Downer EDI Engineering Power Pty Ltd T/A Downer Infrastructure

[2014] FWCA 3439

[2014] FWCA 3439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Downer EDI Engineering Power Pty Ltd T/A Downer Infrastructure
(AG2014/550)

DOWNER EDI ENGINEERING POWER PTY LTD WOODSIDE OPERATIONS ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 27 MAY 2014

Application for approval of the Downer EDI Engineering Power Pty Ltd Woodside Operations Enterprise Agreement 2014.

[1] On 12 March 2014 Downer EDI Engineering Power Pty Ltd trading as Downer Infrastructure (Downers) lodged an application (the F16) for approval of the Downer EDI Engineering Power Pty Ltd Woodside Operations Enterprise Agreement 2014 (the Agreement). An Employer’s Statutory Declaration (the F17) in support of the application was also lodged on that day. Statutory Declarations (the F18’s) were also lodged and appear to have accompanied the F16. The F18’s were made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union (collectively “the other Unions”). The Agreement was signed by the Acting General Manager of Downers and persons authorised by each of the other Unions and by a person who states he was authorised to sign on behalf of employees (the employee representative).

[2] On 13 March 2014 the Construction, Forestry, Mining and Energy Union (the CFMEU) requested an opportunity to be heard as they wished to bring to my attention “some irregularities” which they believed “will present significant problems for the approval of the agreement”. They also advised that these matters had been brought to the attention of Downers.

[3] I conducted a conference by telephone on 17 April 2014. On 23 April 2014 I issued formal Directions requiring the CFMEU, Downers and the other Unions to lodge submissions regarding any objections to the Agreement being approved and responses to any objections. Submissions were provided by the CFMEU on 7 May 2014. Downers lodged a response to those submissions. No other submissions or responses were received. As the other Unions have not sought to object to the approval of the Agreement combined with the fact that they each signed the Agreement, clearly as Bargaining Representatives, I consider that the other Unions have no objections and believe the Agreement meets the requirements for approval.

[4] The F16 was accompanied by the Notice of Employee Representational Rights (the NORR) and a copy of the Agreement.

The Contentions

CFMEU

[5] The CFMEU submitted that a form for the Appointment of Bargaining Representative (the BR Form) was misleading and in conflict with the information contained in the NORR. A copy of the BR Form provided to employees is attached to this decision (Attachment 1).

[6] The CFMEU argues that the BR Form “requires” the employee to nominate either a bargaining representative or an organisation if they wish to be represented. They argue that that requirement contradicts the NORR and the FW Act and is misleading. They therefore argue that because of misleading information contained within the NORR that there is a reasonable degree of uncertainty as to the genuine agreement of employees, especially given the closeness of the vote. As a consequence the CFMEU argues that the Agreement cannot have been genuinely agreed.

Downers

[7] Downers contend that the information in the BR Form was merely facilitating the representational rights of the individual employees as outlined in the NORR. They assert that there is no direction in the BR Form other than a need to return the document if the individual employee wished to appoint a bargaining representative. They refute the CFMEU’s argument that the BR Form was misleading or that it contained instructions that contradicted the NORR.

[8] Downers argue that the only instruction on the BR Form was to return it to the company but that instruction was qualified by a confirmation of having read and understood the NORR. Downers submitted that 57 BR Forms were returned of which 49 appointed a union, 7 appointed an individual and 1 was blank. There was no follow-up by Downers of employees who had not submitted a BR Form.

Consideration

[9] The contentious issue here is whether the employees genuinely agreed to the agreement. The Full Bench in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU)[2014] FWCFB 2042 addressed the issue that arises here as follows:

[70] ... Any concerns as to whether the employees may have misunderstood their right to be represented, despite being provided with a valid Notice, fall to be considered under paragraph 188(c). In Ostwald Bros Pty Ltd v CFMEU [2012] FWAFB 9512 the majority of the Full Bench made the following observation of section 188:

‘... it requires specific actions to have been undertaken (in ss.188(a) and (b) at specified times in advance of approval), with s.188(c) then requiring satisfaction that there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees. Section 188(c) of the Act, although itself a broad discretionary consideration, is an additional matter about which Fair Work Australia needs to be satisfied and relates to grounds other than those arising in relation to the ss.188(a) and (b) matters.’

[10] In support of their contention the CFMEU referred to a decision of Deputy President Gooley in Shape Shopfitters Pty Ltd [2013] FWC 3161. The equivalent in Shape Shopfitters Pty Ltd to the BR Form here stated “[Shape Shopfitters Pty Ltd] wants to ensure that all employees are aware of and understand their rights to representation. Therefore we ask that you reply and advise how you wish to exercise those rights” 1. It then provided for the employee to insert their name and indicate that they had received the notice of representational rights. It then provided for three options for the employee to tick including one that stated “I am a member of an employee organisation and elect my default bargaining representative”.2

[11] Deputy President Gooley characterised that BR Form there as advising employees that “if they wished their union to be their default bargaining representative they must advise their employer” 3 and that it “required employees who were union members to advise their employer in writing that they wished their union to be their default bargaining representative”.4

[12] In Shape Shopfitters Pty Ltd the BR Form stated that the employer “wants to ensure that all employees are aware of and understand their rights to representation” 5. There was no explanation in Shape Shopfitters Pty Ltd as to what it was exactly that created an obligation to return a completed form to the employer. The reference to all employees presumably caused a finding that the form “required” employees to return the form notwithstanding that the very next sentence stated that the employer “ask[s]” employees to reply.

[13] The facts in Shape Shopfitters Pty Ltd are different to those here. In Shape Shopfitters Pty Ltd one of the options was to identify that “I am a member of an employee organisation” 6.Here there is no similar disclosure request. Rather there is provision for the employee to identify a person or organisation nominated as a bargaining representative.

[14] The only obligation in the BR Form here is that “this instrument of appointment” ‘must’ be given to Company”. That obligation however must be looked at in its proper context. The context here is that the employee providing the BR Form to Downers had read and understood the NORR. Thus employees that signed the BR Form were declaring that they understood their rights and they were exercising those rights.

[15] There is nothing in the BR Form that states the employee is required to do anything except if the employee wants to appoint someone. Indeed the word “requires” or the phrase “are required to” does not appear in the BR Form. The terminology and information in the BR Form did not create an absolute obligation but rather a conditional requirement. I do not consider that here there are any commands that employees are being obliged to do anything except if they wish to appoint a bargaining representative.

[16] There is nothing that was provided by way of evidence that there was any misleading or misunderstanding and I do not consider that the BR Form itself either misled or even caused a misunderstanding. I also do not consider any inference can be made that employees were misled or misunderstood based from the fact that forms were returned with a union nominated to be the appointed bargaining representative especially where the obligation to notify of an appointment was made with a declaration that the NORR had been read and was understood.

[17] I am therefore satisfied that the BR Form was not misleading, nor did it create any obligation other than to notify the employer if a bargaining representative had been appointed. That a large proportion of employees decided to appoint a union as a bargaining representative, in the absence of something more does not establish what the CFMEU alleges.

[18] I find that and I am satisfied that the Agreement was genuinely agreed. The fact that the Agreement was approved by a majority of 1, again in the absence of something more, merely means the Agreement had one more employee vote for it than those that voted against it.

[19] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[20] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[21] The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[22] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[23] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is three years from the date of this decision.

DEPUTY PRESIDENT

Final written submissions:

Construction, Forestry, Mining and Energy Union, 7 May 2014

Downer EDI Engineering Power Pty Ltd T/A Downer Infrastructure, 16 May 2014

 1   Shape Shopfitters Pty Ltd [2013] FWC 3161 Attachment 1.

 2   Ibid [2] and Attachment 1.

 3 Ibid [3].

 4 Ibid [14].

 5   Ibid Attachment 1.

 6   Ibid [2] and Attachment 1.

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