Construction, Forestry, Mining and Energy Union

[2017] FWC 5043

[2017] FWC 5043

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Construction, Forestry, Mining and Energy Union
(B2017/870)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 SEPTEMBER 2017

Mitchell Laminates Pty Ltd trading as Mitchell Laminates for employees at 32-38 Redwood Drive, Dingley, Victoria 3172.

[1] The CFMEU has applied for a majority support determination. In support of its application the CFMEU filed a petition signed by 10 employees of Mitchell Laminates Pty Ltd.

[2] The petition states that “…the undersigned employees of Mitchell Group Laminates Pty Ltd employed at 32-38 Redwood Drive, Dingley Village” wish to commence bargaining for an enterprise agreement.

[3] At the hearing I granted permission to Mr Ray Kelly, a legal practitioner, to appear for Mitchell Laminates as I was satisfied that Mitchell Laminate was not a large business and as it had no representatives familiar with the Commission procedures it would not be able to represent itself effectively. Given the CFMEU was represented by an industrial officer I determined that it would be unfair not to permit Mitchell Laminates representation.

[4] An earlier application for a majority support determination had been before the Commission 1 and at that time Mr Marcus Mitchell the General Manager had filed statutory declaration attesting to the fact that Mitchell Laminates had 19 employees in Warehouse, Distribution and Driving. Included in the 19 employees were four casual employees who were engaged as and when demand required. The CFMEU accepted that as only seven employees had signed the petition in support of a majority support determination it did not have a majority of employees and it did not pursue the matter.

[5] The CFMEU filed this application on 20 September 2017 and it presented a petition that had been signed by the seven employees in April 2017 and by an additional three employees in June 2017.

[6] At the hearing Mitchell Laminates advised that since the filing of Mr Mitchell’s statutory declaration there had been two resignations and one additional casual employee had been engaged. This meant that it employed, at that date of the hearing, 18 employees.
[7] I was provided with a list of employees and I checked this against the petition presented by the CFMEU. The CFMEU accepted that one of the petition signatories had resigned. As a consequence at the hearing it had nine signatories on the petition and there were 18 employees.

[8] As a result the CFMEU did not have a majority of employees in favour of bargaining as 50% is not a majority.

[9] The CFMEU then submitted that the recently employed casual should not be included when determining if a majority of employees supported bargaining as that casual was not a regular and systematic casual employee. It was submitted that the casual had only recently been engaged and did not work on a regular basis.

[10] Mr Marcus Mitchell gave evidence that the casual employees are typically university students who perform work when they are available and there is work for them to perform. He gave evidence that the new casual had commenced work on 31 August 2017 and had worked two—three shifts since then. It was his evidence that generally a shift involved a day’s work. The CFMEU submitted that the employment of the casual employee occurred to stymie their application. However as this proposition was not put to Mr Mitchell when he was in the witness box, and there was no evidence to support the proposition, it must be rejected.

[11] The Fair Work Act provides that prior to making a majority support determination there must be an application and the application must specify:

1. The employer or employers that will be covered; and
          2. The employees who will be covered. 2

[12] Prior to making a majority support determination the Commission must then be satisfied that:

1. A majority of employees who are employed at a time determined by the FWC and who will be covered by the Agreement want to bargain;
2. The employer has not yet agreed to bargain or initiated bargaining for the agreement;
3. The group of employees who will be covered by the agreement was fairly chosen; and
4. It is reasonable in all the circumstances to make the determination. 3

[13] The Commission is able to, in determining if there is a majority, use any method it considers appropriate. 4 Further if the agreement will not cover all employees then the Commission must, in determining if the group of employees is fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.5

[14] The current application advised that the employees to be covered were 19 workers who carry out duties of handling and distribution of kitchens, joinery, shop fitting and design—warehouse workers and drivers.

[15] It is clear that Mitchel Laminates has refused to bargain and has not initiated bargaining. There was no issue taken that the employees were not fairly chosen.

[16] However, I am not satisfied that there is sufficient evidence to establish that there is a majority of employees in support of bargaining.

[17] The petition was not signed by a majority of employees. In any event, even were the new casual employee excluded, I am not satisfied that the petition reflects the current views of the employees. The petition was signed by one group of employees in April 2017 and another in June 2017. The application was not lodged until 20 September 2017. That is a significant time lapse.

[18] I am also not satisfied on the basis of what was put to me that casual employees should be excluded from the class of employees that must be considered namely the employees who will be covered by the Agreement. As was discussed in McDermott Australia Pty Ltd v the Australian Workers’ Union, & the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union  6 it is clear that enterprise agreements were intended by the legislature to be capable of covering casual employees.7 As the Full Bench said:

“ In our view it would be inappropriate and counter intuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on to work on the day/s of the vote, or during the 7 day access period.  There are obvious implications for voting manipulation adopting this approach. Swinburne is not authority for the proposition that a casual employee is only “employed at the time” they are rostered to work and are being paid. Swinburne eschewed the proposition that employed at the time included “usually employed”. 8

[19] There is nothing in the Act that suggests that the only casuals that can participate in bargaining for and voting on an enterprise agreement are those casuals who are employed on a regular and systematic basis. Nor is there anything in the Act which suggests that only regular and systematic casual employees can be included in class of employees to be covered by the Agreement and therefore be counted in the number of employees when determining if there is a majority of employees in favour of bargaining. The CFMEU could not point to any authority to support this proposition.

[20] The evidence before me was that the casual employees were engaged on the same basis i.e. they are engaged on an as needed basis but expect ongoing engagement with the company. However I accept that the evidence before me was of limited compass.

[21] The CFMEU submitted that the Commission should conduct a ballot of employees to determine if a majority want to bargain and this was not opposed by Mitchell Laminates.

[22] However prior to conducting a ballot it is necessary to determine who is eligible to vote. If the CFMEU wishes to press such an application that the Commission conduct a ballot it must file and serve by noon on 5 October 2017 any submissions and evidence it seeks to rely upon which defines with precision the categories of employees who it says should be entitled to vote in any ballot conducted by the Commission.

[23] Mitchell Laminates must file and serve by noon on 12 October 2017 any submissions and evidence in reply.

[24] The application for the Commission to conduct a ballot will be listed for hearing on 16 October 2017 at 10am.

DEPUTY PRESIDENT

Appearances:

Daniel Malbasa appeared on behalf of the Construction, Forestry, Mining and Energy Union.

Ray Kelly appeared on behalf of Mitchell Laminates Pty Ltd trading as Mitchell Laminates.

Hearing details:

2017

Melbourne,

25 September 2017.

 1   B2017/414

 2   S.236

 3   S.237(2)

 4   S.237(3)

 5   S.237(3A)

 6   [2016] FWCFB 2222

 7   Ibid at [32]

 8   Ibid at [35]

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