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Fair Work Act 2009
s.236—Majority support determination
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Kingspan Water & Energy Pty Limited
(B2020/653)
DEPUTY PRESIDENT DEAN SYDNEY, 24 MARCH 2021
Application for a majority support determination – application granted.
[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”
known as the Australian Manufacturing Workers’ Union (AMWU) made an application for a
majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act) with
respect to employees of Kingspan Water and Energy Pty Ltd (Kingspan) employed to perform
factory work at its Smithfield site.
[2] The AMWU seeks a determination that a majority of these employees, who are
presently covered by Manufacturing and Associated Industries and Occupations Award 2020
(the Award), want to bargain with Kingspan for a single-enterprise agreement.
[3] The relevant provisions of the Act are contained in ss.236 and 237 of the Act:
“236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed
single-enterprise agreement may apply to the FWC for a determination (a majority
support determination) that a majority of the employees who will be covered by
the agreement want to bargain with the employer, or employers, that will be
covered by the agreement.
(2) The application must specify:
(a) the employer, or employers, that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
[2021] FWC 1610
DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 1610
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237 When the FWC must make a majority support determination
Majority support determination
(1) The FWC must make a majority support determination in relation to a
proposed single-enterprise agreement if:
(a) an application for the determination has been made; and
(b) the FWC is satisfied of the matters set out in subsection (2) in relation to
the agreement.
Matters of which the FWC must be satisfied before making a majority support
determination
(2) The FWC must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time
determined by the FWC; and
(ii) who will be covered by the agreement;
want to bargain; and
(b) the employer, or employers, that will be covered by the agreement have
not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was
fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3) For the purposes of paragraph (2)(a), the FWC may work out whether a
majority of employees want to bargain using any method the FWC considers
appropriate.
(3A) If the agreement will not cover all of the employees of the employer or
employers covered by the agreement, the FWC must, in deciding for the
purposes of paragraph (2)(c) whether the group of employees who will be
covered was fairly chosen, take into account whether the group is
geographically, operationally or organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
[2021] FWC 1610
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Issue in dispute
[4] In accordance with Commission directions, the AMWU provided the Commission
with a copy of a petition that it said listed the employees who wished to bargain for an
enterprise agreement (the Petition), and Kingspan provided a list of the employees proposed
to be covered by an enterprise agreement.
[5] The AMWU noted that another member of the Commission who initially had carriage
of the application had compared the list of employees identified by Kingspan against the
signatories of the Petition and had formed a preliminary view that there was a majority of
employees who wanted to bargain for an enterprise agreement with Kingspan. It noted that the
use of a petition is a common method, for the purposes of s.237(3), used by the Commission
to work out whether a majority of employees want to bargain.
[6] The application was opposed by Kingspan because it contended the Petition was
defective. This contention was based on the fact that the Petition named the incorrect
employer, in that it contained the following preamble:
“I want to bargain for an enterprise agreement with Kingspan Environmental Australia.
I agree to this petition being provided to the Fair Work Commission to prove that
employees at the 3 Herbert Place, Smithfield site who have signed this petition want to
bargain for an enterprise agreement.
The names of the people who sign this petition will be kept confidential from
management at Kingspan Environmental Australia.”
[7] There is no dispute that Kingspan Environmental Australia:
a. is not the employer for the purposes of the application;
b. is not a business or trading name of Kingspan; and
c. is not the employer of employees of Kingspan.
[8] The issue then, is whether the Commission can be satisfied that a majority of
employees which will be covered by the proposed enterprise agreement and are employed by
the employer want to bargain (s237(2)(a)).
The case for the AMWU
[9] Evidence was given by Mr Nathan Everson and Mr Nathan Myers.
[10] Mr Everson is an organiser employed by the AMWU. He gave evidence that he
represents the interests of the employees employed by Kingspan located at 3 Herbert Place,
Smithfield, and had met with numerous factory workers (employees of Kingspan) during
2020 on around 10 occasions. During these meetings he had discussed what an enterprise
agreement was and the benefits of an enterprise agreement. As a result of those discussions, it
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was apparent to him that numerous factory workers wanted to bargain for an enterprise
agreement and accordingly he advised them that they could indicate their desire to bargain
with Kingspan by signing a petition.
[11] Mr Everson said he was sent a blank petition by a secretary employed by the AMWU,
which he printed. He subsequently attended Kingspan’s premises and met with factory
workers in the lunchroom. During that meeting there was a discussion around the outcome of
the elections for new health and safety representatives, and Mr Everson also informed the
factory workers that he had brought copies of a petition that they could sign for the purpose of
bargaining for an enterprise agreement if they elected to do so.
[12] Mr Everson gave evidence that prior to handing out the petition, he explained to the
factory workers that:
a. an enterprise agreement is an agreement made between an employer and its
employees that governs the terms and conditions of employment, including wages;
b. the purpose and overarching benefit of bargaining for an enterprise agreement is
that the factory workers’ terms and conditions of employment, such as wages, will
be better off overall when compared to the entitlements conferred by the Award;
c. the term ‘bargaining’ meant that the factory workers would need to discuss what
improved terms and conditions of employment they seek, and then put those
propositions to Kingspan and be willing to negotiate so that agreement could be
reached;
d. the factory workers were receiving less beneficial terms and conditions of
employment when compared to employees working in other businesses within the
same industry;
e. signing the petition was a step that the factory workers could take in order to
commence the bargaining process with Kingspan. Further, it would signify that the
factory workers want to bargain with Kingspan for an enterprise agreement, and
presented an opportunity for them to be recognised for the work they perform;
f. if a majority of the factory workers wanted to bargain, the AMWU would reach
out to Kingspan regarding whether Kingspan would consent to bargaining. If there
was no response from Kingspan, the AMWU could then submit the petition to the
Commission for a majority support determination; and
g. they were under no obligation to sign the petition and, if they elected to sign the
petition, their names and details would be kept confidential from Kingspan.
[13] Mr Everson said that after providing this explanation, he and Mr Myers handed copies
of the petition to a number of the factory workers to sign and pass on to others. He and Mr
Myers also answered additional questions the factory workers had.
[14] Once the relevant factory workers had signed their names, Mr Everson collected the
petition sheets.
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[15] Mr Myers is employed by Kingspan in the position of Factory Team Leader and is a
delegate for the AMWU. He gave evidence that the factory workers are involved in the
various stages of manufacturing water tanks. As to the meeting in which factory workers were
asked whether they wished to sign the Petition, his evidence was consistent with that provided
by Mr Everson.
[16] The AMWU submitted that the evidence of Mr Everson and Mr Myers established the
reliability of the Petition, and in particular that:
a. the relevant employees who wish to bargain and would be covered by the
proposed enterprise agreement are factory workers who are responsible for the
manufacturing of water tanks and are covered by the Manufacturing Award;
b. the purpose of the Petition was properly explained to the factory workers;
c. the Petition remained in the ‘custody and control’ of Mr Everson and Mr Myers
over the period that the signatures were collected;
d. the Petition contained legible text explaining in plain English the purpose of the
Petition and the manner in which it would be used; and
e. no coercion was exercised by the AMWU or its representatives in order to obtain
support to commence bargaining for an enterprise agreement.
[17] It submitted that the appropriate time for determining when employees want to bargain
is the date Kingspan provided its list of employees to the Commission. The AMWU noted it
was not contested that Kingspan had not yet agreed to bargain, or that the group was not fairly
chosen. It also contended that it was reasonable in all the circumstances to make the majority
support determination.
[18] In terms of whether the Petition was defective, the AMWU did not dispute that the
Petition incorrectly refers to ‘Kingspan Environmental Australia’. However, it contended that
this was “merely a typographical error by one of its support staff, and this error does not
prevent the Commission from making a majority support determination” for the following
reasons:
“36. Pursuant to s 236(2) of the FW Act, in its application to the Commission, the
AMWU was required to and did specify:
(a) the employer that will be covered by the Proposed Agreement, being
Kingspan Water & Energy Limited located at 3 Herbert Place,
Smithfield NSW 2164; and
(b) the employees who will be covered by the agreement, being the Factory
Workers, by providing the Commission with a copy of the Petition.
37. As is evident from the above, s 236(2)(a) only requires that the application
specify the employer or employers that will be covered by the proposed enterprise
agreement. Section 236(2)(a) does not require that the Petition, or any other form of
documentation for that matter, identify the correct legal name of the employing entity
with which employees wish to bargain.
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38. Further, s 237(2)(a) only requires that the Commission be satisfied that a
majority of employees who are employed by the employer (or employers) at a time
determined by the Commission and who will be covered by the proposed enterprise
agreement want to bargain. In this respect, by comparing the names of employees
contained in the Petition and the List of the Employees, the AMWU submits that the
Commission can be satisfied that the Factory Workers are employed by ‘Kingspan
Water & Energy Pty Limited’, will be covered by the proposed enterprise agreement,
and want to bargain.
39. The circumstances in this case can be contrasted to the facts in “Automotive,
Food, Metals, Engineering, Printing and Kindred Industries Union” known as the
Australian Manufacturing Workers' Union (AMWU) v Top Cut Food Industries Pty
Ltd T/A Top Cut Food Industries in which the Commission revoked a majority support
determination on the basis that the application wrongly identified the employing
entity, and the employer provided a list of employee names that were not employed by
the relevant employing entity.”
[19] For these reasons, the AMWU submitted that the Commission could be satisfied that
the requirements of s.237 had been met and accordingly a majority support determination
must be made.
The case for Kingspan
[20] Kingspan submitted that the Commission could not be satisfied that the majority of
employees want to bargain. It contended that the AWMU had chosen to use a defective
petition, which asked the signatory to the Petition to confirm they wish to bargain for an
enterprise agreement with Kingspan Environmental Australia, not the employee’s employer.
[21] Kingspan argued that this was not a mere technicality. It was fundamental to the
Commission’s jurisdiction to issue a majority support determination that it be satisfied that
the employees of the employer want to bargain with their employer. Instead of evidence to
that effect, the AMWU has put before the Commission a petition that does not name the
employer, but instead names an entity that does not exist.
[22] Kingspan highlighted that Mr Myers did not offer any evidence that he understood the
petition’s reference to ‘Kingspan Environmental Australia’ in fact meant Kingspan.
[23] Kingspan also contended that the failure of the petition to identify the employer was
not a technical error that could be overcome by way of s.586 of the Act, as the petition is part
of the evidentiary burden on the AMWU to meet the tests to satisfy the Commission under
s.237(2) and (3) and not amenable to retrospective amendment.
[2021] FWC 1610
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[24] Kingspan noted that the deficiency of the Petition was recognised well prior to the
hearing and the AMWU, having initially agreed to conduct the petition again, subsequently
changed its position and refused to do so. In this regard Kingspan submitted that: “the
Commission may well wonder at the forensic purpose behind the AMWU’s refusal to re-
conduct the petition naming the true employer. There could be no doubt that there was
sufficient time to conduct a new petition since the conciliation on 3 December 2020 and
before this matter was to be determined by the Commission”.
[25] The following submissions were also made by Kingspan:
“25. The AMWU asserts that it has correctly named the employer in its application
to the Commission and specified the employees of the Respondent by providing the
petition to the Commission, which is all it is required to do. The AMWU further
asserts that s.237(2)(a) “does not require that the Petition, or any other form of
documentation for that matter, identify the correct legal name of the employing entity
with which employees wish to bargain.” With respect, that submission is
misconceived.
26. The test before the Commission in s.237(2)(a) is that a majority of employees
who will be covered by the agreement and are employed by the employer want to
bargain. The test is not whether the AMWU has its paperwork in order. To determine
the test in s.237(2)(a) the Commission must have evidence, which can be by any
method according to s.237(3). The evidence the AMWU has chosen to provide, being
only the petition, does not meet the test. It merely demonstrates that some signatories
want to bargain with an entity named by the AMWU but which is not their employer.
To argue that the “correct legal name of the employing entity” does not need to be
identified could have absurd results.
27. For its deliberate forensic purposes and following careful consideration the
AMWU has chosen not to put evidence before the Commission that relevant
employees want to bargain with their employer.”
Consideration
[26] First, I note that there is no dispute and I am satisfied that:
a. the AMWU is a bargaining representative for employees who will be covered by
the proposed agreement and is capable of making the application for a majority
support determination (s.236);
b. Kingspan has not yet agreed to bargain for a proposed single-enterprise agreement
(s.237(2)(b)); and
c. the group of employees who will be covered by the proposed agreement is fairly
chosen (s.237(2)(c)).
[2021] FWC 1610
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[27] I accept the submissions of Kingspan that the incorrect naming of the employer in the
petition is not a ‘mere technicality’. To the extent the AMWU suggested that the correctly
naming the employer in a petition was unnecessary, that submission is rejected. In saying that,
there may be other evidence available for the Commission to be satisfied that a majority of
employees want to bargain with their employer.
[28] In the circumstances of this case, the evidence of Mr Everson and Mr Myers,
combined with the matching of the names on the Petition against the list of employees
provided by Kingspan, is sufficient to satisfy me that those who signed the petition intended
to indicate their desire to bargain with Kingspan.
[29] Mr Everson’s evidence demonstrates that he had a number of discussions with the
relevant employees prior to the signing of the Petition, in which he discussed the benefits and
process of enterprise bargaining. It is reasonable that he would have referred to the
employee’s employer as “Kingspan” rather than using the full company name, and that
employees would understand “Kingspan” in that context to be a reference to their employer.
The relevant employees were asked whether they wished to sign the petition after an
explanation had been provided by Mr Everson which included what the petition was for and
how it would be used. There is no basis for a finding that the Petition was not properly
explained to the employees, or that there was any coercion exercised by the AMWU in order
to obtain support to commence bargaining for an enterprise agreement.
[30] I note there had been a contention put by Kingspan in a conference prior to the hearing
that some employees who had signed the petition had not understood what they were signing
and did not wish to bargain. However no evidence was put before the Commission to support
this contention.
[31] Accordingly, I am satisfied and find that a majority of the employees of Kingspan who
will be covered by the proposed agreement want to bargain (s.237(2)(a)).
[32] There are no other grounds to support a finding that it would otherwise not be
reasonable to make the determination. (s.237(2)(d)).
[33] Finally, it is disappointing that the AMWU resiled from its initial agreement to resolve
the issue in dispute by simply asking the relevant employees to sign a petition that correctly
identified their employer. The AMWU’s ‘administrative error’ has consumed a significant
amount of the Commission’s time and resources. The application has been the subject of five
conferences between two members of the Commission, in addition to a hearing and the time
involved in writing this decision. All of this could have been avoided by either a basic level of
attention to detail in the preparation of the Petition, or by obtaining a new petition correctly
identifying the employer.
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[34] In conclusion, I am satisfied that all requirements of ss.236 and 237 of the Act have
been met. Accordingly, the Commission must make the majority support determination
sought by the AMWU. A Determination will issue with this decision.
DEPUTY PRESIDENT
Appearances:
J Martin for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU).
D Nelson for Kingspan Water & Energy Pty Limited.
Hearing details:
2021.
Sydney (By telephone):
February 8.
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PR728063
R OUMISSION THE FAIR THE SEALO
