FURTHER DECISION AND DIRECTIONS

Fair Work Act 2009
s.236 - Application for a majority support determination

National Union of Workers
v
Coldunit Pty Ltd
(B2016/1300)

Application for a majority support determination.

[1] I issued a decision concerning this matter on 16 December 2016. In that decision I rejected the written submissions of the employer and decided that:

● Coldunit had not yet agreed to bargain or initiated bargaining for the agreement proposed by the NUW.
● Provided that I am satisfied that a majority of the workers who will be covered by the Agreement wish to bargain, it is reasonable in all the circumstances to make a determination in this particular case five months in advance of the nominal expiry date of the agreement.

[2] I decided that I should conduct a ballot to determine if there is a majority.

[3] I set out a proposed process and provided the employer with the opportunity to make any comments they might wish to make about the proposed process. The employer did not provide any comments. Part of that process was that the employer should provide a notice to relevant employees advising them of the ballot and that employees who are not rostered to work on that day may attend the site and vote during the time the ballot is open. The notice should be provided to employees twice, once before Christmas and a reminder should be provided one week prior to the ballot.

[4] On 3 January 2017 I advised the parties that the process outlined in the decision of 16 December 2016 would be adopted given that no comment or objection had been received. I also asked for a copy of the notice which had been issued. On 4 January 2017 the employer provided a copy of the notice which had been issued.

[5] On 5 January 2017 my associate wrote to the employer expressing a number of concerns about the notice as follows:

“The Commissioner thanks you for the copy of the notice.

The Commissioner is concerned by the following paragraph in the notice:

“Regardless of whether you vote in support of the ballot or not, Coldunit aims to commence bargaining in late February 2017. If you vote in favour of the ballot, Coldunit will not commence bargaining until late February 2017. If you vote against the ballot, Coldunit will still commence bargaining in late February 2017.”

The Commissioner is concerned that this paragraph when read in conjunction with the earlier sentence that “You do not have to vote” may discourage employees from participating in the vote which is contrary to the decision of the Commissioner to seek the views of employees.

The Commissioner requests that the notice be reissued as soon as possible and not later than the end of this week. The notice should be identical to the earlier notice with the following changes:

1. The last sentence: “If you have any queries regarding this notice please do not hesitate to contact me via email coldunitconsulting@gmail.com or 9094-7936” should be replaced with:

“If you have any queries regarding this notice please do not hesitate to contact the Chambers of Commissioner Roe on (03) 8656 4536 or at chambers.roe.c@fwc.gov.au. Please note this notice replaces the earlier notice about the vote which contained some errors." 

2. The paragraph “Regardless of whether you vote in support of the ballot or not, Coldunit aims to commence bargaining in late February 2017. If you vote in favour of the ballot, Coldunit will not commence bargaining until late February 2017. If you vote against the ballot, Coldunit will still commence bargaining in late February 2017.”  Should be replaced with:

“The Commissioner encourages all employees to participate in the ballot. If a majority of employees vote in favour the Fair Work Commission will issue a majority support determination which will be the notification time for commencing bargaining for the proposed agreement. Coldunit will also, within 14 days, issue a Notice of Employee Representational Rights.””

[6] The company responded on 5 January 2017 rejecting my request as follows:

“We note your request for a revised notice to be sent.

We disagree that there are errors in the notice issued on 22 December 2016. The notice issued fully complies with the Decision of the Commission of 16 December 2016.

With regard to the matters raised in your email our client does not intend to make the further amendments requested or issue a notice that suggests errors have been made:

• While we note the Commissions concerns we do not consider that indicating to staff that voting is voluntary discourages them from voting. The words “you do not have to vote” simply states this fact.



• It is not inappropriate for Coldunit to notify employees of their intention to commence bargaining in the near future (at the end of February 2017). The changes suggested by the Commission may give employees the incorrect impression that Coldunit are required to commence bargaining immediately. This is not the case for reasons we have previously outlined in our written submissions relating to this matter.



• Finally it is not inappropriate for the employer to include its own contact details on the notice or to address queries that may be raised by staff.

We are instructed that our client will issue a further notice this week in accordance with the Decision of 16 December.”

[7] My associate responded as follows on the morning of 6 January 2017:

“The Commissioner notes the response of the company of 5 January 2017.

If agreement on the form of the notice cannot be reached, the Commissioner proposes, subject to considering any further submissions that the parties may wish to make, to issue a direction for the issue of the notice in the form proposed in our recent correspondence. Should the company persist with its proposal to reissue the notice in the original form, the Commissioner also proposes, subject to considering any further submission that the parties may wish to make, to issue directions to allow the NUW an opportunity to respond to the material circulated by the company as part of the procedures directed by the Commission necessary in the circumstances for the Commission to determine whether or not a majority of employees want to bargain.

The Commissioner did not object to the words “you do not have to vote” or seek the deletion of those words.  If it will assist to resolve the matter the Commissioner is prepared to have the words “which contained some errors” deleted from the proposed notice.

Please advise as a matter of urgency if you are prepared to issue the notice in the form proposed by the Commissioner and not reissue the notice in the form objected to by the Commissioner.

The matter will be listed for urgent hearing at 12 noon on Monday 9 January 2016. If the company agrees to issue the notice in the form proposed the hearing will not proceed. If the company does not agree then the hearing will proceed to provide the company and the NUW with an opportunity to be heard and the company is requested to not take any further action until the matter is able to be dealt with at the hearing.”

[8] The matter was listed for hearing on Monday 9 January 2017. On that morning the company wrote as follows:

“We attach a copy of the further Notice distributed to Coldunit employees last Friday. I am instructed that further copies of this Notice will be distributed to Coldunit day shift employees today.

This Notice addresses the concerns raised in the email from your Associate last week.

Our client will not attend the hearing today nor will be represented at the hearing.

Our client will meet you at 1.15pm on Friday at the offices at AB Oxford at 1 Hume Road, Laverton North.”

[9] The revised notice which was attached did not include the following changes I had proposed:

● “Please note this notice replaces the earlier notice about the vote.”

● The additional paragraph:

“If a majority of employees vote in favour the Fair Work Commission will issue a majority support determination which will be the notification time for commencing bargaining for the proposed agreement. Coldunit will also, within 14 days, issue a Notice of Employee Representational Rights.”

[10] The revised notice included the following words which I had proposed be deleted:

“Please note that Coldunit intends to commence bargaining in late February 2017.”

[11] I immediately advised the company that I was not satisfied that the revised notice meets the requests made and that the hearing would proceed.

[12] The company did not attend the hearing on 9 January 2017. The NUW did attend the hearing.

[13] I am satisfied that the company had adequate notice of the hearing and was on notice that:

“If agreement on the form of the notice cannot be reached, the Commissioner proposes, subject to considering any further submissions that the parties may wish to make, to issue a direction for the issue of the notice in the form proposed in our recent correspondence. Should the company persist with its proposal to reissue the notice in the original form, the Commissioner also proposes, subject to considering any further submission that the parties may wish to make, to issue directions to allow the NUW an opportunity to respond to the material circulated by the company as part of the procedures directed by the Commission necessary in the circumstances for the Commission to determine whether or not a majority of employees want to bargain.”

[14] I am also satisfied that the company was clearly requested not to issue a further notice prior to the hearing on Monday 9 January 2017 unless it was prepared to issue the notice in the form requested by the Commission.

[15] Section 237 of the Act provides that: “for the purposes of paragraph 2(a) [that is satisfying itself that a majority want to bargain], the FWC may work out whether a majority of employees want to bargain using any method FWC considers appropriate”.

[16] In the current circumstances I am satisfied that the actions of the company in publishing a partisan notice effectively discouraging employees from voting ‘yes’ in the ballot in the same document as the notification of the ballot, has resulted in a situation where I now doubt that the ballot will be an appropriate and effective method for determining the question. Of course there is nothing to prevent an employer and/or the union from advocating for its position for or against a majority support determination. However, it is inappropriate for the employer to wrongly and inadequately characterise the effect of the ballot. In these circumstances I am satisfied that to ensure that I can be satisfied that the ballot will be an appropriate and effective method for determining the question further steps are required. I therefore issue a direction that the employer:

1. Reissue the notice to all employees on 10 January 2017 with the following amendments:

a) In bold type under the heading at the top of the notice the words: “This notice replaces earlier notices concerning the vote. This notice is issued at the direction of the Fair Work Commission.”

b) Replace the sentence: “Please note that Coldunit intends to commence bargaining in late February 2017” with the words “If a majority of employees vote in favour the Fair Work Commission will issue a majority support determination which will be the notification time for commencing bargaining for the proposed agreement. Coldunit will also, within 14 days, issue a Notice of Employee Representational Rights.”

2. Distribute a notice to be provided by the NUW to all employees on 12 January 2017. The NUW is to provide the Fair Work Commission with the text of the notice by close of business 9 January 2017. Coldunit is able to provide any comment on the notice to the NUW and the Fair Work Commission by 4pm on 10 January 2017. The Fair Work Commission will then advise Coldunit of the notice to be distributed.

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