Australian Workers' Union v Em&I (Australia) Pty Ltd T/A Em&I

[2021] FWC 6017

[2021] FWC 6017

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Australian Workers’ Union
v
EM&I (Australia) Pty Ltd T/A EM&I
(B2021/514)

DEPUTY PRESIDENT BINET PERTH, 12 OCTOBER 2021

Application for a majority support determination

[1] The Australian Workers Union (AWU) has 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).

[2] The Application sought to compel EM&I (Australia) Pty Ltd (EM&I) to commence bargaining for a new enterprise agreement (Proposed Agreement) to cover employees of EM&I employed to carry out inspection work on the BHP Pyrenees Venture Floating Production, Storage and Offloading Facility(Employee Group).

[3] The AWU say that it has collected signed individual petitions from a majority of Employees who will be covered by the Proposed Agreement indicating that they wish to bargain with EM&I.

[4] The Application was listed for a Conference on 5 August 2021. The Application could not be resolved at the Conference and directions were issued to the parties on 24 August 2021 (Directions).

[5] On 8 October 2021, EM&I informed Chambers that, provided that I was satisfied of the matters set out in section 237(2) of the FW Act, EM&I did not oppose the FWC making the Determination.

Evidence

[6] The Directions required the AWU to file inter alia:

a. A sworn statement setting out the dates and circumstances in which each of the Petitions were obtained.

b. A copy of each signed petition.

[7] The Directions required EM&I to file inter alia a list of employees employed in the period 1 May 2021 to 23 August 2021 and the start and end of date of each employee’s employment.

[8] The Directions also required EM&I to provide a copy of the Application, the materials filed in accordance with the Directions and a copy of the Directions to all of the Employee Group by 4pm, Friday 17 September 2021. The Directions stated that any employee wishing to be heard with respect to the Application was invited to contact my Chambers by 4pm, Thursday 23 September 2021. No employee contacted Chambers by that date or by the date of this decision.

Background

[9] EM&I provides asset integrity, inspection and specialised repair and maintenance services to the oil, gas, and renewable energy industries.

[10] EM&I is contracted by BHP to perform inspection services on the BHP Pyrenees Venture Floating Production, Storage and Offloading facility (FPSO).

[11] EM&I's workforce are engaged on a contractor or casual basis to perform work on the FPSO on a 'three weeks on, three weeks off' basis.

[12] During 2021 EM&I has employed a total of eight employees. Generally between one and three employees are engaged on work offshore on the FPSO at any given time. Employees are paid for the periods they are mobilised to the FPSO. They are also paid to attend from time to time a pre-mobilisation meeting on the day prior to mobilisation.

[13] Following demobilisation, some employees will have a three week non-work period, mobilise and commence work on the FPSO again other employees may not be offered, or may reject offers, of further work.

[14] During the period 1 May 2021 and 23 August 2021 two of the eight employees ceased to perform work on the FPSO following their last demobilisation on 14 May 2021 and will not be offered any further work on the FPSO.

Key Statutory Provisions

[15] 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.”

[16] 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

[17] 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

[18] 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.

[19] The Application identifies the employer to be covered by the Proposed Agreement as EM&I. The Application identifies the employees to be covered by the Proposed Agreement as employees of EM&I who are engaged by EM&I to carry out inspection work on the BHP Pyrenees Venture Floating Production, Storage and Offloading Facility.

Has EM&I agreed to bargain?

[20] The Application identifies the employer to be covered by the Proposed Agreement as EM&I. The FWC must be satisfied that the employer has not yet agreed to bargain or initiated bargaining for the proposed agreement. 3 This was confirmed by EM&I at the Conference. I am therefore satisfied that EM&I have not yet agreed to bargain or initiated bargaining for the proposed agreement.

Is the group of Employees fairly chosen?

[1] 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

[2] The AWU submits that the Employee Group are operationally distinct from other employees of EM&I because they are engaged in the discrete industrial activity of performing inspection services on the FPSO. The AWU also submit that the Employee Group is geographically distinct from other EM&I employees because they are engaged to perform work at a single worksite, namely the FPSO. EM&I have not disputed that the Employee Group is geographically or operationally distinct.

[3] Having reviewed the submissions I am satisfied that the Employee Group is operationally distinct.

[4] 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

[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

[6] I am not satisfied that the selection of the Employee Group is fairly characterised as either arbitrary or discriminatory.

[7] Taking into account the geographic and 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?

[8] 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.

[9] 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 EM&I for a new agreement (Petitions).

[10] I am satisfied that reviewing the Petitions is an appropriate way to determine whether the majority of Employees wish to bargain. EM&I 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?

[11] In satisfying itself that there is majority support for enterprise bargaining the FWC must determine by reference to time the cohort of employee from which the views of the majority is to be determined. 9

[12] 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

[13] 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.

[14] The Petitions were obtained between 14 May 2021 and 21 August 2021.

[15] EM&I submits that the relevant period should be a three week roster period either closest to, or immediately before, the date of the Application (being either 25 June 2021 to 16 July 2021) or the nearest complete roster period (being 4 June to 25 June 2021).

[16] Consistent with the decision in NUW v Lovisa 11 and in AWU v Legeneering Australia Pty Ltd12 I have fixed the period 4 June 2021 to 25 June 2021 as the Relevant Period for the purposes of determining whether a majority of the Employee Group want to bargain.

[17] Having reviewed the list of employees employed in this period and the Petitions I am satisfied that a majority of the Employee Group want to bargain.

Is it reasonable in the circumstances to make the Determination?

[18] The FWC must be satisfied that making a majority support determination is reasonable in all the circumstances. 13 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.

[19] Making a determination does not 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.

[20] I am satisfied that in all the circumstances of this Application that it is reasonable to make the Determination.

[21] An order 14 to this effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR734417>

 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   [2019] FWC 2571.

 12   [2020] FWC 4138.

 13   Construction, Forestry, Mining and Energy Union v CBI Constructors Pty Ltd[2010] FWA 2164.

 14   PR734419.