DECISION

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)
v
Veolia Water Operations Pty Ltd
(B2015/437)

Majority support determination - bargain with employees at the Surat Basin treatment plant.

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) applied for a majority support determination for employees of Veolia Water Operations Pty Ltd (Veolia) who work in classifications which are covered by the Hydrocarbons Industry (Upstream) Award 2010 (the Award) at Veolia’s Surat Basin treatment plants (the Employees).

[2] It is the AMWU’s submission that the Fair Work Commission (the Commission) can be satisfied of the matters required to make the determination.

[3] Veolia opposes the application on the basis that the Commission cannot be satisfied, on the basis of the material before it, that a majority of employees wish to bargain for an enterprise agreement. Additionally, Veolia raised whether the AMWU is a bargaining representative of an employee who will be covered by the proposed agreement. Other matters required to be determined in application were not disputed by Veolia.

Legislation

[4] Section 236 of the Fair Work Act 2009 (the Act) relates to applications for majority support determinations:

“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.”

[5] Section 237 of the Act sets out the legislative tests for a majority support determination:

“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

(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.

Operation of determination

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

Do the majority of employees, at the relevant time determined by FWC, who will be covered by the agreement want to bargain?

[6] In determining whether a majority of employees want to bargain, the Commission can work out whether a majority of employees want to bargain using any method the Commission considers appropriate.

[7] In this application, the AMWU submitted copies of the original petition, consisting of 5 separate pages (the petition) which contained the names and signatures of the majority of employees are employed by Veolia who will be covered by the agreement.

[8] Further that these petitions are evidence that the majority of employees want to bargain. Additionally, these petitions are an appropriate method for the purposes of deciding whether a majority of employees want to bargain.

[9] Veolia contends that the Commission cannot be satisfied by relying on the petition and the evidence of the AMWU, that the majority of employees want to bargain for an agreement. It argues that the Commission cannot be satisfied as to how the names appeared on the petition - including whether some employees were coerced into signing the petition.

[10] Further, it proposes as an alternative, that a ballot be conducted by the Australian Electoral Commission (the AEC), at its cost, within a 6 week period. The AMWU opposes this proposal and relies on its petition to support its application.

Applicant’s Submissions and evidence

[11] The AMWU relies on the statement of Stephen Franklin, State Organiser of the AMWU, in support of its application.

[12] Mr Franklin’s evidence was that following some preliminary enquiries about whether employees wanted to bargain, he received feedback that an overwhelming number of employees wanted to bargain with Veolia.

[13] On a right of entry visit on the 6 December 2014, he took the petition and left it with employees. Around 8 January 2015 he collected them. At that time 27 employees had given support to the petition.

[14] Two further employees signed the petition on 1 April 2015.

[15] The AMWU submits that there are currently 44 1 employees within the coverage of the proposed agreement and that the petition shows that 29 Employees have indicated support for bargaining with Veolia.

[16] Employees wish to remain anonymous and do not wish Veolia to see their names on the petition. As a result, a redacted copy was provided to Veolia.

[17] In submissions, Ms Midson for the AMWU submitted that the petition was in the usual form. While there had been a correction, the petition itself was correct in form and substance.

[18] Further, the petition goes into detail by providing the date, name, location, position and the signature of 29 employees of the 45 who are covered by the proposed agreement.

[19] The Petition is headed INTENTION TO BARGAIN PETITION and states that “We, the undersigned, intend to bargain for an enterprise agreement with our employer, Veolia Water Pty Ltd at its Surat Basin water treatment plant operations. Veolia Water Pty Ltd has refused to bargain with us. The proposed enterprise agreement would cover employees covered by the Hydrocarbons Industry (Upstream) Award 2010 and who work at the Surat Basin treatment plant operations” 2.

[20] In evidence Mr Franklin stated:-

“Do you have any comment you wish to make in relation to that statement?---I do; and I have read Craig’s statement. I don't believe I’ve met Mr Balthes before, but in paragraph 23 he states there’s 45 operator maintainers at both sites. I haven't got any concern with that, as you've stated before. At paragraph 30 of his statement where he says that the site visits that we've made, I agree with the site visits on all those occasions and also paragraph 33, that neither my colleague Ms Lister or myself have visited the northern site, I agree with that. However, we have spoken to employees from the northern site at the Kenya site when they were there. I'm not too sure whether it was on training or some other work - I think that they’d been brought down to that site for, but they were there when we had the petition going around. Also, I’d like to say - I'll leave my statement at that at the moment.

Thank you, Mr Franklin. The respondent contends that there’s no evidence before the tribunal about what was explained to employees at the time the petition was given. Can you give the tribunal evidence about what you said in relation to explaining the petition?---Well, the petition was brought out and because in majority support the terminations, I understand that you have to have a petition for the process to follow. I was pretty quick to explain that to the employees. I said that we'll need this, you know, going forward, if the company refuses, and I explained to them that it would only be used in the case that the company refused to negotiate and that’s what happened in it and we had the petition done.” 3

[21] On the question of the role Mr Franklin played in obtaining signatures she says as follows:

“Mr Franklin's evidence was that he did not directly witness anybody signing the petition and we say that that is uncontroversial. We say that before you is a petition with - and its apparent on the face of it that there are a number of names which are written differently, the handwriting is different as per each name and we say in relation to 237 subsection (3) the method for which the Commission can satisfy itself is comparing this list with a list of employees prepared to or a confidential list prepared by the respondent.”

[22] As to issues about the authenticity of the petition Ms Midson submitted:

“there has been no evidence before the tribunal that the people on this list are not the people who have signed the petition or that any one person has signed multiple times or any such allegation. So we say that you can be satisfied on the face of that document that it is a true and correct and we would say in the normal course of these events it would not be typical for an organiser to witness each of the signatures and in fact... Had that been the case that the respondent would be saying that that was evidence of the union standing over employees and demanding that they signed the petition.”

[23] Similarly, as to any coercion or unfair encouragement, it was submitted that the fact that Mr Franklin did not witness people signing the petition goes against any argument of coercion.

[24] The AMWU submits that the Commission can be satisfied that a majority of employees covered by the proposed agreement, which is fairly chosen, intend to make an agreement with Veolia.

Respondent’s submissions and evidence

[25] Veolia accepts that a petition may be accepted as an appropriate means of establishing majority views.

[26] However s.237(2) requires the Commission to be positively satisfied that the requirements are met. That is, the Commission must be positively satisfied that the majority employees wish to bargain for an enterprise agreement.

[27] To establish this degree of satisfaction the Commission cannot simply accept a petition at face value as evidence of a majority of employees wishing to bargain. The Commission must also consider the evidence as to how the petition was administered and came to be signed by the employees.

[28] Veolia's case on the issue of administration of the petition that there is no positive evidence as to whether the person is named on the petition actually signed the document; no evidence that Mr Franklin observed any of the persons whose name appear on the petition signed the document; and that there was no evidence as to who had custody of the petition between 10 December 2014 and 8 January 2015.

[29] Veolia submitted that there was no evidence about the communication to employees concerning the petition, and whether it was signed of the employees’ own free will.

[30] Veolia submitted there was no evidence about how employees at the Northern site came to sign the petition given that it is located 180 km away from the Kenya site and Mr Franklin had never visited it.

Consideration - whether a majority of employees want to bargain

[31] There is significant case authority that a petition may be appropriate way to work out whether a majority of employees want to bargain.

[32] Veolia suggested an approach set out in Australian Workers Union v The Austral Bricks Company Pty Ltd T/A Austral Bricks 4 where Commissioner Hampton noted:

Section 237(3) makes it clear that I may work out whether a majority of employees want to bargain using any method considered appropriate. I have in this method considered this question based on the evidence before Fair Work Australia.

In approaching this matter I have had regard to the relevant objects of the Act and in particular those set out in s.171 of the Act. I also accept that in considering whether the statutory pre-requisites have been met, I must be positively satisfied as to the requirements in section 237(2) given the express requirements of the Act and the consequences for all parties of the determination being sought.

[33] Veolia also raised the case of Coal and Allied Operations v Automotive Food Metals Engineering Printing and Kindred Industries Union 5 (Coal and Allied). In that case, a Full Bench considered the important matter of how to decide if there is the requisite level of satisfaction, stating:

“There is a respectable basis for the view that, where there is a statutory requirement for the Commission to be ‘satisfied’ about exercising a discretion, the notion of onus of proof imports legal doctrines that should have no part in the Commission's procedural or decisional process.” 6

[34] The Full Bench went on to say that, perhaps no party can be said to bear an onus, but even if that view be accepted, the Full Bench noted that the ingredients of the principles associated with the notion of onus of proof can have a useful role. The important principle from the case is that the applicant bears the onus of satisfying the Commission that an order should be made.

[35] I find that this principle applies in deciding whether the Commission is satisfied that a majority of employees want to bargain.

[36] AMWU says that I can rely on the petition with its clear majority.

[37] Veolia says that it cannot be accepted at face value but I must enquire as to the full facts and circumstances that surround the petition. Neither of these positions correctly states what is required in Coal and Allied.

[38] That is, it is for the applicant to establish how this particular petition came into existence and why it can be relied on in deciding whether a majority want to bargain. It is not necessary that the full facts and circumstances be in evidence but there must be sufficient detail to establish the requisite satisfaction.

[39] For example if there was evidence of coercion, or adverse action by unions or employers there would not be the requisite level of satisfaction despite the requisite number of signatures.

What happened with this petition?

[40] The petitions were photocopied and delivered on 7 December 2014. Mr Franklin was not present when the petitions were signed.

[41] There is no evidence before the Commission of the custody and control of the petitions after that date. While Mr Franklin’s non-presence when the petition was signed is no particular concern, (and in fact there is an advantage, as Ms Midson submits in demonstrating no coercion) it remains the fact that the petition’s custody during the period of signing is unknown.

[42] Additionally, no originals of the petitions were provided to the Commission. The Commission can only speculate that it appears that each signature is different handwriting. It says nothing about in whose control the document was when the signatures were affixed.

[43] This contrasts to NUW v Cotton on Group Services P/L 7 where Commissioner Roe noted, “The vast majority of the signatures were collected by the NUW organisers who took the signed petitions away with them when they left the site.”

[44] In my view, to establish the requisite satisfaction it is necessary to establish, on the evidence before the Commission, in this case that the petitions were at all times under the custody and control of responsible persons whether they be organisers or delegates. That has not been shown on the evidence.

[45] That is, the mere lack of evidence of coercion or undue influence by the AMWU is not sufficient to found a level of satisfaction when there is also no evidence as to who had control and custody of the petitions during the time that the petition was available.

[46] Therefore in this case, the AMWU has not satisfied the Commission that the petition is an appropriate method to work out whether a majority of employees want to bargain.

[47] I would add that Veolia did raise that a number of flyers were distributed during the time of the petition that it considered would be influential as to whether in all the circumstances the determination should be made. Having decided that the AMWU have not established the requisite level of satisfaction about the majority of employees it is unnecessary to decide this point. However, for the sake of completeness it would seem that these documents are more in the nature of strong advocacy in favour of bargaining than a factor against issuing a determination.

[48] Also, should it have been necessary, it seems that the uncontested assertion by Mr Franklin that the AMWU is a bargaining representative for an employee who will be covered by the agreement is satisfactory evidence of the requirement in s.236.

AEC Ballot as an alternative

[49] Veolia supports an AEC ballot as an alternative to reliance on the petition. It offered to pay the costs of this ballot.

[50] The AMWU, in final oral submissions, indicated that if the Commission was not satisfied about the petition then it would abide by an order in relation to a ballot conducted by the AEC. Given that this alternative has been raised at the hearing I propose that a postal ballot be conducted by the AEC.

[51] I propose that the text of the question be put to the employees in the ballot is as follows:

The AMWU has applied to the Fair Work Commission for a Majority Support Determination. The Fair Work Commission has decided that it is appropriate to conduct a ballot of all eligible employees to ascertain whether a majority of employees want to commence bargaining with Veolia Water Operations Pty Ltd.

The group of employees being balloted are those whose employment is covered by Hydrocarbons Industry (Upstream) Award 2010; and who perform work at the following water treatment facilities operated and maintained by Veolia Water Operations Pty Ltd in the Surat Basin in Queensland: the Kenya Water Treatment Facility, the Relocatable Water Treatment Facility, the Windirbri Water Treatment Facility and the Northern Water Treatment Facility.

Do you want to bargain for an enterprise agreement with your employer?

YES [ ] NO [ ]

[52] An Order in the usual terms will issue. It contains facilitative orders and notes that the ballot should be held not later than 6 weeks from publication of the order.

[53] A final matter was raised about the results of the ballot. The results of the ballot should be provided to both the AMWU and Veolia.

[54] Should the wording of the ballot question be unacceptable to either party, then the parties are invited to agree to alternative wording, or alternatively seek the assistance of the Commission to prepare a text suitable for the AEC Ballot.

COMMISSIONER

 1   Although it concedes there may be 45 employees, in either case, there is a majority of employees on the AMWU’s evidence.

 2   the insertion of the Hydrocarbons Industries (Upstream) Award 2010 was handwritten and crossed out was the Manufacturing and associated industries and occupations award 2010. Mr Franklin stated in cross-examination that he did so after advice that the original award in the petition was incorrect.

 3   Transcript dated 24/4/15 at PN29 and PN30.

 4   [2010] FWA 5819

 5   (1997) 73 IR 311

 6   Ibid page 317

 7   [2014] FWC 6601 at paragraph 32.

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