“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Polyweld Pty Ltd

[2016] FWC 7472

[2016] FWC 7472

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
Polyweld Pty Ltd
(B2016/750)

COMMISSIONER RYAN MELBOURNE, 25 OCTOBER 2016

Application for a majority support determination for employees of Polyweld Pty Ltd – employer conducted its own petition of employees - ballot conducted by FWC - valid majority want to bargain.

[1] On 14 October 2016 the Fair Work Commission issued a Determination 1 in this matter which stated:

“A majority of the 14 employees of Polyweld Pty Ltd who are engaged in the performance of work covered by the Manufacturing and Associated Industries and Occupations Award 2010 at 259-263 Rex Road, Campbellfield, Victoria, (specifically the 12 tarpaulin manufacturing equipment process operators; 1 storeman; and 1 customer service manager) want to bargain with Polyweld Pty Ltd for an enterprise agreement.”

[2] I now issue my decision and reasons in support of that Determination.

Background

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) has applied for a majority support determination (MSD) pursuant to s.236 of the Fair Work Act 2009 (the Act) in relation to employees of Polyweld Pty Ltd (Polyweld). The application was accompanied by a statement of Mr Matt Christie, official of the AMWU in support of the application.

[4] The application identified the group of employees as those engaged by Polyweld in the performance of work covered by the Manufacturing and Associated Industries and Occupations Award 2010 at 259-263 Rex Road, Campbellfield, Victoria.

[5] On 3 August 2016 the AMWU obtained the signatures of 10 employees of Polyweld on a petition which states that they want to bargain for an enterprise agreement. A confidential copy of the petition has been filed in the Commission.

[6] On 22 August 2016 I caused my Associate to write to parties regarding the proposed conduct of this matter by the Commission. In that communication Polyweld was directed to file a list of its employees, on a confidential basis, by 24 August 2016 so that the Commission could ascertain whether, prima facie it appeared that a majority of the relevant employees wanted to bargain with their employer. The parties were advised that if they agreed the Commission could determine the application on the papers.

[7] Further, Polyweld was advised that:

“If Polyweld does not wish to have the matter determined on the papers, it should write to the Commission, and copy the AMWU, including an outline of its objections to the application, by not later than midday on 24 August 2016.”

[8] Mr Stuart Donaldson of Polyweld wrote to the Commission on 24 August 2016 objecting to filing a list of employees. His reasons, in part, are set out below:

“Unfortunately I am unable to provide you with a list of employees. I believe the AMWU Vehicle Division union was heavy handed in their approach and used a number of unfair tactics to gain access to, misrepresent, express half-truths, spin and lie, bully and intimidate employees into putting their name down on this so-called “petition” See Attachment 1 – Notice of lunchroom visit – 3rd August 2016.

I want to expose how bullying and cajoling occurred in the process of the AMWU Vehicle Division union getting names to appear on the “petition” and I have evidence that a number of my staff felt pressured into putting their names down on the “petition”. This behaviour was not a fair and reasonable action and as such the “petition” can be not considered as evidence and based on this, I request that the matter be dismissed.”

[9] On the basis of Polyweld’s response to the Commission I programmed this matter for hearing on 26 August 2016 and directed Polyweld to file and serve any material it sought to rely upon in opposition to this application, by close of business on Wednesday, 21 September 2016.

[10] On 16 September 2016 Mr Donaldson wrote to the Commission requesting the hearing be adjourned to a date after 10 October 2016 due to Mr Donaldson departing for overseas that day and returning on 1st October 2016.

[11] As that communication was only received by the Commission on the day of Mr Donaldson’s departure overseas, the Commission was faced with little choice but to vacate the hearing listed for 26 September 2016 and set aside the direction issued to Polyweld.

[12] In communicating to the parties as to the rescheduled hearing of this matter on 5 October 2016, I advised Polyweld that it was expected to be ready to present any evidence, bring along any witnesses and run its arguments on that day.

[13] At the hearing on 5 October 2016 Ms Rima Tawil represented the AMWU and Mr M. Diserio appeared for Polyweld, with permission.

[14] During the hearing Mr Diserio tendered Polyweld’s written submissions and an Affidavit of Mr Greg Wills, Director of Ercon Pty Ltd. Mr Wills’ statement exhibited a copy of a document entitled ‘Objection to and rejection of the majority support petition’, which was signed by 10 employees of Polyweld between the dates of 27 and 28 September 2016. Mr Diserio contended that this document was a “counter petition” to that of the AMWU and proved that a majority of employees of Polyweld do not want to bargain collectively for an AMWU proposed agreement.

[15] It is Mr Wills’ evidence that Mr Donaldson authorised the conduct of the counter petition out of concern that the “employees did not understand the nature and purpose of the petition obtained by the AMWU” 2. The 10 signatures of employees on the counter petition were gained by Mr Wills and another representative of Polyweld management approaching the employees directly.

[16] Given that the Commission now had before it a petition of employees conducted by the AMWU containing 10 signatures, and a petition conducted by Polyweld containing 10 signatures, I suggested to the parties that rather than go through a difficult hearing to establish either the validity or soundness of the union's petition or the validity or soundness of the employer's counter petition, that the best way would be for the Commission to exercise its functions under section 237(2) and (3) and arrange for a ballot of employees to be conducted. The Commission advised the parties during the hearing that preferred method of balloting would be by a compulsory secret ballot of the eligible employees to ascertain whether or not a majority of those employees want to bargain with their employer.

[17] The parties conferred on this suggestion and on what they consider constitutes the group of eligible employees and came to a consent position on both.

[18] It was agreed that the Commission issue an order relating to the conduct of a ballot, which was to take place as a compulsory attendance secret ballot conducted by the Commission at the premises of Polyweld on Tuesday, 11 October, between 7.15 and 7.45 am. The order 3 was issued on 5 October 2016. Importantly, the order required Polyweld to provide to each of the 14 employees a Notice to Employees produced by the Commission which explained the process to them. A copy of the order and Notice to Employees is attached to this decision.

[19] It was also agreed that the group of employees to be balloted was the 12 tarpaulin manufacturing equipment process operators; 1 storeman; and 1 customer service manager. The result of the ballot of the employees was that 12 employees voted that they wanted to bargain with Polyweld for an enterprise agreement. The result of the ballot was communicated to the parties on 11 October 2016 and the parties were asked to advise the Commission as to “how you think this matter should now proceed”. Polyweld advised the Commission that it did not seek to make any more submissions and that the Commission should make a decision on what had been filed with the Commission. The AMWU advised the Commission that they sought direction from the Commissioner on how he wishes to proceed with determining their application. The Commission issued a determination in this matter on 14 October 2016.

Legislative framework

[20] The relevant sections of the Act in relation to this application are sections 236 and 237. They set out the matters about which the Fair Work Commission (FWC, the Commission) must be satisfied before making a majority support determination, in the following terms:

“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.”

[21] I will deal with each of the legislative requirements in turn.

Section 237(1)(a)

[22] It was not disputed that the AMWU has made an application for a MSD. In relation to the requirement under section 236(1), that the application is to be made by a bargaining representative of an employee who will be covered by a proposed single enterprise agreement, the statement of Mr Christie exhibited a redacted record of AMWU members engaged by Polyweld. This document was not challenged by Polyweld. I therefore accept that the AMWU, by virtue of section 176(1)(b), is an employee organisation who is a bargaining representative of an employee who is a member of the AMWU.

[23] I find that an application has been made by a bargaining representative of an employee who will be covered by the proposed agreement, namely, the AMWU.
Section 237(2)(a) - a majority of employees want to bargain

[24] For the purposes of s.237(2)(a)(i) of the Act the Commission has determined that the time at which the Commission will determine whether a majority of employees of Polyweld want to bargain with their employer is at 11 October 2016.

[25] The Commission is satisfied that as at 11 October 2016 a majority of employees of Polyweld wanted to bargain with their employer for an enterprise agreement and that a majority of employees of Polyweld indicated that they wanted to bargain with Polyweld by voting ‘yes’ in the ballot conducted by the Commission on 11 October 2016. There were 14 employees who comprised the group of employees to be balloted. All 14 employees attended the workplace during the time set for the ballot and voted. The result of the ballot was: 12 Yes votes, 1 Informal vote and 1 No vote. On the basis of that ballot the Commission was satisfied that a majority of the relevant employees wanted to bargain with their employer.

Section 237(2)(b) – employer has not agreed to bargain nor initiated bargaining

[26] Polyweld has at all times throughout these proceedings made clear that it has not yet agreed to bargain with its employees for an enterprise agreement and that it has not yet initiated bargaining for an enterprise agreement.

[27] The Commission is satisfied in relation to s.237(2)(b).

Section 237(2)(c) – fairly chosen

[28] The application in this matter described the group of employees to be covered by the Agreement as “all employees of the Respondent who are covered by the Manufacturing and Associated Industries and Occupations Award 2010”. The application further identified that this group had been fairly chosen in that:

“The group to be covered by the agreement is operationally distinct as they include only those employees who are covered by the Award, including administration and support positions. It is not the intention of the Applicant for the proposed enterprise agreement to cover executive management who would not ordinarily be covered by an award.”

[29] A consent position was arrived at by the parties as to which employees constituted the group of employees to be balloted. The AMWU had identified 15 employees as constituting the group of employees but during the proceedings on 5 October 2016 the AMWU and Polyweld came to an agreement that one employee who would have been covered by the Clerks Private Sector Award should be removed from the list. The remaining 14 employees were employees covered by the Manufacturing and Associated Industries and Occupations Award 2010

[30] The Commission is satisfied that the group of employees who will be covered by the proposed enterprise agreement has been fairly chosen (s.237(2)(c)).

Section 237(2)(d) - reasonable in all the circumstances

[31] Having considered all of the circumstances of this matter the Commission is satisfied that it is reasonable to make the determination sought by the AMWU.

COMMISSIONER

Appearances:

Ms R. Tawil for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

Mr M. Diserio for Polyweld Pty Ltd

Hearing details:

2016.

Melbourne:

October 5.

APPENDIX

 1   PR586471.

 2   Affidavit of Greg Wills.

 3   PR586107.

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<Price code C, PR586526>