Mr Leon Carter v MTAA Superannuation Fund (Secretariat Co) Pty Ltd T/A MTAA Superannuation Fund

[2011] FWA 5914

[2011] FWA 5914

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.236 - Application for a majority support determination

Mr Leon Carter
v
MTAA Superannuation Fund (Secretariat Co) Pty Ltd T/A MTAA Superannuation Fund
(B2011/3304)

COMMISSIONER SMITH CANBERRA, 31 AUGUST 2011

Application for a majority support determination - whether tests for majority support determination satisfied

Introduction

[1] This decision relates to an application under s.236 of the Fair Work Act 2009 (the Act) by Leon Carter for a majority support determination with respect to Business Development Managers employed by MTAA Superannuation Fund (Secretariat Co) Pty Ltd trading as MTAA Superannuation Fund (Respondent). Mr Carter, the National Secretary of the Finance Sector Union (FSU), is a bargaining representative for the persons who will be covered by the proposed single-enterprise agreement.

[2] The matter was listed for hearing on 31 August 2011 in Canberra. At the hearing Mr R. Lowrey and Ms D. Chitty represented the Applicant. Mr. M. Connelly, solicitor by permission, Ms L. Turner and Mr R. Crebbin, appeared for the Respondent.

Background

[3] The proposed agreement is to cover all 16 Business Development Managers employed by the Respondent. 15 of the 16 employees signed written requests to the employer indicating that they wanted to negotiate an enterprise agreement. These written requests were provided to Fair Work Australia. At the time of hearing one employee had resigned but this did not alter the majority.

[4] On 4 June 2011 the FSU wrote to the Respondent indicating its intention to negotiate an enterprise agreement with respect to the Respondent’s Business Development Managers.

[5] On 9 August 2011 the FSU advised the Respondent that ‘due to an absence of a response’, the FSU would lodge the required paperwork with Fair Work Australia to open the bargaining period.

Relevant Legislation

[6] Section 236 of the Act is 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 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.

[7] The approach that FWA must adopt in relation to majority support applications is governed by s237 of the Act which provides:

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.

[8] The task of FWA therefore is to determine whether, in the circumstances of this case, it is satisfied of the matters in s237(2) of the Act. I will consider these matters in turn.

Does a majority of Employees want to Bargain?

[9] The evidence led by the FSU includes a petition signed by 15 of the 16 employees who are employed by the Respondent and will be covered by any agreement made concerning Business Development Managers. The petition states :

“I, (name inserted) want to bargain for an Enterprise Agreement to cover the Business Development Managers employed by MTAA Superannuation Fund (Secretariat Co.) Pty Limited.”

[10] The Respondent did not make any submission which would mean that this requirement was not met.

[11] On the basis of the petition signed by 15 of the 16 employees I am satisfied that a majority of the relevant employees want to bargain.

Has the employer agreed to bargain?

[12] On 9 August 2011, the Respondent sent correspondence to the FSU and to the Business Development Managers advising them that ‘...it will be addressing this matter on 24/25 August.’

[13] The FSU has submitted that the employer has thus far not agreed to bargain. There has been no evidence from the Respondent to the contrary.

[14] I am satisfied that the employer has not yet agreed to bargain.

Was the group of employees to be covered fairly chosen?

[15] The FSU put into evidence that the employees concerned are organisationally distinct as they have a reporting line to a manager to whom no other staff report.

[16] The Respondent did not challenge the submissions of the FSU in relation to this requirement.

[17] I am satisfied that the group of employees is fairly chosen.

Is it reasonable in all the circumstances to make the determination?

[18] There have been no submissions put to the Tribunal which would lead me to conclude that it was not reasonable in all the circumstances to make a determination.

Conclusions

[19] On the basis of the conclusions reached I will make a majority support determination as sought in the application. The determination is issued with this decision.

COMMISSIONER

Appearances:

Mr R. Lowrey and Ms D. Chitty for the Applicant.

Mr. M. Connelly, solicitor by permission, Ms L. Turner and Mr R. Crebbin, for the Respondent.

Hearing details:

2011

Canberra

31 August 2011

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