[2019] FWC 2571
The attached document replaces the document previously issued with the above code on
16 April 2019.
Paragraph [61] has been amended to include footnote 27.
Marcus Topp
Associate to Deputy President Colman
Dated 17 April 2019
| [2019] FWC 2571 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.236—Majority support determination
National Union of Workers
v
Lovisa Pty Limited
(B2018/698)
DEPUTY PRESIDENT COLMAN |
MELBOURNE, 16 APRIL 2019 |
Application for a majority support determination – whether majority wishes to bargain – time determined by the Commission – which casuals are employed at this time – method of establishing majority
[1] This decision concerns an application by the National Union of Workers (NUW) under s 236 of the Fair Work Act 2009 (Act) for a majority support determination. The NUW contends that a majority of employees who would be covered by a proposed agreement want to bargain with their employer, Lovisa Pty Ltd (Lovisa). The employment of the employees in question is covered by the Storage Services and Wholesale Award 2010 (Award). The proposed agreement would apply to employees who perform picking, packing, receipt and dispatch work covered by the Award at the Lovisa distribution centre at Alfred Street in Blackburn, Victoria. The company disputes that a majority of employees want to bargain and opposes the application.
[2] This matter has a lengthier history than many other applications for majority support determinations. The application was filed on 9 August 2018, accompanied by redacted petitions of employees on which the union sought to rely. On 4 September 2018, I conducted a telephone mention and issued directions that the parties file materials in support of their positions. As is common in matters of this kind, I directed the NUW to file in the Commission un-redacted copies of its petitions, and directed the company to file a list of employees who performed work that would be covered by the proposed agreement, indicating job titles, and to serve on the union a redacted copy of this list. The matter was listed for hearing on 18 October 2018.
[3] The un-redacted petitions filed in the Commission comprised five pro forma sheets, headed ‘Petition in support of bargaining for an enterprise agreement’ followed by a statement that ‘the undersigned employees … want to bargain with the company for an enterprise agreement’. Forty-seven handwritten names, signatures and dates appeared on the five sheets.
[4] The list of employees submitted by the company on 11 September 2018 set out employees grouped by reference to permanent or casual employment status. The job title of all of the employees was ‘warehouse picker packer’. There were 119 employees on the list.
[5] On 25 September 2018, the NUW filed in the Commission a further un-redacted petition, on which appeared a further 14 names, signatures and dates. A redacted copy was provided to the company. Submissions filed by the union on the same date stated that a total of 61 employees had signed a petition, and that a further four employees had indicated their support for bargaining through text messages sent to the union’s organiser. The NUW’s submission stated that 65 employees had now expressed their support for bargaining, that the other requirements for the making of a determination were satisfied, and that the Commission should make the determination.
[6] The company’s submissions, filed on 9 October 2018, contended that the Commission could not be satisfied that a majority of employees wished to bargain. The company submitted that employees had been encouraged to sign the petitions and that it had not had an opportunity to ‘check with those employees’ whether they did in fact wish to bargain. 1 It contended that the use of petitions to ascertain whether there was majority support for bargaining was not appropriate in the present case. The company said that it should be provided with the un-redacted petitions, or alternatively that a ballot should be conducted to facilitate a neutral request to gauge employee support for bargaining.
[7] Shortly after the commencement of the hearing on 18 October 2018, the parties adjourned into conference, following which they decided to discuss a possible agreed mechanism to gauge employee support for bargaining. On 7 November 2018 the union advised the Commission that the parties had agreed on a course of action, which they sought to have reflected in consent orders. In accordance with the arrangement agreed by the parties, I issued orders for a service provider, CIVS, to be provided with the mobile phone numbers of all employees who would be covered by the proposed agreement. CIVS would send employees a statement agreed by the parties concerning majority support determinations, and an agreed question asking whether employees wished to bargain with the company for an agreement. The ballot would remain open until 5.00pm on 22 November 2018.
[8] On the afternoon of 22 November 2018, the company’s solicitors wrote to my chambers, stating that it believed an email message sent by the union to employees contained misrepresentations, and requesting to be heard in the event the ballot showed a majority support for bargaining. Shortly afterwards, the union wrote to my chambers, denying that it had made misrepresentations to employees, and raising its own complaints about the company’s representations to employees, and seeking to be heard.
[9] Later that day, CIVS declared the results of the ballot, which were that of the 140 employees to whom text ballots were sent, 62 responded, 56 voted ‘yes’ and 6 voted ‘no’. The company then asked the Commission to dismiss the union’s application. However on 23 November 2018 the union wrote to the Commission, raising concerns about the ballot. The union said that it believed some of the persons balloted were not employees within the meaning the Act, that some employees were not balloted but ought to have been, and that misrepresentations had been made by the company that affected the vote. The union sought for its application to be relisted.
[10] Following a telephone mention on 30 November 2018, further directions were issued for the filing of materials, including a direction that the company file a revised list of employees engaged in warehouse duties, indicating their most recent day of work, as well as their employment status. The hearing of the application took place before me 5 March 2019.
[11] The NUW contends that the result of the CIVS text ballot is unreliable, and that the Commission should be satisfied on the totality of the evidence adduced, including in particular the petitions filed, that a majority of employees wish to bargain for an agreement.
[12] The union said that there was evidence that incorrect telephone numbers had been supplied by the company to CIVS, that some employees did not receive text messages at all, and that some of the persons balloted no longer work at Lovisa. The union also said that the ballot process was not well understood by employees. It contended that employees who had ‘abstained’ from voting should not be regarded as not supporting bargaining.
[13] The union submitted that the Commission could and should rely on all of the evidence collated since July 2018, when the first petitions were signed, up until the date of the hearing in March 2019, to ground a satisfaction that a majority of employees wish to bargain. It said that the various petitions, together with individual text messages of support for bargaining from employees, shows that 81 employees, a majority, had indicated that they wish to bargain. It relied on the following:
• the first petitions collated between 23 July and 3 August 2018;
• a second set of petitions collected from 6 September to 17 December 2018;
• a third set of petitions gathered in February 2019;
• texts from employees in July 2018, December 2018, January and February 2019;
• an email from an employee in November 2018. 2
[14] The union also submitted that many of the casual employees it suspected were on the employer’s list had not actually worked for some time, and that any casuals who had not worked recently should be excluded from the list.
[15] The company’s position was that the Commission should confine its examination of whether there is majority support for bargaining to the result of the CIVS text ballot, the process that had been agreed by the parties, which showed that a majority of employees did not want to bargain. It said that the parties had undertaken to accept the outcome of the ballot, and that if this had shown majority support for bargaining, the company would not have opposed the making of a determination. The company said that the Commission should give effect to the parties’ agreement, and that it would be unconscionable for the union to resile from it.
[16] The company denied that the CIVS ballot was affected by any of the irregularities raised by the union. It said that the parties corresponded about the contact details of a number of employees prior to the ballot and certain problems were identified and rectified. 3 The company had accepted a union concern that three employees’ mobile phone numbers had not been provided to the ballot agent, and that it would therefore consider the total number of employees who voted to be 137, rather than 140.4 As to ‘abstentions’, the company said that failure to vote showed an employee’s lack of interest in bargaining. It also said that there was no basis for the Commission to exclude any casual employees from its list.
[17] The company contended that the petition documents were not reliable, and that this was the reason for the parties agreeing to a service provider conducting a text vote in the first place. It said that it has not seen the un-redacted petition material or had an opportunity to test this evidence and speak to petitioners about their attitude to bargaining. The company contends that it would be denied procedural fairness if the Commission were to rely on the petitions without granting the company access to the un-redacted material.
[18] Section 237 of the Act 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). That section provides that the Commission must be satisfied that:
“(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by the FWC; and
(ii) who will be covered by the agreement;
want to bargain; 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.”
[19] In relation to s 237(2)(a), the Commission may work out whether a majority of employees wants to bargain using any method it considers appropriate (s 237(3)).
[20] If the proposed agreement will not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is ‘geographically, operationally or organisationally distinct’ (s 237(3A)). No objection is made by the company in relation to this matter, or in respect of the reasonableness of making a determination in all the circumstances. However before issuing a determination I would need to be satisfied of these matters.
[21] The NUW’s application for a majority support determination meets the requirements of s 236. It is an application by a bargaining representative of employees who will be covered by a proposed single enterprise agreement. There was no dispute that the union represents members at the site, and that its registered rules entitle it to represent the industrial interests of employees of the kind who would be covered by the proposed agreement. The first pre-condition for the issuing of a majority support determination is therefore met.
[22] There was also no dispute that the Company has not yet agreed to bargain, or initiated bargaining, and that the requirement in s 237(2)(b) has therefore been met.
[23] I also consider that the group of employees who will be covered by the proposed agreement was fairly chosen. In this connection, I have taken into account that the group is in my view operationally distinct, as it comprises employees performing particular warehouse functions that are covered by the Award.
[24] In contest in these proceedings is the question of whether I should be satisfied that a majority of employees who are employed by the employer at a time determined by the Commission, and who will be covered by the proposed agreement, want to bargain. Several dimensions are disputed: who is an employee for the purpose of s 237 of the Act, with particular reference to the position of casuals; what time I should determine for the purpose of 237(2)(a)(i); what method the Commission should use to work out whether a majority of employees wish to bargain; and whether in fact a majority of relevant employees want to bargain.
[25] Section 237(2)(a) states that the Commission must be satisfied that ‘a majority of the employees who are employed by the employer or employers at a time determined by the FWC and who will be covered by the agreement want to bargain.’
[26] The union contended that the Commission should determine the date of its application as the relevant date for the purposes of s 237(2)(a)(i), and that only employees immediately or usually employed by Lovisa at that time should be included on the list.
[27] The union referred to the decision of the Full Bench of the Commission in Kantfield Pty Ltd v AWU 5 which concluded that the Commission’s discretion to determine a particular time concerns only the date on which employees of the employer are employed, and that, in considering whether a majority of those employees wishes to bargain, the most up-to-date information available must be used. As I discuss below, Kantfield does stand for this proposition. However it is not clear to me how this decision supports the union’s contention that I should determine the date of its application to be the date of the ‘employee list’ for the purposes of s 237(2)(a)(i).
[28] The union’s preference for the determination of an early date may be associated with the fact that there was evidence in the proceeding that the company seasonally hired new employees in the lead up to Christmas, potentially expanding the pool of in-scope employees and thus the ‘denominator’ in any calculation of whether a majority of employees wished to bargain.
[29] The company contended that the Commission should determine a date for the ‘employee list’ that takes into account that the company’s workforce has expanded since the filing of the union’s application in August 2018. It contended that the Commission should determine a time that aligns with the most up-to-date information available as to the number of employees who would be covered by the proposed agreement, which it says is 137 (the 140 on the employer list, minus the three employees whose ballot texts were return ‘undeliverable’). Using the date of the union’s application for the fixing of the ‘employee list’ would, it said, ‘disenfranchise’ employees who have been hired since August 2018.
[30] In Kantfield the Full Bench said the following:
“[35] The power to apply a time-based limitation is confined to section 237(2)(a)(i) and not section 237(2)(a) more broadly. That is, the power to apply a point-in-time limitation in section 237(2)(a)(i) is directed to fixing the time at which the FWC is to determine who are the persons employed only. Therefore, it does not confer a broader power to “fix” historical or future points in time for other aspects of section 237.
[36] In Peko-Wallsend, Mason J stated:
“… there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.”
[37] Applying Peko-Wallsend, it follows that the decision as to whether a majority of employees want to bargain is to be made on the basis of the most current material available at the time of the decision. Having considered all of the submissions and authorities filed by the parties, we agree that it was not open to the Commissioner to determine a point in time other than the time of the decision as the time at which a majority of employees could be said to want to bargain. As such, we are not satisfied that it was open to the Commissioner to reach the determination that he reached.”
[31] The point made here is that the Commission’s power to determine a time is confined to the question of who are the persons employed by the employer at a particular time: that is, to fix by reference to time the cohort of employees from which the question of majority is to be determined. The Commission has a discretion to determine this date; but according to the Full Bench, it does not have a discretion to determine the date on which a majority wishes to bargain. Rather, it must assess this question as at the date of the decision, using the most recently available information. Thus the Commission might exercise its discretion to determine 1 January to be the time at which the cohort of employees is to be fixed, and on 1 February (the date of its decision) determine whether a majority of the persons employed at 1 January wishes to bargain. Evidence about employees’ wishes, such as petitions, produced throughout January and up until 1 February could be taken into account in determining whether a majority existed. The question for the Commission would be whether, as at 1 February, a majority of the employees who were employed as at 1 January wished to bargain.
[32] I note that this conclusion is concordant with the peculiar structure of s 237(2)(a), which breaks down the components of a single sentence and employs Roman numerals in such a way as to emphasise that the temporally-determinative role of the Commission is confined to only one of those components: employees ‘who are employed by the employer or employers at a time determined by the FWC’. It is also consistent with the Explanatory Memorandum, which states that the Commission must be satisfied that ‘a majority of the employees (employed at a time determined by FWA) who will be covered by the proposed agreement want to bargain.’ 6
[33] I do not accept the union’s contention that I should determine the date of its application, namely 9 August 2018, as the relevant date for ‘fixing the cohort’. I cannot see any persuasive rationale for this course. Further, I have no information about who was employed on this date.
[34] The company did not indicate specifically which time it considered the Commission should determine for the purpose of s 237(2)(a)(i), but its contention that the relevant date should accommodate all of the 140 employees on its November list indicates that it considers 9 November 2018 to be the appropriate date. This is the date on which it provided to CIVS a list of all employees who would vote in the text ballot. I note that on 24 January 2019 the company filed in the Commission a list of its relevant employees, indicating their most recent day of work, but during the hearing the company confirmed that this was not an updated list of current employees as at that date. 7 Accordingly, the most recent list of employees employed by the employer whose employment would be covered by the proposed agreement is the list provided by the company to CIVS on 9 November 2018.
[35] In considering what ‘time’ I should determine for the purposes of s 237(2)(a)(i), it is appropriate to take into account that the company’s workforce is comprised largely of casual employees. Of the 140 persons identified on the November list, 107 are casuals and 33 are permanent part-time employees. As I discuss further below, although the company contends that all of its casual employees were employed as at the date of its November list, I have concluded that this cannot be the case. Rather, based on the evidence before me, I consider that each of these casual employees was employed only on days that they actually worked.
[36] In a highly casualised environment such as this, it seems to me artificial and inappropriate, in the context of s 237(2)(a)(i), to determine as the relevant time a single date, on which only some casual employees are likely to have been engaged and therefore employed. Instead, I consider that the Commission should determine a ‘time’ that is a period of time. In my view the meaning of ‘time’ in this section clearly accommodates periods. The provision does not speak of a ‘date’.
[37] I consider that it is reasonable in the circumstances for the ‘determined time’ to be a four week period ending on 9 November 2018, this being the date of the most recent employer list of persons said to be employees. Any casual engaged even once during this period will be an employee employed at the determined time. I do not consider it appropriate to determine a time with any greater ambit. In particular, it would not be appropriate to fix a time so broad as to cover all of the casual employees on the November list – namely any person employed between 14 September 2017 (the date given by the company for the casual with the oldest ‘last date worked’) and 9 November 2018. This would artificially increase the ‘employee denominator’ for the purposes of calculating whether a majority of employees wish to bargain. I note that the November list identifies 38 casuals who last worked before 12 October 2018. In my view, it is appropriate for the Commission to determine a period of time that covers casual employees who have been engaged to work relatively recently, and who are not simply persons ‘on the books’.
[38] For completeness, I note that I do not consider there to be any statutory basis for me to give effect to the company’s concession to the union that the total number of employees for the purpose of calculating majority should be reduced by three in light of the fact that three employees’ telephone details were not properly provided to CIVS. Section 237(2)(a)(i) requires me to determine a particular time at which employees are employed. It does not permit of discounting or adjusting this number in the manner contemplated by the concession.
[39] As I have foreshadowed, there is then the question of who exactly was employed at the determined time, and more particularly, whether all of the casual employees on the company’s November list can be considered to have been employed at this time for the purposes of s 237.
[40] The NUW submitted that only casual employees who were engaged by the company at or about the time determined by the Commission are employees for the purposes of s 237. The company’s position was that all of the casual employees on its 9 November list should be considered to be employees at that time.
[41] The meaning of ‘employee’ in Part 2-4 of the Act, of which s 237 forms part, includes ‘an individual in so far as he or she is employed, or usually employed’. 8 However the union contends that these provisions should be read in the light of the decision of the Full Federal Court in National Tertiary Education Union v Swinburne University of Technology.9 This case considered the question of which employees could be requested to approve (vote on) an enterprise agreement under s 181(1). That provision, which is also found in Part 2-4 of the Act, states that an employer may request the employees ‘employed at the time who will be covered by the agreement’ to approve the agreement by voting for it. The Full Court held that the section applied only to persons employed specifically at that time, and that seasonal employees who had been employed the previous year, who had been allowed to vote on the agreement because they were ‘usually employed’, did not fall within s 181(1).10 The union contends that the meaning of ‘employee’ in s 237 is analogous to that in s 181, being confined to those employed at a particular time, which excludes the concept of persons ‘usually employed’. I agree.
[42] In my opinion the reasoning of the majority in NTEU is relevant to the consideration of who is an employee for the purposes of s 237(2)(a)(i). A majority support determination relates to a ‘proposed enterprise agreement’ at the inception of the bargaining process, whereas s 181 is concerned with employees voting on an agreement at the conclusion of that process. The foundational definition of employee for the purposes of this Part includes a person who is usually employed. However, Justice Jessup, with whom Justice White agreed, considered that there was a legislative intention of ‘confining, from within a broad class which includes individuals who are usually, but not immediately, so employed, the relevant group to those who are employed at the time the agreement is made.’ 11 His Honour concluded that the words ‘employed at the time’ in s 181(1) limited the word ‘employees’.
[43] Similarly, in my view the words ‘employees employed by the employer or employers at a time determined by the FWC’ in s 237(2)(a)(i) limit the general meaning of the word ‘employees’. Although the general definition includes a person ‘usually employed’, that meaning is relevantly modified by the determination that the Commission makes in exercise of its discretion under s 237(2)(a)(i). I take note of Justice Jessup’s analysis of the context of s 181 in Part 2-4 and the scheme of bargaining it establishes, including its various stages and who might be employed at those stages. 12 The provisions of subdivision C of Division 8 of Part 2-4 also contemplate several events or stages: an application being made under s 236; the Commission determining a time at which in-scope employees are employed for the purposes of s 237(2)(a)(i); and an assessment of the question of whether there is a majority among those persons who wish to bargain. The fixing of the cohort and the assessment of whether there is majority support for bargaining would ordinarily occur at different times, and in this order, because the Commission can only assess whether there is majority support for bargaining once the cohort has been established. The subdivision recognises the practical reality that the Commission needs to fix a certain time to establish the cohort of employees who would be covered by the proposed agreement, because otherwise the denominator for the assessment of whether there is majority support for bargaining could be fluid and uncertain due to the turnover of labour. This contextual consideration reinforces what to my mind is already quite clear from the text of s 237(2)(a)(i), namely that this provision is, like s 181, concerned with a narrower meaning of ‘employee’.
[44] In short, a person is either employed ‘at a time determined by the Commission’ or not; the person does not become employed at that determined time on the basis that the person is employed at other times (‘usually employed’).
[45] Accordingly, only those casual employees who were engaged by the company during the four week period I have determined can be considered part of the ‘cohort’ of in-scope employees for the purposes of s 237(2)(a)(i).
[46] The company contended that all of the casual employees on its list were, factually, ‘ongoing’ casual employees and should therefore be included in the cohort. It relied on the decision of the Full Bench of the Commission in McDermott Australia Pty Ltd v AMWU 13 which found that employees who were engaged as casuals on an ongoing basis were entitled to vote to approve an enterprise agreement under section 181 of the Act, despite the fact that they had not actually been rostered on or performed work during the period in which the vote occurred. The Full Bench concluded:
“In our view it would be inappropriate and counter intuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on [at the relevant time] …” 14
[47] The company said that the facts of the present case were similar to those in McDermott. The Full Bench found that, as the employees had accepted offers of ongoing casual employment, had been entered onto the payroll system, and had not been dismissed or resigned, they were employees at the relevant time, and therefore able to vote under section 181. The company said that similarly in the present case the evidence of Ms Martin was that each of the relevant casual employees had accepted an offer of casual employment which is ongoing. They had each signed contracts of employment as ‘casual team members’ for ‘permanent positions’. 15 They had been entered into the payroll system. They received regular communications requesting that they indicate whether they were available for work. And none of them had been dismissed, had resigned or indicated that they were not prepared to accept future casual engagements with the company.
[48] In CFMMEU v Noorten, 16 another Full Bench expressed misgivings about the correctness of McDermott, but found it unnecessary to form a concluded view on the matter, noting that ‘the critical conclusion in McDermott was that the casual employees “accepted on-going employment” with McDermott … and as such they were employed by McDermott at the time the Agreement was made.’ The Full Bench in Noorten observed that the reasoning adopted by the Full Bench in McDermott could be said to be more of a conclusion that the relevant employees were not causal employees at all, but rather ongoing (permanent) employees.17 I agree with this observation. But in any event, the present case is distinguishable from McDermott.
[49] In support of its contention that, like in McDermott, its casuals were ‘ongoing casual employees’, the company pointed to the contract that has been signed by its casuals, the opening clauses of which read as follow:
“Lovisa Pty Ltd is pleased to present you with a contract of employment under the relevant Storage and Wholesale Award 2010 MA000084 and Lovisa policies and procedures, as amended from time to time.
1. Position
This offer is for the position of Casual Team Member. To cater for the changing needs of the business or to improve your employment prospects you may be required, where reasonable, to transfer to another area.
2. Commencement Date
This employment contact will commence on
3. Primary Work Location
Your primary work location will be the Lovisa Warehouse at Tenancy B, 15 – 33 Alfred Street Blackburn, Victoria.
4. Remuneration
Your base hourly rate will be $25.26 gross per hour
This is a permanent position and so remuneration is set to fully compensate you for all hours worked and duties performed under this contract.”
[50] Under cross-examination Ms Martin was asked about the reference to a ‘permanent position’ in clause 4.1(a):
So this is not in fact a contract for casuals, it’s a contract for permanents. Is that correct? -It just means that there’s no end date but the term and the rate that they’re paid is casual. 18
[51] I accept this evidence. The ‘term’ is casual, that is, each engagement stands alone. The pay is casual, as the persons concerned receive an hourly rate, as stated in clause 4(a). In my view, clause 4(b) reads as though the word ‘not’ has been omitted; a statement that remuneration is in full compensation for all hours worked makes some sense in connection with casual work, but little sense in connection with permanent employment. It is also significant that the contract makes no reference to hours of work, a minimum number of hours or engagements, or any pattern, project, or regularity in the expected casual working arrangements. This contrasts starkly with the facts in McDermott, where employees would, pursuant to clause 8 of the enterprise agreement, work a cycle of 21 days on duty and 21 days off duty.
[52] I would add that the contract as a whole appears to be an uncompleted adaptation of a template for permanent employment. It goes on to state that the company ‘may terminate the agreement immediately by providing four weeks’ pay in lieu of notice’ and that if the employee does not provide notice of termination, ‘the wages equivalent to the length of the notice will be forfeited in lieu of notice.’ 19 But the contract does not require the company to offer work, or the casual to accept it.
[53] In my view, the company’s contract is simply an agreement to keep casual employees on the books. It is difficult to see how this is different from the position of any other casual who will be offered shifts from time to time, but has no right to expect any shifts, nor any obligation to work them.
[54] The company submitted that a casual employee does not necessarily cease employment between engagements, even if there is a substantial intervening period, and points to the passage in Smith Snackfoods, cited in McDermott, which noted that the nature of casual employment is such that it is common for a casual employee to ‘transition between a period in which [casual workers’] engagements with a particular employer are intermittent and a period in which their engagements are regular and systematic and vice versa …’ 20 However I read this passage as emphasising what the Full Bench said in the previous sentence, namely that no casual employee has a continuous period of employment beyond any single engagement, and that this is so even if there are periods during which a casual is regularly and systematically engaged.
[55] In Workpac Pty Ltd v Skene 21 the Full Federal Court held that the ‘essence of casualness’ is the absence of a firm advance commitment as to the duration of the employee’s employment or the days or hours the employee will work.22 It also distinguished casual employment from ‘on-going employment’, stating that the latter is characterised by ‘a commitment by the employer, subject to rights of termination, to provide the employee with continuous and indefinite employment according to an agreed pattern of ordinary time (as distinct from overtime) work,’ and that a ‘corresponding commitment to provide service is given by the employee.’23 In contrast, a casual employee receives no such commitment from the employer, and gives no reciprocal commitment.24 Applying this to the evidence about the circumstances of the company’s casual employees in this case, it is clear that they are not ‘on-going’ (permanent or part-time) employees. They are persons who from time to time are casual employees of the company and are on the company’s books.
[56] I note that the Full Court in Workpac went on to state that in their ordinary concepts, casual, full-time and part-time employment are mutually exclusive categories of employment, and that a person could not be both casual and also full-time or part-time in the same employment. 25 In my view, if the conclusion were reached that all of the casuals on the company’s November list were employed on a continuous basis, they would at law be permanent part-time employees with variable hours, with the consequence that they would accrue leave and enjoy the other incidents of permanent employment.
[57] It could perhaps be said that there is an employment relationship between the company and its casual employees between the causals engagements. But there is no contract of employment. And unlike Part 3-1 (unfair dismissal), which is concerned with the ending of the employment relationship, 26 s 237 is concerned with whether a majority of ‘employees employed by an employer at a particular time’ wish to bargain.
[58] Accordingly, I reject the company’s contention that all of the persons identified in its November list as casual employees are on-going employees and that they are to be considered as persons employed at the time I have determined above under s 237(2)(a)(i).
[59] Based on the evidence before the Commission, I conclude that employees identified on the company’s November list as casual employees are indeed casual employees and that they are employed by the company only during such times as they are actually engaged. They are not employed by the company between engagements.
[60] The employees employed at the time determined by the Commission and who will be covered by the proposed agreement are employees appearing on the company’s November list, and who are either permanent employees (the 33 part-time employees), or casuals who were engaged to work (and during each such engagement, were employed) at that time, namely in the period from 12 October to 9 November 2018.
[61] However, there is no information before the Commission about which of the casuals on the company’s list worked in this period. 27 The November list identifies which employees last worked in the period from 12 October to 9 November 2018, but not all persons who did in fact work in this period. The union’s preference might be for me now to seek this information from the company. I do not consider that this would be the appropriate course.
[62] I recognise that applications for majority support determinations can to a degree involve an iterative process where the parties may seek to lead additional evidence about the employment status and wishes of various employees. And indeed in this case I have adopted a flexible approach and allowed both parties to raise additional issues and lead further evidence. However an application under s 236 does not simply remain on foot until a determination is made. It must at some point be determined.
[63] The present application was lodged in early August 2018. Two rounds of submissions and materials have been filed, as well as final written submissions following the hearing in March 2019. In my view it is appropriate that I determine the application based on the materials before the Commission. This is the basis on which the hearing before me concluded on 5 March 2019, and on which the parties filed their final written submissions. The union is of course able to make further applications for a majority support determination.
[64] Because I am unable to identify which casual employees were engaged by the company at the time I have determined above, I am unable to be satisfied that a majority of those employees wish to bargain.
[65] I note for completeness, in relation to Lovisa’s contention that it would be unconscionable for the union to resile from an agreed position to accept the outcome of the CIVS ballot, that the Commission must undertake its statutory function to decide whether it is satisfied that a majority of employees employed at a time determined by the Commission wish to bargain. An agreement by the parties to adopt a particular course of action in respect of the determination of the question could not limit the Commission’s jurisdiction or fetter its discretion. As explained above, the Full Bench in Kantfield concluded that the Commission does not have a discretion to determine a date on which it will decide whether a majority exists, but must assess the question as at the date of the decision, using the most recently available information.
[66] The company contended that the Commission should not rely on the employee petitions as evidence of majority support without affording it an opportunity to examine the un-redacted copies of these documents. In light of my conclusions, it is not necessary for me to determine this question however I make the following observations.
[67] Generally, petitions can be an acceptable method for the Commission to determine the question of majority for the purpose of s 237(3). And in the absence of some evidence raising a prima facie concern about the reliability of petitions as evidence of employee support, I would incline to the view that it is sufficient for the Commission to receive an un-redacted copy of the petition documents and for the employer to receive a redacted copy. In some cases a union will not object to providing the employer with the un-redacted petition but often, as was the case in this matter, employees have expressed some concern to their union about the disclosure to the employer of their signatures on a petition. In my view, an apprehensiveness of this kind is understandable as employees who sign a petition to bargain are taking a position that is in opposition to that of their employer, which obviously in such matters does not wish to bargain.
[68] If evidence led by the employer raises concerns about the integrity of the petition documents or the process, or the genuineness of the support expressed by one or more of the employees, or if the petition and other materials are factually complex, it may be appropriate to order production of the un-redacted materials. Otherwise, I would not readily favour production of the petitioners’ names to the employer.
[69] In the present matter the union has filed numerous petition documents, to some extent overlapping and containing repeated names. In quite a number of instances the names of the petitioners are similar to, but not the same as, those appearing on the employer’s November list. I intend no criticism of the union. It has endeavoured to present its material in an orderly way, to identify unintended duplications of petitioner names, and to explain alternative spellings, nick names or abbreviations that certain employees might have used. However, the petition and other evidence in relation to the expression of employee support was complex and required careful examination. Had I proposed to rely on the material in reaching satisfaction that a majority wished to bargain, this may have been a case where production of the un-redacted materials to the employer would have been required in the interests of natural justice, so that the company could make its own assessment of this evidence and present argument on the material if it wished to do so.
[70] Section 237(1) states that the Commission must make a determination if it is satisfied of the matters in s 237(2). As I am not satisfied that a majority of the employees who are employed by the employer at the determined time, and who will be covered by the agreement, want to bargain, I cannot issue a determination under s 237(1).
[71] The application for a majority support determination is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
M. Toner for the NUW
D. Trindade for Lovisa Pty Limited
Hearing details:
2019.
Melbourne:
5 March.
Final written submissions:
Applicant: 22 March 2019
Respondent: 29 March 2019
Printed by authority of the Commonwealth Government Printer
<PR707037>
1 Respondent’s outline of submission, 9 October 2018, paragraph 20
2 Submission of NUW setting out its consolidated petitions and texts from employees expressing a wish to bargain, 8 March 2019, respectively at paragraphs 4-6; 8 and 10; 15; 7, 13 and 17; and 11
3 Respondent’s final written submissions, paragraphs 15 -17
4 Ibid at 19
6 Explanatory Memorandum to the Fair Work Bill, paragraph 978
7 Transcript dated 5 March 2019 at PN1096
8 See s 170 and s 13
9 [2015] FCAFC 98; (2015) 232 FCR 246
10 Ibid at [24], [27] and [38]
11 At [17]
12 At [23] and [24]
14 At [35]
15 Witness statement of Fleur Martin, paragraphs 16; attachment FEM1, clauses 1 and 4(a).
17 Ibid at [32]
18 Transcript dated 5 March 2019 at PN1378
19 See clause 11(a)
20 See Shortland v Smiths Snackfood Co Ltd [2010] FWAFB 5709 at [10]
21 [2018] FCAFC 131
22 At [169]
23 At [171]
24 At [172]
25 At [177]
26 See generally Khayam v Navitas English Pty Ltd [2017] FWCFB 5162
27 Roster documents and a summary were submitted by the union regarding employees it says were scheduled to work from week to week, but that is not evidence of which casual employees in fact worked