“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

[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.

(c) the group of employees was fairly chosen.

[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.

<Price code A, PR549770>

 1   See ss240, 230 and 236

 2   Section 171

 3   S172(6)

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