[2021] FWC 3784

The attached document replaces the document previously issued with the above code on 27 August 2021.

Reference note 72 - change of date from Witness Statement of Adam Woodage dated 17 November 2021 to Witness Statement of Adam Woodage dated 17 November 2020.

Steven Boughton

Associate to Deputy President Beaumont

Dated 18 November 2021

[2021] FWC 3784
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.236—Majority support determination

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
South32 Worsley Alumina Pty Ltd
(B2020/412)

DEPUTY PRESIDENT BEAUMONT

PERTH, 27 AUGUST 2021

Majority support determination – whether a majority of the employees want to bargain – falsely derived petition - whether group of employees who will be covered by the agreement fairly chosen – whether reasonable in all the circumstances to make the determination – majority support determination application dismissed.

1 Introduction

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made an application under s 236 of the Fair Work Act 2009 (Cth) (Act) for a majority support determination (MSD) in relation to an enterprise agreement for a group of employees of South32 Worsley Alumina Pty Ltd (South32). Those employees form part of the electrical team working across the Boddington Bauxite Mine (Mine) and the Worsley Alumina Refinery (Refinery) in Western Australia.

[2] The relevant statutory requirements for the Commission to make a MSD are set out in ss 236 and 237 of the Act. Subsection 237(2) details four circumstances to which I must have regard. Briefly stated, they are whether:

[3] South32 has objected to the application, submitting that the Commission cannot be satisfied that certain statutory requirements have been met. In the lead up to the hearing the parties considered South32’s objections and agreed that the contentious issues could be articulated in the form of three questions to be arbitrated.

[4] The first question is whether the Commission can be satisfied that a majority of the employees who were employed by the employer at the time determined by the Commission and who would be covered by the agreement wanted to bargain.  The second, can the Commission be satisfied that the group of employees who will be covered by the agreement was fairly chosen, taking into account whether the group was geographically, operationally or organisationally distinct.  And finally, can the Commission be satisfied that it was reasonable in all the circumstances to make the MSD. 

[5] If the answers to each of these three questions are in the affirmative then pursuant to s 237(1) of the Act, the Commission is obliged to make the MSD given all other statutory requisites are met. The answers however were not, and as a consequence a MSD has not been made.

[6] In short, I have dismissed the application 1 because I considered that the petitions were falsely derived and therefore could not be relied upon to evince that a majority of the Electrical employees wanted to bargain with South32. Further, I was unable to conclude, based on the evidence before me, that the group of Electrical employees was fairly chosen. In light of those conclusions, I considered that in all the circumstances it was not reasonable to make the MSD. My reasons follow.

2 Context

[7] It is useful at the outset to summarise in broad terms the operations, organisation and location of South32 in addition to outlining the CEPU’s process of obtaining the signed petitions.

2.1 The operations

[8] South32 runs a bauxite operation comprised of a vertically integrated supply chain of work at a Mine, Refinery and Port. 2 The company mines the bauxite near the town of Boddington, 130 kms south-east of Perth.3 Once mined, the bauxite is transported approximately 51km by overland conveyor to an alumina refinery near Collie where it is turned into alumina powder, before being transported by rail to Bunbury Port, some 55 km away.4 The alumina powder is then shipped to smelters around the world.5

[9] It is uncontroversial that the company is a ‘national system employer’ within the meaning of s 14 of the Act. At the time of filing evidence, it was said that there were approximately 222 different roles across the sites with a total of 1649 employees.

[10] The proposed agreement would apply to 76 employees across the Mine and the Refinery who were qualified to perform electrical work, as of 12 August 2020 (Electrical employees). 6 The employment of the employees in question is covered by the Aluminium Industry Award 2020 (Award).7 The Electrical employees are employed in roles that include: (a) Technician Electrical Instrument; (b) Technician Electrical; (c) Technician High Voltage; and (d) Apprentice Electricians. The electricians do not ordinarily perform work across both sites, subject to exceptions.8 Albeit the Electrical employees from the Refinery do perform work at the Port.9

[11] At the Refinery, the Electrical employees report directly to Electrical Supervisors and correspondingly to an Electrical Superintendent. 10 The Superintendent has accountability across Mechanical, Electrical Trades and Process Operators.11 The Technician Maintenance Auto-Electrical roles each report to different supervisors, and fall within the remit of the Maintenance Mobile Equipment Superintendent.12At the Mine, the Electrical Instrument Technicians report to an Electrical Supervisor, however there is no dedicated Electrical Superintendent at the Mine.13

2.1.1 The Refinery

[12] Mr Drury, Manager of Maintenance Services at the Refinery, gave evidence that he had 60 electrical employees under his remit out of a total workforce of 1,136 workers at the Refinery. 14 Whilst his team supervised eight electrical apprentices, from an organisational perspective, the apprentices reported into the training department.15

[13] Concerning the interaction between the Mine and the Refinery, Mr Drury gave evidence that he had little understanding of how the Mine worked given he had never worked there. 16 However, he understood that both sites operated differently, with the Refinery having separate production and maintenance departments in contrast to the Mine where production and maintenance activities fell within the one department.17

[14] Mr Drury explained that he had limited interaction with the Manager of Operations at the Mine, with the exception of a weekly cross-site meeting associated with his position on the ‘Operations Lead Team’. 18

[15] According to Mr Drury, the Electrical employees at the Refinery and at the Mine interacted in two ways. The first, was in relation to high voltage work. Mr Drury said that he managed a small number of electrical high voltage technicians at the Refinery who specialised in high voltage work and who supported the maintenance work at the Mine once or twice a year. 19 The second, was where there was an urgent breakdown issue on the Mine end of the overland conveyor. In those circumstances, a supervisor at the Mine would be called to request the support of an electrically qualified employee from the Mine to assist the work.20
[16] Insofar as the pattern of work was concerned, Mr Drury gave evidence that all front line maintenance team members at the Refinery generally worked one of the following rosters:

[17] Mr Drury said that for ‘maintenance’, whether an employee worked ‘day shift’ or ‘continuous shift’ roster patterns would depend on whether they were performing unplanned or breakdown maintenance (continuous shift roster) or ongoing planned maintenance work (day shift roster). 22 Electrical employees were said to fall into both categories.23

[18] Mr Drury provided an explanation about the work surroundings, noting that the Electrical employees at the Refinery had one main home base area where they kept their tools with two smaller satellite areas. These areas were associated with amenities such as crib rooms that all Refinery workers used. During the day, Electrical employees were spread out across the Refinery and worked with other non-electrical trade maintenance employees.

[19] Integration between Electrical employees and other workers was dependent on the task at hand, said Mr Drury. 24 Mr Drury gave evidence that it was common for the work to be heavily integrated with workers in other trade and non-trade roles – particularly mechanical maintenance workers.25 Mr Drury provided two examples where the work was heavily integrated. The first, where maintenance work was planned and the accountable supervisor would be supported by an integrated team of Electrical employees, mechanical trades employees, and non-trade employees. The second, where there was a work order focused on an electrical issue but there was a significant amount of mechanical work.26 Examples extended to issues with a valve, gas commissioning being undertaken, and work performed with a fitter, like replacing a large electrical motor – where the Electrical employee disconnected and reconnected the motor while a mechanical fitter removed, placed and coupled the motor.27

[20] Mr Brett Brown, an Electrical/Instrumentation Technician at the Refinery, and a witness for the CEPU, gave a somewhat different account to that of Mr Drury about the integration of employees across sites and within teams. 28 Mr Brown explained that he reported into an electrical supervisor, of which there were four, for the four shift crews. Each crew consisted of five electrical instrumentation technicians in addition to the supervisor.

[21] Mr Brown said that the crews did not ordinarily work with other trades. 29 However, on occasion the crews worked with mechanical fitters, but the work was performed separately to them.30 The crew would do their part and the mechanical fitters would thereafter come in and do theirs.

[22] While Mr Brown conceded that his primary place of work was at the Refinery, he noted that he was sometimes called upon to attend breakdowns or undertake maintenance at the Port and on the overland conveyor between the Mine and the Refinery. 31

[23] Mr Simon Brezovnik also gave evidence on behalf of the CEPU. Mr Brezovnik worked at the Refinery, and like Mr Brown, he held the position of Electrical Instrumentation Technician. Mr Brezovnik took issue with some of the matters discussed by Mr Drury. The first was the work of high voltage technicians. Mr Brezovnik considered that Mr Drury’s account about the frequency of work undertaken at the Mine was inaccurate, citing that such technicians were required to perform work at the Mine more than twice a year. 32 Expanding upon this point, Mr Brezovnik said that as the technicians were required to maintain the 66KV powerline that ran from the Refinery to the Mine and engage in HV shutdown work at the Mine, there would be times where the technicians were required to work away from the Refinery for several days and nights.33

[24] Regarding the integration of Electrical employees and other trades, Mr Brezovnik said that Mr Drury’s account was not quite right. 34 Mr Brezovnik gave detail that Electrical employees at the Refinery rarely worked with other trades at the same time.35 He said that the better way to think about it was that Electrical employees provide a service.36 Mr Brezovnik explained that if a motor and pump is to be replaced, the electrician would come in first and disconnect the motor, then the mechanical team would come in and do their work and to finish, the electrician would return to reconnect the motor and electrically test the installation before completing a functional test.37 Mr Brezovnik noted that the Electrical and Mechanical teams had separate pre-start meetings, ate separately, and were for all practical purposes two completely different teams.38

2.1.2 The Mine

[25] Mr Nash gave evidence on behalf of South32 about the Mine. As the Manager of Mining Operations, he was responsible for five direct reports and approximately 300 indirect reports, as well as around 150 contract workers at the Mine. 39 Mr Nash explained that there was a registered manager for each of the Mine, Refinery and the Port. He noted that he interacted with his peers in those different work areas at a weekly cross-level manager meeting, where issues with the overland conveyor or the high voltage line were discussed.40 While it was the Refinery’s responsibility to manage the overland conveyor and the high voltage line, Mr Nash said that at times his peers requested him to allocate staff to help with emergency repairs to the overland conveyor and high voltage line.41 He noted that this had happened only three to four times during his time in the role.42

[26] Mr Nash gave evidence that the entire team at the Mine was integrated. 43 However, the workforce was segregated by way of crews and rostering.44 He said that a majority of the operational and maintenance workforce worked either a continuous day shift/night shift roster or continuous day shift roster, working 14 shifts over 28 days. The roster pattern was said to be 4 on / 5 off / 5 on / 4 off / 5 on / 5 off.

[27] Electrical employees at the Mine fell under the leadership of either one of two Superintendents. The first, the Superintendent Execution – Operations Fixed Plant Crusher or the second, the Superintendent Execution – Maintenance Mobile Equipment. 45 Mr Nash said that the two Superintendents had a range for work and employees in their remit, including supervisors, planner, electricians, maintainers, non-trade operations, control room operators and plumbers.46

[28] With respect to the Mobile Equipment Team, Mr Nash outlined that there were 40 people in total within the team, including four maintenance supervisors, all of whom had one technician maintenance auto-electrical in their crews, in addition to employees in non-electrical trades and non-trades roles. 47 The technicians performed maintenance tasks on vehicles and mobile equipment operated by the Production and Fixed Plant team, including isolating electrical supply for component change-outs, rewiring mobile equipment, repairing communications infrastructure, repair of other work required on low voltage components and work on light vehicles.48

[29] Mr Nash said that the Fixed Plant team consisted of 53 people in total. The Electrical employees within the Fixed Plant team fell within the remit of one Supervisor Electrical – Fixed Plant. 49 This Supervisor had seven direct reports in his crew, namely, electrical instrumentation technicians and two direct reports who worked as technology technicians.50 According to Mr Nash, the work performed included looking after fixed plant, communications infrastructure, office infrastructure, offsite housing maintenance and high voltage infrastructure. This required these particular Electrical employees to interact with employees in other trades roles and operators at least weekly but often daily.51 Interactions were said to be particularly heightened during shut downs - where there was interactions between Electrical employees and other roles if a piece of infrastructure needed to be isolated from the electricity network.52

2.2 The petitions

[30] Mr Adam Woodage gave evidence on behalf of the CEPU regarding the process of distributing and obtaining signed petitions. Mr Woodage is an organiser employed by the CEPU and says that the CEPU has members employed by South32 at its Mine and Refinery. 53

[31] Mr Woodage said that throughout early 2020, he had a number of discussions with CEPU members employed at the Mine and Refinery about the effects of Covid-19, potential dismissals, and stand downs across South32’s operations. 54 At that time, he also began talking to members at the Mine and Refinery about bargaining for an enterprise agreement.55 Mr Woodage said that from his discussions with members, it was agreed that the CEPU would seek to bargain for an enterprise agreement covering electrical workers.56

[32] On 28 April 2020, Mr Woodage wrote to South32 seeking to initiate bargaining on behalf of the CEPU members. 57 Mr Woodage received a response from South32 on 5 May 2020, in which it advised that it was not satisfied that a majority of employees wanted to bargain.58

[33] Mr Woodage said that during the May and June 2020 period, he attended the Mine and Refinery on several occasions to assess whether there was still an appetite to bargain. 59 He formed the view there was.60

[34] Mr Woodage sent another letter to South32 on 17 June 2020, in which the CEPU sought to bargain on behalf of its members, 61 and again by letter of 19 June 2020, South32 expressed it was not satisfied that the majority wanted to bargain.62

[35] On and from 23 June 2020, Mr Woodage circulated a petition amongst the CEPU members employed at South32 for the purpose of initiating bargaining. Mr Woodage added that he conducted right of entry visits to meet with members and obtain signatures on 24, 29 and 30 June, and 2 and 16 July 2020. 63 He also corresponded with members and obtained further signed petitions on three occasions between 23 June 2020 and 24 July 2020.64

[36] Mr Woodage said that whilst on site he always maintained a maximum of two metres away from the petitions, noting that he was able to see the people sign the petitions and hence he never lost sight of the petitions. 65

[37] Mr Woodage gave evidence that he explained to the members what a MSD was and ensured that the top of every petition provided a brief description to explain the purpose of the petition. 66 Mr Woodage said that whilst on site, he stayed close to the petition, and ensured he answered any questions that members had.67 On this point, he stated that no one expressed any confusion about bargaining during his meetings with the employees, and he did not coerce or pressure anyone to attend the meetings or sign petitions.68

[38] In response to the evidence of Mr Drury, 69 who had reported that Mr Woodage had distributed two clipboards at the same time for employees to sign, one which had the petition and the other asking employees whether they would like to sign up for general union information, Mr Woodage said that was incorrect and he only distributed one clipboard with the petition.70 On this point, Mr Brown gave evidence that aligned with Mr Woodage’s account, noting that at the meeting on 24 June 2020 at the Refinery, Mr Woodage presented a clipboard with the petition, and in addition, had a laptop set up with an excel spreadsheet on it for people to insert their email addresses if they wanted more information from the CEPU.71

[39] Mr Woodage said that seven petitions were obtained by emails that had been sent to him. 72 Mr Woodage said that four were sent to him together from one crew,73 and on 26 June, 29 June and 24 July 2020, he received three further petitions from individuals.74

[40] In response to South32’s submission in its ‘Outline’ of 18 June 2021, detailing that leave records indicated that two employees were absent from work on the days on which they allegedly signed the petitions and there was no evidence that these employees signed the petition outside of the workplace, Mr Woodage said that it was correct that the two employees in question had signed the petitions whilst absent from work. 75 Elaborating on this point of contention, Mr Woodage explained that one of the employees had contacted him by phone days prior to the distribution of the petition and advised that they would be taking time off work and requested that a petition be sent to their personal email address.76 Mr Woodage stated that he received a scanned and signed petition from the employee on 26 June 2020.77 Another employee contacted Mr Woodage by email on 28 June 2020, and asked how to join the CEPU and be added to the list of those who had signed the petition. Again, Mr Woodage received a scanned petition from this employee on 29 June 2020.78

[41] Regarding South32’s submissions that only two employees from the Mine signed the petition, Mr Woodage clarified that on his first right of entry to the Mine on 30 June 2020, he obtained three signatures, one of which was from an apprentice, another from a tradesperson and another from a staff employee. 79 When attempting to exercise a right of entry on 7 July 2020, Mr Woodage said that he was hindered and obstructed from speaking to Electrical employees and was escorted to the electrical maintenance workshop where no one came for the dedicated lunch break time.80 Mr Woodage explained that as he had set himself a timeframe of 31 July 2021 in which to obtain all the petitions, he ran out of time to conduct more right of entries at the Mine.81

3 The statutory framework

[42] Section 237 of the Act provides that the Commission must make a MSD in relation to a proposed single enterprise agreement if an application has been made under s 236, and the Commission is satisfied of the matters in s 237(2). That section provides that the Commission must be satisfied that:

[43] In relation to s 237(2)(a), the Commission may work out whether a majority of employees wants to bargain using any method it considers appropriate (s 237(3)).

[44] If the proposed agreement will not cover all of the employees of the employer or employers covered by the agreement, the Commission must, in deciding whether the group of employees who will be covered was fairly chosen, take into account whether the group is ‘geographically, operationally or organisationally distinct’ (s 237(3A)).

4 The agreed matters

[45] It is uncontroversial that the applicant in such applications bears the onus of satisfying the Commission that the MSD should be made. 82

[46] In respect to s 237(1)(a), there is no dispute that the application has been properly made pursuant to s 236 of the Act, and that South32 has not agreed to bargain (see s 237(2)(b)).

[47] Further, it is uncontentious that the Electrical employees are ‘national system employees’ (see s 13 of the Act) and that the CEPU is a bargaining representative of one or more of the Electrical employees.

5 The matters in dispute - did a majority of the employees want to bargain (see ss 237(1)(b) and 237(2)(a) of the Act)

[48] South32 argues that the Commission cannot be satisfied that the petitions provide evidence of majority support for bargaining amongst the Electrical employees. To support this argument, South32 traversed issues with the petition content and process of obtaining signatures, clearly with a view to impugn the adequacy of the evidence adduced by the CEPU.

[49] The CEPU submitted that the collection of petitions signed by employees in favour of bargaining is the usual method adopted by the Commission to work out whether a majority of employees in the group want to bargain. It formed the view that whilst not taking issue with the use of petitions per se, South32 had, instead, clutched at straws and unnecessarily complicated the Commission's determination of whether a majority of the group want to bargain.

[50] The CEPU observed that the question of whether there was majority support was a simple one. Quoting the Commissioner in AMWU v Construction Sciences Staff Pty Ltd T/A Construction Sciences, 83 it observed that there was a ‘fairly unremarkable and uncomplicated proposition in signing a petition’. The proposition of the petition was simply to lend a signature to the expression of a wish to commence bargaining immediately. While South32 had sought, in the CEPU’s opinion, to overcomplicate the question of whether a majority of employees wanted to bargain, the Commission could, said the CEPU, be satisfied that this was the case in light of the evidence.

[51] Of the petitions collected by the CEPU, 62 out of a total of 79 employees in the group of Electrical employees voted in favour of bargaining, demonstrating that 78 per cent of the group wanted to bargain. The question is whether these petitions are adequate evidence to show that more likely than not the majority of Electrical employees wanted to bargain for a new enterprise agreement.

5.1 The preamble of the petitions – the wrong employer

[52] The first issue identified by South32 was that the petition referred to the signatories as ‘employees of South32 Limited’.

[53] When the CEPU made its application under s 236 of the Act, one of the initial issues raised was that the CEPU had named South32 Limited as the employer, and the Australian Business Number (ABN) included in that same documentation was also for South32 Limited. It is accepted that the legal entity that employs the Electrical employees who would be covered by the proposed agreement, is South32 Worsley Alumina Pty Ltd. South32 Limited is the parent company of South32. Under s 586 of the Act, I permitted a name change to the application as I considered it common ground between the parties that as far as the relevant cohort was concerned, that being the Electrical employees, there was no confusion that they worked at the Mine and Refinery and for all intents and purposes understood they were employed by ‘South32’.

[54] Turning to the petitions, South32 observed that in AMWU v Kingspan Water & Energy Pty Limited (Kingspan), 84 the petition cited the incorrect employing entity and in that case the Deputy President found that this was material, describing the error as not a ‘mere technicality’. South32 continued that the failure to include the correct legal entity on the petition went against the integrity of the petition process and whether it was evidence of majority support.

[55] The CEPU acknowledged it had inadvertently named the wrong employing entity, noting that it had identified the employer as South32 Limited instead of South32 Worsley Alumina Pty Ltd. However, the CEPU noted that notwithstanding there being authority to the effect that such an error is not fatal in the circumstances of a petition, South32 had still sought to rely on it.

[56] It is correct that in Kingspan the Deputy President accepted the submissions that the incorrect naming of the employer in the petition, was not a ‘mere technicality’. However, the Deputy President observed that there may be other evidence available for the Commission to be satisfied that a majority of employees want to bargain with their employer.

[57] The Deputy President in Kingspan had regard to witness evidence that a number of discussions about the benefits of bargaining had taken place with relevant employees before the signing of the petition. The Deputy President considered it reasonable that the same witness would have referred to the employees’ employer as ‘Kingspan’, rather than using the full name of the company and the employees would understand ‘Kingspan’ in that context. Also considered, were the names on the petitions when compared to the list of employees provided by the employer. In such circumstances, the Deputy President did not consider the ‘typographical’ error fatal to the application.

[58] This contrasts to the decision in AMWU v Top Cut Food Industries Pty Ltd T/A Top Cut Food Industries (Top Cut), 85 where the Commission of its own initiative under s 603 of the Act sought to revoke a determination under s 236 and the accompanying decision. In Top Cut, the wrong employing entity was named, which was compounded by the provision of a list of workers who were not the relevant employees. On this basis the MSD was revoked.

[59] The Act clearly contemplates that an application under s 236 must stipulate the employer or employers who will be covered by the Agreement. 86 No such obligation extends to the content of a petition. However, it is the petition that is often used to support the contention that a majority of employees of the employer at a time determined by the Commission and who will be covered by the agreement, want to bargain. The naming of the employer on the petition is a material fact. It is evidence that is drawn upon by this Commission to determine in part whether a state of satisfaction has been reached under s 237(2)(a). The applicant bears the evidentiary burden under s 237(2)(a), and while naming the incorrect employer on the petition has not proved fatal in this particular case that is not to say that all circumstances will lend themselves to such conclusion. By way of observation only, an error of this nature is not, in my view, amenable to retrospective amendment pursuant to s 586.

[60] As alluded to, the circumstances of this matter are not dissimilar to that in Kingspan. Before embarking on the petition process in May and June 2020, Mr Woodage conducted his reconnaissance of Electrical employees, evaluating whether there was an appetite for bargaining. This included sending out correspondence such as that of 18 June 2020, detail of which is expanded upon at paragraphs [98] to [106]. However, for this particular issue the salient observation is that in that correspondence, Mr Woodage referred simply to ‘South32’. Having considered the evidence of the parties, including the Revised Statement of Agreed Facts, I am satisfied that the issue raised by South32 does not detract from the adequacy of evidence in respect of the petitions.

5.1.1 The passage of time and the integrity of the process

[61] South32 observed that there had been a significant period from when the petitions were collected in June and July 2020 to the hearing which had initially been listed for December 2020. During that period, South32 had decided not to go ahead with roster changes and other changes within its operations, following its consultation with employees, including Electrical employees. Further, employees at both the Mine and Refinery had received a discretionary bonus. According to South32, these matters had increased morale amongst employees and reduced any support for bargaining. 87

[62] It was South32’s position that the Commission must be satisfied that a majority wanted to bargain ‘at a time determined by the FWC’. This time, said South32, did not need to be the time when the application was lodged, but could be some other time determined by the Commission. 88 Section 237(2) contemplates that the Commission must be satisfied that a certain state of affairs actually existed, not that the state of affairs existed previously. In this respect, South32 referred to a case where the Commission had refused to accept evidence of petitions in matters where there had been a significant period of time between the petition being prepared and the hearing of the application.89

[63] South32 pressed that its case was not one where an employer had led no evidence to suggest that the petitions were not an accurate reflection of the Electrical employees’ intention. 90 Instead, South32 contended that the petitions did not provide sufficient evidence to satisfy the Commission that there was majority support for bargaining, and it had produced compelling evidence of this.

[64] South32 submitted that the petitions were now around one year old and hence too historic to constitute probative representation of the current views of employees for the purpose of assessing majority at a point in time (which, said South32, should be the time at which the Commission’s decision is handed down).

[65] The CEPU observed that South32 had not filed any direct evidence to the effect that the Electrical employees who signed the petition no longer want to bargain. In contrast, submitted the CEPU, it had filed direct evidence from two Electrical employees showing there was still strong support to bargain, with such support having grown stronger since the time of the petitions.

[66] Turning first to the contention that the Commission must be satisfied that a majority wanted to bargain ‘at a time determined by the FWC’.

[67] Section 237(2)(a) requires the Commission, as a prerequisite to the making of a MSD, to be satisfied that the majority of the employees ‘who are employed by the employer or employers at a time determined by the FWC’ and ‘who will be covered by the agreement’ want to bargain. In the decision of Alcoa of Australia Limited v Construction, Forestry, Mining and Energy Union, 91 the Full Bench, in its consideration of s 237(2)(a), expressed:

[68] The Full Bench in Kantfield Pty Ltd v AWU 93 (Kantfield) explored what was meant by ‘employed at a time’, expressing:

[69] In National Union of Workers v Lovisa Pty Ltd (Lovisa), 94 the Deputy President, having considered Kantfield, reiterated the point the Full Bench was making – namely, the Commission’s power to determine a time is confined to the question of who are the persons employed by the employer at a particular time: that is, to fix by reference to time the cohort of employees from which the question of the majority is to be determined.95

[70] Explaining the operation of s 237(2)(a)(i) further, the Deputy President in Lovisa noted that the Commission does not have a discretion to determine the date on which a majority wishes to bargain. 96 Instead, it must assess this question as at the date of the decision, using the most recently available information.97 By way of example, the Deputy President provided the following illustration:

[71] I find no reason to depart from the reasoning in Kantfield and Lovisa, and therefore, accept the approach acknowledging 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. The date at which the cohort is to be fixed however, is 31 July 2020, at which time Mr Woodage ceased garnering signed petitions.

[72] Concerning the material before the Commission, I have noted that South32 pressed that s 237(2) contemplates that the satisfaction that a certain state of affairs actually existed, not that the state of affairs existed previously, and also referred to the Commission having refused to accept evidence of petitions in matters where there had been a significant period of time between the petition being prepared and the hearing of the application. 99

[73] In Transport Workers’ Union of Australia v M.J. Rowles Pty Ltd (MJ Rowles), 100 the decision referred to by South32, the Commissioner observed that during the period between the signing of the petition and the application having been made, there had been turnover of employees and others had signed common law contracts.101 The Commissioner thereafter expressed reservations about the petition process at hearing and made suggestion that a secret ballot would provide a clear expression of the employees’ wishes. The parties agreed to such course.

[74] I am unpersuaded that it was simply the passage of time which led the Commissioner in MJ Rowles to express reservations about the acceptance of petitions. The Commission expressly referred to changes in the relevant employee cohort because of turnover and engagement on common law contracts.

[75] South32 concluded that as the petitions were around one year old, they were too historic to constitute probative representation of the current views of employees for the purpose of assessing majority at a point in time. I do not agree.

[76] As identified by the CEPU, South32 has not filed any direct evidence to the effect that the employees who signed the petition no longer want to bargain, and it is after all South32 who has raised this issue regarding the adequacy of the evidence.

[77] Mr Nash and Mr Drury gave evidence to the effect that increased morale among employees had reduced support for enterprise bargaining. Their accounts, however, are premised on their perceptions and speculation that increased morale decreases an appetite for bargaining. It is not that the accounts of Mr Nash and Mr Drury are to be disbelieved, it is just that the probative weight of this evidence is markedly limited in respect of the current contention.

[78] Mr Drury spoke of having received evidence from his Superintendents, Mr Cole and Mr Ward about the purported state of confusion of some employees regarding the petition, and the Superintendents’ ‘impression that electrical workers in the maintenance team felt there was pressure on them to sign the petition during the CEPU’s right of entries’. 102 South32 is not absent evidence about the petitions and their adequacy, but I do not consider that evidence supports a finding that Electrical employees no longer wanted to bargain at the relevant time. The veracity of the evidence is also considered given it is at best second-hand hearsay from an unidentified source (save the acknowledgement it is a purported employee(s)).

[79] South32 pressed that the case was not one where ‘[n]o evidence has been presented [by the Respondent] … to suggest it is not an accurate reflection of [the Employee’s] intention’. 103 It had extracted the sentence from the decision in AMWU v Superpop Pty Ltd,104 where the Commissioner had had dealt with an employer’s concern about the tactics that had been used to obtain signatures in the petition, believing that unfair tactics and duress had been involved. The Commissioner concluded that there was no evidence to suggest that the petitions were not an accurate reflection of the employees’ intention to want to bargain.

[80] While South32 has presented evidence about the adequacy of the petitions, I am again unpersuaded that because of the passage of time the petitions no longer evince the Electrical employees’ intention that they want to bargain.
[81] The CEPU claimed that the direct evidence from its two witnesses showed that there was still strong support to bargain, with such support having grown stronger since the time of the petitions. Again, while the witnesses may speak authoritatively of their own intent, I am unwilling to project such intent upon their colleagues.

[82] There is no denying that the petitions are now around one year old. Delays are at times inevitable when interlocutory applications are made and contested. However, I am not satisfied that the petitions are too historic to constitute a probative representation of the current views of the Electrical employees, for the purpose of assessing whether there is a majority at the relevant point in time.

5.1.2 The misrepresentations and control of the petitions

5.1.2.1 The misrepresentations

[83] The gravamen of South32’s argument was that the Electrical employees had been misled by Mr Woodage about the purpose and nature of an enterprise agreement, and their rights under their existing arrangements. South32 pressed that there was ample objective evidence that demonstrated this to be the case, noting that the documents which had been produced, 105 contained the following misrepresentations:

[84] South32 submitted that the CEPU’s assertions, which had appeared in multiple communications that preceded the date that most employees signed the petitions, might reasonably have led employees to hold a mistaken view, for example, that South32 intended to unilaterally reduce contractual pay and conditions and that South32 could do so without an enterprise agreement in place, and that an enterprise agreement could prevent such action. South32 continued that there was confusion amongst the cohort of Electrical employees. 106

[85] South32 advanced that the Commission should be satisfied that first, there were misrepresentations as to a number of important matters in relation to the petition process and bargaining; and second, these misrepresentations raised an inference, which had not been rebutted by the CEPU, that at least some of the Electrical employees may not have given free and informed consent when signing the petitions.

[86] Responding to the evidence of Messrs Brown and Brezovnik regarding their own understanding of the petition, South32 argued that the evidence of Messrs Brown and Brezovnik did not displace the real risk that at least some Electrical employees did not understand the effect of the petitions they were asked to sign and could not have genuinely agreed to the proposition in the petitions in these circumstances.

[87] The CEPU argued that South32 had not brought any direct evidence demonstrating that any employee who signed the petition did not understand what they were signing.  At best, said the CEPU, South32’s evidence on this point was hearsay and opinion evidence, although in many cases it was second, third or fourth hand hearsay and opinion evidence.  It followed, said the CEPU, that South32’s evidence on this point should be given no or at least very little weight.

[88] It is of course conceivable that in some circumstances a petition may not be able to be relied upon as an appropriate method to determine majority support for bargaining or as adequate evidence of majority support. So much was expressed in "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Edlyn Foods Pty Ltd, 107 where the Commissioner considered whether there had been duress, coercion or whether the proposition put to employees was in some way confusing or not clear.108 No such circumstances arose.

[89] Similarly, in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Kinkaid Pty Ltd T/A Cadillac Printing (Kinkaid), 109 the Deputy President considered two circumstances where a petition may not be relied upon as an appropriate device to determine majority support for bargaining. The first, where the petition had been falsely derived. The second, where signatures had been achieved by duress. Again, it is noted that in Kinkaid the Deputy President was confronted with no such circumstances.

[90] However, in New South Wales Nurses and Midwives Association / Australian Nursing and Midwifery Federation NSW Branch v Mark Moran at Little Bay Pty Ltd T/A Moran Little Bay (Moran), 110 evidence from one of the petitioners was presented to support the contention that the petitions could not be relied upon as they had been falsely derived. Mr Batac, an employee of the respondent and the petitioner in question, said he had not been told that he was signing a petition in support of an enterprise agreement and the respondent alleged that false representations were made to the employees to the extent that they should sign the petition to get a pay rise. Despite this evidence, the Commissioner considered it reasonable in all the circumstances to make the determination. Turning to Mr Batac’s evidence, the Commissioner stated that the petition could not be characterised as ‘falsely derived’ and there was no basis to impute what Mr Batac described as his own experiences as being common to any or all other petitioners.111 In arriving at this conclusion, the Commissioner expressed that the text of the petition spoke for itself, it having stated, it was a ‘majority support petition to commence bargaining for an enterprise agreement’.112

[91] In The Australian Workers’ Union v The Austral Brick Co Pty Ltd T/A Austral Bricks (Austral), 113 the respondent employer similarly argued that the petitions could not be relied upon as they were insufficient to demonstrate the informed wishes of the employees.

[92] In Austral, the petitions in question had been signed on the basis that all of the production group were being requested to endorse the proposal, rather than only those who were eligible. As it turned out, some of the employees in the production group were covered by individual transitional instruments (therefore ineligible to vote), which had not been considered when the AWU officials were preparing and distributing petition – hence affecting the explanation given to the employees about the purpose of the petition. In the respondent employer’s view, this oversight brought the petition into doubt. 114

[93] It was found that that the explanation was consistent with the heading on the petition but was based on the assumption it was a majority of the whole production group that was required by the Act, and that bargaining would involve the entire group. The lack of a full understanding of the context for the petition and the inclusion of persons who were outside of its proper scope were relevant considerations according to the Commissioner. However, the Commissioner was satisfied that a majority of the eligible employees had indicated that they wished to bargain with the respondent employer.

[94] In arriving at this conclusion, the Commissioner in Austral observed that the purpose of the petition was clear on its face, and although the explanation given was wrong in certain respects as to its scope, it was the apparent understanding of the three employees who were eligible to sign and did so, that was to be considered. Each had signed, having been informed that this would, if supported by the majority, lead to bargaining directed towards an enterprise agreement. The Commissioner noted that while bargaining would only involve each of the three employees and not the entire group, this did not undermine the informed nature of the employees’ position.

[95] During the hearing of the matter, and in South32’s submissions, there were several issues identified with the reliability and/or accuracy of the petitions tendered by the CEPU as evidence. These issues gave rise to the question of whether the results of the petition could be relied upon to confirm that a majority of employees wanted to bargain.

[96] As noted, the applicant bears the onus of satisfying the Commission that an order for a determination should be made. 115 That conclusion was reached by the Commission in Coal and Allied Operations v Automotive Food Metals Engineering Printing and Kindred,116 where the Full Bench, in contemplation of the discretion provided by s 127 of the Workplace Relations Act 1996 (Cth), stated:

[97] The Full Bench continued that while it could perhaps be said that no party bears an onus in quasi-judicial proceedings that are freed from legal technicality and are directed to the determination of statutory discretion, there were principles associated with the notion of onus of proof that had a useful role in adversarial proceedings. 118 The Full Bench stating that a notion of onus stemmed from the fact that an applicant is the party who usually has the carriage of the application and who bears the risk of failure.119

[98] Mr Woodage made some misrepresentations in an email to multiple employees of South32 (identified as the ‘South32 E and I team) on 18 June 2020. This was before the petition(s) were distributed for signing. In the email he informs the recipients that he will be on site at the Electrical Workshop 325 lunchroom on 24, 26 and 29 June 2020. In that same email he writes, ‘I will have a petition about all of the following for those they [sic] aren’t aware’, the following thereafter ensues inclusive of typographical errors:

[99] Attached to the email dated 18 June 2020 was the ‘common law vs EA flyer’ (the Flyer). The Flyer commenced with the following:

[100] Thereafter, the Flyer provided a comparative table between the terms and conditions under an enterprise agreement and an employment contract. Of consternation to South32 was the representation in that table of ‘[g]uaranteed pay increases annually’ under the Agreement and ‘no guarantee of an increase, ever’, under the Contract.

[101] In giving his evidence, Mr Woodage was asked whether the email and the Flyer were provided to South32 employees, particularly the Electrical employees, to encourage them to support the CEPU’s push for South32 to bargain. In response, Mr Woodage clarified that it was an information sheet that had been requested by members, which included the South32 Electrical employees.

[102] South32 particularised the issues it had with the assertions in the email and Flyer, and the evidence that Mr Woodage had given at the hearing.

[103] It regarded the assertion that an enterprise agreement would provide the Electrical employees with guaranteed pay rises annually, as a misrepresentation. When it was suggested to Mr Woodage that an Electrical employee would understand from reading the document that an agreement would guarantee annual pay rises, he responded ‘[C]orrect, if it’s negotiated in that fashion’. It was pointed out that such qualification, regarding ‘negotiated in that fashion’, was not provided for in the document, with which Mr Woodage agreed. 120

[104] The next assertion, which was regarded as a misrepresentation within the email, was the statement that without an enterprise agreement South32 could reduce the employees’ terms and conditions of employment and could unilaterally terminate the employees’ employment contracts and put the employees on the Award. Mr Woodage agreed that he made the assertion noting that it was made at that time to the best of his knowledge. 121 He acknowledged however, that since making the assertion it had been highlighted to him that it was not correct, and that his assertion that South32 could terminate any deal with employees, was also incorrect.122

[105] Mr Woodage also made an assertion in the Flyer about the ability to ‘take industrial action’. When it was proposed to Mr Woodage that an employee reading that statement might understand that if covered by an agreement they could take industrial action, Mr Woodage responded, ‘[Y]es, it’s potentially there’. 123 When Mr Woodage was asked whether he accepted that once an enterprise agreement was entered into and was in force during its operative term employees were unable to take protected industrial action, Mr Woodage admitted that the proposition was correct, and had been discussed with members on right of entries.124 When asked whether the representation in the flyer was false, Mr Woodage said ‘[W]ith the context you’ve put around it, it could be perceived as a false representation’.125

[106] One of the questions set out in the email, question 5, spoke to bringing in contractors who were cheaper. In response, Mr Woodage had written ‘if the workforce want we can force the company to have a stringent enforceable contractor clause in the EA to prevent this’. Mr Woodage was asked in cross examination whether he was aware of non-permitted matters in the Act, to which he replied that he was. 126 Mr Woodage also accepted that a clause in an enterprise agreement that prevents an employer from engaging contractors to perform work would be a non-permitted matter.127 Mr Woodage accepted on face value that an employee

who received the email may assume that such a clause strictly prohibiting contractors was lawful and would be included in any enterprise agreement if they wanted it. However, Mr Woodage clarified that there was a conversation held on the right of entries where more context was provided.

[107] South32 drew attention to another email that had been sent by Mr Woodage on 29 June 2020, to Electrical employees. At hearing, Mr Woodage said that the purpose of the email was to get the employees up to speed of where they were at with the petition. 128 Within the email was the following passage:

[108] At hearing, it was stated to Mr Woodage that the paragraph gave the same false representation about the employees’ common law contracts (as had the email of 18 June 2021). Mr Woodage responded, ‘Yes, it does.  It's very similar to the information I previously had given to the members’. 130

[109] In a further email dated 22 June 2021 to the Electrical employees, Mr Woodage wrote:

[110] When proposed that the sentence would have represented to an employee reading it that the only way they could obtain changes or improvements to the terms and conditions of their employment would be to bargain for an enterprise agreement, Mr Woodage responded, that as ‘a collective group, correct’. 132

[111] As observed, previous decisions of this Commission have indicated that there are circumstances where a petition could not be relied upon as an appropriate device to determine majority support for bargaining. Namely, where the petition had been falsely derived, or the signatures had been achieved by duress or coercion.

[112] As was said in Austral, s 237(2) makes clear that the Commission may work out whether a majority of employees want to bargain using any method considered appropriate. In approaching the matter, regard is had to the relevant objects of the Act, particularly those set out in s 171 of the Act and aside from considering whether the statutory prerequisites are met, the Commission must be positively satisfied as to the requirements in s 237(2) given the express requirements of the Act, and the consequence for all parties of the determination being sought. 133

[113] In Austral the Commissioner focused on the apparent understanding of the three employees who were eligible to sign the agreement and did so sign. The Commissioner was content to find that each had signed, having been informed that this would, if supported by the majority, lead to bargaining directed towards an enterprise agreement.

[114] In the current context, the petition itself set out in its preamble the following:

[115] On its face, the petition signed by a majority of the Electrical employees is clear and unambiguous. However, I am not content that the petitions are a genuine reflection of the Electrical employees’ wishes notwithstanding the evidence of Messrs Woodage, Brown and Brezovnik.

[116] Mr Brezovnik gave evidence that he was present on an occasion where Mr Woodage circulated the petition. Mr Brezovnik said that Mr Woodage clearly articulated the petitioning process to the ‘electrical workers’ on multiple occasions and that he himself personally explained the petitioning process to many of the electrical workers noting that strike action was a last resort. 134 Similarly, Mr Brown explained that on 24 June 2020, Mr Woodage circulated the petition explaining why a MSD was needed, the process and how it worked.135 Mr Brown said that Mr Woodage made it very clear what the petition was for and what it was going to be used for.

[117] Mr Brown addressed Mr Nash’s evidence at paragraphs [37] and [38] of Mr Nash’s witness statement, 136 that the CEPU had provided misleading information and the only anticipated changes South32 proposed to make were to employee benefits; where a proposal for employees to cash out their medical benefit instead of having company-paid medical insurance was put forward.137 Mr Brown said that Mr Woodage’s comments were being taken out of context as the comments were referring to new starters who were no longer going to receive the benefits that the existing employees received.138 This included the benefits of 16% superannuation, discounted home loan rate and HBF private health care.139 Further, South32 had removed the ability for employees to claim the private health fund rebate.140

[118] In re-examination, Counsel for the CEPU asked Mr Woodage about the questions put by South32’s Counsel. Those questions had focused on ‘whether … communications you had made in your emails may have been misleading to the employees when they signed the petitions.’ 141 Mr Woodage explained:

[119] As noted, prior to the petitions being distributed, Mr Woodage sent an email dated 18 June 2020 to the Electrical employees. The email traversed the scheduled site visits and spoke to the advantage of having in place an enterprise agreement. However, in covering that subject matter, Mr Woodage conceded at hearing that he made a misrepresentation. Namely, asserting that without an enterprise agreement South32 could reduce the employees’ terms and conditions of employment and could unilaterally terminate the employees’ employment contracts and put the employees on the Award. That misrepresentation was not made just once, it was reinforced in an email dated 29 June 2020 to Electrical employees. The latter email was sent for the purpose of updating Electrical employees about the status of the petition.

[120] It is important at this point to observe that I do not cavil with the contention that the apparent understanding of the Electrical employees who signed the petition was that by signing the petition they had demonstrated their support to engage in enterprise agreement negotiations with their employer. Further, I accept that the apparent understanding extended to an appreciation that if the majority of Electrical employees signed the petition, South32 may well be compelled to bargain with the Electrical employees if the statutory prerequisites were met.

[121] I also accept, as expressed by other members of this Commission, that coercion or undue influence of employees would clearly be reasonable grounds for deciding that a petition could not be relied upon as an appropriate method to determine majority support for bargaining.

[122] The application of the term 'coercion' to an industrial relations setting was discussed in the matter of Hodges v Webb. 143 Peterson J considered an issue of alleged coercion of an employer in the context of certain threatened disputation. Notwithstanding that context, the following approach is said to be generally relevant to Commission proceedings:

[123] In Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Seven Network), 144 the meaning of ‘coerce’ was considered under the Workplace Relations Act 1996 (Cth) by Merkel J. The meaning of the word had also been considered earlier by Gyles J in Finance Sector Union v Commonwealth Bank of Australia.145

[124] In Seven Network, where Merkel J considered a legislative provision that required ‘intent to coerce’, it was said:

[125] Clearly, a finding that employees had been coerced into signing a petition requires more than persuasion or inducement. What is required is that the free will of employees deciding whether or not to sign a petition is overborne by force, intimidation or a threat to dismiss, or otherwise injure the employees in their employment or generally.

[126] In my view, coercion and duress have no bearing in this case and arguments were not pressed in this respect. However, the contention that requires further consideration is that the petition is not a genuine reflection of the employees’ wishes – because it has been ‘falsely derived’.

[127] Persuasion and inducement are not uncommon elements when it comes to the bargaining process or the precursor to that process, such as engendering support for a MSD. Notwithstanding, there is a difference where the persuasion or inducement encompasses truthful or correct information as distinguished from where a misrepresentation or misrepresentations are relied upon. In some scenarios that misrepresentation may give rise to a conclusion that the petition has been falsely derived – as is the case here.

[128] Mr Woodage made misrepresentations about South32’s entitlement to unilaterally terminate employment contracts and revert to the Award in the context of providing information to the Electrical employees about the petition process and garnering support to apply for a MSD. In particular:

[129] When giving his evidence, Mr Woodage was asked in re-examination whether he was a lawyer, whether he purported to be a lawyer when working as an organiser, whether he was an expert in employment and industrial relations, and whether he purported be an expert in employment and industrial relations law when speaking to members or otherwise performing his duties as an organiser. Mr Woodage responded ‘No’ to all the questions asked. 147 While Mr Woodage may be an A grade electrician, he is also an organiser for the CEPU. As an organiser for the CEPU he evidently involves himself in communicating with members about matters that are resoundingly ‘legal’ in flavour, or at a minimum, have an industrial or employment leaning. Mr Woodage was conveying to the Electrical employees information relating to the terms and conditions of their employment and about a legislative process. He did so on behalf of the CEPU. Briefly stated, if you are an organiser of a Union and are engaging with members in the way that Mr Woodage did, then it is open to find that you were held out to have knowledge of employment and industrial matters within the context of a petition process, a process as contemplated by s 237(3) of the Act.

[130] It is difficult to square Mr Woodage’s representations about the unilateral termination of employment contracts and reversion to the Award as having no bearing on the apparent understanding of Electrical employees in this petition process. In effect, what was communicated to the Electrical employees in both the presage to, and process of, signing the petitions, was that absent an enterprise agreement South32 could unilaterally terminate employment contracts such that employees would revert to the Award – meaning existing terms and conditions were not secure. I am satisfied that on any objective level these misrepresentations made by Mr Woodage, and thereafter left uncorrected, unequivocally communicated to the Electrical employees that there was a precarity concerning their current contractual entitlements notwithstanding that this was not correct.

[131] To insist that the petitions were not falsely derived because: (a) their preamble was self-explanatory, or (b) the Electrical employees were informed when signing the petition that in circumstances where majority support was achieved this would lead to bargaining for an agreement, artificially limits the apparent understanding of the Electrical employees at the time when they showed their support.

[132] On an objective level, the apparent understanding of the Electrical employees at the time they signed the petitions was that there was precarity concerning their existing terms and conditions of employment and negotiating and making an enterprise agreement with South32 would change that circumstance. Leveraging off a misrepresentation about something so fundamental to the relationship between the Electrical employees and their employer when discussing or otherwise communicating about the MSD application, undermines the informed nature of petition for present purposes and leads to an inevitable conclusion that the petition was falsely derived.

[133] It should not be read that there was a positive statutory obligation on the CEPU to give a fulsome explanation of the petition process or the effect of bargaining to the employees.  Nor that the CEPU was not entitled to campaign in support or to encourage employees to support the petition. However, in circumstances where a union does decide to give an explanation in order to obtain support, the fact that the explanation contains material misrepresentations may be sufficient in some cases to vitiate any consent that the employees gave in signing the petition. 

[134] The evidence of Mr Woodage and Messrs Brown and Brezovnik is sufficient to cast doubt upon the nature of the position as adopted by the Electrical employees. The evidence shows that Mr Woodage’s abovementioned misrepresentations were left uncorrected during the relevant period. Accordingly, in light of the findings made and conclusion reached, I am not satisfied that the requirements of ss 237(1)(b) and 237(2)(a) of the Act have been met.

5.2 The custody and control of the petitions

[135] For the sake of fulsomeness, I have addressed South32’s contention that there was insufficient evidence regarding the level of custody and control over the preparation of the petitions. South32 submitted that the information the CEPU had provided on this point was limited and confusing about how the petitions were prepared and collected. It continued that the lack of evidence on this point undermined the CEPU’s evidence regarding there being ‘majority support’ for bargaining.

[136] In my view, to establish the requisite satisfaction about the integrity of the petitions it is necessary to show, on the evidence before the Commission, that the petitions were at all times under the custody and control of responsible persons whether they be organisers or delegates. The evidence of Mr Woodage, and that of Messrs Brown and Brezovnik shows that to be the case.

[137] While South32 pressed that leave records indicated that two of the employees were absent from work on the day on which they allegedly signed the petitions, I am content that Mr Woodage’s explanation in this regard satisfactorily addressed that issue.

6 The question of whether the group of employees was fairly chosen (see s 237(2)(c))

[138] The second question the parties had asked the Commission to determine, was whether the Commission could be satisfied that the group of employees who will be covered by the agreement was fairly chosen, taking into account whether the group is geographically, operationally or organisationally distinct.

[139] Section 237 of the Act provides an exception to the general rule that parties are not required to engage in enterprise bargaining without their consent.  That is, the general position underpinned by the Act’s bargaining regime, is that the parties will be willing participants within the bargaining process, which is consistent with the fact that there are a number of duties imposed upon parties in that process, including to issue the notice of employee representational rights to employees and to comply with good faith bargaining requirements, such as attending meetings, responding to proposals and refraining from particular conduct.  The jurisdictional prerequisites to the making of a MSD are set out in section 237(2) of the Act. In my view, it goes without saying they should be carefully and strictly applied by the Commission before an order is made.

[140] Section 237(2)(c) provides that the Commission must not make a MSD unless the group of employees who will covered by the agreement was fairly chosen. When the relevant cohort does not include all of the employees of the employer, s 237(3A) applies and requires a determination whether the employees in the cohort argued for are: (a) organisationally distinct from other employees of the employer; (b) operationally distinct from other employees of the employer; and (c) geographically distinct from other employees of the employer. 148

[141] In Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union and Ors (Cimeco), 149 a decision of the Full Bench which considered the analogous provisions in ss 186(3) and (3A), it was concluded that if all of the employees of the employer are not covered by the proposed agreement, the Commission is required to make a finding under s 186(3A) as to whether the group of employees is geographically, operationally or organisationally distinct.150 That conclusion was endorsed by the Full Bench in INPEX Australia Pty Ltd v The Australian Workers’ Union.151

[142] The Full Bench in Cimeco, emphasised that whether the agreement is geographically, operationally or organisationally distinct is not decisive, rather, it is a matter to be given due weight, having regard to all other relevant considerations.

[143] However, the Full Bench expressed that by reference to the legislative scheme and context, it could be reasonably assumed that if the group of employees covered by the agreement are geographically, operationally or organisationally distinct, then that would be a factor telling in favour of a finding that the group of employees was fairly chosen. 152 Conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct, then that would be a factor telling against a finding that the group was fairly chosen.153

[144] The CEPU, drawing upon the decision of the Full Bench in QGC Pty Ltd v AWU (QGC), 154 submitted that ‘distinctiveness is not absolute and can be a matter of degree’. Distinguishing between operational and organisational distinctiveness, the CEPU pointed out that regarding ‘operational’, it referred to ‘an industrial or productive activity’ and did not refer to the performance of a ‘different role, skill, task or function’ by an individual employee or group of employees.155 In contrast, organisational distinctiveness referred to the manner in which the employer has organised its enterprise in order to conduct is operations.156

[145] The CEPU submitted that the Mine and Refinery were geographically distinct from South32’s employees engaged in its other operations. The CEPU said that the Electrical employees who work across the Mine and Refinery are considered one in the same for the purposes of South32’s financial and employee relations structures. They were not ‘grouped in’ with other employees, nor had they previously been covered by an enterprise agreement with other employees, while working at the Mine and Refinery. According to the CEPU, these factors pointed to the organisational and operational distinctiveness of the Electrical employees. The CEPU continued that as the Mine and Refinery were a joint venture, this clearly made the Electrical employees engaged to perform work at the Mine and Refinery operationally and organisationally distinct from South32’s other operations.

[146] It was the CEPU’s view that the group of Electrical employees were clearly organisationally and/or operationally distinct from the non-electrical employees. Having observed that Mr Brown and Mr Brezovnik were the only witnesses in the proceedings who were members of the group, the CEPU pressed that these witnesses were best placed to understand the attributes of the group. Messrs Brown and Brezovnik had given evidence to the effect that the group of Electrical employees worked separately to the other employees of South32, ate separately to other employees of South32, and had separate pre-start meetings. The CEPU argued that the Electrical employees operated as a completely separate team for all practical purposes.

[147] The CEPU acknowledged that it sought an agreement covering the employees it was entitled to represent, who were employed in this geographically, organisationally and operationally distinct operation. It noted that it was common practice for electrical workers to be covered by a distinct industrial instrument, with the Commission and its predecessors regularly approving agreements, including in the mining industry, which covered distinct trades, projects and operations. On this point, the CEPU gave examples of approximately 12 enterprise, certified or collective agreements that were limited to electrical workers at various operations or sites.

[148] It was the view of the CEPU that it would be extremely unusual for the Commission to find that an agreement seeking to cover electrical workers was, of itself, reason to find that the group of employees was not fairly chosen.

[149] South32 remarked about the evidence that the CEPU had led to support its argument that the group of Electrical employees were fairly chosen. It submitted that the CEPU had made the forensic decision not to file any evidence in relation to South32’s employees who would not be covered by the agreement; for example, in relation to the type of work they performed, where it is performed, how it is performed, and how they are structured from an organisational, operational or supervisory perspective. Furthermore, the CEPU had not filed any evidence about what any employee at the Mine did in terms of those matters.  South32 pointed out that none of the employees who had filed evidence on behalf of the CEPU had performed any work at the Mine.  According to South32, this alone meant that there was no sufficient basis for the Commission to find that the Electrical employees were organisationally, operationally or geographically distinct, because there simply was not the evidence before the Commission upon which such a finding could be made.

[150] A decision as to whether or not the group of employees covered by the agreement was ‘fairly chosen’ involves a degree of subjectivity or value judgment. 157

[151] In the circumstances before me, the proposed agreement does not cover all employees of the Respondent. Therefore, s 237(3A) is triggered and consideration turns to whether the group is geographically, operationally or organisationally distinct.

[152] As to the concept of operational ‘distinctiveness’, the Full Bench considered the term denoted an industrial or productive activity. 158 In QGC, the activity in question was said to be the operation and maintenance of gas extraction and processing infrastructure in a particular location.

[153] In contrast, the word ‘organisation’ is said to refer to the manner in which the employer had organised its enterprise in order to conduct those operations. 159 In this respect, the Full Bench in Cimeco noted that the performance of different roles, tasks or functions to that performed by others, was not of itself a sufficient basis upon which a finding of operational or organisational distinctiveness could be made in that particular case.160

[154] In Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers’ Union of Australia; Australian Municipal, Administrative, Clerical and Services Union, 161 the Full Bench set out a number of propositions relevant to interpreting the phrase ‘organisationally distinct’ in s 186(3A). It considered the following relevant:

b) the performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct; 163 

c) however the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function; 164  and

d) most businesses have organisation structures which will allow organisationally distinct groups to be identified. 165 

[155] In all of the circumstances, I have found that the group of Employees is neither geographically, operationally nor organisationally distinct for the reasons that follow. I consider that there would need to be significant circumstances to outweigh these findings before concluding that the group of employees was fairly chosen.  No such circumstances have arisen.

6.1 The question of whether the group of employees was geographically distinct?

[156] I am satisfied that the Electrical employees are not geographically distinct from other employees employed by South32 for the following reasons.

[157] The CEPU highlighted that the Mine and Refinery are geographically distinct from South32’s employees engaged in its other operations. While South32’s Mine, Refinery and Port may stand physically separate from its other enterprises or business, in QGC the Full Bench expressed that distinctiveness related to the group of employees with respect to whom the determination is sought. 166

[158] The Electrical employees are not geographically distanced or separated from their South32 co-workers. In Aerocare v TWU, the Full Bench found there was no appealable error at first instance where it was found that the relevant group of employees was not geographically distinct because the employees physically worked alongside other employees of the employer who would not be covered by the proposed agreement.

[159] The Electrical employees do not generally transfer between the Mine and the Refinery when performing work during a roster. There are of course exceptions when work is performed on the overland conveyor or high voltage line, but for the most part the Electrical employees predominately work at either Refinery or Mine as is the case with their co-workers, who are similarly employees of South32.

6.2 The question of whether the group of employees was operationally distinct

[160] Based on the evidence, it is open to characterise the relevant industrial or productive activity performed by the Electrical employees as the extraction, refinement and export of bauxite.  Essentially, all operational employees working across the Mine, Refinery and Port are involved in that industrial or productive activity.

[161] In QGC, the Full Bench characterised the relevant activity as the operation and maintenance of gas extraction and processing infrastructure in the Surat Basin in Queensland.  The Full Bench concluded that at first instance the Commissioner had treated the performance of a different role, task, skill or function as operational distinctiveness and had erroneously concluded that the group of employees was operationally distinct on that basis. 167 The Full Bench highlighted that the term ‘operational’ referred to an industrial or productive activity.

[162] The Full Bench in INPEX Australia Pty Ltd v The Australian Workers Union (INPEX No.2) 168 considered operational distinctiveness in relation to a group of employees who performed work on the Ichthys LNG project and characterised the relevant industrial activity as the ‘production, transmission and processing of liquefied natural gas’. The Full Bench observed that the AWU did not adduce any evidence in relation to operational distinctiveness but submitted that the employees covered by the proposed agreement were engaged in the discrete industrial or productive activity of production, transmission, and processing of liquified natural gas – specifically in connection with the Ichthys LNG project.

[163] The CEPU submitted that South32’s witnesses referred to the Mine and Refinery as being a single site and that this corroborated the evidence previously filed by the CEPU, which demonstrated that South32 refers to having a single operation on its website, as well as in material used for the purpose of potential investors.  There was limited evidence adduced as to the nature of the work and the industrial or productive activity in which South32’s employees are engaged at its other sites than those the subject of this application.

[164] While South32 sought to distinguish between the sites on the basis that at the Mine the work involved mining activities related to the extraction of bauxite from the ground, while at the Refinery the activity involved transforming or refining the mined product into alumina powder, which was much more akin to a manufacturing, I am satisfied that the evidence shows that both Mine and Refinery can be considered the one operation given they form part of a vertically integrated supply chain for the extraction, refinement and export of bauxite.
[165] In circumstances where one group of employees is involved in the extraction, refinement and export of bauxite and none of South32’s other employees at the Mine and Refinery are engaged in this activity, a finding of operational distinctness is more likely than not available. However, this is not the case here. South32 led evidence that there were approximately 222 different roles across the sites with a total of 1649 employees. There was no evidence to suggest that those employees are engaged other than in the industrial or productive activity of the extraction, refinement and export of bauxite. It can be seen that the Electrical employees are not the only employees who are engaged in this industrial or productive activity and are therefore not distinct in this respect.

[166] However, if I have wrongly concluded that the industrial or productive activity is the extraction, refinement and export of bauxite, then on a more granular level, I would consider that the industrial or productive activity is that of maintaining both fixed and mobile plant/equipment, or more generically – maintenance work either planned or unplanned (breakdowns).

[167] The evidence shows that at the Mine and Refinery, the maintenance teams consist of team members other than Electrical employees, such as mechanical maintenance workers – trade or non-trade. Whilst I appreciate that Messrs Brown and Brezovnik gave evidence to the effect that the Electrical employees at the Refinery worked separately to the other employees of South32 at the Refinery and undertake different tasks, the Full Bench distinguished between ‘operational’ distinctiveness and the performance of a different role, task, skill or function, which was not to be confused with the term. The evidence therefore does not lead to a conclusion that the group of Electrical employees is operationally distinct in this respect.

[168] In light of the above reasoning, I am unable to conclude that the Electrical employees are operationally distinct from other South32 employees at the Mine and Refinery, or the Mine, Refinery and Port who covered by the Aluminium Industry Award 2020 and work within the maintenance teams.

6.3 The question of whether the group of employees was organisationally distinct

[169] As noted, the Full Bench in QGC concluded that the term ‘organisation’ referred to the manner in which the employer had organised its enterprise in order to conduct its operations.

[170] On the evidence before me, the performance of electrical work at the Mine compared to the Refinery is different in terms of the organisational structure of the teams in which those employees perform work.  The CEPU provided limited evidence on the structural organisation of electrical work at the Mine. Both Messrs Brown and Brezovnik were employed to work at the Refinery and therefore their exposure to the organisation of the Mine was understandably limited – given neither had worked in that environment. Mr Woodage also appeared to have had limited exposure to the Mine and its Electrical employees and consequently his evidence was restricted in this respect.

[171] Mr Nash was well positioned to speak to the organisation of electrical work at the Mine. It was apparent from his evidence that the Electrical employees at the mine do not operate as a single team, but rather, they are split across two divisions.  Namely, a Fixed Plant division and a Mobile Equipment division, and within each of these divisions, the Electrical employees work alongside other employees such as supervisors, (indistinct) operators, control room operators, plumbers and others. 

[172] The work of the two divisions at the Mine can be differentiated. From all accounts the Fixed Plant division is primarily responsible for maintaining fixed plant and infrastructure, such as high voltage infrastructure, whereas the Mobile Equipment division focuses on maintenance work in relation to mobile equipment.   It follows that only Electrical employees in the latter team are auto-electricians. 169 The evidence did not suggest that the Electrical employees at the mine worked across these two divisions. They were designated to either Fixed Plant or Mobile Equipment and had separate management or leadership teams.

[173] While Mr Nash gave evidence that the entire team at the Mine was integrated, 170 he noted that the workforce was segregated by way of crews,171 rostering,172 and evidently Fixed Plant and Mobile Equipment divisions. He said that a majority of the operational and maintenance workforce work either a continuous day shift/night shift roster or continuous day shift roster, working 14 shifts over 28 days.

[174] In contrast to the Mine, at the Refinery, the Electrical employees appear to be greater in number, and the work they perform is said to be more diverse as they are spread out across a variety of teams, where according to Mr Drury, they are regularly required to work alongside other trade and non-trade roles in the course of their work. 

[175] Clearly, in terms of supervision, these employees ultimately report up to Mr Drury, who is the manager of all maintenance services at the Refinery. In turn, Mr Drury reports involve a broad range of other maintenance workers, including many workers who do not perform any electrical work.

[176] Mr Drury set out in his evidence that it was common for Electrical employees to be required to work in an integrated manner with other trade and non-trade roles, in particular mechanical or maintenance workers.  The example was given when a particular piece of work is required to be performed, a supervisor will manage the work scope and will delegate tasks as required to teams of Electrical employees, mechanical trade employees and non-trade employees.  The work is of course required to be conducted in a coordinated and integrated manner to ensure that it is conducted efficiently and in accordance with South32's relevant policies and procedures. Two specific examples were referred to in evidence, including planned maintenance work, and where the work order focused on an electrical issue with a significant amount of mechanical work (such as an issue with a valve).

[177] The Electrical employees at the Refinery generally work the same rosters as the other employees within the maintenance team based at the Refinery, with some working a day shift roster pattern of four days on, four days off, four days on, two days off, and some performing a continuous shift roster pattern that involves a rotating day/night 12 hour shift, with an average of seven shifts' work per fortnight. This differs to the rostering pattern at the Mine.

[178] The evidence of Mr Brown differed to Mr Drury’s account about the integration of employees across sites and within teams. 173 Notwithstanding the express differences in the evidence of Messrs Drury, Brezovnik and Brown, I am satisfied that the evidence establishes a high level of coordination between the work of the Electrical employees at the Refinery and the remainder of workers in the maintenance team or the Mechanical team. There appears to be an interdependency between the Electrical and Mechanical teams at the Refinery when one considers the performance of the maintenance work required. I accept that pre-starts and crib facilities are separate to those of other maintenance workers but do not consider that negates the finding that the group of Electrical employees is not organisationally distinct from the remainder of the maintenance or Mechanical team.

[179] There is, however, an important observation to make. The relevant cohort is the group of Electrical employees across both Mine and Refinery. At times, the focus of the CEPU’s evidence appeared to be on distinguishing the Electrical employees at the Refinery from the remainder of the maintenance team (Mechanical team). That is not to say that the CEPU did not speak to the occasions when both Electrical employees at the Mine and Refinery interacted within the operation. However, as noted, those interactions were limited to discrete types of work – they were not the everyday occurrence but were interactions that were organised for specific maintenance tasks. The impression left from the CEPU’s evidence was that the Electrical employees at the Refinery formed a stand-alone group. This relevantly included standing alone from the rest of the cohort whom the CEPU had pressed as being part of the ‘fairly chosen’ group. The CEPU appeared to have lost sight that the group in focus, that is the group purported to have been ‘fairly chosen’ was not only the Electrical employees at the Refinery, but it also included the Electrical employees at the Mine.

[180] Without detracting from a fulsome appreciation of all evidence presented, from an organisational perspective, the evidence shows that the Electrical employees at the Mine and the Refinery are two separate and distinct teams, with different supervisory, management and reporting structures. Rostering between the two sites can be distinguished and the interaction between both the Mine and the Refinery is limited save the express exceptions noted. Insofar as it is relevant, the evidence does not suggest that the Electrical employees at the Refinery and Mine participate in, for example, joint training sessions, or socialise with each other, on-site or otherwise.  While there may be commonality in trade, qualification and at times the type of work, the organisation of the performance of that work whether at the Refinery or the Mine markedly differs.

[181] In my view, the evidence adduced by both parties does not give rise to a finding that the group of Electrical employees was organisationally distinct.

[182] I have considered the proposition advanced by the CEPU that it would be extremely unusual for the Commission to find that an agreement seeking to cover electrical workers was, of itself, reason to find that the group of employees was not fairly chosen. However, while the CEPU suggests that it is common practice for electrical workers to be covered by a distinct industrial instrument, with the Commission and its predecessors regularly approving such agreements, there is no evidence or submission before me that elucidates the context in which those agreements were made and thereafter approved. In the absence of addressing the factual and other circumstances which led to the finding that the group of employees was fairly chosen and how that relates to the issues before me, the submission is absent utility.

[183] As was said in INPEX Australia Pty Ltd v The Australian Workers’ Union, 174 the fact that a particular group was considered by the Commission to be fairly chosen on a previous occasion does not mean that the same grouping will necessarily be fairly chosen in the future, although very often that may be the case.175 In the current context, the CEPU makes reference not to the existing cohort who had been found to have been fairly chosen in the past, but to unrelated employees and employers far removed from the current factual matrix.

7 The question of whether it is reasonable in all the circumstances to make the determination

[184] Before making a determination, I must be satisfied that it is reasonable in all the circumstances to make the determination sought. I am not so satisfied.

[185] I have accepted that the petitions were falsely derived and am therefore of the view that I am unable to accept those same petitions as evincing a majority of Electrical employees support bargaining for a new enterprise agreement. I have also concluded that the group of Electrical employees was not fairly chosen. These are not insignificant matters. In the absence of evidence of a majority of relevant employees supporting bargaining, a MSD is unable to be made. This is irrespective of whether the group of employees was fairly chosen.

[186] On the basis of the material before me and taking into account the evidence, submissions and conclusions reached in relation to ss 237(2)(a) and (c), I do not consider it reasonable in all the circumstances to make the determination sought.

al of the Fair Work Commission - Signed Deputy President Beaumont

DEPUTY PRESIDENT

Appearances:

Ms. Cassandra Taylor, for the Applicant;

Mr. Giacomo Giorgi, of Herbert Smith Freehills, for the Respondent;

Ms. Rachel Lee, of Herbert Smith Freehills, for the Respondent.

Hearing details:

Perth (Video);

July 1.

2021.

Printed by authority of the Commonwealth Government Printer

<PR731203>

 1   PR733258.

 2   Statement of Agreed Facts [2].

 3   Ibid [4].

 4   Ibid [5].

 5   Ibid.

 6   Ibid [7].

 7   MA000060.

 8   Revised Statement of Agreed Facts (RSOAF) [8].

 9   Ibid [9].

 10   Ibid [10].

 11   Ibid [11].

 12   Ibid.

 13   Ibid.

 14   Witness Statement Kieren Ian Drury dated 30 October 2020 (First Drury Statement) [4].

 15   First Drury Statement [3].

 16   First Drury Statement [10].

 17   Ibid.

 18   First Drury Statement [11].

 19   First Drury Statement [12].

 20   First Drury Statement [12].

 21   First Drury Statement [13].

 22   First Drury Statement [14].

 23   Ibid.

 24   First Drury Statement [17].

 25   Ibid.

 26   Ibid.

 27   Ibid.

 28   Witness Statement of Brett Brown dated 10 June 2021 (First Brown Statement).

 29   Brown Statement [10].

 30   Ibid.

 31   Brown Statement [8], [9].

 32   Witness Statement of Simon Brezovnik dated 9 June 2021 (First Brezovnik Statement) [10].

 33   Ibid.

 34   Brezovnik Statement [11].

 35   Ibid.

 36   Ibid.

 37   Ibid.

 38   Ibid.

 39   Witness Statement of Aaron Nash (Nash Statement) [3].

 40   Nash Statement [10].

 41   Ibid.

 42   Ibid.

 43   Nash Statement [13].

 44   Ibid.

 45   Nash Statement [16].

 46   Nash Statement [19].

 47   Nash Statement [20].

 48   Nash Statement [21].

 49   Nash Statement [22].

 50   Ibid.

 51   Nash Statement [23].

 52   Nash Statement [24].

 53   Statement of Adam Woodage dated 16 August 2020 (First Woodage Statement) [3].

 54   First Woodage Statement [13].

 55   First Woodage Statement [14].

 56   First Woodage Statement [15].

 57   First Woodage Statement Annexure AW-4.

 58   First Woodage Statement Annexure AW-5.

 59   First Woodage Statement [18].

 60   Ibid.

 61   First Woodage Statement Annexure AW-6.

 62   First Woodage Statement Annexure AW-7.

 63   First Woodage Statement [22].

 64   Ibid.

 65   Ibid.

 66   First Woodage Statement [23].

 67   Ibid.

 68   Witness Statement of Adam Woodage dated 11 November 2020 (Second Woodage Statement) [9].

 69   Witness Statement of Keiren Ian Drury dated 18 June 2021 (Second Drury Statement).

 70   Witness Statement of Adam Woodage dated 25 June 2021 (Fourth Woodage Statement) [5].

 71   First Brown Statement [15] – [16]; Witness Statement of Brett Brown dated 23 June 2021 (Second Brown Statement) [6].

 72   Witness Statement of Adam Woodage dated 17 November 2020 (Third Woodage Statement) [4].

 73   Third Woodage Statement Annexure AW-10.

 74   Third Woodage Statement [6]-[8] Annexures AW-11, AW-12 and AW-13.

 75   Fourth Woodage Statement [8].

 76   Fourth Woodage Statement [9].

 77   Fourth Woodage Statement [9] Annexure AW-15.

 78   Fourth Woodage Statement [11] Annexure AW-17.

 79   Fourth Woodage Statement [13].

 80   Fourth Woodage Statement [14].

 81   Fourth Woodage Statement [15] – [16].

 82   AMWU v Veolia [2015] FWC 2561 [34]-[38], citing Coal & Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (1997) 73 IR 311, 317.

 83   [2020] FWC 5428 [109].

 84   [2021] FWC 1610 (‘Kingspan’).

 85   [2016] FWC 7776 (‘Top Cut’).

 86   Fair Work Act 2009 (Cth) s 236(2)(a).

 87   Nash Statement [36]; Drury Statement [28].

 88   Media, Entertainment and Arts Alliance [2013] FWC 3231 [46], [48].

 89   TWU v MJ Rowles Pty Ltd [2012] FWA 955 [4] – [5].

 90   AMWU v Superpop Pty Ltd [2013] FWC 2786 [28].

 91   [2015] FWCFB 1832.

 92   Alcoa of Australia Limited v Construction, Forestry, Mining and Energy Union [2015] FWCFB 1832 [35].

 93   [2016] FWCFB 8372 (‘Kantfield’).

 94   [2019] FWC 2571 (‘Lovisa’) [36] - [37].

 95   Ibid [31].

 96   Ibid.

 97   Ibid.

 98   Ibid.

 99   TWU v MJ Rowles Pty Ltd [2012] FWA 955 [4] – [5].

 100   [2012] FWA 955 (‘MJ Rowles’).

 101   [2012] FWA 955 [4].

 102   First Drury Statement [25].

 103   AMWU v Superpop Pty Ltd [2013] FWC 2786.

 104   [2013] FWC 2786.

 105   See [2021] FWC 3043.

 106   First Drury Statement [25].

 107   [2011] FWA 7928.

 108   "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2011] FWA 7928 [7].

 109   [2009] FWA 1123 (‘Kinkaid’) [13].

 110   [2016] FWC 1981 (‘Moran’).

 111   Ibid [39].

 112   Ibid [37].

 113   The Australian Workers’ Union v The Austral Brick Co Pty Ltd T/A Austral Bricks [2010] FWA 5819 (‘Austral’).

 114   Ibid [20].

 115   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.

 116   (1997) 73 IR 311.

 117   Ibid p 317.

 118   Ibid.

 119   Ibid.

 120   Transcript PN [114] - [115].

 121   Transcript PN [126].

 122   Transcript PN [126] - [127].

 123   Transcript PN [119].

 124   Transcript PN [120].

 125   Transcript PN [121].

 126   Transcript PN [134].

 127   Transcript PN [135].

 128   Transcript PN [131].

 129   Court Book p 338.

 130   Transcript PN [132].

 131   Court Book p 263.

 132   Transcript PN [143].

 133   Austral [24].

 134   First Brezovnik Statement [14].

 135   First Brown Statement [14].

 136   Nash Statement [37] - [38].

 137   First Brown Statement [22].

 138   First Brown Statement [22(a)].

 139   Ibid.

 140   Ibid.

 141   Transcript PN [227].

 142   Transcript PN [227].

 143   [1920] 2 Ch. 70.

 144   [2001] FCA 456 (‘Seven Network’).

 145   [2000] FCA 1468.

 146   Seven Network [41].

 147   Transcript PN [205]-[208].

 148   INPEX Australia Pty Ltd v The Australian Workers’ Union [2020] FWCFB 5321 [32], [34].

 149   [2012] FWAFB 2206 (‘Cimeco’).

 150   Cimeco [10].

 151   [2020] FWCFB 5321 [32], [34].

 152   Cimeco [19].

 153   Ibid.

 154   [2017] FWCFB 1165 (‘QGC’) [42].

 155   QGC [44].

 156   Ibid.

 157   Cimeco [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 (‘Aerocare’) [26]; Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2015) 228 FCR 297 [60] – [62].

 158   QGC [44].

 159   Ibid.

 160   Ibid.

 161   Aerocare [24].

 162   Ibid [27]; QGC [44].

 163   Ibid [27]; United Firefighters’ Union v Metropolitan Fire & Emergency Services Board [2010] FWAFB 3009, 193 IR 293, [60].

 164   Aerocare [27]; QGC [44] - [45].

 165   Aerocare [27]; Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476, 242 IR 238, [15]; see also National Union of Workers v Cotton On Group Services Pty Ltd [2014] FWC 6601, [15]-[16] (permission to appeal refused in [2014] FWCFB 8899) and ASU v Shine Lawyers Pty Ltd [2017] FWC 4158, [68]-[71] as examples of where the employer’s organisational structure was used to determine organisational distinctiveness.

 166   QGC [48].

 167   QGC [44].

 168   [2021] FWCFB 1038.

 169   Transcript PN [526].

 170   Nash Statement [13].

 171   Ibid.

 172   Ibid.

 173   First Brown Statement.

 174   [2020] FWCFB 5321.

 175   Ibid [31].