Application by Australian Nursing and Midwifery Federation

[2014] FWC 6991

[2014] FWC 6991

DECISION

Fair Work Act 2009
s.236—Majority support determination
Australian Nursing and Midwifery Federation
v
Specialist Surgicentre
(B2014/1227)
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 22 OCTOBER 2014

Application for a majority support determination - insufficient evidence that a majority of employees who will be covered by the agreement want to bargain - application dismissed.

[1] On 7 August 2014, the Australian Nursing and Midwifery Federation (the ANMF) lodged an application seeking a majority support determination be made under section 236 of the Fair Work Act 2009 (the Act). The application was made in relation to registered and enrolled nurses employed by Specialist Surgicentre (the Respondent).

[2] The application states that the Respondent had “rejected the majority of employees wishes to commence negotiations for a new enterprise agreement”[1]and had “not yet agreed to bargain, and continues to ignore ANMF’s requests to enter into negotiations for a workplace agreement”[2]. A petition containing 4 employee signatures was filed in support of the

application.[3]

[1]F30 Application Form at Question 3

[2]Ibid

[3]Exhibit ‘ANMF2’

[3] Section 237 of the Act sets out when the Commission must make a majority support determination. It provides as follows:

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.

[2014] FWC 6991

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.

[4] On 23 September 2014, the Respondent informed the Commission that it only employs 8 nurses and that one of the employees who signed the ANMF petition, Ms.

Smarelli, had resigned from her employment with the Respondent in July 2014.[4]

[4]Witness Statement of Christine Guidotti, dated 23 September 2014

[5] On 3 October 2014, the ANMF submitted that notwithstanding the Respondent’s advice that they only employ 8 nurses and that one of the 4 employees who signed the petition had since resigned, there was still reasonable evidence that a majority of nurses want the ANMF to assist them with negotiations for an enterprise agreement. In support of this proposition the ANMF submitted that according to their membership records they have 5 members listed as being employed by the Respondent (excluding Ms. Smarelli).

[6] Even taking into account the small operational and organisational characteristics of the Respondent’s business operations, I am not satisfied that because a majority of the Respondent’s employees are members of the ANMF the requirement in subsection s.237(2)(a) that a majority of employees who will be covered by the agreement want to bargain is met.

[7] Neither party made submissions about the time the Commission should use to determine if a majority of employees wished to bargain. However, regardless of whether it is taken to be before or after Ms Smarelli resigned, the result is the same. The 4 employees who signed the petition did not and do not constitute a majority of employees who will be covered by the agreement, as the employer currently employs 8 nurses, even after Ms Smarelli’s resignation July.

[8] On the current state of the evidence I am not satisfied that a majority of employees

who will be covered by the agreement want to bargain as is required by section 237(2)(a) of
the Act.

[2014] FWC 6991

[9] The ANMF put a final submission that I should order the Australian Electoral Commission to undertake a secret ballot and determine the matter in that way pursuant to s.237(3). This is a new submission which the employer has not had the opportunity to address. In those circumstances I will not take that course of action. It is open to the ANMF to make a fresh application and seek that if it wishes. At this stage I decline to make the order.

[10]      The ANMF’s application is therefore dismissed.

DEPUTY PRESIDENT

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