| [2022] FWC 988 |
| 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
(B2021/920)
DEPUTY PRESIDENT BEAUMONT |
PERTH, 2 MAY 2022 |
Majority support determination – whether a majority of the employees want to bargain –whether reasonable in all the circumstances to make the determination – majority support determination issued.
[1] On 28 September 2021, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) made an application under s 236 of the Fair Work Act 2009 (Cth) (the Act) for a majority support determination (MSD) in relation to an enterprise agreement for a group of employees of OGS Australia Pty Ltd (the Respondent).
[2] The Respondent employs people to work at the Albermarle Kemerton Lithium Hydroxide Processing Plant Project at the Kemerton Industrial Estate in Western Australia (site). Employees include those working in electrical and mechanical trades. The application specifies that the employees to be covered by the proposed agreement are those:
[E]mployees employed by OGS Australia Pty Ltd to work on the Albermarle Kemerton Lithium Hydroxide Processing Plant Project in the Kemerton Industrial Estate Wellesley WA 6233 (Kemerton Project) who are not managerial, supervisory, administrative or clerical employees (the proposed group).
[3] The relevant statutory requirements for the Commission to make an MSD are set out in ss 236 and 237 of the Act. Section 236(1) of the Act prescribes that a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the Commission for a MSD. Subsection 237(2) details four circumstances to which I must have regard. Briefly stated, they are whether:
a) a majority of the employees who are employed by OGS and who will be covered by the proposed agreement, want to bargain;
b) OGS has not yet agreed to bargain or initiated bargaining;
c) the group of employees who will be covered by the agreement was fairly chosen; and
d) it is reasonable in all of the circumstances to make the determination.
[4] It is uncontroversial that the applicant in such applications bears the onus of satisfying the Commission that the MSD should be made. 1
[5] 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 the Respondent has not agreed to bargain (see s 237(2)(b)). Further, it is uncontentious that the relevant 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.
[6] The Respondent accepts that in circumstances where the proposed agreement covers the Respondent’s entire blue-collar workforce at the site, that this proposed group represents one which is fairly chosen. 2 Having considered the evidence and submissions of the parties, I have found this to be the case.
[7] The contentious issues are therefore:
a) the ‘point in time’ which the Commission should fix;
b) whether a majority of employees of the proposed group want to bargain; and
c) whether it is reasonable in all the circumstances to make a majority support determination.
[8] Having once determined the ‘point in time,’ if the remaining answers 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. I have found myself so obliged.
[9] In short, I have concluded that all the requirements of s 237(2)(a) –(c) of the Act have been met, and it is reasonable in all the circumstances to make the determination. It follows, as noted, the Commission is obliged under s 237(1) of the Act to make the majority support determination sought. My reasons for doing so follow.
[10] It is useful at the outset to summarise in broad terms the operations, organisation and location of the Respondent in addition to outlining the CEPU’s process of obtaining the signed petitions.
[11] Mr Gill, an official and employee of the CEPU, provided a general overview of the Respondent’s operations. He observed that the site is a construction project with hundreds of employees employed by numerous contractors. 3 The Respondent has a commissioning contract at the site in both the mechanical and electrical spheres.
[12] Mr Richardson, an employee of the Respondent and a member of the CEPU, provided further evidence regarding the work being performed at the site. Mr Richardson is an Instrument Commissioning Technician. He said that Train 1 of the plant is currently at Stage 2 (C2) of commissioning, and he understood that the Respondent was contracted to complete up to Stage 3 (C3) of Train 1. 4 Mr Richardson said that he did not see how the first three stages of commissioning on Train 1 could be completed any earlier than August 2022.
[13] Ms Patel, the HR/IR Advisor for the site, confirmed that the Respondent is engaged as a contractor to provide pre-commissioning and commissioning services, and other ancillary services at the site. 5 Wood PLC is the ECPM at the site, and the site is owned by Albermarle Lithium Pty Ltd.6 Whilst the Respondent commenced work on the site on 27 January 2021, the current end date of the contract sat at 31 December 2021.7
[14] The scope of the work performed by the electrical/instrumentation and mechanical employees at the site was described by Mr Gill as including the testing and commissioning of electrical and mechanical equipment, such as valves and electrical instruments that control and give readings for the running of the plant once operational. 8
[15] Ms Patel explained that the employees are split into three teams. Namely, the Electrical Team, Instrumental Team and Mechanical Team. 9 The site teams included supervisors and relevant technicians, such as electrical commissioning technicians, instrumental commissioning technicians and mechanical technicians.10 Ms Patel stated that the Electrical Team also had a superintendent. According to Ms Patel, the Respondent also considered the trades assistants and store persons to be blue collar workers albeit they did not fall directly under any of the teams.11
[16] Insofar as the teams work together, Ms Patel explained they interacted and worked collaboratively. 12 All three teams were said to work towards the purpose of commissioning the site.13
[17] The attrition rate at the site was said to be high, and as a result there was constant recruitment of new employees. 14 Ms Patel explained that onboarding of new employees occurred every Monday,15 and on this day new employee numbers were generated.16 Ms Patel voiced that because of this it was difficult to obtain current numbers of employees on a day-to-day basis at the site. She said that on average between one and three employees leave and are on boarded each week.17 During the months of September and October 2021, there were apparently 15 blue-collar works who left.18
[18] At the time of preparing her witness statement, Ms Patel reported that there were seven technicians in the Electrical Team, 14 technicians in the Instrumental Team (including two leading hands) and 11 technicians in the Mechanical Team (including two leading hands). 19 In addition, there were three store persons/trade assistants.20 Collectively the group are referred to as the ‘Workforce’.
[19] The employees on the site were employed pursuant to maximum term specified project contracts, which were to expire by 30 May 2022. 21 Ms Patel explained that the employment contracts were linked to the commercial contract in place between the Respondent and Albermarle.22 The commercial contract was set to expire on 30 May 2022.23 Ms Patel advised that following the negotiated extension of the commercial contract (until 30 May 2022), there would be no further work for the Respondent at that site.24 Ms Patel said that it had been made clear to her from management of the Respondent that the Respondent would not be providing blue-collar workers past the contract extension date.25
2.1 Requests to bargain
[20] Mr Gill explained that having become aware that there was no enterprise agreement covering the proposed group, that they were employed on fixed-term contracts tied to a specific project, and that the employees were dissatisfied with their conditions, he suggested to them that one way to improve their conditions was to negotiate an enterprise agreement. 26
[21] On 17 August 2021, Mr Gill visited the site and discussed bargaining for an enterprise agreement with approximately 20 of the Respondent’s employees. 27 He said that the feedback he received was that they wished to bargain for an enterprise agreement.28 On that basis, he explained the process for a majority support determination, noting the CEPU could apply for the majority support determination if a majority wanted to bargain, and that majority could show that they wished to bargain through a petition.29 Mr Gill held similar discussions at the site on 24 August 2021. At either one of those meetings, he asked the employees to show their desire for a majority support determination by raising their hands. Mr Gill purports that there was a unanimous vote in favour.30
[22] Whilst the CEPU were canvassing support for a MSD, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union knowns as the Australian Manufacturing Workers Union (AMWU) were doing the same. Mr Hannan, an Organiser for the AMWU, conducted an initial visit to the site on 9 August 2021. 31 Mr Hannan undertook a subsequent visit on 20 August 2021, where he explained to those workers attending a right of entry site visit, the process of requesting a notice of employee representational rights and applying for an MSD.32
[23] Ms Patel reported that on her last visit to the site she encountered Mr Richardson. 33 Ms Patel characterised Mr Richardson’s comments to her as being of a threatening nature and considered that this threatening tone was reflected in Mr Gill’s email to employees, which indicated that the CEPU was gearing up for a fight.34
[24] In an email dated 19 August 2021, Mr Gill, on behalf of the ‘CEPU, formally requested that the Respondent bargain for an enterprise agreement that covered the Respondent’s employees at the site. 35 The requests to bargain were repeated on 24 August 2021, 31 August 2021, and 7 September 2021.36 Ms Gill received no confirmation from the Respondent that it agreed to bargain. Ms Patel confirmed that the Respondent had not agreed to, nor had initiated, bargaining for an enterprise agreement to cover its workforce at the site.37
[25] Mr Hannan noted that on 3 September 2021, he formally wrote to the Respondent, advising that its mechanical employees wished to bargain for an enterprise agreement and wanted the AMWU to be their bargaining representative. 38
2.2 The petitions
[26] Mr Gill spoke of visiting the site on 7 September 2021 and informing employees that as the Respondent was not agreeing to bargain, the CEPU would need to apply for an MSD, and a petition was required to demonstrate a majority wanted to bargain. 39 Mr Gill said that he explained to the employees that the petition would be via electronic means and that it was up to the employees to decide if they wished to sign the petition.40
[27] On 7 September 2021, Mr Gill sent an email to 26 employees for whom he had an email. That email read:
HI OGS Kemerton crew
These are the 26 names from E&I I have email addresses for. I will get the petitions out via email tomorrow and ask that you fill them out on your computer, making sure to date and import a signature into the relevant box and email back to me if you wish to petition for a majority support determination and bargain a decent EA. I would urge full participation.
Parc pay $44.50 for sparkies, $46.50 dual traders. $2 site allowance, $3.50 flat commissioning allowance per hour, $20/40 travel depending on post code, $100 PIP and $200 PCP at end of job only when made redundant. LAHA is $475 p/week.
Your current contracts are job and term period specific, flat rate so much of this you are not getting. SCEE are similar to above but only have one travel of $32.50 p/day and site allowance is $2.50, LAHA $525 p/week.
I will email OGS now requesting bargaining again and bring up the contract issues, PPE and 8/6 roster. Your contracts indicate that they must consult on hours of work. If they push the 8/6 it would assist if you all indicate you might be willing, only if they fix their contracts and rates are upped to suit your willingness on this.
I do go on leave on 16 September for just over a week and am over east (COVID pending in Tassy), so may have to bring another organiser in if need be over that week. Talk soon, hold the line and let me know of any changes to numbers, manning, rosters etc. For those not members of the ETU, I urge you to join and be part of the collective battle we are about to have! 41
[28] The following day, on 8 September 2021, Mr Gill again emailed the ‘Kemerton crew’ attaching a majority support petition (the First Petition). That email read:
HI OGS Kemerton crew
Please find attached the majority support petition, seeking to bargain an EBA with OGS for your employment at the Albemarle Kemerton Lithium Project.
If you wish to fill out the petition with your details, date and place a signature on it and email back to the nominated email address, that being of myself, know that this will indicate you wish to have the ETU at the bargaining table with OGS to seek an enterprise agreement to cover you and the company for work at the Albemarle Kemerton Lithium Project.
For clarity, once the signed and filled out petitions have been sent to the ETU by 15 September 2021, we will begin the process of filing an application for a Majority Support Determination in the Fair Work Commission. 42
[29] Mr Gill reports that by 9 September 2021, he had received 24 out of 26 possible petitions. 43 However, on that same day he learned that the company had changed its name in mid-August 2021, and accordingly, he issued another email explaining the name change to employees and asking them to fill in a new petition (the Second Petition).44 The relevant parts set out:
Given OGS have only recently changed their business name (officially now OGS Australia Pty Ltd as of 16 August), it might be prudent and safer for us to sign a new petition that incorporates the new name just in case their OGS legal advisors (Mark Hudston from Mapien) seek to knock us off in the Fair Work Commission. We will then be able to demonstrate we are all over these muppets in their general naughty and sneaky behaviour. I believe this name change might have been a first step in seeking to derail our plans to bargain an EBA for Kemerton. I have completed the form that gets filed with Fair Work to apply for the determination by them, and Armen will tweak it and incorporate the AMWU’s submission for their members, so that the submission is a joint one. This will bolster our argument of those workers being deemed ‘fairly chosen’ and ‘organisationally distinct’ by the Fair Work Commissioner when he or she reads the submissions.
If you are able, please fill out and sign and date (the date you sign it) this attached new petition and get back to me in a PDF or Word format ASAP. This decreases the size of the file compared to just taking a photo and sending. Note the finish date for signing is still 15 September, only 5 days away.
[30] Mr Gill said that between 10 September 2021 and 16 September 2021, all 26 of the employees he emailed the second petition to, filled it in, signed it, and sent back copies to his email address. 45
[31] Mr Hannan conducted a further right of entry site visit on 24 August 2021. It was on this visit that he presented to mechanical employees a petition and explained that the petition was a method to show a majority wanted to bargain for an enterprise agreement. Mr Hannan said he made it clear that it was each individual worker’s choice whether to sign the petition. Mr Hannan reported that all in attendance (eight mechanical employees) at the visit, signed the petition (the AMWU Petition). 46 Mr Hannan further reported that that he always had custody of the AMWU Petition.47
[32] Ms Patel expressed that she understood that the CEPU had conducted its petitions electronically, and had sent it via email to a list of some 26 employees, as outlined in Mr Gill’s statement. 48 Ms Patel observed that the email had been attached to Mr Gill’s statement twice, with one copy having the names redacted, and the other copy not.49 Ms Patel said that she had considered the list of employee names, and noted that as at the date Mr Gill said he sent the petition (being 7 and 9 September 2021) only 20 of the names on that list were employed by the Respondent. Ms Patel clarified, that at least six of the employees sent the petition were no longer employed at these dates.50
[33] Ms Patel stated that on the date of the Second Petition, assuming it is the same list of 26 names, a further number of employees had departed and were no longer employed by the Respondent. 51
[34] Ms Patel gave evidence that on a recent site visit she was approached by an employee who had concerns about the CEPU and Mr Gill’s conduct during rights of entry visits. 52 The employee purportedly informed Ms Patel that he was a paid member of the CEPU and had felt pressured into signing the petition because of Mr Gill’s conduct.53
[35] The CEPU and the Respondent differed in their approach to the question of whether a majority of employees wished to bargain. In this respect, it was contentious as to whether the petitions gathered by Mr Gill and Mr Hannan constituted acceptable evidence to support a finding of a majority. Furthermore, there was disagreement on the point of time at which the Commission should fix to determine the employee group. It is the latter point that is first addressed.
3.1 Point in time
[36] The CEPU submitted that the appropriate time for the assessment to be undertaken was 16 September 2021. This was because the parties at this time had stopped collecting petitions and it was also the date of the most recent employee list available to the Commission. I agree with the CEPU for the following reasons.
[37] The Respondent submitted that there had been a significant turnover of staff across the workforce from the time the CEPU collected petitions to the making of the application, and thereafter the date of the closing submissions. This factor, in conjunction with a significant portion of the existing workforce (inclusive of those employed when petitions were gathered and those who had subsequently commenced) having accepted contractual amendments aimed at addressing their concerns, had, said the Respondent, made it clear that the appropriate point in time to set the date was at a time concurrent with the decision. This meant, said the Respondent, that a secret ballot was the preferable course. 54
[38] The Respondent submitted that the abovementioned factors marked an important change in the state of affairs, and indeed, likely changed the employees’ desire to bargain. In respect of addressing the concerns of the employees, the Respondent amended employment contracts between 9 October 2021 and 1 November 2021, 55 such that employees received increased rates of pay, the payment of penalty rates, and overtime in certain circumstances.56 Evidence of the employees’ desire to bargain must be considered in light of this, said the Respondent.57 In short, it was the Respondent’s view that fixing the date concurrently with the publication of the decision would afford fairness to it in light of the positive steps it had taken to address the employees’ concerns which had been the impetus for wanting to bargain.
[39] Whilst the Respondent submitted the appropriate date for assessment was 21 December 2021, the CEPU observed that the Respondent’s primary basis for the submission was the apparent high turnover in staff. However, according to the CEPU this high turnover was not borne out by the evidence. The CEPU acknowledge that there had indeed been a high turnover within the electrical team, but not in the instrumentation or mechanical teams. The latter two teams made up the majority of employees according to the CEPU. The CEPU submitted that the Respondent had not pointed to authority to suggest that high turnover proved grounds for delaying the point in time from the usual course of when a petition is garnered.
[40] Furthermore, the date of 21 December 2021 did not appear to make any difference to there being a majority of employees that wanted to bargain, said the CEPU. The CEPU submitted that if the Commission were to fix the cohort at 21 December 2021, the CEPU and AMWU Petitions would still form a clear majority. This was unless, said the CEPU, the Respondent had some dramatic increase in its employee headcount before 21 December 2021. However, the CEPU put forward that the evidence suggested an overall decrease in headcount. Staff turnover was therefore not an important consideration as it made no difference to the overall result.
[41] For the Commission to make an MSD, it must 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. 58 In the decision of Alcoa of Australia Limited v Construction, Forestry, Mining and Energy Union,59 the Full Bench in its consideration of s 237(2)(a), expressed:
That provision, in its dual characterisation of the class of employees the majority of which must want to bargain, clearly contemplates that the group of employees actually employed at the relevant time may not be co-extensive with the group of employees who will be covered by the agreement if made. By contrast, the “fairly chosen” requirement in s.237(2)(c) operates by reference only to “the group of employees who will be covered by the agreement”. It is clear therefore that the majority support requirement must be satisfied by reference to that portion of the group of employees who will be covered by the proposed agreement who are presently employed at the time determined by the Commission, whereas the fairly chosen requirement must be satisfied in relation to the entire group who will be covered by the proposed agreement. 60 (underlining for emphasis)
[42] The Full Bench in Kantfield Pty Ltd T/A Martogg & Company v Australian Workers’ Union (Kantfield), 61 explored what was meant by ‘employed at a time’, expressing:
[35] The power to apply a time-based limitation is confined to section 237(2)(a)(i) and not section 237(2)(a) more broadly. That is, the power to apply a point-in-time limitation in section 237(2)(a)(i) is directed to fixing the time at which the FWC is to determine who are the persons employed only. Therefore, it does not confer a broader power to “fix” historical or future points in time for other aspects of section 237.
[36] In Peko-Wallsend, Mason J stated:
“… there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.”
[37] Applying Peko-Wallsend, it follows 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. Having considered all of the submissions and authorities filed by the parties, we agree that it was not open to the Commissioner to determine a point in time other than the time of the decision as the time at which a majority of employees could be said to want to bargain. As such, we are not satisfied that it was open to the Commissioner to reach the determination that he reached.
[43] In National Union of Workers v Lovisa Pty Ltd (Lovisa), 62 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.63
[44] 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. 64 Instead, it must assess this question as at the date of the decision, using the most recently available information.65 By way of example, the Deputy President provided the following illustration:
[T]hus the Commission might exercise its discretion to determine 1 January to be the time at which the cohort of employees is to be fixed, and on 1 February (the date of its decision) determine whether a majority of the persons employed at 1 January wishes to bargain. Evidence about employees’ wishes, such as petitions, produced throughout January and up until 1 February could be taken into account in determining whether a majority existed. The question for the Commission would be whether, as at 1 February, a majority of the employees who were employed as at 1 January wished to bargain. 66
[45] 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 16 September 2021, at which time the CEPU and AMWU ceased garnering signed petitions.
3.2 Whether a majority want to bargain for an agreement
[46] The Respondent submitted that where the workforce is fluid, its composition will likely change from time to time. It was therefore the Respondent’s view, that consequences flowed from the point in time that the Commission fixed for determining the employee cohort and whether a majority of those employees wished to bargain.
[47] The Respondent observed that it had provided to the Commission a list of its employees who were employed during the life of the project until 28 September 2021, including those employees whose employment had been terminated. It further observed that the date of the First Petition (by which the CEPU requested it be returned) was 9 September 2021. The date of the Second Petition was 16 September 2021. The AMWU gathered its petition on 24 August 2021. 67
[48] From an evidential perspective, the CEPU had relied upon the abovementioned petitions to evince that there was a majority of employees who wanted to bargain. However, the Respondent submitted there were two issues with the CEPU’s reliance upon such evidence. Those issues were:
a) the manner in which the petitions were gathered tends to suggest that the employees’ desire to bargain may not be as genuine as the CEPU asserts;
b) the evidence of the AMWU’s petition does not assist in determining whether the employees wish to bargain for the agreement specified in the application.
[49] Those issues and whether there was a majority in support of bargaining for a proposed agreement, are traversed below.
3.2.1 The numbers
[50] Section 237(2) contemplates the satisfaction that a certain state of affairs actually existed, not that the state of affairs existed previously. 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. 68
[51] Concerning the material before the Commission, I have noted the points relied upon by the Respondent about the significant developments.
[52] In Transport Workers’ Union of Australia v M.J. Rowles Pty Ltd (MJ Rowles), 69 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.70 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.
[53] In her witness statement, Ms Patel gave evidence that in respect of the First Petition, which was sent between 7 to 9 September 2021, only 20 of the names on that list were employed by the Respondent. 71 That meant, according to Ms Patel, that at least six of the employees on that list were no longer employed as of those dates.72 However, Ms Patel corrected her witness statement at hearing, identifying that she had taken the opportunity to review the names again and at the time there was only one employee that was unemployed with the Respondent and rest were there.73
[54] Regarding the Second Petition (the last petition of which was received on 16 September 2021), assuming the same list of 26 names was utilised, Ms Patel stated that a further number of employees had departed and were no longer employed by the Respondent. 74
[55] In cross examination, Ms Patel was taken to the subject matter of staff turnover. Ms Patel’s evidence was that there was turnover on 9 September 2021. 75 However, precise numbers of that turnover were not provided in cross examination. Ms Patel provided the following evidence:
You say that on average, between one and three employees are on boarded and leave each week. In fairness to you, I'll take you to the relevant part of your statement, that is - I'll leave that for a second. You agree that - you say that between one and three employees are on boarded and leave each week?---Between one and three employees are on boarded each week, or maybe more or less that demobilise or leave each week.
So, you don't know the exact average of employees that leave each week?---No, I couldn't give you the exact employees for each week that exited the business. That particular site, the work that the personnel do on that site, we could have maybe five exited, as I'm not sure where, but for the month of September we had quite a high turnover. Then the month of October we did have as a high turnover. So, there is no average. If you ask me, it's just dependent on the week as to how many individuals decide they want to resign or leave a particular site.
But do you accept on average it could be as low as one a week?---It could be as low as one a week, yes.
It could be as low as one a week. You can only speak to the numbers leaving since you started working with OGS on 24 August. Is that correct?---I can speak to those numbers, yes. We can also pull up information from the particular platform that Albemarle has in place for any dates prior to August.
But, you would accept at least, that at least since 24 August the average of employees of leaving has been somewhere between one and three a week?---Yes.
You say that 15 employees in total left in the months of September and August?---Possibly.
I put it to you that outside September and October, there has been almost no turnover?---Sorry, could you say that again?
I put it to you that outside of that period in September and August where 15 people left, there has been almost no turnover of staff?---That's incorrect. We've had turnover in October, November.
Has there been any turnover in the mechanical team?---I would have to look at the list to make sure.
Has there been any turnover in the instrumentation team?---Potentially, yes. There's potentially turnover in (indistinct) of those teams. 76
[56] On 21 December 2021, the Respondent was directed to provide a list of employees who were employed on or before 16 September 2021 and to identify the employment termination dates of those same employees (Employer List).
[57] Having reviewed all the materials filed, including having undertaken a cross referencing exercise regarding the Employer List, the employee numbers, petitions filed and termination dates, I make the following observations.
[58] Regarding the petitions garnered by the CEPU, I have preferred the Second Petition over that of the First Petition. This is primarily because it is the most recent of the two. However, it is also observed that the Second Petition correctly identifies the legal entity that employs the signatories.
[59] When one considers the Second Petition and the AMWU Petition the following is apparent:
a) as of 16 September 2021, there were 39 employees employed in that cohort.
b) of those 39 employees employed as of 16 September 2021, 33 signed a petition in support of bargaining for an enterprise agreement;
c) as at the time the application was made to the Commission on 28 September 2021, the employment of a further seven employees had ended. Of those seven all had voted in favour of bargaining for an enterprise agreement. This therefore meant that the original cohort had reduced to 32 employees and of those 32 employees, 25 had signed a petition to bargain for an enterprise agreement;
d) as the time of the hearing on 21 December 2022, the employment of a further five employees of the cohort had ended and all five had signed a petition in support of bargaining for an enterprise agreement. This meant that of the cohort there were now 27 employees remaining of which 22 wanted had signed a petition to bargain for an enterprise agreement.
[60] When one reviews on the Second Petition on its own the following is apparent:
a) as of 16 September 2021, there were 31 employees employed in that cohort.
b) of those 31 employees employed as of 16 September 2021, 25 signed a petition in support of bargaining for an enterprise agreement;
c) as at the time the application was made to the Commission on 28 September 2021, the employment of seven employees had ended. Of those seven all had voted in favour of bargaining for an enterprise agreement. This meant that the original cohort had reduced to 24 employees and of those 24 employees, 18 had signed a petition to bargain for an enterprise agreement;
d) as the time of the hearing on 21 December 2021, the employment of a further seven employees of the cohort had ended and all seven had signed a petition in support of bargaining for an enterprise agreement. This therefore meant that of the cohort there were 17 employees remaining of which 13 had signed a petition to bargain for an enterprise agreement.
[61] The CEPU submitted that in respect of Ms Patel’s evidence regarding the employees employed at a time and the Employer List, there was a direct contradiction.
[62] The CEPU stated that Ms Patel gave the following unchallenged evidence at hearing about 26 people named in an email from Mr Gill: 77
a) one of those 26 employees was not employed ‘at the time’. 78 Ms Patel does not specify the time in her oral evidence, however her written statement suggests that the relevant time is the time at which Mr Gill sent the First CEPU Petition,79 being 8 September 2021;80
b) the remaining 25 people named in Mr Gill’s email were employed at that time; 81
c) those same 25 employees were also employed on 7 September 2021 and 9 September 2021; 82 and
d) the one employee who was not employed on these dates left the business in August. 83
[63] The CEPU continued that Ms Patel had not identified the one employee who had left in August, but if the termination dates identified in the Employer List were accurate, Ms Patel could only mean one person.
[64] The CEPU submitted that from Ms Patel’s evidence the following could be deduced:
a) everyone named in Mr Gill’s email commenced employment with the Respondent before 16 September 2021;
b) everyone named in Mr Gill’s email other than employee whose employment had been terminated, were employees of the Respondent on 7 September 2021, 8 September 2021 and 9 September 2021;
c) everyone named in Mr Gill’s email other than the employee whose employment had been terminated was employed at some time between 24 August 2021 to 16 September.
[65] However, according to the CEPU, the Employer List did not contain three persons that had been named in Mr Gill’s email. That same Employer List was, by Order, 84 to list relevant employees employed at any time between 24 August 2021 and 16 September 2021, with their dates of employment stipulated. Having scrutinised the evidence, I have found that all the employees listed in Mr Gill’s email dated 7 September 2021, were identified on the Employer List that was provided to this Commission.
[66] As identified by the CEPU, the Respondent has not filed any direct evidence to the effect that the employees who signed the petition no longer want to bargain, and while the Respondent has spoken to six employees signing amended contracts and others accepting the amendments by way of conduct, such evidence does not demonstrate that the desire to bargain for the proposed agreement has abated.
[67] As observed, 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 16 September 2021, at which time the CEPU and AMWU ceased garnering signed petitions. For the reasons that follow, I am satisfied that the CEPU and AMWU petitions reflect the true and genuine wants of all the employees and constitute an appropriate method by which to ascertain that desire.
[68] Notwithstanding the attrition of employees as detailed and which has been factored when making the assessment, and noting that between the garnering of petitions and 16 September 2021 there had also been attrition (which has also been considered- hence the cohort size of 39), I am satisfied that as of 16 September 2021 a majority of the employees wanted to bargain for an enterprise agreement.
[69] Turning back to the decision of Rowles, while the turnover of some employees and others signing common law contracts was detailed in that decision, no particulars of such developments were provided. The attrition rate was unascertainable. Further, whilst reference was made to the Commissioner expressing reservations about the petition process at hearing, the reasons for such reservations are not detailed, albeit it may be intimated that perhaps it was because of turnover. The reservations of the Commissioner appear to have given rise to a consent agreement to conduct a secret ballot. The decision is not on all fours with the case currently before this Commission and I consider given the current context, it is not particularly helpful. It provides no guidance as to when an application under s 236 may be frustrated due to attrition rates within a respondent business and when that assessment should be undertaken. As noted, in absence of evidence to the contrary, I have found that a majority of employees expressed their want to bargain for an enterprise agreement.
3.2.2 AMWU petition
[70] The Respondent took issue with petition obtained by Mr Hannan and relied upon by the CEPU. It submitted that the petition did not evince support for bargaining for the enterprise agreement as specified in the application but instead demonstrated the signatories’ desire to bargain for an agreement to cover mechanical employees. The Respondent contended that this distinction was relevant to what the signatories of the petition understood about the effect of the MSD and whether they truly wanted to bargain for an agreement.
[71] With respect to the evidence led by Mr Hannan, the Respondent observed that Mr Hannan had explained to employees that the AMWU ‘would be conducting an MSD for a collective agreement’. 85 The Respondent submitted that this did not occur given the AMWU members had been included in the application now filed by a different union, purportedly in support of an application, which the employees did not indicate support for. The Respondent observed that the CEPU had not provided any direct evidence regarding the AMWU members’ support for such application.
[72] Whilst Mr Hannan gave evidence that he had informed signatories what the petition meant, this did not, in the Respondent’s view, outweigh what the signatories had signed and indicated their support for. That was, an enterprise agreement which covered mechanical workers on site – not one which covered the entire workforce.
[73] While it was not denied that the signatories wished to bargain for an enterprise agreement, the Respondent stated that where the agreement was not that which was identified on the application, nor that which was applied for by the bargaining representative said to be appointed, concerns in relation to the petitioners’ desire and understanding for that agreement will result. The Respondent continued that on this basis the decision in Liquor, Hospitality and Miscellaneous Union v Coca-Cola Amatil (Aust) Pty Ltd (Coca-Cola), 86 was to be distinguished and reliance on the same was misplaced.
[74] In response to the Respondent’s submission that the AWMU petition could not be relied upon because it was said to express support for an agreement of different scope than that proposed by the application, the CEPU stated it rejected the submission and placed reliance on the evidence of Mr Hannan and a plain reading of the petition.
[75] Neither the AMWU petition nor Mr Hannan’s statement specified a proposed agreement that covered ‘mechanical employees only’. To the contrary, said the Respondent, the AMWU petition stated that the proposed agreement is ‘to cover mechanical employees’. The scope of the proposed agreement was clearly expressed in inclusive and not exclusive terms in the AMWU petition.
[76] The CEPU pressed that the question before the Commission was whether a majority of employees who will be covered by the proposed agreement want to bargain. It was not, said the CEPU, whether a majority of those employees wanted to bargain for an agreement of identical scope.
[77] By way of further explanation, the CEPU provided the example where 30% of employees who will be covered by a proposed agreement wanted to bargain with a particular scope while another 30% wanted to bargain for an agreement with an entirely different scope. While it could be said that one does not want to bargain for the other, the CEPU stated that regardless 60% of employees who will be covered by the proposed agreement want to bargain and that is the answer to the question before the Commission. The CEPU submitted that it did not rely upon Coca-Cola in making the submission.
[78] In respect of the decision of, the CEPU submitted that it had made it clear that Coca-Cola is authority for the interpretation of the words ‘to bargain’ as they are used in s 237(2)(b) and not s 237(2)(a). The CEPU instead relied upon a plain reading of the words ‘want to bargain’ as they are used in s 237(2)(a).
[79] The CEPU expressed that the Respondent’s overall proposition appeared to be that the Commission must be satisfied that a majority of employees who want to bargain also want an enterprise agreement of the same scope. The CEPU argued that this was a bald assertion that was unsupported by any authority and read words into s237(2)(a) that were not there and consequently must be rejected.
[80] Regarding a challenge to the employees’ understanding of the scope of the petition, the CEPU explained that Mr Hannan’s evidence detailed that he had explained that the petition was an agreement that would involve blue-collar employees. However, it was the CEPU’s view that the employees’ understanding of Mr Hannan’s explanation as to the scope was completely irrelevant and had no bearing on whether the petition demonstrated that signatories wanted to bargain.
[81] In the decision of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v South32 Worsley Alumina Pty Ltd, 87 I referred to the decision of The Australian Workers’ Union v The Austral Brick Co Pty Ltd T/A Austral Bricks (Austral),88 where 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.
[82] 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. 89
[83] 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.
[84] 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.
[85] 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. 90
[86] To reiterate, in Austral the Commissioner focused on the apparent understanding of the three employees who were eligible to sign the agreement and did so sign.
[87] Turning to the evidence of Mr Hannan, he expressed having presented to the mechanical employees a petition and having explained that signing a petition was a method to show a majority want to bargain for an enterprise agreement. 91 The petition that was provided to the mechanical employees stated:
We, the undersigned employees of Oil and Gas Solutions (the Employer) ABN 26 143 501 464, want to bargain for an enterprise agreement to cover the mechanical workers employed at The Kemerton Lithium Project, Wellesley WA 6233.
Pursuant to section 176 of the Fair Work Act 2009 (Cth), we nominate the Automotive, Food, Metals, Engineering, Printing & Kindred Industries union (“the AMWU”) to act on our behalf as a Bargaining Representative.
[88] The CEPU is correct, what the Act requires is that the Commission is satisfied that those who will be covered by the agreement want to bargain. 92 As was observed in Coco-Cola and is apposite in this case, the evidence adduced does not militate against the mechanical employees having provided informed consent to bargain for an enterprise agreement, because it is sufficient that they were informed that they will be covered by an enterprise agreement. Whether others too will be covered within the scope of the proposed agreement and that explanation was, or was not given, does not in the confines of this case, detract from the mechanical employees’ consent having been informed.
[89] The purpose of the petition was clear on its face, and although Mr Hannan’s evidence does not detail whether the explanation extended to the breadth of the scope of the proposed agreement, it is the apparent understanding of the eight employees who were eligible to sign and did so, that is to be considered. As was the case in Coca-Cola, each had signed, having been informed that this would, if supported by the majority, lead to bargaining directed towards an enterprise agreement.
[90] It follows that when determining whether there was a majority of employees that wanted to bargain, I have included in the count the AMWU petitions.
3.2.3 Intimidation and pressure
[91] The Respondent argued that there had been pressure and intimidation upon signatories, which gave rise to the question of whether their consent was freely given. In the Respondent’s view, the petitions could not be accepted as reflecting the true and genuine desires of all the employees. The Respondent however, acknowledged that some employees may genuinely want to bargain.
[92] 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, 93 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.94 No such circumstances arose in that case.
[93] Similarly, in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Kinkaid Pty Ltd T/A Cadillac Printing (Kinkaid), 95 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.
[94] In support of its argument, the Respondent referred to the conduct of Mr Gill who it said had intimidated and exerted pressure upon the employees. The Respondent placed reliance on both Ms Patel’s evidence that employees had reported to her that Mr Gill made them feel pressured into signing the petition, 96 and on the purported narrative of Mr Gault, whose account was referred to in the closing submissions of the Respondent.97
[95] Regarding the experience of Mr Gault, the Respondent explained that on Mr Gault’s second day, his contact information was provided to the CEPU by one of his ‘colleagues’, and he was ‘invited’ to sign the petition to bargain for an enterprise agreement. 98 What was intimated was that Mr Gault felt pressured to sign the petition given his contact details were already provided to Mr Gill, and Mr Gill thereafter made contact, in circumstances where Mr Gault had not solicited the contact.
[96] In response to the assertion that Mr Gill contacted Mr Gault absent Mr Gault’s input or Mr Gault having met Mr Gill first, the CEPU submitted that when one viewed the emails between Mr Gill and the employee, the suggestion was extremely implausible. The CEPU submitted that Mr Gill had started the email to the employee by saying he had obtained the email address from one of the employee’s colleagues. 99 Mr Gill had then gone on to explain the petition and invited the employee to fill it out if he chose, and just 20 minutes later, the employee replied with a completed petition and an email which thanked Mr Gill.
[97] In reference to the argument of the Respondent that the CEPU had exerted illegitimate pressure in gathering support for the petitions, the CEPU observed that the Respondent had relied upon the hearsay evidence of Ms Patel regarding comments made to her by an unknown employee. 100 In respect of this evidence, the CEPU made two points in support of its contention that little to no weight should be attributed. The first, was the conversation was impromptu, informal and Ms Patel appeared to have made no attempt to formally investigate or test the veracity of what was said and second, it was not clear whether the accusations were in respect of the CEPU Petitions, the AMWU Petition or another petition. The CEPU submitted that in cross examination, Ms Patel’s evidence was that the relevant employee had given an ‘overview’.101
[98] Coercion or duress of employees may clearly be reasonable grounds for deciding that a petition could not be relied upon as an appropriate method to determine majority support for bargaining. In the judgment of Hodges v Webb, 102 the application of the term 'coercion' in an industrial relations setting was discussed103 and it has been considered at length in multiple contexts.104
[99] In Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Seven Network), the phrase ‘intent to coerce’ was said to consist of two elements. First, it must be shown that the pressure intended to be exerted negates choice, in a practical sense. Second, the exertion of the pressure must involve conduct that is unlawful, illegitimate, or unconscionable. 105
[100] 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 to sign a petition is overborne by force, intimidation or a threat to dismiss, or otherwise injure to the employees in their employment or generally.
[101] When considering the legal term ‘duress,’ the Commission has previously referred to the decision of Kaufman SDP in Thomas v Logica Pty Ltd, 106 (citations omitted), where the Senior Deputy President expressed at paragraph [35] that the leading case on duress is Crescendo Management Pty Ltd v Westpac Banking Corporation, where it was stated:
...The proper approach, in my opinion, is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate? Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress. 107
[102] When the direct evidence is weighed along with the surrounding evidence, I am unable to conclude that the signatories to the Second Petition were subject to duress of coercion. I do not consider that Mr Gill’s email to Mr Gault, and the circumstances by which Mr Gill obtained Mr Gault’s contact details, evince some measure of illegitimate, unconscionable or unlawful conduct that negated Mr Gault’s freedom to chose to sign, or not to sign, the Second Petition. Further, the provision of the email by Mr Gill and the content of that same email, hover nowhere near constituting pressure beyond that which the law is prepared to countenance.
[103] Ms Patel’s reports that an employee provided to her an overview of that employee’s experience and interaction with the CEPU and Mr Gill. When asked whether the employee felt pressured into signing the petition, Ms Patel responded, ‘yes’. 108 Ms Patel elaborated, expressing:
They have mentioned the fact that they have - on-site when you're away from family, if you're not part of the group, then you are isolated. So there's fear of isolation, there's fear of mental health, because there is no comradery. They don't have any support. So if they're not part of the petition and on-site, they will be isolated. 109
[104] When Ms Patel was alerted that she had referred to ‘employees’ who had expressed concerns about being coerced in her evidence, Ms Patel confirmed that to be correct:
There have been other employees that have mentioned that they form part or they attend the crib meetings that the unions put out (indistinct) just because they feel they have to. They are not really for it, but on-site that's the culture, and if you're not with the union, then you will face, again, isolation, bullying. So there are other members that have suggested that. But like I said to you in the previous question, only one approached me and given me full details of the current experience he's had. The others have just said, 'These are the things you can have. This is why we attended the crib meetings,' or, 'This is why we signed up with the unions.' So that's correct in that sense. 110
[105] In short, while Ms Patel speaks to there being a particular culture that has purportedly established on site and that an employee fears the prospect of isolation should they not form part of the group signing the petition, I am unconvinced that the Second Petition or for that matter the AMWU Petition appeared to have been signed as a consequence of coercion or duress, but rather were signed after a period where explanation had been provided by the CEPU and the AMWU about an MSD through email correspondence and when exercising right of entries.
[106] Ms Patel’s evidence about the experience of one employee is unable to be extrapolated to the entire cohort. Further, I am not content to rely upon such assertion in the circumstances where what is purported by that employee is her or his perception of being isolated if not part of the group. Extending upon the point there being a purported culture, there is insufficient evidence before me to ground a finding that a culture has been established by Mr Gill, Mr Hannan, Mr Richardson, the CEPU or the AMWU which constitutes one where duress and coercion are at play. In my view, coercion and duress have no bearing in this case and the consent of signatories has not been vitiated in this respect.
[107] While reference was made by the Respondent to some of the rhetoric adopted by Mr Gill in his email correspondence, I have found such communication to be inconsequential in respect of the argument pressed. While its tone may have turned to being combative or adversarial, such references do not detract the informed nature of the employees’ consent.
3.2.4 The effect of an MSD and whether this was explained to employees
[108] The Respondent submitted that an employees’ understanding of the purpose of the MSD and the ensuing bargaining was relevant when determining whether the employees genuinely wished to bargain. However, the evidence presented and relied upon by the Respondent in respect of Mr Richardson’s evidence does not thereafter provide a basis for me to conclude that all employees did not know what they were seeking in signing the petition.
[109] Further, while the Respondent sought to impugn Mr Richardson’s understanding of the process for obtaining an MSD and what the result of such a determination was, I am of the view that Mr Richardson’s understanding was not confused, as protested. 111 On this point I turn to Mr Richardson’s evidence at hearing, noting he stated:
What is the effect of that? If the Commission makes the determination, what happens?---So the Commission would then direct OGS to sit down and bargain with the relevant unions.
Did Mr Gill tell you that?---Yes, he has. But as I said, I had previous knowledge of the process myself anyway.
So is your statement that the Commission would make the employer sit down - would make OGS sit down with the relevant unions, is that based on your understanding of the bargaining framework, or information that Mr Gill has given you?---You could say it's a bit of both. As I said, I do have previous knowledge, and Mr Gill did explain that very well in his meetings on site.
And after the employer is sitting at the bargaining table, you understand that employees can make claims? And that's the process, employees lodge a log of claims to the company?---That's correct.
You would accept that that's the first step in bargaining, or one of the first steps?---That's correct.
And the next step is the company responds to those claims?---I'm sorry, you broke up a little bit there.
Sorry. The step following that is the company then responds to that log of claims?---That's correct, yes.
And is the union or the Commission able to force the company to accept the employees' claims?---Do you say the Fair Work Commission or the union are able to?
Yes?---The union can't force the employer to do anything.
Can the Fair Work Commission force the employer to?---Can they make a ruling? If the bargaining process goes on too long.
And is that part of the majority support, or is that something separate?---I don't recall seeing that information.
And Mr Gill didn't explain that to you?---In the initial processes it was about putting the petition forward to try and engage the employer. When the employer failed, then the petition gets put forward to the Commission.
So Mr Gill didn't explain what happens after that petition is put forward?---He did explain the bargaining process. And as I said, I do have a prior knowledge of a bargaining process. But it can be a long road between the start and the finish.
Certainly. So along that road, is the Commission making a determination part of the MSD process, or is it something separate?---It's part of the MSD process.
And so the Commission can force OGS to accept the claims, the better terms and conditions that the employees or the union make as part of the MSD process?---I believe they can. 112
[110] For the most part, Mr Richardson displayed an understanding of what an MSD was and the impact of the same, in addition to the bargaining process that would thereafter follow. It was not until he was pressed about whether the Commission could force the Respondent to accept claims that he expressed a belief that was misplaced. However, in light of all of the evidence he gave, a conclusion is unable to be reached that he was confused.
[111] An assertion that the Second Petition and AMWU Petition were not legitimate tools by which to evince the wishes of employees or that the consent of the employees had been falsely derived cannot be sustained on the evidence presented.
3.3 Reasonable in the circumstances (s 237(2)(a))
[112] The Respondent submits that because the contract for the provision of its services at the site expires on 28 February 2022, having originally sought an extension until May 2022, 113 it is not reasonable to make the determination as the Workforce will no longer be employed following this date.
[113] In this respect, it relies on the evidence of Ms Patel who held discussion with the Chief Operating Officer (COO). According to the Respondent the COO is wholly responsible for the negotiation of commercial arrangements at the site. 114 That same COO purportedly made it clear to Ms Patel that the Respondent would not be providing blue collar workers beyond the negotiated contract extension date (originally expected to be May 2022, but subsequently revised to 28 February 2022).115
[114] The Respondent acknowledged that Ms Patel could not inform the Commission as to whether the contract would be extended beyond the current expiry date. However, it observed Ms Patel had given evidence that in discussions with the Respondent’s management it had been made clear to her that following the contract extension date, there would be no blue-collar workers at the site and there were no negotiations currently underway. 116
[115] The Respondent recognised that it would be unlikely that the abovementioned factor would, in isolation, lead to a conclusion that it would not be reasonable in the circumstances to make the determination given the height of that benchmark. However, when considered in the whole of the circumstances of the matter, the entirety of the circumstances should lead the Commission to such a conclusion.
[116] In fairness to Ms Patel, she was unable to provide fulsome evidence about the contractual negotiations regarding the Respondent’s provision of pre-commissioning and commissioning services at the site. This was because she was not part of the project delivery team and was not the COO. Ms Patel confirmed that at the time of the hearing, as far as she knew, the Respondent had a contract to provide services for ‘C2 or train one and train two’, as advised by the project delivery team. 117 Ms Patel explained further:
So, you have not been advised of whether or not OGS has been engaged for C3 commissioning of train one and train two?---I have been advised that they have no negotiations regarding train three. All I've been advised is they have been contracted to provide pre-commissioning for train one and train two.
But you haven't been told that they haven't been engaged to provide C3 commissioning of train one and train two?---I've been told that there's no negotiations occurring for train two - sorry, train three. 118
[117] Whilst levelling no disapproval of Ms Patel’s evidence, I do not consider that she was well placed to inform this Commission as to whether the contract for the provision of services between the Respondent and its client would extend past 28 February 2022. In this respect, Ms Patel’s evidence was limited and not particularly helpful. There was no direct evidence before me to show that contract extension was implausible and given oral testimony, it appeared that the end date of the provision of services was subject to change or variation. 119 On this basis, I considered that the Respondent’s contention that it was not reasonable to make the determination as the workforce would no longer be employed was not open to conclude on the evidence; it did not appear to be a foregone conclusion.
[118] However, the consideration of whether it is it is reasonable in all the circumstances to make the determination sought, does not rest there. On 19 April 2022, just prior to the issuance of the decision, the CEPU contacted Chambers to inform it of a development in the matter since the application was heard. According to the CEPU, as of April 2022, the Respondent was still present at the site and still employed persons who will be covered by the proposed agreement. Furthermore, said the CEPU, the Respondent had emailed all its employees who are employed to perform work at the site confirming the following:
a) the termination date of the project had been changed to 31 December 2022;
b) that the employment contracts of all Respondent employees had been varied such that the termination date was 31 December 2022; and
c) the proposed group (being those Respondent employees who are employed to work at the site who are not managerial, supervisory, administrative or clerical employees) will exist until at least 31 December 2022.
[119] The Respondent was directed to respond to the development as communicated by the CEPU. On 24 April 2022, the Respondent emailed Chambers advising that it did not dispute the authenticity of the CEPU’s email dated 19 April 2022. However, it cautioned:
…it would seem to be the case that this represents more ‘up to date’ information which the Commission may be minded to take into account. However, should the Commission take it into account, and rely upon it to make findings of fact, it is opening the door for subsequent matters before the Commission to be confounded with issues after each party has been afforded the opportunity to present their case at hearing. This has not been the only development at the site following the conclusion of the hearing.
[120] The Respondent submitted that there had continued to be a large turnover of staff at the site – with a further eight people departing in January 2022 and another three departing in February 2022. There were also said to be 17 new starters at the site in January 2022, and nine in February 2022. The Respondent pressed that consistent with its position at hearing and given the fluid nature of the workforce, the most appropriate course forward, should the Commission be minded that it was reasonable in the circumstances to make the determination (noting the Respondent maintains that it was not), would be to hold a ballot – which, said the Respondent, it would facilitate.
[121] Before making a determination, I must be satisfied it is reasonable in all the circumstances to make such determination. The Respondent had submitted in effect that given the workforce would demobilise in or around end of February 2022, the proposed agreement would likely not apply to anyone, or if it would, it would be for a short period and thus have little utility. The CEPU requests the Commission to give due consideration to the new information that has surfaced as does the Respondent.
[122] However, the new information does not alter the conclusion that it is reasonable in all the circumstances to make the determination. The point of time for assessing the cohort or proposed group as been identified (see paragraph [67] of this decision) and material available to the Commission at the time of making the decision, has been considered.
[123] Furthermore, I have found that the project end date was subject to change or variation – notwithstanding the terms of the commercial contract between the Respondent and its client having never been viewed. The oral testimony of Ms Patel demonstrated as such. On that basis it could not be concluded that a majority support determination would lack utility and that conclusion has not changed despite the recent submissions of both parties.
[124] Taking into account the evidence, submissions and conclusions reached in relation to s 237(2)(d), I consider it reasonable in all the circumstances to make the determination sought.
[125] An order issues alongside this decision. 120
DEPUTY PRESIDENT
Appearances:
Mr A. Aghazarian on behalf of the Applicant;
Mr S. Rogers of Mills Oakley on behalf of the Respondent
Hearing details:
21 & 22 December 2021
Printed by authority of the Commonwealth Government Printer
<PR741089>
1 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.
2 Respondent’s Outline of Written Submissions 19 January 2022, [1] (Respondent’s Closing Submissions).
3 Witness Statement of Mr Ian Gill, [10] (Gill Statement).
4 Reply Statement of Mr Shane Richardson, [22].
5 Witness Statement of Ms Jasvita Patel [6] (Patel Statement).
6 Ibid.
7 Ibid [8].
8 Gill Statement (n 3) [13].
9 Patel Statement (n 5) [12].
10 Ibid [13].
11 Ibid.
12 Ibid [19].
13 Ibid.
14 Ibid [9].
15 Ibid [18].
16 Ibid.
17 Ibid.
18 Ibid.
19 Ibid [22].
20 Ibid.
21 Ibid [9].
22 Ibid [20].
23 Ibid
24 Ibid [20].
25 Ibid [20].
26 Gill Statement (n 3) [24]-[25].
27 Ibid [27].
28 Ibid.
29 Ibid [27(b)].
30 Ibid [29].
31 Witness Statement of Mr Daniel John Hannan, [10] (Hannan Statement).
32 Ibid [13].
33 Patel Statement (n 5) [26].
34 Ibid.
35 Gill Statement (n 3) [31], annexure IG-2.
36 Ibid [33]-[35].
37 Patel Statement (n 5) [10].
38 Hannan Statement (n 31) [19].
39 Gill Statement (n 3) [36].
40 Ibid.
41 Ibid annexure IG-7.
42 Ibid annexure IG-8.
43 Ibid [40].
44 Ibid [41].
45 Ibid [42].
46 Hannan Statement (n 31) [15].
47 Ibid [16].
48 Patel Statement (n 5) [31].
49 Ibid.
50 Ibid [32].
51 Ibid [33].
52 Ibid [28].
53 Ibid.
54 Transcript PN121 - 123.
55 Transcript PN860..
56 Transcript PN325 – 327, 567 – 572, PN764
57 Kantfield Pty Ltd T/A Martogg & Company v Australian Workers’ Union [2016] FWCFB 8372 (Kantfield).
58 Fair Work Act 2009 (Cth) s 237(2)(a) (the Act).
60 Ibid [35].
61 Kantfield (n 57).
62 [2019] FWC 2571 [36] - [37] (Lovisa).
63 Ibid [31].
64 Ibid.
65 Ibid.
66 Ibid.
67 Hannan Statement (n 31) [15].
68 TWU v MJ Rowles Pty Ltd [2012] FWA 955 [4] – [5].
69 Ibid.
70 Ibid [4].
71 Patel Statement (n 5) [32].
72 Ibid.
73 Transcript PN842.
74 Patel Statement (n 5) [33].
75 Transcript PN1030.
76 Transcript PN1031-1040.
77 Gill Statement (n 3) annexure IG-7
78 Transcript PN842.
79 Patel Statement (n 5) [32].
80 Gill Statement (n 3) [39].
81 Transcript PN842.
82 Transcript PN1028 – PN1029
83 Transcript PN1027.
85 Transcript PN805.
86 [2009] FWAFB 668 (Coca-Cola).
88 The Australian Workers’ Union v The Austral Brick Co Pty Ltd T/A Austral Bricks [2010] FWA 5819 (Austral).
89 Ibid [20].
90 Ibid [24].
91 Hannan Statement (n 31) [15].
92 The Act (n 58) s 237(2)(a)(ii).
94 Ibid [7].
95 [2009] FWA 1123, [13] (Kinkaid).
96 Transcript PN1180-1188; PN 1193; Patel Statement (n 5) [37].
97 Respondent’s Closing Submissions (n 2) [34].
98 Ibid.
99 Exhibit R2 Email from Mr Gill to Mr Bradley Gault dated 11 September 2021.
100 Patel Statement (n 3) [28].
101 Transcript PN1184.
102 [1920] 2 Ch. 70.
103 [1920] 2 Ch. 70.
104 Finance Sector Union v Commonwealth Bank of Australia [2000] FCA 1468; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456 (Seven Network).
105 Seven Network (n 104) [41].
107 (1988) 19 NSWLR 40, 46.
108 Transcript PN1186.
109 Transcript PN1187.
110 Transcript PN1193.
111 Respondent’s Closing Submissions (n 2) [58].
112 Transcript PN 551 – 565.
113 Patel Statement (n 5) [20]; Transcript PN 836-847.
114 Transcript PN1238.
115 Patel Statement (n 5) [20].
116 Transcript PN932-950; Ibid.
117 Transcript PN937.
118 Transcript PN943-944.
119 Transcript PN958.