Maritime Union of Australia, The v Australian Port Services (Vic) Pty Ltd T/A Ausport Marine

[2017] FWC 5432

[2017] FWC 5432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

Maritime Union of Australia, The
v
Australian Port Services (Vic) Pty Ltd T/A Ausport Marine
(B2017/789)

COMMISSIONER GREGORY MELBOURNE, 20 OCTOBER 2017

Australian Port Services (Vic) Pty Ltd T/As Ausport Marine.

[1] This matter deals with an application by the Maritime Union of Australia (“the MUA”) pursuant to s.236 of the Fair Work Act 2009 (Cth) (“the Act”) for a majority support determination. It concerns employees of Australian Port Services (Vic) Pty Ltd T/A Ausport Marine (“Ausport Marine”) employed at its premises in Port Melbourne in Victoria.

[2] After receiving the application the Commission made contact with Ausport Marine to ascertain its position in regard to the application. It subsequently received correspondence from Mr Anil Bhatia from Ausport Marine on 19 October 2017, indicating it did not intend to make submissions in opposition to the application. I accordingly now consider it appropriate to determine the matter “on the papers,” based on the application and the attached materials provided by the MUA.

[3] The relevant legislative provisions are contained in ss. 236 and 237 of the Act. Section 236 sets out what must be contained in any application for a majority support determination and states:

“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.” 1

[4] Section 237 deals what the Commission must be satisfied about before a Determination is made. It states:

“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.” 2

[5] The application, firstly, specifies the employer and the employees who will be covered by the proposed Agreement. It indicates that the employer is Australian Port Services (Vic) Pty Ltd T/A Ausport Marine. The employees to be covered are indicated to be those covered by the scope of the existing Ausport Marine and Maritime Union of Australia Port of Melbourne Enterprise Agreement 2013. 3

[6] The application also indicates that a majority of the employees employed by Ausport Marine, who will be covered by the proposed Agreement, want to bargain. It also indicates that the group of employees are “fairly chosen.” The names of those employees are set out in an Attachment to a Statement provided by Mr Jeff Hoy, the Assistant Branch Secretary of the Victorian Branch of the MUA, which is attached to the application. I am accordingly satisfied, based on these materials, that a majority of the employees want to bargain.

[7] I am also satisfied, based on the statement by Mr Hoy, that numerous attempts have been made with Ausport Marine to commence bargaining for a new Agreement, but it has not yet agreed to bargain or initiated bargaining. I am accordingly satisfied that it is reasonable in all the circumstances to make the Determination sought.

[8] The Determination is accordingly made and issued in conjunction with this decision. It will operate from the date of this decision.

COMMISSIONER

 1   Fair Work Act 2009 (Cth) s 236.

 2   Fair Work Act 2009 (Cth) s 237.

 3   AE407144.

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