[2020] FWC 5428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

The Australian Workers’ Union
v
Construction Sciences Staff Pty Ltd T/A Construction Sciences
(B2020/337)

COMMISSIONER MCKENNA

SYDNEY, 3 NOVEMBER 2020

Application for a majority support determination.

[1] The Australian Workers’ Union (“the applicant”) has made an application, pursuant to s.236 of the Fair Work Act 2009 (“the Act”), in which it seeks a majority support determination (“determination”). The respondent employer, Construction Sciences Staff Pty Ltd T/A Construction Sciences (“the respondent”), opposes the application for the determination on various bases.

[2] It is apposite to outline some of the lengthier-than-usual background to this application. In late-April 2020, the applicant commenced steps in relation to gathering petitioners’ names for a petition which had text which read:

“Majority support petition to commence bargaining for an enterprise agreement

We, the undersigned, are Aggregate, Concrete, Soil Testers and Laboratory workers, employed by CCS Staff Pty Ltd trading as Construction Sciences Pty Ltd (ABN74128806735) (Construction Sciences) in the Sydney Metro laboratories and field (Construction Sciences Testers and Laboratory employees). The employment of Testers and Laboratory employees is covered by the Manufacturing and Associated Industries and Occupations Award 2010.

We, the Construction Sciences, Testers and Laboratory employees declare that we wish to commence bargaining immediately with Construction Sciences in relation to a proposed enterprise agreement (agreement). We seek that the agreement only apply to Construction Sciences Testers and Laboratory employees and to no other employees. We nominate The Australian Workers’ Union to act as our bargaining representative in this matter.” (Bold in original).

[3] Beneath that text in the petition there were five rows for the identification of the petitioners’ first name, surname, contact number and signature, and the date. The dates in question were within a time-span of 23-27 April 2020. On 5 May 2020, the applicant wrote to the respondent seeking negotiations for an enterprise agreement (there were also other exchanges of correspondence between the applicant and the respondent about alleged underpayments, which I do not reproduce in this decision). The letter of 5 May 2020 relevantly read:

“The Australian Workers’ Union, in accordance with s.176 of the Fair Work Act 2009 (Act), on behalf of its members employed by your company is a bargaining representative and seeks to commence negotiations for the establishment of an Enterprise Agreement to cover Field Testers and Laboratory staff.

In accordance with s.173 of the Act, the company is required to forward to each of its employees that could be covered by this proposed agreement a ‘Notice of Employee Representational Rights’ no later than 14 days after you agree to bargain for the new agreement.

The union proposes that the parties schedule a meeting at your premises to begin discussions for the creation of this enterprise agreement. The union believes that this initial meeting will involve the establishment of a process for the parties to adopt to deal with the negotiations. Should you wish to discuss this in greater detail, please do not hesitate to contact me directly on [telephone number] or alternatively at [email address].

I look forward to reading your response.”

[4] On 3 June 2020, the applicant sent emailed correspondence to the respondent which relevantly read:

“I have not had a response regarding the attached email sent to [named individual] on 5 May 2020.

Can you please respond.

Failure to do so will see the AWU lodge bargaining orders in the FWC.”

[5] On 4 June 2020, approximately one month after the correspondence from the applicant in which it sought the commencement of bargaining and one day after the applicant’s follow-up for a response, the respondent advised that it declined to commence bargaining. The respondent’s letter relevantly read:

“Thank you for your letter dated 5 May 2020 regarding proposed negotiations with Construction Sciences Pty Ltd (the Company) for an enterprise agreement to cover its Field Testers and Laboratory employees.

The Company has arrangements in place to manage our employees’ terms and conditions. These arrangements work for both us and our employees and we do not propose to change our approach to the manner in which we administer those terms and conditions.

The Company is under no obligation to agree to bargain with the AWU for an agreement, and it does not propose to do so.

In these circumstances, we are not required to issue a Notice of Employee Representational Rights to any of our employees.”

[6] On 23 June 2020, the applicant lodged the application for the determination. The application was accompanied by a request from the applicant that the matter not be listed before 29 June 2020 and also noting lack of availability on 2 July 2020. Due to the applicant’s request, the matter initially was listed on 3 July 2020. It is appropriate to note that the copy of the application attached to the Notice of Listing concerning the first listing inadvertently included the petition pages. That matter self-resolved with the provision of certain undertakings being provided in the proceedings. (Separately, there was also a later full exchange, by consent and on a restricted usage basis, of the parties’ respective materials containing employees’ names.) Shortly before the initially-scheduled listing on 3 July 2020, the applicant submitted a further petition page (albeit that initial listing had to be rescheduled to 6 July 2020 due to the systems-wide Skype for Business technical issues within the Commission on 3 July 2020). The date segment in the further petition page indicated that the two petitioners had signed the petition page on 2 July 2020, being a date later than the original petition signings around late-April 2020 and also later than the lodgement of the application for the determination on 23 June 2020. That additional petition page was sent to my chambers without permission or directions having been given for the submission of any materials or additional materials. I expressed concern about the additional petition page being submitted after the date of the filing of the application. (Separately, it may be noted that the applicant obtained a third additional petitioner’s signature on 17 July 2020; that further petition page was provided around the first hearing date of 10 September 2020.)

[7] Given the respondent indicated it was opposed to the making of a determination, I discussed with the parties that I wished to have the following from the parties:

• from the applicant, a typed list of names of the petitioners with the surname first and in alphabetical order; and

• from the respondent, a typed list of names of relevant employees with the surname first and in alphabetical order.

[8] I sought that the applicant provide a typed list of the petitioners’ names because, in my experience, the handwritten names/signatures on petitions are often illegible or difficult to read. I requested the information from the parties so a comparison could be made between the two typed lists, cross-referenced by me against the handwritten names on the petition so a count could be undertaken.

[9] I might note that while I requested this information in the form of surname first and in alphabetical order:

• the applicant provided a list which was in alphabetical order but with the given names of the petitioners first, instead of the surname first;

• the applicant omitted from its typed list the names of petitioners which it understood to have left employment with the respondent;

• the applicant included in its typed list the names of the two petitioners who had signed petition pages on 2 July 2020, after the application had been lodged, albeit I had not ruled on whether those additional names should be accepted;

• the respondent provided a list of names which was not in alphabetical order - one segment was in alphabetical order and then the alphabetical list restarted for a second time in alphabetical order.

[10] The failure by the parties to provide the information in the form I had identified made the comparison task more difficult than it should have been. To compound matters, there was a name/signature in one of the applicant’s petition pages and in the applicant’s typed list of petitioners which did not correspond with any of the names set out in the respondent’s list. Apparently, that person used a surname in the petition that he goes by rather than his legal name as recorded in the respondent’s list. Similarly, although there was a name/signature in one of the petition sheets, that name was not in the applicant’s typed list of names; apparently, that person’s name was omitted from the applicant’s typed list based on the applicant’s understanding the employee was no longer employed by the respondent around the time the applicant prepared its typed list of the petitioners’ names on the petition pages. Nonetheless, that same person’s name appeared in the respondent’s list as a relevant current employee as at 8 July 2020.

[11] The respondent also wrongly (it was only later to emerge) included at least one employee’s name that was not appropriate for inclusion in the respondent’s list given the work or classification of that employee (that is, a receptionist). Moreover, the respondent included in its list the names of certain employees (it again only later emerged), who were involved in work and/or classifications which are the subject of dispute as to inclusion in the count. The respondent considered that the applicant had included petitioners beyond the scope for which it otherwise contended (an allocator and a person whose substantive role appears to be a technician but who has been acting, or similar, in a data entry role). It should also be noted that the respondent’s evidence in the later hearing pointed also to a number of corrections and updated information concerning matters such as staff movements and staff turnover, but that is unsurprising given the passage of time to the date of the hearing.

[12] The matters I have outlined with difficulties in the respective lists is not a full catalogue of the issues or potential issues. A name of an employee one way or the other may not be a matter of significance when there is a clear and comfortable margin in relation to the count concerning a majority support determination (whether for or against), but that is not the case when matters are more finely-drawn. In any event, having conducted the cross-check of the petitioners and the respondent’s list, I concluded majority support did not exist. The applicant was, in effect, insistent that this outcome of the count could not be correct, essentially because it had counted its own numbers as against the classification of employees it sought to cover in a proposed enterprise agreement - and contended, in effect, the respondent had included employees in its list which were inappropriate for inclusion. With some misgivings, having regard to the outcome of my own count and proceeding on the presumed accuracy of the information provided to me by each party, I acceded to the making of directions for an arbitrated hearing. The matter subsequently proceeded to hearing on 10 and 28 September 2020.

[13] As things transpired over the course of those proceedings, it emerged that I had indeed been led into error in the initial count resulting in my initial conclusion that majority support did not exist in relation to the specific cohort of employees that the applicant sought to be covered by the proposed agreement. That is, it emerged the respondent had included in its list of employees’ names certain persons who were not, in fact, employed in work/classifications in relation to which the applicant seeks to bargain in the proposed enterprise agreement. Relevantly, the respondent had included in its list of names the names of certain data entry employees and employees of more senior rank than the group propositioned by the applicant - being employees in relation to whom the applicant is not seeking to bargain for a proposed agreement. The group in relation to which the applicant wants to bargain is the group (solely) comprising field technicians and laboratory technicians, who can be based in the field or in the laboratory, and who are referred to as CMT Technicians (“technicians” or “testers”).

[14] I will turn now to a summary of the outlines of the initial and closing submissions that were made or relied upon in the hearing. It should be noted that aspects of matters addressed in the initial submissions were relied upon in the closing submissions, so it is relevant to outline both the initial and closing submissions. That said, the closing submissions were made, of course, against the background of what had unfolded in the evidence, including the evidence concerning the most recent/contemporaneous employee numbers and their job classifications. Moreover, while there was reference in the respondent’s initial submissions to certain matters which comprised attachments to a witness’s statement, I declined to admit those attachments.

Applicant’s submissions

[15] The applicant submitted generally in its submissions filed pursuant to the original directions matters including the following. The applicant submitted that its application makes it clear that it seeks to cover employees of the respondent who test concrete, soil and aggregates. The applicant referred to the requirements of s.236(1) and s.236(2) of the Act, and authorities including ResMed Limited v Automotive, Food, Metals, Engineering, Printing and Kindred Union known as the Australian Manufacturing Workers Union (AMWU) [2014] FWCFB 2418 where it was said that the primary purpose of ss.236-237 is to provide a bargaining representative with a means by which an employer which refuses to bargain may be required to bargain (by opening the door to the operation of the good faith bargaining requirements in s.228 or by enabling bargaining orders to be applied for and made under ss.229-232). Here, the applicant seeks to bargain with the respondent despite the resistance of the respondent.

[16] The applicant submitted the application is clear and unambiguous in who is sought to be covered by the agreement, in that the petition specifically indicates that it covers employees that test soil, concrete and aggregates; and evidence adduced by the applicant demonstrates what the testers do. The respondent has numerous employees other than testers, including administrative staff, administrators, data entry staff or managers. However, the evidence outlined the specific functions of testers as opposed to other categories of employees/staff who do not undertake the testing function.

[17] Drawing from the evidence, the applicant submitted: “The AWU’s application contains a petition, which has more than half of the total seventy-seven Testers sign it. Whilst it is acknowledged that four of the petitioners have left since this petition was signed nevertheless there remains a majority of relevant employees who have signed it. It may also be the case of course that some non-signatories have also left the business since. Furthermore, in the case of [name] we know that his position was declared redundant as stated in his evidence. Therefore, the business has reduced the number of eligible employees by at least one.”

[18] The applicant submitted the evidence made it clear that the petition was signed with the full knowledge of what employees were signing through means such as explanation and translation. The evidence also demonstrated there were deeply-held and widely-felt concerns about pay, conditions and safety among employees within the respondent’s business, and they sought to be empowered by joining the applicant union and by bargaining collectively. The applicant, it was submitted, has demonstrated that a majority of employees under the scope of the proposed agreement want to bargain.

[19] The applicant referred to the provisions of s.237 of the Act. The applicant submitted that in circumstances where a majority of testers seek to bargain it was relevant to note that in Kantfield Pty Ltd T/A Martogg & Company v Australian Workers’ Union, The[2016] FWCFB 8372 (“Kantfield”) a Full Bench of the Commission found that the Commission must take into account the most current available information at the time in determining whether the majority of employees wanting to bargain existed.

[20] The applicant submitted that it had outlined the scope of employees sought to be covered, and the relevant group, testers, was fairly chosen. The applicant referred to Construction, Forestry, Mining and Energy Union v ResCo Training and Labour, [2012] FWAFB 8461 at [33]-[34] and in such respects referred to the text on the petition pages (reproduced above). The submissions for the applicant continued that: “In choosing Testers, in the Sydney Metropolitan area the Applicant has chosen a group who are operationally and geographically distinct. Testers are the ones who undertake the core business of the Respondent and therefore operate as an operationally distinct group. Furthermore, there is often a rationale for this [sic] operationally distinct groups to be the subject of the scope that the Applicant seeks. … Similarly the Sydney Metropolitan area forms a rational geographical basis on which employees are covered by the proposed agreement. …”. The applicant’s submissions compared and contrasted some examples from other employment areas and also submitted the evidence adduced by the applicant outlined the rationale.

[21] The applicant submitted it had demonstrated with the application and the evidence submitted that there is a majority of the respondent’s employees among a scope that is fairly chosen and who want to bargain with the respondent. With the elements of the Act having been met, the applicant submitted, the determination should be made.

[22] In addressing the question of reasonableness in all the circumstances, the applicant referred to segments of the second reading speech for the bill which preceded the Act in as much as it addressed achieving fairness through collective bargaining in circumstances where the majority of employees seek to do so. The applicant submitted this is what it is seeking to achieve in bringing this application. The applicant submitted that the respondent’s opposition to this application is not due to concerns regarding the validity of the application but, rather, the desire to maintain the very power imbalance that the Act seeks to redress. The applicant referred to aspects of the evidence in support of its contentions in such respects in alleging intimidation, interrogation, disingenuousness, attempted circumvention of the Act including in circumstances of the employees’ deeply held and widely felt concerns about pay, conditions and safety.

[23] The applicant submitted it had obtained a majority of signatories of a group that is fairly chosen, being that of testers. The submissions continued that it is clear and unambiguous who these people are and the scope is consistent with the intention of s.237 of the Act; and, further, it is clearly reasonable in the circumstances for the Commission to make the majority support determination as this is a clear example of the intention of the Act – to achieve fairness through collective bargaining.

[24] In addition to the initial submissions outlined above, some of the key points arising in the applicant’s outline of closing submissions were developed in the following way.

[25] The employees the subject of the application for a determination are field testers and laboratory staff in the Sydney metropolitan area and that description of the employees is important, because the applicant does not seek a determination that employees other than the field testers and laboratory staff want to bargain. The applicant’s submissions identified it does not seek a determination that data entry or management employees wish to bargain.

[26] To the extent the application for a determination is opposed, the applicant characterised the grounds of opposition as being threefold: (a) there is no majority; (b) the group was not fairly chosen; and (c) it would be unreasonable in the circumstances to make the determination due to the delay in the making of the application and the reliance on signatories to the petition who are claimed to fall outside the scope of the proposed agreement.

[27] As to these matters, the applicant relied on its petition. Drawing from a range of cases, the applicant submitted petitions have been regarded as an appropriate way to determine if a majority wants for bargain, and that the petitioning process is now a well-established means of determining that question. As to the question of point-in-time considerations, the applicant effectively restated its earlier submissions concerning Kantfield. The applicant submitted that, here, there are two relevant dates - first, the date the application was filed and, second, the date of the hearing.

[28] The applicant noted that, at the time the application was filed, the petition included 44 petitioners and, pursuant to a subsequent direction, the respondent provided a list of employees to enable a count to be conducted. The applicant also noted that while the respondent provided a list of 86 employees, that list included employees who were outside the scope of the application - including lab managers and data entry employees. The employees who were covered by the application, described as CMT Technicians, numbered 77.

[29] The applicant submitted that the appropriate way to deal with the current application is to follow the approach adopted in AMWU v Iveco Trucks Australia Ltd[2013] FWC 5106 (“Iveco Trucks”) where this was said:

“[20] An examination of the staff list establishes that there are employees on that list who were not intended to be included in the bargaining. For example, the staff list includes the Group Financial Controller, Plant Controller, Commercial Controller, the National Fleet Manager, the National Manager Customer Services, and the National Fleet Manager Southern Region. If these six employees are excluded from the count, then there are 110 employees in the count and the AMWU has established that a majority of the employees in the departments it says will be covered by the proposed agreement are in favour of bargaining.

[21] In the end however there is a simpler way to determine the answer to the dispute before the Commission.

[22] There are 41 employees on the staff list whose title includes the word manager. If those employees are excluded from the count then there are 98 employees on the staff list. Six people with a job title that includes the word manager signed the petition. If these people are excluded from the petition, then 52 employees are definitely in the count. If that is the case, then clearly a majority of non managerial employees want to bargain for an agreement with their employer.

[23] A majority support determination is not the vehicle to determine the eventual scope of an agreement. It is however necessary to know with some precision the employees who will be covered by the proposed agreement.”

[30] The applicant submitted that the list provided by the respondent on 8 July 2020 should be regarded as having 77 relevant persons covered by the proposed scope and 44 signatories indicate a majority of those employees want to bargain. The applicant’s submissions continued:

“20. In the period between 7 July and the hearing there had been two changes. The AWU had collected a further 3 signatures (Exhibits 9 and 10) and there had been a reduction in the number of employees. The number of employees had reduced to 75 in total, of those 68 were Technicians. Of the now 47 who had signed the petition 9 signatories were no longer employed. So, at the time of the hearing 38 of 68 technicians had signed the petition. Still a majority of technicians.”

[31] The applicant noted that in the respondent’s cross-examination of the applicant’s witnesses, questions were asked about whether the employees charged with coordinating the collection of names could be sure the signatures had not been forged or that the employees who signed had not been coerced or misled into signing. As to that, the applicant submitted: “The witnesses were frank in their answers and said that this was possible as they did not witness every signature. Presumably the respondent wishes to make something of these responses.” The applicant further submitted there was nothing untoward in the processes described by the witnesses in gaining the signatures; and there was no evidence there was any forgery, coercion or misleading of employees. To the contrary, the submissions continued, the evidence of the applicant’s witnesses suggested “an openness and honesty in the communications with their fellow employees” and, on its face, the petition does not indicate anything untoward with its legible names, telephone numbers, signatures and dates. There was no evidence of any wrongdoing associated with the petition and, in so submitting, the applicant referred to the comments in Transport Workers’ Union v MWAV Pty Ltd TA Man With a Van (“Man With a Van”) [2018] FWC 6525 at [53]-[54].

[32] As to the respondent’s contention that the scope of the agreement is not fairly chosen, the applicant submitted that the respondent appeared to contend that the laboratory managers and data entry employees should be included in the scope. However, a majority support determination is not the vehicle to determine the eventual scope of an agreement: Iveco Trucks at [23] and [30]. The applicant submitted that, in any event, the scope is fairly chosen. In so submitting, the applicant refereed to matters including:

• the evidence that the decision as to the scope came about following interactions with the workers who worked as technicians;

• the evidence that it was the technicians who in fact, and unlike other employees, undertake the testing work (the applicant’s scope did include supervisory technicians and the allocator, because they specifically supervised the testing work);

• the respondent’s contest to the inclusion of the allocator now is moot because that person’s position has been made redundant;

• it is the technicians who do the testing that the applicant seeks to be covered, and that is why administrative, managerial and data entry staff are excluded; and

• technicians are required to undertake (specific technician) training to perform their roles whereas data entry staff and other administrative staff are not.

[33] The applicant’s submissions next turned to a separate matter concerning an enterprise agreement made between the respondent and certain Victorian technician employees, namely the Victorian Construction Materials Testing Technicians Agreement 2017 (“the Victorian Agreement”). Clause 2.1 of the Victorian Agreement indicates that it applies to construction sciences employees who perform soil, concrete and aggregate testing, being the same scope that the applicant seeks for an agreement in New South Wales. After referring to aspects of the evidence and the text of the Victorian Agreement, the applicant drew attention to the Form F17 concerning that agreement (Exhibit 15) - being the employer’s statutory declaration in support of an application for approval of an enterprise agreement. The applicant noted the following matters in particular:

• the respondent’s declarant declared in the Form F17 that the Victorian Agreement would cover all Victorian construction sciences employees who conduct construction materials testing duties, the materials tested by construction materials testing (“CMT”) technicians are soil, concrete and aggregates and that “Testing is a specific skill set within an organisation that does not get done by employees in other divisions of the business.”

• the respondent’s declarant declared in the Form F17 that the scope of the Victorian Agreement was fairly chosen, with one of the reasons given for the employees being fairly chosen being that CMT technicians require a specific skill set that requires employees to have a Certificate 3 or 4 in Testing, Laboratory Operations or similar and can take a number of years to become fully proficient.

[34] The applicant submitted that the Victorian Agreement has a scope similar to that sought in this application for Sydney and the respondent is on record through the Form F17 itself stating that the employees within that scope were fairly chosen. Any submission by the respondent that the applicant’s proposed scope here is not fairly chosen is, the applicant contended, disingenuous. The applicant also drew attention to the evidence of an organisational chart which records data entry employees as a separate category of employee to the technicians.

[35] The evidence in the applicant’s case indicated that the technicians are geographically separate in that they work in the lab and the field, with the data entry employees working in an office distinct from the lab. The applicant submitted technicians are geographically and operationally distinct from data entry and other staff. There is one building that staff work in; while there are administrative staff, including data entry employees working in the same building, the lab is separated from the office areas.

[36] Finally, on the fairly chosen criterion, the applicant submitted the evidence establishes that technicians are operationally different from data entry staff. The technicians are involved in performing testing and are qualified as technicians. Although data entry staff perform important work, it “is simply clear” that they are not technicians.

[37] The applicant submitted that the issue raised by the respondent regarding a delay in time of the signatories is irrelevant. In so submitting, the applicant referred to Media, Entertainment and Arts Alliance v The Australian Football League (AFL)[2014] FWC 8898, where this was said:

“[34] As well, in relation to the issue regarding the changes in the workforce, I adopt the comments made by the Full Bench in CBI Constructors where it was observed that the composition of a workforce will vary over time. The Full Bench also concluded that the words “employees who will be covered by the agreement” does not require a prediction of which particular employees will be covered by the agreement at the point in time it is made.”

[38] As to delay, the applicant submitted the petition was signed by 44 employees in late-April 2020 and it wrote to the respondent on 4 May 2020 “in the hope of getting agreement to bargain”; there was no response and the applicant wrote again on 3 June 2020 advising proceedings would have to be brought if there was no reply. The respondent’s reply of 4 June 2020 indicated it did not want to bargain. The applicant submitted it was this delay in the respondent failing to respond to the correspondence which caused most of the time lapsing between the petition being signed and the application being filed on 23 June 2020. The applicant pointed to evidence explaining that the applicant wanted to ensure that the majority was genuine prior to lodging, and this is a reasonable explanation of the further delay. In conclusion, on the question of delay, the applicant submitted the Commission should not be satisfied that there was any undue delay in bringing the proceedings and “that the delay that did occur is no reason to not make the determination sought.”

[39] As a final matter, the applicant referred to issues raised in relation to two signatories. As to one of those signatories, the issue was reiterated as being “moot” as that person is no longer an employee of the respondent and his signature is not relied upon by the applicant. As to the other signatory (who is employed as a technician but is performing data entry work), the applicant maintained that as the employee is trained as a technician but is seconded as a data entry employee, she is an employee who would be covered by the proposed agreement; but even if she were excluded from the count it would not make a material difference, because there would still be a majority of technicians who seek to bargain for an agreement.

Respondent’s submissions

[40] The respondent outlined various reasons for its opposition to the application for a determination in its first outline of submissions. I reiterate that part of what was relied on initially had differed by the time the closing submissions were made, given what had unfolded in the evidence.

[41] Here, the respondent noted, the applicant filed a petition with employee signatures and later, on 2 July 2020, supplied the Commission with a further two signatures. The respondent submitted the application is fundamentally flawed and ought to be dismissed, because the Commission cannot be satisfied that a majority of employees want to bargain. Further, and in the alternative, the respondent submitted “there is insufficient information regarding the provenance of the petition in order for the Commission to be satisfied that it is reliable evidence of the wishes of the relevant employees. The petition was not in the custody or control of union organisers and delegates at all material times, and there is evidence to suggest that employees were not informed about what they were signing, and/or were pressured to sign the petition.” The respondent adverted to other matters in its opposition to the application, including:

• the Commission cannot be satisfied that, on the applicant’s argument, an enterprise agreement which proposed to exclude the data entry employees is a group of employees that is fairly chosen;

• there are other factors that the Commission should take into account which means that it would be unreasonable to make the determination:

- the delay in the applicant making the application (the petition was signed over a number of days in late-April, and the application was not lodged until 24 June 2020, meaning that the petition was “outdated”);

- at least two petitioners have indicated that they wish their names to be withdrawn from the petition (but, I note, the “evidence” as to that was not admitted);

- the application is internally inconsistent in circumstances where the applicant argued that management and administrative employees should be excluded but seeks to rely on at least two signatures from employees who fall outside its own proposed scope (but, I note, the former allocator employee was not relied on by the applicant and the applicant maintained that the seconded employee was appropriate for inclusion given her substantive role as a technician).

[42] The respondent submitted the Commission “should have no regard to the highly prejudicial, inflammatory and baseless accusations made in the AWU’s submissions” and added that it is well within its rights to refuse to bargain with the applicant in circumstances where it is satisfied that the arrangements it has in place for managing its employees’ terms and conditions are appropriate and suitable.

[43] The respondent set out in its submissions a brief factual background. That background described matters including aspects of the nature of its business operations/services relevantly including the testing of concrete, soils and aggregates, with this work being performed by employees both in the field at client sites and in the respondent’s laboratories. The respondent submitted that its construction materials testing workforce is made up of: (a) lab managers; (b) field supervisors; (c) senior technicians; (d) field technicians/lab technicians; and (e) data entry employees. The respondent is of the view the foregoing positions are covered by the Manufacturing and Associated Industries and Occupations Award (“the Award”). The respondent noted there are additional employees who are not involved in the testing process, including management personnel and administrative employees.

[44] The respondent’s submissions referred to a history of written communications between the applicant and itself, commencing with a letter alleging underpayments and culminating in correspondence of 4 June 2020 and the ensuing application now before the Commission. The submissions referred to some of the procedural history that followed the lodgement of the application including that it became apparent the applicant and the respondent disagreed on which employees should be considered as part of the testing process with the result the matter was then listed for arbitration.

[45] As with the applicant’s submissions, the respondent’s submissions referred to the legislative context and matters to be considered by the Commission. As to the considerations arising from the Act, the respondent submitted there are three reasons why the Commission cannot be satisfied “that a majority of employees who are employed at a time determined by the employer, and who will be covered by the agreement, want to bargain”, namely:

• the applicant does not have a majority of employees who wish to bargain;

• the petition upon which the applicant relies was not in its custody and control at all times; and

• there are “not insignificant concerns regarding the signatures included on the Petition and whether those employees ‘want’ to bargain”.

[46] In relation to the first point, the respondent submitted that the point in time that the Commission must determine whether there is a majority of employees, is the date of its decision. In so submitting, the respondent, like the applicant, also referred to Kantfield. The respondent submitted that 39 signatures is not sufficient for a majority of employees, the application should be dismissed for this reason alone. The respondent submitted that even if the Commission accepted the applicant’s argument that the data entry employees should be excluded, despite the respondent’s arguments to the contrary, the applicant still does not have a majority of employees, because 39 signatures would not be sufficient for a majority and, again, the applicant does not have a majority of employees. In consequence, the application is fundamentally flawed and should be dismissed.

[47] In relation to the second point, the respondent submitted the Commission cannot be satisfied that the applicant has effectively demonstrated how the petition came into existence and why it can be relied on in determining whether a majority want to bargain. The Commission must be satisfied that the petition was in the custody and control of responsible persons (whether they be union organisers or delegates). On the evidence or lack thereto, the Commission cannot be satisfied that the petition was in proper custody and control of the applicant. The respondent advanced further submissions concerning matters related to explanation, translation and employees’ understanding; the respondent referred also to purported “duress or coercion”.I have not summarised the submissions concerning the third point, because the material in such respects was not admitted.

[48] The respondent otherwise submitted that the applicant has not satisfied the Commission that the petition is an appropriate method to work out whether a majority of employees want to bargain. Moreover, the respondent objected to the two additional signatures supplied to the Commission on 3 July 2020 because “to allow either party to continue to supplement their position, either by additional signatures to a petition, or hiring additional employees, would result in a contrived outcome”. This is particularly so where the applicant had already waited two months to file its application, “casting into serious doubt the utility and reliability” of the petition at that point in time in any event.

[49] The respondent submitted that the employees involved in the testing process include lab managers, field supervisors, senior technicians, field technicians/lab technicians, and data entry employees. Although the applicant had asserted that it is not intended that “administrative” employees are to be covered by its proposed agreement and seeks to exclude the data entry employees, the respondent submitted that this would not result in the scope of the proposed agreement being fairly chosen, because the narrower group of employees proposed by the applicant is not a group which is operationally, geographically or organisationally distinct. If the proposed agreement will not apply to all employees involved in the testing process, the Commission must take into account whether the group that is proposed to be covered is geographically, operationally or organisationally distinct: Cimeco v Construction, Forestry, Mining and Energy Union & Ors[2012] FWAFB 2206 at [19]-[21].

[50] The respondent’s submissions outlined its contentions why the applicant’s proposed group (in excluding the data entry employees) is not operationally distinct. The respondent also submitted that an enterprise agreement that did not cover the data entry employees, but covered all other relevant classifications of employees, “would have a perverse outcome”. The respondent’s submissions also advanced its propositions why the applicant’s proposed group is not organisationally distinct and noted that the group is not geographically distinct given the same worksite.

[51] The respondent submitted that the inclusion of the entire testing workforce (including the data entry employees) would result in a group that is fairly chosen; and to narrow the group as proposed by the applicant “would result in a contrived outcome”, involving a group that is not operationally, organisationally or geographically distinct when there is, in fact, an alignment of the broader group of employees for efficiency and productivity reasons.

[52] The respondent highlighted in short form various matters in its submissions in contending the Commission cannot be satisfied that it is reasonable in all the circumstances to make the determination.

[53] In addressing certain matters in the applicant’s submissions, the respondent also contended the applicant’s submissions included “a number of highly prejudicial and baseless remarks that should be given no weight by the Commission”.

[54] The respondent submitted that number of factors which the applicant said the Commission should take into account in considering whether it is reasonable to make the determination should be disregarded by the Commission including for reasons including certain highly prejudicial allegations which hold no weight. in circumstances where the evidence of a witness called in the applicant’s case as to the actions of those managers is irreconcilable with what actually took place. The respondent submitted it has not, at any time, attempted to circumvent the intentions of the Act and it has not been disingenuous in its opposition to the application. The respondent’s submissions were critical of the actions of the applicant and its agents.

[55] The respondent submitted that the preconditions set out in s.237(2) of the Act had not been met and, as a result, the application should be dismissed.

[56] In its outline of final submissions, which supplemented its earlier written submissions, the respondent submitted this matter comes down to two key issues. First, the respondent maintained a position that the group of employees the applicant proposes is not fairly chosen and contended that the dispute between the parties comes down to whether that group of field testers and laboratory staff in the Sydney metropolitan area is a group of employees that is operationally, organisationally and geographically distinct. The respondent submitted that a group of employees which excludes employees who are involved in, and integral to, the respondent’s testing process, being laboratory managers and data entry employees, does not amount to a group of employees that is fairly chosen.

[57] The respondent submitted that if, on the first question, the applicant is unsuccessful in establishing that the group of employees is fairly chosen the application must fail given the operation of s.237(2)(c) of the Act, and in circumstances where the applicant does not therefore have a majority of the employees for whom the respondent submits is the group of employees that would be fairly chosen. The respondent’s submissions continued that, alternatively, if the applicant is successful in establishing that the group of employees is fairly chosen, the respondent cannot cavil with the applicant’s argument that a majority of employees signed the petition.

[58] The second key matter for determination, the respondent submitted, is that there is a myriad of reasons why the Commission cannot be satisfied that it is reasonable in all the circumstances to make the determination sought by the applicant, including:

• the applicant’s delay in making the application;

• the absence of evidence that the petition was in the custody and control of a relevant official or delegate, the provenance of the petition, what employees were told about the petition and the absence of evidence regarding undue influence; and

• the inconsistencies in the evidence in the applicant’s case as to the coverage of the proposed agreement, and the employees who were invited to sign the petition.

[59] The respondent submitted the foregoing matters are “compelling concerns that have been consistently raised” by the respondent, and for which the applicant’s position “is no better despite the hearing in this matter”. Absent evidence which adequately deals the above matters, the Commission cannot be satisfied that it is reasonable in all the circumstances to make the determination; in short, the petition “is a totally unreliable document and should be disregarded”.

[60] As to the matter of the “competing lists” provided by the parties, the respondent submitted the distinction between these two lists is important as it informs the respondent’s position that the proposed group is not fairly chosen. In short, at the time of the hearing of this matter:

• the number of current employees who signed the petition excluding additional signatures provided by the applicant after the application was filed, amounted to 35 employees; and

• the respondent relies on a list of employees that it says is involved in the testing process who perform work in the Sydney metropolitan laboratories and field numbering 75 employees at the time of the hearing. The respondent included laboratory managers, laboratory supervisors and data entry employees in its list, and excluded non-award covered managers and purely administrative employees who are not involved in the testing process.

[61] The respondent characterised matters as involving disagreement between the parties about whether lab managers and data entry employees are improperly excluded from the group of employees so that the employees that are proposed to be covered by the proposed agreement are not fairly chosen.

[62] The respondent submitted it accepts that if the applicant’s proposed scope of employees is accepted as being fairly chosen then the applicant has a majority of employees, “if the petition is accepted at face value”. Even if that is the position accepted by the Commission, the respondent submitted other factors weigh against the making of a majority support determination.

[63] As to matters concerning the fairly chosen criterion, the respondent opposed the application on matters outlined in its initial submissions and in further submissions which I summarise in the following way.

[64] As to the question of operationally distinct, the term “operational” refers to an industrial or productive activity; the performance of a different task, skill, role or function does not necessitate operational distinctiveness in an integrated operation. Here, the applicant’s proposed group is not operationally distinct because it excludes data entry employees and laboratory managers from the group that it proposes in circumstances where, on the evidence:

• data entry employees perform a critical role in the testing process and are part of the respondent’s integrated operations;

• the data entry employees’ role requires training, experience observing testing, and close interaction with the technicians and field supervisors on a task-to-task basis;

• data entry employees working in Sydney perform a critical role in the testing process that is performed by technicians themselves at other laboratories;

• the testing process involves a number of steps, one of which the data entry employees perform with the result that the testing process is therefore facilitated by the work performed by the data entry employees;

• the respondent’s product is a NATA-accredited report, and that report could not be produced without the work performed by data entry employees;

• data entry employees are based in the laboratory, wear personal protective equipment (“PPE”) and their workload is directly impacted by the work performed by the field and lab technicians;

• data entry employees are treated on the basis that they are covered by the Award;

• data entry employees have training in relation to the testing process;

• data entry employees have a technical understanding to ensure that accurate and complete data is entered in the respondent’s systems;

• the work undertaken by data entry employees is essential to the work performed by employees in the laboratory;

• the testing and reporting process to clients cannot occur without the field sheet being checked and entered into the system by data entry employees;

• data entry employees play a role in the product or service that is delivered to clients;

• the accuracy of the data entered is fundamental to ensuring that an accurate report is provided to clients;

• PPE is provided to data entry employees to enable them to go into the laboratory; and

• data entry employees working at the Glendenning lab perform work that is otherwise performed by technicians themselves in other locations.

[65] The respondent submitted that as to the evidence concerning laboratory managers:

• their roles are critical in the testing process and are part of the respondent’s integrated operations;

• they work closely alongside technicians and data entry employees, and spend a majority of their time in the testing areas;

• they are intimately involved in the work of testing samples and reporting to clients;

• they are treated on the basis that they are covered by the Award;

• they are required to have testing qualifications;

• they perform a technical role; and

• they are involved in the testing and reporting that leads to the preparation of reports.

[66] Comparing and contrasting text that was written in the applicant’s initiating process and the evidence, the respondent submitted the applicant’s proposed group of employees is not operationally distinct. The respondent submitted that a group excluding laboratory managers and data entry employees “results in an illogical outcome as these positions are a critical part of the testing process.”

[67] As to the organisationally distinct question, the respondent submitted the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct its operations. The respondent’s testing workforce is an integrated workforce which includes laboratory managers and data entry employees and technicians; there is a high degree of interaction and connectivity between these employees. Therefore, it cannot be said that the applicant’s proposed group of employees is organisationally distinct.

[68] As to the geographically distinct question, the respondent noted its (Sydney) workforce is based in discrete buildings located at Glendenning and St Peters. As to that, the respondent submitted that the applicant sought “to make something of the fact” that the laboratory managers and data entry employees are not based, at all times, in the laboratory. The respondent submitted this does not mean that there is a geographic distinctness to the work of those employees in the laboratory; and this is particularly so, where there is interaction between laboratory managers, data entry employees and technicians, including interactions which occur in the laboratories. Geographical distinctness is concerned with the geographical separateness of the employer’s various worksites or work locations and not a separation of a few hundred metres within the same work site: AWU v BP Refinery (Kwinana) Pty Ltd[2014] FWCFB 1476 at [13].

[69] The respondent submitted that the applicant’s reliance on the Form F17 concerning the Victorian Agreement was flawed for a number of reasons including that the respondent’s operations in the Sydney metropolitan region depart from its operations at other sites in Australia, on the basis that the data entry employees perform work that is ordinarily performed by testers at other laboratories. Moreover, the Victorian circumstances involve legacy arrangements arising from when the respondent “inherited” an enterprise agreement following a business acquisition.

[70] The respondent submitted the Commission should disregard the Form F17 for the Victorian Agreement on the basis that it was sworn in October 2017 for operations in a different state with different legacy arrangements. The respondent also submitted the Victorian Agreement does not have the same coverage that the applicant seeks in its application. Here, the respondent submitted that data entry employees are classified as Level 1 employees under the Victorian Agreement, but the applicant seeks to exclude these employees from its proposed group.

[71] The respondent submitted the applicant has “handpicked a select number of employees from the entire testing workforce” but such a group would not result in a group that is fairly chosen. To narrow the group of testing employees and to exclude data entry employees and lab managers would not, the respondent submitted, result in a group that is operationally, organisationally or geographically distinct.

[72] To the extent the applicant relied on Iveco Trucks to justify the exclusion of managerial employees from the group of employees to be covered by the proposed agreement, the respondent submitted that to adopt such an approach in the current proceedings would lead the Commission into error in circumstances where:

• the applicant included a signature from a manager as a petitioner, namely an allocator;

• the Award covers and applies to the role of “Lab Managers” and “Lab Supervisors”, being the only managerial roles included in the respondent-prepared list;

• the applicant’s proposed group of employees, as set out in the petition and the applicant’s application, “encapsulates” laboratory managers and laboratory supervisors given the following references:

- “the agreement only apply[ing] to Construction Sciences Testers and Laboratory employees and to no other employees”;

- “the employment of Testers and Laboratory employees is covered by the Manufacturing and Associated Industries and Occupations Award 2010”;

- “The Australian Workers Union seeks to bargain for Field Testers and Laboratory Staff. These are employees who are involved in the testing process for construction materials. They are distinct from the administrative and other management staff”; and

- “The staff that the AWU are seeking to be bargaining representatives for are specifically involved in the testing of concrete, soil and aggregates”.

[73] The respondent submitted that each of the above points differentiates this case from Iveco Trucks. Indeed, the respondent submitted, it does not appear that Iveco Trucks raised concerns regarding whether the scope of employees was fairly chosen, instead relying on an argument that there was no majority, and where, in this case, the respondent has maintained its position that the proposed group is not fairly chosen. The respondent submitted that whilst it may be the case that the scope of a proposed agreement may be subject to a scope order once bargaining commences, the language of s.237(2)(c) of the Act is unequivocal concerning satisfaction as to the fairly chosen criterion. Absent such satisfaction, the Commission cannot make a majority support determination and here, the respondent submitted, the exclusion of data entry employees and managerial employees means that the group of employees who will be covered by the agreement have not been fairly chosen because the applicant’s narrower group is not operationally, geographically or organisationally distinct. To accept the group proposed by the applicant as fairly chosen would have “significant consequences” for the respondent’s productivity and operational effectiveness, where its testing employees are required to work together to produce outcomes for the respondent’s customers and particularly where data entry employees play a critical part in the respondent’s testing and reporting operations.

[74] The respondent reiterated its submission that the inclusion of data entry employees and laboratory managers results in a fairly chosen group, due to the alignment of those employees for efficiency and productivity reasons.

[75] The respondent submitted that the Commission cannot be satisfied it is reasonable in all the circumstances to make the determination, in circumstances where:

• there was insufficient evidence “to give the Commission comfort as to the provenance and control” of the petition;

• there was insufficient evidence to conclude that employees, including employees whose first language is not English, understood what they were signing;

• the applicant’s delay in making the application;

• there was no evidence to conclude that employees were not put under duress to sign the petition;

• the applicant’s application is internally inconsistent in circumstances where it argues that management employees and administrative employees should be excluded, but seek to rely on at least two signatures from employees who fall outside the applicant’s own proposed scope; and

• there are “credibility issues” in relation to two witnesses called in the applicant’s case, in that their evidence “is inaccurate, overstated or not their own”.

[76] The respondent noted it was uncontested, drawing from aspects of the evidence, that the petition was not within the custody and control of the applicant (through the applicant’s gatherer/s of signatures) at all times and this was relevant considered in the context of what arose in the consideration in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Veolia Water Operations Pty Ltd[2015] FWC 2561 (“Veolia”) a case said to be “directly analogous” to the present application. Following references to various parts of the evidence, the respondent submitted that no one person had custody of, or oversight concerning, the petition and there were issues concerning matters such as witnessing and the like. The respondent submitted the absence of evidence concerning those charged with the responsibility of circulating the petition gave rise to an inference that their evidence would not assist the applicant. Adopting the position in Veolia, the respondent submitted that the Commission cannot be satisfied the petition was in the custody and control of the applicant or indeed any one person; therefore, it is not a reliable indicator of employee support for the proposed agreement. The respondent also submitted “there are not insignificant concerns that some of the persons who signed the petition would not have understood what they were signing, on account of their limited English”, and this was so notwithstanding suggestions about translation assistance for relevant employees whose first language was not English. The respondent submitted there is relevantly evidence that some of the employees did not understand what they were signing and, on this basis, the Commission cannot be satisfied that at least some employees understood what they were signing.

[77] As to the delay in making the application, the respondent noted the applicant lodged the application on 24 July 2020, almost two months after the petition had been signed by employees. The respondent noted the applicant had submitted this delay was because the respondent did not respond to its letter dated 4 May 2020 until 3 June 2020, and because it wanted to “ensure that the majority was genuine prior to lodging”. The respondent described this position as “disingenuous” in circumstances where:

• the respondent had replied to the applicant’s correspondence dated 4 May 2020, in which it made underpayment allegations, on 11 May 2020. The respondent’s evidence indicated it was waiting to hear in such respects;

• the applicant did not lead evidence about the steps it was taking to “ensure that the majority was genuine prior to lodging”; and

• it is “conceivable” that the applicant’s delay was an attempt to “better its case” by lodging the application after two months in the hope that its petition would amount to a majority of employees.

[78] To the extent the applicant relied on comments in Man With a Van as support for its proposition that there is no evidence employees were unduly influenced to sign a petition, the respondent submitted that case is not analogous to the present proceedings. Here, there is evidence that goes to whether or not employees were unduly influenced because the applicant’s witnesses’ evidence was that they could not rule out that an employee had been unduly influenced, or that a signature had been forged, on the basis there was no one individual who had custody or control of the petition.

[79] The respondent referred to what it described as “inconsistencies” between the proposed scope and the petition in that reliance was placed in the application on petitioners whose positions were that of an allocator and data entry employee. Although the applicant had described the allocator issue as “moot” (given his signature was not relied on as that person is no longer an employee) and because the data entry employee’s signature does not, on the applicant’s count, make a material difference to the majority if she is removed such arguments reveal the manner in which the applicant “has cherry picked evidence to suit its purpose”. The submissions continued that the applicant’s inclusion of “a managerial employee who was charged with organising employees suited its purpose for the coordination of employees” - despite the fact that the particular employee had no involvement in the testing process and was not a technical employee. That is, the particular (former) employee clearly falls outside of the applicant’s proposed group of employees. Further, the inclusion of the data entry employee “goes to the heart” of the respondent’s argument that the applicant’s list is not a group of employees that is fairly chosen. This employee has performed data entry work since August 2018 and the inclusion of her signature, the respondent submitted, is not a mistake, or an oversight due to a secondment but a deliberate attempt to inflate numbers by using the signature of an employee who otherwise would be excluded by the applicant. The respondent submitted these two inclusions indicate that the applicant was content to include a managerial position and a data entry role where it would assist in obtaining signatures for its petition, but wishes to exclude them otherwise; and this also indicates a clear lack of understanding on the part of the applicant of the respondent’s operations.

[80] The respondent submitted that the evidence of the respondent’s witnesses that should be preferred to that of the applicant’s witnesses in relation to the determination of the respondent’s operations and workforce. The respondent’s witnesses provided clear evidence of its operations, which was for the most part unchallenged where the evidence of the applicant’s witnesses was in places inconsistent, overstated, and in one case, not his own. The submissions continued that both witnesses “had a tendency to make generalised statements which, when tested in cross-examination, they accepted they lacked the knowledge to make.”

[81] In relation to an assessment as to the majority of employees, the respondent’s position was that, based on the respondent-prepared list of employees, the applicant does not have a majority of employees and the petition is not a reliable indication as to the number of employees who wish to bargain. In determining the question of majority, two matters arise for consideration namely (a) the point in time at which the assessment should be made by the Commission; and (b) the inclusion of the additional signatures after the filing of the application. Referring to Kantfield, the respondent submitted there is no broader power to “fix” historical or future points in time for other aspects of s.237 of the Act; the relevant time for determining when a majority of employees wish to bargain is at the date of the decision; and this point in time determination is limited to determining the number of employees who were employed only. Following from Kantfield, the date of the decision should be used as the point in time for assessing if there is a majority of employees; and, the respondent submitted, this assessment goes hand-in-hand with the determination of whether the applicant’s proposed group is fairly chosen.

[82] The respondent noted that since the filing of the application, the applicant has attempted to introduce three new signatures of petitioners in support of its application. The respondent submitted the Commission should not accept the additional signatures, and to accept those additional signatures would result in “an implausible outcome”, in which a union would be able to make a majority support determination with an insufficient number of signatures and to continue to supplement evidence which should have existed at the date of filing and which is the very basis for the making of such an application.

[83] The respondent submitted that the applicant does not have majority support because, based on the respondent-prepared list, it has insufficient support. The respondent submitted that if the Commission is not minded to dismiss the application on that basis, the application should be dismissed on the basis that sufficient doubt exists that the petition is not an appropriate method to determine whether a majority of employees exists.

[84] In conclusion, the respondent submitted it was evident the Commission would be unable to be satisfied that a majority of employees who will be covered by the proposed agreement want to bargain. Further, and in the alternative, the applicant’s proposed group of employees is not fairly chosen. In any event, the respondent submitted, it is not reasonable in all the circumstances to make the determination given a number of serious concerns with the petition, the conduct of the union delegate and filing of the application. The respondent also submitted (albeit with such submission made before the very decision in INPEX Australia Pty Ltd v The Australian Workers’ Union[2020] FWCFB 5321) it would be open to the Commission to order a ballot to be conducted by the Australian Electoral Commission to determine whether there is majority support, in circumstances where, it was submitted, the petition is not an appropriate indicator as to the existence of majority support.

Consideration

Section 236

[85] Section 236 of the Act provides 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 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.”

[86] The applicant union is a bargaining representative of employees who will be covered by a proposed single-enterprise agreement and it applied to the Commission, on 23 June 2020, for a determination that a majority of the employees who will be covered by the agreement want to bargain with the respondent - being the employer that will be covered by the agreement.

[87] In its Form F30 – Application for a majority support determination, the applicant identified the legal name of the business as “Construction Sciences Staff Pty Ltd” with the trading name of “Construction Sciences” as the employer that will be covered by the proposed agreement. It may be noted the header text of each page of the petition referred to “CCS Staff Pty Ltd trading as Construction Sciences Pty Ltd (ABN74128806735)”. It is not clear to me why there is a difference/partial difference in the name of the employer in the text of the petition pages as against the name of the employer in the Form F30. No issue was taken about this matter of difference in the proceedings. Given neither party raised any issue concerning this difference, it is unnecessary to further consider the matter.

[88] As to the employees who will be covered by the agreement, the Form F30 identified (in response to question 1.2.2 of the Form F30) “Field Testers and Laboratory Staff” albeit it may be noted that “laboratory staff” has presumptively broader connotations than the narrower group for which the applicant otherwise contends. The application itself provided greater clarity. That is, in response to question 2.2 of the Form F30, a question concerned with whether the group of employees to be covered by the proposed agreement has been fairly chosen, the applicant elaborated matters as follows:

“The Australian Workers Union seeks to bargain for Field Testers and Laboratory Staff. These are employees who are involved in the testing process for construction materials. They are distinct from the administrative and other management staff.

The staff that the AWU are seeking to be bargaining representatives for are specifically involved in the testing of concrete, soil and aggregates.” (My underlining).

Section 237

[89] The provisions of s.237 of the Act next arise for consideration. Those provisions read:

“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

(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.”

[90] Thus, s.237 of the Act identifies the circumstances when the Commission must make a majority support determination. Relevantly, the Commission must make a determination in relation to a proposed agreement if: (a) an application for the determination has been made; and (b) the Commission is satisfied of the matters set out in s.237(2) in relation to the agreement.

[91] As to the matters in s.237(2)(a) of the Act, the Commission must be satisfied that a majority of the employees who are employed by the employer at a time determined by the Commission and who will be covered by the agreement want to bargain. In Kantfield, a Full Bench of the Commission said this (references not reproduced):

“[35]The power to apply a time-based limitation is confined to section 237(2)(a)(i) [of the Fair Work Act 2009] and not section 237(2)(a) more broadly. That is, the power to apply a point-in-time limitation in section 237(2)(a)(i) is directed to fixing the time at which the FWC is to determine who are the persons employed only. Therefore, it does not confer a broader power to “fix” historical or future points in time for other aspects of section 237.

[36]In Peko-Wallsend, Mason J stated:

“… there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.”

[37]Applying Peko-Wallsend, it follows that the decision as to whether a majority of employees want to bargain is to be made on the basis of the most current material available at the time of the decision. Having considered all of the submissions and authorities filed by the parties, we agree that it was not open to the Commissioner to determine a point in time other than the time of the decision as the time at which a majority of employees could be said to want to bargain. As such, we are not satisfied that it was open to the Commissioner to reach the determination that he reached.

[38]Therefore, we are of the view that the Commissioner did not take into account a material consideration in the House v The King sense, namely, the most current available information to him at the time in determining whether a majority of employees wanting to bargain existed. In light of this, and having considered the relevant principles of law, we are of the view that the Appellant has demonstrated a House v The King error in the Commissioner’s decision. We are not required to identify an appellable [sic] error in every ground of appeal for there to be a quashing of the decision; a quashing of the decision is warranted upon an appeal bench identifying error in accordance with House v The King. Having identified an error in accordance with House v The King, we are, therefore, satisfied that the appeal must be upheld and that the original Decision must be quashed.”

[92] As I outlined earlier in this decision, the applicant collected the bulk of the petitioners’ signatures on its petition pages around 23-27 April 2020 but did not lodge the application until 23 June 2020. The applicant submits that three additional petitioners’ signatures are also relevant for consideration with dates of 2 and 17 July 2020. It is also common ground there have been changes in the relevant workforce as certain employees are no longer employees of the respondent.

[93] Further to directions, the parties each provided their respective lists of typed names on 8 July 2020. Both parties provided additional material for the purposes of the hearing which corrected and/or finessed aspects of the names and/or classifications, and there were further corrections made in the proceedings. Unsurprisingly, perhaps, the composition of the workforce had changed in the time between the collection of the bulk of the petitioners’ signatures in late-April 2020 and the provision to me of the parties’ respective lists on 8 July 2020. Moreover, there had been further changes to around the date of the hearing.

[94] Such was the essentially confusing state of the various competing lists of information provided by the parties that I prepared a draft table for my own benefit in attempting to distil the sets of materials that had been provided to around the time of the hearing. Following discussion with the parties, that draft table was provided by me to the parties. The parties also agreed there should be an exchange of their own respective materials (upon which my own table was based) for use/access on restricted bases as between themselves. That is, each party had full sets of the other party’s respective materials.

[95] It is appropriate to rely on all the most current information that was available to me as at the date of the hearing. For the purposes of the count, the corrected and/or finessed materials current to the date of the hearing mean that the most accurate snapshot is available. Examples of the correcting and/or finessing by the parties include, for instance, that a receptionist is not counted, but the broadly-similarly named person whose name inadvertently was not included in the respondent’s initial material is counted, and persons who are no longer employed by the respondent are not counted.

[96] Consistently with the approach in Kantfield, on the most current information before me at the time of the hearing/decision, a majority of the employees proposed (encompassed in the applicant’s application) and who will be covered by the agreement want to bargain. That is, against the background of the information now before the Commission concerning the particular classifications of the employees in the respondent’s original list (and amended material), it emerges that the respondent included names beyond the compass of the employees proposed by the applicant to be covered in the agreement. Approached another way, contained within the respondent’s list/s are employees whose classification/s are not those who would be covered by the proposed agreement in relation to which bargaining is proposed by the applicant.

[97] As noted earlier, s.237(2)(a) of the Act provides that the Commission must be satisfied that a majority of the employees who are employed by the employer at a time determined by the Commission and who will be covered by the agreement want to bargain. Upon an examination of the full suite of materials now before the Commission and in consideration of the submissions, I am satisfied there is majority support among the particular cohort of technician employees. The matter of majority support is, in any event, conceded by the respondent in relation to the particular technician cohort. Given the respondent’s concession in such respects, it is unnecessary to further consider in this decision about disputed inclusions, respectively, in the petitioner lists and the respondent-prepared lists of employees.

[98] As to s.237(2)(b) of the Act, and as is evidenced by this contested application, the employer that will be covered by the agreement has not yet agreed to bargain, or initiated bargaining, for the agreement. For the sake of completeness, it is apposite to note that it is not contended the respondent would be content to engage in bargaining if that bargaining for a proposed agreement was to include the additional employees such as the data entry employees and employees more senior than the technicians. Rather, it is the position of the respondent that it does not want to bargain for a proposed agreement either with a group comprising the Sydney-based technicians alone or, otherwise, any broader Sydney group comprising the technicians plus additional classifications of employees. The evidence of a managerial employee indicated that the respondent considers the arrangements in Sydney are working, including on grounds that the relevant award is applied and the respondent did not require the additional administrative burden of applying terms and conditions under an enterprise agreement. Working with the relevant award, the evidence continued, had not caused any problems and no reason was seen “to change this or any benefit in negotiating an enterprise agreement”.

[99] As to s.237(2)(c) and s.237(3A) of the Act, there was sharp contest between the parties as to whether the group of employees who will be covered by the agreement was fairly chosen - with the applicant contending for the technicians (only) and the respondent contending for a larger group of employees, relevantly including the data entry employees and employees more senior than the technicians. Considering whether the group of field testers and laboratory staff is geographically, operationally or organisationally distinct (from the data entry employees), I conclude as follows in relation to each relevant provision of the Act.

[100] The Sydney metropolitan-specific group proposed by the applicant is geographically distinct in circumstances where, for example, the respondent has a number of laboratories located in regional New South Wales, including Ballina, Coffs Harbour, Newcastle, Taree and Wollongong (and elsewhere outside New South Wales). (On the other hand, the Sydney metropolitan-specific group propositioned by the applicant does not appear to be geographically distinct from the broader group propositioned by the respondent given the technician group’s general workplace proximity to, and interactions in close quarters with, other employees within the broader group including data entry employees and employees of more senior rank than the technicians).

[101] The group proposed by the applicant is operationally distinct, in the sense that the operations undertaken by the technicians is operationally and qualitatively different from, for example, data entry work and the more senior roles (albeit I note that in locations other than Sydney metropolitan technicians also undertake data entry as part of their overall duties). Put another way, the technicians the subject of this application and the other classes of employees referred to in the proceedings have different operations to perform; and those functions are distinct and involve different training and/or qualifications. Indeed, my consideration of the respondent’s own evidence describing the work of the data entry employees reinforces my conclusion about the operationally-distinct nature of work undertaken by the technicians and those in the “data entry team” and those in more senior ranks, as opposed to leading me to find that the respective roles are not operationally distinct. The group proposed by the applicant is in my view operationally distinct, as it comprises employees performing quite particular operations and functions of their own – and this is so notwithstanding my consideration of the evidence adduced in the respondent’s case contending for a different conclusion.

[102] As to the applicant’s references to the Victorian Agreement, and particularly what was set-out in the Form F17 employer’s declaration, I say this much. Although it may be the case that certain legacy arrangements applied in relation to the Victorian Agreement, those legacy arrangements could not (properly) lead a declarant in a statutory declaration to declare in a Form F17 in support of an application for the approval of an enterprise agreement – a statutory declaration, after all – that a particular cohort was fairly chosen if it was not, in the employer’s view, in fact fairly chosen relevantly considering the occupational-type traits. It is pertinent to reproduce the relevant segment from the Form F17 in support of the application for the approval of the Victorian Agreement. It read:

“Scope of the agreement

2.2 Does the agreement cover all the employees of the employer (other than senior executives)?

[ ] Yes

[X] No

[Image] See sections 186(3) and (3A) of the Fair Work Act 2009.

If No – what group(s) of employees is covered by the agreement. Explain why you think the Commission should be satisfied that this group(s) was fairly chosen. If appropriate, describe any geographical, operational or organisational qualities that make the group(s) distinct.

Construction Sciences has approximately 650 employees and operates in all States of Australia. Construction Sciences services include:

- Professional Engineering Services,

- Sub Surface Utilities Engineering/Detection (SUE),

- Vacuum Truck Operations and

- Construction Materials Testing (CMT).

The Agreement will cover all Victorian Construction Sciences employees that conduct CMT duties. The materials tested by CMT Technicians are Soil, Concrete and Aggregates Testing a specific skill set within the organization that does not get done in other divisions of the business. The Commission should be satisfied that this group is fairly chosen because:

- Our Business is structured by both Region and Division. There is a specific Area Manager in Victoria for CMT that reports to our General Manager Operations business. This region/Division is responsible for it’s [sic] own tendering and business development process and profit and loss. The other Divisions such as Engineering and Subsurface Utilities also have specific Area Managers. The Employees from each division do not conduct the duties of other divisions and have very different skill sets as detailed in the next point.

- CMT Technicians require a specific skill set that requires employees to have a Certificate 3 or 4 in Testing, Laboratory Operations or similar and can take a number of years to become fully proficient. Employees in other divisions of our business do different tasks, and work in different locations and conditions. This makes the CMT Technicians a distinct operating group within our business.

- Each State’s operations report to an Area Manager and the types of projects and conditions they work in is specific to each region.” (My underlining).

[103] While it may be accepted the arrangements in relation to the Victorian Agreement CMT technicians are not on all fours with the arrangement for the proposed agreement for technicians in the Sydney metropolitan geographical area, the respondent’s own delineation in the Form F17 regarding the “specific skill set”-related description is, however, relevant to the fairly chosen criterion – particularly given the respondent’s evidence and submissions concerning its fairly chosen group involving data entry employees and certain employees more senior than the technicians. The evidence indicated that arrangements were in tow concerning a replacement for the Victorian Agreement. I note that, on the Commission’s public website, there is a decision ([2020] FWCA 5024, 17 September 2020) concerning the approval of a more recent iteration of the Victorian Agreement, namely, the Victorian Construction Materials Testing Technicians Agreement 2020.

[104] The group proposed by the applicant is organisationally distinct, as shown in the evidence of the respondent’s organisation chart. That is, the NSW Central Organisation Chart shows the break-down of the different roles/classifications; and that chart also shows the organisationally-discrete disaggregation of the different roles/classifications across two sites of, say, CMT technicians and data entry employees.

[105] In my evaluation, the group proposed by the applicant in connection with the application for a determination has been fairly chosen within the meaning of s.237(2)(c) and s.237(3A) of the Act. There is, I note more broadly, nothing unusual about a single-enterprise agreement which is specific to a particular occupation or which is classification-delineated.

[106] As to the final matter arising in s.237(2) of the Act, namely, whether it is reasonable in all the circumstances to make the determination ((s.237(2)(d)), I am bound to note I have certain reservations on the question of the applicant’s delay in lodging the application. That is, I considered as being persuasive the submissions advanced by the respondent concerning the applicant’s delay in lodging the application calling the petition into question and I am concerned also about what might be regarded as the buttressing of the application by the post-lodgement provision of additional signatures. Absent any other relevant considerations (such as where employees are located in disparate geographical locations or where there are other substantive logistical issues), I would think that the petitioning might reasonably be expected to be conducted over a compressed period of time and that the application thereafter be lodged promptly with the Commission - so that the petition has contemporaneousness about it. However, in the end at the time of the hearing, both parties had corrected/finessed their respective lists such that those respective lists were a contemporaneous, using my earlier descriptor, “snapshot” as to majority support considered in the context of the-then relevant employee numbers. Were it not for the particular way matters unfolded in this case, I would have been inclined to conclude that the applicant’s delay militated against making the determination, when considered in terms of reasonableness in all the circumstances.

[107] Although the evidence squarely indicated that there was not close custody and control of the petition (due partly to the impacts of COVID-19, the evidence indicated), my consideration of the respondent’s submissions about the fact of that lack of custody and control lead me to conclude such matters were, respectfully, somewhat overplayed in the respondent’s case. There is no suggestion here about falsified signatures or the like in the petition. Here, there has been agreement as to a full mutual exchange of all the applicant’s petition pages (and the applicant’s typed list) and all the respondent’s relevant lists of employees’ names and classifications. There is nothing to suggest there was forgery of signatures or concocted details in the petition, or anything similar. While there certainly was dispute about some of the inclusions, if there was any reasonably-based suggestion of apparent forgery, concocted details or similar, no doubt that would have been brought to my attention given the respondent had a copy of all the petition pages.

[108] As to the matter of custody and control, I take notice more generally of the fact that the everyday experience of workplace petitions is that they are typically and unceremoniously passed around among a group of employees at a meeting, or passed from one employee to another, or passed around by a particular individual or individuals to employees, including out of work hours; or sometimes, for example, petitions are placed on noticeboards or left in communal spaces such as meal rooms so interested employees may sign. Employees have the option to sign or not to sign a work-related petition - as has been clearly evidenced in this case by the number of employees who chose to affix his or her details in the petition and, on the other hand, those who chose not to sign.

[109] I am also not persuaded by the submissions for the respondent that there was some lack of explanation to employees, or lack of translation for those employees whose first language is not English. The fairly unremarkable and uncomplicated proposition in signing a petition - any petition - is to indicate support for what is set out in the petition in question. Here, the again fairly unremarkable and uncomplicated proposition of the petition was to lend a signature to the expression of a “wish to commence bargaining immediately” with the respondent in relation to a proposed enterprise agreement with the applicant nominated as the representative in the bargaining. It is a self-evident proposition - not a complicated proposition - that bargaining by or on behalf of employees is undertaken with a view to seeking to obtain improved pay and/or conditions of employment.

[110] The respondent submitted there was no evidence to conclude that employees were not put under duress to sign the petition. As to what was sought to be adduced into evidence in the respondent’s case, I declined to accept into evidence material annexed to one witness’s statement given the nature of it (for example, hearsay upon hearsay involving a range of unidentified individuals). If the respondent wanted to adduce evidence of the type that was set out in that material (the effect of which, at its relevant core concerning this application for a majority support determination, was that some employees effectively had felt pressured to sign the petition and/or had changed their minds about having signed the petition) any evidence should properly have been advanced by some more regular or appropriate means. As things stand, there is no evidence before me to suggest it would be unreasonable in all the circumstances to make the determination for reasons alluded to in the respondent’s submissions in such respects.

[111] In summary, I do not accept the respondent’s submissions which were to the effect that the evidence of the petitioners’ signatures cannot be relied upon for reasons including potential lack of understanding, potential duress and/or for want of provenance and lack of control of the petition. I am satisfied that the means of a petition is appropriate in this case as to the question of majority support. As noted earlier, my concerns about the delay have been assuaged by the way matters unfolded with each party exchanging employee-related information that was time-proximate in connection with the hearing.

[112] I should also note, finally, that swathes of the evidence and submissions just were not relevant to the matter before me for determination (for example, alleged underpayments, workplace health and safety-related matters, the circumstances broadly concerning a particular former employee/witness, and allegations and denials about anti-union bias). Putting aside matters of lack of relevance, there was also a regrettable tone to aspects of the evidence and submissions in a case that turns, in the end, on the question of majority support.

Conclusion

[113] As I am satisfied as to the requirements of s.236 and s.237 of the Act, the determination must be made. A determination will issue in conjunction with the issuing of this decision and have a concurrent date.

COMMISSIONER

Appearances:

T Slevin of counsel, for the applicant.
D Perry, solicitor, for the respondent.

Hearing details:

2020.
Sydney:
September 10 (in person); 28 (by telephone).

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union v Construction Sciences Staff Pty Ltd T/A Construction Sciences

[2020] FWC 5428

3 NOVEMBER 2020

DECISION