B2015/225, Transcript of Proceedings [2015] FWCTrans 60 (13 February 2015)

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AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION known as the AUSTRALIAN
MANUFACTURING WORKERS’ UNION (AMWU)

PN1.

THE COMMISSIONER: Good morning. Appearances, please?

PN2.

MR D VROLAND: If it please the Commission, my name is Vroland, initial D, and I appear on behalf of the AFMEPKIU.

PN3.

THE COMMISSIONER: Thank you, Mr Vroland.

PN4.

MR M SMITH: Thank you, Commission. Smith, initial M, with me is MR R BLUETT, from Bluett & Swann, and MS S SCOTT, also from Master Builders.

PN5.

THE COMMISSIONER: Right. Thanks, Mr Smith. Mr Vroland, it’s an application under section 236.

PN6.

MR VROLAND: Yes. Commissioner, I propose to move straight to the evidence and call our first and only witness, Mr Toby Paterson.

<MR TOBY PATERSON, SWORN [9.35 AM]

<EXAMINATION-IN-CHIEF BY MR VROLAND [9.35 AM]

PN7.

MR VROLAND: Thank you, Mr Paterson. Could I just ask you to explain to the Commission your occupation?---I am official with the Australian Manufacturing Workers’ Union, Commission. I’m with the metals division.

PN8.

THE COMMISSIONER: Won’t hold that against you.

PN9.

MR VROLAND: And how long have you been undertaking that role?---I’ve been approximately full-time there for one year.

PN10.

And what are your basic responsibilities in that role?---I have a number of factories, mostly down in the south-eastern suburbs which I look after, servicing the members within the Australian Manufacturers’ Working Union, negotiating ABAs, looking after the health and safety, wages and conditions.

PN11.

In the course of undertaking your role, have you had any involvement with the respondent company, Bluett & Swann?---I have indeed, yes.

**** TOBY PATTERSON XN MR VROLAND

PN12.

Yes. Could you explain to the Commissioner your involvement with that company?---Yes, Commissioner, I got a phone call from one of our members who had a bit of concerns over the company Bluett & Swann, a number of issues relating to workplace health and safety. Also, their wages and conditions, they felt that they hadn’t been - received the proper wages and conditions for a couple of years, and they were seeking some advice from the union on these matters.

PN13.

Roughly, when did you get that phone call?---That would have been mid-April last year, roughly around about then, yes, April. On the - them dates, yes.

PN14.

Thanks, and if you could continue to explain to the Commissioner what you did in response?---Well, I went down to the factory which they had, I think it was in Clayton, and I had a lunchtime meeting outside with the member and the other four of the boys that worked in the factory. I explained - there was a few questions raised. One of them was that they were using work vehicles and they were having to fuel the vehicles without - their own petrol money, and then having to seek the money back from Bluett & Swann, which was taking a number of months or weeks to get the money paid back. There was also concerns over the health and safety in the workplace. They want to move into another factory, and mainly the health and safety was the reasons, what they asked me to - calling me up on. I explained the benefits of being in the union and I think there was five union members who were all willing to join the member and accepted the applications to join the union.

PN15.

Just on that point, if I might show the witness a document?

PN16.

THE COMMISSIONER: Sure.

PN17.

MR VROLAND: Now, this is a document which I’ll ask the witness to explain, but it’s a document which we would seek not to show to our friends at the minute. We’d ask the Commission that it be kept confidential, as is usual in these cases.

PN18.

THE COMMISSIONER: Right.

PN19.

THE WITNESS: Yes, yes, I recognise that document.

PN20.

MR VROLAND: Mr Paterson, you’ve seen that document before?---I have indeed, yes.

PN21.

Okay. If you could explain - sorry, do you have a copy of it?

PN22.

THE COMMISSIONER: No.

PN23.

MR VROLAND: You’ve seen the document before?---Yes.

**** TOBY PATTERSON XN MR VROLAND

PN24.

Could I ask you to explain it to the Commissioner?---Commissioner, this is a document which is a list of members which are paid-up financial members of the Australian Manufacturing Workers’ Union. We do keep this on file and these are the members which I do believe are recorded in at Bluett & Swann.

PN25.

Now, you said just now that you thought that there were five members who signed up. If you have a look at that document, how many names can you see there?
---There’s six on there.

PN26.

Okay. Thank you. I’d seek to tender that document.

PN27.

THE COMMISSIONER: Thank you. AMW1, thanks.

EXHIBIT #AMW1 LIST OF PAID-UP FINANCIAL MEMBERS OF AMWU

PN28.

MR VROLAND: Now, Mr Paterson, you were explaining to the Commissioner the course that you undertook in response to members’ inquiries?---Mm-hm.

PN29.

What options did you explain to the AMW members were available to them?---Well, what I did explain was that I would try and meet with Roger Bluett and see if we can negotiate an enterprise bargaining agreement for them. The members felt that they hadn’t had wage increases there, I think for a number of years. Some of them felt they were below the award rates and they were seeking some advice on that, and also the health and safety. As I said, I got called to the factory, the company moved the factory into Dandenong. I got called into the factory, which I went in one morning. The company had just moved in there, and to be honest with you, it was - in my opinion, I thought it was unsafe for the boys to work in there. There was oxyacetylene, they didn’t move all the new stuff into the factory. There was flammable liquids, and I felt they were - they were at, you know, immediate risk within there. I - - -

PN30.

Yes. And did you arrange a meeting with Mr Bluett?---Well, I tried to phone him on several occasions. I was invited in by the leading hand at the time, when I went to the job. I think he was - identified himself as the leading hand. Went into the factory and had a look and I tried to make contact with Roger, just to say that I felt that the members in there were - you work in an unsafe environment.

PN31.

Yes, but the question was, did you try to arrange a meeting with Mr Bluett?---Yes, I did, yes. Yes.

PN32.

And have you had any meetings with Mr Bluett?---Yes. Yes, we’ve had a couple of meetings since then, yes.

**** TOBY PATTERSON XN MR VROLAND

PN33.

And can you explain to the Commissioner what’s occurred in those meetings?
---Well, it was identified in the first meeting that there was a bit of concerns over safety. Mr Bluett did inform me that they had just moved into the factory and that they hadn’t really had enough time to get the factory in a safe working environment. The factory, within a couple of hours, all hands were on deck, and they cleared the walkways and made it safe. I did say to Mr Bluett I would attend the next day and we could have a look, which I did attend the next day. He invited me in next day, we had a wander around, and I was satisfied with the factory. The members were certainly a lot happier, and then we had a meeting, I think the following week, not sure on the dates, and Roger and I discussed about the possibility of an enterprise bargaining agreement for the members.

PN34.

Yes. In the course of your discussions with Mr Bluett, has he ever agreed to enter into bargaining for an enterprise agreement?---No. No.

PN35.

In the course of your discussions with the members, what direction have they given you with respect to an enterprise bargain - - - ?---They certainly want me - yes, they certainly want the AMWU to enter into a bargaining with the company. They feel that - yes.

PN36.

Thank you. Again, if I might present the witness with a document?

PN37.

THE COMMISSIONER: Sure.

PN38.

MR VROLAND: Again, Commissioner, this is a document we’d seek to keep confidential.

PN39.

THE COMMISSIONER: Okay.

PN40.

MR VROLAND: Mr Paterson, is this a document you’ve seen before?---I have indeed.

PN41.

Could you explain this document to the Commissioner?---This is a document which is a petition for representational rights to bargain, Commissioner, which I was asked to give in to the workforce, give one of the members, to get the signatures on it, and that’s what the document is.

PN42.

What process did you undertake in order to get - seek signatures on the document?---Well, the members asked me what the process was in order for us to get bargaining agreements up, which I explained to them, which was the next step, and I spoke to our legal team in at the AMWU, which we got this document to present to them, and then the members signed it and got it back in to me.

**** TOBY PATTERSON XN MR VROLAND

PN43.

When did you give this document to a member?---I think it was roughly around about October. The dates are on the 31st, so it would have been a week before that, maybe around about the 23rd or 24th, I believe.

PN44.

Sure, and when was it returned to you?---Well, the last signature is the 7th of the 11th, so I think it was around about that time, the 8th.

PN45.

Thank you. I’d seek to tender that document.

PN46.

THE COMMISSIONER: That’s AMWU2, thanks.

EXHIBIT #AMWU2 PETITION FOR REPRESENTATIONAL RIGHTS TO BARGAIN

PN47.

MR VROLAND: Just a few more questions, Mr Paterson?---Mm-hm.

PN48.

What type of work do the employees in production at Bluett & Swann do?---I believe they do a form of partitioning wall, a wall which is - it’s aluminium cell, removable partition walls, I believe.

PN49.

To the best of your knowledge, how many employees in production are there on site?---Well, when I attended, I think there were a couple of casual employees as well. At that time, I think there was, on the shop floor, perhaps seven. Seven or eight on the shop floor which worked. There was a couple of casual employees there who stated that they did want to become a member of the union, but they were worried about the ramifications of joining the union, that if - because they were on a casual basis, they felt that if they were to join the union, they would no longer be employed on a casual basis coming into their sort of - I think, again, going back to there would be about seven, six or seven on the shop floor when I went into the factory.

PN50.

You’re not absolutely sure?---No, not 100 per cent, no.

PN51.

Thank you. I have no further questions.

PN52.

THE COMMISSIONER: Thank you. Yes, Mr Smith?

<CROSS-EXAMINATION BY MR SMITH [9.46 AM]

PN53.

MR SMITH: I just have a couple of little questions to ask. You stated that you received a phone call back in April over safety concerns and underpayment of wages, they believed they hadn’t been paid correctly?---Mm-hm.

**** TOBY PATTERSON XXN MR SMITH

PN54.

Obviously, your investigations were that, you found some safety concerns which were addressed by the company and you were satisfied with that. The wage claims, you know, the underpayment of wages, has there been any claims of underpayments as per the award for those classifications in your investigations?
---I haven’t looked into - I haven’t looked into any wages of any of the members, no.

PN55.

So they’ve addressed a concern over wages - - -?---Yes.

PN56.

- - - but you’ve not looked any further into that?---I haven’t looked into any of the wages, no. They felt that they were underpaid. As I said, the classification was something that I explained to them, that if we did have an enterprise bargaining agreement, I would be able to reassess their skills and their classifications, to give them the appropriate information as to their payments.

PN57.

So there were no discussions about possible back-payments on underpayments of wages as per the award, investigating - - -?---No. No.

PN58.

Just in regards to the process with initiating the petition with the employees at the company, now, you handed the petition - you received the documentation in order to - or the list to hand out, and you presented that to one of the employees?
---Mm‑hm.

PN59.

How was that conducted from them? I mean, what involvement was there from you, or was it, “Here, just hand this around” and - - -?---No, no, no. I explained what the petition was and what I said to them was - actually, the member came into the union office in Dandenong. We sat there and I explained the process to him. He said he was - he’d like to take the petition off to have - to speak to the members in the factory, to see who would sign the petition, to get the signatures up, and that was the procedure with that.

PN60.

So you didn’t have any further involvement with that part? You handed it over, told him - - -?---Gave it to the members - - -

PN61.

- - - gave him instructions on how to - - -?--- - - - and that was it. Yes, that was exactly how I done it.

**** TOBY PATTERSON XXN MR SMITH

PN62.

So what sort of qualifications, or what experience did that member have in being able to inform the other employees what their rights are, how this could affect them, representational rights? What - - -?---Well, I’d already - I’ve already had a meeting onsite, as I explained. I’d had a meeting onsite and I explained to the members what the process was. So the members were all fully aware, and what I did say to them was there’s a petition there, if the guys wanted a petition, to come in there. I explained it all to them, so the member took - came and got the form off me. So your question being is what qualification does he have; he’s been a union member for a number of years. He’s been engaged in enterprise bargaining - well, he’s worked in other places, and hence the reason he came and took the document off me to take in to get signed.

PN63.

Yes. No, I accept that, I’m just wondering - - -?---Yes.

PN64.

- - - how he may be able to address any of their concerns, whether he had all the information, he would be able to - - -?---Well, I’d already gaven(sic) it to - as I said, I’ve already gaven it to the members, when I had a meeting with them. I had a half an hour luncheon meeting, because Roger invited me in. So the members were all fully aware of what the process and the steps were.

PN65.

But you don’t know exactly what was said to each individual that he spoke to?
---Well, I wasn’t there, so I can’t say that, no.

PN66.

No. So there’s no overview, there’s no sort of - yes, documenting what was said and what shouldn’t be said or what can be said or anything like that?---Well, I wasn’t there, so I can’t say that, no.

PN67.

I don’t know if I’ve got anything else. Okay, yes. You said when you went on that you thought that there were seven employees, you’re not sure, six or seven. Did you do a head count? Did you discuss anything with anybody, have any critical - - -?---Well, on that - on that - yes. The first time when I did have the first meeting with them, I think there was six employees that came outside at lunch to meet me. The second time I went in, there was a couple of additional casuals there. So it could have been six or seven or eight.

PN68.

Okay, so - - -?---I can’t precisely give you the exact amount of people who were in the shop floor.

PN69.

Yes, so you don’t know how many people were employed in those roles that would be covered under the manufacturing award?---No.

PN70.

No. Okay. I don’t think we have anything else.

PN71.

Thank you, Commissioner.

PN72.

THE COMMISSIONER: Thanks, Mr Smith. Do you wish to - - -

PN73.

MR VROLAND: Just very briefly, Commissioner.

<RE-EXAMINATION BY MR VROLAND [9.51 AM]

**** TOBY PATTERSON RXN MR VROLAND

PN74.

MR VROLAND: Just on this question, Mr Paterson, of how many employees the employer has, and I did ask you earlier in regard to the best of your knowledge, how many employees they would have and you gave an answer to that. But simply, just for the point of clarification, do you understand that the majority of employees wish to bargain for an enterprise agreement?---Yes.

PN75.

What’s the basis for that understanding?---It’s 50 plus 1 memberships, 50 plus 1 of the workforce that’s in there.

PN76.

Thank you. No further questions.

PN77.

THE COMMISSIONER: Thank you. Thanks, Mr Paterson, you can step down?
---Thank you, Commissioner.

<THE WITNESS WITHDREW [9.51 AM]

PN78.

THE COMMISSIONER: Is that it, Mr Vroland?

PN79.

MR VROLAND: That’s our evidentiary case, Commissioner.

PN80.

THE COMMISSIONER: Thank you. Mr Smith?

PN81.

MR SMITH: If it please the Commissioner, I would - just on the information that’s been presented, obviously we haven’t received any evidence prior to this, just the notification. It wasn’t my intention to ask for any witnesses, but just on a couple of the points that have been raised, I was wondering if I could have a couple of minutes just to discuss quickly with Mr Bluett and get him to stand on the - as a witness.

PN82.

THE COMMISSIONER: Sure. So, till 10 o’clock?

PN83.

MR SMITH: Yes, that would be - thank you, Commissioner.

PN84.

THE COMMISSIONER: Okay. We’ll adjourn till then, thanks.

SHORT ADJOURNMENT [9.52 AM]

RESUMED [10.02 AM]

PN85.

MR SMITH: I would like to call Mr Bluett as a witness, Commissioner.

PN86.

THE COMMISSIONER: Thank you.

**** TOBY PATTERSON RXN MR VROLAND

PN87.

MR VROLAND: Commissioner, I just rise, I don’t necessarily object to the calling of the witness, but I just do note with some concern that I asked my friend the question as to whether or not he was going to call any witnesses for the proceedings, and he indicated that he wasn’t. Consequentially, we didn’t ask for witnesses to be removed, so Mr Bluett has had the benefit of hearing Mr Paterson’s evidence. It’s procedurally unusual, and I just ask the Commissioner to bear that in mind.

PN88.

THE COMMISSIONER: That’s okay. I would assume that, anyway, the normal process is that Mr Smith would have argued that Mr Bluett was his instructor.

PN89.

MR VROLAND: As the Commission pleases.

PN90.

THE COMMISSIONER: Yes. Thank you.

<ROGER JOSEPH BLUETT, SWORN [10.03 AM]

PN91.

THE COMMISSIONER: Yes, Mr Smith.

PN92.

MR SMITH: Thank you, Commissioner.

<EXAMINATION-IN-CHIEF BY MR SMITH [10.04 AM]

PN93.

MR SMITH: Mr Bluett, can you please state your name and address for the Commission, please?---It’s Roger Joseph Bluett at (address supplied).

PN94.

Thank you. I just have a few questions, just to clarify some points. In your understanding, how many entries have been made by the union, that you’re aware of?---We didn’t have any in Clayton, when we were in Clayton. We moved to Dandenong South officially on 1 September. I think about 4 September, when we finally moved in, that I arrived to work one day with the union there on site, with our - that staff out in the car park. They’d given me a notification of entry because of for an unsafe workplace. I said, well, that’s just - we’ve moved first day, so it’s inconsiderate, but anyhow. He came - we agreed to come back next day, which he came back, satisfied with the safety standards of the place, that it had improved, and we were still working on setting up the factory at that stage, and he came back to an organised meeting on the - for to meet the members in the - at lunchtime, and he came another two times during - in between that time to speak to me.

PN95.

So nothing prior to that, no visits prior to - in September when you had the meeting?---No. Total surprise.

**** ROGER JOSEPH BLUETT XN MR SMITH

PN96.

If you could please tell the Commission, how the fuel arrangements with cars and those, how they - - -

PN97.

MR VROLAND: Commissioner?

PN98.

THE COMMISSIONER: Mr Vroland?

PN99.

MR VROLAND: I just don’t see that this is really relevant to the issue in question.

PN100.

THE COMMISSIONER: Mr Smith? I suppose, sorry, without telling you how to - surely, we need to establish how many employees would be covered by the AMSU constitution, how many employees work in the office, the company has estimators that would be intended to be covered by the agreement, and some of this stuff Mr Vroland can answer anyway, but if there are a number of signatures on the petition, what percentage of that is of the workforce that could be constitutionally covered by the union? I mean, they’re the issues that I have to deal with.

PN101.

MR SMITH: Thank you, Commissioner.

PN102.

So if you could please explain to the Commission how many employees currently in total with the company, and how many are on the factory floor doing the works - - -

PN103.

MR VROLAND: Commissioner, it’s a multi-part question.

PN104.

THE COMMISSIONER: Well, okay. Just let Mr Smith ask the question.

PN105.

MR SMITH: Can you please let the Commissioner know how many employees are currently with the company?---We have a total of 15 at the moment. We have 10 in the factory, which is led by a production manager with a supervisor, and all those 10, they do work in the factory. One works on - the leading hand of the assembly area and the other one operates the computer router. We then have two directors in the company and we have three other office staff.

PN106.

So the 10 people - employees - in the factory do that fabrication cutting work, as well as some who have supervisory roles, but the 10 essentially do those sorts of works as covered by the manufacturing award?---Yes, definitely 10.

PN107.

Yes?---Yes.

**** ROGER JOSEPH BLUETT XN MR SMITH

PN108.

Thank you. Thank you, Commissioner. No further questions.

PN109.

THE COMMISSIONER: Thank you. Mr Vroland?

<CROSS-EXAMINATION BY MR VROLAND [10.08 AM]

PN110.

MR VROLAND: Thank you, Mr Bluett. Have you agreed to bargain for an enterprise agreement?---No.

PN111.

You said now that you have 10 employees in the factory. Can I take it that those would be considered to be production employees?---Yes.

PN112.

Of those 10 production employees, how many of them are permanent employees?
---Nine.

PN113.

The other employer, what’s the nature of their employment?---He’s just a new worker, so he’s on a casual until we decide to take him on, on a permanent basis.

PN114.

When was that casual employee employed, first?---He was employed early November.

PN115.

Can you be specific as to - - -?---No.

PN116.

- - - the date?---No, I couldn’t, off the top of my head. I’d have to get information to check that out.

PN117.

It is, to some extent, material. Would he have been employed in the first week of November?---I doubt it, because it was Cup weekend. I believe it was the start of the second week.

PN118.

Start of the second week. Thank you. I have no further questions.

PN119.

THE COMMISSIONER: Thank you. Mr Smith, any other questions?

PN120.

MR SMITH: Sorry - - -

PN121.

THE WITNESS: Wages?

PN122.

MR SMITH: No, that’s all right. We’re not going - yes, okay. No further questions, thank you, Commissioner.

**** ROGER JOSEPH BLUETT XXN MR VROLAND

PN123.

THE COMMISSIONER: Okay. Thanks, Mr Bluett. Can I just, for my own clarity, you have, you say, 10 production?---Yes.

PN124.

There’s nine permanent and one casual. You say the casual was employed approximately the second week in November?---Yes.

PN125.

Now, you said you have a leading hand?---No, they’re included in those 10 in - - -

PN126.

They’re included in the 10?---Or in the nine, I should say.

PN127.

In the nine. So one’s a supervisor?---There’s a production manager and then a supervisor.

PN128.

Okay. So there’s one production manager, and this is - all right - and one supervisor in the nine. Okay. All right, thank you. That’s it, thanks.

<THE WITNESS WITHDREW [10.10 AM]

PN129.

THE COMMISSIONER: Mr Vroland, just in regard to the nine, it’s not the union’s intention, I would assume, clarify me if I’m wrong, that any enterprise bargaining would not try to encompass, I would assume, the two directors?

PN130.

MR VROLAND: The two directors, no. No.

PN131.

THE COMMISSIONER: The two office staff?

PN132.

MR VROLAND: No, Commissioner.

PN133.

THE COMMISSIONER: What about the production manager and supervisor?

PN134.

MR VROLAND: Can I just get some instructions on that? No, Commissioner.

PN135.

THE COMMISSIONER: No - - -

PN136.

MR VROLAND: No, they’re - - -

PN137.

THE COMMISSIONER: - - - it’s not intended to cover the production manager or the supervisor?

PN138.

MR VROLAND: No, that’s not our intention, Commissioner.

**** ROGER JOSEPH BLUETT XXN MR VROLAND

PN139.

THE COMMISSIONER: Right. So it leaves seven production employees; is that - - -

PN140.

MR VROLAND: That’s by my count, correct, Commissioner.

PN141.

THE COMMISSIONER: Right. When I went to George Street State School in Fitzroy, you take two away from nine, it leaves seven. Yes.

PN142.

MR VROLAND: I think our maths can extend that far, Commissioner.

PN143.

THE COMMISSIONER: Okay, right. You agree with that calculation, Mr Smith?

PN144.

MR SMITH: Yes, Commissioner.

PN145.

THE COMMISSIONER: Okay, right. Right, Mr Vroland, sorry.

PN146.

MR VROLAND: Thank you, Commissioner. This is an application made under section 236 of the Fair Work Act, and that section, at subsection (2), says that the - well, subsection (1) basically provides that a bargaining representative of an employee may make a majority support the termination application. Subsection (2) sets out what the application must specify, and in this case, the application has been made, I don’t think that’s seriously contested. You have the application before you and it’s been served on our friends.

PN147.

The application does specify the employees who will be covered by the agreement, and you’ve just had the benefit of the exchange now to clarify the scope that the AMWU is seeking to cover with the application, but you can see at paragraph 2.2 of the application the intended scope of the agreement there, which is that the agreement will cover those employees of the respondent who work in production positions at the respondent’s plant at Carter Way, Dandenong South. But as the exchange has just clarified, that is not intended to cover the production manager or the production supervisors.

PN148.

Secondly, the application - I beg your pardon, I think I’ve got that around the wrong way. Subsection 236(2)(a) must specify the employer or employers, and that is clearly set out in the application which is Bluett & Swann Folding Walls Pty Ltd, and then the comments I’ve just made in respect of the employees relate to the requirements of subsection 236(2)(b). Under section 237 of the Fair Work Act, it’s set out when the Fair Work Commission must make the majority support determination. Section 237(1) of the Act says:

The Fair Work Commission must make a majority support determination in relation to a proposed single enterprise agreement if (a) an application for the determination has been made -

We don’t understand that to be in contest, and you have the application before you, and (b):

The Fair Work Commission is satisfied of the matters set out in subsection (2) in relation to the agreement.

PN149.

If we turn, then, to section 237(2), it says there:

The Fair Work Commission 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.

PN150.

Now, in that respect, you’ve heard the evidence of both Mr Paterson and Mr Bluett as to how many employees there would be covered in the scope of the application. Mr Paterson was a little equivocal, he couldn’t be sure as to how many employees there were, but he estimated it to be around six or seven. Mr Bluett has clearly stated that there are 10 employees in production, nine of whom are permanent and one of whom is a casual, but we also have the issue of the production manager and the supervisor, and as I’ve stated, we’re not seeking to cover those in our application.

PN151.

In that case, you also have the evidence of Mr Paterson as to the means by which he obtained signatures on the petition that you have before you. That was marked AMWU2. There are five names on that petition. The employer hasn’t provided a list of employees in this case, so it is, I suppose, left to the Commission to determine the validity of that petition, but we say the petition itself is quite clear. The preamble of the petition is:

We, as employees of Bluett & Swann and members of the Australian Manufacturing Workers’ Union, want the AMWU to represent us on all workplace issues and in negotiations for an enterprise agreement.

PN152.

There’s nothing unusual about that petition. It’s the kind of petition that’s been accepted by the Commission on many occasions previously in these kinds of applications. There are five signatures on that petition and we would submit that that clearly indicates a majority of the production employees who we seek to represent in enterprise agreement negotiations. Beyond that, you also have, through the evidence of Mr Paterson, the list of AMWU members, which was marked AMWU1. That list contains six names, and again, that is the type of evidence that has previously been accepted before by the Commission in these kinds of matters, and I’ll turn to some relevant authorities shortly, but I don’t know that that’s necessarily contested.

PN153.

So we say, with respect to section 237(2)(a) that the majority of the employees has been clearly determined through the evidence, that a majority of employees want to bargain for an enterprise agreement. With respect to the remaining criteria of section 237, subsection (2)(b) says:

The Fair Work Commission must be satisfied that the employer or employers that will be covered by the agreement have not yet agreed to bargain or initiated bargaining for the agreement.

PN154.

On that matter, you have the evidence of Mr Bluett, which was clear and direct, that he has not sought to bargain for an enterprise agreement, has not agreed to bargain at this point, so there can really be no question in respect of that criteria. With respect to section 237(2)(c):

The Fair Work Commission must also be satisfied that the group of employees who will be covered by the agreement was fairly chosen.

PN155.

We would submit that the type of employees who are covered are stock standard members of the AMWU. You’ve heard the evidence of Mr Paterson as to his understanding of the nature of the work, which is fabricating of aluminium into doorframes. That is something that is clearly and uncontestably, we would submit, falling within the scope of coverage of the AMWU. It would be quite usual as well for an enterprise agreement to cover only the production area of an employer’s business. We would submit that there’s absolutely nothing unusual in that the employees are operationally distinct in that respect.

PN156.

The site in question is a single site, and as such, we would argue is geographically distinct and that goes to the relevant criteria that is set out in section 237(3)(a) which provides guidance for the Fair Work Commission in determining this question of whether or not the group of employees is fairly chosen. With respect to the final criterion, section 237(2)(d), we would simply say that there is nothing apparent on the evidence which would suggest that it would be unreasonable to make a majority support determination in these circumstances.

PN157.

I’ll leave our submissions at that point.

PN158.

THE COMMISSIONER: Thank you. Mr Smith?

PN159.

MR SMITH: Thank you, Commissioner. My friend has gone through the relevant sections, sections 236 and 237, in some detail. I won’t rehash the particulars. However, section 237 makes clear that a majority of employees who wish to be covered by an agreement must be involved in the petition and must show a majority. The AMWU’s application states that they have five signatures on the petition. The company has 10 employees who will be covered by the proposed EBAs, and have coverage under the Manufacturing and Associated Industries and Occupations Award 2010, as well as the National Metal and Engineering On-Site Construction Industry Award 1999, which I believe is the pertinent award to the proposed EBAs.

PN160.

So this means that the AMWU has shown that they have five employees out of 10. As stated by Cloghan C in Liquor, Hospitality and Miscellaneous Union v MSS Security (2010), the majority must be 50 per cent plus 1, not just 50 per cent. At the time of the application that was submitted, 10 employees have coverage under the proposed - under the awards and the proposed EBAs. Just to go into a bit more detail with the coverage, the type of work that these employees do, Group C7 under the Manufacturing and Associated Industries Award, just to highlight a few points, is able to provide trade guidance and assistance as part of a work team, provides training in conjunction with supervisors and trainers, understands and implements quality control, works under limited supervision, engaged in detailed drafting, planning and technical duties requiring judgment and skill.

PN161.

Then further down with the lesser trade groups, understands and implements quality control, operates lifting equipment incidental to the work, performs on trade tasks incidental to the work, inspects products and/or materials for conformity with established operational standards - inspects products and/or materials for conformity with established operational standards. Now, the AMWU has submitted that they are not looking to cover the supervisor and manager on that site. Now, I have something to say, clarification on the type of work that they do, to show that they are covered by those awards, as are the other employees, that the other eight employees are.

PN162.

The manager coordinates production requirements, writes programs for the craft‑wood cutting and routing machine, runs the machine, instructs staff about their duties, checks quality control. He lays up vinyls, fabrics on pin-boards. He assembles panels and produces all special manufacturing, including glass wall systems and inset glass doors, as well as training staff in the manufacturing systems. Those duties are covered in the applicable awards. The supervisor, to go further, when the manager is not in the factory, assumes that supervisory and managerial role; does similar duties, checks stock levels, helps coordinate employees and assembly of - manufacture of panels. He again checks quality control and has the task of assembling all expanding panels, as these are more complicated than normal panels and require more skill.

PN163.

So, again, the duties are covered under the applicable award.

PN164.

THE COMMISSIONER: But that’s not the test.

PN165.

MR SMITH: Our argument is that these employees should be accepted as being covered as - employees to be covered under the award to establish the majority.

PN166.

THE COMMISSIONER: But that’s not the test.

PN167.

MR SMITH: Okay.

PN168.

THE COMMISSIONER: The test is - there’s two parts to the test. One is the employees at a time determined by the Commission, the last signature on the petition was signed 7 November. There’s one casual that was employed after that date, so at the time of the last signature on the petition, there were nine production employees. The second test is those that are to be covered by the agreement, not those that are covered by an award, right? So it’s intended that only seven of those nine employees are to be covered by the agreement. So there’s five signatures out of seven. Again, when I went to George Street State School, that says that’s more than 50 per cent plus 1.

PN169.

MR SMITH: Yes, Commissioner. Just on that point, without seeing the evidence and being able to establish that, there’s also the possibility that the people that have been requested to be excluded from this agreement may have also signed the petition, which if they’re to be excluded from this agreement - if, for example, two those out of the five are these managers - - -

PN170.

THE COMMISSIONER: Okay.

PN171.

MR SMITH: - - - then there’s really three that are going to be covered by the agreement - - -

PN172.

THE COMMISSIONER: Well, then, the way we resolve that is that the company provides the Commission with a list of the nine names including the supervisor and the production manager in that nine, and then I will compare that to the petition and see whether or not the production manager and supervisor - and I won’t advise either party whether they did or did not. You just need to be satisfied that I will look at it and if their names do not appear on that petition, then I will deal with the petition as it is.

PN173.

MR SMITH: Okay, yes. We will be able to provide the list, however, I don’t have it here today. I apologise, but - - -

PN174.

THE COMMISSIONER: No, no, that’s fine. Yes.

PN175.

MR SMITH: - - - that is something we can provide to the Commissioner.

PN176.

THE COMMISSIONER: Yes.

PN177.

MR SMITH: We also have further concerns just in regards to how the petition was made. The petition was handed to an employee and what actions were taken after that with that employee to the other employees, what information was handed over, we don’t know whether there’s any possibility of not presenting everything in a clear manner, that those employees can make a - - -

PN178.

THE COMMISSIONER: Coercion?

PN179.

MR SMITH: Potentially, but more that things just are omitted or it’s just, “Oh, look, sign this. We will be able to take care of you”, without really going into what their rights are in the future process.

PN180.

THE COMMISSIONER: But doesn’t Mr Paterson counteract that argument by saying he actually met with all those who became members of the union and explained to them - and he said this under oath - the processes and the implications of a petition and it was a longstanding member that then, later on, went to the union office and sought the petition after Mr Paterson had explained to those that gathered, and he says at least five.

PN181.

MR SMITH: I accept that, yes, Mr Paterson’s statement does clarify that, what information he gave over. My only concern is what perhaps may have happened later. We have no evidence on that and it just raises some concerns, whether everybody was informed correctly. Just in closing, the respondent believes this application has no merit. We do not believe that they have the majority as covered currently by the - at the company, and as I said, we do have some concerns over the manner in which the petition was sought. Thank you, Commissioner.

PN182.

THE COMMISSIONER: Well, I don’t need to hear from Mr Vroland. What I intend to do is, Mr Smith, if you could provide me, as I’ve said, with the nine names of those production employees, including the production manager and supervisor. I will compare that to the petition that I’ve got and determine whether their names are on it, and if they are, then that changes the dynamics in terms of the petition, because as I’ve said, there are two parts to the test. The second part is those that are to be covered by the agreement, and the union says the production manager and the supervisor are not to be covered by the agreement.

PN183.

But if I’m satisfied that their names do not appear on the petition, then I’m satisfied that the rest of the criteria that the Commission has to take into account - fairly chosen, geographically distinct - then I’m satisfied that the requirements of the Act have been met in issuing an order, and what I will do is advise the parties of that and then I would seek that Mr Vroland, if I do go down that way, subject to the names that I’ve got, will be required to provide a draft order identifying the respondent employer, identifying the - well, you don’t identify the employees, but the production employees to be covered, and et cetera, to comply with the Act.

PN184.

Okay? I think that’s about where we’re at. Thank you. So if could get that as soon as possible.

PN185.

MR SMITH: Yes, I will have that provided to you.

PN186.

THE COMMISSIONER: Because I go on leave at the end of this week for two weeks.

PN187.

MR SMITH: I’ll have it for you today, Commissioner.

PN188.

THE COMMISSIONER: Terrific. Thank you. I’ll stand adjourned.

ADJOURNED INDEFINITELY [10.30 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

MR TOBY PATERSON, SWORN [9.35 AM].......................................................... PN6

EXAMINATION-IN-CHIEF BY MR VROLAND [9.35 AM]................................ PN6

CROSS-EXAMINATION BY MR SMITH [9.46 AM].......................................... PN52

RE-EXAMINATION BY MR VROLAND [9.51 AM].......................................... PN73

THE WITNESS WITHDREW [9.51 AM]................................................................ PN77

ROGER JOSEPH BLUETT, SWORN [10.03 AM]................................................. PN90

EXAMINATION-IN-CHIEF BY MR SMITH [10.04 AM].................................... PN92

CROSS-EXAMINATION BY MR VROLAND [10.08 AM]............................... PN109

THE WITNESS WITHDREW [10.10 AM]............................................................ PN128

EXHIBIT AMW1 LIST OF PAID-UP FINANCIAL MEMBERS OF AMWU.... PN27

EXHIBIT AMWU2 PETITION FOR REPRESENTATIONAL RIGHTS TO BARGAIN PN46

Fair Work Commission Transcripts

B2015/225, Transcript of Proceedings [2015] FWCTrans 60 (13 February 2015)