Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2023] FWC 3456
•21 DECEMBER 2023
| [2023] FWC 3456 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2023/1341)
| COMMISSIONER DURHAM | BRISBANE, 21 DECEMBER 2023 |
Application for a majority support determination. Assa Abloy Entrance Systems Australia Pty Limited - Queensland
On 6 December 2023, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant/CEPU) made an application to the Fair Work Commission (the Commission) under section 236 of the Fair Work Act 2009 (the Act) for a majority support determination.
The CEPU, sought to negotiate a single-enterprise agreement with the following coverage:
“The employees who will be covered by the proposed enterprise agreement are all employees in the state of Queensland employed by Assa Abloy Entrance Systems Australia Pty Limited (“the Employer”), except for administrative and managerial personnel. The employees to be covered by the proposed Enterprise Agreement are employees who are field-based technicians.”
The CEPU contend that a majority of relevant employees who would be covered by a proposed enterprise agreement want to bargain with their employer.
The CEPU sent a formal bargaining letter to the employer on 18 October seeking to commence negotiations.
On 29 October 2023, the CEPU received an email response from the employer stating that:
“Thank you for your correspondence. ASSA ABLOY will respond in due course.
It could be considered best business practice for the local ETU contact to call and make an introduction to myself before sending a correspondence of this nature to establish a relationship instead of a straight notice.”
The CEPU subsequently made phone contact with the employer a number of times after 29 October 2023 to discuss the commencement of bargaining.
On 4 December 2023, the CEPU advised the employer that a majority of employees had signed a petition in support of bargaining. To which the employer indicated that they would need to seek further instructions from senior management.
On 6 December 2023, the CEPU was advised by the employer that they would need to discuss the matter directly with their employees.
To date, the employer has not agreed to bargain, nor have they issued a NERR.
On 12 December 2023, I issued Directions requiring the parties to file material with respect to the application including material relating to the petitions referred to in the application and a list of all employees to be covered by the proposed agreement. This material was provided to the Commission only, so as to ensure confidentiality.
I note that parties were invited to raise any objections but no objections were raised from either party.
Upon receiving the required materials from the parties, I conducted an analysis to determine if a majority of eligible employees had signed the petition, indicating that they wished to bargain.
In completing this analysis, I compared the names of employees who had signed the petition against the list of employees provided by the employer and was satisfied that a majority of employees wanted to bargain for an enterprise agreement.
Legislation
The Commission must make a majority support determination if an application for the determination has been made and if the Commission is satisfied of those matters set out in section 237(2) of the Act. An application for a determination is made pursuant to section 236 of the Act, which provides as follows:
236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed single enterprise agreement may apply to the FWC 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.
I must make a majority support determination if an application has been made before the Commission that satisfies the criteria contained in section 237 of the Act. Section 237 of the Act provides as follows:
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
With respect to the requirements of section 236, the CEPU is a bargaining representative of the employees in question and is entitled under its registered rules to represent the industrial interests of those employees. The CEPU’s application specifies the employer and employees who will be covered by the agreement and as such, has been validly made.
The first matter prescribed by section 237 is whether the Commission is satisfied that a majority of the relevant employees who are employed by the employer at a time determined by the Commission want to bargain. An analysis of the material provided by the parties clearly indicates that there are 14 employees who will be covered by the proposed enterprise agreement. A comparison of these employees, against the petitions provided by the CEPU confirms that at least 10 of those employees want to bargain. I am therefore satisfied that the requirements of section 237(2)(a) have been met.
It is evident from the material provided that the employer has not yet agreed to bargain or initiated bargaining in respect of the proposed enterprise agreement. As such, I am satisfied that the requirements of section 237(2)(b) have been met.
Based on the material provided, as the employees to be covered by the proposed enterprise agreement are field-based technicians whose work is operationally and geographically distinct from that of managerial/administrative staff, I am of the view that the group to be covered by the proposed agreement has been fairly chosen in accordance with section 237(2)(c).
Finally, pursuant to section 237(2)(d), given that the statutory requirements have been met and no other relevant issues arise, I am satisfied that it is reasonable in all the circumstances to make a determination.
Conclusion
Having formed the requisite satisfaction in relation to the matters in section 237(2) of the Act, I must make a majority support determination. A determination will be issued with this Decision.
COMMISSIONER
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