Australian Workers' Union, The v Fugro Australia Marine Pty Ltd T/A Fugro TSM Pty Ltd
[2022] FWC 183
•28 JANUARY 2022
| [2022] FWC 183 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236—Majority support determination
Australian Workers’ Union, The
v
Fugro Australia Marine Pty Ltd T/A Fugro TSM Pty Ltd
(B2021/1081)
| DEPUTY PRESIDENT BINET | PERTH, 28 JANUARY 2022 |
Application for a majority support determination
On 11 November 2021 the Australian Workers’ Union (AWU) made an application (Application) pursuant to section 236 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (FWC) to make a majority support determination (Determination).
The Application sought to compel Fugro Australia Marine Pty Ltd trading as Fugro TSM Pty Ltd (Fugro) to commence bargaining for a new enterprise agreement (Proposed Agreement) to cover employees of Fugro employed to perform remotely operated vehicle (ROV) work in the following classifications: ROV Superintendent; ROV Supervisor; Senior Pilot Technician; Pilot Technician 1; Pilot Technician 2; and Trainee (Employee Group).
The AWU say that it has collected signed individual petitions from a majority of the Employee Group who will be covered by the Proposed Agreement indicating that they wish to bargain with Fugro.
On 18 November 2021, Fugro informed Chambers that, provided that the FWC was satisfied that a majority of the Employee Group wished to bargain, Fugro did not oppose the FWC making the Determination.
Evidence
The AWU filed with the FWC:
a.On a confidential basis, copies of all the petitions collected by the AWU.
b.A statutory declaration of the Mr Ross Kumeroa, the AWU official who collected the petitions.
c.On a confidential basis, a table that contained the details of AWU members engaged by Fugro.
Due to the casualised nature of the employment of the Employee Group, Fugro filed with the FWC the following employee lists:
d.An employee list as at 10 November 2021 – the date of the Application.
e.An employee list as at 18 November 2021 – the date of filing the employee list.
f.An employee list containing the names of all employees who worked on 10 November 2021 or were forecasted to work in the following 14 days.
g.An employee list containing the names of all employees who worked on 18 November 2021 or were forecasted to work in the following 14 days.
At the request of Chambers, Fugro also filed an employee list containing the names of all employees who worked in the period 15 October 2021 to 12 November 2021.
Fugro also filed a statutory declaration of its Human Resource Manager – Pacific, Ms Hayley Vicaro.
Background
Fugro provides ROV services to the hydrocarbon industry.
ROVs are tethered underwater vehicles equipped with video cameras, sonars, pipe trackers and navigation, position sensors and integrated job specific tooling. ROVs inspect subsea system pipelines and other subsea equipment in water depths where divers cannot operate, whilst manipulators and intervention tools enable them to carry out task specific project requirements at depths as great as 4,000 metres.
Employees engaged by Fugro to perform ROV work are currently covered by the Fugro TSM Pty Ltd ROV Casual Enterprise Agreement 2016-2020 (Current Agreement).
Employees engaged by Fugro to perform ROV work are all employed on a casual basis and their employment with Fugro is not ongoing or regular. They are engaged sporadically and are employed as projects arise. For example, as at 13 October 2021 (the date of the AWU’s first petition) Fugro employed 22 ROV employees. As at 25 October 2021, Fugro employed 23 ROV employees. However, of those 22 ROV employees employed on 13 October 2021, only 16 were still employed by Fugro on 25 October 2021.
Fugro primarily utilises a roster consisting of four weeks on-duty followed by four weeks off-duty.
Key Statutory Provisions
Section 236 of the FW Act provides that:
“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 FW Act provides that:
“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
The making of a majority support determination confirms that the majority of the employees to be covered by a proposed agreement want to bargain with the employer towards such an agreement. The effect of a majority support determination is to require the commencement of the agreement bargaining process, but it neither requires that an agreement be reached, nor dictates the terms of any such agreement.[1]
The AWU have applied for the Determination. An organisation of employees can apply for a majority support determination provided it is a bargaining representative for at least one employee who would be covered by the proposed agreement.[2] It is not contested, and I am satisfied, that the AWU have standing to make the Application.
Has Fugro agreed to bargain?
The Application identifies the employer to be covered by the Proposed Agreement as Fugro. The FWC must be satisfied that the employer has not yet agreed to bargain or initiated bargaining for the proposed agreement.[3] The Application annexed a letter from Fugro dated 8 November 2021 in which Fugro confirmed that it did not intend to commence bargaining. I am therefore satisfied that Fugro have not yet agreed to bargain or initiated bargaining for the Proposed Agreement.
Is the group of Employees fairly chosen?
The FWC must be satisfied that the group of employees to be covered by the proposed agreement was fairly chosen. If the agreement will not cover all employees of the employer the FWC must take into account whether the group covered is geographically, operationally and/or organisationally distinct from other employees of employer. Having determined whether the group is geographically, operationally and/or organisationally distinct the FWC must take that into account and give it due weight having regard to all the other factors.[4]
The Application identifies the employees to be covered by the Proposed Agreement as employees of Fugro who are employed to perform Remotely Operated Vehicle (ROV) work in the following classifications: ROV Superintendent; ROV Supervisor; Senior Pilot Technician; Pilot Technician 1; Pilot Technician 2; and Trainees (Employee Group).
The AWU submits that the Employee Group are operationally distinct from other employees of Fugro as they are engaged in the discrete industrial activity of performing ROV work. Fugro have not disputed that the Employee Group is operationally distinct.
Having reviewed the submissions I am satisfied that the Employee Group is operationally distinct.
While the question of whether the group of employees to be covered by the Proposed Agreement is geographically, operationally and/or organisationally distinct must be evaluated and given due weight, it is not a determinative consideration. It is not necessary to make a finding that the group is geographically, operationally and/or organisationally distinct in order to be satisfied that a group of employees was fairly chosen.[5]
The word ‘fairly’ implies that the selection of the group is not arbitrary or discriminatory and is made on some objective basis.[6] In this regard it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreements coverage and employees who are excluded.[7] Selection criteria based on employee characteristics such as gender would be unlikely to be fair. Selection criteria which would have the effect of undermining collective bargaining or other legislative objectives is also unlikely to be fair.[8]
I am satisfied that the selection of the Employee Group is not fairly characterised as either arbitrary or discriminatory.
Taking into account the operational distinctions and giving those due weight having regard to all the other factors raised by the parties I am satisfied that the Employee Group was fairly chosen.
What method is appropriate to determine whether a majority of employees want to bargain?
The FWC may determine whether a majority of employees want to bargain using any method the FWC considers appropriate. The evidence to support such a finding may include employee petitions or surveys, secret ballots or written statements from employees.
In its Application, the AWU say that it presented petitions to the Employee Group which a majority of the Employee Group signed, confirming that they wish to bargain with Fugro for a new agreement (Petitions).
I am satisfied that reviewing the Petitions is an appropriate way to determine whether the majority of Employees wish to bargain. Fugro have not filed any submissions or any evidence to suggest that the Petitions do not accurately reflect the views of the Employee Group.
Do a majority of Employees who will be covered by the Agreement want to bargain?
In satisfying itself that there is majority support for enterprise bargaining the FWC must determine by reference to time the cohort of employees from which the views of the majority is to be determined.[9]
Where there is a highly casualised workforce, the authorities recognise that the meaning of 'time' in the context of s 237(2)(a)(i) can mean a period of time rather than single date (Relevant Period).[10]
Once the Relevant Period has been fixed, the FWC must then determine which employees are or were employed during the period and then whether, at the time of making its decision, a majority of those employees wish to bargain.
The Petitions were obtained between 15 October 2021 and 12 November 2021. The Employee Group typically work in accordance with a roster of four weeks on-duty. The Application was filed on 10 November 2021, two days short of a crew change.
The AWU submit that the relevant period should be the four week period from 15 October 2021 to 12 November 2021 which corresponds with the on-duty period.
Fugro submits that the relevant period should be a two week period being 25 October 2021 (the last crew change prior to the date the Application was filed) to 10 November 2021 (the date of the Application), inclusive. Fugro also submit that the FWC should determine that the petitions collected before 25 October 2021 and after 10 November 2021 should not be included in the assessment of whether a majority exists.
Based on the evidence available to me I have fixed the period 15 October 2021 to 12 November 2021 as the relevant period for the purposes of determining whether a majority of the Employee Group want to bargain (Relevant Period).
This period is logical, fair and does not prejudice either party in relation to the Application. The period corresponds with a typical rostered period of work, is a period during which the petitions were collected and is a period which is contemporaneous to the Application.
Having reviewed the list of employees employed in the Relevant Period and the Petitions I am satisfied that a majority of the Employee Group want to bargain.
I note that if I had accepted the period proposed by Fugro, based on my review of the list of employees employed during that period, I would have also been satisfied that a majority of the Employee Group want to bargain.
Is it reasonable in the circumstances to make the Determination?
The FWC must be satisfied that making a majority support determination is reasonable in all the circumstances.[11] Section 237 of the FW Act gives the FWC broad discretion to determine whether majority support exists in the workforce in deciding whether to make a determination.
Making a determination does not in itself require the employer to bargain nor does it determine the scope of bargaining or coverage of the proposed agreement. It triggers the notice time within the meaning of section 173(2) of the FW Act. This marks the commencement of the bargaining process and the requirement of the parties to comply with the good faith bargaining obligations set out in section 228 of the FW Act.
I am satisfied that in all the circumstances of this Application that it is reasonable to make the Determination.
An order[12] to this effect will issue with this decision.
DEPUTY PRESIDENT
[1] [2009] FWAFB 668 at [25].
[2] ResMed Ltd v Australian Manufacturing Workers’ Union [2015] FCA 360.
[3] Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd (2009) 191 IR 124.
[4] Construction, Forestry, Mining and Energy Union v Alcoa of Australia Ltd[2014] FWC 7123 citing Cimeco Pty Ltd v CFMEU [2012] 219 IR 139, Cotton on Group Services Pty Ltd v National Union of Workers[2014] FWCFB 8899.
[5] Cimeco Pty Ltd v CFMEU [2012] 219 IR 139 at [20], Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union[2017] FWCFB 5826 at [26].
[6] Cimeco at [21], Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union[2017] FWCFB 5826 at [26].
[7] Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union[2017] FWCFB 5826 at [26].
[8] [2014] FWC 7123 citing Cimeco at [21].
[9] Kantfield Pty Ltd v AWU[2016] FWCFB 8372 at [35].
[10] See NUW v Lovisa[2019] FWC 2571 at [36] which was adopted in AWU v Legeneering Australia Pty Ltd[2020] FWC 4138.
[11] Construction, Forestry, Mining and Energy Union v CBI Constructors Pty Ltd[2010] FWA 2164.
[12] PR736880.
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