The Australian Workers' Union v Bluescope Steel Limited T/A Bluescope Lysaght

[2010] FWA 874

[2010] FWA 874

FAIR WORK AUSTRALIA

DECISION

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

The Australian Workers' Union
v
Bluescope Steel Limited T/A Bluescope Lysaght
(B2010/2594)

COMMISSIONER HARRISON SYDNEY, 8 FEBRUARY 2010

Bargaining – majority support determination.

[1] This is an application for a majority support determination by The Australian Workers’ Union (AWU) pursuant to s.236 of the Fair Work Act 2009 (the Act). The application seeks a declaration that a majority of employees of Bluescope Steel Limited trading as Bluescope Lysaght (Bluescope), who will be covered by an agreement, want to bargain.

RELEVANT LEGISLATION

[2] The provisions of s.236 and s.237 of the Act are as follows:

“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] The application states the proposed agreement is to cover “…all employees of Bluescope Steel Limited engaged at their Arndell Park (Bluescope Lysaght) site in New South Wales except for managerial staff. We understand that there are currently approximately 25 employees who would be covered by the proposed agreement.”

[4] On 23 December 2009, Bluescope replied to the AWU following a request to bargain for an enterprise agreement in the following terms:

“….As you know, Arndell Park does not currently have a collective agreement in place and its workers are employed under individual contracts of employment. Although we are aware that some of our employees have recently become members of the AWU we have as yet not any formal evidence to suggest that a majority of our Arndell Park Operations employees have requested to commence bargaining for an enterprise agreement.

Under the Fair Work Act 2009 there are certain conditions and procedural requirements that when met would enforce an Employer to enter into such negotiations. These conditions and procedural requirements have as yet not been adhered to and your letter of request does not satisfy these requirements.

The Company will therefore not be commencing bargaining for a new enterprise agreement at this stage.”

[5] In proceedings on 3 February 2010, Mr Crawford for the AWU submitted that the requirements of ss.236 and 237 have been met. Appended to the application was a list of AWU members employed by Bluescope (which was not provided to Bluescope) together with a petition signed and dated by 19 employees stating they “…wish to negotiate an enterprise agreement to cover the work undertaken on the Arndell Park site”.

[6] Mr Mead, appearing for Bluescope, questioned the validity of the application by reference to s.236(2)(b), which requires a degree of specificity regarding the employees to be covered by an agreement. He submitted that there were approximately 70 employees engaged at the Arndell Park site, excluding managerial employees, who covered the roles of customer service, accounts, logistics as well as production employees.

[7] It was submitted that the appropriate course for the AWU would be to withdraw the application and refile a fresh application which clearly identified who will be covered by the proposed agreement.

[8] In response to an application by the AWU to amend the application pursuant to s.586, I agreed it was appropriate to exercise my discretion and accept a correction to the application. The minor amendments effectively narrowed the scope of the agreement to production employees.

[9] Mr Mead submitted that in contested applications for majority support determinations it was appropriate to seek evidence, as distinct from accepting submissions, to satisfy the Tribunal that the requirements of the Act are met.

[10] Mr Ted Mitchell, AWU Organiser, gave brief evidence about his involvement with the Arndell Park site of Bluescope and meetings he held with employees regarding a proposed enterprise agreement.

[11] In further submissions Mr Mead argued that, having regard to Mr Mitchell’s evidence, the Tribunal could not be satisfied that the requirements of s.237(2) had been discharged. He questioned whether the signatures on the petition were genuinely given, free from coercion and on an informed basis. I was referred to a number of decisions of members of the Tribunal which were said to be about similar issues relating to this matter.

[12] I have considered the decisions of the single members so referred. As I stated during these proceedings, each application for a determination stands on its own. There can be circumstances where for a variety of reasons a secret ballot is the appropriate course to ascertain the views of the employees or where a petition or other method could be found to be an appropriate method to gauge the employees’ wishes.

[13] In this matter the question put to the employees was simple and to the point. I have no reason to doubt that the support for the proposition by way of a petition was not a genuine and legitimate expression. There is no evidence to the contrary.

[14] Accordingly, I am satisfied that the AWU petition signed by 19 employees between 16 December 2009 and 5 January 2010 was an appropriate method to establish that a majority of employees wish to bargain with Bluescope.

[15] It is not disputed that Bluescope have not yet agreed to bargain for an agreement or that the group of employees proposed to be covered were not fairly chosen.

[16] In all of the circumstances I consider it reasonable that a majority support determination should be made.

[17] A Determination pursuant to this decision will issue as print PR993419.

COMMISSIONER

Appearances:

S. Crawford with E. Mitchell for The Australian Workers’ Union.

M. Mead of The Australian Industry Group with P. O’Toole and J. Boss for Bluescope Steel Limited T/A Bluescope Lysaght.

Hearing details:

2010.

Sydney:

February 3.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR993416>