Construction, Forestry, Maritime, Mining and Energy Union
[2021] FWC 6388
•19 NOVEMBER 2021
| [2021] FWC 6388 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236—Majority support determination
Construction, Forestry, Maritime, Mining and Energy Union
(B2021/332)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 19 NOVEMBER 2021 |
Application for a majority support determination –Finding that petition is acceptable evidence that employees want to bargain – Finding that the group of employees is fairly chosen – Finding that it is reasonable in all of the circumstances to make majority support determination – Application granted.
On 17 May 2021, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) applied under s.236 of the Fair Work Act 2009 (the Act) for a majority support determination with respect to employees of Carborough Downs Coal Management Pty Ltd (Carborough) who are employed as mechanical and electrical supervisors (Employees) at the Carborough Downs Mine. The Carborough Downs Mine is an underground coal mine in Central Queensland, approximately 25 kilometres east of Moranbah. Carborough is the operator of that mine.
On its Form F30 application, the CFMMEU asserted that in response to communication it had sent to Carborough seeking to bargain for an enterprise agreement to cover the Employees, Carborough Human Resources Manager, Ms Wendy Hiscoe stated that Carborough is “not prepared to agree to bargain or issue a [notice of employee representational rights] to [the Employees].” Ms Hiscoe’s response to the CFMMEU stated the basis for this refusal to be that Carborough has “no indication whatsoever that [the Employees] wish to bargain.” Ms Hiscoe invited the CFMMEU to “proceed to make an application to” the Commission. This application was said to “enable [Carborough] to assess in an appropriate way, whether the relevant majority exists.”
On 19 May 2021 I set the matter down for Mention and issued directions requiring:
The CFMMEU to file an unredacted petition said to have been signed by the Employees in support of bargaining; and
Carborough to file a list of Employees in the group described in the application.
As is common in matters of this type, both the petitions and the list were to be provided to the Commission only. Both parties filed the material required by the Directions. The list of employees provided by Carborough included eight names, all of whom had signed the petition provided by the CFMMEU. On 24 May 2021, I caused correspondence to be sent to the parties advising that upon a comparison of the signatures and names of employees on completed ballot forms against the list of the Employees provided by Carborough, a “clear majority” of the Employees had signed the petition indicating their wish to commence bargaining. I requested the representatives of Carborough to advise if Carborough continued to object to a determination being made on any other grounds.
On 25 May 2021, representatives of Carborough advised that an objection was maintained on the following grounds:
1. The respondent does not consider that the material filed by the union can form a basis for satisfaction that a majority of employees wish to bargain, noting that there is no evidence or explanation given as to the circumstances in which the petition was obtained. At no time has the applicant informed the respondent about how, when and in what circumstances, the signatures on the petition were obtained.
2. The respondent does not consider that the group of employees who would be covered by the agreement was fairly chosen, in that the group is not operationally distinct (or geographically or organisationally distinct).
A Mention took place on 27 May 2021, after which I issued Directions to the parties. Witness statements in support of the Application were provided by Mr Steve Pierce, District Vice President and Mr Mark Riemer, Mechanical Shift Supervisor, employed by Carborough. A statement in opposition to the application was made by Mr Andrew Vella, Executive General Manager Mining and Site Senior Executive for Carborough.
A Hearing was conducted on 17 August 2021 for the purposes of short oral submissions and any cross-examination of witnesses sought by either party. Mr Vella was required for cross-examination and gave evidence at the hearing. Mr Pierce and Mr Riemer were not required for cross-examination and their statements were tendered.
Legislation
An application for a majority support determination is made pursuant to s.236 of the Act, which 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.”
Section 237 of the Act provides as follows:
“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.”
The Commission must make a majority support determination if an application for the determination has been made and if the Commission is satisfied of those matters set out in s.237(2) of the Act. It is not in dispute that an application has been made. Based on the material attached to the application and the evidence of Mr Pierce and Mr Vella, I am satisfied that Carborough – the employer to be covered by the proposed agreement – has not yet agreed to bargain, or initiated bargaining, for the agreement. Accordingly the requirement in 237(2)(b) has been met.
The parties are in dispute about whether the Commission can be satisfied of those matters in s.237(2)(a), (c) and (d).
Submissions and evidence of the CFMMEU
Do a majority of the Employees want to bargain?
The CFMMEU submits that the use of petitions is an accepted means of satisfying the Commission that a majority of employees in a particular group wants to bargain. The Commission has already expressed a preliminary view, on the basis of the signatures on the CFMMEU’s petition and Carborough’s list of Employees that a majority of the Employees wants to bargain. This petition is prima facie evidence that employees signing the petition want to bargain.
In relation to the circumstances in which the petition was generated, the CFMMEU submits that Carborough has not made any allegations, or provided any evidence, of impropriety. In particular, there is no evidence of coercion of misrepresentation. Rather, the CFMMEU says it understands Carborough’s objection to be an alleged lack of knowledge or understanding of the petition. In the CFMMEU’s submission this is not a “valid consideration” for the purposes of s.237 of the Act.
The Act simply requires the Commission to be satisfied that a valid majority exists. There is no requirement concerning bargaining representative to explain or satisfy an employer about the conduct of any petition for the purposes of establishing a majority. The CFMMEU has complied with all directions given to it by the Commission, to enable the Commission to reach the requisite satisfaction concerning a majority.
Regardless, the CFMMEU has provided the evidence of Mr Pierce and Mr Riemer. That evidence, summarised below, is said to establish that those employees that signed the petition understood its significance and was signed without coercion or misrepresentation. Carborough has produced no evidence to the contrary. The relevant evidence, concerning majority, from Mr Pierce is as follows:
Around 22 February 2021, Mr Pierce was contacted by union members within the group of Employees about commencing bargaining with Carborough;
Mr Pierce met with these members at the CFMMEU’s Mackay office;
In that meeting Mr Pierce explained the process to commence bargaining;
The members agreed that they wished to commence bargaining and directed Mr Pierce to contact Carborough to commence bargaining;
Around 31 March 2021, Mr Pierce drafted a petition and provided it to Mr Mark Riemer, to “substantiate [the Employees] intentions to commence bargaining”;
Mr Riemer returned the signed petition to Mr Pierce around 21 April 2021;
Based on “conversations and the meeting of 22 February 2021”, Mr Pierce understands that those who signed the petition wish to commence bargaining.
The relevant evidence, concerning majority, from Mr Riemer is as follows:
For the past two years, Mr Riemer and “the other mechanical and electrical shift supervisors” have been requesting to be covered by an enterprise agreement;
Mr Riemer and the other shift supervisors met with Mr Pierce in relation to commencing bargaining;
The employees requested that Mr Pierce contact the company to request to commence bargaining in relation to their employment;
Sometime in early March, Mr Riemer spoke with Mr Pierce, who conveyed that Carborough did not agree to bargain and advising that the next step would be a petition;
Sometime after this, Mr Riemer met with Mr Pierce who provided a blank petition;
Mr Riemer then met with all the other mechanical and electrical supervisors on his side of the roster and showed them the petition, which they signed;
Mr John Hearn, electrical shift supervisor on the other side of the roster was provided the petition and instructions to speak to the other shift supervisors about the petition and see if they would sign it;
One or two weeks later, Mr Hearn provided Mr Riemer with the completed petition;
Mr Riemer met with Mr Pierce in early April and provided him with the completed petition; and
Mr Riemer has spoken “to all the other shift supervisors several times about this issue and states that each shift supervisor wants their employment covered by an enterprise agreement and to commence bargaining with the company”.
Are the Employees a group that was fairly chosen?
The CFMMEU submits that the Employees in respect of which it seeks the determination are fairly chosen. The CFMMEU accepts that Shift Supervisors employed as ERZ Controllers at the Mine are covered by an enterprise agreement known as the Carborough Downs Coal Mine Shift Supervisors Enterprise Agreement 2021. To the extent that the CFMMEU understands Carborough’s objection to relate to the coverage of other shift supervisors under that Agreement, the CFMMEU submits that in determining whether a group is fairly chosen, the Commission is not deciding whether the group is the fairest group, or whether there is a fairer group to be covered.[1] Rather the task is to determine if the proposed group is fairly chosen. The CFMMEU does not disagree that the Employees might have been included in bargaining for the earlier enterprise agreements and that if they had, that group may have been fairly chosen. However, that does not mean that the Employees are not a group that is fairly chosen on their own.
The factors that the Commission should consider as establishing that the Employees are a group that is fairly chosen are said to be that:
The entire group wishes to commence bargaining;
The group has attempted to agree to commence bargaining with Carborough but Carborough has not agreed to bargain;
The group is not chosen by reference to any “discriminatory characteristics”; and
The group does not undermine collective bargaining of other employees – the other employees have enterprise agreements covering their employment.
In addition, to the extent that the Commission is required to consider whether the group is geographically, operationally, or organisationally distinct, it is not determinative of the inquiry. The CFMMEU submits that the relevant matters are that:
The Employees are employed to work at the same mine as the employees covered by the other enterprise agreements;
Shift supervisors covered by the other enterprise agreements undertake “similar” supervisory roles and functions as the Employees;
These supervisory roles and functions differentiate the Employees (and other shift supervisors) from mine workers, covered by a separate enterprise agreement;
The Employees are differentiated from other shift supervisors because they are not required to be appointed to the statutory role of ERZ Controllers; and
These supervisory roles and functions differentiate the Employees from other mine workers covered by the other enterprise agreements.
The conclusions said to be reached from these considerations is that while the Employees share geographical and organisational traits with shift supervisors, they are operationally “quite distinct” because of the additional, and significant, responsibilities of shift supervisors as ERZ Controllers.
The evidence relied upon by the CFMMEU in this respect is Mr Riemer’s evidence that:
“I am aware that the shift supervisors for production have their terms and conditions covered by an enterprise agreement. The only difference between these supervisors and ourselves is that they have statutory roles under the Coal Mining Safety and Health Act 1999 (QLD) as ERZ controllers and we have engineering roles.”[2]
Is it reasonable in all the circumstances to make the determination?
The CFMMEU submits that reasonableness in the requisite sense is a broad evaluative judgment that is in the nature of a discretionary decision.[3] Matters relevant to that determination are said to be:
The Employees are permanent, full-time employees;
There is no suggestion that their employment is unstable or coming to an end within the life of a “standard” enterprise agreement; and
Other shift supervisors and coal mine workers at Carborough are covered by enterprise agreements, which do not cover the Employees.
Submissions and evidence of Carborough
Carborough submits that the CFMMEU bears the onus of satisfying the Commission that a majority support determination should be made. In doing so, the commission must be positively satisfied of the matters required by the Act. The CFMMEU, it is submitted, has failed to present “sufficient” evidence to enable the Commission to reach that state of satisfaction.
Do a majority of the Employees want to bargain?
Carborough accepts that employee and union petitions may be an appropriate means of establishing a majority position. However, Carborough submits that the Commission “must” consider the evidence of the overall circumstances of the petition, for example, how the petition was “administered and came to be signed”. Carborough points to two decisions of the Commission where the Commission did have the benefit of “positive evidence” concerning the overall circumstances it points to.
The evidence of Mr Pierce and Mr Riemer does not assist the CFMMEU to positively establish that satisfaction because there is no evidence:
That the signatures are in fact the signatures of the named persons;
Concerning the signatures of the persons collected by Mr Hearn;
Concerning the custody of the petition at all relevant times;
About what was communicated to the Employees about the effect of signing;
That reasonable efforts were made to ensure the Employees were “properly” informed prior to signing;
As to what was actually said to the Employees about the petition;
That the Employees “actually” understood what was occurring and what they were signing; and
That the Employees signed of their own free will.
Carborough submits that the Commission should draw an adverse inference concerning the failure by the CFMMEU to call evidence from Mr Hearn.
Carborough asserts that for these reasons the CFMMEU has not positively established to a level that can satisfy the Commission that a majority of the Employees want to bargain. This is even more so given that the CFMMEU was “squarely on notice” that Carborough objected to the application on this ground.
Understandably given its position that it is the CFMMEU’s onus to do so, Carborough has led no evidence in relation to, or in response to, whether a majority of the Employees want to bargain.
Are the Employees a group that was fairly chosen?
Carborough understands the CFMMEU’s position to be that the Employees are not geographically or organisationally distinct, but contends that they are operationally distinct on the basis of the ERZ Controller responsibilities. Carborough asserts that this ground, and other grounds relied on by the CFMMEU, are not a basis for the Commission being satisfied that the group was fairly chosen. Specifically, Carborough submits that the Employees are not operationally distinct for the following reasons:
The existence of ERZ Controller statutory functions is not a basis for finding operational distinctness;[4]
In any event, the Employees and other shift supervisors have statutory responsibilities as supervisors under the Coal Mining Safety and Health Act 1999 (Qld);
Mr Riemer’s evidence is to the effect that apart from the ERZ Controller responsibilities there is no difference between the supervisors; and
Mr Vella’s evidence (dealt with below) is that they are not operationally distinct;
A finding that the group is not geographically, operationally or organisationally distinct tells against a finding that the group is fairly chosen. The fact that the employees might wish to bargain is not a basis for finding that the group is fairly chosen. All applications for a majority support determination are made in circumstances were a group of employees wish to bargain but have not been able to do so.
Likewise, the fact that other shift supervisors are covered by an enterprise agreement is not a basis for finding that the Employees are a group that is geographically, operationally or organisationally distinct from the other supervisors. Carborough employs 39 supervisors. Of those, 31 supervisors have statutory responsibilities as ERZ Controllers – also known as Deputies. There are 8 supervisors, referred to as Trade Supervisors (that make up the Employees), who do not have statutory responsibilities as ERZ Controllers. There are no other supervisors beyond these 39. Other supervisors do work at Carborough Downs mine but are employed by contractors.
Mr Vella lists the duties of supervisors – in both categories – as:
Principally, supervision of other coal mine workers on their shift, and acting as leaders to crew members and ensuring the health and safety of coal mine workers;
Allocation and control of labour and equipment in accordance with safety and production requirements;
Briefings at shift pre-start meetings in relation to state of Mine, hazards and production activities;
Daily reporting of work activities;
Providing feedback on work;
Planning, coordinating and prioritising work activities;
Implementation of safety and health management system within responsible teams.[5]
In addition to the above, ERZ Controllers have responsibilities under the CMSH Act, including performing statutory inspections. All 39 supervisors are “supervisors” for the purposes of the CMSH Act, being authorised to give directions to other coal mine workers in accordance with relevant safety and health management systems.
The work at the mine is arranged in the following way:
a. Shift Supervisors (ERZ Controllers) are allocated to supervise a particular department, for example, there is a Shift Supervisor for the longwall, another Shift Supervisor for Development, and a Shift Supervisor for outbye or bord and pillar. Shift Supervisors (ERZ Controllers) are also responsible for an allocated district in the Mine.
b. Coal mine workers engaged in production activities are allocated to different underground departments, and are supervised by Shift Supervisors.
c. Trades employees work in underground departments and in a general sense, are responsible for servicing and maintaining plant and equipment used in coal mining activities. These trades employees are supervised by Trade Supervisors [the Employees].[6]
Mr Vella goes on to describe how all 39 supervisors work together, on the basis that they:
Both work 7 days on, 7 days off, with 12.5 hour shifts;
Have a close working relationship, reflecting the organisation of work and the need for clear flow of information concerning production and safety;
Have offices in the one building;
Attend the same pre-start meeting and work today on a daily basis.
Is it reasonable in all the circumstances to make the determination?
Carborough submits that it would be unreasonable to make the determination for the following reasons:
The CFMMEU has not provided a “persuasive reason” as to why it is reasonable;
The matters relied upon by the CFMMEU, do not go to the question of reasonableness;
The CFMMEU accepts that the Employees and other supervisors would potentially be a group that is fairly chosen;
The CFMMEU was on notice that bargaining was occurring for shift supervisors in late 2020 and early 2021;
Carborough specifically corresponded with the CFMMEU in relation to that bargaining informing the Union that bargaining meetings had occurred and the CFMMEU had not participated;
Despite asserting that it had coverage of the other supervisors, the CFMMEU did not participate in that bargaining;
In particular, it does not seek to expand the scope of that proposed agreement; and
The CFMMEU sought to commence bargaining in relation to the Employees only a few days before the application for approval of the other supervisors’ enterprise agreement was made;
It would be unreasonable to now put Carborough in a position where it has to bargain for a third enterprise agreement having just concluded bargaining for a shift supervisors agreement;
A third agreement would mean there was a “patchwork” of agreements applicable to the company’s employees with this agreement covering just 8 employees.
This course of events is relevant because:
“…it is inexplicable that [the CFMMEU] did not participate in bargaining for the Shift Supervisors Agreement or seek to expand its scope. Clearly, the interests of the CFMMEU’s members would have been best served by the union participating in bargaining for the Shift Supervisors Agreement. The CFMMEU’s reasons for not doing so remain unexplained. Regardless of the explanation, the fact that the CFMMEU did not take the opportunity to have its members covered by the agreement, when the opportunity was clearly available to it, is a matter that goes to whether it is reasonable in the circumstances for the Commission to make the determination now sought.”
Bargaining for the Shift Supervisors Agreement commenced on 16 November 2020. On 25 January 2021, Ms Hiscoe sent an email to Mr Pierce as follows:
“We refer to the proposed Carborough Downs Coal Mine Shift Supervisors Enterprise Agreement 2021 (Proposed EA) which, if approved by the Fair Work Commission, will replace the Carborough Downs Coal Mine Shift Supervisors Enterprise Agreement 2018 (2018 EA).
The Company has held a number of bargaining meetings for the proposed EA, each of which was not attended by any CFMMEU representatives. The Company has also not been advised that the CFMMEU is the bargaining representative for any of the employees to be covered by the Proposed EA.
The Company intends to put the Proposed EA to an employee ballot…
As you will recall, the application for approval of the 2018 EA was delayed after the CFMMEU made an application to be covered by the 2018 EA…
Please advise as a matter of urgency, and by no later than 10.00am on Wednesday 27th February 2021, if the CFMMEU:1. is a bargaining representative for any employee(s) to be covered by the Proposed EA; and
2. intends to make application to be covered by the Proposed EA.”
Within half an hour, Mr Pierce responded to Ms Hiscoe. Mr Pierce misunderstood Ms Hiscoe to be referring to the mineworkers agreement, for which the CFMMEU had been participating as bargaining representative. Ms Hiscoe clarified that confusion, with Mr Pierce responding that he thought another CFMMEU official had been involved. Ms Hiscoe confirmed her recollection that no CFMMEU official had been involved in the Shift Supervisors Agreement to date. Mr Pierce then sought to clarify that it was the CFMMEU’s view that the CFMMEU had coverage of Shift Supervisors and not APESMA.
Mr Vella then states:
“The CFMMEU did not participate in bargaining, for example, by attending any bargaining meetings, or seeking to expand the coverage of that agreement to include Mechanical and Electrical (Trades) Shift Supervisors. It did not provide any substantive response (for example, raise any matter relevant to bargaining or the scope and terms of the agreement) when advised that the Company intended to put the Shift Supervisors Agreement to ballot.
In relation to bargaining for the Shift Supervisors Agreement, I am aware that APESMA represented the majority of employees covered by that enterprise agreement and participated in bargaining with the Company.
Prior to receiving a letter from Mr Pierce on 27 February 2021, I was not aware that [the Employees] wished to bargain for an enterprise agreement. The matter was not raised [in previous correspondence].”
Consideration
I am satisfied that the CFMMEU is a bargaining representative of employees who will be covered by the agreement the Union proposes. The CFMMEU has made the application for a majority support determination pursuant to s. 236 of the FW Act. The application meets the requirements in s. 236(2) by specifying the employer and employees who will be covered by the proposed agreement.
I am satisfied that a majority of employees employed at the time the application was made, and who will be covered by the agreement, want to bargain. The uncontested evidence of Mr Pierce is that he conducted a meeting with employees to be covered by the proposed agreement and explained to those employees the process of commencing enterprise bargaining negotiations. Mr Pierce states that he was informed that those employees wanted to bargain with Carborough for an enterprise agreement. Mr Pierce is the District Vice President of the CFMMEU and frequently conducts matters in the Commission on behalf of the Union. Mr Pierce has extensive experience in conducting negotiations for enterprise agreements and I accept his evidence. Mr Pierce was not required for cross examination and was not challenged on this evidence.
After corresponding with Carborough requesting to commence bargaining for an agreement to cover the employees Mr Pierce states that he caused a petition to be prepared and provided to a member of the Union, Mr Riemer. It is perfectly reasonable for Mr Pierce to have taken this step. The employees in question work at a coal mine in a regional area. Mr Vella’s evidence is that the Employees work 12.5 hour rotating day/night shifts or permanent day shifts. Given there are eight employees in total, it is unlikely that they gather collectively at work on a frequent basis. A petition administered by members of the Union who have been informed about the purpose of the petition, is an acceptable manner in which to gauge support
Mr Riemer’s uncontested evidence is that, assisted by another member working the alternate side of the roster, signatures were collected. The petition, tendered by the CFMMEU, contains the following statement which employees are requested to indicate agreement with by signing the petition.
“Petition for Supervisors at Carborough Downs
We, the undersigned, wish to commence bargaining with our employer, Carborough Downs Coal Management Pty Ltd, for an Enterprise Agreement to cover our employment as Mechanical and Electrical Supervisors at the Carborough Downs Underground Coal Mine.”
Consistent with my usual practice, I issued Directions requiring that the CFMMEU provide to the Commission an unredacted copy of the petition said to have been signed by employees. I also requested that Carborough provide a list of names of all employees in the group described by the CFMMEU in the scope application.
The CFMMEU provided a petition containing eight signatures, alongside handwritten names and addresses of the signatories. The Company provided a list of eight employees. An analysis was conducted of this information and the names on the lists match. All employees signed the petition. My Associate corresponded with the parties informing them of the results of this analysis and my provisional view that a majority of the relevant employees wanted to bargain. A redacted version of the petition, showing the statement that the signatures indicate agreement with, was provided to Carborough. I consider this to be an appropriate method to work out whether a majority of employees want to bargain in the circumstances of this case including the context in which the employees work, the nature of their work and the number of employees involved.
In my view the statement on the petition is self-explanatory. The employees in question are coal mine workers holding supervisory positions. I do not accept that there is any question as to their capacity to understand plain English and nor do I accept that additional evidence is required to establish that the employees who signed the petition understood what they were signing. It would be surprising if any coal mine worker, much less those employed as supervisors, did not understand the preamble to the petition. Further, I do not accept that additional evidence in relation to what employees were told about the petition is required. Mr Pierce met with employees to be covered by the proposed agreement and provided them with an explanation of what was required to commence bargaining and the petition indicates that employees want to bargain. If issue was to be taken with the number of employees that Mr Pierce met with or his evidence about what he told them, Mr Pierce could have been cross-examined. As previously stated, I accept the evidence of Mr Pierce. Further, the FW Act does not stipulate any steps or prescribed method to form a majority or to satisfy the Commission of a majority. This may be contrasted with provisions concerning reasonable steps to “make” an agreement.
I do not accept the submissions on behalf of Carborough to the effect that there is no evidence that signatures appearing on the petition belong to the named persons. Nor do I accept the criticism of Mr Riemer’s evidence to the effect that it does not establish that Mr Riemer observed persons signing the petition or establish that he had custody of the petition at all relevant times. Mr Riemer states that he met with all mechanical and electrical supervisors on his side of the roster and showed them the petition, which they signed. Mr Riemer states that he provided the petition to Mr Hearn and instructed him to do the same thing. In circumstances where there were eight relevant employees and all of those employees signed the petition, the group whose signatures were obtained by Mr Hearn signed a document that was already signed by their colleagues and every signatory has printed a name and residential address beside the signature, I do not see any reason to doubt the validity of the petition or the signatures on it, notwithstanding that Mr Hearn was not called to give evidence.
I also note that the Respondent did not seek to cross-examine Mr Riemer. If Carborough wished to allege irregularity in relation to the petition or even to put the validity of the petition in issue, then at very least it should have sought to cross-examine Mr Riemer and/or Mr Pierce and put propositions to them upon which such allegations could be based. Alternatively, some evidence of irregularity should have been provided by Carborough to put the validity of the petition into question. There is no basis to find that the petition is other than a genuine indication that the employees who have signed it, being all employees in the relevant group of employees, wants to bargain with Carborough for an enterprise agreement.
In relation to the expression “fairly chosen” whether the group of employees covered by the Agreement is fairly chosen;
the expression “the group of employees covered by the agreement” in s 186(3) refers to the whole class of employees to whom the agreement might in future apply, not the group of employees who actually voted on whether to make the agreement;[7]
the references in s 186(3) and (3A) to whether “the group of employees covered by the agreement was fairly chosen” are, in the case of a non-greenfields agreement made with a group of employees, particularly a small group, references to a choice made by the employer;[8]
a Member’s decision as to whether or not they are satisfied that the group of employees covered by an agreement was “fairly chosen” involves a degree of subjectivity and the exercise of a very broad judgment or value judgment, and in a broad sense can be characterised as a discretionary decision;[9]
in an appeal from a decision of that nature, it will be necessary for the appellant to demonstrate error in the decision-making process of the type identified in the House v The King in order for the Full Bench to set aside the decision;[10]
once it has been determined that an agreement does not cover all of the employees of the employment, it is necessary for the Commission to make a finding as to whether the group of employees who are covered is geographically, operationally or organisationally distinct, and then take that matter into account and give it due weight, having regard to all other factors;[11]
if the group of employees covered by the agreement is 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;[12]
however while the question of whether the group of employees covered is geographically, operationally or organisationally distinct must be evaluated and given due weight having regard to all other relevant considerations, that is not a determinative consideration in that it is not necessary to make a finding that the group is geographically, operationally or organisationally distinct in order to be satisfied that it was fairly chosen;[13]
the selection of the group of employees to be covered on some objective basis, as opposed to an arbitrary or subjective basis, is likely to favour a conclusion that the group was fairly chosen;[14]
the relevant considerations will vary from case to case, but the word “fairly” suggests that the selection of the group covered was not arbitrary or discriminatory, so that for example selection based upon employee characteristics such as date of employment, age or gender would be likely to be unfair;[15] and
it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreement’s coverage and the employees excluded.[16]
Additionally, guidance may be obtained as to how to interpret and apply the expression “organisationally distinct” in s 183(3A) from decisions concerning the use of the same expression in ss 237(3A) and 238(4A). The following propositions are relevant:
the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations;[17]
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;[18]
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;[19] and
most businesses have organisation structures which will allow organisationally distinct groups to be identified.[20]
In relation to the issue of whether the employees are fairly chosen, I do not accept that the fact that there is another Agreement which could have covered the employees but does not, is a basis for finding that they are not fairly chosen with respect to the agreement proposed by the CFMMEU. The fact that the CFMMEU has not explained why it did not participate in the negotiations for the Carborough Downs Coal Mine Shift Supervisors Enterprise Agreement 2021 or seek that the employees subject of the present application be covered by that Agreement, is not relevant to the question of whether they are fairly chosen in the context of the proposed agreement. Nor is it a basis upon which I could find that it is not reasonable in all the circumstances to make the determination.
I assume that Carborough agreed to or proposed the coverage of the Carborough Downs Coal Mine Shift Supervisors Enterprise Agreement 2021 and could have sought that this Agreement cover the employees subject of the present application. It could equally be said that Carborough could have sought that the employees subject of the present application be covered by the Carborough Downs Coal Mine Shift Supervisors Enterprise Agreement 2021. If the supervisors subject of the present application perform virtually identical work to those who are covered by the earlier Agreement, then it is equally inexplicable that Carborough did not seek to include them in its coverage. However, a failure of either the CFMMEU or Carborough to seek that the earlier Agreement cover the employees subject of the present application, is not a basis to refuse to make the determination in circumstances where they unanimously want to bargain. In any event there is an operational distinction on the basis that the shift supervisors in question are not ERZ controllers.
There is also no evidence of unfairness which would result from the determination being made. Both the CFMMEU and Carborough will be put to the effort of bargaining for a third agreement at the Mine and this is not a sufficient basis to refuse to make the determination. There is no evidence that bargaining for a third agreement will be sufficiently prejudicial to the efficient conduct of the Company’s business so as to outweigh the desire of the employees to bargain. The bargaining for the Carborough Downs Coal Mine Shift Supervisors Enterprise Agreement 2021 has concluded and there is no capacity for a scope order to be made to include the employees within the coverage of the earlier agreement. The fact that Mr Vella or other managers of Carborough were not aware that the employees wanted to bargain is also not determinative. The question is whether the Commission is satisfied that this is the case.
For the reasons set out above, I am satisfied that a majority of employees who are employed by Carborough, who will be covered by the proposed agreement, want to bargain. Further, I am satisfied that the group was fairly chosen and that it is reasonable in all of the circumstances to make the determination.
Conclusion
Having formed the requisite satisfaction in relation to the matters in s. 237(2) of the Act, I must make a majority support determination. A determination[21] will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
Mr C Newman for the CFMMEU.
Mr J Hall of Ashurst for the Respondent.
Hearing details:
17 August.
2021.
By Microsoft Teams.
[1] Relying upon National Union of Workers [2014] FWC 6601 at [18].
[2] Statement of Mr Mark Riemer, at [5].
[3] Relying upon Alcoa of Australia Limited v Construction, Forestry, Mining and Energy Union [2015] FWCFB 1832 at [24].
[4] Relying upon APESMA v Mt Arthur Coal Pty Ltd [2018] FWC 2008.
[5] Statement of Andrew Vella at [18].
[6] Ibid at [21].
[7] CFMEU v John Holland Pty Ltd [2015] FCAFC 16, 228 FCR 297 at [34]-[41]
[8] Ibid at [28]-[32]
[9] Ibid at [60]-62]; Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206, 219 IR 139 at [8]
[10] Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206, 219 IR 139 at [8]
[11] Ibid at [10]
[12] Ibid at [19]
[13] Ibid at [15], [20]; Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd [2016] FWCFB 1151 at [31]
[14] Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206, 219 IR 139 at [16]
[15] Ibid at [21]
[16] Ibid at [21]-[22]; CFMEU v Resco Labour & Training Pty Ltd [2012] FWAFB 8461, 228 IR 5 at [34]
[17] QGC Pty Ltd v Australian Workers’ Union [2017] FWCFB 1165 at [44]
[18] United Firefighters’ Union v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009, 193 IR 293 at [60]
[19] QGC Pty Ltd v Australian Workers’ Union [2017] FWCFB 1165 at [44]-[45]
[20] Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476, 242 IR 238 at [15]; see also National Union of Workers v Cotton On Group Services Pty Ltd [2014] FWC 6601 at [15]-[16] (permission to appeal refused in [2014] FWCFB 8899) and ASU v Shine Lawyers Pty Ltd[2017] FWC 4158 at [68]-[71] as examples of where the employer’s organisational structure was used to determine organisational distinctiveness.
[21] PR735942.
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