Maritime Union of Australia, The v Opec Systems Pty Ltd

[2015] FWC 3321

[2015] FWC 3321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Maritime Union of Australia, The
v
Opec Systems Pty Ltd
(B2015/321)

COMMISSIONER CAMBRIDGE SYDNEY, 15 MAY 2015

Application for a majority support determination - application opposed - whether applicant was entitled to represent the industrial interests of employees who sought to bargain - whether group proposed to be covered by an agreement was fairly chosen - nature and substantial character of business operation examined - industry and eligibility rules of registered organisation considered - operational and organisational distinction established - majority support determination made.

[1] On 26 February 2015, the Maritime Union of Australia (the MUA) made an application to the Fair Work Commission (the Commission) for a majority support determination. The application was taken pursuant to section 236 of the Fair Work Act 2009 (the Act). The application initially sought a determination in respect to members of the MUA employed by Opec Systems Pty Ltd (the employer) who work at Bulk Liquids Berths (BLBs) number 1 and number 2 at Port Botany, Sydney. The application was subsequently amended so that it was confined to employees who work at BLB number 1 only (the relevant employees).

[2] The matter was listed for proceedings before the Commission on 4 March 2015 and again on 13 March 2015. It became apparent that the Parties were unable to agree on important aspects of the application. In particular, the employer challenged that the MUA was entitled to represent the industrial interests of the relevant employees and also that the group of relevant employees had not been fairly chosen. Consequently, Directions were made for each side to file and serve evidentiary material and submissions prior to a Hearing.

[3] At the Hearing which was held on 29 April 2015, the MUA was represented by Mr K Bolwell and Ms S Andronikos and the employer was represented by Mr K J Law an agent from Walk Industrial Services Pty Ltd.

[4] The MUAprovided witness evidence from various individuals who were identified as being relevant employees, together with the witness evidence of Mr J Deakin who is an Assistant Branch Secretary of the MUA. The MUA evidence included a petition signed by all of the relevant employees who wished to bargain for an enterprise agreement.

[5] The employer adduced evidence from two witnesses, Mr Walsh who is a Director and Chief Executive Officer of the employer and Mr Hobday who is Executive General Manager Operations and Engineering of Port Botany Operations Pty Ltd trading as NSW Ports (NSW Ports). At the Hearing the Parties made extensive oral submissions in elaboration of written outlines which had been filed.

Summary of Relevant Background

[6] In 1979 the BLB number 1 commenced operation at Port Botany. As the name suggests the BLB is a shipping berth which is purpose-built to facilitate loading and unloading of liquid cargo. Since its commencement and up until 1 July 2014, work at BLB 1 which has included the work of the relevant employees, was undertaken by Port Officers who were employees of Sydney Ports Corporation. These Port Officers were members of the MUA who also performed a variety of other work associated with port operations other than and away from the BLB. The Sydney Ports Corporation Port Officers rotated through work at the BLB and at other locations associated with the port and their work when they were at the BLB, included certain regulatory functions which are no longer performed by the relevant employees.

[7] In December 2013 the BLB number 2 commenced operations. The BLB 2 operates in essentially the same way as BLB 1 except that it operates only on demand whilst BLB 1 is a continuous operation. Until 1 July 2014, when the BLB 2 operated it was staffed by Sydney Ports Corporation Port Officers who were rotating through work at the BLBs along with their other Port Officer duties.

[8] As part of the privatisation of Port Botany the BLBs were sold to Port Botany Operations Pty Ltd trading as NSW Ports (NSW Ports). Subsequently NSW Ports has contracted the employer to conduct the operations of the BLBs. In mid 2014 the employer recruited employees including the relevant employees, to perform the work necessary to facilitate the operation of the BLBs. BLB 1 is staffed by full-time employees who work on a rotational shift basis to provide for the continuous operation of that berth. BLB 2 is staffed by appropriately trained casual employees who are engaged only when that berth is operational.

The MUA Case

[9] Mr Bolwell, who appeared to the MUA, summarised the case in support of the making of a majority support determination as being both simple and methodical. Mr Bolwell submitted that the relevant statutory requirements as set out in s.237 of the Act had been satisfied and that a majority support determination should be made.

[10] Mr Bolwell made submissions which addressed the various requirements of subsection 237(2) of the Act. In summary, Mr Bolwell asserted that it was clear that a majority of the relevant employees wanted to bargain and that the employer had not yet agreed to bargain for an enterprise agreement in respect of those employees. Further, it was asserted that the group comprising the relevant employees had been fairly chosen and that in the circumstances it was reasonable to make the majority support determination.

[11] The submissions made by Mr Bolwell focused upon the basis that the employer had objected to the making of the majority support determination. Firstly, Mr Bolwell made submissions which rejected that the group of employees to be covered by a proposed enterprise agreement, being the relevant employees, had not been fairly chosen. Mr Bolwell submitted that the relevant employees were a group of employees that were geographically, operationally and organisationally distinct.

[12] Secondly, Mr Bolwell made submissions which rejected the contention of the employer that the MUA was not entitled to represent the industrial interests of the relevant employees. Mr Bolwell referred to a number of particular provisions of the eligibility rule of the MUA which he said comprehended the industry and occupation of the relevant employees. Further, the submissions of Mr Bolwell referred to the history of representational coverage at the Port Botany BLB since it commenced operation in 1979. In this regard, Mr Bolwell said that the MUA (and its predecessor manifestations), had represented workers at BLBs and in other similar workplaces for more than 55 years.

[13] In conclusion, Mr Bolwell submitted that the Commission should be satisfied that all of the requirements of subsection 237(2) of the Act had been met. In particular, Mr Bolwell rejected the basis upon which the employer had opposed the making of the majority support determination. Mr Bolwell said that the relevant employees were a group of employees that was geographically, operationally and organisationally distinct and therefore it was a group of employees that had been fairly chosen. Further, Mr Bolwell submitted that the MUA was an industrial organisation that was entitled to represent the industrial interests of the relevant employees in relation to the work that would be performed under a proposed enterprise agreement. Mr Bolwell urged the Commission to make the majority support determination.

The Employer Case

[14] Mr Law, who appeared for the employer, made oral submissions in elaboration of documentary material which outlined the employer's opposition to the making of the majority support determination. In his oral submissions Mr Law referred to eight grounds upon which the employer opposed the making of a majority support determination.

[15] Mr Law submitted that the majority support determination should not be made because: (1) the MUA was not entitled to represent the industrial interests of the employees who would be covered by the proposed agreement; (2) the employer did not object to negotiating an agreement with a security-based employee organisation; (3) the employer had not commenced bargaining with any other parties; (4) the employer was concerned that the actions of the MUA was a divide and conquer approach; (5) that the relevant employees were not geographically, operationally or organisationally distinct; (6) the determination would not assist the employer to bargain in a fair and efficient manner; (7) the current entitlements offered to the relevant employees were competitive and well in excess of Award based entitlements; and (8) the employer asserted that it was not reasonable in all the circumstances for the Commission to make the majority support determination.

[16] The submissions made by Mr Law were predicated upon the assertion that the work performed by the relevant employees as BLB Officers, was primarily the role of a Security Officer and that the BLB Officer work would be underpinned by the “Security Industry Award 2010 (MS 000016)”. Consequently, according to the submissions of Mr Law, a threshold issue arose regarding whether the MUA had the right to represent the relevant employees who worked in a Security Industry role which was outside of the eligibility rules of the MUA.

[17] Mr Law made submissions which referred to a number of Court and Tribunal Decisions which involved the determination of questions of the application of the industry and eligibility rules of registered organisations. Mr Law said that the work undertaken by the BLB Officers was substantially contract security services and not related to shipping and or diving industry work. Mr Law submitted that upon an analysis of the rules of the MUA it was not an organisation that was entitled to represent the industrial interests of employees in relation to work that was performed and would be performed under any proposed agreement at BLB 1. It was submitted by Mr Law that the substantive operations of the employer at the Port Botany BLBs were not connected with the Maritime Industry in any significant way. Therefore, according to Mr Law, the MUA could not be a bargaining representative for any proposed agreement and the application for a majority support determination should be dismissed.

[18] Mr Law made further submissions which dealt with the various other aspects which were advanced as the employer's basis for opposition to the making of a majority support determination. Mr Law made particular mention of a further primary concern of the employer being that the group of employees who would be covered by the proposed agreement had not been fairly chosen.

[19] In respect to the question of whether the relevant employees had been fairly chosen Mr Law submitted that the employees at BLB number 1 were not geographically, operationally or organisationally distinct from employees who worked at BLB number 2. Mr Law submitted that the two bulk liquid berths were about 500 meters apart and were located in the same precinct. According to Mr Law the BLB number 1 site was not geographically distinct from the BLB number 2 site. Further, Mr Law submitted that the work performed at the two Bulk Liquid Berths was substantially similar and involved the same operating and reporting structure such that the two berths were not operationally or organisationally distinct.

[20] Mr Law made further submissions which emphasised that the employer did not object to negotiating for an EBA in respect to its employees at the BLBs. However, the employer submitted that particularly as it had to obtain a master security licence in order to operate the BLBs, the work involved was security services not stevedoring or maritime industry work and therefore the MUA was not the appropriate industrial organisation which could legitimately obtain a majority support determination.

[21] By way of a concluding summary, Mr Law reiterated that the employer opposed the making of a majority support determination on the various grounds that had been mentioned and he stressed that the primary basis upon which the employer opposed the application was that the MUA did not have coverage of the relevant employees and could not be a bargaining representative for those employees. Mr Law urged that the Commission dismiss the application.

Consideration

[22] An application for a majority support determination which has been made under s.236 of the Act is primarily governed by the provisions of s.237 which are as follows:

“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.”

[23] Paragraphs (a) to (d) of subsection 237(2) contain four elements which, in combination, must be satisfied before the Commission can make a majority support determination. Subsection (1) of s.237 requires that the Commission must make a majority support determination if the elements in paragraphs (a) to (d) of subsection 237(2) are satisfied. Although paragraph (d) of subsection 237(2) would appear to introduce a degree of discretion in respect to an assessment as to whether it was reasonable in all the circumstances to make the determination, the legislation is framed in a manner which, consistent with the Act’s objectives to promote enterprise bargaining 1,
broadly facilitates a fairly simple mechanism which would ordinarily activate the making of a majority support determination.

[24] Consequently, I believe that the legislation anticipates that any consideration of the circumstances surrounding an application for a majority support determination would be generally approached on the basis that if an applicant had made out an elementary evidentiary case which satisfied the four elements of subsection 237(2), the application would usually be favourably determined in a timely and informal manner. As a matter of personal practical experience many contested applications for majority support determinations have been confined to a determination arising from paragraph (a) of subsection 237(2). In particular, the “usual” contest has been about whether the exact number of members of the applicant organisation who wanted to bargain amounted to a majority of employees.

[25] In this instance there was no contest that a majority of employees engaged by the employer at BLB 1 wanted to bargain and that the employer had not agreed to bargain. Therefore the opposition to the majority support determination was advanced under paragraphs (c) and (d) of subsection 237(2).

[26] The opposition to the majority support determination advanced under paragraph (c) of subsection 237(2) asserted that the relevant employees were not a group that was fairly chosen and subsection 237(3A) is therefore relevant. The most stringent opposition to the application, described as a “threshold issue,” arose under paragraph (d) of subsection 237(2) and involved the assertion that the MUA was not an organisation that was entitled to represent the industrial interests of the relevant employees.

The MUA or United Voice

[27] The employer’s argument on the MUA eligibility question can be essentially summarised as the following proposition: The work of the relevant employees as BLB Officers was substantially security services and the industry and eligibility rules of the MUA did not entitled it to enrol the relevant employees as members. Therefore by virtue of the operation of subsection 176(3) of the Act, the MUA could not be a bargaining representative is respect to any proposed enterprise agreement to cover the work of the relevant employees.

[28] Section 176 of the Act is in the following terms:

“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

Bargaining representatives for a proposed multi-enterprise agreement if a low-paid authorisation is in operation

(2) If:

(a) the proposed enterprise agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation; and

(b) an employee organisation applied for the authorisation; and

(c) but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;

the organisation is taken to be a bargaining representative of such an employee unless:

(d) the employee is a member of another employee organisation that also applied for the authorisation; or

(e) the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or

(f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).

(3) Despite subsections (1) and (2):

(a) an employee organisation; or

(b) an official of an employee organisation (whether acting in that capacity or otherwise);

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

Employee may appoint himself or herself

(4) To avoid doubt and despite subsection (3), an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.

Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).” [Emphasis added]

[29] It seems to be patently clear that subsection 176(3) of the Act would operate to deprive the MUA of capacity to seek a majority support determination if it was established that the MUA was not entitled to represent the industrial interests of the relevant employees. The employer stressed that it was not opposed to engaging in enterprise bargaining in respect of the relevant employees. However, it believed that the relevant employee organisation was United Voice and not the MUA. To some extent this approach diminished the employer’s reliance upon its secondary argument that the relevant employees were not a group that had been fairly chosen.

[30] In any event, the Commission has been required to examine the work of the relevant employees and determine whether the rules of the MUA permit it to enrol these persons as members and represent their industrial interests. A determination involving the interpretation and application of a registered organisation’s industry and eligibility rules can have significant implications for both registered organisations and employers operating in various industries. Contested eligibility questions have been the subject of much litigation in various jurisdictions over many years.

[31] The approach to any determination of a contested eligibility question has been conveniently summarised in the majority Decision of the case of Appeal by Dyno Nobel Asia Pacific Limited 2 (Dyno Noble). The nature and complexity of litigation surrounding contested eligibility questions is well exampled by a comparative examination of the Decisions made in Dyno Noble and a Decision made only some three months later in the case of Appeal by Harnischfeger of Australia Pty Ltd 3 (Harnischfeger).

[32] Notwithstanding the complexities which can arise in cases involving contested eligibility, in the particular circumstances of the present matter a reasonably straightforward question can be identified as being largely determinative of the contest. Can the work of the relevant employees be properly held to be work in the Security Industry or the Maritime Industry? If the work was held to be work in the Security Industry the MUA would not be entitled to represent the industrial interests of the relevant employees.

[33] It has been well established by Decisions such as Dyno Noble, that there is a matter of factual determination required as to whether the substantial character of the business of a relevant employer is in or in connection with a particular industry mentioned in the industry or eligibility rules of an organisation. The evidence presented in this instance established that the work of the relevant employees involved a considerable amount of security related functions particularly security control room and monitoring work. However, this work was an integral part of the primary business operation which involved the movement of liquid cargo on and off of ships. The evidence has overwhelmingly supported a finding that the substantial business operation of the employer was that of facilitation of the shipping of liquid cargo and not the provision of security services.

[34] A finding that the substantial business operation of the employer was not that of the provision of security services was supported by evidence that before the employer obtained its relevant security licenses it engaged a contract security services supplier who provided a Security Officer on site in addition to a BLB Officer. In simple terms, if the work of a BLB Officer was substantially Security Officer work, the contracted Security Officer could have theoretically substituted for the BLB Officer in the period before the employer obtained its master security licence.

[35] There is further support for rejecting the proposition that the employer’s substantial business operation was that of provision of security services when one has regard for the coverage clause of the Security Services Industry Award 2010 (MA000016) (Security Industry Award). The following extract from clause 4 of the Security Industry Award is particularly instructive:

“4.1 This industry award covers employers throughout Australia in the security services industry and their employees in the classifications listed in Schedule C—Classifications to the exclusion of any other modern award.

4.2 To avoid doubt, the security services industry includes:

(a) patrolling, protecting, screening, watching or guarding any people and/or property, including cash or other valuables, by physical means (which may involve the use of patrol dogs or the possession or use of a firearm) or by electronic means;

(b) crowd, event or venue control whether through physical or electronic means;
(c) body guarding or close personal protection;

(d) the operation of a security control room or monitoring centre;

(e) loss prevention; and

(f) traffic control when it is incidental to, or associated with, the activities referred to in clauses 4.2(a), (b) or (c).

4.3 To avoid doubt, this award does not apply to an employer merely because that employer, as an incidental part of a business that is covered by another modern award, has employees who perform functions referred to in clause 4.2.” [Emphasis added]

[36] The history of industrial coverage at the BLBs at Port Botany is also a further factor which operates against a finding that the work of the relevant employees can be properly characterised as being substantially the provision of security services. The privatisation of particular government services can sometimes create an alteration to the appropriate organisational coverage such as in the case of, for example, correctional services.

[37] However, in the present circumstances, the MUA’s established capacity to represent persons who previously performed the work of the relevant employees has not been disturbed by the alteration to the particular range of functions which was reduced from that which had historically been performed by Port Officers when those persons rotated into the work at the BLBs. Although the BLB Officers do not perform the various other functions previously undertaken by Port Officers who were engaged by Sydney Ports Corporation, the substantial character of the work has not been altered. In particular, although the employer has changed from Sydney Ports Corporation to Opec Systems Pty Ltd, the fundamental work performed at the BLBs has not altered except that the private operator has been required to obtain certain security licenses whereas the government organisation was exempt from such requirement. 4

[38] The true character of the BLB operations could not be misconstrued as security services simply because of the employer's desire to have the engagement of the relevant employees referenced to the Security Industry Award. The employer’s attempt to re-cast the true character of the BLB operations was most tellingly revealed by particular evidence provided, or more accurately, avoided by Mr Hobday. Although Mr Hobday asserted that the work of BLB Officers was substantially Security Officer work, when asked by both Mr Law 5 and then subsequently in cross examination by Mr Bolwell, if the work of the relevant employees was in the Maritime Industry he refused to answer.

[39] There was also evidence which suggested that the employer’s approach to the question of contest regarding the representational rights of the MUA may not have been either consistent or entirely open. In its initial response to the MUA’s request to commence bargaining the employer stated, inter alia;

“... The company has decided to decline your offer to commence bargaining...

After consultation with all the employees of the company engaged at the Bulk Liquid Berth it was overwhelmingly agreed by these employees that they not enter into an EBA at this time.

As we agreed in our last meeting an email was sent to all employees on Friday 27th of June 2014 at 13.42 giving them your contact details. From speaking with our employees and perusing our payroll records, we believe that only one employee is a member of your union.

This company has been giving consideration to an EBA for some time. Should OPEC Systems go down this path through the facilitation of a good direct relationship with staff and good faith bargaining, we do not believe that we would require the assistance from your union.

Thank you for your interest in OPEC Systems.” 6

[40] This communication established that, despite the employer having “been giving consideration to an EBA for some time” and having apparently identified that at least one of its employees was a member of MUA, it gave no indication that it believed that the MUA was not entitled to represent the industrial interests of employees for whom it was endeavouring to bargain.

[41] Further, some seven months later, in February 2015, when the MUA sent the employer a second notice of intention to commence bargaining, the employer’s response included the following;

“... I will get back to you if there is a consensus amongst these employees for OPEC to enter into discussions with the MUA.” 7

[42] Once again, the employer rejected the MUA's request to commence bargaining and gave no indication that it believed that the MUA did not have an entitlement to represent the industrial interests of the employees in question. On the contrary, the employer's communication of 13 February 2015 suggested that if a consensus emerged amongst the employees it would “enter into discussions with the MUA”.

[43] Obviously ignorance or disingenuousness on the part of the employer would not be determinative of the contested eligibility question. However the totality of the evidence has overwhelmingly established that the industry in which the relevant employees are engaged is not Security Services but instead Maritime. Further, various particular provisions of the MUA eligibility rule 3, including those that were referred to during the Hearing, namely 3.2.a, 3.2.b.II, and 3.3, all provide occupational eligibility consistent with the work performed by the relevant employees.

Fairly Chosen

[44] The employer also opposed the making of a majority support determination on the basis that the relevant employees were a group of employees who had not been fairly chosen as required by paragraph (c) of subsection 237(2) of the Act. Specifically the employer asserted that the relevant employees were not a group of employees that were geographically, operationally or organisationally distinct.

[45] There was no dispute that the provisions of subsection 237(3A) were relevant in this instance. Further, the parties accepted that it was not necessary for the circumstances of the relevant employees to satisfy all of the provisions of being geographically, operationally and organisationally distinct in order to establish that the group had been fairly chosen. The employer asserted that the relevant employees were neither geographically, nor operationally nor organisationally distinct from employees who worked at BLB 2. The MUA contended that the employees who worked at BLB 1, being the relevant employees, were geographically, operationally and organisationally distinct from employees who worked at BLB 2.

[46] The evidence established that the two BLBs are located near one another such that they could be broadly described as being located in the same wharf precinct. Therefore, I think it would be unlikely that, for the purposes of industrial regulation, the two BLBs could be considered as being geographically distinct. Certainly, as a general proposition a distance of some 500 metres would not seem to logically create a sound basis for separate industrial regulation.

[47] Consequently I do not believe that the evidence supports a finding that the relevant employees vis a vis employees working at BLB 2, are geographically distinct for the purposes of subsection 237(3A) of the Act.

[48] There was unambiguous evidence that BLB 1 and BLB 2 have very distinct operational differences. BLB 1 operates continuously and is staffed by full-time permanently engaged employees while BLB 2 operates only on demand and casual employees are called in to work in such circumstances. Consequently the nature and type of workforce engaged at BLB 1 is fundamentally different to the workforce which is utilised to operate BLB 2. This difference in the fundamental characteristics of the workforce requirements would logically provide for potential distinction in terms of industrial regulation.

[49] Consequently the evidence has provided a compelling basis to find that the relevant employees are operationally distinct from other employees, particularly those employees who are from time to time engaged to operate BLB 2.

[50] There was further evidence of some organisational distinction as between BLB 1 and BLB 2. However this organisational distinction was generally a consequence of the significant operational distinction between the two BLBs. On balance, I believe that for the purposes of industrial regulation a further finding that the relevant employees are organisationally distinct from other employees would be valid and appropriate.

[51] I have further considered various other factors which are relevant to any determination as to whether the relevant employees are a fairly chosen group of employees who will be potentially covered by the proposed agreement. In particular, I have carefully considered whether the selected group of employees would be any less productive or efficient as a consequence of them forming a group for the purposes of enterprise bargaining. It was clear that as Mr Law submitted, “there were advantages and disadvantages of entering into an EBA for BLB1 and a different structure in place at BLB2.” 8

[52] The evidence that was presented in this instance has not convinced me that the employer may in some way or another be unfairly disadvantaged if it was required to engage with the relevant employees for the purposes of endeavouring to reach an enterprise agreement. Indeed, the evidence of the basis upon which the employer established individual contracts of employment with terms considerably more favourable than the alleged reference instrument, the Security Industry Award, was more reflective of an attempt to avoid what was recognised to be the “industrial reality” of the situation.

Conclusion

[53] In this case the employer has opposed an MUA application for the making of a majority support determination. The majority support determination was primarily opposed on the basis that the MUA was not entitled to represent the industrial interests of the employees who were the subject of the proposed majority support determination. The employer also opposed the application on various other grounds including that the relevant employees were a group of employees who had not been fairly chosen.

[54] The most strongly agitated basis for the opposition to the application has involved the determination of a contested eligibility question. In order to determine the contested eligibility question I have analysed the evidence of the nature of the employer's business operation and the work performed by the relevant employees, being members of the MUA.

[55] This analysis has led me to conclude that the substantial character of the employer's business and the work performed by the relevant employees conforms with and is comprehended by both the industry and eligibility rules of the MUA. Therefore the MUA is entitled to enrol the relevant employees as members and to represent their industrial interests.

[56] Further, the evidence has established that the relevant employees are operationally and organisationally distinct from other employees. The evidence has not revealed any other factor or circumstance which would operate to prevent a finding that the relevant employees are a group of employees who would be covered by a proposed agreement and who were fairly chosen.

[57] In addition, the evidence has established that a majority of employees, being the relevant employees, want to bargain, the employer has not agreed to bargain and in all of the circumstances I have formed the view that it would be reasonable to make a majority support determination.

[58] I am satisfied that all of the provisions of ss.236 and 237 of the Act have been met and therefore the application must be granted.

[59] Consequently, the Commission has separately issued a majority support determination.

[60] This majority support determination operates on and from today, 15 May 2015.

COMMISSIONER

Appearances:

Mr K Bolwell and Ms S Andronikos appeared for The Maritime Union of Australia.

Mr K J Law of Walk Industrial Services Pty Ltd appeared for Opec Systems Pty Ltd.

Hearing details:

2015.

Sydney:

April, 29.

 1   See in particular s.3(f) and s.171.

 2   Appeal by Dyno Nobel Asia Pacific Limited [2005] (14 July 2005) [PR956868].

 3   Appeal by Harnischfeger of Australia Pty Ltd [2005] (13 October 2005) [PR963826].

 4   Transcript PN898.

 5   Transcript PN891.

 6   Exhibit 10 - Attachment “MUA2”

 7   Exhibit 10 - Attachment “MUA4”

 8   Transcript PN68.

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