Construction, Forestry, Mining and Energy Union v Kane Constructions Pty Ltd

[2016] FWC 5767

[2016] FWC 5767

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Construction, Forestry, Mining and Energy Union
v
Kane Constructions Pty Ltd
(B2016/847)

COMMISSIONER RYAN MELBOURNE, 17 AUGUST 2016

Majority support determination for employees of Kane Constructions Pty Ltd.

[1] On 4 August 2016 the Construction, Forestry, Mining and Energy Union (CFMEU) applied pursuant to section 236 of the Fair Work Act 2009 (the Act) for a majority support determination.

[2] The CFMEU seeks a determination that a majority of employees who would be covered by a proposed single-enterprise agreement to replace the Kane Construction Pty Ltd and the CFMEU Building and Construction Industry Enterprise Agreement 2011-2015 to be made with Kane Constructions Pty Ltd (the Employer) wish to bargain with their employer.

[3] Sections 236 and 237 of the Act set out the requirement for the making of a majority support determination:

“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.”

[4] The CFMEU submits that it has asked the Employer to enter into bargaining for a new agreement and that the Employer has refused.

[5] The CFMEU has filed a confidential petition signed by 43 employees between 5 and 10 August 2016, which states that those employees want to bargain for a new enterprise agreement with the Employer and that they want the CFMEU to represent them in such bargaining.

[6] The Employer has filed a confidential list of employees who would be covered by the proposed enterprise agreement. The list contains 53 names.

[7] I have examined both the petition and the list of employees and on the basis of that material I am satisfied that a majority of the employees employed by the Employer who will be covered by the proposed agreement want to bargain with the Employer.

[8] On the basis of the material before me, I am satisfied that the CFMEU is a bargaining representative for the employees concerned and are, therefore, capable of making this application for a majority support determination.

[9] I am satisfied that the Employer has not yet agreed to bargain or initiated bargaining for the agreement. I accept that the Employer is willing to commence bargaining with its employees and the CFMEU, but that is not the same as agreeing to bargain or initiating the bargaining process.

[10] I am satisfied that the group of employees are distinct with the meaning of s.237(3A) and I accept that they have been fairly chosen as required by s.237(2)(c) of the Act.

[10] Given that all of the requirements of s.237(2) of the Act have been met, I am obliged to issue the determination in accordance with s.237(1). A determination will issue with this decision.

[11] As a result of the determination being issued, the Employer must now take all reasonable steps to issue a notice of employee representational rights to each relevant employee as required by sections 173 and 174 of the Act. I note that s.173(3) requires, in effect, that the notice be issued within 14 days of the determination being made.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR584306>