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

[2016] FWC 6792

[2016] FWC 6792

FAIR WORK COMMISSION

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
Power Plastics Pty Limited
(B2016/897)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 23 SEPTEMBER 2016

Majority support application - Power Plastics Pty Ltd.

[1] On 22 August 2016 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 Act) for a majority support determination.

[2] The application sought that the determination apply to:

“Power Plastics Pty Ltd employees who are employed at the 71-77A Tattersall Road, Kings Park New South Wales site in production, warehouse and maintenance roles and are covered by the Manufacturing and Associated Industries and Occupations Award 2010 or the Graphic Arts, Printing and Publishing Award 2010.”

[3] The application asserted that the employees to be covered by the proposed agreement are not currently covered by an enterprise agreement and that the group is fairly chosen as required by s.237(2)(c) of the Act. They have a common interest and are distinct from other employees of Power Plastics Pty Ltd (Power Plastics).

[4] Attached to the application was AMW correspondence of 18 July and 9 August notifying Power Plastics that it wished to commence bargaining for an agreement.

[5] By email of 24 August, Power Plastics advised the Commission that it opposed the application.

[6] The matter was listed on 1 September 2016. Ms S. Howe and Ms H. Smith represented the AMWU. Power Plastics was represented by Mr D. Bray of AIGroup and Mr D. Quigley and Ms B. Elcham.

[7] Pursuant to s.596 of the Award, I granted the AMWU’s application to amend the title of the “Graphic Arts Award” to that contained in paragraph 2 above.

[8] As a result of a conference with the parties the following process was agreed. A copy of a petition in blank form was provided by the AMWU to the Commission and Power Plastics. The completed petitions were provided to the Commission on a confidential basis. Power Plastics agreed to provide the Commission with a list of employees, on a confidential basis, together with position titles and departments, by Wednesday 7 September. It was agreed that I would then compare the two lists and determine whether there was majority support for the AMWU to bargain on behalf of the employees. I would then issue a decision. This agreement was outlined by me on transcript.

Consideration of the Petition

[9] The AMWU petition was headed “Collective Agreement Survey” and was intended to get Power Plastic employees’ feedback on issues that they would want the AMWU to pursue in an enterprise agreement. It requested employees to provide personal and work information and identify priorities in respect of a range of wages and conditions claims.

[10] Employees were asked to tick the following box:

“I want to bargain for an enterprise agreement with Power Plastics Pty Ltd at 71-77A Tattersalls Road, Kings Park NSW. I agree to this petition being used to demonstrate to the Fair Work Commission that a majority of Power Plastics Pty Ltd employees want to bargain with Power Plastics for an enterprise agreement.”

[11] Power Plastics provided to the Commission the list of employees that it says are covered by the proposed agreement on 7 September.

[12] A close comparison of the two lists reveals that 40 out of 60 employees signed the petition. There is one petition signature which does not appear on the Power Plastics list. I have set this aside but it does not affect the overall result.

Relevant Legislation

[13] Section 237 provides:

“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, 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.”

Consideration

[14] Mr Bray provided a written submission on 13 September 2016, in accordance with my request. He submitted that the petition should not be used as a basis of determining majority support. This was principally put because employees may not have been provided with sufficient information about the proposed enterprise agreement.

[15] Mr Howe provided submissions in reply on 16 September. It is submitted that the question in paragraph [10] above is a very clear indication of the employees’ desire to bargain for an enterprise agreement. The fact that further information is sought from employees to assist in bargaining is evidence of the desire to bargain. Finally, it is submitted that it is premature to detail the contents of any agreement.

[16] I am satisfied that 2/3 of the relevant employees have, by signing the petition, expressed support for the AMWU to bargain on their behalf for an enterprise agreement. I am satisfied that the petition is an appropriate method of the Commission determining majority support in accordance with s.237(3).

[17] I am satisfied that the group of employees is fairly chosen in accordance with s.237(3A).

[18] I am satisfied that the requirements of s.237(2) have been met.

[19] A majority support determination will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

S. Howe with H. Smith for the AMWU;

D. Bray with D. Quigley and B. Elcham for Power Plastics Pty Ltd.

Hearing details:

2016

Sydney:

September 1.

Final written submissions:

13 September – Power Plastics Pty Ltd;

16 September – AMWU.

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