Australian Workers' Union, The v QGC Pty Limited T/A Queensland Gas Company

[2015] FWC 5696

[2015] FWC 5696

FAIR WORK COMMISSION

DECISION

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

Australian Workers' Union, The
v
QGC Pty Limited T/A Queensland Gas Company
(B2015/659)

COMMISSIONER SIMPSON BRISBANE, 18 AUGUST 2015

QGC Pty Limited – Hydrocarbons Industry – Majority Support Determination – Determination made.

[1] This decision relates to an Application made by The Australian Workers’ Union (the Applicant) under s. 236 of the Fair Work Act 2009 (the Act) for a majority support determination to undertake bargaining for an agreement to cover employees of QGC Pty Limited. (the Respondent)

[2] The Application was filed on 3 August 2015 and was listed for a conference on 14 August 2015. At the conclusion of the conference it was clear the Respondent opposed the Application and the matter was listed for hearing for the following Tuesday 18 August 2015.

Relevant legislation

[3] The relevant statutory provisions under which the application is made and is to be determined are set out below:

“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.”

[3] The Application specified the employees who will be covered by the proposed agreement will be employees of the Respondent employed as a Hydrocarbons Industry Operations and Processing Employee or a Hydrocarbons Industry Modification and Maintenance Trades Employee under the Hydrocarbons Industry (Upstream) Award 2010 at the Curtis Island operations of the Respondent. The language in the application for the two categories of employees is identical to two of the classification groups in the Hydrocarbons Industry (Upstream) Award 2010.

[4] The Applicant filed with its application a redacted copy of a petition and a statement signed by Anthony Beers an Official of the Applicant. Directions were issued for the filing of material including for the Applicant to provide to the Fair Work Commission (FWC) an unredacted copy of the petition and for the Respondent to provide to the FWC those extracts from its payroll records that identify each of the employees within its employment who fall within the functional categories specified in the application.

[5] An unredacted copy of the petition was provided by the Applicant that included 40 signatures. The Respondent provided a payroll extract which included a list of of 83 names. All of the 83 persons identified on the Respondent’s list are described under a general heading of ‘Hydrocarbons industry award classification’. Within that heading the list identifies employees as falling within the category of an ‘Operations and Processing Employee’ or a ‘Modification and Maintenance Trades Employee’. 78 of the 83 names I understand from the list are employees of the Respondent and 5 of those identified on the list are identified as working in a “contractor position” and are intended to commence employment as an employee of the Respondent in the month of September 2015.

[6] The petition signed by the forty employees reads as follows:

“Majority Support Determination

We, the undersigned employees of QGC employed as a Hydrocarbons Industry Operations and Processing Employee or a Hydrocarbons Industry Modification and Maintenance Trades Employee as defined under the Hydrocarbons Industry (Upstream) Award 2010 at the Curtis Island operations of QGC, wish to commence bargaining for an Enterprise Bargaining Agreement with our employer. We understand that this document will be provided to the Fair Work Commission or a Court of competent jurisdiction as evidence for the purposes of determining that a majority of employees want to commence bargaining in accordance with s237 of the Fair Work Act 2009.”

[7] Each of the 40 persons who had signed the petition provided by the Applicant could be identified as also being included in the list of names provided by the Respondent. None of the 40 names on the petition corresponded with names identified on the Respondent’s list as currently working on a contract basis. Persons identified as not being employees of the Respondent as at the date of the hearing have been excluded for the purpose of determining whether a majority of employees want to bargain as s.237(2)(a) clearly contemplates consideration of the view of employees of the employer, and not others.

[8] The Respondent suggested that in circumstances where an employee has submitted a resignation which will have effect at a future date that such an employee should be excluded from consideration. I do not accept that submission. If the evidence discloses that an employee has expressed a clear intent that they wish to bargain with their employer, the prospect that there employment will be coming an end sooner rather than later does not alter the fact that whilst they are still employed they have expressed a wish to bargain.

[9] Mr Beers was the only witness called to give evidence, the Respondent electing not to call any evidence of its own. Mr Beers was cross examined about the manner in which the petition was prepared and how the signatures were collected. I am satisfied from the evidence of Mr Beers that the integrity of the petition has been maintained throughout the process. In the course of his cross examination it became apparent that a date next to one of the signatures on the petition may have been incorrectly recorded by a particular employee who signed the petition. I am not satisfied such an error should exclude that employee who signed the petition from being counted and I have not done so.

[10] I am satisfied on the evidence of Mr Beers, in conjunction with the petition itself that the 40 employees who signed the petition want to bargain. The petition on its own terms is quite explicit about its intended purpose. I have no other evidence to contradict Mr Beers’ evidence in regard to that question.

[11] It is also clear from the evidence of Mr Beers and other material provided to the Commission that the Respondent had not yet agreed to bargain. I am satisfied on a comparison of the petition and the list provided by the Respondent that 40 employees represent a majority of employees of the Respondent as at the date of the hearing. The time at which it has been determined that the majority of employees want to bargain is as at the time of the hearing.

[12] The FWC must be satisfied under s.237(2)(c) that the group of employees covered by the proposed enterprise agreement was fairly chosen. If the proposed agreement will not cover all of the employees of the employer, the FWC must take into account whether the group covered is geographically, operationally or organisationally distinct. The proposed group are the distinct classification groups under the modern award of operations and processing employees, and modification and maintenance trades employees. I am satisfied that group is operationally distinct and that the group of employees was fairly chosen.

[13] The FWC is also required to be satisfied that it is reasonable in all of the circumstances to make the determination. The Respondent has submitted that it has begun preparations itself for a secret ballot to be conducted by the Australian Electoral Commission of its employees to determine whether the majority of its employees want to bargain. When I sought clarification about which employees the Respondent intended to involve in this proposed ballot, the Respondent confirmed that this would be a different group of employees to the group of employees that are the subject of this application. I am not satisfied that the foreshadowed secret ballot is a proper basis to decline the application given it will be for a different group of employees. I have considered the evidence and submissions and I am satisfied it is reasonable in all the circumstances to make the determination.

[14] I am satisfied of the matters I am required to consider in s.237. On that basis I must make the majority support determination.

COMMISSIONER

Appearances:

Mr McKernan for the Applicant

Mr Le Mare from Corrs Chambers Westgarth for the Respondent

Hearing details:

Brisbane

18 August 2015

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