"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

[2016] FWC 9036

[2016] FWC 9036

FAIR WORK COMMISSION

DECISION

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

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(B2016/1078)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 16 DECEMBER 2016

Majority support determination - Racing NSW.

Introduction

[1] On 6 October 2016 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) lodged an application pursuant to s.236 of the Fair Work Act 2009 (the Act) for a majority support determination.

[2] The application sought that the determination apply to:

“Employees of Racing New South Wales (Racing NSW) employed at the Australian Racing Forensic Laboratory who are currently covered by the Australian Racing Forensic Laboratory Agreement 2013 – 2016” (the Agreement).

[3] The current Agreement expired on 30 June 2016.

[4] The AMWU has requested that Racing New South Wales (Racing NSW) agree to commence bargaining, but no response has been received. The AMWU correspondence was attached to the application.

[5] The AMWU submits that the employees to be covered by the proposed agreement are fairly chosen as required by s.237(2)(c) of the Act, as they share a community of interest and are geographically, operationally and organisationally distinct from the other employees of Racing NSW.

Commission Proceedings

[6] The matter was heard on 21 October 2016. The AMWU was represented by Mr S. Howe. Racing NSW was represented by Mr G. Jolly from Minter Ellison. Mr Jolly was granted permission to appear pursuant to s.596 of the Act.

[7] The AMWU tendered a redacted version of the petition signed by employees. It states:

“I want to bargain for an enterprise agreement with Racing New South Wales. I agree to this petition being used to demonstrate to the Fair Work Commission that the majority of Racing NSW employees at the Australian Racing Forensic Laboratory want to bargain with Racing New South Wales for an enterprise agreement to cover employees at the Australian Racing Forensic Laboratory.”

[8] The AMWU informed the Commission that some nine employees, out of 16, had signed the petition on a confidential basis providing their names, addresses and contact numbers.

[9] The parties adjourned into conference. However, agreement was not reached about the procedure to be adopted to determine whether there is majority support.

[10] The matter was listed for hearing on 25 November. Directions were issued for the AMWU and Racing NSW to file and serve submissions and evidence. The AMWU was also directed to provide redacted copies of communications to Racing NSW employees.

[11] The Directions were complied with, but on 11 November I was advised that the parties had agreed that the matters could be decided on the papers. Accordingly, the hearing was cancelled.

Relevant Legislation

[12] Section 237 provides:

“237 When the FWC must make a majority support determination

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.

(3) For the purposes of paragraph (2)(a), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, the FWC 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.”

Consideration

[13] The AMWU relied on the petition collected by its delegate Mr Stephen Mulley, who provided a witness statement. The petition was provided to Ms Robyn Fortescue, the AMWU’s Assistant State Secretary on 1 October 2016. Ms Fortescue also provided a witness statement.

[14] The AMWU submits that 1 October 2016 is the relevant date for the purpose of s.237(2)(a)(i).

[15] Mr Mulley who has been an employee since November 1978, testified that the signatures were properly obtained with full explanation provided to the employees and no coercion. He personally obtained the signatures and gave the completed petition to Ms Fortescue.

[16] The AMWU submits that the Commission should utilise the common method of determining majority support by comparing the confidential petition with a list of employees provided to the Commission by Racing NSW.

[17] On 8 November Mr Jolly advised my chambers by letter that Racing NSW would not oppose the application if the Commission decided that a majority of employees had signed the AMWU petition.

[18] Racing NSW then provided to the Commission a list of employees to be covered by the proposed agreement and the AMWU provided the un-redacted copy of the petition.

[19] My check of the petition signatures against the employee list provided by Racing NSW reveals that nine out of 16 employees signed and therefore, expressed a desire to bargain.

Conclusion

[20] I am satisfied that the group of employees is fairly chosen in accordance with s.237(3A)/

[21] On the basis of my examination of the petition, I am satisfied that the requirements of s.237(2) have been met.

[22] A majority support determination will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

S. Howe for the AMWU;

G. Jolly, solicitor for Racing NSW.

Hearing details:

2016

Sydney:

October 21.

Written submissions:

2016

AWMU 28 October;

Racing NSW 8 November.

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