1
Fair Work Act 2009
s.236—Majority support determination
The Australian Workers’ Union
v
Construction Sciences Staff Pty Ltd T/A Construction Sciences
(B2020/337)
COMMISSIONER MCKENNA SYDNEY, 3 NOVEMBER 2020
Application for a majority support determination.
[1] The Australian Workers’ Union (“the applicant”) has made an application, pursuant to
s.236 of the Fair Work Act 2009 (“the Act”), in which it seeks a majority support
determination (“determination”). The respondent employer, Construction Sciences Staff Pty
Ltd T/A Construction Sciences (“the respondent”), opposes the application for the
determination on various bases.
[2] It is apposite to outline some of the lengthier-than-usual background to this
application. In late-April 2020, the applicant commenced steps in relation to gathering
petitioners’ names for a petition which had text which read:
“Majority support petition to commence bargaining for an enterprise agreement
We, the undersigned, are Aggregate, Concrete, Soil Testers and Laboratory workers,
employed by CCS Staff Pty Ltd trading as Construction Sciences Pty Ltd
(ABN74128806735) (Construction Sciences) in the Sydney Metro laboratories and
field (Construction Sciences Testers and Laboratory employees). The employment
of Testers and Laboratory employees is covered by the Manufacturing and Associated
Industries and Occupations Award 2010.
We, the Construction Sciences, Testers and Laboratory employees declare that we
wish to commence bargaining immediately with Construction Sciences in relation to a
proposed enterprise agreement (agreement). We seek that the agreement only apply to
Construction Sciences Testers and Laboratory employees and to no other employees.
We nominate The Australian Workers’ Union to act as our bargaining representative
in this matter.” (Bold in original).
[3] Beneath that text in the petition there were five rows for the identification of the
petitioners’ first name, surname, contact number and signature, and the date. The dates in
question were within a time-span of 23-27 April 2020. On 5 May 2020, the applicant wrote to
the respondent seeking negotiations for an enterprise agreement (there were also other
exchanges of correspondence between the applicant and the respondent about alleged
[2020] FWC 5428
DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 5428
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underpayments, which I do not reproduce in this decision). The letter of 5 May 2020
relevantly read:
“The Australian Workers’ Union, in accordance with s.176 of the Fair Work Act 2009
(Act), on behalf of its members employed by your company is a bargaining
representative and seeks to commence negotiations for the establishment of an
Enterprise Agreement to cover Field Testers and Laboratory staff.
In accordance with s.173 of the Act, the company is required to forward to each of its
employees that could be covered by this proposed agreement a ‘Notice of Employee
Representational Rights’ no later than 14 days after you agree to bargain for the new
agreement.
The union proposes that the parties schedule a meeting at your premises to begin
discussions for the creation of this enterprise agreement. The union believes that this
initial meeting will involve the establishment of a process for the parties to adopt to
deal with the negotiations. Should you wish to discuss this in greater detail, please do
not hesitate to contact me directly on [telephone number] or alternatively at [email
address].
I look forward to reading your response.”
[4] On 3 June 2020, the applicant sent emailed correspondence to the respondent which
relevantly read:
“I have not had a response regarding the attached email sent to [named individual] on 5
May 2020.
Can you please respond.
Failure to do so will see the AWU lodge bargaining orders in the FWC.”
[5] On 4 June 2020, approximately one month after the correspondence from the applicant
in which it sought the commencement of bargaining and one day after the applicant’s follow-
up for a response, the respondent advised that it declined to commence bargaining. The
respondent’s letter relevantly read:
“Thank you for your letter dated 5 May 2020 regarding proposed negotiations with
Construction Sciences Pty Ltd (the Company) for an enterprise agreement to cover its
Field Testers and Laboratory employees.
The Company has arrangements in place to manage our employees’ terms and
conditions. These arrangements work for both us and our employees and we do not
propose to change our approach to the manner in which we administer those terms and
conditions.
The Company is under no obligation to agree to bargain with the AWU for an
agreement, and it does not propose to do so.
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In these circumstances, we are not required to issue a Notice of Employee
Representational Rights to any of our employees.”
[6] On 23 June 2020, the applicant lodged the application for the determination. The
application was accompanied by a request from the applicant that the matter not be listed
before 29 June 2020 and also noting lack of availability on 2 July 2020. Due to the applicant’s
request, the matter initially was listed on 3 July 2020. It is appropriate to note that the copy of
the application attached to the Notice of Listing concerning the first listing inadvertently
included the petition pages. That matter self-resolved with the provision of certain
undertakings being provided in the proceedings. (Separately, there was also a later full
exchange, by consent and on a restricted usage basis, of the parties’ respective materials
containing employees’ names.) Shortly before the initially-scheduled listing on 3 July 2020,
the applicant submitted a further petition page (albeit that initial listing had to be rescheduled
to 6 July 2020 due to the systems-wide Skype for Business technical issues within the
Commission on 3 July 2020). The date segment in the further petition page indicated that the
two petitioners had signed the petition page on 2 July 2020, being a date later than the original
petition signings around late-April 2020 and also later than the lodgement of the application
for the determination on 23 June 2020. That additional petition page was sent to my chambers
without permission or directions having been given for the submission of any materials or
additional materials. I expressed concern about the additional petition page being submitted
after the date of the filing of the application. (Separately, it may be noted that the applicant
obtained a third additional petitioner’s signature on 17 July 2020; that further petition page
was provided around the first hearing date of 10 September 2020.)
[7] Given the respondent indicated it was opposed to the making of a determination, I
discussed with the parties that I wished to have the following from the parties:
from the applicant, a typed list of names of the petitioners with the surname first and
in alphabetical order; and
from the respondent, a typed list of names of relevant employees with the surname
first and in alphabetical order.
[8] I sought that the applicant provide a typed list of the petitioners’ names because, in my
experience, the handwritten names/signatures on petitions are often illegible or difficult to
read. I requested the information from the parties so a comparison could be made between the
two typed lists, cross-referenced by me against the handwritten names on the petition so a
count could be undertaken.
[9] I might note that while I requested this information in the form of surname first and in
alphabetical order:
the applicant provided a list which was in alphabetical order but with the given
names of the petitioners first, instead of the surname first;
the applicant omitted from its typed list the names of petitioners which it understood
to have left employment with the respondent;
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the applicant included in its typed list the names of the two petitioners who had
signed petition pages on 2 July 2020, after the application had been lodged, albeit I
had not ruled on whether those additional names should be accepted;
the respondent provided a list of names which was not in alphabetical order - one
segment was in alphabetical order and then the alphabetical list restarted for a second
time in alphabetical order.
[10] The failure by the parties to provide the information in the form I had identified made
the comparison task more difficult than it should have been. To compound matters, there was
a name/signature in one of the applicant’s petition pages and in the applicant’s typed list of
petitioners which did not correspond with any of the names set out in the respondent’s list.
Apparently, that person used a surname in the petition that he goes by rather than his legal
name as recorded in the respondent’s list. Similarly, although there was a name/signature in
one of the petition sheets, that name was not in the applicant’s typed list of names; apparently,
that person’s name was omitted from the applicant’s typed list based on the applicant’s
understanding the employee was no longer employed by the respondent around the time the
applicant prepared its typed list of the petitioners’ names on the petition pages. Nonetheless,
that same person’s name appeared in the respondent’s list as a relevant current employee as at
8 July 2020.
[11] The respondent also wrongly (it was only later to emerge) included at least one
employee’s name that was not appropriate for inclusion in the respondent’s list given the
work or classification of that employee (that is, a receptionist). Moreover, the respondent
included in its list the names of certain employees (it again only later emerged), who were
involved in work and/or classifications which are the subject of dispute as to inclusion in the
count. The respondent considered that the applicant had included petitioners beyond the scope
for which it otherwise contended (an allocator and a person whose substantive role appears to
be a technician but who has been acting, or similar, in a data entry role). It should also be
noted that the respondent’s evidence in the later hearing pointed also to a number of
corrections and updated information concerning matters such as staff movements and staff
turnover, but that is unsurprising given the passage of time to the date of the hearing.
[12] The matters I have outlined with difficulties in the respective lists is not a full
catalogue of the issues or potential issues. A name of an employee one way or the other may
not be a matter of significance when there is a clear and comfortable margin in relation to the
count concerning a majority support determination (whether for or against), but that is not the
case when matters are more finely-drawn. In any event, having conducted the cross-check of
the petitioners and the respondent’s list, I concluded majority support did not exist. The
applicant was, in effect, insistent that this outcome of the count could not be correct,
essentially because it had counted its own numbers as against the classification of employees
it sought to cover in a proposed enterprise agreement - and contended, in effect, the
respondent had included employees in its list which were inappropriate for inclusion. With
some misgivings, having regard to the outcome of my own count and proceeding on the
presumed accuracy of the information provided to me by each party, I acceded to the making
of directions for an arbitrated hearing. The matter subsequently proceeded to hearing on 10
and 28 September 2020.
[13] As things transpired over the course of those proceedings, it emerged that I had indeed
been led into error in the initial count resulting in my initial conclusion that majority support
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did not exist in relation to the specific cohort of employees that the applicant sought to be
covered by the proposed agreement. That is, it emerged the respondent had included in its list
of employees’ names certain persons who were not, in fact, employed in work/classifications
in relation to which the applicant seeks to bargain in the proposed enterprise agreement.
Relevantly, the respondent had included in its list of names the names of certain data entry
employees and employees of more senior rank than the group propositioned by the applicant -
being employees in relation to whom the applicant is not seeking to bargain for a proposed
agreement. The group in relation to which the applicant wants to bargain is the group (solely)
comprising field technicians and laboratory technicians, who can be based in the field or in
the laboratory, and who are referred to as CMT Technicians (“technicians” or “testers”).
[14] I will turn now to a summary of the outlines of the initial and closing submissions that
were made or relied upon in the hearing. It should be noted that aspects of matters addressed
in the initial submissions were relied upon in the closing submissions, so it is relevant to
outline both the initial and closing submissions. That said, the closing submissions were
made, of course, against the background of what had unfolded in the evidence, including the
evidence concerning the most recent/contemporaneous employee numbers and their job
classifications. Moreover, while there was reference in the respondent’s initial submissions to
certain matters which comprised attachments to a witness’s statement, I declined to admit
those attachments.
Applicant’s submissions
[15] The applicant submitted generally in its submissions filed pursuant to the original
directions matters including the following. The applicant submitted that its application makes
it clear that it seeks to cover employees of the respondent who test concrete, soil and
aggregates. The applicant referred to the requirements of s.236(1) and s.236(2) of the Act, and
authorities including ResMed Limited v Automotive, Food, Metals, Engineering, Printing and
Kindred Union known as the Australian Manufacturing Workers Union (AMWU) [2014]
FWCFB 2418 where it was said that the primary purpose of ss.236-237 is to provide a
bargaining representative with a means by which an employer which refuses to bargain may
be required to bargain (by opening the door to the operation of the good faith bargaining
requirements in s.228 or by enabling bargaining orders to be applied for and made under
ss.229-232). Here, the applicant seeks to bargain with the respondent despite the resistance of
the respondent.
[16] The applicant submitted the application is clear and unambiguous in who is sought to
be covered by the agreement, in that the petition specifically indicates that it covers
employees that test soil, concrete and aggregates; and evidence adduced by the applicant
demonstrates what the testers do. The respondent has numerous employees other than testers,
including administrative staff, administrators, data entry staff or managers. However, the
evidence outlined the specific functions of testers as opposed to other categories of
employees/staff who do not undertake the testing function.
[17] Drawing from the evidence, the applicant submitted: “The AWU’s application
contains a petition, which has more than half of the total seventy-seven Testers sign it. Whilst
it is acknowledged that four of the petitioners have left since this petition was signed
nevertheless there remains a majority of relevant employees who have signed it. It may also
be the case of course that some non-signatories have also left the business since. Furthermore,
in the case of [name] we know that his position was declared redundant as stated in his
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evidence. Therefore, the business has reduced the number of eligible employees by at least
one.”
[18] The applicant submitted the evidence made it clear that the petition was signed with
the full knowledge of what employees were signing through means such as explanation and
translation. The evidence also demonstrated there were deeply-held and widely-felt concerns
about pay, conditions and safety among employees within the respondent’s business, and they
sought to be empowered by joining the applicant union and by bargaining collectively. The
applicant, it was submitted, has demonstrated that a majority of employees under the scope of
the proposed agreement want to bargain.
[19] The applicant referred to the provisions of s.237 of the Act. The applicant submitted
that in circumstances where a majority of testers seek to bargain it was relevant to note that in
Kantfield Pty Ltd T/A Martogg & Company v Australian Workers’ Union, The [2016]
FWCFB 8372 (“Kantfield”) a Full Bench of the Commission found that the Commission must
take into account the most current available information at the time in determining whether
the majority of employees wanting to bargain existed.
[20] The applicant submitted that it had outlined the scope of employees sought to be
covered, and the relevant group, testers, was fairly chosen. The applicant referred to
Construction, Forestry, Mining and Energy Union v ResCo Training and Labour, [2012]
FWAFB 8461 at [33]-[34] and in such respects referred to the text on the petition pages
(reproduced above). The submissions for the applicant continued that: “In choosing Testers,
in the Sydney Metropolitan area the Applicant has chosen a group who are operationally and
geographically distinct. Testers are the ones who undertake the core business of the
Respondent and therefore operate as an operationally distinct group. Furthermore, there is
often a rationale for this [sic] operationally distinct groups to be the subject of the scope that
the Applicant seeks. … Similarly the Sydney Metropolitan area forms a rational geographical
basis on which employees are covered by the proposed agreement. …”. The applicant’s
submissions compared and contrasted some examples from other employment areas and also
submitted the evidence adduced by the applicant outlined the rationale.
[21] The applicant submitted it had demonstrated with the application and the evidence
submitted that there is a majority of the respondent’s employees among a scope that is fairly
chosen and who want to bargain with the respondent. With the elements of the Act having
been met, the applicant submitted, the determination should be made.
[22] In addressing the question of reasonableness in all the circumstances, the applicant
referred to segments of the second reading speech for the bill which preceded the Act in as
much as it addressed achieving fairness through collective bargaining in circumstances where
the majority of employees seek to do so. The applicant submitted this is what it is seeking to
achieve in bringing this application. The applicant submitted that the respondent’s opposition
to this application is not due to concerns regarding the validity of the application but, rather,
the desire to maintain the very power imbalance that the Act seeks to redress. The applicant
referred to aspects of the evidence in support of its contentions in such respects in alleging
intimidation, interrogation, disingenuousness, attempted circumvention of the Act including
in circumstances of the employees’ deeply held and widely felt concerns about pay,
conditions and safety.
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[23] The applicant submitted it had obtained a majority of signatories of a group that is
fairly chosen, being that of testers. The submissions continued that it is clear and
unambiguous who these people are and the scope is consistent with the intention of s.237 of
the Act; and, further, it is clearly reasonable in the circumstances for the Commission to make
the majority support determination as this is a clear example of the intention of the Act – to
achieve fairness through collective bargaining.
[24] In addition to the initial submissions outlined above, some of the key points arising in
the applicant’s outline of closing submissions were developed in the following way.
[25] The employees the subject of the application for a determination are field testers and
laboratory staff in the Sydney metropolitan area and that description of the employees is
important, because the applicant does not seek a determination that employees other than the
field testers and laboratory staff want to bargain. The applicant’s submissions identified it
does not seek a determination that data entry or management employees wish to bargain.
[26] To the extent the application for a determination is opposed, the applicant
characterised the grounds of opposition as being threefold: (a) there is no majority; (b) the
group was not fairly chosen; and (c) it would be unreasonable in the circumstances to make
the determination due to the delay in the making of the application and the reliance on
signatories to the petition who are claimed to fall outside the scope of the proposed
agreement.
[27] As to these matters, the applicant relied on its petition. Drawing from a range of cases,
the applicant submitted petitions have been regarded as an appropriate way to determine if a
majority wants for bargain, and that the petitioning process is now a well-established means
of determining that question. As to the question of point-in-time considerations, the applicant
effectively restated its earlier submissions concerning Kantfield. The applicant submitted that,
here, there are two relevant dates - first, the date the application was filed and, second, the
date of the hearing.
[28] The applicant noted that, at the time the application was filed, the petition included 44
petitioners and, pursuant to a subsequent direction, the respondent provided a list of
employees to enable a count to be conducted. The applicant also noted that while the
respondent provided a list of 86 employees, that list included employees who were outside the
scope of the application - including lab managers and data entry employees. The employees
who were covered by the application, described as CMT Technicians, numbered 77.
[29] The applicant submitted that the appropriate way to deal with the current application is
to follow the approach adopted in AMWU v Iveco Trucks Australia Ltd [2013] FWC 5106
(“Iveco Trucks”) where this was said:
“[20] An examination of the staff list establishes that there are employees on that list
who were not intended to be included in the bargaining. For example, the staff list
includes the Group Financial Controller, Plant Controller, Commercial Controller, the
National Fleet Manager, the National Manager Customer Services, and the National
Fleet Manager Southern Region. If these six employees are excluded from the count,
then there are 110 employees in the count and the AMWU has established that a
majority of the employees in the departments it says will be covered by the proposed
agreement are in favour of bargaining.
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[21] In the end however there is a simpler way to determine the answer to the dispute
before the Commission.
[22] There are 41 employees on the staff list whose title includes the word manager. If
those employees are excluded from the count then there are 98 employees on the staff
list. Six people with a job title that includes the word manager signed the petition. If
these people are excluded from the petition, then 52 employees are definitely in the
count. If that is the case, then clearly a majority of non managerial employees want to
bargain for an agreement with their employer.
[23] A majority support determination is not the vehicle to determine the eventual
scope of an agreement. It is however necessary to know with some precision the
employees who will be covered by the proposed agreement.”
[30] The applicant submitted that the list provided by the respondent on 8 July 2020 should
be regarded as having 77 relevant persons covered by the proposed scope and 44 signatories
indicate a majority of those employees want to bargain. The applicant’s submissions
continued:
“20. In the period between 7 July and the hearing there had been two changes. The
AWU had collected a further 3 signatures (Exhibits 9 and 10) and there had been a
reduction in the number of employees. The number of employees had reduced to 75 in
total, of those 68 were Technicians. Of the now 47 who had signed the petition 9
signatories were no longer employed. So, at the time of the hearing 38 of 68
technicians had signed the petition. Still a majority of technicians.”
[31] The applicant noted that in the respondent’s cross-examination of the applicant’s
witnesses, questions were asked about whether the employees charged with coordinating the
collection of names could be sure the signatures had not been forged or that the employees
who signed had not been coerced or misled into signing. As to that, the applicant submitted:
“The witnesses were frank in their answers and said that this was possible as they did not
witness every signature. Presumably the respondent wishes to make something of these
responses.” The applicant further submitted there was nothing untoward in the processes
described by the witnesses in gaining the signatures; and there was no evidence there was any
forgery, coercion or misleading of employees. To the contrary, the submissions continued, the
evidence of the applicant’s witnesses suggested “an openness and honesty in the
communications with their fellow employees” and, on its face, the petition does not indicate
anything untoward with its legible names, telephone numbers, signatures and dates. There
was no evidence of any wrongdoing associated with the petition and, in so submitting, the
applicant referred to the comments in Transport Workers’ Union v MWAV Pty Ltd TA Man
With a Van (“Man With a Van”) [2018] FWC 6525 at [53]-[54].
[32] As to the respondent’s contention that the scope of the agreement is not fairly chosen,
the applicant submitted that the respondent appeared to contend that the laboratory managers
and data entry employees should be included in the scope. However, a majority support
determination is not the vehicle to determine the eventual scope of an agreement: Iveco
Trucks at [23] and [30]. The applicant submitted that, in any event, the scope is fairly chosen.
In so submitting, the applicant refereed to matters including:
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the evidence that the decision as to the scope came about following interactions with
the workers who worked as technicians;
the evidence that it was the technicians who in fact, and unlike other employees,
undertake the testing work (the applicant’s scope did include supervisory technicians
and the allocator, because they specifically supervised the testing work);
the respondent’s contest to the inclusion of the allocator now is moot because that
person’s position has been made redundant;
it is the technicians who do the testing that the applicant seeks to be covered, and
that is why administrative, managerial and data entry staff are excluded; and
technicians are required to undertake (specific technician) training to perform their
roles whereas data entry staff and other administrative staff are not.
[33] The applicant’s submissions next turned to a separate matter concerning an enterprise
agreement made between the respondent and certain Victorian technician employees, namely
the Victorian Construction Materials Testing Technicians Agreement 2017 (“the Victorian
Agreement”). Clause 2.1 of the Victorian Agreement indicates that it applies to construction
sciences employees who perform soil, concrete and aggregate testing, being the same scope
that the applicant seeks for an agreement in New South Wales. After referring to aspects of
the evidence and the text of the Victorian Agreement, the applicant drew attention to the Form
F17 concerning that agreement (Exhibit 15) - being the employer’s statutory declaration in
support of an application for approval of an enterprise agreement. The applicant noted the
following matters in particular:
the respondent’s declarant declared in the Form F17 that the Victorian Agreement
would cover all Victorian construction sciences employees who conduct construction
materials testing duties, the materials tested by construction materials testing
(“CMT”) technicians are soil, concrete and aggregates and that “Testing is a specific
skill set within an organisation that does not get done by employees in other
divisions of the business.”
the respondent’s declarant declared in the Form F17 that the scope of the Victorian
Agreement was fairly chosen, with one of the reasons given for the employees being
fairly chosen being that CMT technicians require a specific skill set that requires
employees to have a Certificate 3 or 4 in Testing, Laboratory Operations or similar
and can take a number of years to become fully proficient.
[34] The applicant submitted that the Victorian Agreement has a scope similar to that
sought in this application for Sydney and the respondent is on record through the Form F17
itself stating that the employees within that scope were fairly chosen. Any submission by the
respondent that the applicant’s proposed scope here is not fairly chosen is, the applicant
contended, disingenuous. The applicant also drew attention to the evidence of an
organisational chart which records data entry employees as a separate category of employee to
the technicians.
[35] The evidence in the applicant’s case indicated that the technicians are geographically
separate in that they work in the lab and the field, with the data entry employees working in
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an office distinct from the lab. The applicant submitted technicians are geographically and
operationally distinct from data entry and other staff. There is one building that staff work in;
while there are administrative staff, including data entry employees working in the same
building, the lab is separated from the office areas.
[36] Finally, on the fairly chosen criterion, the applicant submitted the evidence establishes
that technicians are operationally different from data entry staff. The technicians are involved
in performing testing and are qualified as technicians. Although data entry staff perform
important work, it “is simply clear” that they are not technicians.
[37] The applicant submitted that the issue raised by the respondent regarding a delay in
time of the signatories is irrelevant. In so submitting, the applicant referred to Media,
Entertainment and Arts Alliance v The Australian Football League (AFL) [2014] FWC 8898,
where this was said:
“[34] As well, in relation to the issue regarding the changes in the workforce, I adopt the
comments made by the Full Bench in CBI Constructors where it was observed that the
composition of a workforce will vary over time. The Full Bench also concluded that
the words “employees who will be covered by the agreement” does not require a
prediction of which particular employees will be covered by the agreement at the point
in time it is made.”
[38] As to delay, the applicant submitted the petition was signed by 44 employees in late-
April 2020 and it wrote to the respondent on 4 May 2020 “in the hope of getting agreement to
bargain”; there was no response and the applicant wrote again on 3 June 2020 advising
proceedings would have to be brought if there was no reply. The respondent’s reply of 4 June
2020 indicated it did not want to bargain. The applicant submitted it was this delay in the
respondent failing to respond to the correspondence which caused most of the time lapsing
between the petition being signed and the application being filed on 23 June 2020. The
applicant pointed to evidence explaining that the applicant wanted to ensure that the majority
was genuine prior to lodging, and this is a reasonable explanation of the further delay. In
conclusion, on the question of delay, the applicant submitted the Commission should not be
satisfied that there was any undue delay in bringing the proceedings and “that the delay that
did occur is no reason to not make the determination sought.”
[39] As a final matter, the applicant referred to issues raised in relation to two signatories.
As to one of those signatories, the issue was reiterated as being “moot” as that person is no
longer an employee of the respondent and his signature is not relied upon by the applicant. As
to the other signatory (who is employed as a technician but is performing data entry work),
the applicant maintained that as the employee is trained as a technician but is seconded as a
data entry employee, she is an employee who would be covered by the proposed agreement;
but even if she were excluded from the count it would not make a material difference, because
there would still be a majority of technicians who seek to bargain for an agreement.
Respondent’s submissions
[40] The respondent outlined various reasons for its opposition to the application for a
determination in its first outline of submissions. I reiterate that part of what was relied on
initially had differed by the time the closing submissions were made, given what had unfolded
in the evidence.
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[41] Here, the respondent noted, the applicant filed a petition with employee signatures and
later, on 2 July 2020, supplied the Commission with a further two signatures. The respondent
submitted the application is fundamentally flawed and ought to be dismissed, because the
Commission cannot be satisfied that a majority of employees want to bargain. Further, and in
the alternative, the respondent submitted “there is insufficient information regarding the
provenance of the petition in order for the Commission to be satisfied that it is reliable
evidence of the wishes of the relevant employees. The petition was not in the custody or
control of union organisers and delegates at all material times, and there is evidence to
suggest that employees were not informed about what they were signing, and/or were
pressured to sign the petition.” The respondent adverted to other matters in its opposition to
the application, including:
the Commission cannot be satisfied that, on the applicant’s argument, an enterprise
agreement which proposed to exclude the data entry employees is a group of
employees that is fairly chosen;
there are other factors that the Commission should take into account which means
that it would be unreasonable to make the determination:
- the delay in the applicant making the application (the petition was signed over
a number of days in late-April, and the application was not lodged until 24
June 2020, meaning that the petition was “outdated”);
- at least two petitioners have indicated that they wish their names to be
withdrawn from the petition (but, I note, the “evidence” as to that was not
admitted);
- the application is internally inconsistent in circumstances where the applicant
argued that management and administrative employees should be excluded but
seeks to rely on at least two signatures from employees who fall outside its
own proposed scope (but, I note, the former allocator employee was not relied
on by the applicant and the applicant maintained that the seconded employee
was appropriate for inclusion given her substantive role as a technician).
[42] The respondent submitted the Commission “should have no regard to the highly
prejudicial, inflammatory and baseless accusations made in the AWU’s submissions” and
added that it is well within its rights to refuse to bargain with the applicant in circumstances
where it is satisfied that the arrangements it has in place for managing its employees’ terms
and conditions are appropriate and suitable.
[43] The respondent set out in its submissions a brief factual background. That background
described matters including aspects of the nature of its business operations/services relevantly
including the testing of concrete, soils and aggregates, with this work being performed by
employees both in the field at client sites and in the respondent’s laboratories. The respondent
submitted that its construction materials testing workforce is made up of: (a) lab managers;
(b) field supervisors; (c) senior technicians; (d) field technicians/lab technicians; and (e) data
entry employees. The respondent is of the view the foregoing positions are covered by the
Manufacturing and Associated Industries and Occupations Award (“the Award”). The
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respondent noted there are additional employees who are not involved in the testing process,
including management personnel and administrative employees.
[44] The respondent’s submissions referred to a history of written communications between
the applicant and itself, commencing with a letter alleging underpayments and culminating in
correspondence of 4 June 2020 and the ensuing application now before the Commission. The
submissions referred to some of the procedural history that followed the lodgement of the
application including that it became apparent the applicant and the respondent disagreed on
which employees should be considered as part of the testing process with the result the matter
was then listed for arbitration.
[45] As with the applicant’s submissions, the respondent’s submissions referred to the
legislative context and matters to be considered by the Commission. As to the considerations
arising from the Act, the respondent submitted there are three reasons why the Commission
cannot be satisfied “that a majority of employees who are employed at a time determined by
the employer, and who will be covered by the agreement, want to bargain”, namely:
the applicant does not have a majority of employees who wish to bargain;
the petition upon which the applicant relies was not in its custody and control at all
times; and
there are “not insignificant concerns regarding the signatures included on the Petition
and whether those employees ‘want’ to bargain”.
[46] In relation to the first point, the respondent submitted that the point in time that the
Commission must determine whether there is a majority of employees, is the date of its
decision. In so submitting, the respondent, like the applicant, also referred to Kantfield. The
respondent submitted that 39 signatures is not sufficient for a majority of employees, the
application should be dismissed for this reason alone. The respondent submitted that even if
the Commission accepted the applicant’s argument that the data entry employees should be
excluded, despite the respondent’s arguments to the contrary, the applicant still does not have
a majority of employees, because 39 signatures would not be sufficient for a majority and,
again, the applicant does not have a majority of employees. In consequence, the application is
fundamentally flawed and should be dismissed.
[47] In relation to the second point, the respondent submitted the Commission cannot be
satisfied that the applicant has effectively demonstrated how the petition came into existence
and why it can be relied on in determining whether a majority want to bargain. The
Commission must be satisfied that the petition was in the custody and control of responsible
persons (whether they be union organisers or delegates). On the evidence or lack thereto, the
Commission cannot be satisfied that the petition was in proper custody and control of the
applicant. The respondent advanced further submissions concerning matters related to
explanation, translation and employees’ understanding; the respondent referred also to
purported “duress or coercion”. I have not summarised the submissions concerning the third
point, because the material in such respects was not admitted.
[48] The respondent otherwise submitted that the applicant has not satisfied the
Commission that the petition is an appropriate method to work out whether a majority of
employees want to bargain. Moreover, the respondent objected to the two additional
[2020] FWC 5428
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signatures supplied to the Commission on 3 July 2020 because “to allow either party to
continue to supplement their position, either by additional signatures to a petition, or hiring
additional employees, would result in a contrived outcome”. This is particularly so where the
applicant had already waited two months to file its application, “casting into serious doubt the
utility and reliability” of the petition at that point in time in any event.
[49] The respondent submitted that the employees involved in the testing process include
lab managers, field supervisors, senior technicians, field technicians/lab technicians, and data
entry employees. Although the applicant had asserted that it is not intended that
“administrative” employees are to be covered by its proposed agreement and seeks to exclude
the data entry employees, the respondent submitted that this would not result in the scope of
the proposed agreement being fairly chosen, because the narrower group of employees
proposed by the applicant is not a group which is operationally, geographically or
organisationally distinct. If the proposed agreement will not apply to all employees involved
in the testing process, the Commission must take into account whether the group that is
proposed to be covered is geographically, operationally or organisationally distinct: Cimeco v
Construction, Forestry, Mining and Energy Union & Ors [2012] FWAFB 2206 at [19]-[21].
[50] The respondent’s submissions outlined its contentions why the applicant’s proposed
group (in excluding the data entry employees) is not operationally distinct. The respondent
also submitted that an enterprise agreement that did not cover the data entry employees, but
covered all other relevant classifications of employees, “would have a perverse outcome”.
The respondent’s submissions also advanced its propositions why the applicant’s proposed
group is not organisationally distinct and noted that the group is not geographically distinct
given the same worksite.
[51] The respondent submitted that the inclusion of the entire testing workforce (including
the data entry employees) would result in a group that is fairly chosen; and to narrow the
group as proposed by the applicant “would result in a contrived outcome”, involving a group
that is not operationally, organisationally or geographically distinct when there is, in fact, an
alignment of the broader group of employees for efficiency and productivity reasons.
[52] The respondent highlighted in short form various matters in its submissions in
contending the Commission cannot be satisfied that it is reasonable in all the circumstances to
make the determination.
[53] In addressing certain matters in the applicant’s submissions, the respondent also
contended the applicant’s submissions included “a number of highly prejudicial and baseless
remarks that should be given no weight by the Commission”.
[54] The respondent submitted that number of factors which the applicant said the
Commission should take into account in considering whether it is reasonable to make the
determination should be disregarded by the Commission including for reasons including
certain highly prejudicial allegations which hold no weight. in circumstances where the
evidence of a witness called in the applicant’s case as to the actions of those managers is
irreconcilable with what actually took place. The respondent submitted it has not, at any time,
attempted to circumvent the intentions of the Act and it has not been disingenuous in its
opposition to the application. The respondent’s submissions were critical of the actions of the
applicant and its agents.
[2020] FWC 5428
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[55] The respondent submitted that the preconditions set out in s.237(2) of the Act had not
been met and, as a result, the application should be dismissed.
[56] In its outline of final submissions, which supplemented its earlier written submissions,
the respondent submitted this matter comes down to two key issues. First, the respondent
maintained a position that the group of employees the applicant proposes is not fairly chosen
and contended that the dispute between the parties comes down to whether that group of field
testers and laboratory staff in the Sydney metropolitan area is a group of employees that is
operationally, organisationally and geographically distinct. The respondent submitted that a
group of employees which excludes employees who are involved in, and integral to, the
respondent’s testing process, being laboratory managers and data entry employees, does not
amount to a group of employees that is fairly chosen.
[57] The respondent submitted that if, on the first question, the applicant is unsuccessful in
establishing that the group of employees is fairly chosen the application must fail given the
operation of s.237(2)(c) of the Act, and in circumstances where the applicant does not
therefore have a majority of the employees for whom the respondent submits is the group of
employees that would be fairly chosen. The respondent’s submissions continued that,
alternatively, if the applicant is successful in establishing that the group of employees is fairly
chosen, the respondent cannot cavil with the applicant’s argument that a majority of
employees signed the petition.
[58] The second key matter for determination, the respondent submitted, is that there is a
myriad of reasons why the Commission cannot be satisfied that it is reasonable in all the
circumstances to make the determination sought by the applicant, including:
the applicant’s delay in making the application;
the absence of evidence that the petition was in the custody and control of a relevant
official or delegate, the provenance of the petition, what employees were told about
the petition and the absence of evidence regarding undue influence; and
the inconsistencies in the evidence in the applicant’s case as to the coverage of the
proposed agreement, and the employees who were invited to sign the petition.
[59] The respondent submitted the foregoing matters are “compelling concerns that have
been consistently raised” by the respondent, and for which the applicant’s position “is no
better despite the hearing in this matter”. Absent evidence which adequately deals the above
matters, the Commission cannot be satisfied that it is reasonable in all the circumstances to
make the determination; in short, the petition “is a totally unreliable document and should be
disregarded”.
[60] As to the matter of the “competing lists” provided by the parties, the respondent
submitted the distinction between these two lists is important as it informs the respondent’s
position that the proposed group is not fairly chosen. In short, at the time of the hearing of this
matter:
the number of current employees who signed the petition excluding additional
signatures provided by the applicant after the application was filed, amounted to 35
employees; and
[2020] FWC 5428
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the respondent relies on a list of employees that it says is involved in the testing
process who perform work in the Sydney metropolitan laboratories and field
numbering 75 employees at the time of the hearing. The respondent included
laboratory managers, laboratory supervisors and data entry employees in its list, and
excluded non-award covered managers and purely administrative employees who are
not involved in the testing process.
[61] The respondent characterised matters as involving disagreement between the parties
about whether lab managers and data entry employees are improperly excluded from the
group of employees so that the employees that are proposed to be covered by the proposed
agreement are not fairly chosen.
[62] The respondent submitted it accepts that if the applicant’s proposed scope of
employees is accepted as being fairly chosen then the applicant has a majority of employees,
“if the petition is accepted at face value”. Even if that is the position accepted by the
Commission, the respondent submitted other factors weigh against the making of a majority
support determination.
[63] As to matters concerning the fairly chosen criterion, the respondent opposed the
application on matters outlined in its initial submissions and in further submissions which I
summarise in the following way.
[64] As to the question of operationally distinct, the term “operational” refers to an
industrial or productive activity; the performance of a different task, skill, role or function
does not necessitate operational distinctiveness in an integrated operation. Here, the
applicant’s proposed group is not operationally distinct because it excludes data entry
employees and laboratory managers from the group that it proposes in circumstances where,
on the evidence:
data entry employees perform a critical role in the testing process and are part of the
respondent’s integrated operations;
the data entry employees’ role requires training, experience observing testing, and
close interaction with the technicians and field supervisors on a task-to-task basis;
data entry employees working in Sydney perform a critical role in the testing process
that is performed by technicians themselves at other laboratories;
the testing process involves a number of steps, one of which the data entry
employees perform with the result that the testing process is therefore facilitated by
the work performed by the data entry employees;
the respondent’s product is a NATA-accredited report, and that report could not be
produced without the work performed by data entry employees;
data entry employees are based in the laboratory, wear personal protective
equipment (“PPE”) and their workload is directly impacted by the work performed
by the field and lab technicians;
[2020] FWC 5428
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data entry employees are treated on the basis that they are covered by the Award;
data entry employees have training in relation to the testing process;
data entry employees have a technical understanding to ensure that accurate and
complete data is entered in the respondent’s systems;
the work undertaken by data entry employees is essential to the work performed by
employees in the laboratory;
the testing and reporting process to clients cannot occur without the field sheet being
checked and entered into the system by data entry employees;
data entry employees play a role in the product or service that is delivered to clients;
the accuracy of the data entered is fundamental to ensuring that an accurate report is
provided to clients;
PPE is provided to data entry employees to enable them to go into the laboratory;
and
data entry employees working at the Glendenning lab perform work that is otherwise
performed by technicians themselves in other locations.
[65] The respondent submitted that as to the evidence concerning laboratory managers:
their roles are critical in the testing process and are part of the respondent’s
integrated operations;
they work closely alongside technicians and data entry employees, and spend a
majority of their time in the testing areas;
they are intimately involved in the work of testing samples and reporting to clients;
they are treated on the basis that they are covered by the Award;
they are required to have testing qualifications;
they perform a technical role; and
they are involved in the testing and reporting that leads to the preparation of reports.
[66] Comparing and contrasting text that was written in the applicant’s initiating process
and the evidence, the respondent submitted the applicant’s proposed group of employees is
not operationally distinct. The respondent submitted that a group excluding laboratory
managers and data entry employees “results in an illogical outcome as these positions are a
critical part of the testing process.”
[67] As to the organisationally distinct question, the respondent submitted the term
“organisation” refers to the manner in which the employer has organised its enterprise in
[2020] FWC 5428
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order to conduct its operations. The respondent’s testing workforce is an integrated workforce
which includes laboratory managers and data entry employees and technicians; there is a high
degree of interaction and connectivity between these employees. Therefore, it cannot be said
that the applicant’s proposed group of employees is organisationally distinct.
[68] As to the geographically distinct question, the respondent noted its (Sydney)
workforce is based in discrete buildings located at Glendenning and St Peters. As to that, the
respondent submitted that the applicant sought “to make something of the fact” that the
laboratory managers and data entry employees are not based, at all times, in the laboratory.
The respondent submitted this does not mean that there is a geographic distinctness to the
work of those employees in the laboratory; and this is particularly so, where there is
interaction between laboratory managers, data entry employees and technicians, including
interactions which occur in the laboratories. Geographical distinctness is concerned with the
geographical separateness of the employer’s various worksites or work locations and not a
separation of a few hundred metres within the same work site: AWU v BP Refinery (Kwinana)
Pty Ltd [2014] FWCFB 1476 at [13].
[69] The respondent submitted that the applicant’s reliance on the Form F17 concerning the
Victorian Agreement was flawed for a number of reasons including that the respondent’s
operations in the Sydney metropolitan region depart from its operations at other sites in
Australia, on the basis that the data entry employees perform work that is ordinarily
performed by testers at other laboratories. Moreover, the Victorian circumstances involve
legacy arrangements arising from when the respondent “inherited” an enterprise agreement
following a business acquisition.
[70] The respondent submitted the Commission should disregard the Form F17 for the
Victorian Agreement on the basis that it was sworn in October 2017 for operations in a
different state with different legacy arrangements. The respondent also submitted the
Victorian Agreement does not have the same coverage that the applicant seeks in its
application. Here, the respondent submitted that data entry employees are classified as Level 1
employees under the Victorian Agreement, but the applicant seeks to exclude these employees
from its proposed group.
[71] The respondent submitted the applicant has “handpicked a select number of employees
from the entire testing workforce” but such a group would not result in a group that is fairly
chosen. To narrow the group of testing employees and to exclude data entry employees and
lab managers would not, the respondent submitted, result in a group that is operationally,
organisationally or geographically distinct.
[72] To the extent the applicant relied on Iveco Trucks to justify the exclusion of
managerial employees from the group of employees to be covered by the proposed agreement,
the respondent submitted that to adopt such an approach in the current proceedings would
lead the Commission into error in circumstances where:
the applicant included a signature from a manager as a petitioner, namely an
allocator;
the Award covers and applies to the role of “Lab Managers” and “Lab Supervisors”,
being the only managerial roles included in the respondent-prepared list;
[2020] FWC 5428
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the applicant’s proposed group of employees, as set out in the petition and the
applicant’s application, “encapsulates” laboratory managers and laboratory
supervisors given the following references:
- “the agreement only apply[ing] to Construction Sciences Testers and
Laboratory employees and to no other employees”;
- “the employment of Testers and Laboratory employees is covered by the
Manufacturing and Associated Industries and Occupations Award 2010”;
- “The Australian Workers Union seeks to bargain for Field Testers and
Laboratory Staff. These are employees who are involved in the testing process
for construction materials. They are distinct from the administrative and other
management staff”; and
- “The staff that the AWU are seeking to be bargaining representatives for are
specifically involved in the testing of concrete, soil and aggregates”.
[73] The respondent submitted that each of the above points differentiates this case from
Iveco Trucks. Indeed, the respondent submitted, it does not appear that Iveco Trucks raised
concerns regarding whether the scope of employees was fairly chosen, instead relying on an
argument that there was no majority, and where, in this case, the respondent has maintained
its position that the proposed group is not fairly chosen. The respondent submitted that whilst
it may be the case that the scope of a proposed agreement may be subject to a scope order
once bargaining commences, the language of s.237(2)(c) of the Act is unequivocal concerning
satisfaction as to the fairly chosen criterion. Absent such satisfaction, the Commission cannot
make a majority support determination and here, the respondent submitted, the exclusion of
data entry employees and managerial employees means that the group of employees who will
be covered by the agreement have not been fairly chosen because the applicant’s narrower
group is not operationally, geographically or organisationally distinct. To accept the group
proposed by the applicant as fairly chosen would have “significant consequences” for the
respondent’s productivity and operational effectiveness, where its testing employees are
required to work together to produce outcomes for the respondent’s customers and
particularly where data entry employees play a critical part in the respondent’s testing and
reporting operations.
[74] The respondent reiterated its submission that the inclusion of data entry employees and
laboratory managers results in a fairly chosen group, due to the alignment of those employees
for efficiency and productivity reasons.
[75] The respondent submitted that the Commission cannot be satisfied it is reasonable in
all the circumstances to make the determination, in circumstances where:
there was insufficient evidence “to give the Commission comfort as to the
provenance and control” of the petition;
there was insufficient evidence to conclude that employees, including employees
whose first language is not English, understood what they were signing;
the applicant’s delay in making the application;
[2020] FWC 5428
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there was no evidence to conclude that employees were not put under duress to sign
the petition;
the applicant’s application is internally inconsistent in circumstances where it argues
that management employees and administrative employees should be excluded, but
seek to rely on at least two signatures from employees who fall outside the
applicant’s own proposed scope; and
there are “credibility issues” in relation to two witnesses called in the applicant’s
case, in that their evidence “is inaccurate, overstated or not their own”.
[76] The respondent noted it was uncontested, drawing from aspects of the evidence, that
the petition was not within the custody and control of the applicant (through the applicant’s
gatherer/s of signatures) at all times and this was relevant considered in the context of what
arose in the consideration in “Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Veolia
Water Operations Pty Ltd [2015] FWC 2561 (“Veolia”) a case said to be “directly analogous”
to the present application. Following references to various parts of the evidence, the
respondent submitted that no one person had custody of, or oversight concerning, the petition
and there were issues concerning matters such as witnessing and the like. The respondent
submitted the absence of evidence concerning those charged with the responsibility of
circulating the petition gave rise to an inference that their evidence would not assist the
applicant. Adopting the position in Veolia, the respondent submitted that the Commission
cannot be satisfied the petition was in the custody and control of the applicant or indeed any
one person; therefore, it is not a reliable indicator of employee support for the proposed
agreement. The respondent also submitted “there are not insignificant concerns that some of
the persons who signed the petition would not have understood what they were signing, on
account of their limited English”, and this was so notwithstanding suggestions about
translation assistance for relevant employees whose first language was not English. The
respondent submitted there is relevantly evidence that some of the employees did not
understand what they were signing and, on this basis, the Commission cannot be satisfied that
at least some employees understood what they were signing.
[77] As to the delay in making the application, the respondent noted the applicant lodged
the application on 24 July 2020, almost two months after the petition had been signed by
employees. The respondent noted the applicant had submitted this delay was because the
respondent did not respond to its letter dated 4 May 2020 until 3 June 2020, and because it
wanted to “ensure that the majority was genuine prior to lodging”. The respondent described
this position as “disingenuous” in circumstances where:
the respondent had replied to the applicant’s correspondence dated 4 May 2020, in
which it made underpayment allegations, on 11 May 2020. The respondent’s
evidence indicated it was waiting to hear in such respects;
the applicant did not lead evidence about the steps it was taking to “ensure that the
majority was genuine prior to lodging”; and
[2020] FWC 5428
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it is “conceivable” that the applicant’s delay was an attempt to “better its case” by
lodging the application after two months in the hope that its petition would amount
to a majority of employees.
[78] To the extent the applicant relied on comments in Man With a Van as support for its
proposition that there is no evidence employees were unduly influenced to sign a petition, the
respondent submitted that case is not analogous to the present proceedings. Here, there is
evidence that goes to whether or not employees were unduly influenced because the
applicant’s witnesses’ evidence was that they could not rule out that an employee had been
unduly influenced, or that a signature had been forged, on the basis there was no one
individual who had custody or control of the petition.
[79] The respondent referred to what it described as “inconsistencies” between the
proposed scope and the petition in that reliance was placed in the application on petitioners
whose positions were that of an allocator and data entry employee. Although the applicant
had described the allocator issue as “moot” (given his signature was not relied on as that
person is no longer an employee) and because the data entry employee’s signature does not,
on the applicant’s count, make a material difference to the majority if she is removed such
arguments reveal the manner in which the applicant “has cherry picked evidence to suit its
purpose”. The submissions continued that the applicant’s inclusion of “a managerial
employee who was charged with organising employees suited its purpose for the coordination
of employees” - despite the fact that the particular employee had no involvement in the testing
process and was not a technical employee. That is, the particular (former) employee clearly
falls outside of the applicant’s proposed group of employees. Further, the inclusion of the data
entry employee “goes to the heart” of the respondent’s argument that the applicant’s list is not
a group of employees that is fairly chosen. This employee has performed data entry work
since August 2018 and the inclusion of her signature, the respondent submitted, is not a
mistake, or an oversight due to a secondment but a deliberate attempt to inflate numbers by
using the signature of an employee who otherwise would be excluded by the applicant. The
respondent submitted these two inclusions indicate that the applicant was content to include a
managerial position and a data entry role where it would assist in obtaining signatures for its
petition, but wishes to exclude them otherwise; and this also indicates a clear lack of
understanding on the part of the applicant of the respondent’s operations.
[80] The respondent submitted that the evidence of the respondent’s witnesses that should
be preferred to that of the applicant’s witnesses in relation to the determination of the
respondent’s operations and workforce. The respondent’s witnesses provided clear evidence
of its operations, which was for the most part unchallenged where the evidence of the
applicant’s witnesses was in places inconsistent, overstated, and in one case, not his own. The
submissions continued that both witnesses “had a tendency to make generalised statements
which, when tested in cross-examination, they accepted they lacked the knowledge to make.”
[81] In relation to an assessment as to the majority of employees, the respondent’s position
was that, based on the respondent-prepared list of employees, the applicant does not have a
majority of employees and the petition is not a reliable indication as to the number of
employees who wish to bargain. In determining the question of majority, two matters arise for
consideration namely (a) the point in time at which the assessment should be made by the
Commission; and (b) the inclusion of the additional signatures after the filing of the
application. Referring to Kantfield, the respondent submitted there is no broader power to
“fix” historical or future points in time for other aspects of s.237 of the Act; the relevant time
[2020] FWC 5428
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for determining when a majority of employees wish to bargain is at the date of the decision;
and this point in time determination is limited to determining the number of employees who
were employed only. Following from Kantfield, the date of the decision should be used as the
point in time for assessing if there is a majority of employees; and, the respondent submitted,
this assessment goes hand-in-hand with the determination of whether the applicant’s proposed
group is fairly chosen.
[82] The respondent noted that since the filing of the application, the applicant has
attempted to introduce three new signatures of petitioners in support of its application. The
respondent submitted the Commission should not accept the additional signatures, and to
accept those additional signatures would result in “an implausible outcome”, in which a union
would be able to make a majority support determination with an insufficient number of
signatures and to continue to supplement evidence which should have existed at the date of
filing and which is the very basis for the making of such an application.
[83] The respondent submitted that the applicant does not have majority support because,
based on the respondent-prepared list, it has insufficient support. The respondent submitted
that if the Commission is not minded to dismiss the application on that basis, the application
should be dismissed on the basis that sufficient doubt exists that the petition is not an
appropriate method to determine whether a majority of employees exists.
[84] In conclusion, the respondent submitted it was evident the Commission would be
unable to be satisfied that a majority of employees who will be covered by the proposed
agreement want to bargain. Further, and in the alternative, the applicant’s proposed group of
employees is not fairly chosen. In any event, the respondent submitted, it is not reasonable in
all the circumstances to make the determination given a number of serious concerns with the
petition, the conduct of the union delegate and filing of the application. The respondent also
submitted (albeit with such submission made before the very decision in INPEX Australia Pty
Ltd v The Australian Workers’ Union [2020] FWCFB 5321) it would be open to the
Commission to order a ballot to be conducted by the Australian Electoral Commission to
determine whether there is majority support, in circumstances where, it was submitted, the
petition is not an appropriate indicator as to the existence of majority support.
Consideration
Section 236
[85] Section 236 of the Act provides as follows:
“236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed
single-enterprise agreement may apply to the FWC for a determination (a majority
support determination) that a majority of the employees who will be covered by the
agreement want to bargain with the employer, or employers, that will be covered by
the agreement.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
[2020] FWC 5428
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(b) the employees who will be covered by the agreement.”
[86] The applicant union is a bargaining representative of employees who will be covered
by a proposed single-enterprise agreement and it applied to the Commission, on 23 June 2020,
for a determination that a majority of the employees who will be covered by the agreement
want to bargain with the respondent - being the employer that will be covered by the
agreement.
[87] In its Form F30 – Application for a majority support determination, the applicant
identified the legal name of the business as “Construction Sciences Staff Pty Ltd” with the
trading name of “Construction Sciences” as the employer that will be covered by the proposed
agreement. It may be noted the header text of each page of the petition referred to “CCS Staff
Pty Ltd trading as Construction Sciences Pty Ltd (ABN74128806735)”. It is not clear to me
why there is a difference/partial difference in the name of the employer in the text of the
petition pages as against the name of the employer in the Form F30. No issue was taken about
this matter of difference in the proceedings. Given neither party raised any issue concerning
this difference, it is unnecessary to further consider the matter.
[88] As to the employees who will be covered by the agreement, the Form F30 identified
(in response to question 1.2.2 of the Form F30) “Field Testers and Laboratory Staff” albeit it
may be noted that “laboratory staff” has presumptively broader connotations than the
narrower group for which the applicant otherwise contends. The application itself provided
greater clarity. That is, in response to question 2.2 of the Form F30, a question concerned with
whether the group of employees to be covered by the proposed agreement has been fairly
chosen, the applicant elaborated matters as follows:
“The Australian Workers Union seeks to bargain for Field Testers and Laboratory Staff.
These are employees who are involved in the testing process for construction
materials. They are distinct from the administrative and other management staff.
The staff that the AWU are seeking to be bargaining representatives for are
specifically involved in the testing of concrete, soil and aggregates.” (My underlining).
Section 237
[89] The provisions of s.237 of the Act next arise for consideration. Those provisions read:
“237 When the FWC must make a majority support determination
Majority support determination
(1) The FWC must make a majority support determination in relation to a
proposed single-enterprise agreement if:
(a) an application for the determination has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2) in relation to
the agreement.
http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s226.html#subsection
http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s12.html#made
http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s12.html#single-enterprise_agreement
http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s12.html#majority_support_determination
http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s12.html#majority_support_determination
[2020] FWC 5428
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Matters of which the FWC must be satisfied before making a majority support
determination
(2) The FWC must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined
by the FWC; and
(ii) who will be covered by the agreement;
want to bargain; and
(b) the employer, or employers, that will be covered by the agreement have not
yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was
fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority
of employees want to bargain using any method the FWC considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer
or employers covered by the agreement, the FWC must, in deciding for the purposes
of paragraph (2)(c) whether the group of employees who will be covered was fairly
chosen, take into account whether the group is geographically, operationally or
organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
[90] Thus, s.237 of the Act identifies the circumstances when the Commission must make a
majority support determination. Relevantly, the Commission must make a determination in
relation to a proposed agreement if: (a) an application for the determination has been made;
and
(b) the Commission is satisfied of the matters set out in s.237(2) in relation to the agreement.
[91] As to the matters in s.237(2)(a) of the Act, the Commission must be satisfied that a
majority of the employees who are employed by the employer at a time determined by the
Commission and who will be covered by the agreement want to bargain. In Kantfield, a Full
Bench of the Commission said this (references not reproduced):
“[35] The power to apply a time-based limitation is confined to section 237(2)(a)(i) [of
the Fair Work Act 2009] 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
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http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s789gc.html#employee
http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s231.html#paragraph
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[2020] FWC 5428
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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.
[38] Therefore, we are of the view that the Commissioner did not take into account a
material consideration in the House v The King sense, namely, the most current
available information to him at the time in determining whether a majority of
employees wanting to bargain existed. In light of this, and having considered the
relevant principles of law, we are of the view that the Appellant has demonstrated
a House v The King error in the Commissioner’s decision. We are not required to
identify an appellable [sic] error in every ground of appeal for there to be a quashing
of the decision; a quashing of the decision is warranted upon an appeal bench
identifying error in accordance with House v The King. Having identified an error in
accordance with House v The King, we are, therefore, satisfied that the appeal must be
upheld and that the original Decision must be quashed.”
[92] As I outlined earlier in this decision, the applicant collected the bulk of the petitioners’
signatures on its petition pages around 23-27 April 2020 but did not lodge the application
until 23 June 2020. The applicant submits that three additional petitioners’ signatures are also
relevant for consideration with dates of 2 and 17 July 2020. It is also common ground there
have been changes in the relevant workforce as certain employees are no longer employees of
the respondent.
[93] Further to directions, the parties each provided their respective lists of typed names on
8 July 2020. Both parties provided additional material for the purposes of the hearing which
corrected and/or finessed aspects of the names and/or classifications, and there were further
corrections made in the proceedings. Unsurprisingly, perhaps, the composition of the
workforce had changed in the time between the collection of the bulk of the petitioners’
signatures in late-April 2020 and the provision to me of the parties’ respective lists on 8 July
2020. Moreover, there had been further changes to around the date of the hearing.
[94] Such was the essentially confusing state of the various competing lists of information
provided by the parties that I prepared a draft table for my own benefit in attempting to distil
the sets of materials that had been provided to around the time of the hearing. Following
discussion with the parties, that draft table was provided by me to the parties. The parties also
agreed there should be an exchange of their own respective materials (upon which my own
[2020] FWC 5428
25
table was based) for use/access on restricted bases as between themselves. That is, each party
had full sets of the other party’s respective materials.
[95] It is appropriate to rely on all the most current information that was available to me as
at the date of the hearing. For the purposes of the count, the corrected and/or finessed
materials current to the date of the hearing mean that the most accurate snapshot is available.
Examples of the correcting and/or finessing by the parties include, for instance, that a
receptionist is not counted, but the broadly-similarly named person whose name inadvertently
was not included in the respondent’s initial material is counted, and persons who are no
longer employed by the respondent are not counted.
[96] Consistently with the approach in Kantfield, on the most current information before
me at the time of the hearing/decision, a majority of the employees proposed (encompassed in
the applicant’s application) and who will be covered by the agreement want to bargain. That
is, against the background of the information now before the Commission concerning the
particular classifications of the employees in the respondent’s original list (and amended
material), it emerges that the respondent included names beyond the compass of the
employees proposed by the applicant to be covered in the agreement. Approached another
way, contained within the respondent’s list/s are employees whose classification/s are not
those who would be covered by the proposed agreement in relation to which bargaining is
proposed by the applicant.
[97] As noted earlier, s.237(2)(a) of the Act provides that the Commission must be satisfied
that a majority of the employees who are employed by the employer at a time determined by
the Commission and who will be covered by the agreement want to bargain. Upon an
examination of the full suite of materials now before the Commission and in consideration of
the submissions, I am satisfied there is majority support among the particular cohort of
technician employees. The matter of majority support is, in any event, conceded by the
respondent in relation to the particular technician cohort. Given the respondent’s concession
in such respects, it is unnecessary to further consider in this decision about disputed
inclusions, respectively, in the petitioner lists and the respondent-prepared lists of employees.
[98] As to s.237(2)(b) of the Act, and as is evidenced by this contested application, the
employer that will be covered by the agreement has not yet agreed to bargain, or initiated
bargaining, for the agreement. For the sake of completeness, it is apposite to note that it is not
contended the respondent would be content to engage in bargaining if that bargaining for a
proposed agreement was to include the additional employees such as the data entry employees
and employees more senior than the technicians. Rather, it is the position of the respondent
that it does not want to bargain for a proposed agreement either with a group comprising the
Sydney-based technicians alone or, otherwise, any broader Sydney group comprising the
technicians plus additional classifications of employees. The evidence of a managerial
employee indicated that the respondent considers the arrangements in Sydney are working,
including on grounds that the relevant award is applied and the respondent did not require the
additional administrative burden of applying terms and conditions under an enterprise
agreement. Working with the relevant award, the evidence continued, had not caused any
problems and no reason was seen “to change this or any benefit in negotiating an enterprise
agreement”.
[99] As to s.237(2)(c) and s.237(3A) of the Act, there was sharp contest between the parties
as to whether the group of employees who will be covered by the agreement was fairly chosen
- with the applicant contending for the technicians (only) and the respondent contending for a
[2020] FWC 5428
26
larger group of employees, relevantly including the data entry employees and employees more
senior than the technicians. Considering whether the group of field testers and laboratory staff
is geographically, operationally or organisationally distinct (from the data entry employees), I
conclude as follows in relation to each relevant provision of the Act.
[100] The Sydney metropolitan-specific group proposed by the applicant is geographically
distinct in circumstances where, for example, the respondent has a number of laboratories
located in regional New South Wales, including Ballina, Coffs Harbour, Newcastle, Taree and
Wollongong (and elsewhere outside New South Wales). (On the other hand, the Sydney
metropolitan-specific group propositioned by the applicant does not appear to be
geographically distinct from the broader group propositioned by the respondent given the
technician group’s general workplace proximity to, and interactions in close quarters with,
other employees within the broader group including data entry employees and employees of
more senior rank than the technicians).
[101] The group proposed by the applicant is operationally distinct, in the sense that the
operations undertaken by the technicians is operationally and qualitatively different from, for
example, data entry work and the more senior roles (albeit I note that in locations other than
Sydney metropolitan technicians also undertake data entry as part of their overall duties). Put
another way, the technicians the subject of this application and the other classes of employees
referred to in the proceedings have different operations to perform; and those functions are
distinct and involve different training and/or qualifications. Indeed, my consideration of the
respondent’s own evidence describing the work of the data entry employees reinforces my
conclusion about the operationally-distinct nature of work undertaken by the technicians and
those in the “data entry team” and those in more senior ranks, as opposed to leading me to
find that the respective roles are not operationally distinct. The group proposed by the
applicant is in my view operationally distinct, as it comprises employees performing quite
particular operations and functions of their own – and this is so notwithstanding my
consideration of the evidence adduced in the respondent’s case contending for a different
conclusion.
[102] As to the applicant’s references to the Victorian Agreement, and particularly what was
set-out in the Form F17 employer’s declaration, I say this much. Although it may be the case
that certain legacy arrangements applied in relation to the Victorian Agreement, those legacy
arrangements could not (properly) lead a declarant in a statutory declaration to declare in a
Form F17 in support of an application for the approval of an enterprise agreement – a
statutory declaration, after all – that a particular cohort was fairly chosen if it was not, in the
employer’s view, in fact fairly chosen relevantly considering the occupational-type traits. It is
pertinent to reproduce the relevant segment from the Form F17 in support of the application
for the approval of the Victorian Agreement. It read:
“Scope of the agreement
2.2 Does the agreement cover all the employees of the employer (other than senior
executives)?
[ ] Yes
[X] No
[2020] FWC 5428
27
[Image] See sections 186(3) and (3A) of the Fair Work Act 2009.
If No – what group(s) of employees is covered by the agreement. Explain why you
think the Commission should be satisfied that this group(s) was fairly chosen. If
appropriate, describe any geographical, operational or organisational qualities that
make the group(s) distinct.
Construction Sciences has approximately 650 employees and operates in all
States of Australia. Construction Sciences services include:
- Professional Engineering Services,
- Sub Surface Utilities Engineering/Detection (SUE),
- Vacuum Truck Operations and
- Construction Materials Testing (CMT).
The Agreement will cover all Victorian Construction Sciences employees that
conduct CMT duties. The materials tested by CMT Technicians are Soil,
Concrete and Aggregates Testing a specific skill set within the organization
that does not get done in other divisions of the business. The Commission
should be satisfied that this group is fairly chosen because:
- Our Business is structured by both Region and Division. There is a
specific Area Manager in Victoria for CMT that reports to our General
Manager Operations business. This region/Division is responsible for it’s
[sic] own tendering and business development process and profit and
loss. The other Divisions such as Engineering and Subsurface Utilities
also have specific Area Managers. The Employees from each division do
not conduct the duties of other divisions and have very different skill sets
as detailed in the next point.
- CMT Technicians require a specific skill set that requires employees to
have a Certificate 3 or 4 in Testing, Laboratory Operations or similar and
can take a number of years to become fully proficient. Employees in
other divisions of our business do different tasks, and work in different
locations and conditions. This makes the CMT Technicians a distinct
operating group within our business.
- Each State’s operations report to an Area Manager and the types of
projects and conditions they work in is specific to each region.” (My
underlining).
[103] While it may be accepted the arrangements in relation to the Victorian Agreement
CMT technicians are not on all fours with the arrangement for the proposed agreement for
technicians in the Sydney metropolitan geographical area, the respondent’s own delineation in
the Form F17 regarding the “specific skill set”-related description is, however, relevant to the
fairly chosen criterion – particularly given the respondent’s evidence and submissions
concerning its fairly chosen group involving data entry employees and certain employees
more senior than the technicians. The evidence indicated that arrangements were in tow
concerning a replacement for the Victorian Agreement. I note that, on the Commission’s
public website, there is a decision ([2020] FWCA 5024, 17 September 2020) concerning the
[2020] FWC 5428
28
approval of a more recent iteration of the Victorian Agreement, namely, the Victorian
Construction Materials Testing Technicians Agreement 2020.
[104] The group proposed by the applicant is organisationally distinct, as shown in the
evidence of the respondent’s organisation chart. That is, the NSW Central Organisation Chart
shows the break-down of the different roles/classifications; and that chart also shows the
organisationally-discrete disaggregation of the different roles/classifications across two sites
of, say, CMT technicians and data entry employees.
[105] In my evaluation, the group proposed by the applicant in connection with the
application for a determination has been fairly chosen within the meaning of s.237(2)(c) and
s.237(3A) of the Act. There is, I note more broadly, nothing unusual about a single-enterprise
agreement which is specific to a particular occupation or which is classification-delineated.
[106] As to the final matter arising in s.237(2) of the Act, namely, whether it is reasonable in
all the circumstances to make the determination ((s.237(2)(d)), I am bound to note I have
certain reservations on the question of the applicant’s delay in lodging the application. That is,
I considered as being persuasive the submissions advanced by the respondent concerning the
applicant’s delay in lodging the application calling the petition into question and I am
concerned also about what might be regarded as the buttressing of the application by the post-
lodgement provision of additional signatures. Absent any other relevant considerations (such
as where employees are located in disparate geographical locations or where there are other
substantive logistical issues), I would think that the petitioning might reasonably be expected
to be conducted over a compressed period of time and that the application thereafter be lodged
promptly with the Commission - so that the petition has contemporaneousness about it.
However, in the end at the time of the hearing, both parties had corrected/finessed their
respective lists such that those respective lists were a contemporaneous, using my earlier
descriptor, “snapshot” as to majority support considered in the context of the-then relevant
employee numbers. Were it not for the particular way matters unfolded in this case, I would
have been inclined to conclude that the applicant’s delay militated against making the
determination, when considered in terms of reasonableness in all the circumstances.
[107] Although the evidence squarely indicated that there was not close custody and control
of the petition (due partly to the impacts of COVID-19, the evidence indicated), my
consideration of the respondent’s submissions about the fact of that lack of custody and
control lead me to conclude such matters were, respectfully, somewhat overplayed in the
respondent’s case. There is no suggestion here about falsified signatures or the like in the
petition. Here, there has been agreement as to a full mutual exchange of all the applicant’s
petition pages (and the applicant’s typed list) and all the respondent’s relevant lists of
employees’ names and classifications. There is nothing to suggest there was forgery of
signatures or concocted details in the petition, or anything similar. While there certainly was
dispute about some of the inclusions, if there was any reasonably-based suggestion of
apparent forgery, concocted details or similar, no doubt that would have been brought to my
attention given the respondent had a copy of all the petition pages.
[108] As to the matter of custody and control, I take notice more generally of the fact that
the everyday experience of workplace petitions is that they are typically and unceremoniously
passed around among a group of employees at a meeting, or passed from one employee to
another, or passed around by a particular individual or individuals to employees, including out
of work hours; or sometimes, for example, petitions are placed on noticeboards or left in
[2020] FWC 5428
29
communal spaces such as meal rooms so interested employees may sign. Employees have the
option to sign or not to sign a work-related petition - as has been clearly evidenced in this case
by the number of employees who chose to affix his or her details in the petition and, on the
other hand, those who chose not to sign.
[109] I am also not persuaded by the submissions for the respondent that there was some
lack of explanation to employees, or lack of translation for those employees whose first
language is not English. The fairly unremarkable and uncomplicated proposition in signing a
petition - any petition - is to indicate support for what is set out in the petition in question.
Here, the again fairly unremarkable and uncomplicated proposition of the petition was to lend
a signature to the expression of a “wish to commence bargaining immediately” with the
respondent in relation to a proposed enterprise agreement with the applicant nominated as the
representative in the bargaining. It is a self-evident proposition - not a complicated
proposition - that bargaining by or on behalf of employees is undertaken with a view to
seeking to obtain improved pay and/or conditions of employment.
[110] The respondent submitted there was no evidence to conclude that employees were not
put under duress to sign the petition. As to what was sought to be adduced into evidence in
the respondent’s case, I declined to accept into evidence material annexed to one witness’s
statement given the nature of it (for example, hearsay upon hearsay involving a range of
unidentified individuals). If the respondent wanted to adduce evidence of the type that was set
out in that material (the effect of which, at its relevant core concerning this application for a
majority support determination, was that some employees effectively had felt pressured to
sign the petition and/or had changed their minds about having signed the petition) any
evidence should properly have been advanced by some more regular or appropriate means. As
things stand, there is no evidence before me to suggest it would be unreasonable in all the
circumstances to make the determination for reasons alluded to in the respondent’s
submissions in such respects.
[111] In summary, I do not accept the respondent’s submissions which were to the effect
that the evidence of the petitioners’ signatures cannot be relied upon for reasons including
potential lack of understanding, potential duress and/or for want of provenance and lack of
control of the petition. I am satisfied that the means of a petition is appropriate in this case as
to the question of majority support. As noted earlier, my concerns about the delay have been
assuaged by the way matters unfolded with each party exchanging employee-related
information that was time-proximate in connection with the hearing.
[112] I should also note, finally, that swathes of the evidence and submissions just were not
relevant to the matter before me for determination (for example, alleged underpayments,
workplace health and safety-related matters, the circumstances broadly concerning a
particular former employee/witness, and allegations and denials about anti-union bias).
Putting aside matters of lack of relevance, there was also a regrettable tone to aspects of the
evidence and submissions in a case that turns, in the end, on the question of majority support.
Conclusion
[113] As I am satisfied as to the requirements of s.236 and s.237 of the Act, the
determination must be made. A determination will issue in conjunction with the issuing of
this decision and have a concurrent date.
[2020] FWC 5428
30
COMMISSIONER
Appearances:
T Slevin of counsel, for the applicant.
D Perry, solicitor, for the respondent.
Hearing details:
2020.
Sydney:
September 10 (in person); 28 (by telephone).
Printed by authority of the Commonwealth Government Printer
PR723479
