| [2019] FWC 2885 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.236—Majority support determination
National Union of Workers
v
Lovisa Pty Limited
(B2019/323)
DEPUTY PRESIDENT COLMAN |
MELBOURNE, 28 MAY 2019 |
Majority support determination – whether majority wishes to bargain – time determined by the Commission – casuals employed at this time – method of establishing majority – use of redacted materials – procedural fairness
[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 relevant employees who would be covered by a proposed enterprise 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 opposes the application.
[2] This is the second application for a majority support determination brought by the NUW in respect of a proposed enterprise agreement that it wishes to negotiate on behalf of its members who are employed by Lovisa at the Blackburn distribution centre. On 16 April 2019, I issued a decision (the first decision) dismissing an earlier application for a majority support determination in respect of the same group of employees. 1 It is necessary to say something about this decision, as I will later rely on elements of its reasoning in determining the present matter.
[3] In the first decision, I found that the company employed a small number of permanent part-time employees and had on its books a large number of casual employees whom it engaged from time to time. Some of these casual employees had not been engaged to work for many months or longer. It will be recalled that s 237(2)(a) of the Act requires the Commission to be satisfied, before making a majority support determination, 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 agreement, want to bargain. I decided that, in a highly casualised environment, it was appropriate that the Commission determine a time that was a period of time, and that it was reasonable in the circumstances for the ‘determined time’ to be a four week period ending on 9 November 2018, which was the date of the employer’s list of employees.
[4] There was then the question of which casuals could be considered to have been employed in this period. I determined that only those casual employees who were actually engaged by the company during the four week period could be considered part of the ‘cohort’ of in-scope employees for the purposes of s 237(2)(a)(i). I concluded that the employees employed at the ‘time determined by the Commission’ and who would be covered by the proposed agreement were employees appearing on the company’s November list, and who were either permanent employees, or casuals who were actually engaged to work at any time during the four week period ending on 9 November 2018.
[5] However, although the union had produced rosters of who was scheduled to work in this period, there was no evidence as to which casuals had actually worked and had therefore been employed at the time I had determined, or indeed at any other time. I could not therefore be satisfied that a majority of employees employed at the time determined by the Commission wished to bargain. As the application already had a lengthy history, and final submissions had been filed, I considered that it was appropriate to decide the application on the materials before me, and dismissed the application.
[6] The union has now made a further application for a majority support determination. The scope of the proposed enterprise agreement is the same as that in the first application. The application proposes that the Commission determine a four week period as the relevant time, aligned with the four weekly rosters ending in the week when the application was lodged. The union contends that, based on the reasoning in my first decision, with which it agrees, the only casuals who should be considered persons employed at the relevant time are those who worked in this four week period. It says that the petitions and other evidence demonstrate that a clear majority of relevant employees wish to bargain. It says that this time there is evidence of which casual employees actually worked in the relevant period.
[7] In opposing the application, Lovisa maintains a number of the positions it took in the first matter. It contends that all of the casuals on its books, regardless of when they worked, should be considered persons employed at the time, and that a single date should be determined as the relevant time, not a period. It says that, adopting such an approach, the Commission cannot be satisfied that there is majority support for bargaining. Lovisa also contends that it should be granted access to the un-redacted petitions and messages of support from employees, and says that it would be a denial of procedural fairness for the Commission to rely on un-redacted material that the company had not seen.
[8] Section 237(1) 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). The new application seeks a determination from the Commission that a majority of employees of Lovisa who will be covered by a proposed enterprise agreement want to bargain. There was no dispute that the union is a bargaining representative of employees who will be covered by the proposed enterprise agreement, that its registered rules entitle it to represent the industrial interests of employees of the kind who would be covered by the proposed agreement, and that the application specifies the employer and employees who will be covered by the agreement. A proper application has been made under s 236 and the first requirement for the making of a determination is therefore met. I now consider, including where relevant by reference to my analysis of the relevant provisions of the Act in the first decision, whether I am satisfied of the matters in s 237(2).
[9] The first matter of which the Commission must be satisfied is 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 (s 237(2)(a)).
[10] As noted above, the NUW submits that the Commission should determine the relevant time in the same manner as in the previous application, having regard to the large number of casual workers at Lovisa. It says that the Commission should determine a time that is a period of time, being the four week period ending on Friday 19 April 2019. 2 At the hearing, the company submitted that the Commission should determine a single day as the relevant time for the purposes of s 237(2)(a), however it did not make any submission as to which day this should be.
[11] In the first decision I set out my analysis of s 237(2)(a)(i), and the significance of the decision of the Full Bench in Kantfield Pty Ltd v AWU 3. To recap, the Commission’s power to determine a time under s 237(2)(a) 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 not the date on which a majority wishes to bargain. The latter question must be assessed as at the date of the decision, using the most recently available information. In relation to these matters, I adopt paragraphs [30]-[32] of the first decision.
[12] In considering the ‘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 comprises a large number, and proportion, of casuals. In a highly casualised environment it would be artificial to determine as the relevant time a single date, on which only some casuals are likely to have been engaged and hence employed (see below). Instead, I consider that the Commission can determine a ‘time’ that is a period of time, and that it is appropriate to do so in this case. It is reasonable in the circumstances for the ‘determined time’ to be a four week period ending on Friday 19 April 2019. The ‘employee list’ for the purposes of s 237(2)(a)(i) therefore includes all permanent employees of Lovisa employed at this time, and any casual engaged even once during this period.
[13] As in my previous decision, I do not consider it appropriate to determine a time with any greater ambit as this would artificially increase the ‘employee denominator’ for the purposes of calculating whether a majority of employees wish to bargain. It is appropriate for the Commission to determine a period of time which covers casual employees who have been engaged to work relatively recently, and who are not simply persons ‘on the books’.
[14] As in the first application, a question arises in this matter as to which casuals were employed in the four week period that I have determined for the purposes of s 237(2)(a)(i).
[15] I adopt the analysis at paragraphs [41] to [44] of the first decision on this point and conclude that, for reasons analogous to those set out in the decision of the Full Court of the Federal Court in National Tertiary Education Union v Swinburne University of Technology, 4 the meaning of ‘employee’ in s 237 of the Act does not include a person who is ‘usually employed’.
[16] Lovisa said at the hearing that it maintained the position it advanced in the first application that all of the casuals on its books were ongoing employees. The company did not file or lead any evidence in this proceeding, other than the document I asked it to produce identifying which employees worked during the four week period ending on 19 April 2019. From the bar table however, in response to a question from me, the company stated that it had on ‘its books’ other casuals who did not work during the four week period, but whom it considered to be persons employed during this period.
[17] In this regard, in the previous matter, Lovisa led evidence about the contracts entered into between the company and its casuals, which refer to the casual position as ‘permanent’. In the earlier matter, Lovisa relied on these contracts to support its contention that its casuals were ‘ongoing casual employees’, and were employed at all relevant times, including between individual engagements. The company did not specifically state that it sought to rely on these contracts and related evidence (including that of Ms Martin) from the first proceeding to support its contention in the present matter that all casuals on its books were ongoing employees. If however so much was intended to be conveyed by the statement that the company relied on its earlier argument that casuals who are ‘on the books’ are ‘ongoing employees’, I conclude, for the reasons given at paragraphs [49] to [53] of the first decision, that the company’s contract is simply an agreement to keep employees on the books, and that it does not provide for ‘ongoing’ employment for casuals at times between engagements.
[18] The company submitted at the hearing that it relied, as it did in the first application, on the decision of the Full Bench in McDermott Australia Pty Ltd v AMWU 5 in support of its contention that all casuals on its books were ongoing employees and should therefore be included in the list of all employees employed at the relevant time and be considered in assessing the question of whether a majority of employees wish to bargain. In that case, the Full Bench found that employees who were engaged as casuals on an ‘ongoing’ basis were entitled to vote to approve an enterprise agreement under s 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.
[19] As I said in the first decision, in CFMMEU v Noorten,6 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 casual employees at all, but rather ongoing (permanent) employees.7 I agree with this observation. But in any event, the present case is distinguishable from McDermott. The circumstances of this case contrast starkly with those in McDermott, as in that case employees would, pursuant to clause 8 of the enterprise agreement, work a cycle of 21 days on duty and 21 days off duty. In this matter there is no evidence of any guarantee of work.
[20] I reiterate what I said in the first decision about the question of casual employment. In Workpac Pty Ltd v Skene8 (Workpac) 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.9 It also distinguished casual employment from ‘ongoing 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.’10 In contrast, a casual employee receives no such commitment from the employer, and gives no reciprocal commitment.11 Applying this to the circumstances of the company’s casual employees (including the casual contract, assuming that Lovisa seeks to rely on it), it is clear that they are not ‘ongoing’ employees. They are identified as casuals in the rosters. The company considers them to be casuals, as does the union. There is no evidence or contention that the company is required to offer casuals any work, or that those persons are obliged to accept work. The casuals are persons who from time to time are casual employees of the company and are on the company’s books.
[21] 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.12 In my view, if the conclusion were reached that all of the casuals on the company’s ‘books’ 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 under the National Employment Standards and enjoy the other incidents of permanent employment.
[22] Before the Commission in the present matter is a document produced by the company, at my request, that shows the roster for the four week period I have determined for the purpose of s 237(2)(a), indicating which employees actually worked during the period. There are 23 part-time employees identified on this list. These persons were employed regardless of whether they worked, as they are permanent part-time employees. In addition to these persons, the names of 35 (in one week 34) casuals also appear on this list. All but one of those persons worked at least once during the four week period. I conclude that each of the casuals who actually worked in the four week period determined above was employed at the time for the purpose of s 237(2)(a).
[23] Although the company submitted that there are other casuals on the books, there is no evidence as to who they are. However, it is evident from the company’s roster document that whoever these people might be, they did not work in the four week period and are not employees for the purpose of s 237(2)(a). They do not count in assessing majority support for bargaining.
[24] The union has filed in the Commission un-redacted petitions signed by employees, comprised of 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’. Redacted copies of these five petition sheets were served on Lovisa, with employees’ names and signatures blanked out, but with the dates of signature shown. The un-redacted copies show 34 handwritten names, signatures and dates on those five sheets. Two names appear twice, namely the twenty-first and twenty-fourth listed persons, who appear again as the twenty-fifth and thirty-fourth listed persons respectively. The petitions therefore reveal 32 individual employees who state that they wish to bargain.
[25] The union has also filed in the Commission 15 screen shots of texts from employees expressing support for bargaining, in most cases a simple ‘yes’ in response to a question from the union’s organiser as to whether they wish to bargain. Redacted copies of these documents have been served on Lovisa, which blank out the names and numbers of these employees. Of these 15 employees, three have also signed the petition sheets (texts 8, 9 and 10 are the same as petitioners 22, 18 and 20), and are therefore ‘repeats’. Therefore the text messages show that in addition to the names appearing on the petitions, a further 12 employees wish to bargain. The union has also filed an email from another employee who states that he wishes to bargain, and has served a redacted copy of this email on Lovisa. Thus in total, the evidence filed by the union shows forty-five employees of Lovisa have expressed support for bargaining.
[26] How many persons were employed at the time I have determined above? This is the denominator for the purposes of assessing majority. As I have mentioned, at a directions hearing conducted on 30 April 2019, the company agreed to file in the Commission a document confirming which of its employees in fact worked in this four week period. The company later provided to the Commission and the union an un-redacted document showing which of the employees appearing on the roster actually worked, which of those employees did not work, and also where persons not rostered for work did in fact work. The company’s representative stated at the hearing that there were no permanent employees employed by the company other than those on the document, but that there were other ‘casuals on the books’ whose names did not appear in the document.
[27] On the roster document showing who worked in each of the four weeks appear the names of 58 employees. They are the same 58 employees in each week, save for the first, which does not contain one name that appears in the other three weeks. Twenty-three are identified as permanent part-time employees, who were clearly employed by Lovisa during this period regardless of whether they actually worked. The remaining employees are identified as casuals. All but one of the casual employees who signed the petitions or sent texts or the email of support worked at least one shift during this four week period. This single casual was not engaged, and hence not employed, in the four week period, and is to be omitted from the denominator of 58 persons employed and the 45 bargaining supporters. To this point then, 44 employees have expressed support for bargaining, and 57 persons were employed at the relevant time.
[28] It is then necessary to ascertain how many of the petitioners and other bargaining supporters appear on the list of 57. Of the 32 individual employees noted above who have signed a petition, all but one appear on the list of 57 employees (the thirty-third petitioner is not on the list). And of the 12 additional employees who sent texts of support for bargaining to the union, 11 appear on the list of 57 (the 14th ‘texter’ does not appear on the list). The one person who sent an email in support also appears on the list of 57. Persons who have expressed support for bargaining but who were not employed at the time cannot be counted towards the majority. The ‘numerator’ of bargaining supporters must therefore be reduced by two to 42.
[29] In summary then, of the names appearing on the list of 57 persons employed at the time determined by the Commission (these being all permanent part-timers, regardless of whether they worked, and all casuals who actually worked in this period), 42 have expressed support for bargaining.
[30] I am comfortably satisfied that the wording of the petition document which employees have signed, and the text question to which employees have answered ‘yes’, as well as the email, all clearly convey that the individuals concerned want to bargain.
[31] Based on the materials filed by the union in this matter, I am satisfied that a majority of employees employed by Lovisa at the time determined by the Commission, being the four week period ending on Friday 19 April 2019, and who will be covered by the proposed agreement, want to bargain.
[32] This brings me to the contentious question of whether the use of petitions and texts, and in particular the Commission’s reliance on un-redacted material in circumstances where the company has seen only redacted copies, is an appropriate method for the Commission to determine whether there is majority support for bargaining. Related to this is the question of whether the Commission’s reliance on un-redacted material that the company has not seen would deny the company procedural fairness.
[33] I deal first with the use of petitions. The union contended that petitions are an appropriate and widely-used method of establishing majority support, and that I should accept its use in this case. The broad discretion afforded to the Commission to use any method it considers appropriate contemplates a variety of possibilities. Clearly a vote is not required, as other provisions in the Act mandate a vote and s 237 does not. Petitions seem to me to be one obvious way to demonstrate employee support for the purposes of s 237. A petition can be collated quickly, simply and informally. It can provide a sound evidentiary basis for the Commission to assess whether there is majority support for bargaining. It is in principle a method of assessment of majority support that accords with the object of Part 2-4 to provide a ‘simple, flexible and fair framework that enables collective bargaining in good faith’ (s 171(a)), and the requirement in s 577 that the Commission perform its functions and exercise its powers in a manner that is quick and informal, avoiding unnecessary technicalities (s 577(a) and (b)). Another requirement is that the Commission act in a way that is open and transparent (s 577(c), and I will return to this below.
[34] It may be appropriate in a particular case to enquire into the way in which the signatures on the petition have been obtained, who has had custody of the petition at all relevant times, and other details of the petitioning process. In this case, Ms Anna Thwaites, NUW organiser, gave evidence that she retained control of all of the petition documents at all relevant times, except for the fifth petition document, which she entrusted to a Ms Clark for a time during which the first four signatures on that page were obtained, whereafter the document was returned to Ms Thwaites. It is also apparent that each petition document clearly explains what its purpose is, as well as the significance of a person adding their name to the petition. There is a space for employees to enter their name, signature and date. All of this supports the union’s contention that the evidence of employee support for bargaining contained in the petitions is reliable.
[35] Lovisa did not object to the use of petitions per se, rather it said that the Commission should not rely on the employee petitions or on text messages or emails as evidence of majority support, without affording the company an opportunity to examine the un-redacted copies of the relevant documents. It contended that this would not be an appropriate method or part of an appropriate method, for the purposes of s 237(3), for the Commission to work out whether there is majority support for bargaining.
[36] In the absence of some evidence or contention raising a prima facie concern about the reliability of petitions as evidence of employee support, I would incline to the view that the Commission can receive and rely on an un-redacted copy of a petition obtained for the purpose of s 237 and for the employer to receive a redacted copy. In my view it would be natural for employee–petitioners to be apprehensive about their identities being revealed to the employer, given they are taking a position that is aligned with a union in an effort to have their employer agree to something it evidently does not want to do, namely bargain. Often the employer accepts this and does not object to this approach, and in such cases there is no difficulty in the Commission proceeding to rely on the material. But in this case the employer objects and the Commission must therefore decide on the appropriate approach.
[37] The union contended at the hearing that the company had never formally sought access to the un-redacted material, and in particular had not filed an application for an order to produce. Although it did not make such an application, I understood the company’s position to be that it should be granted access to the un-redacted materials. However, for the reasons set out below, I consider that it is not appropriate to do so.
[38] In the present case, the union’s contention that the Commission should not provide the un-redacted materials to the company, but should nevertheless rely on them in determining the application, goes beyond a presumptive apprehensiveness on the part of employees about their support for bargaining being revealed to their employer. The union says that the evidence establishes that there are special reasons in this case for the Commission to conclude that the employees’ identities on the petitions and texts should not be revealed.
[39] Ms Thwaites gave evidence that during her visits to the site, and while she was collating signatures on the petitions, some of the workers expressed concern to her about the company knowing that they were members of the union or that they were supportive of bargaining, 13 and that several workers had told her that they were scared about repercussions from the company if it was known that they supported bargaining.14 I will refer to this as Ms Thwaites’ evidence about employees’ professed concerns.
[40] Ms Thwaites also said that an employee had told her that a manager was making a list of workers who spoke to the union 15 and that other employees had told her that a particular manager had tried to talk them out of joining the union.16 I refer to this as Ms Thwaites’ evidence of employee allegations.
[41] In addition, Ms Thwaites gave evidence of a visit she made to the site with another NUW official, Mr Toner, in or around late May 2019. She said that while in the lunchroom speaking to workers, she and Mr Toner noticed the warehouse manager staring at employees who were talking to them. She said that Mr Toner asked the warehouse manager not to do this, and that the manager responded by stating words to the effect of ‘if this was outside of work … if those CCTV cameras weren’t watching me this would be a different story’. 17 Ms Thwaites’ perspective on this incident was that the warehouse manager threatened Mr Toner with violence. Ms Thwaites said that twenty workers were present during this incident.18 It was also the subject of an exchange of correspondence between the union and the company’s lawyers.
[42] Ms Thwaites gave evidence that, given the ‘recent history’, which I understand to mean all of these matters just recounted, she and Mr Toner decided that they should protect employees’ identities by providing to the company only redacted copies of the petitions and other material that bears employees’ names. 19
[43] I now consider the company’s objections and challenges to this evidence, both in respect of admissibility and weight, and in relation to the credibility of Ms Thwaites as a witness.
[44] The company objected to the evidence given by Ms Thwaites of employees’ professed concerns on the basis that it is hearsay. It says that the Commission should not admit this evidence, or alternatively afford it no or minimal weight. However, in my view this evidence would fall within the exception to the hearsay rule contained in s 66A of the Evidence Act, which provides that the rule does not apply to evidence of a previous representation made by a person if it was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind. The previous representations made by employees to Ms Thwaites were that they were concerned of repercussions or scared; these were contemporaneous statement by employees in respect of their feelings or state of mind. However, even if the exception in s 66A did not apply, the Commission is not bound by the rules of evidence (s 591), and I would admit the evidence of employees’ professed concerns and rely on it on the basis that I consider it fair and just to do so, particularly given the company led no evidence to refute Ms Thwaites’ testimony.
[45] As to Ms Thwaites’ evidence of employee allegations, I agree with the company that this is hearsay. No exception to the hearsay rule applies. This evidence is of a different nature to that of employees’ professed concerns. The allegations put at issue, and imply imputations in respect of, the appropriateness of the conduct of certain managers who have not given evidence about their side of the story. The evidence is led for the purpose of asserting to the truth of the allegations. I do not rely or place weight on the evidence of the employee allegations.
[46] As to Ms Thwaites’ evidence about the incident involving the warehouse manager and Mr Toner, she has given direct evidence of her account, and that some twenty employees were present in the lunchroom during the incident. It is reasonable to infer from this that some of them saw and heard the exchange and that they are therefore aware of at least one instance of discord between their employer and the union. Regardless of who might have been at fault in this incident, the fact that this altercation between company and union representatives occurred in the presence of employees would provide a rational basis on which employees may not wish to reveal to the company that they had supported the union’s bid to commence bargaining with the company. There is no basis to object to Ms Thwaites’ evidence on this matter as hearsay, as she was a witness to it. The company contended that I should draw an adverse inference from the fact that Mr Toner, who was the union’s advocate at the hearing, did not give evidence about the incident however I see no basis to draw such an inference, as Ms Thwaites gave direct evidence of what occurred. It was not necessary for Mr Toner to give evidence.
[47] The company contended that I should not accept the evidence of Ms Thwaites about what occurred during this incident, or the evidence of employees’ professed concerns. It said that in the previous proceeding, in which the union also sought to keep the identities of employee-petitioners confidential, Ms Thwaites had said nothing about these matters. During cross-examination, it was put to Ms Thwaites that she had invented her evidence about the union’s reasons for not wanting to disclose the petitioners’ names. She denied this. I believe her.
[48] In my assessment, Ms Thwaites’ evidence was spontaneous, candid and convincing. She was a witness of truth. I consider that her evidence that the warehouse manager threatened Mr Toner with violence reflects her opinion or perception of the incident, and because I have not heard evidence from the warehouse manager, I make no finding about whether in fact his comments to Mr Toner did convey a threat of violence. However, I find that there was an altercation between the warehouse manager and Mr Toner that was witnessed by employees.
[49] The fact that Ms Thwaites did not raise the employee allegations or the altercation between Mr Toner and the warehouse manager in her evidence in the earlier matter does not cast doubt on the reliability of her evidence before me. The company referred to the transcript of Ms Thwaites’ evidence in the earlier matter at PN460:
“MR TONER: Ms Thwaites, some of the materials that have been provided to the other side have been redacted, can you explain why those materials have been redacted?---Yes. So employees have asked to not have their name communicated to the company. So there's been some concerns, since I started attending the site, before then really, it was part of the reason that we were called out, about there being consequences on site for employees if the company found out that they put their name to something like this. So I told workers, when I asked them to sign the petition, that I would make sure that it remained confidential and they told me that they wanted to bargain but they were worried about consequences.
MR TRINIDADE: Your Honour, we object to all of that evidence, it's all hearsay, it's speculation, it's conclusion, it's the same vice that is with most of this material which is it's not evidence that can be relied upon by the Commission with any probative value.
THE DEPUTY PRESIDENT: Ms Thwaites can give evidence about what they told her but she's not able to say whether or not those concerns were founded. I don't think she's saying that.
MR TRINIDADE: Your Honour, that's correct. If the evidence was only as to what she was told - - -
THE DEPUTY PRESIDENT: This person told me, or some people - - -
MR TRINIDADE: Not as to the truth of what was said.
THE DEPUTY PRESIDENT: All right, yes.
MR TONER: Ms Thwaites, can I take you to annexure C of your second statement?---Yes.
Sorry, can I take you to - sorry, can I take you to annexure, so there's a roster attached to some emails?---Yes.”
[50] It is clear from this passage that Ms Thwaites was asked a general question by Mr Toner, which she answered. Mr Trindade then made an objection. After this, the examination in chief took a different direction. Ms Thwaites was not asked to elaborate on her earlier answer. In her evidence before me in the present matter, Ms Thwaites was asked by Mr Toner whether she had wanted to say more in response to his question in the earlier proceeding, and Ms Thwaites said no. The company says that this must mean there were no further details she could have provided. I disagree. Her answer in transcript above was a general answer to a general question. I would note that her testimony in the present matter about the incident involving the warehouse manager and Mr Toner is consistent with the exchange of letters between the union and the company’s lawyers.
[51] The company also contended that Ms Thwaites’ evidence of the employee allegations and the conduct of the warehouse manager is implausible because if it were true, the union would have brought action in the courts for breach of the adverse action provisions in the Act or proceedings in the Commission under s 508, or gone to the police in respect of the warehouse manager’s alleged threat of violence. I reject this contention. It suggests that a claim has no merit unless it is prosecuted. But there are all kinds of reasons why a person or an organisation might decide not to bring legal proceedings despite having a perfectly good claim, including limitations of time and resources, as well as competing priorities.
[52] In my view, the evidence of Ms Thwaites provides a justification for maintaining the anonymity of employees who have expressed support for bargaining. Some members have told the union of their fears or concerns about repercussions in the event of their support for the union becoming known to the employer. Some employees have seen conflict between the company and the union. The company did not lead evidence to say that it had taken steps to allay any concerns. There is a legitimate reason not to provide the un-redacted material to the company in the particular circumstances of this case.
[53] The company then says that, if it is not provided with the un-redacted material, the Commission should not rely on it, because to do so would deny it natural justice.
[54] Members of the Commission are bound to act in a judicial manner and to observe procedural fairness in carrying out functions and exercising powers under the Act. 20 The requirements of procedural fairness are not prescribed in a fixed body of rules. What is required is ‘judicial fairness’21 and what is fair in one case may be quite different from what is required in another.22 The content of natural justice depends on the relevant circumstances, including the statutory context. The requirements of sections 577 and 578 that the Commission act in a manner that is fair and just, quick and informal, open and transparent, taking into account equity, good conscience and the substantial merits of the case, may be seen as incidents of a general duty on the Commission to ensure a fair hearing.23
[55] Ordinarily, all material produced to the Commission by a party in a proceeding should be provided in full, un-redacted and unedited, to the other side, and only such material would be relied on by the Commission in reaching its decision. However, occasionally the interests of justice may require the Commission to take a different course. It is important then to consider how and to what extent the other party might be adversely affected and what measures can be taken to minimise any adverse effect.
[56] Lovisa has a legitimate interest in understanding what method the Commission has chosen to assess whether there is majority support and why it considers that method to be appropriate (which I have explained above), and also in understanding why the Commission has concluded that there is in fact majority support for bargaining. I have explained the numbers. Of the 58 employees on the employer’s rosters (reduced to 57 because one casual did not work at all in this period), 42 have signed a petition in support of bargaining or sent the union organiser texts of support, and in one case an email of support. I brought the repeated (double) entries to Ms Thwaites’ attention while she was under oath, and the company had an opportunity to ask her questions about this. The Commission has carefully reviewed the petition and text documents, identified some repeated names, and ascertained that a clear majority of relevant employees support bargaining.
[57] Importantly, the union offered to show the un-redacted documents to the company’s counsel. This would have allowed the company’s counsel to verify, in the same manner I did, that the petitioners’ names and those of other supporters were on the list of persons who worked during the 4 week period and that they constituted a majority. The company declined this invitation.
[58] What interests of the company remain affected by a decision of the Commission to rely on the un-redacted materials that the company has not seen? What use would the company make of this information? At the hearing, the company stated that it wished to verify whether employees who have signed petitions and sent texts really do wish to bargain, and did not rule out seeking to cross-examine them. However the company was free to lead its own evidence about what employees think about the prospect of bargaining. It did not need the un-redacted material to do this. It could have spoken to all of the employees or surveyed them about their views and then had a manager provide evidence about this. It could have called employees to give evidence about their support for bargaining. (Had it done so, the employees would have been company witnesses and I would not have been inclined to allow the company to cross-examine them.) The company did not lead any evidence about whether a majority of employees support or oppose bargaining. Nor was there any evidence that raised concerns about the conduct of the union or its approach to gathering support for bargaining. In all of these circumstances, I do not consider that the company’s interests are adversely affected in any significant way by my use of the un-redacted material, and any adverse effect is outweighed by the interest of employee-petitioners in having their identities protected.
[59] The company submits that the Commission is required by s 577(c) to act in a manner that is open and transparent, and that it would be contrary to this requirement for the Commission to rely on un-redacted material that it has not seen. However, what is required by each of the matters referred to in s 577 will depend on the circumstances. The Commission must for example act in a way that is fair and just, as well as open and transparent. In my view it is only fair to employees in the current matter to keep their names confidential. The company says that I should in that case disregard the un-redacted matter and instead conduct a secret ballot. However in my view this would not be consistent with the requirement to act in a manner that is quick, informal and avoids unnecessary technicalities, particularly in view of the fact, emphasised by the union, that employees have already signed petitions in connection with the previous proceeding and that further verification of majority support is not necessary and would result in delay.
[60] In the particular circumstances of this case, I consider that the Commission’s reliance on the un-redacted material does not have the consequence that the Commission is failing to act in a manner that is ‘open’. Openness is not an ‘all or nothing’ proposition. There is a limitation on the extent of the ‘openness’ of the proceeding in this matter because there is a good reason for it, one related to the Commission’s other obligations concerning the manner in which it carries out its functions. The employer knows the number of employees who have signed the petitions and the dates, it knows that the Commission has checked the names of petitioners and other supporters against the company’s own rosters and confirmed that 42 of the 58 persons appearing there have expressed support for bargaining, its counsel was offered the opportunity to see the un-redacted material, and no evidence was led by the company as to the presence or absence of majority support or impugning the union’s material.
[61] The relevant statutory context in which these issues fall to be considered is also important. As I have mentioned, s 237(3) affords the Commission a broad discretion as to what is the most appropriate method to ascertain whether a majority of employees want to bargain, and there is nothing to suggest that the method need necessarily involve the identification of a precise number, let alone the identity of the individuals who form the majority. In a particular case, it might be sufficient for a witness to give evidence of a show of hands in support of bargaining conducted at a lunchtime meeting, and that the hands conveyed a clear visual majority (or minority) of persons among a group, without specifying either a particular number of hands or any names at all. All of the relevant evidence would need to be considered, including evidence led by the employer.
[62] I would note that the ‘method’ the Commission uses to establish whether there is majority support might be a combination of methods, and that whatever method is used, both parties can lead evidence about whether or not the method or methods have demonstrated that there is in fact majority support. The company submitted that to expect it to give evidence about whether there is majority support places some onus on it to prove a negative. I do not accept this submission. The Act requires the Commission to consider whether it is satisfied that majority support exists. In my view, it is not meaningful to speak of an onus, other than to note the practical interest that an applicant has to convince a decision-maker that relevant statutory requirements have been met. The company was not ‘expected’ to give evidence. Rather, it had an opportunity to lead evidence and decided not to do so.
[63] I should note that, in my first decision, which concerned the previous application, I stated that the union had filed numerous petition documents over a lengthy period, to some extent overlapping and containing repeated names, and that some petitioners’ names were similar to, but not the same as, those appearing on the employer’s list. The petition, text and other evidence in relation to the expression of employee support in that matter was particularly complex and required careful examination. I said that, had I proposed to rely on the un-redacted material in reaching satisfaction that a majority wished to bargain, that might 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. But the present application is very different. The evidence is neither unclear nor complex.
[64] Having regard to sections 577 and 578, the relevant provisions of Part 2-4, and to the evidence and submissions of the parties, I do not consider it appropriate to provide to the company the un-redacted materials that would divulge the identities of those who support bargaining. I also consider that it is fair and appropriate in all the circumstances for me to rely on this evidence in concluding that a majority of relevant employees wants to bargain.
[65] There was 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.
[66] I consider, and it was not contested, that the group of employees who will be covered by the proposed agreement was fairly chosen, as required by s 237(2)(c). 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.
[67] Finally, I am satisfied that it is reasonable in all the circumstances to make the determination (s 237(2)(d)). No contention to the contrary was raised by the Company, nor can I see any basis for such a contention on the materials and evidence before me.
[68] As I am satisfied of the matters set out in s 237, I am required by s 237(1) to make a majority support determination.
[69] The determination will be issued separately. As provided by s 237(4), the determination will come into operation on the date on which it is made.
DEPUTY PRESIDENT
Appearances:
M. Toner for the NUW
D. Trindade for Lovisa Pty Limited
Hearing details:
2019
Melbourne:
16 May
Printed by authority of the Commonwealth Government Printer
<PR707568>
2 The application specified a four week period ending on Wednesday 17 April, but at the directions hearing on 30 April 2019 the union amended its positon to align its proposed time period with the roster cycle at Lovisa, which ends on Fridays.
4 [2015] FCAFC 98; (2015) 232 FCR 246
7 Ibid at [32]
8 [2018] FCAFC 131
9 At [169]
10 At [171]
11 At [172]
12 At [177]
13 Second witness statement of Anna Thwaites dated 13 May 2019, paragraph 12
14 Ibid paragraph 13
15 Ibid paragraph 8
16 Ibid paragraph 4
17 Ibid paragraph 10
18 Ibid paragraph 10
19 Ibid paragraph 12
20 Coal and Allied Services Pty Ltd v Lawler (2011) 192 FCR 78 at 83; see also Kioa v Minister for Immigration & Ethnic Affairs (1985) 62 ALR 321 at 347 per Mason J; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513; 29 IR 148.
21 Allen v Fluor Construction Services Pty Ltd [2014] FWCFB 174 at [22]
22 Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth), (1963) 113 CLR 475 at [504] per Kitto J.
23 Viavattene v Health Care Australia [2013] FWCFB 2532 at [30]