Australian Licenced Aircraft Engineers Association, The

[2013] FWC 4267

[2013] FWC 4267

FAIR WORK COMMISSION

DECISION

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

Australian Licenced Aircraft Engineers Association, The
(B2013/929)

VICE PRESIDENT WATSON SYDNEY, 2 JULY 2013

Application for a majority support determination - whether majority support - declarations in support of bargaining - Fair Work Act 2009 - ss. 236, 237.

Introduction

[1] This decision concerns an application for a majority support determination by the Australian Licensed Aircraft Engineers Association (ALAEA) made pursuant to s.236 of the Fair Work Act 2009 (the Act). The application relates to employees who are eligible to be members of the ALAEA and employed by Panasonic Avionics Corporation (Panasonic) as Licenced Aircraft Maintenance Engineers. Panasonic refers to these employees as Maintenance Service Representatives or ‘MSRs’.

[2] The matter was listed for hearing on 13 June. Mr L Amos appeared for the ALAEA and Ms B Maynard, of counsel, appeared for Panasonic. The matter was adjourned until 28 June to allow the ALAEA to seek further instructions regarding the disclosure of declarations of support or ‘pledge cards’ to Panasonic’s representative. On 28 June evidence was given by Mr Leon Barnard, Regional Manager, Maintenance Operations for Panasonic.

Legislation

[3] Section 236 of the Act provides that a bargaining representative can apply for a determination that a majority of the employees who will be covered by the agreement want to bargain with the employer for a proposed single enterprise agreement. Section 237 sets out the circumstances in which the Commission must make a majority support determination:

“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.

[4] Section 237 establishes a four pronged test. The Commission must be satisfied of each element. I will consider the requirements in turn.

Does a majority want to bargain?

[5] The primary issue in contention is whether a majority of the employees to be covered by the proposed agreement want to bargain. A preliminary question arises as to the manner for determining whether majority support exists.

[6] The ALAEA submits that the signed declarations of support are sufficient to determine majority support. It submits that signed pledges have previously been accepted by the Commission as an acceptable method for indicating support for bargaining. In Australian Municipal, Administrative, Clerical and Services Union v Regent Taxis Limited T/A Gold Coast Cabs 1, Senior Deputy President Richards found:

“...I consider the wording of the pledge to be in plain terms, and most unlikely to create any doubt in the mind of a reasonable person as to its intention (which was to show the relevant employee wanted to bargain for an agreement).” 2

[7] Panasonic submits that the wording of the pledge form provided by the ALAEA does not clearly demonstrate that the relevant employee wants to bargain for an enterprise agreement. Panasonic sought to have a ballot conducted by the Australian Electoral Commission to determine whether the majority of employees support bargaining.

[8] The declaration form provides for the appointment of the ALAEA as a bargaining representative for the relevant employee, and contains the following statement:

“I understand that this form may be used to demonstrate to Fair Work Australia that I want to bargain with my employer for a collective agreement...”

[9] I am concerned that a ballot conducted by the Australian Electoral Commission will involve unnecessary cost and delay. In my view, the declaration in the form provided by the ALAEA demonstrates support for bargaining. Obviously it is necessary to consider the legitimacy of the pledges, whether they are signed by current employees and whether they constitute a majority of the relevant class of employees.

[10] The employees concerned have not given permission for the pledges to be provided to counsel for Panasonic because of a fear of a negative reaction from the employer. I do not consider that this refusal is rational as Ms Maynard has given an undertaking not to disclose the pledges to her client. With some reluctance, and in view of the delay that has already occurred, I will examine the pledges, on this occasion, for the purposes of determining whether a majority of MSRs who will be covered by the agreement want to bargain for a proposed single enterprise agreement. I direct Panasonic to provide a list of its currently employed MSRs. I direct the ALAEA to provide all signed pledges by current MSRs to my chambers. I will determine whether this criterion is met after considering this documentation.

Has the employer agreed to bargain?

[11] It is common ground that the employer has not agreed to bargain. The employer believes that the current arrangements are in the best interests of the business and a majority of its employees do not want a change to an alternative arrangement.

Is the group of employees fairly chosen?

[12] Licensed engineers are often subject to separate representation and regulation to other employees in the airline industry. I consider that an agreement covering MSRs only is not an unfair selection of the class of employees to be covered by an agreement. Other combinations of groups of Panasonic employees may also be a fairly chosen group.

Is it reasonable to make the determination?

[13] If all other criteria are satisfied I do not consider that there is any reason why a determination should not be issued. The objects of the Act clearly encourage bargaining when a majority of employees wish it to occur. It is not sufficient in my view for an employer to oppose bargaining on the grounds that it considers it to be undesirable when a majority of its employees want it to occur.

Conclusion

[14] I will consider the outstanding question of majority support after examining the documents I have directed be provided to the Commission and inform the parties of the outcome.

VICE PRESIDENT WATSON

Appearances:

Mr L Amos for The Australian Licensed Aircraft Engineers Association

Ms B Maynard, of counsel, for Panasonic Avionics Corporation

Hearing details:

2013.

Sydney.

June

13, 28.

 1   [2009] FWA 1642

 2   [2009] FWA 1642 at [22]

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