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

[2014] FWC 9098

[2014] FWC 9098

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)
(B2014/1088)

COMMISSIONER CRIBB MELBOURNE, 16 DECEMBER 2014

Application for a majority support determination re Broadcasting Transmission Services Pty Ltd.

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the union) has made an application under section 236 of the Fair Work Act 2009 (the Act) for a majority support determination. The group of employees who will be covered by the proposed Agreement are Technical Officers who are employed by the employer, Broadcasting Transmission Services Pty Ltd (BTS, the employer) in Victoria, South Australia, Tasmania, NSW/ACT, Queensland and Western Australia.

[2] BTS does not consent to the application but advised the Commission that it does not intend to provide any evidence or submissions in relation to the application. The application is therefore being dealt with on the papers.

[3] Directions were issued that required the AMWU to provide to the Commission, on a confidential basis, the signed petition and membership list. The company, in turn, was to provide to the Commission on a confidential basis, the list of Technical Officers employed in the various states. In addition, written submissions were to be filed by the AMWU.

1. Legislative Requirements

[4] Section 237 of the Act sets out the requirements which must be met prior to making a majority support determination. Section 237 is in the following terms:

“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.”

[5] I will deal with each of the requirements in turn.

(a) Section 237(1)(a)

[6] An application has been made by the AMWU under s.236 of the Act. As demonstrated by the petition, the AMWU is a bargaining representative of an employee who will be covered by the proposed single-enterprise agreement (s.236(1)).

[7] The application specifies the employer who will be covered by the agreement (BTS) and the employees who will be covered by the agreement - as required by s.236(2) of the Act.

[8] Therefore, I am satisfied that the requirements of s.237(1)(a) have been met.

(b) Section 237(1)(b)

[9] Section 237(1)(b) requires the Commission to be satisfied of the matters set out in section 237(2). Section 237(2)(a) requires the Commission to be satisfied that a majority of the employees who will be covered by the agreement want to bargain.

[10] As stated earlier, the Commission has been provided with a confidential petition signed by members of the AMWU who are part of the group of employees who want to bargain with their employer. The union was unable to also provide a list of members due to an administrative issue. However, it was stated by the union that the petition declares that each person who signs it is a member of the AMWU. 1 BTS has also provided the Commission with a confidential list of Technical Officer employees.2

[11] Having reconciled the signatures on the petition with the company’s employee list, I find that a majority of the employees have indicated that they want to bargain with their employer. The petition clearly states the basis on which an employee is signing the petition. Secondly, I am satisfied that the petition is an appropriate means for determining whether a majority of employees want to bargain. I also find that the relevant time for determining whether or not there is a majority is the time period over which the signatures were obtained. This was between 14 October 2014 and 23 October 2014.

[12] Therefore, I am satisfied that a majority of employees, who will be covered by the proposed agreement, want to bargain (s.237(2)(a)).

(c) Section 237(2)(b) - employer not agreed to/initiated bargaining

[13] It was submitted by the union that the Commission can be satisfied that the employer has not agreed to bargain. 3 There is no evidence before me to the contrary. Therefore, I am satisfied that the employer (BTS) has not yet agreed to bargain, or initiated bargaining, for the Agreement.

(d) Section 237(2)(c) - the proposed group was fairly chosen

[14] The union stated that it is seeking to make a national agreement that covers one category of employee, namely, Technical Officers. It was submitted that this is a fairly chosen group of employees. This is because the type of work undertaken by these employees is distinct from the rest of BTS’ employees. 4

[15] The group of employees in question are Technical Officers, employed by BTS, who work in Victoria, South Australia, Tasmania, NSW/ACT, Queensland and Western Australia. There were no submissions made by the employer that the group is not fairly chosen. Section 237(3A) requires the Commission to take into account, if the agreement will not cover all of the employees, whether the group is geographically, operationally, or organisationally distinct, in deciding if it has been fairly chosen. In this matter, on the material before me, I am satisfied that the proposed group of employees, who will be covered by the proposed agreement, has been fairly chosen.

(e) - section 237(2)(d) - reasonable in all of the circumstances

[16] It was argued by the union that it is reasonable, in all of the circumstances, that the determination be made. This was on the basis that there is no substantive opposition to the application and that the determination sought confers, on the employees in question, their bargaining rights under the Act. 5

Conclusions

[17] Taking all of the above considerations into account, I am satisfied that all of the relevant requirements of the Act have been met. Having been satisfied as to the requirements of section 237(2), the Commission is required to make the majority support determination sought by the AMWU (section 237(1)).

[18] A majority support determination 6 will be issued separately. The determination will come into operation on the day on which it is made, namely, 16 December 2014.

 1   Email from the AMWU dated 17 November 2014

 2   Email from BTS dated 12 November 2014

 3   Outline of submissions of the AMWU, dated 26 November 2014, at paragraph 8

 4   Ibid at paragraph 7

 5   Ibid at paragraph 9

 6   PR559113

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