Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Cochlear Limited
[2009] FWA 67
•4 AUGUST 2009
[2009] FWA 67 |
|
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
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
<Price code A, PR988284>
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