Construction, Forestry, Maritime, Mining and Energy Union v BMS Heavy Cranes Australia Pty Ltd

[2023] FWC 696

[2023] FWC 696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Construction, Forestry, Maritime, Mining and Energy Union
v

BMS Heavy Cranes Australia Pty Ltd

(B2023/122)

COMMISSIONER SPENCER BRISBANE, 22 MARCH 2023

Application by Construction, Forestry, Maritime, Mining and Energy Union (105N). Application for a majority support determination – amended application accepted – resolved employer’s objection - application granted.

1. An application pursuant to section 236 of the Fair Work Act 2009 (the Act) was made by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU/the Applicant) for a Majority Support Determination to undertake bargaining for an Agreement proposed to cover employees of BMS Heavy Cranes Australia Pty Ltd (the Respondent) covered by the classification structure, performing work in Queensland and the Northern Territory.

1. The application asserted that the employees to be covered are not currently covered by an enterprise agreement and that the group is fairly chosen as required by section 237(2)(c). It was asserted that the Respondent had refused to commence bargaining.

1. Directions were issued requiring that:

·     the Applicant file an unredacted petition of the employees in support of bargaining;

·     the Respondent file a list of employees described, in the application, to be covered by the proposed agreement; and

·     the Respondent set out whether they objected to the application and if so, on what grounds.

Both the petition and the list were required to be provided to the Commission only.

1. The Respondent confirmed that they objected to the application on the basis that the employees were not sufficiently identifiable as the classification table referred to by the Applicant was not provided, and therefore the employees could not be identified as fairly chosen. The Respondent agreed this objection was remedied when the Applicant filed an amended application as outlined below.

1. The Respondent provided a list of impacted employees, as required by the Directions. The Applicant provided a copy of petitions taken of the employees, as well as a supplementary witness statement from Mr Paul Dunbar, CFMEU Senior Industrial Officer, who had carriage of the petition.

1. After comparing the list of names and signatures on the petition and the list of names provided by the Respondent, it was concluded that a majority of employees, had signed the petition to commence bargaining for an enterprise agreement. The parties were notified of this.

1. Submissions were sought from the parties to determine the application as to whether the majority identified of the group proposing to be covered by the new enterprise agreement, were fairly chosen.

1. In response to the Respondent’s submissions objecting to the application on the basis of the coverage of the agreement, an amended application was provided seeking to amend the coverage of the proposed agreement to those ‘working under the Mobile Crane Hire Award 2020’ in Queensland and the Northern Territory.

1. A response to the amended application was sought from the Respondent, which was provided as follows:

“In the event that the Commission allows the amendment, it will address the grounds of objection outlined in the Respondent’s Outline of Submissions and the Respondent will no longer oppose the Application.

The Respondent does not seek to make further submissions on the Amended Application.”

1. The Commission has discretion to accept an amended application as set out in section 586;

586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.

1. The discretion was exercised pursuant to section 586(a) to accept the amended application on the basis there was no objection and the amendment provided particularisation of the coverage of the proposed agreement. As set out by the Respondent, they did not wish to provide further submissions on the amended application as it cured their objection to the group to be covered, being fairly chosen.

1. Correspondence was also provided to the parties seeking to confirm there was no objection on placing reliance on petitions originally provided, in support of the amended application. The Respondent was invited to respond if this position had been misunderstood. No objection from the Respondent was received.

RELEVANT LEGISLATION

1. The Commission requires the legislative criteria set out in sections 236 and 237 of the Act to be met;

“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.”

1. Pursuant to section 237 of the Act:

“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
g(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. As the amended application was accepted by the Commission, the legislative tests in section 236 and section 237 regarding it have been considered and applied to it.

1. An organisation of employees can apply for a majority support determination provided it is a bargaining representative for one employee who would be covered by the proposed agreement. It is not in dispute that the Applicant, the CFMEU is the bargaining representative of employees who will be covered by the proposed single enterprise agreement.

1. It is also not in dispute that the amended application for a majority support determination specifies the employer that will be covered, being BMS Cranes, and the employees who will be covered by the agreement from the amended application, being those outlined above in satisfaction of section 236 (2)(a) and (b). Accordingly, I must make the determination if I am satisfied of the matters set out in section 237(2) of the Act.

1. The matters in sections 237(2)(a) and (b) are not in dispute. It is not disputed by the Respondent that it has not yet agreed to bargain, or initiated bargaining in respect of the proposed enterprise agreement. Further, after the correspondence from Chambers, that a majority in support had been determined.

1. The amended application clearly set out the group of employees to be covered by the agreement and that this group was geographically and operationally distinct. That is the group of employees to be covered were the mobile crane drivers under the Mobile Crane Hire Award 2020 employed in Queensland and the Northern Territory. The relevant employees are not presently covered by any enterprise agreement.

CONCLUSION

1. There is a majority of employees seeking to bargain, that are fairly chosen; geographically and operationally,[1] and the Respondent does not oppose the amended application. I am satisfied that all of the requirements of section 236 and section 237(2)(a)–(d) of the Act have been met, and that it is reasonable in all the circumstances to make the determination. I therefore make the determination under section 237(1) of the Act. The determination will issue with this decision and will operate from the date of this decision.

1. An Order to this effect [PR760524] will be issued with this Decision.

COMMISSIONER

[1] Woodside Energy Ltd v The Australian Workers Union[2023] FWCFB 44.

Printed by authority of the Commonwealth Government Printer

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