Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of AustraliavDonnybrook Holdings Pty Ltd T/A TES Electrical
[2020] FWC 5520
•21 DECEMBER 2020
| [2020] FWC 5520 |
| 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
Donnybrook Holdings Pty Ltd T/A TES Electrical
(B2020/400)
DEPUTY PRESIDENT BEAUMONT | PERTH, 21 DECEMBER 2020 |
Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (128V).
[1] This decision concerns an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union), under s 236 of the Fair Work Act 2009 (Cth)(Act) for a majority support determination.
[2] The Union contends that a majority of employees who would be covered by a proposed agreement want to bargain with their employer, Donnybrook Holdings Pty Ltd T/A TES Electrical (the Respondent). The proposed agreement would cover employees of the Respondent, who perform work within, what the Union refers to as, the ‘Construction workforce’.
[3] The Respondent disputes that a majority of employees want to bargain and opposes the application. It submits that the application is based on an incorrect and second-hand understanding of the Respondent’s organisational make up, operations and total number of employees. It takes no issue with the integrity of the petition process and acknowledges that it has not agreed to bargain. However, the contentious issue concerns the group of employees proposed to be covered by the enterprise agreement and whether they were fairly chosen.
[4] In short, insofar as the group of employees (referred to as the ‘petition group’, ‘commercial construction’or ‘Construction’) is considered, I am satisfied the group who will be covered by the proposed agreement was fairly chosen. The selection of the group does not appear to have been an arbitrary or discriminatory exercise and I am satisfied that the petition group is organisationally distinct.
[5] Based on the evidence provided for the relevant period (2 July 2020 to 15 July 2020) the majority of electricians in that petition group (38 out of the 70 electricians) voted in the affirmative.
[6] As all of the requirements of s 237(2)(a) –(c) of the Act have been met, and I consider it is reasonable in all the circumstances to make the determination, I am obliged, under s 237(1) of the Act, to make the determination. It will issue with this decision and will operate from the date of this decision. My reasons follow.
Background
The Respondent business
[7] The Respondent is an electrical contracting company owned and operated in Western Australia. 1 It provides electrical installation and maintenance services around Perth.
[8] Mr Neil Carroll, the Operations Manager of the Respondent, stated that his primary duty was to oversee the Commercial Division at the Respondent. The Commercial Division was said to comprise of the entirety of the blue-collar workforce and the Respondent’s operations. 2
[9] Mr Carroll said that the Commercial Division consisted of two banners. The Respondent’s electricians swapped between jobs that fell under either banner as or when required. Those banners were: (a) commercial construction (Construction); and (b) commercial construction and building maintenance (CBM). 3
[10] Mr Ashley Bamford, an Organiser employed by the Union, similarly gave evidence that the operations of the Respondent were divided into two departments; the first, commercial construction and, second, commercial building maintenance. 4
[11] All projects within the Commercial Division were purportedly under the direct responsibility of Mr Carroll. 5 Mr Carroll had six ‘managers’ who reported into him.6
[12] Mr Carroll explained that, depending on the size and complexity of a particular project, an employee with supervisory responsibility would either be labelled as a ‘senior project manager’, ‘project manager’, or ‘service manager’. Underneath these roles were ‘supervisors’, or ‘leading hands’, labelled as such depending on their level of responsibility. 7
[13] According to Mr Carroll, project managers were not on the tools, while supervisors and leading hands were at times on the tools as and when required. 8 Each site had its own supervisor, and sometimes a supervisor looked after two or three sites at a time.9
[14] Mr Carroll’s evidence was that it was for administrative purposes that jobs or projects were usually allocated under the banner of Construction or CBM work, based on the value of the project and capacity of the various teams to undertake the project at the time, taking into account the length of time and complexity of the work involved. 10 He continued that electricians working on jobs under the Construction banner, at any one-time, were labelled as ‘Commercial’ or ‘Comm’, whereas those working under the CBM banner were labelled ‘Comm-Maintenance’.
[15] While there was no hard and fast rule, said Mr Carroll, projects which were larger in value, longer and more complex were likely to be under the Construction banner, while those that were on the smaller, shorter and less complex end of the scale, or those that required maintenance and repair works, were likely to be under CBM. 11 In the interest of keeping all of the Respondent’s electricians with enough work, jobs or projects fell under either banner depending on the capacity of the various supervisors and electricians at the time.12
[16] Mr Carroll said that the existence of the CBM banner could be explained by the necessity for the Respondent to retain an agile workforce for projects with niche requirements. 13 Mr Carroll continued that the Respondent required flexible employees who were able to efficiently perform a task or tasks on a particular site for only the required portion of time, whether this be for one day or for several months.14 Mr Carroll explained that this was more efficient and resulted in lower costs to the client, as the employees could undertake more discrete tasks and service locations more efficiently, and with more flexible levels of staff than would otherwise be possible.15
[17] However, Mr Carroll stated that the Respondent did not have enough of the aforementioned work (discrete tasks and service locations) to justify the existence of a stand-alone division which exclusively undertook such tasks. 16 For that reason, said Mr Carroll, the jobs which fell under the CBM banner were a complement of both big and small projects.17
[18] Examples of the bigger projects were given. Mr Carroll described that some recent CBM jobs had spanned years and there were several projects in the last 12 months that had spanned several months in duration. 18 While there were projects that were long-term, the Respondent may not have required the employees to be on-site full-time, said Mr Carroll. The spare capacity of the teams at the time of allocating the job was the major factor. In addition, the Respondent wanted to keep all electricians across the Commercial Division busy, rather than using labour hire in one area while not having enough work to provide to the electricians in another area. It was for this reason, said Mr Carroll, that all electricians in the Commercial Division were seen by the Respondent as one group of employees.19
[19] Mr Carroll depicted the Respondent’s electricians as one pool of blue collar workers within a flexible structure. 20 He said that the electricians had the same skill sets, were interchangeable and allocated to jobs as and when necessary, depending on the capacity of the employees and operational requirements of the Respondent.21 Sometimes the electricians, whether under the banner of Construction or CBM, would work on the projects at the same time in order to keep projects fully staffed and all electricians busy.22
[20] Mr Carroll said that it was often the case that an employee may be allocated to a job under the Construction banner for a period and then may be required on a job under the CBM banner for a period. 23 Irrespective of the ‘banner’, all employees performed tasks such as installation of conduit, cabling, switchboards, light and power systems, and commissioning.24 Further, electricians, while engaged on a CBM listed job, would also undertake maintenance and repair work as required; however, at times electricians on a Construction listed job may also be required to undertake these same tasks.25
[21] Evidence was given that electricians whether working on a CBM or a Construction project were allocated a ‘production control line item’. 26 This comprised of electrical stages and ‘job cards’ in the form of a run sheet, whiteboard tasks and ‘look aheads’, in addition to an action list on larger jobs once they neared completion.27 Mr Carroll stated that jobs under the CBM banner would, at times, require other duties such as maintenance, repair or variation works, if that formed part of the job to be listed on an employee’s job card.28
[22] Mr Carroll clarified that there was no on-call roster and, if an electrician was required after hours, the availability of electricians would be sought. 29 The hours worked on construction sites were subject to the site’s requirements, inclusive of project timeframes and required work hours.30
[23] Mr Carroll said that fleet vehicles were provided to some employees, who required the usage of a company car to travel between sites or store materials and tools. 31 He gave the example of supervisors, leading hands and other electricians who may be required at multiple sites in one day, or who needed to travel back to the office or workshop to collect materials.32 Mr Carroll noted that the use of fleet vehicles was not exclusive to electricians while they worked under the CBM banner. Furthermore, not every electrician on a CBM job at any one time used a fleet vehicle, said Mr Carroll.33 Where an electrician was on a longer term project under the CBM banner, they would normally use their own car to travel to site and return home, or alternatively ride shotgun in another fleet vehicle if necessary.34
[24] At hearing, Mr Carroll gave evidence that the CBM employees, whilst performing work under maintenance service contracts, also undertook warranty work for the Respondent’s own projects That is, when the site was no longer a construction site, the Respondent provided warranty services in accordance with contractual requirements. After construction was completed, this would entail a quarterly inspection, then six monthly and at 12 months a final defect sign off. A warranty contract could extend to two years for the construction work that the Respondent had completed.
[25] At the time of the petition, Mr Carroll confirmed that the Respondent employed a team of 80 electricians (including apprentices and leading hands), all of whom performed electrical contracting work within the Respondent’s Commercial Division. 35
[26] Mr Bamford’s account of the Respondent’s operations differed to that of Mr Carroll’s account. In respect to the duties and responsibilities of the ‘CBM employees’, Mr Bamford said that they ordinarily included maintenance, repair, and minor installations, variations, and additions to operational and handed over buildings. Such works would be referred to, said Mr Bamford, as ‘service’ and/or ‘maintenance’ work. 36
[27] Mr Bamford presented the duties and responsibilities of the Construction workforce as including: (a) major installations of conduit; (b) cabling and cable carrying equipment; (c) switchboard installation, termination, commissioning and livening up; (d) light, power and emergency light and power systems from start of building construction until commissioning and ultimate handover by the builder as an operational building or premises; and (e) reporting to the commercial construction leading hand allocated to the construction site. 37
[28] Having spoken to members of the Union who worked for the Respondent, Mr Bamford said that there were 70 employees engaged within the Construction workforce. 38 The hours of work for the Construction workforce were subject to the construction site requirements, builder’s demands, and programs. Mr Bamford said that he understood the Construction workforce only worked overtime to meet the demand as required by the construction site.39
[29] In contrast, the CBM employees were allocated to an on-call roster and were required to be on stand-by to work on urgent jobs that fell outside their usual hours of work, said Mr Bamford. 40
[30] It was Mr Bamford’s understanding that the majority of employees in the Construction workforce used their own personal vehicles for transport to and from the construction sites, and were paid a travel allowance in recognition of this arrangement. 41 Mr Bamford said that, in contrast, employees allocated to CBM typically used the Respondent’s fleet vehicles to attend a job to perform work. CBM employees ordinarily stored their work tools in the Respondent’s fleet vehicles,42 whereas the Construction workforce stored their tools on the construction site and did not organise materials required for the job.43
[31] According to Mr Bamford, the employees in the Construction workforce would typically sign on and off a daily attendance/register sheet, which the leading hand or supervisor would submit to the Respondent’s office for pay administration. 44 The CBM employees were typically provided with a ‘runsheet’ or ‘work order’ the night before the work day, said Mr Bamford. This document would inform the employee if they arrived at the Respondent’s office to withdraw material or proceed straight to the job from home.45 It was the case that CBM employees would typically organise the material required for the job or jobs, and would complete their own timesheets.
[32] At hearing, there was reference to electricians under the CBM banner working on a construction site prior to construction getting under way. Evidence given was such that the CBM electricians would undertake the hook up of sheds and site amenities.
[33] Mr Ian Gill (Mr Gill), another Organiser with the CEPU, gave evidence that mirrored that of Mr Bamford concerning the Respondent business. Mr Gill stated that he was responsible for dealing with any industrial issues arising for members, including bargaining and disputes. 46 He provided a witness statement in reply, and in doing so brought to the Commission’s attention an advertisement which was said to have been placed by the Respondent on Seek on 2 September 2020. Mr Gill stated that ‘this advertisement clearly identifies that the Respondent is looking for an electrician to work on construction “projects in the Perth Metro areas”’.47 The advertisement provided:
It is essential that applicants have Commercial experience and are capable of running medium to large commercial Project unsupervised, such as factories, warehouses, showroom, units and apartment developments, for some of Perth’s most reputable Builders. 48
Collection of petitions
[34] Mr Bamford gave evidence of attending several construction sites, where he discussed with the Construction workforce: (a) the majority support determination process; (b) the majority support petition; (c) concerns raised by the Construction workforce who were said to have been intimidated by supervisors; and (d) other industrial issues such as the Respondent cutting penalty rates. 49
[35] Mr Bamford said that whilst visiting the various sites, the Construction workforce had the option to sign petitions and hand them to him directly, or alternatively email the petition directly to Mr Gill.
[36] Insofar as identifying that the workers were employees of the Respondent and part of the Construction workforce, Mr Bamford said that the ones that he spoke to were familiar and identifiable from previous site visits, were wearing the Respondent’s shirts and stated to him that they were directly employed by the Respondent and were eligible to sign the petition. 50
[37] Mr Bamford explained that he visited 4 of the 11 construction sites that the Respondent was engaged on. 51 Those visits occurred during the period of February 2020 and July 2020.52 Mr Bamford gave evidence that he was convinced he was meeting only with the Construction workforce, because he was informed by the employees that they performed work for the Construction workforce, they did not perform work under the CBM banner, and no one identified themselves as part of the CBM.
[38] Similarly, Mr Gill visited construction sites that the Respondent was engaged on. He made 45 visits across 11 construction sites, during the period of March 2019 and July 2020. 53 Mr Gill explained that he knew the workers were employees of the Respondent working under the Construction banner, because the employees all informed them of this and clarified that they did not perform work within the CBM department. Mr Gill detailed the process by which he collected the petitions; namely, by email or by physically receiving signed petitions directly. He said that, in July 2020, he collected six petitions by hand, but in total received 20 petitions physically. There were 18 petitions received by email.54
Legislative framework
[39] Section 236(1) of the Act provides that:
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.
[40] Section 237 of the Act provides that the Commission must make a majority support determination in relation to a proposed single enterprise agreement, if an application has been made under s 236, and the Commission is satisfied of the matters in s 237(2). That section provides that the Commission 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.
[41] In relation to s 237(2)(a), the Commission may work out whether a majority of employees wants to bargain using any method it considers appropriate (s 237(3)).
[42] If the proposed agreement will not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is ‘geographically, operationally or organisationally distinct’ (s 237(3A)).
Applicant’s submissions on fairly chosen
[43] The Union pressed that the employees to be covered by the agreement had been fairly chosen as the Construction workforce was operationally and organisationally distinct. Citing the decision of QGC Pty Ltd v The Australian Workers’ Union (QGC) 55, the Union traversed the observations of the Full Bench noting:
a) “[D]istinctiveness is not absolute and can be a matter of degree”; 56
b) operational distinctiveness refers to “industrial or productive activity” and does not refer to the performance of a “different role, skill, task or function” by an individual employee or group of employees; 57 and
c) organisational distinctiveness refers to the manner in which the employer has organised its enterprise in order to conduct its operations. 58
[44] In respect of the Respondent’s blue collar workforce (noting that part of the Respondent workforce was white collar), the Union stated that Respondent had organised it into (a) commercial construction; and (b) commercial building maintenance. According to the Union, the Construction workforce, was made up of leading hand electricians, electricians, trades assistants and electrical apprentices, all of whom worked together in order to ensure the construction work was completed appropriately. In comparison, the CBM workforce were allocated to provide maintenance services. Both groups reported to different supervisors, which, said the Union, clearly indicated that organisational distinctiveness existed. On this basis, the Union argued that it could not be said that the Construction workforce had been arbitrarily or discriminatorily selected but formed a distinct organisational group within the Respondent’s business.
[45] With respect to its argument that the Construction workforce was operationally distinct to CBM, the Union claimed:
a) they had different work duties, skill sets, rosters and responsibilities, specific to the operational construction work compared to the CBM employees;
b) their span of work hours was pursuant to the construction site requirements, whereas CBM employees did not work such hours;
c) they were the only employees present at construction sites, whereas CBM employees did not work with the Construction workforce; and
d) they reported to different management/supervisors compared to the CBM employees who reported to CBM supervisors.
Respondent’s submissions on fairly chosen
[46] The Respondent submitted that the total number of employees that formed the relevant group numbered 80. It is noted that this in contrast to the Union’s contention that the relevant group numbered 70. The Respondent next submitted that the application had been based upon an incorrect and second-hand understanding of the Respondent’s organisation, operation and total number of employees.
[47] The Respondent submitted that the petition group was not geographically distinct, operationally distinct, or organisationally distinct.
[48] Turning to the most relevant considerations, insofar as not being operationally distinct, the Respondent argued that the Union had aimed to distinguish the provision of electrical services around Perth from the support and administrative services also provided by the Respondent’s employees. The Respondent confirmed that it did not dispute that the white collar activities were distinct. However, in only selecting some of the employees who provided electrical services around Perth, the petition group represented an arbitrary portion of the group of employees who should have been chosen, because the group was not inclusive of all of the employees who provided electrical services.
[49] The Respondent observed that while the Applicant had traversed different work duties, skill sets and responsibilities, these were incorrect and were also in direct contradiction of the principle outlined in QGC that individual tasks performed by employees were not relevant. The differences put forward by the Union, between the Construction workforce and CBM, had, according to the Respondent, been debunked by Mr Carroll, whose evidence had highlighted the high level of similarities between all electricians regardless of whether they were working on projects under the banner of CBM or Construction at any one time.
[50] As to the organisational distinctiveness of the relevant group, the Respondent advanced that the mere performance by a group of employees undertaking different tasks or roles to others may not be sufficient to render it organisationally distinct, where the employees work in an integrated way with other employees to perform a particular business function. 59 The Respondent pointed to the evidence that showed the electricians frequently and regularly swapped between jobs under either the Construction or CBM banners at any one time as and when needed.
[51] Responding to the evidence led by the Union, the Respondent argued:
a) the entirety of its workforce was constituted by employees in the roles of electricians, leading hands, trades assistants and apprentices and as such the Construction workforce was not a distinct organisational group, on this basis;
b) it was not the case that there was one supervisor for jobs under the Construction banner and another for those under the CBM banner – or that employees exclusively report to one supervisor or another; and
c) the nature of the workforce was not such that electricians were ‘temporarily transferred’ from one job or type of work to another. It was a completely fluid workforce in which all electricians were able to be redeployed to any job, project or work site, as and when required.
[52] The Respondent concluded that when weighing up the relevant factors, it was appropriate to have regard to the interests of the employer. On the numbers presented, the making of a majority support determination in the circumstances was not in the interests of the Respondent as it would likely:
a) create a schism between the group of employees that undertake some of the same type of work, resulting in reduced flexibility and productivity of employees and the Respondent’s operations overall;
b) result in increased administrative burden of processing and enforcing different terms and conditions, under separate industrial instruments; and
c) be unnecessarily unfair and exclusive towards portions of the workforce at certain times, who are seen and treated as one group.
Agreed matters
[53] It is uncontentious that the Respondent is a National System Employer (see s 14 of the Act), and the relevant employees are National System Employees (see s 13 of the Act).
[54] The Unionis a bargaining representative of one or more of the relevant employees and it has made an application, as required by s 236 of the Act.
[55] The Respondent had not yet agreed to bargain, or initiated bargaining. The requirement in s 237(2)(b) has therefore been met. 60
The disputed elements and the competing contentions
[56] The major element in dispute concerns the group of employees proposed to be covered by the enterprise agreement. The relevant legislative provisions in this respect are s 237(2)(c) and s 237(3A) of the Act. As noted, the Respondent has taken no issue regarding the integrity of the process undertaken to garner support for the application by way of petitions.
Consideration
[57] A decision as to whether or not the group of employees covered by the agreement was ‘fairly chosen’ involves a degree of subjectivity or value judgment. 61
[58] In the circumstances before me, the proposed agreement does not cover all employees of the Respondent. Therefore, s 237(3A) is triggered and consideration turns to whether the group is geographically, operationally or organisationally distinct.
[59] In Cimeco Pty Ltd v CFMEU & Ors (Cimeco), the concept of ‘fairly chosen’ was discussed by the Full Bench, in the context of s 186(3). It is uncontroversial that guidance can be gleaned on how to interpret and apply s 186(3) from decisions concerning the use of the same expression in ss 237(3A) and 238(4A), and vice versa. 62
[60] The Full Bench in Cimeco, emphasised that whether 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.
[61] However, the Full Bench expressed that by reference to the legislative scheme and context, it could be reasonably 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. 63 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.64
[62] As to the concept of ‘distinctiveness’, it was said by the Full Bench in QGC, 65 that distinctiveness was not absolute and could be a matter of degree. The Full Bench referred to ‘operational’ distinctiveness, expressing that it denoted an industrial or productive activity.66 In QGC, the activity in question was said to be the operation and maintenance of gas extraction and processing infrastructure in a particular location.
[63] In contrast, the word ‘organisation’ is said to refer to the manner in which the employer had organised its enterprise in order to conduct those operations. 67 In this respect, the Full Bench noted that the performance of different roles, tasks or functions to that performed by others, was not of itself a sufficient basis upon which a finding of operational or organisational distinctiveness could be made in that particular case.68
[64] In Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers’ Union of Australia; Australian Municipal, Administrative, Clerical and Services Union 69 the Full Bench set out a number of propositions relevant to interpreting the phrase ‘organisationally distinct’ in s 186(3A). It considered the following relevant:
a) the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations; 70
b) the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct; 71
c) however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; 72 and
d) most businesses have organisation structures which will allow organisationally distinct groups to be identified. 73
Section 237(3A) of the Act – is the group geographically distinct?
[65] I am satisfied that the Respondent employees who form the petition group, namely those that perform work under the umbrella of the Construction workforce are not geographically distinct from other workers employed by the Respondent. It is evident that electricians that otherwise may be considered to work under the banner of CBM, work in the Perth metropolitan area as do the white collar workers.
Section 237(3A) of the Act – is the group operationally distinct?
[66] Adopting the meaning that the Full Bench in QGC gave to ‘operational’, I consider the ‘industrial or productive activity’ engaged in by the Respondent to be the provision of electrical services. Those electrical services are provided under the banners of both Construction and services (services being the provision of electrical services in a predominantly maintenance capacity - CBM).
[67] Having considered the evidence provided it appeared that irrespective of the ‘banner’ of Construction or CBM, all employees performed tasks such as installation of conduit, cabling, switchboards, light and power systems, and commissioning. 74 Although it was apparent that electricians, while engaged on a CBM listed job, undertook maintenance and repair work as required.75 However, it was not clear on an evidentiary basis that the skills or tasks performed under the two banners differed.
[68] As it is, determining that the performance of a different role, task, skill, or function gives rise to a basis for finding a group operationally distinct, can be erroneous. The fact that electricians may perform different tasks or functions according to the banner under which they work may not, of itself, form a sufficient basis upon which a finding of operational or organisational distinctiveness can be made in the circumstances of the present case.
[69] The evidence showed that there was some integration between both CBM and Construction, such that employees may be allocated to a project under the banner of CBM or Construction, dependent on the operational requirements of the Respondent business. Further, the Respondent submitted that sometimes electricians labelled as Construction or CBM worked on projects at the same time, in order to keep projects fully staffed.
[70] Over a period of approximately one year and nine months, 17 out of an 80 strong workforce, had worked under both CBM and Construction banners. 76 On the evidence before the Commission, this meant in relative terms that 21% of the workforce were required to work under either the banner of Construction or CBM over that course of time. As to whether I am persuaded that this demonstrated significant integration between the electricians working under the two banners, I am not so persuaded. That it showed that there was some fluidity, with electricians moving between the two banners over a period, the assertion proves correct.
[71] While the Union spoke to there being supervisors specific to CBM work and those specific to Construction, such an assertion did not pan out from an evidential perspective with regards to direct evidence. Further, contentions were made regarding CBM and Construction embracing different rosters, span of work hours, overtime and on-call regimes, and consisting of different roles (for example, leading hands, apprentices, electricians and the like). However, the evidence again was based on accounts of Mr Gill and Mr Bamford with little in the way of direct evidence to support such contentions.
[72] Having considered all the evidence, including the examples of CBM projects of longer duration, on balance, I am not satisfied that there is operational distinctness.
Section 237(3A) of the Act – is the group organisationally distinct?
[73] I have noted the meaning that the Full Bench in QGC gave to ‘organisation’. It concluded that the term refers to the manner in which the employer has organised its enterprise in order to conduct its operations.
[74] As to the Respondent’s proposition that there is a lack of organisational distinctness concerning the petition group, I have been unable to reach that same conclusion. There is a clear delineation between Construction and CBM within the business.
[75] The Respondent notes that it was for administrative purposes that jobs or projects were usually allocated under the banner of Construction or CBM work, based on the value of the project and capacity of the various teams to undertake the project at the time, and taking into account the length of time and complexity of the work involved. 77 When one considers the evidence of all witnesses, it is abundantly evident that any maintenance work undertaken falls under the scope of the banner of CBM. It is not the case that maintenance work falls under Construction. While this may be considered an operational indicator, in the circumstances, I have found it to be more informative as to whether the group is organisationally distinct. This is because the evidence suggests electricians exercise relatively the same skills, whether working on a construction site or performing maintenance, and ultimately all are providing electrical services.
[76] Further, the electricians within the Respondent business work on jobs either under the Construction banner at any one time – usually referred to as ‘Commercial’ or alternatively CBM. There is evidence to show that both electricians and the Respondent are aware of the delineation. Timesheets provided included in the header ‘Weekly Time Sheet for Commercial Staff’. On one of the timesheets provided, which was for an Apprentice, the time allocation noted whether it was ‘(Day CBM)’ or ‘Comm’. A further timesheet set for one of the electricians set out that the job description was ‘CBM’.
[77] The Respondent gave evidence of the fluidity between Construction and CBM such that there was integration of the two ‘banners’, with electricians moving between the two banners dependent on operational requirements, such as labour resourcing. Evidence was given that service work (maintenance) formed a small percentage of the overall work, with no requirement for all of the Respondent’s electricians to carry out service work. Yet there was a clear separation between the two banners.
[78] Insofar as the management and reporting lines are concerned, the Respondent referred to there being six managers who reported to the Operations Manager. Underneath that structure sat employees with supervisory responsibility who were labelled as a ‘senior project manager’, ‘project manager’, or ‘service manager’, and underneath that level were the roles of ‘supervisors’, or ‘leading hands’, labelled as such depending on their level of responsibility. 78 Having considered all of the evidence, it strikes me that reference to ‘service manager’ refers to an employee who is managing the CBM banner of the Respondent business. The terms were used during the course of the hearing, and in material filed, to separate service (maintenance) from construction.
[79] Mr Carroll gave evidence that project managers were not on the tools, while supervisors and leading hands may sometimes be on the tools, as and when required. 79 Each site had its own supervisor, and sometimes a supervisor looked after two or three sites at a time.80 While this evidence was suggestive of a more ‘generic’ structure, where the organisational structure was not so delineated between Construction and CBM but was ‘project’ orientated, on balance, I am satisfied there is a significant degree of organisational distinctness inherent in the Respondent business that is not cancelled out by the level of integration that has been described, or by the evidence of the lower level supervision, such that it would render the choice of the relevant employees unfair.
Section 237(2)(d) of the Act
[80] Before making a determination, I must be satisfied it is reasonable in all the circumstances to make the determination sought. The Respondent provided several reasons as to why the Commission could not be satisfied that it was reasonable in all the circumstances to make the determination and pressed this as a stand-alone ground, making reference to the petition numbers that had been presented. In reaching the decision made, I have given much thought to those reasons, including the potential impact of the determination concerning a business with 80 electricians.
[81] The matter is finely balanced. However, on the basis of the material before me and taking into account the evidence, submissions and conclusions reached in relation to s 237(3A), I consider it reasonable in all the circumstances to make the determination sought.
DEPUTY PRESIDENT
Appearances:
Ms A Ambihaipahar, Legal Officer for the Applicant;
Messrs J Lilleyman and M McManus of CCIW for the Respondent.
Hearing details:
2020:
Perth (by video);
November 20.
Printed by authority of the Commonwealth Government Printer
<PR723608>
1 Witness Statement of Neil Carroll, [7] (Carroll Statement).
2 Ibid [5].
3 Carroll Statement, [9].
4 Witness Statement of Ashley Bamford, [6] (Bamford Statement).
5 Carroll Statement, [10].
6 Ibid [10].
7 Ibid [11].
8 Ibid [12].
9 Ibid [12].
10 Ibid [13].
11 Ibid [13].
12 Ibid [13].
13 Ibid [13].
14 Ibid [14].
15 Ibid [14].
16 Ibid [14].
17 Ibid [14].
18 Ibid [15].
19 Ibid [17].
20 Ibid [18].
21 Ibid [18].
22 Ibid [23].
23 Ibid [19].
24 Ibid [22].
25 Ibid [22].
26 Ibid [24].
27 Ibid [24].
28 Ibid [24].
29 Ibid [26].
30 Ibid [25].
31 Ibid [27].
32 Ibid [27].
33 Ibid [27].
34 Ibid [27].
35 Ibid [8].
36 Bamford Statement, [9].
37 Ibid [8].
38 Ibid [7].
39 Ibid [13].
40 Ibid [14].
41 Ibid [16].
42 Ibid [18].
43 Ibid [19].
44 Ibid [20].
45 Ibid [21].
46 Statement of Ian Gill, [3].
47 Statement in Reply of Ian Gill, [6].
48 Ibid, Annexure IG-1.
49 Bamford Statement, [23].
50 Ibid [20].
51 Ibid [11].
52 Ibid [11].
53 Statement of Ian Gill, [30].
54 Ibid [50]-[51].
55 [2017] FWCFB 1165.
56 Ibid [42].
57 Ibid [44].
58 Ibid [44].
59 Aerocare, [27].
60 Statement of Ian Gill, [6] – [15].
61 Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 2206, [8]; Aerocare, [26]; Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2015) 228 FCR 297, [60] – [62].
62 Aerocare, [27].
63 Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union[2012] FWAFB 2206, [19].
64 Ibid.
65 [2017] FWCFB 1165.
66 Ibid [44].
67 Ibid [44].
68 Ibid [44].
69 Aerocare.
70 QGC Pty Ltd v Australian Workers’ Union[2017] FWCFB 1165, [44].
71 United Firefighters’ Union v Metropolitan Fire & Emergency Services Board[2010] FWAFB 3009, 193 IR 293, [60].
72 QGC Pty Ltd v Australian Workers’ Union[2017] FWCFB 1165, [44]-[45].
73 Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd[2014] FWCFB 1476, 242 IR 238, [15]; see also National Union of Workers v Cotton On Group Services Pty Ltd [2014] FWC 6601, [15]-[16] (permission to appeal refused in [2014] FWCFB 8899) and ASU v Shine Lawyers Pty Ltd[2017] FWC 4158, [68]-[71] as examples of where the employer’s organisational structure was used to determine organisational distinctiveness.
74 Carroll Statement, [22].
75 Ibid [22].
76 Ibid, Annexure NC02 – provided on a confidential basis.
77 Ibid [13].
78 Ibid [11].
79 Ibid [12].
80 Ibid [12].