"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-Queensland Branch v Bustech Pty Ltd
[2021] FWC 924
•26 FEBRUARY 2021
| [2021] FWC 924 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-Queensland Branch
v
Bustech Pty Ltd
(B2021/44)
COMMISSIONER SPENCER | BRISBANE, 26 FEBRUARY 2021 |
Application by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-Queensland Branch (188V-QLD).
[1] An application pursuant to s.236 of the Fair Work Act 2009 (the Act) was made by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the Applicant/the AMWU/the Union) for a Majority Support Determination (MSD) to undertake bargaining for an Agreement proposed to cover employees engaged by Bustech Pty Ltd (the Respondent) who perform work at the Respondent’s Burleigh facility and are:
• trade qualified, and their assistants or helpers, and who are directly employed in the manufacturing, assembling, fabricating, installing, servicing, maintaining, reconditioning, or repairing of vehicles; and
• those employees principally employed in the receiving, handling, storing, loading and dispatch of parts and components for vehicles.
[2] The Respondent is a leading manufacturer of mass transit vehicles and is a wholly owned subsidiary of BusTech Group Pty Ltd.
[3] Directions were issued for the filing of material and submissions on 3 February 2021 which provided the legislative criteria to be submitted.
[4] The Respondent did not object to the application on any of the legislative grounds and did not wish to be heard in relation to the application.
[5] In response to Directions issued by Chambers, the Applicant provided a confidential copy of a petition taken of employees as well as a witness statement from Mr Bill Thanas, Assistant State Secretary for the AMWU, who had carriage of the petition.
[6] On 16 February 2021, I provided the Respondent with a copy of the witness statement of Mr Thanas and the covering page of the petition as provided to the employees, and requested the Respondent advise whether it objected to any of the content of the witness statement, if it objected to the application, and whether the Respondent was content for the matter to be determined on the papers without need for a formal hearing.
[7] On 18 February 2021, the Respondent confirmed it did not object to the content of the witness statement and did not object to the application on legislative grounds and was content for the matter to be dealt with on the papers.
[8] On 18 February 2021, the AMWU advised that they were also content with the matter to be determined on the papers. The matter was accordingly dealt with on the papers without the need for a hearing.
RELEVANT LEGISLATION
[9] Section 236 of the Act relates to applications for majority support determinations:
“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.”
[10] Pursuant to s.237 of the Act:
“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.”
APPLICANT’S SUBMISSIONS AND EVIDENCE
Group of employees fairly chosen
[11] The Applicant submitted in its Form F30 that the Respondent has operations across Queensland and South Australia. The Applicant said the proposed agreement covers only those employees employed in the State of Queensland and specifically at the Burleigh Heads facility. The Applicant said it had been instructed that employees at the Burleigh facility are principally employed at that facility and do not perform interstate work.
[12] The Applicant submitted that the employees to be covered by the proposed agreement are operationally distinct from other employees of the respondent as their roles, responsibilities and qualifications are unique to them. The Applicant said the employees perform trade qualified and associated work which requires a unique set of skills, and are the only employees employed by the Respondent to perform this type of work. The Applicant submitted that the types of tasks undertaken by these employees are not performed by any other employees employed by the Respondent.
[13] The Applicant submitted that the employees to be covered by the proposed agreement are located in a distinct part of the Respondent’s operations, namely the workshop area. As these employees perform unique work, the Applicant said these employees are organisationally separate and distinct from other employees who would be principally located in an office setting. The Applicant submitted that these employees are unlikely to engage with other roles within the Respondent’s business and there is no organisational ‘overlap’ with other parts of the Respondent’s organisation.
Witness statement of Mr Bill Thanas
[14] Mr Bill Thanas, Assistant State Secretary for the AMWU, provided a witness statement in support of the application. Mr Thanas stated that as part of his role, he was responsible for coordinating the work of the AMWU as it relates to employees who are principally employed to perform work in the manufacturing of vehicles, and such associated activities.
Collecting the petition
[15] Mr Thanas stated that on 7 December 2020, he provided the Respondent with a Right of Entry notice that he intended to hold discussions with the workforce on 9 December 2020. On 9 December 2020, Mr Thanas entered the Respondent's premises at Burleigh Heads during their nominated lunch breaks for the purposes of holding such discussions and for collecting signatures on the petition.
[16] Mr Thanas stated that he held the discussion via a 'mass meeting' in the cribbing areas where he explained the purpose of the petition, the proposed coverage of the agreement, why the petition was necessary and how any identifying information would be handled.
[17] Mr Thanas further stated that he then set up tables in the cribbing areas and put a petition on each of the tables and asked employees who wished to sign to make their way up to one of the tables and sign their name in the boxes provided. He stated that he answered any questions put to him by the workforce to the best of my knowledge and where he did not know an answer to a question, Mr Thanas sought advice from industrial officers employed by the Union.
[18] Mr Thanas said that he repeated the process outlined above by providing the Respondent with a Right of Entry notice on 4 February 2021 and by entering and collecting signatures on 8 February 2021. Mr Thanas confirmed that he did not coerce or otherwise pressure any employee to sign the petition.
[19] Mr Thanas also stated that he did not witness an employee coerce or otherwise pressure any other employee to sign the petition, nor did he encounter any language barriers in communicating the purpose of the petition to any employee.
[20] Mr Thanas stated that he retained oversight of the petitions for the entirety of the time that he was on-site on 9 December 2020 and 8 February 2021 and the petition has been in his custody for its entire existence to ensure its integrity.
Content of the petition
[21] Mr Thanas stated that the petition included signatures from 56 employees who would be covered by the proposed agreement and the associated cover sheets. He further stated that they were instructed that the proposed agreement would cover a total of 83 employees.
[22] The Applicant therefore contended that a valid majority, 67%, of employees wanted to bargain.
[23] In the case of the remaining 27 employees, Mr Thanas submitted that these employees did not sign on the basis they were either absent from the workplace when he attended on 9 December 2020 and 8 February 2021, had different shift arrangements or were simply not present at the time.
RESPONDENT’S SUBMISSIONS AND EVIDENCE
Witness statement of Mr Thinus Steyn
[24] Mr Thinus Steyn, Chief Executive Officer for the Respondent, provided a witness statement in response Directions issued by Chambers. Mr Steyn stated that he commenced his employment with the Respondent in the position of Chief Executive Officer on 13 January 2020.
[25] Mr Steyn confirmed in his statement that the Respondent is a leading manufacturer of mass transit vehicles. A large part of the Respondent's motivation is to manufacture zero emission vehicles (both electronic and hydrogen). The Respondent is a wholly owned subsidiary of BusTech Group Pty Ltd.
[26] Mr Steyn stated that in his role as Chief Executive Officer, he has overall responsibility for Procurement, Finance, Engineering, Sales, Operations and Human Resources. Mr Steyn also stated that he has over 24 years of Financial and Operational experience, he is a Chartered Accountant and also holds a Master of Business Administration.
Respondent’s employees
[27] In relation to the list of employees provided to Chambers in response to the Directions, Mr Steyn stated that on 10 February 2021, he carried out a search of, and subsequently reviewed the Respondent's employee records in respect of its Queensland operations.
[28] Mr Steyn stated that this process confirmed that the Respondent currently employed 84 employees. A copy of the list of the Respondent's employees was provided to Chambers.
CONSIDERATION
[29] A decision as to whether or not the group of employees covered by the agreement was ‘fairly chosen’ involves a degree of subjectivity or value judgment. 1 The proposed agreement does not cover all employees of the Respondent. Therefore, s.237(3A) is triggered and consideration turns to whether the group is geographically, operationally or organisationally distinct.
[30] In Cimeco Pty Ltd v CFMEU & Ors (Cimeco), the concept of ‘fairly chosen’ was discussed by the Full Bench in the context of s.186(3). Guidance can be gleaned on how to interpret and apply s.186(3) from decisions concerning the use of the same expression in ss.237(3A) and s.238(4A), and vice versa. 2
[31] The Full Bench in Cimeco emphasised that whether the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations. The Full Bench expressed that by reference to the legislative scheme and context, it could be reasonably assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct, then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. 3 Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct, then that would be a factor telling against a finding that the group was fairly chosen.4
[32] The Full Bench in QGC 5 found that ‘distinctiveness’ in the context of whether a group is ‘distinct’ was not absolute and could be a matter of degree. The Full Bench referred to ‘operational’ distinctiveness, expressing that it denoted an industrial or productive activity.6 In QGC, the activity in question was said to be the operation and maintenance of gas extraction and processing infrastructure in a particular location.
[33] The word ‘organisation’ refers to the manner in which the employer had organised its enterprise in order to conduct those operations. 7 In this respect, the Full Bench noted that the performance of different roles, tasks or functions to that performed by others, was not of itself a sufficient basis upon which a finding of operational or organisational distinctiveness could be made in that particular case.8
[34] In Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers’ Union of Australia; Australian Municipal, Administrative, Clerical and Services Union 9 the Full Bench set out a number of propositions relevant to interpreting the phrase ‘organisationally distinct’ in s 186(3A). It considered the following relevant:
a) the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations; 10
b) the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct; 11
c) however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; 12 and
d) most businesses have organisation structures which will allow organisationally distinct groups to be identified. 13
[35] I am satisfied that the group of employees to be covered by the determination have been fairly chosen. They are geographically, operationally, and organisationally distinct from other employees of the Respondent.
[36] I now turn to the following criteria which must be assessed in accordance with s.237 of the Act:
Section 237(2)(a) a majority of employees want to bargain; and section 237(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.
[37] As noted, the Applicant provided a petition which had been signed by employees of the Respondent stating that they wanted to commence bargaining. The Respondent provided a list of employees working in the workshop at the time of the petition. Having reviewed the petition, I determined that there were fifty-five (55) valid signatures from employees who appear on both the petition and the list of names provided by the Respondent, and one (1) signature from an individual who does not appear on the employer’s list of employees.
[38] I am satisfied that a valid majority of 54 employees out of 84 has been reached.
Section 237(2)(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
[39] In its Form F30, the Applicant set out that on 29 January 2021, in response to an email from the Applicant with the subject “Proposed BusTech Enterprise Agreement”, the Respondent wrote to the Applicant and advised that they do not agree to commence negotiations for an Enterprise Agreement. The Applicant provided a copy of the correspondence which stated that following a Board meeting discussion, the Respondent “does not agree to commence negotiations for an EA [enterprise agreement]” and that “if [the AMWU’s] members are determined to proceed to an EA, then [the AMWU] will have to seek majority support as [the AMWU] foreshadowed.”
[40] I am satisfied that the parties have not agreed to bargain or initiated bargaining.
Section 237(2)(d) It is reasonable in all the circumstances to make the determination.
[41] Before making a determination, I must be satisfied it is reasonable in all the circumstances to make the determination sought.
[42] In the circumstances where there is a clear majority of employees wishing to bargain who are distinct from other employees of the Respondent, and the Respondent has not opposed the application, I am satisfied it is reasonable (against the legislative criteria) in all the circumstances to make the determination sought.
CONCLUSION
[43] I am satisfied that all of the requirements of s 237(2)(a)–(c) of the Act have been met, and I consider it is reasonable in all the circumstances to make the determination. I therefore make the determination under s 237(1) of the Act. The determination will issue with this decision and will operate from the date of this decision.
COMMISSIONER
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1 Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 2206, [8]; Aerocare, [26]; Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2015) 228 FCR 297, [60] – [62].
2 Aerocare, [27].
3 Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 2206, [19].
4 Ibid.
5 [2017] FWCFB 1165.
6 Ibid [44].
7 Ibid [44].
8 Ibid [44].
9 Aerocare.
10 QGC Pty Ltd v Australian Workers’ Union[2017] FWCFB 1165, [44].
11 United Firefighters’ Union v Metropolitan Fire & Emergency Services Board[2010] FWAFB 3009, 193 IR 293, [60].
12 QGC Pty Ltd v Australian Workers’ Union[2017] FWCFB 1165, [44]-[45].
13 Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd[2014] FWCFB 1476, 242 IR 238, [15]; see also National Union of Workers v Cotton On Group Services Pty Ltd [2014] FWC 6601, [15]-[16] (permission to appeal refused in [2014] FWCFB 8899) and ASU v Shine Lawyers Pty Ltd[2017] FWC 4158, [68]-[71] as examples of where the employer’s organisational structure was used to determine organisational distinctiveness.
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