The Australian Workers' Union

[2018] FWC 2828

[2018] FWC 2828

The attached document replaces the document previously issued with the above code on 24 May 2018.

Paragraph numbering corrected.

Callum Young

Associate to Deputy President Asbury

Dated 24 May 2018

[2018] FWC 2828

FAIR WORK COMMISSION

DECISION

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

The Australian Workers' Union
(B2017/1183)

DEPUTY PRESIDENT ASBURY BRISBANE, 24 MAY 2018

Application for majority support determination - Whether FWC satisfied that a majority of relevant employees want to bargain – Satisfaction in relation to matters in s. 237 of the Act reached - majority support determination made

[1] On 11 December 2017, the Australian Workers’ Union (AWU) applied under s.236 of the Fair Work Act 2009 (the Act) for a majority support determination with respect to employees of ENI Australia Limited (ENI). The application was opposed by ENI. The background can be briefly stated.

[2] The application was listed for Mention/ Directions on 21 December 2017, and was adjourned at the request of the AWU to 16 January 2018. ENI filed a response to the application questioning an apparent inconsistency between the coverage of the proposed enterprise agreement as set out in the application and the supporting material said to establish majority support. ENI contended that the coverage evidenced in the supporting material is General Operators and Production Operators employed at the Yelcherr Gas Plant, as opposed to all employees of ENI as stated in the application.

[3] ENI also objected to the application on the basis that the Fair Work Commission could not be satisfied on the evidence provided with the application that a majority wanted to bargain.

[4] Directions were issued on 16 January 2018 directing the AWU to provide an unredacted copy of the petition on which it collected signatures of employees in support of bargaining for an enterprise agreement, and directing ENI to provide a list of employees within the coverage of the proposed enterprise agreement. This information was for the purpose of establishing on a preliminary basis whether it appeared that a majority of employee wanted to bargain. The Directions also required the parties to file outlines of submissions and witness statements in relation to the application if there was a basis for the Commission to form a preliminary view that a majority of relevant employees wanted to bargain.

[5] A Mention/Directions hearing was held on 16 January 2018 during which the AWU stated that the intended coverage of the proposed enterprise agreement was employees of ENI employed at the Yelcherr Gas Plant.

[6] On 18 January 2018 I instructed my Associate to send correspondence to the parties advising that I had formed a provisional view that a majority of employees who will be covered by the proposed enterprise agreement want to bargain with the Employer, on the basis of the material filed by the parties at that point.

[7] On 1 February 2018 the AWU filed an amended F30 application confirming that the group of employees to be covered by the proposed agreement is employees of ENI employed at the Yelcherr Gas Plant.

[8] In its outline of submissions filed on 15 February 2018, ENI objected to the application on the basis of the assertion that the Commission could not be satisfied that a majority of the employees who will be covered by the proposed agreement wanted to bargain pursuant to s.237(2)(a) of the Act. ENI Australia Limited submitted that the date of certain signatures on the petition indicates that a lengthy period of time had passed between the employees signing the petition and the filing of the application, and the fact that the signatures had been collected in person caused a risk that employees did not genuinely want to bargain. ENI submitted that a further ballot should be conducted by the Australian Electoral Commission in order for the Commission to make a finding as to whether it was satisfied that a majority of employee want to bargain.

[9] The matter was listed for a further Mention/Directions hearing on 22 February 2018. At that hearing the parties agreed that a ballot should be conducted and ENI was directed to make enquiries of the Australian Electoral Commission about the matter. On 28 February 2018 ENI sent correspondence to my Chambers stating that it proposed to conduct the ballot through the Australian Electoral Company, and that ENI meet the cost of conducting the ballot. On 2 March 2018 I instructed my Associate to send correspondence providing information about the secret ballot process by the Australian Electoral Company to the AWU, and stating that subject to any objection the AWU (to be made no later than 5 March 2018), ENI could proceed to organise the secret ballot. No correspondence was received from the AWU and the ballot proceeded.

[10] Correspondence was received from ENI Australia Limited on 16 April 2018 stating the results of the secret ballot were that eight out of fourteen eligible employees voted in support of bargaining for an enterprise agreement. I instructed my Associate to send correspondence to ENI Australia Limited requesting clarification as to whether there was any further objection to the application and if not, whether the matter could be determined without a hearing on the basis of material filed by the parties.

[11] ENI advised that it did not wish to make further submissions in relation to the application and that the matter could be determined on the basis of the material filed by the parties.

Legislation

[12] Section 237 of the Act provides 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.”

[13] The Commission must make a majority support determination if an application for the determination has been made and if the Commission is satisfied of those matters set out in s.237(2) of the Act.

[14] An application for a determination is made pursuant to s.236 of the Act. Section 236 provides:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single enterprise agreement may apply to the FWC 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.”

Consideration

[15] It is not in dispute that the AWU is a bargaining representative of an employee who will be covered by the proposed single enterprise agreement. It is also not in dispute that the application for a determination specifies the employer that will be covered (ENI Australia Limited) and the employees who will be covered by the agreement (General Operators and Production Operators at the Yelcherr Gas Plant). Accordingly I must make the determination if I am satisfied in relation to the matters set out in s.237(2) of the Act.

[16] The matters in ss.237(2)(b), (c) and (d) are not in dispute. It is not disputed by ENI Australia Limited that it has not yet agreed to bargain or initiated bargaining in respect of the proposed Agreement. Its conduct of this matter makes clear that it has not done so. It is also not in dispute that the group of employees proposed to be covered by the agreement have been fairly chosen. I have taken into account that the group of employees proposed to be covered by the agreement is geographically and operationally distinct. No circumstances have been identified that would otherwise make it not reasonable to make the determination sought.

[17] I am satisfied on the basis of the result of a ballot of employees conducted by the Australian Electoral Company, that there are fourteen employees who will be covered by the proposed Agreement. I am further satisfied that eight of those employees have indicated that they wish to bargain.

Conclusion

[18] Having formed the requisite satisfaction in relation to the matters in s. 237(2) of the Act, I must make a majority support determination. A determination will issue with this Decision.

DEPUTY PRESIDENT

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