Australasian Meat Industry Employees Union, The

[2016] FWC 7182

[2016] FWC 7182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Australasian Meat Industry Employees Union, The
(B2016/973)

DEPUTY PRESIDENT BINET PERTH, 7 OCTOBER 2016

Application for a majority support determination - majority of employees wanting to bargain established.

[1] The Australasian Meat Industry Employees Union (AMIEU) made an application (Application) pursuant to s.236 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (FWC) to make a majority support determination which would require Mondo Doro Pty Ltd T/A Mondo Doro (Mondo Doro) to commence bargaining for a new enterprise agreement (Proposed Agreement) to cover those workers of Mondo Doro employed in the classifications of boners and slicers in the boning room at 3 Sainsbury Road, O’Connor in Western Australia (Employees).

[2] The AMIEU submits that it has standing to make the Application as a bargaining representative of one or more of the Employees who will be covered by the Proposed Agreement.

[3] The AMIEU wrote to Mondo Doro on 29 August 2016 requesting that the parties commence bargaining for the Proposed Agreement. Mondo Doro indicated that the company would be seeking advice regarding its next course of action but as at the date of the Application had not subsequently agreed to bargain nor initiated bargaining.

[4] On 2 September 2016 AMIEU attended the workplace and presented a petition to the Employees, which the AMIEU say a majority of the Employees signed, appointing the AMIEU as their bargaining representative and confirming that they wish to bargain with Mondo Doro for a new agreement (Petition).

[5] The making of a majority support determination simply confirms that the majority of the employees to be covered by a proposed agreement want to bargain with the employer towards such an agreement. The effect of a majority support determination is to require the commencement of the agreement bargaining process, but it neither requires that an agreement be reached, nor dictates the terms of any such agreement.

[6] The FWC must make a majority support determination in the following circumstances:

“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.”

[7] In order to determine whether the majority of Employees want to commence bargaining, directions issued on 14 September 2016 (Directions) directed Mondo Doro to file with the FWC on a confidential basis a list of the workers of Mondo Doro employed in the classifications of boners and slicers in the boning room at 3 Sainsbury Road, O’Connor in Western Australia.

[8] A comparison of the materials filed by Mondo Doro with the Petition revealed that:

● At the time of the Application six employees were employed by Mondo Doro in in the classifications of boners and slicers in the boning room at 3 Sainsbury Road, O’Connor in Western Australia.

● Four of those employees voted in favour of initiating bargaining with Mondo Doro in respect of the Proposed Agreement.

● One of those four employees has since resigned.

[9] In written submissions filed with the FWC in accordance with the Directions, Mondo Doro confirmed that Mondo Doro supported the Application and considered it reasonable in all the circumstances for the FWC to make the majority support determination sought by the AMIEU.

[10] In accordance with the Directions, Mondo Doro provided a copy of the Application, the AMIEU Statutory Declaration, their submissions and evidence and the Directions to all the Employees. The Directions contained an invitation for any employee who wished to be heard with respect to the Application, to contact the FWC by close of business on Friday 30 September 2016. The parties were advised that in the absence of any such contact being made or any request by the parties to make oral submissions a conclusion about the Application may be reached on the written materials filed.

[11] On 23 September 2016, Mondo Doro lodged with the FWC a statutory declaration of Ms Daniele Ciampini, Senior Manager of Mondo Doro, confirming that the Directions had been complied with and the Employees had been provided with copies of the documents as requested by the Directions.

[12] The effect of section 237 of the FW Act is that I am required to make a majority support determination if the requirements of this section are satisfied. In this respect, my comparison of the Petition and the materials filed by Mondo Doro confirms that a majority of Employees to be covered by the Proposed Agreement want to bargain for the Proposed Agreement. Mondo Doro have acknowledged that it has not yet agreed to bargain but have indicated that it believes that it is reasonable in all the circumstances for the FWC to make the majority support determination sought by the AMIEU. There is also no argument that the group of Employees to be covered by the Proposed Agreement was not fairly chosen.

[13] No other factor mitigating against the making of a majority support determination has been put to me. Accordingly, section 237 requires that a majority support determination be made in this instance. That determination (PR586141) will be issued consistent with this decision.

[14] It remains for me to confirm that this determination represents only the commencement of a process which may culminate in the approval of an agreement consistent with section 185 of the FW Act. I anticipate that Mondo Doro will issue notices of employee representational rights consistent with section 173 of the FW Act shortly. Those notices should reflect the content of Schedule 2.1 of the Fair Work Regulations 2009. I anticipate that Mondo Doro will then negotiate with the AMIEU as the bargaining representative for some of the Employees, together with any other nominated employee bargaining representative, through discussions directed at trying to reach agreement on a proposal to be put to Employees. If such a proposal is endorsed by a majority of the Employees who vote on it, an application for approval of that agreement may then be made. Further information about the agreement making process can be obtained from many sources, including the Fair Work Commission website PRESIDENT

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<Price code A, PR586172>