Construction, Forestry, Mining and Energy Union v Xstrata Ulan Surface Operations Pty Limited

[2012] FWA 4798

[2012] FWA 4798

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.236—Majority support determination

Construction, Forestry, Mining and Energy Union
v
Xstrata Ulan Surface Operations Pty Limited
(B2012/138)

COMMISSIONER ROBERTS SYDNEY, 7 JUNE 2012

Application for a majority support determination.

[1] This decision, now edited and expanded, was given in transcript on 1 June 2012.

[2] This decision concerns an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act). The application was made on 25 May 2012. The Respondent to the application is Xstrata Ulan Surface Operations Pty Limited (USO or the Company). The application was opposed by USO.

[3] The application seeks a majority support determination with respect to Production and Engineering employees of the Respondent employed on surface operations at its Ulan mine in New South Wales. The mine service operations largely comprise open-cut operations and a Coal Handling and Preparation Plant (CHPP). USO employs 54 Production and Engineering workers engaged in surface operations with around 31 of these employed at the CHPP and 23 at the open-cut operations, including employees engaged as electricians and fitters.

[4] The application came before me for hearing in Sydney on 1 June 2012. The CFMEU was represented by Mr A Bukarica and USO by Mr A Morris of Ashurst. Mr J Lipscombe (CFMEU Organiser) and Mr J Howard (USO’s Service Operations Manager) gave sworn evidence.

Background

[5] The CFMEU wishes to negotiate with USO for an enterprise agreement covering Production and Engineering employees. USO is resistant to negotiating such an agreement with the CFMEU and would prefer to deal directly with its employees. There is no current enterprise agreement covering USO, the employment of employees is presently regulated by common law individual contracts.

[6] The CFMEU maintains that a petition signed by 47 out of 54 eligible employees of USO is sufficient proof that a majority of the relevant employees support the making of an enterprise agreement to be negotiated by the CFMEU. USO expresses doubt that the petition shows the genuine view of a majority of its employees and wishes to delay any decision on the CFMEU’s application for a majority support determination until it knows the result of a ballot to be conducted at its request by the Australian Electoral Commission (AEC). That ballot will be held over a three day period from 6 to 8 June 2012 inclusive. In turn, the CFMEU believes that USO has been attempting to dissuade employees from supporting the negotiation of an enterprise agreement and that USO will continue to do so in the lead up to the ballot.

[7] In short, the CFMEU believes that the petition should be accepted as sufficient proof of the desire of USO’s workforce and USO believes that any decision should await the outcome of the ballot. The Company undertakes to bargain with the CFMEU should the AEC ballot indicate that that is what its employees want. Were the ballot to result in a majority of employees not wishing to enter into enterprise agreement negotiations, then USO would not bargain with the CFMEU

Legislative Framework

[8] Sections 236 and 237 of the Act provides:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA 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 FWA must make a majority support determination

Majority support determination

(1) FWA 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) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWA must be satisfied before making a majority support determination

(2) FWA must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by FWA; 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), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA 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.”

Evidence

Mr Lipscombe

[9] Mr Lipscombe submitted a witness statement 1. His statement sets out the background to the organising of the petition and appended to his witness statement was a copy of the petition itself. Pursuant to s.594 of the Act, the petition was entered into evidence as a confidential exhibit.2

[10] Mr Lipscombe said that he has organised a series of meetings covering all crews to discuss concerns raised with him by his members about aspects of their common law contracts. Those meetings were held over the period 29 March to 4 April 2012. He went on to say: “During these meeting workers spoke about concerns they had with the contract that had been offered to them by USO. The workers also expressed their frustration that USO had failed to act on any of the concerns raised by workers in regards to that contract offer.”

[11] “At the meetings, I spoke about provisions of the FW Act that allowed for employees to engage in a collective bargaining process if that was what the majority of employees wished to do. I presented a power point slide regarding section 236 of the FW Act - the ‘majority support determination’ provisions. The slide presented to all crews at the above-mentioned meetings replicated the terms of section 236 of the FW Act. After presenting the above-mentioned slide, I then tabled a petition requesting that USO commence negotiations for an enterprise agreement under the FW Act.”

[12] The text of the petition reads as follows: “I, the undersigned, request that my employer commence negotiations for an Enterprise Agreement to cover Production and Engineering employees employed by my employer at its Ulan Surface Operations. I ask you to contact the CFMEU (Mining & Energy Division) South West District Branch so an initial meeting can be organised for the commencement of the negotiations.”

[13] The petition contains the printed names and signatures of 47 persons. Next to each name and signature is the date on which the person signed. Those dates range over the period 29 March 2012 to 8 May 2012, with the majority signatures being appended during April 2012.

Mr Howard

[14] Mr Howard submitted a witness statement. 3 In his statement, Mr Howard said:

“On the basis of discussions with the Employees, I did not consider that a majority of the Employees wish to bargain for an enterprise agreement. I confirmed to the Employees that I wanted to understand their preference and that USO would respect the wishes of the majority of the Employees relating to bargaining for an enterprise agreement. In the course of my discussions, a number of the Employees said words to the effect ‘a secret ballot would be a good idea’. I then said words to the effect ‘if that’s what you want, I will support that’.”

[15] He went on to say that since 23 May 2012, more than ten employees had approached him with support for the concept of a secret ballot. He has had similar reports from members of his ‘Leadership Team’. Ten to fifteen USO employees had indicated that “they wish to remain on their Employment Agreements irrespective of whether USO bargains for an enterprise agreement and the outcome of any such process.”

[16] Mr Howard went on to say: “As the manager responsible for USO’s operations and relationships on the job, it is my sincere opinion that it will be a far better outcome for all concerned if USO’s decision whether or not to agree to bargain for an enterprise agreement is based on a secret ballot in which the Employees are able to vote confidentially and without any real or perceived pressure.”

[17] I have also paid regard to the cross-examination of Mr Lipscombe and Mr Howard.

Conclusions and Findings

[18] Although the petition was marked as a confidential exhibit 4, the text of it was made available to USO during the hearing and USO’s legal representatives were able to examine it and to compare the names on the petition with a full list of USO employees. The same task was performed by me and the CFMEU. Following a close examination of the petition, USO’s legal representatives did not contest the legitimacy of the 47 names and signatures.

[19] In all of the circumstances of this case, I have before me a petition signed by 47 USO employees out of a total of 54. There is no challenge from the employer respondent to the genuineness of the names or signatures. There is consistent FWA case law that a petition of a majority of employees is sufficient to grant an application for a majority support determination. 5

[20] The real question before me is whether I should delay making a finding in this matter until the result of the AEC ballot is known. USO submits that to do otherwise would be a denial of natural justice. I do not agree.

[21] There is only a short time lapse until 8 June and it is superficially tempting to delay my decision until the ballot result is known. However, I find that it is incumbent on me to consider the application on the materials and evidence available to me, taking into account the submissions of both Mr Bukarica and Mr Morris. In my view, it is not open to me to delay making an order in circumstances where I have sufficient grounds to do so, based on some future possible different expression of views from employees of USO. In making this decision, I have not been influenced by speculative argument from either side in relation to such matters as alleged influence being brought to bear on employees to either have taken a particular course or to take a particular course in the future.

[22] Accordingly, it is my finding that a majority support determination in the terms sought by the CFMEU must be granted pursuant to subsection 237(1) of the Act. In so deciding, I am satisfied in relation to all those matters set out in subsection 237(2) of the Act.

[23] Here I wish to note that I find no problem with USO continuing to hold its ballot and should the ballot confirm the petition which is before me, then of course no further issue arises as the Company has undertaken to engage with the CFMEU without further ado if this occurs. If the ballot goes against the content of the petition, then USO’s rights are reserved as to what further action, if any, it may take in relation to this matter.

[24] An order reflecting this decision was issued on 1 June 2012.

COMMISSIONER

Appearances:

A Bukarica for the Construction, Forestry, Mining and Energy Union.

A Morris for Ulan Coal mines Ltd

Hearing details:

2012.
Sydney:
June 1.

 1   Exhibit CFMEU 4.

 2   Exhibit CFMEU 5.

 3   Exhibit Ulan 1.

 4   Exhibit CFMEU 5.

 5   See for example my decision in [2009] FWA 1682.

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