| [2021] FWC 6489 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 236 - Application for a majority support determination
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Crown Equipment Pty Ltd T/A Crown Forklifts
(B2021/912)
DEPUTY PRESIDENT ANDERSON |
ADELAIDE, 21 DECEMBER2021 |
Application for a majority support determination – field service technicians employed in State of South Australia – whether group fairly chosen – method of establishing majority – whether petition can be relied upon – application granted
[1] This decision concerns an application filed on 23 September 20211 by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) under s 236 of the Fair Work Act 2009 (the FW Act) for a majority support determination. The AMWU contends that a majority of employees who would be covered by a proposed agreement want to bargain with their employer, Crown Equipment Pty Ltd trading as Crown Forklifts (Crown Equipment).
[2] The persons to be covered by the proposed agreement are those the AMWU describe as service technicians employed in South Australia who are employed as field service technicians, site service technicians and battery service technicians (but not including workshop technicians). The union relies on a petition to establish that a majority of employees want to bargain.
[3] Crown Equipment oppose the application on three grounds: that the group to be covered by the proposed agreement was not “fairly chosen”; that the petition advanced by the union cannot be relied upon; and that it is not reasonable to make the determination.
[4] I issued directions on 29 September, 6 October and 13 October 2021. Both the AMWU and Crown Equipment filed evidence and materials in support.
[5] On 4 November 2021 I granted permission for Crown Equipment to be represented.
[6] I heard the matter by video on 23 November 2021.
[7] I heard evidence from six persons:
• Mark Plunkett, State Organiser South Australia, AMWU (two statements);
• Clint Nicholson, Field Service Technician (SA), Crown Equipment (two statements);
• Paul Basford, Field Service Technician (Victoria), Crown Equipment;
• Stephen Isberg, Organiser NSW, AMWU (two statements);
• Gregory Quick, State Manager South Australia, Crown Equipment; and
• Craig Riches, General Manager Service (National), Crown Equipment.
[8] Four preliminary matters arise: nomenclature, the redacted petition, the time determined for the purpose of assessing whether majority support exists and the Commission’s reconciliation of the petition.
Nomenclature
[9] There is no misunderstanding between the parties as to which employees the AMWU seek to be covered by the proposed agreement, but there is a difference of nomenclature. The AMWU’s amended application makes it clear that the union seeks an agreement for persons it describes as ‘service technicians’ employed in South Australia. It says these are persons employed as field service technicians, site service technicians and battery service technicians. It does not include persons it describes as ‘workshop technicians’.
[10] Crown Equipment refers to persons it employs in South Australia who work ‘in the field’ (that is, the subject group of the AMWU application) as well as persons it employs in its Adelaide workshop as ‘service technicians’.
[11] For the purposes of this decision, I will use the nomenclature applied by Crown Equipment as this best avoids confusion when referencing the evidence. I will describe the group the AMWU seek to be covered as ‘field service technicians’, noting that this group includes three categories: field technicians (person on the road), site technicians (persons working at a customer site) and battery technicians (persons on the road or at a site specialising in battery repair). I will describe the group the AMWU does not seek to be covered as ‘workshop service technicians’, being persons working at Crown Equipment’s Adelaide workshop.
[12] Where necessary, I use the phrase ‘service technicians’ to describe both field service technicians and workshop service technicians.
Use of unredacted petition
[13] In this matter, the AMWU relies on a petition submitted to the Commission on 29 September 2021 in an unredacted form2. That petition was provided to Crown Equipment in a redacted form only3.
[14] Likewise, Crown Equipment relies on a list of names of persons employed in South Australia as both field service technicians and workshop service technicians as at 1 October 2021 as provided to the Commission in an unredacted form4, but only provided to the AMWU in a redacted form.
[15] Redactions to both the union petition and the employer’s list of names arise from directions issued by the Commission on 29 September 2021.
[16] Crown Equipment acknowledge that it is common for the Commission to rely on union petitions when determining majority support applications and also common for only redacted copies of petitions to be made available to the employer. However, Crown Equipment submit that a risk of procedural unfairness arises when that practice is adopted, and that little or no reliance should be placed on the union petition for that and other reasons.
[17] With the AMWU’s consent, at the commencement of proceedings I provided additional information to Crown Equipment drawn from the four-page unredacted petition. I advised Crown Equipment that the petition recorded six names on page one, six names on page two, five names on page three and one name on page four.
[18] Armed with this fresh information, Crown Equipment did not press a formal objection to its receipt of the redacted petition only.
[19] However, having raised the risk of unfairness, I consider it necessary to observe that I do not consider the approach adopted to have been procedurally unfair.
[20] The redactions prevent disclosure to the employer of the identity of persons who signed the petition. Directions of the type issued, and reliance on an unredacted petition in circumstances where an employer is only provided a redacted version is orthodox. The justification for confidentiality of identity is well established. In National Union of Workers v Cotton-On Group Services Pty Ltd it was noted at first instance: 5
“Often the views of the employer will have a strong influence upon employees and on occasion employees will be anxious about being seen to express a view contrary to that of their employer.”
[21] As I observed in CFMMEU v J Blackwood & Son Pty Ltd:6
“[229] In circumstances where a first agreement is being sought, where the employer holds a view that bargaining is unnecessary and where the employer has taken the step of conducting its own ballot, it is not unremarkable that an employee may have a reasonably held apprehension about its support for a union sponsored petition being made known to its employer or fellow employees.
[230] Industrial relationships are dynamic. They exist in the real world of work, where employment, employment security and harmonious relationships matter. Whether it be membership of an industrial association or support for collective bargaining rights advanced by an industrial association, participation in these activities can reasonably be seen as controversial by some employees or managers and with potential impact on day to day work and relationships with their employer or other employees.
[231] Requiring the provision of unredacted petitions to an employer, as some general rule of procedural fairness in a contested majority support determination, is capable of dissuading employees from participating in petitions sought to be used to establish support for collective bargaining. Given that a statutory object of Part 2-4 of the FW Act is to “facilitate good faith bargaining and the making of enterprise agreements”, it would be undesirable, as some form of general rule, to mandate the provision of unredacted petitions to employers in contested applications under section 236 of the FW Act.”
[22] Those observations apply equally to this matter. A first agreement is being sought by certain employees. It is contested by Crown Equipment.
[23] The potential prejudice to employees from disclosing the identity of those that signed the petition outweighs the procedural usefulness to Crown Equipment from disclosure. There is limited probative purpose in identifying persons given the reconciliation conducted by the Commission. The redacted petition informs Crown Equipment of its descriptive content. Each page is headed:7
“PETITION TO THE FAIR WORK COMMISISON
I want to bargain for an enterprise agreement with Crown Equipment Pty Ltd
I agree to this petition being provided to the Fair Work Commission to prove that employees who work in South Australia have signed this petition and want to bargain for an enterprise agreement.
The names of people who sign this petition will be kept confidential from management at Crown Equipment Pty Ltd” (emphasis in original)
[24] Crown Equipment has cross examined AMWU witnesses and the circumstances of soliciting names for signing the petition. Evidence concerning the petition has been sufficient for Crown Equipment to make a submission about its integrity and whether probative reliance can be placed on it. Crown Equipment has not been materially disadvantaged by not having access to the identities and contact details of the eighteen employees whose names appear on the petition. There has been no relevant procedural unfairness.
[25] I deal with Crown Equipment’s substantive objection to reliance on the petition later in this decision.
Time for assessing majority
[26] Section 237(2)(a) of the FW Act provides that the Commission must determine a time at which an assessment is made as to whether a majority of employees who are employed by the employer and who will be covered by the proposed agreement wish to bargain.
[27] The parties agree that the time should be 1st October 2021.
[28] I consider this to be appropriate, given that is the day when Crown Equipment informed the Commission, as directed, of the number of persons it employs in South Australia as service technicians.
Commission reconciliation
[29] Following receipt of the union petition and the employer’s list of names, the Commission conducted a reconciliation. On 6 October 2021 my chambers advised the parties:
“Dear All,
The Deputy President refers to the directions issued by the Commission (by email) on 29 September 2021.
As directed, on 29 September 2021 the Commission received a copy of an unredacted petition from the AMWU, noting that two redacted copies were sent by the Union to Crown Equipment on 29 and 30 September 2021.
As directed, on 1 October 2021 the Commission received from Crown Equipment a list of names of persons said to be “Service Technicians employed by Crown Equipment in South Australia who would be covered by any proposed agreement”.
The Deputy President has conducted a reconciliation of the two documents and advises as follows:
• there are 37 names on the employer’s list. Of the 37, eight are designated “Workshop”, twenty-five are designated “Field”, three are designated “Site” and one is designated “Battery”;
• there are 18 names on the AMWU petition;
• all of the 18 names on the AMWU petition are also on the employer’s list;
• 18 does not represent a majority of names on the employer’s list.”
[30] As noted, at the commencement of proceedings the Commission provided additional information about the number of names on each petition page.
[31] Further, at the commencement of proceedings the AMWU indicated that it only pressed sixteen of the eighteen names on the petition. It indicated that two of the persons whose names appear no longer wish to be included in the Commission’s determination.
[32] As a consequence, and if the petition is to be relied upon, a majority exists if the group is as chosen by the union (field service technicians). Conversely, a majority does not exist if the group covered all service technicians employed in South Australia, as Crown Equipment submits it should.
[33] The facts are largely agreed, though inferences to be drawn from facts (such as the level of labour cross-over between field service technicians and workshop service technicians) are matters dealt with in considering whether the group was fairly chosen.
Crown Equipment’s operations
[34] Crown Equipment is a nationally operating company, based in Sydney, engaged in leasing, selling and maintaining light equipment such as forklifts and stacker trucks.
[35] In South Australia, Crown Equipment’s state office is located at Wingfield in suburban Adelaide.
[36] On the Wingfield site is a workshop where Crown Equipment employs technicians who service equipment (workshop service technicians). Equipment serviced in the workshop tends, as a general rule, to be larger equipment to be leased or sold by Crown Equipment or which has been brought back to the workshop for servicing from customer sites.
[37] At the relevant time, Crown Equipment employed eight workshop service technicians in South Australia.
[38] Equipment sold or leased by Crown Equipment to customers and located at customer sites is serviced by either field service technicians, site service technicians or battery service technicians.
[39] A field service technician is ‘on the road’ and travels to jobs at multiple customer premises as the need arises.
[40] A site service technician is based at a particular customer site and works from that site (for example, a retail distribution centre).
[41] A battery service technician works on the road (including at customer sites and occasionally in the workshop) specialising in the servicing of batteries in the sold or leased equipment.
[42] At the relevant time, Crown Equipment employed twenty-five field service technicians, three site service technicians and one battery service technician in South Australia (being twenty-nine field service technicians using the nomenclature adopted in this decision).
[43] Whilst broadly similar, there are some differences in Crown Equipment’s operations and industrial arrangements between the states including South Australia.
[44] I make findings concerning the nature of work, lines of accountability and organisation of service technicians later in this decision when considering whether field service technicians are a fairly chosen group.
Industrial coverage of technicians
[45] In South Australia, field service technicians and workshop service technicians are employed under the Manufacturing and Associated Industries and Occupations Award 2020.
[46] There is no history of an enterprise agreement covering these South Australian employees. The proposed agreement would be a single-enterprise agreement and the first in South Australia between field service technicians and Crown Equipment.
[47] In contrast, different industrial arrangements apply to Crown Equipment’s employment of service technicians in New South Wales, Victoria, Tasmania and Queensland.
[48] Two enterprise agreements apply in New South Wales:
• Crown Equipment Pty Ltd Sydney Service Department Enterprise Agreement 2018. This agreement covers technicians operating in the Sydney region (as defined) who are field service technicians; and
• Crown Equipment Pty Ltd New South Wales Workshop Enterprise Agreement 2019. This agreement covers technicians operating in the New South Wales who work in Crown Equipment’s workshop at Smithfield, Sydney.
[49] The background to these separate agreements is set out in the evidence of Mr Riches.
[50] Two enterprise agreements apply in Victoria:
• Crown Equipment Pty Ltd Victoria & Tasmania Field Service Enterprise Agreement 2020. This agreement covers technicians operating in Victoria known as ‘road service technicians’; and
• Crown Equipment Pty Ltd Melbourne Service Workshops Enterprise Agreement 2021. This agreement covers technicians operating in workshops at Mulgrave (in suburban Melbourne) and at Wodonga.
[51] The background to these separate agreements is set out in the evidence of Mr Basford.
[52] In Queensland, the Crown Equipment Pty Ltd Queensland Service Department Enterprise Agreement 2020 operates. This agreement covers both field service technicians and workshop technicians employed in the State of Queensland.
Bargaining intent by field service technicians
[53] AMWU organiser Mr Plunkett became aware in around mid-2021 that some of the field service technicians, whilst generally holding good relations with management, were interested in collectively advancing terms and conditions of employment. On 15 July 2021 Mr Plunkett met approximately nine of the field service technicians after work at a local hotel. Discussions focused on joining the AMWU and having the AMWU seek agreement from Crown Equipment to negotiate an enterprise agreement for field service technicians.
[54] On 3 September 2021 Mr Plunkett wrote to Crown Equipment’s South Australian manager (Mr Quick) as follows: 8
“Hi Greg
I am writing on behalf of AMWU members who wish to start negotiations for an Enterprise Agreement covering employees (Field service Technicians) employed at Crown Equipment Forklifts SA
Please accept this letter as notice of the AMWU intention to negotiate on behalf of members towards an Enterprise Agreement under the Fair Work Act 2009
We would like to arrange meetings as soon as possible to progress with negotiations.
Please respond to me in email to set up suitable time to meet.
Regards
Mark Plunkett”
[55] On 9 September 2021 Mr Quick advised: 9
“Hello Mark,
Just a brief follow up on my declination of our meeting.
I am unable to meet with you tomorrow for the purpose of discussions regarding any proposed enterprise agreements. Following further discussions this week with the Company, I have been advised that it has not formed a view regarding an enterprise agreement in South Australia for its field service technicians and is therefore unable to either initiate or agree to bargaining.
Apologies for any inconvenience this may cause.
Thanks
Greg”
Union petition
[56] In light of Crown Equipment not agreeing to bargain, the AMWU decided to circulate a petition in support of bargaining. For this purpose, two meetings were held.
[57] On 16 September 2021 Mr Plunkett convened a meeting of field service technicians at a local hotel. Approximately eleven technicians attended (including three who had attended the 15 July meeting). 10 Mr Plunkett circulated a petition. According to Mr Plunkett, all eleven signed the petition in his presence.
[58] One of the field service technicians present was Mr Nicholson. Mr Nicholson informed Mr Plunkett that approximately five other field service technicians not present might also wish to sign the petition. It was agreed that Mr Nicholson would meet the others separately. Mr Plunkett gave Mr Nicholson a blank petition page or pages for that purpose.
[59] The next day (17 September 2021) Mr Nicholson met the other five and briefed them on the meeting with Mr Plunkett. Each of the five signed the petition in the presence of Mr Nicholson.
[60] That day (17 September 2021) Mr Nicholson was also given a petition sheet containing a further name from another AMWU member. That member had attended the 16 September 2021 meeting and with the knowledge of Mr Plunkett and Mr Nicholson had taken a petition sheet for signing by another employee.
[61] In addition, on 20 September 2021 Mr Plunkett received a singular signature on the petition from another member (forwarded by email via an intermediary). That person, who had not been present at the meeting on 16 September 2021, had contacted Mr Plunkett on 17 September indicating a desire to sign the petition. Mr Plunkett had then made “a copy of the petition” available to that person for signing.
[62] On 23 September 2021 Mr Plunkett lodged in the Commission an application for a majority support determination dated 22 September 2021.
[63] On about 30 September 2021 Mr Nicholson briefly met Mr Plunkett and handed him the petition page with the five signatures he had obtained on 17 September and the additional member signature.
[64] The AMWU submit:
• the petition has probative value and can be relied upon to work out whether a majority of employees wish to bargain;
• a determination “must” be made if each of the factors in s 237 of the FW Act are satisfied;
• all formal requirements in ss 236 and 237 are satisfied (an application has been made by the AMWU as a bargaining representative and the employer has not agreed to bargain);
• the group of field service technicians is fairly chosen. The group is geographically, operationally and organisationally distinct from other employees employed by Crown Equipment in South Australia and in particular is relevantly distinct from workshop service technicians;
• as there are sixteen field service technicians who signed the petition and whose support is relied upon by the AMWU, and as there are overall twenty-nine field service technicians in the group who were employed by Crown Equipment in South Australia at the relevant time, a majority in support of bargaining exists;
• it is reasonable to make the determination in view of the requirements of s 237 being met and in light of the objects of the FW Act and Part 2-4 to achieve productivity and fairness by enterprise level collective bargaining (s 3)(f), s 171(a)); and
• it is reasonable to make the determination because field service technicians are seeking to bargain for an agreement in circumstances where Crown Equipment already has specific enterprise agreements that distinguish between groups of technicians in Victoria and parts of New South Wales (Sydney in particular).
[65] Crown Equipment submit:
• the group of field service technicians is not fairly chosen. It is neither geographically, operationally nor organisationally distinct. In particular, field service technicians are not relevantly distinct from workshop service technicians;
• the distinction the AMWU seeks to make between service technicians employed in South Australia by dividing them between field service technicians and workshop service technicians is arbitrary and only exists for the purposes of these proceedings;
• that separate enterprise agreements exist for groups of technicians in Sydney is purely a matter of historical circumstance relating to a former business acquisition;
• it cannot be positively found to the requisite standard of proof that a majority of employees who will be covered by the proposed agreement want to bargain;
• the petition lacks probative value and cannot be relied upon including because anomalies exist between the number of names on each of its four pages and the evidence about the signing of names, and inconsistencies between the evidence of Mr Plunkett and Mr Nicholson;
• the petition is deficient because it did not particularise on its face the group who wish to bargain; and
• it is not reasonable to make the determination because different terms and conditions between service technicians in a small State such as South Australia will add unnecessary cost and impede productivity and efficiency.
[66] Section 237 of the FW Act provides that the Commission must make a majority support determination 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:
“(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by the FWC; and
(ii) who will be covered by the agreement;
want to bargain; and
(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.”
[67] 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)).
[68] 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)).
[69] The AMWU’s application for a majority support determination meets the formal requirements of s 236. It is an application by a bargaining representative of employees who will be covered by a proposed single enterprise agreement. There is no dispute that the AMWU represents members employed by Crown Equipment, and that the union’s registered rules entitle the union to represent the industrial interests of employees who would be covered by the proposed agreement. The first pre-condition for issuing a majority support determination is met.
[70] There is also no dispute that the employer has not yet agreed to bargain, or initiated bargaining. The requirement in s 237(2)(b) has been met.
[71] However, in dispute are three matters:
1. whether the group of employees who will be covered by the proposed agreement was fairly chosen (s 237(2)(c));
2. whether a majority of employees in the group want to bargain; (s 237(2)(a)); and
3. whether it is reasonable in the circumstances to make the determination (s 237(2)(d)).
Fairly chosen
[72] Is the group of employees, being field service technicians employed by Crown Equipment in South Australia, fairly chosen?
[73] Given that Crown Equipment employs persons other than field service technicians, s 237(3A) requires the Commission to answer this question by taking “into account whether the group is geographically, operationally or organisationally distinct”.
[74] In this matter, the question can be further particularised by considering whether field service technicians employed by Crown Equipment in South Australia are geographically, operationally or organisationally distinct from workshop service technicians in the State.
[75] Distinctiveness within the meaning of s 237(3A) is a relative, not absolute, concept, and necessarily requires a comparison between employees who will be covered by the proposed agreement and those who will not. 11
[76] Relevant though they are, these factors are not determinative. Even if a finding of geographical, operational or organisational distinctiveness is made, there may be other good reasons to support a conclusion that the group was not fairly chosen or that it was not reasonable in all the circumstances to make the majority support determination. 12
[77] Geographical distinctiveness is concerned with separate worksites or locations and not different buildings on the same site. 13
[78] The workshop service technicians perform work from the workshop at Wingfield, Adelaide. Field service technicians do not, unless transferred into the workshop, perform work to any material extent at the Wingfield workshop. They perform work at geographically scattered locations, either at a customer site (such as a distribution centre in the case of a site service technician) or travel on the road to multiple customer sites and perform work at those premises. Whilst occasionally field service technicians attend the Wingfield site (in the pre-pandemic period this occurred once per month for a joint breakfast) this is primarily for training, administrative or social purposes. There is no evidence that field service technicians are required to travel from or return to the Wingfield site before or after branching out to customer sites.
[79] I take into account that the mere fact a person works alone at a remote or at scattered locations does not necessarily mean they are geographically distinct from others. 14 Each matter turns on its own facts. Here, field service technicians work at multiple locations and many are on the road moving from business to business. There is no sense in which they perform work in the same geographic location as a workshop service technician, who primarily works from one location only (Wingfield). Wingfield is not the location at which field service technicians perform work.
[80] I find that field service technicians perform the work for which they are employed at separate worksites and locations from other persons employed by Crown Equipment in South Australia.
[81] I take into account my findings below that from time to time a transfer occurs whereby a technician working in the field may be employed to work for a period in the workshop and vice versa. This does not however alter the conclusion I make concerning geographic distinctiveness. When such a transfer occurs, those remaining in the field continue to be geographically separated from those in the workshop.
[82] The one qualification to this finding concerns the battery service technician. There is one such person employed. That person performs a specialised role and occasionally performs work in the workshop alongside workshop service technicians as well as on the road and at customer sites. 15 Mr Nicholson estimated this to occupy approximately 10% of that person’s working time.16 Assessing geographic distinctiveness requires consideration of the group as a whole. As there is only one such person amongst a group of twenty-nine field service technicians who do not otherwise work alongside workshop service technicians, the locations at which the battery service technician is required to work does not alter the geographic distinctiveness of the group as a whole.
[83] I conclude that field service technicians are geographically distinct from workshop service technicians and other persons employed by Crown Equipment in South Australia.
[84] As to operational distinctiveness, the term “operational” refers to an industrial or productive activity. 17 The performance of a different role, task, skill or function is not sufficient to establish operational distinctiveness.18
[85] Separate employment contracts and position descriptions exist for each of the field service technicians, site service technicians and workshop service technicians. 19 There is material overlap in the position descriptions though different performance measures are expressed. Relevantly, the stated ‘position purpose’ in each position description is identical:
“Perform planned maintenance or non-scheduled repairs in a professional manner on mechanical battery electric and internal combustion lift trucks in accordance with relevant Company procedures.”
[86] Aside from the position descriptions, I accept the evidence of Mr Quick that in practice the primary activity of both field service technicians and workshop service technicians is the servicing and repair work on equipment sold or to be sold or leased by Crown Equipment.
[87] The evidence establishes that in general terms more complex servicing and repair work is performed in the workshop and simpler or more straightforward servicing is performed on the road at customer sites. I also accept the evidence that in general terms larger equipment is serviced in the workshop and smaller equipment in the field.
[88] However, these propositions are not absolute. For those field service technicians located permanently at a customer site (site service technicians), they also work on larger equipment and perform more complex tasks in addition to working on smaller equipment and simpler tasks. Further, even where more advanced skills are required to service complex work, that is a matter of degree. The core skills are common and transferable.
[89] A material difference between the roles is that field service technicians are customer facing whereas workshop service technicians are not. For example, a field service technician requires interpersonal skills to engage with a customer on their premises and may from time to time facilitate the sale of a part to a customer (including by securing a quote, though the sale may be transacted ultimately by administrative staff). Workshop service technicians do not transact sales. That a material responsibility of a field service technician is customer relations is evidenced by specific KPI’s in their job description (such as number of target daily calls and sales per job). These customer service activities are undertaken in practice, not just in theory. The evidence of Mr Nicholson in these respects is specific 20, was consistent in cross examination and, together with the job description, is a reliable basis on which to make this finding.
[90] I also take into account that field service technicians have additional KPI’s related to travel times and are generally provided with a company vehicle for use on the road, whereas that is not the case with workshop service technicians. These factors weigh towards operational distinctiveness.
[91] However, the primary productive industrial activity of both roles remains the servicing and repairing of material handling equipment (primarily forklifts and stacker trucks). That is common to field service technicians and workshop service technicians. This is a significant element of each role and weighs against a finding of operational distinctiveness notwithstanding relevant differences as to the complexity of equipment serviced, the level of servicing skills required and the additional customer facing functions performed by field service technicians.
[92] Considered overall, I am not satisfied that the industrial or productive activity performed by field service technicians is relevantly distinct from that of workshop service technicians. The customer-facing dimension is a different function but, as noted, performance of a different role, task, skill or function is not sufficient to establish operational distinctiveness.
[93] I conclude that the activity of field service technicians, considered as a whole, is not operationally distinct.
[94] As to organisational distinctiveness, the term “organisation” refers to the manner in which an employer has organised its enterprise in order to conduct operations. 21 Performance of duties by a group of employees which are qualitatively different from duties performed by other employees may weigh in favour of a conclusion that the group is organisationally distinct; 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 other employees to perform a particular business function.22
[95] The evidence 23 establishes that there is a workshop manager (who manages the business of the workshop including workshop service technicians) and a field services manager (who manages field service technicians and the work they perform). However each of these managers report to the same State Service Manager who in turn reports to the State Manager. Employment contracts of all service technicians reserve to the employer the right to alter reporting arrangements. Whilst managers allocate work, there is also a degree of connectivity. According to Mr Nicholson, workshop technicians work is “largely contingent on job referrals from field service technicians”.24
[96] The evidence 25 also establishes that training programmes for field service technicians are conducted in conjunction with workshop service technicians and the training programmes are common. For example, each group utilises the same electronic and manual lift truck manuals to perform their duties.
[97] The same computer management system captures real time work of both field service technicians and workshop service technicians. This system is a tool used for oversight and accountability of work done by all service technicians. 26
[98] Common health and safety policies and practices apply to all service technicians. Common administrative support exists such as personnel and payroll management.
[99] Crown Equipment place weight on the transferability between field service technicians and workshop service technicians. The evidence establishes that from time to time a transfer occurs whereby a technician working in the field may be employed to work for a period in the workshop and vice versa. This is not surprising given the common skills applied.
[100] Transferability occurs in two contexts. Occasionally, it may be temporary (such as a single day) based on need where a workshop service technician may travel to a customer site to assist a field service technician with a job. Some workshop service technicians work overtime on some weekends at a customer site alongside a site service technician. No documentation is formalised for ad hoc movements of this type. In other instances, transfer is permanent or for a longer duration (for example, to cover a forthcoming long-term absence). In these circumstances, the transfer is formalised by an Employee Transaction Form. 27 It is not ad hoc.
[101] The fact that an Employee Transfer Form is used for permanent or longer-term ‘temporary’ transfers reflects the fact that the positions are different roles with some different entitlements notwithstanding each being ‘service technicians’. The evidence also establishes that frequency of transfers (whether ad hoc or permanent) is relatively low and only where a specific need arises.
[102] Weighing these considerations overall, I conclude that Crown Equipment has not organised its South Australian operations such that field service technicians are organisationally distinct from other persons employed in the State.
[103] Having concluded that field service technicians are geographically but not operationally or organisationally distinct, the question requiring determination is whether the group is fairly chosen.
[104] As noted, a finding of one or other of geographic, operational or organisational distinctiveness weighs in favour of concluding that the group is fairly chosen but is not in itself a sufficient basis for doing so.
[105] Having found geographic distinctiveness, there are no reasons to conclude that the group is not otherwise fairly chosen. The selection is not arbitrary or discriminatory. The group has not been chosen for an ulterior or improper purpose. Choosing the group as proposed has a rational basis given my finding of geographic distinctiveness, notwithstanding that I have not found the group to be organisationally or operationally distinct. There is no evidence that persons excluded from the group are seeking to collectively bargain.
[106] For these reasons, and whilst the case is not strong given that I have only found geographic distinctiveness, I conclude, on balance, that the group is fairly chosen.
Does a majority want to bargain?
[107] In contest is whether a majority of employees who are employed by the employer at the time determined by the Commission, and who will be covered by the proposed agreement, want to bargain.
[108] I have noted that agreement exists as to the time required by s 237(2)(a)(i) for assessing whether majority support exists. That date is 1 October 2021.
[109] I have also observed that Crown Equipment has not been relevantly denied procedural fairness by the Commission’s reliance on the union petition in an unredacted form in circumstances where the employer has only been provided a redacted version.
[110] The original petition is not in evidence. A copy is. 28 In dispute is whether the copy is sufficient to make the finding sought. The Commission needs to be positively satisfied that this is so.29
[111] Crown Equipment submit that the chain of custody of the petition was broken in circumstances where Mr Plunkett gave Mr Nicholson a blank page or pages of the petition for signing by other workers and also where the petition or petition pages were then given to two other employees who singularly signed their names on different dates. Crown Equipment further submit that a delay occurred between Mr Nicholson sourcing signatures and returning them to Mr Plunkett.
[112] I agree with Crown Equipment that the chain of custody was materially broken as a consequence of two subsequent singular signatures being secured outside the meetings of 16 and 17 September 2021, especially given the participation of an unknown intermediary in returning a name to Mr Plunkett. However, for reasons discussed below, reliance on these two additional names is not decisive. I do not consider these facts sufficient to render reliance on the petition as a whole unsafe in circumstances where both Mr Plunkett and Mr Nicholson gave evidence of their conduct with respect to the meetings on 16 and 17 September 2021. Their evidence does not lead me to conclude that the petition’s authenticity, being signed as it was by sixteen persons at meetings on 16 and 17 September 2021 was materially compromised in respect of those sixteen signatures.
[113] Crown Equipment submit that an “unexplained irregularity” exists within the petition. I also agree with this submission but it is only material with respect to the two names sourced after the 16 and 17 September meetings.
[114] The petition copy as submitted to the Commission records six names on page one, six names on page two, five names on page three and one name on page four. The irregularity relates to the fact that Mr Plunkett says that he secured eleven names at the meeting on 16 September 2021 and Mr Nicholson says he secured a further five names at the meeting on 17 September. That totals sixteen names, not the eighteen that appear on the petition. The AMWU says this apparent anomaly is resolved by the reply statements of Mr Plunkett and Mr Nicholson where each indicate they spoke to two further non-attending employees after these meetings who then separately and individually signed the petition or petition pages and returned them on 17 and 20 September respectively. 30
[115] However, if each of these individual signatures were separately recorded on single blank petition page (as each of Mr Plunkett and Mr Nicholson suggested in cross examination) an anomaly remains because the copy of the petition at exhibit A8 contains only one sheet where a singular name appears. Mr Plunkett and Mr Nicholson’s evidence was inconsistent on this point, and together with the breaks in the chain of custody after these two meetings I do not consider it appropriate to rely on the two names on the petition singularly sourced after the 16 and 17 September 2021 meetings.
[116] This notwithstanding, I am satisfied on the evidence that eleven persons signed the petition on 16 September 2021 in the presence of Mr Plunkett and that a further five signed the petition on 17 September 2021 in the presence of Mr Nicholson. I accept the evidence of Mr Plunkett that, on 16 September 2021, “I then watched all 11 Service Technicians sign the petition and collected the signed petition pages.” 31 I also accept the evidence of Mr Nicholson that on 17 September 2021 “Each of the Service Technicians then signed petition in front of me.”32 Each was clear and plausible in cross examination in those respects.
[117] On the basis of this evidence, I find on the balance of probabilities that sixteen names were secured at two meetings across those two days, and that the names secured at those meetings appear on the petition.
[118] Given this and given that the union is pressing only sixteen names, reliance on the petition to find that sixteen field service technicians wish to bargain for an agreement is soundly based notwithstanding my decision not to rely on the two signatures sourced after the meetings on 16 and 17 September 2021.
[119] A further ground of objection by Crown Equipment is that the petition did not, on its face, particularise the group who wish to bargain. I have found that the petition informed the petitioners that it would be “provided to the Fair Work Commission to prove that employees who work in South Australia have signed this petition and want to bargain for an enterprise agreement.” By referring to “employees who work in South Australia” the petition did not distinguish between field service technicians and workshop service technicians. Put another way, it described the group more broadly than the AMWU’s application.
[120] This ground of objection is rejected. Whilst the language used in the petition did not particularise field service technicians, in context it was not misleading. That context is apparent from the evidence of Mr Plunkett and Mr Nicholson as to what each said at the meetings on 16 and 17 September 2021 respectively about the purpose of the petition. The evidence of both was that only field service technicians were present at the meetings and thus only names of field service technicians appear on the petition.
[121] The reconciliation by the Commission of names which appear on the petition with names identified on the employers list 33 indicates that only persons identified by the employer as field service technicians (using the nomenclature adopted in this decision) appear on the petition.
[122] For these reasons I find that sixteen field service technicians wish to bargain for an agreement and on 16 and 17 September 2021 those sixteen persons signed the petition copy which appears at exhibit A8.
[123] As there were twenty-nine field service technicians in the group employed by Crown Equipment in South Australia at the relevant time and as sixteen of that group signed the petition I conclude that a majority of employees who would be covered by the proposed agreement want to bargain.
Is it reasonable to make the determination?
[124] Relevant to the issue of reasonableness is the overall circumstances considered in statutory context.
[125] I take into account the statutory scheme which establishes and facilitates enterprise level collective bargaining in support of enterprise agreements. That is the objective being sought by the field service technicians employed by Crown Equipment in South Australia.
[126] It matters not in making a majority support determination whether a bargaining agreement will or will not be made, or the level of bargaining ambition on either side.
[127] Whilst relevant, I do not attach significant weight to Crown Equipment’s concern that an enterprise agreement between it and its South Australian field service technicians would not, in its view, be conducive to productivity or efficiency or is industrially unworkable in a smaller state such as South Australia. Firstly, to do so would presuppose the terms of an enterprise agreement, if one is made. That inappropriately invites the Commission to enter the realm of speculation. 34 Secondly, these are matters for discussion at the bargaining table. The evidence indicates some differential terms and conditions of employment currently exist, for example with respect to rostered days off and certain allowances. Thirdly, Mr Quick’s concern that a separate agreement would compromise the ability to deploy service technicians between roles appears to misunderstand the nature of an industrial instrument.35 Absent agreement by an employer to terms in an instrument that would do so, an agreement does not set aside contractual rights (if any) permitting transfer between roles or an employer’s right to issue lawful and reasonable directions consistent with contractual terms.
[128] Likewise, whist it is understandable that the AMWU point to the fact that field service technicians in South Australia are seeking a distinct industrial instrument applying to their work similar to separate agreements applying to field or road service technicians in Sydney and Victoria, I give only limited weight to this consideration. Just as the absence of separate instruments for field service technicians in those jurisdictions would not weigh against a legitimate desire by a majority of a fairly chosen group in South Australia to seek bargaining, the existence of separate instruments in other jurisdictions is not determinative. It weighs somewhat, but only somewhat, in favour of a conclusion of reasonableness.
[129] I take into account that the factors in s 237(2)(a) to (c) have been met and that s 237(2) is expressed in mandatory terms. Once the statutory criteria are met, and once satisfied as to reasonableness, the determination “must” be made.
[130] I take into account that whilst the AMWU’s case for the group to have been fairly chosen is not strong, there is geographical distinctiveness sufficient for the group to have been fairly chosen. I also take into account, based on the evidence of Mr Plunkett and Mr Nicholson, that there appears to be a genuine desire by persons in the group to be collectively organised and advance their industrial interests through bargaining.
[131] Considered overall, I conclude that it is reasonable to make the determination sought.
[132] I make two concluding remarks.
[133] Firstly, as noted, a majority support determination is not a finding by the Commission that an agreement should or must be made between Crown Equipment and its South Australian field service technicians. The scheme of the FW Act is that a determination is the starting point for bargaining and for describing the group in the notice of representational rights. 36 Whilst triggering a statutory requirement to bargain in good faith, the law does not mandate the making of agreements.
[134] Secondly, a majority support determination does not determine what the scope of a proposed or negotiated agreement should be. If Crown Equipment consider that a different scope than that sought by the AMWU should apply (for example, one covering all service technicians as in Queensland), then it can bargain for that position. A group can be fairly chosen even if another group would be more fairly chosen. 37
[135] A lawfully made application by a bargaining representative has been made under section 236 of the FW Act.
[136] The factors in s 237(2)(a) to (c) have been met.
[137] As a consequence, the FW Act requires that a majority support determination be made.
[138] In conjunction with the publication of this decision I issue a determination 38 under ss 236 and 237 of the FW Act that a majority of field service technicians employed by Crown Equipment in the State of South Australia wish to bargain with the employer for a proposed enterprise agreement.
DEPUTY PRESIDENT
Appearances:
J Martin on behalf of the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
M Byrnes, with permission, on behalf of Crown Equipment Pty Ltd T/A Crown Equipment Forklifts
Hearing details:
2021
Adelaide (by video conference)
23 November
Printed by authority of the Commonwealth Government Printer
<PR736330>
1 Amended 19 November 2021
2 A8
3 MP2
4 R4
5 [2014] FWC 6601 at [37] (finding not disturbed on appeal [2014 FWCFB 8899)
7 A8
8 MP1 Email 3 September 2021 2.47pm
9 MP1 Email 9 September 2021 1.49pm
10 Mr Plunkett says it was eleven; Mr Nicholson says it was between ten and fifteen
11 INPEX Australia Pty Ltd v Australian Workers Union [2021] FWCFB 1038 at [33]
12 QGC Pty Ltd v [2017] FWCFB 1165 at [42]; Kuhle Pty Ltd v Bus and Coach Drivers Association Incorporated [2020] FWCFB 5505 at [34]
13 Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd [2014] FWCFB 1476 at [13]
14 QGE Pty Ltd v Australian Workers Union [2017] FWCFB 1165 at [47]
15 R1 Mr Quick paragraph 44
16 A7 Mr Nicholson paragraph 29
17 QGC v Australian Workers’ Union [2017] FWCFB 1165 at [44]
18 Ibid at [44]; see also Aerocare Flight Support Pty Ltd v Transport Workers Union of Australia [2017] FWCFB 5826 at [27]
19 R1 Mr Quick Attachments A and C
20 A7 Mr Nicholson paragraphs 15 - 19
21 Ibid at [44]
22 Ibid at [44]; Aerocare Flight Support Pty Ltd v TWU (2017) IR 385 at [27]
23 R1 Mr Quick paragraph 3
24 A7 Mr Nicholson paragraph 7(a)
25 R1 Mr Quick paragraphs 12- 14
26 R1 Mr Quick paragraphs 41 - 42
27 R1 Mr Quick Attachment B
28 A8
29 AMWU v Veolia Water Operations Pty Ltd [2015] FWC 2561 at [26]
30 A5 Reply Statement Mr Plunkett paragraphs 2 to 4; A7 Reply Statement Mr Nicholson paragraphs 3 to 4
31 A4 paragraph 18
32 A6 paragraph 14
33 R4
34 Alcoa of Australia Ltd v Construction, Forestry, Mining and Energy Union [2015] FWCFB 1832 at [31]
35 R1 paragraph 45
36 National Union of Workers v Cotton On Group Services Pty Ltd [2014] FWC 6601 at [19]
37 Ibid at [30]