Australian Maritime Officers' Union, The
[2023] FWC 912
•19 APRIL 2023
| [2023] FWC 912 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Australian Maritime Officers' Union, The
(B2023/294)
| COMMISSIONER RIORDAN | SYDNEY, 19 APRIL 2023 |
Application for a majority support determination.
The Australian Maritime Officers’ Union (the AMOU/the Applicant) is seeking a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act) in relation to the employees of Qube Ports Pty Ltd (Qube/the Respondent) employed at Port Kembla in the roles of Shift Supervisors and Planners. There are 13 employees in total, employed in these roles.
A Telephone Conference was conducted in this matter on 4 April 2023. At that conference, the Applicant was requested to confidentially provide to Chambers the outcome of the Majority Support Determination Survey conducted by the AMOU. The Respondent was requested to confidentially provide to Chambers a list of employees proposed to be covered by the enterprise agreement.
The Applicant and the Respondent provided the requested materials to Chambers, and a further Telephone Conference was conducted on 12 April 2023.
At that further Conference, I advised the parties that, on the materials received, a clear majority of employees to be covered wished to bargain for an enterprise agreement. The Respondent disputed this information, stating that on their understanding, a majority of employees to be covered did not wish to bargain for an enterprise agreement. On the basis of this position, it was agreed between the parties that the Commission would conduct a confidential survey of the employees to be covered, asking whether they wished to bargain for an enterprise agreement.
Correspondence was sent by my Chambers to each of the 13 employees, asking the question:
“Do you want to bargain with Qube for an Enterprise Agreement to cover employees employed at Port Kembla in the positions of Shift Manager and Planner?”
The correspondence requested a ‘yes’ or ‘no’ response to Chambers only, by 4pm on Monday, 17 April 2023.
Responses were received from all 13 employees by the requested date.
A further Telephone Conference was scheduled at 9am on 18 April 2023, to discuss the outcome of the Commission’s confidential survey of the 13 employees.
On 14 April 2023, the Respondent sent an email to Chambers, copied to the Applicant, stating:
“Based on the feedback recently received from our employees, we are of the view that a majority do not want to bargain. If, however, the Commission’s email ballot confirms a clear majority of the relevant employees, we confirm the respondent would agree to commence bargaining for a new enterprise agreement.”
The Telephone Conference proceeded as listed on 18 April 2023, at which the parties were advised that the Commission’s survey had determined that that the majority of employees to be covered had voted to bargain for an enterprise agreement.
The Legislation
Section 237 of the Act 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.
(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.”
Consideration
Based on the evidence before the Commission and the outcome of the confidential survey conducted by Chambers, I am satisfied that a majority of the employees employed at Port Kembla by Qube as Shift Supervisors and Planners want to bargain with Qube for an agreement.
Further, Qube has advised in writing and orally at the Telephone Conference of 18 April 2023 that in light of this result, it will agree to commence bargaining for an enterprise agreement.
I will make a majority support determination as the Applicant has sought which will come into operation on today’s date. A Determination [PR761178] to that effect will now be issued in conjunction with this Decision.
COMMISSIONER
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