Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fredon Industries Pty Ltd

[2019] FWC 226

[2019] FWC 226

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
Fredon Industries Pty Ltd
(B2018/1199)

DEPUTY PRESIDENT DEAN SYDNEY, 29 JANUARY 2019

Application for a majority support determination.

[1] On 17 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 Fredon Industries Pty Ltd (Fredon) 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 Fredon Industries Pty Ltd Sydney Enterprise Agreement 2017 (the Agreement), want to bargain with FIP for a single-enterprise agreement.

[3] The Agreement passed its nominal expiry date on 30 November 2018.

[4] 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.”

[5] The matter was listed for hearing concurrently with two other similar applications on 20 December 2018. Prior to the hearing, the Commission was provided by Fredon with a list of its employees who would be covered by the proposed agreement. The CEPU filed a petition signed by employees of Fredon which contained the following preamble:

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

[6] Having examined the petition and cross-checked the signatories against the list of employees identified by Fredon, the parties were advised at the outset of the hearing that I had formed a preliminary view that there was not a majority of the employees who wanted to bargain for an enterprise agreement with Fredon.

[7] The hearing was adjourned because the parties were not ready to proceed and the application was set down for hearing on 16 January 2019. Directions were issued requiring both parties to file an outline of submissions and any evidence by 15 January 2019.

[8] In response to the directions, the CEPU filed an outline of submissions and provided statements of four CEPU Organisers, Mr Stephen Bankes, Mr Nick Bligh, Mr Lawrence Duff and Mr Antony Stegic. Each statement detailed the manner in which the petition was circulated by the respective organiser. It was also stated by each organiser that no employees had been coerced to sign the petition and that no employees had expressed any confusion about what they were signing or what the petition meant. The CEPU’s submissions were accompanied by the petition signed by employees of Fredon. The petition contained the same signatures as had been previously filed, as well as additional signatories signed by employees of Fredon during the period between 20 December 2018 to 15 January 2019.

[9] Fredon also filed an outline of submissions and provided an updated list of employees which reflected the current workforce who would be covered by the proposed enterprise agreement.

[10] The primary objection by Fredon to the making of the majority support determination was that the Commission should not accept any further signatures which were obtained by the CEPU after 20 December 2018. At the hearing, Ms Berton, solicitor appearing for Fredon, argued that the CEPU should not be permitted to obtain further signatures to a petition after it had been informed that it does not have a majority support of employees, and that the CEPU could only rely on the petition referred to in its application as at the date it was filed.

[11] In response, the CEPU relied on the full bench decision in Kantfield Pty Ltd v The Australian Workers’ Union (Kantfield) 1and submitted that it was a well established principle that the decision as to whether a majority of employees want to bargain is to be made on the basis of the most current material available at the time of the decision.

[12] In Kantfield, the Full Bench found that:

“[35] The power to apply a time-based limitation is confined to section 237(2)(a)(i) and not section 237(2)(a) more broadly. That is, the power to apply a point-in-time limitation in section 237(2)(a)(i) is directed to fixing the time at which the FWC is to determine who are the persons employed only. Therefore, it does not confer a broader power to “fix” historical or future points in time for other aspects of section 237.

[36] In Peko-Wallsend, Mason J stated:

… there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

[37] Applying Peko-Wallsend, it follows that the decision as to whether a majority of employees want to bargain is to be made on the basis of the most current material available at the time of the decision. Having considered all of the submissions and authorities filed by the parties, we agree that it was not open to the Commissioner to determine a point in time other than the time of the decision as the time at which a majority of employees could be said to want to bargain. As such, we are not satisfied that it was open to the Commissioner to reach the determination that he reached.”

[13] I respectfully agree with and will follow the decision in Kantfield. As a result, and having examined the petition and cross-checked the signatories against the updated list of employees identified by Fredon, I am satisfied that a clear majority of the employees want to bargain for a single enterprise agreement with Fredon.

[14] Fredon also took issue with the reliability of the evidence of the CEPU’s witnesses and submitted that their evidence should not be taken into consideration. It submitted that the petition was not a reliable method of determining majority support and that the Commission could not be satisfied that it was reasonable in all of the circumstances to make the determination sought by the CEPU.

[15] Notwithstanding its challenge of the witness evidence adduced by the CEPU, Fredon chose not to cross examine any of the witnesses.

[16] Based on the evidence before me, there is no basis for me to find that the petition was not appropriately obtained.

[17] I am satisfied and find, on the material before me, 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 Fredon who will be covered by the proposed agreement want to bargain (s.237(2)(a));

c. Fredon 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)).

[18] 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

Appearances:

A Heffernan for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

L Berton for Stowe Australia Pty Ltd.

Hearing details:

2019.

Sydney:

January 16.

Printed by authority of the Commonwealth Government Printer

<PR703856>

 1   [2016] FWCFB 8372.