Construction, Forestry, Maritime, Mining and Energy Union v MSS Strategic Medical and Rescue Pty Ltd
[2022] FWC 910
•20 APRIL 2022
| [2022] FWC 910 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236—Majority support determination
Construction, Forestry, Maritime, Mining and Energy Union
v
MSS Strategic Medical and Rescue Pty Ltd
(B2022/245)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 20 APRIL 2022 |
Application for a majority support determination – employer does not agree to bargain – determination made.
The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application pursuant to s.236 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (Commission) on 28 March 2022 for a majority support determination concerning a group of employees employed by MSS Strategic Medical and Rescue Pty Ltd (MSS).
The CFMMEU have proposed an enterprise agreement that would cover emergency services employees employed by MSS at AGL’s Loy Yang A site in the Latrobe Valley, Victoria where MSS has recently taken over the contract to provide emergency services.
The matter was listed for Mention on 4 April 2022 following which directions were issued for the filing of material by the CFMMEU and MSS by 12 April 2022 and 19 April 2022, respectively. The matter was also listed for hearing on 26 May 2022.
On 12 April 2022, the CFMMEU filed material in accordance with the directions including a confidential copy of a Petition of employees of MSS who indicated that they wished to bargain with MSS.
On 19 April 2022, MSS filed a confidential copy of a List of Employees and requested that the Commission review the List of Employees and the Petition to determine if a valid majority of employees who would be covered by the proposed agreement wanted to bargain for an agreement. MSS indicated that if the Commission were satisfied that a majority of employees wanted to bargain, it was likely that MSS would not oppose the CFMMEU application.
I subsequently reviewed the Petition and List of Employees and a response to the parties from my chambers was provided on 19 April 2022 in the following terms;
“Dear parties,
In accordance with the Respondent’s request, the Deputy President has reviewed and compared the Applicant’s petition and the Respondent’s List of Employees, each provided on a confidential basis.
In response to the questions posed by the Respondent, the Deputy President provides the following answers;
1. When regard is had to the Respondent’s Employee List, is each person named in the Petition, and who has signed the Petition, also listed on the Respondent’s Employee list? – Yes
2. Having regard to the identifiable employees who have signed the Petition, are there more than half of the number of employees listed on the Respondent’s Employee list who have signed the Petition? – Yes
The Deputy President is satisfied on the basis of the Petition and List of Employees that a majority of employees employed by the Respondent who would be covered by the proposed agreement want to bargain.”
On receipt of the above email, MSS confirmed that they did not oppose the CFMMEU application, were content for the application to be determined on the papers and requested that the hearing be vacated. The CFMMEU consented to that proposed course of action following which the hearing was vacated.
Having regard to the above I intend to now determine the matters on the papers.
Legislative framework
The relevant sections of the Act in relation to this application are sections 236 and 237. They set out the matters about which the Commission must be satisfied before making a majority support determination, in the following terms:
“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.”
I will deal with each of the legislative requirements in turn.
Consideration
Section 237(1)(a)
It was not disputed that the CFMMEU has made an application for a majority support determination. In relation to the requirement under s.236(1), that the application is to be made by a bargaining representative of an employee who will be covered by a proposed single enterprise agreement, it was not contested that the CFMMEU, by virtue of s.176(1)(b) of the Act, is an employee organisation who is a bargaining representative of an employee who is a member of the CFMMEU.
I am satisfied that an application has been made by a bargaining representative of an employee who will be covered by the proposed agreement, namely, the CFMMEU (s.237(1)(a)).
Section 237(2)(a) – a majority of employees want to bargain
I now turn to the question as to whether I can be satisfied that there is a majority of employees that want to bargain.
The CFMMEU provided a petition that contained 16 signatures that were collected in the period 27-29 March 2022. Mr Andrew Smith, who is employed as an Industrial Officer with the CFMMEU, gave evidence regarding the collection and custody of the Petition.
MSS provided a list of names of current employees to enable a cross check and verification of the Petition list names. The List of Employees, dated 19 April 2022, identified that there were 24 employees currently engaged by MSS on the AGL Loy Yang A site.
Having reviewed the evidence, I am satisfied that the custody and control of the petition list was appropriately managed by the CFMMEU, and no evidence was presented that raised any concerns regarding the manner in which the petition was conducted.
I have also compared the list of names on the CFMMEU Petition, and the List of Employees provided by MSS. I am satisfied that as at 19 April 2022 there were 24 employees that would be covered by the proposed agreement. Of those 24 employees, 16 employees signed the CFMMEU Petition.
I am satisfied that as at 19 April 2022 a majority of employees who would be covered by the proposed agreement expressed a clear desire for bargaining to occur (s.237(2)(a)).
Section 237(2)(b) – employer has not agreed to bargain nor initiated bargaining
It was not contested that MSS has not yet agreed to bargain with its employees for an enterprise agreement and that it has not yet initiated bargaining for an enterprise agreement.
The Commission is satisfied that the employer has not agreed to bargain nor initiated bargaining (s.237(2)(b)).
Section 237(2)(c) – fairly chosen
It was not contested that that the group of employees who would be covered by the proposed agreement was geographically, operationally and organisationally distinct. According to Mr Smith, the proposed agreement would also have the same coverage as industrial instruments that historically applied to previous contractors providing emergency services at the AGL Loy Yang A site.
I am satisfied that the group of employees who will be covered by the proposed enterprise agreement has been fairly chosen (s.237(2)(c)).
Section 237(2)(d) – reasonable in all the circumstances
No other matters were raised that indicate that it was not reasonable in all the circumstances to make the determination
I am consequently satisfied that it is reasonable in all the circumstances to issue the majority support determination as sought by the CFMMEU (s.237 (2)(d)).
Conclusion
I am satisfied that a majority of the relevant employees who will be covered by the proposed agreement wish to bargain for an enterprise agreement as at 19 April 2022. I am also satisfied that each of the subsections (b), (c) and (d) of s.237(2) of the Act have been made out. As a result, pursuant to s.237(1) I must make a majority support determination which will operate from the date of this decision.
The determination in this matter will be issued separately.
DEPUTY PRESIDENT
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