Construction, Forestry and Maritime Employees Union v Aztech Services Australia Pty Ltd

[2024] FWC 1756

[2024] FWC 1756

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236 - Application for a majority support determination

Construction, Forestry and Maritime Employees Union
v

Aztech Services Australia Pty Ltd

(B2024/737)

DEPUTY PRESIDENT DEAN CANBERRA, 4 JULY 2024

Application for a majority support determination.

1. The Construction, Forestry and Maritime Employees Union (CFMEU) has made an application pursuant to s.236 of the Fair Work Act 2009 for a majority support determination. The CFMEU seeks a determination that a majority of relevant employees want to bargain with Aztech Services Australia Pty Ltd (Aztech) for a proposed single enterprise agreement.

1. The application states that the employees who will be covered by the proposed agreement are those employed by Aztech who “perform work in or in connection with the on-site building, engineering and civil construction industry, in classifications set out in the Agreement relating to demolition, in the Australian Capital Territory”.

1. Aztech initially opposed the application on three grounds, namely that the application states an incorrect entity name, the coverage of the proposed agreement is ambiguous and that employees who signed the petition were not properly informed and may have been coerced into signing the petition.

1. In response to the objections raised by Aztech, the CFMEU provided written submissions and amongst other things sought a correction under s.586(a) of the Act to amend the name of the Respondent from ‘Aztech Holding Pty Ltd’ to ‘Aztech Services Australia Pty Ltd’.

1. At a conference held on 27 June 2024, Aztech withdrew the objections concerning the incorrect entity name and validity of the petition. Aztech contended however that the company presently has employees from other states performing work in ACT and it is unclear if the proposed agreement applies to employees who perform work in ACT or employees who are principally based in ACT.

1. Despite the disagreement over the scope of the proposed agreement, it was agreed that for the purposes of being satisfied that there is a majority support the CFMEU would provide the Commission with the petition and that Aztech would provide the Commission with a list of the affected employees. The Commission would then compare the lists and advise the parties the outcome of the comparison.

1. The petition provided by the CFMEU contained 9 signatures and contained the following preamble:

“We, the ACT employees of Azetch Holdings call on the company to meet with our bargaining representative and begin negotiations for a Collective Agreement to cover our work.

We ask the company to immediately begin negotiations with the CFMEU, who is our bargaining representative, for a Collective Agreement under the Fair Work Act.”

1. The CFMEU also provided the Commission with a statutory declaration of Mr Joshua James Bolitho (Lead Organiser and Branch President) who detailed the manner in which the petition was circulated.

1. The list provided by Aztech indicated that there are presently 13 ACT based employees and 4 non-ACT based employees who are engaged to perform work in ACT.  

1. On 3 July 2024 the Commission wrote to the parties indicating that based on a comparison of the names on the petition and the names of persons who are principally based in ACT, there is a majority of employees who want to bargain for a new enterprise agreement and that the Commission proposes to make the majority determination unless there remains any objections from the Respondent.

1. On the same day Aztech responded in the following terms:

   “The Respondent acknowledges that a majority support has been achieved by employees who are principally based in ACT. We submit that should a determination be made, the determination should limit the scope of the Applicant’s application to only apply to employees principally based in ACT. We consider that there has not been a majority support achieved for all employees principally based in other states and territories who perform work within the ACT, and as such the determination should not apply to these employees.”

1. On 4 July the CFMEU replied in the following terms:

“We submit that it is not the purpose of a Majority Support Determination to determine the scope or coverage of any agreement eventually reached between the parties. The scope of any such agreement is a matter for negotiation between the parties and/or the issue of a scope order under s.238 of the Act.

In NUW v Cotton On, [2014] FWC 6601 (upheld by the Full Bench on appeal [[2014] FWCFB 8899), the Commission held:

“[18] In dealing with a scope order it will often be relevant for the Fair Work Commission to consider whether one way of choosing the group to be covered is fairer than an alternative way proposed by another party. The context for considering reasonableness is different to that which applies to majority support and there is also a requirement to take into account the promotion of the fair and efficient conduct of bargaining in considering a scope order. For the purposes of a majority support determination and for the purposes of agreement approval there is no requirement to decide what would be the fairer or the fairest group. There may be a number of alternative groups which could be fairly chosen.

[19]     The scope of an agreement is sometimes the subject of vigorous bargaining and can be a matter for protected industrial action. The Full Bench in Cimeco endorsed the observations of VP Lawler that: “the group of employees to be covered by a proposed agreement - the scope of the agreement- will typically be chosen at or shortly after the commencement of bargaining.” It is obvious that where an employer has refused to bargain any majority support determination will reflect the scope desired by the employee bargaining representative seeking the determination and the actual scope of the agreement which is the outcome of the bargaining may be quite different. In making a majority support determination the Fair Work Commission determines the starting point of the bargaining and the group for the notice of representational rights. The Fair Work Commission is not determining the scope of any final agreement.” (emphasis added)

Further we note that there is no reasonable basis to suggest that geographical scope is not fair or clear.  The proposed scope of the agreement is all work performed in the ACT, the fact that this is not the employer’s preferred scope does not mean that it is not clear and fairly determined.   There may be more than one fair scope, and the obligation on the Commission is not to determine the fairest scope but merely whether this scope sought is fair.

In addition, we note that the Full Bench in BP Refinery[2014] FWCFB 1476  held that:

“[29] The right of employees to bargain collectively is a right recognised in ILO Convention 87 Freedom of Association and Protection of the Right to Organise (1948) and ILO Convention 98 Right to Organise and Collective Bargaining (1949) both of which have been ratified by Australia. It is a right that was foundational to the enterprise bargaining regime first introduced to the federal industrial legislation in 1993. It is implicit in the right to bargain collectively that the preferences of employees as to the appropriate collective should be respected unless there is some good reason under the legislation to decide otherwise – a reason that relates to the conduct an efficiency of bargaining or to the efficient operation of the employer’s business. It is, after all, the employees who are in the best position to determine the collective that best suits their legitimate interests.”

In the circumstances, we submit that the determination should be made on the basis of the coverage originally sought, and not restricted in the manner proposed by the Respondent.”

Relevant legislation

1. 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.”

Consideration

1. Having examined the petition and cross-checked the signatories against the list of employees identified by Aztech, I am satisfied that a majority of relevant employees want to bargain for an enterprise agreement.

1. On the material before me I am satisfied that:

a.   the CFMEU 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 Aztech who will be covered by the proposed agreement want to bargain (s.237(2)(a));

c.   Aztech has not yet agreed to bargain for the proposed 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)).

1. In respect of the incorrect entity name cited in the application, I am satisfied that discretion should be exercised under s.586(a) to amend the name to reflect the correct entity of the Respondent.

1. In respect of the scope of the proposed Agreement, and given the findings in the Full Bench decisions cited by the CFMEU above, the scope of any proposed Agreement is properly the subject of bargaining and not a matter for determination by the Commission in the context of a majority support determination application.  

Conclusion

1. 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 CFMEU. A Determination will be separately issued with this decision.

DEPUTY PRESIDENT

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