 'stood over' or pressured by anyone else to do so. It also appears that other signatures were obtained as a consequence of the other employee delegates approaching employees and asking them whether they wish to sign the petition.

[44] It is also noted that there is no evidence indicating that any of the signatures on the petition were obtained as a consequence of any coercion or duress directed at any of the individual signatories. There is also no evidence indicating that the petition was signed by any individuals who were not employees of MWAV when it was left in Mr Halliburton's unlocked car in the carpark at the Abbotsford worksite, despite the submissions made about the potential for this to have occurred.

[45] The confidential comparison carried out by the Commission, based on the documents provided by the parties, also indicates that a clear majority of the relevant employees employed by MWAV at the time were in support of what the petition was advocating being:

• "The majority of Workers at Man With A Van desire to have a workplace Enterprise Agreement in place with the company.

• We the undersigned call on Man with A Van to engage with the Workers at Man With A Van as well as the Transport Workers' Union as our bargaining representative to negotiate an Enterprise Agreement."[25]

[46] The available evidence also indicates that only three of the employees who signed the petition have since expressed any reservations about having done so. One of those employees subsequently sent an email to Mr Windsor. The evidence of Mr Bishop also indicated that another two employees had since approached him and expressed some regret about signing the petition.

[47] The poll that was conducted by MWAV is also of some significance, although it is acknowledged that it can be viewed and interpreted in different ways, as each party has not surprisingly sought to do in this case. The poll was apparently conducted over a period from 12 September until 27 September, and the results attached to Mr Bishop's witness statement indicate that 81 responses were received out of a possible 148 employees who were entitled to participate. The results of the poll have already been set out at an earlier point in this decision but, in summary, of those who participated a majority (51.9%) indicated their support for an enterprise agreement negotiated on their behalf by the TWU. A further 35.8% of the participants indicated their support for an Agreement negotiated without the involvement of a third party, while the remainder (12.3%) wanted more information before committing to "... engaging in any formal process."[26]

[48] At one level the outcome of the poll can be said to again confirm that a majority of the employees at MWAV want the TWU to be involved in enterprise bargaining negotiations on their behalf. This could be interpreted as being an outcome that is consistent with the views expressed in the petition. However, it is also acknowledged that it only involves a majority of those who actually participated in the poll, rather than a majority of all relevant employees.

[49] The MWAV, not surprisingly, takes issue with the number of employees who elected not to participate in the poll, and submits that the views of those employees remains unclear, reinforcing the need for a further process to be put in place to provide confirmation of their views.

[50] By contrast Mr Halliburton suggested in his evidence that a large number of employees elected not to participate in the poll because they were of the view that the earlier petition had already provided confirmation of the views of the majority of employees. This view appears to have been confirmed by the content of the email, dated 20 September, that was received by Mr Windsor from one of MWAV's employees. However, as MWAV emphasised in its submissions Mr Halliburton's evidence was hearsay only, and the Commission has no real evidence before it as to why only 81 employees out of a possible 148 decided to participate in the poll.

[51] As indicated, MWAV also relies in part on the decision in Veolia Water in support of its submissions, and in particular on the extract set out at [44] where Commissioner Booth concluded:

"In my view, to establish the requisite satisfaction it is necessary to establish, on the evidence before the Commission, in this case that the petitions were at all times under the custody and control of responsible persons whether they be organisers or delegates. That has not been shown on the evidence."[27]

[52] However, the circumstances in that matter were significantly different from those in the present matter in at least one particular respect. The evidence in Veolia Water indicates that the Organiser left the petition with the employees on 6 December 2014 and then collected it on 8 January 2015, almost 5 weeks later. During that time it was signed by some employees at the site where the petition had been left, but it was also signed by employees at another company site, 180 kilometres away, which the Organiser had never visited. This period of 5 weeks in which the petition was simply left with a group of employees, without any direct control or supervision by the Organiser, is distinctly different from the circumstances in the present matter where the petition was left for only a very brief period in the unlocked vehicle of one of the Union delegates. The evidence indicates that this was done to try and enable employees to decide whether to sign the petition without any suggestion that they were being coerced or forced to sign it as a consequence of some pressure being imposed by the delegate. However, regardless of these considerations I am not satisfied that the same issues about the custody and control of the petition exist in the present matter, when compared to the circumstances in Veolia Water and the length of time that the petition was left unattended in that case.

[53] In summary, I have had particular regard to the following circumstances in coming to a decision in this matter. Firstly, I am satisfied that the petition that has been provided to the Commission provides, prima facie, a clear and unambiguous indication of the views at the time of the majority of the relevant employees at MWAV, based on the comparison carried out by the Commission with the full list of employees provided to it by MWAV.

[54] Secondly, despite the submissions made by MWAV about the possibility of coercion or duress being used to get employees to sign the petition there is absolutely no evidence before the Commission in these proceedings to suggest that this occurred. In addition, despite the submissions made about the possibility of the petition being signed by individuals who were not actually employees of MWAV when it was left for a period of time in Mr Halliburton's unlocked car, there is again absolutely no evidence to suggest this occurred. This is not to imply any criticism of MWAV for raising these potential possibilities. However, I am not satisfied that in the absence of any evidence about such matters that the Commission is required to 'chase every rabbit down every burrow' in order to satisfy itself, and to disregard what otherwise appears from the petition to be an unambiguous indication of the views of a clear majority of the employees.

[55] Thirdly, despite the submissions made by MWAV about there having been a shift in thinking among employees since the petition was signed, the evidence again points to only three employees having expressed any indication of this, and if given the opportunity again they would not have signed the petition. This again does not provide sufficient evidence to point to either the process of obtaining the petition being flawed, or such a significant shift in thinking having occurred to now require some new procedure to be put in place in order to again obtain the views of the employees.

[56] As indicated, it has been established that in appropriate circumstances a petition of employees can be a legitimate means to obtain the views of the majority. I am satisfied for the reasons indicated above that this is the case in the present matter.

[57] I am also satisfied that the present application has been made by an organisation that is entitled to be a bargaining representative of the employees who would be covered by a proposed enterprise agreement at MWAV. As required by s.237(2) of the Act I am also satisfied that a majority of the employees who are currently employed by MWAV want to bargain for an enterprise agreement, as indicated by the petition that has been tabled in these proceedings, and MWAV has not yet agreed to bargain or initiated bargaining. I am also satisfied that the group of employees who will be covered by the agreement are fairly chosen, being the employees who are employed by MWAV as drivers/removalists. I am also satisfied that it is reasonable in all the circumstances to make the determination sought for the reasons indicated above. The determination is accordingly issued in conjunction with this decision and comes into force from the date of this decision.

M Ritchie and N Ganeson on behalf of the Respondent

[1] Petition submitted by the TWU to the Commission.

[2] Email from the Commission to parties, dated 10 October 2018.

[3] Fair Work Act 2009 (Cth) s 236.

[4] Fair Work Act 2009 (Cth) s 237.

[15] [2015] FWC 2561.

[17] [2009] FWA 1123.

[21] [2010] FWA 874.

[23] [2012] FWA 8424.

[25] Petition submitted by the TWU to the Commission.

[27] [2015] FWC 2561, [44].

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