Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kone Elevators Pty Ltd
[2022] FWC 3006
•11 NOVEMBER 2022
| [2022] FWC 3006 |
| 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
KONE Elevators Pty Ltd
(B2022/1593)
| COMMISSIONER SPENCER | BRISBANE, 11 NOVEMBER 2022 |
Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (128V)
An application pursuant to s.236 of the Fair Work Act 2009 (the Act) was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for a Majority Support Determination (MSD) to undertake bargaining for an Agreement proposed to cover employees of Kone Elevators Pty Ltd (the Respondent) performing the role of ‘Maintenance Door Technician’ in the Northern Region (Queensland and Northern Territory).
The application asserted that the employees to be covered are not currently covered by an enterprise agreement and that the group is fairly chosen as required by s.237(2)(c). It was asserted that the Respondent had refused to commence bargaining.
Directions were issued requiring that:
· the Applicant file an unredacted petition of the employees in support of bargaining;
· the Respondent file a list of employees described, in the application, to be covered by the proposed agreement; and
· the Respondent set out whether they objected to the application and if so, on what grounds.
Both the petition and the list were required to be provided to the Commission only.
The Respondent confirmed that they did not object to the application. The Respondent also provided a list of impacted employees, as required by the Directions.
The Applicant also provided a copy of a petition taken of the employees, as well as a supplementary witness statement from Mr Stephen Bravo, CEPU Organiser, who had carriage of the petition.
After comparing the list of names and signatures on the petition and the list of names provided by the Respondent, it is concluded that a majority of employees, specifically 6 out of 9 employees, had signed the petition to commence bargaining for an enterprise agreement.
Neither party sought to provide any further submissions, and agreed to the matter being determined on the papers.
RELEVANT LEGISLATION
The Commission requires the legislative criteria set out in section 236 of the Act to be met;
“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.”
Pursuant to s.237 of the Act:
“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
The legislative tests in section 236 and section 237 have been considered.
Group of employees fairly chosen
The Applicant submitted in its Form F30 that the proposed agreement covers those employees employed in the role of Maintenance Door Technician within the Respondent’s Northern Region which comprises Queensland and the Northern Territory.
The Applicant submitted that the employees to be covered by the proposed Agreement are operationally distinct from other employees of the respondent as their roles, responsibilities and qualifications are unique to them. The Applicant submitted that the ‘Maintenance Door Technicians’ require a unique set of skills, and are the only employees employed by the Respondent to perform this type of work. The Applicant submitted that the types of tasks undertaken by these employees, are not performed by any other employees employed by the Respondent.
The Applicant further submitted that Agreements are in place for the Respondent’s ‘Service Employees’ across the Northern Region. Their submissions also highlighted that Maintenance Door Technicians in other states were currently covered by Agreements.
A decision as to whether or not the group of employees covered by the agreement was ‘fairly chosen’ involves a degree of subjectivity or value judgment.[1] The proposed Agreement does not cover all employees of the Respondent. Therefore, s.237(3A) is triggered and consideration turns to whether the group is geographically, operationally or organisationally distinct.
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU)-Queensland Branch v Bustech Pty Ltd (Bustech)[2] the concept of ‘fairly chosen’ was discussed with reference to Cimeco Pty Ltd v CFMEU & Ors (Cimeco),[3] by the Full Bench and in the context of s.186(3).[4] Guidance can be gleaned on how to interpret and apply s.186(3) from decisions concerning the use of the same expression in ss.237(3A) and s.238(4A), and vice versa.[5]
The Full Bench in Cimeco emphasised that whether the agreement is geographically, operationally or organisationally distinct is not decisive, rather it is a matter to be given due weight, having regard to all other relevant considerations. The Full Bench expressed that by reference to the legislative scheme and context, it could be reasonably assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct, then that would be a factor telling in favour of a finding that the group of employees was fairly chosen.[6] Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct, then that would be a factor telling against a finding that the group was fairly chosen.[7]
The Full Bench in QGC[8] found that ‘distinctiveness’ in the context of whether a group is ‘distinct’ was not absolute and could be a matter of degree. The Full Bench referred to ‘operational’ distinctiveness, expressing that it denoted an industrial or productive activity.[9] In QGC, the activity in question was said to be the operation and maintenance of gas extraction and processing infrastructure in a particular location.
The word ‘organisation’ refers to the manner in which the employer had organised its enterprise in order to conduct those operations.[10] In this respect, the Full Bench noted that the performance of different roles, tasks or functions to that performed by others, was not of itself a sufficient basis upon which a finding of operational or organisational distinctiveness could be made in that particular case.[11]
In Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers’ Union of Australia; Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 5826 (Aerocare), the Full Bench set out a number of propositions relevant to interpreting the phrase ‘organisationally distinct’ in s 186(3A). It considered the following relevant:
a)the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations;[12]
b)the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct;[13]
c)however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function;[14] and
d)most businesses have organisation structures which will allow organisationally distinct groups to be identified.[15]
I am satisfied that the work of the group of employees to be covered by the proposed Agreement is fairly chosen. The group of employees is operationally and organisationally distinct. The group is also geographically distinct from other employees of the Respondent in similar classifications in that they worked in the Respondent’s Northern Region.
The following criteria in section 237 of the Act must also be assessed.
Section 237(2)(a) a majority of employees want to bargain; and section 237(3) for the purposes of paragraph (2)(a), FWC may work out whether a majority of employees want to bargain using any method FWC considers appropriate
As noted, the Applicant provided a petition which had been signed by employees of the Respondent stating that they wanted to commence bargaining. The Respondent provided a list of employees in accordance with the proposed group. Having reviewed the petition, it was determined that there were six (6) valid signatures from employees who appear on both the petition and the list of names provided by the Respondent, and one (1) signature from an individual who does not appear on the employer’s list of employees.
I am satisfied that a valid majority of 6 employees out of 9 who voted has been reached.
Section 237(2)(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement
The Applicant provided copies of correspondence to the Respondent within which several attempts were made by the Applicant, to meet with the Respondent to discuss the proposed Agreement.
I am satisfied that the Employer has not agreed to bargain or initiated bargaining, for the Agreement.
Section 237(2)(d) It is reasonable in all the circumstances to make the determination
Before making a determination, I must be satisfied it is reasonable in all the circumstances to make the determination sought.
In the circumstances where there is a majority of employees seeking to bargain who are distinct from other employees of the Respondent, and the Respondent has not opposed this application, I am satisfied it is reasonable in all the circumstances to make the determination sought.
CONCLUSION
I am satisfied that all of the requirements of section 236 and section 237(2)(a)–(d) of the Act have been met, and that it is reasonable in all the circumstances to make the determination. I therefore make the determination under s 237(1) of the Act. The determination will issue with this decision and will operate from the date of this decision.
An Order to this effect [PR747872] will be issued with this Decision.
COMMISSIONER
[1] Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 2206, [8]; Aerocare, [26]; Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2015) 228 FCR 297, [60] – [62].
[2] [2021] FWC 924.
[3] [2012] FWAFB 2206.
[4] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU)-Queensland Branch v Bustech Pty Ltd (Bustech)[2021] FWC 924, [30] – [33].
[5] Aerocare, [27].
[6] Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 2206, [19].
[7] Ibid.
[8] [2017] FWCFB 1165.
[9] Ibid [44].
[10] Ibid [44].
[11] Ibid [44].
[12] QGC Pty Ltd v Australian Workers’ Union[2017] FWCFB 1165, [44].
[13] United Firefighters’ Union v Metropolitan Fire & Emergency Services Board[2010] FWAFB 3009, 193 IR 293, [60].
[14] QGC Pty Ltd v Australian Workers’ Union[2017] FWCFB 1165, [44]-[45].
[15] Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd[2014] FWCFB 1476, 242 IR 238, [15]; see also National Union of Workers v Cotton On Group Services Pty Ltd [2014] FWC 6601, [15]-[16] (permission to appeal refused in [2014] FWCFB 8899) and ASU v Shine Lawyers Pty Ltd[2017] FWC 4158, [68]-[71] as examples of where the employer’s organisational structure was used to determine organisational distinctiveness.
Printed by authority of the Commonwealth Government Printer
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