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

[2019] FWC 4730

[2019] FWC 4730

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
Pacific HVAC Engineering Pty Ltd
(B2019/479)

COMMISSIONER GREGORY MELBOURNE, 17 JULY 2019

Pacific HVAC Engineering Pty Ltd.

Introduction

[1] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (“the AMWU”), has made application under s.236 of the Fair Work Act 2009 (Cth) (“the Act”) for a majority support determination. It is made in respect of those employees of Pacific HVAC Engineering Pty Ltd (“Pacific HVAC”) who are engaged in or in connection with the manufacturing of air-conditioning equipment at its premises at Chelsea Heights in Victoria.

[2] The application was set down for hearing on 8 July 2019. Mr Barry Terzic, Industrial Officer, together with Mr Paul Curcio, Organiser, appeared on behalf of the AMWU. There was no appearance entered on behalf of Pacific HVAC.

[3] The AMWU provided the Commission with a petition containing twelve names and signatures. It submits that the signatories are all employed by Pacific HVAC at its manufacturing operation at the Chelsea Heights location, and each want the AMWU to commence bargaining for a new enterprise agreement. It also submits that the twelve employees constitute a majority of the employees engaged in or in connection with the manufacturing of air-conditioning equipment, with the total number of employees engaged in those activities estimated to be approximately fifteen.

[4] The Commission subsequently forwarded an email to the General Manager - Engineering and Operations at Pacific HVAC, Mr Richard Agar-Wilson. The email made reference to the hearing, and to the fact that no one from the business was represented in those proceedings. It also made reference to the petition provided by the AMWU, and indicated that the Commission was prepared to consider any submissions Pacific HVAC might want to make in response to the application. The Commission also indicated that it was prepared to compare the list of names on the confidential petition provided by the AMWU with a list of the names of all employees employed by the business who are engaged in or in connection with the manufacturing of air-conditioning equipment, if the business wanted to provide the Commission with these details.

[5] The Commission was subsequently advised by Mr Agar-Wilson that Pacific HVAC did not wish to oppose the application, and the twelve names listed on the petition did constitute a majority of the total number of seventeen employees. The Commission subsequently advised Mr Agar-Wilson that it would now proceed to issue the determination sought by the AMWU.

Relevant legislation

[6] Section 236 of the Act sets out what must be contained in any application for a majority support determination. It states:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single enterprise agreement may apply to the FWC 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.” 1

[7] Section 237 deals with what the Commission must be satisfied about before a Determination is made. It states:

“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, taking 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.” 2

Conclusion

[8] I am satisfied that this application has been made by an organisation that is entitled to be a bargaining representative of the employees who would be covered by the proposed enterprise agreement at Pacific HVAC. The application also specifies the employer and the employees who are intended to be covered by the proposed enterprise agreement. I am also satisfied, as required by s.237(2), that the petition of employees provided to the Commission by the AMWU on 8 July 2019 confirms that a majority of the employees who are intended to be covered by the proposed enterprise agreement want to bargain with their employer. I am also satisfied that Pacific HVAC has not yet agreed to bargain, or has not yet initiated bargaining for the agreement.

[9] I am also satisfied that the group of employees who will be covered by the proposed agreement are fairly chosen, being those employees who are engaged in or in connection with the manufacturing of air conditioning equipment at Pacific HVAC’s premises at Chelsea Heights in Victoria. The employees are accordingly geographically, operationally and organisationally distinct.

[10] I am accordingly satisfied that it is reasonable in all the circumstances to make the determination sought. The determination is accordingly made and issued in conjunction with this decision. It will operate from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR710107>

 1   Fair Work Act 2009 (Cth) s 236.

 2   Fair Work Act 2009 (Cth) s 237.