[2021] FWC 1610

Fair Work Act 2009

s.236 - Majority support determination

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Application for a majority support determination - application granted.

[1] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) made an application for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act) with respect to employees of Kingspan Water and Energy Pty Ltd (Kingspan) employed to perform factory work at its Smithfield site.

[2] The AMWU seeks a determination that a majority of these employees, who are presently covered by Manufacturing and Associated Industries and Occupations Award 2020 (the Award), want to bargain with Kingspan for a single-enterprise agreement.

[3] The relevant provisions of the Act are contained in ss.236 and 237 of the Act:

(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.

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."

[4] In accordance with Commission directions, the AMWU provided the Commission with a copy of a petition that it said listed the employees who wished to bargain for an enterprise agreement (the Petition), and Kingspan provided a list of the employees proposed to be covered by an enterprise agreement.

[5] The AMWU noted that another member of the Commission who initially had carriage of the application had compared the list of employees identified by Kingspan against the signatories of the Petition and had formed a preliminary view that there was a majority of employees who wanted to bargain for an enterprise agreement with Kingspan. It noted that the use of a petition is a common method, for the purposes of s.237(3), used by the Commission to work out whether a majority of employees want to bargain.

[6] The application was opposed by Kingspan because it contended the Petition was defective. This contention was based on the fact that the Petition named the incorrect employer, in that it contained the following preamble:

"I want to bargain for an enterprise agreement with Kingspan Environmental Australia.

I agree to this petition being provided to the Fair Work Commission to prove that employees at the 3 Herbert Place, Smithfield site who have signed this petition want to bargain for an enterprise agreement.

The names of the people who sign this petition will be kept confidential from management at Kingspan Environmental Australia."

[7] There is no dispute that Kingspan Environmental Australia:

1. is not the employer for the purposes of the application;

2. is not a business or trading name of Kingspan; and

3. is not the employer of employees of Kingspan.

[8] The issue then, is whether the Commission can be satisfied that a majority of employees which will be covered by the proposed enterprise agreement and are employed by the employer want to bargain (s237(2)(a)).

[9] Evidence was given by Mr Nathan Everson and Mr Nathan Myers.

[10] Mr Everson is an organiser employed by the AMWU. He gave evidence that he represents the interests of the employees employed by Kingspan located at 3 Herbert Place, Smithfield, and had met with numerous factory workers (employees of Kingspan) during 2020 on around 10 occasions. During these meetings he had discussed what an enterprise agreement was and the benefits of an enterprise agreement. As a result of those discussions, it was apparent to him that numerous factory workers wanted to bargain for an enterprise agreement and accordingly he advised them that they could indicate their desire to bargain with Kingspan by signing a petition.

[11] Mr Everson said he was sent a blank petition by a secretary employed by the AMWU, which he printed. He subsequently attended Kingspan's premises and met with factory workers in the lunchroom. During that meeting there was a discussion around the outcome of the elections for new health and safety representatives, and Mr Everson also informed the factory workers that he had brought copies of a petition that they could sign for the purpose of bargaining for an enterprise agreement if they elected to do so.

[12] Mr Everson gave evidence that prior to handing out the petition, he explained to the factory workers that:

1. an enterprise agreement is an agreement made between an employer and its employees that governs the terms and conditions of employment, including wages;

2. the purpose and overarching benefit of bargaining for an enterprise agreement is that the factory workers' terms and conditions of employment, such as wages, will be better off overall when compared to the entitlements conferred by the Award;

3. the term 'bargaining' meant that the factory workers would need to discuss what improved terms and conditions of employment they seek, and then put those propositions to Kingspan and be willing to negotiate so that agreement could be reached;

4. the factory workers were receiving less beneficial terms and conditions of employment when compared to employees working in other businesses within the same industry;

5. signing the petition was a step that the factory workers could take in order to commence the bargaining process with Kingspan. Further, it would signify that the factory workers want to bargain with Kingspan for an enterprise agreement, and presented an opportunity for them to be recognised for the work they perform;

6. if a majority of the factory workers wanted to bargain, the AMWU would reach out to Kingspan regarding whether Kingspan would consent to bargaining. If there was no response from Kingspan, the AMWU could then submit the petition to the Commission for a majority support determination; and

7. they were under no obligation to sign the petition and, if they elected to sign the petition, their names and details would be kept confidential from Kingspan.

[13] Mr Everson said that after providing this explanation, he and Mr Myers handed copies of the petition to a number of the factory workers to sign and pass on to others. He and Mr Myers also answered additional questions the factory workers had.

[14] Once the relevant factory workers had signed their names, Mr Everson collected the petition sheets.

[15] Mr Myers is employed by Kingspan in the position of Factory Team Leader and is a delegate for the AMWU. He gave evidence that the factory workers are involved in the various stages of manufacturing water tanks. As to the meeting in which factory workers were asked whether they wished to sign the Petition, his evidence was consistent with that provided by Mr Everson.

[16] The AMWU submitted that the evidence of Mr Everson and Mr Myers established the reliability of the Petition, and in particular that:

1. the relevant employees who wish to bargain and would be covered by the proposed enterprise agreement are factory workers who are responsible for the manufacturing of water tanks and are covered by the Manufacturing Award;

2. the purpose of the Petition was properly explained to the factory workers;

3. the Petition remained in the 'custody and control' of Mr Everson and Mr Myers over the period that the signatures were collected;

4. the Petition contained legible text explaining in plain English the purpose of the Petition and the manner in which it would be used; and

5. no coercion was exercised by the AMWU or its representatives in order to obtain support to commence bargaining for an enterprise agreement.

[17] It submitted that the appropriate time for determining when employees want to bargain is the date Kingspan provided its list of employees to the Commission. The AMWU noted it was not contested that Kingspan had not yet agreed to bargain, or that the group was not fairly chosen. It also contended that it was reasonable in all the circumstances to make the majority support determination.

[18] In terms of whether the Petition was defective, the AMWU did not dispute that the Petition incorrectly refers to 'Kingspan Environmental Australia'. However, it contended that this was "merely a typographical error by one of its support staff, and this error does not prevent the Commission from making a majority support determination" for the following reasons:

"36. Pursuant to s 236(2) of the FW Act, in its application to the Commission, the AMWU was required to and did specify:

(a) the employer that will be covered by the Proposed Agreement, being Kingspan Water & Energy Limited located at 3 Herbert Place, Smithfield NSW 2164; and

(b) the employees who will be covered by the agreement, being the Factory Workers, by providing the Commission with a copy of the Petition.

37. As is evident from the above, s 236(2)(a) only requires that the application specify the employer or employers that will be covered by the proposed enterprise agreement. Section 236(2)(a) does not require that the Petition, or any other form of documentation for that matter, identify the correct legal name of the employing entity with which employees wish to bargain.

38. Further, s 237(2)(a) only requires that the Commission be satisfied that a majority of employees who are employed by the employer (or employers) at a time determined by the Commission and who will be covered by the proposed enterprise agreement want to bargain. In this respect, by comparing the names of employees contained in the Petition and the List of the Employees, the AMWU submits that the Commission can be satisfied that the Factory Workers are employed by 'Kingspan Water & Energy Pty Limited', will be covered by the proposed enterprise agreement, and want to bargain.

39. The circumstances in this case can be contrasted to the facts in "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Top Cut Food Industries Pty Ltd T/A Top Cut Food Industries in which the Commission revoked a majority support determination on the basis that the application wrongly identified the employing entity, and the employer provided a list of employee names that were not employed by the relevant employing entity."

[19] For these reasons, the AMWU submitted that the Commission could be satisfied that the requirements of s.237 had been met and accordingly a majority support determination must be made.

[20] Kingspan submitted that the Commission could not be satisfied that the majority of employees want to bargain. It contended that the AWMU had chosen to use a defective petition, which asked the signatory to the Petition to confirm they wish to bargain for an enterprise agreement with Kingspan Environmental Australia, not the employee's employer.

[21] Kingspan argued that this was not a mere technicality. It was fundamental to the Commission's jurisdiction to issue a majority support determination that it be satisfied that the employees of the employer want to bargain with their employer. Instead of evidence to that effect, the AMWU has put before the Commission a petition that does not name the employer, but instead names an entity that does not exist.

[22] Kingspan highlighted that Mr Myers did not offer any evidence that he understood the petition's reference to 'Kingspan Environmental Australia' in fact meant Kingspan.

[23] Kingspan also contended that the failure of the petition to identify the employer was not a technical error that could be overcome by way of s.586 of the Act, as the petition is part of the evidentiary burden on the AMWU to meet the tests to satisfy the Commission under s.237(2) and (3) and not amenable to retrospective amendment.

[24] Kingspan noted that the deficiency of the Petition was recognised well prior to the hearing and the AMWU, having initially agreed to conduct the petition again, subsequently changed its position and refused to do so. In this regard Kingspan submitted that: "the Commission may well wonder at the forensic purpose behind the AMWU's refusal to re-conduct the petition naming the true employer. There could be no doubt that there was sufficient time to conduct a new petition since the conciliation on 3 December 2020 and before this matter was to be determined by the Commission".

[25] The following submissions were also made by Kingspan:

"25. The AMWU asserts that it has correctly named the employer in its application to the Commission and specified the employees of the Respondent by providing the petition to the Commission, which is all it is required to do. The AMWU further asserts that s.237(2)(a) "does not require that the Petition, or any other form of documentation for that matter, identify the correct legal name of the employing entity with which employees wish to bargain." With respect, that submission is misconceived.

26. The test before the Commission in s.237(2)(a) is that a majority of employees who will be covered by the agreement and are employed by the employer want to bargain. The test is not whether the AMWU has its paperwork in order. To determine the test in s.237(2)(a) the Commission must have evidence, which can be by any method according to s.237(3). The evidence the AMWU has chosen to provide, being only the petition, does not meet the test. It merely demonstrates that some signatories want to bargain with an entity named by the AMWU but which is not their employer. To argue that the "correct legal name of the employing entity" does not need to be identified could have absurd results.

27. For its deliberate forensic purposes and following careful consideration the AMWU has chosen not to put evidence before the Commission that relevant employees want to bargain with their employer."

[26] First, I note that there is no dispute and I am satisfied that:

1. the AMWU is a bargaining representative for employees who will be covered by the proposed agreement and is capable of making the application for a majority support determination (s.236);

2. Kingspan has not yet agreed to bargain for a proposed single-enterprise agreement (s.237(2)(b)); and

3. the group of employees who will be covered by the proposed agreement is fairly chosen (s.237(2)(c)).

[27] I accept the submissions of Kingspan that the incorrect naming of the employer in the petition is not a 'mere technicality'. To the extent the AMWU suggested that the correctly naming the employer in a petition was unnecessary, that submission is rejected. In saying that, there may be other evidence available for the Commission to be satisfied that a majority of employees want to bargain with their employer.

[28] In the circumstances of this case, the evidence of Mr Everson and Mr Myers, combined with the matching of the names on the Petition against the list of employees provided by Kingspan, is sufficient to satisfy me that those who signed the petition intended to indicate their desire to bargain with Kingspan.

[29] Mr Everson's evidence demonstrates that he had a number of discussions with the relevant employees prior to the signing of the Petition, in which he discussed the benefits and process of enterprise bargaining. It is reasonable that he would have referred to the employee's employer as "Kingspan" rather than using the full company name, and that employees would understand "Kingspan" in that context to be a reference to their employer. The relevant employees were asked whether they wished to sign the petition after an explanation had been provided by Mr Everson which included what the petition was for and how it would be used. There is no basis for a finding that the Petition was not properly explained to the employees, or that there was any coercion exercised by the AMWU in order to obtain support to commence bargaining for an enterprise agreement.

[30] I note there had been a contention put by Kingspan in a conference prior to the hearing that some employees who had signed the petition had not understood what they were signing and did not wish to bargain. However no evidence was put before the Commission to support this contention.

[31] Accordingly, I am satisfied and find that a majority of the employees of Kingspan who will be covered by the proposed agreement want to bargain (s.237(2)(a)).

[32] There are no other grounds to support a finding that it would otherwise not be reasonable to make the determination. (s.237(2)(d)).

[33] Finally, it is disappointing that the AMWU resiled from its initial agreement to resolve the issue in dispute by simply asking the relevant employees to sign a petition that correctly identified their employer. The AMWU's 'administrative error' has consumed a significant amount of the Commission's time and resources. The application has been the subject of five conferences between two members of the Commission, in addition to a hearing and the time involved in writing this decision. All of this could have been avoided by either a basic level of attention to detail in the preparation of the Petition, or by obtaining a new petition correctly identifying the employer.

[34] In conclusion, I am satisfied that all requirements of ss.236 and 237 of the Act have been met. Accordingly, the Commission must make the majority support determination sought by the AMWU. A Determination will issue with this decision.

J Martin for the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU).

D Nelson for Kingspan Water & Energy Pty Limited_._

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