Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Cochlear Limited
[2009] FWA 125
•20 AUGUST 2009
[2009] FWA 125 |
|
DETERMINATION |
Fair Work Act 2009
s.236 - Application for a majority support determination
v
Cochlear Limited
(B2009/10335)
COMMISSIONER HARRISON | SYDNEY, 20 AUGUST 2009 |
Bargaining – majority support determination.
[1] On 17 July 2009 the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) applied for a majority support determination pursuant to s.236 of the Fair Work Act (the Act).
[2] It is appropriate to set out the provisions of ss.236 and 237 in full:
“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 agreement is Cochlear Ltd, 14 Mars Road Lane Cove NSW 2066. The employees to be covered by the agreement are those employed by Cochlear currently covered by the Cochlear Limited Enterprise Partnership Agreement 2005. This agreement has passed its nominal expiry date yet remains in force.
[4] The application was heard in Sydney on 3 August 2009. The AMWU presented evidence to support its contention that a majority of employees wish to negotiate a new agreement and be represented by the AMWU. The AMWU presented a chronology of attempts to negotiate with Cochlear and to demonstrate its mandate on behalf of employees. It was argued that the most recent expression of support for an agreement arose from a survey of employees it conducted between April and July 2009.
[5] Cochlear did not dispute that the AMWU had been agitating over time for an agreement and that it had been resisting the agitation. It submitted that the latest survey was not clear evidence that a valid majority of employees wished to bargain. It questioned the accuracy of the survey, the methodology adopted and the lack of document control.
[6] At the conclusion of proceedings I provided an ex tempore decision, later published as [2009] FWA 67. I ordered 1 that the Australian Electoral Commission (AEC) conduct an attendance ballot of the relevant group of employees to vote on the question:
“Do you want to bargain for an enterprise agreement with your employer?
Yes / No”
[7] The ballot was conducted on 19 August 2009. I have today been formally advised by the AEC Returning Officer of the declaration and the results of the ballot. The results were:
Number of persons on the roll of voters | 324 |
Number of persons on the roll of voters that voted in the ballot | 312 |
Percentage of persons on the roll who voted in the ballot | 96.29% |
RESULTS | |
Number of voters wanting to bargain (Yes votes) | 185 |
Number of voters not wanting to bargain (No votes) | 120 |
Number of informal ballot papers | 7 |
[8] I am satisfied the jurisdictional requirements as set out in s.237(2)(a), (b), (c) and (d) have been met.
[9] Having regard to the AEC declaration and results I am satisfied that a majority of the employees who will be covered by the agreement want to bargain.
[10] Pursuant to s.237(3) of the Act I determine that a majority of employees of Cochlear Ltd employed at Lane Cove, NSW and who are covered by the Cochlear Ltd Enterprise Partnership Agreement 2005, want to bargain with Cochlear Limited an agreement which will apply to them.
[11] This determination shall come into force on and from 20 August 2009.
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