Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v JLM Electrical & Communications Pty Ltd T/A JLM Electrical & Communications

[2020] FWC 3879

[2020] FWC 3879

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
JLM Electrical & Communications Pty Ltd T/A JLM Electrical & Communications
(B2020/364)

COMMISSIONER LEE MELBOURNE, 14 AUGUST 2020

Majority support determination – whether majority wishes to bargain – time determined by the Commission – casuals employed at this time – Satisfied on evidence majority want to bargain and order made.

[1] This decision concerns an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) under s.236 of the Fair Work Act 2009 (Act) for a majority support determination. The CEPU contends that a majority of relevant employees who would be covered by a proposed enterprise agreement want to bargain with their employer, JLM Electrical & Communications Pty Ltd T/A JLM Electrical & Communications (the Respondent). The proposed agreement would apply to employees who are field workers who work at the employees operations in Tasmania and exclude workers in an office based role for example any Managing Directors and Chief Financial Officer. The Respondent opposes the application.

[2] This is the second application for a majority support determination brought by the CEPU in respect of a proposed enterprise agreement that it wishes to negotiate on behalf of its members who are employed by the Respondent. On 3 July 2020 an earlier application for a majority support determination in respect of a different group of employees was made. During the hearing of that matter the CEPU withdrew that application. Subsequently, the CEPU lodged this further application which amended the proposed scope of the proposed agreement from that of the first application.

[3] The CEPU in its application and in its submission, stated that they had been contacted by a number of employees who are currently employed by the Respondent, asking for assistance in bargaining for a new agreement. The CEPU provided submissions that workers filled out a petition to demonstrate that they wanted to bargain for an agreement. A petition was provided on a confidential basis to the Commission 1 (A1) The Respondent was directed to, and filed on a confidential basis, a list of those employees that will be covered by the agreement2 (R1)

[4] The matter was listed for hearing on 17 July 2020. At that hearing it became clear that all but three of the employees included on the list R1 to be covered by the Agreement were casual employees. 3 This raised the question as to whether it was reasonable to include all of the casual employees on the list in R1 for the purposes of determining the majority. The Respondent maintained that it was appropriate to do so. However, the CEPU raised concerns that some of the casual employees that were listed on R1 may be rarely employed and this needs to be considered in determining the matter.

[5] Subsequently, I directed the Respondent to provide further information to assist in understanding the frequency of engagement of the casual employees. The approach I took in the matter was set out in a statement issued 22 July 2020. That statement included the following:

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) has supplied a petition on a confidential basis. This document will be referred to as A1. The signatures on A1 are preceded by the following text:

“We the undersigned employees, intend to bargain for an enterprise agreement with our employer JLM Electrical & Communications (ABN 99 607 431 792), (“the employer”), of 1/10 Butler St Brighton TAS 7030

As far as we, the employees, are aware, the employer has refused to bargain with us.”

The proposed enterprise agreement would cover field workers who work at the employer’s operations in Tasmania and exclude workers in an office based role for example Managing Directors and Chief Financial Officer.

[4] The Respondent has filed, also on a confidential basis, a list of employees that the Respondent says will be covered by the proposed agreement. This document will be referred to as R1.

[5] The matter was listed for hearing on 17 July 2020. At the hearing the Applicant articulated a concern that the Respondent’s list of employees to be covered by the proposed agreement (R1) may include casuals that may not be rehired by the employer and are never at the workplace and so getting them to sign a petition is difficult. Mr. Bird of the Respondent confirmed that the employees in R1 were all casual employees except for three. There was some uncertainty as to the frequency of employment of some of the casuals and whether in the circumstances it was reasonable to find that they would be covered by the proposed agreement.

[6] In order to deal with the matter, Mr. Bird was directed to provide a table which included the list of employees that the Respondent said would be covered by the proposed agreement with additional information indicating the number of days the employees had worked in the last four weeks 4. This document will be referred to as R2

[7] Mr Bird has provided the table (R2) as requested. R2 shows that three of the employees on the original table (R1) have not been engaged at all by the Respondent in the last four weeks. This raises the question that I canvassed during the hearing as to whether there is any prospect that they would be covered by the proposed agreement.

[8] I note that on 21 July 2020 the Applicant has also provided, again on a confidential basis, a list of employees that they say worked for the Respondent in the preceding four weeks 5. That list is referred to as A2. I note that the list of employees, in A2, and the claim that they all worked in the previous four weeks is consistent with the information provided by Mr. Bird in document R2.

[6] A further hearing was held on the 23 July 2020. Prior to that hearing the Respondent provided a further list of employees 6 (R3). The information in the table R3 included the same information as was included in R2, in that the names of employees and the number of them was the same. However, there was additional information relevant to when those employees worked in the “pre-COVID-19 period.” It is of note that R3 showed that the three employees who had not worked at all during the period 22 June 2020 through to 17 July 2020 had also not worked at all during January and February of 2020, the pre -COVID-19 period. However, two of those three employees had worked for the Respondent in November and December in 2019.

[7] At the conclusion of the hearing I reserved my decision. However, on reviewing the material it became apparent that I had not sought submissions from the parties specifically directed on the “time” to be determined by the FWC for the purposes of s.237(2)(a)(i) of the Act.

[8] I therefore issued a further statement on 24 July 2020, the relevant parts of which are reproduced below:

[3] In order to determine the matter, I must be satisfied, among other things regarding s.237(2)(a) of the Act.

[4] Section 237(2)(a) of the Act is in the following terms:

237 When FWA must make a majority support determination

Matters of which FWA must be satisfied before making a majority support determination

(2) FWA must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by FWA; and

(ii) who will be covered by the agreement;

want to bargain;

[5] The time, for the purposes of s.237(2)(a) of the Act is particularly important in cases such as this one where all but three of the employees to be covered are casual employees. 7

[6] Previous decisions 8 of the Commission dealing with an analogous situation by Deputy President Colman set out an eminently sensible approach to dealing with the issue as well as interpretations of the relevant statutory provisions, interpretations with which I respectfully agree. The aforementioned decisions can be found at the following links:

PR707037

PR707568

However, to assist the parties, the key parts of the decision National Union of Workers v Lovisa Pty Limited  9 (PR707568) that I consider relevant to this matter are replicated below:

“[3] In the first decision, I found that the company employed a small number of permanent part-time employees and had on its books a large number of casual employees whom it engaged from time to time. Some of these casual employees had not been engaged to work for many months or longer. It will be recalled that s 237(2)(a) of the Act requires the Commission to be satisfied, before making a majority support determination, that a majority of employees who are employed by the employer ‘at a time determined by the Commission’, and who will be covered by the agreement, want to bargain. I decided that, in a highly casualised environment, it was appropriate that the Commission determine a time that was a period of time, and that it was reasonable in the circumstances for the ‘determined time’ to be a four week period ending on 9 November 2018, which was the date of the employer’s list of employees.

[4] There was then the question of which casuals could be considered to have been employed in this period. I determined that only those casual employees who were actually engaged by the company during the four week period could be considered part of the ‘cohort’ of in-scope employees for the purposes of s 237(2)(a)(i). I concluded that the employees employed at the ‘time determined by the Commission’ and who would be covered by the proposed agreement were employees appearing on the company’s November list, and who were either permanent employees, or casuals who were actually engaged to work at any time during the four week period ending on 9 November 2018.

…

[11] In the first decision I set out my analysis of s 237(2)(a)(i), and the significance of the decision of the Full Bench in Kantfield Pty Ltd v AWU 10. To recap, the Commission’s power to determine a time under s 237(2)(a) is confined to the question of who are the persons employed by the employer at a particular time: that is, to fix by reference to time the cohort of employees from which the question of majority is to be determined. The Commission has a discretion to determine this date, but not the date on which a majority wishes to bargain. The latter question must be assessed as at the date of the decision, using the most recently available information. In relation to these matters, I adopt paragraphs [30]-[32] of the first decision.

[12] In considering the ‘time’ I should determine for the purposes of s 237(2)(a)(i), it is appropriate to take into account that the company’s workforce comprises a large number, and proportion, of casuals. In a highly casualised environment it would be artificial to determine as the relevant time a single date, on which only some casuals are likely to have been engaged and hence employed (see below). Instead, I consider that the Commission can determine a ‘time’ that is a period of time, and that it is appropriate to do so in this case. It is reasonable in the circumstances for the ‘determined time’ to be a four week period ending on Friday 19 April 2019. The ‘employee list’ for the purposes of s 237(2)(a)(i) therefore includes all permanent employees of Lovisa employed at this time, and any casual engaged even once during this period.

[13] As in my previous decision, I do not consider it appropriate to determine a time with any greater ambit as this would artificially increase the ‘employee denominator’ for the purposes of calculating whether a majority of employees wish to bargain. It is appropriate for the Commission to determine a period of time which covers casual employees who have been engaged to work relatively recently, and who are not simply persons ‘on the books’.

…

[22] Before the Commission in the present matter is a document produced by the company, at my request, that shows the roster for the four week period I have determined for the purpose of s 237(2)(a), indicating which employees actually worked during the period. There are 23 part-time employees identified on this list. These persons were employed regardless of whether they worked, as they are permanent part-time employees. In addition to these persons, the names of 35 (in one week 34) casuals also appear on this list. All but one of those persons worked at least once during the four week period. I conclude that each of the casuals who actually worked in the four week period determined above was employed at the time for the purpose of s 237(2)(a).

[23] Although the company submitted that there are other casuals on the books, there is no evidence as to who they are. However, it is evident from the company’s roster document that whoever these people might be, they did not work in the four week period and are not employees for the purpose of s 237(2)(a). They do not count in assessing majority support for bargaining.” 11

[7] Having regard to the approach by the Deputy President, with which I respectfully agree, my provisional view is that it is reasonable in the circumstances for the “determined time” to be a four week period ending on 17 July 2020. This is the four week period prior to the first hearing on this matter.

[8] I note that this morning an email was sent to my Chambers from Mr. Clark from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) stating that employees who haven’t worked at the workplace recently, as per the time period previously set down by the Commission of four weeks and appear on list R3 should be considered ex-employees who’s operational circumstance differ from those who have been petitioned and therefore can’t be considered fairly chosen by the Respondent for the purposes of determining the majority support application.

[9] I have taken into account the submissions of the CEPU. Irrespective of their submissions, I believe the approach taken by the Deputy President in the matters referred to above is the correct approach to dealing is the correct approach and the submission has not altered my provisional view set out in paragraph [8] above.

[10] As a matter of procedural fairness I will provide the parties with an opportunity to make submissions on my provisional view

[9] In response to the statement of 24 July 2020, The CEPU submitted as follows:

“As set out in the CEPU previous submission, based on what had previously been set down by the Commission, the Union’s position is that the Commissions process of determining time was reasonable in the circumstances.

We submit that the Commission should be satisfied in making a majority support determination, that a majority of employees who are employed by the employer at a time determined by the Commission being the four weeks preceding the 17/07/20 and who will be covered by the agreement, want to bargain with the employer base on the petition already provided to the Commission that falls within that time period.

We say that only casual employees who were actually engaged by the company during the four week period could be considered part of the ‘cohort’ of in-scope employees for the purposes of s 237(2)(a)(i) and that employees who weren’t actually engaged by the employer should be treated in the same or similar way as in the statement provided by the commission dated 24 July 2020 [23] which says:

“although the company submitted that there are other casuals on the books, there is no evidence as to who they are. However, it is evident from the company’s roster document that whoever these people might be, they did not work in the four week period and are not employees for the purpose of s 237(2)(a). They do not count in assessing majority support for bargaining”

We respectfully submit that the Commissioner has sufficient evidence to be satisfied that agreement making in this workplace has majority support.” 12

[10] The Respondent submitted the following in response to the statement of 24 July 2020:

“Thank you for providing the Statement issued by Commissioner Lee, dated 24 July 2020.

JLM appreciates the time and effort Commissioner Lee has put into assessing the information provided to date in order to form his provisional view. Further, JLM understands the rationale for the provisional view based on the information available at the point in time the view was formed.

We have discussed the Statement internally, in particular the fairness of an EBA requested by new employees impacting on long term employees who have not partitioned (sic.) and present the following data points which we hope will assist the Commissioner with reaching his final decision:

•  66% of employees have been employed by JLM less than 12 months.

•  JLM experiences high turnover of staff due to the periodic nature of project related cable hauling work.

•  The aggregate years of employment for those that have not petitioned is 10 yrs, versus 7.6 yrs for those assumed to have partitioned (could be overestimated).

•  At pre COVID and Christmas holidays employment levels in Nov 19, JLM estimated a minority of 46% employees partitioned for an EBA, weighted for days worked.

As mentioned above, our concern is the request from new employees to bargain will impact long term employees who have indicated they do not wish to be covered by the EBA (a partition can be provided on request). Additionally, the EBA will impact future employees and those who have not been considered to be current employees but likely to be reengaged in the coming weeks as we begin to recover from the unprecedented impacts of COVID-19, which resulted in a downturn in revenue and therefore reduction in FTE.

Therefore, we request the Commissioner consider the following when determining the majority vote:

Thank you for providing the opportunity to provide a submission in response to the Statement issued and we look forward to discussing further in due course.”  13

[11] The matter was listed for further hearing in the event the parties wished to make any further submissions, however both parties largely relied on the written comments already submitted.

Consideration

[12] I have taken into account the submissions of the parties. I note that the CEPU supports the provisional view expressed that the “determined time” should be a four week period ending on 17 July 2020.

[13] The Respondent does not expressly reject the provisional view, and states that they understand the rationale for the provisional view based on the information available at the time the view was formed. However, the Respondent asks that I take into account a variety of other factors.

[14] I have taken into account the submissions of the Respondent. I note the submission that there is a high level of turnover of staff. However that, in my view, reinforces rather than detracts from the reasonableness of the “determined time” of four weeks prior to 17 July 2020. I have taken into account the changes in employment pre and post COVID-19. However, it remains the fact that three of the employees in R3 did not work at all in the two months prior to COVID-19. The submissions that predict the level of support for bargaining related to length of service and weighting for days worked pre COVID-19 are speculative, as the list of those who wish to bargain remains confidential. Finally, the request to consider FTE employed within a future time frame is neither possible nor relevant to the consideration. In summary, the submissions of the Respondent have not persuaded me to change my provisional view that the determined time is to be a four week period prior to the 17 July 2020.

[15] Having regard to s.577 and s.578 of the Act, the relevant provisions of Part 2-4 of the Act, and to the evidence and submissions of the parties, I consider it appropriate that the exhibits A1 and A2 provided by the CEPU will not be provided to the Respondent and nor do I consider it appropriate that exhibits R1, R2 and R3 provided by the Respondent be provided to the CEPU. There have been no submission that I cannot rely on the petition provided by the CEPU. I consider that it is fair and appropriate in all the circumstances for me to rely on this evidence in determining if a majority of relevant employees wants to bargain.

[16] Exhibit A1, the CEPU petition, is signed by six employees. I am satisfied that those six employees were all employed during the determined time.

[17] Exhibit R3 is a list of 12 employees, including the managing director of the Respondent, Mr. Mark Bird. Mr. Bird submitted, and it was not contested, that he spends a significant amount of time in the field and is an employee of the Respondent. 14 Those submission were not contested.15

[18] Exhibit R3 also shows that of the 12 employees on the list of R3, three were not employed at all during the determined time. Therefore, the number of employees who are employed by the employer at the determined time is nine in total. As six of the nine employees have signed the petition seeking to bargain with the employer, I am satisfied that a majority of the relevant employees want to bargain.

Other requirements in s 237(2) of the Act.

[19] There was no dispute that the Respondent has not yet agreed to bargain, or initiated bargaining, therefore the requirement in s.237(2)(b) of the Act has been met.

[20] I consider, and it was not contested, that the group of employees who will be covered by the proposed agreement was fairly chosen, as required by s.237(2)(c) of the Act.

[21] Finally, I am satisfied that it is reasonable in all the circumstances to make the determination as per s.237(2)(d) of the Act. I have considered the submissions raised by the Respondent which could be said to amount to a submission that it is not reasonable in all the circumstances to make the determination relating to the concerns about bargaining in the pre and post COVID-19 environment. That is an environment that the parties will no doubt take into account in bargaining. However this is not a sound basis to find that it is not reasonable to make the determination.

Conclusion

[22] As I am satisfied of the matters set out in s.237 of the Act, I am required by s.237(1) of the Act to make a majority support determination.

[23] The determination will be issued separately. As provided by s.237(4) of the Act, the determination will come into operation on the date on which it is made.

COMMISSIONER

Appearances:

Mr C. Clark for the CEPU
Mr M. Bird for the Respondent.

Hearing details:

2020
Melbourne
6 August

Printed by authority of the Commonwealth Government Printer

<PR7212408>

 1   Exhibit A1, Majority Support Petition.

 2   Exhibit R1, JLM Active Employees List.

 3   PN43.

 4   Exhibit R2, JLM Active Employees List with their days worked for the period twenty days prior to Friday 17th July.

 5   Exhibit A2, Employee List.

 6   Exhibit R3, JLM Active Employees List pre COVID-19.

 7   PN42 – PN45.

 8   National Union of Workers v Lovisa Pty Limited [2019] FWC 2885; National Union of Workers v Lovisa Pty Limited [2019] FWC 2571

 9   [2019] FWC 2885;

 10   [2016] FWCFB 8372

 11   National Union of Workers v Lovisa Pty Limited [2019] FWC 2885 at paras [3], [4], [11], [12], [13], [22] and [23].

 12   Submissions from CEPU dated 28 July 2020.

 13   Submissions from Respondent dated 31 July 2020.

 14   PN18.

 15   PN35.