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

[2016] FWC 9154

[2016] FWC 9154

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
Retail FM Pty Ltd T/A Retail FM
(B2016/1294)

DEPUTY PRESIDENT WELLS HOBART, 20 DECEMBER 2016

Application for Majority Support Determination.

[1] This decision concerns an application for a majority support determination pursuant to section 236 of the Fair Work Act 2009 (the Act). The application was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[2] The relevant provisions of the Act, sections 236 and 237, are as follows:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to 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 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 employer to be covered by the proposed enterprise agreement in respect of which the declaration is sought is Retail FM Pty Ltd (Retail FM). The employees who would be covered by the proposed agreement are those employees who are engaged in refrigeration and mechanical services and who would be covered by the Electrical, Electronic and Communications Contracting Award 2010 (the Award). The CEPU asserts that it is a bargaining representative for at least one of the relevant employees, who are captured under the classifications contained within the Award.

[4] The matter was heard on 12 December 2016 with the CEPU being represented by Mr M Anderson. Retail FM was represented by Ms J Kerr and Mr T Mason. Formal directions were issued to the parties following the hearing to ensure the provision of information which would assist the Commission in determining the matters relevant to determining if majority support for bargaining was present. Those directions required the CEPU to provide a copy of its rules as they relate to constitutional coverage of the employees to be covered by the proposed agreement to the Commission and the Respondent; and to provide to the Commission only, a list of its members who it said were covered by the proposed agreement. The Respondent was directed to provide to the Commission and the Applicant any additional arguments in opposition to the application, by way of written submissions by 4pm on 16 December 2016; and was also directed to file at the same time, with the Commission only, a list of its employees who comprised the group of employees to be covered by the proposed agreement.

[5] Retail FM provided correspondence with a list of its employees to be covered by the proposed agreement (“the list”) 1 to the Commission in accordance with the Directions, also indicating that it did not intend to file any documents in opposition to the CEPU’s application.

[6] At the hearing it was established that Retail FM had not agreed to bargain; as they wished to continue unchanged the industrial engagements with its employees in Tasmania. Ms Kerr, for the Respondent, submitted that they had spoken with their employees and had chosen not to enter bargaining.

[7] I indicated that following receipt of the further information, I would determine the matters required under s.237 of the Act.

[8] The CEPU provided, as part of its Form F30 application, a copy of correspondence between itself and the Respondent dated 13 October 2016 wherein it was seeking to bargain with the Respondent on behalf of the group of employees chosen. A copy of the Respondent’s refusal to bargain dated 1 November 2016 was also provided. The CEPU further asserted, through their application, that the employees to be covered by the proposed enterprise agreement, that is “Technicians undertaking refrigeration and mechanical services work in Tasmania”, 2 was fairly chosen and were geographically, operationally and organisationally distinct.

[9] On 12 December the CEPU provided a copy of an extract from its rules denoting membership coverage 3 and a list of CEPU members who are employees of Retail FM and who would be covered by the proposed agreement.4 The documentation provided by the CEPU has satisfied me that it is a bargaining representative for at least one relevant employee.

[10] As part of the Form F30 application, the CEPU provided a petition (CEPU petition) 5 which stated “We, the undersigned employees, intend to bargain for an enterprise agreement with our employer, Retail FM Pty Ltd (ABN: 30 159 845 333), (“the employer”), of 4/2 Southbridge Street, Eastern Crook NSW 2766. As far as we, the employees, are aware, the employer has refused to bargain with us. The proposed enterprise agreement would cover Employees covered by the Plumbing and Fire Sprinklers Award, Electrical Electronic and Communications Contracting Award and who work at the employer’s operations in Tasmania.” I note the date for signing the petition ranged from 10 November to 7 December 2016.

[11] At hearing, Mr Anderson for the Applicant, submitted that the appropriate Award was the Electrical Electronic and Communications Contracting Award 2010.

[12] The CEPU petition contained five (5) names and signatures. The List provided by Retail FM contained the names of five (5) employees. The CEPU sought that the list of its members and the petition be kept confidential to FWC. Retail FM confirmed, under query by me, that it sought that its list of employees also be treated in confidence by FWC and not provided to the Applicant. Neither party objected to such course. Therefore the documents were accepted into evidence on that basis.

[13] A comparison by me established that at least three (3) of the five (5) employees on Retail FM’s list had signed the CEPU petition requesting bargaining for an enterprise agreement. That is a majority of employees. 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. 6

[14] There was no other information or evidence provided to me to suggest that a more contemporaneous petition or ballot of the five employees had been undertaken. I am satisfied the information before me is the most current material available to the Commission.

[15] I am satisfied that the group of employees to be covered by the proposed agreement was fairly chosen, that the CEPU is a bargaining representative of at least one employee to be covered by the proposed agreement and that the majority of the employees who will be covered by the agreement want to bargain.

[16] Consequently I am satisfied that the criteria contained in s.237(2) of the Act have been made out. Further, I am also satisfied that paragraphs (b) and (c) of s.237(2) have been made out and that it is reasonable in all of the circumstances to make the determination. As a result, pursuant to section 237(1), I must make a majority support determination. It is issued separately.

DEPUTY PRESIDENT

Appearances:

Mr M Anderson, for the Applicant

Ms J Kerr, for the Respondent

Mr T Mason, for the Respondent

Hearing details:

Hobart

2016

12 December

 1   Exhibit R1 (confidential Respondent document) – Correspondence with list of employees, dated 15.12.2016

 2   Form F30, para 1.2.2

 3   Exhibit A1 – Email including CEPU Rule 2.4

 4   Exhibit A2 (confidential Applicant document) – CEPU Membership list

 5   Exhibit A3 (confidential Applicant document) – Petition

 6   Kantfield Pty Ltd T/A Martogg & Company v Australian Workers’ Union[2016] FWCFB 8372.

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