Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Konecranes Lifting Businesses TM T/A Konecranes Pty Ltd
[2020] FWC 6415
•14 DECEMBER 2020
| [2020] FWC 6415 |
| 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
Konecranes – Lifting Businesses TM T/A Konecranes Pty Ltd
(B2020/662)
COMMISSIONER LEE | MELBOURNE, 14 DECEMBER 2020 |
Majority support determination - whether majority wishes to bargain – satisfied group is fairly chosen - 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 the proposed enterprise agreement want to bargain with their employer, Konecranes – Lifting BusinessesTM T/A Konecranes Pty Ltd (the Respondent). The proposed agreement will not cover all employees of the Respondent. The employees who would be covered by the proposed agreement are set out in the Form F30 – Application for a majority support determination as follows:
“Employees who are based in Tasmania with field based roles which are predominately the physical installation and maintenance of cranes, excluding those employees who predominately have project management, client management, estimation or business management type roles, or who provide logistical support for field based employees doing the physical work.”
[2] The Respondent opposes the application, and in summary claims that:
• The application, in its current form, is ambiguous and fails to clearly specify which employees is it proposed will be covered by any proposed agreement.
• The Respondent is unable to verify whether a majority of the employees who are employed by the employee and who will be covered by the proposed agreement want to bargain, as the CEPU has only provided the Respondent with redacted copies of the petition.
• Accordingly, the Respondent submits the application should be dismissed
[3] The CEPU in its application stated that:
“The CEPU was contacted by members that are employed by the respondent and asked to help in negotiating an agreement with their employer, numerous meetings were held with our members to discuss the process and at their direction a petition was sent to them which they filled out and sent back to the union to use as proof that the majority of relevant employees want to bargain.”
[4] A petition was provided by the CEPU on a confidential basis to the Commission (Exhibit A4). The Respondent was directed to, and filed on a confidential basis, a list of those employees that will be covered by the proposed agreement.
[5] After an initial hearing to allow the parties to make submissions and file evidence, I advised that I would make a determination in the matter and reserved my decision. However, after reviewing the transcript it appeared to me that the CEPU had not been particularly clear about what they were intending the scope of the proposed agreement to be. The matter was listed for a second hearing, where Mr Clark subsequently sought that the application be amended. Mr Clark submitted that he wished to amend the application to insert “and/or” instead of “and” where it appears between the words “installation” and “maintenance” in the coverage of the proposed agreement as outlined under Q1.2 of the Form F30. The Respondent opposed the application to amend the application. During the second hearing, I determined that I would accept the application to amend the application. 1 In light of the amended application, the Respondent was given an opportunity to advise if they sought to advance further submissions or evidence in the matter. The Respondent subsequently advised that it did not seek to do so.
[6] I have determined this matter based on the evidence before me.
The law to be applied
“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.”
[7] As to the requirements in s.236(1) I am satisfied that the CEPU is a bargaining representative of an employee who will be covered by the proposed agreement and therefore can make the application. As to the requirements in s.236(2), I note that the Respondent submits that I cannot be satisfied on this point. However, I am satisfied that the application has specified the parties to be covered for the reasons set out below.
Other requirements in s 237(2) of the Act
[8] Evidence has been provided in respect to s.237(2)(a). The CEPU provided a petition signed by employees on a confidential basis (Exhibit A4). The Respondent provided a list of employees who will be covered by the Agreement on a confidential basis.
[9] In response to directions issued by me, the Respondent provided a list of all employees who are engaged in overhead crane installation and maintenance work at the Respondent’s operations in Tasmania. The directions contained an error as they referenced the industry, and not the scope of the proposed agreement. My Chambers sent an email to the parties the day before the hearing on Wednesday, 25 November 2020 noting the error. It was subsequently requested that the Respondent provide a list of employees of the employees who would be covered by the scope of the agreement as proposed by the CEPU. The Respondent responded as follows:
“The confidential list previously provided by the Respondent to Chambers by way of a confidential exhibit pursuant to Directions issued by Commissioner Lee on 28 October 2020 would be the same list of employees most relevant to the proposed scope set out within the Application (which as previously noted is ambiguous and fails to clearly specify which employees are proposed to be covered by any proposed agreement particular in circumstances where there are no employees engaged in overhead crane installation at the Respondent's operations in Tasmania).”
[10] 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 Exhibit A4 provided by the CEPU will not be provided to the Respondent, and nor do I consider it appropriate that the confidential list of employees provided by the Respondent be provided to the CEPU. There have been no submissions 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.
[11] Exhibit A4, the CEPU petition, is signed by six employees. I am satisfied that those six employees were all employed during the time the application was made. The confidential list of employees that will be covered by the Agreement consists of nine employees.
[12] As six of the nine employees that will be covered by the Agreement have signed the petition seeking to bargain with the employer, I am satisfied that a majority of the relevant employees want to bargain.
[13] In respect to s.237(2)(b), 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.
In respect to s. 237(2)(c), is the group of employees fairly chosen?
[14] The Respondent’s written submissions were that:
“The Application before the Fair Work Commission states that the Application is proposed to cover the Respondent and the following employees:
Employees who are based in Tasmania with field based roles which are predominately the physical installation and maintenance of cranes, excluding those employees who predominately have project management, client management, estimation or business management type roles, or who provide logistical support for field based employees doing the physical work.
The Respondent has filed a confidential exhibit with the Fair Work Commission being a list of all employees who are engaged in crane maintenance work at the Respondent’s operations in Tasmania.
The Respondent submits that there are no employees engaged in overhead crane installation at the Respondent’s operations in Tasmania, contrary to section 1.2.2 of the Application.
The Respondent submits that the Application, in its current form, is ambiguous and fails to clearly specify which employees it is proposed will be covered by any proposed agreement. This is a fundamental requirement under section 236(2) of the Fair Work Act.
On the basis that the Application fails to specify the employees who will be covered by the proposed agreement, the Respondent submits that the Application should be dismissed.” 2
[15] At the hearing, the claimed ambiguity in the scope was said to be a reason the group is not fairly chosen. The Respondent’s representative submitted that I cannot be satisfied that the group of employees is “validly” chosen. The submission then conflates somewhat the “validly” chosen point with the requirements in s.236(2)(b). The submission is made by the Respondent that:
“The section 236(2)(b) of the Act provides that the application must specify the employees who would be covered. In circumstances where we do not have employees engaged in the installation of cranes the application fails to meet that criteria.”
Furthermore, the Respondent submits that the scope is ambiguous. 3
[16] Evidence was provided as to the work that field employees do. Ms Riccardi, the Human Resource Manager Pacific Region for the Respondent gave evidence that:
“There are no employees employed by Konecranes in overhead crane installation at Konecranes' operations in Tasmania.” 4
During the hearing, she clarified that there are no employees engaged in any type of crane installation, overhead or otherwise, as the company currently engages contractors for the installation work. 5
[17] The CEPU made submissions that in conversations with employees, they advised that they were involved in the installations of cranes. 6
[18] However, the unchallenged evidence of Ms Ricciardi is that employees are not involved in crane installation. Evidence which in the circumstances I accept.
[19] Essentially then, the question is whether the fact that the Respondent does not currently employ employees in crane installation, but does do so in crane maintenance, renders the chosen group to be not fairly chosen.
[20] Having considered the submissions and evidence, it is my view the fact that the Respondent does not currently employ any employees in installing cranes is not a basis to find that the group is not fairly chosen. The scope of employees to be covered is stated with sufficient particularity. The CEPU submitted that the employees were geographically distinct and organisationally distinct. 7 The Respondent did not contest or lead evidence to the contrary and I am satisfied that the group of employees are geographically and organisationally distinct.
[21] The fact that the group of employees is geographically, operationally or organisationally distinct points in favour of a finding that the group is fairly chosen. 8 Of course, this is not decisive and is a matter to be given due weight having regard to all other relevant considerations.9
[22] Generally, the selection of the group of employees to be covered by an agreement in on some objective basis (as opposed to an arbitrary or subjective basis) is likely to point to a conclusion that the group was fairly chosen. 10 The group chosen here are the field workers who install and/or maintain cranes. There is nothing that would indicate that this group was chosen on a subjective or arbitrary basis.
[23] Having considered all of the evidence, I consider 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.
[24] Having considered all of the factors and the evidence, I am satisfied that it is reasonable in all the circumstances to make the determination as per s.237(2)(d) of the Act. The Respondent submitted that the first proposed scope of the application was ambiguous and fails to identify which employees will be covered by the proposed agreement. As discussed, the amended application now refers to employees engaged in the installation and/or maintenance of cranes. To the extent there was any ambiguity in the scope of the proposed agreements coverage I am satisfied that there is no ambiguity in respect to the amended application. There are no other matters to consider relevant to s. 237(2)(d). I am therefore satisfied it is reasonable in all the circumstances to make the determination.
Conclusion
[25] 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.
[26] 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:
C Clark for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
S Hardy for the Respondent
Hearing details:
2020.
Melbourne (via Microsoft Teams):
26 November
3 December
Printed by authority of the Commonwealth Government Printer
<PR724977>
1 Transcript at PN109-112
2 Respondent’s Outline of Submissions dated 18 November 2020 at paragraphs 4-6
3 Transcript at PN33
4 Witness Statement of Monica Riccardi, for the Respondent, dated 18 November 2020 at paragraph 6
5 Transcript at PN43
6 Transcript at PN54
7 Transcript at PN14
8 Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 2206 (Ross J, Hamilton DP, Spencer C, 12 April 2012) at paragraphs19-20
9 Ibid
10 Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 2206 (Ross J, Hamilton DP, Spencer C, 12 April 2012) at paragraph 16
0
0
0