AMWU v Seawind Catamarans Pty Ltd
[2009] FWA 1510
•4 DECEMBER 2009
[2009] FWA 1510 |
|
DECISION AND DETERMINATION |
Fair Work Act 2009
s.236 - Application for a majority support determination
v
Seawind Catamarans Pty Limited
(B2009/11018)
COMMISSIONER HARRISON | SYDNEY, 4 DECEMBER 2009 |
Bargaining – majority support determination.
[1] This is an application for a majority support determination by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) pursuant to s.236 of the Fair Work Act 2009 (the Act). The application seeks a declaration that a majority of employees of Seawind Catamarans Pty Limited (Seawind) who will be covered by an agreement want to bargain.
[2] The provisions of s.236 and s.237 of the Act are 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 FWA 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.
237 When FWA must make a majority support determination
Majority support determination
(1) FWA 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) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which FWA must be satisfied before making a majority support determination
(2) FWA must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by FWA; 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), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA 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.”
[3] On 2 December 2009 at the conclusion of proceedings I gave the following (edited) ex tempore decision:
“Thank you. I'm going to give a decision on transcript about this application today. In doing so I'd make some observations about both surveys which have been handed up. I find the survey conducted by the AMWU to be a relatively simple one with a simple question, and that is a relevant question in my view in respect of the Act, which seeks an opinion of whether the employees want to bargain with Seawind Catamarans for an enterprise agreement, under the provisions of the Act. Contrasted with that I find the survey conducted by Seawind yesterday, contains a number of questions which are not relevant to the requirements of the Act and therefore I think skew somewhat the results. It also contained a preamble, part of which stated:
“If this application is approved it will effectively mean that employee relations with Seawind Catamarans will become under the control of the AMWU, a result that would be irreversible in the future.”
I find that this is not an accurate representation of the implications or the meaning of the Act and it is emotive in its language, therefore I have severe reservations on the results of the Seawind survey. Seawind's opposition to the application today is also predicated on issues which are not relevant to the question before the Tribunal. The question which I must ascertain or determine and must be satisfied upon, is whether a majority of employees support, an initiative by employees or their organisation to seek an enterprise agreement and to seek to bargain around an enterprise agreement. That is the question. Other matters are totally irrelevant.
In all of the circumstances I am satisfied that the survey conducted by the AMWU is reflective of the wishes of a majority of employees who will be covered by a proposed agreement and I will make a determination in accordance with the Act and in accordance with the application made by the AMWU.” 1
[4] The AMWU’s evidence was that it had been engaged with employees of Seawind for 18 months around a wide range of industrial issues including collective bargaining.
[5] It conducted a general issues survey in 2008 and a specific survey regarding bargaining in about September/October 2009. The proposition put to employees was:
“We, the employees of Seawind Catamarans want to bargain with our employer for an enterprise agreement under the provisions of the Fair Work Act 2009.”
[6] 46 of 75 eligible employees ticked the “YES” box. Mr B Hattenfels gave evidence for the AMWU that the 46 “yes” votes was the total return of the survey.
[7] Seawind, for its part, submitted that based on its own survey it conducted on 1 December, 61% of employees stated they did not understand what the AMWU survey meant. Both the AMWU and Seawind surveys were provided to me on a confidential basis.
[8] Mr Rees for Seawind submitted that the timing of the AMWU application was difficult for the company and they needed more time for management and employees to be educated about the implications of collective bargaining.
[9] In reply to my question of whether Seawind had a policy based or philosophical objection to negotiating an agreement with the AMWU he replied:
“Certainly not, no. We’re open to the agreement but we want to make sure that the agreement is really demonstrating the requirements of our employees. That’s our key driver.” 2
[10] As stated in my ex tempore decision the survey conducted by Seawind contained questions which I regarded as irrelevant to the application for a majority support declaration.
[11] Seawind’s opposition to the application is based more on its desire to postpone the application to a later date in 2010 due to commercial considerations and a desire to become more familiar with the Act.
[12] The granting of the AMWU application does not trigger a timetable for bargaining or an obligation to bargain. As the Explanatory Memorandum to the Fair Work Bill states, a bargaining representative may seek a bargaining order to require the employer to bargain. Such an application is distinct from this matter.
[13] In reviewing the survey presented by the AMWU I have no reason to doubt its accuracy or veracity.
[14] I am satisfied the jurisdictional requirements as set out in s.237(2)(a), (b), (c) and (d) have been met.
[15] Pursuant to s.237(3) of the Act I determine that a majority of employees of Seawind Catamarans Pty Limited employed at Russell Vale, NSW and who are covered by the Metal, Engineering and Associated Industries Award 1998 , want to bargain with Seawind Catamarans Pty Limited an agreement which will apply to them.
[16] This determination will come into force on and from 2 December 2009.
COMMISSIONER
Appearances:
J. Kennedy, J. Stewart and B.Hattenfels, "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU).
M. Rees, Seawind Catamarans Pty Limited.
Hearing details:
2009.
Sydney:
December 2
1 Transcript PN152-157.
2 Transcript PN30.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR991467>
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