Australian Workers' Union, The v A Schulman Plastics Pty Ltd

[2016] FWC 1364

[2016] FWC 1364

The attached document replaces the document previously issued with the above code on 2 March 2016.

It is amended by amending any reference to “AMWU’ to read “AWU”.

Associate to Commissioner Ryan

Dated 2 March 2016

[2016] FWC 1364

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Australian Workers’ Union, The
v
A. Schulman Plastics Pty Ltd
(B2016/280)

COMMISSIONER RYAN MELBOURNE, 2 MARCH 2016

Majority support determination for employees of A. Schulman Plastics Pty Ltd.

[1] This is an application under section 236 of the Fair Work Act 2009 by The Australian Workers’ Union (AWU) for a majority support determination with respect to certain employees employed by A. Schulman Plastics Pty Ltd (the Respondent).

[2] The AWU seeks a determination that a majority of the employees who perform work at the employer’s site at 19-23 Japaddy Street, Mordialloc, Victoria, who will be covered by a proposed single-enterprise agreement to be made with the Respondent wish to bargain with their employer.

[3] Sections 236 and 237 of the 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.”

[4] The AWU has filed a confidential petition signed by employees which states that those employees want to bargain collectively for a new enterprise agreement with the Respondent and that they want the AWU to represent them in such bargaining.

[5] The Respondent filed in the Commission a list of its employees relevant to this application.

[6] I have examined both the petition and the list of employees.

[7] On the basis of the material put before me, I am satisfied that the AWU is a bargaining representative for the employees concerned and is, therefore, capable of making the application for a majority support determination. I am satisfied that a majority of the employees employed by the Respondent who will be covered by the agreement want to bargain. I am satisfied that the employer has not yet agreed to bargain or initiated bargaining for the agreement.

[8] I am satisfied that the group of employees has been fairly chosen and, in all the circumstances it being reasonable to do so, I will issue a majority support determination for the employees concerned.

[9] A determination to this effect is issued today.

COMMISSIONER

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<Price code A, PR577591>