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

(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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Australian Licenced Aircraft Engineers Association, The and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] FWC 4267
Decision Date: 2 JULY 2013

CaseChat Overview and Summary

The Australian Licenced Aircraft Engineers Association sought a majority support determination under the Fair Work Act 2009, asserting that it had the support of a majority of eligible employees in its application for authorisation as a bargaining agent. The Australian and International Pilots Association opposed the application on the grounds that the Association did not have majority support. The dispute was heard in the Fair Work Commission. The legal issues the court had to decide were whether the Association had the requisite majority support for its application and the proper interpretation of the Act in relation to declarations of support for bargaining. The Commission examined the declarations of support submitted by the Association and found that several were invalid or did not count towards the majority support calculation. After excluding these, the Commission determined that the Association did not have majority support as required by the Act. The court found that the Association's application for authorisation as a bargaining agent was invalid due to insufficient majority support. The Commission's decision was based on a strict interpretation of the Act and the validity of the declarations of support. The Association's application was dismissed, and no further orders were made.

Orders