Australasian Meat Industry Employees Union, The v Hans Continental Smallgoods Pty Ltd
[2010] FWA 2673
•6 APRIL 2010
[2010] FWA 2673 |
|
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Australasian Meat Industry Employees Union, The
v
Hans Continental Smallgoods Pty Ltd
(B2010/2718)
COMMISSIONER SPENCER | BRISBANE, 6 APRIL 2010 |
Proposed agreement to cover employees employed in processing and dispatch operations at the Wacol plant.
[1] This decision is in relation to an application made by the Australasian Meat Industry Employees Union (AMIEU) for a majority support determination to cover employees employed in the processing and dispatch operations at the Wacol Plant of Hans Continental Smallgoods Pty Ltd.
[2] Directions were set for the filing of written submissions and evidence. The matter was heard on 1 April 2010.
[3] Section 237 of the Fair Work Act 2009 (Cth) (“the Act”) sets out the legislative tests for a majority support determination:
(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] There is no dispute that in relation to s.237(1) the Respondent has been appropriately served with the Application. There is no dispute that the requirements of s.236 have been met.
[5] The Respondent has stated that it is reluctant to commence bargaining until their new factory is completed; accordingly it has not yet agreed to bargain.
[6] The Applicant relied on a petition provided only to Fair Work Australia (FWA) to satisfy the criteria that a majority of employees employed by the Respondent at the time and who will be covered by the proposed agreement, want to bargain. The Applicant submits that the provision of the petition, signed by 249 employees on the 7th and 8th February 2010, provided support for the majority support determination.
[7] The Respondent submitted that they were deprived of the opportunity to test the validity of the petition given that the petition was provided only to FWA on a confidential basis. Further the Respondent submitted that there was an issue that some of the employees were non-English speaking and therefore they could not be confident that employees had understood the nature and purpose of the petition they were being asked to sign.
[8] Furthermore the Respondent argued that a copy of a Union newsletter included an article regarding allegedly misleading information about the proposed agreement.
[9] The Applicant stated that the petition had been signed by a majority of employees (50 per cent plus one) and the question to employees was quite clear. In addition the Applicant submitted that the Article was published on 16-20 February 2010, whereas the petition was signed at the latest on 8 February 2010.
[10] The Applicant further submitted that if the Respondent was concerned regarding the nature in which the petition was produced they could have cross-examined Mr Orr, the Union Delegate involved with the petition at the site.
[11] The Respondent waived its right to cross-examine Mr Orr, accordingly, there is no evidence regarding the extent of non-English speaking employees at the site. There was also no evidence that the petition had been gained by duress or coercion. The evidence on this matter by Mr Orr was not undermined. The Respondent was at liberty to test these matters; and also there was an opportunity (in lieu of undertaking a Secret Ballot on the issue) to test whether any duplication, falsification had occurred against the names of employees.
[12] The Respondent declined to take this offer on the basis that it was contingent on resiling from the Postal Ballot or Secret Ballot on the majority support issue.
[13] The other challenges raised by the Respondent, in the absence of evidence, do not invalidate the petition; or the manner in which it was derived.
[14] There are factual similarities between the circumstances of the case Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Kinkaid Pty Ltd t/a Cadillac Printing 1 and the current matter. Accordingly, I adopt the course of SDP O’Callaghan whereby he stated:
“It is conceivable that there may be circumstances where a petition could not be relied upon as an appropriate device to determine majority support for bargaining. If, for instance, there was some evidence that the petition had been falsely derived or that the signatures had been achieved by duress, an alternative means of establishing employee views would need to be considered.
In this case, despite the Cadillac concerns, there is no evidence which discredits the standing of the petition.”
[15] Whilst the Respondent raised the case authority of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Cochlear Limited 2 which dealt with a multicultural workplace, Commissioner Harrison in that matter ordered a Secret Ballot; however, distinct from this matter, he emphasised that the matter was affected by the long term difficulties between the parties at the workplace and that the matter may be vulnerable to further litigation if the Secret Ballot was not ordered.
[16] The petition has been assessed and examined against the list of employees to confirm the majority support. The requirements of s.237(2)(a) have been met. There is no dispute that the Respondent has not yet agreed to bargain for an agreement or evidence to support that the employees to be covered by the agreement were not fairly chosen.
[17] Accordingly, on the basis of the material before me, and the further lack of challenge to it, I am satisfied that there is majority support of the employees as set out above. Therefore, a Determination (PR995746) consistent with this decision has been issued.
COMMISSIONER
Appearances:
Newman, C of the AMIEU for the Applicant
Rodgers, M of Livingstones Australia for the Respondent
Hearing details:
1 April 2010, Brisbane
1 [2009] FWA 1123 at paras 13 and 14.
2 [2009] FWA 67.
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