Australian Workers' Union, The v Sphere Healthcare Pty Ltd

[2018] FWC 1952

[2018] FWC 1952

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Australian Workers’ Union, The
v
Sphere Healthcare Pty Ltd
(B2018/183)

DEPUTY PRESIDENT DEAN SYDNEY, 5 APRIL 2018

Application for a majority support determination.

[1] On 15 March 2018 the Australian Workers’ Union (AWU) made an application for a majority support determination pursuant to s.236 of the Fair Work Act 2009 (the Act) with respect to employees of Sphere Healthcare Pty Ltd (Sphere) employed at the Moorebank site in the classifications of: manufacturing, packaging, laboratory, engineering and maintenance, warehouse and services, and clerical assistant/data entry.

[2] The AWU seeks a determination that a majority of these employees who will be covered by a proposed agreement want to bargain with Sphere. The proposed agreement is intended to replace the Sphere Healthcare Pty Limited Enterprise Agreement 2016-2017 which has passed its nominal expiry date of 26 August 2017.

[3] Sphere did not oppose the application and indicated that it did not wish to make any submissions in these proceedings. I am satisfied in the circumstances that the application can be determined ‘on the papers’.

[4] The relevant provisions of the Act are contained in ss.236 and 237 of the Act:

“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.”

[5] The AWU provided a statement of Ms Leah Tucker (Organiser) in support of its application. Ms Tucker’s statement details her communications with the Sphere management since the current Agreement passed its nominal expiry date in August 2017. Ms Tucker stated that the AWU has been genuine at all times in an attempt to initiate bargaining for a new enterprise agreement with Sphere but Sphere has not agreed to bargain with the union.

[6] The application was also accompanied by a petition signed by 79 employees stating that they wish to bargain collectively with Sphere in relation to the proposed enterprise agreement.

[7] In compliance with the Commission Directions, the AWU provided a list of the names of employees who signed the petition in typed form and Sphere provided a list of employees who fall within the classifications set out in the application.

[8] Having examined the list of 79 names provided by the AWU and the list of 105 employees identified by Sphere, it can be established that a clear majority of the employees who would be covered by the proposed agreement have signed the petition indicating that they want to bargain with Sphere.

[9] On the material before me, and in particular in the absence of any challenged evidence, I am satisfied that:

a. the AWU is a bargaining representative for employees who will be covered by the proposed agreement and is capable of making the application for a majority support determination (s.236);

b. a majority of the employees of Sphere who will be covered by the proposed agreement want to bargain (s.237(2)(a));

c. Sphere has not yet agreed to bargain for the proposed agreement (s.237(2)(b));

d. the group of employees who will be covered by the proposed agreement was fairly chosen (s.237(2)(c)); and

e. it is reasonable in all the circumstances to make the determination (s.237(2)(d)).

[10] In conclusion, I am satisfied that all requirements of ss.236 and 237 of the Act have been met. Accordingly, the Commission must make the majority support determination sought by the AWU. A Determination will issue with this decision.

DEPUTY PRESIDENT

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