Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Siemens Gamesa Renewable Energy Pty Ltd

[2021] FWC 5904

[2021] FWC 5904

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
Siemens Gamesa Renewable Energy Pty Ltd
(B2021/572)

DEPUTY PRESIDENT CLANCY MELBOURNE, 13 SEPTEMBER 2021

Application for a majority support determination – employer does not agree to bargain – determination made.

[1] On 21 July 2021, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) made an application pursuant to s.236 of the Fair Work Act 2009 (Cth) (the Act) for a majority support determination.

[2] The CEPU seeks a determination that a majority of Siemens Gamesa Renewable Energy Pty Ltd (SGRE) employees who perform work at the Mt Mercer and Murra Warra wind farms, who will be covered by a proposed single-enterprise agreement, want to bargain with their employer. In its application, the CEPU says Mr Troy Knight, Branch Organiser, attended the Mt Mercer and Murra Warra wind farms on 5 July 2021 and 7 July 2021 respectively and obtained petition signatures of employees, a majority of whom signed the petition indicating support for the CEPU to be their bargaining representative and bargain for an enterprise agreement.

[3] On 22 July 2021, my Associate sent an email requesting the CEPU to provide unredacted copies of the petitions conducted and requesting SGRE to provide a list of employees who perform work at both the Mt Mercer and the Murra Warra wind farms and advice as to whether or not it agreed to bargain for the Agreement sought by the CEPU.

[4] On 26 July 2021, my Chambers received an email from the CEPU attaching unredacted copies of the petitions conducted at the Mt Mercer wind farm and the Murra Warra wind farm.

[5] On 2 August 2021, my Chambers received an email from SGRE’s legal representative providing a list of the employees performing work at both the Mt Mercer and the Murra Warra wind farms.

[6] On 9 August 2021, my Chambers received a further email from SGRE’s legal representative advising that SGRE does not agree to bargain for the following reasons:

•  SGRE believes that both it and its employees are content with the current terms and conditions of employment and do not wish to make an enterprise agreement that would alter those terms;

•  SGRE has not been provided with any evidence from the CEPU (or otherwise) that establishes that:

•  a majority of its employees at both the Mt Mercer and Murra Wurra wind farms support bargaining occurring and want to bargain for the proposed agreement sought by the CEPU; and

•  the CEPU has members employed by SGRE at the Mt Mercer and Murra Wurra wind farms entitling it to represent the industrial interests of those employees

•  There are a number of matters referred to in the application by the CEPU with which SGRE disagrees and which do not accurately reflect conversations and interactions between SGRE and the CEPU and in some instances, refer to conversations that did not occur at all (for example, Tim Goldenberg of SGRE has never had any conversations with Mr Knight regarding bargaining for an enterprise agreement).

[7] On 19 August 2021, I invited the parties to file any further and final material for my consideration by no later than 3pm on Monday, 23 August 2021. No further material was filed by either of the parties.

Legislation

[8] The Act relevantly provides 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 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.”

Section 236 of the Act

[9] I am satisfied that the CEPU is a bargaining representative for employees who will be covered by the proposed single-enterprise agreement and is, therefore, capable of making this application for a majority support determination. I am also satisfied that the employer, SGRE, and the employees that will be covered by the proposed single-enterprise agreement, have been specified.

Section 237(2)(a) of the Act

[10] I am satisfied that a majority of employees employed by SGRE and who will be covered by the proposed single-enterprise agreement want to bargain. The list of employees provided by SGRE indicate that six employees perform work at the Mt Mercer wind farm and eight employees perform work at the Murra Warra wind farm. The unredacted copies of the petitions provided by the CEPU indicate that all but one of the employees want to bargain. As such, 93% of the relevant employees want to bargain. While SGRE has invited me to infer that incorrect information is being provided to the Commission as part of this application therefore raising questions about the accuracy of the petitions and the information that was provided to the employees by the CEPU as part of the process, my review of the information provided in relation to the petitions and the form of the petitions themselves satisfies me that the requirement in s.237(2)(a) of the Act has been met.

Section 237(2)(b) of the Act

[11] The material before me satisfies me that SGRE has not yet agreed to bargain.

Section 237(2)(c) of the Act

[12] In Cimeco Pty Ltd v CFMEU & Ors (Cimeco), 1 the concept of “fairly chosen” was discussed by the Full Bench in the context of s.186(3) of the Act, as follows:

“[19] Given the context and the legislative history it can reasonably be 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. 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.

[20] It is important to appreciate that whether or not the group of employees covered by 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.

[21] It is not appropriate to seek to exhaustively identify what might be the other relevant considerations. They will vary from case to case and will need to be demonstrated to the satisfaction of the tribunal. The word ‘fairly’ suggests that the selection of the group was not arbitrary or discriminatory. For example, selection based upon employee characteristics such as date of employment, age or gender would be unlikely to be fair. Similarly, selection based on criteria which would have the effect of undermining collective bargaining or other legislative objectives would also be unlikely to be fair. It is also appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of employees in determining whether the group of employees was fairly chosen. In this regard, it is not only the interests of the employees covered by the agreement that are relevant; the interests of those employees who are excluded from the coverage of the agreement are also relevant…” 2

[13] More recently, the reasoning in Cimeco was adopted by the Full Bench of the Commission in QGC in the context of s.237(2)(c) of the Act:

“[42] For the Commission to reach a state of satisfaction necessary to make a majority support determination, it must be satisfied that the group was fairly chosen and in considering whether the group was fairly chosen, it must take into account, by virtue of s. 237(3A), whether the group is geographically, operationally or organisationally distinct. Distinctiveness is not absolute and can be a matter of degree. Distinctiveness on one of those bases is a factor telling in favour of a finding that the group is fairly chosen. Conversely if the group of employees is not geographically, operationally or organisationally distinct, then that is a factor telling against a finding that the group is fairly chosen. Whether or not a group is organisationally, operationally or geographically distinct is not decisive but rather is a matter to be given due weight having regard to all of the other circumstances.”  3

[14] Therefore, having regard to these authorities, whether or not the group of employees covered by 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. Further, the consideration of whether the relevant employees were fairly chosen, taking into account whether they are geographically, operationally or organisationally distinct, is to be undertaken bearing in mind that the concept of distinctness in s.237(3A) of the Act is not absolute, but rather may be a matter of degree.

[15] In its application, CEPU asserts that the group of employees are geographically distinct in the sense that they are employed at distinctly separate wind farms of SGRE, namely, 286 Shelford Mt Mercer Road, Mount Mercer VIC 3352 and Ailsa Wheat Road Murra Warra VIC 3393. SGRE does not dispute this and I am satisfied that the wind farms are geographically distinct.

[16] It follows that SGRE’s employees who perform work at the Mt Mercer and Murra Warra wind farms are geographically distinct from other workers employed by SGRE. Having regard to this and all of the other circumstances, I am satisfied that the group of employees has been fairly chosen.

Section 237(2)(d) of the Act

[17] I am satisfied that it is reasonable in all the circumstances to make the determination on the basis of the material before me.

Conclusion

[18] As all of the requirements of s.237(2) of the Act have been met, I am obliged, pursuant to s.237(1) of the Act, to make the determination. A determination will issue with this decision and will operate from the date of this decision. 4

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR733765>

 1   [2012] FWAFB 2206.

 2   Ibid at [19]-[21].

 3   QGC Pty Ltd v The Australian Workers’ Union[2017] FWCFB 1165 at [42].

 4 Section 237(4) of the Fair Work Act 2009.