Association of Professional Engineers, Scientists and Managers, Australia, The

[2019] FWC 1065

[2019] FWC 1065

FAIR WORK COMMISSION

DECISION

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

Association of Professional Engineers, Scientists and Managers, Australia, The
(B2019/101)

COMMISSIONER SIMPSON BRISBANE, 19 FEBRUARY 2019

[1] Following some argument in the course of a directions hearing on 18 February 2019 in regard to an application for a majority support determination made by the Association of Professional Engineers, Scientists and Managers Australia Collieries’ and Officials Association (APESMA), I foreshadowed that I would issue directions and orders in regard to the matter with some amendments to draft directions and orders as sought by APESMA. I have set out reasons for the form of orders and directions issued below and have issued directions and orders separately and concurrently with these reasons.

[2] On 7 February 2019 the Association of Professional Engineers, Scientists and Managers Australia Collieries’ and Officials Association (APESMA) made an application under s.236 for a majority support determination. The determination is sought for the purposes of a proposed enterprise agreement to cover those employees of Anglo Coal (Grosvenor Management) Pty Ltd (Anglo) employed in the role of Deputy.

[3] The application indicates there are approximately 34 deputies who would be covered by the proposed agreement, and a majority wish to bargain and have expressed a wish to do so through the signing of a confidential petition. The application stated that Anglo refused to bargain.

[4] I listed the matter for a directions hearing on 13 February 2019. Mr Aron Neilson of Gordon Legal sought leave to represent APESMA and Mr James Hall of Ashurst sought leave to represent Anglo. Leave was granted to both parties.

[5] Mr Nielson advised that there had been discussions between the representatives since the filing of the application and Anglo had clarified that it takes issue with the application generally, including whether a majority of employees wished to bargain. Mr Nielson said he understood from discussions with Mr Hall on behalf of Anglo that there were issues with the nature of the petition and how it was obtained.

[6] Mr Nielson said that this situation then raised issues for APESMA in relation to confidentiality. Mr Nielson proposed to overcome argument in relation to the petition and whether it should be confidential by the Fair Work Commission (FWC) making an order pursuant to s.237(3) for an electronic ballot.

[7] Mr Nielson said just prior to the directions hearing he had provided draft directions to Anglo’s representatives to that end. Mr Nielson proposed the matter could be adjourned to attempt to reach a consent position on the draft directions.

[8] Mr Hall said that while he had not had a chance to consider the proposed directions, the way forward as proposed by Mr Nielson was sensible in the circumstances, that the parties should confer over the proposed directions, and in the event it could not be resolved the matter be relisted.

[9] I determined to relist the matter for directions at 4pm on Monday 18 February 2019 and requested that APESMA provide my chambers with draft orders. I indicated that I would be prepared to adopt consent draft orders and vacate the hearing on Monday 18 February if the parties reached a consent position. I also indicated I could hear the substantive matter in the week of 25 March 2019.

[10] On Monday morning 19 February Mr Rowan Anderson of the Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division Qld (CFMMEU) sent email correspondence to my chambers seeking to appear at the directions hearing that afternoon on the basis that the CFMMEU had a substantial interest in the proceedings.

[11] At the directions hearing on 18 February neither APESMA nor Anglo objected to the CFMMEU appearing. Mr Neilson advised the parties could not achieve consent on directions. Mr Nielson advised Anglo had made no alternative proposal as to how the matter could proceed.

[12] Mr Hall submitted the application had been brought by APESMA and it was for APESMA to prosecute the matter. Mr Hall submitted the draft directions would require his client to take a number of steps and it was not for his client to facilitate the process, and Anglo opposed the application.

[13] Mr Hall conceded in previous matters electronic ballots have been used to determine majority, however it did not see why APESMA abandoned the petition, however if it wished to conduct a secret ballot, Anglo foresaw it would provide a list of employees to the Commission and that would be the extent of its involvement.

[14] Mr Hall also took issue with the first and second paragraphs of the proposed directions. In relations to the draft orders Mr Hall took issue with draft order 2 as assessment of a majority was a matter for the Commission not the ballot agent. In relation to draft order 5 Mr Hall expressed concern as to the security of the information, and whether the Ballot Agent would keep the roll confidential, and whether information concerning the identity and contact details of employees of APESMA who are not members of APESMA would be disclosed to APESMA.

[15] In relation to draft Order 6 it was submitted that there is no method proposed as to what test should be used as to how the Ballot Agent would add delete names from the list and this was unsatisfactory.

[16] In relation to draft Order 9, the order should make clear employees are not required to vote.

[17] In relation to draft Order 11 Anglo queried whether it was within the power of the Commission to impose an obligation on Anglo with respect of the conduct of the ballot by the ballot agent.

[18] The CFMMEU said it supported the position of APESMA and submitted that if the matter was going to be protracted it would need to consider whether it needs to file a separate application to be joined to this application. The CFMMEU submitted that Anglo was attempting to delay and frustrate the application and any supposed burden complained of by Anglo about the proposed ballot was self-serving because if a petition approach were taken Anglo would still need to go through that information to compare it to their own lists of employees, and that employers routinely provide names of employees and contact details to external ballot agents and what was proposed was not unusual by any stretch.

[19] By way of reply APESMA said it proposed the secret ballot rather than the confidential petition simply because it wanted to have the matter dealt with, and it was not interested in having procedural arguments with Anglo, including how petitions have been formulated, whether the names of the persons who signed the petition should be disclosed to Anglo and whether the persons had signed the petition had been kept in safe custody, which APESMA submitted that it anticipated following discussions with Mr Hall would be raised by Anglo. APESMA submitted its proposal would more easily get to the substance of the issue, avoid unnecessary procedural arguments and would be more efficient and less costly in terms of both the Commission and the parties time.

[20] APESMA indicated it did not take issue with a number of amendments to the draft directions and orders including confidentiality of information provided to the ballot agent. I invited Mr Hall to respond to Mr Nielson and he said he could not add anything further.

[21] I am satisfied based on the submissions as put by APESMA and the CFMMEU that ordering a secret ballot to be conducted is an appropriate method in this case to assist me in working out whether a majority of employees want to bargain. It will be an efficient means of getting to the heart of the matter.

[22] I agree with Anglo’s submission that the directions and draft order should be amended so that it is clear that the Commission will determine whether the majority of employees wish to bargain. I also agree that as the applicant APESMA should file its material first.

[23] Anglo indicated it was content to provide its list of employees to the Commission however raised concerns about the process to be adopted by the ballot agent as described in the draft orders at 5, 6 and 11, and also a potential issue concerning the extent of the Commissions power to make orders concerning a parties obligations to a ballot agent.

[24] Without making any findings on those submissions, I have decided to amend the order to address any potential issues that might otherwise arise concerning that submission by directing APESMA and Anglo to provide their respective lists as described at draft order 5 directly to the Commission and not to the ballot agent. The Commission will compile the list to be balloted and the Commission’s order will direct that the ballot agent conduct the ballot from the list as compiled by the Commission. The ballot agent will also be ordered to treat the information confidentially.

[25] Without setting out each amendment, other amendments have been made to the draft order to give effect to the substantive amendment and the manner in which the ballot will be conducted.

COMMISSIONER

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