National Union of Workers v Fuji Xerox Australia Pty Ltd

[2017] FWC 2338

[2017] FWC 2338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

National Union of Workers
v
Fuji Xerox Australia Pty Ltd
(B2017/277)

COMMISSIONER ROE MELBOURNE, 28 APRIL 2017

Application for a majority support determination.

[1] The National Union of Workers (NUW) has applied for a majority support determination. The parties agree, and I am satisfied, that the application has been properly made (s.236 of the Fair Work Act 2009 (the Act)). The NUW is seeking a determination in respect to employees who perform warehousing duties at the Company’s premises at 59 Belmont Ave Belmont WA 6104.

[2] The employer, Fuji Xerox opposed the application.

[3] I am satisfied that the NUW is eligible under its rules to cover the warehouse workers who are employed by Fuji Xerox and who the NUW seeks to be covered by the proposed agreement. Therefore I am satisfied that Section 237(1)(a) is met.

[4] Section 237 provides as follows:

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.

[5] I am satisfied and Fuji Xerox accepted that five employees signed the petition stating that they wished to bargain with the company for an agreement covering warehouse work employees at the site on 6 February 2017. Fuji Xerox accepted that this was a majority of the warehouse employees who are employed in the warehouse. The company did not raise any issues as to why the petition should not be taken to be the view of the employees who signed it. In the circumstances I consider that the petition is a reasonable expression of employee views in this case. Although the petition is a couple of months old there is nothing before me to suggest that employees have changed their mind and the delay was due, at least in part, to reasonable attempts by the NUW to get a response from the company. I am satisfied that a majority of the employees employed by the employer who will be covered by the proposed agreement as at today’s date want to bargain.

[6] I am satisfied and it is not disputed that the group of employees who will be covered by the agreement is fairly chosen (s.237(2)(c) of the Act). In reaching this conclusion I am satisfied that the employees are geographically and organisationally distinct from other Fuji Xerox employees. The warehouse of the one distinct facility is geographically distinct and the warehouse workers perform inherently different work that is specific to the warehouse and distribution aspects of the business and therefore are operationally distinct. I am satisfied that there is nothing artificial about the selection of warehouse workers at this location.

[7] In this case there is no dispute that the employer has not agreed to bargain (s.237(2)(b) of the Act). There is dispute over whether or not it is reasonable in the circumstances to make the determination.

[8] The company submitted that it was premature to make the determination sought because it should be given the opportunity to speak to the employees and to try to persuade them that their concerns could be resolved through means other than bargaining for an agreement. The company submitted that they would prefer not to make an agreement for this group of workers and that it was administratively burdensome. The company accepted that the NUW had sought to bargain, had provided the petition to the company, and had provided the company with an opportunity to respond. The company had responded to the NUW correspondence on 1 March 2017 advising that the company was currently discussing the NUW request. When no further response was received the NUW made the application for a majority support determination on 3 April 2017. In the period since the application was made the Fair Work Commission made several attempts to contact the company seeking advice as to whether or not it was opposing the determination. The company says that the person dealing with the matter left the company during this period and that the company then unsuccessfully sought to discuss the matter further with the NUW. Both parties were in attendance at the hearing of the matter on 27 April 2017.

[9] I am not satisfied that it would be reasonable in the circumstances of this case to delay the making of the determination in order to allow the company a further opportunity to seek to persuade the employees that they should not seek to bargain for an agreement. I also consider, to the extent that it is relevant and necessary, that the company has had reasonable opportunity to respond firstly to the request to bargain and secondly to the application for a majority support determination. I therefore consider that it is reasonable in all the circumstances to make the determination.

[10] Consequently, I am satisfied that each of paragraphs (a), (b), (c) and (d) of s.237(2) of the Acthave been made out. As a result, pursuant to s.237(1), I must make a majority support determination which will operate from the date of this decision.

Determination

[11] A majority of employees who perform warehousing duties at the Fuji Xerox premises at 59 Belmont Ave Belmont WA 6104 (Eligible Employees) who will be covered by the Agreement wish to bargain with Fuji Xerox.

COMMISSIONER

Appearances:

Ms A Thwaites for the Applicant

Ms L Broadhead for the Respondent

Hearing details:

2017.

Melbourne.

April 27.

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<Price code A, PR592474>