Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Access Solutions (Tasmania) Pty Ltd trading as Access Solutions
[2024] FWC 1196
•9 MAY 2024
| [2024] FWC 1196 |
| 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
v
Access Solutions (Tasmania) Pty Ltd trading as Access Solutions
(B2024/422)
| COMMISSIONER LEE | MELBOURNE, 9 MAY 2024 |
Whether a majority of employees want to bargain - satisfied that CEPU is entitled to be and is a bargaining representative-satisfied that on the evidence that a majority of employees want to bargain - majority support determination made.
Introduction
The Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (CEPU) is an organisation registered under the Fair Work (Registered Organisations) Act 2009 (RO Act) and purports to be a bargaining representative of employees of Access Solutions (Tasmania) Pty Ltd trading as Access Solutions (Access) who will be covered by a proposed enterprise agreement. The CEPU has applied to the Fair Work Commission (Commission) pursuant to s.236 of the Fair Work Act 2009 (Act) for a determination that a majority of employees who will be covered by the proposed enterprise agreement want to bargain with Access, that will also be covered by the proposed enterprise agreement.
The proposed agreement will not cover all employees of Access and is proposed to cover “The employees that currently work for the respondent in the state of Tasmanian are currently involved in the installation and maintenance of lifts.”[1]
On 18 April 2024 I issued Directions. The CEPU was directed to file an unredacted version of the petitions showing the names of signatories of all employees of Access engaged in the state of Tasmania currently involved in the installation and maintenance of lifts. This list was to be provided on a confidential basis to my chambers only. The CEPU was also directed to file any submissions, witness statements and other documentary material on which they intended to rely. Access was directed to file a list of names of employees engaged in the state of Tasmania currently involved in the installation and maintenance of lifts. This list was to be provided on a confidential basis to my chambers only. Access was also directed to file any submissions, witness statements and other documentary material on which they intended to rely. The CEPU filed an unredacted copy of the petitions on a confidential basis. The CEPU also filed, in response to further directions, an unredacted copy of union membership records showing members of the CEPU who were employees and who would be covered by the proposed agreement. Access filed a list of employees to be covered by the agreement on a confidential basis to my chambers only. Access also filed two witness statements of Mr. Dales, one marked confidential. Ultimately the confidential witness statement and attachments, which incidentally were never served on the CEPU, were withdrawn by Access’s representative and consequently I have had no regard to it in making this decision. The non-confidential witness statement supplied was accepted as evidence and the CEPU did not seek to cross examine Mr. Dales on its contents.
On Tuesday, 30 April 2024 a hearing was conducted by Microsoft Teams. Ms. Crawford was granted permission to appear to represent Access. Mr. Clark represented the CEPU.
Access’s opposition to a majority support determination
Access opposes the making of a majority support determination. The basis of the objection was set out in submissions made at the hearing. In summary the objection is as follows:
That the objection is wholly directed to Section 237(2) and specifically subsection (a).
That the employees who will be covered by the proposed agreement are to be those currently working in the state of Tasmania and involved in the installation and maintenance of lifts.
That up to eight of the employees to be covered perform work falling within the “electrical and electronic engineering stream” but at least three of the employees perform work falling within the mechanical stream”.
That there is no evidence from the CEPU about information as to what the CEPU may do or not do as their bargaining representative.
That there is no evidence that Mr. Clark in conducting the petition, took any steps to satisfy himself about the CEPU’s eligibility to represent each of the petitioned employees.
That there is no evidence about what information that was given to employees, particularly the purportedly ineligible members of the CEPU, as to whether they are entitled to be covered by the CEPU or process, representation or potential outcomes.
That there is no evidence about any assumptions that might have been relied upon by those mechanical employees in signing the petition as to whether the status of their membership of the CEPU was “proper or improper” and what services the CEPU may or may not be able to provide them in respect to a bargaining process.
Based on the foregoing propositions, the following submission was advanced:
“On that basis, my submission is that when that distinction is properly drawn between the two categories of employees, those who could be eligible to be a proper member of the union and those who could not be eligible to be a proper member of the union, the Commission cannot be satisfied that a majority of the employees who were petitioned have indicated and expressed a wish to bargain on a properly informed basis. That concludes my submissions.”
I have considered the objection made by Access. I do not accept that that I cannot be satisfied that a majority of the relevant employees want to bargain as contemplated by S237(2)(a) for the reasons that follow.
Consideration
The right to represent the industrial interests of employees
Only a bargaining representative of an employee who will be covered by a proposed enterprise agreement may make an application for a majority support determination.[2]
S.176 of the Act identifies the persons that are bargaining representatives for a proposed enterprise agreement relevantly as follows:
“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements
Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or
(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;
. . .
(3) Despite subsections (1) and (2):
(a) an employee organisation; or
(b) an official of an employee organisation (whether acting in that capacity or otherwise);
cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.”
The CEPU relies for its status as bargaining representative upon the default position in s.176(1)(b) of the Act. Access maintains that the CEPU cannot represent the industrial interests of three employees in relation to work that will be performed under the proposed enterprise agreement, because those employees are not eligible to be members of the CEPU under its registered rules. However, Access conceded the following:
that the CEPU is entitled to represent the industrial interests of the 8 employees engaged in electrical work set out in paragraph 7 of Mr. Dales witness statement.[3]
that if the CEPU has at least one of those employees enrolled as a member then they are eligible to be a bargaining representative.[4]
Having been informed by me that the membership list provided on a confidential basis by the CEPU includes at least one employee who falls within the list of employees in paragraph 7 of Mr. Dales witness statement, Access conceded that the CEPU is entitled to be a bargaining representative for the Agreement.
For the foregoing reasons I am satisfied that the CEPU has the jurisdictional standing to bring an application for a majority support determination, as it has the ability to represent the industrial interests of one or more employees of Access and has enrolled members who are employed by Access.
Whether employees who will be covered by the proposed enterprise agreement want to bargain with Access
S.237, subsections (2), (3) and (3A) are in the following terms:
“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) 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.”
The CEPU provided copies of unredacted petitions to the Commission. The petitions include in their heading the following wording:
“I am an employee of ACCESS SOLUTIONS (TASMANIA) PTY LTD ABN 42 089 894 299 (“The Company”). I understand the purpose of this document is to confirm whether I support bargaining for an enterprise agreement with the company to apply to my employment. By signing below, I confirm my support for bargaining with the Company for an enterprise agreement to apply to my employment. I have done so freely and without pressure. I am aware this document will be provided to the Fair Work Commission.”
7 employees have signed that petition in the original form as it was provided to my chambers. I am satisfied that the text of the petition makes it clear that its purpose is, to support bargaining for an enterprise agreement with Access solutions.
Mr. Clark stated during the hearing that it was he who collected the petitions. There was no objection to that evidence[5]and no evidence that suggests that the Commission was not able to rely on the petitions as an indication of the wishes of the signatories to them to bargain with Access.
Separately, Access provided a list of employees on a confidential basis of all employees who will be covered by the proposed agreement which contains 11 names. All of the persons who have signed the petition appear on the list of employees provided by Access. Therefore 7 out of the 11 employees who will be covered by the agreement have indicated they want to bargain for an enterprise agreement. There is no evidence of any coercion or pressure being applied to any person to sign the petition. No employee of Access was called to give evidence of any pressure or any other illegitimate conduct engaged in by the CEPU in order to procure a signature on the petition. There is no basis to question the legitimacy of the petitions as an expression of the wishes of those who signed them. I am therefore satisfied that the petition method utilised by the CEPU in this case is an appropriate basis to work out whether a majority of relevant employees want to bargain and I am satisfied that a majority (that is 7 of the 11 employees to be covered) do want to bargain for an enterprise agreement.
I do not accept the submissions of Access set out above that I should not be satisfied as to the requirement of s. 237(2)(a). It may, or may not, be the case that the CEPU is not entitled to enrol 3 of the employees who would be covered by the agreement. However, it is not necessary that the CEPU have eligibility for every employee to be covered by the agreement[6] nor is there a requirement that the CEPU convey information about the possibility that some employees who will be covered by the proposed agreement may not be eligible to be members of the CEPU, This is particularly so where it is conceded that a majority of employees are entitled to be enrolled as members of the CEPU. It is not necessary for the CEPU to lead evidence on the range of matters alluded to by Access’s representative in order for me to be satisfied as to the requirement of s. 237(2)(a).
For these reasons, I am satisfied that a majority of employees who will be covered by the proposed enterprise agreement, want to bargain for an enterprise agreement with Access.
Statutory criteria
For the reasons already given, I am satisfied that a valid application has been made by the CEPU in its capacity as a bargaining representative for the proposed enterprise agreement and of the matters set out in s.237(2)(a) of the Act. It is not in dispute that Access has not yet agreed to bargain or initiated bargaining for the proposed enterprise agreement and I am so satisfied[7].
As to the question of whether the group of employees who will be covered by the proposed enterprise agreement was fairly chosen, there is no need for the group of employees to be the fairest group that could be chosen; it is sufficient that the group is fairly chosen. If, as is the position in the instant case, the proposed enterprise agreement will not cover all the employees of the employer, in deciding whether the group of employees who will be covered was fairly chosen, I must take into account whether the group of employees is geographically, operationally or organisationally distinct. The group to be covered are all employees involved in the installation and maintenance of lifts in the state of Tasmania. Access’s representative made no submission as to whether the group is fairly chosen. In this application, the group of employees who will be covered by the proposed enterprise agreement appears on the material to be both an organisationally and geographically distinct group of employees. I am therefore satisfied that the group of employees was fairly chosen.
Apart from the objections discussed earlier in these reasons, Access does not identify any other basis on which it might be said that in the circumstances it would not be reasonable to make the determination, nor have I been able to identify any such reason. I am therefore satisfied that it is reasonable in all the circumstances to make the determination.
The application for a majority support determination made by the CEPU should succeed and a determination[8] will separately be issued and will come into operation on 9 May 2024.
I note that during the hearing I determined that paragraphs 7 and 8 off Mr. Dale’s witness statement should be marked as confidential. I will issue an order[9] to that effect separately.
COMMISSIONER
Appearances:
C Clark for the CEPU
R Crawford Representative for Access
A Dales for Access
Hearing details:
30 April 2024
Video using Microsoft Teams
[1] Question 1.2.2 of the Form F30.
[2] S.236(1) of the Fair Work Act 2009.
[3] PN86.
[4] PN88.
[5] PN43-44.
[6] 2015 FCAFC 195 at [17]-[18].
[7] PN99.
[8] PR774635.
[9] PR774643.
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