United Workers' Union v Australia Pacific Electric Cables Pty Ltd T_A Apec

United Workers' Union v Australia Pacific Electric

Cables Pty Ltd T/A Apec [2022] FWC 1697 (1 July

2022)

Last Updated: 1 July 2022

Fair Work Act 2009

s.236—Majority support determination

United Workers’ Union

v

Australia Pacific Electric Cables Pty Ltd T/A Apec

(B2022/6)

COMMISSIONER SPENCER BRISBANE, 1 JULY 2022

Application by United Workers’ Union – whether proposed group was fairly chosen –

whether majority support – application dismissed

• [1] The United Workers’ Union (the Applicant/the Union) made an application pursuant

to s.236 of the Fair Work Act 2009 (the Act) for a Majority Support Determination

(MSD) to undertake bargaining for an agreement proposed to cover employees engaged

by Australia Pacific Electric Cables Pty Ltd T/A APEC (the Respondent) who perform

manufacturing and warehousing duties at the Respondent’s Crestmead premises, but

excluding employees performing supervisory, technical or administrative duties.

• [2] The Respondent is an electrical supplier company undertaking manufacturing and

distribution of power cables for the domestic, commercial, building, industrial and

mining industries. It has distribution centres in Sydney, Melbourne, and Perth. The head

office factory is based at Crestmead in Brisbane.

• [3] Directions were issued for the filing of material and submissions which included the

legislative criteria to be addressed.

• [4] The Respondent objected to the application on the basis of s.237(2)(c) and

s.237(3A): that the group of employees to be covered by the proposed Agreement was

not fairly chosen. The objection was on the basis that the Union’s proposed coverage

clause excluded production maintenance employees engaged at the Brisbane operation

and also excluded the warehouse (distribution) employees at the Respondent’s

operations in Melbourne and Perth.

• [5] The Respondent further objected on the basis of s.237(2)(a) that a majority of

employees did not want to bargain.

• [6] Section 236 of the Act relates to applications for majority support determinations 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

(b) the employees who will be covered by the agreement.”

• [7] Section 237 of the Act sets out the following:

“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.”

• [8] The Directions sent to the Parties required the Union to provide an unredacted copy

of the petition of those employees who had confirmed their support to bargain for the

Agreement. Further, the Directions required the Employer to provide a list of employees

in line with the coverage clause.

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

• [9] The Union submitted that its application for a majority support determination is

made pursuant to ss.236 and 237 of the Act, namely that the group of employees who

will be covered by the proposed agreement have been fairly chosen; and a majority of

employees who will be covered by the proposed agreement want to bargain. It was

submitted that this majority support is concluded having regard to the total number of

employees in the group; and it is reasonable in all circumstances for the Commission to

make the MSD sought, as well as having regard to the Respondent’s concerns about the

harshness of bargaining for an enterprise agreement which excludes interstate

employees.

Is the group of employees who will be covered by the agreement fairly chosen?

• [10] The Union noted that a group of employees who will be covered, or is fairly chosen,

is to be determined by reference to the factors in s.237(3A) of the Act, being the

geographical, operational and organisational distinctiveness of the employees in the

group.

• [11] The Union submitted that ‘distinctiveness’ is a relative, and not absolute, concept,

and necessarily requires a comparison between the employees who will be covered by

[1]

the proposed agreement and those who will not. Distinctiveness in the relevant sense

does not require that the group of employees be wholly unique within the Respondent’s

[2]

organisation, and that distinctiveness is not determinative on one, or all of the bases,

but is a relevant factor telling in favour of a finding that the group of employees is fairly

[3]

chosen. As such, the Union submitted that the group is fairly chosen if employees in

the group are identifiable through their geographical, operational and organisational

distinctions, which contrast them from the Production Maintenance employees and the

Interstate Employees who are not included in the group.

• [12] The Union argued that the group of employees who will be covered by the proposed

agreement are geographically distinct as the employees are exclusively engaged to

perform duties at the Respondent’s Crestmead site. The Crestmead site is the only

manufacturing or distribution facility operated by the Respondent in the State of

Queensland.

• [13] The Union further noted that the Respondent also operates distribution sites – at

which no manufacturing work is undertaken – in the states of Western Australia and

Victoria, at which the Interstate Employees are exclusively engaged to work. The Union

argued that there is little to no direct contact between the group of employees who will

be covered by the proposed agreement and the Interstate Employees, and there is no

evidence of any transfers of employees, on a usual basis, between the sites.

• [14] The Union submitted that the term ‘operational’ refers to an ‘industrial or

[4]

productive activity.’ The group of employees the Union seeks to be covered by the

proposed agreement includes the following employees engaged at the Crestmead site:

• manufacturing employees who operate machines to produce cables from raw material;

and

• warehousing/distribution employees who receive, unload, store, pack, and cut cables to

order, and load and dispatch raw materials and finished products.

• [15] The Union explicitly sought to exclude employees performing supervisory, technical

or administrative duties, including Production Maintenance employees, from the

proposed agreement.

• [16] The Union submitted that the industrial or production activities in which the

manufacturing and warehousing/distribution employees at Crestmead sites are engaged,

are substantively different from that of the Production Maintenance employees. The

Union advised that the industrial and productive activity with which the manufacturing

employees at the Crestmead site are concerned, is the operation of machinery to produce

cables of varying specifications. By contrast, the Production Maintenance employees

exclusively undertake the industrial or productive activity of installing, maintaining and

repairing machinery.

• [17] The Union contended that the decision of the Full Bench in QGC Pty Ltd v The

[5]

Australian Workers’ Union, in relation to operational distinctiveness, can be

contrasted with the facts of this matter in the sense that the performance of maintenance

work on machinery used in production does not involve a mere difference in task, skill or

function, but rather a completely different productive activity to manufacturing work.

The Union further submitted that the operational ‘closeness’ or proximity asserted by

the Respondent, between the manufacturing and the Production Maintenance

employees at the Crestmead site, should not be conflated with the integration of

industrial or productive activity, required to find a determination of indistinctiveness.

Regardless of any purported significance of the duties of the Production Maintenance

[6]

employees to the smooth operation of manufacturing activities at the Crestmead site, the

Union submitted that the proposed group is operationally distinct from them.

Organisationally distinct

• [18] The Union asserted that the term ‘organisational’ refers to the manner in which the

[7]

Company has organised its enterprise in order to conduct its operations. The

performance of duties by a group of employees, which are qualitatively different to the

duties performed by other employees, is a factor which could weigh in favour of a finding

[8]

of organisational distinctiveness.

• [19] The duties performed by employees in the Union’s proposed group are, in the

Union’s view, qualitatively different from those performed by supervisory,

administrative or technical employees. Specifically, the work performed by employees in

the proposed group involves the application of physical labour to manipulate product –

be it the production of cables from raw materials, or the movement of raw materials and

finished product – as contrasted with the duties of administrative or managerial

employees who apply mental labour to produce and maintain records and to coordinate

and oversee the work of other employees, respectively.

• [20] The Union further submitted that the proposed group is organisationally distinct

from the Interstate Employees who may perform similar duties to those of the

warehouse/distribution employees at the Crestmead site but do so within a different

organisational context. For example, without the interaction with production, as is

required at the Crestmead site. Additionally, the Union argued that there is no evidence

to suggest that the Interstate Employees share an integrated or common reporting

structure in an immediate sense, which the Union submitted is another factor telling in

favour of a finding of organisational distinctiveness between the

warehousing/distribution employees at the Crestmead site and the Interstate

Employees.

No requirement that all bases of distinctiveness be established

• [21] The Union submitted that the Full Bench’s observation in Cimeco v Construction,

[9]

Forestry, Mining and Energy Union should be applied to support a finding that

distinctiveness on one or more, but not all, bases does not preclude the group being

[10]

fairly chosen.

The Union argued that such an approach would also be consistent with

[11]

the decision in National Union of Workers v Cotton On Group Services Pty Ltd,

in

which it was held that:

“The legislation specifically provides that a group which is geographically distinct but not

organisationally or operationally distinct could be fairly chosen. The legislation does not say

that the Fair Work Commission must take into account whether the group is geographically,

operationally and organisationally distinct. If it is argued that the group is fairly chosen

because it is geographically distinct that is not an argument based upon an extraneous or

[12]

illegitimate characteristic.”

• [22] The Union therefore submitted that the mere fact that the Production Maintenance

employees are not geographically distinct from the proposed group does not preclude a

determination that the group is ‘fairly chosen,’ as they are operationally distinct from the

proposed group. Further, any operational similarities between the

warehousing/distribution employees at the Crestmead site with the Interstate

Employees are similarly, as argued by the Union, not determinative, and the proposed

group is geographically and operationally distinct from the Interstate Employees. The

Union advised this is supported in Cotton On, in which it held that:

“a group of employees within an enterprise will rarely be distinct in an absolute sense. It will

[13]

often be a matter of degree.”

• [23] Additionally, the Union submitted that the fact that a different grouping of

employees who will be covered by the proposed agreement could also be fair is not a

relevant consideration in determining whether the group of employees in this matter are

fairly chosen. They state that this accords with the Full Bench decision in United

Firefighters’ Union Australia v Metropolitan Fire & Emergency Services Board,

[14]

in

which it was held, in the context of an application for a scope order, that there is no

requirement that the group chosen be any more or any less fair than any other potential

grouping: it is sufficient that the proposed group is fairly chosen.

• [24] The Union noted that the assessment of whether the group was fairly chosen does

[15]

not involve the same consideration as those involved in the scope order application,

as it is a matter which can form the subject of negotiations between parties to the

agreement and is ‘typically...chosen at or shortly after the commencement of

[16]

bargaining.’

The Union submitted that the Commission can be satisfied that the

proposed group is fairly chosen, even if it is not the Respondent’s preferred grouping.

• [25] For the sake of completeness, the Union further submitted that the Respondent’s

assertion that the shared coverage of the proposed group and the Production

Maintenance employees and the Interstate Employees under the Manufacturing Award

is indicative of a finding that the group is not fairly chosen for failure to include the latter

groupings, should be rejected for want of any legal basis. The Union argued that the

Commission should find that the group who will be covered by the proposed agreement

is fairly chosen being geographically, operationally and organisationally distinct from

the excluded employees.

Do a majority of employees want to bargain?

• [26] The Union submitted that this is a matter well established in the law that the

Commission is able to accept a signed employee petition as evidence of the views of the

[17]

relevant employees.

The Union argued that the integrity and reliability of the petition

cannot be called into question, having regard to the conduct of Mr Quan Gia Chuc, UWU

Organisation in collecting the signatures, including:

• the reasonable attempts made by Mr Chuc to inform employees who signed the petition

about enterprise bargaining and what it entails;

• the efforts made by Mr Chuck to inform employees of the significance of signing the

petition; and

• that Mr Chuck personally collected the signatures on the petition, whilst retaining

possession of the petition at all times.

• [27] The petition, which was printed on the Union’s letter head, was entitled ‘Petition in

support of bargaining for an enterprise agreement’ and stated:

“We the undersigned employees of Australia Pacific Electric Cables Pty Ltd (the ‘Company’),

want to bargain for an Enterprise Agreement with the Company, covering employees who are

engaged to perform manufacturing and warehousing duties at the Company’s premises at 89

Platinum Street, Crestmead 4132 QLD, but excluding employees performing supervisory,

technical or administrative duties.”

• [28] The Union submitted that the simplicity and clarity of the wording on the petition,

combined with the evidence of Mr Chuc regarding his efforts in explaining the purpose

of signing the petition to participating employees, further demonstrates the reliability of

the petition. At the time that Mr Chuc gathered the signatures on the petition on 7 and

13 December 2021, the Union was aware that the Respondent employed 23 employees

who would be covered by the proposed agreement. The completed petition provided to

the Commission contains 14 signatures, which the Union advised demonstrates a clear

majority of 61%.

• [29] The Union noted that the Respondent provided an affidavit from an employee who

signed the Union’s petition, seeking to withdraw their support for bargaining. The Union

further noted that at the Crestmead site, the Respondent stated that the total number of

employees is 26 employees, 16 being production employees and 10 being

warehouse/distribution employees. The Union submitted that the total number of

employees who are currently employed by the Respondent to perform manufacturing

and warehousing/distribution duties at the Crestmead site and would therefore be

appropriately characterised as forming part of the proposed group is 23 employees,

which consists of 16 production employees and 7 warehousing/distribution employees.

• [30] The Union therefore submitted that accounting for the withdrawal of support for

bargaining by one employee who signed the petition, the Commission should find that

there exists a majority of 57% (13 out of 23) in support of bargaining for the proposed

agreement.

• [31] The Union asserted that the cohort of employees from which the question of

majority is to be determined should be those employees employed by the Respondent to

perform the duties of those employees in the proposed group, on the date on which a

decision on this matter is issued.

Reasonable in all circumstances

• [32] The Union contended that the Respondent’s claim for “harshness” arising from the

majority determination being made, on the basis that it would require the Respondent to

negotiate multiple agreements covering small groups of workers, should be rejected. The

issue of whether or not there are multiple agreements – one for the proposed group and

another covering the Interstate Employees – is a matter which is more appropriately

dealt with in bargaining, or by pursuing other applications. The Union argued that it is

not inevitable that there would be two or more separate agreements. The Union

therefore submitted that it is reasonable in all the circumstances for the Commission to

make an MSD.

Witness Statement of Mr Chuc

• [33] In Mr Chuc’s affidavit, he advised he had visited the Crestmead premises on 2

December 2021 to hold discussions with the production and warehousing employees

under s.484 of the Act, about enterprise bargaining. During this site visit, he said he

informed employees that an enterprise agreement is a collective, legally binding contract

between workers and the Employer, which affords workers the workers the ability to

collectively negotiate improvements to their wages and conditions. Mr Chuc said that he

also explained to the employees that in order to initiate bargaining, they could sign a

petition to demonstrate their support for bargaining to their employer.

• [34] Mr Chuc recalled that the employee whom he spoke all demonstrated a fairly

sophisticated understanding of the bargaining process, on account of their previous

attempt to initiate bargaining with their employer. Mr Chuc further recalled that the

employees requested that he return to the site with a petition for them to sign. Mr Chuc

advised that he visited the site again on 7 December 2021, where he took a copy of a

majority support petition with him, for interested workers to sign. On this visit, he

explained the purpose of the petition to the employees again and that the petition was in

support of bargaining for an enterprise agreement which could cover the production and

warehousing employees on site. Mr Chuc stated that he informed the employees that

only those who wished to bargain for such an enterprise agreement with the Employer

needed to sign the petition.

• [35] Mr Chuc explained that he collected the signatures by walking around the

lunchroom and offered a clipboard with the petition and some pens to workers, whilst

reiterating individually that the purpose of signing the petition was to indicate their

support for bargaining an enterprise agreement with their Employer. Mr Chuc stressed

to all workers that they should only sign the petition if they wished to indicate support

for bargaining, because there was a good chance, given the Employer’s previous refusals

to bargain, that they would end before the Commission to seek a majority support

determination, at which point the reliability of the signatures could be called into

question.

• [36] Mr Chuc further stated in his affidavit that he passed the clipboard to workers and

stepped back to allow them the space to consider the petition and whether they wished

to sign but made sure that he kept an eye on who was in possession of the petition at all

times. He recalled that each employee who signed the petition either promptly passed it

on to the person next to them, or to Mr Chuc, so he could pass it on to someone else.

Once Mr Chuc collected the signatures, he took the clipboard with the petition non it

with him, when he left the site. Mr Chuc said he visited the site again on 13 December

2021 to speak to employees on the afternoon shift, as he had only spoken to day shift

workers during his visit on 7 December 2021. He said he repeated exactly the same

process as outlined above with the afternoon shift, when he collected their signatures.

• [37] In Mr Chuc’s second witness statement, he recalled making enquiries about the

total number of employees on the site in the production area and the warehouse during

his visits. The employees Mr Chuc spoke to informed him there were 15 employees in the

production area and around seven employees in the warehouse. Mr Chuc clarified the

total number of employees with the production workers again, when he visited the site

on 7 December 2021, to collect signatures. All the employees that were present and

signed the petition confirmed there were 22 employees in total, across production and

the warehouse. When Mr Chuc visited again on 13 December 2021, he once again

confirmed with them that there were 22 employees in total on site.

• [38] Mr Chuc called that at this point, one employee commented that the Union should

make sure that the warehouse supervisor was not included in the list of employees,

saying something along the lines of, ‘he’ – meaning the warehouse supervisor – ‘is not

out on the floor doing the same job as the other guys.’ Mr Chuc understood this to mean

that he was not performing the storing, packing, or dispatching duties done by the

warehouse employees. Mr Chuc recalled that this employee mentioned the warehouse

supervisor’s name was Darren but did not provide a surname.

• [39] Mr Chuc said that the issue of who should be excluded from the employer’s role

came up because it had been a contested issued in a previous application for MSD. When

Mr Chuc spoke to Mr Imran Gill, the Union Delegate on site, sometime in early January

2022, Mr Gill mentioned that the Company had engaged a new employee on site in the

production area, taking the total number of employees in production up to 16. He

mentioned during this same conversation that no new employees had been engaged in

the warehouse.

• [40] The total number of employees in the production area and in the warehouse at

Crestmead site, according to Mr Chuc, is 23 – 16 in the production area and 7 in the

warehouse. Mr Chuc stated that any other employees in the warehouse who the company

is seeking to include perform substantively different roles – either managerial or

administrative – which is consistent with the information and feedback he has

consistently received from the employees with whom he spoke on site, including the

employees who signed the union petition.

Witness Statement of Mr Imran Gill

• [41] Mr Gill, a Leading Hand at the Respondent’s Crestmead site as well as the Union

Delegate, advised that he, along with all other production employees on site, works a 12

hour rotating shift. Employees in the warehouse work fixed 8 hour shifts. Given the

relatively small size of the operation, and the fact that Mr Gill works a rotating shift

pattern, Mr Gill advised he is familiar with everyone who works on the site, including the

employees in the warehouse.

• [42] Mr Gill disagreed with the Respondent’s evidence that there are currently 26

employees in total, who perform manufacturing and warehousing/distribution duties on

site, excluding those employees in administrative or supervisory roles. Rather, he stated

there are only 23 employees who fit such a description. The discrepancy in the number

of manufacturing and warehousing workers currently employed on site, and the number

claimed by the Respondent, is because the Respondent incorrectly characterised 3

employees in warehouse as warehousing/distribution employees when they are actually

in administrative and supervisory positions.

• [43] Mr Gill advised that there are only six or seven employees currently in the

warehouse performing manual warehousing/distribution duties such as receiving,

storing, packing, retrieving, cutting products to order, dispatching, loading, and

unloading trucks. Mr Gill is of the view that the Respondent included the following

individuals to be part of the warehousing group because they work in or in connection

with warehousing employees:

• Mr Darren Van Ultregt, who is the warehouse supervisor;

• Ms Samantha Green, who is a dispatch clerk; and

• Mr Simon Terry, who is a stock controller.

• [44] Mr Gill does know whether the above job descriptions are the employees’ formal

job titles, but it is an accurate description of their roles and their day-to-day duties, from

what he has observed and knows from his conversations with other employees on site.

The warehouse supervisor does not perform any storing, packing, retrieving or

dispatching goods as part of his day-to-day duties. His role, broadly, is to oversee the

warehouse operations and to supervise warehousing employees in their duties. Mr Gill

stated that the warehouse supervisor does hold a forklift license and may occasionally

fill-in if someone is absent, or lend a hand when things get particularly busy, but his

regular duties do not involve physical tasks involved in storing and packing goods in the

warehouse.

• [45] In relation to the ‘dispatch clerk,’ Mr Gill stated that this role performs largely

clerical and administrative duties in the office and also does not perform any storing or

packing duties in the warehouse. The dispatch clerk is more of a ‘white collar’ role which

happens to interact with the work of warehousing employees, but is not the same. He

stated that the dispatch clerk is responsible for the back-end paperwork involved in

warehousing/distribution.

• [46] According to Mr Gill, the stock controller is responsible for maintaining and

allocating inventory. In this regard, the stock controller is what Mr Gill described as

somewhat ‘white collar’ and managerial, and predominantly involves the creation and

maintenance of records on the system.

• [47] As the site Union Delegate, Mr Gill advised he had many discussions with other

employees on site, and those who had signed a petition in support of bargaining want to

negotiate an enterprise agreement which covers production and warehousing employees

at the Crestmead site. He stated that they do not want managerial, administrative or

technical employees like the maintenance employees included in the agreement, because

their work is very different to theirs in production and warehousing, and their industrial

concerns are therefore also different.

• [48] In Mr Gill’s second witness statement, he noted that the formal titles of Mr Perry

and Ms Green are, respectively, Senior Logistics Coordinator and Distribution

Coordinator. Mr Gill stated that he googled both Mr Perry and Ms Green’s job titles to

establish the accuracy of this information and found that Mr Perry is listed as a Logistics

Controller on the following websites, which are self described as business contact

information aggregators: Apollo.io; and RocketReach.

• [49] To the best of Mr Gill’s understanding, based on what he has directly witnessed at

the Crestmead site, he disagreed with Mr Mather’s statement that Mr Perry’s role is

described as including the performance of cutting, picking, packing, unloading

containers when required, loading trucks when required, and operating a forklift when

required. Mr Gill stated that in his assessment this is not an accurate description of the

actual work undertaken by Mr Perry on a day-to-day basis.

• [50] Mr Perry’s substantive role, as a Logistics Controller, is predominantly concerned

with maintaining and allocating inventory. When cable products are finished, in the

production area, Mr Perry and the Quality Control/Assurance team inspect the products

and Mr Perry then uploads the product onto the internal sales record and allocates the

product to a warehouse – either the Crestmead warehouse, or to one interstate,

depending on where the order is from. Mr Perry also arranges for the product to either

be picked, if it is being stored in the Crestmead warehouse, or dispatched to another

warehouse – effectively, he allocates the stock and arranges the logistics of product

reaching customers.

• [51] Mr Gill stated that there is no question that Mr Perry’s work is very important to

the distribution process. However, the question here is whether he is a

warehouse/distribution employee or whether his work is more administrative or

supervisory in nature. Based on Mr Gill’s observation, Mr Perry’s duties are

predominantly concerned with directing the work of the warehousing/distribution

employees at the Crestmead site. He allocates the stock, and the warehouse employees

do the physical work of picking, packing and dispatching the stock. When it was decided

to initiate bargaining for an enterprise agreement, the group of employees collectively

decided that they did not want the employees in administrative or supervisory roles

included because their concerns, as workers who are directed to perform work by other

people in the business, were different from the concerns of those who have more of a

supervisory/administrative role.

• [52] Mr Gill believed that Mr Perry’s role is better described as involving a combination

of supervisory and administrative duties, rather than predominantly being about the

physical labour of picking and packing or loading/unloading trucks. He had previously

described Mr Perry’s role as “white collar” and “managerial” because his job involves the

exercise of a level of discretion and decision making that the jobs in production or that

doing the physical warehousing task at the Crestmead site, do not.

• [53] Mr Gill did accept that Mr Perry may work in the warehouse and perform some

picking, packing, cutting or loading/unloading work as required, but he considered this

flexibility does not mean his role is the same as that of a warehousing/distribution

employee. Mr Darren van Uitregt, the Warehouse Supervisor, is also able to perform

some of the physical tasks of the warehousing/distribution employees as required, but it

is not in dispute whether his role is actually supervisory or of the manual labour kind as

involved in the substantive picking, packing, cutting and loading/unloading role. Mr Gill

believed this is the same thing: there is some level of overlap and Mr Perry’s role is very

important to the distribution process, but Mr Perry’s role is not the same as that of the

warehousing/distribution employees where they primarily perform manual tasks.

• [54] Mr Gill, on the other hand, largely agreed with the sentiment that Ms Green is

largely described as a ‘systems employee.’ Mr Gill witnessed, and understood from his

previous discussions with other employees, that Ms Green’s role is almost exclusively

concerned with managing the back end, administration side of distribution, including

completing paperwork and documentation and updating records on a computer system.

Mr Gill advised that he has never witnessed Ms Green performing any manual tasks of

picking, packing, dispatching or loading/unloading trucks.

• [55] Whilst acknowledging that Ms Green’s role is not administrative in the same sense

that the payroll officers or accounting employees’ roles are, he stated that her role is still

fundamentally administrative/clerical in nature. She just happens to be located in the

warehouse for ease of access as her role requires her to communicate with the

warehousing/distribution employees on a day-to-day basis, as part of the coordinator or

overseeing of orders and shipping.

• [56] In relation to Mr Mather’s point about the significance of Ms Green and Mr Perry

requiring to wear hi-vis closing, Mr Gill stated that this is simply a safety requirement

for anyone who might need to walk across either the production or the warehouse floor.

If a visitor were to walk through the plant, they would also be required to wear hi-vis

clothing. Ms Green and Mr Perry do not wear hi-vis clothing because they perform the

same tasks as the warehousing/distribution employees, but rather because they

routinely walk through the warehouse floor to interact with warehousing/distribution

employees as part of their respective administration and supervisory duties.

• [57] The Union submitted that Mr Perry and Ms Green do not fall within the group as

described in the Union’s petition, which has been used to demonstrate majority support

for bargaining, by virtue of their roles, respectively, being substantively

supervisory/managerial and administrative/clerical in nature. The Union relied on the

statement of Mr Gill, regarding the official job titles of Mr Perry and Ms Green, which

are respectively ‘Logistics Controller’ and ‘Distribution Coordinator,’ and their job

duties.

• [58] The Union argued that neither Mr Perry nor Ms Green’s duties can be said to be

substantively or primarily concerned with the physical labour of picking, packing,

dispatching and receiving goods, or loading and unloading trucks. Mr Perry’s primary

duties are the allocation of inventory and the direction of warehousing/distribution

employees performing the manual labour of moving goods to that end. In this sense, the

Union’s argued that Mr Perry’s duties are ‘supervisory’ as the word is commonly

understood and defined in the Oxford Dictionary: as ‘having or relating to the role of

observing and directing an activity or a person,’ as they involve a level of responsibility

and the exercise of discretion absent from the manual duties of

warehousing/distribution employees performing picking, packing, loading and

unloading duties.

• [59] The Union submitted that Ms Green’s duties, on the other hand, are concerned

with the coordination of the distribution process through the use of systems are, in the

Union’s view, primarily administrative or clerical in nature. She is responsible for

completing, updating and maintaining records and does not perform any of the manual

tasks involved in picking, packing, dispatching, or loading and unloading trucks. The

Unions therefore submitted that since neither Mr Perry nor Ms Green fit within the

description of the group chosen by the Union, they should not be included in the

Respondent’s roll of employees for the group.

• [60] The Union further submitted that the Respondent’s contention that excluding Mr

Perry or Ms Green from the group would mean that the group is not fairly chosen within

the meaning of s.237(3A) of the Act should also be rejected, based on the distinctiveness

of the type of duties performed by them.

• [61] The Union argued that the relevant consideration here is not whether Mr Perry or

Ms Green’s duties are ‘integral’ to, or integrated with, the duties of the

warehousing/distribution employees involved in the physical labour of picking, packing,

loading and unloading trucks, as contended by the Respondent. Rather, the Union

submitted that the relevant consideration is whether they perform the same qualitative

[18]

duties as those of the warehousing/distribution employees in the group.

• [62] The Union asserted that this situation may be contrasted from that of the

[19]

circumstances in QGC v Australian Workers’ Union,

upon which the Respondent

appears to rely as authority for the proposition that where a group of employees work

‘side by side’ with other employees, they cannot be said to be operationally or

organisationally distinct from each other. However, the circumstances in QGC were such

that the two groups of employees in question performed very similar work, namely to

[20]

‘safely and efficiently operate and maintain employer’s infrastructure.’

• [63] By contrast, the operational and organisational distinctiveness of the

warehousing/distribution employees in the group from Mr Perry and Ms Green is not a

matter of a mere difference in ‘role, task or function,’ but rather a more substantive and

qualitative difference in duties and the productive activity undertaken. The Union

submitted that the industrial or productive activity undertaken by the

warehousing/distribution employees in the group is that of manual labour required to

move goods, whereas the productive activities undertaken by Mr Perry and Ms Green are

respectively, supervisory and administrative in nature, each of which carries a distinct

economic and organisational value from the other.

• [64] The Union stated that as the qualitative duties of Mr Perry and Ms Green (also

referred to as Simon and Sam) are distinct from that of the warehousing/distribution

employees in the group, the Union submitted that the Respondent’s contention that the

exclusion of Mr Perry and Ms Green would be ‘analogous to removing coiling or printing

from the manufacturing process,’ should be rejected. Employees operating the

coiling/winding machine, or the printing machine are engaged in the same qualitative

duties and industrial or productive process as other production employees, all of whom

operate machines to produce cable. Mr Perry and Ms Green’s duties, however, are

concerned with the allocation of inventory and the maintenance of internal distribution

administrative systems, which may facilitate and be integral to the performance of

warehousing/distribution work, but are not the same as the physical work of picking,

packing and retrieving goods, or loading and unloading trucks.

The Production Maintenance employees

• [65] The Union submitted that the Respondent’s contention that the Production

Maintenance employees are “operationally” indistinct from the proposed group should

also be rejected on the same basis as Mr Perry and Ms Green. The Union argued that the

production employees are primarily engaged in the productive or industrial activity of

operating machinery to manufacture cable. The Production Maintenance employees,

however, are engaged in the productive and industrial activity of maintaining and

repairing the machinery involved in the manufacturing process.

• [66] The Union acknowledged that there is necessarily a degree of overlap in work

activities between production employees and the Production Maintenance employees

but submitted that any such overlap or similarity in duties do not detract from the

overall distinctiveness in the discrete duties and activities between them. The Union

asserted that the distinctiveness is best illustrated by the difference in the education and

skills required of the Production Maintenance employees, who are required to be trade

qualified in order to maintain or repair machinery, which is not a requirement of

production operators on site.

• [67] The Union further submitted that the Production Maintenance employees are

‘organisationally’ distinct from the production employees, as evidenced by the different

shift patterns worked by these groups – where the production employees work rotating

12 hour shifts, the Production Maintenance employees work an 8 hour shift only. The

fact that the production employees work the duration of an entire shift without the

presence or involvement of the Production Maintenance employees are not so fully

integrated into the manufacturing duties of the production employees as to make the

performance of manufacturing duties impossible without the involvement of the

Production Maintenance employees.

• [68] Therefore, while the Union acknowledged that the production employees in the

group could not operate machinery to manufacture cable if the machinery were not

properly maintained and repaired, the Union submitted that maintenance and

production are still operationally and organisationally distinct activities, without the

level of integration present in QGC.

• [69] In addition to its previous submissions, the Union argued that the fact that

Melbourne and Perth warehouses service different geographic regions, and the lack of

evidence from the Respondent establishing direct, day-to-day contact between

warehousing/distribution employees at all three sites, supports a finding of operational

and organisational distinctiveness.

• [70] The Union submitted that the weight of legal authority supports its submissions

that there may be more than one way of fairly choosing the group of employees to be

[21]

covered by a proposed agreement.

As was held in Cotton On, unlike the consideration

required to be had by the Commission in a scope order application, to whether one way

of choosing the group to be covered by a proposed agreement is fairer than an

alternative way proposed by another party, there is no such requirement that the

Commission determine what would be the fairer or the fairest group in a majority

[22]

support determination.

• [71] The Union asserted that the Commission need only consider, in making an MSD,

whether the group chosen by the Union has been fairly chosen by reference to the

criteria in s.237(3A) of the Act. Therefore, the Union submitted that no adverse

inferences as to the fairness of the group chosen by the Union in this application are

available to be made by comparing the group with a different group chosen by the Union

in any previous application. There is no legal basis to found the Respondent’s

contentions that any prior inclusion by the Union of the Production Maintenance

employees in a group, which otherwise resembles the group chosen in this application,

indicates that this group is not fairly chosen within the meaning of s.237(3A) of the Act.

• [72] The Union submitted, in conclusion, that the total number of employees in the

group chosen by the Union is 24, of which a clear majority exists of 54%.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

• [73] The Respondent contended that a majority of employees at its business do not want

to bargain for an enterprise agreement. It further submitted that the Union has not

satisfied each of the requirements for the making of a majority support determination

and, further, the Respondent says that the Commission should not make such a

determination.

• [74] In Mr Remus Mai’s affidavit, he provided evidence, as the Manufacturing Manager

of the Respondent’s enterprise, that the Respondent engages a total of 34 employees in

which the Respondent is of the view should be included in the group of employees to be

covered by the proposed agreement. The 34 employees consist of 16 production

employees at Crestmead; 10 distribution employees at Crestmead; 3 production

maintenance employees at Crestmead; 3 distribution employees at Perth; and 2

distribution employees at Melbourne.

• [75] In addition to the above, Mr Mai advised in a separate affidavit that a production

employee who had signed the petition of support for a proposed agreement wishes to

withdraw such support. Mr Mai advised that on the basis of the withdrawal, the petition

of 14 names in support should be reduced to 13 names.

Group of employees not fairly chosen

• [76] The Respondent submitted that the group chosen by the Union has not been fairly

chosen and that it should comprise both the production employees engaged at the

Brisbane operation, and the warehouse (distribution) employees at the Respondent’s

premises/operations in Melbourne and Perth. The Respondent advised that if the group

should comprise all production and distribution (including production maintenance)

employees, then there is no majority of employees supporting bargaining (14 of 34

employees).

• [77] The Respondent advised that if it is unsuccessful in its position that its Melbourne

and Perth distribution employees should be included in the group, and is successful that

the production maintenance employees be included, then there would still be no

majority having 14 out of 29 employees.

• [78] The Respondent noted that in the Union’s materials, the Union stated that there

are 23 employees in its chosen group and there are 14 signatures stated to be in support

bargaining. Placing to one side the production maintenance employees, there are 26

production and distribution employees. The Respondent maintained that production

maintenance employees are key workers in the production of product at its premises and

should be included in the group (together with the Melbourne and Perth distribution

employees in any event).

• [79] For clarity, the Respondent said that at the time of filing the application by the

Union, there were 28 employees in production and distribution (including production

maintenance). An additional, new employee commenced on 10 January 2022, taking the

number of employees at the present time to 29.

• [80] The Respondent further submitted that the group that is said to be chosen by the

Union has not been fairly chosen for at least the following reasons:

• In the Union’s previous application (B2021/987) the Union sought to have coverage of

the production, distribution and associated production maintenance employees (all

covered by the same Award) and all closely connected to the production and distribution

process. For some reason, the Union has now, in effect, dropped out the production

maintenance employees. The Respondent argued that clearly the Union was previously

in its last application in support of these production maintenance employees being

included as part of the then proposed group and part of production. The Union is now

attempting to circumvent the failure in numbers from its last application and has

‘dropped’ these production maintenance employees.

• As in the B2021/987 application, the Respondent advised it takes the position that the

warehouse/distribution employees (closely connected to production) in its Melbourne

and Perth warehouses should be included as part of the group.

• [81] The Respondent noted that the petition presented by the Union contains 14

signatures. It was also the case that the Respondent has provided details of one

employee withdrawing consent to their inclusion within the petition and no longer

supports bargaining. (There was some further movement referred to in the figures of

both parties.)

• [82] The issue of a total employee count has then become relevant at this stage of the

application process, given the Union has put forward that there are, taking into account

the withdrawal, 13 employees who continue to consent to being included within the

petition. The Union further stated that it believes that in the employee records produced

by the Respondent, there must have been three names included that should not have

been included, being what are said to be employees, namely Mr Van Uitregt

(Supervisor), Ms Green (described as the ‘despatch clerk’); and Mr Terry (described as

the stock controller).

• [83] The Respondent noted that in its confidential employee record document, the

supervisor roles were clearly and separately identified on the names provided. Those

names were provided so as to ensure transparency in the Commission’s check of names

on the petition and were not included within the count of 26. The Respondent advised

that the total count is 28 with the two supervisor positions not to be counted, making a

total of 26.

• [84] In particular, two named individuals (Sam and Simon) are included in the 26-

employee count by the Respondent. The Respondent understood that it is the Union’s

view that Sam and Simon conduct work that is clerical, administrative and white collar.

In particular, that Sam and Simon do not perform tasks that is said to be ‘manual tasks.’

The Respondent noted the reference within Mr Gill’s statement to the work of employees

performing manual warehousing/distribution duties such as receiving, storing, packing,

retrieving, cutting products to order, dispatching, loading and unloading trucks. The

Respondent advised that it appears to be the case that the application as filed sought to

exclude what was said to be ‘administrative employees,’ however no definition was

provided in the application as to what was meant by ‘administrative employees.’

• [85] The Respondent advised that it does have separate premises for its management

and administration employees. There are a number of management and administrative

employees dealing with the day-to-day running of the business with respect to

management-type tasks, as well as ensuring support for those managers and

occupations, including invoice management, accounts, debt collecting, contracts, client

management, etc. The Respondent clarified that those employees are not ‘housed’ at the

production and distribution facility.

• [86] The Respondent does not regard the roles undertaken by Sam and Simon as

administrative roles, as are within its separate management and administration

premises. It regards them as key employees as part of the distribution team and part of

the distribution process. The Respondent acknowledged that Simon undertakes, on a

daily basis, duties that include cutting, picking, packing, unloading containers when

required, loading trucks when required, and operating a forklift when required (albeit

not the majority of the tasks that he is undertaking on a daily basis). The Respondent

argued that the balance of Simon’s duties fall within what can be described as a systems

employee ensuring that distribution takes place in accordance with orders received from

customers and it takes a clear coordination between all distribution employees for this to

occur.

• [87] The Respondent advised that Simon’s duties involve dealing with all other States

except Queensland and New South Wales relative to the distribution process. Sam

undertakes tasks for the states of Queensland and New South Wales. Both of their

responsibilities include:

• Taking sales orders from the customer service team (part of the administration

employees housed elsewhere);

• Ascertaining size and weight of shipments;

• Allocating distribution to transport companies;

• Allocating the orders to employees engaged for picking, packing and cutting;

• Printing up labels and consignment notes; and

• Updating the IT system to indicate that the order can be invoiced (undertaken by

administrative employees housed within the separate administrative centre).

• [88] The Respondent submitted that Sam’s duties fall within what can only be described

as a systems employee ensuring that distribution takes place in accordance with orders

received from customers and it takes a clear coordination between all distribution

employees for this to occur. These tasks, the Respondent submitted, are an integral part

of the distribution process. It is not about the employees who do the main heavy lifting;

it is about the overall distribution function. To remove these two roles from the

distribution function would be analogous to removing coiling or printing from the

manufacturing process. The Respondent noted that they would not have a finished

product. In no circumstances can the distribution function of the Respondent be

performed without these essential functions.

• [89] The Respondent submitted that given that the supervisor role has not been

included within the count, and given that, clearly, that Sam and Simon should be

included in the count as part of the distribution team, the total count of employees on

the Respondent’s evidence is 26. The Respondent argued that the Union does not have a

majority (even without the examination of the production maintenance employees and

the distribution employees in Melbourne and Perth).

Witness Statement of Mr Jim Mather

• [90] Mr Mather, the General Manager of Sales and Marketing at the Respondent’s

company, advised that the Respondent has a separate premises to its management and

administration employees. There are a number of management and administrative

employees to deal with in the day to day running of the business with respect to

management type tasks as well as ensuring support for those managers and occupations

including invoice management, accounts, debt collecting, contracts, client management,

etc. Mr Mather advised that those employees are not ‘housed’ at the production and

distribution facility.

• [91] Mr Mather further advised that the Respondent does not regard the roles

undertaken by the employees, being Sam and Simon, as administrative roles as are

within its separate management and administration premises. It regards them as key

employees as part of the distribution team and part of the distribution process. Simon,

in particular, undertakes on a daily basis (albeit not the majority of the tasks he

undertakes) duties that include cutting, picking, packing, unloading containers when

required, loading trucks when required, and operating a forklift when required. The

balance of Simon’s duties falls within what can only be described as a systems employee

ensuring that distribution takes place in accordance with orders received from

customers, and it takes a clear coordination between all distribution employees for this

to occur.

• [92] Mr Mather stated that all distribution employees, including Sam and Simon, are

housed together, and they form a key and tight-knit team interdependent on one

another. He acknowledged that there is some paperwork involved, but it is part of the

entire distribution process. There is also interaction with the other distribution

employees and product produced. These employees need to be available in an office

setting established as part of the distribution area, but then also on the floor. He further

mentioned that all distribution employees, including Sam and Simon, must also wear

high-viz because they are ‘out and about’ on the warehouse floor. They all wear the

uniform items that are provided by the company. Mr Mather stated that true

administrative employees have no such requirements and, as stated, are housed

separately in an administration building.

• [93] In relation to Sam, Mr Mather stated that her duties fall within what can only be

described as a systems employee ensuring that distribution takes place in accordance

with orders received from customers and it takes a clear coordination between all

distribution employees for this to occur.

• [94] To remove these two roles from the distribution function, Mr Mather said it would

be analogous to removing coiling or printing from the manufacturing process. There

would be no finished product. In fact, there would be nothing of worth at all. The roles

taken by the two employees are, in Mr Mather’s view, inherent to the distribution

function. In no circumstances can the distribution function of the Respondent be

performed without these essential functions.

Statement from distribution employees

• [95] On 27 January 2022, approximately 10 employees signed a document titled

‘Statement from Distribution Employees.’ This statement stipulated as follows:

“We, the undersigned, have been advised by our employer that the position of the United

Workers Union, for their Application for a Majority Support Determination, is that the

positions held by Samantha Green and Simon Perry are considered to be excluded roles from

the intended coverage of what would be an Enterprise Agreement if bargaining proceeded. We

are advised it has been stated that their roles:

• are clerical and/or administrative and, impliedly, separate to the functions of the

distribution team, and

• that they are ‘white collar’ and ‘managerial’ type roles, and

• that the roles do not undertake manual warehousing/distribution such as receiving,

storing, packing, retrieving, cutting products to order, dispatching, loading and

unloading of trucks.

Whilst it is true to say that the role of Samantha is not a physical manual role, we the

undersigned, are of the view that it is a key element of the receiving, storing, packing,

retrieving, cutting products to order, dispatching, loading and unloading of trucks. The role of

Simon is mostly the same as Samantha, but on most days, Simon is also undertaking as may

be required these physical manual tasks with us.

We confirm that the distribution section of the business is, in effect, housed together in that it

is in its own separate section and there is an enclosed area with windows where paperwork is

completed and passed through the distribution purposes. Samantha does sit within this area

but spends time checking these paperwork tasks, outside this area, with us as well as dealing

with the various orders being prepared for distribution. When Simon is undertaking those

types of tasks, he undertakes it in a similar way.

It is the case that we, the undersigned, regard Samantha and Simon’s roles as essentially

connected with distribution. Both are part of the distribution team, and we are all part of what

makes up the distribution of the company’s product. We do not regard Samantha and Simon’s

roles as management or administrative in the sense of the administration of the business itself

in that those roles are contained in a separate structure altogether separate from the

production and distribution area of the business. Samantha and Simon wear hi-vis and the

same uniform items as we, the undersigned, and we in now way [sic] regard them as being

separate and not distribution team members – they are an essential and intricate part of the

entire distribution process.”

Substantive submissions of the Respondent

• [96] In its substantive submissions, the Respondent firstly noted that there is an issue

about three employees within the Distribution section of employees sought to be covered

by the application. The Respondent contended that the two relevant employees should

be counted as Distribution employees and within the count of 26 relevant employees

with the consequences there is no majority.

• [97] The Respondent secondly noted that there is an issue about its production

maintenance employees and their exclusion from the Union’s application. It stated that

the group of three employees should have been part of the relevant group and the

Respondent made further submissions on this group in dealing with the group not being

fairly chosen. These three employees were seen by the Union as part of the production

team in its previous application and has now excluded them, and clearly in an arbitrary

way to manufacture or attempt to manufacture a majority.

• [98] The Respondent thirdly noted that there is an issue about its interstate distribution

employees being included within bargaining, and notes that those staff members are

currently five, being three employees in Perth (two permanent and one casual), and two

permanent employees in Melbourne. This group of five employees, in the Respondent’s

view, should be part of the relevant group and the Respondent submitted the proposed

group is not being fairly chosen.

• [99] In light of the above, the Respondent argued that there is no majority support,

even if its Crestmead site was to be treated as the only site for the purposes of bargaining

and an Enterprise Agreement (which the Respondent contended against and on the

basis that it does not believe the group has been fairly chosen and should include its

three sites and/or additionally the production maintenance employees.)

• [100] In addition, the Respondent noted s.237(2)(d) of the Act in which the

Commission must be satisfied that it is reasonable in all the circumstances to make the

MSD. The Respondent submitted that when there is such doubt about the employee

numbers, even for Crestmead alone, it would not be reasonable in all the circumstances

to make the determination. The Respondent further noted s.273(3) which provides that

the Commission ‘may work out whether a majority of employees want to bargain using

any method the Commission considers appropriate.’ The Respondent asserted that it is

appropriate for the Commission to take into account the withdrawal of employees from

the petition.

• [101] The Respondent submitted that it is clear that, at this time, a majority does not

exist. The Respondent has provided the Commission with a list of the production and

distribution employees (and it included for clarity in separate sections the three

production maintenance employees and the five employees from Perth and Melbourne

sites.)

• [102] Noting that one employee had withdrawn their name from the Union’s petition,

the Respondent’s contention is that there is clear prospect, on any reasonable

assessment by any appropriate method, of the information available to the Commission,

that even for the Crestmead site (and excluding the production maintenance employees

and further the Respondent still contends that all three sites should be included), the

Commission is in a position to find that it is not reasonable in all the circumstances to

make the determination.

Sections 237(2)(c) and 237(3A): Fairly chosen?

Geographically, organisationally or operationally distinct?

• [103] The Respondent advised that the group of employees chosen in this application

comprises only employees at the Crestmead site of the Respondent and those employees

in production and distribution.

• [104] The Respondent noted that the Act provides that in determining whether the

group of employees who will be covered by the Agreement is fairly chosen, the

Commission must take into account whether the group of employees is geographically,

operationally, or organisationally distinct. Importantly, though, distinctiveness on any of

these bases is not determinative but will be a factor to be accorded due weight in the

assessment as to whether the group of employees were fairly chosen.

• [105] In this matter, per the regular process, petitions (as evidence of majority support)

were filed to the Commission indicating the number of employees and the number that

had signed in support of bargaining in relation to the proposed coverage of the

Agreement.

• [106] The submissions of Ms Ananth in her closing arguments articulate one of the

significant elements in dispute between the parties in this matter:

“Thank you, Commissioner. I just wanted to, again draw your attention to our submissions

about the conflation that we submitted that the respondents made between, I guess, the

integration - the closeness of what they claim, the production maintenance role and the roles

of Mr Perry and Ms Green, how close they are to the distribution and production work, that

should not be conflated with the integration of industrial or productive activities required to

found a determination of indistinctiveness.

So, the applicant's emphasis on, for example, the fact that Mr Perry and Ms Green also wear

hi-vis, for example, it's not a material consideration here. Commissioner, just on a final note

there has also been some emphasis by the respondent on a prior application that was made by

the United Workers Union. We accept that the previous application made by the union, the

applicant had a slightly different group as was chosen, which did include Mr Perry and Ms

Green. However, the task at hand here for the Commission is not the same as the task that

needs to be undertaken in a scope application, for example.

This application does not require a consideration on the part of the Commission about

whether the group chosen by the applicant is the fairest way of defining the scope of the

proposed agreement. It does not have to be any fairer than any other potential grouping. So

the Commission is not required to consider, will it be the fairest, or a fairer group.

All the Commission needs to be is satisfied of the fact that the group as chosen by the

applicant is fairly chosen. And Commissioner, we submit that the operational distinctiveness

and the substantive distinctiveness in the roles between the employees who are excluded,

justifies the fairness of the group as chosen by the applicant. Commissioner, that concludes

my closing submissions.”

• [107] In response, Dr Brooks, on behalf of the employer, set out that there was no

dispute with the Union, that the Union is the bargaining employee representative of the

employees who will be covered by any agreement, and the application specifies the

employer and employees to be covered. However, it was disputed that there was a

majority in support of bargaining for the proposed coverage of the Agreement

• [108] The Union set out that the threshold questions were:

“[W]hether Ms Green and Mr Perry fall within the group as defined in the applicant's majority

support petition filed in the Commission on 18 January this year; and the second question is

whether to exclude them from the group would impinge somehow upon the fairness of the

group as chosen, having regard to the factors in section 237(3A) of the Fair Work Act.

Commissioner, the second issue is whether the group as chosen by the applicant, which

excludes the production maintenance employees at the Crestmead site, and the warehousing

employees from the respondent's interstate distribution centres in Western Australia and

Victoria, where that group is capable of being fairly chosen, again having regard to the factors

in section 237(3A). The third and final issue for determination here, Commissioner, is whether

it is reasonable in the circumstances for the Commission to make the majority support

determination as sought by the applicant in satisfaction of the requirement 237 subsection

(2)(d).”

• [109] Specifically, in terms of the ‘fairly chosen’ issue, Dr Brookes stated:

“The group identified in the application to be covered by any enterprise agreement are those

employees as identified in the application, those engaged to perform manufacturing and

warehousing duties at the respondent's premises in Crestmead, but excluding employees

performing supervisory, technical or administrative duties. The employees who fall within this

group are all of the distribution in Queensland, bar two, numbering eight, and the entire

production team of employees in Queensland, numbering 16.”

• [110] The Employer objected to the application and disagreed that the group identified

in the application was fairly chosen. This Application pursuant to s.237 for a majority

support determination in relation to an enterprise agreement that covers those

employees identified in the application; being those only engaged for manufacturing and

warehousing duties at the Crestmead premises but excludes employees performing

supervisory, technical or administrative duties.

• [111] The submissions of both parties have been taken into account against the

legislative tests. As referred to in the submissions, there have been different

permutations of the coverage clause in prior applications Whether there was a majority

in support was not found on a comparison between the petition of employees in support

and the petition of the number of employees, taking into account an assessment of the

employees to be covered.

• [112] There remains a dispute between the parties in relation to the majority support

and the ‘fairly chosen’ lines of the coverage clause. The employer argues that in line with

s.237(2)(c), the group is not distinct. Whilst this argument is not determinative, a degree

of subjectivity or value judgement in assessing whether the group is fairly chosen is

available. As set out, whether the group is fairly chosen is not decisive, but it must be

given due weight in the considerations, and the interests of those employees excluded

from the coverage must also be considered. In addition, the resulting Agreement and the

business operations is a valid consideration. Primarily in this matter, the question of the

inclusion of Mr Perry and Ms Green turns on whether they fall within the ‘fairly chosen’

group. As the employer has emphasised, whilst currently excluded, they have previously

been included by the Union in an application with a prior coverage clause.

• [113] An assessment of matters relevant to their inclusion turns on more than whether

they wear ‘high vis’ as a reference to the Union’s evidence. Mr Mather’s evidence of the

jobs of the two employees, as set out, demonstrated the degree of integration of their

roles as part of a distribution team, and the roles of maintenance employees, who work

with the production employees.

• [114] Mr Mather, in providing evidence in terms of the overview of the operations of the

employer, provided evidence on the reporting lines and the work of these two employees

in terms of whether the coverage clause of the group is a ‘fairly chosen’ group. The

evidence in relation to the group shows that there has been, as the Respondent argues,

an elective line drawn that has meant the group chosen is not distinct, as there are other

employees who the Respondent submits have been carved out, in an artificial or

arbitrary fashion, to achieve a majority support position.

• [115] Primarily, those employees are Mr Perry and Ms Green; two distribution

employees who gave evidence in the proceedings. Evidence was provided about their

inclusion. Importantly, they are the only two distribution employees in Brisbane not

ultimately included in the group to be covered by the Agreement. Their prior inclusion in

a group, and now exclusion from the group, does not acknowledge the connection in the

work that they perform with the work of the group in the coverage clause. Their

exclusion is not determinative of whether the group was fairly chosen, but it is clear that

it was aimed at achieving a majority in support, rather than a satisfaction of s.237(3A).

• [116] In assessing whether the group was fairly chosen, the evidence identified that at

the Brisbane premises, the production and maintenance employees currently comprise

of 16 production employees, 10 warehouse/distribution employees and 3 production

maintenance employees. At the Melbourne warehouse, the Respondent advised they

currently have 2 distribution employees. At the Perth warehouse, there are 3 distribution

employees. The Respondent noted that the Manufacturing and Associated Industries

and Occupations Award covers and applies to all production, distribution and

maintenance employees of the Respondent across its Brisbane, Melbourne and Perth

operations.

• [117] In addition, the evidence demonstrated that given the relatively small size of the

Respondent’s business, and the extremely small size the of interstate operations (relative

to the number of employees), it would be operationally harsh on the Respondent for the

production maintenance employees and also the interstate centres to be separated from

their colleagues in Brisbane and Logan (if a majority is established and bargaining

proceeds) and an Enterprise Agreement results.

• [118] The evidence set out that all distribution employees, including Sam and Simon,

are housed together, and they form a key and tight-knit team all dependent upon one

another. The Respondent acknowledged that there is paperwork they are to do, but this

is part of the entire distribution process. There is also interaction with the other

distribution employees and the product produced. These employees need to be available

in an office setting established as part of the distribution area, but then also on the floor.

All distribution employees, Sam and Simon inclusive, must wear high-viz because they

are out and about on the production floor. They all wear the uniform items that are

provided by the company. The Respondent submitted that true administrative

employees have no such requirements and as stated, are housed separately in an

administration building.

• [119] The employee Simon clearly undertakes, even on the basis submitted by the

Union, physical manual labour relative to the products itself, if a physical element

related to that product is the reference point. At the same time, the Respondent

submitted that both Sam and Simon undertake manual labour and the completion of

paperwork as necessary and operation of a computer that is available within that small

office setting, as part of the distribution facility (when those aspects of the tasks need to

be accessed).

• [120] The following submission demonstrates the matters that mitigate against the

group being considered as ‘fairly chosen’:

“The other employees are the production maintenance employees, of which there are three in

Brisbane. There are none anywhere else in the country because the only production that Apec

undertakes is in Brisbane. They work hand in glove with the production employees. And lastly

there are the distribution employees in Western Australia of which there are three, and there

are two in Victoria, totalling five. Whilst quite obviously they are geographically distinct, they

are not operationally or organisationally distinct from the rest of the distribution team who

are included in the group.

The evidence of Mr Perry and Ms Green, and the statement of Mr Ron Harding assists the

Commission to understand the distribution operations of the respondent and the roles that Mr

Perry, Ms Green and Mr Clay undertake, and the degree of integration between their role and

the remainder of the distribution team, of which Mr Ron Harding is one.

The evidence of Mr Mai, Manufacturing Manager, assists you, Commissioner, to understand

the production side of the business, and the role played by the maintenance employees who

work with the production employees to ensure that cable is produced. And the evidence of Mr

Jim Mather assists you, Commissioner, to understand the reporting lines of Apec's national

distribution network.

The respondent says that when the group is fairly chosen there is not a majority of employees

who in fact want to bargain, and the applicant contends that there are 24 in the group, and

after a subsequent withdrawal I think, to their petition, there are 13 who've indicated they

want to bargain, which is a slim majority but it's a majority, nonetheless, of 54 per cent of the

group.

Now if Mr Perry and Mr Green are included in the count, the total is 26 employees which

amounts to only 50 per cent wanting to bargain, which is obviously not a majority. If the

production maintenance employees alone, as in not in combination with Mr Perry and Ms

Green, if the maintenance employees are included in the count of 27, which amounts to a

percentage of 48 percent of wanting to bargain, and if the interstate employees are included

on their own, then the total employees in the group is 34, and only 38 wish to bargain.

Commissioner, if any combination of the two additional groups - - -

THE COMMISSIONER: Sorry, is 34, and how many wish to bargain?

DR BROOKS: Thirteen out of 34, which I think is 38 per cent.”

• [121] On the numbers of employees in support, per the evidence, I cannot be satisfied

on the information presented that the majority of employees in accordance with

ss.237(2)(a)(i) and (ii) want to bargain.

• [122] The evidence in relation to their duties, location and production supports the

conclusion that Mr Perry and Ms Green should be included in the group and, as

submitted, they are organisationally indistinct from the rest of the Crestmead

distribution team.

• [123] It was set out on the evidence that they are co-located with the other employees.

They, their team members, and others consider them to be part of the distribution team.

The evidence set out that they share the same reporting lines as the rest of the team, and

the view of management in terms of the operations were that they were part of the

distribution team and wear the uniform of the Respondent’s employees who also work

on the floor in the distribution centre.

• [124] In further support of the position, the following submissions of the Respondent

are adopted:

“Turning now to the production maintenance employees at the Crestmead facility, Mr Mai's

evidence is that they're on the floor, they're working on the machines, they're running the

machines, and obviously liaising with the production team about the machines, because the

production team use the machine. In my submission the maintenance team is both

geographically, operationally and organisationally indistinct from the group proposed by the

UWU.

Again, like Mr Perry and Ms Green, they are co-located with the production team, they are

organisationally indistinct from that team, i.e., they are all working towards the same goal,

producing cable. Again, it is the respondent's position that the union has sought a means by

which they can exclude the maintenance team and they've landed on a distinction based on

the fact that the production maintenance workers have a trade, whereas the people who are

operating the machines, apparently have a non technical role. Putting aside that the

production members who operate the machines, in my submission do have a technical role, in

my submission the union's attempt to create an operational distinction between the

production team who run the machines, and their colleagues who maintain them, should be

given less weight in the clear organisational confluence between those workers.

Both the excluded distribution employees and their excluded maintenance team colleagues

were included in the group proposed by the union's previous application. Now the applicant in

its submissions urges you now to forget what you know of all that has gone before,

Commissioner. The respondent obviously has a different view. In my respectful submission

that would be something you ought to take into account in considering whether it's reasonable

to make a majority support determination in the circumstances.”

• [125] The evidence on behalf of the employer gave insight into the operations and the

difficulty for such of the proposed clause. It is convenient to rely on their submissions

that draw on the evidence in relation to the proposed coverage of the agreement:

“Finally now turning to the distribution employees in Western Australia and Victoria,

obviously we do not argue that they are not geographically distinct, they clearly are. But they

are however operationally indistinct from their Queensland counterparts. They have local

supervisors, that through them the report to Jim, Jim Mather, and they had exactly the same

job. There's only five of them, Commissioner, and again the union is pointing out the only

distinction it can find to exclude them, and for those five employees, three in Perth and two in

Melbourne, that exclusion is particularly harsh, in my submission.

Having a separate agreement covering two or three, or even the five of them, would not be an

efficient way for the business to manage the working conditions of those employees, who as I

say, have exactly the same job as their Queensland counterparts and they are handling exactly

the same cable.

The applicant makes the point in its submissions that the Queensland employees are close to

the only manufacturing hub in Queensland, I think is how they put it, which might lead you to

understand there is more than one manufacturing hub in Australia, but you heard this

morning there is no other manufacturing hub. The only cable produced is produced in

Queensland and the distribution employees in Perth and Melbourne distribute the same cable.

But those interstate employees should not be excluded on the basis of their geographical

distance from the remainder of the company.

And I would like to note also that there was an emphasis placed by the union in their

submissions on the fact that there is no direct contact between the distribution employees in

Western Australia and Victoria, and their colleagues in Queensland. Given the cables are only

produced in Queensland and the stock is shipped to Perth and the Melbourne distribution

centres, it's entirely unlikely that there would be no contact, indirect or otherwise, between the

distribution employees around Australia.

But even if we accept that argument which is being made, which appears to be that a degree of

contact is important in determining whether employees should be considered distinct or

indistinct, then by the same argument Mr Perry and Ms Green, and the production

maintenance employees should be included, because they're clearly in direct contact with their

colleagues every day.”

• [126] Both parties relied on the Cotton On decision in critiquing the manner in which

the grouping could occur. The Respondent recognises there are variations to the

grouping, and it is acknowledged that the proposed group does not need to be

geographically, operationally, and organisationally distinct, but I concur that on the

current grouping there is clear evidence as set out of no geographical and organisational

distinction between employees. Weighting must be provided appropriately in assessing

whether the proposed group is distinct.

• [127] On the evidence provided, the roles of Mr Perry and Ms Green are considered as

key job functions; integral to the distribution process and not as administrative roles,

when compared with those roles considered in relation to administrative functions

within its separate management and administration premises. Mr Perry is engaged on a

routine daily basis in cutting, picking, packing and unloading containers, and loading

trucks when required. His duties were also characterised as a ‘systems employee.’ The

duties of Sam and Simon are essential to enabling the distribution of customer order and

coordinating the tasks of all distribution employees.

• [128] Accordingly, I am not satisfied on an assessment of the tests under s.237 that a

majority support determination on the basis of the application can be made. Whilst

s.237(2)(b) is not contested, satisfaction is not made out on the other statutory tests.

• [129] I am not satisfied that, in accordance with ss.237(2)(a)(i) and (ii) that a majority

of employees who will be covered by the agreement want to bargain. It is also not open

in the circumstances or the evidence to make the determination in accordance with

s.237(3A) (given that the group of employees who it is proposed will be covered by the

agreement on the basis of the evidence, and on all of the facts and circumstances) that

the group is fairly chosen.

• [130] The group, when taken into account in accordance with s.237(3A), is not

geographically, operationally, or organisationally distinct when these characteristics are

examined in line with the business operations and the employees.

• [131] I am also not satisfied therefore in accordance with ss.237(2)(c) and (d) that the

group of employees who will be covered by the agreement was fairly chosen, nor that it is

reasonable in all the circumstances to make the determination.

• [132] The Application made pursuant to s.237(1) is therefore dismissed.

• [133] I Order accordingly.

al of the Fair Work

Commission with

member%26#8217;s

signature.

COMMISSIONER

[1]

INPEX Australia Pty Ltd v The Australian Workers’ Union [2021] FWCFB 20138 at [33].

[2]

CBI Constructors Pty Ltd v Construction, Forestry, Mining and Energy Union [2011]

FWAFB 7642 at [73].

[3]

Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union; The Australian

Workers’ Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries

Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications,

Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of

Australia [2012] FWAFB 2206 at [19].

[4]

QGC Pty Ltd v The Australian Workers’ Union [2017] FWCFB 1165 at [44].

[5]

[2017] FWCFB 1165.

[6]

QGC Pty Ltd v The Australian Workers’ Union [2017] FWCFB 1165 at [45].

[7]

Ibid [44].

[8]

INPEX Australia Pty Ltd v The Australian Workers’ Union [2021] FWCFB 20138 at [37].

[9]

[2012] FWAFB 2206.

[10]

Cimeco Pty Ltd v Construction, Forestry, Mining and Energy Union; The Australian

Workers’ Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries

Union” known as the Australian Manufacturing Workers’ Union (AMWU); Communications,

Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of

Australia [2012] FWAFB 2206 at [19].

[11]

[2014] FWC 6601.

[12]

National Union of Workers v Cotton On Group Services Pty Ltd [2014] FWC 6601 at [27].

[13]

Ibid at [14].

[14]

[2010] FWAFB 3009.

[15]

Media, Entertainment and Arts Alliance [2013] FWC 3231 at [51].

[16]

Re ANZ Stadium Casual Employees Enterprise Agreement 2009 [2010] FWA 3758 at

[28].

[17]

Transport Workers’ Union of Australia v MWAV Pty Ltd T/A Man With A Van [2018]

FWC 6525.

[18]

Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers’

Union of Australia; Australian Municipal, Administrative, Clerical and Services Union

[2017] FWCFB 5826 at [27].

[19]

[2017] FWCFB 1165.

[20]

Ibid at [45].

[21]

National Union of Workers v Cotton On Group Services Pty Ltd [2014] FWC 6601.

[22]

Ibid at [16].

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