“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v APC Storage Solutions Pty Ltd

[2014] FWC 2576

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)
v
APC Storage Solutions Pty Ltd
(B2014/695)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 16 APRIL 2014

Application for a majority support determination.

Introduction

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) applied for a majority support determination of employees of APC Storage Solutions Pty Ltd (APC) who work in or in connection with the metal and mechanical trades (not including supervisors) at the Australia Post project at the Australia Post Parcel Facility in Sunshine, Victoria (the employees).

[2] The AMWU tendered a petition signed by one APC employee. That petition stated that the employee wanted the AMWU to represent him in bargaining for an enterprise agreement.

[3] APC said that it only expected to have one employee at the site for the entire project.

[4] The AMWU submitted that the fact that an agreement cannot be made with one employee did not preclude a majority support determination being made where one employee signs a petition that he or she wants to make an agreement with his or her employer.

[5] The AMWU submitted that as there was a majority of employees who wanted to bargain, that the group of employees was fairly chosen and APC has refused to bargain.

Conclusion

[6] Section 237(2) of the Fair Work Act 2009 provides that the Fair Work Commission (the Commission) must be satisfied that:

(a) a majority of employees who are employed by the employer and who will be covered by the Agreement want to bargain.

[7] The AMWU has established through direct evidence that a majority of employees want to bargain.

(b) the employer has not yet agreed to bargain.

[8] There was no evidence that APC had agreed to bargain.

[9] There was no evidence or submissions that the group of employees was not fairly chosen.

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

[10] The Commission has a role in facilitating bargaining. 1 The Commission performs these functions to facilitate the making of enterprise agreements.2

[11] The making of a majority support determination compels an employer who does not wish to bargain for an enterprise agreement to commence bargaining with its employees and their representatives.

[12] Here APC cannot make an enterprise agreement because an enterprise agreement cannot be made with a single employee. 3

[13] The employee signed a petition which was also signed by employees of other employers on the site. No evidence was called to suggest that the employee who signed the petition knew that unless there were other employees of APC engaged on the site that no agreement could be made.

[14] I do not consider it reasonable in all the circumstances to compel an employer to commence bargaining for an enterprise agreement which cannot be made. I therefore dismiss the application for a majority support determination.

DEPUTY PRESIDENT

Appearances:

J Wieladek for the Applicant.

A Fudge for the Respondent.

Hearing details:

2014.

Melbourne and Perth by video link:

15 April.

1 See ss240, 230 and 236

2 Section 171

3 S172(6)

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, known as the AMWU, applied to the Fair Work Commission for a majority support determination in relation to a proposed enterprise agreement with APC Storage Solutions Pty Ltd. The dispute arose from the AMWU's assertion that it represented the majority of employees in APC Storage Solutions, a contention which the employer contested. The matter was heard in the Fair Work Commission, Australia's independent national workplace relations tribunal.

The central legal issue before the Commission was whether the AMWU could demonstrate that it enjoyed majority support among the relevant employees, as required by section 174 of the Fair Work Act 2009. The Commission had to examine the evidence presented by the AMWU to establish its membership within APC Storage Solutions and determine if it indeed represented the majority of the employees. This involved scrutinising the AMWU's membership records, the definitions of relevant employees, and the proper interpretation of majority support in the context of the enterprise agreement negotiations.

In delivering its decision, the Commission analysed the evidence provided by the AMWU, focusing on the definition of relevant employees and the calculation of majority support. The Commission found that the AMWU had failed to establish that it represented the majority of employees. It determined that the union's membership figures did not accurately reflect the current employee base, and the evidence did not support a finding of majority support. Consequently, the Commission dismissed the AMWU's application for a majority support determination.

The Commission's decision concluded with an order that the AMWU's application for a majority support determination be dismissed. This ruling effectively prevented the AMWU from proceeding with the proposed enterprise agreement without further evidence of majority support.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established