National Union of Workers v GKK Enterprises Pty Ltd

[2011] FWA 5531

[2011] FWA 5531

FAIR WORK AUSTRALIA

DECISION

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

National Union of Workers
v
GKK Enterprises Pty Ltd
(B2011/3139)

COMMISSIONER HAMPTON ADELAIDE, 5 SEPTEMBER 2011

Majority support determination - competing petitions - parties agreed joint ballot process to confirm views of employees - ballot result supported bargaining - application granted.

Background

[1] This matter concerns an application lodged by the National Union of Workers (the NUW or the union) for a majority support determination to be issued pursuant to s.237 of the Fair Work Act 2009 (the Act). The application has been made in relation to employees of GKK Enterprises Pty Ltd (GKK or the employer) who are engaged to work in the “kill processing section” at the premises of BPL Adelaide Pty Ltd. In effect, GKK is a labour hire organisation supplying employees to the operation known as Adelaide Poultry Service.

[2] The NUW initially contended in the application that a majority of the relevant employees had indicated that they want to bargain with GKK and this proposition was primarily based upon petitions circulated by the NUW within the workplace.

[3] GKK initially contended that the petition was flawed on a number of grounds; an alternative petition that it had circulated did not support the basis of the application; and Fair Work Australia should not be satisfied that a majority of employees wish to bargain.

[4] This matter was initially heard by me on 18 August 2011 at which time both parties proposed that I convene a conference to explore an alternative course of action. I add that this was a constructive suggestion given the prospect of having to explore and make findings in relation to what could become very divisive issues within the workplace.

[5] Ultimately, an agreed approach was reached and recorded on transcript. Without detracting from the details of that agreement, the process included:

• A joint ballot of all eligible employees to be conducted through a process agreed by the parties;



• Agreed documents including a memorandum to employees and ballot question; and



• Agreed timing of the ballot and the protocols associated with the conduct and counting of the ballot and the individuals who were to scrutineer the process.

[6] It was also agreed that Fair Work Australia would be advised of the outcome and that if the ballot demonstrated that a majority of employees wanted to bargain, this application should be granted and a determination issued. It was also agreed that if the ballot did not demonstrate majority support, this application should be dismissed.

[7] On 2 September 2011, Fair Work Australia was advised 1 of the outcome of the ballot, being that of the 63 eligible employees, 55 votes were cast. Of these, 40 voted in favour of commencing bargaining with GKK for an enterprise agreement.2 The number supporting the proposition represents a majority of the total group of employees concerned. Although the agreement between the parties as to the consequences of that outcome is significant, the matter remains one for Fair Work Australia to determine.

The statutory requirements

[8] Sections 236 and 237 provide 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.”

Consideration

[9] It is evident from the material already before Fair Work Australia that, save for the central issue between the parties (whether s.237(2)(a) is satisfied), all of the other requirements for the granting of the application are not in contention and have been fulfilled. That is, the NUW is a bargaining representative and has made a valid application; the agreement being sought is a single enterprise agreement; GKK has not yet agreed to bargain; the group of employees has been fairly chosen; and it would be reasonable, if a majority of employees wish to bargain, for a determination to be made.

[10] It is also evident to me that given the nature and conduct of the fresh ballot, this result should be considered to be decisive in relation to whether the majority of employees who would be covered by the agreement being sought want to bargain with GKK.

[11] In light of those findings and the result of the fresh ballot, I am satisfied that all of the requirements of s.237(2) of the Act have been met. As a consequence, I am obliged to grant the application.

[12] A majority support determination was issued by Fair Work Australia on 5 September 2011 (PR514195) in conjunction with this decision.

COMMISSIONER

Appearances:

A Portelli with D Garland for the National Union of Workers.

K Smith of EMA Legal (with permission) with G Katsoulis for GKK Enterprises Pty Ltd.

Hearing details:

2011
Adelaide
18 August

 1   The NUW supplied Fair Work Australia with a formal ballot result signed by a representative of GKK and the NUW.

 2   15 employees voted against the proposition that bargaining should commence.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR513598>