National Union of Workers v CMC Coil Steels Pty Ltd
[2010] FWA 410
•22 JANUARY 2010
[2010] FWA 410 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
v
CMC Coil Steels Pty Ltd
(B2010/2508)
SENIOR DEPUTY PRESIDENT KAUFMAN | MELBOURNE, 22 JANUARY 2010 |
s.236 – Application for a majority support determination – matters non-pertaining to employer/employee relationship – relevance for purpose of majority support determination – sighting log of claims – group fairly chosen.
[1] The National Union of Workers has applied for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act). It seeks a determination that a majority of the employees who will be covered by a proposed single-enterprise agreement to be made with CMC Coil Steels Pty Ltd (CMC) wish to bargain with their employer. The application was opposed by CMC.
[2] Sections 236 and 237 of the Act set out the requirements for the making of a majority support determination. They read:
236 Majority support determinations
(1) 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.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
237 When FWA must make a majority support determination
Majority support determination
(1) FWA 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) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which FWA must be satisfied before making a majority support determination
(2) FWA must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by FWA; 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), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA 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.
[3] The application, which is in the form provided for in the Rules, complies with the requirements of s.236(2)(d) in that it specifies the employer and the employees who will be covered by the proposed agreement. It also complies with the requirements of s.236(2)(b), it not being in contention that CMC does not intend to bargain.
[4] CMC, which at the hearing was represented by Mr T Caspersz, of counsel, submitted that as the proposed agreement does not satisfy the description of a proposed single-enterprise agreement, no valid application for the majority support determination has been made as required by s.237(1)(a) of the Act.
[5] Mr Caspersz further submitted that, in any event, Fair Work Australia could not be satisfied, as it must pursuant to s.237(1)(a), that a majority of the relevant employees wants to bargain.
[6] Additionally, he submitted, Fair Work Australia could not be satisfied that the group of employees who will be covered by the agreement was fairly chosen as required by s.237(1)(c), or that it is reasonable in all of the circumstances to make the determination as required by s.237(1)(d).
[7] The facts are largely uncontentious. On or about 6 October 2009 the NUW, under cover of a letter signed by its General Branch Secretary, served a “log of claims which we seek to have included in an enterprise agreement pursuant to section 172 of the” Act. A response was sought from CMC within seven days. A log of claims that dealt with 34 items was attached to the letter.
[8] Mr Caspersz, relying on decisions dealing with the taking of protected industrial action, submitted that from the demands contained in the log of claims, it is apparent that the agreement that the NUW seeks, is incapable of falling within the description of a single-enterprise agreement as defined by s.172 of the Act because it contains matters that do not pertain to the relationship between CMC and its employees as required by s.172(1)(a), or to the relationship between CMC and the NUW as required by s.172(1)(b).
[9] In Wesfarmers 1 it was held that provisions that restricted or qualified the right to use independent contractors, did not pertain to the employer/employee relationship, and that consequently, industrial action taken to support a claim for such was not protected because it was not taken to support or advance the making of an agreement that was capable of being made under the Workplace Relations Act 1996.
[10] Wesfarmers has been followed in the Australian Industrial Relations Commission and Fair Work Australia. 2
[11] Applying the reasons in Wesfarmers, Mr Caspersz submitted that as the agreement that the NUW seeks by its log is not one that could be made under the Act there is no “proposed single-enterprise agreement” in respect of which a majority support determination may be sought.
[12] Mr Caspersz referred to particular clauses in the log of claims and submitted that they were non-pertaining and therefore not within s.172(1) of the Act.
[13] He also submitted that some of the terms were unlawful terms within the meaning of s.194, and that the requirement in s.186(4) that Fair Work Australia be satisfied that the agreement does not include any unlawful terms before it may be approved, also rendered the proposed agreement one that is not an agreement under the Act.
[14] Mr G Moase, who appeared for the NUW, submitted that all of the terms of the log pertain to the requisite relationship with s.172(1) and that none of them is unlawful.
[15] In my view, it is not necessary to decide whether or not the items included in the log of claims are capable of being included in an enterprise agreement as defined by s.172 of the Act.
[16] The making of a majority support determination is one of the ways in which bargaining for an enterprise agreement commences 3. It is not necessary that there be a log of claims at that stage. Section 236(1) merely specifies that a majority of employees who will be covered by a proposed single-enterprise agreement want to bargain for the making of it. A proposed agreement can be an idea, or it can be a series of claims on behalf of a group of employees whose bargaining representatives seek to negotiate with the employer with a view to it becoming an agreement that is ultimately approved by Fair Work Australia.4
[17] That a log of claims intended to commence the bargaining process might contain non-pertaining or unlawful items does not demonstrate that the union is seeking something that could not be approved under the Act. Such a conclusion would be premature. It might well be that upon being apprised of the situation the union would delete the offending items.
[18] In my view, some sort of persistence with a claim for offending items need be demonstrated before it could be said that a union is seeking an agreement that is incapable of being made under the Act. It would be antithetical to the objects of Part 2-4 of the Act to require a bargaining agent for a proposed agreement to have defined an agreement capable of approval from the outset. 5 It might be otherwise where an application is made for a protected action ballot where there has been bargaining and such items still form part of the demand.
[19] In this case the NUW in its letter of 6 October 2009 states that it wishes to have an enterprise agreement made pursuant to s.172 of the Act. That some of the items in its log of claims might not be able to be included in such an agreement does not persuade me that it is not seeking such an agreement.
[20] Accordingly, it is not necessary to decide the status of the allegedly objectionable items in the log.
[21] I find that there is a valid application for a majority support determination and that the requirements of s.237(1)(a) are satisfied.
[22] Mr Caspersz then submitted that I could not be satisfied that the requirements of s.237(2)(a) have been met.
[23] The gravamen of this submission was that, on the evidence, it was apparent that four of the ten CMC employees who signed a petition to the effect that they, being members of the NUW, “want CMC Coil Steels business in Western Australia to negotiate our log of claims with the National Union of Workers” 6, had not seen the log when they signed the petition. An eleventh signature was that of an employee of a contractor, and has been ignored for the purposes of this matter. As the four employees had not seen the log when they signed the petition, Mr Caspersz submitted they could not be said to want to bargain for the proposed agreement.
[24] I do not accept this conclusion. The fact that the employees had not seen the log of claims does not mean that they do not want their union to bargain on their behalf in respect of it. It is enough that they put their faith in the union.
[25] I am satisfied that each of the petitioners was told that its purpose was to demonstrate that they were members of the NUW and that they wished to bargain for an agreement with CMC. 7
[26] Accordingly, the petition is evidence that ten of CMC’s employees wish to bargain. CMC submitted that supervisors and managers should be counted for the purposes of determining whether a majority of its employees wants to bargain. On that basis there are 16 employees who fall within the coverage of the proposed agreement as described in cl.2.2 of the application. It follows that, even on CMC’s argument, a majority of the employees who are employed by CMC and who will be covered by the agreement, want to bargain. I respectfully agree with Senior Deputy President Richards that the time at which the number of employees who want to bargain is taken is at the time that Fair Work Australia makes the determination. 8
[27] Mr Caspersz did not submit that the group of employees to be covered by the agreement was not fairly chosen. I am satisfied that the group, being employees within the scope of the Storage Services Steel Distributing Award 2000 an award which covers CMC and its employees at the CMC warehouses at Hazelmere and Welshpool was fairly chosen, it being geographically, operationally and organisationally distinct. Accordingly, the requirements of s.237(2)(c) have been met.
[28] I am satisfied that, as a majority of the relevant employees wants to bargain and that CMC resolutely resists bargaining, it is reasonable in all the circumstances to make the determination.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr G Moase, for the applicant, National Union of Workers.
Mr T Caspersz, of counsel, for the respondent, CMC Coil Steels Pty Ltd.
Hearing details:
2010
PERTH
18 JANUARY
1 Wesfarmers Premier Coal Limited v The Automotive Food Metals Engineering, Printing and Kindred Industries Union (No 2) (2004) 138 IR 362; [2004] FCA 1737.
2 Australian Postal Corporation v Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union of Australia[2009] FWAFB 599; Re: Rural City of Murray Bridge, Schefenacker Visions Systems P/L and La Trobe University Children's Centre Enterprise Bargaining Agreement 2004, Giudice J, Lawler VP, Simmonds C, 18 March 2005 [PR956575].
3 Australian Postal Corporation v Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union of Australia[2009] FWAFB 599.
4 Fair Work Bill 200 8 – Explanatory Memorandum, para. 643.
5 Wesfarmers at [56]
6 Ex R2.
7 PN 33
8 [2009] FWA 1642 at [14].
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