Australian Municipal, Administrative, Clerical and Services Union v Aids Housing Action Group of Victoria Inc

[2010] FWA 6736

[2010] FWA 6736

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.236—Majority support determination

Australian Municipal, Administrative, Clerical and Services Union
v
AIDS Housing Action Group of Victoria Inc
(B2010/3177)

COMMISSIONER GOOLEY MELBOURNE, 31 AUGUST 2010

Application for a majority support determination.

[1] On 6 July 2010 the Australian Municipal Administrative Clerical and Services Union (ASU) applied pursuant to section 236 of the Fair Work Act 2009 (the FW Act) for a majority support determination. It seeks a determination that a majority of the employees who will be covered by a proposed single-enterprise agreement to be made with AIDS Housing Action Group of Victoria Inc (AHAG) wish to bargain with their employer. The application was not opposed by the employer.

[2] Sections 236 and 237 of the FW Act set out the requirement for the making of a majority support determination.

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.

237 When FWA must make a majority support determination

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.”

[3] The ASU is the bargaining representative for the employees. On 22 September 2009 the ASU wrote to AHAG to initiate bargaining for an agreement. The ASU wrote again on 7 April 2010. On 24 May 2010 the ASU again wrote to AHAG noting that there had not been a response to the earlier correspondence and advised them of the views of the employees. Attached to the letter was a petition signed by the four employees dated 15 May 2010 which stated as follows:

“We the undersigned workers of the AIDS Housing Action Group (AHAG) respectfully request that AHAG immediately begin Enterprise Bargaining with the Australian Service Union.”

[4] On 7 June 2010 AHAG advised that the committee of management of AHAG would discuss the ASU request at their meeting on 8 June 2010. Having received no further response from AHAG the current application was made.

[5] At the hearing, Mr Price, on behalf of AHAG, advised that having considered the ASU correspondence the committee decided to seek to transition their staff to another agency because their governance capacity is limited. 1

[6] I examined the petition and it is clear that a majority of employees wish to bargain and there is no dispute that AHAG has not yet agreed to bargain, or initiated bargaining, for an agreement. Further as there are only 4 employees there is no issue that the group who will be covered by the agreement was fairly chosen.

[7] Accordingly on the basis of the material before me I am satisfied that there is majority support of the employees and therefore a Determination (PR999132) has been issued.

COMMISSIONER

Appearances:

L Court for the Applicant

B Price for the Respondent

Hearing details:

2010.

Melbourne

July 9

 1   Transcript PN 11

Printed by authority of the Commonwealth Government Printer

<Price code A, PR501172>