Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland and Northern Territory Divisional Branch
[2023] FWC 2774
•23 OCTOBER 2023
| [2023] FWC 2774 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland and Northern Territory Divisional Branch
(B2023/1035)
| COMMISSIONER DURHAM | BRISBANE, 23 OCTOBER 2023 |
Application for a majority support determination. Orbitz Elevators Services Pty Ltd. No single location.
On 29 September 2023, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Queensland and Northern Territory Divisional Branch (the Applicant/CEPU) made an application to the Fair Work Commission (the Commission) under section 236 of the Fair Work Act 2009 (the Act) for a majority support determination.
The CEPU, sought to negotiate a single-enterprise agreement with the following coverage:
“The employees who will be covered by the proposed enterprise agreement are all employees in the state of Queensland employed by Orbitz Elevators Services Pty Ltd (“the Employer”), except for administrative and managerial personnel. The employees to be covered by the proposed Enterprise Agreement are technicians who are qualified tradespeople engaged in the modernization, repair and/or maintenance of lifts and escalators.”
The CEPU contend that a majority of relevant employees who would be covered by a proposed enterprise agreement want to bargain with their employer. Accompanying the application were copies of petitions that had been signed by 10 employees.
The CEPU wrote to the Respondent on 18 August 2023 seeking to commence bargaining, however as of 29 September 2023, the Respondent had not agreed to bargain.
On 6 October 2023, I issued Directions requiring the parties to file material with respect to the application including material relating to the petitions referred to in the application and a list of all employees to be covered by the proposed agreement. This material was provided to the Commission only, so as to ensure confidentiality.
Upon receiving the required materials from the parties, I conducted an analysis to determine if a majority of eligible employees had signed the petition, indicating that they wished to bargain.
In completing this analysis, I compared the names of employees who had signed the petition against the list of employees provided by the Respondent and was satisfied that a majority of employees wanted to bargain for an enterprise agreement.
In addition to the materials requested, the Respondent made submissions with respect to their initial concerns regarding the group of employees that the CEPU intended to be covered by the agreement, submitting as follows:
“In the Form 30 – Q2.2 The Union appears to be requesting an Order to bargain, for an agreement that specifically covers qualified tradespeople only.
i.The Respondent is confused as to this request and is not agreeable to negotiating terms under an Enterprise Bargaining Agreement that singles out trade qualified personnel. This indicates the Union is seeking to bargain for only 6 of 14 relevant employees, engaged in like-for-like, or at least, similar field-based work.
ii.The Respondent is not of the view this is a fair or reasonable selection of employees to be covered by an Enterprise Agreement, where these employees are largely engaged in similar, field-based work, and often working together on the same sites, projects, and services, as other non-trade qualified personnel.
iii.The Union has provided the Respondent with no less than five (5) other current and active EBA’s it wished the Respondent to consider and review, all of which provide coverage for more classifications of employees, than trade-qualified employees only.
iv.The Respondent does not believe an agreement-based on the Unions requested coverage would support the organisation’s employees with equality and can potentially be a catalyst for conflict between employees performing similar work. Such impact will potentially result in employee-conflict, unnecessary administrative, management, and payroll challenges.”
A Conference was held on 12 October 2023. At the outset of the conference, the CEPU identified an error in their F30, confirming that it was not their intention to exclude non-qualified technicians or apprentices. The Respondent appeared satisfied with this clarification and made no further submissions or objections to the application. It was therefore my understanding, that with the clarification regarding trade qualified personnel made, the Respondent was now agreeable with the proposed coverage of the agreement and that the group had been fairly chosen. No further submissions were sought as the Commission intended to issue a decision based on the material at hand.
As the agreed way forward with respect to the proposed coverage of the agreement was a slight amendment to the coverage initially proposed by the CEPU, I sought the parties’ confirmation of the proposed minor amendment prior to issuing the Determination. To that end, on 19 October 2023, my Chambers sent an email to the parties seeking their confirmation of the following amended coverage:
“The employees who will be covered by the proposed enterprise agreement are all employees in the state of Queensland employed by Orbitz Elevators Services Pty Ltd (“the Employer”), except for administrative and managerial personnel. The employees to be covered by the proposed Enterprise Agreement are technicians and
are qualifiedtradespeople (including apprentices) who are engaged in the modernization, repair and/or maintenance of lifts and escalators.” (additions in BOLD – deletions instrikethrough)
Upon receipt of the proposed wording, the Respondent sought to make further submissions, proposing alterations to the words “except for administrative and managerial personnel”. As I considered these to be new submissions, I attempted to relist the matter for further discussion. So as not to delay the issuing of the Determination, I sought the parties’ availability to participate in a conference via Microsoft Teams that afternoon. Unfortunately, neither party was available. I then relisted the matter for 10:00am on 20 October 2023. The Respondent indicated they were not available at all on 20 October 2023 and had limited availability in the following week.
So as not to delay the issuing of the Order any further, the Respondent was asked to confirm by no later than 10:00am on 20 October 2023, if they wish to make additional submissions regarding the coverage of the proposed agreement. If they did, both parties were requested to provide their submissions no later than by 2:00pm on 20 October 2023.
The Respondent’s submissions can be summarised as follows:
· The Respondent had clearly indicated, in its written submissions prior to the conference that a fair and reasonable coverage should be all employees “performing similar work”.
· The role of “Field Manager” is not a typical “Supervisor "role and it is unreasonable for the Union to make assertions that Field Managers should be covered, when it has little to no understanding of the commercial operating requirements of this small business.
· The Orbitz Field Manager role does not perform work, similar enough to Apprentices, Technicians and Tradespeople, to warrant coverage.
· That the six (6) example agreements provided to them by the CEPU did not seem to cover “supervisors”.
The CEPU’s submissions can be summarised as follows:
· The only outstanding matter to be determined is the description of the employees who will be covered by the proposed agreement.
· The CEPU confirm that they had mistakenly referred to “trade qualified employees” in the Form 30 application, and that this had been clarified during the conference.
· The CEPU concur with the Commission’s understanding that, with the clarification regarding trade qualified personnel made, the Respondent was agreeable with the proposed coverage.
· The CEPU rejects the claim that it has agreed to any further amendment to the proposed coverage and confirms their support for the coverage as proposed by the Commission, which excludes “managerial personnel” and does not delineate between office and field-based Managers.
· The CEPU notes that if there are managerial personnel who spend less than 50% of their work time on similar work to technicians and tradespersons then they would be captured by the exclusion contained in the Commission’s proposed wording. Similarly, if those employees spend the majority of their time on “similar work” to technicians and tradespeople, they would be captured within the proposed scope.
· That the Respondent’s reference to the example agreements provided is irrelevant to the matter to be determined.
Legislation
The Commission must make a majority support determination if an application for the determination has been made and if the Commission is satisfied of those matters set out in section 237(2) of the Act. An application for a determination is made pursuant to section 236 of the Act, which provides as follows:
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.
I must make a majority support determination if an application has been made before the Commission that satisfies the criteria contained in section 237 of the Act. Section 237 of the Act provides as follows:
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
With respect to the requirements of section 236, the CEPU is a bargaining representative of the employees in question and is entitled under its registered rules to represent the industrial interests of those employees. The CEPU’s application specifies the employer and employees who will be covered by the agreement and as such, has been validly made.
The first matter prescribed by section 237 is whether the Commission is satisfied that a majority of the relevant employees who are employed by the employer at a time determined by the Commission want to bargain. An analysis of the material provided by the parties clearly indicates that there are 14 employees who will be covered by the proposed enterprise agreement. A comparison of these employees, against the petitions provided by the CEPU confirms that at least 9 of those employees want to bargain. I am therefore satisfied that the requirements of section 237(2)(a) have been met.
It is evident from the material provided that the Respondent has not yet agreed to bargain or initiated bargaining in respect of the proposed enterprise agreement. As such, I am satisfied that the requirements of section 237(2)(b) have been met.
The Respondent’s initial concerns regarding the exclusion of non-qualified technicians and apprentices were alleviated during the conference, with the parties agreeing to clarify their intentions in that regard.
I now turn to the Respondent’s further submissions regarding the exclusion of field managerial personnel. Consideration of this point requires the Commission to decide whether the group to be covered was fairly chosen. In assessing this I must take into account whether or not the group chosen to be covered is geographically, operationally, or organisationally distinct.
It is important to note, that section 237(3A) commences with, “if the agreement will not cover all of the employees of the employer or employers covered by the agreement…”, hence the starting premise of section 237(3A) is that the coverage of an agreement is ordinarily intended to be as broad as possible. It is generally when a party seeks to limit the coverage of an agreement to a discreet group of employees that the considerations above would come into play.
It is noted that the Respondent’s initial submissions, regarding the exclusion of non-qualified technicians and apprentices, seemed supportive of this view, arguing that the scope of the agreement should be broad enough so as not to create division amongst employees performing similar roles.
The Respondent is now seeking to exclude “field management personnel”, who they say, “do not perform a reasonable volume of similar work as technicians and tradespeople”. Again, this seems in conflict with their earlier submissions regarding the exclusion of non-trade qualified personnel, in which they state, “This indicates the Union is seeking to bargain for only 6 of 14 relevant employees, engaged in like-for-like, or at least, similar field-based work”.
A review of the material provided by the Respondent confirms that the 6 personnel referred to as being “engaged in like-for-like, or at least, similar field-based work”, include the very supervisors/field management personnel they now seek to exclude.
I consider that it is fair and reasonable to exclude Administrative and Managerial employees as agreed, however I am not convinced of the need to specifically exclude individual positions, such as Field Managers by title. As argued by the CEPU, should it be demonstrated that the work of these individuals is primarily Managerial, they will be picked up by the current exclusion. If, in the alternative, they spend the majority of their time on “similar work” to technicians and tradespeople, they would be captured within the proposed scope.
It is also important to note that the Majority Support Determination signifies the commencement of bargaining. References to, and the inclusion or otherwise of company specific job titles within the agreement itself are matters to be agreed between the parties during the bargaining and drafting process.
Taking into consideration the submissions of the parties, and the circumstances of this matter, I am not convinced of the need to further restrict the proposed coverage of the agreement. To that end, I am not convinced of the need to amend the previously agreed coverage and am of the view that the group to be covered by the proposed agreement has been fairly chosen in accordance with section 237(2)(c).
Finally, pursuant to section 237(2)(d), given that the statutory requirements have been met and no other relevant issues arise, I am satisfied that it is reasonable in all the circumstances to make a determination.
Conclusion
Having formed the requisite satisfaction in relation to the matters in section 237(2) of the Act, I must make a majority support determination. A determination will be issued with this Decision.
COMMISSIONER
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