Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd
[2022] FWC 1319
•31 MAY 2022
| [2022] FWC 1319 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Construction, Forestry, Maritime, Mining and Energy Union
v
BM Alliance Coal Operations Pty Ltd
(B2022/249)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 31 MAY 2022 |
Application for a majority support determination
Overview
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU/Union/Applicant) applies to the Fair Work Commission (Commission) under s. 236 of the Fair Work Act 2009 (FW Act) for a majority support determination with respect to employees described in the Form F30 Application in this matter as persons employed by BM Alliance Coal Operations Pty Ltd (BM Alliance/Company/Respondent) and BHP Coal Pty Ltd (BHP Coal), who perform work at one of the Blackwater, Saraji, Peak Downs, Goonyella Riverside, Norwich Park, Gregory or Crinum Mines (Mines), and who are employed to perform work as a Production Employee, Engineering Employee or “Open Cut Observer”, or any equivalent position or classification. The application is made against BM Alliance.
The parties were directed to provide information to the Commission only to enable a provisional view to be formed as to whether prima facie there is evidence that a majority of the relevant employees wish to bargain, before the parties are put to the cost and effort of filing material in relation to any other objections the Respondent may have to the application. The CFMMEU was directed to provide a redacted copy of a petition referred to in the application and said to have been signed by a majority of the employees to be covered by the proposed agreement. BM Alliance was directed to provide a list of employees who would be covered by the proposed agreement as described in the CFMMEU’s application.
The parties provided the material as directed. The list of employees provided by BM Alliance initially contained the names of 47 persons said to be employed as “Open Cut Overseers”. It is not disputed that these employees are the subject of the CFMMEU application and the term “Open Cut Observer” used by the CFMMEU was an error. BM Alliance also stated that its best belief was that it does not employ any persons in the capacity of Production or Engineering employees as those terms are used in the Black Coal Mining Industry Award 2020 (BCMI Award).
Following a Mention/Directions hearing on 13 April 2022, I issued a Statement and Directions in which I indicated that based on the material filed by the parties in accordance with the Directions the petition provided by the CFMMEU contains the names, addresses and signatures of 31 employees. However, the names of 14 persons who have signed the petition provided by the CFMMEU do not appear on the list of employees provided by BM Alliance.
The request in the Petition as signed by employees is in the form of a statement as follows:
“By signing this petition, I confirm that I:
a.am employed by BM Alliance Coal Operations Pty Ltd (“BMA”) as an Open Cut Overseer at one of the Blackwater, Saraji, Peak Downs, Goonyella Riverside, Norwich Park, Gregory or Crinum Mines (together the “Mines”);
b.want to collectively bargain for a single enterprise agreement for the terms and conditions of employment of all production and engineering employees and OCOs employed by BMA and BHP Coal Pty Ltd at the Mines; and
c.if the Fair Work Commission is unable or unwilling to issue a majority support determination for a single enterprise agreement with BMA and BHP Coal Pty Ltd, I want to collectively bargain with BMA only in respect of the OCOs.
I acknowledge that if BHP Coal Pty (sic) and BMA does not agree to our request, this petition may be used as evidence by the CFMMEU (Mining and Energy Division) in support of a Majority Support Determination application under s. 236 of the Fair Work Act (Cth) 2009.”
To streamline the process of considering the CFMMEU’s application, I proposed that the Commission provide a list setting out the names of those 14 persons, to the Union only, to assist in identifying the reason for the discrepancy and that the redacted petition be provided to BM Alliance. My proposal was based on the fact that, as evidenced by the request in the petition, under which employees have placed their signatures and other information, the persons whose names would appear on the list I proposed to provide to the CFMMEU, the employees have no issue with the CFMMEU retaining this information and using it in Commission proceedings. In particular, the request in the petition indicates that the signatories acknowledge that the CFMMEU may use the petition as evidence in support of a majority support determination application under s.236 of the FW Act.
BMA Alliance objected to the Commission providing the information sought by the CFMMEU. The parties filed written submissions on this point and indicated their agreement that the issue be determined based on the material filed. This decision concerns whether the material sought by the CFMMEU should be provided by the Commission.
After making further inquiries, BM Alliance provided updated information stating that it employs four persons in the capacity of Production Employee as that term is used in the BCMI Award and that a further person employed as an Open Cut Overseer had also been identified. As a result, the list of employees provided by BM Alliance totals 52. To avoid the possibility of those employees being identified I do not at this stage, intend to provide information as to whether this alters the numbers of persons who have signed the petition and who are not on the list provided by BM Alliance, and confine my consideration to the question of whether the names of the 14 employees who have signed the CFMMEU petition and whose names do not appear on the list of employees provided by BM Alliance, should be provided to the CFMMEU.
Submissions
BM Alliance contends that neither the Respondent nor the Commission have any knowledge of how the petition came into existence, when it was made, how and upon what basis the signatures were collected and why it can be relied on, including whether the signatures are authentic. BM Alliance points to the fact that 26 signatures on the petition appear to have been affixed over three months prior to the CFMMEU’s application and 4 were apparently affixed over two months prior to the application.
No explanation is provided as to why a petition signed by less than a majority of even the smallest cohort, 84% of them three months ago, is or can now be proffered as current evidence of a majority wishing to commence bargaining. While recognising that the Commission can make decisions as to how a matter is to be dealt with, and inform itself in a manner as it considers appropriate, the discretion is not unfettered and must be exercised in a manner that achieves fairness. BM Alliance submits that s. 236 of the FW Act falls within Chapter 2 of Part 2 – 4 and that the Objects of that part include to provide a fair framework for collective bargaining. BM Alliance also submits that the proper, fair, transparent and just time for the CFMMEU to be checking the veracity of its application is not four months after the petition began to circulate; three months after the 84% of signatures were affixed; seven weeks after the last signature was apparently affixed and three weeks after the application is filed claiming the petitions demonstrate majority support.
BM Alliance further submits that the process proposed by the Commission assumes that there is a material discrepancy in the documentation provided by the Respondent and that there is no available basis for such an assumption. Rather, all of the objective facts indicate that the source of the discrepancy is the Applicant’s reliance on unchecked and outdated data that it should have checked before filing its application.
It is also contended that the Commission’s proposal unfairly allows the CFMMEU to access documentation filed in accordance with the Commission’s direction which was to be provided only to the Commission, in circumstances where BM Alliance would not have access to the Union’s data to test the accuracy of the petition. BM Alliance also has an interest in ascertaining whether there is a valid majority and considering its response to the petition. The Company provided a list of employees to the Commission on a confidential basis and on the understanding it would not be provided to the CFMMEU. The Union does not need to be provided with information from the Company’s list to verify or undertake further enquiries about its own petition and there is nothing onerous in requiring the CFMMEU to validate the whole list of signatories.
BM Alliance also submitted that if the Commission is minded to provide the details to the CFMMEU, then without prejudice to its objection to that course:
(a)The details should only be provided confidentially to the CFMMEU’s lawyers;
(b)The Respondent’s lawyers should be confidentially provided with the unredacted petition to verify the addresses and signatures of the 14 persons and the 17 persons identified by the Commission; and
(c)Lawyers have professional obligations to protect the confidentiality of the material from their respective clients or alternatively can agree on appropriate confidentiality arrangements with the Commission.
The CFMMEU submitted in reply, that BM Alliance was seeking to conflate a variety of purported substantive issues with a straightforward preliminary question about whether the list of 14 individuals who are on the Union’s petition but not on the Respondent’s list, should be provided to the Union. BM Alliance foreshadowing objections to the application in a directions hearing does not constitute those objections being made. The complaints made by BM Alliance about the petition can also be disregarded as the matter is not yet at a stage where the way the petition was gathered needs to be established. In any event the Respondent has not itself provide an explanation about how employees who signed the CFMMEU’s petition are not on the Respondent’s list, nor has it provided any information about how the list was compiled.
The CFMMEU and the Commission are entitled to investigate that issue. The suggestion of BM Alliance that the CFMMEU can do so now by simply speaking to all the employees on the petition, ignores the practical realities of the industry. The employees work shift work and are employed on various remote mine sites. The employees signed a petition confidentially. It is no simple matter for the CFMMEU to have conversations with 31 persons in such circumstances. This is particularly so when weighed against the absence of prejudice to BM Alliance and the lack of any substantive basis of its objection to the information being provided.
According to the CFMMEU, there is no assumption being made that there is a material discrepancy in the list of employees provided by BM Alliance. All the CFMMEU seeks to do is investigate the discrepancy. It may well do so and come to the view that the petition does not demonstrate a majority and then no longer seek to rely on it. If it took that course, the complaints made by BM Alliance about the petition would fall away. The CFMMEU also submitted that it is absurd to suggest that the proposal allows the Union to access documentation confidentially filed. The provision of 14 names from the Union’s own petition involves no provision of the Respondent’s information at all – it is the CFMMEU’s information. Even if this was not the case, BM Alliance suggesting that those persons are not employees, is not confidential. The employees signed the petition on the basis that they were within the group of employees. There now seems to be some doubt about that and the CFMMEU should be permitted to explore this in a straightforward way.
The CFMMEU opposed the alternative course proposed by BM Alliance contending that it should be allowed to make enquiries if members without incurring unnecessary legal costs. The proposal of BMA Alliance would also involve relevant members receiving a cold call from a firm of solicitors without notice, about the confidential matter of their support for enterprise bargaining. Further, if the CFMMEU wanted to put on statements from any of those employees in relation to why they maintain they are in the cohort, this could not be sensibly done using the Respondent’s proposal.
No issue of confidentiality arises when the identification of employees to the CFMMEU, who have signed a petition gathered by the CFMMEU, is an entirely straightforward and common-sense proposal which will allow the parties and the Commission to get to the heart of this preliminary issue in a way that is fair and just. BM Alliance will suffer no prejudice from what is proposed and will be free to bring any objection it wishes to the substantive application, if the matter proceeds. BM Alliance will also be able to fully test the accuracy of the petition and the process adopted if it wishes to do so.
In further reply submission, BM Alliance reiterated that at present there is no humanly possible way for the Company to explain how persons who signed the petition are not on its employee list. BMA Alliance does not know who has purportedly signed the petition. BM Alliance disputed the assertion that the mines are remote and contended that if the employees are members of the CFMMEU then the Union’s solicitors will have access to contact details through the persons and the Union’s membership rolls. BM Alliance maintained that the CFMMEU does allege a discrepancy in the Company’s list by stating that the employees signed the petition on the basis that they are within the group of employees and that there now seems to be some doubt about that.
In response to the grounds of the CFMMEU’s opposition to the alternative course proposed by BM Alliance, it was submitted that first, the CFMMEU should have made enquiries it now wishes to make, when filing the application in the Commission, rather than relying on historical information as current evidence of majority support. Second, it ignores the fact that someone must make a cold call, without notice, to 14 employees. Thirdly, if as the CFMMEU implies or asserts, the Respondent’s material is inaccurate, its solicitors are still going to have to put on statements from those persons. Finally, each of the signatories signed the petition on the basis that it may be used as evidence by the CFMMEU in the Commission. Nowhere does any signatory refer to the confidentiality of their support for enterprise bargaining and to the contrary, they place no limitations on the use of the unsigned petitions as evidence in the Commission. BM Alliance contended that its alternative proposal is more consistent with the stated intent of the signatories than the Applicant’s submissions.
In response to the contention that it would suffer no prejudice from the list being provided to the CFMMEU, BM Alliance submitted that the CFMMEU is seeking to exploit a forensic advantage to do what it should have done before filing the application asserting current majority support based on information up to four months prior to the application. Rather than asserting some discrepancy in the Respondent’s material without any reasonable basis for doing so, if it has the faith in its evidence it implies, the CFMMEU can do as it says the Respondent should do and fully test that in substantive submissions.
Consideration
I have determined to provide the list of employees who have signed the CFMMEU petition, but whose names do not appear on the list of employees provided by BM Alliance, to the CFMMEU. I do not accept the arguments of BM Alliance put in opposition to this course of action for the following reasons. Issues of how the petition came into existence, when it was made, how and upon what basis the signatures were collected and why it can be relied on and any issue with the authenticity of the petition, can be dealt with at a full hearing if the CFMMEU wishes to pursue its application.
Similarly, issues of the point in time at which the petition was signed and whether it can be relied on as a present indication of majority support can also be dealt with at a hearing should the CFMMEU decide to press the application. There is nothing unfair about providing the list of names to the CFMMEU. To do so will streamline the process of ascertaining the reasons that the signatories are not included in the list of employees provided by BM Alliance. There has been no submission that there is any discrepancy in the material provided by BM Alliance. The Company has provided a list of employees who meet the description in the application by the CFMMEU of employees who will be covered by the proposed agreement.
Neither the Commission, nor the CFMMEU, have called into question the information provided by the Company. However, the present situation is that 14 persons have signed a petition ostensibly asserting that they are employed by BM Alliance as an Open Cut Overseer, at one of the nominated mines. The names of those persons do not appear on the list of persons provided by BM Alliance who are employed as Open Cut Overseers or Production or Engineering employees as those terms are used in the BCMI Award.
There is doubtless an explanation for this, and I see no reasonable basis for not providing information which will enable the CFMMEU to narrow its enquiries to those persons, in an endeavour to establish whether there is a basis for its application for a majority support determination. The employees concerned may be working shifts which will make contact difficult, and I see no reason for the CFMMEU to be put to the effort of contacting all signatories. It is also relevant that the persons concerned have stated that the are employed at the Mines as Open Cut Overseers, and as such are skilled mine workers with statutory obligations, and it is reasonable for the CFMMEU to accept at face value that those persons are capable of understanding the meaning and import of the petition, when collecting the signatures on the petition.
Contrary to the submission of BM Alliance, the information is not information that was provided by the Company to the Commission on a confidential basis. The names, addresses and signatures of the relevant persons are on a petition that was sent to the Commission by the CFMMEU. Those names do not appear on the Company’s list provided to the Commission. BMA has no basis to make submissions about the privacy of persons whose names do not appear on the list of employees it provided to the Commission, particularly in circumstances where the names of those persons appear on the list provided by the CFMMEU.
The relevant persons have authorised the CFMMEU to use the information in proceedings before the Commission, and this is the purpose for which the information will be used, by the provision of the names of the 14 persons to the CFMMEU. In my view the privacy of the persons whose names will appear on the list to be provided to the CFMMEU is not an issue given that the information will be provided by the Commission to the CFMMEU, in circumstances where the relevant persons have already provided their details to the Union and authorised the Union to use that information as evidence in proceedings before the Commission. The manner of the CFMMEU providing the information to the Commission is a matter for the CFMMEU and the request in the petition does not provide the Union with carte blanche to disclose the names of those persons without seeking their views in this regard. The Union cannot seek the views of those persons absent information about their identities.
There is no basis for BM Alliance being provided with the names of the persons, particularly at this preliminary stage, given there is no apparent connection between the persons and the Company other than their belief that they are employees of BM Alliance. BM Alliance does not assert that there is another employing entity of persons within the description in the CFMMEU’s application. I am unable to identify any prejudice or unfairness to BM Alliance which would result from the provision of the 14 names to the CFMMEU. BM Alliance knows the net effect of the information currently held by the Commission and its right to press an objection to the determination being made is not affected by the provision of the list to the CFMMEU.
Finally, I am of the view that the provision of the information is consistent with the Object of the FW Act in relation to bargaining and in particular, to provide a simple, fair and flexible framework that enables collective bargaining in good faith. There is no evidence of bad faith or irregularity with the petition and it is at least equally probable that there has been a misunderstanding on the part of the 14 employees about the identity of their employer. There is nothing to suggest that those employees do not wish to bargain or have been misled or coerced into signing a petition.
Conclusion
In all the circumstances, I intend to provide to the CFMMEU only, the list of 14 persons who have signed the CFMMEU’s petition and whose names do not appear on the list of employees provided by the Company. The list will be provided to the CFMMEU only, concurrent with this Decision. The CFMMEU is requested to provide advice by email to [email protected], as to whether the application for a majority support determination is pressed, by no later than 4.00 pm on Tuesday 7 June 2022.
DEPUTY PRESIDENT
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