Association of Professional Engineers, Scientists and Managers, Australia, The v Sun Pharmaceutical Industries (Australia) Pty Ltd T/A Sun Pharma

[2018] FWC 61

[2018] FWC 61

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

Association of Professional Engineers, Scientists and Managers, Australia, The

v

Sun Pharmaceutical Industries (Australia) Pty Ltd T/A Sun Pharma

(B2017/1212)

Deputy President Gooley MELBOURNE, 4 JANUARY 2018

Application for a majority support determination.

1. On 20 December 2017, an application was made by The Association of Professional Engineers, Scientists and Managers, Australia (Professionals Australia) under s.236 of the Fair Work Act 2009 for a majority support determination with respect to certain employees of Sun Pharmaceutical Industries (Australia) Pty Ltd T/A Sun Pharma.

1. Professionals Australia has sought the majority support determination be made by the Fair Work Commission in respect of workers employed at Port Fairy, Victoria.

1. 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 the FWC 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 the FWC must make a majority support determination

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.

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.

(3)       For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A)     If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC 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.”

1. Professionals Australia provided the Commission with a copy of the petition pages that had been signed by employees who would be covered by the proposed enterprise agreement.

1. Sun Pharma provided the Commission with a list of employees who would be covered by the proposed enterprise agreement (the relevant employees).

1. Sun Pharma advised the Commission that they would not appear at the hearing to oppose the application and the hearing was cancelled and the matter determined on the papers.

1. I have compared the list of names on the petition pages against the staff list and I have found that a majority of the relevant employees signed the petition.

1. I am satisfied that a majority of the employees employed by Sun Pharma who will be covered by the proposed enterprise agreement want to bargain. I am satisfied that Sun Pharma has not yet agreed to bargain or initiated bargaining for the agreement.

1. 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.

1. A determination[1] to that effect will be issued with this decision.

1. A confidentiality order[2] will be issued with respect to the petition pages and staff list.

DEPUTY PRESIDENT

[1] PR599244

[2] PR599245

Printed by authority of the Commonwealth Government Printer

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