Australian Education Union v Mambourin Enterprises Ltd T/A Mambourin

[2020] FWC 3760

[2020] FWC 3760

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Australian Education Union
v
Mambourin Enterprises Ltd T/A Mambourin
(B2020/135)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 17 JULY 2020

Application for majority support determination.

[1] The Australian Education Union (AEU) made an application on 5 March 2020 pursuant to s.236 of the Fair Work Act 2009 (Cth) (the Act) to the Fair Work Commission (Commission) for a majority support determination of employees of Mambourin Enterprises Ltd trading as Mambourin.

[2] Employees of Mambourin are currently covered by the Mambourin Enterprise Inc Disability Services Victoria (Part 1) Collective Agreement 2008 (Current Collective Agreement) delivering disability programs to clients across several hub locations in Victoria.

[3] I am somewhat disappointed that the parties are apparently unable to work together to address a very serious community crisis, the COVID-19 crisis, which as the applicant and respondent submit is currently a major problem for employers and employees:

“COVID-19’s community-wide impact is notorious.” 1

[4] It is a matter for regret that even this current crisis has not led to the parties cooperating. What would have to happen to lead the parties to cooperate? I respectfully suggest that both sides should review their positions to see if the current lack of cooperation is necessary. I would be prepared to convene a further conference if this would be of assistance, although perhaps a narrow conference which does not address the termination of agreement issue. I note that the respondent quite properly reconsidered its opposition to the majority issue, given the question I asked it, and took a responsible approach in so doing.

[5] The AEU submitted that in September of 2019 they had made attempts to approach Mambourin to bargain for a new agreement or to join Mambourin as a signatory to a proposed multi-enterprise agreement being negotiated with Jobs Australia. Mambourin indicated that they would not be a signatory to the multi-enterprise agreement and that they were not proposing to bargain for a new agreement. Several attempts were made by the AEU to discuss bargaining with Mambourin with the final attempt being made in or around February 2020. Mambourin had refused to meet with the AEU until the application for termination of the Current Collective Agreement process had concluded with the Commission. Between September and November 2019, the AEU collected signatures for two petitions concerning the termination of the Current Collective Agreement and another supporting a Majority support Determination. Following concerns raised by Mambourin in their submissions concerning the evidence adduced by the AEU with the termination application, signatures were obtained a second time from affected employees with respect to both petitions. With respect to the majority support petition, the AEU submit that the number of signatures collected is demonstrative of a majority of employees wanting to commence bargaining for a new enterprise agreement. 2

[6] My Chambers contacted Mambourin seeking their views of the application lodged by the AEU on 11 March 2020. 3

[7] The application for the majority support determination was opposed by Mambourin. Mambourin submitted that there is another application before the Commission concerning termination of the Current Collective Agreement which was listed for a two-day hearing on 17 February and 6 March 2020 respectively. The application lodged by the AEU for a majority support determination was filed on the day before the second day of the listed hearing dates. Mambourin submit that it is therefore not reasonable to make the determination for majority support in circumstances where an application is made in direct response to an application to terminate the Current Collective Agreement. An order should not be made until the application concerning termination is resolved. 4

[8] A Conference was conducted by the Commission on 26 March 2020. By agreement directions 5 were issued requiring Mambourin to provide submissions dealing with their objection with respect to s. 237 of the Act. The AEU were required to provide their response to the submissions of Mambourin. It was agreed jointly during the Conference that the matter be determined on the papers.

[9] On 6 May 2020, Mambourin sought for further directions to be issued as “there are certain matters raised in the AEU’s submissions, including seeking leave to file an “Amended Application”, which warrant a response. In the circumstances, Mambourin seeks a direction allowing it to file and serve submissions in reply before the matter is determined on the papers”. 6 Further directions were issued and sent to the parties on 7 May 2020.

[10] On 3 June 2020, I sent further directions concerning Mambourin’s objection to the lack of a petition majority as simple arithmetic using the respondent employee numbers appeared to defeat the objection. On 5 June 2020, Mambourin advised that they would withdraw their objection directed to the lack of a petition majority and leaving the other objections remaining. 7

The Act

[11] The relevant matters which the Commission must be satisfied before making a majority support determination 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.”

Submissions

[12] A summary of submissions received by the AEU and Mambourin are attached 8 to this decision. I have had regard to all the evidence and submissions.

Amendment

[13] Pursuant to s.586 the Commission may ‘allow a correction or amendment of any application …’, or ‘waive an irregularity’ of form or manner:

“586 - Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

[14] In Mihajlovic v Lifeline Macarthur 9 a Full Bench of the Commission said:

“[35] There is a long history in predecessor statutes to the Act of provisions which are equivalent or at least similar to s.586. Section 41(1)(l) and (k) of the Conciliation and Arbitration Act 1904 (Cth) empowered the Conciliation and Arbitration Commission to “allow the amendment, on such terms as it thinks fit, of any proceedings” and to “correct, amend or waive any error, defect or irregularity, whether in substance or in form”. In Re Coldham; Ex parte BLF the High Court gave these provisions, together with the power to “extend any prescribed time” in s.41(1)(m), a wide field of operation so as to give effect to the statutory intention that proceedings before the Commission be directed to the merits and that technicalities and legal forms should not be regarded. These provisions were reproduced in s.111(1)(p), (q) and (r) respectively of the Industrial Relations Act 1988, and were retained in that Act upon its metamorphosis into the Workplace Relations Act 1996. The 2006 Work Choices manifestation of the Workplace Relations Act removed the general power to extend time, but retained the other powers in s.111(1)(l) and (m). The power to waive errors, defects or irregularities was used in a wide variety of circumstances as to both procedural and substantive matters: see, for example, Re Union of Christmas Island Workers; Re The Association of Professional Engineers, Scientists and Managers, Australia; Re Perth Bus Certified Agreement; Caruana v STA Pty Ltd; Boom Logistics/Employee Naval Base Industrial Agreement 2004/2005 and CPSU v Port Adelaide Training and Development Centre Incorporated t/as PATDC Employment and Training.

[36] Section 586(b) may be narrower than the previous provisions referred to, in that the waiver power is confined to matters of “form or manner” rather than “substance or ... form”. There is surprisingly little authority, outside the State constitutional context, as to what types of matters are encompassed by “form or manner” or like expressions such as “manner and form”. However, in O’Connor v Kinniburgh the New Zealand Supreme Court held that a statutory power to make regulations concerning the “form and manner” in which a thing is to be done may include requirements as to when the thing may be done.

[37]In Tomlinson v Leveda Inc the Full Commission of the Industrial Relations Commission of South Australia observed that provisions of the same type as s.586(b) are “directed towards ameliorating the effect of a variance or failure to comply with a procedure specifically stated in the Act or Rules so that the Commission can proceed to deal with the real dispute between the parties without the limitations of procedural defects”.”

[15] The AEU sought leave to file an amended application supported by a petition dated 4 March 2020 in order to add the Melton hub. It submitted: 10

“Mambourin submits that Melton signatories should be excluded on the basis that Melton is not one of the hubs to be covered by the proposed agreement. Contrary to that submission, it is intended that the proposed agreement apply to the Melton hub facilitators. Mr Burke’s witness statement in support of the application names Melton as one of the hubs where employees are to be covered by the proposed agreement: Mr Burke, [5]. The fact that 16 Melton facilitators have signed the Petition signifies that they want to bargain. By oversight, Melton was omitted from the list of relevant hubs explicitly named in the application. The AEU seeks leave to amend its application to make explicit that Melton facilitators are included. An Amended Application is attached as Schedule 1. The FWC’s statutory charter to act in accordance with the merits of the matter [s. 578(c)] means that any amendment should be non-controversial and the FWC ought not to be diverted by the oversight.

The Melton facilitators should be covered by the MSD and any proposed agreement because: (a) the 2008 Agreement applies to the Melton facilitators equally with other facilitators at other hubs; (b) the Melton facilitators perform work of the same type as other facilitators; (c) the 16 Melton Petition signatories want the AEU to bargain (like facilitators at other hubs); (d) an express mention of Melton in the application was omitted only by oversight: it is a technicality not a matter of substance. Having regard to the fact that Melton facilitators have indicated that they want to bargain by signing the Petition and Mr Burke’s witness statement filed with and in support of the application. No relevant prejudice is caused by the amendment.

In addition, Melton facilitators are part of a “fairly chosen” group: see s. 237(2)(b). If Melton were excluded issues may arise as to whether the group was “fairly chosen”: s. 237(2)(c). The employee group to be covered by the proposed agreement is fairly chosen because all facilitators will be covered regardless of their hub. For the same reason, Bacchus Marsh facilitators should be covered albeit that there are no Bacchus Marsh Petition signatories: Cf. Mambourin, [20]. A commonality as to the type of work regardless of where it is performed demarks the group as fairly chosen.”

[16] There were a range of objections to the application, including allegations that the AEU’s submission has generated more confusion because:

•  the amended application does not provide evidentiary support why the addition of the Melton hub was added as an oversight; 11

•  the AEU’s amended application states that any proposed agreement will cover employees “employed as Instructors/Facilitators, Team Leaders, and Hub Managers” of Mambourin. However the AEU’s submissions state that only instructors/facilitators will be covered, and all other employees should be excluded from coverage; 12 and

•  the coverage submitted by the AEU states that it is willing to exclude all 58 casual employees in the application to achieve a simple majority, but it is not explained how all casuals could be exclude from consideration with the Commission making a determination that any proposed agreement is to cover Mambourin’s casual employees. 13

[17] There is a need to adequately explain the proposed coverage, but it is unclear why evidence is needed given the discussion below about the coverage clauses proposed. The original application provided for coverage of the proposed agreement as follows:

“The proposed enterprise agreement will cover employees employed as Instructors/Facilitators, Team Leaders, and Hub Managers of Mambourin Enterprises Ltd in the day services centers or hubs, which provide group programs for individuals with a disability. The proposed agreement would cover permanent (full-time and part-time), fixed-term and casual employees.”

[18] The amended agreement was unchanged on this point, proposing coverage that is as follows: 14

“The proposed enterprise agreement will cover employees employed as Instructors/Facilitators, Team Leaders, and Hub Managers of Mambourin Enterprises Ltd in the day services centers or hubs, which provide group programs for individuals with a disability. The proposed agreement would cover permanent (full-time and part-time), fixed-term and casual employees.”

[19] The coverage is clearly proposed to include, and did so from the start, those ‘employed as Instructors/Facilitators, Team Leaders, and Hub Managers of Mambourin Enterprises Ltd in the day services centers or hubs’. It is entirely consistent with this to add Melton to the list. To exclude Melton might raise questions about the fairness of the coverage. There is no logical reason on the material before me why Melton would be excluded. In relation to the objection about the contrast between submissions and coverage, the submissions are to some extent imprecise, but the intent seems clear from the coverage proposals, and the submissions were simply imprecise rather than a withdrawal or amendment of coverage proposals.

[20] I have had regard to the respondent submissions, but in this case the applicant clearly intended to cover ‘facilitators’ (see clause 2 of application, in both original and amended form). 16 of the Melton employees are facilitators, according to both the applicant and respondent (paragraph 7). There is no change to the substance of the application, that facilitators employed by the respondent be covered. This seems to be a technical error, the omission of the name ‘Melton’ in a list which the applicant prepared in error. I will accordingly grant the application for amendment.

Consideration

Section 236, Section 237(1)(a) – Application has been made

[21] This is agreed and is not contentious. An application within the two sections has been made, and meets the requirements of those sections.

Section 237(2)(a) – Majority of employees want to bargain

[22] The respondent initially submitted that there was not a majority of employees who wanted to bargain. However, its own figures showed a majority of employees who wanted to bargain. After discussion with the Commission the respondent quite properly withdrew this objection and conceded that there was a majority who wanted to bargain. It said that it ‘will withdraw the objections directed at the lack of a petition majority’. 15 It maintained its other objections. On the basis of the submissions put by the applicant and respondent and by agreement I am satisfied that a majority of employees want to bargain.

[23] For the sake of completeness, I will also deal with the additional related objection regarding the method of collection of signatures, which appears also to have been withdrawn. The respondent submitted: 16

“The evidence of Mr Burke also discloses deficiencies in the manner in which the signatures on the face of the petition were collected. For example, there is no evidence of any discussions with any employee as to their understanding of the termination application (which will have a material impact on this application for the reasons in part D.2 below), nor any clause or term that they wanted bargained on their behalf. There is no evidence of Mr Burke visiting the Bacchus Marsh hub, having any communication with anyone at the Bacchus Marsh hub, and the petition does not contain any signature from any employee at Bacchus Marsh. It is therefore unclear how the MSD application can be said to include Bacchus Marsh in its coverage.

Further, the evidence of Mr Burke concedes that there were several periods where the petition was collated in circumstances where no AEU official or organiser was in custody of the petition and the petition itself was circulated in multiple fragments amongst multiple hubs around the state.

These deficiencies, in addition to those referenced in B.1 and B.2, should lead to the FWC being slow to conclude that evidence has been adduced of a valid majority of employees wanting to bargain in the six nominated hubs.”

[24] The applicant submitted: 17

“Method of collection of Petition

The Petition is sufficient evidence that a majority of employees want to bargain despite any collection method gremlins. In Veolia, Booth C recognised (at [31]) that there “is significant case authority that a petition may be appropriate way to work out whether a majority of employees want to bargain.” The issue for the FWC is whether the petition can be relied on: Veolia, at [38]. Whether a petition can be relied upon will depend on the facts. In Veolia Booth C was not satisfied that a petition could be relied on: there were substantial factual concerns about how employees 180 km away signed the petition (at [30]) and as to the custody and control of the petition (at [45]). In contrast, in NUW Roe C held: “The vast majority of the signatures were collected by the NUW organisers who took the signed petitions away with them when they left the site.” Similarly, in AWU DP Sams was prepared to accept a petition in circumstances where he found that: “The petition signed by a majority of the employees ([7] above) is clear and unambiguous. There is no evidence that the petition is anything but a genuine reflection of the employees’ wishes. There is no evidence that the employees were pressured or under duress to sign the petition.” (our emphasis)

Like NUW and AWU above, in this application, there is no evidence “that the petition is anything but a genuine reflection of the employees’ wishes”. Mambourin’s criticisms of the “method of collection” show that the Petition is not perfect but do not (in aggregate) mean there is not a majority of employees who want to bargain. There is no evidence that any employee has withdrawn his or her signature. Further, it matters that employees have signed the petition knowing their names will be disclosed to their employer - always difficult for employees to do. The FWC can rely on the signatures on the petition as signifying what the majority of relevant employees who signed the petition genuinely “want”: s. 237(2)(a).

The Respondent’s submissions at [20] that there is “no evidence of any discussions with any employee as to the understanding of the termination application” does not detract from the fact that a majority of employees want to bargain. There is not a super-added statutory requirement that the FWC must be satisfied as to the soundness of the reasons for the majority wanting to bargain.”

[25] In this case there is nothing on the face of the petition which raises questions, or which the respondent has pointed to which raises questions. Mr Mathew Burke provided a witness statement about the collection of the signatures, which sets out how the petition was signed, 18 which involved a fresh petition given that the old one was out of date. Mr Burke had already visited Mambourin workplaces in September and November 2019 and consulted with employees about a petition to oppose the termination of their collective agreement, and a petition for a majority support determination. He did this again in mid-January 2020 in opposition to the termination of the agreement. Then he did this again in February 2020 and March in meetings and emails.

[26] A petition has been used in many cases to establish a majority, and in this case there seems to have been considerable discussion about the petition, more so than usually, given that there was more than one discussion or gathering of views or both. In this case I reject this objection to the extent necessary, since the objection appears to have been withdrawn.

Section 237(2)(b) – Employer has not agreed to bargain

[27] This is agreed. 19

Section 237(2)(c) – Fairly chosen

[28] With the addition of the amended application I am satisfied that the group are fairly chosen. No issue was taken with this by the objector. 20

Section 236 – no proposed agreement

[29] Section 236(1) provides that a bargaining representative who will be covered by ‘a proposed single-enterprise agreement’ may make an application. The respondent submits that there is no proposed single-enterprise agreement. 21 It also submits that the lack of a proposed agreement means that it would not be reasonable to make a determination within s.237(2)(d), for reasons including ‘the FWC does not know what terms the AEU proposes to have included in any proposed agreement, or the impact they might have’(at 14).22

[30] The applicant said 23 that the phrase “proposed enterprise agreement” is not defined in the Act, and was explained in paragraph [643] of the Explanatory Memorandum to the Fair Work Bill 2008 as follows:

“643. The term ‘proposed enterprise agreement‘ is a generic term that is used in Part 2-4 and in Part 3-3 (Industrial action) to describe ‘an agreement‘ that is being negotiated with a view to being approved as an enterprise agreement (see the observations of French J in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737; 138 IR 362). A proposed agreement can be an idea, or it can be a series of claims on behalf of a group of employees whose bargaining representatives seek to negotiate with the employer with a view to it becoming an agreement that is ultimately approved by FWA. (our emphasis)”

[31] The applicant submitted that in the Wesfarmers decision referred to in the Explanatory Memorandum, French J held:

“[55] … The ‘proposed agreement’ referred to in that subsection is ‘an agreement’ that the initiating party ‘wants to negotiate’. The initiation of the bargaining period is not therefore conditioned on the existence of a draft agreement proposed by the initiating party which, if signed then and there by the negotiating parties, could be certified. That generic term allows for a variety of possibilities including that:

(a) The initiating party has little or no idea of what the final agreement will contain but is open to a variety of outcomes.

(b) The initiating party intends to secure an agreement containing certain terms and conditions but is open to a variety of possibilities for the balance of the agreement.

(c) The initiating party intends to secure an agreement based on terms and conditions which it has formulated as a draft for discussion.”

[32] The applicant submits that this issue has to be viewed in context, namely the context of an existing collective agreement with content, and an application by the respondent to terminate that collective agreement, which describes as an application to ‘strip away conditions’, and that this has to be addressed in bargaining. It refers to ‘Ongoing correspondence set outs the differences between the parties about the extent to which it is appropriate that conditions in the 2008 Agreement are reduced’: 24

“Mambourin submits the MSD application is flawed because although “there does not have to be a formal or complete document, but there has to be something.” The implication is there is nothing: that the Petition does not disclose a “proposed …agreement” to which the MSD will relate.

The phrase “proposed enterprise agreement” is not defined in the FW Act. It is explained in para [643] of the Explanatory Memorandum to the Fair Work Bill 2008 as follows:

643. The term ‘proposed enterprise agreement‘ is a generic term that is used in Part 2-4 and in Part 3-3 (Industrial action) to describe ‘an agreement‘ that is being negotiated with a view to being approved as an enterprise agreement (see the observations of French J in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737; 138 IR 362). A proposed agreement can be an idea, or it can be a series of claims on behalf of a group of employees whose bargaining representatives seek to negotiate with the employer with a view to it becoming an agreement that is ultimately approved by FWA. (our emphasis)

In Wesfarmers (adverted to in the Ex Mem. above) French J held: [55] …. The ‘proposed agreement’ referred to in that subsection is ‘an agreement’ that the initiating party ‘wants to negotiate’. The initiation of the bargaining period is not therefore conditioned on the existence of a draft agreement proposed by the initiating party which, if signed then and there by the negotiating parties, could be certified. That generic term allows for a variety of possibilities including that:

(a) The initiating party has little or no idea of what the final agreement will contain but is open to a variety of outcomes.

(b) The initiating party intends to secure an agreement containing certain terms and conditions but is open to a variety of possibilities for the balance of the agreement.

(c) The initiating party intends to secure an agreement based on terms and conditions which it has formulated as a draft for discussion.

The Petition’s prefatory words (see para. [5] above) identify: (a) the relevant group of employees: namely, those employed under the existing 2008 Agreement; (b) the AEU as the relevant bargaining representative; and (c) the fact that group wants to bargain to replace the 2008 Agreement.

In aggregate, that information is sufficient to identify the proposed agreement as to which any MSD determination is to be made. The generic nature of the term “proposed enterprise agreement” in s. 237(1) (and the word agreement elsewhere in s. 237) does not require any greater particularity. It would be an error to impose a requirement for greater particularity in the absence of statutory words requiring it. As French J observed the initiation of a bargaining period “is not conditioned on the existence of a draft agreement”. Further, the initiating party need have “no idea” of what the final agreement will contain. In Veolia the petition did not identify any term of the proposed agreement. The petition Gregory C accepted in Man with a Van as validly evidencing that a majority wanted to bargain gave no greater detail as to the content of the enterprise agreement to be bargained for. The decision in Mermaid Marine is not authority for the proposition that greater detail is required.

In answer to Mambourin’s submissions, there is “something”: the majority of employees by their Petition signatures evidence that for the purposes of this very MSD application they want the AEU to bargain for a new enterprise agreement.

Further, in Veolia, at [51] Booth C proposed text for a question to be put to employees a ballot shows that identifying a majority does not require particularity as to a proposed agreement’s contact. The question framed was: “do you want to bargain for an enterprise agreement with your employer?” The proposed text gave no greater specificity about the content of any agreement. Transposing Booth Cs proposed text in Veolia to the issue in case it is sufficient for s. 237(2)(a) if the FWC is satisfied that a majority of Mambourin’s employees currently covered by the 2008 Agreement want to bargain for a replacement enterprise agreement with their employer?

Further, it would be disingenuous for Mambourin to contend it does not know the issues as to any proposed agreement. The Petition and MSD application have not occurred in a vacuum. The Termination Proceeding is on foot and 78 employees (most of the same employees who have signed the Petition in this case) have signed a separate petition opposing the termination of the 2008 Agreement. It is self-evident that employees oppose the reduction of conditions. Mambourin well knows that the bargaining challenge as to any future agreement will be to resolve differences arising from the fact the termination of the 2008 Agreement will strip away conditions. Ongoing correspondence set outs the differences between the parties about the extent to which it is appropriate that conditions in the 2008 Agreement are reduced.”

[33] The correspondence referred to by the applicant is set out in the footnote as follows: 25

“17. For example, on 12 February 2020 the AEU explained the purpose of the proposed meeting was to discuss "clauses in the current agreement/and/or the Disability MEA, where or differences and similarities lie.” (“RB-14”) (Email from Ms Gillespie to Mambourin’s representatives).”

[34] The respondent submits: 26

“As to the proper construction of this expression, the Full Bench observed in Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia[2014] FWCFB 1317 at [42]:

It is to be observed from the above, that the Act variously makes reference to a “proposed agreement”, or the ”proposed enterprise agreement” and “proposed single-enterprise agreement” to describe in a particular context the same concept, that is, the agreement that is being proposed by a party wishing to bargain or by one that is actually bargaining. That this is so seems to be confirmed by the Explanatory Memorandum to Fair Work Bill 2008 and its description of the use of the phrase “proposed enterprise agreement” in Parts 2-4 and 3-3 as “a generic term”, and its reference to the decision in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Union (No 2) in which French J referred to the use of the words “proposed agreement” in s. 170MI of the Workplace Relations Act 1996 as a “generic term [that] allows for a variety of possibilities”. The content of a proposed agreement need not be settled nor need the scope of a proposed agreement be agreed between the bargaining parties for that which is proposed by one party to bear the character of a proposed agreement or proposed enterprise agreement for the purposes of the Act.

The views expressed in Mermaid Marine were subsequently endorsed by the Full Bench in Skilled Offshore Pty Ltd v AMWU and others (Skilled Offshore)[2015] FWCFB 7399; 254 IR 133 at [27] and in Maritime Union of Australia v Maersk Crewing Australia Pty Ltd[2016] FWCFB 1894; 257 IR 30 at [13]-[15].

In order for there to be a “proposed enterprise agreement”, there must be something tangible that is being “proposed” by the AEU which has (or will have) the characteristics of an enterprise agreement as defined in s 172 of the FW Act. There does not have to be a formal or complete document, but there has to be something. Whatever form the proposed enterprise agreement may take, it must at least be identified.

The only evidence adduced by the AEU is a letter to Mambourin on 4 September 2019 that says: “the AEU seeks confirmation by Monday, 9 September 2019 whether Mambourin … proposes to commence bargaining with the AEU to replace the Agreement with a single enterprise agreement.” The preamble to the petition merely says that the employees “call on our employer to commence negotiations with our bargaining representatives, the AEU – Victorian Branch for an enterprise agreement on our behalf.”

This evidence does not establish (or even infer) that there is an enterprise agreement being proposed by the AEU. The other relevant communications have been annexed to the witness statement of Rohan Braddy.

The height of the correspondence on this issue annexed to Mr Braddy’s statement discloses that, despite being expressly asked by Mambourin to identify some sort of claim or series of clauses in order to understand what was being sought to bargain, the AEU did not do so. All that it has ever says is that it wants to “bargain” or it wants to “meet”.

There is no “proposed enterprise agreement” in this application, certainly not one that is capable of identification. The AEU has not made any meaningful proposal to Mambourin. It has not indicated the terms (or any term) of a “proposed enterprise agreement” it would be willing to agree to. There has been no log of claims or agenda served on Mambourin and none has been referred to in any correspondence. There is no reference to any log of claims or agenda in the petition and no evidence that any particular clause or term has been discussed with any employee of Mambourin that the AEU will bargain to be included in an agreement.

There is no idea or series of claims that is being proposed by the AEU. There is no draft proposal and there has been no exchange of views between the parties as to what should (or should not) be included. There is nothing to establish what “the agreement” is that employees “will be covered” by.

In the circumstances, it cannot be found that there is a “proposed enterprise agreement” that will cover employees of Mambourin. Absent this jurisdictional fact, the application must be dismissed.”

[35] In its submissions in reply, the respondent further submitted: 27

“The AEU concedes that a “proposed agreement” must be identified for an MSD application to be valid, however it submits that this condition has been satisfied merely by reason of the fact that the petition dated 4 March 2020 identifies: the group of employees to be covered; that the AEU will be their bargaining representative; and that that the group wants to bargain to replace the Collective Agreement. With respect, those three matters do not identify anything that could be said to constitute a “proposed agreement” as contemplated by Part 2-4 of the FW Act.

The AEU’s reliance upon the reasoning in Wesfarmers on this issue is misplaced. The Federal Court in that case was considering the interaction between the words “an agreement” and “proposed agreement” within s 170MI of the Workplace Relations Act 1996 (Cth) (WR Act) – a different provision from that under consideration here.

In any event, Wesfarmers does not stand for the proposition that a mere “idea” can suffice for a “proposed agreement”. Indeed, s 170MJ(c) of the WR Act provided that a notice of intended bargaining under s 170MI must be accompanied by particulars of “the matters that the initiating party proposes should be dealt with by the agreement.” In considering how these provisions were to properly operate, French J (as he then was) observed at [56] that “the requirement that the particulars accompanying the initiating notice specify the matters that the initiating party proposes should be dealt with does not demand a specification of terms and conditions but rather of topics.” In other words, the articulation of certain topics to be included in a proposed agreement was a minimum requirement of any valid application to commence bargaining.

The first notice of intended bargaining in Wesfarmers listed some 35 items of proposed matters to be dealt with in the proposed agreement. Those items ranged from wage increases to blood donor’s leave. A fresh notice was later issued in Wesfarmers that articulated a further five topics of conditions that the union sought to be bargained “in addition to the general wages and conditions applying in the Metals Trade General Award No 13 of 1965 and in addition to those matters already agreed between the parties.” There is no comparison between the proposed bargaining in Wesfarmers to that suggested by the AEU in this MSD application.

In circumstances where the previous statutory regime expressly required a party to list, as a minimum, the topics it wished to bargain for in a proposed agreement, it would be a significant change in relations if a party could now simply express an “idea” that it wants to bargain for an agreement without anything more.

To construe s 237 of the FW Act, as urged by the AEU, as requiring merely some esoteric notion of an agreement (i.e. an applicant’s “idea”) would be more than a mere continuation of a pre-existing legislative regime. It would be law reform of a kind which went unmentioned in the relevant Explanatory Memorandum. Before taking such a step, and in the face of the plain language of s 237, there must be a more definite indication of legislative intention than the history of the legislation, and the parliamentary materials, disclose. With respect, a reference within the Explanatory Memorandum to Wesfarmers (a case dealing with a dispute that identified more than three dozen topics for bargaining), does not disclose a definite intention to create such a drastic change in the regime.”

[36] Is there present in this case ‘something tangible that is being “proposed” by the AEU which has (or will have) the characteristics of an enterprise agreement as defined in s 172 of the FW Act’ to use the language suggested by the respondent? I might add the decisions it cites use different language, for example in Swire the Full Bench referred to ‘an idea or a series of claims’.

[37] I firstly note that the respondent undercuts this objection in whole or in part by expressing in its submissions a very clear ‘idea’ about the ‘tangible’ nature of the applicant’s enterprise bargaining proposals for an enterprise agreement. The respondent also submits that I should act on the basis of that tangible idea of an agreement by finding that it would not be reasonable to make a determination, which adds to the view that it is tangible and not theoretical or esoteric, because their apparently emphatic view of the nature of the applicant’s enterprise bargaining proposals should be the determining factor in these proceedings. The respondent states that the AEU bargaining proposals would be ‘financially onerous’ and ‘conditions that it cannot afford’: 28

“In circumstances where the AEU has formally opposed the termination of the Collective Agreement and Mambourin’s move to the SCHADS Award, the FWC can be satisfied that any proposed bargaining will involve the AEU insisting upon terms and conditions that are at least as financially onerous as those in the Collective Agreement. This inference is enhanced through the fact that the AEU has refused to outline any particular term or clause that it will seek to be included in any future enterprise agreement.

It is not reasonable in these circumstances to compel an enterprise into bargaining for conditions that it cannot afford.’ [emphasis added]

[38] The respondent concession that it is certain to this extent about what the applicant is proposing by way of an agreement is an indication that there is ‘something tangible’ that is being proposed by the applicant, whether by what it calls an ‘inference’ or directly.

[39] This is an understandable concession made by the respondent, because of the context and the correspondence. The applicant and respondent are in conflict about termination of the current collective agreement, which the respondent wishes to terminate and the applicant does not wish to terminate and describes as ‘stripping away conditions’. The current collective agreement is a tangible enterprise agreement. The applicant also supports the contents of the multi-employer agreement, and has proposed that the respondent become party to its terms. The context indicates the sort of content that the applicant supports, namely the current collective agreement, and the multi-employer agreement, both of which the respondent rejects as not viable. I also note that the respondent in its submission at 54 draws an ‘inference’ that the applicant will support at least the content of the collective agreement. It is therefore, with respect, logical that I also would draw the same inference that the respondent has a sufficient ‘idea’ about the tangible content of the enterprise agreement at this stage.

[40] For the sake of completeness, I will examine the correspondence between the parties. The application for a majority support determination provides a description of which employees will be covered by the proposed enterprise agreement (1.2), whether the group of employees to be covered is fairly chosen (2.2), and other matters about the agreement. Mathew Burke states in his witness statement that he wrote to the respondent on 4 September 2019 requesting that it bargain for a new agreement, or join a multi-employer agreement. The respondent wrote back on 9 September 2019 stating that it was not participating in the multi-employer agreement and was not proposing to bargain. 29 The letter from the AEU provides:30

“4 September 2020

Dear Ms Smith,

RE: Bargaining for a replacement to the Mambourin Enterprises Inc Disability Services Victoria (Part 1) Collective Agreement 2008

I refer to Mambourin’s communications to staff regarding the proposed termination of the Mambourin Enterprises Inc Disability Services Victoria (Part 1) Collective Agreement 2008 (Agreement).

In the communication to staff titled, ‘Consultation - Information, Staff Questions and Answers Issue T on 21 August 2019, Mambourin addressed the Multi-Enterprise Agreement being negotiated by a number of disability providers and general staff queries concerning a new successor agreement for Mambourin. In response Mambourin indicated:

‘Mambourin’s position has not changed, for us the MEA is not viable.’

…

We are not proposing a new agreement, only to terminate the existing agreement’

Consequently, the AEU seeks confirmation by Monday, 9 September 2019 whether Mambourin:

1. proposes to become a signatory to the proposed disability multi-enterprise agreement being negotiated with Jobs Australia; and

2. alternatively proposes to commence bargaining with the AEU to replace the Agreement with a single-enterprise agreement.

The AEU is currently consulting with members and will write to you separately regarding the proposal to the terminate the Agreement.

Regards

Sue Mandley”

[41] The letter from Mambourin provides: 31

“9 September 2020

Dear Ms Mandley,

We refer to your letter dated 4 September 2019.

As you are aware, on 13 August 2019 Mambourin commenced a period of consultation with our staff about the proposed termination of the Mambourin Enterprises Inc Disability Services Victoria (Part 1) Collective Agreement 2008 (Collective Agreement).

As we have explained to our staff, Mambourin is facing significant challenges arising from the interaction between NDIS funding and the Collective Agreement since the inception of the NDIS, and especially following the introduction of NDIS in our region from October 2018. These challenges are impacting on the future viability of Mambourin to continue providing the array of services it presently provides, and could impact on the job security and opportunities of employees.

Mambourin acknowledges that following the termination of the Collective Agreement, this is likely to cause a reduction in some entitlements and conditions of employees. However, if the Collective Agreement is not terminated, employee terms and conditions will remain unchanged which in turn means that unless substantial savings are achieved, the job security of employees is at significant risk.

For these reasons, Mambourin now seeks to make an application to terminate the Collective Agreement. We trust that the AEU would agree that it is in the interests of its members to ensure that Mambourin remains a viable employer into the future. We also expect that the AEU would appreciate that Mambourin also has a responsibility to ensure it is able to continue to provide services to the community, in particular to people with disabilities who are serviced by Mambourin.

Mambourin considers it has undertaken and continues to undertake a thorough consultation process with staff about the proposed termination. During this consultation period, Mambourin has held meetings with staff to discuss the proposed termination and the process, has received feedback from staff and has responded to queries from staff about the proposed termination. Mambourin has also communicated to staff in writing during this period. One example of this was the communication to staff titled "Consultation - Information, Staff Questions and Answers Issue /"distributed on 21 August 2019 (Consultation Q&As) which you have referred to in your letter.

In regard to one of the responses provided by Mambourin in the Consultation Q&As, you have asked for confirmation as to whether Mambourin proposes to become a signatory to the proposed disability multi-enterprise agreement being negotiated with Jobs Australia or alternatively whether it proposes to commence bargaining with the AEU to replace the Collective Agreement.

As noted in the Consultation Q&As, we confirm that Mambourin has not to date participated in the proposed multi-enterprise agreement process and is not proposing to become a signatory. It is our understanding that the multi-enterprise agreement continues to face challenges in particular with regard to funding and therefore even if Mambourin wished to be involved in this process (which it is not), Mambourin is not able to delay taking steps to ensure its financial viability for that process to be completed. Further, we understand that during the course of the multi-enterprise agreement discussions, it has been acknowledged that Victorian services face specific difficulties bearing in mind the uncomfortable interaction between NDIS pricing, the modern award and the Equal Remuneration Order which applies to Victorian services. It is therefore not a viable proposition for Mambourin to become covered by the multi-enterprise agreement.

To your second question, we confirm Mambourin does not propose to enter into negotiations for a new enterprise agreement to replace the Collective Agreement at this stage. It has been more than 10 years since the Collective Agreement met its nominal expiry date and as outlined above, the environment has substantially changed which makes it necessary for the ongoing viability of Mambourin that the Collective Agreement is terminated. Of course, should the Collective Agreement be terminated, the AEU would not be prevented from continuing to represent its members nor prevent negotiations for a new agreement underpinned by the SHADS Award.

We confirm that Mambourin remains willing to meet with the AEU to discuss this process or if you wish to bring any matters forward for our consideration, we will of course take on board. If you do wish to arrange a time to meet, we invite you to contact us.

Kind regards,

Cassandra Smith”

[42] In the applicant letter of 9 September 2019, the applicant indicates that it endorses the multi-employer agreement, which has clear content.

[43] The respondent in its reply says that it is aware of this and is also aware of the content of that multi-employer agreement, because it specifically rejects this. It said that ‘for us the MEA is not viable’. This is a discussion of content, the applicant suggesting support for the multi-employer agreement and therefore by what the respondent calls an ‘inference’ the content of collective agreement the respondent seeks to terminate or perhaps the multi-employer agreement, and the respondent rejecting this as ‘not viable.’

[44] The letters therefore show that a limited discussion of the possible end result of bargaining took place on 9 September, and that the respondent took part in that discussion of the possible end result of bargaining, and was aware of applicant proposals for agreement, and rejected them emphatically. It is true that the content referred to by the applicant is that of a multi-employer agreement, but the respondent would be aware because of that of the applicant’s views on that sort of content generally by way of inference, even if there may be differences arising from the fact that the content might be embodied in a single enterprise agreement. It might raise a question to any reasonable observer of whether such content might be suitable for a single enterprise agreement, although this might be inference to some extent before bargaining has actually started, and might later be clarified in some way.

[45] As previously indicated this in fact appears to be the inference drawn by the respondent, and expressly drawn as an inference by the respondent which submits that: ‘This inference is enhanced …’, referring to the inference that the applicant will seek at least the level of the collective agreement. As previously indicated, the respondent has claimed with some emphasis that it knows the results that the applicant will be seeking. It submitted: 32

“In circumstances where the AEU has formally opposed the termination of the Collective Agreement and Mambourin’s move to the SCHADS Award, the FWC can be satisfied that any proposed bargaining will involve the AEU insisting upon terms and conditions that are at least as financially onerous as those in the Collective Agreement. This inference is enhanced through the fact that the AEU has refused to outline any particular term or clause that it will seek to be included in any future enterprise agreement.” [emphasis added]

[46] If the respondent considers that the Commission can be satisfied of the content sought by the applicant, this again is a submission that it is aware in general terms of what the applicant is seeking in terms of the content of a single enterprise agreement.

[47] I also note that neither ss.236 or 237 expressly require an applicant for a determination to specify the content of an agreement in detail or in even the most general terms. It is not until the next stage, that of bargaining, that the Act refers to the proposed content of agreements. The general provisions dealing with ‘facilitating bargaining’ (s.228), sections 228-300 deal with applications for bargaining orders, and mention ‘responding to proposals made by other bargaining representatives for the agreement in a timely manner’ and ‘giving genuine consideration to the proposals of other bargaining representatives …’ (s.228(1)(c)(d)). Further there is no requirement to ‘make concessions’ or to ‘reach agreement on the terms’ (s.228(2)).

[48] To the extent that the Act expressly regulates proposals for the content of agreement this occurs at least partly after bargaining has commenced and is limited in nature in that no specific concessions or agreement is required.

[49] The respondent is on its own submissions has a very clear tangible ‘idea’ about the applicant’s bargaining claims. It is at least aware in general terms of what sort of provisions the applicant is supportive of in general terms, namely the contents of the multi-employer agreement or the previous agreement, even if it subsequently might conceivably modify or reject such content for an enterprise agreement during good faith bargaining. This aspect of the objection must be dismissed.

Section 237(2)(d) – Reasonable to make the determination

[50] Respondent objections include that (1) the current impacts of the COVID-19 pandemic mean that it would not be reasonable for a determination to be made (2) that a determination is not appropriate given the termination application (3) that it is not reasonable to compel Mambourin to bargain for conditions that will be above the Social, Community, Home Care and Disability Services Industry Award 2010 (‘the award’) (4) that given the lack of a proposed enterprise agreement it was not reasonable to make the determination. (5) coverage is unclear.

[51] In relation to the first part of this objection, the respondent submits that financial evidence should persuade me that making an order would not be reasonable: 33

“Section 237(2)(d) of the FW Act provides: “The FWC must be satisfied that it is reasonable in all the circumstances to make the determination.” Given this mandatory and near unfettered precondition, the FWC should be slow to place restrictions on what is considered on the grounds of relevance – this is especially so when unchallenged and uncontroverted evidence is before it about an issue central to a party’s existence (i.e. Mambourin’s financial position).

The importance of this issue was recently described by Commissioner McKinnon in a similar application where she confirmed that “the affordability of the Union’s claim” and the “funding arrangements” of a disability service provider were “plainly relevant at least to the question of whether it would be reasonable in all the circumstances to make a majority support determination.”

The financial position of an employer does not create an “exemption” from a MSD,7 but it is a “circumstance” that the FWC must take into account. Given the existence of the statutory precondition at s 237(2)(b) that an employer must “have not yet agreed to bargain, or initiated bargaining, for the agreement”, it is relevant for the FWC to consider why that is.

The AEU’s submission that financial circumstances should be considered irrelevant as “matters as to what can (or cannot) be afforded are properly left for later as the subject matter of bargaining”8 is both circuitous and evasive. In other words, the AEU seeks to rely on its own refusal to articulate any claim, topic, or term that it proposes to bargain for as a reason why the FWC should not enquire as to what the proposed agreement contains – or how it may impact on Mambourin.

This should not be accepted. It further emphasises the requirement for something tangible to be set out as a “proposed agreement” in order for the FWC to properly consider the application. For example, if an applicant seeks a determination to commence bargaining for a proposed agreement that contains obviously unlawful terms, this would be a relevant consideration for the FWC to take into account in considering whether it was reasonable to make the determination. Likewise, if an applicant seeks a determination to commence bargaining for a proposed agreement that contains grandiose or financially oppressive entitlements, this would be relevant for the FWC to take into consideration. From another perspective, if an employer had entered into voluntary administration or had a pending application to place it into liquidation, this would also be relevant for the FWC to consider whether it was reasonable to make the determination given its lack of utility.

The FWC does not know what terms the AEU proposes to have included in any proposed agreement, or the impact they might have. What the FWC does know is that Mambourin is in significant financial difficulty. It is accepted by the AEU that:

(a) since 3 April 2020, Mambourin has not been able to offer day services for participants with disabilities (Braddy statement at [8]);

(b) Mambourin’s income related to services previously provided at the Hubs fell from $250,000 in a typical week such as the week commencing 17 February 2020 to $10,000 in the week commencing 6 April 2020 (Braddy statement at [9]);

(c) Mambourin will not be in a position to commit to terms and conditions above those in the SCHADS Award (Braddy statement at [13]).

These are all relevant circumstances that should be taken into account when determining whether the making of a determination, in the present time, is reasonable.

Contrary to what is submitted by the AEU, taking these matters into account does not erect “a very high hurdle”. All it does is comply with the hurdle established by the legislature: which is that all circumstances (of all parties) are to be taken into account prior to making a determination. It is not simply a matter of an applicant “ticking the boxes”, rather, the FWC’s satisfaction is a statutory condition precedent that must be reached taking into account all matters before it.”

[52] In relation to this objection the applicant submits: 34

“The FWC will only make the MSD if satisfied that it is “reasonable in all the circumstances”: s. 237(2)(d). The statutory text does not limit matters which may affect what is “reasonable”. The Applicant’s researches have not uncovered any authority of direct assistance on the current facts as to what is reasonable.

The AEU notes 3 matters as to the interpretation of s. 237(2)(d):

(a) An interpretation will be preferred if it promotes The Act’s objects and the Part’s objects: in particular, the Act’s Object in s. 3 which provides for a “balanced framework” and the “emphasis on enterprise-level collective bargaining”: s. 3(f). Part 2.4’s Object in s. 171(a) is relevant: “to provide a simple, flexible and fair framework that enables collective bargaining in good faith”;

(b) it ought to be interpreted in context: in Coca-Cola Amatil [although considering s. 237(2) generally rather than s. 237(2)(d) specifically] a Full Bench found some utility in considering the role of majority support determinations within the overall Part 2.4 bargaining processes. It noted that (among other matters) “a majority support determination provides the means by which the bargaining processes within the Act are commenced.” It does not, in itself, require bargaining to occur: Coca-Cola Amatil at [25]. That is, A MSD is only a first step in prompting an employer to come to the table. The making of an MSD does not dictate Agreement content; and

(c) In part it takes its meaning from the immediately preceding sub-sections: finally, although satisfaction of s. 237(2)(a), (b) and (c) does not necessitate a finding that it is reasonable to make a MSD the AEU is aware of no authority in which each of s. 237(2)(a), (b) and (c) have been satisfied yet it has been found that it was not reasonable to make a MSD. The satisfaction of sub-sections 237(2)(a), (b) and (c) tends to inform what is reasonable in s. 237(2)(d).

As to the objects and, in particular, a “balanced framework” and what is “fair”, competing employer and employee industrial priorities must be relevant to what is “reasonable”: one party’s priorities ought not to be given preference to the exclusion of the other party’s priorities when they conflict. In circumstances in which Mambourin (as employer) has applied to terminate the existing 2008 Agreement which application will (if successful) substantially reduce employees’ conditions and is refusing to bargain for a replacement agreement it is not part of a “balanced framework” or “fair” to make a MSD a high barrier before bargaining can even commence. For employees who want to bargain to be shut out from bargaining (without redress) while their conditions are reduced by the termination of an existing agreement is not “fair” (s. 171) or “balanced” (s. 3).

As to context of a MSD in the overall bargaining processes, the AEU reiterates (without repeating) that Mambourin’s submissions that a MSD ought not to be made because of the Financial Evidence is misconceived. It has the wrong focus on outcome (agreement content) rather than bargaining process. It invites the FWC to make judgments about agreement terms which are not at issue: at issue is whether the bargaining processes under the Act should commence: Coca-Cola Amatil at [25]. Embarking upon an evaluation of the employer’s financial position is not “simple” (s. 171). It de-emphasises bargaining [s. 3(f)] by erecting a very high hurdle in front of employees who wish to bargain (when their employer does not) before bargaining can even commence. It also makes the FWC the arbiter of what may be possible in an agreement when that falls to the parties and is outside the reach of s. 237 properly interpreted.

That sub-sections 237(2)(a), (b) and (c) are satisfied supports a conclusion that it is reasonable to make the MSD.

The AEU also wishes to respond to Mambourin’s specific submissions that it is not reasonable under s. 237(2)(d) to make a MSD because: (a) of COVID-19: [36] – [38]; (b) any MSD application should await the outcome of the Termination Proceeding: [39] –[49]; (c) coverage is unclear: [50]; and (d) it is not financially viable for Mambourin to make an agreement that contains provisions superior to the SCHADS Award: [51] – [55].

None of these matters mean it is not reasonable to make a MSD.

COVID-19

The parties can bargain taking into account COVID-19 for post COVID-19 arrangements. Given COVID-19, the AEU’s position is that either both applications should proceed (Mambourin’s Termination Application and the AEU’s MSD application) or both applications should be paused. The AEU would consent to either approach. It does not consent to a non-balanced or non-even-handed approach: cf. s. 3.

It is not reasonable that Mambourin’s application be green-lighted and the AEU’s application red-lighted.

COVID-19’s community-wide impact is notorious. The FW Act has been amended: new Part 6.4C inserted by the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020. Awards have been varied. Part 2.4 of the FW Act and s. 237 has not been suspended. It should not be de facto suspended under s. 237(2)(d).

The Termination Proceeding

As to the Termination Proceeding, there is no danger of inconsistent rulings (Cf. Mambourin, [48]) because the issues for decision under s. 226 and s 237 are distinct.

Alleged unclear coverage

The submission that coverage is unclear should be rejected: Mambourin, [50]. . Identifying employees to be covered by a prospective future agreement by reference to those covered by the current 2008 Agreement is convenient and ought to be uncontentious. Mambourin well knows that its instructors/facilitators are covered by the 2008 Agreement. That group is “fairly chosen” because of their organisationally distinct position even if the 2008 Agreement is terminated in due course. No submission is put that the group is not “fairly chosen”. It inheres in knowing a group as “fairly chosen” that coverage is clear.

Not financially viable

As is set out above, Mambourin’s submissions that it is not reasonable to make the MSD because it is not financially viable for Mambourin to make an agreement which offers conditions superior to the SCHADS Award is misconceived because it confuses outcome and process. A MSD does not “compel” (Cf. Mambourin, [51]) any outcome. It is a precursor to a process of good faith bargaining and compels no party to agree to any content in any enterprise agreement. The FWC cannot predict that the process will be futile. Immutable positions change.’

[53] In relation to the first objection made by the respondent, there is not sufficient material before me to conclude that I should not be satisfied that it is reasonable in all the circumstances to make the determination. As the Commission said in United Workers’ Union 35, although in relation to a separate enterprise:

“[45] While it could be that current business conditions or matters of financial prudence militate against the negotiation of an enterprise agreement, that is by no means an automatic conclusion. The progress of bargaining generally in recent months has shown sufficient examples of employees and unions reaching “rescue” agreements with employers designed to stabilise a business’ trading position for it to be clear that merit remains in enterprise bargaining even while uncertainty or bleak conditions abound. It will never be known what employees may be prepared to do to assist Davies Bakery, if such assistance is needed, until the conversation is had.”

[54] I accept that the applicant has a heavy responsibility to engage in responsible conduct if it wishes to represent the interests of its members, given the matters raised in the respondent’s submissions. I do not disagree with the Commission’s observations in Re Health Services Union and Life Without Barriers, 36 in which the relevance of financial considerations was emphasised. However, at this stage I am not able to conclude on the material before me that the applicant will not meet those heavy responsibilities. I also note that the Act provides for bargaining in good faith orders as a mechanism to regulate bargaining, and there are also orders limiting protected action available under other provisions of the Act, if such is available.

[55] The Act specifically provides that the good faith bargaining requirements do not require ‘a bargaining party to make concessions’ or ‘to reach agreement on the terms that are to be included in an agreement’. Section 228(2) provides:

“228 - Bargaining representatives must meet the good faith bargaining requirements

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.”

[56] The respondent is free to put proposals consistent with the award, subject to other bargaining in good faith requirements being met. The Act provides for the commencement of bargaining, which a determination may require, and also provides in separate sections with the conduct of bargaining, or the end result of bargaining. I am not convinced on the material before me that the contents of the current agreement or the multi-employer agreement cannot reasonably be the subject of bargaining. Parties sometimes change their position during bargaining. There are statutory tests for the commencement of bargaining and issuing of a determination, but to some extent at least they are separate matters to what happens with the bargaining later. While there may be some degree of overlap, perhaps limited in nature, I cannot conflate the two completely. This objection must be rejected.

[57] I might add, although this is unnecessary to my decision, that the conduct of the respondent in resisting both in seeking the termination of the collective agreement and resisting the application for a determination in these proceedings may well show an ability by the respondent to engage in hard bargaining, which it is entitled to do under the Act.

Not reasonable because of the termination application

[58] In relation to the second objection, the respondent recounted the history of this application, 37 which was filed on 1 October 2019, and submitted that:38

“The central task for Commissioner Cirkovic in the termination application is to determine whether it is “appropriate in all the circumstances” to terminate the Collective Agreement. The MSD application requires the FWC to consider whether it is “reasonable in all the circumstances” to make the MSD. Naturally, and inevitably, there is significant overlap between what must be considered under in the termination application and what must be considered in this MSD application.”

[59] In relation to this submission, it may be that there is some overlap, but the statutory tests are different, and the two sections of the Act are not specifically linked. I also note that the respondent has not put a submission to me that the two proceedings be joined. On the submissions put to me I see no real reason why the two matters cannot proceed and be determined. They are separate proceedings.

[60] The respondent submits: 39

“In all the circumstances, it is reasonable (indeed, proper) for the termination application to be decided before the MSD application. Mambourin has consistently stated that it cannot afford to continue operating under the Collective Agreement. The AEU now seeks to compel Mambourin to bargain for entitlements over-and above what they can afford. This is a central issue in dispute before Commissioner Cirkovic and it is not reasonable for different members of the same tribunal to consider the same issue at the same time. It would be an unreasonable, and unsatisfactory, outcome if one member of the FWC made a ruling inconsistent to another member of these issues. The proper way forward is for determination of the MSD application to await the decision of termination application.”

[61] The conduct of bargaining is regulated as discussed above, and there is no obligation on the employer as to the content of a final agreement, including no obligation to agree to an agreement in the same or similar terms to an existing agreement. The respondent has already foreshadowed its bargaining position in extremely firm terms. It has declared that the contents of the collective agreement are not appropriate in the firmest terms possible.

[62] The respondent also submits: 40

“It is not a reasonable use of the FWC’s processes for the AEU to file an MSD application in a bid to stymie, or circumvent, a validly made (and ventilated) termination application.”

[63] The Act does not use the terms ‘a bid to stymie, or circumvent’ a termination application. The provisions of the Act do not expressly deal with such an issue. These are in any event the descriptive words of the respondent, are somewhat pejorative and not accepted by the applicant. An alternative description is that the applicant has made an application and seeks to have it determined by the Commission. This application does not seem on the material before me to be vexatious, an abuse of process, or something similar, and the respondent does not appear to claim this. The application is far from a vexatious application, in that it does appear on the material before me to be reasonably arguable. It is in fact a strong case, for the reasons set out in this decision.

[64] Prima facie applicants may pursue applications provided for in the Act, and if merited they are granted. The respondent needs to demonstrate why this application is not merited. If a determination is granted the termination application may proceed and be determined, with no doubt the ability of the parties to put submissions dealing with this decision.

[65] The respondent submits that: 41

“The resolution of the termination application will also have a material impact upon the proposed coverage clause as defined in the AEU’s MSD application. The employees proposed to be covered are limited to those “covered by” the Collective Agreement. In the circumstances, if the FWC proceeded to make the orders sought in this MSD application and the parties commence bargaining, there is a real possibility that in the course of those negotiations the Collective Agreement may be terminated and therefore the entire basis of this MSD application will disappear. This is another strong reason why the MSD application should, at the very least, await the decision of Commissioner Cirkovic so the parties know what instrument applies to Mambourin’s employees.”

[66] It is not clear to me why if the termination application is granted ‘the entire basis of the MSD application will disappear’, which again is a term not used in the Act. In relation to coverage, the coverage of the proposed agreement is clearly set out in the application, as discussed above, and is: 42

“The proposed enterprise agreement will cover employees employed as Instructors/Facilitators, Team Leaders, and Hub Managers of Mambourin Enterprises Ltd in the day services centers or hubs, which provide group programs for individuals with a disability. The proposed agreement would cover permanent (full-time and part-time), fixed-term and casual employees.”

[67] Bargaining may proceed with or without the termination application succeeding, and the respondent is as already stated not compelled to accept the AEU proposals for an agreement. I accept that in practice granting the termination application may arguably affect the bargaining process in some way I am unable to clearly predict, but these proceedings concern a determination, not regulating bargaining, as already discussed. In any event these are separate proceedings, and must proceed. The Act does not provide any particular order for such applications to be dealt with, although the parties may submit that matters be joined or may proceed in a particular order. In this case the parties disagree about the order, and on the material before me both applications must proceed to be determined in accordance with their merits. I also again note that the respondent has not sought in its submissions to me to have the two proceedings joined, as it could conceivably have done if was concerned about the interaction of the two proceedings.

[68] In conclusion the respondent submits:

“The application should be dismissed. If the FWC is not minded to dismiss the application, it should not be decided until the termination application in matter AG2019/3730 has been finally resolved.”

[69] However, the termination application has been on foot since 1 October 2019, and no date for the handing down of that decision has been notified to me by the parties. I do not think it would be reasonable to indefinitely delay my decision because of that matter, which appears to be of a substantial and difficult nature.

Not reasonable to force bargaining above the award

[70] In relation to the third objection, the respondent submits: 43

“In circumstances where the AEU has formally opposed the termination of the Collective Agreement and Mambourin’s move to the SCHADS Award, the FWC can be satisfied that any proposed bargaining will involve the AEU insisting upon terms and conditions that are at least as financially onerous as those in the Collective Agreement. This inference is enhanced through the fact that the AEU has refused to outline any particular term or clause that it will seek to be included in any future enterprise agreement.

It is not reasonable in these circumstances to compel an enterprise into bargaining for conditions that it cannot afford.”

[71] A determination in this matter does not have the effect of mandating that the award must be supplanted in whole or in part by a more generous agreement reached during bargaining. As I have already noted, the Act specifically provides that the good faith bargaining requirements do not require ‘a bargaining party to make concessions’ or ‘to reach agreement on the terms that are to be included in an agreement’. The respondent is free to put proposals consistent with the award, or conceivably to argue that the award should continue to operate, subject to other bargaining in good faith requirements being met. There is no basis to conflate or largely conflate the commencement of bargaining, which a determination may require, with the conduct of bargaining, or the end result of bargaining. It may be that the conduct of the applicant during bargaining may change, but that can change when the termination application is granted or rejected. This objection must be rejected.

Not reasonable because no agreement

[72] In relation to the fourth issue of the alleged lack of a proposed enterprise agreement, I have already dealt with these issues. The respondent has indicated that it is so clear about the proposed content of the enterprise agreement that it has made clear that the AEU proposals are financially not sustainable. In relation to this objection the respondent submits: 44

“The AEU concedes that a “proposed agreement” must be identified for an MSD application to be valid, however it submits that this condition has been satisfied merely by reason of the fact that the petition dated 4 March 2020 identifies: the group of employees to be covered; that the AEU will be their bargaining representative; and that that the group wants to bargain to replace the Collective Agreement.1 With respect, those three matters do not identify anything that could be said to constitute a “proposed agreement” as contemplated by Part 2-4 of the FW Act.”

[73] As discussed above, the respondent has given the full context of proceedings and correspondence a clear idea about the contents of a proposed enterprise agreement. To say otherwise would reduce ordinary language in the Act to excessive technicality, and would ignore the inferences drawn by the respondent itself in its submissions.

Not reasonable because coverage unclear

[74] In relation to the fifth issue of coverage being unclear, the coverage was clear before and after the amendment application, as indicated by the coverage clauses set out above. As the applicant submitted, bargaining based on previous coverage may be reasonable, and in any event with the amendment the coverage issue is now sufficiently clear.

Overall conclusion in relation to s.237

[75] On the basis of the submissions and material before me I am satisfied that it is reasonable in all the circumstances to make the determination.

Conclusion

[76] I am satisfied that the requirements of ss.236-237 are met. I am therefore required to make the determination sought by the applicant. The employer is directed to provide an order amending the application by 24 July 2020 after consultation with the applicant.

[77] As a practical matter, one approach would be for the applicant to now provide some reassurance to the respondent about the COVID crisis, which as it submits is currently a major problem for employers and employees:

“COVID-19’s community-wide impact is notorious.” 45

[78] This may assist the respondent in assessing its position, unless the respondent is not open to reassurance. This is not a legal requirement, for the reasons set out above. It may well be putting the cart before the horse, by bargaining before bargaining has commenced. Nevertheless, the Commission should be a practical tribunal, and has traditionally sought to assist parties through for example recommendations and practical help, not just legal determinations.

DEPUTY PRESIDENT

Appendix 1 - Summary of Submissions

Summary of Submissions: Mambourin

Mambourin submits it opposes the application on the following basis:

No majority

[79] Mambourin currently employ 156 staff under the Current Collective Agreement across seven hubs. This figure is comprised of 98 full-time/part-time staff, and 58 casual employees. On this basis, the AEU needs to establish that at least 78 employees at a time determined by the Commission want to bargain. 46

[80] While the petition relied on by the AEU discloses 84 signatures, 16 of those signatures are from Facilitators employed at the Melton hub. As Melton is not expressed to be one of the six hubs that will be covered by the proposed agreement, the 16 signatures obtained from Melton must be excluded. This equates to 67 signatures being obtained in support of a majority support determination, thus falling below the required majority needed. 47

[81] Further, the petition includes signatures from 23 casually employed employees (including 5 employed at the Melton hub). As a casual employee is one who is engaged to work irregular work patterns, the uncertainty, discontinuity, intermittency and unpredictability of their work patterns may pose problems with the test laid out in s.237(2)(a)(i) of the Act concerning who will be covered by a future agreement as it assumes that a causal employee will be working at the time the proposed agreement is approved. The impacts of COVID-19 have resulted in Mambourin shutting down all activity in all of its hubs with casual staff not being offered shifts. Mambourin will most likely not be in a position to offer shifts to staff who are causally employed once the hubs are able to return back to normal operations. For these reasons, none of the 23 casual employees who signed the petition could be considered “currently employed” for the purposes of s.236 and 237 of the Act and should be excluded from the petition signatories. This equates to 49 signatures being obtained in support of a majority support determination, thus falling below the required majority needed. 48

[82] Mambourin also submits that the manner in which signatures were collected from employees does not demonstrate discussions held with employees as to their understanding of the termination application. Nor any clauses sought to be bargained for on their behalf by the AEU. Further, there is no evidence of any employee signatures from the Bacchus Marsh hub, and the AEU concedes that there were periods where there was no AEU official or organiser in possession of the petition, with the petition instead being circulated amongst multiple hubs around the State. 49

No “Proposed Agreement”

[83] Mambourin submit that the AEU have not established that there is a proposed agreement to be bargained as required pursuant to s. 236 of the Act. 50 Mambourin directed attention to the meaning of the expression “proposed enterprise agreement” as it was described in Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia51 as being “…the agreement that is being proposed by a party wishing to bargain or by one that is actually bargaining”.52

[84] In the current circumstances, Mambourin submit that there must be something tangible that is being proposed by the AEU that has the characteristics of an enterprise agreement as defined in s.172 of the Act and while there does not need to be a formal or complete document, there must a bear minimum be something that is identifiable as being an enterprise agreement. Both the letter sent to Mambourin by the AEU on 4 September 2019 and the preamble to the petition does not establish that there is an enterprise agreement being proposed. All it establishes is that there is a desire to bargain or there is a desire to meet. 53

[85] Further to this, the AEU have not made any meaningful proposals, no terms of the proposed agreement have been identified, no log of claims exchanged, no draft proposals, or no exchange of views. On this basis, it cannot be said that there is a proposed enterprise agreement that will cover employees of Mambourin and therefore the application should be dismissed. 54

Not reasonable to make the determination

[86] In the event the Commission is satisfied that a valid majority and there is a proposed agreement in existence, the Commission must also be satisfied that it would be reasonable in the circumstances to issue an order for a majority support determination.

[87] The impacts of the COVID-19 pandemic have resulted in all hubs being shut down with one-third of Mambourin’s workforce not currently working. With the impact COVID019 is having on weekly income, it would not be reasonable to force Mambourin to commence bargaining in the current climate of uncertainty. 55

[88] The purpose of the termination application has been consistently stated by Mambourin as being that it cannot afford to operate under the Current Collective Agreement. As the AEU seeks to compel the commencement of bargaining for entitlements that are above what Mambourin can afford. In these circumstances it is not reasonable for different Members of the Commission to consider what are essentially the same issues at the same time in each respective application. The most appropriate avenue for the Majority Support Determination to progress is to wait for the decision arising from the termination application. 56 It is also not reasonable for the AEU to utilise the Commission’s processes to circumvent the termination application.57

[89] The decision arising from the termination application will impact the proposed coverage as identified in he AEU’s Majority Support Determination application. There is the chance that should an order for the majority support be made, the decision arising from the termination application may render the application for majority support obsolete. For these reasons, it is appropriate for the decision from the termination application to be settled so parties understand what instrument applies to employees of Mambourin. 58

[90] Lastly, it is submitted that it is not reasonable to compel Mambourin to bargain for conditions that will be above the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) where it cannot commit to such conditions. As a result of changes to funding from the Victorian DHHS system, the amount required to be spent on wages and entitlements will outweigh funding arrangements. In circumstances where the AEU have opposed the termination application, the Commission can be satisfied that the AEU would insist on terms that are more onerous than the terms included in the Current Collective Agreement. Therefore, it is not reasonable to compel Mambourin to commence bargaining for conditions that it cannot afford. 59

Summary of Submissions: AEU

[91] The AEU submit that the majority support determination application is made due to Mambourin’s refusal to bargain and the termination proceeding made by Mambourin under section 225 of the FW Act. The AEU’s application is made to being Mambourin to the bargaining table for a replacement agreement. 60

[92] Even where the financial evidence of Mambourin is considered, it remains reasonable in all the circumstances to make the determination. Financial hardship does not afford an exemption from a majority support determination being made. 61 Emphasis placed on the financial position of Mambourin is misplaced as the Commission is concerned with the process, that being whether employees want to bargain, and not the outcome of the agreement’s content. A majority support determination does not impose obligations on an employer to agree to terms with the focus being on what an employee majority wants. Therefore, emphasis placed on financial hardship is not a reasonable ground to refuse a majority support determination because it doesn’t support a conclusion that Mambourin cannot afford to engage in the bargaining process.62

[93] Mambourin’s submission on there being no proposed agreement is thwarted by virtue of the petition identifying the proposed agreement. The phrase ‘proposed enterprise agreement” is explained in the Explanatory Memorandum as being a generic term and can be an idea or a series of claims. 63 So much so was considered in Wesfarmers Premier Coal Limited v The Automotive Food Metals Engineering, Printing and Kindred Industries Union (No 2)64 (the Wesfarmers Case) where it was recognised that the commencement of a bargaining period is not conditioned upon there being a draft agreement in existence. Therefore, the petition provides sufficient information to identify the proposed agreement to which the majority support determination is sought and to attach greater requirements would be in error.65 The Commission itself66 has proposed words to be put to employees to commence bargaining and those words gave no specificity of the terms to be included in an agreement.

[94] Finally, Mambourin would undoubtedly be aware, from the Termination Proceeding and the signed petition opposing termination of the current enterprise agreement of the differing positions between the parties at play. 67

Majority of employees and the Melton Hub

[95] With respect to the majority of employees who will be covered by the agreement wanting to bargain, the AEU disputes Mambourin’s submissions that 39 signatories should not be counted. Specifically, the Melton Hub was omitted by oversight and the AEU seeks leave to amend its application to ensure Melton Facilitators are included. Melton Facilitators should eb included as the 2008 Agreement applies to them, they perform the same type of work as other facilitators, those facilitators want the AEU to bargain, and the omission of the Melton Hub was an oversight and there is no prejudice caused by the amended application, and these Facilitators are also fairly chosen within the meaning of the FW Act. 68

The most current material

[96] The Commission ought to determine whether a majority want to bargain on the most current material available. The most current material available is that set out in the Petition with it being prepared in late February and early March 2020, shortly or immediately before the application was made (5 March 2020). 69

Casual employees

[97] With respect to casual employees, the AEU submit that on the Respondent’s own evidence it employs 58 casual employees and it had included those casuals in the total headcount. 70 It is appropriate that they be counted and, in consequence, there is a majority. For the purposes of the majority support determination, the AEU accepts that casual employee headcount as proffered by Mambourin. However, if Mambourin’s submission that it does not employ 58 casual employees, because they are no longer employed due to COVID-19, Mambourin would have only 98 employees. If the 23 casual Petition signatories are excluded, by the same logic, the 58 casual employees must also be excluded. If casual employees are excluded from the Petition and the total headcount there is still a majority of employees who want to bargain.71

[98] Mambourin has concerns that there are no relevant casuals in assessing whether there is a majority, but this statement is based from a false premise where Mambourin on their own evidence have counted causals in their total headcount. Further, whether a current majority wants to bargain is a distinct issue from the coverage of any future agreement. For a majority support determination, the Commission must be satisfied that a majority of existing employees want to bargain and the issue of whether casual employees will be entitled to vote on an agreement is not an issue that arises under section 237 of the FW Act. 72

Method of collection

[99] The Petition is sufficient evidence that a majority of employees want to bargain. There is no evidence that the petition is anything but a genuine reflection of the employees’ wishes. Mambourin’s criticisms of the “method of collection” show that the Petition is not perfect but do not mean there is not a majority of employees who want to bargain. Further, the Respondent’s submissions that there is no evidence of any discussions with any employee as to the understanding of the termination applicationdoes not detract from the fact that a majority of employees want to bargain. 73

An alternative way the Commission may be satisfied

[100] If the Commission is not satisfied that the petition is not sufficient to establish a majority, the AEU submit that an order that the Australian Electoral Commission (the “AEC”) conduct a secret ballot of the employees covered by the current agreement. 74

Sections 237(2)(b)-(d) of the Act

[101] The AEU submit that:

•  Mambourin has not agreed to bargain and does not submit that it has agreed to bargain. Accordingly the Commission ought to be satisfied that section 237(2)(b) is satisfied; 75

•  Mambourin’s facilitators are operationally or organisationally distinct from administrative employees, head office managers and supported workers because it is Mambourin’s facilitators who have direct responsibility for delivering the day services to clients. Further, Mambourin does not submit that the group is not “fairly chosen”. Accordingly, the FWC ought to be satisfied that section 237(2)(c) is satisfied; 76

•  With respect to section 237(2)(d), in circumstances where Mambourin has applied to have the current agreement terminated, employees who wish to bargain are effectively being shut out from the bargaining process with their conditions being reduced. Considering the objects and the balanced framework and what is fair, Mambourin’s refusal to bargain is not a balanced or fair approach. Additionally, Mambourin submissions on its financial capacity to bargain is misconceived. Accordingly, as sections 237(2)(a)-(c) are satisfied, it supports a conclusion that it is reasonable to make a majority support determination. 77

COVID-19

[102] The AEU submit that the parties can bargain taking into account COVID-19 for post COVID-19 arrangements. The AEU dose not support an unbalanced approach. 78

Mambourin’s contentions

[103] The AEU submit that with respect that there is unclear coverage, this should be rejected because Identifying employees to be covered by a prospective future agreement by reference to those covered by the current 2008 Agreement is convenient and ought to be uncontentious and the group is fairly chosen. Further, with respect to it not being financially viable to bargain, a majority support determination does not compel an outcome, rather it is a precursor to good faith bargaining. 79

Summary of Submissions in Reply: Mambourin

[104] In response to the amended application submitted by the AEU, Mambourin were permitted, by consent, to provide further submissions in reply. These are summarised as follows:

Proposed Agreement

[105] The petition dated 4 March 2020 cannot be said to constitute a “proposed agreement”, nor can an idea of what may constitute an enterprise agreement be considered sufficient when identifying a “proposed agreement” for the purposes of a majority support determination as contemplated by the FW Act. 80 It has been observed that that articulating certain topics to be dealt with in an enterprise agreement are a minimum requirement of an application to commence bargaining.81

[106] No comparison can be drawn between the bargaining that was considered in the Wesfarmers Case and the AEU’s reliance on this case is misplaced. A party expressing an idea of a want or need to bargain would represent a significant departure from the previous statutory regime which required, at minimum, topics to be exchanged to bargain on and for possible inclusion in an enterprise agreement. 82

[107] Construing section 237 of the FW Act as merely requiring an idea for a proposed agreement would mark a significant departure from the previous statutory regime in the WR Act. The Explanatory Memorandum to the FW Act does not indicate Parliament’s intention to depart from the requirement of, at minimum, topics to be exchanged. 83

Financial evidence and what is “reasonable in the circumstances”

[108] Section 237(2)(d) of the FW Act places a precondition on the Commission to be cautious when placing restrictions where there is unchallenged and uncontroverted evidence before it and that evidence is of importance to a party’s position. This has been considered by the Commission where a union’s affordability of a claim in the face of funding arrangements were found to be relevant to the question of whether it was reasonable in the circumstances to make a majority support determination. 84

[109] The financial position does not create an exemption from being subject to a majority support determination, rather it articulates a circumstance that the Commission must take into account. The AEU’s submission that financial circumstances should not be taken into account is at odds with why the Commission should not enquire with what the proposed agreement contains where the AEU have not articulated what topics are to be included in the enterprise agreement. As the Commission does not know what terms are proposed by the AEU, it is not able to understand what impact those terms may have. As accepted by the AEU, the Commission does know that Mambourin has not been able to offer day services for its clients since April 2020, income services have declined, and is not in a position to commit to terms that are above the SCHADS Award. This regimen of the subject matter in the FW Act allows the Commission to be cognisant of the circumstances of all parties prior to making a majority support determination. 85

Amended application and evolving coverage

[110] The AEU sought leave to file an amended application supported by a petition dated 4 March 2020. The classification by the AEU that it is the most current material available is incorrect. The most current material would be a fresh petition in support of the amended application. It is apparent that were a new petition crafted, it would look vastly different to the annexed 4 March 2020 as all seven hubs of Mambourin are closed and remain so for the foreseeable future. 86 Therefore, it is not reasonable for the Commission to grant the determination sought by the AEU.

[111] The AEU’s submission has generated more confusion where:

•  the amended application does not provide evidentiary support why the addition of the Melton hub was added an oversight; 87

•  the AEU’s amended application states that any proposed agreement will cover employees “employed as Instructors/Facilitators, Team Leaders, and Hub Managers” of Mambourin. However the AEU’s submissions state that only instructors/facilitators will be covered, and all other employees should be excluded from coverage; 88 and

•  the coverage submitted by the AEU states that it is willing to exclude all 58 casual employees in the application to achieve a simple majority, but it is not explained how all casuals could be exclude from consideration with the Commission making a determination that any proposed agreement is to cover Mambourin’s casual employees. 89

[112] Mambourin submit that should the Commission accept AEU’s alternative to order a ballot to occur, this should not happen until restrictions relating to COVID-19 have been lifted to the point where Mambourin hubs are re-opened. 90

Printed by authority of the Commonwealth Government Printer

<PR721069 >

 1   AEU Digital Court book, 19.

 2   Form F30 – Application for a Majority Support Determination; Witness Statement of Mathew Burke.

 3   Email to Mambourin dated 11 March 2020 at 12:14 pm AEDT.

 4   Email from Mambourin dated 18 March 2020 at 03:47 pm AEDT.

 5   Directions issued on 26 March 2020 at 01:58 pm AEDT.

 6   Email from Mambourin dated 6 May 2020 at 1:51 pm AEDT.

 7   Email from Mambourin dated 5 June 2020 at 4:11 pm AEDT.

 8   Appendix 1 – Summary of Submissions.

 9   [2014] FWCFB 1070.

 10   AEU Digital Court Book, 10-12.

 11   Mambourin Submissions in Reply, [21].

 12 Ibid [22].

 13   Ibid, [23].

 14   AEU Digital Court Book, 24.

 15   Email from Mambourin dated 5 June 2020.

 16   Mambourin Digital Court Book, 8.

 17   AEU Digital Court Book, 14-15.

 18   Witness statement of Mathew Burke, paragraphs 18-34

 19   AEU Digital Court Book, 7 and Mambourin Digital Court Book, 4.

 20   AEU Digital Court Book, 16.

 21   Mambourin Submissions in Reply, 1-3.

 22   Ibid, 4-5.

 23   AEU Digital Court Book, 8-9.

 24   Ibid, 7-10.

 25   Ibid, 10.

 26   Mambourin Digital Court Book, 9-11.

 27   Mambourin Submissions in Reply, 1-3.

 28   Mambourin Digital Court Book, 15.

 29 Witness Statement of Mathew James Burke, [13]-[16].

 30   Attachment MB-2.

 31   Attachment MB-3.

 32   Mambourin Digital Court Book, 15.

 33   Mambourin Submissions in Reply, 3-5.

 34   AEU Digital Court Book, 16-19.

 35   [2020] FWC 3246.

 36   [2020] FWC 228, [11].

 37   Mambourin Digital Court Book, 12-13.

 38   Ibid, 13.

 39   Ibid.

 40   Ibid, 14.

 41   Ibid.

 42   AEU Digital Court Book, 24.

 43   Mambourin Digital Court Book, 15.

 44   Mambourin Submissions in Reply, 1.

 45   AEU Digital Court Book, 19.

 46   Mambourin Digital Court Book, 4-5.

 47   Ibid, 5-6.

 48   Ibid, 6-8.

 49   Ibid, 8.

 50   Ibid.

 51   [2014] FWCFB 1317.

 52   Ibid, [42].

 53   Mambourin Digital Court Book, 9-10.

 54   Ibid, 10-11.

 55   Ibid, 11.

 56   Ibid, 13.

 57   Ibid, 14.

 58   Ibid.

 59   Ibid, 14-15.

 60   AEU Digital Court Book, 3-4.

 61   Ibid, 5.

 62   Ibid.

 63   Ibid, 8.

 64 [2004] FCA 1737; 138 IR 362 at [55] (French J)

 65   Ibid, 8-9.

 66   Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) v Veolia Water Operations Pty Ltd [2015] FWC 2561.

 67   AEU Digital Court Book, 9-10.

 68   Ibid, 10-12.

 69   Ibid, 12.

 70   Ibid, 12-13.

 71   Ibid, 13.

 72   Ibid, 13-14.

 73   Ibid, 14-15.

 74   Ibid, 15-16.

 75   Ibid, 16.

 76   Ibid.

 77   Ibid, 16-18.

 78   Ibid, 18-19.

 79   Ibid, 19.

 80   Mambourin’s Submissions in Reply, [3].

 81   Ibid, [5] citing Wesfarmers Premier Coal Limited v The Automotive Food Metals Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737; 138 IR 362 at [56].

 82   Mambourin’s Submissions in Reply, [7].

 83   Ibid, [8].

 84   Ibid, [9] – [10] citing Re Health Services Union and Life Without Barriers [2020] FWC 228 at [11] (McKinnon C).

 85 Ibid, [11] - [16].

 86   Ibid [17] – [19].

 87   Ibid, [21].

 88 Ibid [22].

 89   Ibid, [23].

 90   Ibid, [24].