| [2019] FWC 6994 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
United Voice
v
MSS Security Pty Ltd T/A MSS Security
(B2019/395)
DEPUTY PRESIDENT BULL |
SYDNEY, 14 OCTOBER 2019 |
Application for a majority support determination – application opposed by the employer – whether group fairly chosen.
[1] United Voice NSW Branch (United Voice/the Union) has filed an application pursuant to s.236 of the Fair Work Act 2009 (the Act) for a majority support determination.
[2] United Voice as a bargaining representative sought a determination from the Fair Work Commission (the Commission) that a majority of MSS Security Pty Ltd (MSS Security/the employer) employees who are employed as security officers covered by the Security Services Industry Award 2010 (the Award), and employed at the Holsworthy Army Barracks in New South Wales, want to bargain with their employer for a single enterprise agreement. The Form F30 filed by United Voice stated that the proposed agreement would not cover all employees of MSS Security and, while not clearly expressing what employees the majority support determination was sought for, stated at 1.2.2:
“1. Employees at the Holsworthy Barracks (NSW) site are geographically distinct from other employees;
2. The employees operate a military site and the security requirements are quite different to other sites.”
[3] Attached to the application was a signed petition of 43 MSS Security Officers said to be working at the Holsworthy Barracks NSW taken over the period 11 April 2019 to 17 April 2019. The application asserted that there are 57 employees of MSS Security employed at Holsworthy Barracks.
[4] MSS Security has not agreed to enter into bargaining with its security officers covered by the Award employed at the Holsworthy Barracks and the application was opposed on the basis that the group of employees who are sought to be covered by the proposed agreement is not fairly chosen as per s.237(2)(c) of the Act. MSS Security stated that the group chosen does not represent the majority of its security employees across Defence and non-Defence sites in NSW.
[5] The matter was listed for hearing on 5 August 2019. During the hearing it became evident to the Commission through the witness evidence of United Voice that the parties’ understanding of the scope of the coverage of the proposed agreement was not the same, 1 resulting in at least the employer’s case being run in part on an incorrect premise. This may have become evident to the employer at a much earlier stage had it ascertained for itself whether the employee numbers asserted by United Voice to be covered by the proposed agreement were accurate.2 Thus, at the conclusion of the Union’s evidence the matter was adjourned for the Union to file an amended Form F30 and for the employer to make any necessary changes to its witness statements and submissions.3
[6] United Voice subsequently filed an amended F30 which stated that the coverage of the proposed agreement sought was:
“All MSS employees covered by the Security Services Industry Award 2010 within the Liverpool Military Area (LMA) better known as “Holsworthy Army Barracks”. The site is bounded by Anzac Road and the M5 Motorway in the north, Heathcote Road in the east and the Georges River in the west and includes Holsworthy Army Base, Joint Logistic Unit – East, Luscombe Airfield and Holsworthy Training Area. Its overall area is approximately 19,672 hectares.”
[7] Holsworthy is approximately 35 km south-west of the Sydney business district, in the City of Liverpool NSW. MSS Security has its head office in Silverwater NSW approximately 40 minutes’ drive from Holsworthy. 4 The Holsworthy Army Barracks forms part of the Liverpool Military Area (LMA) which includes the Joint Logistics Unit East (JLU East).
[8] United Voice submitted that a majority of employees who would be covered by the proposed agreement want to bargain for a site specific agreement as evidenced by the petition signed by employees it attached to its application. United Voice submitted that the security officers at the Holsworthy Army Barracks (which includes what is known as JLU East) are a fairly chosen group of employees.
[9] It is contended that the Holsworthy Army Barracks is geographically distinct as a large discrete defence site 35 km south west of Sydney.
[10] It was also contended that the Holsworthy Army Barracks are operationally and organisationally distinct for a number of reasons which include:
• Training is organised and performed on site, with staff taking responsibility for on the job training and guidance.
• The LMA is the primary defence contract site that houses Special Forces.
• There is little to no direct staff contact between different sites with security staff reporting to site specific leading hands, supervisors and managers.
• Workplace issues are managed locally e.g. pay queries and leave applications.
• Rosters are generally the responsibility of the site manager/supervisor.
• Occupational health and safety matters are managed locally.
• There exists a variation of rates of pay and conditions of service at defence sites. 5
[11] United Voice submitted that there was relatively little cross-utilisation of staff between sites and that a site specific agreement does not prejudice other groups of employees from bargaining in the future.
[12] It was submitted that the fact that support services were provided from the employer’s Head Office was not relevant to the assessment of a fairly chosen group of employees. Some functions are managed on site, others off site. The Work Health and Safety Committee is site specific and the site has its own Site Manager.
Evidence of Harry King
[13] Mr King has been a United Voice delegate for approximately 12 months and is currently employed as a Level 4 Security Guard at the Holsworthy Army Barracks. Mr King has also worked for MSS Security at Garden Island (February 2016 – October 2017) which is also an MSS Security Defence contract site. Mr King stated that employees are rarely moved 6 between other MSS Defence sites and the Holsworthy Army Barracks. Employees have been moved between Defence sites for disciplinary reasons or where they have requested a transfer. Currently an employee from the Garden Island site was working at the Holsworthy site.
[14] Mr King had undertaken voluntary overtime at Victoria Barracks, another MSS Security Defence site, as occasionally employees volunteer to work an overtime shift at other defence sites. Mr King stated that he had never heard of employees moving to another MSS Defence site for their normal rostered shifts.
[15] Mr King stated that work rosters are site specific and when security officers are sick they are directed to call their site supervisor or manager and not someone at another site. Training is site specific as each site has specific rules and work health and safety matters are managed locally. Mr King’s evidence was that the Holsworthy site had higher security requirements than other Defence contract sites.
[16] Mr King stated that he had discussions with a number of Union members about improving pay and conditions and sought the advice of Union Organiser Mr Ricky Keehn whose advice was to bargain for an enterprise agreement. Mr Keehn later told him that MSS Security had not agreed to bargain and that he would need to sign a petition to demonstrate that the majority of employees wished to bargain for an agreement.
[17] In April 2019, Mr Keehn gave Mr King a number of blank sheets (the petition) for distribution to staff at Holsworthy Barracks for staff to sign if they supported the request to bargain for an agreement. Mr King assisted in distributing the petition among staff.
[18] In May 2019, Mr King attended a meeting with Mr Keehn and MSS Security’s HR/IR Manager NSW Ms Bryant, to discuss an Award classification when Mr Keehn suggested that Mr King accompany them to the Williamtown RAAF base, which Ms Bryant refused on the basis that Williamtown has its own separate issues unrelated to Holsworthy.
[19] Mr King accepted in cross examination that the training modules required to be completed by MMS Security were the same for all Defence sites. 7
Evidence of Ricky Keehn
[20] Mr Keehn is an organiser with United Voice and has been responsible for Defence sites since 2014. Mr Keehn’s evidence was that security officers are seldom cross-utilised at different sites, although they do pick up overtime shifts at other sites. Holsworthy is the largest army barracks in the Southern hemisphere.
[21] Since MSS Security took over the Holsworthy site Union members have queried why they were paid less than when working for the previous contractor and less than at other MSS Security sites. 8 He advised members that the best way to remedy this was to bargain with the employer by demonstrating that they had a majority of employees ready to bargain. On 26 March 2019, Mr Vance an Industrial Officer for the Union wrote to MSS Security requesting that they commence bargaining.
[22] Mr Keehn provided Mr King (a site delegate) with a petition for employees to sign which was signed by 43 of the 57 employees at the site.
[23] On 9 May 2019 Mr Keehn was told at a meeting with Ms Bryant MSS Security’s Human Resources/IR Manager, that because the Williamtown RAAF has its own separate issues unrelated to Holsworthy it would not be appropriate for Mr King from the Holsworthy base to visit the Williamtown site to discuss an Award classification issue.
[24] Mr Keehn was aware that an on-call security officer working as a ‘Reliever’ receives an allowance and can be assigned to any site. While security officers at Holsworthy and Williamtown Defence sites performed similar duties the sites were geographically distinct.
[25] MSS Security currently employs 48 employees working at the Holsworthy Army Barracks and the Joint Logistics Unit East in Moorebank. It is accepted that the petition attached to the application shows a majority of the employees support the request by United Voice for MSS Security to enter into bargaining for a site specific enterprise agreement.
[26] MSS Security maintains that the group of employees employed at the Holsworthy Army Barracks and the JLU-East is not organisationally, operationally or geographically distinct. The Holsworthy and JLU–East sites form part of a contract with the Department of Defence to provide security in access control, perimeter patrols and the pass office. MSS Security states that it does not provide security services to or patrol the entirety of the LMA.
[27] All security officers performing ‘access control’ under the Defence contract are titled Access Control Officers. All defence sites have a Base Manager and senior Australian Defence Force personal.
[28] MSS Security employs approximately 435 employees at Defence and non-Defence sites across New South Wales of which approximately 335 employees are covered and paid under the Security Services Award 2010. Employees at the Holsworthy Army Barracks represent around 11% of employees working at Defence sites in NSW. 9
[29] A limited number of sites are paid under the Chubb Defence Greenfield’s Agreement (NSW) 2006-2011. This agreement, which was negotiated in 2006, applied to Sydney Central Defence sites. When the agreement expired in 2011, a memorandum of understanding was negotiated with the then Liquor, Hospitality and Miscellaneous Workers Union.
[30] MSS Security provides security services to 22 Defence and 18 non-Defence sites in NSW. These sites require an employee to have either an Australian Government Security Vetting Agency (AGSVA) Baseline or Negative Vetting 1 (NV1) clearance. Due to these clearance requirements employees are cross utilised within the business. MSS Security employs approximately 39 ‘Relievers’ who are not assigned to any specific site and are assigned shifts at any site to ensure coverage is maintained to meet service level demands.
[31] It is submitted that many of MSS Security’s Defence and non-Defence contracts are located within approximately a 20-40 minute drive from Head Office, with Holsworthy Barracks not being a distinct geographic site. The furthest Defence site, Singleton Military Area, is 191 km’s from Head Office with the Lidcombe Multi User Depot (MUD) being the closest at 4.2 km from Head Office in Silverwater NSW. The furthest non-Defence site is 266km’s from Head Office.
[32] In response to what was put by United Voice MSS Security put the following in reply:
Training
[33] All employees regardless of their geographical location and classification are required to complete the same training of 4 induction modules and 6 Defence modules with an annual refresher. Site specific training is to ensure employees are familiar with the specific site’s standard operating procedures, and safety requirements. 10
[34] The head of training is based at Head Office and required to oversee the compliance of all compulsory training modules and deliver site specific training as required by MSS Security or the client.
Location of Special Forces
[35] MSS Security states that it is not contracted to provide security services to the entire LMA or the Special Forces. The LMA includes the JLU East Defence site in Moorebank a 10 minute drive from the Holsworthy Barracks. In addition to the Holsworthy Barracks many of the Defence sites in the Sydney metropolitan area and regional NSW house Special Forces including the RAAF base in Williamtown and the HMAS Garden Island site which houses the Royal Australian Navy’s elite divers. 11
Management of Workplace issues
[36] While no organisational chart was tendered by MSS Security it was stated that security staff report to Leading Hands then to Supervisors or Managers who report to a Business Manager, then to a State Operations Manager with a General Manager being ultimately accountable. All security officers are required to comply with MSS Security Standing Instructions. MSS Security’s Policies and Procedures are the same for all sites. Pay queries and leave applications are submitted to and processed by the Operations Centre and National Payroll team located at Head Office. For example, clause 7.1 of the Standing Instructions requires any employee reporting an absence to notify the Operations Centre.
[37] Recruitment of security officers is managed through Head Office and security officers are then inducted by Human Resources at Head Office. Relievers employed to work shifts at any work location to meet client demands are also recruited through Head Office. All security officers have in their employment contract a requirement to work at any MSS Security Services or client premises.
[38] It was submitted by MSS Security that the Defence sites operate on common shift patterns with slight variations, the most common shift pattern being a 4 on 4 off roster. Shift coverage and rosters are dealt with by Service Delivery Coordinators based at Head Office.
Occupational Health and Safety
[39] MSS Security submitted that all Health and Safety (HSE) matters are in the first instance reported to the site Supervisor/Manager and then escalated to the NSW HSE Advisor who attends all site HSE committee meetings including the Holsworthy Barracks.
[40] The NSW HSE Advisor is responsible for reviewing risk assessments at all NSW sites, conducting site audits, and reviewing all workplace site inspections. The HSE Adviser also oversees injury management and workers compensation matters.
Pay Rates and Conditions
[41] While the majority of employees in NSW are paid under the Award, a handful of sites are paid under the Chubb Defence Greenfield’s Agreement (NSW) 2006-2011, an agreement negotiated by Chubb Security Personnel 12 to apply to prospective employees at Sydney Central Defence Sites employed by Chubb under a contract with the Compass Group. When the agreement expired in 2011, a Memorandum of Understanding (MOU) was entered into with employees working under the Compass Group contract. The employees’ representative at the time was the then Liquor, Hospitality and Miscellaneous Workers Union. The contract with Compass has since ended and MSS Security now has a contract with the Department of Defence but the terms of the Greenfield agreement continue to be honoured with Fair Work Commission minimum wage rises being applied.13 Of the 435 employees working at Defence and non–Defence sites 147 employees are paid in accordance with the Greenfield agreement and MOU.14
[42] MSS Security submitted that there are sound business reasons as to why it would be unreasonable for the majority support order as sought to be issued. 15
Evidence of Michael Matthews
[43] Mr Matthews is the employer’s General Manager Defence. Mr Matthews provided a witness statement and a further supplementary statement. 16 Mr Matthews’ evidence was that MSS Security has a contract with the Department of Defence to provide security services in NSW, ACT and QLD.
[44] MSS Security has an in-house Rostering Management System known as ‘Rolecall’ that contains the rosters for all client sites. The Service Delivery Coordinators in NSW and the National Operations Centre administer the rosters and manage shift coverage. Where there are absences the Coordinators are required to arrange for coverage.
[45] Recruitment is organised out of Head Office in Silverwater NSW where employee inductions are held. Mr Matthews convenes a meeting each fortnight with the NSW Recruitment team to review staffing needs. The recruitment team regularly recruit for Relievers who, once trained, are utilised across Defence and non-Defence work sites. There are currently 39 Relievers that hold the necessary clearances to work across sites.
[46] All security officers at Defence sites irrespective of their location are required to complete compulsory training prior to their commencement and an annual refresher. All security staff including at Holsworthy are required to:
• Hold a Baseline or NV1 clearance;
• Hold a current and valid NSW Security Licence;
• Maintain First Aid certification;
• Perform the inherent requirement of a Security Officer; and
• Perform indicative tasks in accordance with the relevant classification in the Award.
[47] During cross examination Mr Matthews accepted that the Holsworthy Site Manager was the first point of contact for site issues.
Evidence of Mr Marc Sori
[48] Mr Sori is MSS Security Services State Operations Manager – Defence (NSW) and reports to Mr Matthews the General Manager Defence. Mr Sori prepared two witness statements 17 Mr Sori’s evidence was that he manages the employer’s Defence contract and is responsible for the overall management of security operations of all security officers at all 22 NSW Defence sites. The Site Supervisor or Manager at each Defence site in NSW report directly to Mr Sori, their role is the same across all Defence sites. Mr Sori stated that he regularly visits these sites to ensure compliance standards and service levels are met.
[49] Mr Sori stated that MSS Security does not provide security services for the entire LMA. A security officer is provided to the entry gate to Special Services. All security breaches at Defence sites are reported to him.
[50] Mr Sori stated that it was common practice for security officers at Defence Sites to work overtime shifts on their time off at other Defence sites as needed. On any given day 2-3 employees are working overtime at another site. The Holsworthy Army Barracks has 36 full time staff and the JLU East site has 12 full time staff that may be cross utilised between Defence and non-Defence sites that require an AGSVA Baseline/NV1 Clearance. 18 In cross examination Mr Sori stated that Site Managers did not work across sites.
[51] On a weekly basis Mr Sori receives a training compliance update and report from the NSW Training and Compliance Coordinator and follows up with all sites on completion of any overdue compliance training modules. Any pay queries or adjustments are dealt with and approved by him and adjustments are processed through Head Office; they are not handled at a site level.
[52] Mr Sori stated that MSS Security policies and standard operating procedures did not differ between Defence sites.
[53] In respect of this application the relevant sections of the Act are ss.236 and 237 of the Act which are as follows:
“236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
237 When the FWC must make a majority support determination
Majority support determination
(1) The FWC must make a majority support determination in relation to a proposed single-enterprise agreement if:
(a) an application for the determination has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which the FWC must be satisfied before making a majority support determination
(2) The FWC 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.
(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
Consideration
Section 236
[54] I am satisfied that United Voice is a bargaining representative for employees who will be covered by the proposed single-enterprise agreement and is, therefore, capable of making the application for a majority support determination. I am also satisfied that the employer, MSS Security Pty Ltd, and the employees that will be covered by the proposed single-enterprise agreement, have been specified.
[55] Having satisfied s.236 the Act, s.237 stipulates when the Commission must make a majority support determination. In particular sub-s.237(1) of the Act states that the Commission must be satisfied of the matters set out in sub-s.(2) in relation to the agreement.
[56] Subsection (2) of s.237 of the Act is dealt with below:
Sub-s.237(2)(a) of the Act
[57] This subsection requires demonstration that a majority of the 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.
[58] On what has been put I am satisfied that a majority of employees employed by MSS Security Services Pty Ltd, and who will be covered by the proposed single-enterprise agreement, want to bargain as at the time the application was filed. This is indicated in the petition attached to the application signed by employees working at the Holsworthy Army Barracks declaring that they wish to bargain for an enterprise agreement. The 43 signatures represent a majority of employees at the site that would be covered by the proposed agreement. That the majority of employees wish to bargain is not contested by the employer. I am also satisfied pursuant to s.237(3) of the Act that the petition of employee signatures is an appropriate method in concluding that the majority of employees want to bargain.
Sub-s.237(2)(b)
[59] This sub-section requires that the employer that will be covered by the agreement has not yet agreed to bargain, or initiated bargaining, for the agreement. I am satisfied that MSS Security Pty Ltd has not yet agreed to bargain, hence the objection to the application by the employer. Again this was not disputed by MSS Security.
Sub-s.237(2)(c)
[60] This sub-section deals with the crucial issue between the parties, that is, whether the group of employees who will be covered by the agreement was fairly chosen. Sub-section 237(3A) of the Act states that for the purposes of sub-s.237(2)(c) of the Act, if the agreement will not cover all of the employees of the employer, the Commission must in deciding whether the group chosen was ‘fairly chosen’ take into account whether the group is geographically, operationally or organisationally distinct. Having regard to the evidence produced by both sides and summarised above I have reached the following conclusions in regard to whether the group is geographically, operationally or organisationally distinct.
Organisation
[61] The Full Bench in the decision of Aerocare Flight Support Pty Ltd v TWU 19 stated at [27] that guidance may be obtained as to how to interpret and apply the expression “organisationally distinct” in s.186(3A) of the Act from decisions concerning the use of the same expression in ss. 237(3A) and 238(4A) of the Act. The Full Bench went on to list a number of relevant propositions:
• the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations;
• the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct;
• however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; and
• most businesses have organisation structures which will allow organisationally distinct groups to be identified.
[62] The Full Bench in Australian Worker’s Union v Job Connect Recruitment Pty ltd t/a Job Connect 20 reaffirmed the above when stating:
“ … the term “organisation” refers to the manner in which the employer has organised its business in order to conduct its business, that most businesses have organisational structures which allow organisationally distinct groups to be identified, and that the performance by a group of employees of duties which are qualitatively distinct may be a marker that the group is organisationally distinct. Organisational distinctiveness will weigh in favour of, but not be conclusive as to, whether the group of employees covered by an agreement is fairly chosen.”
[63] The evidence in this matter was not demonstrative that the manner in which the employer has organised its enterprise in order to conduct its operations separates and distinguishes in any real way what occurs at the Holsworthy Army Barracks from its security services at Defence sites elsewhere in NSW. It was established that organisationally in respect of matters such as recruitment, rosters, training, occupational health and safety and payroll that they are coordinated and implemented from Head Office in regard to all sites including non-Defence sites.
Operations
[64] The Full Bench in QGC Pty Ltd v The Australian Workers’ Union 21 (QGC) held that the term ‘operational’ refers to an industrial or productive activity; in this case it is the provision of security services to Defence and non–Defence sites. The degree of distinctness in an operational sense refers to “an industrial or productive activity”. It does not refer to the performance of a “different role, skill, task or function.22 The provision of security services at the Holsworthy Army Barracks is, on the evidence provided by the parties, not dissimilar to the provision of security services to the other 21 Defence contract sites in NSW. While there may at best be some operational differences at the Holsworthy site in comparison to other Defence sites, it is not significant.
Geography
Geographical distinctiveness relates to the group of employees with respect to whom the majority support order is sought. The Full Bench decision in QGC contemplates geographical distinctness in single locations or geographical subsets of a total business. 23 The Holsworthy Army Barracks is one of 22 Defence sites together with another 18 non-Defence sites in NSW all located at different service addresses for which MSS Security is contracted to provide security services. While it is possible to travel between Defence sites by motor vehicle, with the Defence sites of Lidcombe MUD being 4.2km from the Head Office in Silverwater and Singleton being 191km from Head Office, I am satisfied that the Holsworthy Army Barracks is geographically distinct. This is despite the employer’s evidence of security officers’ contracts of service requiring duties to be performed at any site at which they have a contract to provide security services and that employees engaged as ‘Relievers’ move from one site to another according to client demands and that overtime shifts are performed at different sites by security officers. The evidence did not demonstrate the proposition that it was a common occurrence for employees at the Holsworthy Barracks to work at other sites either Defence or non -Defence.
Section 237(2)(d) of the Act
[65] The Commission is finally required to be satisfied that it is reasonable in all the circumstances to make the order sought.
[66] In Cimeco Pty Ltd v CFMEU & Ors (Cimeco), 24 the concept of “fairly chosen” was discussed by the Full Bench albeit under s.186(3) of the Act as follows:
“[19] Given the context and the legislative history it can reasonably be assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would be a factor telling against a finding that the group was fairly chosen.
[20] It is important to appreciate that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations.
[21] It is not appropriate to seek to exhaustively identify what might be the other relevant considerations. They will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal. The word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. It is also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant…”
[67] The Full Bench in QGC adopted the reasoning of the Full Bench in Cimeco and stated at [42]:
“[42] For the Commission to reach a state of satisfaction necessary to make a majority support determination, it must be satisfied that the group was fairly chosen and in considering whether the group was fairly chosen, it must take into account, by virtue of s. 237(3A), whether the group is geographically, operationally or organisationally distinct. Distinctiveness is not absolute and can be a matter of degree. Distinctiveness on one of those bases is a factor telling in favour of a finding that the group is fairly chosen. Conversely if the group of employees is not geographically, operationally or organisationally distinct, then that is a factor telling against a finding that the group is fairly chosen. Whether or not a group is organisationally, operationally or geographically distinct is not decisive but rather is a matter to be given due weight having regard to all of the other circumstances.”
[68] Having regard to the above it is clear that whether or not the group of employees covered by the agreement is geographically, operationally or organisationally distinct is not absolutely decisive in determining whether a group of employees is fairly chosen. The concept of distinctness in s.237(3A) of the Act is not absolute, but rather a matter of degree. It is a matter to be given due weight, having regard to all other relevant considerations.
[69] In applying what the Full Bench stated in Cimeco 25 the Commission should have regard to the interests of the excluded employees, however neither party provided any or sufficient material for the Commission to draw any conclusion on this issue.26 However, the granting of the application as sought would not prevent other groups of employees from bargaining in the future.
[70] Although there is no requirement to decide what would be the fairer or the fairest group, MSS Security in opposing the majority support determination on the ground that the group of employees to be covered by the agreement is not fairly chosen, were non-committal when asked by the Commission what would be a fairly chosen group with the response varying from employees in NSW to employees Australia wide.
[71] I have accepted above that the scope of the proposed agreement reflects the group of employees who have approached United Voice and sought its assistance as a bargaining representative. However, in my view the selection of the group of employees being confined to the Holsworthy Army Barracks being one out of 22 Defence sites in NSW, and representing approximately 11% of security officers employed in NSW to provide security services at Defence and non-Defence sites, is not reasonable in all the circumstances.
[72] I have reached this conclusion on the basis of the material put before the Commission and taking into account whether the group of employees who will be covered is geographically, operationally or organisationally distinct. While all matters of distinctiveness are a matter of degree I am not satisfied that the group of security employees working at the Holsworthy Army Barracks in all the circumstances represents a group that is fairly chosen, at least in respect of the 22 Defence sites in NSW. Evidence as to what occurs at non-Defence sites was scant; Mr Matthews and Mr Sori who were the only witnesses, and who gave evidence for the employer, occupied the positions of General Manager Defence and State Operations Manager-Defence NSW respectively.
[73] As stated above, the Holsworthy and JLU–East sites form part of a contract with the Department of Defence to provide security in access control, perimeter patrols and the pass office. All Defence employees regardless of their geographical location and classification are required to complete the same training conducted through the NSW Training and Compliance Coordinator. Company policies and standard operating procedures do not differ between Defence sites. Other than HSE committee meetings at which the Head Office HSE adviser attends HSE is run for all sites through Head Office. Pay queries and pay adjustments are dealt with through Head Office. These circumstances also provide legitimate business reasons for a single Defence contract site not to be considered fairly chosen.
[74] It was not demonstrated other than its geographical location that there exists at the Holsworthy Army Barracks any significant special characteristics distinguishing the site or that the security officers at Holsworthy occupy a role with special characteristics. Overall the evidence demonstrated that as far as Defence sites were concerned the 22 NSW sites had significantly more in common than anything that could be said to exist to distinguish them from the Holsworthy site.
[75] As such I conclude that the group of employees is not fairly chosen and in accordance with s.237(2)(d) it is not reasonable in the circumstances to make the determination sought by United Voice.
DEPUTY PRESIDENT
Appearances:
Mr J Davis United Voice
Ms K Bryant MSS Security Pty Ltd
Hearing details:
2019.
Sydney:
August 5, 14
Printed by authority of the Commonwealth Government Printer
<PR713182>
1 PN432 and PN447
2 PN449
3 PN485
4 Witness statement of Mr Matthews Ex R2 at [5]
5 Outline of Submissions 22 July 2019
6 Witness statement Ex A1 at [6]
7 PN176
8 PN279
9 Witness statement of Mr Matthews R1 at[ 17]
10 Written submissions of 9 August 2019 at [6.9.1]
11 Witness statement of Mr Sori of 9 August at [8]
12 ABN 29 100 573 966
13 Supplementary witness statement of Mr M Matthews at [15] 9 August 2019 Exhibit R2
14 Witness statement of Mr Sori Exhibit R4 at [13]
15 See 5.1.2 of 1 July 2019 Outline of Submissions
16 Exhibits R1 and R2
17 1 July and 9 August Ex’s R3 and R4
18 Witness statement Ex R4 at [10]
22 At [44]
23 At [47]
25 At [22]
26 See comments of DP Sams in Australian Rail Track Corporation [2016] FWCA 7012 at [81]