“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

[2015] FWC 8465

[2015] FWC 8465

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(B2015/1154)

DEPUTY PRESIDENT KOVACIC CANBERRA, 7 DECEMBER 2015

Bargaining - majority support determination..

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made an application on 21 September 2015 under s.236 of the Fair Work Act 2009 (the Act) seeking a majority support determination in respect of employees who are members or are eligible to be members of the AMWU and who are employed by The Chocolate and Confectionery Company Pty Ltd T/A Ernest Hillier (Hillier’s or the Respondent) at its factory in North Coburg, Victoria. The Respondent opposed the application.

[2] The application was listed for a conference on 15 October 2015. Hillier’s wrote to the Fair Work Commission (the Commission) on 14 October 2015 setting out their reasons for not wishing to bargain for a new agreement. On receipt of that letter the AMWU asked that the conference date be vacated and the matter determined on the papers.

[3] The AMWU subsequently provided the Commission with a copy of the petition referred to in their application, while Hillier’s provided the Commission with a list of employees.

Background

[4] Employees of Hillier’s are employed under the Ernest Hillier’s Enterprise Agreement 2013 1 (the expired agreement) which passed its nominal expiry date on 16 May 2015.

[5] In September 2015 a number of Hillier’s employees signed the petition indicating that they wished to bargain for an enterprise agreement. The petition read:

“We, as employees of The Chocolate and Confectionery Company and Members of the Australian Manufacturing Workers Union at 18 Hocking Street, Coburg want the AMWU to represent us on all workplace issues and in negotiations for an Enterprise Agreement.”

[6]
The petition tendered by the AMWU had 21 signatures. The list of employees provided by Hillier’s also had 21 names on it. One of the names on the petition was not able to be reconciled against the employee list. As such, it is clear that the overwhelming majority of employees wish to bargain for an agreement.

[7] The Commission’s analysis was provided to the parties by email on 30 November 2015. On 2 December 2015, Hillier’s advised the Commission that they remained unable to provide a submission in relation to the Majority Support Determination sought by the AMWU.

The statutory framework

[8] Sections 236 and 237 of the Act deal with majority support determinations. These provisions are set out below.

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC 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 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.”

The Issues to be Determined

[9] I now turn to the issue whether or not to make a Majority Support Determination. The matters which the Commission must be satisfied of before making a Majority Support Determination are set out in s.237(2) of the Act. I will deal with each of those matters separately.

(a) A majority of employees who are employed by the employer or employers at a time determined by the FWC and who will be covered by the agreement want to bargain

[10] As noted above, based on the Commission’s analysis of the AMWU petition against the list of employees provided by Hillier’s, it is clear that the overwhelming majority of employees wish to bargain for an enterprise agreement.

(b) The employer that will be covered by the agreement has not yet agreed to bargain

[11] In its response of 14 October 2015 to the Commission, Hillier’s stated that:

“As the new owners of a manufacturing business under obvious pressure, we have made it very clear to our employees, and the AMWU, that we are in no financial position to make a new enterprise agreement and that we are seeking a period of 18 months to get the business back on its feet before assessing our capacity to provide revised terms and conditions of employment.

The making of an enterprise agreement at this time may have dire consequences for the businesses capacity to succeed and maintain employment.”

[12] Hillier’s advice of 2 December 2015 that it remained unable to provide a submission in relation to the Determination sought by the AMWU did not indicate any change on the part of Hillier’s.

[13] From the above, it is clear that Hillier’s has not yet agreed to bargain.

(c) The group of employees who will be covered by the agreement was fairly chosen

[14] Give that the expired agreement covers employees who would be covered by the Manufacturing and Associated Industries and Occupations Award 2010 2, I am satisfied that the group of employees who will be covered by the agreement was fairly chosen.

(d) It is reasonable in all the circumstances to make the determination

[15] Paragraph [11] sets out the reasons why Hillier’s does not wish to bargain for an enterprise agreement. While I note those reasons, I would point out that s.228(2)(b) of the Act provides that the good faith bargaining requirements do not require “a bargaining representative to reach agreement on the terms that are to be included in the agreement.” In other words, while the Determination sought by the AMWU would, if granted, require Hillier’s to meet the Act’s good faith bargaining requirements, it would not compel Hillier’s to make an enterprise agreement.

[16] Against that background, I am satisfied that it is reasonable in all the circumstances to make the Determination.

Conclusion

[17] In summary, the Commission is satisfied that all of the matters set out in s.237(2) of the Act have been met. In those circumstances, consistent with s.237(1) of the Act, the Commission must make the determination sought by the AMWU. The Determination has been separately issued.

 1   AE400967

 2   MA000010

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