"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Darley Aluminium Trading Pty Limited

[2012] FWA 7353

[2012] FWA 7353

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Darley Aluminium Trading Pty Limited
(B2012/1428)

COMMISSIONER CARGILL SYDNEY, 27 AUGUST 2012

Application for a majority support determination.

[1] This decision concerns an application for a majority support determination pursuant to section 236 of the Fair Work Act 2009 (the Act). The application was made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

[2] The relevant provisions of the Act, sections 236 and 237, are as follows:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA 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 FWA must make a majority support determination

Majority support determination

(1) FWA 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) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.

Matters of which FWA must be satisfied before making a majority support determination

(2) FWA must be satisfied that:

(a) a majority of the employees:

(i) who are employed by the employer or employers at a time determined by FWA; 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), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.

(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA 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.”

[3] The employer to be covered by the proposed enterprise agreement in respect of which the declaration is sought is Darley Aluminium Trading Pty Limited (Darley). The employees who would be covered by the proposed agreement are those employees of Darley who work at 8 Tyrone Place, Erskine Park, New South Wales and who work in the warehouse, storerooms, packaging and powder coating areas. The AMWU asserts that is a bargaining representative for at least one of the relevant employees.

[4] The matter was heard on 21 August 2012. The AMWU was represented by Mr Kennedy and Darley by Mr Thomas from The Master Builders’ Association of New South Wales.

[5] At the hearing it was established that Darley had not agreed to or initiated bargaining. I indicated that I was satisfied that the group of employees to be covered by the proposed agreement was fairly chosen and that, subject to the questions of the AMWU’s status as a bargaining representative and whether there was majority support, it was reasonable in all of the circumstances to make the determination.

[6] Following the hearing the AMWU provided material which satisfied me that it is a bargaining representative for at least one relevant employee.

[7] At the hearing I had indicated that the method that I considered appropriate to establish whether a majority of employees wanted to bargain was to compare the petition provided by the AMWU with the list of employees provided by Darley.

[8] That comparison established that 23 of the 43 employees on Darley’s list had signed the AMWU petition. That is a majority.

[9] Consequently I am satisfied that a majority of the relevant employees wish to bargain for an enterprise agreement. I am also satisfied that each of paragraphs (b), (c) and (d) of section 237(2) of the Act has been made out. As a result, pursuant to section 237(1) I must make a majority support determination. It is issued at the same time as this decision in Print PR528406.

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