Australian Maritime Officers' Union, Construction, Forestry, Maritime, Mining and Energy Union the Maritime Union of Australia Division, and the Australian Institute of Marine and Power Engineers v PMG Management Pty Ltd
[2023] FWC 530
•3 MARCH 2023
| [2023] FWC 530 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236—Majority support determination
Australian Maritime Officers’ Union, Construction, Forestry, Maritime, Mining and Energy Union - The Maritime Union of Australia Division, and The Australian Institute of Marine and Power Engineers
v
PMG Management Pty Ltd
(B2023/96)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 3 MARCH 2023 |
Application for a majority support determination.
Background
The Australian Maritime Officers’ Union (AMOU), the Construction Forestry, Maritime, Mining and Energy Union (The Maritime Union of Australia Division) and the Australian Institute of Marine and Power Engineers (the Applicants) have made an application to the Fair Work Commission (the Commission) under s. 236 of the Fair Work Act 2009 (the Act) for a majority support determination with respect to a group of employees of PMG Management Pty Ltd (PMG/Company). The application was made on 8 February 2023.
In the F30 application, the group of employees, who will be covered by the proposed enterprise agreement, is identified by the Applicants as follows:
“Only Pacific Marine Group’s Australian Marine Crews will be covered by this agreement. They are organisationally and operationally distinct from other employees in that they conduct vessel operations and other employees do not.
The Applicants have stated that on 8 June 2022, they corresponded with PMG seeking to initiate bargaining for an enterprise agreement with respect to the group of employees. It is asserted that PMG refused the request to commence bargaining. The parties attended two conferences in December 2022 in relation to an earlier application for a majority support determination (B2022/1773), and the Respondent did not agree to bargain. In support of the present application for a majority support determination, the Applicants stated that they rely on a ballot of employees which showed that a majority of employees who would be covered by the proposed enterprise agreement, wished to bargain.
On 9 February 2023, I issued Directions requiring the Applicants to file in the Commission, and serve on the Respondent, material in support of its application addressing the matters in s. 237 of the Act, including material relating to the ballot of employees referred to in the application and a list of employees for the Commission only. PMG was directed to respond to the application indicating whether it objected to the making of the majority support determination and, if it objected, provide to the Commission only a list of all employees described in the application as the group of employees to be covered by the proposed agreement.
PMG objected to the application and both parties filed material in accordance with the Directions. The AMOU also provided a list of employees it asserted should not be on PMG’s list because they were no longer working for the Company. It was also asserted that PMG was possibly inflating the number of employees said to be covered.
On 16 February 2023 correspondence was sent from my Chambers to the parties advising the parties of disparities between their materials concerning the number of employees and noting that:
· A comparison between the list of names contained in the excel spreadsheet provided by the AMOU and the list provided by the Company indicates that out of the 44 employees identified by the AMOU, 35 names can be matched to the Company’s list and 9 names do not appear on the Company’s list.
· In relation to the list of 63 names who are said to be former employees of the Company, 17 names have been included in the Company’s list of 68 employees of which 3 were among the 35 names provided by the AMOU who could be matched to the Company’s list.
· On the assumption that there are 68 employees identified in the Company’s list, there would appear to be majority support for bargaining, being 35 out of 68 employees.
· If 17 names are removed from the Company’s list of 68 employees and 3 names are removed from the AMOU’s list of 35 employees, this would mean the Company’s list contains 51 employees and the AMOU’s list contain 32 employees. On that basis, there would still appear to be majority support for bargaining.
On 16 February 2023, PMG responded to the correspondence from my Chambers requesting that the list of 17 employees be provided to enable the employment status of the persons on that list to be determined. This request was denied for reasons of confidentiality and the matter was listed for a Case Management Conference on 17 February 2023. At the Conference, the Applicants were represented by Ms Tracey Ellis, Mr Sam O’Sullivan and Mr Dave Lyon, and PMG was represented by Ms Jacqui Duncan.
During the Conference, I clarified the information in the 16 February 2023 email, regarding the count of the employees. The Respondent did not press its request for the list of persons provided by the AMOU on the basis that the count of employees who indicated that they wish to bargain establishes a majority, and if the inclusion or exclusion of the 17 employees from the count did impact on the outcome of the matter, there would still be majority support for bargaining. PMG confirmed that it no longer had any objection or position to put in relation to the making of the determination.
Legislation
The Commission must make a majority support determination if an application for the determination has been made and if the Commission is satisfied of those matters set out in s. 237(2) of the Act. An application for a determination is made pursuant to s. 236 of the Act, which provides 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.”
Section 237 of the Act provides as follows:
“237 When the FWC must make a majority support determination
Majority support determination
(1)The FWC must make a majority support determination in relation to a proposed single enterprise agreement if:
(a) an application for the determination has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which the FWC must be satisfied before making a majority support determination
(2)The FWC must be satisfied that:
(a) a majority of the employees:
(i)who are employed by the employer or employers at a time determined by the FWC;
and
(ii)who will be covered by the agreement;
want to bargain; and
(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3)For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
Consideration
An organisation of employees can apply for a majority support determination provided it is a bargaining representative for one employee who would be covered by the proposed agreement and it is not necessary that an organisation of employees is eligible to enrol as members and represent all employees specified in an application, who would be covered by the proposed agreement.[1] It is not in dispute that each of the Applicants is the bargaining representative of some employees who will be covered by the proposed single enterprise agreement.
It is also not in dispute that the application for a determination specifies the Employer that will be covered, being PMG Management Pty Ltd, and the employees who will be covered by the agreement, being those outlined above. Accordingly, I must make the determination if I am satisfied of the matters set out in s.237(2) of the Act.
The matters in ss. 237(2)(b), (c) and (d) are not in dispute. It is not disputed by PMG that it has not yet agreed to bargain or initiated bargaining in respect of the proposed enterprise agreement. It is also not in dispute that the group of employees proposed to be covered by the agreement are fairly chosen. I have considered that the group of employees proposed to be covered by the agreement is geographically and operationally distinct. In this regard, the application states that the proposed agreement will cover all Australian Marine employees employed by PMG. The relevant employees are not presently covered by any enterprise agreement. Those employees were asked by PMG to sign common law contracts. No circumstances have been identified that would otherwise make it not reasonable to make the determination sought.
I am satisfied on the basis of the lists of employees provided by PMG and the Applicants, and the ballot of employees conducted by the Applicants, a majority of those employees have indicated that they want to bargain.
Conclusion
Having formed the requisite satisfaction in relation to the matters in s. 237(2) of the Act, I must make a majority support determination. A determination will issue with this Decision.
DEPUTY PRESIDENT
[1] ResMed Ltd v AMWU [2014] FWCFB 2418, upheld by the Federal Court in an application for judicial review in ResMed Ltd v AMWU [2015] FCA 360 per Perry J, and appeal dismissed by the Full Court of the Federal Court in ResMed Ltd v AMWU [2015] FCAFC 195.
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