Construction, Forestry, Maritime, Mining and Energy Union v Taurus Commercial Interiors Pty Ltd

[2022] FWC 1004

[2022] FWC 1004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Construction, Forestry, Maritime, Mining and Energy Union
v

Taurus Commercial Interiors Pty Ltd

(B2022/212)

DEPUTY PRESIDENT COLMAN MELBOURNE, 3 MAY 2022

Application for majority support determination – application granted

1. This decision concerns an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) under s 236 of the Fair Work Act 2009 (Act) for a majority support determination. The CFMMEU contends that a majority of relevant employees who would be covered by a proposed enterprise agreement want to bargain with their employer, Taurus Commercial Interiors Pty Ltd (Taurus). The employment of the employees in question is covered by the Timber Industry Award 2020 (Award). The proposed agreement would apply to employees who undertake work manufacturing commercial joinery at the company’s premises at 15 Jersey Drive, Epping, Victoria.

1. Taurus initially opposed the application. I issued directions for the filing and service of materials and listed the application for hearing. Following the filing of the CFMMEU’s materials, the company advised that it no longer objected to the application, but did not consent to it, and that it did not propose to file any materials. The parties agreed that the Commission should determine the matter on the papers. I consider it appropriate to do so.

Statutory framework

1. Section 237 of the Act provides that the Commission must make a majority support determination in relation to a proposed single enterprise agreement if an application has been made under s 236, and the Commission is satisfied of the matters in s 237(2). That section provides:

“(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.”

1. In relation to s 237(2)(a), the Commission may work out whether a majority of employees want to bargain by using any method it considers appropriate (see s 237(3)).

1. If the proposed agreement will not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is ‘geographically, operationally or organisationally distinct’ (s 237(3A)).

Consideration

1. The CFMMEU is a bargaining representative of the employees in question and is entitled under its registered rules to represent the industrial interests of those employees. The CFMMEU’s application specifies the employer and employees who will be covered by the agreement. A proper application has been made under s 236 and the first requirement for the making of a majority support determination has therefore been met.

1. The first matter prescribed by s 237 for consideration is whether the Commission is satisfied that a majority of the relevant employees who are employed by the employer at a time determined by the Commission want to bargain (s 237(2)(a)). The CFMMEU filed in the Commission a petition signed by employees, comprised of a single sheet headed ‘Majority Support Petition’. The document commences with a statement that reads: ‘We, the undersigned employees of Taurus Commercial Interiors Pty Ltd, Epping site, who are covered by the Timber Industry Award 2020 want to bargain for a new enterprise agreement.’ Thirteen handwritten names, signatures and dates appear on the petition. The position of each employee is also indicated. A redacted copy of the petition was served on Taurus.

1. On 1 April 2022, in accordance with my directions, Taurus submitted a list of employees covered by the Award who are employed to undertake work manufacturing commercial joinery at the company’s Epping facility. The list contains the names and positions of eighteen employees. All thirteen persons who signed the CFMMEU petition appear on this list.  

1. I note that the Commission’s power to determine a time under s 237(2)(a) is confined to the question of which employees are employed by the employer at a particular time. The Commission’s task is to fix in time the cohort of employees from which the question of majority is to be determined. The Commission has a discretion to determine this date, but not the date on which a majority wishes to bargain. The latter question is to be assessed as at the date of the decision, using the most recently available information (see Kantfield Pty Ltd v AWU[2016] FWCFB 8372 at [35] to [37], and NUW v Lovisa Pty Limited[2019] FWC 2571 at [30] to [32]). The time that I have determined for the purposes of s 237(2)(a) is 1 April 2022, being the date that Taurus submitted its list of relevant employees to the Commission.

1. I am satisfied that a majority of employees employed by the company on 1 April 2022 and who will be covered by the proposed agreement – 13 of 18 – want to bargain with Taurus for an enterprise agreement. For the purposes of s 237(3), I consider that it is appropriate for the Commission to work out whether a majority of employees wish to bargain by reference to the petition submitted by the CFMMEU and the company’s employee list. In reaching this conclusion, I have had regard to the witness statement of Mr Darren Connelly, an organiser of the CFMMEU, in which he explained the process by which the signatures of the employees were obtained. I note that the employee signatures appearing on the petition are all dated 10 March 2022. I consider that the wording of the petition document clearly conveys that the signatories want to bargain.

1. In its correspondence to the Commission advising that it no longer opposed the application, Taurus noted that the petition document appeared to have been amended after it was signed by the employees, in that certain words appearing in the introductory statement at the top of the document had been crossed out, with the words ‘Timber Industry Award 2020’ inserted in their place, in a different font. A change was plainly made to this document, but there is nothing to suggest that the change was made after employees had signed the petition, and in any event, it is clear that the employees concerned are in fact covered by the Award. There is nothing untoward about the amendment to the petition document.

1. As to the other requirements of s 237(2), there was no dispute that Taurus has not yet agreed to bargain or initiated bargaining, and that the requirement in s 237(2)(b) has therefore been met. I consider that the group of employees who will be covered by the proposed agreement was fairly chosen, as required by s 237(2)(c). In this connection, I have taken into account that the group is in my view operationally distinct, as it comprises employees performing particular functions that are covered by the Award (see clause 4.2(d)(iii)). Finally, I am satisfied that it is reasonable in all the circumstances to make the determination (s 237(2)(d)). No contention to the contrary was raised by Taurus, nor can I see any basis for such a contention on the materials before me.

Conclusion

1. As I am satisfied of the matters set out in s 237, I am required by s 237(1) to make a majority support determination. The determination is issued separately in PR741160.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

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