s.236 - Application for a majority support determination

Application for a majority support determination - Granted

[1] On 16 March 2020 the Australian Workers' Union (AWU) made an application pursuant to section 236 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (FWC) to make a majority support determination (Determination).

[2] The Application sought to compel Applus Pty Ltd t/a Applus+ (Applus) to commence bargaining for a new enterprise agreement (Proposed Agreement) to cover employees of Applus performing work in specified classifications.

[3] Applus initially opposed the Application on the grounds that the group of employees to be covered by the Proposed Agreement was not fairly chosen. Directions were issued to the parties for the filing of submissions and evidence to determine whether the Application should be granted (Directions).

[4] The parties subsequently participated in a conference on 3 July 2020 at which the group of employees sought to be covered by the Proposed Agreement was further clarified. The AWU sought leave to amend the original application. This was not opposed by Applus. Pursuant to the powers contained in section 586 of the FW Act the AWU were granted leave to file an amended application.

[5] An amended application was filed on 3 July 2020 (Application).

[6] The parties informed Chambers that they did not wish to make oral submissions or cross examine any witnesses and that they were happy for the Application to be determined 'on the papers'.

[7] Applus is a provider of non-destructive testing, inspection and engineering services to clients across Australia.

[8] Applus is already bound, or will be bound, by enterprise agreements which primarily cover employees engaged in non-destructive testing and which have geographic scopes.

[9] Section 236 of the FW Act provides that:

(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.

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement."

[10] Section 237 of the FW Act provides that:

"237 When the FWC must make a 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

(i) who are employed by the employer or employers at a time determined by the FWC; and

(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and

(c) that the group of employees who will be covered by the agreement was fairly chosen; and

(d) it is reasonable in all the circumstances to make the determination.

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

(4) The determination comes into operation on the day on which it is made."

[11] The making of a majority support determination confirms that the majority of the employees to be covered by a proposed agreement want to bargain with the employer towards such an agreement. The effect of a majority support determination is to require the commencement of the agreement bargaining process, but it neither requires that an agreement be reached, nor dictates the terms of any such agreement.[1]

[12] The AWU have applied for the Determination. An organisation of employees can apply for a majority support determination provided it is a bargaining representative for at least one employee who would be covered by the proposed agreement.[2] It is not contested and I am satisfied that the AWU has standing to make the Application.

[13] The Application identifies the employer to be covered by the Proposed Agreement as Applus. The Application identifies the employees to be covered by the Proposed Agreement as employees of Applus who perform work on an asset owned or managed by Woodside Energy Limited performing work in the following classifications, excluding those who are covered by an in-term enterprise agreement and those employed as on-site administrative staff:

1. ACIP Plant Inspectors (including AICIP, API and ASME);

2. NACE Inspectors - all levels;

3. Inspection Engineers;

4. Welding Inspectors;

5. Tank Inspectors;

6. Thermography Inspectors;

7. EEHA Inspectors;

8. QA/QC Inspectors;

9. Marine Inspectors;

10. Rope Access Technicians and Supervisors; and

11. Engineering Support Staff and Supervisors.

[14] The FWC must be satisfied that the employer has not yet agreed to bargain or initiated bargaining for the proposed agreement.[3] On 21 February 2020 and 10 March 2020 the Senior HR Advisor and the Regional Human Resources Manager of Applus respectively informed the AWU that Applus would not agree to commence bargaining.[4] I am therefore satisfied that Applus has not initiated bargaining or agreed to bargain.

[15] The FWC must be satisfied that the group of employees to be covered by the proposed agreement was fairly chosen. If the agreement will not cover all employees of the employer the FWC must take into account whether the group covered is geographically, operationally and/or organisationally distinct from other employees of employer. Having determined whether the group is geographically, operationally and/or organisationally distinct the FWC must take that into account and give it due weight having regard to all the other factors.[5]

[16] The AWU submits that the Employee Group is operationally distinct from other employees of Applus because the Employee Group are employed performing inspection services in the oil and gas industry. This can be contrasted with other employees of Applus who perform non-destructive testing in the oil and gas industry who are covered by an in-term enterprise agreement. The Application submits that the Employee Group are organisationally distinct from other employees employed by Applus because they are employed to perform services on Woodside Energy Limited owned or managed assets. The AWU submits that the Employee Group are geographically distinct because the perform work solely on assets owned and managed by Woodside Energy Limited.

[17] Applus submit that employees employed in the classifications of Inspection Engineers and Engineering Support Staff and Supervisors are not operationally, geographically or organisationally distinct from onsite administrative staff and that therefore the Employee Group is not fairly chosen.

[18] According to Applus employees employed in these contested classifications provide engineering specifications, co-ordination and administration for on-site inspection employees and consequently their roles are more similar to administration or management roles than inspection roles. Applus say that unlike employees in the Employee Group who are primarily field based the employees, the employees employed in the contested classifications primarily perform their work in Woodside offices in Karratha or in CBD office locations.

[19] Having reviewed the submissions and the evidence of the parties including job descriptions for various roles I am satisfied that the Employee Group is operationally, organisationally and/or geographically distinct on the grounds that the Employee Group perform inspection related work for a specific client at locations owned or managed by that specific client. To the extent that an employee employed in an Engineering Support Staff and Supervisors classification do not, they would not be covered by the scope of the Proposed Agreement.

[20] While the question of whether the group of employees to be covered by the Proposed Agreement is geographically, operationally and/or organisationally distinct must be evaluated and given due weight it is not a determinative consideration. It is not necessary to make a finding that the group is geographically, operationally and/or organisationally distinct in order to be satisfied that a group of employees was fairly chosen.[6]

[21] The word 'fairly' implies that the selection of the group is not arbitrary or discriminatory and is made on some objective basis.[7] In this regard it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreements coverage and employees who are excluded.[8] Selection criteria based on employee characteristics such as gender would be unlikely to be fair. Selection criteria which would have the effect of undermining collective bargaining or other legislative objectives is also unlikely to be fair.[9]

[22] I am not satisfied that the selection of the Employee Group is fairly characterised as either arbitrary or discriminatory.

[23] Taking into account the geographic, organisational and operational distinctions and giving those due weight having regard to all the other factors raised by the parties I am satisfied that the Employee Group was fairly chosen.

Do a majority of Employees who will be covered by the Agreement want to bargain?

[24] The FWC may determine whether a majority of employees want to bargain using any method the FWC considers appropriate. The evidence to support such a finding may include employee petitions or surveys, secret ballots or written statements from employees.[10]

[25] In its Application the AWU say that it presented individual petitions to the Employees which a majority of the Employee Group signed confirming that they wish to bargain with Applus for a new agreement (Petitions).

[26] The Directions proposed that the method to be adopted by the FWC to ascertain whether the majority of Employees want to commence bargaining with AWU would be as follows:

• the AWU files with the FWC and serves on Applus a sworn statement regarding the circumstances in which the Petitions were obtained (Sworn Statement).

• the AWU files the Petitions with the FWC on a confidential basis and serves a redacted version on Applus.

• Applus files with the FWC on a confidential basis a list of its employees employed in the classifications specified in the Application (List of Employees).

• the FWC compares the Petitions to the List of Employees in order to satisfy itself whether a majority of the Employee Group want to initiate bargaining with Applus in respect of the Proposed Agreement.

[27] The Directions also required Applus to provide a copy of the Application, the Sworn Statement, the evidence and submissions filed in support and in response to the Application and a copy of the Directions to each Employee. The Directions contained an invitation to Employees to contact Chambers if they wished to be heard in relation to the Application.

[28] One employee contacted Chambers and indicated their support for the Application. No opposition to the Application was received by Chambers by the date specified in the Directions or since.

[29] Applus do not oppose the Application on the basis of the proposed method of determining whether a majority of the Employees want to commence bargaining nor do they seek to propose an alternative method of determining whether a majority of employees wish to bargain.[11]

[30] I am therefore satisfied that comparing the Petitions to the List of Employees is an appropriate way to determine whether the majority of Employees wish to bargain.

[31] Having reviewed the Petitions and the List of Employees I am satisfied that a majority of the Employee Group want to bargain.

Is it reasonable in the circumstances to make the Determination?

[32] The FWC must be satisfied that making a majority support determination is reasonable in all the circumstances.[12] Section 237 of the FW Act gives the FWC broad discretion to determine whether majority support exists in the workforce in deciding whether to make a determination.

[33] Making a determination does not itself require the employer to bargain nor does it determine the scope of bargaining or coverage of the proposed agreement. It triggers the notice time within the meaning of section 173(2) of the FW Act. This marks the commencement of the bargaining process and the requirement of the parties to comply with the good faith bargaining obligations set out in section 228 of the FW Act.

[34] I am satisfied that in all the circumstances of this Application that it is reasonable to make the Determination.

[1] [2009] FWAFB 668 at [25]

[2] ResMed Ltd v Australian Manufacturing Workers' Union [2015] FCA 360

[3] Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd (2009) 191 IR 124

[5] Construction, Forestry, Mining and Energy Union v Alcoa of Australia Ltd [2014] FWC 7123 citing Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206; [2012] 219 IR 139, Cotton on Group Services Pty Ltd v National Union of Workers [2014] FWCFB 8899,

[6] Cimeco Pty Ltd v CFMEU [2012] FWAFB 2206; [2012] 219 IR 139 at [20], Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union [2017] FWCFB 5826 at [26]

[7] Cimeco at [21], Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union [2017] FWCFB 5826 at [26]

[8] Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers Union of Australia; Australian Municipal Administrative Clerical and Services Union [2017] FWCFB 5826 at [26]

[9] [2014] FWC 7123 citing Cimeco at [21]

[10] Automotive, Food, Metals, Engineering Printing and Kindred Industries Union v Veolia Water Operations Pty Ltd [2015] FWC 2561

[11] Outline of Submissions filed by Applus on [9 April 2020]

[12] Construction, Forestry, Mining and Energy Union v CBI Constructors Pty Ltd [2010] FWA 2164

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