Application by Australian Workers' Union, the

[2016] FWC 1825

[2016] FWC 1825

DECISION

Fair Work Act 2009
s.236—Majority support determination
Australian Workers’ Union, The
v
RLA Polymers Pty Ltd
(B2016/325)
COMMISSIONER RYAN	MELBOURNE, 22 MARCH 2016

Majority support determination - RLA Polymers Pty Ltd - 215 Colchester Road, Kilsyth VIC.

[1] This is an application under section 236 of the Fair Work Act 2009 by The Australian

Workers’ Union (AWU) for a majority support determination with respect to certain

employees employed by RLA Polymers Pty Ltd (the Respondent).

[2]        The AWU seeks a determination that a majority of the employees who perform work

at the employer’s site at 215 Colchester Road, Kilsyth, Victoria, who will be covered by a

proposed single-enterprise agreement to be made with the Respondent wish to bargain with

their employer.

[3] Sections 236 and 237 of the Act set out the requirement for the making of a majority

support determination:

“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

[2016] FWC 1825

(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.”

[4]        At the request of the Commission the AWU provided a copy of the petition that it had

circulated and which was signed by employees of the Respondent. The petition was as

follows:

“We the undersigned employees of RLA Polymers, Kilsyth, in the State of Victoria,

hereby signify that we wish to bargain collectively with our employer in relation to a
[2016] FWC 1825

proposed enterprise agreement to cover employees engaged under the Manufacturing

and Associated Industries and Occupations Award 2010.”

[5]        At the request of the Commission the Respondent provided a list of its employees as at

14 February 2016. Some of the employees who signed the petition were listed on the

Respondent’s list of employees as being employed under the Storage Services Award. In

communications between the Commission and the AWU and the Respondent it became very

clear that the AWU was seeking a majority support determination in relation to employees

engaged in both manufacturing and warehousing and that the AWU considered that all

relevant employees were covered by the Manufacturing and Associated Industries and

Occupations Award 2010.

[6]        To the extent necessary, I permitted the application to be amended so as to seek a

majority support determination in relation to an enterprise agreement which would cover both

manufacturing and warehouse employees.

[7]        I have compared the list of names on the AWU petition against the list of names of

employees of the Respondent and against the list of names of persons who were working at

the premises of the Respondent on 14 January 2016 but who were employed by a labour hire

provider.

[8]        I found that 31 out of the 60 relevant employees of the Respondent signed the petition.

There were an additional 6 names on the petition but these persons were not employees of the

Respondent but were employees of the labour hire provider. Also there was an additional

name on the AWU petition which was not on the list of employees nor on the list of labour

hire employees. Given that a majority of employees of the Respondent had signed the AWU

petition I do not need to consider the position of this extra person on the AWU petition.

[9]        On the basis of the material put before me, I am satisfied that the AWU is a bargaining

representative for the employees concerned and is, therefore, capable of making the

application for a majority support determination. I am satisfied that a majority of the

employees employed by the Respondent who will be covered by the agreement want to

bargain. I am satisfied that the employer has not yet agreed to bargain or initiated bargaining

for the agreement.

[10]      I am satisfied that the group of employees has been fairly chosen and, in all the

circumstances it being reasonable to do so, I will issue a majority support determination for

the employees concerned.

[11]      A determination to this effect is issued today.

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[2016] FWC 1825