National Union of Workers v Aqua Terra Oil and Mineral Service and Supply Company Pty Ltd

[2017] FWC 6110

[2017] FWC 6110

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Aqua Terra Oil and Mineral Service and Supply Company Pty Ltd
(B2017/853)

DEPUTY PRESIDENT COLMAN MELBOURNE, 20 NOVEMBER 2017

Application by National Union of Workers for a majority support determination.

[1] This decision concerns an application by National Union of Workers (NUW) made under s.236 of the Fair Work Act 2009 (Act) for a majority support determination. The NUW contends that a majority of employees who will be covered by a proposed enterprise agreement want to bargain with their employer, Aqua Terra Oil and Mineral Service and Supply Company Pty Ltd (Company). The employees in question are drivers, forklift operators and storemen employed by the Company at 11-15 MacKay Street Kewdale in Western Australia.

[2] The application was accompanied by a redacted copy of a petition that appeared to indicate that 20 employees wanted to bargain with the Company for an enterprise agreement. Also attached to the application was a letter from the Company to the NUW dated 28 July 2017, stating that the Company was not prepared to agree to bargain.

[3] On 9 October 2017, I conducted a telephone mention, during which the Company advised that it opposed the making of a majority support determination. On 10 October 2017, I issued directions that the parties file outlines of submissions and any witness statement or other documents they sought to rely on. I also directed the NUW to file an un-redacted copy of its petition, and that the Company file a list of persons it employs as drivers, forklift operators and storemen at the Kewdale site.

[4] The parties filed their respective materials in accordance with the timetable set by my directions. However, on 23 October 2017 the Company wrote to my chambers and advised that it withdrew its objection to the application, although it did not ‘consent’ to the application and adopted a neutral position in relation to it. It did not however withdraw its submission. On 31 October 2017, the NUW requested that the Commission decide its application on the papers, and the Company advised that it had no objection to this course.

[5] Section 236 of the Act provides that a bargaining representative of an employee who will be covered by a proposed single enterprise agreement may apply to the Commission for a determination that a majority of the employees who will be covered by a proposed agreement want to bargain with the employer that will be covered by the agreement. Such an application must specify the relevant employer and the employees who will be covered by the agreement.

[6] Section 237 then provides that the Commission must make a majority support determination in relation to a proposed single enterprise agreement if an application has been made under s.236, and the Commission is satisfied of the matters in s.237(2), namely 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.”

[7] In relation to the matter in s.237(2)(a), the Commission may work out whether a majority of employees want to bargain using any method it considers appropriate (s.237(3)).

[8] In respect of s.237(2)(c), if the proposed agreement will not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct (s.237(3A)).

Consideration

[9] The NUW’s application for a majority support determination meets the requirements of s.236. It is an application by a bargaining representative of employees who will be covered by a proposed single enterprise agreement. There was no dispute that the union represents members at the site, and that its registered rules entitle it to represent the industrial interests of employees of the kind who would be covered by the proposed agreement. 1

[10] In relation to s.237(2)(a), the Commission must consider whether a majority of the relevant employees employed by the Company at a particular time, and who will be covered by the agreement, want to bargain. The time that I have determined for the purposes of s.237(2)(a)(i) is 11 October 2017, being the date on which the NUW submitted its un-redacted final petition. It will be recalled that the Company’s list of relevant employees was filed on 10 October 2017.

[11] The list of employees provided by the Company contains 36 names of persons employed as ‘delivery drivers’ and ‘storemen’, as well as team leaders and supervisors. No issue was taken by the NUW in relation to the inclusion in the list of team leaders or supervisors. I accept that it is appropriate to include such employees in the list of current employees whose employment would be covered by the proposed agreement.

[12] The NUW’s un-redacted petition identifies 21 names and signatures of drivers, forklift operators and storemen. Twenty of these names correlate with names appearing on the Company’s list. This shows that a majority of the 36 employees wish to bargain.

[13] In relation to the question of the method that should be used in establishing whether a majority of employees want to bargain, I am satisfied that the use of a petition is appropriate in the present case (s.237(3)). 2 The NUW filed a sworn witness statement, in the form of a statutory declaration, of Mr Tim Jager, NUW Organiser, addressing the circumstances in which the petition was obtained.3 This evidence was not contradicted and I accept it.

[14] The outline of submission filed by the Company alleged that some employees had been subjected to pressure from other employees to sign the petition. 4 It is not clear whether the employees allegedly subjected to pressure include any employees who signed the petition. There is no evidence to support the allegation. The employer did not file any witness statements. In my view, there is no proper basis to question the legitimacy of the petition as an expression of the wishes of the employees who have signed it.

[15] I am satisfied that a majority of employees employed on 11 October 2017 and who will be covered by the proposed agreement wish to bargain.

[16] I am also satisfied of the matters set out in s.237(2)(b), (c) and (d). First, the company has confirmed that it has not yet agreed to bargain. Second, I am satisfied that the group of employees who will be covered by the agreement was fairly chosen. In reaching this conclusion, I have taken into account whether the group is geographically, operationally or organisationally distinct, as required by s.237(3A). In my view the group in question - drivers, forklift operators and storemen - is at least operationally distinct, which is a factor telling in favour of a finding that the group was fairly chosen. 5 Thirdly, I am satisfied that it is reasonable in all the circumstances to make the determination. No contention to the contrary was raised by the Company, nor can I identify any basis for such a contention in the materials before me.

[17] As I am satisfied of the matters set out in s.237, I must make a majority support determination in accordance with s.237(1).

[18] A determination will be issued separately. As provided by s.237(4), the determination will come into operation on the date on which it is made.

DEPUTY PRESIDENT

 1   It is not necessary that the union be eligible to represent all relevant employees. See ResMed Limited v AMWU, [2014] FWCFB 2418

 2   NUW v Cotton On Group Services Pty Ltd, [2014] FWC 6601

 3   Witness statement of Mr Tim Jager, paragraphs 3 to 7

 4   Company’s outline of submissions, paragraph 5

 5   See QGC Pty Ltd v AWU, [2017] FWCFB 1165 at [42]

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