National Union of Workers v J & N Haw Unit Trust T/A Hussey & Co Pty Ltd

[2017] FWC 5844

[2017] FWC 5844

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.236—Majority support determination

National Union of Workers

v

J & N Haw Unit Trust T/A Hussey & Co Pty Ltd

(B2017/892)

Commissioner Ryan MELBOURNE, 10 NOVEMBER 2017

Majority support determination for employees of J & N Haw Unit Trust trading as Hussey & Co Pty Ltd at Somerville, Victoria..

1. This decision concerns an application lodged by the National Union of Workers (the NUW) 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 Hussey & Co Pty Ltd (the Employer) who are engaged in duties including the packing, processing, production and distribution of fresh foods at the company’s Somerville, Victoria site but that excludes employees engaged as Sales, Administration, maintenance and quality assurance.

1. Sections 236 and 237 of the Act set out the requirement for the making of a majority support determination:

“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.”

1. The NUW submits it has been seeking the Employer’s agreement to enter into bargaining for a new agreement and that the Employer has refused to bargain.

1. The NUW has filed a confidential petition signed by 52 employees which states that those employees want to bargain for a new enterprise agreement with the Employer.

1. The Employer has filed a list of 90 employees who would be covered by the proposed enterprise agreement.

1. I have examined both the petition and the list of employees.

1. On the basis of that comparison, I am satisfied that the NWU is the bargaining representative for the employees concerned and are, therefore, capable of making this application for a majority support determination.

1. I am satisfied that a majority of the employees employed by the Employer who will be covered by the agreement want to bargain.

1. I am satisfied that the Employer has not yet agreed to bargain or initiated bargaining for the agreement.

1. I am satisfied that the group of employees are distinct with the meaning of s.237(3A) and I accept that they have been fairly chosen as required by s.237(2)(c) of the Act.

1. Given that all of the requirements of s.237(2) of the Act have been met, I am obliged to issue the determination in accordance with s.237(1). A determination will issue separately.

COMMISSIONER

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