Independent Education Union of Australia v The Academy of Interactive Entertainment Limited T/A Academy of Interactive Entertainment
[2010] FWA 7733
•5 OCTOBER 2010
[2010] FWA 7733 |
|
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
Independent Education Union of Australia
v
The Academy of Interactive Entertainment Limited T/A Academy of Interactive Entertainment
(B2010/168)
COMMISSIONER ROE | MELBOURNE, 5 OCTOBER 2010 |
Bargaining – majority support determination.
[1] On 6 September 2010 the Independent Education Union of Australia (IEU) applied for a majority support determination pursuant to s.236 of the Fair Work Act (the Act).
[2] It is appropriate to set out the provisions of ss.236 and 237 in full:
“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.”
[3] The employer to be covered by the agreement is The Academy of Interactive Entertainment Limited trading as The Academy of Interactive Entertainment (the Employer) in respect of the employees of the Employer who work at the Melbourne campus of the Employer (Eligible Employees).
[4] The matter was heard on 13 September 2010 and given the facts outlined before me by both parties I came to the view that a ballot of employees was required. The parties supported this course of action.
[5] On 13 September 2010 I issued an Order (PR501685) for the conduct of the ballot. The Order also provided for a paid meeting of Eligible Employees and the IEU prior to opening of the ballot. The question to be balloted was “Do you want to bargain for an enterprise agreement with your employer? Yes or No”
[6] On 30 September 2010 the Returning Officer from the Australian Electoral Commission declared the outcome of the ballot as follows:
Number of Relevant Employees on the roll of voters | 17 |
Number who voted | 17 |
Number of voters wanting to bargain (Yes Votes) | 13 |
Number of voters not wanting to bargain (No Votes) | 4 |
[7] I advised the parties on 1 October 2010 that unless they advised that they wished to make further submissions I intended to make a majority support determination. The parties did not advise me that they wished to make any further submissions.
[8] I am satisfied that the requirements of Section 236 and 237 of the Act have been met. In particular I am satisfied that a majority of the Eligible Employees of the Employer want to bargain and the employer has not yet agreed to bargain and the group of Eligible Employees has been fairly chosen in that this is all of the employees at the specific geographical location. I am satisfied that it is appropriate and reasonable in all of the circumstances to make the determination.
Majority Support Determination
[9] A majority of the employees of the employees of the Employer who work at the Melbourne campus of the Employer (Eligible Employees) who will be covered by the proposed Agreement want to bargain for an agreement with The Academy of Interactive Entertainment Limited trading as The Academy of Interactive Entertainment (the Employer). This majority support determination will apply from the date of this decision
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