National Union of Workers v Karcher T/A Karcher Pty Ltd
[2014] FWC 5145
•30 JULY 2014
| [2014] FWC 5145 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.236 - Application for a majority support determination
National Union of Workers
v
Karcher T/A Karcher Pty Ltd
(B2014/1011)
COMMISSIONER ROE | MELBOURNE, 30 JULY 2014 |
Bargaining – majority support determination.
[1] On 25 July 2014 the National Union of Workers (NUW) applied for a majority support determination pursuant to Section 236 of the Fair Work Act 2009 (Cth) (the Act).
[2] The relevant provisions of the Act are Sections 236 and 237:
“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] The employer to be covered by the agreement is Karcher Pty Ltd (the Employer). The NUW seek that the proposed agreement cover the non-salaried employees who perform storage service work in the warehouse at the employer’s Scoresby location. The Karcher Pty Ltd warehouse is currently located at 40 Koornang Road Scoresby 3179 Victoria.
[4] The matter was heard on 29 July 2014. Mr Alfarano appeared for the Employer and Ms Segan appeared for the NUW. The NUW provided a written submission, a petition, and a copy of correspondence to the company dated 21 July 2014.
[5] The NUW conceded that two of the persons who signed the petition were employees of a labour hire company and that the NUW was not seeking that the labour hire company be covered by the proposed agreement. The petition provided that “we the below signed warehouse employees of Karcher Pty Ltd want to bargain with the Company for an Enterprise Agreement covering warehouse employees at 40 Koornang Road Scoresby 3179. We confirm that the NUW has provided us with information about collective agreements and the bargaining process.”
[6] Mr Alfarano confirmed that:
● The NUW had approached the employer seeking bargaining for an agreement with the warehouse employees.
● The NUW had provided the employer with a copy of the petition.
● A majority of the employees who are non-salaried employees who perform storage service work in the warehouse at the employer’s Scoresby location have signed the petition. 6 such employees have signed the petition and there are between 8 and 11 employees who might come within the coverage of the proposed agreement.
● The employer has not yet agreed to bargain or initiated bargaining for the proposed agreement and in fact the employer is opposed to bargaining for an agreement. The employer is opposed to an agreement with the scope proposed by the NUW and also opposed to an agreement with a different scope.
● There are about 63 persons employed at the Scoresby site by the employer. Those employees fall into four groups - the warehouse employees, customer service or call centre employees, sales employees and clerical/administrative employees.
[7] It is therefore not in contention and I am satisfied that:
● The NUW can make the application as it is a bargaining representative for an employee who will be covered by the proposed agreement. The NUW has made such an application.
● Those employees who signed the petition had been informed about what an agreement is and the nature of the bargaining process. I consider that the petition is in all the circumstances adequate and appropriate evidence that the majority of employees want to bargain.
● A majority of employees who are employed by the employer as at 29 July 2014 who will be covered by the proposed agreement want to bargain for the agreement.
[8] Mr Alfarano submitted that the employer did not wish to bargain for an agreement with the scope sought by the NUW. I accept that it is possible that there might be a different scope for a proposed agreement which might be preferred or might be equally fair to the scope proposed by the NUW. However, having considered the submissions of the NUW and the employer I am satisfied that the group of employees who will be covered is geographically, operationally and organisationally distinct. I am satisfied that the group is fairly chosen. The grouping is rational and legitimate. A distinct underlying safety net in the form of the modern award applies to the group chosen. The work of the group is not integrated with a manufacturing process. The work of the group has connections to the work of other employees in sales, clerical/administration and call centre but it is operationally and organisationally distinct from the work of these other employees.
[9] Apart from the submission of the employer that they do not wish to bargain for a separate agreement with the warehouse employees there was no other submission that it would not be reasonable to make the determination sought. I am satisfied that it is reasonable in all the circumstances to make the determination.
[10] The requirements of Section 237(2) having been met I must make the determination sought.
Majority Support Determination
[11] A majority of the non-salaried employees of the Employer (Karcher Pty Ltd) who perform storage service work in or around the warehouse at the 40 Koornang Road Scoresby 3179 Victoria. (Eligible Employees) who will be covered by the proposed Agreement want to bargain for an agreement with Karcher Pty Ltd (the Employer) This majority support determination will apply from the date of this decision.
COMMISSIONER
Appearances:
Ms M Segan with Mr S Burns appeared for the NUW.
Mr R Alfarano with Ms C Myers appeared for Karcher.
Hearing details:
2014
Melbourne
July 29
Printed by authority of the Commonwealth Government Printer
<Price code C, PR553708>
0
0
0