Australian Municipal, Administrative, Clerical and Services Union v Transfield Services Ltd
[2011] FWA 5415
•16 AUGUST 2011
[2011] FWA 5415 |
|
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Australian Municipal, Administrative, Clerical and Services Union
v
Transfield Services Ltd
(B2011/176)
VICE PRESIDENT WATSON | SYDNEY, 16 AUGUST 2011 |
Application for a majority support determination - whether tests for majority support determination satisfied - whether making determination reasonable in all the circumstances - Fair Work Act, ss 236,237.
Introduction
[1] This decision relates to an application under s 236 of the Fair Work Act 2009 (the Act) by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for a majority support determination with respect to non-managerial traffic control operators employed by Transfield Services Ltd (Transfield) working on the Eastlink contract.
[2] At the hearing of the matter on 12 August 2011, Ms K McCutcheon and Ms K Dickie represented the ASU and Mr G Gosling represented Transfield. The application was not opposed by Transfield.
[3] Evidence was led from Ms Dickie, an ASU Organiser.
Background
[4] Transfield is contracted to manage the operation and maintenance, including traffic control systems, of the Eastlink Freeway. Transfield employs nine non-managerial traffic control room employees.
[5] On 10 May 2011 the ASU wrote to Transfield seeking to commence bargaining. Transfield responded to this correspondence on 17 May 2011 and said it was examining its staff conditions at the Eastlink operation and it considered that entering into negotiations for an agreement would be premature.
[6] The ASU submitted a petition signed by each of the nine traffic control operators in March 2011 indicating that they want to bargain for an agreement with Transfield. In August 2011 the control room operators individually confirmed by email to Ms Dickie that the petition was still relevant. I take these communications as confirmation of the reliability of the petition and confirmation that the stated desires of the employees to negotiate an enterprise agreement remain current.
Relevant Legislation
[7] Section 236 of the Act is as follows:
“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.
[8] The approach that FWA must adopt in relation to majority support applications is governed by s 237 of the Act which provides:
“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.
Submissions
[9] The ASU submit that the group of employees has been fairly chosen. The proposed agreement would cover traffic control room operators performing the same role at the same work location. The employees are eligible to be members of the ASU and the work performed by the employees is distinct from the work performed by other employees at the same location.
[10] Having satisfied itself of the validity of the ASU evidence, Transfield did not dispute the submissions of the ASU.
Conclusion
[11] I have had regard to the evidence of Ms Dickie and I am satisfied a majority support determination should be made in the circumstances.
[12] I am satisfied that a majority of the employees proposed to be covered by an agreement want to bargain and that Transfield has not yet agreed to bargain or initiated bargaining.
[13] In addition, I am satisfied that the group of employees has been fairly chosen having regard to the nature of the operations and the geographic location of the employees concerned. I note an absence of disagreement from Transfield as to the group of employees chosen.
[14] Further, I am satisfied that it is reasonable in the circumstances to make a majority support determination as sought in the application. The determination is issued with this decision.
VICE PRESIDENT WATSON
Appearances:
K. McCutcheon with K. Dickie for the Australian Municipal, Administrative, Clerical and Services Union
G. Gosling for Transfield Services Ltd
Hearing details:
2011.
Melbourne
August, 12
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