Construction, Forestry, Mining and Energy Union of Workers, The

Application for a majority support determination - decreasing number of employees - employees who will be covered by agreement - determination of majority.

[1] This matter concerns an application by the Construction, Forestry, Mining and Energy Union ("the CFMEU") for a Majority Support Determination ("MSD") pursuant to s.237 of the Fair Work Act 2009 ("the FW Act") for employees of CBI Constructors Pty Ltd ("CBI") employed at the Woodside Pluto LNG Project ("the Project").

[2] The CFMEU says that the employees to be covered by the proposed enterprise agreement are those covered by a transitional instrument, that being either the CBI Constructors Pty Ltd Pluto Project Greenfields Agreement 2007 ("the 2007 Agreement") or an Individual Transitional Employment Agreement ("ITEA's"), both of which have passed their nominal expiry dates.

[4] The CFMEU is an employee organisation that has a number of members that will be covered by the proposed enterprise agreement and as such is a bargaining representative for the purposes of this application.

[5] I accept from the evidence of Mr Hudston, an organiser with the CFMEU, that a petition of 4 & 5 February 2010 is an accurate reflection by 87 persons then employed by CBI that they wished to bargain for an enterprise agreement.

[6] CBI argued that I needed to be satisfied that the population of employees for the purpose of determining a majority need to be a population of employees who have a real interest in the matter. CBI claimed that if an agreement would not apply to those or a significant number of those employees then I could not properly be satisfied that the requirements of s.237(2)(a) of the FW Act had been met. They said that it was known by the CFMEU and the employees of CBI at the time of signing the petition that CBI was demobilising and as consequence any agreement would not cover many, if any, of those that signed it.

[7] The first issue is what time I should use for the purpose of determining whether there was a majority of employees or not. I requested CBI to provide me with a list of current employees. That list was provided on 12 March. I compared that list with the list of employees that signed the petition. The CFMEU provided me with that list.

[8] The second issue is whether that is a majority of employees who will be covered by an agreement. CBI argued that I could never be satisfied that there was a majority of employees that wanted to bargain for an agreement that would cover them because the number of employees at the project was being rapidly reduced due to the completing or reduction of works that CBI was contracted to perform at the Project. Therefore they argued any agreement would not cover many, if any, of those that wanted to bargain.

[9] I do not accept this argument. In my view the purpose of the FW Act in s.237(2)(a) is to have a basis on which to establish whether there is a majority of employees employed who have a desire to bargain. I do not agree that because the number of employees is changing that it is impossible to establish that at any point whether there is a majority or not. I also do not accept that because employees may not be eventually covered by any agreement through their employment with CBI at the project ceasing that they cannot be considered for the purposes of s.237(2)(a).

[10] Further, if CBI wished to properly establish that argument then there is an obligation on CBI to provide accurate projections of which employees will be employed at what various points in order that Fair Work Australia ("FWA") can make a finding. It does not automatically follow that because the number of employees is reducing that there does not exist at any point a majority of employees who will be covered by the agreement. The total coverage might decrease but the majority could still exist. With the sands shifting the issue for me is what is a reasonable point at which to draw a line and measure the extent of employee interest in bargaining?

[11] I have decided that the time appropriate to determine whether a majority of employees want to bargain is the time when employees then employed by CBI signed a petition that they wished to bargain. I am satisfied by reliance on the petition made at that time that a majority of employees wanted to bargain. I am also satisfied that the group of employees was fairly chosen. Even if today's date were taken by examination of the lists referred to in paragraph 7 above it would still be a majority indeed in proportion terms an increased majority.

[12] CBI also argued that the CFMEU had not established to a standard that I could be satisfied that the requirement had been met that the CBI had not agreed to bargain. CBI did not assert that they had not agreed to bargain, or initiated bargaining, for the agreement. CBI relied on their argument that the onus was on the CFMEU to establish that CBI had not agreed and not on CBI.

[13] The CFMEU submitted that the FW Act at s.237(2)(b) does not require that they need to establish that CBI has refused to bargain, but merely that CBI has not agreed. In other words CBI has either agreed to bargain or CBI has not agreed to bargain. The evidence of the CFMEU provided all that the CFMEU could realistically be expected to provide to support their contention. This included letters to and from CBI where clearly there was no agreement to bargain. It also included evidence of discussions with CBI management where they had not indicated a willingness, or agreed to, bargain. If CBI wished to contest the contentions of the CFMEU in this regard by asserting that it had agreed to bargain, then given that the CFMEU had established reasonable grounds in support of their contention then the obligation fell to CBI to establish that, but they did not. The effort required by CBI to establish this would have been negligible.

[14] CBI also argued that there had been no log of claims provided to CBI and indeed there was no identification of issues the CFMEU wished to pursue in the bargaining they sought. CBI inferred that as a consequence this was another reason that the CFMEU had not satisfied the requirement that employees wished to bargain for an enterprise agreement.

[15] I accept that letters from the CFMEU to CBI are sufficient and clear enough in conveying the wish of employees of CBI to bargain for an enterprise agreement. That is all that is required by the FW Act for the purposes of s.237(a). I am satisfied that CBI had not agreed to bargain.

[16] It remains for me to consider if it is reasonable in all the circumstances to make the determination sought by the CFMEU.

[17] CBI argues that the 2007 Agreement will continue to apply and that the ITEA's covering employees had sought to be terminated. If the ITEA's were terminated then the terms and conditions of those employees would be covered by the 2007 Agreement, supplemented by a set of conditions known as the Pluto Project Conditions. These terms and conditions, CBI argues, are current and competitive. The assertion seems to be that as the actual terms and conditions are current and competitive then that is not reasonable in all the circumstances for me to make the MSD. This to me seems to misunderstand the nature of bargaining and the role of FWA in MSD applications. It is not for FWA to make any judgments at all about the appropriateness or otherwise of the terms and conditions applying or of any sought, particularly at this juncture. FWA's role is limited to ascertaining whether a majority wanted to bargain for an enterprise agreement that would cover them.

[18] I have also considered the arguments and evidence of CBI in relation to whether the other requisites of s.237 had been satisfied in considering whether in all the circumstances it is reasonable to make the determination. In that regard I accept that there will be continuing reductions in the size of the CBI workforce and that the vast bulk of CBI's work will be completed in the near future. However I have insufficient material before me to conclude that any agreement would cover no employees at all. Whilst the number of employees that may be covered by an agreement may be fewer than now, that in itself is not sufficient reason for the right to pursue an agreement to be curtailed.

[19] I do not think this is one of those occasions where I should not issue an MSD because it is not reasonable in all the circumstances to make the determination.

[20] I am satisfied that the requirements of s.237(2) have been met and as a consequence I am obliged to issue the Determination.

Mr K Sneddon for the Construction, Forestry, Mining and Energy Union

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