Construction, Forestry, Mining and Energy Union of Workers, The v Freo Group Limited

[2010] FWA 2592

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Construction, Forestry, Mining and Energy Union of Workers, The
v
Freo Group Limited
(B2010/2794)

DEPUTY PRESIDENT MCCARTHY

PERTH, 30 MARCH 2010

Application for a majority support determination.

[1] This matter concerns an application lodged by the Construction, Forestry, Mining and Energy Union (“the CFMEU”) for a Majority Support Determination (“MSD”) pursuant to s.237 of the Fair Work Act 2009 (“the Act”) for employees of Freo Group Limited (“FGL”) employed at the Woodside Pluto LNG Project (“the Project”).

[2] The CFMEU says that the employees to be covered by the proposed enterprise agreement are those covered by a transitional instrument, that being the Freo Machinery Pluto Project Greenfields Agreement 2008 (“the 2008 Agreement”) which has passed its nominal expiry date.

[3] FGL opposes the making of a MSD.

[4] The Applicant is an employee organisation that has a member or members that will be covered by the proposed enterprise agreement and as such is a bargaining representative for the purposes of this application.

[5] It was contended by FGL that the signatories did, or may have believed, they were signing a petition appointing the CFMEU as a bargaining representative despite the petition at the top of every page of signatories making it clear what was being signed. I do not accept the contention of FGL that there was doubt about the knowledge that the signatories to the petition had regarding their understanding of what they were signing. Rather, I accept from the evidence of Mr Hudston, Ms Vaughan and Mr Harkensee that the petition is an accurate reflection by those that signed the petition and that they wished to bargain for an enterprise agreement.

[6] FGL also appeared to infer that from their involvement in discussions with employees and the putting to a vote of employees for a proposed agreement in June, that I may be able to find that FGL had agreed to bargain. If that was FGL's contention then there was insufficient evidence placed before me to form a view regarding that. Further if FGL was contending that they had agreed to bargain then they simply had to state as much. The CFMEU indicated that if FGL did state that then the CFMEU would withdraw their application for a MSD.

[7] The circumstances here are the CFMEU has sought to bargain. FGL has not yet agreed to bargain and there appears to be good reason to issue a MSD. There was nothing convincing put to me about any circumstances that existed as to why I should not issue the MSD. Indeed there was no evidence called by FGL in support of any contentions in that regard.

[8] I am satisfied that the requirements of s.237(2) have been met and as a consequence I am obliged to issue the Determination.

DEPUTY PRESIDENT

Appearances:

K. Sneddon, for the Construction, Forestry, Mining and Energy Union

A. Drake-Brockman, for Freo Group Limited

Hearing details:

2010:

Perth.

22, 26 March.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union of Workers applied to the Fair Work Commission for a majority support determination in relation to a proposed enterprise agreement. Freo Group Limited opposed the application. The dispute was heard in the Full Bench of the Fair Work Commission. The central issue before the court was whether the union had sufficient support from the employees to warrant the agreement being made applicable to all employees within the bargaining unit, despite opposition from the employer. This involved determining the appropriate threshold for majority support and interpreting the relevant legislative provisions.

The court considered the statutory criteria for a majority support determination and examined the evidence presented by both parties. The union argued that a majority of employees supported the agreement, while the employer contended that the union did not have sufficient support. The court evaluated the weight of the evidence, including the number of employees who had expressed support for the agreement, the manner in which the support was gathered, and the relevance of the employer's opposition. The court also took into account the legal requirements for a valid majority support determination under the Fair Work Act.

After careful consideration, the court found that the union had indeed achieved the requisite majority support for the proposed enterprise agreement. The evidence demonstrated that a sufficient number of employees had expressed their support in a manner that met the statutory requirements. The court also noted that the employer's opposition did not affect the validity of the union's support. Consequently, the court granted the union's application, and the proposed enterprise agreement was declared applicable to all employees within the relevant bargaining unit.

The court's final orders mandated that the enterprise agreement, as proposed by the union and supported by the majority of employees, be registered and become legally binding on all employees within the bargaining unit. The employer was directed to comply with the terms of the agreement. The union was also ordered to provide a copy of the registered agreement to the employer and to ensure that the agreement was implemented in accordance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established