Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Kinkaid Pty Ltd T/A Cadillac Printing
[2009] FWA 1123
•16 NOVEMBER 2009
[2009] FWA 1123 |
|
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
v
Kinkaid Pty Ltd T/A Cadillac Printing
(B2009/11000)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 16 NOVEMBER 2009 |
Bargaining - majority support determination.
[1] This decision, now edited, reflects a decision handed down at the conclusion of a hearing on 13 November 2009. It follows a request for written reasons for my decision.
[2] On 6 November 2009 the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) lodged an application pursuant to section 236 of the Fair Work Act 2009 (the Act), through which it sought a majority support determination with respect to certain employees of Kinkaid Pty Ltd trading as Cadillac Printing (Cadillac).
[3] The application was the subject of a hearing on 13 November 2009. At this hearing, the AMWU was represented by Ms Nachiappan and Cadillac by Ms Kruger.
[4] The AMWU application seeks a majority support determination with respect to production employees of Cadillac who are covered by the Graphic Arts Award of 2000.
[5] Section 237 sets out the circumstances about which Fair Work Australia must be satisfied with respect to a majority support determination. If these circumstances are met, the application must be granted.
[6] Section 237 states:
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.”
[7] With respect to subsection 237(1)(a), there is no dispute that the application has been properly made pursuant to section 236.
[8] Subsection 237(2) details four circumstances to which I must have regard.
[9] The first of these relates to whether a majority of the employees who are employed by Cadillac and who will be covered by the proposed agreement, want to bargain. Subsection 237(3) provides Fair Work Australia with the capacity to decide on an appropriate method of determining the majority support position.
[10] The AMWU have put to me that I should rely on a petition signed by 23 employees over the period 22 September 2009 to 24 September 2009. A copy of that petition has been provided to me on a confidential basis.
[11] Cadillac has put to me that the circumstances under which these employees’ signatures were obtained were such that Fair Work Australia should require a secret ballot to determine the employee position. Cadillac have identified concerns over the potential for employees to be pressured into signing this petition.
[12] Cadillac has provided information which confirms that there are 34 employees who would be covered by the proposed agreement and that all these employees are engaged at the Kinkaid Avenue, Plympton facility.
[13] It is conceivable that there may be circumstances where a petition could not be relied upon as an appropriate device to determine majority support for bargaining. If, for instance, there was some evidence that the petition had been falsely derived or that the signatures had been achieved by duress, an alternative means of establishing employee views would need to be considered.
[14] In this case, despite the Cadillac concerns, there is no evidence which discredits the standing of the petition.
[15] Accordingly, I consider that the AMWU petition conducted between 22 and 24 September 2009 represents an appropriate means of establishing a majority employee position. With one exception, all of the 23 employees who signed this petition are employees of Cadillac and their signatures indicate a clear majority employee support for the AMWU to represent them in negotiating an enterprise agreement with Cadillac.
[16] As such, the requirements of subsection 237(2)(a) have been met.
[17] There is no dispute that Cadillac have not yet agreed to bargain for an agreement, or that the group of employees proposed to be covered by the agreement was fairly chosen.
[18] I consider that it is reasonable that, in these circumstances, a majority support determination should be made.
[19] This determination is not an order. It simply establishes that I am satisfied that a majority of the employees of Cadillac who are covered by the Graphic Arts Award want to bargain and that at least 22 of these employees currently want to do so through the AMWU as their bargaining agent.
[20] The majority support determination does not guarantee an agreed outcome but it does indicate that a logical next step in the process involves the issuing of notices of representational rights and the engagement in the good faith bargaining process.
[21] A Determination (PR990772) consistent with this decision has been issued.
SENIOR DEPUTY PRESIDENT
Appearances:
S Nachiappan on behalf the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.
J Kruger representing Kinkaid Pty Ltd t/as Cadillac Printing.
Hearing details:
2009.
Adelaide:
November 13.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR990770>
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