Construction, Forestry, Mining and Energy Union v Cockram Construction Ltd

[2016] FWC 8610

[2016] FWC 8610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Construction, Forestry, Mining and Energy Union
v
Cockram Construction Ltd
(B2016/1192)

COMMISSIONER RYAN MELBOURNE, 30 NOVEMBER 2016

Majority support determination for employees of Cockram Construction Ltd - Various Sites, Victoria.

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) made an application for a majority support determination in relation to a group of employees of Cockram Construction Ltd (Cockram) who are presently covered by the Cockram Construction Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011 – 2015 and engaged in building and construction work.

[2] The CFMEU relied on a petition signed by employees to establish a prima facie case that a majority of employees who would be covered by the enterprise agreement proposed by the CFMEU wanted to bargain with their employer. Cockram opposed the application.

[3] Both parties agreed that the Commission could determine the application on the papers and without the need to hold a hearing.

The relevant legislation

[4] The relevant provisions of the Fair Work Act2009 (the Act) for the purposes of the present matter are s.236 and 237.

“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.”

Consideration

The Application

[5] The application in this matter met the requirements of s.236(2). The application specified that the employees that will be covered by the agreement were those employees of Cockram who are presently covered by the Cockram Construction Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011 – 2015 and engaged in building and construction work. The application also specified that the employer to be covered by the agreement was Cockram.

The CFMEU petition

[6] The petition relied on by the CFMEU comprised 6 separate sheets, 5 of which were signed by employees on 20 October 2016 and one of which was signed by an employee on 24 October 2016, and there was a separate sheet for each worksite where the employees to be covered by the proposed agreement were working on that day. The petition was headed “Intention to Bargain petition” and the text of the petition was as follows:

“We the undersigned, want to bargain for an enterprise agreement with our employer, Cockram Construction Ltd, for an enterprise agreement. The proposed agreement would replace the Cockram Construction Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011 – 2015 (the current agreement) and cover employees currently covered by the current agreement. We understand that this petition will be used by the CFMEU in support of an application for a majority support determination in the Fair Work Commission pursuant to s.236 of the Fair Work Act 2009 (Cth).”

[7] Cockram challenges the petition on the following basis:

“14. The Respondent has not had the benefit of seeing the petition filed with the Commission on 14 November 2016 and therefore does not know what question was put to the employees and/or whether there were coercive tactics used by the CFMEU to garner support for the petition. This is of particular concern given no employees of the Respondent have raised any concerns directly with the Respondent regarding the matter of commencing enterprise agreement negotiations.”

[8] In the present matter the CFMEU filed the petition with the Commission on the basis that the details of the employees who signed the petition be kept confidential and not be disclosed to Cockram. Similarly, Cockram filed with the Commission a list of the relevant employees, which list was not to be disclosed to the CFMEU.

[9] It is often the case in s.236 applications that the union petition is kept confidential. However, it is also quite common for the employer to ask for and to be granted access to a copy of the redacted petition so that the employer can understand and consider the form of the petition and make any submissions it may wish to in relation to the petition relied on by the applicant union. In the present matter Cockram never sought a redacted version of the petition.

[10] The language used in the petition is unambiguous and there is nothing before the Commission which would even hint at a possibility that the employees who signed the petition did not understand what they were signing. As to the concern of Cockram that it does not know “whether there were coercive tactics used by the CFMEU to garner support for the petition”, this concern appears to be a case of simply throwing mud and hoping that some of it sticks. The concern is not supported by any evidence. The concern is not even put as an allegation. The concern expressed by Cockram sits oddly with the fact that Cockram has a current enterprise agreement in place which it apparently negotiated with the CFMEU and which covers the CFMEU and which contains union friendly provisions.

[11] There is nothing before the Commission which would give rise to any reasonable doubt that the petition was not freely signed by the employees who signed it.

[12] The Commission compared the names on the CFMEU petition against the list of employees filed by Cockram and it was clear that 12 out of the 19 employees wanted to bargain with their employer.

[13] For the purposes of s.237(2)(a)(i) of the Act the Commission determines that the time at which the Commission will determine whether a majority of employees of Cockram want to bargain with their employer is at 24 October 2016, the last day that an employee signed the CFMEU petition.

[14] The Commission is satisfied that as at 24 October 2016 a majority of employees of Cockram wanted to bargain with their employer for an enterprise agreement and that a majority of employees of Cockram indicated that they wanted to bargain with Cockram by signing a petition.

The requirement of s.237(2)(b)

[15] Cockram contended that the Commission cannot be satisfied as to the requirement in s.237(2)(b) because Cockram has never refused to bargain with the CFMEU. The contention was put by Cockram as follows:

“5. The Applicant submits in paragraph 4 of their submissions that they ‘asked the Respondent to agree to enter into bargaining for a new agreement and the Respondent has refused”. However, the evidence relied upon by the Applicant clearly shows that the Applicant did not ask whether or not the Respondent agreed to bargain; rather the Applicant sought confirmation as to whether the Respondent sought to commence bargaining – i.e. “confirm whether Cockram seek to commence bargaining for a new agreement’.

6. The Respondent has responded on 3 November 2016, by advising the Applicant that it was “not in a position to initiate bargaining for a new enterprise agreement at this time” [emphasis added].

7. Attached and marked “Cockram - 1” is a copy of the correspondence between the CFMEU and a representative for the Respondent.

8. The evidence relied upon by both the Applicant and the Respondent therefore demonstrates only that the Respondent was not in a position to initiate bargaining for a new enterprise agreement as at 3 November 2016. The Respondent submits that this falls short of the requirements set out in s 237(2)(b).

9. Further, the reason why the Respondent has expressed to the Applicant that they were not in a position to initiate bargaining for a new enterprise agreement as at 3 November 2016 was because of the current uncertainty relating to the future implement and effect of the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 (the Building Code 2014).

10. The Building and Construction Industry (Improving Productivity) Bill 2013 is currently before the Senate – with a distinct possibility that it will be determined within the next couple of days. It is important to note that the Respondent’s position with respect to bargaining may change immediately once the result of the Bill is known. This may be before the Commission has sought to determine the matters set out in s 237 of the FW Act.”

[16] Cockram’s reliance on the fact that it never refused to bargain with the CFMEU is not relevant. The language of s.237(2)(b) does not require the Commission to be satisfied that an employer has refused to initiate bargaining or has refused to bargain. All that is required is that the Commission be satisfied that the employer has not yet agreed to bargain or that the employer has not yet initiated bargaining. It is the lack of action from the employer which is at the heart of s.237(2)(b). There is no need to establish a positive refusal to bargain, it is sufficient if the employer has done nothing to initiate bargaining.

[17] The admission made by Cockram that the evidence “demonstrates only that (Cockram) was not in a position to initiate bargaining for a new enterprise agreement” is more than sufficient to satisfy the Commission as required by s.237(2)(b) that Cockram “have not yet agreed to bargain, or initiated bargaining, for the agreement”.

Fairly chosen group

[18] The proposed agreement is to cover the same group of employees as is covered by the current agreement. The current agreement does not cover all employees of Cockram and in approving the current agreement the Commission was satisfied that the group of employees covered by the current agreement was fairly chosen. There is nothing before the Commission which would give rise to any question that the group of employees to be covered by the proposed agreement was not fairly chosen. The Commission is satisfied that the group of employees to be covered by the proposed agreement was fairly chosen.

Reasonable in all the circumstances

[19] Cockram contended that its position in relation to bargaining was because of uncertainty relating to future implementation of the Commonwealth Government’s Building Industry Code which in turn was linked to the passage of legislation currently before Parliament. Whilst these matters may have an impact on the outcome of bargaining they do not prevent bargaining from commencing.

[20] Having considered all of the circumstances of this matter the Commission is satisfied that it is reasonable to make the determination sought by the CFMEU.

Conclusion

[21] The Commission is satisfied as to each of the matters in s.237(2) and the application in this matter will be granted. The determination in this matter will be issued separately.

COMMISSIONER

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