Australian Municipal, Administrative, Clerical and Services Union v The Salvation Army (Peninsula Youth and Family Services)

[2013] FWC 6287

[2013] FWC 6287

FAIR WORK COMMISSION

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union
v
The Salvation Army (Peninsula Youth and Family Services)
(B2013/1177)

COMMISSIONER JOHNS MELBOURNE, 6 SEPTEMBER 2013

Application by the Australian Municipal, Administrative, Clerical and Services Union for a majority support determination.

[1] On 27 August 2013 an application was made by the Australian Municipal, Administrative, Clerical and Services Union (ASU) under section 236 of the Fair Work Act 2009 (the Act) for a majority support determination (MSD) against The Salvation Army (Peninsula Youth and Family Services) (the Respondent).

[2] The ASU has sought the MSD be made by the Fair Work Commission (the Commission) in respect of all employees of the Respondent except for its Directors and employees employed in Residential Youth Services.

[3] Section 237 of the Act sets out when the Commission must make a majority support determination. It provides as follows:

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.

[4] On 28 August 2013 the Respondent advised that it did ‘not object to the application ... to commence bargaining for an enterprise agreement for PYFS as outlined in the [ASU’s] application.’

[5] On 30 August 2013 the Commission sought clarification from the Respondent about its position. The Commission wrote:

From your email below I understand that The Salvation Army does not oppose the making of a MSD in respect of non-RYS employees.
 
In those circumstances it is not clear whether (in the face of The Salvation Army’s non-objection to the MSD) The Salvation Army is still refusing to agree to bargain in respect of non-RYS employees.
 
If (as your email states below) The Salvation Army does not oppose a MSD being made against it, then is the Commission to assume that The Salvation Army now agrees to bargain in respect of non-RYS employees?

[6] On 30 August 2013, the Respondent indicated by email that it agreed to bargain in respect of employees not employed in Residential Youth Services. On 3 September 2013 the ASU indicated, despite the Respondent agreeing to bargain, it would not withdraw its application for a MSD.

[7] Having regard to the Respondent’s agreement to bargain, the Commission cannot be satisfied that ‘the employer... that will be covered by the agreement [has] not yet agreed to bargain’ as required by section 237(2)(b) of the Act. Consequently the ASU’s application for a MSD must fail. In the present matter the Commission does not have jurisdiction to issue the MSD the subject of this application.

[8] Accordingly, the application is dismissed. An Order to this effect will be issued shortly.

COMMISSIONER

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