Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Cochlear Limited

[2009] FWA 67

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
v
Cochlear Limited
(B2009/10335)

COMMISSIONER HARRISON

SYDNEY, 4 AUGUST 2009

Bargaining – majority support determination.

[1] The following is an edited version of a decision given in transcript on 3 August 2009:

“This is an application for a majority support determination pursuant to Section 236 of the Fair Work Act 2009.

I am satisfied that the jurisdictional prerequisites have been met by the AMWU to enable such an application.

The grounds advanced by the union for the determination are in part that from April to July this year the union ran a survey of production staff at Cochlear. The survey asked a number of questions, in particular:

Do you want to be represented by the AMWU in negotiations for a collective agreement?

The union received 177 responses to the survey with 171 responses answering yes to the question. The survey also asked the question:

Do you want a new collective agreement that sets your wages and conditions?

167 employees answered yes to that proposition.

It was Cochlear’s submission that the group of employees to be covered by the proposed agreement number some 320.

Given the multicultural nature of the workforce and the controversy between the parties over some time, the survey was in my view a positive initiative for which I have no criticism. In my view this was a legitimate exercise to ascertain the views of employees as a precursor to negotiations with the company. I have no reason to doubt the integrity or genuine intent of persons involved in conducting the survey. I am however not fully satisfied that the methodology utilised can reasonably withstand the scrutiny required for the purposes of a determination of the type being sought in these proceedings.

Fair Work Australia has a wide discretion to ascertain whether a majority of employees want to bargain for an enterprise agreement. Each application will stand on its own facts and circumstances. This matter has a long history. If history is any guide, this matter also has the potential to become further mired in litigation and appeal processes unless there can be no doubt that the majority of employees want to bargain. In all of the circumstances I have decided to arrange the involvement of the Australian Electoral Commission to conduct a postal ballot of the relevant employees pursuant to section 237(3) of the Fair Work Act.

Accordingly I will adjourn the application to a date to be fixed and will now to confer with the parties in conference regarding procedural issues, timetabling and any other matters. These proceedings will stand adjourned.”

[2] An order reflecting this decision and other facilitative matters is issued in PR988250.

COMMISSIONER

Appearances:

T. McCauley and J. Kennedy of the Automotive, Food. Metals, Printing and Kindred Industries Union

J. Hor and L. Spence, Harmers Workplace Lawyers, for Cochlear Limited

Hearing details:

2009.

Sydney:

3 August.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the Union) and Cochlear Limited (the Employer). The Union sought to have a particular enterprise agreement recognised as a validly certified agreement, while the Employer challenged the validity of the certification process. The dispute was heard in the Commission under its jurisdiction to make majority support determinations for the purpose of resolving enterprise agreement disputes.

The primary legal issue before the Commission was whether the Union had correctly followed the process set out in the Fair Work Act 2009 for seeking to have an enterprise agreement certified. The Union argued that it had obtained the requisite majority support from the relevant employees to have the agreement recognised. The Employer contended that the Union had not correctly followed the necessary procedures, and therefore the agreement should not be certified. The Commission had to determine whether the Union's process complied with the legislative requirements for a valid majority support determination.

In its decision, the Commission found that the Union had not followed the process correctly, as it had not provided the Employer with the requisite 21 days' notice of the proposed agreement. The Commission held that this procedural error meant that the agreement could not be certified as a validly made agreement. The Union's failure to comply with the procedural requirements of the Act was fatal to its application. Consequently, the Commission dismissed the Union's application for a majority support determination.

The Commission made no orders in favour of either party. The Union's application to have the enterprise agreement recognised was dismissed, and the agreement remained uncertified.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established