Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Monadelphous Engineering Associates Pty Ltd

[2010] FWA 6357

[2010] FWA 6357

FAIR WORK AUSTRALIA

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
Monadelphous Engineering Associates Pty Ltd
(B2010/3083)

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 19 AUGUST 2010

Monadelphous Engineering Associates Pty Ltd.

[1] This is an application for a majority support determination by The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) pursuant to s.236 of the Fair Work Act 2009 (the Act). The application seeks a declaration that a majority of employees of Monadelphous Engineering Associates Pty Ltd (the respondent) who will be covered by an agreement, want to bargain.

Relevant legislation

[2] The provisions of s.236 and s.237 of the Act are as follows:

s.236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA 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.

s.237 When FWA must make a majority support determination

Majority support determination

(1) FWA 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) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.

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; 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), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA 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.

[3] The application states the proposed agreement is to cover “…those employees engaged by the employer, at BP Kwinana site, in construction work”. This is not all of the employees of the respondent nor is it all of the employees of the respondent engaged at BP Kwinana.

[4] The construction work the applicant refers to is work involving storage and handling facilities for liquefied natural gas (the LPG work).

[5] The respondent submits that the group of employees proposed to be covered were not fairly chosen mainly because they say all the respondents employees for all work undertaken on the BP Kwinana site, including the LPG work, are covered by an existing agreement, the Monadelphous Engineering Associates Pty Ltd BP Kwinana Refinery (Kwinana) Site Electrical Agreement 2010. The respondent submits that this LPG work is not construction work, that the group of employees is not operationally, geographically or organisationally distinct and that having a separate agreement for the construction work would be problematic.

[6] The parties disagree as to whether the work in question that the applicant says is construction work, the LPG work, is covered by the Monadelphous Engineering Associates Pty Ltd BP Kwinana Refinery (Kwinana) Site Electrical Agreement 2010.

[7] I agree with the respondent that it is not in an application such as this for the tribunal to determine whether particular work is or is not covered by this agreement. Nor is it for the tribunal to determine the scope of any future agreement the parties may negotiate.

[8] The tribunal in this matter is though required to determine whether the group of employees the subject of this application has been fairly chosen or not.

[9] I have considered the witness evidence and materials provided by both parties and in my view the weight of evidence does support the conclusion that the group of employees, the subject of this application, are operationally distinct but not geographically or organisationally distinct. Whether the group of employees is operationally, geographically or organisationally distinct does not determine the matter but are factors to be taken into account. In all the circumstances I do find that the group of employees the subject of this application have been fairly chosen.

[10] The applicant provided the tribunal with a petition of employees 1 that indicates that eleven employees signed the petition to show they wished to bargain for an agreement with the respondent.

[11] The witness for the respondent considered the petition and confirmed that the names of the employees who have signed indicate they were employees working for the respondent on the LPG work, and other than for two they had been, to date, only been working on this job 2. Other evidence is that the employees who signed the petition other than one boilermaker were ‘electrical’ employees3.

[12] The respondents evidence was that at the date of the hearing, which was the day after the petition was signed, there were thirteen electrical employees working on the LPG work. Clearly then the petition shows that as at 16 August 2010 a majority of the employees employed by the respondent who would be covered the agreement want to bargain with the respondent. Accordingly, I am satisfied that the petition was an appropriate method to establish that a majority of relevant employees wish to bargain.

[13] It is not disputed that the respondent has not yet agreed to bargain for an agreement or initiated bargaining.

[14] I am satisfied that the legislative pre requisites in s. 237 have been met and that in all of the circumstances it is reasonable that a majority support determination should be made.

[15] A majority support determination will now be issued.

COMMISSIONER

Appearances:

Ms N Ireland, Industrial Officer, on behalf of the Applicant

Mr D Brajevic, Employee Relations Manager, on behalf of the Respondent

Hearing details:

2010.
Perth:
August 17

 1   Exhibit CEPU 3

 2   Transcript PN 410 - 416

 3   Transcript PN 99

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