Australian Workers' Union v CITIC Pacific Mining Management Pty Ltd
[2024] FWC 3059
•5 NOVEMBER 2024
| [2024] FWC 3059 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236—Majority support determination
Australian Workers’ Union
v
CITIC Pacific Mining Management Pty Ltd
(B2024/1227)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 5 NOVEMBER 2024 |
Application for a majority support determination.
On 16 September 2024, the Australian Workers' Union (AWU) filed an application for a majority support determination (MSD) (dated 15 September 2024) pursuant to s.236 of the Fair Work Act 2009 (Act) with respect to relevant employees of CITIC Pacific Mining Management Pty Ltd (Respondent) who are engaged at the Respondent’s Cape Preston work location in Western Australia in the roles of Bus Driver and/or Waste Water Truck Operator, including leading hand employees, who are covered by the Mining Industry Award 2020 (Award), but excluding the Respondent’s supervisor employees.
The relevant provisions of the Act are contained under ss.236 and 237, and read:
“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.
(1A) Despite subsection (1), a bargaining representative may not apply to the FWC for a determination if a supported bargaining authorisation that specifies the employee is in operation.
Note: While a supported bargaining authorisation that specifies an employee is in operation, an employer cannot bargain with that employee for any kind of agreement other than a supported bargaining agreement (see subsection 172(7)).
(1B) Despite subsection (1), a bargaining representative of an employee may not apply to the FWC for a determination if:
(a)a single interest employer agreement or a supported bargaining agreement applies to the employee; and
(b)the agreement has not passed its nominal expiry date.
(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) 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) 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.”
The MSD sought by the AWU is that a majority of relevant employees who will be covered by a proposed agreement want to bargain with the Respondent. There is no enterprise agreement that currently covers or applies to the relevant employees of the Respondent. It is not in dispute that:
a) the AWU is a bargaining representative for the proposed enterprise agreement;
b) the Respondent is an employer to be covered by the proposed enterprise agreement;
c) the AWU has filed a valid MSD application in accordance with ss.236 and 237(1)(a) of the Act; and
d) the Respondent has not yet agreed to bargain or initiated bargaining for a proposed enterprise agreement to cover or apply to relevant employees.[1]
The Respondent opposes the MSD sought by the AWU.
Following a mention/directions hearing conducted on 25 September 2024, Directions were issued to program the matter for hearing. Both parties complied with the filing of materials in accordance with those Directions.
On 4 November 2024 I conducted a hearing to determine whether or not to make the MSD sought by the AWU. At this hearing, the AWU was represented by Mr Craig Dunne, Senior Legal Officer, and the Respondent was represented (with permission) by Ms Rachel Dawson, Partner, Herbert Smith Freehills lawyers.
Fairly chosen[2]
I am satisfied that the group of relevant employees sought to be covered by the MSD are fairly chosen, and geographically, operationally or organisationally distinct, in that they:
a) form the logistical crew of the Respondent’s operations at Cape Preston in Western Australia;
b) are engaged in the discreet industrial activity of logistical services (including bus driving and waste water truck operations) of the Respondent (employer) performing work as defined by the Award; and
c) are organisationally distinct from the Respondent’s other employees in that they are subject to a logistical management structure that is separate to other areas of the Respondent’s operations, and are otherwise excluded from coverage of the CITIC Pacific Mining Operations Agreement 2023.[3]
Majority support[4]
At the hearing, the AWU relied upon the witness statement of Mr Andrew Duffy, AWU Northwest Coordinator and Organiser, dated 13 September 2024. The Respondent did not rely upon any evidence, and did not cross-examine Mr Duffy.
The parties’ oral submissions at the hearing did not travel any further than the written submissions they filed in accordance with the Directions.
The Respondent’s objections focus upon compliance with s.237(2)(a) and (3) of the Act.[5] In summary, the Respondent submits that:
a) the petition process, what it involved, and how electronic petitions were compiled, collected, and retained, is unclear on the evidence;[6]
b) Mr Duffy’s evidence does not:
i)articulate exactly what explanation was provided to relevant employees about enterprise agreements, or the effect that an enterprise agreement will have on relevant employees;[7] or
ii)set out what instructions were provided to relevant employees to assist them in navigating the DocuSign platform and process;[8] and
c) in view of (a) and (b) above, the Commission cannot be satisfied on the evidence that the requirements of s.237(2)(a) have been complied with.[9]
In response, the AWU has made detailed submissions as to the factual basis upon which the Commission can be satisfied that s.237(2)(a) has been complied with, and says that the issues raised by the Respondent have no merit or otherwise amount to no more than baseless speculation.[10]
In my view, the Respondent’s submissions amount to no more than mere conjecture. They are not supported by evidence. The contentions and issues raised were not put to Mr Duffy. I do not consider that there is any basis for me to do other than accept Mr Duffy’s evidence.
I concur with the AWU that the relevant date for the purposes of s.237(2)(a)(i) of the Act is 27 August 2024. Having examined the list of names and signatures provided by the AWU (on a confidential basis), and the list and names of the relevant employees covered by the proposed enterprise agreement provided by the Respondent, I find that the evidence establishes that the AWU has proven that a clear majority of relevant employees (over 90 percent) who would be covered by the proposed enterprise agreement have indicated that they want to bargain with the Respondent. I am satisfied on the evidence that the method adopted by the AWU to ascertain the views of relevant employees was appropriate in terms of process integrity, and authenticity of outcome.
The Respondent’s objection that it is not reasonable in all of the circumstances of this case for the MSD to be made (s.237(2)(d)) is grounded upon its objections under s.237(2)(a) being sustained.[11] Given that I have rejected the Respondent’s objections under s.237(2)(a) of the Act, I consider that there is no basis upon which it is other than reasonable in all the circumstances of this case to make the MSD sought by the AWU.
In conclusion, I am satisfied that all of the requirements of ss.236 and 237 of the Act as are relevant in this case have been met. Accordingly, the Commission must make the majority support determination sought by the AWU. A Determination in this regard will be issued contemporaneously with this Decision, and come into effect today, 5 November 2024.
DEPUTY PRESIDENT
Appearances:
Mr Craig Dunne, Senior Legal Officer, appeared for the Australian Worker’s Union (Applicant).
Ms Rachel Dawson, Partner, Herbert Smith Freehills lawyers, appeared (with permission) for CITIC Pacific Mining Management Pty Ltd (Respondent).
[1] See ss. 236(1) and (2), and 237(2)(b) of the Fair Work Act 2009 (Act). Sections 236(1A) and (1B) of the Act do not apply.
[2] See ss. 237(2)(c) and (3A) of the Act.
[3] [2023] FWCA 4295.
[4] See ss. 237(1)(b) and (2)(a) of the Act.
[5] Respondent’s Submissions, 16 October 2024.
[6] Ibid, at [15]-[17].
[7] Ibid, at [18]-[19].
[8] Ibid, at [2].
[9] Ibid, at [21].
[10] AWU Submissions, 29 October 2024
[11] Respondent’s Submissions, 16 October 2024, at [22]-[23].
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