Mr Douglas Heath v Gravity Crane Services Pty Ltd
[2010] FWA 7751
•5 OCTOBER 2010
[2010] FWA 7751 |
|
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Mr Douglas Heath
v
Gravity Crane Services Pty Ltd
(B2010/3202)
DEPUTY PRESIDENT MCCARTHY | PERTH, 5 OCTOBER 2010 |
Application for a majority support determination.
Background
[1] This matter concerns an application lodged by Mr Douglas Heath (the Applicant) seeking a Majority Support Determination (MSD) for employees employed as Crane Operators and Riggers by Gravity Crane Services Pty Ltd (the Respondent) on the BHP Billiton works in Port Hedland, known as the Rapid Growth Project - Port (the Project).
[2] The Applicant is an organiser employed by the Maritime Union of Australia (MUA). He began that role in April 2010. Until 2008 he had been an organiser with the Construction, Forestry, Mining and Energy Union (the CFMEU). 1 He claims he is a bargaining representative for employees of the Respondent and hence able to make the application.
[3] The Respondent is based in Port Hedland, Western Australia and supplies taxi hire and dry hire mobile cranes to a range of customers throughout Western Australia. Taxi hire involves the provision of mobile cranes with operators, whereas dry hire involves the provision of mobile cranes only. The Respondent entered into a contract with European Dredging Corporation S.A. (EDC) trading as Jan De Nul (Jan de Nul). Jan de Nul is a Dutch dredging contractor engaged in performing dredging work on the Project.
[4] The Respondent provides specialised equipment with operators and supervisors for the performance of lifting and transport works. The work is performed in Jan de Nul's yard and workshop and involves the operation of mobile cranes to lift and relocate pipes and dredge cutter-heads in and out of the Jan de Nul workshop so that maintenance work can be performed on those pipes and dredge cutter-heads. The Respondent also provides cranage and rigging in support of the maintenance work.
[5] Jan de Nul's yard and workshop is within the Port Hedland Port Authority's complex, is fully enclosed and is 200 metres from the wharf (the site or the project site). Jan de Nul has a second yard at the Redbank storage area which is not located within the Port Authority complex pipes and cutter-heads are stored where the Respondent also provides crane services (the yard).
[6] The Applicant asserts that the terms of employment of the employees concerned are currently regulated by the Rapid Growth Project - Port Gravity Crane Services Pty Ltd Greenfields Agreement 2009(the Greenfield's Agreement). The agreement has a nominal expiry date of 3 February 2010.
[7] The Applicant sent correspondence to the General Manager of the Respondent indicating that he had been appointed as a bargaining representative for 12 of the employees engaged on the Project and that those employees wished to bargain for a new agreement to apply to their work. The application states that no response was received from the Respondent by the Applicant but that correspondence was sent to the Western Australian State Secretary of the MUA indicating that, in his view, the Applicant is the MUA and that he is not willing to bargain with the MUA for a new agreement.
[8] The Applicant asserted that a majority of the employees employed on the Project had signed documentation indicating that they wish to bargain for a new agreement. The Applicant also suggested that if I was not satisfied on his evidence that a majority of employees to be covered by the agreement did wish to bargain that I should order a ballot be conducted by the Australian Electoral Commission (AEC).
[9] The Respondent objected to an MSD. Much of the objection of the Respondent was directed at the validity of the application. The Respondent asserted that the Applicant was not eligible to be a bargaining representative and therefore was not able to make an application for a MSD. 2 The main contention by the Respondent was that the real applicant here was the MUA and that the MUA was not entitled to represent the employees concerned. The Respondent contended that the organisation that had that right was the CFMEU.
The Legislation
[10] The Fair Work Act 2009 (the FW Act) provides at s.236(1) that:
“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.”
[11] The FW Act in s.176(1) confines those who can be a bargaining representative for a proposed enterprise agreement to an employee organisation 3 and a person appointed in writing as a bargaining representative by an employee who will be covered by the agreement.4 It also precludes an employee organisation from being a bargaining representative for 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.5
[12] If a valid application has been made then I must make a MSD if:
(i) I am satisfied that a majority of employees, who are employed by the employer at a time I determine and who will be covered by the agreement, want to bargain;
(ii) if the employer concerned has not agreed to bargain; and
(iii) I consider it reasonable in the circumstances to make the determination requested. 6
[13] Furthermore, I must take into consideration whether the employees who will be covered by the agreement were fairly chosen. 7 For the purposes of determining a majority I can use whatever method I consider appropriate.
The Evidence
The Applicant
[14] The Applicant gave evidence that he had been assisting the employees of the Respondent who were engaged on the Project to seek a new agreement and had been appointed as the bargaining representative for 12 of the employees of the Respondent. 8 He provided copies of documents signed by 11 employees purporting to appoint him as a bargaining representative.9
[15] He stated that the Respondent at the time employed 13 employees in the classifications of "Crane Operator" and "Rigger" to work on the Project. 10
[16] He outlined the correspondence he had sent to the Respondent endeavouring to initiate bargaining. 11 He also indicated that he had not received any direct communications in response, although he was aware that correspondence had been sent to the MUA.12
[17] He stated that some of the employees concerned were members of the MUA 13 and he was unaware whether those employees, or any other employees, of the Respondent were members of the CFMEU.
Mr Fraser
[18] Mr Thomas Fraser, the General Manger of the Respondent, gave evidence. His understanding was that employees of the Respondent were, or had been, members of the CFMEU and that they had become members of the MUA. 14
[19] He stated that the Respondent employed 11 crane operators and eight riggers. 15 Six of those employees are based at the Respondent’s yard in Wedgefield, Port Hedland and perform various sized construction and maintenance jobs for a range of customers.16 He said that 13 of the Respondent’s crane operators and riggers perform work for Jan De Nul and a further 3 Supervisors supervise that work.17
[20] Mr Fraser outlined the various discussions and communications he had had with the Applicant and with the State Secretary of the MUA. 18 The essence of that evidence was that Mr Fraser had consistently and persistently indicated that he considered the Applicant to be the MUA and he did not recognise the MUA as having any rights to represent the employees of the Respondent.
Submissions
Edmunds
[21] Mr Edmunds, for the Applicant, contended that an application had been properly made, 19 and that the employer who will be covered by the agreement had not yet agreed to bargain or initiated bargaining for the agreement.20
[22] He also contended that the group of employees who will be covered by the agreement was fairly chosen and that they are a geographically distinct group of workers. 21
[23] He stated that the Applicant has been appointed as a bargaining representative for the employees in question and that in those circumstances he has standing. He claimed that constitutional coverage is not relevant for this application as the MUA did not lodge the application.
Drake-Brockman
[24] The representative for the Respondent, Mr Drake-Brockman, contended that the application was really a thinly disguised exercise by the MUA. 22 He also asserted that every outward sign would seem to suggest that these proceedings are being paid for by the MUA.23
Consideration
[25] It does not appear to be in contention that the employer has not agreed to bargain with the employees concerned. 24 It seems to me that the matters in contention are:
1. whether Mr Heath is, or can be, a bargaining representative for the employees concerned;
2. whether a valid majority of employees who will be covered by the agreement want to bargain; and
3. whether it is reasonable in the circumstances to make the determination.
[26] In considering whether a valid majority of employees want to bargain I am also obliged to consider whether those employees were fairly chosen. I canvassed this issue in the proceedings in an endeavour to ascertain who would be covered by the agreement and whether a majority of those employees wanted to bargain. The following interchange between Mr Fraser and I occurred:
“Right, so there’s 13 usually employed on the Project that would be covered by the agreement?---That is correct, sir.
And there’s another six, is there, that are usually employed at the yard?---That is correct, sir.
That are regularly employed or occasionally employed on the Project?---I would say regularly, sir, depending on the work flow.
And when they’re employed on the Project they’re covered by - well, they would be covered by any agreement that you reach for the Project?---That is correct, sir.
So there’s 19 that would be covered by the agreement?---That is correct, sir.” 25
[27] At the conclusion of the hearing I indicated I was unsure as to whether there was a valid majority of employees who did wish to bargain and decided that a ballot of employees that will be covered by the agreement be conducted. I issued a draft of the Order for that purpose and provided it to the parties. The Respondent made some suggestions in response to that draft which it transpires was not provided to the Applicant. It also seems that whilst I provided the Applicant with examples of ballot orders, they did not receive the final version of the Order before it was issued.
[28] The Order provided that the employees to be balloted were “those who perform work on the BHP Billiton works near Port Hedland known as the “Rapid Growth Project - Port”. The Respondent was directed to provide the AEC with the names and addresses of those employees to be balloted.
[29] The ballot was conducted by the Australian Electoral Commission (the AEC) and involved 21 employees. It is unclear to me where each of those 21 employees were usually employed.
[30] The result of the ballot was that 11 employees voted and of those, 8 supported bargaining for a new agreement.
[31] After the results of the ballot had been declared I convened a conference. At that conference the Applicant complained that the ballot should not have extended to employees who were not permanently employed at the site and should not have been included in the ballot. Further, the Applicant advised that they had not received the final draft of the Order. The Respondent argues that 21 employees should have been included as all of them will be covered by any agreement, although some only when they attend the site and not for the majority of the time they work, which is in the yard.
[32] There was no substantive argument put by either side regarding the persons to be included in the ballot at the hearing. The evidence outlined above (in para 26) were responses to my questions as it was unclear to me who should be included in the ballot. However, the evidence of Mr Fraser was clear that the agreement would cover persons in the yard as well as at the site and it was on that basis that the scope of the Order was directed in the way that it was.
[33] I note that it is impossible to dissect the support for the agreement by the location of the employees. This may have been a flaw in the Ballot Order. One might assume that all of the eight employees who voted in favour of bargaining were employed at the site and that none of the employees who were employed at the yard were. Therefore, if one were to not include the employees in the yard then a valid majority of employees may wish to bargain. However, such an assumption would not be safe as there is nothing before me that is indicative of how employees voted. It is also unclear to me why the number of persons balloted were 21 yet the evidence of Mr Fraser was that the agreement would cover 19 employees.
[34] The issue of course, in this element of my considerations, is whether the employees were or were not "fairly chosen". On one view the only employees chosen should be those that are permanently employed on the site and not those that are employed mainly at the yard and occasionally employed at the site. On another view, both groups of employees should be included in the ballot as to not include both would mean that employees who will be covered by the agreement, even though they will not be covered by the agreement for all of the work they perform, will nevertheless fall within the parameters of employees who will be covered by the agreement. This issue was not argued before me in any substantive way and I have not formed a concluded view on it. In the circumstances it is not necessary that I make any findings in this regard as I have decided to not make a determination for other reasons.
[35] As stated above, the main contention of the Respondent is that the Applicant is really the MUA in disguise. I note that there is nothing in the FW Act that prevents an employee or a group of employees from appointing a person who happens to be an employee of an employee organisation from being appointed as a bargaining representative.
[36] However, one must have regard to the purposes of the provisions in the FW Act. It seems to me that the very purpose of s.176(3) is to avoid demarcation disputes between employee organisations. The Explanatory Memorandum notes that:
“Subclause 176(3) provides that an employee organisation cannot be a bargaining representative for an employee unless the employee organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the proposed enterprise agreement. 26
[37] Whilst the Objects of FW Act state that an object is “enabling fairness and representation at work....by recognising the right to freedom of association and the right to be represented,” 27that object should be viewed in the context of the Fair Work (Registered Organisations) Act 2009 (the FW Registered Organisations Act). That Act outlines quite extensively Parliaments intention regarding coverage of types of employment and the orderly regulation of that coverage.
[38] As stated above there is no prohibition on an employee of an employee organisation being a bargaining representative and there may be many circumstances where it is appropriate for that to be the case. However, this is not one of those occasions. It can be safely inferred that some employees are members of the CFMEU and the coverage of the employees would seem to be outside the scope of the MUA area of coverage. It also concerns me that there has been no explanation as to why the CFMEU is not representing the employees or has any view regarding the MUA representing CFMEU members. The CFMEU was clearly aware of the proceedings but did not endeavour taking part nor inform the Tribunal in any way.
[39] The Applicant argued that he was not acting in his capacity as an employee or organiser of the MUA nor acting on behalf of the MUA however his testimony was not convincing to me about the relationship between his obligations as an employee of the MUA and the role he would be performing by his representing the employees concerned. Furthermore, there was no satisfactory explanation regarding the role of the MUA, if any, or the reasons it was allowing Mr Heath's role.
[40] In the circumstances of this matter, even if a fairly chosen majority of employees do wish to bargain, I do not consider it reasonable to make the determination requested. I have therefore decided against making a Majority Support Determination as I consider it is not reasonable in the circumstances to do so.
DEPUTY PRESIDENT
Appearances:
Mr L. Edmonds, on behalf of the Applicant.
Mr A. Drake-Brockman, on behalf of the Respondent.
Hearing details:
2010.
Perth:
July, 20.
1 pn 93
2 see s.236(1)
3 s.176(1)(b)
4 s.176(1)(c)
5 s.176(3)
6 s.236(2)
7 s.236(3A)
8 DH 1, para 7
9 DH 1
10 DH 1, para 4
11 DH 1, para 8
12 DH 1, para 8
13 pn 106
14 R1, para 24
15 R1, para 6
16 R1, para 6
17 R1, para 7 and 8
18 R1, para 21-46
19 pn 24
20 pn 25
21 pn 26
22 pn128
23 pn 128
24 pn 356, 414-418
25 pn 499-504
26 see para 718 of Explanatory Memorandum for Fair Work Bill 2009
27 s.3(e)
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