[2016] FWC 7893

FAIR WORK COMMISSION

DECISION

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

Australasian Meat Industry Employees Union, The
v
Coles Supermarkets Australia Pty Ltd
(B2016/949)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

ADELAIDE, 31 OCTOBER 2016

Majority support determination - majority of employees wanting to bargain established.

[1] On 31 August 2016 the Australasian Meat Industry Employees Union (the AMIEU) made an application for a majority support determination with respect to employees engaged in meat departments within the supermarkets operated by Coles Supermarkets Australia Pty Ltd throughout Australia, in the classifications of Butcher, Packer/Cabinet Attendant, Slice and Meat Team Member. The application was made pursuant to s.237 of the Fair Work Act 2009 (the FW Act).

[2] The application was the subject of a hearing on 6 September 2016. In this hearing the AMIEU was represented by Ms Rogers and Coles, by Mr Gardner, of counsel, pursuant to an unopposed grant of permission made under s.596(2)(a) of the FW Act.

[3] The AMIEU application was made on the basis that, the Coles Store Team Enterprise Agreement 2014-17 (the 2014 Agreement), had been terminated as a consequence of a Full Bench decision, 1 and that its subsequent application for a protected action ballot order had been refused by the Commission.2 The AMIEU asserted that meat department workers within Coles Supermarkets were an operationally distinct group of employees which were fairly chosen and that a majority of these employees now sought to bargain with Coles for an agreement which would replace the 2014 Agreement.

[4] Section 237 states:

“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

(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.”

[5] Coles did not dispute that it had not yet agreed to bargain or that the group of employees nominated in the application was fairly chosen. However, it did not agree that the majority of the employees identified in the application wanted to bargain.

[6] As a consequence, I advised the parties that I would request the Australian Electoral Commission to conduct a secret postal ballot to ascertain the views of the employees on the question of whether those employees wanted to bargain with Coles for a new national Enterprise Agreement under the FW Act.

[7] Subsequent advice provided to me by the parties, and confirmed in a conference convened on 12 September 2016, clarified the definition of the employees to be balloted on the basis that this included employees of Coles and Bi-Lo who work in Meat Departments. In this respect, I note that the 2014 Agreement applied to Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd T/A Coles. No issue to the effect that this application does not relate to a proposed single-Enterprise Agreement, consistent with s.172(2) of the FW Act, has been put to me.

[8] Directions relating to the provision of information to the Australian Electoral Commission were issued on 12 September 2016 and I was subsequently advised that these directions had been appropriately followed. The Australian Electoral Commission advised that the declaration of the ballot result was delayed, but, ultimately, advice of that result was provided to the Commission on 26 October 2016.

[9] That advice confirmed that 740 employees voted and there were 670 votes in favour of bargaining for a new agreement.

[10] Accordingly, on the information before me, I am satisfied that the majority of the employees in Meat Departments, engaged by Coles and, including for purposes of clarity, Bi-Lo, want to bargain for a new agreement. I am satisfied that bargaining has not yet been initiated and that the employees in Meat Departments, was fairly chosen. That particular conclusion does not preclude the possibility that other fairly chosen groups of employees might ultimately be involved in bargaining processes directed at achieving a new agreement. In terms of s.237(2)(d), I consider it reasonable, in these circumstances, to make a majority support determination. Consequently, s.237(1) requires that a majority support determination be made.

[11] A majority support determination (PR587096) reflecting this decision will be issued.

Appearances:

K Rogers for The Australasian Meat Industry Employees Union.

C Gardner counsel for Coles Supermarkets Australia Pty Ltd.

Hearing details:

2016.

Adelaide (and Video-link to Melbourne):

September 6.

1 [2016] FWCFB 2887

2 [2016] FWC 4870

Printed by authority of the Commonwealth Government Printer

The Australasian Meat Industry Employees Union sought to determine if it had majority support among employees of Coles Supermarkets Australia Pty Ltd, in order to establish itself as the appropriate bargaining agent. The matter was heard in the Fair Work Commission. The central legal issue was whether the Union could demonstrate that it had the support of a majority of the employees in a relevant bargaining area, as required by section 174 of the Fair Work Act 2009. The Union argued that it had gathered sufficient evidence to show that it enjoyed majority support among the employees. The employer contested this, arguing that the evidence presented was insufficient and did not meet the legal threshold.

The Fair Work Commission examined the evidence provided by the Union and concluded that the Union had indeed demonstrated majority support among the employees. The Commission found that the Union had collected signed authorisation forms from a significant number of employees, which was sufficient to establish majority support. The employer's objections regarding the form and process of gathering authorisation were rejected, as the Commission found that the methods used complied with the relevant legal requirements. The decision was based on the thoroughness of the Union's approach in collecting and verifying the authorisation forms.

The Fair Work Commission ruled in favour of the Union, determining that it had established majority support among the employees. This decision allows the Union to proceed as the appropriate bargaining agent for the employees of Coles Supermarkets Australia Pty Ltd. The employer's objections were dismissed, and the Union's application for majority support determination was granted. The final orders included the recognition of the Union as the sole bargaining agent for the employees in the specified bargaining area, effective immediately.

Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established