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

[2016] FWC 6728

[2016] FWC 6728

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)
(B2016/909)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 19 SEPTEMBER 2016

Majority support determination – Intertek Management Services (Australia) Pty Ltd – Banksmeadow site.

[1] On 24 August 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:

“Those employees of Intertek Management Services (Australia) Pty Ltd employed in the laboratory, other than Laboratory Team Leaders, at its premises at 12 Exell Street, Banksmeadow, New South Wales.”

[3] The application asserted that the employees to be covered by the proposed agreement are not currently covered by an enterprise agreement and that the group is fairly chosen as required by s.237(2)(c) of the Act as they share a community of interest and are distinct from other employees of Intertek Management Services (Australia) Pty Ltd (Intertek).

[4] Attached to the application was a letter from the AMWU to Intertek, dated 20 July 2016, notifying that it wished to commence bargaining for an agreement. Also attached was a letter from the HR Director of Intertek declining the invitation to commence bargaining, dated 27 July 2016.

[5] The matter was heard on 5 September. The AMWU was represented by Ms L. Saunders and Ms R. Fortescue. Intertek was represented by Ms K. Ventra.

[6] The AMWU tendered a letter to Intertek’s solicitors, Crawford Legal, which set out the basis of the AMWU’s coverage of the employees to be covered by the proposed agreement (Exhibit S2).

[7] The AMWU tendered a petition (Confidential Exhbit S3) signed by 11 employees which stated:

“I want to bargain for an enterprise agreement with Intertek Banksmeadow, NSW. I agree to this petition being used to demonstrate to the Fair Work Commission that the majority of Intertek employees want to bargain with Intertek for an enterprise agreement.”

[8] A redacted version was provided to Intertek.

[9] The parties adjourned into conference chaired by the Commission. It was agreed that Intertek would provide to the Commission the relevant list of employees. I would then compare the two lists and determine whether there was majority support for the AMWU to bargain on behalf of the employees. This agreement was outlined by me on transcript.

[10] Ms Ventra forwarded the employee list on 6 September 2016.

[11] My check of the petition signatures against the employee list reveals that 11 out of 14 employees signed and therefore expressed a desire to bargain.

[12] At my request Intertek’s legal representative provided a further written submission on 9 September. Whilst not seeking to be shown the signed version of the petition, the submission argued that the AMWU should provide further justification for confidentiality.

[13] Ms Saunders replied on 13 September. She submitted that the agreement reached at the hearing should be maintained.

Relevant Legislation

[14] 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.”

Conclusion

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

[16] I am satisfied that the requirements of s.237(2) have been met.

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

DEPUTY PRESIDENT

Appearances:

L. Saunders with R. Fortescue for AMWU;

K. Ventra for Intertek.

Hearing details:

2016

Sydney:

September 5.

Final written submissions:

Intertek - 9 September;

AMWU - 13 September.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR585560>