Melbourne Recycling Centres Pty Ltd

[2015] FWC 3287

[2015] FWC 3287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Melbourne Recycling Centres Pty Ltd
(AG2015/2137)

Waste management industry
COMMISSIONER GREGORY	MELBOURNE, 14 MAY 2015

Application for approval of the Melbourne Recycling Centres Pty Ltd Waste Management Agreement 2014.

Introduction

[1] Melbourne Recycling Centres Pty Ltd (“Melbourne Recycling”) has made application for approval of the Melbourne Recycling Centres Pty Ltd Waste Management Enterprise Agreement 2014. The application was received by the Commission on 12 March 2015.

[2] The Form F16 – Application for approval of an Enterprise Agreement provided by Melbourne Recycling indicates at Question 5.2 that 29 instruments of appointment signed by employees appointing a bargaining representative were given to it. In Question 5.3 it provided the names of 3 employees who were apparently the bargaining representatives appointed in this context.

[3] On 16 March 2015 the Commission received correspondence from the Victorian branch of the Australian Workers’ Union (“AWU”) asking “to be heard in relation to the certification and approval of this enterprise agreement.” 1 The application was subsequently set down for hearing on 8 April. The Notice of Listing indicated that the AWU had asked to be heard in relation to the application. It also asked the Union to provide an outline by 1 April of the matters it intended to raise in the proceedings, and to provide copies to both the Commission and the Applicant. The Union subsequently complied with this request.

[4] When the matter came on for hearing Melbourne Recycling objected to the AWU being involved in the proceedings. Its objection was based on 2 grounds. Firstly, that the AWU has no right to be heard because it is not a bargaining representative for the proposed Agreement. It also submitted the Union has no right, under its Rules, to cover the waste management industry, however, it did not press this issue further.

[5] Given the objection raised by Melbourne Recycling to the involvement of the AWU in the proceedings this decision deals with the issue of whether the AWU has a right to be heard in regard to the application for approval of the proposed Agreement.

[6] Mr Colin Milne was given leave to appear in the matter on behalf of Melbourne Recycling under s.596(2)(a) of the Fair Work Act 2009. Mr Craig Winter appeared for the AWU.

The Submissions and Evidence

[7] Melbourne Recycling submits the AWU has no right to be heard in regard to the application because it is not a bargaining representative. It relies on the Full Bench decision in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd 2 (“Collinsville”) handed down on 5 December 2014 in support of this submission.

[8] Melbourne Recycling acknowledges the AWU may have been appointed as a bargaining representative by some employees at a point in time, however, it submits those appointments were extinguished by subsequent nominations made by each employee to be covered by the proposed Agreement, which have not since been revoked. It accordingly submits the AWU should not be permitted to have any further involvement in the matter because it is no longer a bargaining representative for the proposed Agreement.

[9] Melbourne Recycling provided the Commission in Exhibit MRC1 with a bundle of what were indicated to be employee bargaining representative nomination forms. There are 29 of these forms in the bundle provided by Melbourne Recycling. They indicate that some employees nominated themselves as bargaining representatives, with other employees nominating a range of other individuals. In some cases employees have nominated two employees as their bargaining representatives. It appears that 16 bargaining representatives in total have been variously nominated in those forms. Twenty-two of the forms have the same date, being 17 October 2014. Two of the remaining forms are dated 16 October 2014, with another two dated 20 October 2014. The remaining form appears to be dated, presumably by mistake, 17 October 1983.

[10] Melbourne Recycling also handed up a further document (MRC2), which was indicated to be a petition signed by all employees to be covered by the proposed Agreement, indicating they do not want to be represented by the AWU. The document is undated. Melbourne Recycling submits it was signed by the employees “some time ago.” It contains a list of names and signatures under the wording, “I wish to enter into an E.A with MRC & Harpers negotiated direct with MRC and staff elected representative/s.” 3

[11] A comparison of the names on that list and the names of the employees who had completed the bargaining representation nomination forms provided by Melbourne Recycling indicate 24 of the individuals who signed the petition also completed one of these bargaining representative nomination forms.

[12] The AWU made brief submissions in response. It submits it has been appointed to be a bargaining representative by some of the employees who are to be covered by the proposed Agreement, and it believes those nominations remain in place. As a consequence it submits it is entitled to appear in the proceedings and make submissions about the current application. It also indicated it was not aware that any of the employees, who have nominated the AWU to be their bargaining representative, had subsequently acted to withdraw or replace those nominations.

[13] The AWU also provided a bundle of documents, each headed “RE: APPOINTMENT OF A BARGAINING REPRESENTATIVE.” 4

[14] There are 17 separate nomination forms in that bundle. Eleven of those were signed, but not dated. Of the remaining forms that were dated three were dated 24 October 2014, with three others dated respectively 22 October 2014, 23 October 2014 and 24 November 2014.

[15] Ten of the individuals who have signed these forms also appear to have signed the petition tabled in the proceedings by Melbourne Recycling. They include two of the employees who had also signed and dated their appointment as bargaining representative forms nominating the AWU. Those forms were dated respectively 22 October 2014 and 23 October 2014.

Consideration

[16] As indicated in the submissions provided on behalf of Melbourne Recycling the Full Bench decision in Collinsville deals at some length about the role of a bargaining representative. At [16] the Full Bench states:

“[16] There can be little doubt that a bargaining representative for a proposed agreement will have standing to be heard in relation to an application to approve the agreement. Bargaining representatives play a central and important role in the agreement making scheme established by Part 2-4 of the FW Act.” 5

[17] At [25] the Full Bench continued to indicate “Section 178 provides that an ‘appointment of a bargaining representative comes into force on the day specified in the instrument of appointment’”. 6 It follows that this appointment continues until such time as the employee appoints themselves or another bargaining representative and gives notice of that appointment to the employer.

[18] The circumstances involved in the present matter are by no means clear cut or devoid of uncertainty. Melbourne Recycling places reliance on the petition it tendered in the proceedings as evidence of the employees’ intention. However, regardless of any other considerations the petition is not dated and, as such, it is difficult to come to any precise conclusions about the document and its relevance in the current proceedings. Melbourne Recycling has also provided a bundle of bargaining representative nomination forms, which variously appear to nominate 16 different bargaining representatives, including a number of individuals who nominated themselves. The most recent date on any of these nomination forms is 20 October 2014. However, it is also noted that not all of these nominated bargaining representatives are named in the Form F16 – Application for approval of an Enterprise Agreement.

[19] As indicated, the AWU also provided a bundle of nomination forms, although the majority of those are undated. However, at least six of them are dated, with those dates indicating a more recent date than the dates on any of the nomination forms tendered by Melbourne Recycling. At least two of those individuals also appear on the petition provided by Melbourne Recycling.

[20] As indicated, it is somewhat difficult to form a clear view about the precise sequence of events in all the circumstances of this matter. Various documents are respectively relied upon but at the same time a number of these are incomplete or not dated. However, based on the submissions and the documents that have been provided in the proceedings it appears that the AWU has provided signed bargaining representative nomination forms from employees to be covered by the proposed Agreement nominating it as a bargaining representative for the proposed Agreement. It also appears that at least some of these nomination forms are dated most recently in terms of the documentation variously relied upon in the proceedings.

[21] Based on the content of these nomination forms I am satisfied that those employees, at least, have nominated the AWU to be a bargaining representative for the proposed Agreement in accordance with s.178(1) of the Act. I am also satisfied that those appointments have not since been revoked in accordance with s.178A of the Act. It is accordingly appropriate for the AWU, as a nominated bargaining representative for the proposed Agreement, to be heard in regard to this application for approval of the Agreement.

[22] In accordance with this decision the application will now be relisted to enable both Melbourne Recycling and the AWU, and indeed any other bargaining representatives, to be heard in relation to the application to approve the Agreement. A Notice of Listing confirming the date and timing of these proceedings will now be issued.

COMMISSIONER

 1   Letter from Craig Winter to Commissioner Roberts dated Monday 16 March 2015 at para 1

 2   [2014] FWCFB 7940

 3   Exhibit MRC2

 4   Exhibit AWU2

 5   Above n.ii at para 16

 6   Ibid at [25]

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