Construction, Forestry, Mining and Energy Union v BGC Contracting Pty Ltd
[2017] FWC 5651
•1 NOVEMBER 2017
| [2017] FWC 5651 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236—Majority support determination
Construction, Forestry, Mining and Energy Union
v
BGC Contracting Pty Ltd
(B2017/933)
| COMMISSIONER MCKENNA | SYDNEY, 1 NOVEMBER 2017 |
Application for majority support determination.
The Construction, Forestry, Mining and Energy Union (“CFMEU”) has made an application, pursuant to s.236 of the Fair Work Act 2009 (“the Act”), for a majority support determination concerning employees of BGC Contracting Pty Ltd (“BGC”).
In circumstances where the nominal term of the existing enterprise agreement has expired, the CFMEU seeks to bargain for an enterprise agreement with BGC in respect of certain BGC employees who are engaged in civil construction works in New South Wales. BGC has declined to bargain and also opposes the application for a majority support determination.
Section 236(1) of the Act provides that a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the Commission for a determination that a majority of the employees who will be covered by the enterprise agreement want to bargain with the employer, or employers, that will be covered by the agreement. Section 236(2) of the Act provides that the application must specify: (a) the employer, or employers, that will be covered by the enterprise agreement; and (b) the employees who will be covered by the agreement. These criteria have been met.
Section 237 of the Act sets out the circumstances when the Commission must make a determination. In that regard, s.237(1) provides that the Commission must make a determination in relation to a proposed single-enterprise agreement if: (a) an application for the determination has been made; and (b) the Commission is satisfied of the matters set out in s.237(2) in relation to the agreement. The cumulative s.237(2) matters as to which the Commission must be satisfied are as follows:
· That a majority of the employees: (i) who are employed by the employer or employers at a time determined by the Commission; and (ii) who will be covered by the enterprise agreement want to bargain. I am satisfied, and I do not understand there to be any issue, that this is the case. (Having earlier considered a CFMEU-provided petition in tandem with a BGC-provided list of employees, I was satisfied, and advised the parties, that a majority of relevant employees wish to bargain.)
· That the employer, or employers, that will be covered by the enterprise agreement have not yet agreed to bargain, or initiated bargaining, for the agreement. I am satisfied, and I do not understand there to be any issue, that this is the case.
· That the group of employees who will be covered by the enterprise agreement was fairly chosen. I am satisfied, and I do not understand there to be any issue, that this is the case.
· That it is reasonable in all the circumstances to make the determination. The reasonableness of making a determination is in contention, being a matter to which I now turn to consider.
Consideration
The evidence relied upon by the applicant union comprised that of Dean Mattas, CFMEU organiser (who was not required for cross-examination) and David Kelly, also a CFMEU organiser. No witness evidence was adduced by BGC, albeit a Roads and Maritime update document was attached to the submissions of BGC indicating that the project in question “is expected to be complete by early 2018, weather permitting”. The parties each also relied on written submissions which were expanded upon in oral submissions. Reference was made to cases including CBI Constructors Pty Ltd [2011] FWAFB 7642; Maritime Union of Australia v Opec Systems Pty Ltd[2015] FWC 3321; and Application by Australian Licensed Aircraft Engineers [2013] FWC 4267. I had separately drawn the parties’ attention to the recent decision of Masson DP in National Union of Workers v Murray Goulburn Co-Operative Co Limited T/A Murray Goulburn[2017] FWC 5164 (“Murray Goulburn”).
Shortly stated, the case for BGC in opposing the making of a majority support determination is that it is anticipated that the HWI Burrill Lake Bridge replacement project/work in which the relevant remaining employees are involved will be concluding in the near-future (around, for example, the period of Christmas or the New Year, most likely on or after 31 December 2017) and the employees (whose employment is project-specific) will be demobilised in connection with the conclusion of works. The submissions for BGC adverted to the possibility that labour-hire casuals or sub-contractors would be used in lieu of existing employees for residual works on the project in 2018; it was submitted that it was not anticipated that any BGC contracting employees will be required to undertake this work. BGC also made submissions concerning potential complexity issues associated with building code compliance-related matters as to any new enterprise agreement that may be the subject of negotiation. BGC contended that these and other factors militated against it being reasonable in all the circumstances for the Commission to make a majority support determination. Given the matters to which BCG referred, which also included exigencies associated with the costs and time associated with bargaining, BGC submitted it would be unreasonable to make a majority support determination and that the application should be dismissed.
For its part, the CFMEU adduced evidence in its case of, among other matters, matters relevant to the timing of the job’s completion (most likely, the evidence indicated, no sooner than around March 2018) and also a notice issued to employees requiring use of annual leave for an impending Christmas/New Year annual shut-down - with a site re-opening/return to work specified in that notice as being 8 January 2018. The CFMEU submitted, against the background of such matters, it would be reasonable in all the circumstances to make a majority support determination.
The only matter relevantly in issue in relation to this application is whether it is reasonable in all the circumstances to make the determination. On a consideration of the evidence (and noting BGC determined not to adduce any witness evidence), the parties’ submissions and the authorities to which reference was made, I am satisfied it is reasonable in all the circumstances to make a determination. The matters raised in the submissions for the respondent, even if relevant matters had been supported by evidence, would not lead me to a contrary view – particularly, respectfully, including my consideration of the analysis in Murray Goulburn, being a case which considered circumstances not dissimilar to those before me but in relation to what appear to be far-tighter timeframe-related issues.
The determination will be issued separately.
COMMISSIONER
Appearances:
T. Fischer for the Construction, Forestry, Mining and Energy Union
E. Ferrier, solicitor, for BGC Contracting Pty Ltd
Hearing details:
2017
Sydney:
30 October
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