No judgment structure available for this case.

[2018] FWC 933

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Motors TAS Pty Ltd
(B2017/1218) (B2017/1219) (B2017/1220)

COMMISSIONER LEE

MELBOURNE, 5 MARCH 2018

Applications for majority support determinations.

Introduction

[1] On 22 December 2017, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) made three applications under section 236 of the Fair Work Act 2009 (the Act) for majority support determinations to be issued in relation to Motors TAS Pty Ltd (the Respondent) as follows:

• All sales representatives employed at Motors TAS Pty Ltd located at 1 Don Road, Devonport TAS (matter B2017/1218);

• All mechanics, mechanical apprentices and detailers at Motors TAS Pty Ltd located at 1 Don Road, Devonport TAS (matter B2017/1219); and

• All sales representatives employed at Motors TAS Pty Ltd located at 60 Marine Terrace, Burnie TAS (matter B2017/1220).

[2] Much of the evidence in respect of the three applications is common to all applications and the matters were therefore heard jointly. However, some of the evidence is specific to particular applications and is dealt with accordingly.

[3] The following relevant factual background does not appear to be in contest:

• The Respondent operates from five geographically distinct sites in Tasmania in Derwent Park, Hobart, Launceston, Burnie and Devonport;

• The Respondent’s operations include the sale of motor vehicles and operations and matters associated with the sale of motor vehicles and the service and repair of motor vehicles;

• On 30 November 2017, AMWU Official Greg Lee attended the Respondent’s site at Hobart and advised the company that the majority of employees subject to the application sought to bargain for a proposed new enterprise agreement;

• On 30 November 2017, Ms Linda Swinton, Group Manager, Human Resources and Safety for the Respondent advised the AMWU that the company does not wish to bargain for an enterprise agreement with the employees; and

• On 22 December 2017, the AMWU lodged the three applications for majority support determinations. 1

[4] The matters were allocated to me for determination and I set directions for the filing of submissions and evidence and listed the matters for hearing in Launceston on 24 January 2018. Mr Arjonilla appeared on behalf of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Mr Swain was granted permission to appear for the Respondent as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[5] The Applicant filed an outline of submissions, one witness statement of Mr Greg Lee, union organiser employed by the Tasmanian Branch of the AMWU, and a blank copy of the petitions signed by employees in respect of the three applications. At my direction the Applicant filed copies of the signed petitions on a confidential basis.

[6] The Respondent filed an outline of submissions, a witness statement of Ms Angela Travers, State Sales Manager and Mr Terry Bienefelt State Manager Fixed Operations for the Respondent. At my direction the Respondent filed a list of the names of each of the three groups of employees who would be covered by each of the proposed enterprise agreements. This was filed on a confidential basis in the form of an excel spreadsheet which included the full name, job title, employment description, location and position of the employees and included a ‘staff split’ document. A redacted version of the document was tendered during the hearing. 2

The relevant legislation

[7] Sections 236 and 237 of the Act deal with the requirements which must be met in order to grant a majority support determination;

“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.”

Issues in dispute

[8] The Respondent objects to all three of the applications on a number of grounds. It appears from their written submissions that, in summary, these grounds are:

• While accepting that the Fair Work Commission (the Commission) can accept evidence of petitions and surveys, the petitions produced by the AMWU should not be relied upon by the Commission because it is concerned that the employees the subject of the three applications “had no genuine understanding of the petition, and/or may have been coerced into signing by the union or by others”. 3

• As the proposed agreements will not cover all of the employees of the Respondent (i.e. the groups are limited in their scope and locations and do not appear to include all of the relevant employees within the nominated sales and service departments) the groups to be covered are not geographically, operationally or organisationally distinct, and the Commission should not be satisfied that the groups are fairly chosen. 4

• Because of the lack of distinctness, the selection of the groups would be sufficiently prejudicial to the productivity or efficient conduct of the Respondent’s business, in all relevant circumstances, to outweigh any presumption that the Commission should otherwise facilitate bargaining for an agreement. 5

• Finally, that in all of the circumstances of these matters, it would be unreasonable for the Commission to make the majority support determinations. 6

[9] The AMWU submit that the Commission can be satisfied that a majority of the employees want to bargain in respect to each of the three applications by relying on the confidential petitions provided, that each of the three groups of employees were fairly chosen in that each group is geographically, operationally and organisationally distinct. Further, that it is reasonable in all the circumstances to make the orders sought.

Requirements of s.237 of the Act

[10] Section 237 of the Act has been set out above. It is not in contest that the Respondent, being the employer that will be covered by the agreement, has not yet agreed to bargain, or initiated bargaining, for the agreement (s.237(2)(b)). 7

[11] As outlined above, the Respondent submitted that the Commission cannot be satisfied with respect to the requirements of subsections 237(2)(a), 237(2)(c) and 237(2)(d) of the Act. It is convenient to first deal with the requirement of s.237(2)(c) of the Act.

Fairly chosen (s.237(2)(c))

[12] It is apparent that the Respondent operates in five sites in Tasmania, although Derwent Park is a “company site” not a “motor vehicle dealership” and they do not sell or repair vehicles at the site. 8 As the applications seek to cover sales representatives at two separate sites and mechanics, apprentices and car detailers at one site, it is clear that the employees chosen in each of the applications do not encompass the entirety of the Respondent’s workforce. Therefore, consideration must be given to whether each group is fairly chosen.

[13] The Applicant asserts that each group of employees is fairly chosen. It is claimed that each group has a distinct commonality and are chosen by reason of occupation or organisational make up and that in each instance they are geographically, operationally and organisationally distinct. It is submitted that they are geographically distinct because each of the groups are located at one of the Respondents’ five sites. 9 They are operationally distinct in that they perform distinct productive activity with mechanics, apprentices and detailers performing maintenance and service work on vehicles and salespersons selling motor vehicles and dealing with operations and matters associated with the sale of motor vehicles.10 Further, that because they perform work in one of the two main streams of the Respondent’s business operations they are organisationally distinct.11

[14] The basis for selecting the three groups was attested to by Mr Lee in his evidence as follows:

“My understanding is that at each site the business does mechanical servicing and detailing of cars (the mechanical group) and also sells cars (the sales group).

The sales group and the mechanical group are distinct employees. The mechanics work on the vehicles and the detailers clean the vehicles. On the other hand, the sales group wear shirts and ties and engage with the customers to sell cars. They work in separate areas and appear to have separate lunchrooms to the mechanics.” 12

[15] At the hearing it was put to Mr Lee that this was a rather superficial analysis of the Respondent’s business to which he responded “well, I wasn't going to pretend to know more than I do, but it seems to me that that’s what occurs at the sites, fundamentally, in my conversations with the mechanics and salespeople, and I didn't interact with them much, although there was interaction. They are distinct jobs; that's the only point I'm making”. 13

[16] Mr Lee was asked about the redacted version of the Respondent’s list of names of each of the three groups of employees who would be covered by each of the proposed enterprise agreements and ‘staff split’ document which were filed on a confidential basis. 14 According to Mr Bienefelt Ms Linda Swinton, Group Manager, Human Resources and Safety for the Respondent was the author of that document.15 Ms Swinton did not give evidence. The document includes a number of positions which Ms Swinton apparently considered should be included in the three groups identified by the AMWU. Mr Lee agreed that he included detailers in the group he selected, but wasn’t sure whether they were from the service department or from the sales department. He said they were detailers that “…worked around the back, and they cleaned out the vehicles and detailed them for sale obviously”.16

[17] The Respondent gave evidence as to the structure of the business through Mr Bienefelt and Ms Travers. Ms Travers has state-wide responsibility for the sales side of the business. Her evidence was that the sales departments in Burnie and Devonport are not operationally or organisationally distinct. Her evidence on this point was as follows:

“Our sales departments closely collaborate in their operations and share services such as HR, IT, website maintenance, marketing strategies, event planning and training across the Company. We negotiate the price of most of our resources as one business unit. The business templates, the branding practices and television advertising are controlled by the Company.

The stock of new cars, aftermarket and finance products that each dealership offers for sale, is purchased and controlled by the Company. We negotiate the price of our stock, the financing of the floorplan, and our insurance costs as one business unit. The level of stock in each dealership is allocated and rotated by the Company based on business needs at any given time. Used car stock is rotated throughout our used car operations in each of the dealership [sic] state wide.

We attempt to keep the labour costs associated with selling the uniformly priced stock consistent.

Major rental deals may be negotiated at corporate level or from one dealership but requires pre-delivery and delivery work from one or more dealerships.

From an operational point of view, the Company makes major decisions at corporate level, to maximize outcomes for the Company as one business entity. On occasions, these decisions override the decisions that would be made to serve the best interests of an individual dealership.

The policies and procedures of the sales departments of each dealership are developed at corporate level. While our dealer principals are responsible for the operations of their respective dealerships, they operate within the parameters determined by the Company’s senior management team.

If the Company would be compelled to operate its business with a workforce whose terms and conditions of employment, and remuneration are not consistent, the efficiency and the productivity of our business would suffer.” 17

[18] On cross-examination Ms. Travers confirmed that the day to day operations of each dealership are the responsibility of the dealer principal and that they work within the scope of Respondent’s policies and procedures. 18

[19] Ms Travers agreed that the AMWU had not as yet made any claims in respect to the proposed enterprise agreements. She also agreed that it was possible for the Respondent to negotiate with all employees in order to get more uniformity across the business. 19 Ms Travers also confirmed that the Respondent does not want an enterprise agreement with its employees as they “… don’t believe it’s required”.20 When asked if that was because she saw it as a threat to the business model Ms Travers said:

“No, we believe we have very good relationships and communication with our employees and it's not required.” 21

[20] Mr Bienefelt gave a similar response as to why he did not want to have an enterprise agreement stating that they “… don’t believe it’s necessary”. 22

[21] Mr Bienefelt’s evidence is that the business is comprised of dealerships in four locations detailed as follows:

“The Company’s business is comprised of motor vehicle dealerships located in Hobart, Launceston, Devonport and Burnie. Operations on each location include:

(i) sale of new and used motor vehicles;

(ii) purchase, trade and wholesale of used motor vehicles;

(iii) sale of aftermarket and financial products;

(iv) service and repair of motor vehicles; and

(v) sale of automotive parts.

Each dealership is divided into departments of Sales, Service, Parts and Administration. These departments work together to support the operations of the dealership generally but have separate reporting lines. A service department traditionally employs apprentices, car detailers, accessory fitters, motor vehicle mechanics, and service advisers. Some car cleaners who prepare new cars for sale also work within a service department. Parts departments usually employ parts interpreters and apprentices.” 23

[22] I note that Mr Lee was asked to confirm that he did not include all of the roles in the service department in his “mechanical petition”. Mr Lee answered in respect of car detailers that he had included two of them as they were “…keen to be included in the petition”. 24 He confirmed he did not know if the detailers were from the service area or the sales area.25

[23] Attached to Mr Bienefelt’s statement were the organisational charts for the Respondent’s Burnie and Devonport dealerships. 26 It is apparent in respect to the Burnie dealership that the organisational chart identifies “Sales Consultants” as three separate groups, seemingly related to the type of car they are selling either by type of brand or used/new cars. Each group of sales representatives’ report to three different managers. There are six “Sales Consultants” in total in Burnie across the three groups. There is also a separate group identified as “Sales Support Staff” which includes 1 Business Manager, 1 Car Care, 2 Car Cleaner’s (Casual), 2 Detailers and 1 Driver (Casual).27

[24] As to the organisational chart for Devonport the structure is similar to that for the Burnie dealership, with three separate groups of “Sales Consultants”. In Devonport there are also six “Sales Consultants” in three separate groups although the make-up of the groups is slightly different. The three groups of “Sales Consultants” respond to their respective Sales Manager. 28 However, there is a slightly different make-up of the group of “Sales Support Staff” in Devonport, compared to Burnie. The remainder of the structure in both Burnie and Devonport is made up of a group of employees who report to a “Service Manager” which is clearly the service part of the organisational structure and a further group who report to a “Parts Manager” which is clearly the “Spare Parts” part of the business at Devonport.

[25] The make-up of the service part of the Devonport site includes 5 Technicians, 2 Accessory Fitters, 4 Apprentices, 1 Car Washer and 2 Service Advisers. I note also that the parts area also has 2 apprentices.

[26] Ms Travers confirmed that the organisational charts 29 accurately reflect the organisation of the sales area in Burnie and Devonport.30

[27] Mr Bienefelt gave evidence that the car washer and detailer occupations were interchangeable. Ms Travers had a slightly different view as to whether a car washer and a detailer were interchangeable however the distinction seemed to be no more than detailers used “equipment” and car washers did not. 31 Ms Travers seemed to concede there was a real distinction between them32 and then later agreed the distinction between them was “fuzzy”.33 Ultimately Ms Travers did not accept that there was an overlap in the responsibilities of a car cleaner, a driver and a detailer. During the hearing Mr Bienefelt said that the detailers listed as part of the sales support group in the organisational chart in Devonport interchange with the service area, perhaps if one of the detailers was sick. He said “I guess what we’re saying there is if a structure or change applied to one, you can apply it to the other because they do very similar tasks”.34

[28] I asked Mr Bienefelt whether the car drivers are properly part of the service area. The exchange follows:

Yes. The drivers, your evidence earlier was that they - tell me if I'm wrong about this. As I understood it, they generally drive people home when you've dropped your car off for a service. Doesn’t that make them part of the service area? Would that be right or you disagree with that? I'm just asking. What else do they do besides drop people home after a service?---I would suggest that the detailer principal has got these two drivers that he has got at his disposal to use as and when he sees fit. Certainly we - well, I am at a loss to explain why he needs two.

Okay?---But I'm not here to tell him how to do his job. The service department does operate with a driver and sometimes that can be an apprentice. Even the service advisor is dropping people home. They just tend to work together. 35

[29] Mr Bienefelt also gave the following evidence which is relevant to the consideration of this matter:

“Yes. Sorry, I’ve just got to keep going. There are a couple of other questions. The service advisor - - -?---Two of those.

Yes. What qualifications do they have?---Well, we prefer them to be technicians so that they understand and can convey to the customer what’s going on with the vehicle. Sometimes they - in Devonport we've got one who has got a technical background and one who has got a non-technical background.

When you say technical, one is a qualified mechanic and one is not?---Yes, yes.

Right?---We do have, when they’re away on leave - - -

Yes?---That position is back-filled by trained technicians.

Okay. The accessory fitters, what are their qualifications or prerequisites?---Again, we've got accessory fitters who are trained technicians, as well.

Yes?---Some are what we call - they're not - they don't specifically have a mechanical qualification, but they're like a - I can't remember the term now. General hand or - - -

Okay. So they're not motor mechanics?---Some of them are, some of them aren’t. I know that the one we’ve got in Devonport, he's a highly skilled technician. He doesn’t want to do services. He wants to do accessories, so we’ve applied him to that task.

Right?---He does very well at the task.

Okay. Thanks for that. Technicians, they’re all mechanics, either motor or auto elec?---All motor, yes.

Motor or auto electricians?---Yes.” 36

[30] Mr Bienefelt gave evidence about his role in ensuring that the company functions as one unit. His evidence is that he oversees the operations of each dealership service although the departmental managers of each service department report to the dealer principle of each dealership. His evidence is that establishing the charge out labour rates for each dealership and setting the wage rates for the combined departments are the two most essential tasks of his position. 37 Mr Bienefelt’s evidence is that the wage structure of the service and parts departments is uniform across the company and productivity and efficiency measures are uniform across all service departments. Mr Bienefelt stated that service work for fleet customers was around 20% of service income and it was vital to obtain work from fleet customers that there are uniform labour costs. Mr Bienefelt attested to the importance of the uniformity in the labour rates and pay structures across the business and that this is a competitive advantage for the business. He also says:

“The impact of an enterprise agreement in Devonport would bring significant disruption to this model. Significantly, there will no longer be fairness and equity in our pay structure, potentially resulting in disharmony across our work force. To provide uniform charge out rates, the Company requires consistent wage structures throughout out Service and Parts department at all locations. Any change to this would prejudice our business operations.” 38

[31] During cross-examination Mr Bienefelt said that there are a number of positions that are allocated in the structure to new sales that perform very similar roles to those performing the same positions in the service departments. These positions are casual cleaner, detailers and casual drivers. 39

[32] Mr Bienefelt confirmed that each dealer principal has the day to day responsibility for his or her dealership. Mr Bienefelt conceded that in respect to his concerns about the importance of efficiency for the business, that the AMWU had not made a claim at the moment that would affect efficiency and he accepts it is possible that discussions with employees could bring about greater efficiency. 40 He also conceded that in respect to his claim that the impact of an enterprise agreement in Devonport will bring significant disruption to this model, that he did not state in his witness statement how that would occur, but that there would be “disharmony” because one area would be subject to an enterprise agreement and other areas would not.41 Mr Bienefelt conceded that this could be remedied by providing all the employees with the same terms and conditions.42

Law to be applied

[33] In the Full Bench decision of Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Ors (Cimeco) 43 the requirements in respect to fairly chosen were considered, albeit in the context of an agreement approval. However, the considerations are relevant to a consideration of the meaning of fairly chosen in the context of a majority support determination.

[34] Cimeco set out the requirements for the Commission in determining the question of fairly chosen. Commissioner Roe in National Union of Workers v Cotton On Group Services Pty Ltd 44set out the requirements as follows;

“[17] Both parties refer to the decision of the Full Bench in Cimeco Pty Ltd v CFMEU and Ors. That decision related to an agreement approval however the requirements in respect to fairly chosen are essentially the same for agreement approval and majority support determinations. Cimeco requires that the Fair Work Commission in determining the question of fairly chosen:

• Evaluate and have regard to all the relevant factors.

• Focus on objective as opposed to arbitrary or subjective factors in concluding that a group is fairly chosen. If the selection was on arbitrary or discriminatory grounds or based on criteria which undermined legislative objectives, for example, if it undermined collective bargaining, then it would be unlikely to be fair.

• Consider that, where the group chosen is not the whole enterprise, if the group is geographically, operationally or organisationally distinct, this is a factor in favour of finding that the group was fairly chosen, however, it is not a decisive matter as all other relevant considerations must be evaluated.

• Consider that if the group is not geographically, operationally or organisationally distinct, (and is not the whole enterprise) this is a factor against a finding that the group is fairly chosen, however, it is not a decisive matter as all other relevant considerations must be evaluated.

• Consider that the interests of the employer and productivity and the interests of employees who are excluded from coverage may be relevant. That is the consequences of the choice of the group may be considered.” 45

[35] I agree with and adopt the approach set out above.

[36] The Respondent referred to the decision of Commissioner Lewin in Construction, Forestry, Mining and Energy Union v Alcoa of Australia Limited. 46In that decision the Commissioner stated the following in relation to assessing the question of ‘fairly chosen’:

“[71] When considering fairness to an employer of a selected group, there would need to be a clear and cogent case that the selection of the group would be sufficiently prejudicial to the productivity or efficient conduct of an employer’s business, in all the relevant circumstances, to outweigh a presumption that the Commission should facilitate bargaining for an enterprise bargaining agreement where the employees of the group unanimously wish to bargain.” 47

[37] I also agree with the approach taken by the Commissioner in that matter to my assessment of ‘fairly chosen’ in this matter.

Consideration

The sales representatives in Burnie and Devonport

[38] It is convenient to first consider the applications relevant to the sales representatives in Burnie and Devonport. There was no evidence that the selection of the combined group of sales representatives for both Burnie and Devonport was based on criteria which undermined legislative objectives such as, for example, collective bargaining. Nor does the group appear to be discriminatory. I note the evidence of Mr Lee that the groups of sales representatives were selected because they “wear shirts and ties and engage with the customers to sell cars” 48 could be considered a rather arbitrary basis of selection. However all of the circumstances have to be considered.

[39] It is clear that the two sites of Burnie and Devonport are geographically distinct. Further, the organisational charts 49 clearly have the sales consultants identified as a distinct group organisationally. The three separate groupings of sales representatives appear to relate to the brand of vehicle they are selling or whether it is a used or new vehicle. Overall, I am satisfied that the two groups of sales representatives at both Burnie and Devonport are both geographically and operationally distinct. This is a factor which weighs in favour of a finding that the two groups are fairly chosen but it is not determinative.

[40] Considering the interests of the employer and productivity I am satisfied that the Respondent has legitimate concerns about how bargaining for these groups might impact on the business overall, to the extent that it is a uniform operation in terms of its pricing and other matters referred to by the Respondent’s witnesses. However, what impact an enterprise agreement might have is rather speculative as there is no union claim at this stage. It was conceded by Mr Bienefelt that it was also possible bargaining discussions with employees could enhance efficiency. 50 Both Mr Bienefelt and Ms Travers did not agree when asked if enterprise bargaining was a threat to their business model, rather that they thought an enterprise agreement was unnecessary.51 Having considered all of the evidence in relation to the Respondent’s concern about the possible impact on the business, I am not satisfied that there is a clear and cogent case that the selection of the group would be sufficiently prejudicial to the productivity or efficient conduct of the Respondent’s business to outweigh the desire of the employees to bargain.52

[41] In his decision in National Union of Workers v Cotton On Group Services Pty Ltd 53, Commissioner Roe determined that if there was evidence that the employees excluded from the bargaining had in fact wanted to be included in the bargaining then this would weigh in favour of a finding that the group was not fairly chosen. Conversely, if a particular group did not want to be included, this would weigh in favour of a conclusion the group was fairly chosen. As to the interests of the employees excluded there was no evidence that any employees excluded from the petitions wanted to bargain and were not included in the process or that any employees included did not want to bargain. I note that in reviewing the petitions filed by the AMWU in relation to one of the group of employees, it appears that one employee who has signed the Burnie sales representatives petition may not be an employee that would be covered by the proposed agreement, based on the position title of the particular employee (as specified in the Respondent’s documents).54 I have therefore considered their signature to be invalid for the purposes of determining if the majority of employees want to bargain. I have also taken this into account in determining if this specific group is fairly chosen and in the circumstances of this case, considering the evidence overall, I am not satisfied that this weighs in favour of a finding that the group was not fairly chosen nor does it affect the overall result of the petition.

[42] Having considered all of the evidence in this matter and taking into account whether the groups of employees who will be covered are geographically, operationally or organisationally distinct, I am satisfied that the two groups of employees selected of sales representatives in Devonport and sales representatives in Burnie are fairly chosen.

Mechanics, Apprentices and Detailers in Devonport

[43] To the extent that this group is located at Devonport, it is apparent that the group is geographically distinct and this weighs in favour of a finding that the group is fairly chosen. I am satisfied that the group chosen is not discriminatory or undermines legislative objectives in some way. There is no evidence that could support such a finding.

[44] However, I am concerned that the evidence shows that the selection of the group at Devonport of mechanics, apprentices and detailers is a rather arbitrary one. Mr Lee’s evidence is that he understood the structure of the business to include at Devonport a “mechanical group” that does “mechanical servicing and detailing of cars”. He included these occupations as “the mechanics work on the vehicles and the detailers clean the vehicles”. 55

[45] However, the evidence of Mr Bienefelt established that there are in fact a number of employees involved in the service area in Devonport who work on the vehicles. These include the technicians, accessory fitters, service advisors, apprentices and a car washer. I note that car detailers have been included, although it is not clear where they sit organisationally with Mr Bienefelt’s evidence that they work across the service and sales area. Further that the terms are “interchangeable” Ms Travers ultimately conceded that the distinction between the two is “fuzzy”.

[46] It is apparent from the evidence of Mr Bienefelt set out earlier that technicians are in fact qualified mechanics or perhaps auto electricians. However, accessory fitters may or may not be qualified mechanics. Mr Bienefelt said that one of the accessory fitters at Devonport was qualified however; there was no other evidence as to the other accessory fitter (there are two according to the organisational chart). There is then the occupation of service advisor. Again, the evidence of Mr Bienefelt is that one of them is a mechanic and one of them is not. In short, the effect of selecting a group of “mechanics, apprentices and detailers” in an endeavour to capture those employees who work on and clean the vehicles, has failed to achieve that objective based on the factual situation at Devonport.

[47] I accept that Mr Lee thought that specifying the group in this way would cover all employees working on and cleaning the vehicles, which was his objective, but the reality is that it does not. Had the selection done so, it may well be, depending on the consideration of other factors, fairly chosen but it has failed in that objective.

[48] I have considered the submission from the AMWU that the productive activity to which the group chosen is directed is “…to make sure the car is mechanically and physically sound”. 56 However, this submission is not consistent with the evidence of Mr Lee. Mr Lee was seeking out the group of employees who work on and clean the vehicles. Not all employees that would fall into that group are included in the actual group chosen by the AMWU.

[49] My consideration of the Respondent’s concern about the impact on productivity and other matters arising from enterprise bargaining is broadly consistent with that set out above in respect to the sales representatives. That is, I am not satisfied that there is a clear and cogent case that the selection of the group would be sufficiently prejudicial to the productivity or efficient conduct of the Respondent’s business to outweigh the desire of the employees to bargain in circumstances where that group properly reflected the group engaged in a productive activity. However, in this case my concern is that the group is simply a group of different occupations who are geographically but not organisationally or operationally distinct.

[50] As to whether there are employees who want to be included who are not, it is clear on the evidence of Mr Lee that some of the car detailers want to be included in the bargaining. This is a factor I have taken into consideration.

[51] Having considered all of the evidence, I am not satisfied that the group of mechanics, apprentices and car detailers at Devonport is fairly chosen. They are geographically distinct and the inclusion of the car detailers is consistent with their desire to bargain. In any case, the detailers are part of the group that work on the cars irrespective of where they are positioned in the organisational structure. Consideration of these factors weighs in favour of a finding the group is fairly chosen. However, for the reasons given I am not satisfied the group is operationally or organisationally distinct. It appears there was a desire on the part of Mr Lee to select a group that was operationally distinct but he did not succeed at that task on this occasion. By including only mechanics, apprentices and detailers the AMWU has left out a number of employees from the group who are involved in working on and cleaning the vehicles but do not fall into one of those categories.

[52] Having regard to all of the factors, I am not satisfied that the group of mechanics, apprentices and detailers at Devonport is fairly chosen. It follows from the legislative requirements set out above that I cannot make the order sought for that the group. Therefore, the application for a majority support determination for all mechanics, mechanical apprentices and detailers at Motors TAS Pty Ltd located at 1 Don Road, Devonport (matter B2017/1219) is dismissed.

Do a majority of sales representative employees at Devonport and Burnie want to bargain? (s.237(2)(a))

[53] In Devonport there are six employees identified in the organisational chart as sales consultants having regard to the organisational structure. 57 The Respondent submits that the “Car Care Consultant” and the “F&I [Finance & Insurance]58 Sales Consultant” should be included in the group of employees because they are involved in selling cars.59 However, this is not the group which has been chosen by the AMWU, the AMWU have chosen sales representatives and I am satisfied that the sales representatives are fairly chosen. I have therefore not included the “Car Care Consultant” or the “F&I Sales Consultant” in the group of employees who would be covered by the proposed enterprise agreement which leaves six employees at Devonport as per the Respondent’s list of employees which aligns with the number of sales consultants in the organisational chart for Devonport.60 It is clear from the signed petition filed by the AMWU that the “Car Care Consultant” and the “F&I Sales Consultant” did not sign the petition.

[54] The petition reads “I want to bargain for an enterprise agreement with Motors Tas Pty Ltd. I agree to this petition being provided to the Fair Work Commission to prove that salespersons who are employed at Motors Tas Pty Ltd’s site at 1 Don Road, Devonport Tasmania 7310, who have signed this petition want to bargain for an enterprise agreement”. The petition has been signed by four employees. I am satisfied that four employees who would be covered by the proposed agreement have signed the petition which is a majority.

[55] In Burnie there are six employees identified in the organisational chart as sales consultants having regard to the organisational structure. 61 The Respondent submits that the “Car Care Consultant” and the “F&I [Finance & Insurance]62 Sales Consultant” should be included in the group of employees because they are involved in selling cars.63 There is also a “Selling Sales Manager” included by the Respondent. However, this is not the group which has been chosen by the AMWU, the AMWU have chosen sales representatives and I am satisfied that the sales representatives are fairly chosen. I have therefore not included the “Car Care Consultant”, the “F&I Sales Consultant” or the “Selling Sales Manager” in the group of employees who would be covered by the proposed enterprise agreement which leaves six employees at Burnie as per the Respondent’s list of employees which aligns with the number of sales consultants in the organisational chart for Burnie.64 It is clear from the signed petition filed by the AMWU that the “Car Care Consultant”, “F&I Sales Consultant” and the “Selling Sales Manager” did not sign the petition.

[56] The petition reads “I want to bargain for an enterprise agreement with Motors Tas Pty Ltd. I agree to this petition being provided to the Fair Work Commission to prove that salespersons who are employed at Motors Tas Pty Ltd’s site at 60 Marine Terrace Burnie Tasmania 7320, who have signed this petition want to bargain for an enterprise agreement”. I am satisfied that while five signatures were collected, only four of those employees have validly signed the petition. Therefore, I am satisfied that four employees who would be covered by the proposed agreement have signed the petition which is a majority.

[57] In written submissions filed the Respondent it was suggested I could not rely on the petitions for various reasons but that submission was not pressed at the hearing. 65 The main concern put by the Respondent in relation to the petitions was that employees did not necessarily have a genuine understanding of the petition and what the process of the petition would lead to, as it was not fully explained by Mr Lee and there was a certain vagueness about what was actually said to the groups. Further, that the proposed agreements will not cover all employees of the Respondent.66 Having considered the evidence, I see no reason that I cannot rely on the petitions filed. The written explanation at the top of each of the three petitions makes clear that employees are signing the petition because they want to bargain for an enterprise agreement and it refers to salespersons and the relevant location. I am satisfied that a majority of sales consultants at Burnie and a majority of sales consultants at Devonport want to bargain.

[58] On the basis of the material before me and taking into account all of the above, I consider it reasonable in all the circumstances to make the determinations for Burnie and Devonport Sales Representatives (s.237(2)(d)).

[59] Pursuant to s.237(1), I must make two majority support determinations for sales representatives in Burnie and Devonport.

Conclusion and Determinations

[60] In matter number B2017/1218, I am satisfied that an application for the determination has been made and am satisfied of the matters set out in s.237(2) of the Act in relation to the agreement. Pursuant to s.237(1), I must make a majority support determination, which will operate from the date of this decision. A determination will issue separately.

[61] In matter number B2017/1219, I am not satisfied, having regard to all of the factors that the group of mechanics, apprentices and detailers at Devonport is fairly chosen. It follows that I cannot be satisfied of all of the matters set out in s.237(2) of the Act. Accordingly, the application is dismissed. An order will issue separately.

[62] In matter number B2017/1220, I am satisfied that an application for the determination has been made and am satisfied of the matters set out in s.237(2) of the Act in relation to the agreement. Pursuant to s.237(1), I must make a majority support determination, which will operate from the date of this decision. A determination will issue separately.

COMMISSIONER

Appearances:

H Arjonilla for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

W Swain for the Respondent

Hearing details:

2018

Launceston:

24 January 2018.

Final written submissions:

19 January 2018.

1 AMWU Outline of Submissions, filed 12 January 2018, [4] (a) – (e)

2 Exhibit R1, Redacted version of Respondent’s ‘staff split’ document and list of the names of each of the three groups of employees who would be covered by each of the proposed enterprise agreements

3 Motors TAS Outline of Submissions, filed 19 January 2018, [8] – [9] (a) – (b)

4 Motors TAS Outline of Submissions, filed 19 January 2018, [9] (c)

5 Motors TAS Outline of Submissions, filed 19 January 2018, [9] (d)

6 Motors TAS Outline of Submissions, filed 19 January 2018, [14]

7 PN850

8 PN142 – PN144, Exhibit R2, Witness Statement of Terry Bienefelt, [5]

9 AMWU Outline of Submissions, filed 12 January 2018, [23] (b)

10 AMWU Outline of Submissions, filed 12 January 2018, [23] (c)

11 AMWU Outline of Submissions, filed 12 January 2018, [23] (d)

12 Exhibit A1, Witness Statement of Greg Lee, [5] – [6]

13 PN93

14 Exhibit R1, Redacted version of Respondent’s ‘staff split’ document and list of the names of each of the three groups of employees who would be covered by each of the proposed enterprise agreements

15 PN511 - PN513

16 PN124

17 Exhibit R3, Witness Statement of Angela Louise Travers, [15] – [22]

18 PN662

19 PN738 - PN739

20 PN743

21 PN744

22 PN492

23 Exhibit R2, Witness Statement of Terry Bienefelt, [5] and [8]

24 PN148 – PN151

25 PN152

26 Exhibit R2, Witness Statement of Terry Bienefelt, Attachments TB1 and TB2

27 Exhibit R2, Witness Statement of Terry Bienefelt, Attachments TB1

28 PN427

29 Exhibit R2, Witness Statement of Terry Bienefelt, Attachments TB1 and TB2

30 PN778, PN782 – PN783

31 PN706

32 PN716

33 PN814

34 PN557

35 PN561 – PN562

36 PN563 – PN573

37 Exhibit R2, Witness Statement of Terry Bienefelt, [10]

38 Exhibit R2, Witness Statement of Terry Bienefelt, [24]

39 PN378, PN425

40 PN469

41 PN482

42 PN483

43 Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Ors [2012] FWAFB 2206

44 National Union of Workers v Cotton On Group Services Pty Ltd[2014] FWC 6601

45 [2014] FWC 6601, [17]

46 Construction, Forestry, Mining and Energy Union v Alcoa of Australia Limited[2014] FWC 7123

47 [2014] FWC 7123, [71]

48 Exhibit A1, Witness Statement of Greg Lee, [6]

49 Exhibit R2, Witness Statement of Terry Bienefelt, Attachments TB1 and TB2

50 PN469

51 PN492 and PN744

52 [2014] FWC 7123, [71]

53 [2014] FWC 6601

54 Exhibit R1, Redacted version of Respondent’s ‘staff split’ document and list of the names of each of the three groups of employees who would be covered by each of the proposed enterprise agreements

55 Exhibit A1, Witness Statement of Greg Lee, [5] – [6]

56 PN898

57 Exhibit R2, Witness Statement of Terry Bienefelt, Attachment TB2

58 PN754

59 PN1079 – PN1085, PN1097

60 Exhibit R1, Redacted version of Respondent’s ‘staff split’ document and list of the names of each of the three groups of employees who would be covered by each of the proposed enterprise agreements, Exhibit R2, Witness Statement of Terry Bienefelt, Attachment TB2

61 Exhibit R2, Witness Statement of Terry Bienefelt, Attachment TB1

62 PN754

63 PN1079 – PN1085, PN1097

64 Exhibit R1, Redacted version of Respondent’s ‘staff split’ document and list of the names of each of the three groups of employees who would be covered by each of the proposed enterprise agreements, Exhibit R2, Witness Statement of Terry Bienefelt, Attachment TB1

65 PN961– PN981

66 PN970, PN987 – PN989

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