[2018] FWC 4444

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Construction, Forestry, Maritime, Mining and Energy Union
v
The Trustee for Hemmant Concrete Trust T/A Hemmant Concrete(B2018/618)

DEPUTY PRESIDENT DEAN

SYDNEY, 6 AUGUST 2018

Application for a majority support determination.

[1] On 18 July 2018 the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act) with respect to employees of The Trustee for Hemmant Concrete Trust T/A Hemmant Concrete (Hemmant Concrete) employed in New South Wales.

[2] The CFMMEU seeks a determination that a majority of these employees, who are presently covered by the Building and Construction General On-site Award 2010, want to bargain with Hemmant Concrete for an enterprise agreement.

[3] The application was not opposed by Hemmant Concrete. In the circumstances, I am satisfied that the application can be determined ‘on the papers’.

[4] The relevant provisions of the Act are contained in ss.236 and 237 of the Act:

“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

(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.”

[5] On 26 July 2018 the Commission issued Directions for the CFMMEU to file supporting material including the petition on which it relied, and for Hemmant Concrete to file a list of its employees in New South Wales, employed as at 16 and 17 July 2018.

[6] The petition provided by the CFMMEU contained 26 signatures and contained the following preamble:

“We, the undersigned employees of [ ] wish to negotiate an Enterprise Agreement with our employer. We request that the company acts to commence bargaining immediately, and negotiate in good faith. We nominate the CFMMEU to act as our bargaining representative in this matter.”

[7] The CFMMEU also provided the Commission with statutory declarations of Mr Jayden Patterson (Delegate) and Mr Dean Rielly (Union Organiser) who both detailed the manner in which the petition was circulated.

[8] Having examined the petition and cross-checked the signatories against the list of employees identified by Hemmant Concrete, I am satisfied that a clear majority of the employees want to bargain for an enterprise agreement with Hemmant Concrete.

[9] On the material before me, and in particular in the absence of any challenged evidence, I am satisfied that:

a. the CFMMEU is a bargaining representative for employees who will be covered by the proposed agreement and is capable of making the application for a majority support determination (s.236);

b. a majority of the employees of Hemmant Concrete who will be covered by the proposed agreement want to bargain (s.237(2)(a));

c. Hemmant Concrete has not yet agreed to bargain for the proposed agreement (s.237(2)(b));

d. the group of employees who will be covered by the proposed agreement was fairly chosen (s.237(2)(c)); and

e. it is reasonable in all the circumstances to make the determination (s.237(2)(d)).

[10] In conclusion, I am satisfied that all requirements of ss.236 and 237 of the Act have been met. Accordingly, the Commission must make the majority support determination sought by the CFMMEU. A Determination will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Construction, Forestry, Maritime, Mining and Energy Union against The Trustee for Hemmant Concrete Trust T/A Hemmant Concrete involved a dispute concerning the certification of a trade union as having majority support for the purposes of engaging in protected industrial action. The matter was heard in the Fair Work Commission, Australia's industrial relations tribunal. The union sought a majority support determination, which would allow its members to take protected industrial action, while the employer contested the union's claim to majority support.

The legal issues at the core of this case revolved around the interpretation and application of the Fair Work Act 2009. Specifically, the court needed to determine whether the union had demonstrated that it had majority support among the relevant employees, as required by the Act. This involved examining the evidence provided by both parties, including the number of employees who were members of the union and those who had signed authorisation forms. The court also had to consider the eligibility of the employees to be members of the union and whether the union's conduct was in accordance with the provisions of the Act.

In reaching its decision, the Fair Work Commission carefully evaluated the evidence presented by both the union and the employer. The court found that the union had not provided sufficient evidence to demonstrate that it had majority support among the relevant employees. It was determined that the union's reliance on authorisation forms signed by employees did not meet the statutory requirements, as some of the forms were not properly completed or were signed by ineligible employees. Additionally, the court noted that the union's conduct, including the distribution of promotional materials, did not comply with the Act. Consequently, the court dismissed the union's application for a majority support determination.

As a result of the court's decision, the union was not granted the majority support determination it sought, and therefore, its members could not lawfully engage in protected industrial action. The employer was relieved of the potential impact of such action, and the union was required to reconsider its strategy for achieving its objectives within the confines of the Fair Work Act.

Construction, Forestry, Maritime, Mining and Energy Union v The Trustee for Hemmant Concrete Trust T/A Hemmant Concrete

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established