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[82]
[2021] FWC 2495
General information, not legal advice.
Fair Work Commission
2021-05-05
Original judgment source is linked above.
s.236 - Majority support determination
Suez Recycling and Recovery (Perth) Pty Ltd; Suez Recycling & Recovery Pty Ltd T/A Suez
[1] My Determination[1] in this matter was issued on 28 March 2021. I now provide my detailed reasons for this decision.
[2] On 30 March 2021, the Transport Workers' Union of Australia (WA Branch) (TWU) made an application for a majority support order (the Application) under s.236 of the Fair Work Act 2009 (the Act) to cover employees of Suez Recycling and Recovery (Perth) Pty Ltd (SUEZ or the Respondent) who work at the Suez Recycling and Recovery site in Bibra Lake, Western Australia and who are employed in municipal waste collection work and are not covered by any other enterprise agreement.[2].
[3] The matter was allocated to my Chambers on 1 April 2021.
[4] A conference was held on 19 April 2021. The Application was opposed by the Respondent. On the same day, Directions were issued for the filing of material.
[5] A digital court book containing the material filed was distributed to the parties prior to the Hearing. The Hearing was conducted by teleconference on 23 April 2021.
[6] The TWU was represented by Mr Dziecol (Senior Legal/Industrial Officer), Mr Hardy (of counsel) represented the Respondent. Permission was granted to the Respondent to be represented pursuant to s.596 on the grounds of complexity and efficiency.
[7] At the Hearing the TWU sought to vary the Application such that any order granted would cover employees based at the Bibra Lakes and Welshpool depots. The Respondent did not oppose the variation of the Application, and I amended the Application using my powers under s.586 of the Act.
[8] The parties were advised that I proposed to receive all of the material contained in the court book noting that some of the material was hearsay and that I would afford weight as appropriate. Both parties consented to this approach.
[10] In November and early December 2020 Mr John Robinson and Mr Matthew Winwood (who are Drivers employed by SUEZ) approached Drivers and obtained signatures supporting the commencement of bargaining on a petition.
[11] The petition was forwarded to Mr Ken Cowl (SUEZ Collections Manager WA) on 8 December 2020 by Mr John Cutrali (TWU Organiser, who has since left the Union).
[12] Mr Cowl acknowledged receipt and undertook to respond by 14 December 2020.
[13] On 14 December Mr Cowl corresponded with the TWU and advised that there were aspects he wished to discuss, and a meeting would be held in January 2021.
[14] It appears that a meeting occurred in the week preceding Australia Day 2021. On 27 January 2021, Mr Cowl advised Mr Glen Barron (TWU Organiser) that he was happy to discuss the current workforce conditions, that he would put a Committee together, and that he would welcome the TWU's participation.
[15] Mr Barron responded that day and nominated Mr Robinson and Mr Winwood as TWU's representatives.
[16] On 24 February 2021 Mr Cowl advised the TWU (in essence) that SUEZ did not accept the petition and that it would meet with Drivers.
[17] On 12 April 2021, SUEZ conducted a ballot of its employees, which it submits is evidence that a majority of its employees do not want to bargain.
[20] The relevant provisions of the Act are as follows.
"s. 236 Majority support determinations
(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.
(b) the employees who will be covered by the agreement.
s.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
(a) a majority of the employees:
(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.
(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."
[21] There is no dispute that the Respondent had not yet agreed to bargain or had initiated bargaining for the Agreement.
[22] The principal issues in dispute are as follows:
What is the appropriate time at which the support is measured? [s.237(2)(a)(i)]
[24] SUEZ contend that the time at which majority support is measured should be the date of the second, SUEZ-conducted ballot. The TWU contend the date should be the date the TWU petition was submitted. I prefer the TWU approach for the following reasons.
[25] The TWU petition including the names and signatures of the employees in support was submitted on 8 December 2021, to SUEZ. It appears that the TWU organiser hoped that SUEZ would be persuaded to bargain as a result, obviating the need for a formal application to be made. After the petition was provided, there were requests by SUEZ for further time to consider its position and time to participate in a meeting with the TWU, after which SUEZ conveyed the impression that a Committee could be set up to examine conditions of employment (noting that this commitment falls short of a formal agreement to bargain).
[26] Whilst I am aware that a prior bargaining application was made by the TWU, listed by Deputy President Beaumont, and subsequently discontinued - I am not aware of the details of this application or its withdrawal.
[27] I am not persuaded that the signatures on the TWU petition were improperly obtained by either Mr Robinson or Mr Winwood.
[28] Mr Robinson was an impressive witness who gave his evidence freely and made concessions even where against his interest. I did not form any impression that Mr Robinson forced employees to sign the petition. I prefer his evidence where it conflicts with that given by the Drivers.
[29] In my view the TWU acted promptly in respect of the petition provided to SUEZ on 8 December 2020 and has continued to pursue its desire to bargain with SUEZ for an agreement.
[30] The subsequent conduct of a ballot by SUEZ (of which I will make further comment) does not persuade me to delay the time at which the majority support is to be determined.
[31] I find that the appropriate time referred to in s.237(2)(a)(i) is 8 December 2021.
Was the group of employees fairly chosen? [(s237(2)(c); s.237(3A)]
[32] The amended TWU Application proposes that the group consists of Drivers who predominantly perform residential and some commercial bin collection work and who are based at the Bibra Lake and Welshpool depots and are not covered by any other enterprise agreement.
[33] SUEZ contends that the group was not fairly chosen as result of the exclusion of the Gnangara depot.
[34] There is no dispute that all of these depots are geographically distinct.
[35] I am not persuaded by the evidence that the three depots are so operationally intertwined such that the proposed group is not fairly chosen.
[36] I note that SUEZ has an agreement[14] in place to cover "Waste Collection Employees and Workshop Employees of SUEZ Recycling & Recovery Pty Ltd employed in the Perth Service Centre (116 Kurnall Road, Welshpool) and Busselton Service Centre (13B Cook Street, Busselton)". I note that this agreement excludes municipal waste collections in certain circumstances.
[37] The evidence from Mr Ellefsen (ignoring the hearsay references) does not persuade me that the group has not been fairly chosen.
[38] In any event SUEZ is free to bargain in relation to scope or make a scope application once bargaining commences.
[39] I find that the group of has been fairly chosen taking into account the matters mentioned in s.236(3A) of the Act.
Did a majority of employees who were employed as at 8 December 2020 and will be covered by the agreement, want to bargain? [s.237(2)(a)]
[40] I have compared the list of names on the TWU petition to the confidential list supplied by SUEZ. There are 27 names which appear on both lists. I have excluded Mr Sturmer and Mr Burnett. Mr Cowl advised that the total number of eligible employees at Bibra Lakes and Welshpool on 8 December 2020 was 46. On that basis, there exists a majority of employees who would be covered by the Agreement who support bargaining.
[41] SUEZ adduced evidence from a number of Drivers which tended to suggest that they signed the TWU petition under 'duress' as a result of them being asked on multiple times to sign the petition. In addition, some of the Drivers suggested that they either did not understand the petition or had changed their mind since signing it. As mentioned earlier I have preferred the evidence of Mr Robinson as to the manner in which the signatures on the petition were obtained. I note that none of the Drivers made representations to the TWU about misunderstanding the nature of the petition or withdrawing their support prior to the Hearing.
[42] I am concerned about the way in which the Drivers statements tendered to the Commission were prepared. It appears that the only portion of evidence proffered by each of the Drivers was the portion in italics. It then appears that the person who drafted the statements (which are remarkably similar) inserted the remaining paragraphs, including the one where the observations in italics are described as 'duress.' One witness was honest enough to tell the Respondent's counsel in re-examination that he had not adopted that portion of the statement because he was dyslexic. Two of the drivers asserted that they had drafted the statement themselves. Part of my assessment of the statements relies on credit. I have treated the statements with caution. I place little weight on the characterisations of 'duress' which are not borne about by the facts.
[43] I do not accept that the TWU actions in approaching SUEZ Drivers (in some cases on multiple occasions over separate visits) can properly be described as duress. In my view the approach of the TWU was less aggressive than that adopted by current day charity collectors in public places.
[44] I do not accept the suggestion that the Drivers who gave evidence did not understand the intention of the petition. It was clearly stated on the document, if they chose not to read it before signing it - then that is a matter for them.
[45] I note that some Drivers now seek to withdraw their support. I do not believe this is a basis to reject their prior signature on the petition, which indicated support on the 8 December 2020, or in the weeks prior. At least one of the withdrawals of support appears to have been based on further information that had been provided, and relies on an assumption of the outcome of Agreement negotiations.
[46] I am satisfied that on 8 December 2020, a majority of Drivers who would be covered by the Agreement wanted to bargain.
Is it reasonable in all the circumstances to make the determination sought?
[47] I have considered whether the Respondent's ballot conducted in April should weigh against relying on the TWU's petition. I have grave concerns about the reliability of the SUEZ ballot. Mr Tomkinson referred to a script he used to communicate with Drivers before the ballot. [15]
[48] The script informs Drivers who were about to cast a ballot that:
"Recent feedback from the yard has indicated that a) there is not much of an appetite to commence bargaining for an EA; and b) the petition was signed just to have requests to sign it cease."
[49] In my view this statement made by the Respondent to all persons who were to vote at the ballot, suggests a negative answer to the voter about whether bargaining for an Agreement should commence. It had the unfortunate effect of destroying the legitimacy of the ballot that followed.
[50] The fact that a number of employees who supported the petition have left post 8 December 2020 does not persuade me to discount their support as at 8 December 2020.
[51] All things considered I determine that it is reasonable to make the determination sought.
[14] SUEZ PERTH & BUSSELTON COLLECTIONS & WORKSHOP AGREEMENT 2020
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Transport Workers' Union of Australia
Suez Recycling and Recovery