Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v FIP Electrical (NSW) Pty Ltd

[2018] FWC 7856

[2018] FWC 7856

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
FIP Electrical (NSW) Pty Ltd
(B2018/1139)

DEPUTY PRESIDENT DEAN SYDNEY, 21 DECEMBER 2018

Application for a majority support determination.

[1] On 5 December 2018 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act) with respect to employees of FIP Electrical (NSW) Pty Ltd (FIP) employed to perform work in Sydney construction industry.

[2] The CEPU seeks a determination that a majority of these employees, who are presently covered by FIP Electrical (NSW) Pty Ltd Construction Enterprise Agreement 2015, want to bargain with FIP for a single-enterprise agreement.

[3] The relevant provisions of the Act are contained in ss.236 and 237 of the Act:

“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.”

[4] The application was initially opposed by FIP because it said it had already initiated bargaining for a proposed multi-enterprise agreement with relevant employees, and had issued a Notice of Employee Representational Rights. Accordingly, it argued, the Commission would not be able to be satisfied as to the matters set out in s237 of the Act. The matter was then listed for hearing on 13 December 2018. Directions were issued requiring both parties to file an outline of submissions and any material evidence by 12 December 2018.

[5] On 12 December 2018 the CEPU filed an outline of submission and provided a statement of Mr Antony Stegic (Union Organiser). Ms L Berton of Henry William Lawyers, around the same time, wrote to the Commission to advise that FIP did not intend to advance its objection in relation to s.237(2)(b).

[6] In the circumstances, the hearing listed for 13 December 2018 was vacated and further directions were issued requiring the CEPU to provide to the Commission the petition signed by employees of FIP upon which it relied in support of its application, and for FIP to provide a list of its employees who would be covered by the proposed agreement.

[7] The list of employees and the petition was provided to the Commission on 13 December 2018. The list of employees identified by FIP was cross-checked against the signatories of the petition. My chambers advised the parties that as a result, I had formed a preliminary view that there was not a majority of the employees wanted to bargain for an enterprise agreement with FIP.

[8] The CEPU sought to be heard in relation to the application and so a hearing was listed for 20 December 2018.

[9] On 18 December 2018, the CEPU provided a statement of another Union Organiser, Mr Nick Bligh. Attached to the statement was the petition with signatories of employees of FIP which were obtained, according to Mr Bligh, when he attended the FIP sites on 17 and 18 December 2018. A further review of the petition indicated that a majority of employees wanted to bargain for an enterprise agreement with FIP.

[10] At the hearing, Ms Berton submitted that the Commission should not grant the application because the evidence provided in support of the application was unreliable. Ms Berton sought that the Australian Electoral Commission conduct a ballot instead.

[11] The evidence adduced by the CEPU relied on the statement given by Mr Bligh, who also gave oral evidence and was briefly cross examined in relation to his evidence. His statement detailed the manner in which the petition was circulated. The petition provided by the CEPU contained a total of 64 signatures and contained the following preamble:

“We, the undersigned employees of FIP Electrical Pty Ltd, want to bargain for a new single-enterprise agreement to commence operation upon the expiry of the current single-agreement.”

[12] No evidence was called by FIP.

[13] I accept Mr Bligh’s evidence as to the manner in which the signatures were obtained on the petition, and that for each of the sites he attended, he provided an explanation of the difference between a single and multi-enterprise agreement. I accept that he read out the preamble to the petition, which is set out above.

[14] There is no basis for me to find that the petition was not appropriately obtained.

[15] It is not disputed that FIP has initiated bargaining in relation to a multi-enterprise agreement, and has not agreed to bargain for a single-enterprise agreement.

[16] Having considered the material before me, I am satisfied and find that:

a. the CEPU is a bargaining representative for employees who will be covered by the proposed agreement and is capable of making the application for a majority support determination (s.236);

b. a majority of the employees of FIP who will be covered by the proposed agreement want to bargain (s.237(2)(a));

c. FIP has not yet agreed to bargain for a proposed single-enterprise agreement (s.237(2)(b));

d. the group of employees who will be covered by the proposed agreement was fairly chosen (s.237(2)(c)); and

e. it is reasonable in all the circumstances to make the determination (s.237(2)(d)).

[17] In conclusion, I am satisfied that all requirements of ss.236 and 237 of the Act have been met. Accordingly, the Commission must make the majority support determination sought by the CEPU. A Determination will issue with this decision.

DEPUTY PRESIDENT

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