National Union of Workers v Duratray International T/A Conymet Duratray Pty Ltd

[2010] FWA 7104

[2010] FWA 7104

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.236—Majority support determination

National Union of Workers
v
Duratray International T/A Conymet Duratray Pty Ltd
(B2010/3349)

COMMISSIONER BLAIR MELBOURNE, 9 SEPTEMBER 2010

Duratray International t/as Conymet Duratray Pty Ltd.

[1] This is an application for a majority support determination by the National Union of Workers (the Union) pursuant to s.236 of the Fair Work Act 2009 (the Act). The application seeks a declaration that a majority of employees of Duratray International t/as Conymet Duratray Pty Ltd (the Company), who will be covered by an agreement, want to bargain.

[2] The provisions of s.236 and s.237 of the Act are 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.

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] After the hearing the Union presented a correspondence from the employees of the Company as a means of indicating that the majority of employees want to bargain with the Company for an enterprise agreement.

[4] Pursuant to s.237(3) of the Act I determine that a majority of employees of the Company want to bargain with the Company to make an agreement which will apply to them.

[5] This determination will come into force on and from 10 September 2010.

COMMISSIONER

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