Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Stowe Australia Pty Limited

[2019] FWC 227

[2019] FWC 227

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
Stowe Australia Pty Limited
(B2018/1225)

DEPUTY PRESIDENT DEAN SYDNEY, 29 JANUARY 2019

Application for a majority support determination.

[1] On 21 December 2018 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act) with respect to employees of Stowe Australia Pty Ltd (Stowe) employed to perform work in Sydney construction industry.

[2] The CEPU seeks a determination that a majority of these employees, who are presently covered by Stowe Australia Pty Ltd – Sydney Projects Division – Union Enterprise Agreement 2015 (the Agreement), want to bargain with FIP for a single-enterprise agreement.

[3] The Agreement does not expire until 2 October 2019.

[4] The relevant provisions of the Act are contained in ss.236 and 237 of the Act:

“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.”

[1] The matter was listed for hearing on 16 January 2019. Directions were issued requiring both parties to file an outline of submissions and any evidence by 15 January 2019. While a number of witness statements were filed by the parties, no witnesses were required for cross examination.

[2] The CEPU filed an outline of submission and provided statements of Mr Allen Hicks (National Secretary), Mr Fred Barbin (Organiser) and Mr Antony Stegic (Organiser) in support of its application. Attached to the CEPU’s submissions was also a petition containing 78 signatories. The petition contained the following preamble:

“We, the undersigned employees of Stowe Australia Pty Ltd, want to bargain for a new single-enterprise agreement to commence operation upon the expiry of the current single-enterprise agreement.”

[3] Each of the statements provided by the CEPU set out the manner in which the petition was circulated. It was also stated that no employees had been coerced to sign the petition and that no employees had expressed any confusion about when they were signing or what the petition meant.

[4] Stowe provided a list of its employees and a statement from its General Manager, Mr Scott Gandy, confirming the list contain all employees who would be covered by the enterprise agreement proposed in the CEPU’s application and who are currently covered by the 2015 Agreement.

[5] The objection by Stowe to the making of the majority support determination was in essence that it was not reasonable in all the circumstances to make the determination – in other words that the requirement in s.237(2)(d) was not met. The reasons proffered by Stowe in support of their objection were that the Agreement did not expire until October 2019 and that the petition did not accurately reflect the process under the Act in that bargaining would be commenced almost immediately after a determination was made, rather than at a time closer to the expiry of the Agreement.

[6] Stowe relied on a further statement of Mr Gandy and statements provided by two of its Project Managers, Mr John Brumec and Mr Stephen Rigby. The three statements are in almost identical terms and assert that during discussions with employees about the petition, employees informed Stowe that:

(a) They were told by the organiser that bargaining for a single-enterprise agreement would not occur until just before or on the expiry of their current agreement;

(b) It was their understanding that by signing the petition they would not bargain for a single-enterprise agreement until just before or on the expiry of the current agreement;

(c) They were not told that bargaining would commence almost immediately and they were told that Stowe will not go first in the bargaining;

(d) It was not explained to them that the effect of signing the petition was that they would immediately commence bargaining for a single-enterprise agreement once a majority support determination was made.”

[7] Stowe argued that the witness statements filed by the CEPU did not demonstrate that Messrs Hicks, Barbin and Stegic actually explained the wording of the petition to employees, or the effect of the wording. Nor, it argued, did the witness statements evidence any explanation to the employees that the effect of signing the petition, and subsequent majority support determination, would be that they would immediately commence bargaining for a single-enterprise agreement as opposed to bargaining just prior or upon expiration of the Agreement.

[8] As noted earlier, none of the witnesses were cross examined, despite the ability to so.

[9] Having considered the evidence and the submissions made by the parties, I am satisfied that there was a sufficient explanation of the petition to employees, and it was appropriately obtained. I do not accept that the preamble to the petition is ‘confusing and uncertain’, as asserted by Stowe, simply because the Agreement does not expire until October 2019.

[10] It is not unusual that parties may decide to commence negotiations for a new agreement some months before the expiry of their current agreement. It is also relevant to note that Stowe had already issued a Notice of Employee Representative Rights (NERR) for a multi-enterprise agreement in November 2018, and had put a proposed multi-enterprise agreement to a vote earlier this year, which was voted down by Stowe’s employees.

[11] Even if it were the case that some employees did not realise that bargaining would commence very shortly after a determination is made, this is insufficient, in my view, to support a finding that it would not be reasonable in all the circumstances to make the determination.

[12] After examining the petition and cross-checking the signatories against the list of employees identified by Stowe, I am satisfied that a clear majority of the employees want to bargain for an enterprise agreement with Stowe.

[13] I am further satisfied and find, on the material before me, that:

a. the CEPU is a bargaining representative for employees who will be covered by the proposed agreement and is capable of making the application for a majority support determination (s.236);

b. a majority of the employees of Stowe who will be covered by the proposed agreement want to bargain (s.237(2)(a));

c. Stowe has not yet agreed to bargain for a proposed single-enterprise agreement (s.237(2)(b));

d. the group of employees who will be covered by the proposed agreement was fairly chosen (s.237(2)(c)); and

e. it is reasonable in all the circumstances to make the determination (s.237(2)(d)).

[14] In conclusion, I am satisfied that all requirements of ss.236 and 237 of the Act have been met. Accordingly, the Commission must make the majority support determination sought by the CEPU. A Determination will issue with this decision.

DEPUTY PRESIDENT

Appearances:

A Heffernan for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

L Berton for Stowe Australia Pty Ltd.

Hearing details:

2019.

Sydney:

January 16.

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