Australian Workers’ Union, The

[2017] FWC 798

[2017] FWC 798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Australian Workers’ Union, The
(B2017/104)

DEPUTY PRESIDENT WELLS HOBART, 7 FEBRUARY 2017

Application for majority support determination.

[1] This decision concerns an application for a majority support determination pursuant to section 236 of the Fair Work Act 2009 (the Act). The application was lodged with the Fair Work Commission (FWC) by The Australian Workers’ Union (AWU) on 23 January 2017.

[2] The relevant provisions of the Act, sections 236 and 237, 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 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 FWC must make a majority support determination

Majority support determination

(1) 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) FWC is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWC must be satisfied before making a majority support determination

(2) 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 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), FWC may work out whether a majority of employees want to bargain using any method FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, 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.”

[3] The employer to be covered by the proposed enterprise agreement in respect of which the declaration is sought is Huon Aquaculture Company Pty Ltd (HAC). The employees who would be covered by the proposed agreement are those employees who are engaged in farm attendant duties in or in connection with the marine operations at Macquarie Harbour in Tasmania (the relevant employees) and are otherwise covered by the Aquaculture Industry Award 2010 (the Award). 1 The AWU asserts that it is a bargaining representative for at least one of the relevant employees, by virtue of rule 5 of its Rules. 2

[4] The matter was heard on 31 January 2017 with the AWU being represented by Mr Robert Flanagan. HAC was represented by Mr Tony Baker. A formal direction was issued to the Respondent at the conclusion of the hearing to provide information which would assist the Commission in determining the matters relevant to whether majority support for bargaining was present. That direction required HAC to provide to the Commission only, a list of its employees who comprised the group of employees to be covered by the proposed agreement. This list 3 was provided to the Commission on 1 February 2017 in accordance with the direction.

[5] At the hearing the AWU lead evidence from Mr Flanagan 4 and from Mr Kade Wakefield.5 Mr Baker did not challenge any evidence led by the AWU and did not call any witnesses.

[6] HAC opposed the making of a majority support determination on the basis that it had agreed to bargain with the AWU for an agreement for the relevant employees. Conversely, the AWU argued that HAC had not agreed to bargain for an agreement for the relevant employees as related to the application currently before the Commission, and that the AWU had fulfilled all of the criteria required for the making of a majority support determination.

[7] The evidence provides that the AWU held discussions in December 2016 with HAC about the commencement of bargaining for an agreement for the relevant employees. On 20 December 2016, Mr Baker contacted an AWU organiser, Mr Hogan, to advise that HAC did not agree to bargain. An email exchange occurred between Mr Flanagan and Mr Baker from 27 to 31 January 2017. This exchange appears to have arisen as a result of the lodgement of this application and is as follows:

“From: Tony Baker
Sent: Friday, 27 January 2017 9:47 AM
To: Robert Flanagan; Kade Wakefield; [Graeme Hogan]
…
Subject: RE: MSD Application-Macquarie Harbour Marine Operations

Dear Robert, Kade & Graeme,

Further to my voicemail messages and conversation (with Graeme) this morning we note receipt of your MSD application for the team at Macquarie Harbour and confirm the following.

HAC does not agree to bargain for an agreement on that basis.

However considering that the bargaining for the Marine Operations EA will commence later this year with the parties exchanging a log of claims then we are proposing to commence bargaining for a new EA that would cover Macquarie Harbour employees under the Marine Operations EA. HAC’s position is that the terms and conditions for this group of employees should be aligned and the most efficient way to do this is to have one EA for the employees.

Can you please respond by midday Monday with any comments. Subject to your response HAC will consider initiating bargaining for one EA to cover all employees that are under the current Marine Operations EA including the Macquarie Harbour team.

Regards
Tony
Tony Baker General Manager | People, Safety and Culture
Huon Aquaculture Group Limited

From: Robert Flanagan
Sent: Monday, 30 January 2017 11:54 AM
To: Tony Baker
Cc: [Kade Wakefield]
Subject: RE: MSD Application-Macquarie Harbour Marine Operations

Dear Tony
I refer to your email from last Friday. I understand that you are new to Huon so may not be across the history of bargaining for a new Enterprise Agreement for South East Tasmania [the Marine Operations EA]. That bargaining has been ongoing for over 18 months. The log of claims was tabled at that time. I am not aware of any changes to the log, although given the passage of time employees may have raised additional matters with Kade. I am also not aware why there is a view that we are starting, or restarting, later this year. I am expecting that we should be meeting sooner rather than later to continue the negotiations, (albeit that the company proposal was not accepted by employees). Kade will contact you to set dates to resume the bargaining.

Importantly in the context of the MH [Macquarie Harbour] application at no stage in the last 18 months has it ever been put to the union (or the workforce) that the South-East EA could be extended to apply to MH.

A further relevant consideration is that no employees from MH have ever participated in the South-East bargaining. As a geographically distinct operation the issues which confront employees at MH are particular to their circumstances and they wish to resolve those matters by bargaining for an enterprise agreement that deals with their issues. In those circumstances the union will be proceeding to seek a MSD tomorrow afternoon.

Having regard to the above can you advise whether Huon will consent to the application.

Regards
Robert Flanagan
Assistant Branch Secretary
The Australian Workers Union

From: Tony Baker
Sent: Tuesday, 31 January 2017 10:13 AM
To: Robert Flanagan
Cc: [Kade Wakefield]
Subject: RE: MSD Application-Macquarie Harbour Marine Operations

Dear Rob,

Thanks for your email.

We are still of the view that the MH employees perform the same roles to the employees that are currently covered by the Marine Operations EA and it is preferable and appropriate to have all employees under the same EA.

We do not see a single EA as unfair to MH employees as if there are any specific matters for MH employees then we can consider these during the bargaining process.

If HAC was to bargain for a separate agreement it would be duplicating the process. It is more efficient to bargain for a single EA.

HAC will provide a NERR [Notice of Employee Representational Rights] to the employees within the next 14 days to confirm that it has initiated bargaining for an EA for those groups of employees listed in the Marine Operations EA Classification Table, based at Hideaway Bay, Pillings Bay, APM net maintenance facility (not currently listed in (3) Coverage as the function has been moved from Port Huon), Storm Bay (not currently listed in (3) Coverage) and Macquarie Harbour (not currently listed in (3) Coverage).

Regards Tony
Tony Baker General Manager | People, Safety and Culture
Huon Aquaculture Group Limited”  6

[8] Mr Baker submitted at hearing that HAC has agreed to bargain for an agreement that covers the relevant employees, and therefore the AWU could not establish the criteria required for the Commission to make a majority support determination. Further Mr Baker stated that HAC did not consider the relevant employees to be geographically distinct from the rest of its Tasmanian workforce and therefore the group of employees could not be considered to be “fairly chosen”. 7

[9] Mr Flanagan offered a contrary view, submitting that on its proper construction, s.237 does not allow an employer to offend an application, based upon a conditional agreement to bargain, when that condition is contrary to the very heart of the application. The heart of the AWU’s application was said to be the negotiation of an agreement for the marine operations specifically at Macquarie Harbour. 8 Also Mr Flanagan relied on the remote nature of the Macquarie Harbour site to support his argument that the relevant employees were a geographically distinct group of workers9 and therefore they were “fairly chosen” for the purposes of the Act.

Consideration

[10] Having regard to the material placed before me at hearing, I am satisfied that the AWU is a bargaining representative for the relevant employees. Likewise I am satisfied, on the basis of the confidential list provided by HAC and the confidential petition provided by the AWU, that a majority of the relevant employees wish to bargain for the proposed enterprise agreement. This satisfied the preconditions contained in s.236(1) and s.237(2)(a) of the Act.

[11] I now turn to consider the precondition contained in s.237(2)(b) of the Act that deals with the refusal of the employer to bargain with the relevant employees. The AWU provided evidence of its discussions with HAC about the commencement of bargaining for an agreement for the relevant employees. This evidence was that discussions between the AWU and HAC occurred in December 2016. Mr Baker then contacted an AWU organiser, Mr Hogan, on 20 December 2016 and advised that HAC did not agree to bargain.

[12] In the decision of this Commission of Liquor, Hospitality and Miscellaneous Union v Coca-cola Amatil (Aust) Pty Ltd[2009] FWAFB 668 (Coca-Cola), the Full Bench dealt with a similar set of circumstances as are presented in this application, albeit the employer in Coca-Cola sought multiple enterprise agreements, with the union seeking one agreement. In Coca-Cola the parties had been unable to reach an agreement. When the LHMU sought to recommence negotiations, Coca-Cola declined to bargain for one agreement, seeking instead three separate enterprise agreements. This resulted in the LHMU, through a petition, making application for a majority support determination. The Commission declined to make the majority support determination, on the basis that at the time, Coca-Cola had agreed to, and was, bargaining. The LHMU appealed this single member decision.

[13] The Full Bench, in dismissing the appeal, relevantly held:

“[24] Before going to the competing contentions about the operation of s.237(2)(b) of the Act advanced by the parties, there is some value in considering the role of majority support determinations within the bargaining processes contemplated by the Act. The statutory provisions dealing with majority support determinations form part of Division 8 of Part 2-4 of the Act, which deals with Fair Work Australia’s general role in facilitating bargaining. The bargaining system includes a number of processes designed to facilitate agreement making and assist bargaining representatives to bargain effectively when it is required. As noted in s.169 of the Act, Division 8 provides for Fair Work Australia to facilitate bargaining by making bargaining orders, serious breach declarations, majority support determinations and scope orders and permits bargaining representatives to apply to Fair Work Australia to deal with bargaining disputes.

[25] A majority support determination might be sought in circumstances where an employer is aware that a majority of its employees wish to bargain but declines to do so or in circumstances where an employer is not aware or certain of the views of a majority of its employees in relation to their desire to bargain. If made in either of those circumstances, a majority support determination provides a means by which the bargaining processes within the Act are commenced within the meaning of the “notification time” in s.173(2)). Once the bargaining processes commence, an employer is required by s.173 of the Act to take all reasonable steps to give notice to each employer of their right to be represented by a bargaining representative. A majority support determination, in itself, does not require bargaining to occur. There is no penalty, as such, for contravening a majority support determination. However, once the bargaining process commenced, the employer’s bargaining representative is obliged to meet the good faith bargaining requirements in s.228 of the Act and is subject to the statutory consequences of a failure to do so (for example, good faith bargaining orders (s.229) and serious breach declarations (s.234)).

…

[28] Division 8 also contains a variety of processes designed to facilitate agreement making. Within those processes, the role of a majority support determination is to commence the bargaining process when there is majority support among employees to collectively bargain, when their employer has not agreed to do so. The effect of a majority support determination itself extends no further. However, once a determination is made, the bargaining process under the Act is enlivened, including the good faith bargaining requirements under s.228 of the Act.

[29] Where the bargaining raises a dispute about the scope of the agreement or agreements to be made and the classes or groups of employees to be covered by the proposed enterprise agreement or agreements, [my emphasis] Fair Work Australia has power to make scope orders to determine which classes or groups of employees are to be covered. The scheme of the Act does not envisage a role for a majority support determination in determining the scope of bargaining or the scope of an agreement.

[30] The Explanatory Memorandum notes that s.237 of the Act requires Fair Work Australia to make a majority support determination, upon application, if satisfied that the employer has not yet agreed to bargain, or initiated bargaining, for the agreement (s.237(2)(b)). It further notes that:

“If bargaining has commenced in relation to a proposed enterprise agreement, the appropriate tool to resolve issues surrounding coverage are scope orders (or bargaining orders) and not majority support determinations. This does not prevent employees of the employer who are not covered by the proposed agreement from applying for a majority support determination in relation to an agreement that will cover them.”[footnotes omitted]

[14] It is clear from the correspondence dated 31 January 2017 that whilst negotiations are yet to commence with the relevant employees, the majority support determination application has motivated HAC to agree to bargain with them. HAC has advised it will issue a Notice of Employees Representational Rights to all operational employees (which includes the relevant employees), by no later than 13 February 2017. Whilst HAC’s position on the scope of the enterprise agreement is different than the one requested in this application, it has none-the-less agreed to bargain with the relevant employees contained within this application.

[15] In line with the authority established in Coca-Cola, I am of the view that HAC has agreed to bargain with the relevant employees and therefore the AWU has not fulfilled all of the criteria required under s.237(2) of the Act. The application must fail. I note however, that the AWU may have a number of options available to it under the Act including matters of scope and good faith bargaining.

[16] I dismiss the application.

DEPUTY PRESIDENT

Appearances:

Mr R Flanagan, for the Applicant

Mr T Baker, for the Respondent

Hearing details:

Hobart

2017

31 January

 1   [MA000114]

 2   Exhibit A2, statutory declaration of Mr Kade Wakefield, attachment

 3   Exhibit R2 (confidential Respondent document) – Correspondence with list of employees, dated 1.2.2017

 4   Exhibit A1, statutory declaration of Mr Robert Flanagan

 5   Exhibit A2

 6   Exhibit R1

 7   Transcript, PN179 and PN202

 8   Transcript, PN208 and PN209

 9   Transcript, PN213

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