[2013] FWC 5106

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FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.236—Majority support determination

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Iveco Trucks Australia Ltd
(B2013/1023)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 29 JULY 2013

Application for a majority support determination.

[1] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, (known as the Australian Manufacturing Workers Union) (the AMWU) has applied for a majority support determination of administrative, supervisory, technical and professional engineering employees employed by IVECO Trucks Australia Ltd (the Respondent) in Victoria.

[2] The Respondent opposed the application.

[3] There is an existing site enterprise agreement binding the AMWU and the Respondent, namely the IVECO Trucks Australia Limited and AMWU - Vehicle Division (Production) and NUW Agreement 2010 - 2013 (the Production Agreement). 1 The Production Agreement applies to employees who are members of or are eligible to be members of the relevant unions who are employed in the classifications set out at clause 17 of the Production Agreement.

The petition and the staff list

[4] In support of its application, the AMWU submitted a petition signed by 62 employees of the Respondent. I was also provided with a list of AMWU members employed by the Respondent who were members of the AMWU’s Technical and Supervisory Division. At the hearing of this matter I made orders, without objection, that the petition and the membership list not be disclosed to the Respondent or any other parties without leave of the Fair Work Commission (the Commission).

[5] I was further provided by the Respondent with a list of its white-collar employees, excluding senior executive staff (the staff list). That list was provided to the AMWU’s representative on a confidential basis and the AMWU’s representatives undertook to keep the list confidential. I made orders, without objection, that the AMWU treat the staff list as confidential and that staff list not be disclosed to any other parties without leave of the Commission.

[6] It was not suggested that the employees on the staff list were within the scope of the Production Agreement.

[7] The Respondent submitted that it was these employees who were within the scope of the AMWU’s application. The Respondent submitted that as there were 139 employees on that list, the AMWU could not establish that it had a majority of employees in support of bargaining.

[8] The petition was signed by 62 employees, four of whom were not on the staff list. It was accepted by the AMWU that it was possible that some employees covered by the Production Agreement signed the petition. I assume that the four employees who signed the petition and whose names do not appear on the staff list, were covered by the Production Agreement, and I have therefore not included them in the count. The AMWU submitted that four of its members did not sign the petition. It submitted that two of those are employees who should be included in the count. An examination of the AMWU’s membership list shows that there are three AMWU members who have not signed the petition. It was submitted that these employees should be presumed to want to bargain for an agreement. Accepting the AMWU submission that two of those persons are covered by the Production Agreement, then the number the AMWU submits should be added to the count is one.

[9] The only issue in dispute is whether there is evidence before the Commission that would satisfy it, that a majority of administrative, supervisory, technical and professional engineering employees want to bargain with their employer.

[10] This would not have been an issue had the AMWU presented a petition signed by 70 employees whose names appeared on the staff list. However it did not.

[11] A further complication is that the petition had the following preamble:

[12] The AMWU, in its original submissions, sought to include in the class of employees to be covered by the proposed agreement some managers in some departments and to exclude others.

[13] At the final hearing of the matter, the AMWU submitted that the employees to be included in bargaining were those employees not covered by the Production Agreement, up to but not including managers, in the following departments:

[14] One difficulty with this list is that it is not the same list as it appears in the petition. Another difficulty is that it does not match the Department names used by the Respondent.

[15] For example, the Respondent does not have a Truck Logistics Department. It has a department called Supply Chain, which has an associated professional family called Logistics & Supply Chain. In that department, are positions called truck logistics coordinator and commercial logistics coordinator. I assume for the purpose of the count that these employees are in the AMWU’s Trucks Logistics Department.

[16] At the hearing, the AMWU submitted that it was not seeking to cover employees in the professional families of Business Management, Human Resources Marketing and Sales.

[17] It submitted that there were 23 of these employees on the staff list and therefore the number of employees than needed to be considered totalled 116, and as there were 58 employees on the petition, plus one employee who was a member who did not sign the petition, they had a majority of employees in support of bargaining for an agreement.

[18] However a comparison of the petition and the staff list discloses that there were three employees in the excluded departments who signed the petition. If those employees are excluded the AMWU has not established that it has a majority of employees in favour of bargaining.

[19] It was submitted that the Respondent uses the term ‘managers’ in a variety of positions. It was submitted that even low level employees may be referred to as managers. For the purpose of defining employees who are to be covered by the proposed agreement the AMWU submitted that the term managers should be taken to refer to employees whose primary roles are the administration, governance, superintendence and control of other employees or a department. All other employees who have the word manager in their job title should be included.

[20] An examination of the staff list establishes that there are employees on that list who were not intended to be included in the bargaining. For example, the staff list includes the Group Financial Controller, Plant Controller, Commercial Controller, the National Fleet Manager, the National Manager Customer Services, and the National Fleet Manager Southern Region. If these six employees are excluded from the count, then there are 110 employees in the count and the AMWU has established that a majority of the employees in the departments it says will be covered by the proposed agreement are in favour of bargaining.

[21] In the end however there is a simpler way to determine the answer to the dispute before the Commission.

[22] There are 41 employees on the staff list whose title includes the word manager. If those employees are excluded from the count then there are 98 employees on the staff list. Six people with a job title that includes the word manager signed the petition. If these people are excluded from the petition, then 52 employees are definitely in the count. If that is the case, then clearly a majority of non managerial employees want to bargain for an agreement with their employer.

[23] A majority support determination is not the vehicle to determine the eventual scope of an agreement. It is however necessary to know with some precision the employees who will be covered by the proposed agreement.

[24] In this case, the AMWU is seeking to a majority support determination of administrative, supervisory, technical and professional engineering employees. They do not include in this group, managers.

[25] There are 139 employees on the staff list. There are 98 non management employees on the staff list. 52 of these employees signed the petition. Therefore there is a majority of these non managerial employees who wish to bargain particularly.

Conclusion

[26] I am satisfied the AMWU is a bargaining representative of an employee who will be covered by the proposed agreement. 2 This was not disputed by the Respondent.

[27] The application specifies the employer that will be covered by the agreement and the employees who will be covered by the agreement. 3

[28] It was submitted that given the confusion about which employees are within the scope of the proposed agreement and which are not, and given that the petition has a narrower scope that the application, I cannot be satisfied that a majority of employees want to bargain.

[29] I do not accept that the purpose of the petition was to define the scope of the proposed agreement. It is evidence that employees who signed the petition want to be covered by an agreement. The petition does not say that the employees only want an agreement if it covers the departments of engineering, customer service, finance, corporate quality or ITC and if other department employees were included, they would not want an agreement.

[30] While I accept that there was some confusion about whether managers were in or out, in the end the confusion does not affect the outcome. Whether in the end, some of the employees I have excluded from the count are within the scope of the agreement is a matter for bargaining.

[31] I am satisfied that a majority of the administrative, supervisory, technical and professional engineering employees want to bargain as 52 non managerial employees out of 98 non managerial employees have signed the petition. 4

[32] I am satisfied the Respondent has not agreed to bargain. 5

[33] I am satisfied that the group of employees was fairly chosen in that the administrative, supervisory, technical and professional engineering employees are operationally distinct. 6

[34] On the basis of the conclusions above I will make a majority support determination as sought in the application. The determination is issued with this decision.

DEPUTY PRESIDENT

 1   AE878591

 2   S.236(1)

 3   S.236(2)

 4   S.237(2)(a)

 5   S.237(2)(b)

 6   S.237(2)(c)

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