“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Adtrans Automotive Group Pty Ltd, Graham Cornes Motors Pty Ltd

[2015] FWC 3807

[2015] FWC 3807

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination
s.739—Dispute resolution

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Adtrans Automotive Group Pty Ltd, Graham Cornes Motors Pty Ltd
(B2015/419)

Adtrans Automotive Group Pty Ltd
(C2015/2553)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 5 JUNE 2015

Majority support determination - secret ballot - majority of employees wanting to bargain not established.

[1] On 7 April 2015 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 FW Act) through which it sought a majority support determination with respect to nominated groups of employees within the Adtrans Automotive Group Pty Ltd and Graham Cornes Motors Pty Ltd (Adtrans) in South Australia. The AMWU requested that the Fair Work Commission (FWC) make this determination on the basis that the employer had refused to bargain, the identified employees represented a group which were fairly chosen and that a petition signed by various employees, and provided to the FWC on a confidential basis, established the majority employee preference.

[2] On 16 April 2015 the AMWU lodged an application pursuant to s.739 of the FW Act in relation to the same employer. In that application the AMWU sought the assistance of the Fair Work Commission to resolve a dispute about the employer proposal for individual agreements to replace the current Adtrans Group - Service Workshops - Cars (SA) Collective Workplaces Agreement 1st July 2012 - 30th June 2015 (the existing agreement). This proposal incorporated a proposed ballot to determine this issue.

[3] Both matters were considered at a hearing on 20 April 2015. Mr Hardie appeared for the AMWU and Ms Swift, of counsel, appeared for Adtrans pursuant to a grant of permission made under s.596(2)(a) and (c). At this hearing I proposed to the parties that the FWC would request the Australian Electoral Commission to conduct a postal ballot of designated categories of employees to determine whether the majority of these employees wanted to bargain with their employer for a new Enterprise Agreement under the Fair Work Act 2009. The employees to be balloted were described in the same terms as the description of the employees covered by the existing agreement but that, because of entities absorbed into the Adtrans Group since the existing agreement came into effect, it covered a broader range of workplaces.

[4] I advised that the outcome of that ballot would then determine whether a majority support determination should be issued pursuant to s.237 of the FW Act. My proposal required that the ballot proposed by Adtrans would be discontinued, at least pending the outcome of the majority support determination ballot. Notwithstanding various concerns about access to employees and the advice to be provided to employees, both parties agreed to this proposal as a means of resolving both the majority support determination issue and addressing the s.739 dispute application.

[5] I subsequently provided to the parties proposed Directions and an advice to employees. The form of this advice was the subject of a telephone conference on 28 April 2015. The advice I provided to employees on 29 April 2015 was in the following terms:

“1. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU) has applied for a Majority Support Determination pursuant to s.236 of the Fair Work Act 2009 (the FW Act) with respect to South Australian employees (the employees) of all businesses owned and operated within the Adtrans Automotive Group Pty Ltd who are described in the following terms:

● apprentices
● cleaners, detailers
● drivers of commercial vehicles
● drivers of a courtesy car
● record-keepers
● service receptionists
● technicians
● trades assistants.

2. The majority support determination which is sought by the AMWU includes, but is not limited to, employees covered by the existing Adtrans Group - Service Workshops - Cars (SA) Collective Workplaces Agreement 1st July 2012 - 30th June 2015 (the existing agreement). That agreement achieves its nominal expiry date on 30 June 2015.

3. A majority support determination is a determination that a majority of these employees want to bargain for a new enterprise agreement which would replace the existing agreement and extend its coverage to sites acquired by the Adtrans Automotive Group Pty Ltd since the existing agreement was made.

4. If a majority support determination is made, the Adtrans Automotive Group Pty Ltd would then be required to bargain in good faith about a new enterprise agreement. There is no obligation on either party to actually reach an agreement. The FW Act sets out requirements for bargaining arrangements and for the approval of any agreement.

5. The AMWU and the Adtrans Automotive Group Pty Ltd disagree over the extent to which a majority of the employees want to bargain for a new enterprise agreement. Accordingly, the Fair Work Commission has decided to request the Australian Electoral Commission to conduct a postal ballot for the employees to determine the majority employee position in this regard. This ballot will close on 29 May 2015. The Fair Work Commission will declare the results shortly after that date.

6. The Australian Electoral Commission will shortly forward ballot material to the employees on addresses provided by Adtrans Automotive Group Pty Ltd. That material will simply invite employees to vote on the following question:

“Do you want to bargain with your employer for a new Enterprise Agreement under the Fair Work Act 2009?”

7. This ballot will replace the AMWU petition signed by some employees in support of bargaining for a new Enterprise Agreement. In addition, Adtrans Automotive Group Pty Ltd has confirmed that it will not proceed with a proposed ballot to determine if a majority of employees covered by the existing agreement wish to terminate that existing agreement, until at least the outcome of the majority support determination ballot is known.

8. Adtrans Automotive Group Pty Ltd and the AMWU have agreed to make arrangements for employees at each work site to hear from Adtrans Automotive Group Pty Ltd management and the AMWU about the effects and consequences of a “yes” or “no” vote. I anticipate advice about those arrangements will be provided to employees shortly.”

[6] Directions relative to the ballot were subsequently issued and the ballot was conducted by the Australian Electoral Commission (AEC).

[1] I note that, subsequent to the hearing on 20 April 2015, there was no challenge that the group of employees was fairly chosen.

[2] On 3 June 2015 the AEC declared the results of the ballot it had conducted. Those results indicate that there were 216 persons on the roll of voters. Further, of the 128 persons on the roll who voted, 48 voted in favour of the following question: “Do you want to bargain with your employer for a new Enterprise Agreement under the Fair Work Act 2009?”

[3] I note that, following the ballot declaration the AMWU initially advised that it wished to discontinue the application but subsequently advised that it would not do so and would await this decision.

[4] Section 237 of the FW Act provides that the FWC must make a majority support determination if an application for that determination has been made, and if the FWC is satisfied of the matters set out in subsection (2). That subsection states:

“237 When the FWC must make a majority support determination

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.”

[5] There is no question that an application for a majority support determination has been made. I am satisfied that the group of employees proposed to be covered by the agreement was fairly chosen and that Adtrans has not agreed to bargain or has not initiated bargaining for the proposed agreement. However, the ballot conducted by the Australian Electoral Commission does not establish that a majority of the employees want to bargain. That majority position is essential prerequisite for the making of any majority support determination. In the absence of that majority position I do not consider that a majority support determination can, or should be made. The majority support determination application must be dismissed on this basis.

[6] The s.739 application will be kept open until 12 June 2015. Absent a request for the FWC to take further action in relation to this application, that file will be closed on that day. I note that the s.739 application appears to relate to concerns about actions being taken or proposed by Adtrans to seek majority employee support for the future termination of the agreement. I note that the agreement has not yet reached its nominal expiry date and that, in any event, the provisions of Division 7 of Part 2-4 of the FW Act may be relevant in these circumstances.

Appearances:

T Hardie for the Applicant.

J Swift of counselfor the Respondent.

Hearing details:

2015.

Adelaide:

April 20.

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