The AMWU made an application for a majority support determination (MSD) pursuant to section 236 of the Fair Work Act 2009 (Cth) (FW Act) in relation to employees of Kingspan Water & Energy Pty Limited (Kingspan) employed to perform factory work at its Smithfield site.

An MSD is sought by unions when a majority of employees who are award covered want to bargain for an enterprise agreement.

The application was opposed by Kingspan on the basis that the petition was defective as it named the incorrect employer. The name of the employer on the petition was Kingspan Environmental Australia, as opposed to Kingspan Water & Energy Pty Limited. However, the AMWU argued that it was “merely a typographical error by one of its support staff” and that the MSD provision at section 236(2)(a) of the FW Act “does not require that the petition, or any other form of documentation for that matter, identify the correct legal name of the employing entity with which employees wish to bargain”.

The AMWU further argued that section 237(2)(a) of the FW Act “only requires that the Commission be satisfied that a majority of employees who are employed by the employer (or employers) at a time determined by the Commission and who will be covered by the proposed enterprise agreement want to bargain.” “In this respect, by comparing the names of employees contained in the petition and the list of the employees, the AMWU submits that the Commission can be satisfied that the factory workers are employed by ‘Kingspan Water & Energy Pty Limited’, will be covered by the proposed enterprise agreement, and want to bargain.”

Kingspan responded by submitting that the AWMU had chosen to use a “defective petition” and that this was no “mere technicality”. Kingspan continued that “it was fundamental to the Commission’s jurisdiction to issue a MSD that it be satisfied that the employees of the employer “want to bargain with their employer. Instead of evidence to that effect, the AMWU has put before the Commission a petition that does not name the employer, but instead names an entity that does not exist.”

Deputy President Dean acknowledged Kingspan’s position that the AMWU knew it had named the wrong employer well before the matter was heard and that, after initially agreeing to conduct the petition again, subsequently “refused to do so”. In this regard Kingspan submitted that “the Commission may well wonder at the forensic purpose behind the AMWU’s refusal to re-conduct the petition naming the true employer. There could be no doubt that there was sufficient time to conduct a new petition since the conciliation on 3 December 2020 and before this matter was to be determined by the Commission.”

Kingspan finally submitted that the test before the Commission in section 237(2)(a) of the FW Act “is that a majority of employees who will be covered by the agreement and are employed by the employer want to bargain … not whether the AMWU has its paperwork in order. To determine the test in section 237(2)(a) the Commission must have evidence, which can be by any method according to section 237(3). The evidence the AMWU has chosen to provide, being only the petition, does not meet

the test. It merely demonstrates that some signatories want to bargain with an entity named by the AMWU but which is not their employer. To argue that the “correct legal name of the employing entity” does not need to be identified could have absurd results.”.

Endorsing Kingspan’s view that incorrectly naming the employer was no “mere technicality”, Deputy President Dean rejected the union’s argument that the correct name was unnecessary.

“In saying that, there may be other evidence available for the Commission to be satisfied that a majority of employees want to bargain with their employer.”

“In the circumstances of this case, the evidence of [an AMWU organiser and a Kingspan factory team leader/union delegate], combined with the matching of the names on the petition against the list of employees provided by Kingspan, is sufficient to satisfy me that those who signed the petition intended to indicate their desire to bargain with Kingspan.

“[The union organiser’s] evidence demonstrates that he had a number of discussions with the relevant employees prior to the signing of the petition, in which he discussed the benefits and process of enterprise bargaining. It is reasonable that he would have referred to the employee’s employer as ‘Kingspan’ rather than using the full company name, and that employees would understand ‘Kingspan’ in that context to be a reference to their employer.”

Deputy President Dean concluded that a majority of Kingspan employees wanted to bargain for a new agreement and that all requirements of sections 236 and 237 of the FW Act had been met. Accordingly, he issued an MSD, though not before reprimanding the AWMWU for its approach.

Deputy President Dean noted “It is disappointing that the AMWU resiled from its initial agreement to resolve the issue in dispute by simply asking the relevant employees to sign a petition that correctly identified their employer. The AMWU’s ‘administrative error’ has consumed a significant amount of the Commission’s time and resources. The application has been the subject of five conferences between two members of the Commission, in addition to a hearing and the time involved in writing this decision. All of this could have been avoided by either a basic level of attention to detail in the preparation of the petition, or by obtaining a new petition correctly identifying the employer.”

If you would like more information about the majority support determinations sought by a union, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice or assistance in relation to enterprise agreements or responding to union disputes in the Fair Work Commission, we would be happy to assist from any of our Ai Group Workplace Lawyers offices in Sydney, Newcastle, Melbourne, Wollongong, Brisbane, Adelaide or Perth, or contact Ai Group Workplace Lawyers here.

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